CAM Mining, LLC v. Secretary of Labor

Read the official release (fmshrc.gov)

Plain-English summary

During retreat mining at CAM Mining's No. 28 Mine, an inspector found that the outby coal stumps left for roof support across a mined row were smaller than the six-foot minimum in the approved roof-control plan. Judge Kenneth R. Andrews credited the inspector's direct observations, measurements, notes, and experience over mine witnesses who viewed different areas after the breaker line had been moved. He held that the undersized stumps violated 30 C.F.R. § 75.220(a)(1) and reduced roof support for miners working just outby. The judge also held that preshift examiners must look from the breaker line into the recently mined row for roof-control violations, because the examination expressly covers roof-control standards and approaches to worked-out areas. He affirmed the roof-control citation and inadequate-preshift order as validly issued.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1) and 75.360(b)(3)
• Outcome: The roof-control citation and preshift-examination order were affirmed as issued.
• Key point: Retreat-mining compliance is measured by the coal actually left after cutting, and preshift examiners must check visible residual stumps for roof-control violations from the breaker line.

Full text (FMSHRC public release)

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

August 19, 2014

CAM
MINING, LLC,

Petitioner

v.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Respondent

CONTEST
PROCEEDINGS

Docket
No. KENT 2013-196-R

Citation
No. 8273702; 10/17/2012

Docket
No. KENT 2013-197-R

Order
No. 8273703; 10/17/2012

Mine
ID: 15-18911

Mine:
No. 28

DECISION

Appearances:               Mary
Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,                                      Nashville,
Tennessee, on behalf of the Secretary of Labor

Mark
E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West                                      Virginia,
on behalf of Contestant Cam Mining, LLC

Before:
Judge Andrews

STATEMENT OF THE
CASE

These
contest proceedings are pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or “Act”).  A
hearing was held on an expedited basis in Pikeville, Kentucky on January 10,
2013, at which the parties presented testimony and documentary evidence.  This
matter concerns Citation No. 8273702 and Order No. 8273703 both issued on
October 17, 2012 under Section 104(d)(1) of the Act.  After the hearing, Post
Hearing Briefs and Reply Briefs were submitted.[1] 
The issue presented is whether the citation and order were validly issued.

JOINT
STIPULATIONS

The
parties agreed to the following stipulations at the hearing:

Cam
Mining, LLC is subject to the Federal Mine Safety and Health Act of 1977,
as amended (“the Mine Act”).

At
all relevant times, Cam Mining, LLC and the mine, No. 28, mined and
produced coal which entered Commerce, or had operations or products which
affected commerce, within the meaning of the Mine Act.

Cam
Mining, 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 the case and issue a decision.

At
all relevant times, Cam Mining, LLC was an “operator,” as defined in the
Mine Act, at the mine No. 28, when the citations at issue in this
proceeding were issued.

The
mine, No. 28, is a “coal or other mine” within the meaning of the Mine
Act.

Cam
Mining, LLC is a large operator, and imposition of a reasonable penalty
will not affect the ability of Cam Mining, LLC to remain in business.

Each
of the citations at issue in this proceeding was properly served by a duly
authorized representative of the Secretary of Labor, Mine Safety and
Health Administration, upon an agent of Cam Mining, LLC.

DEFINITIONS
AND PREMLINIMARY MATTERS:

The
Citation and Order in the instant case were issued during retreat mining. 
Retreat mining consists of a “pillaring” process where the coal pillars
that are left for roof support after advance mining are later mined as the
miners and machinery “retreat” back out of the mine. See, Excel Mining v.
Secretary of Labor, 34 FMSHRC 99, 102.  When retreat mining, the coal is
taken out of these large pillars or blocks according to a specific sequence and
to dimensions prescribed in the approved Roof Control Plan (“RCP”). Id.

To
avoid confusion, it is necessary to assign a common meaning to different terms
used by witnesses to describe the same or similar things.  Therefore, in this
decision the following terms will be used:

Pillar - this will describe the large
60 foot long by 50 foot wide blocks of coal left for roof support as mining
advances into a coal seam.  “Pillar” and “block” share the same meaning and
both will be used in this decision.

Cuts - this term will describe the 12-foot
wide parts of the pillar or block of coal that are mined or cut out. Exhibit
Rx-E.  Witnesses also used the terms “sumps” and “lifts” and these have the
same meaning, but “cut” will be substituted in this decision.

Stump - this will describe the
material left at the outby corners of each pillar or large block of coal after
all cuts have been taken out of the pillar.  This stump extends from the floor
to the roof of the mine.  Witnesses also referred to this as a corner.  The RCP
refers to that part of a pillar not to be mined as the “stump” and also as the
“outby corner”. Exhibit Gx-3, Rx-E.  Where witnesses referred to the remaining
material as a pillar, the term “stump” will be substituted.

Web - also referred to as a wedge,
this is the 3-foot column of coal left between the 12-foot cuts into a pillar.
See Exhibit Rx-E, where two of these webs are labeled on each side of the mined
pillars.

Row - also referred to as a line,
this is the entire horizontal row of pillars in the section being mined. On
Exhibit Rx-G, a row of pillars would consist of all of the pillars or large
blocks of coal from the red “L” on the left in a straight horizontal line to
the red “Bs” on the right.  Row and line will share the same meaning in this
decision.

Breakers - the timber
posts set in each entry along the breaker line of the pillars or blocks being
retreat mined.  A breaker line may be visualized on Exhibit Rx-G as extending
along the inby edge of a line of pillars or blocks where the letters “CL” have
been placed in blue ink in each of the squares representing a pillar.

At
the outset of the hearing, the Secretary objected to so much of Contestant’s
Exhibit Rx-G that depicts the pillars or blocks of coal with 2 cuts taken in each
as not being an accurate illustration of the actual number of cuts being
taken.  The Exhibit was admitted, but on study of the entire record I find that
the objection as it pertains narrowly to the number of cuts per block of coal
should have been sustained.  As will be discussed in greater detail in this
decision, credible testimony and simple calculations reveal that the
illustration of pillars with two cuts is misleading, inaccurate and
self-serving, and therefore this part of the exhibit is found to have little
probative value.

However,
Exhibit Rx-G was useful for other purposes and extensively marked up during the
hearing to show the location of entries, pillars, stumps, timber posts, check
curtains, breaker lines and persons in the area.  For these purposes only,
and to help understand testimony, the Exhibit will be referred to frequently in
this decision.

CITATION NO.
8273702

EVIDENCE

On October 17,
2012, at 1020 hours MSHA Inspector Carl Keith Little (“Inspector Little” or
“Little”) issued this citation with the following Condition or Practice:

The approved roof control plan, dated
4-15-2011, is not being complied with on the 001-0/003-0 super section. Pages
24-26 of the approved plan require a minimum of 6 foot of the coal pillar to
the left on each side of the entries at the outby corners of the coal pillars
during retreat mining. The size of the coal pillars left on each side of the
entries 1 thru 7 range in size from 1 foot to 5 feet with none of the stumps
not mined being large enough to meet the minimum requirement of 6 feet. This
violation is an unwarrantable failure by the operator to comply with a
mandatory standard.

Standard 75.220(a)(1) was cited 15 times
in two years at mine 1518911 (15 to the operator, 0 to the contractor). This
violation is an unwarrantable.

After training on retreat mining the
Citation was terminated at 1235 hours.

Gx-1.[2]

The
cited regulation provides:

(a)(1) Each mine operator shall develop
and follow a roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the mining system to be
used at the mine.  Additional measures shall be taken to protect persons if
unusual hazards are encountered.

30
C.F.R. § 75.220

A
revised Roof Control Plan for Cam Mine #28 was submitted to MSHA on April 12,
2011 and approved on April 15, 2011.  This approved plan was in effect on
October 17, 2012.  A substantial portion of the mine’s plan covers safety
precautions for retreat mining. Gx-3, pp.20-26.  Pages 24, 25 and 26 are
illustrations of the extraction plan showing the sequence, placement and
dimensions of the cuts that may be taken in each 60-foot long by 50-foot wide
pillar or block of coal.  Also shown and explained are the minimum dimensions
of the coal webs left in the block and the stumps left at the outby corners of
each block.  The minimum requirement for the stumps is to leave 6 feet at each
corner. Gx-3, P. 24.

Inspector
Little traveled to Mine No. 28 on October 17, 2012 arriving at about 8:00 am
for a continuing EO1 inspection. Tr. 257, Gx-5, pp 1, 2.  Little is a
ventilation specialist for MSHA, having worked for MSHA for almost 8 years. Tr.

253.  He has 40 years of underground mining experience, most of which as a
Section Foreman, and has experience with retreat or pillar mining.[3] Tr. 254.

Inspector
Little informed Foreman Jody Heath Baldwin (“Foreman Baldwin” or “Baldwin”) of
the inspection, checked the mine maps, and decided to go the 001-0/003-0 area,
where they were retreat mining.  Accompanied by Baldwin, they arrived at about
10-10:15 am. Tr. 257, 258; Gx-5.

Inspector
Little testified that mines engaging in retreat mining are visited at least
once a month to make sure they are complying with their pillar plan.[4] Tr. 253-255. 
Little described the process of observing the conditions in the line of blocks
that had already been retreat mined as going to the breakers of the blocks
being actively mined and looking inby at the stumps to see the size of the
stumps that had been left.  Little testified that to comply with the plan the
outby stump has to be a minimum of 6 feet from the corner of the block back to
where cutting into the block started.[5]
Tr. 255, 256.  Little also testified to make sure there is compliance with the
mine’s plan, an area they have mined is observed, and then the active mining
cycle is observed. Tr. 328.

Inspector
Little has at least 6 years of experience judging stump size. Tr. 263.  He
pointed out that there is a considerable difference between a 3 foot and 6 foot
stump, and that it is easy to observe the size of a stump from twenty feet
while standing in the breaker timbers. Tr. 264, 275, 297.  He could also see
the lines where the miner head had cut into the entries[6]and not left the right
size stumps Tr. 307.  He further testified that when a cut is finished, you can
see if the 6 foot is left. Tr. 317.

Beginning
at the No. 1 entry[7]
to start the imminent danger check, Inspector Little observed from the breakers
that the left side of the block just inby had not been mined. Tr. 36, 259,

260.  Little explained that an imminent danger check is a requirement of all
E01 inspections and consists of when an inspector goes to the section, looks at
all the faces, and the pillar line, etc. to ensure there is nothing going on to
cause an injury or fatality before it can be corrected. Tr. 259.  When he
begins the imminent danger check, he goes to one of the outside entries. Tr.
255.  As he starts across the entries, he goes back to the breakers of the
blocks that are being minded. Id.  He then takes the curtain hung in
front of the timbers and goes inby the curtain to observe the conditions that
they had mined in the line of blocks before. Id.  Based on the pillar
plan the outby stump has to be a minimum of 6 feet from the corner of the
pillar to where they start cutting. Tr. 256.  Little testified that an
inspector must also check all the breaker timbers and ensure they are set on
4-foot centers and do not exceed 4 feet from the coal ribs. Id.  He
further testified that the timber placement and the size of the stumps that are
left are part of the inspection to ensure compliance with the pillar plan. Id.

At
the number 2 entry, observing from the breakers, Inspector Little found that
the left stump was approximately 2 feet wide back from the rib line,[8] and the right
stump lacked about 16-18 inches where a cut had been taken clipping off the
inby side of that stump. Tr. 260-262.  Little went on into each entry, from
number 3 to number 7, again observing from the breaker line, and recording the
stump dimensions in his notes. Gx-5, pp. 4, 5.

When
moving across the section, at the middle entry, mining was halted outby by
Foreman Baldwin until the inspection was finished. Tr. 266.  While in the
active section, he and Baldwin walked by the number 4 entry right at the
intersection in front of the one block being mined that day, and the stumps
there were not adequate either.  He did not need to use his tape measure; he
could see they were not big enough. Tr. 280, 281, 294, 295.  Inspector Little
had already told Baldwin that a citation for not complying with the pillar plan
would be issued, and he also told Baldwin that if the conditions continued across
the section, it would be a (d)(1) and he would need to stop mining and pull
back leaving a row of blocks because roof support had been compromised. Tr.
260, 323, 324.

Inspector
Little testified that the minimum 6-foot stumps required at the front of all of
the blocks were not left. Tr. 269, 305.  The largest was the left stump in the
last entry, which was 60 inches as measured by Little with his tapeline.[9] Tr. 266,

267.  He pointed out that it is really easy when at the breaker line to see the
stumps just 20-25 feet away. Tr. 275.  He stated it was very obvious the stumps
were not adequate; you can look and tell the difference between a 6-foot and a
2-foot stump. Tr. 284.  Little also testified that when he went behind the
curtains into the timbers he would move around and look at the stumps from
different angles, and it did not take an educated guess to see that they were
smaller than required. Tr. 302, 303.  He and Baldwin had cap lights, and
Baldwin’s was pretty bright. Tr. 305.

Since
the same conditions existed in 6 entries, Inspector Little asked that the next
outby line of blocks where entry 4 was then being mined be breakered off and to
restart the mining cycle in the second line of blocks back, or outby.[10] Tr. 290.  A
safety meeting was held with training on the pillar plan, and then Little went
back to make sure the timbers had been set and the places breakered off. Tr.

292.  The section was pulled back one entire crosscut and when the new breaker
line was set the citation was terminated at 1235 hours. Gx-1.  After the new
breaker line was set, no one would be allowed inby that location.[11] Tr. 293.

Inspector
Little testified that the part of the roof control plan violated in Mine No. 28
was the fact that they did not leave the minimum 6-foot stumps at the front of
the blocks as required. Tr. 268.  Little stated that the reason the front
stumps were of most concern to him was because, “If those stumps are smaller
than the required minimum and you have a roof fall starting back in there, in
the area that’s already mined, those stumps will have a tendency to stop that
roof fall of that wide area that you’ve already pillared out before it comes
into the intersection where most people will be working.” Tr. 269.  Little
explained that the effect of having less than adequate stumps is that it
compromises safety for the next block that will be pulled.[12] Tr. 269, 270.  He added
that if you don’t leave the minimums, a roof fall could come through into the
active mining section and down the entry. Tr. 282.  In the notes he recorded at
the time he wrote: “Likely to cause a very serious accident or fatality if
practice continues.” Gx-5.

Inspector
Little noted that the miners were taking 3 cuts in all the blocks. Tr. 278,

300.  Little learned this in a conversation with a miner, who told him it was
hard to take 3 cuts and leave the 6 foot minimum stump. Tr. 279, 311, 339. 
According to the miner men, a cut will usually range from 14 to 16 feet wide.
Tr. 280.  Little calculated the size of the block compared to the usual width
mined into the block and determined it would be difficult to leave the minimum
6 foot stump. Tr. 279, 280.  He testified that by looking back into the pillar
line, they had taken 3 cuts, because if there had not been 3 cuts, there would
have been bigger stumps evident. Tr. 311.  Inspector Little concluded that all
of the stumps were deficient as they failed to meet the required 6 foot minimum
in the roof control plan. Tr. 282, 284.  When asked about a continuous miner
rubbing an outby corner and knocking off the corner, Little testified that he
did not see where a continuous miner had knocked anything off of a corner.  He
added that he could see the lines where the miner head had cut into a block and
not left the right size of the stumps. Tr. 306, 307.  Little pointed out that
the presence of paint lines would tell you nothing about the size of the stumps
being left; the size can be determined only when the area has been mined. Tr.
276  In his notes, Little documented that General Manager James Slone (“Manager
Slone” or “Slone”) arrived on the section and Little invited him to travel the
line and observe the cited conditions.  Slone declined to observe to size of
the stumps complaining he was tired and his back hurt. Gx-5, page 10.

Robert
Henry Bellamy (“Graduate Engineer Bellamy” or “Mr. Bellamy”) also testified for
the Secretary.  Referring to Exhibit Rx-E, he testified that it shows the
minimum size of the blocks and the number and width of the cuts or lifts that
can be taken out of a block. Tr. 351, 352.  The top and bottom remnants of a
block have a minimum size and are most important for stability of the mine roof.
Id.  Mr. Bellamy explained this is because you don’t want to take out so
much coal that the roof starts falling in on you. Tr. 353.  Enough coal is to
be left to where the block can be mined, it will remain standing, and miners
can get out of the area. Tr. 354.  When asked about the possibility of a back
block sloughing off, crushing out, or equipment rubbing against it, Mr. Bellamy
testified that one foot would not be as much of a concern as a 2, 3, or 4 foot
reduction. Tr. 354, 355.  However, he also testified that if there were a
reduction from 6 foot to 5 foot across an entire section, indicating a practice
of not maintaining the minimum amount, this would be a big concern. Tr. 355. 
As an Inspector, Mr. Bellamy stated he had issued citations, considering that
stumps smaller than the plan provides to be a hazard. Tr. 356.  He further
testified where across a section an entire row of back blocks did not meet the
minimum, this would be citable. Tr. 359.  In addition, Mr. Bellamy testified
that where you leave the coal is important; you want to leave it next to
intersections and at the bottom of the block for support and to keep the roof
from riding in on the pillar you are mining. Tr. 377.

Graduate
Engineer Bellamy had conversations with Inspector Little and Danny Robinette
(‘Robinette”) after the citation and order were issued.  He became aware that
Robinette had gone up the bleeder line[13]
and looked at the pillar line from 2 rows of blocks below where Little had
been. Tr. 367, 368.  Mr. Bellamy testified that since Robinette had not looked
at the same thing as Little, it was not surprising Robinette had said the mine
was in compliance. Tr. 369.

James
Tackett Jr. (“State Inspector Tackett” or “Tackett”) is an Inspector for the
Office of Mine Safety and Licensing for the state of Kentucky. Tr. 234.  He
testified he was familiar with the No. 28 mine, and was there on October 18th.
Tr. 234, 235.  On Exhibit Rx-G, he indicated by a circle with a “B” inside in
black ink where he was at the breaker line of entries 2 and 3.  The pillars he
noticed had not been pulled and he was told an order was issued and they had to
pull back a line. Tr. 236, 237.  Tackett also testified that when backing out,
the breaker timber posts all across a row of pillars must be set in place prior
to mining. Tr. 247.  On the 18th, the entire row where mining was
taking place was breakered off. Tr. 237-239.  He did not go inby because it was
breakered off and it was against the law for anyone to go inby. Tr. 239, 240. 
He could see the pillars that had not been pulled, but had no way of knowing
about the size of the stumps that had been pillared inby the check curtain
line.[14]
Tr. 240, 241.  Although he had been at the mine several days before, on October
15th, he did not record in his notes any observations of residual
stumps. Gx-4.

Contestant’s
first witness was General Mine Foreman Jody Heath Baldwin (“Foreman Baldwin” or
“Baldwin”).  He has been a coal miner for 19 years and employed at Mine No. 28
for 5 years. Tr. 34.  He has underground mine foreman and MET certifications
and has been involved in pillaring for 12 to 14 years. Tr. 34, 35.  He
accompanied Inspector Little on October 17, 2012 in the retreat mining section.
Tr. 36.  Referring to page 24 of the Roof Control Plan, Exhibit Rx-E, Baldwin
testified that 2 cuts of coal per side were taken out of the blocks on October
17th. Tr. 37, 42, 51.  Referring to Exhibit Rx-G, he explained that
there were 7 entries and the center entry, number 4, was where mining would
begin after the 8 breaker timber posts were set.[15] Tr. 39-41.  He testified
that each cut from a block is 12 feet wide. Tr. 43.  Baldwin further testified
the minimum stump is 6 foot, and the mine foreman marks this on the rib and
roof for the miner operator. Tr. 45-49.  He also testified that when each group
of timber posts is set, no one can go past or inby that point. Tr. 50, 51; Ex.
Rx-E

Foreman
Baldwin testified that on October 17th, the top 2 rows of blocks had
been finished and mining was in entry No. 4 of the middle row of blocks.[16] Tr. 53.  He
and Inspector Little went to entry No. 1 through the check curtain and to the
breaker timbers[17]
and looked up into the worked out area.  At this location Little stated that
the stump could possibly be too small.[18]
Tr. 56.  Baldwin also testified that the distance from where they were standing
to the stump was approximately 28 feet. Tr. 57.

From
the same location in the number 2 entry, Little again stated to Baldwin that a
corner (stump) was too small and informed Baldwin if any more corners looked
the same he would write a “d” citation and a “d” order.  Baldwin testified he
did not think anything was wrong with them. Tr. 58.  Again from the same
location in entry No. 3 Little told him a corner was too small and in addition
to the citations mining would cease and pull back one full row; Baldwin
testified he could not tell that the stump was not 6 feet. Tr. 59.

In
the number 4, 5, and 6 entries Little stated to Baldwin both corners were too
small. Tr. 68, 69.  At entry number 7 Baldwin testified he could not judge
whether the corner was too small.  Little went to the corner and measured it
with his tapeline as 5 feet 4 inches or 5 feet 6 inches. Tr. 70, 71.  Baldwin
then told Little you could see where the corner had been rubbed by the miner,
Tr. 97, and that could cause the measurement to be 5 feet. Tr. 101.  Baldwin
instructed the Section Foreman to pull back one row, pull the belt, and timber
the row of pillars off.[19]
Tr. 61, 62, 73.  In further testimony, Baldwin acknowledged that a minimum of 6
foot must be left on the outby corners of a block. Tr. 88, 96.

Danny
Russell Robinette (“Robinette”) retired from coal mining after 44 years and 8
months, having spent 10 years and 3 months with MSHA, for a total of 34 years
in the industry. Tr. 121.  During that time, he held all positions from
equipment operator to management. Id.  Robinette was also a foreman
during that period of time and had experience with pillaring. Tr. 122.  His
specialty while working with MSHA was roof control. Id.  In his
testimony, he described that his approach to inspecting active retreat mining
as not worrying about anything inby the breaker line. Tr. 129, 131.  On October
19th, he went to the breaker line, which was the same as the day
before. Tr. 132.  He did not go to the blocks where Inspector Little had issued
the paper. Tr. 129.  He testified that from where he was standing he could see
the No. 2 block (stump) which looked smaller than 6 feet, but from the distance
he could not tell and he was not going through the breaker timbers to go up
there and measure it. Tr.134.  He gave considerable testimony about rounding
and other reductions in corner size due to the operation of machinery. Tr. 137,
139, 142, 150, 151.  However, he acknowledged that only one corner of a block
is allowed to be rounded. Tr. 153, 154.

James
Slone (“Manager Slone” or “Slone”) is the Mine No. 28 Mine Manager.  He has
held this position for 4 and a half years, and had been a coal miner for 38
years. He also has a mine foreman certification. Tr. 167.  Slone recalled on
October 17th he was told that the section had been shut down and
they were pulling back a row since Inspector Little was going to issue a
citation and an order. Tr. 168, 169.  The area cited had been mined on the 16th.
Tr. 201.  He went underground at about 12:00 to 12:30 pm, Tr. 192, to the entry
No. 7 breaker posts, where he observed the No. 7 corner to have quite a bit of
sloughage off of the rib but he did not see a plan violation. Tr. 170, 171.  He
then went to entries 6, 5, and 4 and observed no violations of the plan Tr.
170-174.  Slone testified that in entries 7, 6 and 5 he could see painted lines
on the roof 6 feet inby the imaginary rib line. Tr. 172-174.  He met Baldwin
and Little at entry 4. Tr. 174.  He did not go to entry 3.  Inspector Little
invited Slone to go back over the area with him, but Slone testified he
absolutely did not want to go with Little. Tr. 174, 175.

The
next day, October 18th, Manager Slone testified he went back through
all seven entries, saw painted marks on the roof, but did not see a violation
of the roof control plan. Tr. 180.  In his opinion, you cannot see any useful
information about a stump from 28 to 34 feet away after pillaring has been
completed. Tr. 184.  He also testified that he took no notes on the 17th,
18th, or 19th. Tr. 192.

Jackie
Lynn Holbrook (“Manager Holbrook” or “Holbrook”) is the General Manager of
Operations at Cam Mining, having been involved with Mine 28 for 8 years. Tr.

212. Manager Holbrook has been a coal miner for 27 years and has certifications
     in surface and underground mining as well as a mine foreman certificate. Id.
     In addition, Holbrook has 27 years of experience in pillaring. Tr. 216. 
     Holbrook testified that on the morning of October 18th, he and Slone
     went to the breaker timbers of every entry from 1 to 7 and he did not observe
     any violation. Tr. 214, 215.  He also testified that from a 25 to 30 foot
     distance he could not see well enough to tell anything about a 6-foot corner.
     Tr. 222.  He met James Tackett between entries 5 and 6. Tr. 225.  He
     acknowledged that Tackett’s notes revealed he was one crosscut inby Spad No.
     6671.  This location, with the initials “JT” in black ink on Rx-G, is behind
     the new breaker line set the day before.

CONTENTIONS

Cam
Mining argues that Citation No. 8273702 incorrectly alleges a violation of
75.220(a)(1) that the approved roof control plan for the 001/003 section was
not being followed.  Cam further argues that 6 feet of the outby corners of
pillars as measured from the starting point where the miner head cuts into the
pillar were left as provided in the RCP.  Cam asserts that only 2 cuts were
taken from each side of a pillar and more coal than anticipated by the RCP was
being left.  Cam contends that any appearance of a stump less than 6 foot can
be caused by the continuous miner and shuttle cars contacting a stump while
maneuvering, collapse of the stump under normal roof pressure, or viewing the
stump from the breaker line 25 to 26 feet away with only cap lights.  Cam also
maintains that the Foreman paints a 6 foot mark on the rib prior to mining, but
the paint may not be visible after the ripper head cuts into it.  Cam supports
its arguments by referencing Roof Control Specialist Robinette’s statement to
Mine Manager Slone on October 19, 2012 that he did not see a violation.

The
Secretary contends that the operator failed to follow the approved RCP on
October 16, 2014 by not leaving the minimum 6 foot stumps.  The Secretary
asserts that each stump in the row of pillars mined on the 16th was
readily visible looking inby from the breaker line and each was smaller than
required by the RCP.  The Secretary argues that a miner admitted to the
Inspector they could not leave the minimum stumps with the cutting plan they
were using.  The Secretary contends any paint lines would only show where the
Foreman intended to cut and not where cuts were actually made, and any residual
paint cannot establish compliance with the RCP.  The Secretary further argues
that the testimony of the Inspector is more credible than that of the mine’s
witnesses because none of them took notes regarding the stumps and they did not
see the stumps as observed by the Inspector since the breaker line on October
18th was one full row of pillars outby where it was at the time of
the inspection.

DISCUSSION
AND ANALYSIS

Inspector
Little and Foreman Baldwin arrived at the area of active mining at about 10:00
to 10:15 AM on October 17, 2012.  On that day, compliance with the mine’s
approved RCP was a part of the regular inspection of retreat mining at Mine No.

28.  Little had considerable mining experience, including as a Section Forman
in retreat mining and at least 6 years judging stump sizes.  The process he
uses to inspect for RCP compliance is to begin at the breaker line of an
outside (left or right) entry and then, when travelling across each entry, he
goes back to the breaker line of the row of pillars being mined.  He moves inby
the curtain to look at both the timber post placements and the sizes of the
stumps left after the previous row of pillars, just inby, were mined.  When
standing in the timbers he moves around to look at those residual stumps from
different angles.

At
entry number 1, only the right pillar had been mined, and Inspector Little
observed that the minimum stump had not been left.  As he moved from entry to
entry, from a distance of about 20 to 24 feet across the crosscut, he observed
that the stumps were smaller than required.  At the last, number 7 entry, only
the left pillar was mined, and with his tapeline Little measured the residual
stump as about 5 feet 4 inches to 5 feet 6 inches.  Little concluded that none
of stumps remaining in the row of mined out pillars met the 6 foot minimum
requirement, and the citation issued reflects this finding.

Since
roof support had been compromised for the area of active mining, the row of
pillars just outby the noncompliant stumps, Inspector Little asked that this
row of pillars be breakered off and mining moved back to the second row of
pillars outby.  This was accomplished in about 2 hours and the citation was
terminated at 1235 hours.  The new breaker line was now one full row of 60-foot
long pillars back or outby from where Little observed the noncompliant stumps. 
It is important to note that prior to mining the next row of pillars, the
breaker line timber posts must be set in place across the entire row.  This
means that as of the afternoon of October 17th, the new breaker line
was two crosscuts and one full pillar length, or about 100 feet, from the
stumps observed by Little.  It is uncontroverted that no one[20] is allowed inby a
breaker line[21].

From
the testimony and notes of Inspector Little, the following chart is a summary
of the approximate stump sizes he found at each entry.

Entry                           Left
Stump                  Right Stump

1                                  not
mined                    minimum not left

2                                  2
feet                           42 inches (Lacks 16-18”)

3                                  4
feet                           3 feet

4                                  3
feet                           18 inches

5                                  2
feet                           4 feet

6                                  3
feet                           1 feet

7                                  5
feet                           not mined

Gx-5,
Tr. 321, 322.

I
find the testimony of Inspector Little to be credible.  He made careful, direct
observations and specific size estimates and documented his findings in his
notes.  Far from speculation, his conclusions were grounded by judgment based
on his underground experience, knowledge and expertise including retreat
mining.  Further, at entry 7, Little even used his tapeline to confirm that the
left stump was too small.  What is remarkable about the residual stump sizes,
as shown by the chart, is that most of the stumps were so far reduced in
size that failure to meet the minimum was very obvious.  Even the largest
stump was measured at less than 6 feet.

From
the above discussion it follows that I find credible the determination of
Inspector Little that 3 cuts were being taken from each side of each pillar. 
While this was not a part of the condition or practice described in Citation
No. 8273702, Contestant has argued that only 2 cuts were taken out of each side
of the pillars, in an effort to show that the minimum 6 foot stumps were left
after mining.  This argument fails.  Little’s conversation with a miner that
morning when added to his own observations is very revealing.  The miner told
him it was hard to take 3 cuts and leave the 6-foot minimum stump.  The miner
also said the cuts taken were 14 to 16 feet wide.  Little noted that if there
had not been 3 cuts, the stumps would have been bigger.

This
can easily be understood using only simple calculations.  Where the length of a
pillar is 60 feet and 3 12-foot cuts are taken leaving 2 3-foot webs, a total
of 42 feet of the length of the pillar is accounted for leaving 18 feet or
about 9 feet available for each outby corner stump.  But if 3 14 to 16
foot wide cuts are taken, as reported by the miner, the residual stumps would
be reduced to 6 feet or less.

Where,
as contended, only 2 cuts are taken leaving 1 3-foot web and the cuts are 12
feet wide, only 27 feet of the 60 foot length of the pillar is accounted for
leaving 33 feet or about 16 feet for each outby corner stump.  Even
using 2 14 to 16-foot wide cuts the residual stumps would still be about 12
to 15 feet at each corner.

With
about 9 or more feet left for each corner stump, a considerable amount of coal
is left to account for the “sloughage” and “rounding” so much contended by
Contestant.  It follows that if less than 6 feet is actually left for a
corner stump, more coal is being removed than allowed by the RCP.  The
consequence is less roof support to protect the miners working just outby in
the next row of pillars.  Contestant’s attempt to show that only 2 cuts were
being taken, including the illustration of 2 cuts on Exhibit Rx-G, is simply
not believable.  Indeed, the miner’s report to Inspector Little of 14 to 16
foot cuts when combined with 3 cuts on each side of a pillar better accounts
for the noncompliant remnants actually left, especially with the “sloughage”
and “rounding” the Contestant contends occurred.

I
find the testimony of Graduate Engineer Bellamy to be credible and supportive
of the testimony of Inspector Little.  Mr. Bellamy candidly testified that a 1
foot reduction in the size of one stump would not be a concern, but also
testified that further reduction in that stump size or a reduction of 1 foot in
all stumps across a row would be a big concern.  As an inspector, he had
issued these kinds of citations since smaller stumps than allowed would be a
hazard.  Mr. Bellamy pointed out that the minimum size is important for
stability of the mine roof; you don’t want to take out so much coal that the
roof falls in. Mr. Bellamy testified that where you leave the coal is
important, next to intersections and at the bottom of the block for support.

State
Inspector Tackett’s testimony is notable because he was there on October 18th,
the day after the breaker line had been moved one row of pillars outby, and
from this new breaker line he saw pillars that had not been pulled.  The entire
row where mining was taking place was breakered off.  He did not know anything
about the next inby row of pillars.  Therefore, he and anyone else in the area
on October 18th could not see what Inspector Little observed and
cited the day before.

Foreman
Baldwin accompanied Inspector Little on October 17th across each
entry and was present at the breaker line as Little made his observations. 
Baldwin was in the best position to rebut the findings of the Inspector.  Yet
his testimony falls far short.  Unlike the detailed estimates of Little,
Baldwin only stated that he did not think anything was wrong with the
corners and he could not tell or judge if a stump was too small.  He
provided no estimate of the dimension of any stump.

Further,
Baldwin referred to Exhibit Rx-E, page 24 of the RCP, and testified that only 2
cuts of coal were being taken out of the blocks on October 17th. 
But the noncompliant stumps were left by the previous mining cycle, the day
before.  What was happening in active mining at the time of the inspection
would not necessarily be the same as the conditions during the prior mining
cycle that left the noncompliant stumps.  However, during the inspection,
Inspector Little walked right by where active mining was just ceased in entry
4, and observed that the stumps there were also too small.  Vague and evasive,
Baldwin’s testimony is not credible and does nothing to discredit the findings
of Inspector Little.

Manager
Slone in his testimony attempted to contradict the findings of Inspector Little
as well.  Slone stated he “felt like what [he] had observed was in
compliance.”  But Slone went to the area after it was shut down, and
when invited to accompany Inspector Little across the line and look at what was
being cited he claimed the onset of back pain and tiredness and refused the
invitation. Gx-5, p. 6.  Remarkably, he testified that he absolutely would not
go with Inspector Little.  This thinly veiled expression of hostility, even in
the context of the excuse offered, was perhaps due to mining pulled back a full
row and the loss of that revenue[22],
or perhaps to the discovery by the Inspector that the mine was taking more coal
than allowed by the RCP.  Looking at only a part of the area on the 17th
with the knowledge that citations were going to be issued, Slone, who had
worked as General Mine Manager for Mine No. 28 for 4 and a half years, would be
more likely to fail to perceive any violation of the roof control plan.

Manager
Holbrook and Manager Slone went to every entry the next day, October 18th. 
Both testified they did not observe any violation.  Both testified to the
effect that from the distance across a crosscut, you cannot see well enough to
tell anything useful about a stump.  But in his testimony, Holbrook
acknowledged he was behind the new breaker line set the day before.  Therefore,
on October 18th, neither Slone nor Holbrook saw what Inspector
Little observed, documented and cited.

It
is particularly telling that Slone did not document any of his observations on
any day, and did not venture an actual estimate of the size of any stump across
the row.  His testimony was also vague, essentially stating his opinion that
the mine was “in compliance”.  The testimony of this witness was so vague and
self-serving that I cannot find it to be credible.  Holbrook’s testimony is
discounted as not relevant to the citation issued.

Robinette’s
notes recorded on October 19th do not show anything other than he
did not observe a violation. Rx-C.  He did not go to the places where Little
issued the paper.  He was 2 crosscuts and a row of pillars outby the stumps
cited by little, a distance of over 100 feet.  Graduate Engineer Bellamy
testified that since Robinette had not seen the same thing as Little, it was
not surprising Robinette had said the mine was in compliance.  This comment is
made only to show that Contestant’s attempt to support its arguments by
referring to Robinette’s statement to Manager Slone on October 19th
is misplaced.

The
mine is required to mark the coal ribs to indicate the minimum size of the
stump not to be mined. Gx-3, page 20, paragraph 3.  Slone testified he could
see painted lines on the roof 6 feet inby the rib line.  However,
the presence of paint on the roof is not controlling; it is the size of the
residual stump left after a pillar is mined that is important.  This testimony
by Slone is remarkable as it tends to eviscerate one of Contestant’s primary
arguments (and Slone’s own testimony) that you cannot see anything useful from
across a crosscut.  Certainly, if a paint mark can be seen from 20 to 25 feet
away and estimated to be 6 feet inby the rib line, one would also be able to
see and estimate the size of the stump at that same location.

I find that it
is entirely possible to estimate, from the breaker line, the size of the
residual stumps left after coal pillars are mined.  As will be set forth below,
it is also necessary to perform this task.

From
the above it follows, and I specifically find, that there was a violation of 30
C.F.R. 75.220(a)(1).

Order No.
8273703

EVIDENCE

After
arriving at the mine on October 17,, 2012 Inspector Little checked
the record books and found there was a retreat mining section and that no
hazards were reported for the 001-0 and 003-0 areas. Gx-5, pp. 2,3.  After
discovering the violation discussed above, at 1100 hours he issued this Order
with the following Condition or Practice:

A perfunctory pre-shift exam
was conducted on the 001-0/003-0 super section on 10-17-2012. The hazardous
conditions cited in citation 8273702 which were created by not leaving the
required size coal stumps to protect miners from falls caused by retreat mining
should have been observed by the examiner, reported to the operator, and
corrected prior to beginning mining. This citation is evaluated S&S due to
the failure of the examiner to recognize and correct the conditions created by
faulty pillar recovery. This violation is an unwarrantable failure by the
operator to comply with a mandatory standard. This violation is an
unwarrantable failure to comply with a mandatory standard.

After a safety meeting, the
Order was terminated at 1330 hours.

The section of Title 30 of
the regulations cited was §75.360(b)(3).

Gx-2.

Preshift
examinations at fixed intervals are governed by 30 CFR §75.360.  As relevant to
this case:

(a)(1)…a certified person designated by
the operator must make a preshift examination within 3 hours preceding the
beginning of any 8-hour interval during which any person is scheduled to work
or travel underground.  No person other than certified examiners may enter or
remain in any underground area unless a preshift examination has been
completed…

The
specific section of the regulation cited for this Order provides, in pertinent
part:

(b) The person conducting the preshift
examination shall examine for hazardous conditions and violations of the mandatory
health or safety standards referenced in paragraph (b)(11) of this section…at
the following locations:

(3) Working sections and areas…if anyone
is scheduled to work on the section or in the area during the oncoming shift. 
The scope of the examination shall include the working places, approaches to
worked-out areas…and the examination shall include tests of the roof, face and
rib conditions…(emphasis added)

Paragraph
(b)(11) links preshift examinations to other regulatory provisions, and
subsection (i) requires that preshift examinations include identification of
violations of roof control standards:

(11) Preshift examinations shall include
examinations to identify violations of the standards listed below: 

(i) §§ 75.202(a) and 75.220(a)(1)--roof control…

As
set forth above, §75.220(a)(1) requires the mine to follow its approved Roof
Control Plan.

Inspector
Little had told Foreman Baldwin that the preshift examiner is required to look
for hazardous conditions, including violations of the roof control plan. Tr.

286. Little further told Baldwin that the pre-shift examiner was to record
     hazardous conditions and correct them before mining began. Tr. 286.  At the
     time, there should have been 2 preshift examinations by 2 foremen, 1 on the 16th
     and the 1 before the current shift started, providing at least 2 shots at
     finding and correcting the conditions. Tr. 270, 306.

Little
testified that when he had conducted preshift examinations on a retreat
section, he looked for several things.  He usually began by checking the
entries that would be pillared in. Tr. 271.  He checked the test holes to see
if there was any separation above the roof bolts. Id.  He checked the
timbers to ensure they were not broken in the entries that had been breakered
up ready to mine. Id.  He also checked back in the pillar line that had
been mined the shift before to see the condition of the roof in that area, and
see if timbers were broken. Id.  Little also indicated that the back
breakers on the last center block must be checked to ensure they are all in
place, unbroken and in proper numbers with proper spacing. Id.

Inspector
Little testified a preshift examiner is supposed to look for violations of the
RCP, report such violations and take corrective action. Tr. 272.  Little stated
that when observing the size of stumps from the breakers, people are not in
danger since that is where the ventilation check curtains are hung and
retrieved. Tr. 272.  He noted that when the preshift examiner is in the
breakers, not only is a gas test taken, but the ribs, top, timbers and stumps
are checked.  Little also testified that the time required to make an
observation regarding the size and quality of the stumps is five minutes per
entry, and that it is real easy to see the stumps just 20 to 25 feet away. Tr.
273, 275.  Looking at the corners from the timber line, both he and Baldwin had
cap lights, and Baldwin’s light was pretty bright. Tr. 305.  He pointed out you
do not have to enter the worked out area to observe the stumps, and whether the
area inby the breakers has the right amount of support has an effect on the
active section. Tr. 329, 330.

Inspector
Little testified he did not tell anybody they had to go inby the breaker line
because no one is allowed beyond the breakers except an Authorized
Representative. [23]
Tr. 286, 287.  He also testified that if the operator hanging a curtain and
writing danger on it precluded inspectors from going to the breaker line, any
type of violation could be hidden behind that curtain. Tr. 287.  Little stated
the mine’s examiners must look for violations of the approved RCP, and this
includes retreat mining. Tr. 331.  Little noted the only way you can make sure
of compliance with the RCP is to observe an area that has been mined. Tr. 328.

In
the notes he recorded regarding this Order, Inspector Little wrote:

Hazardous conditions observed &
cited in citation #8273702 should have been observed and corrected prior to the
start of production on the 001-0/003-0 MMU’s.  Conditions were obvious and
should have been observed by examiner to be sure pillar plan was being
followed.

GX-5.
In addition to the mined area just inby the breakers, Inspector Little
testified he walked right by the number 4 entry where they were pillaring and
he could see the stumps were not big enough; he did not need to measure them
with his tape. Tr. 294, 295.

Graduate
Engineer Bellamy, the roof control and impoundment supervisor for District 6
MSHA, in his testimony supported Inspector Little’s conclusions.  Mr. Bellamy
testified that the roof control plan requires an examiner to check the line of
pillars being mined. Tr. 362.  Mr. Bellamy stated that in a retreat
mining section, a mine examiner should look back thru the breakers to see what
is going on just inby.  The examiner should determine if the roof is showing
signs of being weak, the stumps are starting to crush out, or the timbers are
breaking, all before you start mining a new line. The examiner should look at
the front stumps. Tr. 361-364.  This is in addition to taking air readings and
conducting a gas test. Tr. 362.

Foreman
Baldwin testified for Respondent that a preshift examiner at the check curtain
would check a number of things, but would not look at the stumps in the worked
out area to figure out the dimensions. Tr. 80, 81, 110.  Robinette responded to
leading questions that he had never told an operator a preshift examiner was
required to check the corners of a previously mined pillar line, and that he
did not worry about anything inby the breaker posts. Tr. 130, 131.  Baldwin,
Robinette, Slone and Holbrook all testified that the way to check compliance
with the RCP is during active mining. Tr. 85, 86, 125, 190, 224.  Robinette,
Slone and Holbrook all testified to the effect that you cannot tell anything
useful about a stump from the breaker line. Tr. 123, 184, 222.

CONTENTIONS

Cam
argues no mine examiner should be required to examine and try to determine the
size of the stumps left on the outby corners of the previous row of mined
pillars.  Cam asserts that the Secretary’s position is virtually impossible to
comply with.  Cam contends that if mine examiners are required to go to the
breaker line timbers they would be exposed to unnecessary risks and hazards. 
Cam further argues the order was issued for an area not a part of the preshift
examination.  Cam maintains there was no hazardous condition.

The
Secretary contends the operator failed to conduct an adequate preshift
examination of the retreat mining section on October 17, 2012 since all hazards
and violations were not recorded in the preshift book.  The Secretary maintains
that the mine’s personnel do go to the breaker line timbers and observe a
number of required conditions including the timbers, roof, ribs and air
direction.  The Secretary argues that neither Inspector Little nor anyone from
MSHA has stated that they expect an examiner to go beyond the breaker
line to evaluate the size of stumps.  The Secretary asserts the operator was
taking the 3 cuts allowed by the RCP out of the pillars but the remaining outby
stumps were less than the required 6 foot minimum.  The Secretary further
maintains the practice of leaving less than the minimum sized stumps is very
dangerous to miners exposing them to the hazard of a roof fall.

DISCUSSION
AND ANALYSIS

If,
as Contestant argues, the residual stumps along a row of pillars just mined
cannot be part of a preshift examination, ongoing violations of the RCP could
be effectively hidden from the required process of observation, reporting and
correction of hazardous conditions.  Even though the RCP specifies the size of
each stump to be left, the mine’s own examiners, according to Contestant, would
not check for compliance.  Notwithstanding that the examiners go to the
breakers to check air quality and direction, and observe the timbers, roof and
ribs, Contestant asserts they could not and should not look across the crosscut
to make sure the residual stumps are the correct size and hence adequate for
roof support and the safety of miners working just outby.

The
controlling regulations are clear that the preshift examination includes
identification of violations of roof control plans.  Paragraph (b)(11) of
§75.360 refers directly to roof control standard §75.220(a)(1), set forth
above.  The Cam Mine #28 RCP specifies that the outby corners of pillars left
after retreat mining, the stumps, must be a minimum of six feet.  To comply
with §75.360 and the RCP, each examination should and indeed must include a
check of the pillars just mined.

Contestant
argues that the preshift examiner cannot observe the residual stumps.  However,
I have already found, above, that it is entirely possible to observe and
estimate the size of the stumps from the breaker line across a crosscut.  I
also find there is virtually no additional danger to the examiner who is
already in the area for other observations and tests, and simply checking the
stumps would take a minimal amount of additional time.

Contestant’s
compliance arguments regarding paint marking the six foot dimension before the
beginning of a cut by the miner is clearly an incorrect reading of the mine’s
RCP.  The plan specifies “a minimum of 6’ will be left on the outby corner of
the block”.  The plain meaning of “will be left” is the amount of coal
remaining after the block is mined.  Contestant’s attempts to change the
meaning of the requirement through testimony at hearing fail.  Where paint
marks are placed does not control.  It is the required dimensions and hence
volume of the residual stumps left to support the roof that is important to the
safety of miners.

The
remaining compliance argument is essentially that at issue is a worked out area
not subject to preshift examination requirements.  Contestant identifies the
area as “off the section” and worked out” and not a “working section” pursuant
to §75.360(b)(3).  Contestant points out the rule against going past the last
open crosscut to examine a worked out area has not been relaxed.

The
regulation includes not only working sections but also approaches to
worked-out areas.  Also, it is clear that examiners are not required to
cross into or enter an area that has been mined and breakered off.  Standing at
the breaker line does not violate the rule.  I find that the act of walking up
to the breaker line to perform a number of observations and tests fits
comfortably into the phrase “approaches to worked out areas”.  And, as noted by
the Secretary, the roof and timbers located in the intersection beyond the
breaker line are checked for hazardous conditions.  Certainly, if the roof and
timbers can be checked, so can the readily visible stumps only 20 to 25 feet
away.

I
find Inspector Little’s testimony to be the most credible as he followed the
general procedure he uses for all inspections[24]
and the validity of this was confirmed by the testimony of Graduate Engineer
Bellamy.  Mr. Bellamy testified that the roof control plan requires an examiner
to check the line of pillars being mined.  Mr. Bellamy added that the examiner
should go up to the pillar line and see what is going on just inby in addition
to taking air readings and conducting a gas test. Id.

Respondent’s
witnesses testified that compliance with the RCP should be checked during
active mining.  But that would be in addition to, and not instead of,
checking the residual stumps.  Baldwin testified that as an examiner he would
not look at the stumps, and Robinette, Slone and Holbrook testified that you
cannot tell anything useful about a stump from the breaker line.  None of this
testimony is persuasive, nor is Robinette’s response to leading questions that
he did not worry about anything inby the breaker posts.  Robinette also
testified that the preshift examiner must only examine a worked out area where
miners are going to work and travel.  This assertion is an incorrect statement
of the law.  30 CFR 75.360(b)(11) requires the preshift examiner to identify
violations of the list of standards contained in that subsection, without
qualifying that requirement by showing that miners will work and travel in that
area.  30 CFR 75.360(b)(11)(i) specifically requires that the preshift
examination include identification of violations of roof control standards.

Because
the preshift examiner did not examine for hazardous conditions by looking into
the area recently mined and checking compliance with the RCP, Contestant
violated 30 CFR §75.360(b).

CONCLUSION

For
the reasons set forth above, I find the Contestant mine did violate 30 CFR §
75.220(a)(1) and 30 CFR § 75.360(b)(3) and Citation No. 8273702 and Order No.
8273703 were Validly issued to Cam Mining LLC.

ORDER

The
valid Citation and Order issued to the Contestant are AFFIRMED.

/s/
Kenneth R. Andrews

Kenneth
R. Andrews

Administrative
Law Judge

Distribution:

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

Mark
E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Boulevard East,
P.O. Box 273, Charleston, WV 25321-0273

[1] I have fully considered the contents of the Official
File including the pre- and post-hearing submissions of the parties, and
the exhibits admitted into evidence.  The findings of fact are based on the
record as a whole and my careful observation of the witnesses during their
testimony.  In resolving any conflicts in the testimony, I have 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, I
have also relied on his demeanor.  Any failure to provide detail as to each
witness’s testimony is not to be deemed a failure on my 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).

[2] Hereinafter, Government exhibits will be referred to
as “Gx” followed by a number.  Contestant’s exhibits will be referred to as
“Rx” followed by a letter.  Citations to the transcript will be labeled “Tr.”
followed by the page number(s).

[3] See Employment History at
Gx-6.

[4] References to the “pillar plan” are to pages 24-26
of the mine’s roof control plan containing the specifications for the coal to
be left for roof support.

[5] See Exhibit Rx-E
(illustrating the outby corners of the pillars and the 12 foot wide cuts into
each side of the pillars).

[6] The continuous miner cuts into the pillar or block
of coal from the entry.  According to the mine’s Roof Control Plan, each of
these cuts should be 12 feet wide and the depth is limited to 35 feet. See
exhibit Rx-E for an illustration of a row or line of mined-out pillars of coal.

[7] The numbers across the bottom of exhibit Rx-G
provide an example of how entries are numbered.

[8] A “rib line” is an imaginary
line projected across the outby edges of a line of pillars of coal as illustrated
on Exhibit Rx-E in red ink and labeled “Rib Line.”

[9] The right pillar was not mined
in this entry. Gx-5, p. 5; Rx-G.

[10] The new breaker line was one
full row of pillars back or outby from the breaker line where Little observed
the pillar stumps.  The new breaker line is indicated by the initials CL
adjacent to each entry in blue marker pen on Rx-G.

[11] See also Gx-3, page 21, paragraph 16 of the roof
control plan: “No person shall work or travel inby the posts installed at the
breakline where full or partial pillaring has been performed”.

[12] “Pulled” is taken to mean “mined”.

[13] Identified by the double line of large red letter
“B”s on Exhibit Rx-G

[14] The check curtain line is illustrated on Exhibit
Rx-G by the letter “C” in all entries except entry 4.

[15] The small circles on Exhibit
Rx-E represent the timber posts.

[16] The middle row is the third row
from the top of exhibit Rx-G.

[17] This area is illustrated by a
large letter “C” and small circles in the entries just outby the mined out area
on exhibit Rx-G.

[18] The drawn red circle with the
number 2 adjacent on the left side of exhibit Rx-G illustrates the location of
this stump in entry number 1.

[19] The new breaker line was then at
the top of the row of blocks with the large letter ”F” on exhibit Rx-G.

[20] The exception is that a MSHA
Inspector may go inby, as Little did to measure the stump at entry 7.

[21] See Exhibit Gx-3, the RCP, page
21, paragraph 16.

[22] Tr. 15, 219.

[23] A MSHA Inspector may be
accompanied by a Miner’s Representative.

[24] Little’s procedure is consistent
with MSHA Handbook Number PH 13-V-4, appendix J, which names as critical
pillar retreat sections, and instructs that inspections should check the
dimensions of final stumps among other things. The Handbook section was in
effect in October 2012.