Secretary of Labor v. Alden Resources, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued five citations at Alden Resources' low-seam underground coal mine after a rock-fall cleanup and later inspections. Judge Thomas P. McCarthy affirmed an S&S violation for failing to reactivate an automatic signal on a ventilation fan, assessing $1,026, but vacated a related recordkeeping citation because the fan was not operating on May 6 and the May 7 defect was corrected before the shift ended. He affirmed an S&S, high-negligence lifeline violation after required tactile markers were left off a replacement line for at least nine shifts, reducing the affected-miner count to 10 while keeping the $3,405 penalty. He also affirmed an S&S, high-negligence violation for inadequate preshift examinations that repeatedly missed the defective lifeline, but reduced the alleged gravity and assessed $3,406 instead of the proposed $25,163. Finally, he affirmed an S&S violation for a defective roof-bolter dust-collection system that exposed two operators to respirable dust and assessed $425. The total penalty for the five litigated citations was $8,262.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.310(a)(3), 75.312(g)(1), 75.380(d)(7)(vi), 75.360(b)(1), and 72.630(b)
• Outcome: Two citations were affirmed, two were modified, one was vacated, and total penalties of $8,262 were assessed.
• Key point: Underground examination and emergency-system duties remain enforceable when hazards are obvious, while gravity and penalty findings still require evidence tied to the specific cited conditions.

Full text (FMSHRC public release)

FO#5D.WPD

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

May 1, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH  

ADMINISTRATION
(MSHA),

Petitioner

v.

ALDEN
RESOURCES, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2013-960

A.C.
No. 15-17691-325489-02

Mine:

3

DECISION AND ORDER

Appearances:               Ryan
L. Pardue, Esq., Office of the Solicitor, Department of Labor,

Denver,
Colorado for Secretary of Labor

Billy
R. Shelton, Esq., Jones, Walters, Turner, & Shelton, PLLC, Lexington,
Kentucky for Alden Resources, LLC

Before:            Judge
McCarthy

I.  Statement of the Case

These
cases are before me upon a petition for assessment of civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d).1 The parties stipulated to, inter
alia, jurisdictional issues, interstate commerce, operator and authorized
representative status, authenticity of exhibits, and that the proposed
penalties will not affect Respondent’s ability to remain in business.  Tr. I.
8, Jt. Ex. 1.   

An
evidentiary hearing was held in London, Kentucky at which witnesses were
sequestered. The parties presented testimony and documentary evidence and filed
post-hearing briefs.2

The
primary issues presented are whether the five contested 104(a) citations at
issue were properly written with appropriate proposed assessments. After careful
review of the record, I affirm, Citation No. 8378378, as written, and assess a
$1,026 civil penalty, as proposed, for the significant and substantial
(S&S) violation of 30 C.F.R. § 75.310(a)(3) because the automatic fan
signal on Fan No. 2 was de-energized and not working. I vacate Citation No.
8378379 alleging a violation of 30 C.F.R. 75.312(g)(1) because there was no
record in the ventilation book that Fan No. 2 was examined on May 6 or 7, 2013.
I modify amended Citation No. 8378383, alleging high negligence for a
significant and substantial (S&S) violation of 30 C.F.R. § 75.380(d)(7)(vi)
due to missing spheres and other components on the primary escapeway lifeline,
to reduce the number of miners affected from 13 to 10. I assess a civil penalty
of $3405, as proposed. I modify Citation No. 8378384, alleging that Respondent
violated 30 C.F.R. § 75.360(b)(1) because its examiners were failing to perform
adequate examinations, to reduce the likelihood of injury or illness from “highly
likely” to “reasonably likely, to reduce the injury or illness that could
reasonably be expected to occur from “fatal” to “lost workdays or restricted
duty,” and to reduce the number of miners affected from 13 to 10.  I reduce the
penalty from the $25,163 proposed and assess a civil penalty of $3,406. I
affirm Citation No. 8407725, as written, and assess a $425 civil penalty, as
proposed, for the S&S violation of 30 C.F.R. 72.630(b) for failure to
maintain the dry dust-collection system on the twin-head, roof-bolting machine
in permissible and safe operating condition.  I assess a total civil penalty of
$8,262 against Respondent for the five litigated citations.     

On
the entire record, including my observation of the demeanor of the witnesses,3 and after considering the post-hearing briefs, I
make the following:

II. Findings of Fact

A.        Background

Respondent
operates Mine #3, a deep, underground, bituminous coal mine in Knox County,
Kentucky.  Coal is extracted through room-and-pillar mining below the water
drainage level from the blue gem seam of coal, which is usually about 24-27
inches in height.  Tr. I, 20.  The pillar entries are no more than 20 feet wide
and about 40 inches high. Tr. I , 20-21, 114.  

The

3 intake entry and primary escapeway is a sloped road that serves as the main travelway

for miners in and out of the mine. The road is rough, wet, and well-traveled by
equipment and it extends from the portal to the loading point at crosscut #68,
just outby the last open crosscut, where the lifeline begins. Tr. I, 109,
112-113, 121-22, 128; P. Ex. 10.  The mine has several pumps for water control
because a little bit of water can be a big problem for the small mine.  Tr. II,

14. Miners can’t walk and must crawl through the travelways, or use
    battery-powered vehicles. Tr. I, 113-14.

There
are two ventilation fans. Tr. I, 21-22.  Both fans are loud.  Tr. I, 58. The
No. 1 fan ventilates the active section of the mine where the miners are
working and has the capacity to deliver 93,430 cubic feet per minute of air. Tr.
I, 52-53. The No. 2 fan provides a maximum of 16,500 cubic feet per minute of
fresh intake air from the surface to crosscut 32, where it splits off from the
main intake to travel across the sealed entries, outby, and back out the mine. Tr.
I, 25-26, 54-55. Respondent’s underground mine manager, Fred Shannon, testified
that the No. 2 fan does not assist the No. 1 fan in ventilating the face areas
at the mine, and is used to pull air across the sealed areas on a separate
split of air. Tr. II, 19-20. Although the air from the No. 2 fan does not sweep
across the working face, the pressure between the two fans allows the No. 2 fan
to pull air from the face entry out of the mine. Tr. I, 55-57. Therefore, if
the No. 2 fan is de-energized and no longer providing return air across the
sealed areas, it would allow the No. 1 fan to pull air up through and across
the sealed areas and pull it onto the working sections. Tr. I, 27.  Accordingly,
when the No. 2 fan is not functioning, air from the sealed areas is pulled onto
the working section and mixes with other air going up the entry. Tr. I, 55-56,
70-71.

On
April 18, 2013, a rock fall at crosscut 25 blocked the #3 intake entry and
primary escapeway.  Tr. II, 12-14; R. Ex. 3, p. 2; P. Ex. 16 (map depicting
rock fall). On April 19, 2013, Respondent requested a temporary revision to the
MSHA-approved ventilation plan to cleanup the rock fall.  The extant
ventilation plan required Respondent to have the Nos. 1 and 2 ventilation fans
running at all times.  Tr. II, 90.  Respondent’s proposed revision and action
plan provided that Fan No. 2 would be temporarily idled during cleanup of the
rock fall to allow the following: two common intakes on the No. 1 belt mains,
relocation of the primary escapeway into the adjacent entry from break 26 to
break 22, and examination of the entire intake air course prior to anyone else
entering the area. Once the rock fall was cleaned, the escapeway and
ventilation was to be returned to normal.  On April 19, 2013, MSHA approved the
ventilation plan revision, as requested.  R. Ex. 3.  Fan No. 2 was shut down
during the cleanup period and no coal production occurred. Tr. II 84, 92, 95.

An
automatic fan signal is a mechanical device that monitors ventilation force and
provides an audible and visual warning signal if a fan slows or stops providing
ventilation. Tr. I, 28-29.  When air pressure from a fan is insufficient
to keep the fan’s paddle raised, the paddle falls and activates a visual and
audio signal.  Id. The triggered signal activates a buzzer and light to
alert a responsible person on the surface that the fan has slowed or stopped. Tr.
I, 29-30.

After
the No. 2 fan was turned off on April 19, 2013, the disconnect for the fan
signal was pulled so that the signal would not activate during the stoppage. Tr.
II, 27.  When production resumed on May 7, 2013 and the No. 2 fan was turned
back on, no one re-engaged the disconnect to allow the automatic fan signal to
start working again. Tr. II, 26-28.

B.        Citation
Nos. 8378378

On
May 7, 2013, inspector Scott Mullis4
issued Citation 8378378 alleging a Section 104(a) violation of 30 C.F.R. § 75.310(a)(3)
because the automatic fan signal on the No. 2 fan was de-energized and not
working. P. Ex. 7.  Section 75. 310(a)(3) mandates:

(a) Each mine fan shall be -- . .
. (3) Equipped with an automatic device that gives a signal at the mine when
the fan either slows or stops.  A responsible person designated by the operator
shall always be at a surface location at the mine where the signal can be seen
or heard while anyone is underground. This person shall be provided with
two-way communication with the working sections and work stations where persons
are routinely assigned to work for the majority of a shift.

The
responsible person at this mine is located in a metal-roofed, office building
about 150 feet from Fan No. 2's automatic fan signal. Tr. I, 35, 58-59.

At
the time the citation issued, 12 men were working underground. Tr. I, 34.  Inspector
Mullis determined that the violation was significant and substantial (S&S)
because an injury was reasonably likely to occur and result in lost workdays or
restricted duty.5 Further, Mullis determined that
the operator’s negligence was moderate, and 12 persons were affected. The
Secretary proposed a penalty of $1,026.  

Respondent
stipulated that it violated mandatory safety standard 30 C.F.R. § 75.310(a)(3),
but contests the S&S designation and the appropriateness of the $1,026
proposed penalty. Tr. 267; R. Br. 8, 10, 11.  For the reasons set forth below,
I affirm the citation, as written, and assess a $1,026 civil penalty. 

1.         S&S,
Moderate Negligence, and Civil Penalty Analysis

The
stipulated violation contributed to a discrete safety hazard or measure of
danger to safety.  Without a functional fan signal alerting the responsible
person on the surface that Fan No. 2 had stopped, it is likely that miners
underground would not know that air from Fan No. 2 had been reduced or stopped,
and take timely corrective action to fix the fan or evacuate the mine within 15
minutes after fan stoppage. See 30 C.F.R. §75.313. The violation contributes to
potential ventilation hazards underground, such as low oxygen or contaminated,
toxic air emitted from the sealed areas ventilated by Fan No. 2. Tr. I, 63. Accordingly,
the absence of a functional warning signal on Fan No. 2 contributed to a
discrete safety hazard or measure of danger to safety.

Further,
substantial evidence in the record establishes a reasonable likelihood that the
ventilation hazards of low oxygen or contaminated, toxic air contributed to by
the non-functioning automatic fan signal on Fan No. 2 would result in an injury
during normal, continued mining operations.  It is axiomatic that ventilation
and atmospheric conditions in underground mining are dynamic, not static, and
change quickly. Without a functional fan signal alerting the responsible person
on the surface that Fan No. 2 had slowed or stopped, the person designated by
the operator to be on the surface where the signal can be heard or seen would
not be alerted to the change in ventilation in order to get word to the 12
miners working underground that the fan had slowed or stopped.6 Those miners would likely be unaware of the dangers
posed by the changing atmosphere and their potential exposure to low oxygen, or
to harmful, toxic gases emitted from the sealed areas ventilated by Fan No. 2,
which would impact the air quality of miners working inby.  

Mullis
testified that clean air from the No. 1 fan that was sweeping across the
working area "could possibly be contaminated, because it would start
pulling air back up the entry marked in green, up by those seals and pull it
across the working face." Tr. I, 63. When asked on cross what would it
pull, Mullis testified “[i]f you had a leaking seal, it could be methane. It
could be low air, black damp, numerous different -- it could be explosive
gases. It could be toxic gases.” Tr. I, 63.7
 Mullis further testified on cross that “[t]here was an issue prior to that,
their production going down, they had an issue with a seal, and it had a water
issue and that was one of the purposes for this fan being in place. And I’m not
sure that it [methane] was 3 percent, but I remember seeing something in the
old records of the mine.” Tr. I, 65-66.

The
following colloquy on redirect examination of inspector Mullis bolsters my
finding that the discrete ventilation hazards contributed to by the
non-functioning automatic fan signal made it reasonably likely that the 12 miners
working underground would suffer injury under normal continued mining
operations.

Q. Now, Mr. Shelton asked you
about personal air-reading devices. Would one of those devices mitigate the
hazard you were concerned about?

A. They should if they're calibrated
and working properly.

Q. Why was the hazard you were
concerned about then reasonably likely to result in injury?

A. Toxic gases more than
explosive. The seam that they're working is not known to produce that much
methane, but the gases themselves from the sealed area, the low oxygen levels
and toxic, make them nauseated. And if there was enough of low oxygen, then,
you know, it could be worse.

Q. Now, there was a lot of
discussion about which fan has intake air towards the face. Does the #2 fan
impact the working section at all?

A. It provides additional intake
air going up the intake, yes. It provides more volume up that entry.

Q. Just so I understand, why is
the #2 fan vital then for the ventilation system?

THE COURT: Well, vital is kind of
a leading term. But it's out of the bag. Go ahead.

A. That fan, as its purpose is
shown on this ventilation map, was it was being used to withdraw the air from
those sealed areas, keeping it from going onto the working section.

Q. If the #2 fan was shut down,
where would the hazards be located that you were worried about?

A. From -- it would draw air from
across all those sealed entries shown on that ventilation map and would mix in
with the other air going up the intake.

Q. Was the only hazard you were
concerned about at the working face?

A. No. Anyone inby crosscut #32
where that air was mixed with the other air would be exposed.

Tr. 1,
70-71.

While
Respondent argues that MSHA allowed miners to work underground during the rock
fall cleanup when Fan No. 2 was shut down, no production was occurring at this
time and an additional examination requirement was implemented under the
revised ventilation plan for the entire air course, including the sealed areas,
to ensure that ventilation was safe. Tr. 73-74; R. Ex. 3, p. 2. Such would not
be the case if Fan No. 2 stopped or slowed unexpectedly.  Thus, due to the
discrete ventilation hazards contributed to by the deactivated warning signal
on Fan No. 2, miners faced a reasonable likelihood of injury.

Without
a functional warning signal, the 12 miners working underground would also face
delays in leaving the mine within the 15- minute mandate established by MSHA if
the fan stopped and could not be restarted, thereby heightening their risk of
injury from exposure to ventilation hazards such as low oxygen, or harmful,
noxious and/or toxic gases emitted and pulled from the sealed areas ventilated
by Fan No. 2 toward the working face. Tr. I, 32-33.8
 Accordingly, during continuous underground mining operations, I find that it
is reasonably likely that the hazards of low oxygen or contaminated, toxic air
contributed by the non-functioning automatic fan signal on Fan No. 2 would
result in an injury from miners' exposure to improper ventilation. Tr. I, 40.

Finally,
with respect to the fourth Mathies factor, I credit Mullis’ testimony
that the exposure to improper ventilation would result in a reasonably serious
injury. Mullis testified that black damp or low oxygen has been known to kill
miners, but that lost workdays or restricted duty was the most likely injury
from exposure to improper ventilation because the miners "would become
nauseated before they knew what was going on with them and they would become
ill from oxygen deprivation." Tr. I, 39-40, 70; P. Ex. 7.  

Accordingly,
having found that all four elements of the Mathies test are satisfied,
the undersigned affirms the S&S and gravity designations for Citation No.
8378379.  

On
brief, and at the hearing, Respondent did not specifically challenge the
moderate negligence designation for Citation No. 8378379, although Respondent’s
answer generally denies the gravity and negligence designations for all
citations at issue.  

When
assessing penalties, section 110(i) of the Mine Act requires the Commission to
consider, inter alia, whether the operator was negligent. 30 U.S.C. §
820(i). Each mandatory standard carries with it an accompanying duty of care to
avoid violations of the standard. If a violation of the standard occurs, an
operator’s failure to meet the appropriate duty of care can lead to a finding
of negligence. A.H. Smith Stone Co., 5 FMSHRC 13 (1983).

For
purposes of assessing a proposed penalty, the Secretary, by regulation, defines
conduct that constitutes negligence under the Mine Act as follows:

Negligence is conduct, either by
commission or omission, which falls below a standard of care established under
the Mine Act to protect miners against the risks of harm. Under the Mine Act,
an operator is held to a high standard of care. A mine operator is required to
be on the alert for conditions and practices in the mine that affect the safety
or health of miners and to take steps necessary to correct or prevent hazardous
conditions or practices. The failure to exercise a high standard of care
constitutes negligence. The negligence criterion assigns penalty points based
on the degree to which the operator failed to exercise a high standard of care.
When applying this criterion, MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or
correct hazardous conditions or practices. This criterion accounts for a
maximum of 50 penalty points, based on conduct evaluated according to Table X.  

30
C.F.R. § 100.3(d).  Moderate negligence occurs when “[t]he operator knew of
should have known of the violative condition or practice, but there are
mitigating circumstances.” Id.

In
designating Respondent’s negligence as moderate, Mullis determined that there
were mitigating circumstances because the signal was in place, but the switch
had been installed inline with the signal and had been turned off and never
turned back on when Fan No. 2 was restarted. Tr. I, 41-42.  I agree with the
Secretary that Respondent should have known that the automatic fan signal was
off and was not turned back on when Fan 2 was restarted, and that Respondent
should have had a system in place to ensure that the automatic fan signal was
switched on each time Fan No. 2 was restarted.  P. Br. 15. In these circumstances,
I affirm the moderate negligence designation.

I
have evaluated the Secretary's proposed penalty in light of my findings and the
principles announced in my final Big Ridge decision. Big Ridge Inc., 36
FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ).  I find that the penalty proposed
by the Secretary of $1,026 is consistent with the statutory criteria set forth
in section 110(i) of the Mine Act.  30 U.S.C. 820(i).  Accordingly, I assess a
$1,026 civil penalty against Respondent for Citation No. 8378378.

C.        Citation
8378379

On
May 7, 2013, after issuing Citation No. 8378378, Mullis also issued 104(a)
Citation No. 8378379 during the first shift at 11:10 a.m.  Citation No. 8378379
alleged a violation of 30 C.F.R. 75.312(g)(1) because there was no record in
the ventilation record book that Fan No. 2 was examined on May 6 or 7, 2013.  Tr.
I, 76, 78; P. Ex. 9. Citation 8378379 further alleged that the violation was
unlikely to cause a no-lost-workdays injury, that 12 persons were affected, and
that the violation resulted from Respondent’s high negligence. P. Ex. 9.  The
Secretary proposed a penalty of $460.  The citation was terminated after the
results of the examination were recorded in the ventilation record book on May
7, 2013 at 11:20 a.m., before the end of the first shift. Tr. I, 90; P. Ex. 9.

30 C.F.R § 75.312
provides, in pertinent part:

Main mine fan examinations and
records.

(a) To assure electrical and
mechanical reliability of main mine fans, each main mine fan and its associated
components, including devices for measuring or recording mine ventilation
pressure, shall be examined for proper operation by a trained person designated
by the operator. Examinations of main mine fans shall be made at least once
each day that the fan operates, unless a fan monitoring system is used. No
examination is required on any day when no one, including certified persons, goes
underground, except that an examination shall be completed prior to anyone
entering the mine. . .

(c) At least every 31 days, the
automatic fan signal device for each main mine fan shall be tested by stopping
the fan. Only persons necessary to evaluate the effect of the fan stoppage or
restart, or to perform maintenance or repair work that cannot otherwise be made
while the fan is operating, shall be permitted underground. Notwithstanding the
requirement of §75.311(b)(3), underground power may remain energized during
this test provided no one, including persons identified in §75.311(b)(1), is
underground. If the fan is not restarted within 15 minutes, underground power
shall be deenergized and no one shall enter any underground area of the mine
until the fan is restarted and an examination of the mine is conducted as
described in §75.360(b) through (e) and the mine has been determined to be
safe. . .

(f) Certification. Persons making
main mine fan examinations shall certify by initials and date at the fan or
another location specified by the operator that the examinations were made. Each
certification shall identify the main mine fan examined. . . .

(g) Recordkeeping. By the end of
the shift on which the examination is made, persons making main mine fan
examinations shall record all uncorrected defects that may affect the operation
of the fan that are not corrected by the end of that shift. Records shall be
maintained in a secure book that is not susceptible to alteration or
electronically in a computer system so as to be secure and not susceptible to
alteration.

When asked whether
Fan No. 2 was operating on May 6, 2013, Mullis testified, “[e]vidently so”
because “they worked the day before.” When asked how he knew that, Mullis
testified, “They were on the property. They were preparing. Their records
showed that they were working that day.” Tr. I, 77.  Subsequently, on
questioning from the undersigned, Mullis testified that he just assumed that
the men were working underground on May 6, 2013.  Tr. I, 91.  

Mullis also
determined that Fan No. 2 was operating on May 6, 2013 because there was no
daily entry or indication on the manual chart monitoring system on the side of
the fan housing that Fan No. 2 had been down.  Mullis testified that Fan No. 2
would have been running on May 6, 2013 according to the graph. Tr. I, 81-82.  This
testimony begs the question of whether a daily entry was required because the
fan was operating. Neither the Secretary nor Respondent produced the graph. As
noted, a revision to the ventilation plan allowed for stoppage of Fan No. 2,
but required that "ventilation and primary escapeway will be returned to
the current plan (requiring Fan 1 and Fan 2 to run) as soon as the rockfall is
cleaned." R. Ex. 3; Tr. II. 89-90.  On redirect, Mullis acknowledged that
the fan stoppage plan permitted Fan No. 2 to be stopped on May 6, 2013. Tr. I,
106.  

Additionally, Mullis
testified that mine examiner, Dave Faulkner, told him that he had done an
examination for May 6, 2013, but failed to record it.  Tr. I, 83-84, 90-91.  Faulkner
did not testify.  Mullis testified that if Faulkner did do the examination, he
did a “poor one” because he did not find the fan signal inadequate. Tr. I, 86. Mullis
cited the record-keeping standard in 75.312(g)(1) and not 75.312(a), i.e., the
standard related to Respondent's failure to conduct a mine fan examination,
because Mullis took Faulkner at his word that an examination had been
completed, but just not recorded. Tr. I, 86,104-05.

Mine manager Shannon
credibly testified that the Fan No. 2 was not turned back on until May 7, 2013,
after the rockfall cleanup was completed and the area re-supported on May 6,
2013. Tr. II, 94-95, 98. Shannon testified that pre-shift examiner Faulkner
would not include the fact that Fan No. 2 was off in his pre-shift examination.
 Tr. II, 99.  

Respondent
argues that Mullis assumed that Fan No. 2 was in operation on May 6, 2013
because miners were working underground.  R. Br. 12, citing Tr. I, 77. Respondent
also argues, inter alia, that there was no need for an examination of the Fan
No. 2 on May 6, 2013 because it was not running that day.  R. Br. 12-13, citing
Tr. I, 104, Tr. II, 36.  Further, Respondent argues that there was no violation
for the pre-citation failure to record a fan examination on May 7, 2013,
because the results of that examination were recorded 10 minutes after the
citation was issued at 11:20 a.m., and therefore prior to the end of the shift
under § 75.312(g)(1). R. Br. 13.

1.         Discussion
and Analysis

§75.312(a)
requires that all ventilation fans and associated component parts, including
devices for measuring or recording mine ventilation pressure (i.e., an
automatic fan signal), shall be examined for proper operation at least once
each day that the fan operates. See Tr. I, 106-07.9
 §75.312(g) requires that “[b]y the end of the shift on which the examination
is made, persons making main mine fan examinations shall record all uncorrected
defects that may affect the operation of the fan that are not corrected by the
end of that shift. . . .”

The
Secretary failed to establish by a preponderance of evidence that Fan No. 2 was
operating on May 6, 2013 such that a §75.312(a) examination was required or the
deenergized fan signal needed to be recorded. Although miners were underground
that day finishing the roof fall cleanup and re-support, the Secretary failed
to establish that Fan No. 2 was operating. Mullis conceded that if Fan No. 2
was not operating, no examination was required. Tr. I, 104. Shannon credibly
testified that Fan No. 2 was not turned back on until May 7, 2013, after the
rockfall cleanup was completed and the area re-supported on May 6, 2013. Tr.
94-95, 98. Since no examination was required on May 6, 2013 under §75.312(a),
the failure to record the non-functional automatic fan signal on Fan No. 2 by
the end of the shift on May 6, 2013 was not a violation of §75.312(g).  In
addition, Fan No. 2 was not operating on May 6 so there was not yet any
recordable event for a non-functioning fan signal.

An
examination of the Fan No. 2 automatic signal was required on May 7, 2013 when Fan
No. 2 was turned back on and production resumed on the first shift.  By the end
of that shift, the mine examiner was required to record all uncorrected defects
that may affect the operation of the fan that had not been corrected by the end
of that shift.  The automatic fan signal violation in Citation 8378378 was
terminated at 11:00 a.m. when the operator energized the automatic fan signal
switch and it operated properly.  P. Ex. 7. The alleged record-keeping
violation described in Citation 8378379 was terminated on the first shift on
May 7, 2013 at 11:20 a.m. when the examiner recorded his findings. P. Ex. 9.  I
find no record-keeping violation under §75.312(g) for May 7, 2013 because by
the end of the shift on which the examination was made, there was no longer any
uncorrected defect that affected the operation of Fan No. 2. Accordingly, I
vacate Citation 8378378.  

D.        Citation
No. 8378383

The
body of Citation No. 8378383 focuses on missing spheres on the primary
escapeway lifeline and tracks the language of § 75.380(d)(7)(vi) rather than §
75.380(d)(7)(vii), as alleged.  The Secretary did not seek to amend the
citation at hearing to reflect an alleged violation of § 75.380(d)(7)(vi). On
post-hearing brief, however, the Secretary belatedly moved for conformance of
the pleadings to the evidence adduced at trial. P. Br. 20-21.

Fed.
R. Civ. Proc. 15(b), applicable under Commission Procedural Rule (1)(b),
provides for conformance of pleadings to the evidence adduced at trial, and
permits adjudication of issues that were actually litigated by the parties
irrespective of pleading defects.  Moreover, mere delay, regardless of length,
does not bar a proposed amendment, absent prejudice.  See, e.g., 3 J.
Moore, Moore's Federal Practice Par. 15.08[4] (2d ed. 1989).

The
record indicates that Respondent understood the nature of the violation
charged, i.e., that spheres were missing from the lifeline, and litigated the
case on that basis. Tr. I, 279.  At hearing, Respondent conceded that there was
a violation of § 75.380 because of the missing spheres and limited its defense
to issues concerning the gravity, negligence and S&S designations, the 13
miners allegedly affected, and the appropriateness of the $3,405 proposed
penalty.  Tr. I, 118-19; 279. Thereafter, on post-hearing brief, Respondent
conceded the S&S nature of the litigated violation and only challenged the
high negligence designation, the allegation that all 13 miners underground were
affected, and the appropriateness of the proposed penalty. R. Br. 16-18.  In
these circumstances, I find that Respondent suffered no prejudice because it
fully understood the gravamen of the violation charged and knowingly litigated
the citation on that basis.  Accordingly, I grant the Secretary’s belated
request to amend Citation 8378383 to reflect an alleged violation of 30 C.F.R. §
75.380(d)(7)(vi).  See Faith Coal Co., 19 FMSHRC 1357, 1361-62
(Aug. 1997).

On
or about May 22, 2013, Mullis issued section 104(a) Citation No. 8378383
alleging a violation of 30 C.F.R. 75.380(d)(7)(vii) because the lifeline
located in the Mine's #3 Intake Entry, which serves as the primary escapeway
and main travelway from the portal to the loading point at crosscut 68 (just
outby the last open crosscut), did not have the required spheres to indicate
the location where personnel doors were present. P. Ex. 10; Tr. I, 109, 112,
121-22. The spheres indicate intersections where personnel doors, about 30-square
inches large, are installed in adjacent crosscuts. The personnel doors lead
from the primary escapeway to a secondary escapeway in the adjacent entry about
60-80 feet away.  Tr. I, 111, 129, 146.  The citation was abated when
Respondent installed the spheres to indicate the location of all existing
personnel doors. P. Ex. 10.  

Mullis
testified that as he traveled underground towards the working section in a
two-person vehicle, he noticed several locations along the main intake and
primary escapeway where the required spheres were missing from the nearby
lifeline, which was required to be readily accessible for the length of the
entry. Tr. I, 109, 126, 129. The spheres used to identify the man doors are the
only lifeline components without a branch line. Tr. II, 134. Mullis noticed
that four spheres were missing from cross-cut 12 to 31, and that all required
spheres were missing between cross-cut 32 and 68. Tr. I, 114. Also, between
cross-cut 32 and 68, Mullis noticed that there were no lifeline indicators for
refuge alternative and SCSR locations, although Mullis’ notes make no mention
of these missing components. Tr. I, 115, 140-41. Mullis found no violations or
hazards in the secondary escapeway located in an adjacent entry.  Tr. I, 111-12.

Mullis
was told by third-shift foreman, George Saylor, that the continuous miner
trammed the entry to clean up the roof fall, and because of low clearance, the
miner destroyed the old lifeline and the replacement lifeline did not have
indicators on it.  Rather, the indicators had to be manually installed. Tr. I,

122. While Mullis could not determine precisely when the lifeline was replaced,
     Mullis testified that foreman Saylor told Mullis that the portion of the
     lifeline from crosscut 32 to 68 was replaced "a couple of days" prior
     to Mullis' May 22, 2013 inspection. Tr. I, 179-180.  Saylor did not testify,
     and no Respondent witness established when the lifeline was replaced.  Although
     it is unclear precisely how long the lifeline was defective, it is apparent
     that the lifeline was damaged during cleanup of the rockfall, and the defective
     lifeline should have been noted in the pre-shift examination books once the
     mine resumed production on May 7, 2013.  In these circumstances, I credit
     Mullis’ testimony that since the rock fall was cleaned up and production
     resumed on May 7, 2013, at least nine days had been worked without any
     documentation in the pre-shift examination book that the required components
     were missing from the lifeline. Tr. I, 171-72; see also P. Ex. 13 (“The
     conditions cited in (cit. #8378383) has [sic] existed for 9 days, that was when
     the new lifeline was installed.”).10
     

Mine
manager Shannon testified that from cross-cut 12 thru 31, which was about
1150-1200 feet, MSHA required approximately four man doors or one man door
every 300 feet. Respondent, however, actually had nine man doors in that area.  This
was so miners would not have to travel 300 feet to a man door, since the height
in the No. 1 Main was very low. Tr. II, 43-44.  The lifeline had spheres for
five of those nine man doors, but not the other four.  Tr. II, 45.

Between
cross-cut 32 and 68, which was about 2160 feet, seven or eight man doors were
required, but the mine actually had 11 man doors. Tr. II, 47, 53-54.  The
lifeline did not have any spheres for any of those 11 man doors, nor were there
any indicators for SCSR caches or refuge alternatives. Tr. I, 114-115; P. Ex.

10. Mine manager Shannon testified, however, that in locations where spheres
    were missing, there were two types of signage: a reflector with "man
    door" written vertically on it, and a reflective sign with "man
    door" written horizontally with a directional arrow.  Tr. II, 40. Mullis
    acknowledged that reflective signs identifying the location of the man doors
    were present at the mine, but they were not attached to the lifeline. Tr. I,
    141-42.  

Mullis
determined that the violation was S&S because it contributed to a hazard
that was reasonably likely to cause a lost workday or restricted duty injury,
that 13 miners were affected, and that the violation resulted from Respondent’s
high negligence. The Secretary proposed a penalty of $3,405. P. Ex. 10.  Mullis
designated the violation as reasonably likely to result in a serious injury
because in the event of a fire or heavy smoke hazard in the small confined
area, miners would not be able to locate the man doors to travel from the
primary escapeway to the secondary escapeway. Tr. I, 132-33.  

Mullis
determined that Respondent’s negligence was high because no examiner had
recognized the hazard during the previous nine shifts. Tr. I, 133-34.  On cross
examination, however, Mullis conceded that the amount of spheres that were
missing compared to the amount of spheres that were present could have been
considered a mitigating factor.  Tr. I, 152.  On further redirect, however,
Mullis testified that he still considered the violation to result from
Respondent’s high negligence because miners needed access to all components of
emergency equipment, and the citation could have been written as an
unwarrantable failure because all of Respondent’s examiners missed the
defective lifeline components. Tr. I, 153-54.  Regarding the number of persons
affected, Mullis testified on cross examination that some of the 13
persons underground might choose to exit the mine in an emergency using the
secondary escapeway, depending on their location at the time of the emergency. Tr.
I, 148. As noted, Respondent concedes on brief that the violation was S&S,
and only challenges the high negligence designation, the determination that 13
miners were affected, and the proposed penalty.  R. Br. 16-18.

1.         Discussion
and Analysis

I
find that the S&S violation resulted from Respondent’s high negligence
because Respondent knew or should have known of the violation, and there are no
mitigating circumstances. 30 C.F.R. § 100.3(d).  Mullis’ unrebutted testimony
establishes that third-shift foreman Saylor told Mullis that the continuous
miner used to clean up the roof fall destroyed the old lifeline and the
replacement lifeline did not have the missing spheres or other indicators on
it. Tr. I, 22. In fact, Respondent concedes that when the lifeline was
replaced, several of the spheres were not re-attached to the lifeline.  R. Br.

17. Mullis’ testimony also established that these missing components were not
    identified or documented in the examination books during at least nine shifts
    prior to the May 22, 2013 issuance of the citation. Tr. I, 130. Any examiner
    agent or foreman entering or exiting the mine needed to use the travelway that
    had the defective lifeline. Tr. I, 133.  Because of the primary travelway’s low
    height and an agent’s close proximity to the lifeline while traveling through
    the mine, foreman and examiners should have discovered the missing spheres
    after production resumed on May 7 and certainly before May 22, 2013.

Respondent
argues that it raised numerous mitigating circumstances that should reduce its
negligence to moderate.  Specifically, Respondent argues that although the mine
had nine man doors from cross-cut 12 thru 31, only four were required by law,
and spheres were missing on the lifeline for only four of the nine man doors. R.
Br. 17.11  Although Mullis conceded on
cross examination that the amount of spheres that were missing compared to the
amount of spheres that were present could be considered a mitigating
factor (Tr. I, 152), in the circumstances of this case, I find no mitigation.  Respondent’s
argument ignores the fact that all required spheres were missing between
cross-cut 32 and 68 for a total of about 2160 feet, and this defect was not
documented for nine shifts. Tr. I, 114; Tr. II, 53-54. In these circumstances,
I agree with the Secretary that given the large number of spheres missing in an
extensive area of the lifeline, partial compliance with the standard in
a more limited area of the lifeline should not be considered a mitigating
factor.  P. Br. 26.  

Respondent
fails to argue on brief that the reflective signs that identified the location
of the man doors, but were not attached to the lifeline, are a mitigating
factor. But see Tr. I, 141-42, Tr. II, 40.  I reject any such argument.  I
agree with the Secretary that visibility is likely to be reduced in an
emergency situation, particularly in smoky conditions from a fire outby, and
the spheres are meant to serve as a tactile guide to an alternative escape
route when there is reduced or no visibility for miners. P. Br. 24. The
reflective man door signs were typically hung away from the middle of the entry
off to the side of the entry next to the crosscut. Tr. I, 142.  Therefore,
miners traveling the lifeline to escape in a low visibility emergency are
unlikely to see such signs as they feel their way along the lifeline to find a
sphere or spheres indicating the presence of man doors. 

Respondent
also fails to argue on brief that because the spheres have no branch lines to
the man doors, miners are not likely to leave the security of the lifeline to
find a door. But see Tr. I, 143-48. Any such argument ignores the fact
that spheres are required for a purpose, i.e., to aid miners in desperate
emergency situations where they have no choice but to leave the lifeline in
order to escape through a man door to the secondary escapeway. In this regard,
the following testimony from Mullis is persuasive.  

THE COURT: So how likely is it in
your view that a miner who left the lifeline in smoke, crawling through the 40
foot height, would become confused or disoriented or maybe bump into something
and stumble and fall trying to get to the man door?

THE WITNESS: It could happen.
They generally are taught that if you leave the lifeline for a man door, which
the spheres are to indicate like if they -- like where the rock fall occurred,
and say it cut their cable, their cable that bought their power underground,
and caused a smoke. When they got to that rock fall, holding that line and got
to that rock fall, they couldn't go any further. They would not be able to go
anywhere. So that's what the spheres are for. They would come back to the next
sphere and they would know that they could find a door to go through. They
would turn loose of that line because they know what entry they're in. They
would turn loose of the line and continue over into that crosscut. They're
taught to feel their way to the

bratti[ce],
go across the bratti[ce] until you feel the door if you can't

see it,
go through it.

Tr. I ,147-48. Consequently, even
without a branch line, spheres serve a vital and required purpose by signaling
an alternative means of escape in an emergency through a man door into an
adjacent escapeway when the lifeline in the primary escapeway is blocked outby.

In
sum, I find no mitigating circumstance that would reduce Respondent’s
negligence from high to moderate.  The violation remained undocumented for at
least nine shifts and Respondent knew or should have known about it and failed
to explain why foreman and examiners traveling the primary escapeway on a daily
basis ignored the obviously defective lifeline for an extended period of time.  

With
regard to the number of miners affected by the violation, the Secretary argues
that 13 miners worked on the section, and any emergency outby the section would
require the entire crew to escape. P. Br. 14, citing Tr. I, 133. Both Mullis
and Shannon testified, however, that some of the 13 miners underground
might choose to exit the mine in an emergency using the secondary escapeway,
depending on their location at the time of the emergency. Tr. I, 148; Tr. II,

50. The secondary escapeway is in the belt entry at the #3 mine. Tr. II, 49-50.
    Shannon testified that at any given time, there are two to four miners on that
    belt entry shoveling, cleaning or pumping water.  Shannon opined that in an
    emergency requiring exit from the mine, those two to four miners would come out
    the belt entry unless something was preventing them from traveling that way. Tr.
    II, 50.  Thus, out of the 13 miners underground, anywhere from 9-11 would
    likely be affected by the violation.  Shannon, however, also conceded on cross
    examination that he would prefer to be in the intake air course rather than the
    secondary escapeway along the belt entry when trying to escape in the event of
    an emergency. Tr. II, 114. In these circumstances, it is reasonable to conclude
    that 10 miners would potentially be affected by the violation, i.e., the
    maximum number for penalty calculations purposes.  See 30 C.F.R. § 100.3(e),
    Table XIII. Based on the foregoing, I modify Citation 8378383 to reduce the
    number of miners affected from 13 to 10.  

I
have evaluated the Secretary's proposed penalty in light of the principles
announced in my final Big Ridge decision. Big Ridge Inc., 36
FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ). I find that the penalty proposed by
the Secretary of $3,405 is consistent with the statutory criteria set forth in
section 110(i) of the Mine Act.  30 U.S.C. 820(i). Accordingly, I assess a
$3,405 civil penalty against Respondent for Citation No. 8378383.  

E.        Citation
No. 8378384

On
May 22, 2013, after issuing Citation No. 8378383 for the defective lifeline,
Mullis issued 104(a) Citation No. 8378384 alleging that Respondent violated 30
C.F.R. § 75.360(b)(1) because its examiners were failing to perform adequate
examinations that would identify the defective lifeline cited in Citation No.
8378383, a condition that existed for nine days.  P. Ex. 13. Mullis determined
that the violation was highly likely to cause a fatal injury, that 13 persons
were affected, and that the violation resulted from Respondent’s high
negligence. The Secretary proposed a penalty of $25,163. P. Ex. 13.

30
C.F.R. § 75.360(b)(1) requires that:

"[t]he 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, test for methane and oxygen deficiency, and determine if the air
is moving in its proper direction at the follow locations:

(1) Roadways, travelways, and
track haulageways where persons are scheduled, prior to the beginning of the
preshift examination, to work or travel during the oncoming shift."

30
C.F.R. § 75.360(b)(1).

Mullis
examined the pre-shift record book for the prior nine days and found no
hazardous condition associated with the missing spheres on the defective
lifeline noted in the pre-shift book. Tr. I, 162-163, 171.  Although the
pre-shift examinations had occurred, Mullis determined that they were
inadequate because the examiner failed to notice the missing spheres on the
lifeline. Tr. I, 164. Mullis explained, “They missed these.  They missed
[these] lifeline components.  That’s inadequate.  And it was very - - you’re
only this far away from it . . . . As you’re traveling that entry, its right in
your face.” Tr. I, 164-65.  

Unlike
the underlying defective lifeline Citation No. 8378383, which Mullis issued as “reasonably
likely” and “lost workdays or restricted duty,” Mullis issued this inadequate
examination Citation No. 8378384 as "highly likely" and
"fatal" because he was concerned that if all the examiners failed to
recognize something as simple as the missing spheres on the lifeline, they
could miss other hazards throughout the mine, such as inadequate support or
ventilation.  Tr. I, 166-69.  Respondent points out, however, that Mullis only
issued three citations on May 21 and 22, 2013, suggesting that Respondent was
not missing a lot of things on its pre-shift examinations.  R. Br. 19; Tr. I,

169. Respondent also emphasizes that as the pre-shift examiner travels through
     the mine, he is looking for a lot of things, including pump locations and
     existence of water, rib sloughage, floor conditions and other hazards, which
     could affect miners traveling in and out of the mine. Tr. II, 63-64.

Mine
manager Shannon testified that Dave Faulkner, who had over 30 years of coal
mine experience, was the outby examiner for the section. Shannon testified that
he has traveled with Faulkner while Faulkner performed examinations, and that
Faulkner is very thorough. Tr. II, 71-72.12
 Faulkner did not testify.

1.         Respondent’s
Arguments

Respondent
argues that Citation 8378384 should be vacated because the pre-shift
examination conducted on May 22, 2013 was adequate. R. Br. 20-21.13 In an effort to show that the alleged violation was
not obvious, Respondent relies on Shannon’s testimony that the pre-shift
examiner doesn't just lay on his back and stare at the lifeline on the roof
about four inches from his head.  Rather, the examiner may drive on his side
and look off to the sides of the buggy, dodging pumps and other objects on the
mine floor, and looking for signs of adverse roof, rib, and floor conditions.  R.
Br. 20; Tr. II, 66-68.  

Respondent
argues that if the pre-shift examiner conducts a thorough examination of the working
areas, but does not see a potential hazard, a violation for an inadequate
pre-shift is improper.  Respondent emphasizes that even MSHA inspector Fuson,
who wrote Citation No. 8407725 discussed below, testified that if the pre-shift
examiner does not see a violation or hazard, it can't be reported on the
pre-shift and no citation for an inadequate pre-shift should be issued. R. Br.
20, citing Tr. I, 261-63. Fuson testified as follows on re-cross examination:

Q. Well, Mr. Fuson, I'm a little
bit confused now. You told me that there were hazardous conditions on equipment
that you don't have to look at or write down on a pre-shift examination.

A. I didn't mean to say it that
way, if that's the way you took it.

Q. Yeah, that's the way I took
it. You tell me where I've made a mistake there.

A. Anytime you see a hazard
anywhere, on anything, it has to be reported.

Q. What if you don't see it?

A. If you don't see it, you can't
report it.

Q. Somebody comes in after you
and says, hey, I found something but you didn't see it, is that an inadequate
pre-shift?

A. No, but if there's multiple
and multiple obvious conditions, then it would be considered.

Q. Well, the Judge asked you
about a lifeline. What about one component on a lifeline, a sphere on a
lifeline?

MR. PARDUE: Your Honor, this is
-- well, I’ll withdraw it.

BY MR. SHELTON:

Q. What about a missing sphere on
a lifeline when you have a sign --

A. That's an inspector judgment I
mean.

MR. SHELTON: That's all I have
for him, your Honor.

Tr. I,
261-62. In sum, Respondent argues that the citation should be vacated because
Respondent did conduct a pre-shift examination, and the lack of several spheres
on the lifeline was not so obvious as to make the pre-shift examination
inadequate. R. Br. 20-21.

Additionally,
Respondent argues that the plain language of 30 C.F.R. 75.360 does not cover
the hazardous condition cited, i.e., missing spheres on the lifeline, because
this is not a hazardous condition referenced in paragraph (b)(11), and it is
not a test for methane and oxygen deficiency, or a determination or whether air
is moving in the proper direction at specifically identified locations.  R. Br.
21.  

Finally,
Respondent argues that MSHA does not consistently enforce what hazards need to
be covered by a pre-shift examination.  Respondent relies on testimony from
both inspectors Mullis and Fuson that some potential hazards need not be
checked on a pre-shift examination. R. Br. 21.  For example, Mullis testified
on cross examination in response to a hypothetical that an energized cable with
a gash and exposed copper on a working section would be a hazardous condition,
but “I don’t think that [pre-shift examiner is] required to check every inch of
cable.”   Tr. I, 174.  Fuson testified that issues with the dust parameters on
a bolting machine pose a hazard to miners, but dust parameters do not have to
be checked on a pre-shift exam, only during a pre-operational check of the
equipment. Tr. I, 293-94, 317.  Respondent concludes that a pre-shift examiner
must report a noted hazard, but need not be counting spheres on the lifeline as
he conducts his examination. R. Br. 21

2.         Discussion and
Analysis

30
C.F.R. § 75.360(b) requires that pre-shift examinations be conducted to
identify hazardous conditions at certain locations, including roadways and
travelways and other areas where persons will work or travel during the
oncoming shift.  The purpose of the examination requirement is to identify and
document the hazardous condition in these areas where persons are expected to
work and travel.  The Commission has determined that pre-shift examinations are
fundamental for assuring a safe work environment for miners working underground
.  Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 1997); Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). “The preshift examination is
intended to prevent hazardous conditions from developing.” 19 FMSHRC at 15.  The
examiner must look for all conditions that present a hazard. Id. at 14.  Conducting
careful pre-shift examinations are critical because "[m]iners rely upon
the preshift examiner to find and correct conditions that can be a hazard. When
an examiner fails to do so, it creates in miners a false sense of working in a
safe environment." Big Ridge, Inc., 33 FMSHRC 689, 713 (Mar. 2011)
(ALJ).

Respondent
argued on pre-trial motion for partial summary decision that it is only
required to search for the specific hazardous conditions listed in subsection
(b)(11) of the 30 C.F.R. § 75.360(b) because the "and" instead of a
comma after "hazardous conditions" means that only hazardous
conditions related to the standards in (b)(11) need to be identified. Tr.
I, 271-22.  I rejected this argument by Order dated May 13, 2014. See Alden
Resources, Inc., 36 FMSHRC 1486 (May 13, 2014) (ALJ) (Order Denying
Respondent’s Motion for Summary Decision).14

Respondent
does not renew its argument on post-hearing brief.  There is good reason.  Respondent’s
argument is inconsistent with the clear and plain language of the standard, flouts
its purpose to ensure a safe working environment, and ignores its legislative
history.  The standard plainly requires that "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, test for methane and oxygen deficiency, and determine if the air
is moving in its proper direction . . ." As the Secretary points out,
Respondent’s argument ignores the fact that the commas in the standard separate
distinct things that Respondent is required to examine for during a pre-shift
examination to comply with the standard. P. Br. 29.  The clear language of the
standard requires Respondent to examine for hazardous conditions and
violations of the mandatory health or safety standards referenced in paragraph
(b)(11) of the section. The "and" connects hazardous conditions and
violations of the mandatory health or safety standards referenced in paragraph
(b)(11) of the section because both need to be examined. The commas indicate
that Respondent must also test for methane and oxygen deficiency, and determine
if the air is moving in the proper direction.

The
legislative history of the standard supports this plain meaning. 30 C.F.R. §
75.360(b) was amended on December 31, 2008.  Before amendment, the standard
only required that "[t]he person conducting the preshift examination shall
examine for hazardous conditions, test for methane and oxygen deficiency, and
determine if the air is moving in its proper direction" for roadways,
travelways and track haulageways where miners are scheduled to work or travel
during the oncoming shift.  Thus, the standard always required pre-shift
examiners to examine for hazardous conditions in a travelway. The amended
standard added additional examination responsibilities regarding violations of
specific standards in addition to hazardous conditions, consistent with Rules
to Live By. The amended standard requires operators to conduct more thorough pre-shift
examinations of underground coal mines to check for violations of the nine
standards identified in MSHA's Rules to Live By initiatives, in addition to
checking for general hazardous conditions.  See 77 Fed. Reg. 20703-20705 (Apr.
6, 2012).

I
conclude that the amended standard was intended to expand the examination
requirements beyond hazardous conditions to include certain limited violations.
Respondent’s argument to the contrary fails to distinguish hazardous conditions
from distinct violations of specific standards, particularly since not all
violations are hazardous conditions. It would contravene the underlying safety
purpose of the standard to limit the pre-shift examination responsibilities to
hazardous conditions that are also violations of the Rules to Live By when the
standard always required examination for hazardous conditions in certain areas
such as travelways to ensure a safe working environment where miners were
scheduled to work or travel.          `

In
addition, Commission precedent treats hazardous conditions as a separate and
distinct category of conditions that pre-shift examiners are required to
identify. The term "hazard" denotes a measure of danger to safety or
health." Enlow Fork Mining Co., 19 FMSHRC 5, 14 (1997), citing
Cement Div., National Gypsum Co., 3 FMSHRC 822, 827 & n. 7 (April
1981). The Commission has described "hazard" as "a possible
source of peril, danger, duress or difficulty," or "a condition that
tends to create or increase the possibility of loss." Id.  I find
persuasive the reasoning of Judge Zielinski that "Section 75.360(b)(1)
requires that persons conducting required preshift examinations "examine
for hazardous conditions" in "[r]oadways, travelways and track
haulageways where persons are scheduled . . ." The American Coal
Company, 36 FMSHRC 1311, 1338 (May 2014)(ALJ).

The
defective lifeline was clearly a hazardous condition in a travelway because it
increased the likelihood that miners could not find their way out of the mine,
particularly during a smoky or other low-visibility emergency.  Tr. I, 143,
147-48.  The violation was obvious because the replacement lifeline was bare
and had no spheres indicating the existence of man doors or any other lifeline
indicators from crosscuts 32 to 68 (about 2160 feet), and Respondent knew that
the replacement lifeline needed to have indicators manually installed before
production resumed.  Tr. I, 114-115, 122-23; Tr. II, 47, 53-54; P. Ex. 10. Further,
I have credited Mullis’s testimony that the violation existed throughout daily
pre-shift examinations over the course of nine days.  In these circumstances,
and given the lifeline’s vital importance, Respondent should have discovered
the defective lifeline during its pre-shift examinations of the No. 3 intake
entry, i.e., the primary travelway in and out of the mine. Accordingly, I find
the violation.  

I
further find that Respondent’s violation was S&S because reasonably likely
to result in injuries to the 10 affected miners.  Mullis testified that the
failure to conduct adequate pre-shift examinations to document the defective
lifeline resulted in the same discrete safety hazard as the underlying
violation in Citation 8378383, which Respondent concedes was S&S, miners not
being able to find their way out of the mine in the event of an emergency.  Tr.
I, 163. Therefore, the second Mathies element is satisfied.

Regarding
the third and fourth Mathies elements, I remain unconvinced that the
inadequate pre-shift exam was highly likely to cause serious injury as opposed
to reasonably likely to result in serious injuries to the affected miners.  Mullis
increased the gravity for this citation based largely on speculation and
assumption that was not supported by record evidence.  See specifically Tr. I,
164-170, 173.  In essence, Mullis testified, "if [the examiner’s] missing
something as big as this ball on this line that has reflectors on it, what
else, you know, is he" missing. Tr. I, 164.  Based on this testimony, the
Secretary argues as follows:

Regarding the third Mathies
element, the inadequate pre-shift exam was highly likley to cause fatal
injuries to miners because, as Mullis explains. “[I]f he’s (the examiner)
missing something as big as this ball on this line that has reflectors on it,
what else, you know, is he” missing. Tr. at 164. Thus, without proper
examinations, miners would unknowingly come into contact with any number of
hazardous conditions.  Miners rely on an effective pre-shift examination as the
initial and most effective tool to make sure that their environment is safe. If
hazardous conditions are not being identified and corrected as miners start
their shifts, they are being immediately and directly exposed to peril.  Once
Mullis discovered the inadequate pre-shift examination he determined that the
thirteen miners underground were in greater danger than he previously
designated related to the defective lifeline because no hazards were being
identified as "there was no mention of anything found in those prior
days." Tr. at 167.  Mullis testified, "The hazard, if they're missing
something as simple as this, what else are they missing . . ." Tr. at 166.
Mullis was concerned with safety throughout the mine and, thus, push[ed] up his
gravity designation. Tr. at 168. While other hazardous conditions were not
cited, continuing mining operations suggest that if hazardous conditions as
obvious as the conditions cited in Citation 8378383 go unnoticed then the same
would apply to other, less obvious hazardous conditions that are bound to
develop. . . .

P. Br.
32. 

The
Secretary’s arguments might be more persuasive had he put on evidence of
several other hazardous conditions that were not being identified and corrected
during pre-shift examinations after production resumed.  But the
Secretary’s proof that other hazardous conditions were not being identified
during pre-shift examinations after production resumed was flimsy and
inadequate.  Mullis merely opined that the inadequate examinations would
cause any number of other safety hazards to go undetected and uncorrected. I
have found an S&S violation of 30 C.F.R. § 75.310(a)(3) because someone
forgot to switch the automatic fan signal for the No. 2 fan back on when
production resumed on May 7, 2013.  I have vacated the alleged non-S&S
violation of 30 C.F.R. § 75.312(g)(1) because there was no record in the
ventilation record book that Fan No. 2 was examined on May 6 or May 7, 2013.  Below,
I have affirmed Citation No. 8407725 finding an S&S violation of 30 C.F.R.
72.630(b) for failure to maintain the dry dust-collection system on the
twin-head, roof-bolting machine in permissible and safe operating condition. But,
as noted, that violation did not have to be recorded during a pre-shift exam, only
during a pre-operational check of the equipment. Tr. I, 293-94, 317. In these
circumstances, it was incumbent on the Secretary to rely on more than
speculation to establish that the inadequate examinations would cause any
number of other safety hazards to go undetected and uncorrected, and to show
more than just the defective lifeline and failure to switch on the automatic
signal on the No. 2 fan to heighten the gravity for Respondent’s failure to do
adequate pre-shift examinations under 30 C.F.R. § 75.360(b)(1).  Accordingly, I
find that the failure to conduct adequate pre-shift examinations was S&S,
but I reduce the likelihood of injury or illness from “highly likely” to “reasonably
likely, and reduce the injury or illness that could reasonably be expected to
occur from “fatal” to “lost workdays or restricted duty.”

I
further find that Respondent's failure to perform an adequate pre-shift
examination under 30 C.F.R. § 75.360(b)(1) was the result of high negligence
because Respondent knew or should have known of the violation, and there are no
mitigating circumstances.  Mullis inspected the pre-shift examination book for
the nine days prior to issuance of Citation No. 8378384 and no hazardous
conditions were documented in the books, not even for the clearly defective
lifeline that I have previously found resulted from high negligence.  Respondent
knew or should have known that the replacement lifeline needed manual
installation of indicator components, which were not installed, and that the
defective lifeline hazard, which was located in the primary travelway where
examiners and foreman travel frequently, should be documented in the pre-shift
examination book during the installation process.  Respondent has proffered no
mitigating circumstances, and raises none on brief.  In these circumstances, I
affirm the high negligence designation.

For
the reasons set forth with regard to the underlying defective lifeline
(Citation 8378383), it is reasonable to conclude that at least 10 of the 13
underground miners would potentially be affected by the failure to conduct an
adequate pre-shift examination in the primary travelway, i.e., the maximum
number for penalty calculations purposes.  See 30 C.F.R. § 100.3(e), Table
XIII.

Based
on the foregoing, I modify Citation 8378384 to reduce the likelihood of injury
or illness from “highly likely” to “reasonably likely, to reduce the injury or
illness that could reasonably be expected to occur from “fatal” to “lost
workdays or restricted duty,” and to reduce

the
number of miners affected from 13 to 10.

I
have evaluated the Secretary's proposed penalty in light of the principles
announced in my recent Big Ridge decision.  Big Ridge Inc., 36
FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ).  Applying the statutory criteria
set forth in section 110(i) of the Mine Act, and guided by the regular
assessment criteria set forth in § 100.3 as applied to my findings above, I
assess a $3,406 civil penalty against Respondent for Citation No. 8378384.  

F.         Citation
No. 8407725

On
May 24, 2013, MSHA inspector Wendill Fuson15
issued 104(a) Citation No. 8407725 alleging a violation of 30 C.F.R. 72.630(b)
for failure to maintain the dry dust-collection system on its twin-head,
roof-bolting machine in permissible and safe operating condition. P. Ex. 1; Tr.
I, 189.16 MSHA had previously set up a
sampling program on this bolter, designated area 907, because of excessive
respirable dust and quartz.  Tr. I, 209-15.  Accordingly, the roof bolting
machine was on a reduced respirable dust standard of 1.0 instead of 2.0. Fuson
could not point to any violations where the machine had exceeded the reduced
standard, although it had a prior history of exceeding the prior standard on
quartz. Tr. I, 241-42.

The
dust collection system on the bolter consists of a box, hoses, and a pump motor
that functions like a huge vacuum cleaner, with the filters and box used to
catch dust exiting drill holes as the bit penetrates the roof.  Tr. I, 195.  After
testing, Fuson determined that the vacuum suction for each drill head was less
than the minimum pressure requirement of twelve mercury inches.  P. Ex. 1; Tr.
I, 190, 196-199.  The left head measured 11 inches of mercury (although the
citation incorrectly stated 9 inches of mercury), and the right head measured
10 inches of mercury.  Tr. II, 198.  Fuson also determined that the suction
hose coupling nipples for both drill heads were loose and leaking.  One hose
was broken, and an attempted repair of dust holes had been made with electrical
tape. Fuson heard air seeping through its loose nipple.  P. Ex. 1; Tr. I, 193,
196, 199-200.  Further, the dust hoses connecting the drill heads to the dust
boxes were not approved by MSHA.  P. Ex. 1.  Finally, Fuson observed drill dust
piled on top of one of the dust boxes, which was used to seal leaks in the
gaskets. Tr. I, 193-94, 196, 215.  Although Fuson failed to mention the
attempted repair of the broken hose or the dust piled on top of one of the dust
boxes within the body of this citation, I credit his specific recollection that
these conditions were present.  P. Ex. 1; Tr. I, 193, 196.

Fuson
testified that vibration from operation of the machine will place the
respirable drill dust located on the box into the operator’s breathable air.  Tr.
I, 215. Fuson subsequently testified, "[f]rom industry history of this
district, I mean, anytime you've got drill dust in this district, there's a
percentage of respirable dust present and always a danger if not protected
against the miner breathing it that they will breathe in this." Tr. I,
252.

The
citation alleged that the violation was reasonably likely to cause a
permanently disabling injury, that 2 persons were affected, and that the
violation resulted from Respondent’s moderate negligence. MSHA proposed a
penalty of $425 for the alleged S&S violation.  P. Ex. 1.  When the
citation was terminated by replacing parts on the machine, the vacuum pressure “drastically
increased” over 50 percent.  Tr. I, 224.  

The
citation was written at 7:10 a.m. P. Ex. 1. Fuson could not recall if any roof
bolter operators were in the area. Tr. I, 202. The day shift was not present
and a pre-operational examination of the bolter had not yet been conducted,
although the bolter was not locked and tagged out.  Tr. I, 207-09.  The
continuous miner had been cited an hour earlier for a dust parameter violation,
although no coal production had taken place. Tr. I, 204.

Fuson
determined that the conditions should have been repaired prior to operation of
the machine and that the machine had already been operated with the cited
conditions and was set up to operate again. Tr. I, 201, 206; P. Ex 2. He
testified, that "[t]he dust parameters -- the dust collection system of
the machine has to be maintained at all times . . . Anytime there's a
deficiency in the system, it should be shut down and repaired immediately."
Tr. I, 208.  Fuson also determined that the operator had "already used
this machine with this many conditions." P. Ex. 2; Tr. I, 197.  Fuson
could not specifically remember whether he heard or saw the roof bolter
actually bolting during his inspection, but in contemporaneous notes recorded
during his inspection, he wrote roof bolter "has been bolting in 4 right,
set up to bolt, ATRS is set, booms are ready. So the machine was siting with
the boom and support ready to drill." P. Ex. 2; Tr. I, 201, 204-05,
234-35.  As noted, the bolter was not locked or tagged out.  Tr. I, 209.

Fuson
testified unconvincingly, "I wouldn't have wrote has been bolting down if
I hadn't heard it or seen it." Tr. I, 201, 204-05.  On cross examination,
Fuson acknowledged that he did not have any independent recollection that the
roof bolter had been operating that morning. He also acknowledged that his
notes could reflect the fact that the third shift set the bolting machine in
the 4 right entry so that the first shift could begin operation when they came
underground. Tr. I, 228.  Fuson did not know whether the third shift had
actually conducted any roof bolting the evening before the citation was issued.
 Tr. I, 256. “No sir, we don’t know if it was on third shift or first shift,
but in my notes I’ve got in there they had been bolting.” Id.

I
find that Fuson did not see or hear the bolter on May 24 because the day-shift
had not yet begun work.  As Fuson acknowledged, “[t]he day shift hadn’t come in
yet when I went underground. Tr. I, 206.  Rather, based on the following
testimony, I find that Fuson reasonably inferred, based on his experience, that
the conditions observed had developed while the roof bolter was being operated
previously for at least a shift and had not been fixed, and the machine was
already set up and about to be used again.

BY MR. PARDUE:

Q. For each of the conditions you
cited, the vacuum suction, the couplings, and the hoses, could you tell how
long those conditions had existed?

A. Well, from experience, hoses
don't loosen on their own just sitting, so, you know, I'm safe -- it's safe to
say that they had been bolting in that condition or it wouldn't be in that
condition. They don't drive or move the machine around in the mines unless it's
going from one place that needs bolted to the other. So without a doubt in my
mind, they had been bolting with this condition.        

Q. Can you say that about each of
the conditions that's listed in the body of the citation?

A. Yes. Especially, you know, the
tape, I mean, they know they had a busted hose or they wouldn't have taped it
up.

Tr. I,
205-06.  Although Fuson could not determine exactly how long the conditions had
existed, he credibly testified that they were present for at least one shift.

Q. Based on your experience, how
long were the -- the conditions cited, how long were they -- did they exist on
this equipment?

A. I couldn't tell you how long.
At least a shift, because it takes more than a shift for it to get -- the hoses
to get that loose. If vacuum pressure drops like that, usually if you don't
lose all of your vacuum -- them machines usually typically goes 15 to 20
mercury inches when you test them, and they generally gradually lose their
suction. But with leaking hoses, you know, with loose hoses on both sides, it
would be easily determined it would be greater than a shift.

Tr. I,
223.

Third-shift
foreman, Bryan Lewis, testified that pre-operational checks are conducted on
roof bolting machines, which would include the vacuum suction on each side of
the bolter. Tr. 292-94. Lewis testified that at the time that Fuson wrote the
citation, the first-shift miners had not yet had time to conduct a
pre-operational inspection or start bolting.  Tr. I, 295, 302. Lewis opined
that the bolting machine was in operation during the May 23rd second shift, a
production shift. Further, Lewis did not recall any mention of any problems
with the bolting machine at the start of the third shift. Tr. I, 298. He
testified that a hole in a hose or the loosening of a clamp can occur at any
time and cause the bolter to lose suction.  Tr. I, 299.  Lewis further
testified that when the bolters are drilling top, they stand outby the drill
pipe and dust box where the control levers are located, and any material that
is on the dust box would be blowing inby. Tr. I, 300-01.  

1.         S&S,
Moderate Negligence, and Civil Penalty Analysis

I
find that Respondent violated 30 C.F.R. § 72.630(b) by failing to maintain the
dry dust collection system on its twin-head, roof-bolting machine.  In fact,
Respondent concedes the violation on brief (R. Br. 6), but argues that it was
not significant and substantial (S&S) because not reasonably likely to lead
to a permanently disabling injury.  R. Br. 5. I find that Respondent's
violation of 30 C.F.R. § 75.630(b) was S&S.  

The
first element of Mathies is satisfied by my finding of the violation 30
C.F.R. § 75.650(b), a mandatory safety standard.

The
second Mathies element was satisfied because the cited conditions
created a discrete

safety
hazard or measure of danger to safety, inhalation of excessive respirable dust
that would contribute to the development of black lung disease.  

The
third Mathies element was also satisfied.  Respondent argues, inter
alia, that at the time the citation was written, the first shift miners did not
have an opportunity to conduct a pre-operational check on the machine and that
the machine would have been checked before being placed into operation at which
time the decreased head suction would have been found and repaired prior to
placing the machine into service. R. Br. 6; see also Tr. I, 232, 255. I reject
this argument for two reasons.  First, I have credited Fuson’s reasonable
inference based on the cited conditions that the bolter had already been used
with the extant defects for at least a shift and thus two miners were exposed
to the respirable hazard. Fuson reasonably determined that the conditions
existed at least for one shift because "it takes more than a shift for it
to get -- the hoses to get that loose . . . with loose hoses on both sides, it
would be easily determined it would be greater than a shift." Tr. 223. Second,
the Commission specifically rejected such argument in Wake Stone Co., 36
FMSHRC 825, 828-29 (Apr. 2014), and reinforced the rule that equipment that is
not locked and tagged out of operation and parked for repairs must be
maintained in functional condition. 

Having
credited inspector Fuson’s testimony that the conditions observed had developed
while the roof bolter was being operated previously for at least a shift and
had not been fixed, I conclude that two roof bolt operators on the twin-head
machine were exposed to increased respirable dust due to improper dust collection.
Tr. I, 218, 222. "Because of the lack of vacuum, hose leaking, dust on top
of the box. That's about a guarantee these guys drilling in them conditions,
they're going to be exposed to respirable dust."  Tr. I, 218.  The bolters
operated within arm's reach of the drill steel bit on each side of the roof
bolter, with controls outby the drill bit. Tr. I, 330-32.  With regard to
exposure, Fuson credibly testified, "You've got 3,000 feet of air at the
bumper of the machine. The places that's been developed is 30 to 32-foot deep. By
the time they're up in there, all you're going to have is a swirling motion, so
anything - you know, you're not going to be ventilating the place.  All your
air is just swirling around in there . . ." Tr. I, 322.  Fuson further
credibly explained that “[t]he dust control suction collection box is to get
the respirable dust away from them. If there's a breach in the system, the
3,000 feet of air at the bumper of the machine . . . So we depend on the dust
collection system itself.  And if there's any breach in air or dust, it's just
going to swirl around in the place for them." Tr. I, 325-26.  Fuson
explained that "[a]nything that's spinning in the air is potential
breathable atmosphere for those miners." Tr. 326.

I
conclude that the two bolter operators on the prior production shift were
exposed to increased respirable dust no matter where they were located on the
machine.  I credit Fuson’s testimony that air swirls in the whole cut exposing
the operators to respirable dust and silica. Tr. I, 218-219, 322, 325-26.  I
further conclude that bolters’ exposure to respirable dust due to improper dust
collection was reasonably likely to result in injury. In this regard,
vibrations from the roof bolter would put fine respirable dust into the
operators’ breathable air. Tr. I, 215. The dust boxes were located on the booms
of the machine about 8-10 feet from the operators, who move around the machine.
Tr. I, 217.  Further, Fuson credibly testified:

With
low vacuum, -- you know, especially with a hose leaking, the machine's vacuum
is not going to pull that dust out of the steel, and you'll have a lot of dust
coming back out of the hole right in -- I mean, and the hole is within probably
a couple feet from their -- two to three feet at most from their mouth, from
breathing, at this height. This is a low seam coal, three to four foot high. So
they're right there next to the drill head.

Tr.
218-19.  

With
respect to the fourth Mathies element, I find a reasonable likelihood
that the violation will contribute to development of an illness of a reasonably
serious nature, including black lung disease. It is beyond dispute that
respirable coal mine dust can cause lung diseases such as coal workers
pneumoconiosis (CWP), emphysema, silicosis, and bronchitis, collectively known
as black lung.  Black lung can lead to lung impairment, permanent disability,
and even death. There is no cure.  Judge Simonton recently recognized the
connection between excessive exposure to respirable dust and serious
respiratory illness in the roof bolter context when finding that “there is a
reasonable likelihood that [this] over-exposure to respirable dust will result
in injury as respirable dust has been consistently linked to respiratory
illnesses such as black lung and silicosis. Additionally, black lung and
silicosis far exceed the definition of an injury of a reasonably serious
nature, as they are irreversible illnesses that result in debilitating
respiratory complications and even death.”  Webster County Coal, 36
FMSHRC 382, 391 (Feb. 2014) (ALJ).  

On
this record, Fuson credibly testified that the roof and strata contained quartz
content such that respirable dust exposure would lead to silicosis. Tr. I,
219-20. Fuson lost his father to silicosis and persuasively explained that “[o]nce
complications of respirable dust do take affect (sic) on these miners, there's
no cure to it and it is a horrible death." Tr. I, 220.  I conclude that
the unabated exposure of the roof bolters to respirable dust by failing to
maintain the dry dust collection system on the cited twin-head, roof-bolting
machine during continuous normal mining operations was reasonably likely to
contribute to the development of serious lung disease, including a permanently
disabling respiratory illness. See White Buck Coal, 30 FMSHRC 535, 542
(June 2008) (ALJ); Genwal Resources, Inc., 27 FMSHRC 580, 589 (Aug.
2005) (ALJ).

For
the foregoing reasons, I conclude that the Secretary has established that this
violation meets the four-element Mathies test for S&S violations.  Accordingly,
the S&S and associated gravity designations for Citation No. 8407725 are
affirmed.  

I further find that Respondent's
failure to maintain the dry dust collection system on the roof bolter was the
result of moderate negligence.  As noted supra, moderate negligence
occurs when an operator knew or should have known of the violation, but there
are mitigating circumstances.  Based on the numerous defective conditions and
their apparent obvious nature, Respondent should have known about and corrected
the conditions.  The machine was not locked and tagged out and was set up for
the oncoming first shift on May 24. Even Respondent’s witness, former section
foreman Lewis, confirmed that if a prior shift operates a piece of equipment,
it has to be checked, and if anything is wrong, it should be fixed or shut
down.  Tr. I, 316.  Fuson persuasively testified that the machine was run in
its defective condition for at least one shift sometime prior to his discovery
of the cited conditions.  Tr. I, 206, 223. Respondent provided no mitigating
circumstances about why the conditions existed other than to suggest that they
could have happened at any time and would have been discovered and corrected.  In
these circumstances, I conclude that the moderate negligence designation is
appropriate.  

I
have evaluated the Secretary's proposed penalty in light of the principles
announced in my final Big Ridge decision. Big Ridge Inc., 36 FMSHRC
1677, 1681-82 (July 19, 2014) (ALJ). I find that the penalty proposed by the
Secretary of $425 is consistent with my findings and the statutory criteria set
forth in section 110(i) of the Mine Act. 30 U.S.C. 820(i). Accordingly, I
assess a $425 civil penalty against Respondent for Citation No. 8407725.

V.  Order

Wherefore,
it is ORDERED that Citation No. 8378378 be AFFIRMED, as written.

It
is ORDERED that Citation No. 8378379 be VACATED.

It
is ORDERED that Citation No. 8378383 be MODIFIED to reduce the
number of miners affected from 13 to 10.

It
is ORDERED that Citation No. 8378384 be MODIFIED to reduce the
likelihood of injury or illness from “highly likely” to “reasonably likely, to
reduce the injury or illness that could reasonably be expected to occur from “fatal”
to “lost workdays or restricted duty,” and to reduce the number of miners
affected from 13 to 10.

It
is further ORDERED that Citation No. 8407725 be AFFIRMED, as
written.

To
the extent Respondent has not already done so, within 40 days of the date of
this decision, Respondent, Alden Resources, LLC, is ORDERED TO PAY a
total civil penalty of $8,262 for the five litigated citations that were not
part of the final settlement referenced in footnote 1.17

/s/ Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Ryan L.
Pardue, Esq., Office of the Solicitor, Department of Labor, 1999 Broadway,
Suite 800, Denver, Colorado 80202

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

1
Prior to hearing, the parties agreed to settle six of the eleven citations at
issue in Docket No. KENT 2013-960 and the single citation in Docket No.
KENT-2013-959.  I left the record open for receipt of the partial settlement as
Joint Exhibit 2 (Jt. Ex. 2).  On September 30, 2014, the undersigned issued
Decision Approving Partial Settlement, Order to Modify, and Order to Pay a
total civil penalty of $1,740 for those settled citations.  That Decision has
now become final.  Citation Nos. 8378378, 8378379, 8378383, 8378384, and 8407725
in Docket No. KENT 2013-960 were left for hearing.

2 Joint
Exhibits (Jt. Exs.) 1- 6 were received into evidence.  Petitioner Exhibits (P.
Exs.) 1, 2, 5, 7-16, were received into evidence, but P. Ex. 15 (MSHA’s
Certified Assessed Violation History) was received only for the 15 months prior
to the citation at issue. Tr. 290-92. Respondent’s Exhibits (R. Exs.) 1-3 were
received into evidence.

3
In resolving conflicts in testimony, I have taken into consideration the
demeanor of the witnesses, their interests in this matter, the inherent
probability of their testimony in light of other events, corroboration or lack
of corroboration for testimony given, experience and credentials, and
consistency, or lack thereof, within the testimony of witnesses and between the
testimony of witnesses.

4 Mullis
completed training at the Beckley Mine Academy and became a certified mine
inspector in 2012. Tr. I, 16, 19, 44. Before that, Mullis worked in underground
mines for 17 years as either a general laborer, face boss, or section boss. Tr.
I , 17, 43. Mullis visited Mine #3 about five or six times before issuing four
of the five litigated citations. Tr. I, 19-20.

5 An
S&S violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d) (2006). In order to establish the S&S
nature of a violation, the Secretary must prove: “(1) the underlying violation
of a mandatory safety standard; (2) a discrete safety hazard – that is, a
measure of danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury will be of a reasonably serious nature.” Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc.,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99,
103 (5th Cir. 1988) (approving Mathies criteria). The Commission has
held that “[t]he test under the third element is whether there is a reasonable
likelihood that the hazard contributed to by the violation . . . will cause
injury.” Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257,
1281 (Oct. 2010).  

6 Respondent
argues that the sound of the fan going off is louder than the signal itself and
therefore miners will know when Fan No. 2 slows or stops, even without a
functioning automatic fan signal.  Further, Respondent notes that the Secretary
was hard pressed to offer instances when mine surface personnel would not be
able to hear the fan shutting down, although both inspector Mullis and
underground mine manager Shannon agreed that in the event of heavy rainfall
striking the metal roof of the mine office building about 150 feet from the
fan, the responsible person might not be able to hear the fan shutting down.  R.
Br. 11. I agree with the Secretary that it is highly speculative to assume that
underground miners concentrating on their particular tasks, would hear or
notice changes in the surface fan's functionality because that assumption is
dependent on a variety of factors such as the miner’s routine, the nature and
location of the task, other work taking place at the mine, and personal
protective or hearing equipment worn.  P. Br. 13; Tr. I, 58.  Further, other
circumstances, including a thunderstorm, would prevent the designated person on
the surface from hearing the fan shutdown without a functional automatic fan
signal that could be both heard and seen. Id.; Tr. I, 59-60.    

7 Although miners are required to
wear multi-gas detectors to monitor air quality and alert them to ventilation
hazards (Tr. I, 63-64), oxygen-deficient air and toxic gases can have an
immediate and serious impact on their safety and health before appropriate
precautions and corrective actions can take place.  Furthermore, the Commission
interprets safety standards to take into consideration ordinary human
carelessness and the vagaries of human conduct, including the fact that not all
miners wear multi-gas detectors, as required.  See Thompson Bros.
Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984); cf., Great Western
Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc.,
3 FMSHRC 2526, 2531 (November 1981).

8 If
the fan has stopped, it must be restarted within 15 minutes. Otherwise, all
electrically powered and mechanized equipment in each working section must be
de-energized or shut off and all miners must be withdrawn from the mine. See 30
C.F.R. §75.313.  

9 I reject Respondent’s argument
that 30 C.F.R. § 75.312(c) only requires that the fan signal device to be
examined every 31 days and not daily as required by 30 C.F.R. § 75.312(a) when
the fans operate. R. Br. 12, citing Tr. I ,99.  Rather, I agree with the
Secretary that 30 C.F.R. § 75.312(c) requires that the fan signal device be
tested everyone 31 days, not examined.  Thus, the daily examination requirement
in 30 C.F.R. § 75.312(a) is separate and distinct from the testing requirement
in 30 C.F.R. § 75.312(c) .

10 Although
Mullis’ notes (P. Ex. 11, p. A-1) indicate that this condition has existed for
at least six shifts, Mullis credibly explained on cross-examination regarding
related Citation 8379384 (inadequate pre-shifts) that his notes for Citation
8379383 were made before he examined the pre-shift examination records for
Citation 8379384. Tr. I, 171.

11
I note that the number of man doors is typically governed by the MSHA-approved
ventilation plan and § 75.380(d)(7)(vi) provides that the continuous
directional lifeline shall be equipped with one sphere securely attached to the
lifeline at each intersection where personnel doors are installed in adjacent
crosscuts.

12 Shannon
received pre-shift examination training from MSHA’s Hazard, Kentucky field
office.  Although Shannon testified that this training never indicated that a
pre-shift examiner should be looking for spheres on a lifeline, Shannon
admitted that the training did mention that a lifeline should extend up to the
dumping point of the section. Tr. II, 74-75.  

13
Respondent first argues that the violation did not exist for 9 days because
Mullis’ notes for Citation No. 8378383 indicate that the spheres had been
missing from the lifeline for six shifts (two days). R. Br. 20. I have
specifically rejected this argument at n.10, supra.  

14 I
reject Respondent’s argument that a separate and distinct standard, 30 C.F.R. §
75.364(b)(5), requires a weekly examination of escapeways at least every seven
days, and, therefore, since Respondent was not required to conduct a daily
pre-shift examination of the escapeway, no violation of 30 C.F.R. §
75.360(b)(1) occurred. The issue here is whether an adequate pre-shift
examination occurred in the No. 3 intake, which is the primary travelway and
primary escapeway.  The Commission has held that unless the text of the
standard itself specifies a limitation, strict liability cannot be limited by
extra-textual considerations, including requirements under other standards.  Wake
Stone Co., 35 FMSHRC 825 (Apr. 2014). For the reasons explained herein, I
find a violation of 30 C.F.R. § 75.360(b)(1) because the pre-shift examiner
failed to identify an obvious hazardous condition, the defective lifeline,
during numerous pre-shift examinations of the primary travelway in and out of
the mine.

15
Fuson has about 8 years of experience with MSHA as a health specialist. Tr. I,

187. Before joining MSHA, Fuson had been employed in the coal mining industry
     and had operated roof bolting machines for 10 to 12 years. Tr. I 182.  

16 30 C.F.R. § 72.630(b) provides:

(b) Dust collectors. Dust
collectors shall be maintained in permissible and operating condition. Dust
Collectors approved under Part 33 -Dust Collectors for Use in Connection with
Rock Drilling in Coal Mines of this title or under Bureau of Mines Schedule 25B
are permissible dust collectors for the purpose of this section.  

30
C.F.R. § 33.2(a) defines permissible:

(a) Permissible, as
applied to a dust collector, means that it conforms to the requirements of this
part, and that a certificate of approval to that effect has been issued.

17
Payment should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.