Secretary of Labor v. Paul D. Bentley, employed by Bledsoe Coal Corporation

Plain-English summary

A miner was fatally crushed by a large rib rock at Bledsoe Coal's mine, and MSHA charged first-shift foreman Paul Bentley individually for knowingly authorizing roof-control and examination violations. After hearing the Secretary's case, Judge William B. Moran found that government witnesses did not consistently identify the rib hazards or show they were detectable during Bentley's on-shift examination. Bentley had not performed the preceding preshift examination, and recording no hazards could mean none were apparent rather than that he ignored them. The evidence did not show that Bentley knew or had reason to know of a violation or engaged in aggravated conduct, so all individual charges were dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.360(b), and 75.362(a)(1)
• Outcome: The motion for summary decision was granted and all section 110(c) charges against Bentley were dismissed.
• Key point: Individual Mine Act liability requires proof that an agent knew or had reason to know of the violative condition; inconsistent hindsight evidence after an accident is insufficient.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 Pennsylvania
Avenue, N.W Suite 520N

Washington, DC
20004-1710

Telephone No.: 202-434-9933

November 5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner

v.

PAUL D. BENTLEY, Respondent,

employed by BLEDSOE COAL

CORPORATION

CIVIL PENALTY PROCEEDING

Docket No. KENT 2013-307

A.C. No. 15-19132-308412A

Abner Branch Rider

ORDER GRANTING
MOTION FOR SUMMARY DECISION[1]

Appearances:                          Thomas
A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee for Petitioner;

Billy R. Shelton, Esq., Jones,
Walters, Turner & Shelton, PLLC, Lexington, Kentucky for Respondent Bentley

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

Before:                                    Judge
Moran

Introduction. This matter
arose in the wake of a fatality, which occurred when a miner was fatally
crushed by a very large rock,[2] which slid
out from a rib. An investigation ensued, with MSHA issuing citations and
orders, separately, to Bledsoe Coal and to Mr. Paul Bentley, the mine’s first shift foreman. Mr.
Bentley, like Bledsoe itself, was issued a section 104(d)(1) citation and a
(d)(1) order, which initially alleged that he “knowingly
authorized, ordered, or carried out violations of the 30 C.F.R. §75.202(a) and 30 C.F.R. § 75.362(a)(1).[3]
The former standard requires the roof, face and ribs to be supported or
otherwise controlled to protect persons from falls, while the latter requires
an on-shift exam of working areas to check for hazardous conditions. A hearing
was held in this matter commencing on May 14, 2013.

At the close of the government’s case, Counsel for
Respondent Bentley moved to have the 110(c) charges against his client
dismissed. Having heard that evidence, the Court concluded that the charges
against Mr. Bentley had not been proven and it so informed the parties of this
conclusion during a conference call on July 10, 2013. This Order memorializes
that determination. Accordingly, for the reasons that follow, the 110(c)
actions against Mr. Bentley in this proceeding are hereby DISMISSED.

Section 110(c) actions

Section 110(c) of the Mine Act
provides: "Whenever a corporate operator violates a mandatory health or safety
standard Y , any
director, officer, or agent of such corporation who knowingly authorized,
ordered or carried out such violation, Y
shall be subject to Y
civil penalties." 30 U.S.C. §
820(c). The Commission has stated that “[t]he
proper legal inquiry for determining liability under section 110(c) is whether
the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d
632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman
United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362‑64 (D.C. Cir. 1997). To
establish section 110(c) liability, the Secretary must prove that an individual
knew or had reason to know of the violative condition, not that the individual
knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125,
1131 (July 1992) (citing United States v. Int'l Minerals & Chem. Corp.,
402 U.S. 558, 563 (1971)). A knowing violation thus occurs when an individual
"in a position to protect employee safety and health fails to act on the
basis of information that gives him knowledge or reason to know of the
existence of a violative condition." Kenny Richardson, 3 FMSHRC at

16. The Commission has explained that "'[a] person has reason to know when
    he has such information as would lead a person exercising reasonable care to
    acquire knowledge of the fact in question or to infer its existence."'Id.
    (citation omitted). In addition, section 110(c) liability is generally
    predicated on aggravated conduct constituting more than ordinary negligence. BethEnergy
    Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). Sec. v. Matney, employed
    by Knox Creek Coal Corp., 34 FMSHRC 777, at * 783, 2012 WL 1799023 (April
    2012).

Findings of Fact

As noted, on January 22, 2010 Mr.
Travis Brock, a continuous miner operator, was fatally injured when a large
rock, described as a “slickenside,” slid out from a pillar,
crushing him. MSHA Inspector Charles Ramsey was the lead investigator for the
fatality investigation. The investigation began on the day of the fatal
accident. With Ramsey at the mine that day were MSHA Assistant District Manager
Jim Langley, MSHA Supervisor Ron Burns, John Boylen, MSHA roof control
specialist. On the following day, MSHA’s
Dr. Sandlin Phillipson joined the MSHA investigation. More than five months
after the investigation began, MSHA issued the citation and order which are the
subject of the action against Mr. Bentley. As stated in the Introduction,
above, those are Citation No. 8355746, a section 104(d)(1) alleging a violation
of 30 C.F.R. §75.202(a)
and Order No. 8355777, alleging a violation of 30 C.F.R. §75.362(a)(1).[4]
At the hearing, the government moved to add, in its action against Mr. Bentley,
Order No. 8355747, citing 30 C.F.R. §75.360(b),
and alleging that Mr. Bentley was also culpable under section 110(c) for an
inadequate preshift exam.

Though not one of the violations
against Mr. Bentley, by way of pertinent background information, Citation No.
8355745, a section 104(a) citation was issued to Bledsoe Coal alone, alleging
an inadequate roof control plan, per 30 C.F.R. §
75.220(a)(1). Inspector Ramsey stated that he issued that citation because of
the slickenside[5] which fatally
injured miner Brock, as well as for the numerous loose ribs he found on the
section. All of the citations and orders issued in connection with the fatality
involved the 001 MMU (mechanized mining unit), located at the mine’s 8 Mains. The Inspector stated
that where there is a change in mining conditions, there is an obligation to
have the roof control plan address those changes. No one disputes that duty
exists. In the area of the fatality, the coal seam became very small,[6]
as little as 6 inches, and then it quickly became very high. Tr. 59. Such seam
changes can lead to hazardous rib conditions; other times such hazardous
conditions may not develop.

Inspector Ramsey then turned to
Citation No. 8355746, the section 104(d)(1) citation alleging inadequate
support of the ribs, and for which both Bledsoe Coal and Mr. Bentley were each
cited. That citation asserted loose coal/rock ribs at: “#32 Crosscut on the sides and inby corners of
the coal pillar blocks in the #3 and #4 Headings, (2) at #33 Crosscut in the #3
Belt Heading where the upper inby corners of the left and right ribs were
separated from the coal pillar and top approximately 2 inch and in the # 4 Heading where loose coal
was separating from the rib line, and (3) at the # 34 Crosscut in the #3 Belt
Heading, where the right side inby corner of the coal pillar cracked and
separated from the pillar and a part of the rib measuring 3.3 feet to 6.8 feet
thick x 5.5 feet long x 9 feet wide and slid out of the rib line and struck the
continuous miner operator fatally injuring him. In the #3 Heading at the # 34
Crosscut, the 2nd shift foreman’s dates, times, and initials [“DTIs”] were on the exact location of the
loose area of the rib that detached from the rib and slid out, fatally
injuring the continuous miner operator. Upon examination of the pre-shift book
dates, back to January 7, 2010, foremen were writing the following statement in
the “Remarks” section, “Use caution around ribs and
watch for draw rock.” No
written explanation was given as to any measures taken to protect miners
against the hazardous rib conditions.[7] The operator
has engaged in aggravated conduct constituting more than ordinary negligence in
that management did not take measures to ensure safe working conditions around
ribs. This violation is an unwarrantable failure to comply with a mandatory
standard.”[8]
(GX 9, emphasis added), (GX 21, drawing marking loose ribs, including location
of fatal rib roll.) Thus, to be clear, and because the Court considers it to be
important, the dates, times and initials (“DTIs”) were right next to the
location where the slickenside fell out. The Inspector conceded that one would
not put DTIs next to a rock that is about to fall. Tr. 207. As to whether the
foreman, Mr. Bentley, should have seen the slickenside, Inspector Ramsey stated
that he simply did not know. Tr. 207. Although Inspector Ramsey expressed his
view that the various rib problems he noted, six in total,[9]
had existed for days, this was based solely upon his mining experience as he
had no other information, such as rock dusting, to support that opinion. Tr.
83, 149.

Bledsoe Coal, was also issued a
section 104(d)(1) order, asserting an inadequate pre-shift exam occurred on
January 22, 2010 for the 001 MMU at 8 Mains. Order No. 8355747. GX 10. As
alluded to, though not part of the original, two, charges against Mr. Bentley,
shortly before the hearing, the government moved to add that Order as another
110(c) charge against him.[10]

In large measure, that Order repeats the assertions made in
Citation No. 8355746, next above, but it then adds the following: “ (2) the entry width of the
sheared corner of the rib in the #3 Left and #3 Right at #33 Crosscut measured
30 feet. The maximum allowable entry width of the sheared area in the approved
roof control plan is 28.1 feet; (3) in various areas in the #2, #3, and #4
Headings, T-5 dome channel straps were installed over cracks and draw rock in
the roof with a regular 6 x 6 flat roof bolt plate, which is not in accordance
with the manufacturers recommendations; and (4) an area along the left rib in
the #2 entry at #33 Crosscut, that measured 7 feet x 12 feet, was not
completely bolted.[11] The operator
has engaged in aggravated conduct constituting more than ordinary negligence in
that upon inspection of the pre-shift exam book, none of these hazardous
conditions were recorded in the 001 MMU exam book. This violation is an
unwarrantable failure to comply with a mandatory standard.”

The preshift was performed prior to
the start of the day shift on January 22, 2010, the day of the fatal accident. The
onshift, that is the exam on the day of the accident, would have been done
about an hour before the fatal rib roll. That onshift was done by Respondent
Bentley, as the 001 section day shift foreman. As with the preshift
shortcomings alleged by Inspector Ramsey, the absence of problems being noted
in the onshift was construed as a failure to note those conditions. However,
the Court would note again that these admitted absences can be construed
differently, as the absence of such notations also can be asserted to show that
the conditions were not present.[12]

Inspector Ramsey agreed that, as he
was not present when the fatal rib fall occurred, he could not state whether
anyone could have seen if the rib was going to fall, nor could he state whether
it was cracked before it fell, nor if it was “easily
recognizable” before
it fell. Tr. 167. Speaking specifically to Mr. Bentley and whether he knew
there was a slickenside present before it fell, the Inspector acknowledged he
did not know; the rib could have been cracked but it also might not have been. Tr.

169. Further, he admitted that with regard to the crosscut 33 sloughing, that
     condition had no connection with the rib fatality. Nor did he find any
     sloughing in entries

1, 2 or 5. Ramsey also conceded that he could not state with
certainty that rib bolting or even rib wrapping[13]
would have prevented the fatality.[14] Tr. 197.

With regard to the section
104(d)(1) order, which alleged an inadequate preshift exam, and which order, as
noted, was issued to Mr. Bentley and separately to Bledsoe Coal, that Order,
No. 8355777, stated: “.
. . adequate on-shift examinations were not performed on January 21 and 22,
2010, on the 001MMU. The following deficiencies were noted: (1) the 2nd
shift on-shift report for January 21, 2010, did not identify a hazardous rib
condition in the #3 Belt Heading, (2) the 3rd shift on-shift report
for January 22, 2010, did not identify a hazardous rib condition in the #3 Belt
Heading, and (3) the 1st shift on-shift report recorded on January
22, 2010, which was performed approximately 1 hour prior to the fatal accident,
did not identify any hazardous roof condition. All three on-shift examiners
recorded “None
Observed” in the
on-shift record for the #3 Belt Heading. Mine management directed that the
offset in the mine floor be trimmed in the #3 Left Crosscut.” GX 15. As noted, the
absence of noted problems, is capable of two very different interpretations. One,
darker, is that all three of the on-shift examiners saw, but did not record,
the problems. The other outlook is that the problems were not then present. Normally,
conflicting views of such results are resolved by credibility determinations or
inconsistencies in testimony. Here, in the Court’s
view, the inconsistencies were all from the government’s witnesses, who did not all see the same
alleged rib problems, and who had differing interpretations as to whether they
required immediate attention or not.

Inspector Ramsey acknowledged that
the inadequate on-shift allegation was not arrived at until a month after the
other three citations had been drafted. Tr. 226. Here, the on-shift exam would
start about four breaks back from the face; in this instance, that was about
240 feet. While Inspector Ramsey took photographs during his investigation, he
did not take a picture of the asserted 2
inch crack he saw in the No. 3 and No. 4 belt entry. Tr. 239. GX 21, and blue
marking on that exhibit. Nor did the Inspector take a photograph of the loose
ribs he observed. GX 21, pink marking. Tr. 240. Why no photos were taken in
those instances was not explained. Further, and of significance, the Inspector
agreed that a crack in a rib is not necessarily indicative of a hazard. Tr.
240-241. Later, Inspector Boylen, in his testimony, would confirm that rather significant
statement: a crack, by itself, does not mean that there is a bad rib. Tr. 355,

384. Boylen added that a 2
     inch crack at the top of a rib does not inform him that there is a problem; to
     determine that, one must see it firsthand. Tr. 384. Further, Inspector Boylen
     informed that even a good rib may slough off. Tr. 355. In terms of the
     fatality, Inspector Ramsey agreed that it would be unlikely that the victim
     would have placed himself under the rib which fell out if there had been an
     obvious crack present. Most significantly, Inspector Ramsey then conceded that
     it was “probable” that the rock simply came
     loose in one moment with no advance warning. Tr. 251. Referring to the other
     alleged troublesome areas, as circled in blue and pink on GX 21, Inspector
     Ramsey agreed that MSHA’s
     Dr. Phillipson noted some troublesome areas that he did not identify. Thus,
     even Ramsey had to admit that he missed some areas that Dr. Phillipson believed
     were present. Tr. 251-253. This lack of consensus, of identification of alleged
     problems, and even of the location of rib problems, undercuts the 110(c)
     charges. If the lead Investigator could miss areas, while in the process of
     looking for such problems, the idea that Mr. Bentley should have done a better
     job during his onshift exam, not to mention the claim that he knew or had
     reason to know of such conditions, is untenable.

As an overarching consideration in
these charges against Mr. Bentley, the Court considered it to be important that
when it asked Inspector Ramsey to sum up the basis for his conclusion that the
cracks did not develop immediately before the accident but rather developed
over a period of time, he stated: “Well,
in all honesty, I can’t
say really either way because

I didn’t
see the condition before the rock fell out. There may have been no cracks and
yet there may have been some that could have been visible. I honestly can’t say either way because

I didn’t
see the piece before it fell.”
Tr. 276-277.

Such an admission by MSHA’s lead Investigator cannot
suffice to support the section 110(c) charges against Mr. Bentley. The
Inspector maintained that part of his conclusion for the inadequate onshift
assertion against Mr. Bentley was also based on the other loose ribs and
conditions he observed in the area and not solely because of the slickenside
fatality. Tr. 278. When challenged by Counsel for Mr. Bentley about this claim,
the Inspector maintained that his inadequate onshift order was not based solely
on the slickenside even while contending that he simply “forgot”
to list the other conditions. This “oversight” was not corrected until
about three years later, when the Secretary moved to amend its citation in
8355746 to add additional alleged troublesome conditions.

MSHA’s
John Boylen, a roof control specialist and coal mine inspector with long
private and public mining experience, also testified. Inspector Boylen was
assisting Inspector Ramsey with his investigation and he had input into the
allegations included in the citations and orders issued. Tr. 311. In terms of
the “squeeze” or, as it was also
described, “a washout
of the roof,” which
occurred not long before the accident, Mr. Boylen stated that while one must be
observant of such conditions when encountered, sometimes problems will occur
but other times no problems will result. Inspector Boylen’s primary concern and focus
pertained to the mine’s
overall rib control in the area.[15] Tr. 314. In
this regard, he marked on GX 20 those areas of concern to him. It is fair to
state that Inspector Boylen was dismayed over the omissions in the citations
and orders of several areas that he believed needed attention. Such problem rib
areas, which he described as “needing
attention,” would have
been included had he been the one issuing those citations and orders. He did
not become aware of those alleged shortcomings until shortly before the hearing
began. Tr. 319. This problem had consequences for the government’s proof. For example, where
Mr. Boylen marked an as “crushed,” a term he uses as
synonymous for “sloughing,” he could not provide
further detail because he assumed someone would be issuing additional citations
for such areas, but that never happened. Tr. 321. Accordingly, Inspector Boylen
would have issued additional citations, or at least added the other problem
areas in the citations and orders, and citing section 75.202(a), with the
gravity listed as moderate and as “S&S.” Again, no such additional
detail, or citations, were issued. Therefore, while these areas were identified
during his testimony, including claims that several ribs needed “attention” and some that had already “rolled out,” additional citations were
not issued for the problems he perceived. As the Court has taken note of,
neither Mr. Bentley nor Bledsoe can be held to account for alleged problematic
rib areas not identified within the four corners of any citation or order.

Regarding MSHA’s claim that there was an
inadequate preshift exam performed, Inspector Boylen stated that it was “more than likely” that he would have issued
such a claim. Tr. 340. In the Court’s
view, and as he was there at the same time as Inspector Ramsey, this
affirmation falls short, as it was less than a full endorsement of that charge.
Importantly, Inspector Boylen affirmed that the rib conditions that concerned
him did not relate to the fatality. Tr. 352. Further, he stated that he did not
know how things looked, in the location of the slickenside, just prior to the
accident. In an admission that the Court views as supporting Mr. Bentley’s defense, Inspector Boylen
stated that in the area “where
it slid out right adjacent to [the slickenside], it was solid.” Tr. 352. In fact, both
sides of the slickenside were solid. So too, Boylen agreed that one would not
put dates, times and initials right next to a bad rib. Tr. 353.

Inspector Boylen also agreed that
things can change quickly in a mine and that a 2
inch gap can happen in short order. Tr. 356-357. Further, although he, like
Inspector Ramsey, could not know what Mr. Bentley saw during his preshift, it
was still his belief that Mr. Bentley did not see it. Further, Inspector
Boylen did not know if the condition was even present and therefore capable of
being seen before it occurred. Tr. 370. As he saw no evidence of small material
coming off in that location, he inferred in his testimony that there were no
warnings to heed.

In addition, and in the Court’s
view of significance, Inspector Boylen did not feel that Mr. Bentley was a poor
mine foreman. Tr. 382.

Dr. Sandin Phillipson, an MSHA
geologist, also testified for the government. He was at the mine the day after
the fatal event and GX 8 was created by him. That Exhibit reflects his
observations and findings of the accident and nearby area. GX 24 is Dr.
Phillipson’s field
notes associated with this investigation. Consistent with Inspector Boylen’s opinion, Dr. Phillipson
agreed that the average miner or foreman would not have been able to recognize
the slickenside nor able to process and interpret the geometry and therefore
not able to realize that there was a potential for the failure which occurred. Tr.

438. The doctor also told the MSHA investigative team that there was no pillar
     stability problem in the area. His concern was with the acute angled corners of
     the pillars, a subject which has been discussed earlier. Though expressing that
     concern, he acknowledged that such angular crosscuts are a by-product of the
     continuous haulage system.

It is also of note that, while Dr.
Phillipson saw cracks in ribs, he could not tell if they were simply skin cracks
or whether they went all the way through the pillar. Tr. 441. Further, rib
sloughing is not usually an indicator of pillar stability, as it is more of a
skin condition. Even after his investigation was completed, the doctor made no
recommendation for changes in the mine’s
pillar design. Tr. 447. Of particular significance for the charges made against
Mr. Bentley, Dr. Phillipson saw no sloughing or flaking at all coming off the
ribs in the fatal rib roll zone.[16] Tr. 447. It
is also worth noting that Dr. Phillipson expressed that, even if the mine had
been installing rib bolts with the so called “pizza
pan” or “spider plate,” those types of rib bolting
would not have prevented the fatal accident here. Tr. 454.

Dr. Phillipson distinguished the
accident scene area from other locations that gave him concern, with the
latter, in his estimation being areas where an average miner could recognize of
sloughing. As with MSHA’s
other witnesses, the doctor expressed that it was “definitely reasonable” to conclude that the slickenside came out
rapidly and not with several movements that would have provided some warning
that it would occur. Tr. 477. It is also noted that of the 12 or so areas that
Dr. Phillipson marked on his map, representing instances of rib sloughing, he
described them as having the potential to become a hazard. This is
important because he did not conclude that they constituted things that needed
to be attended to immediately.[17]

At the conclusion of the government’s case, Counsel for
Respondent Bentley made a motion to dismiss[18]
on the grounds that a knowing violation had not been established. As Mr.
Bentley’s Attorney
expressed it “ . . .
nobody has pointed to issues that a mine foreman would have seen, would have
known, would have grasped the danger and hazard and then knowingly just refused
to rectify or address those issues.”
Tr. 528.

A ruling was deferred and the case
continued with testimony from witnesses called by the Respondents. John
Caldwell, the mine’s
section foreman and production foreman, was at the mine the night before the
accident. Mr. Caldwell did the onshift exam of the area the day before the
accident and he stated that he did not see any hazards, nor loose ribs, nor
missing bolts. Tr. 540. Later that night, Mr. Caldwell, not Mr. Bentley, also
performed the last preshift before the fatal accident occurred. When the Court
inquired about whether there were problems earlier that week, Mr. Caldwell
advised that there were such problems where things would start to “break away,” but he maintained that
these would not develop until weeks or months had passed. Tr. 596. However,
when these did occur, the mine would wrap such problematic crosscuts.

Kevin Jump, third shift mine
foreman, was also called by Respondent Bledsoe. Essentially, Mr. Jump’s testimony was that, while
he did note some hazards on the shift he worked, he did not see any loose ribs,
nor missing bolts. Tr. 620-622.

Last, Mr. Paul Bentley testified. It
is accurate to state that Mr. Bentley was profoundly shaken by the fatal
accident. At the time of the accident he was the section foreman, but presently
he is a preshift foreman. In this new role, he preshifts outby the working
section. When he arrived at the mine on the day of the fatal accident, at a
time before 7 a.m., he looked at the preshift report from the individual who
performed that task, finding that no hazards were there noted. Mr. Bentley’s shift lasted from 7 a.m.
to 3 p.m. on that day. During the time of his shift, he was not required to
examine outby crosscut 33. He did not find any hazards during his onshift exam
on the day of the accident. Tr. 757. The Court expressly found Mr. Bentley to
be a credible witness.

Discussion

At the conclusion of MSHA’s case, Respondents moved
for dismissal, referring to 29 C.F.R. §2700.67,
entitled “Summary
decision of the Judge.”
This Order deals with the Motion for dismissal for Mr. Bentley. Essentially, as
just noted, Counsel maintained that the government failed to meet its burden of
proof to establish the 110(c) violations[19]
in that no witness for the government “pointed
to issues that a mine foreman would have seen, would have known, would have
grasped the danger and hazard and then knowingly just refused to rectify or
address those issues.”
Tr. 528. For the reasons which follow, the Court agrees that the Secretary
failed to meet its burden of proof in the charges against Mr. Bentley.

Though the label used to convey the
intent behind the motion varies, sometimes being referred to as a “directed verdict,” and other times as seeking
“summary decision,” the purpose remains
constant, with a Respondent essentially contending that the government is not
entitled to prevail as a matter of law. As noted in Clifford Meek v. Essroc
Corporation, “If
during a trial without a jury a party has been fully heard with respect to an
issue ..., the court may enter judgment as a matter of law against that party
on any claim.” 15
FMSHRC 606, (April 1993)[20]

As noted at the outset of this
decision, the Secretary must prove that an individual knew or had reason to
know of the violative condition, not that the individual knowingly violated the
law. Such a violation occurs when an individual in a position to protect
employee safety and health, fails to act on the basis of information that gives
him knowledge or reason to know of the existence of a violative condition. Since
the government’s own
witnesses refuted the claim that Mr. Bentley had such knowledge or reason to
know of the existence of the slickenside, which condition was the initial basis
for its claims against him, that left the other rib problems in the area as the
basis for its claim against him. However, between its three witnesses,
Inspector Ramsey, Inspector Boylen and Dr. Phillipson[21]
and their divergent views of which ribs needed attention,[22]
when coupled with the testimony of Mr. Bentley and other witnesses for the
Respondent, it is clear that the government failed to meet its burden of proof
for any of the three charges brought against Respondent Bentley.

The addition of the preshift
violations, added to show that the conditions existed prior to the onshift
examination conducted by Mr. Bentley, is a classic bootstrap argument. It fails
in two ways. First, as Mr. Bentley did not do the preshift exam for January 22nd,
it is an attempt to show that, because the government alleges that the rib
issues asserted to exist at the time of the onshift exam are also asserted to
have existed during the preshift which preceded it, Mr. Bentley had to have
seen those conditions alleged in the preshift when he did his onshift. The
attempt to pin those preshift conditions on Mr. Bentley, apart from the fact
that he did not do that preshift, require that the conditions were indeed
present at the time of the preshift. Without implicitly ruling on that preshift
charge in the action against Bledsoe Coal in the associated case, KENT
2011-481, the Court notes that the standard of proof is different for a section
110(c) matter than in a matter under sections 105 and 110 of the Mine Act, 30
U.S.C. §§ 815 an 820. The
evidence presented by the Secretary at the hearing was insufficient to
establish section 110(c) liability for either the preshift or onshift charges
against Mr. Bentley.

Not only did the government
witnesses have non-uniform assessments of the presence and/or conditions of
various ribs in the section, with regard to the slickenside fatality rock
slide, the government witnesses could not express whether those conditions were
detectable for Mr. Bentley when he did his onshift report. There was also
agreement that it would be very unlikely that one would then place DTI’s right next to such a
claimed obvious hazard. That being the case, it could hardly be claimed that
they were visible earlier to Mr. Bentley, as implied by the inadequate preshift
charge, for which charge the government points to the absence of noted problems
to show that problems were present. As noted earlier, the fact that all three
on-shift examiners recorded “None
Observed” in the #3
Belt Heading for January 22, 2010, can also be interpreted to mean that no
hazardous ribs were found and not simply that hazards were ignored or
overlooked. As also has been noted, but which bears reemphasis, apart from the
location of the fatal rib fall, MSHA accident investigators themselves did not
see nor assess each of the other rib issues uniformly. The point is that, at
least on this record, it is possible to conclude that different individuals,
including Bledsoe employees, could look at the ribs cited and legitimately
reach different conclusions about the sloughage and whether, if detected, they
were in need of immediate attention or not. Further, while the Court found
Inspector Boylen to be a knowledgeable and credible witness, the government can
hardly establish its case against Mr. Bentley based on rib conditions detected
by Inspector Boylen but not included by the lead investigator in the charges
made against Mr. Bentley or Bledsoe itself for that matter. The government must
be limited to the charges of roof control problems to those it identified in
its citations and orders. That other areas, according to Inspector Boylen,
should have been cited is not the concern of either of the Respondents or the
Court. In terms of Mr. Bentley’s
potential 110(c) culpability, which is the subject of this Order, it is clear
that the evidence falls far short of establishing that he had knowledge or
reason to know of the violative condition, much less that he engaged in
aggravated conduct constituting more than ordinary negligence.

Accordingly, for the foregoing
reasons, all charges against Mr. Bentley are hereby DISMISSED.

SO ORDERED.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 618 Church Street, Suite 230, Nashville, Tennessee
37219-2456

Billy R. Shelton, Esq., Jones, Walters, Turner &
Shelton, PLLC, 151 North Eagle Creek Drive, Suite 310, Lexington, Kentucky
40509

Marco M. Rajkovich, Esq., Rajkovich, Williams, Kilpatrick
& True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, Kentucky
40513

[1]
Counsel for Mr. Bentley and Counsel for the
Secretary have filed a joint motion to sever.

At
the time of the hearing, this docket had been consolidated with docket KENT
2011-481, because the citations and orders issued arose out of the same events.
Subsequently, post-hearing, and at the Court’s
suggestion, the Joint Motion to Sever the two dockets was filed and that Motion
is hereby GRANTED. The severance allows the Court to issue its decision without
waiting to issue its decision in KENT 2011-481, which matter may yet settle.

[2] The rock was estimated to weigh 9.3 tons. Tr. 247.

[3] A few days before the hearing, the government moved
to add a third charge against Mr. Bentley, adding the claim that he performed
an inadequate preshift exam on January 22, 2013.

[4]
The same citation and order were also issued to
Bledsoe Coal. They form, along with a section 104(a) citation, No. 8355745,
invoking 30 C.F.R. §75.220(a)(1) and a section 104(d)(1) order, citing 30
C.F.R. §75.360(b), the matters in the separate action against
Bledsoe Coal in Docket No. KENT 2011-481.

[5]
The term “slickenside” was variously described by witnesses. Ramsey defined
it as a condition where two planes meet; a coal plane meeting a rock plane. Tr.

59. Later, he added that it refers to situations where there is a sharp
    increase in the coal seam, which can cause a side to slide out. Tr. 167.

[6]This was great narrowing of the seam was also
described as a “washout”
and a “squeeze.”

[7]
John Caldwell, section foreman, later testified
that the notation in the exam book to “use
caution around ribs and watch for draw rock,”
was included because the mine had some troubles outby and had been wrapping
ribs. However, he maintained this problem was outby the track entry, and outby
the working section. Tr. 575. In contrast, another witness for the Respondent,
Kevin Jump, had a different interpretation of that phrase as he expressed that
its use was more than a simple warning and informed that the mine is “going through some changes.” Tr. 662. With regard to the parties conflicting
claims as to the import of the preshift report warnings to watch out for bad
roof, the Court, upon hearing the various testimonial views, concludes that it
was a general safety warning and not, as MSHA has implied, a tacit admission
that the mine knew there were serious roof and rib problems.

[8]
It is worth remembering that statements and
conclusions in any citation or order are assertions. When challenged, as here,
it is up to the Court to make the findings of fact and conclusions of law
regarding the content of such documents issued by MSHA’s authorized representatives.

[9]
While GX 21 lists other areas of alleged rib
sloughing, Inspector Ramsey personally observed only the areas noted in his citation.
Tr. 93. The other areas of rib sloughing indicated on GX 21 were found by MSHA’s Dr. Phillipson.

[10] Some 4 2
months after the fatal rib roll, upon completing its investigation, MSHA issued
the citations and orders associated with this matter against Mr. Bentley and,
in KENT 2011-481, against Bledsoe Coal. However, the motion to add the charge
of an inadequate pre-shift against Mr. Bentley did not occur until nearly three
years later, shortly before the hearing. On the second day of the hearing the
Court ruled that the motion to add the preshift violation to the charges
against Mr. Bentley was granted. The effect of the motion, procedurally, was to
graft the preshift allegations onto the onshift charges.

In
granting the motion, the Court noted that proof was still needed to sustain
that charge against Mr. Bentley. Tr. 303. It is noteworthy that Inspector
Ramsey never alluded to any alleged preshift inadequacies in his deposition. Instead
the preshift charge against Mr. Bentley was not added until years later. Ultimately,
by this Order, the Court has concluded that the government failed to meet its
burden for any of the three charges it has brought against Mr. Bentley.

[11] The Inspector stated that at least 3 more bolts were
needed in this area; however that incomplete bolting did not contribute to the
fatality. Tr. 222. To put this in perspective, there were more than a thousand
bolts from crosscuts 31 to 34. Tr. 267.

[12]
A separate basis for the Inspector’s conclusion that the conditions noted had existed for
some prior period of time and had not just arisen, was the remark in the
preshift and onshift reports to “use
caution around the ribs and watch for draw rock.” Tr. 132-133, 136. This issue is potentially of more import for the
charges against Bledsoe, than for those against Mr. Bentley.

[13] Further, the pillar where the fatal rib roll occurred
was not yet formed when the fall occurred.

A
rib wrap is not an option until a pillar is fully formed. Tr. 177-178.

[14]
Complicating the matter further, Inspector
Ramsey agreed that it was possible that the rib slide might not have occurred
if the rib corners had been permitted to be trimmed, as Bledsoe had requested
for years. Tr. 198.

[15]
This contention carried its own problems; rib
sloughing could be argued to be a problem for which MSHA played a role. Although
this is an aspect of more significance for any civil penalties which may be
issued in the proceedings against Bledsoe Coal itself, Inspector Boylen
informed that the pillar corners in this area were laid out on 60 degree angles
and that such sharp angles are more prone to fall and accordingly it is not
unusual to see corners slough off. Bledsoe had requested permission to cut its
sharp angled corners but MSHA, at that time at least, denied that request. Bledsoe’s general manager, David Osborne, later testified that
it had asked MSHA to allow its roof control plan to be modified to permit
removal of the sharp corners from the pillars. Tr. 680. But it was not until
after the fatality, that this request was approved. Tr. 354.

[16]
In contrast, Dr. Phillipson did see “problems,”
that is, evidence of sloughing on the pillar corners and the ribs beginning
around crosscut 16 and through the No. 4 entry up to crosscut 33.

[17]
Dr. Phillipson had only one exception to his
remark that the sloughing he observed did not need immediate attention. The
lone area needing attention right away, in his view, was “the corner bounded by the red line with the 40.” For that one location, he believed attention was
needed sooner, rather than later. Tr. 479-480.

[18]
Counsel for Bledsoe Coal also made a motion for
dismissal at the conclusion of the government’s case. That motion was denied.

[19]
Mr. Bentley’s
Counsel emphasized that “knowingly” is
the key word in matters 110(c). Placing the charges in context, Counsel Shelton
noted that initially the onshift charge, per Order No. 8355777, covered only
the location of the fatal accident. Then the Secretary amended that Order to
add the other areas listed in Citation No. 355746, the insufficiently supported
ribs charge. Still later, the Secretary moved to add the areas listed in the
preshift charge issued to Bledsoe, then adding those areas against Mr. Bentley
too.

[20]
It is clear that the Court can decide a matter
after hearing the evidence without waiting for post-hearing briefs. A few
examples follow. In Sec. v. Drummond Company, Inc., 14 FMSHRC 2039,
(Dec. 1992, ALJ) the Court granted Drummond’s
motion, seeking “a directed verdict arguing that based on the
Secretary's case alone, it was clear that the violation charged was fully
abated at the time the Section 104(b) order was issued and that the Secretary
was without authority under that section to require it to take the additional
specified action beyond what was necessary to remedy and correct the violative
condition cited.” The motion was granted in a bench decision. In Secretary
v. Consolidation Coal ,

11 FMSHRC 311 (March 1989), “[a]t the conclusion of the Secretary's case‑in‑chief,
Consol moved for a directed verdict on the grounds that the Secretary's
evidence did not support a violation of the cited standard. The Motion for
Directed Verdict (See Fed. R. Civ. P.41(b) applicable hereto by virtue of
Commission Rule 1(b), 29 C.F.R. 2700.1(b)) was granted at hearing . . .” The judge found that “the matter that [was] before [him] and clearly from the undisputed evidence
presented by the government there [was] no violation of the cited standard, the
standard with which [there had been] evidence throughout the government's case
and upon which the operator has been conducting its cross‑examination . . .
there has been no violation of that standard based on the evidence presented.” That being the case, the motion for directed verdict
was granted. In Secretary v. Cyprus Emerald Resources, 10 FMSHRC 1417
(October 1988), at the conclusion of the Secretary's case‑in‑chief, Emerald
filed a motion for directed verdict and a motion for summary decision. “The Motion for Directed Verdict (See FED.R.CIV.P.41(b)
applicable hereto by virtue of Commission Rule 1(b), 29 C.F.R. 2700.1(b) was
granted at hearing and that decision appears as follows with only non‑substantive
corrections . . .”

In
Jim Walter Resources, Inc. v. Secretary, 34 FMSHRC 1386, (June 2012), at
the conclusion of the Secretary's case, the Respondent made a motion for
summary decision, arguing that the Secretary failed to establish a prima facie
case that it violated Section 77.400(d). After listening to oral arguments, the
motion was granted in an oral decision. In Eastern Associated Coal v.
Secretary, 22 FMSHRC 1020, (August 2000), “[a]t the conclusion of the Secretary's case, Eastern made a motion for
a summary decision. After listening to arguments from both counsel a decision
was made granting the motion.” Finally, in Aluminum
Company of America v. Secretary, 15 FMSHRC 1821 (September 1993), the
Commission noted that at “ the conclusion of the Secretary's case, the judge
entered a decision from the bench granting Alcoa's motion to dismiss. The judge
subsequently issued a written decision confirming his bench decision. While the
judge credited the testimony of the Secretary's witnesses, including expert
testimony as to the hazardous nature of mercury . . ., he held that the Mine
Act gives the Secretary the authority to issue a section 103(k) order only if
there has been an accident, as that term is defined by section 3(k) of the 1824
Mine Act. . . . The judge concluded that the Secretary did not prove that the
mercury contamination detected in the R‑300 area was the result of an accident
and, accordingly, he vacated the section 103(k) order.”                                                                                     

[21]
As Counsel for Mr. Bentley correctly
characterized the testimony of Dr. Phillipson, while there were some problems
that he perceived with the ribs, they did not need to be corrected immediately.
That being the case, they were outside of the preshift and onshift responsibilities
of a mine foreman. Tr. 528-529.

[22]
There were other instances of MSHA’s right hand not being sure about what its left was
doing. For example, while Inspector Ramsey found a problem with the rib at the
left inby corner of Belt entry 3 at crosscut 32, Inspector Boylen, while
admitting he was in the same area, did not detect such a problem. Tr. 376.