Secretary of Labor v. Highland Mining Co., LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA litigated four citations against Highland Mining involving loose ribs, two misaligned conveyor belts, and an inadequate on-shift examination. Judge Kenneth R. Andrews affirmed the loose-rib violation but changed it to unlikely and non-S&S because miners traveled the area infrequently, reducing the penalty to $750. He upheld an S&S rubbing-belt citation but reduced negligence from high to moderate and assessed $9,000, while affirming a second S&S rubbing-belt citation at $1,657. The judge also affirmed an S&S, high-negligence examination citation because the examiner failed to record obvious float coal dust, a rubbing belt, combustible material, and loose ribs. Total penalties for the four litigated citations were $15,096, while other citations in the dockets had been resolved by settlement.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.362(b), and 75.1731(b)
• Outcome: All four citations were affirmed, two were modified in gravity or negligence, and penalties totaled $15,096.
• Key point: Obvious belt and rib hazards support operator negligence through mine examiners, but specific exposure and mitigating facts still control S&S and negligence levels.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

HIGHLAND
MINING CO., LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2013-112

A.C.
No. 15-02709-303146

Docket
No. KENT 2013-480

A.C.
No. 15-02709-311244-02

Mine:
Highland No. 9 Mine

DECISION AND
ORDER

Appearances:               Paige
I. Bernick, Esq., & Angele Gregory, Esq., U.S Department of Labor, Office
of the Solicitor, Nashville, TN for the Secretary

Jeffrey K. Phillips, Esq. and Candace Smith,
Esq., Steptoe & Johnson, Lexington, KY for Respondent

Before:
                       Judge Andrews

STATEMENT
OF THE CASE

This
case is before the undersigned Administrative Law Judge on a Petition for
Assessment of Civil Penalty filed by the Secretary of Labor against Respondent,
Highland Mining Co., LLC (“Respondent” or “Highland”) pursuant to Section 104
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(d). A hearing
was held in Henderson, KY on May 19-20, 2014 at which the parties submitted
testimony and documentary evidence. After the hearing, the each party submitted
two post-hearing briefs, and the Secretary submitted a reply brief.  

PROCEDURAL
HISTORY

Between
March 27, 2012 and November 27, 2012, MSHA Inspectors conducted several
inspections at Respondent’s Highland No. 9 Mine and issued citations and orders
for alleged violations of the Mine Act. Respondent filed timely contests to
several of those citations and orders.

Docket
No. KENT 2013-112 contained six citations and was assessed a total civil
penalty of $16,657.00. At the start of the hearing, the parties informed me
that they had settled four of the six citations, leaving only Citation Nos.
8508532 and 8508512 for hearing. A Decision Approving Partial Settlement was
issued on September 2, 2014.

Docket
No. KENT 2013-479 contained one citation and was assessed a total civil penalty
of $11, 597.00. Although Citation No. 8511143 was heard, the parties informed
me after the hearing that they had reached a settlement in this docket. A Decision
Approving Settlement was issued on October 10, 2014.

Docket
No. KENT 2013-480 contained sixteen citations and was assessed a total civil
penalty of $31,876.00. Prior to hearing, the parties settled fourteen of the
sixteen citations, leaving only Citation Nos. 8511144 and 8511145 for hearing. A
Decision Approving Partial Settlement was issued on August 15, 2013.

KENT
2013-112

I.                  
Stipulations

The parties have
entered into several stipulations, admitted as Parties’ Joint Exhibit 1.[1]
Those stipulations include the following:

1.      Highland
Mining Company, LLC is subject to the Federal Mine Safety and 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.      Highland
Mining Company, LLC has an effect upon commerce within the meaning of Section 4
of the Federal Mine Safety and Health Act of 1977.

4.      Highland
Mining Company, LLC operated Highland No. 9 Mine, Mine Identification Number
1502709.

5.      Citation
number 8508512 is complete, authentic, and admissible.

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

7.      Citation
number 8508232 is complete, authentic, and admissible.

8.      The
inspector notes for the citation identified in paragraph 7 are complete,
authentic, and admissible.

9.      Government
Exhibit 5, the R-17 violation history for Highland No. 9 Mine, is complete,
authentic, and admissible.

10.  The Highland No. 9 Mine produced
3,950,732 tons of coal in 2012, and had 1,079,470 hours worked in 2012.

11.  The proposed penalty will
not affect Highland Mining Company, LLC’s ability to remain in business.

12.  Respondent, Highland Mining
Company, LLC, abated the citations involved herein in a timely manner and in
good faith.

(JX-1)
(see also Transcript at 9-10).[2]

II.               
Citation
No. 8508232

A.   
Summary of
Testimony

Inspector Paul
Hargrove[3]
was at Highland No. 9 on April 1, 2012 in order to conduct an EO1 inspection.[4] (Tr. 61). On
April 10, he arrived at 7:30 a.m., during the production day shift, to inspect
outby equipment and travel belt lines. (Tr. 62). Upon arrival, he told Travis
Little, the safety director, and Bryan Branson, that he was there for an
inspection, distributed Miners’ Rights documents, and told the company he
needed a miners’ representative.[5]
(Tr. 62-63, 89). He also reviewed the pre-shift books for the No. 1, 2, 3, 4,
5, and 6 units, the outby areas, and the belt. (Tr. 63, 99). No hazards,
including loose ribs, were listed. (Tr. 63, 99). He then went underground with
Branson and met Allen Thomas, the miners’ representative. (Tr. 89, 63, 108). Hargrove
first inspected the mantrip and then traveled the 6-B belt line. (Tr. 64). Branson
remembered checking the 6-A belt line while walking outby on the travel side. (Tr.
109).

At 10:09,
Hargrove found a loose roof and rib in violation of §75.202(a) in the belt
travelway (an area 33-36 inches wide area with a roof measuring 7 feet, 2
inches). (Tr. 54, 64, 71-72, 80). The loose rib was 16 feet long, 2-3 feet high,
7 to 10 inches thick, and a 1-inch gap existed between the rib and the solid
coal about 52 inches above the mine floor. (Tr. 64-65, 88-89, 120). The rib was
made of coal and rock and weighed a couple of hundred pounds. (Tr. 98-99). The
rib was also undercut, meaning the lower support was removed for 7 inches. (Tr.
64). Some of the rib was already on the ground. (Tr. 71). Hargrove informed
Respondent that he was going to write a citation. (Tr. 72). He then issued the
citation and wrote his notes while there. (Tr. 72).

Hargrove found
another loose coal rib 15 feet in length, 5 feet high, and 14 inches thick five
or six crosscuts from the first on the same belt line. (Tr. 67). He noticed
this loose rib after he had written the notes for the initial condition and
then added the new one. (Tr. 67). The area was not flagged off and he ordered
Respondent to do so. (Tr. 68).

As a result of
these conditions, Hargrove issued Citation No. 8508232 (GX-3) under §75.202(a).
(Tr. 72-73). That regulation required support or control to be provided in
areas where miners work or travel to protect miners from loose coal or rock
falls. (Tr. 73). The method of control, whether bolts or timbers, was not
important. (Tr. 73). In Hargrove’s opinion, this area was not adequately
supported because the ribs gapped and were going to fall. (Tr. 73).

Citation No. 8508232
was marked as “Reasonably Likely” to occur because the cited gap in the first
rib was large and pulling farther apart, meaning the rib was going to fall. (Tr.
65, 73-74, 94-96, 101-102). Further, the area was undercut and lacked support,
which increased the chances that the rib would fall. (Tr. 65, 73-74). The tight
entry (33-36 inches wide) increased the likelihood of injury. (Tr. 66-67, 100,
111). Also, the primary support in the area, the coal pillars, faced increased
pressure as parts of the pillar began to break off, creating the risk of
further falls. (Tr. 73-74). Hargrove could not definitively say when the ribs
would fall, but it could have been at any time. (Tr. 103).

Branson did not
believe that the first rib was loose. (Tr. 109). Examiners carried pry bars and
if one and saw a loose rib, he would have pulled it down. (Tr. 82-84, 111-112,
117). Branson carried a 3-foot pry bar and testified that he pulled loose ribs
during Hargrove’s inspection but, despite his efforts for several minutes,
could not pull the cited rib. (Tr. 111-113, 116, 119). He did not believe it
was loose rib because he could not pull it down. (Tr. 113, 115). Branson did
not believe the length of the pry bar was important because examiners begin to
pry from the side and if the rib was loose, any pry bar would pull it. (Tr.
120-121, 124-125). Hargrove told Branson to flag off the area and have someone else
remove it or timber it. (Tr. 113). Branson hung danger ribbon from pin plates
inby and outby to block the area. (Tr. 114). Hargrove conceded that the cited
area was flagged rather than corrected and believed that Branson attempted, and
failed, to pull down the rib. (Tr. 89-90, 103).

Hargrove also
believed the second rib was loose and that someone from the safety department
quickly pulled it with a 4-foot pry bar. (Tr. 79, 102, 116). The general rule is
the larger the gap the looser the rib, but in this situation the first
condition (with a gap) was not pulled while the second condition (with no gap)
was pulled. (Tr. 91, 96, 102). Branson did not believe this rib was loose
either. (Tr. 116). It took him 2 to 3 minutes to pull it. (Tr. 116). He
believed loose ribs would fall in a matter of seconds when pressure was added. (Tr.
116-117).

The citation was
marked for lost workdays/restricted duty type injuries because Hargrove wanted
to give the benefit of the doubt that no one would be seriously injured. (Tr.
74). However, he was familiar with incidents where miners were permanently
disabled or killed by roof falls causing spinal injuries.  (Tr. 70, 74-75). Such
injuries would occur when a rib fell on a miner and pinned a miner to the floor
or belt structure or when a rib burst and hit a miner. (Tr. 66, 70, 75). Injury
would be caused by unstable roof and loose footing. (Tr. 70).

The cited
condition was marked as affecting one person: the belt examiner, belt mechanic,
or belt cleaner, or anyone else sent to work on the belt. (Tr. 68, 75,
80-81-82). The most likely person to be injured would be the mine examiners who
regularly traveled the belt. (Tr. 75). The belt cleaner did not regularly travel
this area to clean or adjust belts. (Tr. 68, 81-82). There might be more than
one person in the area during a production shift. (Tr. 82).

The citation was
marked as S&S because Hargrove believed it was reasonably likely to cause a
serious injury as a result of the large area, the size of the rib, and the
location in an area where miners normally worked or traveled. (Tr. 75-76). Hargrove
believed that if he had not pointed out the condition, it would have eventually
injured a miner. (Tr. 76). Branson disagreed with the S&S designation
because he could not pull down the first rib and the chances of someone being
hit by the second rib were slim. (Tr. 112, 117).  An examiner would only be in
the area twice a day and would only be exposed to the conditions for a few
minutes. (Tr. 81, 117). Hargrove believed exposure would occur in two places. (Tr.
82). Branson testified that this rib could have fallen in a few hours, weeks or
months or it might never fall. (Tr. 117-118, 123). But he did not think it was
ready to fall on April 10. (Tr. 117-118, 123-125).

This condition
was marked as “moderate negligence,” because that was what Hargrove observed
and told the operator. (Tr. 76). However, when Hargrove arrived at the 6-C
header, he found the initials “BM” dated 4/10 at 9:44 a.m., indicating an
examination.[6] (Tr. 71, 77-78). An
examiner would have to travel past the cited area to get to the 6-C header. (Tr.
72, 100). Given the initials and the examination, Hargrove would cite
Respondent for high negligence. (Tr. 76-79). Further, when miners worked in
this area a pre-shift and on-shift exam would be conducted. (Tr. 67-68, 78,
81). The condition would be obvious to someone in the area because part of the
rib had already fallen across the belt entry and the gap was large. (Tr. 66, 77).
Without the gap, a rib, like the second one, may have been difficult to see. (Tr.
66, 96-97). When the citation was issued, no mitigating circumstances were
offered. (Tr. 78).

Branson
disagreed with the inspector’s negligence designation and believed that belt
examiners traveling through the area would try to pull any hazardous loose
ribs. (Tr. 114, 122). While there was enough rib material to fill a wheelbarrow
on the ground when they arrived, Branson could not tell how long the material
had been there. (Tr. 109-110). Further, Branson did not believe it was possible
to tell from looking whether it had been pulled or fallen down. (Tr. 109-110,
114-115). He believed it was likely pulled down by an examiner, which meant
someone was taking care of roof and rib conditions. (Tr. 114-115, 122).  Branson
opined that if an examiner attempted to pull down the rib but failed, then was
no hazard. (Tr. 122). However, he conceded the examiner should have tried a
larger bar or noted and flagged the rib so it could be monitored. (Tr.
122-123). Hargrove did not believe that this coal had been pulled down by
examiners. (Tr. 83). He did not see the rib fall, but based this belief on
experience. (Tr. 83). Hargrove’s notes showed that he told Respondent to clean
up pulled coal ribs in the area, but he was referred to clean up after
abatement, not previously pulled ribs. (Tr. 94-95).

Branson also
disagreed with the negligence designation because the condition could have
arisen after the examiner passed. (Tr. 118). The examiner may also have been
examining the top or the belt line at the time causing him to miss the rib. (Tr.
118, 121). If an examiner had seen it, he would have pulled it because that was
what he was trained to do early in the job. (Tr. 118). Hargrove conceded that
he was walking outby, while an examiner would be traveling inby and thus might
see different things. (Tr. 86-88). However, he noted that Respondent was
supposed to inspect the belt in its entirety and that the first rib was visible
from both directions. (Tr. 87-88, 99-100). Further, there was material was
blocking the direction of travel. (Tr. 100).

Hargrove
believed the condition existed for a few shifts because of the dull, oxidized
condition of the coal and the coal and rock dust present. (Tr. 66, 68, 77, 92).
Fresh coal and dust would be shiny. (Tr. 68, 77, 92). Further, the existence of
the gap showed that the condition had been present for a while. (Tr. 65). In
his notes, Hargrove wrote the first condition existed for an “unknown” length
of time and did not list a time for the second condition. (Tr. 93, 95, 101). However,
he also stated the condition appeared recent, meaning within a few shifts
(though he did not make that explicit in the notes). (Tr. 66, 68, 91-94, 101). Branson
believed that the condition looked fresh, though he could not say how recent. (Tr.
115-116). It did not appear to him to be full of rock dust and was black in
color. (Tr. 115).

This mine had
rib conditions in the past, including falls in the intake, travelways, and supply
road. (Tr. 68-69, 71). In the cited area, Respondent had to drop off two
entries because of bad top and water. (Tr. 70-71). Hargrove testified that he
warned Branson on April 3 that Respondent needed to better monitor loose roof
and ribs in the belt entries, travelways, and on the units. (Tr. 69, 84-85). This
comment was not part of the initial preconference, it was a specific note, but
they would discuss the ribs at the preconference also. (Tr. 85-86).  

The condition
was abated when the loose ribs were pulled, though Respondent could have
controlled the ribs with bolts or timbers. (Tr. 71-72, 78, 103). The first
condition was not abated for 24 hours but the belt continued to run and be
examined. (Tr. 97, 102). Hargrove did not stay to view the termination. (Tr.
102). He was not sure how they pulled down the first rib, but the second was
pulled down with a 4-foot pry bar. (Tr. 78-79, 102-103).

B.    
Contentions
of the Parties Regarding Citation No. 8508232

With respect to Citation No. 8508232, the
Secretary asserts that Respondent violated 30 C.F.R. §75.202(a), that this violation
was reasonable likely to result in a Lost Workday/Restricted Duty injury to one
miner, that the violation was S&S, and that it resulted from moderate
negligence. (GX-3)(Secretary’s KENT 2013-112 Post-Hearing Brief at 16-20).
The Secretary presumably believes that the proposed penalty of $1,530.00 is
appropriate.

Respondent
argues that Citation No. 8508232 was not valid and should be vacated. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 27-32). It further argues that, in the
event the citation is found to be valid, that a Lost Workday/Restricted Duty
injury was unlikely to occur and that the violation was not S&S. (Id.
at 36-37). It also believed that its actions would be better characterized as
showing no negligence. (Id. at 32-35). Finally, Respondent presumably
believes that the penalty should be vacated or, in the event the citation is
found valid, reduced pursuant to its proffered gravity and negligence
determinations.

C.    
Findings
of Fact and Conclusions of Law Regarding Citation No. 8508232

The findings of fact in this, and other
sections, are based on the record as a whole and the Administrative Law Judge’s
careful observation of the witnesses during their testimony. In resolving any
conflicts in the testimony, the ALJ has taken into consideration the interests
of the witnesses, or lack thereof, and consistencies, or inconsistencies, in
each witness’s testimony and between the testimonies of the witnesses. In
evaluating the testimony of each witness, the ALJ has also relied on his
demeanor. Any failure to provide detail as to each witness’s testimony is not
to be deemed a failure on the ALJ’s part to have fully considered it. The fact
that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.
2000) (administrative law judge is not required to discuss all evidence and
failure to cite specific evidence does not mean it was not considered).

1.      The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That Respondent
Violated 30 C.F.R. §75.202(a).

On April 10, 2012, Inspector Hargrove
issued a 104(a) Citation, No. 8508232, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The coal ribs along the 6-B belt line
are not being supported or controlled to protect miners from fall of coal ribs.
A loose coal rib located between crosscut #45 and crosscut #46 on the 6-B belt
line, that measure 16 feet in length, 3 feet in height, and 7 inches to 10
inches thick is gapped open 1 inch. Also the loose coal rib has been undercut,
bottom support removed for a depth of 7 inches along the 16 feet of loose coal
rib. Also between crosscut #39 and crosscut #40 a loose coal rib that measured
15 feet in length, 5 feet in height and 4 inches to 13 inches thick. The 6-B
belt line is travel by miners two times a day.

Standard 75.202(a) was cited 47 times in
two years at mine 1502709 (47 to the operator, 0 to a contractor).

(GX-3).

The
cited standard, 30 C.F.R. §75.202(a) (“Protection from
falls of roof, face and ribs”), provides the following:

(a) 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). As Judge Lewis noted in Emerald
Coal Resources, LP, “[t]he comments accompanying the final rule recognize
the high death toll caused by inadequate roof support and the need for
mandatory roof controls. 53 FR 2354-01, 2354 (Jan. 27, 1988); see also United
Mine Workers of America, Int'l. Union v. Dole, 870 F.2d 662, 664 (D.C.
Cir.1989) (recognizing that roof falls are among the most serious hazards
to miners).” 2013 WL 6529526, *30-31 (Sept. 23, 2013)(ALJ Lewis).

In
order to prove a violation of 30 C.F.R. §75.202(a), well settled Commission
case law holds 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.” Canon Coal, Co., 9 FMSHRC 667, 668 (April 1987); see also Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998).  According to Judge
Manning, the objective standard formulated by the Commission must be used to
evaluate three requirements of §75.202(a): (1)
the cited area must be an area where persons work or travel; (2) the area must
be supported or otherwise controlled, and (3) such support must be adequate to
protect persons from falls or bursts of rib. Oxbow Mining, LLC, 2013
WL 1856627, *13 (April 11, 2013)(ALJ Manning); see also Emerald Coal
Resources, LP, supra at 31.  

At
hearing, Secretary’s counsel presented credible evidence to support the
issuance of Citation No. 8508232.
Specifically, Inspector Hargrove testified that many people worked in the cited
area from time to time, including belt mechanics and cleaners. (Tr. 68, 75,
80-81-82). Most importantly, an examiner traveled the area on a regular basis. (Tr.
75). Therefore, this was an area where miners worked or traveled. Further,
Secretary’s counsel presented evidence that two large, loose ribs existed
within 6 crosscuts of one another. (Tr. 54, 64, 67, 71-72, 80, 88-89, 98-99,
116, 120). The first rib was
16 feet long, 2-3 feet in height, 7 to 10 inches thick, and gapped open 1 inch
about 52 inches above the mine floor. (Tr. 64, 88-89, 120). The rib weighed a
couple of hundred pounds and was undercut. (Tr. 64, 98-99). The Secretary
argued that this rib was essentially hanging off the solid rib and about to
fall. (Secretary’s KENT 2013-112 Post-Hearing Brief at 16). The second
rib was 15 feet in length, 5 feet high, and 14 inches thick. (Tr. 67). At
hearing Hargrove credibly testified that the conditions he observed indicated
that the area was not adequately supported and that a rib fall hazard was
present. (Tr. 73). This means that a reasonably prudent person familiar with
the protective purpose of the cited standard would believe that the support
provided would be inadequate to protect persons from falls or rib bursts; these
ribs were loose and would fall. Therefore, I find that the Secretary met his
burden, showing by a preponderance of the evidence that Respondent violated 30
C.F.R. §75.202(a).

In its brief,
Respondent argued that this violation was invalid. (Respondent’s KENT
2013-112 Post-Hearing Brief at 27-32). However, Respondent’s argument was
not compelling.

Specifically, Respondent
argued that a violation of 30 C.F.R. §75.202(a) only occurs
where there is a “hazard” and that neither rib here constituted a hazard. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 27-28). Respondent claimed that the
only evidence supporting the existence of a hazard was Hargrove’s testimony. (Id.
at 28). Respondent believed that the objective evidence supported a finding
that neither the first nor the second rib was in danger of falling. (Id.).
As to the first rib, Respondent contended that not every unbolted, gapped open
rib would constitute a hazard and that there was no evidence to suggest that
this rib would not stand for a hundred years. (Id. at 29). In support,
Respondent cited Branson’s testimony that he could not pull the rib with a
yard-long pry bar, despite his best efforts. (Id. at 29-30, Tr. 90,
112-113). It argued that despite Hargrove’s initial belief about the rib, once
Branson proved unable to pull it down, it was clear no hazard was present. (Id.
at 31). As to the second rib, Respondent noted that Branson testified that it would
not fall without help. (Id. at 31-32). Further, Hargrove testified that
that the rib was not gapped open and Respondent argued this meant it was not a
hazard. (Id.). At worst, Respondent argued, the evidence regarding these
two ribs was in equipoise; with Hargrove arguing that a hazard existed and
Branson arguing that it did not. (Id. at 29). In light of the
Secretary’s burden, Respondent argues that this establishes grounds to vacate
the citation.

Respondent’s
argument essentially boils down to an assertion that Inspector Hargrove’s
testimony, including the conclusions he drew from the conditions observed, was
insufficient evidence to support a 30 C.F.R. §75.202(a) violation. However, Respondent’s
specific assertions about the insufficiency of evidence are not supported by
the record. Respondent’s claim that no evidence was presented to suggest that
the first rib was a hazard or would not stand for another hundred years was
belied by the fact that Hargrove credibly testified that both ribs would fall
given continued, normal mining operations. (Tr. 65, 73-74, 76, 103). Similarly,
Respondent’s contention that the second rib was not hazardou because Hargrove
testified it was not gapped was contradicted by further testimony from Hargrove
that, despite the lack of a gap, this rib was a hazard. (Tr. 116).

Respondent’s
discomfort with this citation appears to stem from the fact that it is
supported primarily with testimony from Inspector Hargrove. (See
Respondent’s KENT 2013-112 Post-Hearing Brief at 28). However, no further
evidence, beyond the testimony of an inspector, is necessary to support the
citation. See Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th
Cir. 1995); see also Martin County Coal Corp., 2014 WL 2154273, *9
(April 29, 2014)(ALJ Feldman) (holding that an inspector’s testimony is given
substantial weight in determining whether a violation of 30 C.F.R. §75.202(a)
has occurred). As noted supra, I credited the testimony of Hargrove that
the cited rib conditions constituted a hazard to miners working or traveling in
the area. (Tr. 73). Despite Respondent’s doubts, this testimony is evidence
and, in this case, it is supported by the Hargrove’s observations at the time
of the citation and the other record evidence. Therefore, it is sufficient to
support this citation.

Finally,
it is true that Branson also presented evidence regarding these ribs and that
this evidence contradicted Hargrove’s observations. Most notably, Branson
observed that the ribs were difficult, or even impossible, to pull down. (Tr. 112-113).
However, that does not necessarily mean that the evidence is in equipoise or
that the citation should be vacated. As the Administrative Law Judge, I am not
required to grant all testimony evidence equal weight; I am entitled to make
credibility determinations. Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec.
1981); and Twentymile Coal Co., 2014 WL
2920576, FN 7 (June13, 2014). Those determinations are entitled
to substantial deference. Id. I credited Hargrove’s testimony over
Branson’s testimony both because of their respective demeanors at hearing and
because Hargrove’s testimony provided a more reasonable interpretation of the
conditions observed. Specifically, Hargrove credibly testified that, under
continued, normal mining operations that the rib would eventually fall. (Tr. 65,
73-74, 76, 103). Hargrove also credibly reported that the pillars in the mine,
or any mine, were under great pressure and that conditions could change
quickly. (Tr. 73-74).

On
the other hand, Branson’s testimony that a rib that was gapping open an inch or
another rib that was pulled down with a 3-foot pry bar were likely to remain in
those positions indefinitely was incredible. (Tr. 117-118, 123). Properly
supported ribs do not gap (as the first rib did) and they cannot be pulled down
after a few minutes with a short pry bar (as the second rib was). There is no
reason to believe these improperly supported ribs would simply stay in place
indefinitely. Mines are dynamic places and these ribs are under enormous
pressure. Further, workers and golf carts move through this narrow entry,
possibly bumping the ribs. That is the reason support is mandated. Under
Respondent’s assessment, as colored by Branson’s testimony, a rib would not be
hazardous until it fell to the ground because, until that time, no one could
say for sure when it would fall. It might be an hour or it might be a hundred
years. Branson’s testimony was self-serving and did not comport with the
evidence, the history of mining, or common sense. Therefore, I find that
Hargrove’s testimony on this point was more credible and supports a finding
that the citation was valid.[7]

2.      The Violation Was
Unlikely to Result in a Lost Workday/Restricted Duty Injury And Was Not Significant
And Substantial In Nature.

Inspector Hargrove marked the gravity of
the cited danger in Citation No. 8508232 as being “Reasonably Likely” to result
in a “Lost Workday/Restricted Duty” Injury to one person. (GX-3). With the
exception of the likelihood, these determinations are supported by a
preponderance of the evidence. Hargrove also determined that the violation was
S&S. (GX-3). This determination was not supported by the preponderance of
the evidence.

Well-settled Commission precedent sets
forth the standard used to determine if a violation is S&S. A violation is
S&S “if, based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission later clarified
this standard, explaining:

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.

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

Regarding the first element of S&S -
the underlying violation of a mandatory safety standard - it has already been
established that Respondent violated 30 C.F.R. § 75.202(a).

The second element of Mathies, a
discrete safety hazard – that is a measure of danger to safety – contributed to
by the violation – was also met. Inspector Hargrove credibly testified that,
under continued normal mining operations, these ribs would eventually fall and
that they would be a hazard to miners in the area. (Tr. 65, 73-74, 76, 103). It
was a matter of when, not if, those unsupported ribs would fall and expose
miners in the area to a safety hazard.

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was not met. The Commission clarified the third element of the Mathies
test in Musser Engineering, Inc., and PBS Coal Inc., 32 FMSHRC 1257,
1280-81 (Oct. 2010) (“PBS”). The Commission held that the “test under the third
element is whether there is a reasonable likelihood that the hazard contributed
to by the violation…will cause injury.” Id. at 1281. Importantly, it
stated that the “Secretary need not prove a reasonable likelihood that the
violation itself will cause injury.” Id. The Commission also emphasized
the well-established precedent that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of
S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec.
2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996). The likelihood of the hazard being realized must be considered assuming
normal continued mining operations without abatement of the violation. Consolidation
Coal Co., 8 FMSHRC 890, 899 (Jun. 1986).  

Analysis under the third prong of Mathies
hinges on whether a miner would be injured, assuming that the hazard is
realized. In this instance, the hazard contributed to was a rib fall in a belt
entry area. However, having determined that the rib would fall does not
necessarily make an injury likely. The question is not just whether the rib
would fall but whether it would expose miners to a hazard. In this instance, in
order for a miner to be injured, he/she would have to be next to the rib at the
instant that hazard was realized, meaning when the rib fell. Here, the
uncontested evidence is that, on an average day, only examiners would travel
through the cited area. (Tr. 68, 75, 80-82). Further, Hargrove testified that
the examiners only traveled the entry during production shifts and would only
spend a few minutes near these ribs during the day. (Tr. 81, 117). That means
during the 24 hours a day the mine was operating in some capacity, a miner
would only be injured by the rib if it happened to fall during the handful of
minutes when the miner were present. While it is certain that the ribs here
would fall and also that miners would travel in the area, it would take an
improbable coincidence for these two events to occur simultaneously. I do not
believe that the Secretary carried his burden of showing that it was reasonably
likely a miner would be injured by a rib fall in this area.  Therefore, I find,
even assuming the rib fall, that the likelihood of an injury was “Unlikely”
rather than “Reasonably Likely and that the third prong of Mathies was not met.
This violation was not S&S.

I stress here that this holding is
limited to the specific factual circumstances present here. I do not hold that
a violation of 30 C.F.R. §75.202(a), or a loose rib in general, can never be
S&S. In fact, given the immense danger presented by roof and rib falls, it
is probable that most loose ribs in working areas of the mine would give rise
to S&S violations. However, given the isolated nature of the area at issue
here, the Secretary was unable to carry the burden with respect to the third
prong of Mathies.

In
its brief, the Secretary argued that this violation was reasonably likely to
occur and therefore S&S. (Secretary’s KENT 2013-112 Post-Hearing Brief
at 17-18). However, The Secretary’s argument was not compelling.

The Secretary’s points regarding gravity
in its brief primarily deal with the likelihood that the rib would fall. (Secretary’s
KENT 2013-112 Post-Hearing Brief at 17-18). As noted supra, I have
found that a rib fall was a virtual certainty barring abatement, but that a rib
fall was not enough to meet the Secretary’s burden. The Secretary’s only
argument with respect to the likelihood that miners would face the hazard of a
rib fall was that the two separate ribs increased the time of exposure. (Id.
at 17). However, Hargrove and Branson’s testimony that exposure would last no
more than a few minutes was made in light of the fact that there were two loose
ribs. (Tr. 81-82). Therefore, there is no reason to believe that exposure to a
rib fall was reasonably likely. The designation of “Unlikely” is the most
reasonable and, as a result, Citation No. 8508232 is not S&S.

Having determined that this situation
does not meet the third prong of the Mathies test and is therefore not
S&S, it is not necessary to consider the fourth prong. However, for the
purpose of determining the gravity of this violation, it is still necessary to
consider the severity of the injury that would result if a miner were affected.
The testimony that if a miner were struck by a falling rib the injuries would
be, at the very least, severe enough to cause lost workdays/restricted duty was
essentially uncontested. (Tr. 74). Also, only one miner would be affected by
this condition at a time. (Tr. 68, 75, 80-82).

Therefore, I find that the cited
violation was not S&S, was unlikely to occur, that if it did occur it would
result in lost workday/restricted duty injuries to one miner. I will now turn
to the S&S designation in this matter.

3.      Respondent’s
Conduct Displayed “Moderate” Negligence.

In the citation at issue, Inspector Hargrove
found that the operator’s conduct was moderately negligent in character. (GX-3).

Standard 30 C.F.R. §100.3(d) provides
the following:

(d) Negligence.
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.
Under the Mine Act, an operator is held to a high standard of care. A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices. The failure to exercise a
high standard of care constitutes negligence. The negligence criterion assigns
penalty points based on the degree to which the operator failed to exercise a
high standard of care. When applying this criterion, 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.

In
30 C.F.R. §103(d), Table X, the category of high negligence is described
thusly: “The operator knew or should have known of the violative condition or
practice and there are no mitigating circumstances.” Conversely, moderate
negligence is shown when “[t]he operator knew or should have known of the
violative condition or practice, but there are some mitigating circumstances.” Low
negligence is reserved for situations where there are “considerable” mitigating
circumstances.

I find that Respondent should have known
about the violation and that there were some mitigating factors. With respect
to knowledge, well-settled Commission precedent recognizes that the negligence
of an operator’s agent is imputed to the operator for penalty assessments and
unwarrantable failure determinations. See Whayne Supply Co., 19
FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburg Coal Co., 13
FMSHRC 189, 194-197 (Feb. 1991); and Southern Ohio Coal Co., 4 FMSHRC
1459, 1463-1464 (Aug. 1982). An agent is defined as someone with
responsibilities normally delegated to management personnel, has
responsibilities that are crucial to the mine’s operations, and exercises
managerial responsibilities at the time of the negligent conduct. Martin
Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000) see also 30
U.S.C. §802(e) (an agent is “any person charged with responsibility for the
operation of all or part of a…mine or the supervision of the miners in
a…mine.”). In this matter, all of the witnesses agreed that the belt examiners,
while hourly union workers, were agents of Respondent. (Tr. 45, 54, 99, 121,
144).

With respect to the instant violation, the
evidence shows that Respondent’s belt examiners should have known the ribs were
not properly supported. Inspector Hargrove credibly testified that the gapping
rib was obvious. (Tr. 66, 77). Further, he noted that some material had already
fallen across the travel way, meaning that the examiner would have to pass over
it while walking the area. (Tr. 66, 77). Hargrove also testified about the
large size of the loose ribs, which also support a finding that the conditions
were obvious. (Tr. 64, 67, 88-89, 98-99, 120). He also credibly testified that
the condition had existed for several shifts. (Tr. 66, 68, 77, 92). He
supported this claim by noting that the coal had oxidized and become dull, a
condition that would take some time to occur. (Tr. 68, 77, 92). Perhaps most importantly,
Hargrove explained that the condition would not have had to existed for very long
to be observed by Respondent; an examiner had passed through the area and left
his date, time, and initials at 9:44 a.m. on the day of the citation, while
Hargrove had issued the citation at 10:09 a.m. (Tr. 71-72, 77-78, 100). The
condition would only have to have existed a few minutes for it to be present
when the examiner entered the area. It is extremely unlikely that two
independent loose ribs spontaneously occurred in the minutes between the
examination and inspection. I find that a preponderance of the evidence
supports a finding that the condition was present when the examiner traveled
through the area before 9:44 a.m. and that, as a result, Respondent knew or, at
the very least, should have known the condition was present.

Respondent presented several arguments to support a
claim that it was not negligent. (Respondent’s KENT 2013-112 Post-Hearing
Brief at 32-35). However, Respondent’s arguments are not compelling.

First, Respondent contests the
Secretary’s definition of the term “obvious” and argues that the condition was
not obvious and therefore, it neither knew nor should have known about the
condition. (Respondent’s KENT 2013-112 Post-Hearing Brief at 32). Respondent
characterizes the Secretary’s argument regarding negligence thusly: “the
condition existed for several shifts; the condition was thus there when
Highland’s examiner went through the area; Hargrove saw it, so it was obvious,
so Highland’s examiner should have seen it; but he didn’t, so he was
negligent.” (Id.). Respondent argues that the Secretary’s position is
untenable because under that standard, any condition would be negligent. (Id.
at 9). Respondent characterizes the Secretary’s position as follows: in order
to be cited the condition must be observed by the inspector, if he observes it
must be obvious, if it is obvious then there is negligence. (Id. at 9).

It seems that Respondent has attempted
to extrapolate a broad principle from the Secretary’s allegations, namely that
something that is found by the inspector is ipso facto obvious. However,
there is no basis for Respondent’s assertions and it is unnecessary to reach
any supposed broad principle in this case. The Secretary never made a general
statement that any condition that was found by the Inspector was obvious or
that all violations inherently result from an operator’s negligence. Instead,
Inspector Hargrove credibly testified that this particular condition was
obvious for the reasons described supra. It is not necessary to
determine whether Respondent would be held responsible for other, less obvious
conditions simply because the inspector found it. The facts in the present case
show that both ribs were large and loose and that one of them was gapping an
inch from the solid rib. (Tr. 64, 67, 88-89, 98-99, 120). Therefore, Respondent
should have known about them.

Second, Respondent contends that even
assuming, arguendo, that the condition would have been obvious at the
time of the citation, there is no evidence on record that the condition
actually existed during the last examination. (Respondent’s KENT 2013-112 Post-Hearing
Brief at 32). Respondent further contends that in his notes, Inspector
Hargrove wrote that the condition was “recent” and that a finding of recent
“does not support characterizing the citation with any level of negligence.” (Id.
at 32-33). Respondent also argued that the notes said that the length of time
the condition existed was “unknown.” (Id. at 34-35).  Similarly, it
noted that at various times during the hearing, Hargrove testified that the
condition had existed “a while,” that it “appeared recent” and that it had been
present “a couple of shifts.” (Id. at 33). Respondent argued that these
phrases were too vague to serve as a basis for determining the length of time
the condition existed. (Id.).

The length of time a condition existed
is not, in and of itself, a factor in determining negligence. Instead, the
length of time a condition existed is used to determine how much notice an
operator had of the cited condition. If a condition existed for a considerable
time, then presumably someone knew or should have known about the condition. In
the instant case, even if we ignore the evidence that the condition existed for
a couple of shifts (though, as noted supra, I credited the evidence
showing that it had), Respondent still knew or should have known about the
condition. Date, time, and initials for an examiner (“BM”) were found at the
end of the 6-C belt entry indicating that an examiner had traveled through the
cited area (the 6-B belt entry) and signed at 9:44 a.m. (Tr. 71-72, 77-78, 100).
The cited condition was found and then cited at 10:09 a.m., just minutes after
the examiner had traveled through the area. (Tr. 64). It is extremely unlikely
that, in the short period of time after the examination occurred, but before
the inspector reached the area, not one, but two massive rib sections became loose.
Even if it is impossible to say for certain when the condition occurred, it
must have been present in some form at the time the last examiner traveled the
area. Therefore, Respondent should have been aware of the loose ribs and, at
the very least, recorded the condition and flagged the area. [8]
(Tr. 123).

More specifically, Respondent argued
that Hargrove’s determination that the condition had existed for a couple of
shifts because of the dull, oxidized color was unreliable because he “had
already testified that the way to tell whether a gapped crack has existed for
any period of time is whether, ‘[i]f you look at it, you can see light specks
of local dust and rock dust on it.’” (Respondent’s KENT 2013-112 Post-Hearing
Brief at 33). Respondent then argued that Hargrove testified that no rock
or coal dust was present. (Id. at 33-34). Presumably, Respondent meant
that Hargrove’s testimony indicated that the only way to determine the age of a
gap was the existence of dust and that observation of the dull, oxidized coal
was not helpful in determining the age.

Respondent’s characterization of the Inspector
Hargrove’s testimony is deeply flawed. The Inspector’s actual testimony on this
point was, “Coal, when it first breaks loose is really shiny. After it begins
to oxidize, the air gets to it and it gets a duller color to it. If you look at
it, you can see light specks of local dust and rock dust on it. This one wasn’t
shiny. It had already started to oxidize, so it had fell [sic] a couple of
shifts prior.” (Tr. 68). While it is true that Hargrove later testified that he
did not see dust behind the gap, the existence of dust is not dispositive here.
(Tr. 91-92). As Hargrove’s actual testimony shows, he did not imply, as
Respondent asserts, that the existence of dust is the definitive evidence used
to determine the time a gap existed. Instead, he carefully explained the
process by which oxygen slowly turns shiny, fresh coal into dull coal over
time. (Tr. 68). He also testified that the coal here was not shiny, indicating
that this process had occurred and that the gap in the coal was not fresh. (Tr.
68). Based on the color of the coal he determined it had been present for a
couple of shifts, which he explained at hearing, was what he meant by “recent.”
(Tr. 68, 91-92). Nothing in Hargrove’s statement indicates that the existence
or non-existence of dust in any way affects the process of oxidization or that
the absence of dust somehow negates the dull color of the coal. Therefore, I
reiterate that I credit Hargrove’s testimony that the condition existed for at
least a couple of shifts.

Having determined that Respondent was
negligent, I also find this negligence was mitigated to some degree by the fact
that the second condition was slightly less obvious and the ribs were somewhat
difficult to pull. Unlike the first rib, the second rib was not gapped, making
it less obvious. (Tr. 66, 96-97). An examiner may have passed the area without
noticing it. While the examiner should have found the condition, the failure to
do so in this instance is understandable. Both ribs, but in particular the
first one, were somewhat difficult to pull down. (Tr. 112-113, 116). An
examiner may have observed the condition and wrongfully, but not unreasonable,
believed it was not a hazard. While this would not excuse Respondent’s failure
to at least flag and record the loose ribs, it does slightly mitigate the
negligence. (Tr. 123). Therefore, a finding of “moderate” negligence is appropriate.

In addition to the mitigating circumstances outlined
above, Respondent argued that there were further, considerable mitigating
circumstances, necessitating a lower negligence finding. (Respondent’s KENT
2013-112 Post-Hearing Brief at 35). However, Respondent’s arguments are not
compelling.

First,
Respondent argued that people traveling from different directions would see
different things. (Respondent’s KENT 2013-112 Post-Hearing Brief at 35).
Both Hargrove and Branson testified that this was the case. (Tr. 86-88). However,
this is not material to the issue. If Respondent’s examiners cannot see
hazardous conditions in the mine because of their direction of travel, it is
Respondent that is responsible for the blind spots. Ignorance, willful or otherwise,
is not rewarded by the Act. As discussed supra, the conditions present
here were obvious and Respondent should have known about them.

Second,
Respondent argued that it abated both rib conditions as quickly as possible. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 35). This point is uncontested. (JX-1,
12). However, abatement after the citation has already been issued is not a
mitigating factor. Abatement efforts before a citation is issued indicate that
an operator was aware of a problem and was attempting to correct it. After the
citation, abatement simply means that the operator can follow direction and justifiably
wishes to avoid a future 104(b) Order.

Finally,
Respondent argued that the Secretary did not prove that it should have been
aware of the cited condition. (Respondent’s KENT 2013-112 Post-Hearing Brief
at 35). The issue of knowledge has been discussed at length, supra. Respondent
should have known about the condition, this is not a mitigating factor.

4.     
Penalty

In this matter, the Secretary proposed a
penalty of $1,530.00 for Citation No. 8508532. The Commission has affirmed that
ALJs are not bound the Secretary’s proposals. Sec. v. Performance Coal Co.,
(Docket No. WEVA 2008-1825 (8/2/2013) (see also 30 U.S.C. §820(i) and 29
C.F.R. §2700.30(b)). The Commission also held that, although there is no
presumption of validity given to the Secretary’s proposed assessments,
substantial deviation from the Secretary’s proposed assessments must be
adequately explained using §110(i) criteria. (Id. at p. 2). (see also
Cantina Green, 22 FMSHRC 616, 620-621 (May 2000)). I find that a
deviation from the Secretary’s proposed assessment is warranted herein and will
evaluate the factors contained in 30 U.S.C. §820(i) to explain that deviation. Those
factors are as follows:

(1) The Operator’s history of previous
violations – in the two years preceding this violation the Plant was cited 47
times for this condition. (GX-3).

(2) The appropriateness of the penalty
compared to the size of the Operator’s business - The Highland No. 9 Mine
produced 3,950,732 tons of coal in 2012, and had 1,079,470 hours worked in
2012. (JX-1, 10). According to MSHA’s penalty assessment guidelines this gives the
Highland No. 9 Mine 15 “mine size points” out of a possible 15. See 30 CFR
§100.3(b). Further, even if Respondent controlled no other mines, 3,950,732
tons of coal produced would give it 9 “controller size points” out of a
possible 10. see 30 CFR § 100.3(b). Thus, Respondent
is a very large operator with a very large mine.

(3) Whether the Operator was negligent –
As previously shown, the operator exhibited moderate negligence.

(4) The effect on the Operator’s ability
to remain in business – The parties have stipulated that the Orders at issue
here would not affect Respondent’s ability to remain in business. (JX-1, 11)

(5) The gravity of the violation – As
previously shown, this violation was unlikely to result in Lost
Workday/Restricted Duty injuries to one miner, it was not S&S.

(6) The demonstrated good-faith of the
person charged in attempting to achieve rapid compliance after notification of
a violation – The evidence shows the condition was abated rapidly and in good
faith after the citation was issued.

In light of the Administrative Law
Judge’s decision to modify the gravity from “Reasonably Likely” and “S&S”
to “Unlikely” and “Non-S&S,” a reduction in the assessed penalty is appropriate.
Therefore, Respondent is hereby ORDERED to pay a civil penalty in the
amount of $750.00.

III.            
CITATION
NO. 8508512

A.   
Summary of
Testimony

Archie Lewis
Coburn, Jr.[9]
was at Highland No. 9 Mine on September 5, 2012 to do a spot inspection for
methane liberation. (Tr. 13-14). Coburn arrived at the mine at around 2:45 p.m.
and worked through the second shift. (Tr. 15). Upon arrival, he met Little, and
the miner’s representative, Bernie Alvey, to review the mine files and
pre-shift examination books. (Tr. 15).

Coburn, Matt
Birkenstock, and Alvey traveled underground to the No. 5 unit, checking the
roof and ribs on the way. (Tr. 16). When at the unit, Coburn conducted an
“imminent danger” run, where he checked all the faces and took air readings. (Tr.
16-17). He issued a citation for failure to record dust parameter checks on the
power station date board. (Tr. 17).

Afterwards,
Coburn traveled up the belt entry to leave, but at Crosscut 91 he felt air moving
in the wrong direction, outby instead of inby. (Tr. 17). Coburn broke his smoke
tube and then told Birkenstock and Alvey about the condition. (Tr. 18). Birkenstock
went to tell the foreman while Coburn and Alvey followed the smoke down the
beltline. (Tr. 18). The smoke traveled from Crosscut 91 to 15, about 300 feet. (Tr.
18, 27). While walking, Coburn found two places where the belt was out of
alignment and continuously rubbing the travel-side of the belt frames. (Tr.
18-19, 27-28, 41). He inspected a total of 500 belt frames and these two were
separated by seven to ten belt frames (seven to ten feet). (Tr. 41-42, 45-46). The
area between them was not rubbing. (Tr. 41, 139). The belt was on and running
continuously in half-inch grooves. (Tr. 19, 24, 28, 42, 53). Coburn did not
know if the frames and the grooves were old and could not check for rust
because the belt was moving. (Tr. 24, 42-43, 53). Regardless, he did not
consider the frame’s age important, the belt in the groove was a hazard. (Tr.
53). There were belt ravelings wrapped around the bottom rollers, next to the
frame and sitting in the groove and there were belt shavings on the ground. (Tr.
19-20, 27-28, 38, 52-53). Ravelings occur when the edge of a belt is shredded
by the frame while shavings are pieces of rubber sliced from the belt by grooves
cut into the frames by the belt. (Tr. 19-20, 22, 53). As a result of these
conditions, Coburn issued a citation issued under Section 75.1731(b), requiring
all belts to be aligned and maintained and for damaged rollers to be replaced. (Tr.
27).

According to
Coburn, the cited condition was reasonable likely to result in injury because,
under continued mining conditions without abatement, there was a possibility of
a belt fire and smoke. (Tr. 23, 28, 47-48). To have a fire there must be
oxygen, fuel, and a heat source. (Tr. 47). Here, there was oxygen, fuel from
the shavings, and heat from the rubbing belt. (Tr. 49-50). The reversed air
also indicated danger. (Tr. 25).

With respect to
fuel, the area had accumulations, coal dust, and deteriorating belts (including
shavings and ravelings) that could heat up from the friction caused by the belt
rubbing and cutting the frame, resulting in a fire. (Tr. 23-24, 28-29, 53). However,
there was no float coal dust on the belt. (Tr. 48-49). There was coal on the
belt, but it was wet, minimizing the likelihood of a fire, though not
eliminating it. (Tr. 55-57). Coburn believed coal fines and float coal dust could
accumulate on the belt during from normal mining operations. (Tr. 55-56). No
methane or carbon monoxide was present during the inspection. (Tr. 48).

With respect to
heat, this mine had created hot spots in the past. (Tr. 25). Specifically,
Coburn had seen smoking misaligned belts and shavings on fire or smoking. (Tr.
25).  Here, the bottom belt was rubbing the frame and the frame warmed his
hands through a leather glove. (Tr. 20, 28, 51). He believed it would
eventually get hot under normal mining conditions but was not yet hot enough to
ignite. (Tr. 49, 51). It was not smoking or smoldering. (Tr. 46). There was a
smell from the rubbing belt, but Coburn could not say how long it existed. (Tr.
46-47). Coburn did not know the temperature of the belt because MSHA no longer
allowed him to use a heat measuring device. (Tr. 34-37). The belt was designed
to be flame resistant, but only as a singular unit; once the belt began to
deteriorate from heat or shredding it could catch fire. (Tr. 25, 37, 52). The
rollers turning in the ravelings were another heat source, however they were
not touching the part of the frame that was being rubbed. (Tr. 53, 57). The
shavings on the ground were 12-inches away from the warm area but could have
caught fire. (Tr. 38, 49-50). Coburn did not know the ignition temperature of
the belt or the shavings and ravelings. (Tr. 25, 37-38).

Coburn believed
the most likely injuries were lost workday/restricted duty because personnel
inby or traveling the area would be affected by smoke inhalation and anyone
fighting the fire could be burned. (Tr. 26, 29). He believed this level of injury
was likely because the belt examiner had already passed, and the next examiner
would not return until 2-2:30 a.m., 8-12 hours later. (Tr. 31, 50). The
condition would worsen as the shift went on. (Tr. 31).

The citation was
marked as affecting five persons because there were five people in the unit
shack 43 crosscuts from the rubbing belt. (Tr. 29-30). Once the air flow was
corrected, the smoke would have been moving inby, the direction of the shack. (Tr.
30-31). Also, anyone traveling the supply road or coming into the unit would be
exposed. Including examiners and cleaners. (Tr. 25, 30). Coburn believed 16
people would be exposed during an evacuation because the supply road adjacent
to the belt entry would be the first escape route. (Tr. 30).  

This condition
was marked S&S because, if the condition continued and injury occurred, it
would be a lost workday/restricted duty injury from smoke inhalation or burns. (Tr.
31). Coburn believed that if the belt remained misaligned it would continue to heat
up. (Tr. 56).

The condition
was marked high negligence because Coburn passed the belt examiner, Guy
Scisney, doing his on-shift 10 minutes prior to his discovery of the condition.[10] (Tr. 21, 26,
31-32, 45). Coburn was walking on the travel side of the belt moving outby when
he met Scisney driving inby in a golf cart at Crosscut 75. (Tr. 21-22, 26, 43, 131-133,
145-146). This belt was likely the last one that Scisney examined that night. (Tr.
132). He was supposed to examine the entirety of the belt twice a day for
conditions with the ribs, the roof, the beltline (including alignment),
shavings, ravelings, the rollers, float coal dust, rock dusting, and worn out
bearings. (Tr. 26, 32, 54-55, 133-134, 139, 142-145). Examiners place date,
times, and initials when examining faces, the outby installations, and air
courses every 15 breaks. (Tr. 146-147).

Coburn believed
Scisney would have seen the condition because it was on the travel side and was
obvious. (Tr. 26, 32, 55). Coburn did not believe that Scisney had conducted an
adequate exam because the air was reversed, there were two places where the
belt was rubbing, and there was a loose rib. (Tr. 33).  Coburn conceded that it
was possible to see different things coming from one direction instead of
another or while on foot instead of a cart. (Tr. 44). However, examiners are
trained to identify hazards regardless of the direction of travel. (Tr. 54).

In addition to
conducting exams, examiners were required to memorialize hazards in the belt
book so the foreman could see them and non-production shifts could fix them (Tr.
132-134, 135, 139-140). Before the inspection, Coburn found no hazards listed in
the book. (Tr. 20-21). Scisney countered that he had listed hazards. (Tr. 138).
He reviewed the belt books that he filled out on September 4, 2012 (RX-1) and
September 5, 2012 (RX-2).  (Tr. 135-137, 147). In RX-1, Scinsey wrote, “[h]eader
to takeup at Crosscut 5 to 14 and 17 to 22 and 37 to 40 and 48 to 60 dirty.” (Tr.
137-138). This meant that he had observed accumulations, including ravelings
that needed to be cleaned. (Tr. 137-138). RX-1 also included the notation
“TR8,” meaning that a top roller needed to be changed but that the belt did not
need to be turned off. (Tr. 138-139).  He did not see any misaligned belts that
day or he would have reported them to the foreman. (Tr. 139-142). In RX-2,
Scinsey wrote, “violation, header, tandem, and takeup,” meaning the belt
equipment was dirty. (Tr. 140). Crosscuts 3 to 5, 45 to 48, and the tailpiece
were also dirty. (Tr. 140). He also saw three bottom rollers and two top
rollers that needed to be replaced. (Tr. 142-143). That day, Scinsey would have
passed Crosscuts 65 to 67, where Coburn issued the citation for misaligned
belt. (Tr. 141). Scisney did not believe the belt was misaligned that day and
that he would have noticed it, even if it was a single spot. (Tr. 141-142).

In addition to
the exam, Coburn believed the shavings and ravelings indicated that the
condition had existed for some time. (Tr. 22). The condition was present when
he arrived. (Tr. 22-23). While Coburn was not sure how long the belt was
rubbing, it would take 16 to 24 hours for the belt to cut a groove and days to
cut half an inch. (Tr. 22, 24, 32, 36-37). Coburn believed it had been running
for while despite the fact that it was only warm. (Tr. 36-37, 49).

At the time the
citation was issued Coburn did not see, and Respondent did not raise, mitigation.
(Tr. 33). Scinsey testified that he did not agree with the negligence
designation because if the belt had been out of line he would have known and
told the foreman. (Tr. 143).

The condition
was abated when Alvey adjusted the belt and rollers. (Tr. 18, 26, 33, 40). This
took less than 30 seconds. (Tr. 33, 40). The belt was not shut down. (Tr. 40). After
the inspection, Coburn told management about the citation and held meetings
with them about ensuring proper air direction and proper recording of
conditions in the belt book. (Tr. 27).

B.    
Contentions
of the Parties Regarding Citation No. 8508512

With respect to Citation No. 8508512,
the Secretary asserts that Respondent violated 30 C.F.R. §75.1731(b), that this
violation was reasonably likely to result in Lost Workday/Restricted Duty
injuries to five miners, that the violation was S&S, and that it resulted
from high negligence. (GX-1). (Secretary’s KENT 2013-112 Post-Hearing Brief
at 6-12). The Secretary presumably believes that the proposed penalty of
$10,437.00 is appropriate.

Respondent
concedes that Citation No. 8508512 was validly issued. (Respondent’s KENT
2013-112 Post-Hearing Brief at 6). However, it argues that a Lost
Workday/Restricted Duty injury was unlikely to occur and that the violation was
not S&S. (Id.). It also believes that its actions would be better
characterized as showing no negligence. (Id.). Finally, Respondent
presumably believes that the penalty should be reduced pursuant to its
proffered gravity and negligence determinations.

C.    
Findings
of Fact and Conclusions of Law Regarding Citation No. 8508512

1.      The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That
Respondent Violated 30 C.F.R. §75.1731(b).

On September 5, 2012, Inspector Coburn
issued a 104(a) Citation, No. 8508512, to Respondent. Section 8 of that Order, Condition
or Practice, reads as follows:

The 2nd. South belt line was not being
maintained in safe operating condition or properly aligned. The bottom belt was
rubbing two belt stands that were warm to the touch. One was between crosscut
66-67, one was between crosscut 65-66. Belt raveling’s [sic] were present
around the bottom belt rollers and on the mine floor. The belt had cut into the
belt frames 1/2 inch.

Section 75.1731(b) was cited 45 times in
two years at mine 1502709 (45 to the operator, 0 to a contractor).

(GX-1).

The
cited standard, 30 C.F.R. §75.1731(b). (“Maintenance
of belt conveyors and belt conveyor entries.”), provides the following:

(b)
Conveyor belts must be properly aligned to prevent the moving belt from rubbing
against the structure or components.

30
C.F.R. §75.1731(b).

At hearing, Secretary’s counsel
presented credible evidence to show that the 2nd South belt was rubbing against
the belt structure in two places, roughly ten feet apart. (Tr. 18-19, 27-28,
41, 45-46). This condition was caused by a misalignment of the belt. (Tr. 139).
Nothing was presented to undermine this evidence.

In its brief, Respondent conceded that,
based on the evidence provided at hearing, the violation was validly issued. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 6). In light of this fact, and the
evidence presented, I find that Respondent violated 30 C.F.R.
§75.1731(b).

2.      The Violation Was
Reasonably Likely to Result in Lost Workday/Restricted Duty Injury To Five
Miners And Was Significant And Substantial In Nature.

Inspector Coburn marked the gravity of
the cited danger in Citation No. 8508512 as being “Reasonably Likely” to result
in “Lost Workday/Restricted Duty Injury” to five miners. (GX-1). The inspector
also found this violation was S&S. (GX-1). These determinations are
supported by a preponderance of the evidence.

Regarding
the first element of S&S - the underlying violation of a mandatory safety
standard – it has already been established that Respondent violated 30 C.F.R. §75.1731(b).

With respect to the second element of Mathies,
a discrete safety hazard – that is a measure of danger to safety – contributed
to by the violation was also met. As discussed supra, the Secretary
presented credible evidence that, as a result of misalignment, the 2nd South
Belt was rubbing belt structure in two locations. (Tr. 18-19, 27-28, 41, 45-46,
139). The Secretary presented further credible evidence that the belt had cut
into the belt structure half an inch. (Tr. 19, 24, 28, 42, 53). As a result of
this rubbing and cutting, there were belt ravelings wrapped around the bottom
roller, belt shavings collecting on the floor, and friction. (Tr. 19-20, 23-24,
27-29, 52-53). Inspector Coburn credibly testified that the belt structure
warmed his hand through his leather gloves, meaning the chance for fire and
smoke was already increasing because of this condition. (Tr. 20, 28, 51). Coburn
believed that, with continued normal mining conditions, the belt would continue
to heat up to the point that it would catch on fire. (Tr. 51). Coal particles
on the belt, broken pieces of the belt, and the shavings on the floor would
likely be the fuel. (Tr. 23-24, 28-29, 53). In the past Coburn had found
smoldering and smoking shavings at this mine. (Tr. 25). Therefore, the rubbing
belt clearly contributed to a discrete safety hazard, miners being injured by
fire or smoke.  (Tr. 26, 29).

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was also met. It is reasonably likely that, in the event of a fire,
the five miners in the unit shack, would be affected by the smoke or by the
fire, resulting in injuries. (Tr. 29). Miners sent to fight the fire would also
be affected and injured. (Tr. 26, 29). In this matter, the hazard contributed
to was realized and an injury would occur as a result. Therefore, I find this
an injury was reasonably likely and that the third prong of Mathies was
met.

Under Mathies, the fourth and
final element that the Secretary must establish is that there was a “reasonable
likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573,
1574 (July 1984). In the event of a fire, the Secretary presented credible
evidence that miners would suffer lost workday/restricted duty injuries from
smoke inhalation. (Tr. 26, 29). Further, miners would face similarly severe
burn and smoke inhalation injuries when fighting the fire. (Tr. 26, 29). These
types of injuries are sufficiently serious to support an S&S designation. See
Amax Coal Co., 19 FMSHRC 846 (May 1997)(upholding judge's S&S finding
based on evidence of smoke inhalation or burns, which would constitute serious
injury). In fact, Respondent conceded that, in the event of a fire, serious
injury would occur. (Respondent’s KENT 2013-112 Post-Hearing Brief at
13). Therefore, the fourth prong of Mathies is met.

Further, I note that an inspector’s
opinion that a violation is S&S is accorded substantial weight. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek
Coal, Inc., v. MSHA, 52 F.3d at 135-36. In this matter, Inspector Coburn
credibly testified that the condition was S&S. (Tr. 31). As a result of the
inspector’s opinion and, more importantly, the factors discussed above, I find
that the Secretary proved the violation was S&S by a preponderance of the
evidence.

Respondent presented several arguments
for the proposition that this citation was not reasonably likely to result in
injury and not S&S. (Respondent’s KENT 2013-112 Post-Hearing Brief at
12-25). However, none of these arguments were compelling.

First, Respondent argued that the
Secretary used the wrong standard in establishing the likelihood of a fire. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 13-14). While Respondent concedes that
“Reasonably Likely” does not mean “more likely than not,” it asserts that a
“mere possibility” or a claim that a fire “could” happen is insufficient to
sustain an S&S violation. (Id. citing U.S. Steel Mining Co.,
18 FMSHRC 862, 865-868 (1996); Oxbow Min. LLC, 2013 WL 1856627, *25
(Apr. 11, 2013)(ALJ); Energy Fuels Coal Inc., 14 FMSHRC 1804, 1812 (Nov.
1992)(ALJ); Brown v. Payton, 544 U.S. 133, 151 (2005)(Souter, J.
dissenting); Johnson v. Texas, 509 U.S. 350, 367-368 (1993).  Respondent
cites to testimony from Inspector Coburn wherein he is asked why be believed
the condition was reasonably likely to result in injury and he stated,
“[b]ecause if normal mining were to continue and this condition were to be
allowed to stay present, then the possibility of a mine fire was there.” (Id.
at 13 citing Tr. 28-29).

It is true that Inspector Coburn said on
two occasions at hearing the he was concerned about the possibility of a mine
fire. (Tr. 23, 28-29). However, these statements, taken out of the overall
context of the Inspector’s testimony, fail to convey the actual content of
Coburn’s testimony. For instance, Coburn stated, when specifically asked why he
believed the condition was S&S, that “if the conditions were to continue
and an injury were to occur, it would result in a lost workday or restricted
duty injury.” (Tr. 31). Further, when asked if the conditions present could
cause a fire stated, “Yes ma’am. If the conditions continued and the belt
stayed out of alignment, it’s just going to worsen. You are going to
deteriorate the belt, there are going to be more shavings, the heat’s going to
build up.” (Tr. 56). Perhaps most persuasively, Coburn stated, “[i]f it
continued, normal mining continued, it would continue to rub. All it was going
to do was get hotter.” (Tr. 51). Taken as a whole and considering
specific instances in which he was asked about the condition, Inspector
Coburn’s testimony indicates that he believed under normal mining conditions,
that a fire was going to occur. Inspector Coburn’s use of the word
“possibility” might have been somewhat confusing, but the overall meaning of
his testimony is clear: this belt would continue to heat up until smoke or a
fire occurred.

It is instructive that Judge Moran faced
a nearly identical situation, an alleged S&S violation of 30 C.F.R.
§75.1731(b) issued by Inspector Coburn at Highland No. 9 Mine, and found the
same thing. Moran found:

The Respondent has referred to the
Inspector's statement of the possibility that a belt fire could ensue if
the condition remained uncorrected, and that such a statement does not satisfy
the S&S standard, as that description means a fire was not “reasonably
likely to occur.” R's Br. at 8. The Court views that as an inaccurate
characterization of the law and the Inspector's expression…The Court adopts
Inspector Coburn's recounting of the events, including the circumstances
leading up to the discovery of the problem. It also takes into account, the
Inspector's view as to whether the condition was S&S. Even if it declines
to find that the belt had been out of line for “at least 48 hours,” the
condition was S&S. Inspector Coburn was not contending that there was a
likely ignition at the time he found the violation. However, he added that “if
normal mining would have continued [with] the belt being out of alignment,
the temperature would increase along with the possibility of a fire.” Tr. 185.

Highland
Mining Company, LLC,
35 FMSHRC 221, 236 (Jan. 2013)(ALJ Moran) (emphasis in original)(footnotes
omitted). Like Judge Moran, I find that the weight of the Inspector’s testimony
indicates that a fire or smoke was reasonably likely under continued normal
mining conditions and I credit that testimony.

Furthermore, even without considering
Coburn’s specific answers to questions, the evidence supports a finding that a
fire or smoke was likely. The belt was traveling 700 to 750 feet per minute. (Tr.
23). It was rubbing against a frame and actually cutting into the metal. (Tr.
18-19, 24, 27-28, 41-42, 53). This condition was causing heat that would
continue to increase if the belt continued to rub. (Tr. 51). The mine was full
of combustible material including coal and belt material. (Tr. 23-24, 28-29,
53). Under these conditions, I would find a fire was likely even if Inspector
Coburn had not been asked his opinion.

Respondent’s second argument was that
the necessary elements for the “fire triangle” (oxygen, fuel source, and
ignition source) were not present at the mine, meaning no fire was possible. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 14). Respondent is argued that there
was not a confluence of factors present to create a fire. (Id. at 19 citing
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (1997)). Specifically, Respondent
asserts that there was neither a fuel source nor an ignition source with
respect to this rubbing belt. (Id. at 14-23). I will consider each
argument in turn.

With respect to the fuel source,
Respondent argues that several possible combustible materials proffered by the
Secretary (and some that are not) would not actually serve as a fuel source. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 14). For example, Respondent argued
that no methane was present at the cited location. (Id. at 14, citing
Tr. 48). Respondent was correct that no methane was found at the time of the
citation, as Coburn testified that his gas detector did not go off. (Tr. 48). However,
nowhere in Coburn’s testimony or in the Secretary’s briefs does the Secretary
assert that methane was a fuel source. The Secretary cites accumulations of
coal and belt material, not methane. (Tr. 23-24, 28-29, 53). The S&S
finding in this matter does not stand or fall based on whether methane was
present. With that noted, I am not wholly convinced that methane is not a
potential fuel source. While no methane was detected, this mine was on a 15-day
spot for methane, meaning that it liberated 250,000 cubic feet of methane in a
24-hour period. (Tr. 16). Even though no methane was present at the time, the
Commission has consistently recognized that a sudden buildup of methane in a
gassy mine can reasonably be expected. Twentymile Coal Co., supra at *3
(citing U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1130 (Aug. 1985)). Simply
because no methane was found at the time of the inspection does not mean that,
under continued normal mining operations, that methane could not be present
later.

Respondent also argued that no factual
testimony was presented to support the Secretary’s assertion that pieces of the
belt could act as a fuel source. (Id. at 14-15). Respondent noted that
the belt is flame retardant and that while the Secretary asserts it can become
combustible when it breaks down, it provides no evidence beyond Coburn’s
testimony. (Id.). Relatedly, Respondent noted that Coburn was unsure how
hot the belt would need to get in order to catch on fire. (Id. at 15 citing
37-38). Further, the broken belt material was not near the place where the belt
was rubbing the stand, so Respondent did not believe that those materials would
get any warmer. (Id. at 16-17, citing Tr. 38, 49, 59).

As Judge Steele noted, a fire retardant
belt is not a fire proof belt; it still produces friction and can still ignite
fuel sources. Raw Coal Mining Co., Inc., 2013 WL 3865340, *12-13 (June
4, 2013)(ALJ Steele); see also Aracoma Coal Company, Inc.,32 FMSHRC
1639, 1642 (describing a fire that resulted from frictional heat caused by a
misaligned, fire-resistant belt). For purposes of analyzing whether a violation
is S&S, a “hazard continues to exist regardless of whether caution is
exercised.” Amax Coal Co.,19 FMSHRC at 850 citing Eagle Nest, Inc.,
14 FMSHRC 1119, 1123 (July 1992). Fire retardant belts reduce, rather than
eliminate, the risk of fire. The existence of a flame retardant belt does not
excuse Respondent from its obligation to maintain the belts. If the drafters of
the regulations believed that a fire retardant belt was sufficient to prevent
the risk of fire and smoke, 30
C.F.R. §75.1731(b) would require that belts be either aligned to prevent
rubbing or be flame retardant. It does not. It requires all belts, even fire
retardant belts, to be aligned to avoid rubbing to prevent the risk of fire and
smoke. It is significant that Inspector Coburn had founding smoldering
material caused by belt friction at this very mine in the past. (Tr. 25, Highland
Mining Company, LLC, 35 FMSHRC at 227). I credit the testimony of Inspector
Coburn that, under continued normal mining conditions, this belt would continue
to deteriorate and the heat would continue to increase. (Tr. 25, 37, 51-52). These
two factors, working in concert, would result in a smoke or a fire. The flame
retardant belt may slow the process, but it would not eliminate the risk.

Coburn’s inability to say the exact
temperature at which the belt would ignite was immaterial. He credibly
testified that the belt would continue to heat up until it smoked or caught on
fire. (Tr. 51). The fact that Coburn had seen belts at this mine smoldering
before indicates first-hand knowledge of the necessary conditions for a fire. (Tr.
25). One does not need to know the combustion point for the head of a match to
know that it can catch fire.  

Similarly,
the fact that the broken material was 12 inches from the warming belt stands is
immaterial. While those particular pieces of belt were not close enough to the
belt frame to maintain heat, they were still a fuel source. (Tr. 38, 49, 57). As
the belt continued to run in the grooves cut into the belt frames, more pieces
of the belt would be deposited on the floor. When the belt grew warmer some of
these pieces and fibers, or perhaps coal dust, would ignite. When these ignited
and fibers fell to the bottom, they could land on top of the accumulation of
combustible material and ignite them as well. Therefore, the currently existing
belt pieces, as well as the future pieces of belt in the area, would constitute
a fuel source.

The
final fuel source disputed by Respondent was coal accumulation. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 17-18). Respondent argued that
Inspector Coburn did not know how hot coal would have to be to catch on fire. (Id.
at 17 citing 49). It further argued that the coal present was not float
coal dust and that the area was wet. (Id. citing 48-49). It
stated that the only thing that the Secretary had proven was that dry coal
could catch fire. (Id. citing 24, 55-56).

Settled
Commission precedent supports the proposition that wet coal will eventually dry
out. See Utah Power & Light, 12 FMSHRC 965, 969 (May 1990) (citing
Black Diamond Coal Company, 7 FMSHRC 1117, 1120-21 (Aug. 1985) (dampness in
coal does not render it incombustible and wet coal can eventually dry out in a
mine fire and ignite); see also Mid-Continent Resources, Inc., 16 FMSHRC
1226, 1230 (Jun. 1994) and Amax Coal Co., 19 FMSHRC at 849. While the
coal present at the cited area was wet, any coal will eventually dry and serve
as a fuel source. Further, if a fire started from some other source, the coal
would be rapidly dried and immediately be added as a fuel source. I find no
reason to discount coal as a fuel source at the cited location.

Having
considered Respondent’s arguments regarding the fuel sources, I turn now to
consider the claim that the area lacked an ignition source. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 19-23). Respondent noted that Coburn
made no observations that determined how long the belt had rubbed the frame and
that he did not look for rust on the frames. (Id. at 19 citing
Tr. 43). Respondent pointed out Coburn conjectured it lasted 16 hours, 16-24
hours, or days but that it was only warm to the touch. (Id. citing
20, 22-24, 32, 36). According to Respondent, Coburn’s only argument was that
under normal mining conditions it would catch on fire. (Id. at 20 citing
23, 28-29, 51). But, it opined that Coburn could not explain how it would not
get hot enough to burn in a day of rubbing but would get hot enough in a few
hours. (Id. at 21 citing Tr. 19). Instead, Respondent alleged
that heat from the rubbing would be lost to the surrounding area and reach an
equilibrium at simply warm. (Id. at 21 citing Highland Min. Co.,
34 FMSHRC 2612 (2012)).

I find that Inspector Coburn’s testimony
on the length of time the condition existed was credible. The belt had cut half
an inch into the belt frame. (Tr. 19, 24, 28, 42, 53). This amount of cutting
would take time occur and Coburn’s estimate of 16-24 hours was reasonable and
based on his experience. (Tr. 22, 24, 32, 36-37). While it is true that Coburn
was unable to check the belt frame for rust (presumably to determine if the
grooves cut in the belt frame were old) this was because the belt was actually
moving in the groove. (Tr. 42-43, 53). While Coburn acknowledged that it was
possible that these cuts were old, I find that it is highly unlikely that this
belt happened to go out of alignment in two separate places and that those two
separate places just happened to be at locations where old frames had already
been cut half an inch deep by belts in the past.[11] Therefore, I find that
the belt was rubbing and cutting for 16-24 hours and that the friction caused
by this rubbing was an ignition source.

I also find that the fact that the belt
frame was only warm to the touch at the time of the inspection does not
undermine the fact that it is an ignition source. Coburn credibly testified
that the belt frame felt warm to the touch even through his leather gloves. (Tr.
20, 28. 51). That would require a considerable amount of heat. (Tr. 20, 28,
51). Respondent was correct that the Secretary did not prove that the belt
would get hot enough to burn in the next few hours or that the inspector had
caught the condition “just in the nick of time.” (Respondent’s KENT 2013-112
Post-Hearing Brief at 21 & 24). But, the Secretary was not required to
prove those things. As noted earlier when considering the gravity of a
violation, the likelihood of that hazard being realized must be considered
assuming normal continued mining operations without abatement. Consolidation
Coal Co., 8 FMSHRC at 899. The same is true when that consideration occurs
in an S&S analysis. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(Jul. 1984), Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1221-1222
(Jun. 1994) (citing U.S. Steel Mining Co. Inc., 7 FMSHRC at 1130): see
also Highland
Mining Company, LLC,
35 FMSHRC at 236. While
the belt was not hot enough to ignite at the time of the citation, Coburn
credibly testified that if the condition continued, it would eventually get hot
enough to cause a fire. (Tr. 51). Finally, there is no evidence on the record
to support a claim that the heat from the belt would reach equilibrium and stay
warm, rather than become hot. The only evidence on point is Coburn’s credible
testimony that it would continue to heat up. As a result, I believe the rubbing
belt was an ignition source.

Therefore, the preponderance of the
evidence supports the Secretary’s determination with respect to the likelihood
of injury, the severity of that injury, and the S&S designation.

With respect to the number of persons
affected, the Secretary presented credible evidence that if smoking or a fire
were to occur, five miners were located in a unit shack near the cited condition
and would be affected. (Tr. 29). In fact, this condition was in a belt entry
directly adjacent to an escapeway, meaning miners evacuating the area would
also be affected by the fire and smoke. (Tr. 30).

In short, the preponderance of the
evidence shows that Citation No. 8508512 was reasonably likely to result in
lost workday/restricted duty injuries to five persons and was S&S.

3.      Respondent’s
Conduct Displayed “Moderate” Negligence Rather Than “High” Negligence.

In the citation at issue, Inspector Coburn
found that the operator’s conduct was highly negligent in character. (GX-1). While
substantial evidence supports a finding of negligence, that negligence is
better characterized as “moderate’ in light of the existence of some mitigating
factors.

With respect to knowledge, the factual
situation presented here is substantially similar to that in Citation No. 8508232.
Specifically, a mine examiner passed through the cited area just minutes before
the Inspector discovered and cited the violative condition. (Tr. 21, 26, 31-32,
45). The examiner was walking along the entry where the belts were rubbing and
did not correct, record, or flag the cited condition as he should have. (Tr. 123).
As discussed supra, the cited condition had existed for 16-24 hours and,
therefore, was present when the examiner passed it. (Tr. 22, 24, 32, 36-37). As
with the previous citation, the examiner was an agent of Respondent and his
actions were imputable to the operator. Whayne Supply Co., supra;
Rochester & Pittsburgh Coal Co., supra; and Southern Ohio
Coal Co., supra. As a result, Respondent knew or should have known
about the cited condition but took no action. Therefore, Respondent was
negligent.

Respondent argued that it did not have knowledge of
the cited condition and therefore, cannot be negligent. (Respondent’s KENT
2013-112 Post-Hearing Brief at 6-11). However, Respondent’s arguments are
not compelling.

First, Respondent argues that it did not
have actual knowledge of the condition. (Respondent’s KENT 2013-112 Post-Hearing
Briefs at 6). Respondent’s briefing on the issue of negligence in general
indicates an uneasiness with the “knew or should have known” standard used in
evaluating negligence. As Respondent notes with respect to Citation No. 8508512,
“the Secretary does not allege that Highland actually knew…but only that
Highland should have.” (Id. at 9, emphasis in original).

While
Respondent is correct that the Secretary did not allege that Respondent
actually knew of the cited condition, he does not have to prove actual
knowledge. As Respondent noted in its own brief, the definition of the various
degrees of negligence are found at 30 C.F.R. §103(d),
Table X and those definition include the phrase “knew or should have known.” (See
Respondent’s KENT 2013-112 Post-Hearing Brief at 9). Respondent’s
discomfort with being held responsible for conditions it “should have known”
about is noted, but that is the standard under the rules (and under every legal
standard of basic negligence with which I am familiar).

Second, Respondent once again contends that the
condition was not obvious and challenges the Secretary’s definition of that
term. (Respondent’s KENT 2012-112 Post-Hearing Brief at 6-11). As with Citation
No. 8508232, Respondent characterizes the Secretary’s definition of negligence
as being self-serving: the issuance of the citation necessarily implies that it
is obvious. (Id.). It further argues that Scisney was the best possible
examiner to check the area and that, despite his diligence; he did not notice
the condition. (Id. at 11).

For the same reasons noted regarding
Citation No. 8508232 supra, I do not find this argument to be persuasive.
Inspector Coburn was not elucidating a general proposition for what is or is
not obvious. Instead, he clearly testified that in his opinion this particular
condition was obvious. (Tr. 26, 32, 55). There were two separate areas where
the belt was rubbing the belt frame. (Tr. 18-19, 27-28, 41). This condition was
clearly visible from the travelway. (Tr. 26, 32, 55). Respondent had had
problems with hot spots in the past, meaning that it had notice to look for
conditions that might be less obvious on the belt lines. (Tr. 25). Further,
Inspector Coburn testified that he had specifically addressed this problem with
Respondent just a few days earlier, meaning it knew that it was supposed to
take special care with the belts. (Tr. 69, 84-85).

Relatedly, Respondent’s claim that the
condition was not obvious simply because Scisney did not see it goes too far. It
essentially makes the mirror argument that Respondent found so offensive when
it alleged the Secretary was making it; namely that if Scisney did not see the
condition then it could not be obvious. If such a broad, general principle will
not work for the Secretary, it will not work for Respondent either. Such a
definition would reward willful ignorance. Based on the evidence on record, I
find that the condition was obvious and that Respondent knew or should have
known about it.

Having found the requisite knowledge, the next issue
is whether there were any mitigating circumstances. The evidence showed that Respondent
placed their most qualified belt examiner in the area. (Tr. 127-130). Among his
other credentials, Scisney had never missed a day of work as a result of
injury. (Tr. 128). Respondent reasonably believed that Scisney was the most competent
person to inspect the area. Further, Scisney was not a member of management and
therefore had less incentive to ignore conditions. (Tr. 127-128). The evidence
shows that Scinsey had not been shy about correcting conditions in the past. (Tr.
135-147). This shows that Respondent was putting some emphasis on ensuring the
safety of the belts. While in this particular case Scisney made a mistake and
failed to notice two pieces of belt rubbing the belt frame, that does not
wholly negate the impulse that led to his appointment. I find no other
mitigating factors in this case. However, in light of this mitigating
circumstance, a finding of high negligence is not appropriate; with respect to
Citation No. 8508512, Respondent was moderately negligent.

The Secretary argues that there are no mitigating
circumstances and that the “High” negligence designation is appropriate. (Secretary’s
KENT 2013-112 Post-Hearing Brief at 12 and Secretary’s KENT 2013-112 Reply
Brief at 1). Specifically, the Secretary notes that the examiner traveling
through the area should have been checking the belts and the fact that he was
zipping through the area on his golf cart was no excuse for failure to find the
condition. (Id.).

As I found supra, Scisney’s examination was
clearly deficient. It is entirely possible that earlier examinations before
Scinsey’s were also deficient. The condition was present and obvious and should
have been noticed. However, Respondent made some good-faith effort to ensure
the safety of the belts and reasonably relied on Scinsey to find the
conditions. That does not change the fact that the condition existed or that
Respondent was responsible for it, but I find that it somewhat mitigates
Respondent’s negligence.

In addition to placing the most experienced examiner
in this belt area, Respondent claims that several other mitigating factors
indicate a finding of “Low” is more appropriate. (Respondent’s KENT 2013-112
Post-Hearing Brief at 11-12). However, these arguments are not compelling.

First, Respondent argued that Scisney’s inability to
find the condition was the result of different point of views for the examiner
and opposed to the inspector. (Respondent’s KENT 2013-112 Post-Hearing Brief
at 11). As I discussed with respect to Citation No. 8508232, the direction of
travel is immaterial; Respondent’s examiners are required to find hazardous
conditions regardless of the method or direction of travel.

Second, Respondent argued that the Secretary did not
contend that Respondent had actual knowledge, only that it should have known. (Respondent’s
KENT 2013-112 Post-Hearing Brief at 11). The issue of knowledge and the
legal basis for the “knew or should have known” standard have been discussed at
length, supra. Respondent’s lack of actual knowledge is in no way a mitigating
circumstance as it should have known about the condition.

Third, Respondent argued that the Secretary alleged no
history of belt problems. (Respondent’s KENT 2013-112 Post-Hearing Brief
at 11). That is simply false. The Secretary presented uncontested evidence that
Respondent had been cited 45 times at Highland Mine No. 9 in the two years
prior to this citation. (GX-1). Further, one of the cases cited above, Highland Mining
Company, LLC,
shows that Respondent was held liable for an S&S violation of the standard
cited here. 35 FMSHRC at 236.

Fourth, Respondent argued that Coburn’s
testimony about how long the condition existed was speculative and contradicted
by the physical evidence. (Respondent’s KENT 2013-112 Post-Hearing Brief
at 11-12). As discussed supra, Coburn credibly testified that the
condition had existed 16-24 hours and the physical evidence supported this
testimony. (Tr. 22, 24, 32, 36-37). There is nothing speculative or unreliable
about this evidence and Respondent presented no evidence to counter it.

Fifth, Respondent argued that no one
suggested the firefighting equipment was inadequate. (Respondent’s KENT
2013-112 Post-Hearing Brief at 12). Respondent is correct; there is no
reason to believe that the firefighting equipment would be insufficient to stop
a fire. However, by the time a fire occurs, it is far too late. Miners are
already in danger. See Buck Creek Coal, Inc. v. MSHA, 52 F.3d at 136 (“The
fact that Buck Creek has safety measures in place to deal with a fire does not
mean that fires do not pose a serious safety risk to miners. Indeed, the
precautions are presumably in place (as MSHA regulations require them to be)
precisely because of the significant dangers associated with coal mine fires”);
see also Amax Coal Co., 19 FMSHRC at, 850. Further, compliance with some
MSHA regulations does not excuse non-compliance of others. This is not
mitigation.

Sixth, Respondent argued that there were
no damaged, stuck, or broken rollers. (Respondent’s KENT 2013-112 Post-Hearing
Brief at 12). This is not entirely true; Inspector Coburn did not allege
any broken or damaged rollers that day, but Scisney did. (Tr. 142-143). With
that noted, it is true that none of these conditions were in the direct
vicinity of the rubbing belt. (Tr. 142-143). Regardless, the fact that
Respondent did not violate other standards in the cited area in no way
mitigates its violation of the current standard.

Finally, Respondent argued that the
condition was abated in 30 seconds. (Respondent’s KENT 2013-112 Post-Hearing
Brief at 12). To the extent that this shows that Respondent was not
actually aware of the cited condition (because if they had, correcting it was
simple and inexpensive), I consider it relevant. However, as already repeatedly
held, Respondent should have known about the condition and was therefore
negligent. To the extent that Respondent wishes to have credit for correcting a
condition after it was cited, I refer to my reasoning with regarding to
Citation No. 8508232.
This is not a mitigating factor.

In light of the finding that there were
mitigating circumstances here, but that they were not substantial, I find that
Respondent was moderately negligent.

4.     
Penalty

In this matter, the Secretary proposed a penalty of $10,437.00
for Citation No. 8508512. I find that a deviation from the Secretary’s proposed
assessment is warranted herein and will evaluate the factors contained in 30
U.S.C. §820(i) to explain that deviation. Those factors are as follows:

(1) The Operator’s history of previous violations – in
the two years preceding this violation the Plant was cited 45 times for this
condition. (GX-1).

(2) The appropriateness of the penalty compared to the
size of the Operator’s business - The Highland No. 9 Mine produced 3,950,732
tons of coal in 2012, and had 1,079,470 hours worked in 2012. (JX-1, 10). According
to MSHA’s penalty assessment guidelines this gives Highland No. 9 Mine 15 “mine
size points” out of a possible 15. See 30 CFR §100.3(b). Further, even if
Respondent controlled no other mines, 3,950,732 tons of coal produced would
give it 9 “controller size points” out of a possible 10. See 30 CFR §
100.3(b). Thus, Respondent is a very large operator with a very large mine.

(3) Whether the Operator was negligent – As previously
shown, the operator exhibited moderate negligence, rather than high negligence.

(4) The effect on the Operator’s ability to remain in
business – The parties have stipulated that the Orders at issue here would not
affect Respondent’s ability to remain in business. (JX-1, 11)

(5) The gravity of the violation – As previously
shown, this violation was reasonably likely to result in Lost
Workday/Restricted Duty injuries to five miners and was S&S in nature.

(6) The demonstrated good-faith of the person charged
in attempting to achieve rapid compliance after notification of a violation –
The evidence shows the condition was abated rapidly and in good faith after the
citation was issued.

In light of the Administrative Law Judge’s decision to
modify the negligence of the citation from “High” to “Moderate,” a reduction in
the penalty is appropriate. Therefore, Respondent is hereby ORDERED to
pay a civil penalty in the amount of $9,000.00.

KENT
2013-480

I.                  
Stipulations

The parties have entered into several
stipulations, admitted as Parties’ Joint Exhibit 2. Those stipulations include
the following:

1.      Highland
Mining Company, LLC is subject to the Federal Mine Safety and Health Act of
1977, as amended (“The Mine Act”)and to the jurisdiction of the Federal Mine
Safety and Health Review Commission;

2.      At
all relevant times, Highland Mining Company, LLC, and the mine, Highland 9 Mine
(Mine ID 15-02709), mined and produced coal, which entered commerce, or had
operations or products which affected commerce, within the meaning of the Mine
Act;

3.      Highland
Mining Company, LLC, is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission, and the administrative law judge has the
authority to hear this case and issue a decision;

4.      Highland
Mining Company, LLC, was an “operator,” as defined in the Mine Act, at the
mine, Highland 9 Mine, (Mine ID 15-02709), when the citations and order at
issue in this proceeding were issued;

5.      The
mine, Highland 9 Mine, (Mine ID 15-2709), is a “coal or other mine” within the
meaning of the Mine Act.

6.      Highland
Mining Company, LLC, is a larger operator;

7.      Imposition
of a reasonable penalty will not affect the ability of Highland Mining Company,
LLC, to remain in business.

8.      Each
of the citation and orders at issue in these proceedings was properly served by
a duly authorized representative of the Secretary of Labor, Mine Safety and
Health Administration, upon an agent of Highland Mining Company, LLC.

(JX-2)
(see also Tr. 157).

II.               
Citation
Nos. Nos. 8511144 and 8511145

A.   
Summary of
Testimony

On November 8,
2012, Kirby Smith[12]
and Joe Pollard[13]
inspected Highland No. 9 Mine. (Tr. 163, 165). They, along with Little and
miners’ rep Larry Baker, Jr., were together the entire time.[14] (Tr. 165, 186-187, 218,
264-265, 336). Pollard was assigned to conduct a quarterly inspection of the
mine. (Tr. 215). Smith’s was present for a monthly supervisory mine visit. (Tr.
166, 218). Smith asked Pollard which belts had not been inspected and Pollard
identified the first main north belt. (Tr. 166). Pollard chose this belt
because the record book indicated that the area “needs dusting” three straight
days and he wanted to check it out. (Tr. 216-217).

The inspection
group traveled to the first main north belt. (Tr. 263-264, 337). When they
reached the farthest inby point and entered the entry they found mine examiner
Terry Doss checking the belt.[15]
(Tr. 167, 218, 264, 312, 337-338, 347). Doss told Pollard that he had just
finished a normal examination from the head drive to the takeup. (Tr. 219, 301,
304, 318-320). Doss reported that there was some material accumulated under the
belt and in the walkway, but that there were no other conditions. (Tr. 219,
279-280, 312, 338, 351). He had shut down the belt to clear the hazard, but had
not removed all the material. (Tr. 308). He also called and texted the manager
(to create a record) to report the cleanup. (Tr. 309). Doss testified that
Pollard was unhappy with the buildup and said he was going to inspect it. (Tr.
312).

The inspection
group then began at the tailpiece and traveled to the header. (Tr. 220, 260). Smith
and Pollard looked at the belt alignment, the frictional points of the belt, the
rollers, the ribs, the direction of the air, and the roof. (Tr. 167-168). Pollard
issued four citations along the beltline. (Tr. 186, 221). He cited them for
float coal dust, accumulation of extraneous material, loose ribs, and belt
rubbing rollers creating strings and cords. (Tr. 167-168, 220-221). He spoke
with Little about each condition. (Tr. 174-175, 224, 257). Little testified
that they did not see any hazardous conditions before Crosscut 18. (Tr. 338). During
the inspection, Pollard did not see any accumulations that matched Doss’
description. (Tr. 219-220).

Pollard issued a
104(d) order for float coal dust under 30 C.F.R. §75.400, an accumulation of
combustible material. (Tr. 221, SX-1). Pollard believed the standard was
violated because there was float coal dust on the manifold, the belt structure,
the framing, the waterline, and the floor. (Tr. 171, 177-178, 201, 208-210,
220-223, 290-291). The accumulations started about two crosscuts outby the
tailpiece and stretched uniformly across the 2,000 foot length of the belt
entry, except for the ribs. (Tr. 208, 222-223, 233-234, 259-261, 281, 289). Pollard
determined the citation was necessary based on a visual examination of the coal
buildup on the mine floor, belt frames, and ribs. (Tr. 272, 305). Visual
determinations can vary from person to person (even between inspectors). (Tr.
272-273).  Doss believed the belt needed to be dusted again, but not to the
extent that immediate action was needed. (Tr. 310).

The citation was
marked as reasonably likely to result in injury or illness. (Tr. 228). Pollard
believed that a fire or explosion was highly likely, or at least possible, as a
result of the float coal dust. (Tr. 225, 227, 244-245). An explosion or fire
requires fuel, oxygen, and an ignition source. (Tr. 225, 244-245). The ignition
source was the rubbing belt. (Tr. 178, 226, 244-245). The fuel source would be
the explosive and volatile float coal dust and extraneous materials. (Tr. 178,
224-225, 244-245). Coal dust would act to increase the magnitude of an
explosion. (Tr. 209). Many mine disasters occur because of coal dust. (Tr.
224).

There was
roughly 3-4 inches of rock dust throughout belt area and, in Pollard’s opinion,
Respondent was doing alright with rock dusting. (Tr. 262-263, 271). He did not
know when the area had last been rock dusted or when it was scheduled to be
dusted again. (Tr. 273-274). However, Pollard found coal dust sitting on top of
the rock dust. (Tr. 220). Rock dust is normally white, but here it was gray to
black, indicating float coal dust. (Tr. 172, 177-178, 209, 222, 261, 305). Doss
often requested that this area be dusted because it got dark quickly. (Tr.
297-298, 311). However, there was no float coal dust in the area where the belt
was rubbing. (Tr. 210-211, 281). Pollard did not take a sample of the dust for
testing and had never used an on-the spot dusting device. (Tr. 262, 271-272). Under
MSHA standards, an accumulation that is 80% rock dust will not propagate or
cause ignition. (Tr. 262). Little and Doss believed that the bottom of the mine
was gray in color because the rock below the coal seam was gray and because it
was wet, he did not see float coal dust or combustion hazard. (Tr. 261-262,
305-306, 311, 349). Doss conceded that even wet areas needed to be rock dusted.
(Tr. 331).

With respect to
water, the entry alternated between high, dry areas and low, damp areas,
including the wettest area around the tailpiece (Pollard estimated about 40
percent of the entry was wet from rib to rib). (Tr. 200, 210, 220, 232-233,
260, 274, 280, 320, 361). Little testified that no area in the entry was dry,
but that some areas had standing water and others did not. (Tr. 361). Doss
testified that some areas were dry but that the whole entry was damp. (Tr.
320). Pollard believed the water came from the water sprays and from the mine
floor. (Tr. 220, 232, 280). Doss believed the water came from the top and the
bottom and was related to poor roof conditions. (Tr. 302). He and Little
testified that the hangers and belt line were wet. (Tr. 302, 306, 310-311,
349). Pollard testified that if the water had come from the roof, it would have
washed the coal dust off the structure but did not. (Tr. 233, 361-362). Pollard
testified that the wet areas still had float coal dust. (Tr. 233, 280). Doss
testified wet coal dust would not burn and, in fact, would stop an explosion. (Tr.
306, 330-331). Pollard testified that wet areas could make an ignition less
likely but might not stop one. (Tr. 260-261). However, the water in the area
did not affect his decision regarding the likelihood because there was still
float dust on the belt structure in the wet areas. (Tr. 234). He also believed
wet or dry float coal dust would be picked up and act as fuel during an
explosion. (Tr. 234).

Pollard was
equipped with a gas detector, but it never sounded for CO. (Tr. 282). Respondent’s
belt line also had gas sensors that would shut down if it sensed CO before
there was a fire. (Tr. 282). Pollard did not check if the system was working
properly. (Tr. 282).

Pollard marked
the citation as causing, at a minimum, lost workdays/restricted duty injuries
from burns or smoke inhalation. (Tr. 234). He marked the condition as affecting
two people because there was a belt examiner and belt cleaner in the area. (Tr.
234-235). Also, an explosion would affect anyone on the adjacent supply road. (Tr.
235).

Pollard marked
the condition as being the result of high negligence because Doss was at the
tailpiece but observed only the shoveled material. (Tr. 235). A person with a
cap lamp should have seen this condition. (Tr. 289). Also, there was no coal
dust in the air, indicating that the dust had been present for some time. (Tr.
274, 283, 289). Similarly, Doss had listed that the “belts need dusting” in the
belt book for three consecutive days, countersigned by management, showing an
obvious dust condition that needed corrected. (Tr. 217, 227-231, 235-238, 283,
306-307, 329, SX-2 p. 43, 48, and 53). No corrections were listed, and there
was no indication of recent rock dusting.[16] (Tr. 238, 258, 274-275,
330). If Doss saw the condition for three days he should have seen it on the
fourth day, but he did not list it. (Tr. 227, 289). Pollard believed the belt
would have continued to worsen until the next exam. (Tr. 227, 245). Doss
testified his notes referred to water, mud, and coal flakes and that he did not
know if the material was combustible. (Tr. 307). He explained that a condition
might be in the book five days before correction but that if there was an
immediate hazard, he would have acted immediately. (Tr. 329-330).

Pollard marked
the condition as an “unwarrantable failure,” meaning he deemed it “aggravated
conduct constituting more than ordinary negligence” because the examiner listed
it in the book as needing dusting for three days and no corrective action was
taken. (Tr. 239). In fact, Doss examined the area on the fourth day when the
citation was issued and said everything was good. (Tr. 239). This was the first
104(d) action that Pollard had ever issued. (Tr. 239-240). While Pollard told
Little underground that he was going to issue the citations he did not mention
the (d) Order until an hour or two later. (Tr. 240-241, 257, 270). Pollard did
not recall Little saying much in response, but Little did not recall being told
of the citations at all. (Tr. 258, 338-339). Pollard did not mention the (d)
Order because he wanted to confirm his beliefs with his supervisor first and
eventually did so. (Tr. 240-241, 339-241). He had been trained to tell
operators about Orders underground, and his failure here was an error. (Tr. 270).
Little believed a supervisor told Pollard to issue the Order. (Tr. 339). He was
surprised at the Order because he believed hazards should be removed
immediately. (Tr. 339, 350). Doss did not find out about the (d) Order until
after his shift. (Tr. 328). The next day he told Pollard the Order was a good
lesson on documenting conditions; the (d) Order helped him learn. (Tr.
328-329).

Generally, belts
are immediately taken out of service after a (d) order is issued. (Tr.
352-353). Neither Pollard nor Smith gave Respondent any orders or instructions
on whether to shut down the belt. (Tr. 184-185, 243-244, 280, 339). Pollard’s
failure to do so before he left the area or issued the Order was a mistake
because he had all of the criteria necessary. (Tr. 244, 270-271).  In Smith’s
experience, a belt is only shut down when an imminent danger exists and must be
secured but did not believe here that there was such a danger. (Tr. 184-185). Pollard
believed there was no imminent danger after abatement. (Tr. 244). Little and
Doss testified that Little spoke with Pollard and Smith about shutting down the
belt, but they said they wanted to continue to run the belt. (Tr. 313, 338). Little
testified that he would have shut the belt down if he had been informed there
was a (d) Order. (Tr. 350-351). However, he conceded that once he received the
Order he did not shut the belt down. (Tr. 352, 354-355).

To abate this
condition, Respondent rock dusted the area and belt structure. (Tr. 241, 243). Pollard
returned to the belt and terminated the Order at 10:40 the next day. (Tr.
241-242).

Pollard issued
another citation for belt rubbing under 30 C.F.R. §75.1731(b). (Tr. 245-246, SX-5).
That standard required belts to be aligned to prevent them from rubbing against
the structure or components. (Tr. 246). Here, Pollard and Smith observed
frictional contact between a misaligned belt and the metal frame of a bottom
roller, causing heat.[17]
(Tr. 168-169, 221, 246, SX-7). The belt was operating and rubbing during the
inspection. (Tr. 169-170, 196, 198, SX-7, HX-3(1-U)). The belt was drifting
from the left hanger and making intermittent contact with the structure.  (Tr.
170-171, 199, 226, 278, 286, SX-8). It was rubbing more often than not and had had
created a pile of filings and rubber shavings beneath the roller. (Tr.
226-227).

Pollard marked
this citation as “Reasonably Likely” because, along with the float coal dust,
it would have caused an ignition or explosion. (Tr. 246-247). The structure was
already hot; Pollard could not hold it with his bare hand. (Tr. 170, 226, 247).
It was hot enough to cut metal if left unabated. (Tr. 169-170). The belt and surrounding
area were dry and there was float coal dust on top of the rock dust present. (Tr.
286-288, 320, SX-8). Pollard did not touch the rail with the rock dust and
there was no combustible material in contact with the point of contact. (Tr.
200, 281, 292-293, SX-8). There was no smoke or smell of smoke. (Tr. 278).
Pollard did not have a heat stick or heat pencil. (Tr. 282-283). Pollard marked
this citation as likely to result in “Lost Workdays or Restricted Duty”
injuries from burning or smoke inhalation. (Tr. 247). Pollard marked this
citation as likely to affect 2 people because there was a belt examiner and
belt cleaner in the area. (Tr. 248). Further, the belt entry was parallel to
the travelway and anyone in that area would also be affected. (Tr. 248).

Pollard marked
this citation as resulting from “moderate negligence” because the belt was
intermittently rubbing the structure. (Tr. 248, 278). It was possible that the
belt was not rubbing when Doss observed it, if it were rubbing all the time he
would have made it high negligence. (Tr. 248, 278). Nonetheless, Pollard was
able to notice the condition because it was rubbing and there was a pile of
shavings underneath. (Tr. 248). Doss saw shavings, but did not see belt
rubbing. (Tr. 323). The heat indicated that the belt had been rubbing for a
while. (Tr. 226). Doss had experience with misaligned belts and testified that
they can occur quickly from rollers failing from heat. (Tr. 298). He testified
that he did not see the belt rubbing in the cited area during his exam. (Tr.
317, 320-321). He had aligned other belts before the inspection. (Tr. 309,
317-318, 321). If he had seen the belt rubbing here he would have corrected it.
(Tr. 318, 322).

Pollard
testified that the condition was abated when Little adjusted the rollers and
trained the belt at 10:40. (Tr. 243, 248-249). Little did not recall aligning
any belts. (Tr. 350, 357).

Smith also
observed cords and fibers filling roller bearings on a return idler and on a
support bracket. (Tr. 173, 176, 315, SX-9, SX-10). Cords and fibers can be
created when misaligned belts rub and fray on the frame structure. (Tr. 173). However,
Smith believed this condition came from the centerline spans that stream down
from the center of the entry, because they were thicker than belt fiber. (Tr.
173-174). Smith knew from experience that this condition could cause mine
fires; it had caused CO monitors to go off in the past. (Tr. 173). The material
would tighten on the rollers and bearings causing friction and hot embers to
fall to the floor. (Tr. 173-174, 176). Even if the material came from the flame
resistant belt, the inner webbing was flammable, according to MSHA tech
support. (Tr. 173). Doss had seen some of this material during his exam. (Tr.
314). The ripped string material was always present but no one told Doss did
not believe it was a hazard here because it was not a large wad. (Tr. 314-315).
 Little saw the material and discussed with Pollard and Smith whether it was a
hazard. (Tr. 357-358).

Pollard also
wrote Citation No. 8511141 because there was extraneous material (buckets,
timbers, old belt rollers, and other items) in the entry. (Tr. 220, 251, 277,
333, SX-15). These items were a danger as a source of friction; belts would
produce heat from rubbing accumulations of material. (Tr. 252). However, none
of the material was touching moving structure at that time so it was only a
potential ignition source and a fuel source if a fire started elsewhere. (Tr.
277-278). All of this material should have been removed but there was no
indication this was being done. (Tr. 252). Pollard believed one person
conducting an exam with a cap lamp should have seen this material. (Tr.
288-289). Doss testified that he usually wrote up and removed the material but
did not do so here. (Tr. 333-334). He asserted that federal inspectors have
never considered the material a problem before. (Tr. 333).

Pollard also
issued Citation No. 8511142 for loose roof, broken, and unsupported ribs that
failed to meet the roof and rib control plans, including two ribs that had
fallen on either side of the belt in the header area. (Tr. 168, 180, 220, 250-252,
SX-16). Pollard did not list the location in this citation because there were
so many ribs. (Tr. 194-195, 280-281, 285). Smith observed one loose,
unsupported rib that had separated 12 inches from the top as well as another
loose, overhanging rib. (Tr. 178-179, 181-183, SX-12, SX-13). The bottom of the
first rib looked intact, but had stress fractures. (Tr. 179, 355-356, SX-12,
SX-13).

During the
inspection, Smith advised Respondent about MSHA policy requiring loose ribs to
be, flagged (to notice the hazard), pulled, or supported while Pollard issued
the citation. (Tr. 163, 168, 179-182, 325-326). Doss did not recall this
conversation, but Little may have. (Tr. 324, 327-328, 356). If flagged, the
condition should have been reported to management. (Tr. 181-182). Doss conceded
that the ribs were not flagged. (Tr. 326-327). Smith and Pollard recalled
Little and Baker pulling ribs during the inspection and recording others that
were too tight for future correction but Little did not. (Tr. 168, 179, 194-195,
220, 276-277, 284, 350, 355). Doss and Little agreed that the cited ribs should
have been pulled if possible, but did not believe they could be. (Tr. 325, 332,
356). Doss pulled a rib at the tailpiece before encountering Pollard, Little
recalled seeing it. (Tr. 309-312, 321, 349-350). Doss tried to pull other
cracked ribs, but they would not fall. (Tr. 316, 325). He tried to pull one
loose rib three times before. (Tr. 325, 327). Smith and Pollard noticed some
ribs down, but could not tell if they were pulled or fell before the
inspection. (Tr. 194, 275).

In addition to
flagging or pulling, there were other measures that could be used to secure
ribs, including truss bolting and timbers wedged between the roof and the floor.
(Tr. 191, 276, 303, 333). Truss bolting involved anchoring 6-8 angled bolts to
a stable top which allowed the top to hold more weight and provided a fall
warning. (Tr. 303). Truss bolting may not help the ribs. (Tr. 303). Here, there
were some truss bolts from Crosscut 18 to the tail, but only as needed. (Tr.
303-304). Further, Respondent was not bolting the area at the time of the
citations but increased their use after the citation. (Tr. 333). In addition to
bolts, there were heavy-duty, round, (usually dry) crosscutter timbers wedged along
the entire entry. (Tr. 302-303). Pollard and Smith believed that timbers could
be used to support ribs when used properly, but that they were inadequate for
large, loose ribs and would be knocked out in a fall. (Tr. 190-192, 276). In
Smith’s opinion, the timbers present were a mere “token effort” to support the
ribs. (Tr. 193). Some loose ribs had no timbers (though Pollard could not say
how many there were). (Tr. 193, 284-285). Also, Smith believed that simply
wedging timbers without a crossbar and leg support was insufficient. (Tr. 191).
Doss testified that MSHA had previously stopped him from using timbers, but
that he had started using them again after the instant citations. (Tr. 317,
326).

Pollard believed
the ribs were dangerous; they could fall and crush a miner or pin a miner
against the belt. (Tr. 179-180). Rib conditions, including rolls and bursts,
were a leading cause of injury in coal mines. (Tr. 180, 297). The fact that
some ribs could not be pulled was not important to Pollard because they could
fall at any time. (Tr. 284). Little agreed that all ribs, not just loose ribs,
were a hazard. (Tr. 326). The ribs were located where examiners and mechanics
walked. (Tr. 179). A bit box hand from one rib, indicating exposure to workers.
(Tr. 181).

Pollard
testified that a single person with a cap lamp should have found the obvious. (Tr.
288). One of the ribs was cracked top to bottom and white rock dust was visible.
(Tr. 182). Miners, particularly examiners, must always be aware of ribs and
should see any conditions that the inspector noticed at a glance. (Tr. 253, 288,
297). In Pollard’s view, the conditions did not occur after Doss’ exam. (Tr.
253). Some of the loose ribs had rock dust behind them, indicating they had
been loose for a while. (Tr. 283-284). Other ribs had missing plates that were
in other areas, indicating they had been missing for a while and moved after
they fell. (Tr. 284).

Pollard wrote
another citation, No. 8511145, for an inadequate on-shift examination under 30
C.F.R. §75.362(b). (Tr. 249, 273, SX-6). He testified that this standard
required operating belts to be examined by a certified person for hazards and
violations on production shifts. (Tr. 249-250). Here, Pollard found that the other
cited conditions indicated the exam was inadequate. (Tr. 250). He believed
these conditions had existed during Doss’ exam because he had just finished and
they could not have arisen in so short a time. (Tr. 250, 273).

This citation
was marked “Reasonably Likely” because miners were required to work in the area
and, as a result of the poor exam, the conditions would continue. (Tr. 255).  The
citation was marked for “Lost Workdays or Restricted Duty” because miners could
suffer burns, smoke inhalation, broken bones, and cuts or lacerations. (Tr.
255). Two people, the belt examiner twice a day and the belt cleaner, would
travel this area. (Tr. 255). Also, the supply road was in constant use and
miners using it would be affected by an explosion. (Tr. 255).

This citation
was marked as the result of “high negligence” because Pollard did not believe
that Doss could travel the belt line and not see the conditions. (Tr. 256). Doss
should have seen the extraneous materials. (Tr. 251-252). Further, Doss had
listed the dust in the book for three days (it was possible those exams were
adequate). (Tr. 256, 273). Pollard conceded that he traveled the entry moving
outby, while Doss traveled inby and that it was possible to see different
things from different directions. (Tr. 266-267, 288). Further, it was dark and
there were four members in the inspection group with lamps while belt exams
were conducted by one examiner. (Tr. 265-266). Pollard agreed that four lamps
illuminated more than one, but believed one lamp would light the area. (Tr.
267). Doss testified he shut down belts when needed, including that day. (Tr.
316). Smith told Doss that he needed to do a better job of examining the area,
but every inspector says that. (Tr. 323). However, he agreed that he could have
done a better job that day; he was always learning ways to improve. (Tr. 324).

To abate the
citation, a meeting with on-shift examiners was held on recognizing and
recording hazards. (Tr. 257). Little worked with management on ribs and rock dust.
(Tr. 256).

B.    
Timing
Issue

Before
discussing the specifics of both of the citations at issue with respect to the
testimony summarized above, I would like to first address an argument
Respondent made regarding the timing of both of these citations. In short,
Respondent argues that the time each citation was issued, according to the time
listed on the Inspector’s citation forms, does not match the location shown on Respondent’s
tracking system.[18] (Respondent’s KENT
2013-480 Post-Hearing Brief at 37-40, Tr. 340, 345, 360, SX-5). For
instance, Respondent noted that at 9:40 when the citation for extraneous material
from the tailpiece to the header was issued, the tracking system indicated that
the inspection group was closer to the tailpiece than the header, meaning the
examination had just started. (Id. at 39-40, Tr. 346-348, SX-5, p. 9). Similarly,
Citation No. 8511143 for float coal dust across the entire entry was issued at
10:15 a.m., before Little reached the header. (Tr. 348). Respondent asserts
that similar discrepancies exist with respect to the other citations. (Id.
at 40). As a result, it argues that Inspector Pollard did not actually see the
conditions and that he only decided to write the citations after speaking with
his boss. (Id.).

I credit the
testimony of Inspector Pollard that he wrote his citations when he believed
that he had enough evidence to justify the citations. (Tr. 268-270). He sometimes
knew he was going to issue a citation, but not the extent of the condition
until he finished the inspection. (Tr. 268-269). For instance, Pollard
testified he had seen a citable condition for extraneous material at 9:40, but
finished the inspection and saw it spanned the whole entry. (Tr. 269-270). He
often cited in this manner. (Tr. 269-270). While he wrote citations that covered
the entire entry, I find that it was reasonable that he not wait until he saw
the entire entry, if what he saw in a small area of the entry was sufficient to
justify a citation.

Further, I am
not convinced that using the tracking system to line up the inspector’s notes
with the location of the examination group is accurate. The entry at issue here
was a mere 2,000 feet long. According to Little, the system monitored 500 feet
inby and outby each tracker. (Tr. 362-363). While no one testified as to how
many trackers were in the area, according to these facts two trackers could
cover the entire area of the belt entry. Further, if a miner was picked up on a
tracker at the far end of its range and then walked towards the tracker, passed
it, and then was picked up on the other, far end of its range, that miner would
travel 1,000 feet (or half the entry) while still being shown as standing in
the same area. (See Tr. 359, 362-363). The wide area between the
trackers, and the problems that this could cause, was demonstrated by the fact
that, at one point, the tracker showed Little move 12 crosscuts in 9 seconds. (Tr.
359). I find that the tracker data, for the purpose of determining the location
of the inspection group at the exact moment of each citation, is not accurate
and will not be considered.

Finally, I decline to find, in the
absence of any other evidence, that MSHA inspectors and investigators
fabricated conditions at the Highland No. 9 Mine. If Respondent wanted to make
a claim that a conspiracy existed to frame the operator for some nefarious
purpose, it would need to produce some actual evidence showing the existence of
such a plot. For now, we will stick to the more prosaic pursuit of dealing with
the facts on the record.

C.    
Contentions
of the Parties Regarding Citation No. 8511144

With respect to Citation No. 8511144,
the Secretary asserts that Respondent violated 30 C.F.R. §75.1731(b), that this
violation was reasonably likely to result in a Lost Workday/Restricted Duty
injury to two miners, that the violation was S&S, and that it resulted from
moderate negligence. (SX-5)(Secretary’s KENT 2013-480 Post-Hearing Brief
at 9-13). The Secretary also believes that the proposed penalty of $1,657.00 is
appropriate.

Respondent
argues that Citation No. 8511144 was not valid and should be vacated. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 10-13). It further argues that, in the
event the citation is found to be valid, that the violation was not S&S. (Id.
at 17-22). It also believed that its actions would be better characterized as
showing no negligence. (Id. at 13-17). Finally, Respondent presumably
believes that the penalty should be vacated or, in the event the citation is
found valid, reduced pursuant to its proffered gravity and negligence
determinations.

D.   
Findings
of Fact and Conclusions of Law Regarding Citation No. 8511144

1.     
The
Secretary Has Carried His Burden Of Proof By A Preponderance Of The Evidence
That Respondent Violated 30 C.F.R. §75.1731(b).

On November 8, 2012, Inspector Pollard
issued a 104(a) Citation, No. 8511144, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

Conveyor belts must be properly aligned
to prevent the moving belt form rubbing against the structure or components. The
1st Main North conveyor belt is rubbing a bottom roller hanger
between the #11 and #12 crosscuts. The hanger was hot to the touch

The Beltline was in operation at the
time of inspection

Section 75.1731(b) was cited 46 times in
two years at mine 1502709 (46 to the operator, 0 to a contractor).

(SX-5).

The cited standard, 30 C.F.R.
§75.1731(b). (“Maintenance of belt conveyors and belt conveyor entries.”),
provides the following:

(b) Conveyor belts must be properly
aligned to prevent the moving belt from rubbing against the structure or
components.

30 C.F.R. §75.1731(b).

At hearing, Secretary’s counsel
presented credible evidence to show that, at the time of the inspection, the 1st
Main North conveyor belt was operating and rubbing a bottom roller hanger
between the #11 and #12 crosscuts. (Tr. 168-170, 196, 198, 221, 246). The contact with
the structure was intermittent (though the belt rubbing more often than not) and
drifting from the left hanger. (Tr. 170-171, 199, 226-227, 278, 286). The
rubbing had created a pile of filings and rubber shavings beneath the roller. (Tr.
226-227). Therefore, I find that the Secretary met his burden, showing by a
preponderance of the evidence that Respondent violated 30 C.F.R.
§75.1731(b).

In its brief,
Respondent argued that this violation was invalid. (Respondent’s KENT
2013-480 Post-Hearing Brief at 10-13). However, Respondent’s argument was
not compelling.

Specifically,
Respondent argues that the photographs introduced by the Secretary to prove the
existence of this violation do not show the belt rubbing the structure. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 11). It notes that Smith admitted that SX-7
was not clear right after stating that it showed the belt making contact. (Id.
citing Tr. 169-170). With respect to SX-8, Respondent argues that Smith
conceded that the belt in SX-8 is shown moving away from the left hanger, but
tried to say that this meant the belt was drifting. (Id. citing
Tr. 170-171). Respondent also argues that Smith admitted that he testified that
the pictures did not show physical contact between the belt and structure. (Id.
at 11-12 citing Tr. 198-199). Respondent instead pointed to Doss’
testimony that, after he corrected one misaligned belt, the belt was not
rubbing, as shown in the pictures. (Id. at 12 citing Tr. 317-323).

Upon review, I
found the photographs SX-7 and SX-8 to be extremely dark and difficult to
discern. I cannot tell from the photographs whether the belt was rubbing or
not. However, Respondent was not cited for being photographed with rubbing
belts. In fact, the person who issued the citation (Inspector Pollard) was not
the person who took the photographs (Investigator Smith) and his determinations
regarding the cited condition were made wholly independent of the photographs. As
noted supra, I credit Inspector Pollard’s testimony that the belt was
rubbing the structure in the cited area. (Tr. 221, 245-246). Whether the
photographs depict the cited condition is only material if I believe that
Inspector Pollard lied about the rubbing belts in order to frame Respondent and
that the Secretary chose to expose its own fraud by submitting photographs that
undermined the plot. I see no reason to believe such a bizarre series of events
transpired here. Instead, I find that the photographs are of little probative
value but that the testimony of Inspector Pollard and Investigator Smith clearly
establishes the existence of a violation.

Respondent also
argued that the Secretary presented no physical evidence of the cited
condition. (Respondent’s KENT 2013-480 Post-Hearing Brief at 12). It
noted that the Smith’s photographs did not show rubbing, that Pollard did not
take the photographs, and that the inspector did not use a heat pencil to
substantiate the heat of the rubbing belt. (Id. at 12-13). It argues
that the evidence MSHA could have provided, but did not, would have been
exculpatory. (Id. at 13).

As noted with
respect to the other citations discussed supra, testimony is evidence. Inspector
Pollard and Investigator Smith credibly testified that the belt was rubbing. (Tr.
221, 245-246). Even in the absence of photographs, the testimony credibly
established that the belt was rubbing.  The testimony to the effect that the
belt structure was hot to the touch, that there were belt shavings on the
floor, and that there were belt ravelings on the rollers further confirms that
a condition existed. I see no reason to disbelieve the two inspectors.

With respect to
the heat pencil, the fact that the structure was hot is important in considering
the likelihood or negligence. The evidence regarding the heat of the belt will
be discussed in the sections concerning gravity and negligence infra. However
nothing in the cited standard requires that the rubbing belt caused heat. Heat
may indicate that the condition exists, but the absence of heat does not mean
that it definitely did not. Even if the belt had become misaligned and started
rubbing just minutes before the inspection and had not yet caused any increase
in heat, there would still be a violation. The validity of this citation does
not hinge on the heat of the rubbing belt and even if the Secretary’s failed to
provide any evidence as to the temperature of the belt (which is not the case
here, as the inspector testified about the heat), a citation can be
appropriate. Therefore, I find that the citation was validly issued.

2.     
The
Violation Was Reasonably Likely to Result in Lost Workday/Restricted Duty
Injury To Two Miners And Was Significant And Substantial In Nature.

Inspector Pollard marked the gravity of
the cited danger in Citation No. 8511144 as being “Reasonably Likely” to result
in “Lost Workday/Restricted Duty Injury” to two miners. (SX-5). Pollard also
determined that the violation was S&S. (SX-5). These determinations are
supported by a preponderance of the evidence.

Regarding the first element of S&S -
the underlying violation of a mandatory safety standard – it has already been
established that Respondent violated 30 C.F.R. §75.1731(b).

With respect to
the second element of Mathies, a discrete safety hazard – that is a
measure of danger to safety – contributed to by the violation – was also met. As
discussed supra, the Secretary presented credible evidence that the belt
was rubbing the structure in a dry area between crosscuts 11 and 12 in the 1st
Main North belt entry. (Tr. 221, 245-246, 286-288). The Secretary presented
further credible evidence that this rubbing had caused a pile of belt shavings
to accumulate under the structure. (Tr. 226-227, 323). Friction from the belt
rubbing had warmed the area to the degree that Pollard could not keep his hand
on the structure, making a fire or smoke more likely. (Tr. 170, 221, 226, 247).
It was hot enough to cut metal if left unabated. (Tr. 169-170). Float coal dust
in the entry, coal particles on the belt, accumulations of material on the
floor, and the belt shavings would act as a fuel source for a fire or
explosion. (Tr. 225, 227, 244-247, 278, 286-288, SX-8). The cited condition
clearly contributed to the danger of a fire, inundation of smoke, or explosion
in the entry. (Tr. 221, 246-247).

Respondent presented several arguments
for the proposition that there was no confluence of factors that could result
in a fire, smoke, or explosion. (Respondent’s KENT 2013-480 Post-Hearing
Brief at 17-21). However, none of these arguments are compelling.

Respondent argued that the necessary
elements for the “fire triangle” (oxygen, fuel source, and ignition source)
were not present meaning that no fire was possible. (Respondent’s KENT 2013
Post-Hearing Brief at 17). Respondent argued that there was not a
confluence of factors present to create a fire. (Id. at 17-18, citing
Enlow Fork Mining Co., 19 FMSHRC at 9). Respondent makes several
points related to this argument and I will consider each in turn.

First, Respondent argued that there was
no explanation for how something that was merely too hot to hold would cause an
ignition. (Respondent’s KENT 2013 Post-Hearing Brief at 18). It cited Highland
Min. Co., for the proposition that holding as structure and feeling the
heat was not enough to support a finding that a fire was likely. (Id. at
19, citing 34 FMSHRC 2612 (2012)). According to Respondent, without
objective measurements of temperature, Inspector Pollard’s testimony was mere
conjecture. (Id.) Relatedly, it argued that because the belt was rubbing
only intermittently that it would lose heat and reach an equilibrium before it
could become hot enough to serve as an ignition source. (Id. at 18-19).

I credit the testimony of Inspector
Pollard for the proposition that the hot belt structure indicated that the
frictional contact was causing heat and that this heat would have grown into an
ignition source if left unabated. The exact temperature of the belt structure
and Inspector Pollard’s failure to use a heat pen were far less important than
the observed facts: the belt structure was so hot that Pollard could not keep
his hand on it and it would continue to get hotter. (Tr. 221, 226, 247). Eventually,
it would get hot enough to produce smoke or even cause ignition. There is no
basis, whether in the record or in common sense, for Respondent’s assertion
that the heat from the frictional forces here would “top out” at a level below
which the hazard would be realized.

Furthermore,
Judge Rae’s decision in Highland Min. Co., 34 FMSHRC 2612 does not in
any way imply that the heat observed by touching a structure is insufficient as
proof of the likelihood of a fire. There, Judge Rae found:

With regard to
the heat source present, Yates could not say how long it would take for the
roller hangers to become sufficiently hot to cause a belt fire, or even if a
belt fire would occur. (Tr. 286, 313.) On the other hand, Cowan who was with
Yates during the inspection, testified at his deposition that after Yates felt
the roller hanger, Cowan removed his glove to feel the roller hanger as well.
He found it to be warm to the touch but not warm enough to raise a concern. He
also observed the belt running over the hanger and found the belt was only
occasionally rubbing on the hanger. Cowan also scaled the rock that concerned
Yates and had a difficult time prying it loose. (Cowan dep. at pp. 17-20.) There
was no evidence of methane or electrical equipment in the entry. This evidence
is not sufficiently convincing to support the proposition that it was
reasonably likely that the misaligned belt would result in an ignition, should
coal or other accumulations fall on the belt, under continued normal mining
conditions.

Id. at 2620.

Judge Rae’s
reasoning clearly relies on the fact that the inspector did not know if a belt
fire would occur. In the instant matter, Inspector Pollard credibly testified
that a fire, smoke, or explosion was reasonably likely. (Tr. 246-247). Further,
In Judge Rae’s case the testimony from the operator’s ventilation coordinator
that he touched the structure and found it warm, but not enough to raise
concern, was additional support for the Judge’s ruling. But the Judge in no way
held that the observed heat is not enough evidence to support a finding. Contrast
the ventilation coordinator’s testimony that the structure was warm, but not a
concern, with Inspector Pollard testimony in the instant matter that he could
not keep his hand on the material because of the intense heat. The situations
are clearly different. Finally, Judge Rae noted that there were no
accumulations or belt shavings in the area. 34 FMSHRC at 2619. That indicates that
the situation was less serious than here, where float coal dust, extraneous
material, and belt shavings were found. (Tr. 246-247, 278). In short, Judge Rae
considered the observed temperature as part of all the circumstances present
and found that, in that situation, a fire was not likely. I have considered all
the present circumstances with respect to the instant matter and found that a
fire was reasonably likely.

Respondent also
argued that a fire was not likely to occur because the belt rubbing and the
float coal dust were not in the same place at the same time. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 19-20 citing Tr. 200, 211, 281).

It is true that
Inspector Pollard testified that the float coal dust was not directly on the
belt structure where he found the frictional heat. (Tr. 200, 281,
292-293). However, he also credibly testified that there was float coal dust on
the manifold, the belt structure (including the rails holding the rollers and
roller frames), the framing, the waterline, and the mine floor. (Tr. 201, 208,
220-223). He credibly testified that the accumulations started about two
crosscuts outby the tailpiece and stretched most of the 2,000 feet length of
the belt entry. (Tr. 222-223, 233). Most importantly, the dust was largely
uniform throughout the area. (Tr. 261, 281). While one location directly next
to the warm area was devoid of float coal dust, the dust was all over the area.[19] A piece of
belt shaving, a piece of coal on the belt, or ravelings on the belt could have
been ignited from the cited condition and fallen to the mine floor, where coal
dust and other extraneous material was accumulated. While the fuel source was
not located at the exact spot where the belt was rubbing, the area was
essentially surrounded by fuel sources. As a result, smoke, fire, or explosion
was reasonably likely.

Respondent also
argued that the belt was wet and therefore unlikely to combust, there were
water sprays, and CO monitors. (Respondent’s KENT 2013-480 Post-Hearing
Brief at 20). For the reasons discussed with respect Citation No. 8508512,
this argument fails. Wet coal will eventually dry out and additional
precautionary measures do not eliminate the risk of hazard. Smoke, fire, or
explosion was still reasonably likely.

Respondent also
argued that the inspectors were not seriously concerned about a mine fire
because, even though they were asked by Respondent’s employees, they chose not
to shut down the belt that day. (Respondent’s KENT 2013-480 Post-Hearing
Brief at 20-21). It notes that Pollard and Smith’s explanations for this
failure (that it was a mistake and that belts are only shut down for imminent
dangers, respectively) are post-hoc rationalizations covering up the fact that
there was no danger. (Id. at 21).

Regardless of what
the inspectors thought, at the time, an objective analysis of the observed
conditions indicated that there was a reasonably likelihood of a hazard. There
was a belt rubbing against the belt structure creating heat, there were belt
shavings and ravelings, and there was float coal dust and other accumulations. This
was a dangerous situation that could have resulted in smoke, a fire, or an
explosion. Whether the inspectors recognized the danger at the time is not
important. However, with that noted, I see no reason to disbelieve Inspector
Pollard’s explanation that he made a mistake in delaying the issuance of his
first 104(d) Order and should have shut down the belt at the time. I decline
the opportunity to teach Inspector Pollard a lesson on being decisive and
communicating clearly at the expense of the health and safety of miners.

In light of the
fact that smoke, fire, or explosion was reasonably likely, I find that the
second prong of Mathies is met.

The third element of the Mathies test –
a reasonable likelihood that the hazard contributed to will result in an injury
– was also met. It is reasonably likely that, in the event of a fire, the two
miners in the entry would be affected by the smoke or by the fire directly,
resulting in injuries. (Tr. 248). Miners sent to fight the fire would also be
affected and receive injuries. In the event of an explosion, miners in the
entry, or even in the adjacent travelway, would be affected and could suffer
injury. (Tr. 248). Therefore, I find this an injury was reasonably likely and
that the third prong of Mathies was met.

Respondent argued for the proposition
that no injury was reasonably likely. (Respondent’s KENT 2013-480
Post-Hearing Brief at 21-22). However, that argument was not compelling.

Respondent argued that even if the belt
rubbing could cause a fire, that was merely a possibility and too remote and
speculative to sustain an S&S designation. (Respondent’s KENT 2013-480
Post-Hearing Brief at 21-22). It argued that the Secretary’s interpretation
was so broad as to encompass all citations. (Id. at 22). It cited U.S.
Steele Min. Co., Inc., for the proposition that the hazard contributed must
result in an event in which there is an injury. 7 FMSHRC 1135, 1129 (1985). It
argued that an injury must be more than just possible.

Respondent suffers the same confusion
about the nature of the Mathies test post-Musser as many other
operators. I will attempt to clarify the issue here. The question of whether
smoke, fire, or an explosion would be likely in this situation is not properly
considered under the third prong of Mathies. That issue, whether the
violation contributed to the hazard of smoke, fire, or explosion, was
considered at length in the discussion of the second prong of Mathies infra.
For purposes of the third prong of Mathies, it does not matter if the
violation itself would cause an injury. Musser, 32 FMSHRC 32 at 1281. After
the second prong, the violation is no longer under consideration; the hazard
contributed to is the issue. Specifically, the question with respect to the
third prong of Mathies is whether the hazard contributed to would be
reasonably likely to result in injury. Here, the hazard contributed to (smoke,
fire, or explosion) would be extremely dangerous in the mine and an injury would
be very likely. Therefore, the third prong of Mathies is met.

The fourth and
final prong of Mathies – a reasonably likelihood that the injury in
question will be of a reasonably serious nature – was also met. Under Mathies,
the fourth and final element that the Secretary must establish is that there
was a “reasonable likelihood that the injury in question will be of a
reasonably serious nature.” Mathies Coal Co., 6 FMSHRC at 3-4; U.S.
Steel, 6 FMSHRC 1573, 1574 (July 1984). In the event of a fire or explosion, the
Secretary presented credible evidence that miners would suffer lost
workday/restricted duty injuries from burning or smoke inhalation. (Tr. 247). Further,
miners in the adjacent travelway would be affected in the event of any
explosion. (Tr. 248). As with Citation No. 8508512 supra, miners
fighting any fires would also be affected by burns and smoke inhalation. (Tr.
26, 29). These
injuries would be sufficiently serious to result in an S&S designation. Therefore,
the fourth prong of Mathies is met.

Once again, I note that an inspector’s
opinion regarding S&S is accorded substantial weight. Harlan Cumberland
Coal Co., 20 FMSHRC at 1278-79, Buck Creek Coal, Inc., 52 F.3d at
135-36. Here, Pollard credibly testified that the citation was S&S. As a
result of the inspector’s opinion and, more importantly, the factors discussed
above, I find that the Secretary proved the violation was S&S by a
preponderance of the evidence.

Therefore, the preponderance of the
evidence supports the Secretary’s determination with respect to the likelihood
of injury, the severity of that injury, and the S&S designation.

With respect to the number of persons
affected, the
Secretary presented credible evidence that if smoke, fire, or explosion were to
occur that the belt examiner and belt cleaner would be affected. (Tr. 248). Further,
the miners in the belt entry would also face injury. (Tr. 248). Pollard marked
this citation as likely to affect 2 people because there was a belt examiner
and belt cleaner in the area. (Tr. 248). Further, the belt entry was parallel
to the travelway and anyone in that area would also be affected. (Tr. 248).

In short, the preponderance of the
evidence shows that Citation No. 8511144 was reasonably likely to result in
lost workday/restricted duty injuries to two persons and was S&S.

3.     
Respondent’s
Conduct Displayed “Moderate” Negligence.

In the citation at issue, Inspector Pollard
found that the operator’s conduct was moderately negligent in character. (SX-5).
The substantial evidence supports this designation.

With respect to knowledge, the factual
situation presented here is substantially similar to that in Citation Nos.
8508232 and 8508512. A mine examiner had passed through the area just minutes
before the inspector discovered and cited the violative condition. (Tr. 219,
301, 304, 319-320). In fact, the inspector found the examiner, Doss, just as he
was completing his examination. The examiner had traveled the belt entry and
past the area where the rubbing belts had been discovered but did not correct,
record, or flag the cited condition as he should have. (Tr. 250). The heat
indicated that the belt had been rubbing from a while. (Tr. 226). As with the
previous citation, the examiner was an agent of Respondent and his actions were
imputable to the operator. Whayne Supply Co., supra; Rochester
& Pittsburgh Coal Co., supra; and Southern Ohio Coal Co.,
supra. As a result, Respondent knew or should have known about the cited
condition but took no action. Therefore, Respondent was negligent.

I credit
Pollard’s testimony that he marked this citation “moderate negligence” because
the belt was intermittently rubbing the structure in one place. (Tr. 248, 278).
It was possible that the belt was not rubbing when Doss observed it. (Tr. 248,
278). If it had been rubbing all of the time, he would have made it high
negligence. (Tr. 248). Nonetheless, Pollard was able to notice the condition
because it was rubbing and there was a pile of shavings underneath. (Tr. 248). Also,
the heat indicated that the belt had been rubbing for a while. (Tr. 226).

Respondent argued that it did not have
knowledge of the cited condition and therefore, cannot be negligent. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 15-17). However, Respondent’s arguments
are not compelling.

First, Respondent argues that the
condition was not present at the time of the examination. (Respondent’s KENT
2013-480 Post-Hearing Brief at 15-16). It noted that even Pollard said that
the belt might not have been rubbing when he looked at it. (Id. citing
Tr. 248). Doss confirmed that the belt was not rubbing in the location. (Id.).
Respondent argued that if the condition did not exist at the time of an
examination, but then cropped up later, it cannot be negligent because it
neither knew nor should have known. (Id.).

It is true that Inspector Pollard
testified that the belt may not have been rubbing at the time of the
examination and that Doss testified that it was not. However, that does not
negate the fact that Respondent should have known about the cited condition. While
the intermittent rubbing made the condition slightly less obvious, there were
still indicators that Doss should have noticed. Most importantly, Pollard
testified that there
was a pile of shavings underneath the belt that were obvious to him and should
have been an indicator to Doss that the belt was rubbing. (Tr. 248). Doss
should have seen these belt shavings and known that the belts were misaligned. The
heat of the belt was also an indicator that a condition existed. (Tr. 248). While
the heat of the belt structure would only be obvious if Doss felt the frame, he
should have been particularly diligent for ignition sources in light of the
fact, as noted supra, that the entire entry was covered in float coal
dust. (Tr. 201 208, 220-223,233-234, 259-260, 272). Therefore, I find that
Respondent should have known about the cited condition and, as a result, it was
negligent.

Having found the requisite knowledge,
the next issue is whether there were any mitigating circumstances. As discussed
supra, Pollard conceded that the belt might not have been rubbing when
Doss was in the area. (Tr. 248). Doss credibly testified that he did not notice
the condition during his examination. (Tr. 317, 320-321). The belt was only
rubbing the structure intermittently. (Tr. 170-171, 199, 226, 248, 278). In
light of these facts, I find that the condition was only somewhat obvious and
that, while he should have found the condition, Doss likely believed there was
no rubbing belt. In light of this mitigating circumstance, I find that
Respondent was only moderately negligent.

Respondent argued that it should be
found to have exhibited “Low” or “No” negligence as a result of this condition.
However, none of its arguments are compelling.

First, it argued that the fact that Doss
conducted a timely examination and had no “actual subjective knowledge” of the
condition was a considerable mitigating factor.  (Respondent’s KENT 2013-480
Post-Hearing Brief at 16). I found that the fact that the condition was not
particularly obvious to be a mitigating factor. However, as discussed at length
supra, whether Respondent had actual subjective knowledge is immaterial
to a negligence finding. While the condition was somewhat hidden, Doss still
should have known about it. As a result, I do not believe this to be a
“considerably” mitigating factor.

Second, Respondent also asserted that
the examination was properly conducted, citing to its argument with respect to
Citation No. 8511145. (Respondent’s KENT 2013-480 Post-Hearing Brief at
16.). For the reasons discussed in the section regarding that citation infra,
the examination was not adequate. As a result, the examination cannot be
considered a mitigating circumstance.

Third, Respondent argued that the
Secretary alleged no history of belt problems. (Respondent’s KENT 2013-480 Post-Hearing
Brief at 16-17). It further argues that it was not on notice that this
condition was a concern. (Id. at 17). As with Citation No. 8508512, that
assertion is simply false. The Secretary presented uncontested evidence that
Respondent had been cited 46 times at Highland Mine No. 9 in the two years
prior to this citation. (SX-5). Further, this condition was cited after
Citation No. 8508512 above, where Respondent was cited for a rubbing belt and
the condition discussed in Highland Mining Company, LLC, 35 FMSHRC at

236. Further, as noted supra, the area was covered in float coal dust,
     so Doss should have been very aware of any possible ignition source. Therefore,
     Respondent had been cited extensively for rubbing belts and should have known
     to pay special attention to that condition.

Finally, Respondent argued that Pollard’s
testimony about how long the condition existed was speculative. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 17). I do not find this to be the case.
Pollard testified that the condition had existed for some time because of the
heat of the structure and the amount of shavings. (Tr. 226, 248). Pollard in
fact, does not speculate as the exact amount of time the condition existed. However,
as Doss had just passed through the area, it would not need to have existed
long for it to have been present during the last examination.

4.     
Penalty

In this matter, the Secretary proposed a
penalty of $1,657.00 for Citation No. 8511144. Having affirmed the Secretary’s
determinations in all respects, no deviation from the proposed penalty is
necessary. In fact, the proposed penalty is appropriate under the Act. Therefore, Respondent is hereby ORDERED to pay a civil
penalty in the amount of $1,657.00.

E.    
Contentions
of the Parties Regarding Citation No. 8511145

With respect to Citation No. 8511145,
the Secretary asserts that Respondent violated 30 C.F.R. §75.362(b), that this violation
was reasonably likely to result in a Lost Workday/Restricted Duty injury to two
miners, that the violation was S&S, and that it resulted from high
negligence. (SX-6)(Secretary’s KENT 2013-480 Post-Hearing Brief at 13-18).
The Secretary also believes that the proposed penalty of $3,689.00 is
appropriate.

Respondent
argues that Citation No. 8511145 was not valid and should be vacated. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 23-35). It further argues that, in the
event the citation is found to be valid, that the violation was not S&S. (Id.
at 36-37). It also believed that its actions would be better characterized as
showing no negligence. (Id. at 35-36). Finally, Respondent presumably
believes that there should be no penalty or, in the event the citation is found
valid, reduced pursuant to its proffered gravity and negligence determinations.

F.     
Findings
of Fact and Conclusions of Law Regarding Citation No. 8511145

1.     
The
Secretary Has Carried His Burden Of Proof By A Preponderance Of The Evidence
That Respondent Violated 30 C.F.R. §75.362(b).

On November 8, 2012, Inspector Pollard
issued a 104(a) Citation, No. 8511145, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

An inadequate on-shift exam was
conducted on the 1st Main North beltline on 11/08/2012 on the day
shift, the following hazards were found during an MSHA inspection;

1] Loose unconsolidated ribs.

2] Accumulations of float coal dust.

3] Belt rubbing bottom roller hanger.

4] Extraneous Materials located in belt
entry.

Citation #’s [sic] 8511141, 8511142,
8511143, and 8511144 were issued in conjunction with this citation. In order to
abate this citation, the Operator is required to conduct a meeting with all
personnel required to conduct an on-shift examination and discuss recognizing,
reporting, and recording hazards, also the importance of making adequate
on-shift exams.

Section 75.362(b) was cited 2 times in
two years at mine 1502709 (2 to the operator, 0 to a contractor).

(SX-6).

The cited standard, 30 C.F.R. §75.362(b).
(“On-shift examination.”), provides the following:

(b) 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. This examination may be conducted at the same time as the
preshift examination of belt conveyors and belt conveyor haulageways, if the
examination is conducted within 3 hours before the oncoming shift.

30 C.F.R. §75.362(b).

In short, the standard requires an
adequate examination of active belt entries during each shift. This includes a
requirement that any hazardous conditions found be recorded. See e.g., Excel
Mining LLC, 2013 WL 8540990, 19-20 (Aug. 15, 2013)(ALJ Biro)(“the duty to
record hazardous conditions observed by an examiner during an onshift
examination is implicit in 30 C.F.R. § 75.362(b)”); TRC Mining Corp.,
2013 WL 1856600, 9 (Mar. 7, 2013) (ALJ Zielinski) (internal citations omitted)
(“The Commission has held that the preshift standard requires a preshift
examiner to find and record a hazardous condition in a preshift examination
book. Section 75.362(b) imposes a virtually identical requirement.”); Bledsoe
Coal Corp., 2012 WL 5178246, *30-31 (Oct. 2, 2012) (ALJMoran)(holding that
the standard requires operators to conduct adequate exams and that an exam is
not adequate if it does not report hazards). Judge Barbour succinctly explained
the way in which the standard should be applied:

It is beyond doubt that the requirement
of section 75.362(b) to conduct an on shift examination during each shift when
coal is produced, carries with it the obligation that the examination be
sufficient to detect existing hazardous conditions. In other words, subsumed in
the standard is the obligation that the examination be adequate. Among the ways
of proving that an operator has not met this requirement is to show that a
hazardous condition existed in an area that was subject to an on-shift
examination, that the hazardous condition continued to exist after the
examination and that the hazardous condition was not recorded in the surface examination
book.

Twentymile
Coal Co.,
34 FMSHRC 2138, 2171 (Aug. 9, 2012) (ALJ Barbour) rev'd
on other grounds, 2014 WL
4387695 (Aug. 25, 2014). Further, Judge Feldman suggested that adequacy of an
on-shift examination should be analyzed based on what a reasonably prudent
person, familiar with the mining industry and the protective purposes of the
standard, would have done in the situation. Martin County Coal Corp.,
2014 WL 2154273, *14 (Apr. 29, 2014)(ALJ Feldman)(citations omitted).

In the instant matter, Inspector Pollard
and Investigator Smith credibly testified about 4 conditions along the 2,000
foot expanse of the First Main North belt entry. They included rib violations,
accumulations of float coal dust along the entry, belt friction, and extraneous
material.

With respect to the ribs, Pollard and Smith presented
evidence that there were loose, unconsolidated ribs along the length of the
entire entry. (Tr.
168, 220 252, 285, SX-16). At least two of the ribs that Pollard observed were
obvious. (Tr. 250-251). Smith saw a rib that had separated leaving a 12-inch
gap. (Tr. 178-179, 181, SX-12). This particular rib was loose and unsupported. (Tr.
179). Smith saw another rib that was separated, loose, and overhanging. (Tr. 181-183,
SX-13). This was a hazardous condition because loose ribs could fall and strike
a miner. (Tr. 179-180). The miner could be pinned to the belt structure. (Tr.
179-180). Injuries from rib conditions were very common in the mining industry.
(Tr. 180, 297). Injuries from such a hazard could include broken bones, cuts
and lacerations, or other lost workday/restricted duty type injuries. (Tr.
255). Examiners and mechanics traveled in the area with the broken ribs. (Tr.
179). No rib conditions were recorded in the examination book.

With respect to the accumulations, there
was float coal dust located on the manifold, the belt structure, the framing,
the waterline, and the mine floor. (Tr. 201, 208, 220-223). The accumulations
started two crosscuts outby the tailpiece and stretched across the entry belt
entry. (Tr. 222-223, 233). The dust the inspectors observed was largely uniform
throughout the area and therefore obvious. (Tr. 261, 281). Doss had listed that
the area needed to be dusted for three days prior to the subject inspection. (Tr.
227-231, 235-238, 283, 306-307, 329, SX-3 p. 43, 48, and 53). The float coal
dust contributed to the hazard of smoke, fire, and explosion. (Tr. 225, 227,
244-245). Injuries could include smoke inhalation, burns, or even death in the
event of an explosion. (Tr. 234). Examiners and mechanics worked in the area
while other miners traveled on the adjacent travelway. (Tr. 234-235). No
accumulations of this kind were recorded in the examination book. (Tr. 310).

The
issue with belt rubbing has been discussed at length with respect to Citation
No. 8511144, supra. I incorporate the findings made with respect to that
citation here. This condition was not recorded in the examination book.  

Finally, with
respect to the extraneous material, Pollard testified that he found buckets,
timber, old belt rollers, and other items accumulated in the entry. (Tr. 220, 251,
277, 333, SX-15). He credibly testified that these items were a danger as a
source of friction; they were allowed to accumulate under the belts and produce
heat from the belt rubbing against them. (Tr. 252). They could also serve as
fuel in the event of a fire starting elsewhere. (Tr. 252, 278). They may have
also served as a tripping hazard. Pollard believed one person conducting an
exam with a cap lamp should have seen this material. (Tr. 288-289). Doss conceded
that the material was present at the time of the examination and that it was
not recorded. (Tr. 334).

In
light of the existence of these hazardous conditions, most of which were
obvious, and the fact that these conditions were not recorded or corrected, I
find that Respondent violated 30 C.F.R. §75.362(b)

In its brief,
Respondent argued that this violation was invalid. (Respondent’s KENT
2013-480 Post-Hearing Brief at 23-35). Essentially, in its argument the
Respondent seeks to undermine Citation No. 8511145 by showing that the
underlying conditions were not hazardous and therefore cannot form the basis of
an inadequate examination citation. Essentially, Respondent argues that the
conditions with the ribs, float coal dust, and rubbing belt either did not
exist or were not sufficient to support this citation. However, Respondent’s
argument was not compelling. I will first make a general point about
Respondent’s position and then consider each of Respondent’s arguments as to
each issue in turn.

Put
broadly, Respondent’s argument with respect to this citation is that the
underlying citations were invalid and therefore the examination was adequate. However,
Respondent’s actions, both before and after the hearing, effectively bar it
from taking this position.  

On October 10,
2014, I issued a Decision Approving Settlement with respect to KENT 2013-479. This
decision formalized a settlement agreement file by the parties in this matter. As
part of that agreement, Respondent agreed to pay a penalty of Citation No.
8511143 (for float coal dust). The citation was modified from a 104(d)(1) Order
to a 104(d)(1) citation and the penalty was reduced. However, the body of the
citation containing the condition observed, as well as the gravity and
negligence cited, remained unchanged. Similarly, Judge McCarthy issued a
Decision Approving Settlement with respect to KENT 2013-984 on September 17,
2014. In that decision, the Citation No. 8511142 (for loose ribs) was modified
from an 104(d)(1) citation to a 104(a) citation. However, other than the
removal of the unwarrantable failure designation, this citation remained
unchanged as it relates to the condition observed, gravity, and negligence.

While an
operator is free to admit or deny the existence of a violation for purposes of
settlement, agreement to pay a civil penalty necessarily establishes that, for
proceedings under the Act, the alleged violation is conceded by the operator. AMAX
Lead Company of Missouri, 4 FMSHRC 975,
978-919 (June 1982). Further, a settlement agreement that binds a party
to pay a civil penalty is permitted to serve as a basis for the implementation
of the entire enforcement and compliance scheme of the Act. Id. As the
Commission held in Old Ben Coal Co.,

[A]
penalty under the Mine Act is predicated upon the existence of a violation. See,
e.g., Tazco, Inc., supra, 3 FMSHRC at 1896–98; Co-op
Mining Co., 2 FMSHRC 3475, 3475–76 (December 1980). Therefore, an operator
cannot deny the existence of a violation for purposes connected with the Mine
Act and at the same time pay a civil penalty. For purposes of the Act, paid
penalties that have become final orders reflect violations of the Act and the
assertion of violation contained in the citation is regarded as true.”

7
FMSHRC 205, 209 (Feb. 1985) citing AMAX, supra. In short,
agreement to pay a civil penalty necessarily establishes, for any future
purpose under the Act, that the citation was valid (even if it is not expressly
admitted or even denied). Respondent cannot claim that citations that it has
already agreed to pay are invalid.

This is consequential for our purposes
here. Respondent has agreed to pay civil penalties with respect to Citation
Nos. 8511142 and 8511143. As a result, these citations are final orders
reflecting violations of the Act and, most importantly, the assertion of
violation contained in the citations are regarded as true. That means, with
respect to Citation No. 8511142, Respondent has conceded:

The Operator failed to support or
otherwise control the roof, face and ribs of areas where persons are required
to work or travel in that there is a loose, unconsolidated coal rib located at
x-cut 26 1/2 on the 1st Main North Beltline. The Coal Rib measured 15 ft. Long,
54 inches high, and was from 1 to 10 inches thick. Also loose, unconsolidated
coal ribs were observed along the walkway through out the entire 1st Main North
Beltline entry and adjoining cross-cuts. In addition there is 2 areas along the
beltline, 1 x-cut outby the tandem drives which are unsupported in that the
corners have rolled off leaving 1 area measuring 6ft. By 6 ft and 1 area
measuring 6ft. By 7 ft. unsupported. There is also an area measuring 8ft. By 11
ft and is 25 ft. from the 1st Main North Belt Head Roller which is not being
supported in that there is 2 roof bolts with no plates…

Standard 75.202(a) was cited 47 times in
two years at mine 1502709 (47 to the operator, 0 to a contractor)…

(SX-16).
Further, Respondent has conceded that the citation was reasonably likely to
result in lost workday/restricted duty injury to two miners and that the
violation was S&S. (Id.). Finally, Respondent conceded that its
negligence was high (though not an unwarrantable failure). (Id).

With
respect to Citation 8511143, in agreeing to pay a settlement, Respondent has
conceded:

Float Coal Dust has been allowed to
accumulate on the rock dusted surfaces of the mine floor, belt structure, and
water line on the 1st Main North Beltline from the tailpiece to the header,
which is a distance of 2000 ft. The Accumulations on the mine floor were from
rib to rib and includes the adjoining x-cuts.

This Beltline was in operation at the
time of inspection.

Management engaged in aggravated conduct
constituting more than ordinary negligence by allowing this condition to exist.

This violation is an unwarrantable
failure to comply with a mandatory standard.

Standard 75.400 was cited 159 times in
two years at mine 1502709 (159 to the operator, 0 to a contractor).

(SX-1).
Further, Respondent has conceded that the citation was reasonably likely to
result in lost workday/restricted duty injury to two miners and that the
violation was S&S. (Id.). Finally, Respondent conceded that its
negligence was high and that the violation was an unwarrantable failure. (Id.).

In
light of the settlement agreements described above and the final orders created
as a result of those agreements, Respondent can no longer maintain that Citation
Nos. 8511142 and 8511143 are not hazardous. In making a settlement agreement,
Respondent has conceded the validity of those citations and the gravity and
negligence determinations therein. Those citations clearly establish clear
hazards as it relates to rib conditions and the float coal dust condition. Therefore,
my consideration of whether the on-shift examination was adequate must be made
with those hazards established as facts. Given those hazards, I reiterate my
finding that Citation No. 8511145 was valid and that the instant on-shift was
inadequate.

Respondent’s
specific arguments about the conditions cited on the day of the examination all
seek to establish that no hazard existed. I will address each of these
arguments because I believe that the record establishes that hazards, in fact,
existed. However, given Respondent’s concession that the underlying citations
were valid (as well as my own findings with respect to Citation No. 8511144) this
consideration is not really necessary. Respondent has already agreed that these
violations (and the hazards that flowed from them) existed for purposes of the
Act. All of its arguments to the contrary are therefore barred.

With respect to ribs, Respondent argued
that the rib conditions were not hazardous. (Respondent’s KENT 2013-480
Post-Hearing Brief at 23-28). It noted that Doss testified that he saw the
cracked ribs, attempted to pull them down, but found that they were not loose. (Id.
at 23). It essentially argues that there was no fall hazard here because, while
the rib was cracked, there was no chance of an imminent fall. (Id.). It
argues that a cracked rib is different from a loose rib. (Id. at 26). Respondent
noted that Pollard admitted that the rib had been in the cracked condition for
some time, and thereby conceded that it had done so without causing a fall or
danger. (Id.). Respondent summarized by saying that the Secretary had
only proven a cracked rib, not a violation of §75.202(a) at the time of the
examination or that the exam was inadequate. (Id. at 27-28).

I credit the
testimony of investigator Smith and Inspector Pollard that the ribs in this
entry were in fact hazardous. (Tr. 179-180). I further credit Pollard’s
testimony that while some of the ribs could not be pulled, they were still
hazardous because they could still fall at any time. (Tr. 284). Even Little
testified that ribs are hazardous. (Tr. 326). Despite these hazards, the ribs
were not recorded or flagged in any way. (Tr. 326-327). Pollard’s concerns over
rib conditions were justified by the fact that they were a leading cause of
injury in coal mines. (Tr. 180, 297). The large gap observed by Inspector Smith
was not merely a “crack,” it was an indication that these ribs were not fully
secured. (Tr. 284). I see no reason to find, as a matter of law, that a rib was
not hazardous because a miner with a 3-foot pry bar could not pull it down
after a few moments of effort. The intense weight of the coal as well as the
various stresses that the mining environment placed on the rib were far greater
than the miner’s leverage. Even if the examiner could not pull the rib, the rib
could still have fallen at any time. Further, even if Doss attempted to pull
the ribs and found that he could not, that does not excuse his failure to flag
the ribs or record their existence so that miner would be aware that the rib
could fall in the future.

In a related argument, Respondent
asserted that Pollard could only discuss one loose rib in particular and did
not know how many loose ribs were present. (Respondent’s KENT 2013-480
Post-Hearing Brief at 24-25). As Respondent sees it, “[h]e excused his
failure by saying that he simply could not be bothered to fill out a ‘bunch of
continuation pages’ in his notebook. (Id. at 25). Similarly, Smith had a
camera but only took a photograph of one rib. (Id). Respondent claims
that, other than the one rib discussed at length, all other alleged rib
conditions should not be considered. (Id.).

The Secretary provided credible testimony
that there were loose ribs throughout to entry. (Tr. 168, 220, 252, 285). I see
no reason to believe that Pollard fabricated the existence of other loose ribs
in order to frame Respondent. Pollard further discussed one of the loose ribs
at great length which provided valuable, general information about the hazards
posed by the ribs. The same is true of Smith’s photograph. I do not believe the
Secretary’s failure to document, at length, each of the instances in which
Respondent did not meet the requirements of the Act should be held against the
Secretary from an evidentiary standpoint. In depth testimony about each rib
would have been needlessly cumulative.[20] The record clearly
establishes several loose, hazardous ribs.

Respondent also argued that Doss had
found one loose rib during his examination and he had corrected it. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 25). All of the other ribs found by
MSHA were not loose enough to pull. (Id.). According to Respondent, this
showed that Doss was diligently addressing rib problems and that the
examination was adequate. (Id.).

Doss testified that he saw and pulled a
single loose rib during his examination. (Tr. 309-312). He also testified that
he tried, and failed, to pull other ribs at other times. (Tr. 316, 325). However,
as Pollard explained, the inability to pull a rib does not mean that those ribs
were not hazardous. (Tr. 284). Further, even if Doss could not pull the ribs
that does not excuse his failure to record or flag the ribs as potential
hazards in the future.

Next, Respondent argued that every violation
does not give rise to an inadequate examination and that an on-shift should be
considered in light of what a reasonably prudent person would do in the same
circumstances. (Respondent’s KENT 2013-480 Post-Hearing Brief at 26). It
asserted that even if there was a valid rib citation, that does not necessarily
prove the examination was inadequate. (Id.). Respondent argued that the
standard is for an adequate examination, not a perfect examination, and that
the Secretary does not merely need to prove Doss “could have done a better
job.” (Id. at 26-27).

Respondent is correct that not every
violation should give rise to a citation for inadequate examination. Perhaps an
entry with a single loose rib and no other conditions would be a poor candidate
for such a citation. A perfect examination is not required. Of course, no one
has argued that a single rib condition would be sufficient to form the basis
for the instant citation. Doss’ examination was a far cry from “just shy of
perfect.” There were rib conditions throughout the entire entry. (Tr. 168, 220,
252, 285). There was dry float coal dust spread evenly throughout the entry. (Tr.
201, 208, 220-223, 233-234, 259-260, 272). There was a belt rubbing the belt
structure. (Tr. 221, 245-246). And there was extraneous material strewn around
the entry. (Tr. 220, 251, 277, 333). All of these conditions were, to varying
degrees, obvious. They were simultaneously found by two MSHA officials who were
not coordinating their efforts. Given the sheer number of hazardous conditions
that were not recorded or corrected, the examination was clearly inadequate.

Respondent also argued that it had taken
other precautions to ensure the safety of the ribs in the area. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 27). In particular, Respondent noted
that it set timbers in the correct manner and installed truss bolts. (Id.).

With respect to
timbers, I credit the testimony of Smith that the timbering here was a mere
“token effort” and that they were not supporting the ribs. (Tr. 193). Specifically,
he noted that they were not installed properly. (Tr. 191). I also credit
Pollard’s testimony that the timbers were not placed everywhere; some places
had loose ribs with no timbers. (Tr. 193, 284-285). I also note that Doss
conceded that truss bolting did not occur in all areas of the entry and that Respondent
was not truss bolting the area at the time of the citation. (Tr. 303-304).

More important
than this testimony, as it pertains to safety precautions, the proof is in the
pudding. If Respondent was taking meaningful efforts to ensure the safety of
the ribs there might have still been some loose or cracked areas. However, the
entire entry would not have been full of broken ribs, as Pollard testified it
was. The fact that Respondent’s efforts were insufficient is confirmed by the
fact that Doss conceded that Respondent became more aggressive in securing the
ribs after the citation. (Tr. 333). If Respondent was taking proper
precautions, this would not have been necessary.

Once again Respondent argued the
examiner was traveling in the opposite direction of the inspection group and
that people traveling in different directions can see different things. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 27). Similarly, it noted that the
examination team had four head lamps instead of one. (Id.). This
argument is rejected here for the same reasons as with the other citations at
issue here; Respondent is tasked with finding conditions regardless of the
direction or the number of people involved in the examination. If examiners
cannot find all of the hazardous conditions present given the direction of
travel and the amount of light, Respondent should use more examiners or give
the examiners more lights.

In light of the foregoing, I reiterate
my finding that the ribs in the entry were hazardous, obvious, and not
reported. Therefore, they are perfectly appropriate as one basis for an
inadequate examination citation.

As with the rib conditions, Respondent
presented several argument for the proposition that the float coal dust
condition could not form the basis of an inadequate examination citation. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 28-34). First, Respondent noted that
while Smith testified that his photograph (SX-11) clearly showed float coal
dust on top of the rock dust, the photograph showed no float coal dust. (Id.
at 28). It argued that Smith’s photographs were practically useless and that
distinguishing between the float coal dust and rock dust (which looked dark
because of water) was difficult. (Id. at 29-30 citing Tr.
201-202, 261, 311, 349). This problem was especially important because Smith
had no memory of the condition beyond the photograph. (Id. at 28 citing
Tr. 200-201).

As with
photographs SX-7 and SX-8 supra, I found the photograph to be dark and
difficult to discern. I cannot tell what dark material is float coal dust and
what is simply the darkness surrounding the flash. But, once again, Respondent
was not cited for being photographed with float coal dust. Inspector Smith and
Investigator Pollard credibly testified that they observed float coal dust in
the area and that the float coal dust was dry and uniformly spread throughout
the entry. (Tr. 261, 281). I do not believe that Inspector Smith and
Investigator Pollard lied about the existence along the entry. Further, even if
the photographs were clearer and I could see the black material on the
structure, I would not be able to tell if it was float coal dust or some other
material (like wet rock dust). I would still rely on the testimony of the
witnesses I found to be most credible. In this instance, that would be Inspector
Pollard and Investigator Smith.

In a related argument, Respondent asserts
that Smith also says that some photographs show adequate rock dust, but tries
to “dodge’ and say that the rock dust was not the point of the photographs. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 30, citing Tr. 203-207). It
further notes that Smith admitted that at other times he would not have cited
the area for the float coal dust in the photographs. (Id. at 30-31). While
Respondent admits that Smith also stated he even though he may not have cited
the condition it may still have been a violation, this was a contradiction of
the inspector’s oath and the law. (Id. at 31).

Smith credibly testified that he took
photographs of various areas of the mine entry based on conditions that he
observed. He observed float coal dust, but also many other conditions. (Tr. 169-182,
208). As a result, most of his photographs were designed to show other
conditions, not the float coal dust. It is entirely reasonable that some of
these photographs would show varying levels of float coal dust. While there was
float coal dust uniformly throughout the entry, that does not mean that every
area would necessarily have visible float coal dust. Beyond that, Smith did not
write the citation for float coal dust. Pollard did. Pollard’s credible
observations are the primary basis for believing that float coal dust existed
in this area. Smith’s observations, because they did not form the basis for the
citation, simply support those observations.

Smith’s statement that the condition (as
shown in the photographs) may have been a violation but that he may not have
written a citation hinges on the concept of prosecutorial discretion. Perhaps
Smith believed that the photographs showed a marginal case and that, in his
opinion, a citation would not have been issued. It seems odd that Respondent
would argue with the idea that all minor violations need not be prosecuted as
though they are major violations.

Further, these photographs do not
capture the entire entry. While the photographs might not have shown conditions
sufficient to support a citation that does not mean that the entry as a whole
did not have sufficient float coal dust to support a citation.

Finally, this is all theoretical, as
Pollard, not Smith, was the actual MSHA official who issued the citation. His
observation, that there was uniform float coal dust throughout the entry, was
the primary basis for finding the hazard existed.

Respondent further argued that evidence
regarding the alleged condition was available, but not collected and asserts
that this should raise an inference that the evidence would have disproved the
citation. (Respondent’s KENT 2013-480 Post-Hearing Brief at 31). Specifically,
it notes that no sample was taken of the alleged float coal dust. (Id. citing
Tr. 362). As a result, the citation rests on Pollard’s word, though even Pollard
admitted that different inspectors might disagree. (Id. at 32 citing
272-273).

Respondent cites no authority for the
proposition that an inspector’s observations about conditions is insufficient
to serve as the basis for a citation. I reiterate that I credited Pollard’s
testimony as it related to float coal dust. In fact, as noted earlier,
nothing beyond the testimony of an inspector is necessary to support a
citation. See Buck Creek Coal, Inc., 52 F.3d at 135-36. In the absence
of any legal authority to the contrary, I see no reason to disbelieve the
inspector’s actual observations because he could have made additional
observations.

Respondent also argued that Doss and
Little testified that they saw no float coal dust. (Respondent’s KENT
2013-480 Post-Hearing Brief at 32 citing Tr. 349). It argues that
Doss’ request for additional rock dusting in the area was a “dangerous red
herring.” (Id. at 33). Respondent argues that Doss’ earlier notations
were an example of a conscientious examiner who wanted to take care of issues before
action was required. (Id.). It noted that there was no evidence that the
previous examinations were inadequate. (Id.). In fact, Doss’ request is
evidence that his examinations were adequate; Respondent’s failure to follow up
on those earlier requests does not mean that the examination was inadequate. (Id.).
Respondent asserted that Pollard admitted the previous examinations were
adequate. (Id. at 34). Respondent fears that a citation for Doss’
proactive attitude towards enforcement will create a chilling effect on
operators, preventing them from getting ahead of violations. (Id.).

The citation was issued because, inter
alia, Pollard observed float coal dust in the entry just minutes after Doss
had completed his examination and that float coal dust was not recorded. (Tr. 219,
301, 304, 319-320). Whether the previous examinations were adequate or not is
completely immaterial to whether a hazard existed at the time the citation was
issued. One adequate examination in the past does not inoculate against future
inadequate examination, especially when the previous examination is not
followed up with corrective action.

Further, the fact that Doss saw that the
entry needed cleaned for three days prior to the instant citation, noted the
condition, saw no change in it after his recordings, and then failed to record
the condition on the fourth day does not show that Doss was a conscientious
examiner or that Respondent was trying to “get ahead” of violations. It shows
that conditions existed at the mine, that they were not corrected, and that if
they were not corrected there were no consequences. Eventually, the examiner
would stop noting the hazardous conditions at all. If the inspector had not
noticed the float coal dust, there is no guarantee it would have ever been
cleaned. If Doss would like to note that conditions exist before they become
hazardous, that impulse is admirable. But if Respondent wishes to benefit from
that admirable impulse, it must then also take action before a hazard occurs.

Once again, I reiterate my finding that
the float coal dust in the entry was hazardous, obvious, and not reported. Therefore,
that is perfectly appropriate as one basis for an inadequate examination
citation.

As with the other conditions, Respondent
presented several arguments for the proposition that the belt rubbing could not
form the basis of an inadequate examination citation. (Respondent’s KENT
2013-480 Post-Hearing Brief at 34-35).

First, Respondent argues that the
citation should be vacated and, as a result, cannot form the basis for an
inadequate examination violation. (Respondent’s KENT 2013-480 Post-Hearing
Brief at 34). For the reasons given supra with respect to Citation
No. 8511144, this argument is rejected. The allegations in that citation are
supported by a preponderance of the evidence.

Respondent also argued that even if the
belt was rubbing, it may not have been rubbing while Doss conducted his
examination. (Respondent’s KENT 2013-480 Post-Hearing Brief at 34-35 citing
Tr. 348). It pointed to the fact that Doss testified that the belt was not
rubbing at the time of the examination. (Id. at 35). It asserted that
only a reasonable examination is needed, MSHA conceded that he may have missed
the belt. (Id. at 35). As discussed supra, while the belt might
not have been rubbing at the time of the inspection, the violation still
occurred. Further, there were other indications (the warm belt and the belt
shavings) that should have indicated to Doss that a problem had occurred. (Tr. 226,
248).

2.     
The
Violation Was Reasonably Likely to Result in Lost Workday/Restricted Duty
Injury To Two Miners And Was Significant And Substantial In Nature.

Inspector Pollard marked the gravity of
the cited danger in Citation No. 8511145 as being Reasonably Likely to result
in Lost Workday/Restricted Duty Injury to two miners. (SX-6). Pollard also
determined that the violation was S&S. (SX-6). These determinations are
supported by a preponderance of the evidence.

Regarding the first element of S&S -
the underlying violation of a mandatory safety standard – it has already been
established that Respondent violated 30 C.F.R. §75.362(b).

With respect to
the second element of Mathies, a discrete safety hazard – that is a measure of
danger to safety – contributed to by the violation – was also met. The
Commission has recognized examinations as “of fundamental importance in
assuring a safe working environment underground.” Buck Creek Coal, 17
FMSHRC 8, 15 (Jan. 1995); see also Jim Walter Resources, Inc., 28 FMSHRC
579, 598 (Aug. 2006). MSHA requires several layers of examinations, including
on-shift, preshift, and weekly examinations, in order to ensure miner safety.
“These examinations are designed to create a multi-layer, prophylactic approach
to the identification and correction of hazardous or unsafe conditions in the
mine.” Coal River Mining, LLC, 34 FMSHRC 1087, 1095 (May 2012) (ALJ). The
Secretary presented credible evidence that there were four different hazardous
conditions located in the 1st Main North belt entry, including float
coal dust, rubbing belts, extraneous material, and loose ribs the. The rubbing
belt created friction that made a fire or smoke more likely. The belt and the
area near the rubbing belt were dry and there was float coal dust on the
structure. (Tr. 286-288, SX-8) The float coal dust would similarly have helped
cause an ignition or explosion. (Tr. 246-247). The extraneous materials would
serve as an additional fuel source in a fire. (Tr. 278). Further, the loose
ribs were in danger of falling across the entry where miners worked and
traveled. (Tr. 179-180, 255). Clearly, the failure to recognize and correct
these conditions with an adequate examination contributed to the danger of a
fire, inundation of smoke, explosion, or crushing injury. (Tr. 255).

The third element of the Mathies test –
a reasonable likelihood that the hazard contributed to will result in an injury
– was also met. As discussed supra, it is likely that in the event of a
fire that two miners in the entry would be affected by smoke or by the fire
directly, resulting in injuries. (Tr. 255). Miners sent to fight the fire would
also be affected and receive injuries. In the event of an explosion, miners in
the entry, or even in the adjacent travelway, would be affected and could
suffer injury. (Tr. 255). In the event of a rib fall, mine examiners or
mechanics in the area would be affected. Therefore, the third prong of Mathies
is met.

The fourth and final prong of Mathies
– a reasonably likelihood that the injury in question will be of a reasonably
serious nature – was also met. Under Mathies, the fourth and final
element that the Secretary must establish is that there was a “reasonable
likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573, 1574 (July
1984). The lost workday/restricted duty injuries that would be most likely to
occur, specifically smoke inhalation and burns, would be sufficiently serious
to result in an S&S designation. Broken bones or lacerations would
similarly meet this standard. Therefore, the fourth prong of Mathies is
met.

In the event of
a fire or explosion, the Secretary presented credible evidence that miners
would suffer lost workday/restricted duty injuries from burning or smoke
inhalation. (Tr. 247). Further, miners in the adjacent travelway would be
affected in the event of any explosion. (Tr. 248). As with Citation No. 8508512
supra, miners fighting fires would also be affected by burns and smoke inhalation.
(Tr. 26, 29). The Secretary also provided credible evidence that a fallen rib
could cause lost workday/restricted duty injuries like broken bones or
lacerations.
(Tr. 255).

Respondent presented several arguments
for the proposition that the inadequate examination was not S&S. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 36). However, none of these arguments
are compelling.

First, Respondent stated that “the
Secretary did not put on any evidence specific to citation No. 8511145 that
Doss’s alleged inadequate examination was reasonably likely to cause an
injury.” (Respondent’s KENT 2013-480 Post-Hearing Brief at 36). Respondent
included several arguments as to why the specific conditions could not have
resulted in injuries. (Id. at 36-37). Regardless of the merits of this
claim, it is wholly irrelevant here. Respondent conflates the second and third
prong of Mathies. As discussed at length, the Secretary does not need to
prove that the violation (Doss’ examination) would result in an injury. Musser
Engineering, Inc., 32 FMSHRC at 1281. The Secretary need only prove that
the hazard contributed to by Doss’ examination would result in an injury. Id.
Here Doss’ examination gave rise to smoke, fire, explosion, and rib collapse
hazards. Undoubtedly those hazards would cause injury.

Respondent also argued that Citation No.
8511141 (for the extraneous material) was marked as “unlikely” and further
asserted that it had proven that Citation Nos. 8511142 and 8511143 were
unlikely. (Respondent’s KENT 2013-480 Post-Hearing Brief at 36). It
further argued that it had demonstrated that Citation No. 8511144 was not
S&S. (Id.). However, as discussed length supra, by agreeing
to settle Citation Nos. 8511142 and 8511143, Respondent has conceded the
content of those citations. Old Ben Coal Co., supra. Both
citations are therefore reasonably likely and S&S. Also, Citation No.
8511144 was found S&S supra. As these citations form the basis for
this citation, it would be reasonable that the inadequate examination that
failed to catch them would also be S&S.

Once again, I
note that an inspector’s opinion regarding S&S is accorded substantial
weight. Harlan Cumberland Coal Co., 20 FMSHRC at 1278-79, Buck Creek
Coal, Inc., 52 F.3d at 135-36. Here, Pollard credibly testified that the
citation was S&S. As a result of the inspector’s opinion and, more
importantly, the factors discussed above, I find that the Secretary proved the
likelihood of injury, the severity of that injury, and the S&S designation
by a preponderance of the evidence.

With respect to
the number of persons affected, the Secretary presented credible evidence
that if smoke, fire, or explosion were to occur the belt examiner and belt
cleaner would be affected. (Tr. 248). Further, the miners in the belt entry
would also face injury. (Tr. 248). Pollard marked this citation as likely to
affect 2 people because there was a belt examiner and belt cleaner in the area.
(Tr. 248). Further, the belt entry was parallel to the travelway and anyone in
that area would also be affected. (Tr. 248). The loose ribs would affect the
examiners and mechanics in the area. (Tr. 255).

In short, the
preponderance of the evidence shows that Citation No. 8511145 was reasonably
likely to result in lost workday/restricted duty injuries to two persons and
was S&S.

3.     
Respondent’s
Conduct Displayed “High” Negligence.

In the citation at issue, Inspector Pollard
found that the operator’s conduct was highly negligent in character. (SX-6). The
substantial evidence supports this designation.

With respect to knowledge, the factual
situation presented here is substantially similar to the other citations
discussed herein. A mine examiner had passed through the area just minutes
before the inspector discovered and cited the violative condition. (Tr. 219,
301, 304, 319-320). In fact, the
inspector found the examiner, Doss, just as he was completing his examination. The
examiner had traveled the belt entry and past the area where all four
conditions were found and did not record them. I credit Pollard’s testimony that
this violation exhibited “high negligence’ because he did not believe that Doss
could travel the belt line and not see the conditions. (Tr. 251-252, 256). Further,
Doss had listed the dust condition in the book for three days. (Tr. 256, 273). As with the
previous citation, the examiner was an agent of Respondent and his actions were
imputable to the operator. Whayne Supply Co., supra; Rochester
& Pittsburgh Coal Co., supra; and Southern Ohio Coal Co.,
supra. Furthermore, the underlying citations were the result of high
levels of negligence. Citation No. 8511141 was the result of moderate
negligence, Citation No. 8511142 was the result of high negligence, Citation
No. 8511143 was the result of high negligence and an unwarrantable failure, and
Citation No. 8511144 was the result of moderate negligence.[21]
As a result, Respondent knew or should have known about the cited condition but
took no action. Therefore, Respondent was negligent.

Respondent argued that it did not have knowledge
of the cited condition and therefore, cannot be negligent. (Respondent’s KENT
2013-480 Post-Hearing Brief at 35-36). However, Respondent’s arguments are
not compelling.

Respondent first
argued that the fact that Doss listed that the area needed to be cleaned for
three days before the instant citation should not be considered knowledge
because of the same chilling effect on “getting ahead of the violations” that
was discussed supra, in the section regarding the validity of this
citation. (Respondent’s KENT 2013-480 Post-Hearing Brief at 35). For the
same reasons discussed there, this argument is rejected.

Respondent next
argued that a condition is not obvious just because the Inspector sees it and
the examiner does not. (Respondent’s KENT 2013-480 Post-Hearing Brief at
35). It argued that if this were the case, any citation would be high
negligence because they always involve conditions that an inspector sees but an
examiner does not. (Id.). This is essentially the same argument
Respondent made with respect to Citation Nos. 8508232 and 8508512 and is
rejected for the same reason. The issue is this particular citation and what
the examiner knew or should have known.

Next, it argued that the fact that Doss
conducted a timely exam and had no actual subjective knowledge of the condition
was a considerable mitigating factor.  (Respondent’s KENT 2013-480
Post-Hearing Brief at 36). As discussed at length supra, whether
Respondent had actual subjective knowledge is immaterial to a negligence
finding. The issues is whether he should have known. In this case, with all of
the various hazardous conditions, Doss should have known, regardless of his
subjective level of knowledge.

Finally,
Respondent argues that Pollard admitted that the condition cited in Citation
No. 8511144 may not have been present during the examination. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 36). While Pollard admitted that the
belt might not have been rubbing during the examination, he explained that
other conditions (specifically, the belt shavings and heat) should have alerted
Doss that something was wrong. (Tr. 226, 248). Further, the other conditions,
especially the float coal dust and the loose ribs, were far more obvious and
should have been recorded.

Having found the requisite knowledge,
the next issue is whether there were any mitigating circumstances. I do not
find any conditions existed that in any way mitigates this citation. There were
several obvious and very hazardous conditions in the entry, Doss conducted an
examination of the area, and nothing was recorded.

Respondent argued that there were
considerable mitigating circumstances with respect to this citation. (Respondent’s
KENT 2013-480 Post-Hearing Brief at 36). However, the record does not
support Respondent’s assertions.

Specifically Respondent argued that the
Secretary alleged no history of violations or reason to believe that Respondent
was on notice for this condition. (Respondent’s KENT 2013-480 Post-Hearing
Brief at 16-17). While it is true that Respondent did not have a large
number of citations for inadequate examinations in the recent past, it was on
Notice. Doss testified that Smith told him during the inspection that he should
do a better job examining the area. (Tr. 323). At hearing, Doss dismissed this
advice stating “[e]very inspector tells us that.” (Tr. 323). This is a very
troubling statement. Respondent apparently does not take the MSHA inspectors at
their word and work to improve the way examinations are conducted. Instead, as
Doss demonstrates here, they assume the inspectors are just speaking to hear
themselves talk. Respondent was clearly on notice and unfortunately chose not
to take that notice. As stated previously, willful ignorance is not mitigation.

4.     
Penalty

In this matter, the Secretary proposed a
penalty of $3,689.00 for Citation No. 8511145. Having affirmed the Secretary’s
determinations in all respects, no deviation from the proposed penalty is
necessary. In fact, the proposed penalty is appropriate under the Act. Therefore, Respondent is hereby ORDERED to pay a civil
penalty in the amount of $3,689.00.

ORDER

It is hereby ORDERED that
Citation Nos. 8508232, 8508512, 8511144, and 8511145 are AFFIRMED as
amended.

Respondent is ORDERED to pay
civil penalties in the total amount of $15,096.00 within 30 days of the date of
this decision.[22]

/s/ Kenneth R.
Andrews

Kenneth R.
Andrews

Administrative
Law Judge

Distribution:

Paige
I. Bernick, Esq., U.S Department of Labor, Office of the Solicitor, 211 7th
Avenue North, Suite 420, Nashville, TN 37219

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

Jeffrey
K. Phillips, Esq. and Candace Smith, Esq., Steptoe & Johnson PLLC, 2525
Harrodsburg Road, Suite 300, Lexington, KY 40504

/tjb

[1] Hereinafter the
Joint Exhibits will be referred to as “JX” followed by the number. Similarly,
the Secretary’s Exhibits for KENT 2013-112 will be referred as “GX” and
Respondent’s Exhibits will be referred to as “RX.” Secretary’s Exhibits for
KENT 2013-480 will be referred to as “SX” and Respondent’s Exhibits will be
referred to as “HX.”

[2] Hereinafter the
transcript will be cited as “Tr.” followed by the page number.

[3] MSHA Coal Mine
Inspector Paul Raymond Hargrove was present and testified for the Secretary. (Tr.
58-59). Hargrove graduated from high school in 1966, received an associate
degree in 1972, and started in the mines in March 1975. (Tr. 59, 61). He worked
for several companies on various equipment. (Tr. 59-60). He held current
surface and underground high and low electric and mine foreman certifications
in Kentucky and Illinois. (Tr. 60). Hargrove began at MSHA in February 2006.  (Tr.
60). He received 21 weeks of training in three to four week sessions punctuated
with two to three months of on-the-job training with an authorized
representative. (Tr. 60). He received refresher training at the Academy one
week each year (or two weeks every two years), regularly online, and quarterly
at the district. (Tr. 61).

[4] An EO1
inspection is a regular inspection of the mine in its entirety, including the
belt line, air, equipment, rock dust, respirable dust, and noise. (Tr. 62).

[5] Bryan Keith
Branson appeared at hearing and testified for Respondent. (Tr. 105). He started
in the mines on November 2, 1993 and worked for several companies running
various equipment and conducting examinations. (Tr. 105-106). Two years before
the hearing, he moved to the Safety Department as a safety supervisor. (Tr.
106-107). Branson’s duties as safety supervisor included traveling with the
inspectors, correcting hazards, and making sure miners wore their personal
protective equipment. (Tr. 108-109). He had mine foreman papers, an electrical card,
MET and MET instructor certification, a surface card, a mine rescue trainer
certification, an underground instructor certification (state and federal), and
a shot fire card. (Tr. 107).  Branson did not take any notes but did record
conditions when he reached the surface. (Tr. 124).  Branson was confident he
could remember details from two years earlier. (Tr. 124-125).

[6]
The belt
examiners were union, non-management employees. (Tr. 45). However, when belt
examiners are conducting an examination, they are agents of the operator. (Tr.
54, 99, 121, 144).

[7] Respondent provided several arguments to prove that
Inspector Hargrove’s testimony, in general, was not credible. (Respondent’s KENT
2013-112 Post-Hearing Brief at 37-40). Specifically, it argued that Hargrove
was cagey when answering questions about pry bars, the he made mistakes in his
notes, that he exaggerated his ability and simply guessed at the time the
condition existed and the weight of materials, and that he stated different
heights for the coal ribs at different times. I decline the opportunity to
determine that Inspector Hargrove, as a rule, was not credible at hearing. As
noted supra, Hargrove was credible on the issue the validity this
citation. However, I considered Respondent’s objections to Hargrove’s
testimony, where relevant, when considering each of these specific issues.

[8] The fact that there were no flags or notations
further indicated that the material had fallen, rather than been pulled down.

[9]Coal Mine
Inspector Coburn was present at the hearing and testified for the Secretary. (Tr.
11). Coburn graduated from high school in 1969 and served four years in the
military. (Tr. 12-13). He worked for several companies running various
equipment and conducting examinations. (Tr. 11-12). In 1989 he went to MSHA and
received extensive training and has since received refresher training. (Tr.
12). Coburn was certified as an electrician and mine foreman. (Tr. 12). Coburn
made notes contemporaneously while underground. (Tr. 39, GX-2).

[10] Guy G. Scisney,
Jr. was present at the hearing and testified for Respondent. (Tr. 127). He had
worked continuously in the mining industry since December 1, 1970. (Tr. 128). At
the time of the hearing Scisney was employed as a mine examiner at Highland
Mine and had been since 2003 or 2004. (Tr. 127, 129). Scisney received foreman
papers in 1977 and filled in as an extra examiner for 14 years for three
companies. (Tr. 129-130). As an examiner, he would examine belts, pre-shift
units, pre-shift outby installations, check for hazards, look out of the
welfare of miners, and try to comply with state and federal law. (Tr. 127). Scisney
was a union rep, not management. (Tr. 127-128). He was certified as a mine
emergency technician and received the Joseph Holmes Award for working 43 years
without an injury or unexcused absence. (Tr. 128). Scisney’s threw his actual
notes out after transferring them to the record book. (Tr. 147-148).

[11] Of course, it was also possible that Respondent’s
frames were riddled with grooves cut by misaligned belts and that any place
where the belts went out of alignment would necessarily come in contact with
old grooves. However, if that were the case, it would not speak well of
Respondent’s care and attention to its belt. Regardless, there is no evidence
on record to support a claim either that these frames were old or that the
frames were in general disrepair.

[12] Kirby Grant
Smith was present at the hearing and testified for the Secretary. (Tr. 159). He
was a senior special investigator at MSHA. (Tr. 159). Before joining MSHA in
1978 he worked in the mining industry for six years running various equipment. (Tr.
160-161). He was a certified Alabama mine foreman and electrician and conducted
various kinds of exams. (Tr. 161-162). Smith had held several specialized
positions. (Tr. 160).  As a senior special investigator, he investigated 105(c)
complaints, accidents, and hazards. (Tr. 160). Smith took photos during the
inspection before abatement. (Tr. 167-168, 175, 187-190, 196, 223). He relied
on them to refresh his memory. (Tr. 175, 200). His photos did not state the
location, so he could not tell where they were taken. (Tr. 187). Smith did not
coordinate his photos with Pollard, but Pollard stated they accurately
confirmed some of the conditions he saw. (Tr. 223-224).

[13] Sammy Joe
Pollard, Jr. was present at the hearing and testified for the Secretary. (Tr.
212). Pollard had been a coal mine inspector for MSHA since March 2009. (Tr.
212, 276). Before that, Pollard worked in the mining industry on various
equipment. (Tr. 212-214). Pollard was a certified foreman in Illinois and
Kentucky. (Tr. 213). He worked as a foreman for about two years and conducted
pre-shift exams (including exams of ribs and belts). (Tr. 213-214). When
inspecting belt, he would look for obvious hazards including loose roof, ribs,
coal dust, bad rollers, belt rubbing, and air conditions. (Tr. 213-214). Pollard took 40
pages of notes, which included arrival time, enforcement actions, and actions
taken. (Tr. 228-229, SX-2).

[14] Travis Little
was present at the hearing and testified for Respondent. (Tr. 334). Little was
employed in Respondent’s Safety Department. (Tr. 335). Little had worked in the
industry for 19 years working on various equipment and working in mine rescue. (Tr.
335-336). He was certified as an underground and surface miner and foreman in
Kentucky, he was an MET, an EMT, an MET instructor, an underground instructor,
and a CPR instructor. (Tr. 336). Little took notes, but they were in his
desk and he did not give them to Respondent’s attorney. (Tr. 360).

[15] Terry Edwin
Doss was present at the hearing and testified for Respondent. (Tr. 294). He
spent 17 years in the mining industry running various kinds of equipment. (Tr.
295-296). Doss was a certified miner and foreman in Kentucky but he was a union
member, not management. (Tr. 295-297). At the time of the hearing, he was laid
off but at the time of the citations he worked as a belt examiner for
Respondent and conducted various examinations. (Tr. 298-299). At hearing, Doss
did not review his notes because, thinking the issue was over, he had thrown
them out six months earlier, saving only the inspection books. (Tr. 321-322).

[16] The foreman,
having signed, was responsible for corrections. (Tr. 238-239). MSHA had spoken with
Respondent many times about not listing conditions in their books and failing
to make or record corrections. (Tr. 242-243, 259, 275). Pollard did not believe
that Respondent had simply forgotten to record corrections here, there was no
recent rock dust.  (Tr. 283).

[17] Smith did not
recall stating in his deposition that the photographs did not show physical
contact with the belt conveyors. (Tr. 198-199).

[18]
Respondent’s
tracking system had sensors every 500 feet that would record a miner’s
location. (Tr. 340-342). Little was always within 500 feet of Smith and
Pollard. (Tr. 359).

[19] As will be
discussed infra with respect to Citation No. 8511145, Respondent has
essentially conceded that the Inspector’s observations with respect to the
location and amount of float coal dust were accurate.

[20] It should
further be noted that in light of the discussion regarding the settlements supra,
the Secretary may have chosen to present less evidence regarding the number of
loose ribs and their exact nature because he was relying on the fact that
Respondent had already admitted to the existence of these conditions.

[21] Once again,
these are final designations based (with respect to Citation Nos. 8511141,
8511142, and 8511143) on previous settlements and (with respect to Citation No.
8511144) my findings above.

[22] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390