Secretary of Labor v. Kenamerican Resources, Inc.

Plain-English summary

MSHA cited KenAmerican Resources for two escapeway lifelines hung alongside similarly sized communications and tracking cables and for hog-wire guarding above a moving conveyor tail roller. Judge Alan G. Paez found that the lifeline arrangements could confuse miners and delay escape during an emergency, while the guard openings allowed a miner to reach the tail roller's pinch point. He affirmed all three violations as significant and substantial, finding moderate negligence for one lifeline and the guarding violation and high negligence for the second lifeline, each toward the lower end of its range. The judge reduced the total proposed penalties from $65,837 to $50,950.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.380(d)(7)(iv) and 75.1722(b)
• Outcome: All three S&S citations were affirmed, with total penalties reduced to $50,950.
• Key point: Escapeway lifelines must remain readily identifiable during an emergency, and conveyor guards must prevent access to moving pinch points.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

September 29,
2017

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

KENAMERICAN
RESOURCES, INC.,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2014-753

A.C.
No. 15-17741-357963

Mine:
Paradise #9

DECISION

Appearances:   Michele A. Horn, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Jason W. Hardin, Esq., Fabian VanCott,
Salt Lake City, Utah, for Respondent.

Before:                        Judge
Paez

This
case is before me upon the Petition for the Assessment of a Civil Penalty filed
by the Secretary of Labor (“Secretary”) pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In
dispute are three section 104(a) citations issued by the Mine Safety and Health
Administration (“MSHA”) to KenAmerican Resources, Inc. (“KenAmerican” or
“Respondent”), as the owner and operator of the Paradise #9 mine in Muhlenberg
County, Kentucky. To prevail, the Secretary must prove the cited violations “by
a preponderance of the credible evidence.” In re: Contests of Respirable
Dust Sample Alteration Citations , 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden
Creek Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. ,
Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096, 1106–07 (D.C.
Cir. 1998). This burden of proof requires the Secretary to demonstrate that
“the existence of a fact is more probable than its nonexistence.” RAG
Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and
internal quotation marks omitted), aff’d , 272 F.3d 590 (D.C. Cir. 2001).

I.  STATEMENT OF
THE CASE

The
Secretary initially charged KenAmerican with four section 104(a) citations as part
of Docket No. KENT 2014-753. The parties settled one of the four citations, for
which I issued a Decision Approving Partial Settlement on November 16, 2015. Three
section 104(a) citations remain at issue.

Citation
Nos. 8513258 and 9041084 allege violations of 30 C.F.R. § 75.380(d)(7)(iv) for
improperly hung lifelines. [1]
Citation No. 9041085 alleges a violation of 30 C.F.R. § 75.1722(b) for an
inadequately guarded tail roller. [2]
The Secretary has designated each violation as significant and substantial
(“S&S”). [3]
The Secretary characterizes KenAmerican’s negligence as moderate for Citation
Nos. 8513258 and 9041085, and as high for Citation No. 9041084. The Secretary
proposes penalties of $15,570.00 for Citation No. 8513258, $48,472.00 for
Citation No. 9041084, and $1,795.00 for Citation No. 9041085, for a total of
$65,837.00.

Chief
Administrative Law Judge Robert J. Lesnick assigned Docket No. KENT 2014-753 to
me, and I held a hearing in Nashville, Tennessee. [4]
The Secretary presented testimony from MSHA inspectors Abel DeLeon and Jon Ryan
Newbury. KenAmerican presented testimony from Shift Foreman James Pendegraff
and Safety Director Shannon Baker. The parties each filed post-hearing briefs,
and the Secretary filed a reply brief.

II.  ISSUES

For
Citation No. 8513258, the Secretary asserts that Respondent failed to comply
with 30 C.F.R. § 75.380(d)(7)(iv) by locating the lifeline near a moving
belt return roller and by routing the lifeline near a communications cable and
a carbon monoxide monitoring cable. (Sec’y Br. at 6–8.) The Secretary asserts
that the violation was S&S and claims KenAmerican’s actions constituted
moderate negligence because two months prior an MSHA inspector had warned the
operator about commingling the lifeline with similarly sized cables. ( Id.
at 8, 12–13.)  

For
Citation No. 9041084, the Secretary similarly asserts that Respondent failed to
comply with 30 C.F.R. § 75.380(d)(7)(iv) by routing the lifeline alongside
the communications cable and the miner location tracking cable near an active
mining section. (Sec’y Br. at 8–9.) The Secretary asserts that the violation
was S&S and claims KenAmerican’s actions constituted high negligence
because the operator developed the area after the inspector’s prior warning and
citation. ( Id. at 13.)

In
contrast, KenAmerican argues that the cited lifeline conditions did not
constitute violations of section 75.380(d)(7)(iv) because the Secretary’s
interpretation and enforcement of the regulation are improper. (Resp’t Br. at 3–25,
35–41.) Alternatively, Respondent argues that the gravity and negligence of the
citation should be reduced and that the Secretary’s proposed penalties are too
high. (Resp’t Br. at 25–35, 41–48.)

For
Citation No. 9041085, the Secretary asserts that Respondent failed to comply
with 30 C.F.R. § 75.1722(b) by using hog wire fencing with excessively large
openings as guarding on top of a motorized belt tail roller. (Sec’y Br. at
14–17.) The Secretary asserts that the violation was S&S and that
KenAmerican’s actions constituted moderate negligence. ( Id. )

Respondent
argues that the cited conditions were not a violation of section 75.1722(b)
because the guarding would prevent miners from contacting moving components of
the belt. (Resp’t Br. at 44–45.) Respondent alternatively contends that the gravity
and negligence determinations should be lowered and the Secretary’s assessed
penalty reduced. ( Id. at 45–47.)

Accordingly,
the following issues are before me: (1) whether Respondent violated the
Secretary’s mandatory health or safety standard on locating lifelines in an
underground coal mine; (2) whether Respondent violated the Secretary’s
mandatory health or safety standard regarding the installation of guards for
mechanical equipment; (3) whether the record supports the Secretary’s
assertions regarding the gravity of the alleged violations, including the
S&S determinations; (4) whether the record supports the Secretary’s
assertions regarding KenAmerican’s negligence in committing the alleged
violations; and (5) whether the Secretary’s proposed penalties are appropriate.

For
the reasons that follow, it is hereby ORDERED that Citation Nos.
8513258, 9041084, and 9041085 are AFFIRMED.

III.  FINDINGS
OF FACT

The
parties stipulated to the following:

1. KenAmerican Resources, Inc.
   (“KenAmerican”) at all times relevant to these proceedings, engaged in mining
   activities and operations at the Paradise #9 Mine in Muhlenberg County,
   Kentucky.

2. KenAmerican
   is subject to the jurisdiction of the Federal Mine Safety and Health Act of
   1977, 30 U.S.C. §§ 801 et. seq. (the “Mine Act”).

3. The
   Administrative Law Judge has jurisdiction over these proceedings pursuant to
   [section] 105 of the [Mine] Act.

4. Abel DeLeon
   was[,] at the times the citations were issued, an authorized representative of
   the United States of America’s Secretary of Labor, assigned to MSHA, and was
   acting in his official capacity when issuing the citations at issue in these
   proceedings.

5. The citations
   at issue in these proceedings were properly served upon KenAmerican as required
   by the Mine Act.

6. The exhibits
   offered by the parties are stipulated to be authentic, but no stipulation is
   made as to their relevance or the truth of the matters asserted therein.

7. The penalties
   assessed in this case will not affect the ability of KenAmerican to remain in
   business.

8. KenAmerican
   demonstrated good faith in abating the violations.

(Joint
Ex. 1.)

A.
       Background of the KenAmerican Mine

KenAmerican’s
Paradise #9 mine is a room-and-pillar coal mine located in Muhlenberg County,
Kentucky. (Joint Ex. 1; see Ex. R–7 at 1.) KenAmerican has developed the
mine by cutting a series of entries and perpendicular crosscuts that form a
grid if viewed from above. (Tr. 34:9–12; Ex. R–7.) The Paradise #9 mine is
a large mine, with the working sections located five to seven miles from the
mine’s entrance. (Tr. 26:22–27:2.) Driving from the mine’s active face to the
exit takes 45 minutes to an hour, while walking the distance can take several
hours. (Tr. 26:15–21.) KenAmerican has three working sections in Paradise

9 and operates on three rotating shifts: two are production shifts and one is a

maintenance shift. (Tr. 21:1–10, 39:24–25, 40:1–3.) To ensure coal production
is uninterrupted, KenAmerican overlaps the shifts at Paradise #9. (Tr.
40:6–15.)

At
the Paradise #9 mine, KenAmerican is required to maintain two entries as designated
escapeways for miners to use in case of an emergency. (Tr. 41:3–13,
103:25–104:9, 111:11–22.) The primary escapeway also acts as the mine’s main
intake ventilation entry, providing clean air to sweep away methane, carbon
dioxide, and dust at the active mining section. (Tr. 41:14–42:2.) Paradise #9’s
secondary escapeway has neutral air and doubles as the mine’s main travelway. (Tr.
86:7–15, 90:13–19.) In portions, the secondary escapeway also contains the
mine’s coal conveyor belt. (Tr. 35:15–36:5, 57:1–25; Ex. R–7.)

Each
entry in Paradise #9 is approximately 18 to 20 feet wide. (Tr. 29:20–30:3.)
To support the mine roof in excavated entries, KenAmerican has installed a
series of roof bolts drilled into the mine ceiling with roof bolt plates attached
at the end of the bolt. (Tr. 31:11–24.) KenAmerican typically installs roof
bolts in four rows across the width of an entry. ( Id. ) KenAmerican pins the
roof bolt plates firmly against the mine roof with a bolt through the center of
each plate. (Tr. 51:8–18.) Each roof bolt plate is square or rectangular
and has two eyelets located on opposite corners of the plate. (Tr. 50:19–23,
51:19–52:1.) In the escapeways, KenAmerican strings several different cables
along the mine roof by attaching the cables to the roof bolt plates’ eyelets. (Tr.
52:2–8, 55:17–25.) On one side of the entry, KenAmerican suspends its high-voltage
power cables from the roof with coated hangers specially designed for these
cables. (Tr. 83:24–85:1, 124:25–125:3, 125:10–23, 128:15–25.) On the other side
of the entry, KenAmerican hangs its carbon monoxide detection cable, miner
tracking cable, and communications cable using strong plastic zip ties or metal
wire ties. (Tr. 123:8–17, 126:6–9, 141:9–14, 153:1–14.)

KenAmerican
must also run lifelines down the primary and secondary escapeways. (Tr. 103:25–104:13);
30 C.F.R. § 75.380(d)(7)(iv). KenAmerican attaches the lifelines to the
eyelets with smaller plastic zip ties that break with eight to 11 pounds of
force. (Tr. 121:9–20.) The coal seam at Paradise #9 is approximately five feet
deep, so the lifeline is hung within reach of standing miners. (Tr. 53:4–8.) If
necessary, miners can break the zip ties and pull the lifeline down toward the
mine floor. (Tr. 157:15–23.) Miners on each unit are trained to first gather at
the unit’s fire center in an emergency. (Tr. 121:21–122:2.) There, the miners
would discuss their route of escape with their section foreman before grabbing
the lifeline and proceeding out of the mine with their foreman. (Tr. 122:3–10.)

Altogether,
KenAmerican has 24 to 28 miles of lifelines in Paradise #9. (Tr. 143:6–12.) Lifelines
are made of braided nylon rope and contain a number of cones, balls, and swirls
directing miners to safety in case smoke in the mine limits visibility. (Tr. 20:9–13,
28:4–10, 136:5–12; Exs. R–10, R–13.) Every 100 feet, the lifelines have directional
cones pointing miners toward the mine’s exit. (Tr. 22:17–23:5.) A ball on
the lifeline indicates an upcoming branch in the line leading to a main door for
passage to the next entry. (Tr. 23:6–24:13.) A swirly cone indicates the
direction to a refuge chamber, where miners can take shelter if escape is not
possible. (Tr. 23:8–10.) Two diamond-shaped cones indicate a nearby cache of
self-contained self-rescuers (“SCSRs”), i.e., personal respirators that miners
must rely upon if the mine becomes inundated with smoke and other fumes. (Tr.
25:1–12, 21:11–15, 26:12–14, 150:15–25.) Because each SCSR contains only up to
an hour’s worth of oxygen, workers escaping the mine on foot could require multiple
SCSRs. (Tr. 27:3–9.)

In
addition to housing miles of lifelines, the Paradise #9 mine contains a long
series of conveyor belts that KenAmerican uses to bring coal to the surface of
the mine. (Tr. 44:4–8.) To transfer coal between belts, coal is dumped from the
head of one belt onto the tail of the next. (Tr. 185:22–186:9.) At this
exchange point, an electric motor propels the conveyor belt by turning a roller
located in the belt’s tail. (Tr. 172:22–173:4, 173:23–174:15.) The tail
roller stands at about waist height and is large, measuring approximately two
feet in diameter and four feet long. (Tr. 173:23–174:6, 175:17–176:1.) The
rollers propel the belt at a rapid pace of 1,200 to 2,000 feet per minute. (Tr.
36:17–37:4.) KenAmerican installs guarding around the sides and top of the belt
near the motorized tail rollers to protect miners from being caught in the
moving parts and injured. (Tr. 175:4–9.) The operator also places guarding
around the belt in other areas where miners could be pinched by the moving
parts. ( See Tr. 77:8–18.)

B.
       April 2014 Mine Inspection and Warning

In
April 2014, MSHA Inspector Abel DeLeon traveled to Paradise #9 as part of an
inspection of the underground mine. (Tr. 18:20–19:15.) Due to a jurisdictional
realignment of MSHA’s offices, DeLeon’s office in Madisonville, Kentucky, had
taken over inspections of Paradise #9 in the previous year from MSHA’s Beaver
Dam office. (Tr. 18:2–19.) At the mine, DeLeon traveled with Mike Harris, a
safety official for KenAmerican. (Tr. 18:20–19:15.) Inside the mine, DeLeon
found an area 50 to 70 feet long in which the lifeline was strung along the
mine roof in close proximity to other similarly sized cables, including the
communications line and the miner tracking line, on the same roof bolt plate. (Tr. 19:12–19,
29:4–7.) Concerned that a worker attempting to escape the mine could mistakenly
grab one of the nearby cables instead of the lifeline, DeLeon directed Harris
to move the lifeline so it was not commingled with the other cables in the
entry. (Tr. 19:20–20:3.) DeLeon feared that disoriented miners could follow the
wrong line and get lost during an emergency, leading the miners to suffocate. (Tr.
20:4–21.) DeLeon did not write KenAmerican a citation for the commingled wires,
but instead gave the mine a warning. (Tr. 29:8–19.) Although Harris disagreed
about the need to reposition the lifeline, he moved the lifeline to a different
set of roof bolt plates without other cables. (Tr. 19:20–20:3, 29:14–19, 30:5–21.)
When DeLeon left the mine later that day, he discussed the problem with
KenAmerican’s safety director, Shannon Baker, and stressed that the operator
needed to fix any other instances of commingled lines. (Tr. 30:14–31:10.) DeLeon
told KenAmerican the lifelines had to be far enough away from other similarly
sized cables to avoid confusion, but the inspector did not explicitly tell the
operator where it needed to hang the lifelines. (Tr. 30:14–31:10.)

C.        June
11 Inspection and Citation No. 8513258

On
June 11, 2014, Inspector DeLeon returned to Paradise #9 as part of a spot
inspection. [5]
(Tr. 32:1–8; Exs. GX–2, R–2.) Inside the mine, DeLeon traveled down the
secondary escapeway [6]
to Third Southwest Mains, an area of the mine that was developed in 2010. (Tr. 38:24–39:6;
see Ex. R–7 at 4.) While traveling the escapeway, DeLeon came upon an area
where the escapeway passed under the coal conveyor belt. (Tr. 35:15–36:5.) Although
KenAmerican had installed some guarding on the belt to protect miners’ heads, the
guarding was limited. (Tr. 77:8–18.) Where the lifeline ran under the overpass,
the sides of the belt’s rollers were exposed without guarding. (Tr. 36:1–5.) The
lifeline was located six to eight inches from the side of the turning belt
rollers. (Tr. 36:6–16, 37:21–24.) The lifeline had slack in the line in this
area near the belt. (Tr. 38:1–6.)

Further
into the mine, DeLeon discovered an area where the lifeline was suspended from
the same roof bolt plate as other similarly sized cables. (Tr. 38:12–23,
58:8–21.) DeLeon believed these conditions existed for two crosscuts, or a
distance of 100 to 130 feet. (Tr. 38:12–23, 56:8–13.) The affected area
was approximately one mile from the three working sections in Paradise #9. (Tr.
38:24–39:16, 10:9–14; see Ex. R–7 at 1.) Miners from all three working
sections would pass the area while exiting the mine. (Tr. 38:24–39:16.)  

Based
on his observations, DeLeon issued Citation No. 8513258, alleging a violation
of 30 C.F.R. § 75.380(d)(7)(iv):

The lifeline in the primary [sic]
[escapeway] is not being maintained in a manner for miners to use effectively
to escape. The lifeline is running within inches of a belt return roller of the
2nd Southwest belt line underpass on the 2nd Southwest roadway. The lifeline is
also entangled within communication and CO2 [sic] monitor cables for two
crosscuts (XC68–XC69) on the 3rd [Southwest] roadway. This condition would
cause a delay in a miner escaping the mine during an emergency by following a
cable instead of the lifeline. A miner could become entangled in the belt
roller[,] causing him fatal injuries.

(Exs.
GX–1, R–1.) Because the conditions would delay miners in an emergency, DeLeon
marked the citation as reasonably likely to result in fatal injuries to 30
persons and S&S. DeLeon characterized the operator’s negligence as
“moderate.” To abate the violation, KenAmerican Foreman James Pendegraff moved
the lifeline to a row of roof bolts in the middle of the entry and repositioned
the lifeline away from the other cables. (Tr. 73:23–74:20, 78:5–79:10.)

D.
       June 23 Inspection and Citation Nos. 9041084 and 9041085

On
June 23, Inspector DeLeon returned to Paradise #9 for another spot inspection
of the mine. (Tr. 44:9–23.) At the mine, DeLeon traveled to the No. 1 Unit on the
First Northwest Submains, an active mining section. (Tr. 44:24–45:5.) There,
DeLeon discovered that the lifeline again had been strung alongside other
cables of similar size, including the communications line. (Tr. 46:1–4; Ex. R–17.)
KenAmerican had hung the lifeline together with the other cables for
approximately 800 to 950 feet from crosscut number two to crosscut number 16, the
crosscut closest to the active mining face. (Tr. 45:2–5, 46:1–8, 95:12–23.) KenAmerican
advanced the active section by two to six crosscuts per week, so DeLeon surmised
the operator had installed the commingled lines after the inspector’s citation
on June 11. (Tr. 45:14–25, 47:25–48:10.)

Based
on his observations, DeLeon issued Citation No. 9041084, alleging a violation
of 30 C.F.R. § 75.380(d)(7)(iv):

The lifeline coming off of Unit #1 in
the primary escapeway from [crosscut] #2 to #16 was intersecting with the
communication line and tracking line. Communication line and tracking line are
all approximately the same size in diameter. A major emergency event would
result in miners being confused with which line was for escape. This hazard
would result in fatal injuries.

Location: 1st Northwest Submains,
primary escapeway.

(Exs.
GX–3, R–3.) DeLeon marked the citation as S&S and reasonably likely to
result in fatal injuries to 15 miners, the number of miners on the section. ( Id. ;
Tr. 48:25–49:9.) DeLeon characterized KenAmerican’s negligence as “high”
because the operator had hung the cables after the inspector’s recent citation.
(Tr. 47:25–48:10.) To abate the citation, KenAmerican’s James Pendegraff and
several other miners moved the lifeline from the right-most roof bolt plate to
a roof bolt plate in the middle of the entry. (Tr. 97:4–98:6; Ex. R–8.)

After
KenAmerican abated the citation, Inspector DeLeon continued his examination of
the mine. In the Third Southwest header, DeLeon inspected the exchange point
for two coal conveyor belts placed one on top of the other. (Tr. 172:13–21,
174:24–175:3, 185:22–186:9.) The lower belt was approximately waist-high. (Tr.
174:4–6.) Around the perimeter of the lower belt, KenAmerican had installed metal
panels as guarding. (Tr. 173:17–22.) KenAmerican also placed hog wire fencing
on top of the metal panels, forming an enclosed box around the end of the belt
where the tail roller created a pinch point. (Tr. 172:13–21, 174:24–175:9, 186:10–13.)
Although the hog wire was strong material, it had openings of approximately 2.5
inches by 3.5 inches in size. (Tr. 172:17–21.) The vertical distance from the
hog wire to the tail roller was only a few inches. (Tr. 179:13–20.) DeLeon
estimated that the horizontal distance from the back end of the metal panel
guarding to the tail roller was shorter than arm’s length or approximately 12
to 18 inches, though he did not measure the distance with a tape measure. (Tr.
179:21–180:8, 188:2–10.) DeLeon thus believed a miner working in the area could
put an arm through one of the hog wire openings and contact the moving tail
roller. (Tr. 177:12–178:2.)

Based
on his observations, DeLeon issued Citation No. 9041085, alleging a violation
of 30 C.F.R. § 75.1722(b):

The guarding material on the belt head
tail piece at the 3rd Southwest header was not adequate. The openings were 2.5”
by 3.5” by 2’ long. A miner would be able to come in contact with the moving
tail roller. This would result in permanently disabling injuries from loss of
fingers and/or limbs.

(Exs.
GX–4, R–4.) DeLeon marked the citation as S&S and reasonably likely to
result in permanently disabling injuries to one miner. ( Id. ; Tr.
184:10–22, 189:7–17.) DeLeon characterized KenAmerican’s negligence as
“moderate” because KenAmerican had installed some guarding, albeit inadequately.
(Tr. 185:3–9.) KenAmerican abated the citation by staggering a second layer of
hog wire on top of the tail roller, cutting in half the size of the openings. (Tr.
178:3–10.)

KenAmerican’s
Baker later traveled to the belt transfer point and measured the horizontal distance
from the side of the metal panel guarding to the side of the tail roller, which
he determined to be three feet and nine inches. (Tr. 198:16–199:19.) Baker
noted that the horizontal distance from the back of the metal panel guarding to
the tail roller was greater than three feet and nine inches. (Tr. 199:7–11.)

IV.  PRINCIPLES
OF LAW

A.        Significant
and Substantial

A violation is S&S “if, based on the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co. , 3 FMSHRC
822, 825 (Apr. 1981). To establish a S&S 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 in
question will be of a reasonably serious nature.” Mathies Coal Co. , 6 FMSHRC
1, 3–4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc. v.
Fed. Mine Safety & Health Admin. , 52 F.3d 133, 135–36 (7th Cir. 1995)
(affirming ALJ’s application of the Mathies criteria); Austin Power,
Inc. v. Sec’y of Labor , 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies
criteria).

The Commission
has recently explained that in analyzing the second Mathies element,
Commission Judges must determine “whether, based upon the particular facts
surrounding the violation, there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is
directed.” Newtown Energy, Inc. , 38 FMSHRC 2033, 2038 (Aug. 2016). In
evaluating the third Mathies element, the Commission assumes the hazard
identified in the second Mathies element has been realized and
determines whether that hazard is reasonably likely to cause injury. Id.
at 2045 (citing Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148,
161–62 (4th Cir. 2016); Peabody Midwest Mining, LLC , 762 F.3d 611, 616
(7th Cir. 2014); Buck Creek Coal , 52 F.3d at 135). Finally, the
Commission has specified that evaluation of the reasonable likelihood of injury
should be made assuming continued normal mining operations. U.S. Steel
Mining Co. , 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining
Co. , 6 FMSHRC 1573, 1574 (July 1984)).

The
Commission has further emphasized that evacuation standards such as section
75.380(d)(7)(iv) are “intended to apply meaningfully only when an emergency
actually occurs.” Cumberland Coal Res., LP , 33 FMSHRC 2357, 2369 (Oct.
2011), aff’d sub nom. Cumberland Coal Res., LP v. Fed. Mine Safety
& Health Admin. ,
717 F.3d 1020 (D.C. Cir. 2013). Therefore, “when applying the Mathies
analysis with respect to escapeway violations, a Judge is to consider the
S&S nature of those violations within the context of an emergency.” Big
Ridge, Inc. , 36 FMSHRC 1115, 1117 (May 2014) (citing Cumberland , 717
F.3d at 1027–28).

Finally, it is well settled that
redundant safety measures are not to be considered in determining whether a
violation is S&S. Cumberland Coal Res. LP , 717 F.3d at 1029 (D.C.
Cir. 2013); Knox Creek Coal Corp. , 811 F.3d 148, 162 (4th Cir. 2016); Buck
Creek , 52 F.3d at 135; Brody Mining, LLC , 37 FMSHRC 1687, 1691 (Aug.
2015); Cumberland Coal Res., LP , 33 FMSHRC 2357, 2369 (Oct. 2011).

B.        Negligence

The
Commission evaluates the degree of negligence using “a traditional negligence
analysis.” The American Coal Co. , 39 FMSHRC 8, 14 (Jan. 2017) (quoting Mach
Mining, LLC v. Sec’y of Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016)
(citation omitted)). Because the Commission is not bound by the Secretary’s
regulations addressing the proposal of civil penalties set forth in
30 C.F.R. part 100, the Commission and its Judges are not required to
consider the negligence definitions in 30 C.F.R. § 100.3(d). Id. (citing
Mach Mining, LLC , 809 F.3d at 1263–64). Under a traditional negligence
analysis, an operator is negligent if it fails to meet the requisite standard
of care. Brody Mining, LLC , 37 FMSHRC 1687, 1702 (Aug. 2015). In
determining whether an operator met its duty of care, the Commission considers
what actions would have been taken under the same circumstances by a reasonably
prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation. Id. at 1702 (citation omitted). In
making a negligence determination, a Judge is not limited to an evaluation of
allegedly “mitigating” circumstances, but may consider the totality of the
circumstances holistically. Id.

V.  ADDITIONAL
FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.        The
Lifeline Violations – 30 C.F.R. § 75. 380(d)(7)(iv)

1.          Interpretation
of 30 C.F.R. § 75.380(d)(7)(iv)

Section
75.380(d)(7)(iv) requires lifelines in underground coal mines to be “[l]ocated
in such a manner for miners to use effectively to escape.” 30 C.F.R. § 75.380(d)(7)(iv).
Accordingly, a violation of the regulation occurs where miners cannot “effectively”
use the lifeline to escape the mine in an emergency. The Secretary asserts that
the standard’s requirements differ from mine to mine depending on conditions at
the mine. (Sec’y Reply at 1–2.) The Secretary further asserts that to be
effective the lifeline at Paradise #9 should have been hung separately from other
cables of similar size. ( Id. ; see Tr. 107:19–108:5.)

Respondent
challenges the Secretary’s interpretation of the regulation and asserts that
the miners in Paradise #9 could still effectively use the lifeline to escape
while strung to the same roof bolt plates as other wires. (Resp’t Br. at 3–10.)
KenAmerican asserts that the Secretary’s interpretation of the standard is unreasonable,
and therefore should not receive any deference. ( Id. at 7–10, 160:16–25;
Ex. R–9.)

Regulatory
interpretation is a two-step process. First, unambiguous regulatory provisions
“must be enforced as they are written unless the regulator clearly intended the
words to have a different meaning or unless such meaning would lead to absurd
results.” Jim Walter Res., Inc. , 28 FMSHRC 579, 587 (Aug. 2006) (citing Dyer
v. United States , 832 F.2d 1062, 1066 (9th Cir. 1987), and Utah Power
& Light Co. , 11 FMSHRC 1926, 1930 (Oct. 1989). The meaning of
regulations is “ascertain[ed] . . . not in isolation, but rather in the context
in which those regulations occur.” Wolf Run Mining Co. , 32 FMSHRC 1669,
1681 (Dec. 2010) (citing RAG Shoshone Coal Corp. , 26 FMSHRC 75, 80 &
n.7 (Feb. 2004)). Second, if the meaning of the regulation is ambiguous, the
Secretary’s reasonable interpretation of the regulation is entitled to
deference. Mach Mining, LLC , 34 FMSHRC 1784, 1806 (Aug. 2012). Courts
defer to an agency’s interpretation of its own regulation, which may be advanced
in a legal brief, unless that interpretation is “plainly erroneous or inconsistent
with the regulation.” Chase Bank USA, N.A. v. McCoy , 562 U.S. 195, 208
(2011) (citing Auer v. Robbins , 519 U.S. 452, 461 (1997)). However, the
courts have withheld such deference where the agency’s interpretation “does not
reflect the agency’s fair and considered judgment on the matter in question.” Christopher
v. SmithKline Beecham Corp. , 567 U.S. 142, 155 (2012) (citations omitted).

First,
I must determine whether the regulation is unambiguous. I begin with the text
of the regulation. Lifelines must be “[l]ocated in such a manner for miners to
use effectively to escape.” 30 C.F.R. § 75.380(d)(7)(iv). Rather than providing
for a singular method of compliance, the regulation establishes a
performance-oriented standard that mines must meet. See MSHA,
Training Questions for Emergency Mine Evacuation, Emergency Temporary Standard
Compliance Guide 4, http://arlweb.msha.gov/REGS/COMPLIAN/
Guides/MineEvacETS/MineEvacETSComplianceGuide.pdf. To understand what this
performance standard requires, I first must find the meaning of “effectively.” The
Secretary’s regulations do not define “effectively” for the purposes of section
75.380(d)(7)(iv). The Oxford Dictionary defines “effectively” as “in such a
manner as to achieve a desired result.” Effectively , The New Oxford
American Dictionary (2d ed. 2005). The desired result of the lifeline standard
is for miners to escape the mine quickly. See 71 Fed. Reg. 71,430, 71,431
(Dec. 8, 2006). Accordingly, section 75.380(d)(7)(iv) requires mine operators
to provide a lifeline that is located in such a manner for miners to use to escape
the mine quickly.

Next,
I look to the phrase “positioned in such a manner” for context. MSHA has
provided little firm guidance regarding how lifelines should be hung to satisfy
this requirement. ( See Tr. 80:7–23, 82:2–15, 109:14–22.) In comments
accompanying the rulemaking, MSHA stated simply that “[p]roper positioning of
the lifeline regarding height, accessibility, and location as determined by
mining conditions improves the ability of miners to effectively use
lifelines to escape during emergency situations.” 71 Fed. Reg. at 71,437
(emphasis added). Thus, the agency drafted the regulation with an understanding
that its requirements would shift as mining conditions dictated.

Given
the intentional flexibility of the standard, I conclude that the regulation’s
meaning is ambiguous insofar as it depends on particular mining conditions.

Having
found the regulation to be ambiguous, I next must determine whether the
Secretary’s interpretation is reasonable and entitled to deference. Here, the
Secretary interprets the regulation to require that lifelines at Paradise #9 be
hung from separate roof bolt plates than other cables of similar size. (Sec’y
Br. at 4–13; Sec’y Reply Br. at 1–2.) Inspector DeLeon testified that lifelines
must be “separate and distinct” from other cables to be effectively used to
escape the mine. (Tr. 107:19–108:5.) DeLeon explained that in the smoke and
confusion of an emergency, a miner could follow a cable rather than the
lifeline and get lost in the mine. (Tr. 20:4–24.) Specifically, a miner forced
to release the lifeline could grasp another cable in the dark mistakenly
believing the commingled cable to be a lifeline. (Tr. 106:10–24.) Hanging the
lifeline alongside similarly sized cables could cause confusion and delay the
miners’ escape. (Tr. 46:21–47:13.) DeLeon further averred that although MSHA
has not issued written guidance for mines about the placement of lifelines, the
agency trains its inspectors that lifelines should not be commingled with high
voltage power lines or other cables of similar size. (Tr. 81:9–82:15.)

Respondent
asserts that the Secretary’s interpretation of the standard creates a per se
rule against hanging a lifeline on the same roof bolt plate as other
similarly-sized cables. (Resp’t Br. at 7­8.) However, the Secretary has simply
stated that under the standard, the lifeline should not be commingled with
other cables and should be separate and distinct. (Sec’y Br. at 4–13; Sec’y
Reply Br. at 1–2.) Although terminating the two disputed violations ultimately
required KenAmerican to move the lifeline to a separate roof bolt plate, the
record suggests that this abatement measure was specific to Paradise #9 based
on how KenAmerican developed the mine and installed its roof bolts, power
center, and cable system. (Tr. 74:2­–6, 98:1­–6, 31:11–24, 51:8­­–52:8,
83:24–85:1.) Whether a lifeline would need to be attached to a separate roof
bolt plate in another mine would depend on the type and size of the roof bolt
plate, which in turn depends on the mine’s roof and structure. In other words,
a lifeline’s location for miners to use effectively to escape depends on the
mine’s conditions, as MSHA has stated. Accordingly, I decline to adopt
Respondent’s position that the Secretary’s interpretation of the standard creates
a per se rule requiring mine operators to attach lifelines to separate roof
bolt plates. Rather, I determine that the Secretary’s interpretation requires
mine operators to locate lifelines separately and distinctly from other
similar-sized cables as determined by mine conditions for miners to use the
lifelines effectively to escape.

Respondent
further asserts that the Secretary’s interpretation is unreasonable. (Resp’t
Br. at 8–10.) Respondent argues that the Secretary’s interpretation is
arbitrary because a disoriented miner could still grab the wrong cable even if
the lifeline is hung from a separate roof bolt plate. ( Id. at 8.) Respondent
contends that the only way to completely prevent such speculative confusion
would be to place the lifeline in a separate entry from the other cables. ( Id. )

Despite
Respondent’s arguments, the standard requires lifelines to be located
effectively for miners to escape – the operative term being “effectively.” Here,
Inspector DeLeon determined that having the lifeline commingled with other
cables in Paradise #9 could more than likely lead to confusion, thus creating
delay and reducing the ability of miners to use the lifeline effectively to
escape. DeLeon has worked for MSHA since 1998 and has been a field office
supervisor since 2008, was a coal miner in Kentucky and Virginia for 11 years,
and holds an associate’s degree in mining technology. (Tr. 15:14–16:21, 17:3–21.)
I credit DeLeon’s opinion that commingling the lifeline could tend to cause a
delay in escaping. DeLeon further testified that MSHA teaches inspectors to
separate lifelines from similarly sized cables to limit confusion. (Tr.
81:9–82:15.) Although hanging lifelines in separate entries may further eliminate
potential confusion, the existence of a potentially safer alternative does not
negate DeLeon’s determination here that placing the lifeline where it
commingled with other cables could delay and reduce the ability of miners to
use the lifeline to effectively escape. Further, there is no evidence in the
record suggesting that the Secretary arbitrarily declined to adopt such a
requirement that a lifeline be given a separate entry altogether given that
such a requirement would depend on each mine’s specific conditions.

Respondent
also asserts that the Secretary’s bright-line rule runs contrary to MSHA’s
guidance, which emphasizes that the standard’s requirements will change from
mine to mine. ( Id. at 8–9 (citing 71 Fed. Reg. at 12,261, 71,437).) Although
MSHA has noted that the standard’s requirements may vary, guidance suggesting
flexibility does not forestall MSHA from barring in all instances those
practices the agency deems unacceptable, such as commingling lifelines with
other cables.

Respondent
finally avers that the Secretary’s interpretation deviates from previous
interpretations, as prior inspectors declined to cite Paradise #9 for the same
lifeline conditions. (Resp’t Br. at 9.) However, the Commission has held that
“[a]n inconsistent enforcement pattern does not estop MSHA from proceeding
under the interpretation of the standard that it concludes is correct.” U.S.
Steel Mining Co. , 15 FMSHRC 1541, 1547 (Aug. 1993) (citing U.S. Steel
Mining Co. , 10 FMSHRC 1138, 1142 (Sep. 1988)). Thus, lax prior enforcement
does not demonstrate arbitrariness in MSHA’s current interpretation. I also note
that Inspector DeLeon, a field office supervisor, was only recently assigned to
Paradise #9 after the mine’s transfer to MSHA’s Madisonville office’s jurisdiction.
(Tr. 18:2–9.) Furthermore, two months prior to issuing this citation, Inspector
DeLeon verbally warned KenAmerican that hanging the lifeline from the same roof
bolt plates as other cables constituted a violation, giving advanced notice to
the operator. (Tr. 29:8–19.)

After
careful consideration, I determine that Respondent’s legal arguments do not
undermine Inspector DeLeon’s testimony, which I credit based on his experience.
Given the evidence before me, I determine that the Secretary’s interpretation
of section 75.380(d)(7)(iv) demonstrates a fair and considered judgment on the
requirements. Accordingly, I defer to MSHA’s interpretation that the standard
requires lifelines at the Paradise #9 mine to be hung from separate roof bolt
plates apart from other cables of similar size.

2.
        Citation No. 8513258

a.         Violation
– Citation No. 8513258

The
Secretary can prove a violation of section 75.380(d)(7)(iv) by demonstrating
that the mine operator has not installed a lifeline in a manner that miners can
use effectively to escape the mine quickly. For Citation No. 8513258, the
Secretary asserts that Respondent violated section 75.380(d)(7)(iv) in two ways.
(Sec’y Br. at 6–8.) First, the Secretary states that KenAmerican violated the
standard by routing the lifeline too close to an unguarded section of the coal
conveyor belt. ( Id. ) Second, the Secretary contends that Respondent
committed a violation by attaching the lifeline to the same roof bolt plates as
other cables. ( Id. )

Respondent
asserts that the Secretary has not demonstrated a violation by a preponderance
of the evidence. [7]
(Resp’t Br. at 10–23.) Respondent emphasizes that the evidence supports a
finding that the lifeline’s placement would not affect the miners’ ability to
escape. ( Id. )

KenAmerican’s
witnesses, Pendegraff and Baker, testified that the operator had trained miners
to break the zip ties and pull the lifeline down from the mine roof when
visibility is limited. (Tr. 120:23–121:20, 122:17–23, 127:6–21, 158:1–11.) Pendegraff
further testified that miners could identify the lifeline by the directional
cones and the nylon rope’s braided texture, even while wearing gloves. (Tr. 135:5–16,
149:14–23, 161:7–16; see Ex. R–10.) He testified that if miners were to
follow the wrong cable, they may be able to follow that line out of the mine. (Tr.
55:17–25, 116:22–117:6.) Regarding the lifeline’s proximity to the coal
conveyor belt, KenAmerican trained its staff to shut down the belt lines during
an emergency to reduce the threat to escaping miners. (Tr. 76:16–77:7.) Additionally,
because some guarding on the conveyor protected passing miners, KenAmerican
argued that miners again could break the zip ties and pull the slack lifeline
away from the belt. (Tr. 77:8–18, 128:1–10.)

On
the other hand, although some guarding was in place to protect miners, the
guarding was limited and would primarily protect the miners’ heads. (Tr.
77:8–18.) Inspector DeLeon was concerned that miners could get their hands or
arms caught in the belt’s turning rollers, thus potentially harming miners and
delaying their escape during an emergency. (Tr. 35:18–36:5, 36:14–37:24.) DeLeon
believed such an accident was more likely because the lifeline was not taut. (Tr.
38:1–11.) MSHA’s Jon Newbury similarly believed miners using the lifeline were
at risk of contacting the belt rollers. (Tr. 168:19–169:1.) Inspector DeLeon
also testified that miners in an emergency may act differently than trained. (Tr.
113:2–21.) Although regular procedure would see the belt shut off in an emergency,
DeLeon questioned whether miners would follow such procedures during a major event
forcing miners to flee Paradise #9 on foot. (Tr. 76:12–77:7, 105:11–16.)

Indeed,
many underground mine tragedies have occurred because procedures were not
followed, proving the old adage true that even the best laid plans often go
awry. As the Commission has indicated, the training of miners on escape
procedures does not mitigate the seriousness of a violation. See Cumberland
Coal , 33 FMSHRC at 2369 (citations omitted).

As
already discussed, section 75.380(d)(7)(iv) required KenAmerican to route its
lifelines in the Paradise #9 mine to roof bolt plates separate from other
cables in the mine, so miners could use the lifelines effectively to escape the
mine. See discussion, supra Part V.A.1. It is uncontroverted that
KenAmerican had located its lifeline alongside other similarly sized cables for
100 to 130 feet in the secondary escapeway. (Tr. 38:12–23.) Alone, this is
sufficient to show a violation. Furthermore, I credit Inspector DeLeon’s
testimony regarding the lifeline’s proximity to the conveyor belt and determine
that miners using the lifeline were at risk of contacting the belt. The
potential smoke and darkness caused by a mine emergency could easily lead a frantic
miner attempting to locate the lifeline to accidentally come into contact with
the belt. Accordingly, miners exiting near the belt overpass would not be able
to use the lifeline effectively to escape the mine quickly and safely. Given
the evidence before me, I determine that KenAmerican violated 30 C.F.R. § 75.380(d)(7)(iv)
by locating the lifeline alongside other similarly sized cables and close to
the belt line in the Paradise #9 mine. [8]

b.         S&S
and Gravity Determination

The
Secretary asserts that the lifeline violation was S&S and reasonably likely
to result in fatal injuries to 30 miners. (Sec’y Br. at 9–14.) In contrast,
Respondent asserts that the violation was not S&S because the conditions
were unlikely to result in injuries and would result only in lost workdays
rather than fatalities. (Resp’t Br. at 25–30.) Respondent further asserts the
conditions would only have affected two miners. ( Id. )

My
determination that KenAmerican violated section 75.380(d)(7)(iv) establishes
the first element of the Mathies test for an S&S violation. The
second element of the Mathies test asks whether the violation created a
reasonable likelihood the hazard against which the standard is directed would
have occurred. Newtown Energy, Inc. , 38 FMSHRC at 2038. Here, section
75.380(d)(7)(iv) was promulgated to reduce the hazard of miners becoming
disoriented and unable to evacuate a mine quickly and safely during an
emergency. See 71 Fed. Reg. 71,430 (Dec. 8, 2006) (addressing standards for
emergency mine evacuations). Inspector DeLeon testified that the lifeline’s
positioning could confuse a miner and cause the miner to follow an incorrect
route while trying to escape. (Tr. 48:11–24.) DeLeon stated that a miner caught
in the smoke and darkness of a mine emergency would be unable to see his hand
in front of his face, let alone navigate a mine entryway. (Tr. 35:8–14.) A
miner walking blindly through the mine could be forced to let go of the
lifeline for a number of reasons. (Tr. 72:12–73:2, 106:10–107:18.) On direct
examination, KenAmerican’s Baker admitted that miners in an emergency could be
confused by the cables hung in close proximity to each other and thereby slowed
down while attempting escape. (Tr. 163:15–25.) In addition, DeLeon testified
that a miner making contact with the coal conveyor belt could become entangled and
injured. (Tr. 35:23–36:5, 36:23–37:4.) Given this evidence, I determine that
the violation contributed to the hazard of a miner being unable to quickly or
safely escape in the event of an emergency.

The
third and fourth elements of Mathies ask whether the safety hazard is
reasonably likely to contribute to a reasonably serious injury. Here, Inspector
DeLeon testified that a lost and disoriented miner could run out of oxygen
while attempting to escape the mine. (Tr. 25:18–26:5.) In addition, miners delayed
or not following a lifeline during an emergency could be unable to reach a
refuge chamber to get help. (Tr. 26:18–23.) DeLeon averred that the
consequences could be particularly disastrous in a mine as large as Paradise

9. (Tr. 26:18–23.) Miners escaping the mine on foot would need several caches

of SCSRs to get out of the mine. (Tr. 27:3–25.) DeLeon asserted that a
miner lost in an emergency could die if he ran out of oxygen. (Tr. 48:11–24.) Indeed,
the regulatory history of the emergency mine evacuation standards notes that toxic
gas and reduced oxygen levels are potentially fatal hazards and are often
undetectable. 71 Fed. Reg. at 71,445. Given the evidence before me, I find that
during a mine emergency a disoriented miner unable to quickly or safely escape
the mine could reasonably suffer fatal injuries. Accordingly, the Secretary has
satisfied the third and fourth elements necessary to show a violation is
S&S.

As
the Secretary satisfied all four Mathies elements, I conclude that
Citation No. 8513258
was properly designated as S&S and reasonably likely to result in a fatal
injury.

Respondent
next challenges the Secretary’s claim that the conditions would affect 30
miners. (Resp’t Br. at 25–30.) In support, KenAmerican points to Inspector
DeLeon’s mistaken belief that the cited conditions were in the mine’s primary
escapeway. ( Id. at 26–28.) Respondent also points to a separate citation
Paradise #9 received for a violation of section 75.380(d)(7)(iv) citing just
two persons. ( Id. at 26; Ex. R–16.)

KenAmerican
employed 15 miners on each of the three working sections at Paradise #9. (Tr. 38:24–39:23.)
When miner shifts overlapped, the number of miners in the mine doubled. (Tr. 40:6–20.)
Miners from all three active sections would have to pass the cited areas to
escape the mine. (Tr. 39:7–16.) Inspector DeLeon explained that, in an
emergency, all the miners could follow a disoriented colleague and be lost in
the mine. (Tr. 20:24–21:10.) Moreover, Pendegraff testified that miners on a
unit were trained to first gather at a central location during an emergency to
discuss their route of escape with their foreman. (Tr. 121:25–122:10.) All the
miners on the unit would then travel together along the lifeline. ( Id. )

Although
DeLeon initially suggested that miners would first attempt to flee the mine through
the primary escapeway, he later explained that miners would use the easiest
escape route. (Tr. 41:3–24, 102:13–103:2.) KenAmerican used the secondary
escapeway in Paradise #9 as the mine’s supply road. (Tr. 103:9–17.) Furthermore,
evacuation standards are “intended to apply meaningfully only when emergency
actually occurs.” Cumberland Coal Res. , 33 FMSHRC at 2369. Accordingly,
it is fair to assume the occurrence of an emergency forcing miners to use the
lifeline in the secondary escapeway at this part of the mine.

Although
another inspector in a separate incident cited a lifeline violation as
affecting only two persons, the facts surrounding that incident are not before
me. (Ex. R–16.) Inspector DeLeon did not have sufficient evidence to discuss that
citation. (Tr. 83:18–22.) KenAmerican did not present further evidence
regarding that citation. Accordingly, I afford it minimal weight.

I
credit Pendegraff’s testimony that all miners on a unit would gather in an
emergency given its consistency with DeLeon’s testimony and Pendegraff’s role
as a shift foreman. (Tr. 118:18–24.) I credit DeLeon’s testimony and find that a
confused and disoriented miner would delay the escape of all the miners on a
unit. I further recognize that those miners traveling with their unit would slow
to help a miner caught in and injured by the coal conveyor belt. Indeed, the
sad annals of mining disasters are filled with stories of miners ignoring their
own well-being in an attempt to help their fellow miners. See, e.g. , Jim
Walter Resources , 28 FMSHRC 579 (Aug. 2006) (describing miners rushing to
help the victims of a first explosion killed in a second blast). Given the evidence
before me, I agree with DeLeon’s determination and find that 30 miners were
affected by the violation. [9]

Accordingly,
I conclude that the Secretary has demonstrated that the violation was S&S
and reasonably likely to result in fatal injuries to 30 miners.

c.         Negligence
Determination

The
Secretary asserts that the violation was the result of KenAmerican’s moderate
negligence because MSHA recently had warned the operator that it needed to fix
any areas where the lifeline commingled with other cables. (Sec’y Br. at 12–13.)
Respondent contends that the negligence level should be low because it did not
know the cited conditions were a violation. (Resp’t Br. at 30–32.)

In
evaluating negligence, I must consider the actions that a reasonably prudent
operator would have taken under the circumstances presented that are relevant
to the operator’s obligation to comply with a standard. See Brody
Mining, LLC , 37 FMSHRC at 1703. Inspector DeLeon warned KenAmerican two
months prior to this citation that the operator needed to fix any areas in Paradise

9 where the lifeline was still hung from the same roof bolt plates as other

cables. (Tr.
29:8–19.) Additionally, the operator should have found any remaining violations
during its pre-shift examinations of the mine’s travelway. (Tr. 42:10–18.) DeLeon
and Newbury explained that the cited conditions were obvious. (Tr.
168:15–169:12.) Given this evidence, I determine that KenAmerican was negligent
because it should have known of the violative conditions and taken action to
fix any defective portions of the mine’s lifeline after DeLeon’s initial
warning.

Nevertheless,
Inspector DeLeon believed KenAmerican had simply overlooked the cited
conditions because they were relatively far from the active mining sections. (Tr.
47:14–24.) Moreover, the violation was not extensive, affecting only 100 to 130
feet of the lifeline. (Tr. 38:12–23, 56:8–13, 73:23–74:6.)

Given
the small extent of the conditions and their remoteness from the active mining
section, I conclude that although KenAmerican was negligent, the level of
negligence was moderate. Along the full spectrum of negligence, I determine
that KenAmerican’s actions fall at the lower end of moderate.

3.
        Citation No. 9041084

a.         Violation
– Citation No. 9041084

For
Citation No. 9041084, the Secretary claims that KenAmerican violated 30 C.F.R.
§ 380(d)(7)(iv) by routing the lifeline along the same roof bolt plates as
other similar sized cables for approximately 15 crosscuts in First Northwest
Submains, an active mining section. (Sec’y Br. at 8–9; Ex. GX–3.) Respondent
again asks that the citation be vacated (1) because the Secretary’s
interpretation of the regulation was unreasonable, (2) because the operator
lacked sufficient notice that the conditions constituted a violation of the
regulation, and (3) because the Secretary failed to prove a violation by a
preponderance of the evidence. (Resp’t Br. at 34–40.) In addition to repeating
its previous arguments, Respondent suggests that hanging the lifeline from the
same roof bolt plates as other cables was safer than placing the lifeline in
the middle of the entry, where it crossed above the section’s power center and
other equipment. (Resp’t Br. at 39.)

I
have already determined that the Secretary properly interpreted section
75.380(d)(7)(iv) to require KenAmerican to route its lifeline down a different
lane of roof bolt plates than other similar sized cables at the Paradise #9
mine. See discussion, supra Part V.A.1. Here, it is undisputed
that KenAmerican hung the lifeline from the same roof bolt plates as the carbon
monoxide line and the communications line for a distance of 800 to 950 feet coming
off the working section to the sixteenth crosscut. (Tr. 46:1–8, 130:1–10; Ex.
R–17.) Inspector DeLeon determined that the lifeline was too close to the other
cables, which could prevent or delay a miner from escaping the mine in the
event of an emergency. (Tr. 46:21–47:13; Ex. GX–5 at 4 [11].) Inspector DeLeon
did not specify how KenAmerican needed to place its lifeline to abate the
citation; rather, the operator chose to move the lifeline to the center of the
entry. ( Tr.
88:11–16, 97:4–98:6.) KenAmerican instead could have left the lifeline on the
side of the entry and moved the other cables to the center. (Tr. 108:13–23.)
Moreover, the cited conditions stretched for fifteen crosscuts, far beyond the
location of the power center and other equipment closest to the mine face. (Tr.
146:4–24.) KenAmerican had ample opportunity to relocate the lifelines to
separate roof bolt plates as the active section advanced. ( Id. )

Given
the evidence before me, I conclude that KenAmerican committed a violation of
75.380(d)(7)(iv) by locating the lifeline too close to the other cables in
First Northwest Submains such that miners could be prevented or delayed from
escaping in the event of a mine emergency.

b.         Gravity
and S&S Determination

My
determination that KenAmerican violated section 75.380(d)(7)(iv) establishes
the first element of the Mathies test for an S&S violation. In
regard to the second Mathies element, section 75.380(d) aims to reduce
the hazard of miners becoming disoriented and delayed in escaping in an
emergency. See 17 Fed. Reg. 71,430. Here, the lifeline was commingled
with other cables for a greater length than the previous lifeline violation. Both
Inspector DeLeon and Pendegraff testified that such placement could confuse and
potentially slow down a miner attempting to escape a mine during an emergency. (Tr.
48:11–24, 163:15–25.) Thus, consistent with the prior determination on the
previous lifeline violation, I determine that this second lifeline violation
contributed to the hazard against which section 75.380(d)(7)(iv) is directed.

In
terms of the third and fourth Mathies elements, I have already found
that a disoriented miner could run out of oxygen while attempting to escape the
mine because miners rely on the lifeline to access caches of SCSRs. See
discussion, supra Part V.A.2.ii. Here, the danger to miners is even more
pronounced because of the greater length of lifeline affected and this
particular violation’s proximity to the active mining face in a gassy mine. As
explained previously, the hazard of having a disoriented miner delayed in escaping
a mine in an emergency could reasonably result in a fatality. ( Id. ) I thus
conclude that the Secretary, having satisfied all four Mathies elements,
properly designated Citation No. 9041084 as S&S.

Relying
upon the same argument as before, the Secretary alleges that the violation was
reasonably likely to affect 15 miners. (Sec’y Br. at 14.) Respondent, again,
challenges this designation. (Resp’t Br. 28–30, 41.) I have already found that
the prior violation affected all miners inby the cited condition. See
discussion, supra Part V.A.2.ii. In this violation, the cited lifeline
portion was near one active working unit and was not in proximity to the other
two working units. (Tr. 49:3–9; Ex. GX–5 at 4 [10–11].) DeLeon concluded,
therefore, that the violation only affected one working unit, consisting of 15
miners. ( Id. ) Because miners were trained to escape together with their
unit and the cited lifeline portion came directly off the working section, all
miners working in the section would likely have to locate and pick up the
lifeline along this particular portion. ( See id. ; Tr. 121:25–122:10.) Thus,
given the evidence before me, I agree with DeLeon’s determination and conclude
that the violation affected 15 miners.

c.         Negligence
Determination

The
Secretary asserts that KenAmerican exhibited high negligence by failing to properly
position its lifeline in First Northwest Submains because the operator
developed the section and hung the lines after Inspector DeLeon’s one prior
warning and one prior citation. (Sec’y Br. at 12 –13.) Respondent defends its
actions by stating that it did not know that it was required to locate the
lifeline away from other cords on the active mining section. (Resp’t Br. at
41–42.) Respondent asserts that it had been its normal practice to place the
beginning of its lifeline on the right of a unit’s power center, which meant
attaching the lifeline to the same roof bolt plate as the communications and
tracking cables. (Resp’t Br. at 41.) Respondent believed the lifeline was
compliant with the standard in part because other inspectors had observed the
same conditions and had not cited KenAmerican. ( Id. at 41.) Respondent
also asserts that Citation No. 8513258, the previous lifeline citation, did not
serve as a warning because it did not involve a portion of the lifeline that
was coming off an active unit. ( Id. at 41–42.)

The
Commission has recognized that high negligence “suggests an aggravated lack of
care that is more than ordinary negligence.” Brody Mining, LLC , 37
FMSHRC at 1703 (citation omitted). Here, Inspector DeLeon twice warned
KenAmerican orally and by citation that it needed to ensure lifelines were
separate from other cables in the mine. In April 2014, DeLeon conveyed this
warning directly to Shannon Baker, KenAmerican’s safety director. (Tr.
30:22–31:10.) Then on June 11, 2014, DeLeon cited the operator for the same
problem in another area of the mine. (Ex. GX–1.) In this instance, Inspector
DeLeon believed that KenAmerican had installed the length of the commingled
lifeline and cables after he had issued the previous lifeline violation, Citation
No. 8513258, two weeks prior. (Tr. 45:6–13.) DeLeon testified that based on
typical production, assuming no breakdowns, the operator would advance into the
mine two to six crosscuts each week. (Tr. 45:17–21.) He, therefore, concluded
that the operator moved at least eight or nine crosscuts from when he issued
Citation No. 8513258 to when he issued Citation No. 9041084. [10]
(Tr. 45:21–25.)

DeLeon’s
warning and subsequent citation placed KenAmerican on notice that it needed to
be more careful when routing lifelines through the mine. Despite these warnings,
Inspector DeLeon alleged that KenAmerican continued for two more weeks to
position the lifeline next to two other cables of similar size as the company
advanced the mine face in First Northwest Submains. (Tr. 152:11–25.) The
operator improperly hung the lifeline for more than 800 feet in an area where
miners constantly worked and traveled. (Tr. 46:1–8.)

At
hearing, however, KenAmerican explained that the company did not want to place
the lifeline directly above the power center, which was located at the active
unit. (Tr. 129:6–18.) As the unit advanced, the power center and lifeline moved
up with it. (Tr. 152:11–22.) The power center was eight to ten feet wide and
prevented KenAmerican from using the two center rows of roof bolt plates. (Tr.
144:7–14, 129:6–18, 130:1–133.10; Ex. R–17.) As a result, KenAmerican hung the
lifeline from the right-most row of roof bolt plates alongside other cables. (Tr.
129:6–18, 130:1–133:10; Ex. R–17.) KenAmerican offers a reasonable explanation
for placing the lifeline to the right in order to prevent it from intersecting
with the power center. This could explain the operator’s assertion that other
inspectors did not object to the lifeline’s placement near the face. However,
it does not forgive Respondent’s duty to move the lifeline away from other
cables as soon as the power center was out of the way. Indeed, the operator
failed to re-adjust the lifeline located outby the power center as it advanced.
The power center measured only 16 feet long, whereas the lifeline was
commingled with the other cables for 800 feet or approximately 15 crosscuts. (Tr.
144:7–14, 46:1–8.)

Based
on the facts as a whole, I find that KenAmerican disregarded MSHA’s prior
warnings about the position of the lifeline in Paradise #9. Respondent ignored
MSHA’s warnings despite the minimal effort necessary to properly hang the
lifeline and the potentially dire consequences for miners unable to escape the
section in an emergency. I determine that Respondent was highly negligent in
ignoring MSHA’s warnings and refusing to separate the lifeline from other
cables.

B.
       The Guarding Violation – 30 C.F.R. § 75.1722(b)

Section
71.1722(b) requires that guarding at “conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance sufficient to prevent a person
from reaching behind the guard and becoming caught between the belt and the
pulley.” 30 C.F.R. § 75.1722(b). In context, the guarding must be sufficient to
protect persons from injury by “exposed moving machine parts.” 30 C.F.R. §
75.1722(a).

In
guidance for what the standard requires, MSHA has stated that guarding must
“[b]e of such construction that openings in the guard are too small to admit a
person’s hand,” and “[b]e of sufficient size to enclose the moving parts and
exclude the possibility of any part of a person’s body from contacting the
moving parts while such equipment is in motion.” V MSHA, U.S. Dep’t of Labor, Program
Policy Manual , Subpart R, at 155–56 (2015). In addressing the mirror
regulation for above-ground coal mines, the Commission emphasized that the
standard “imports the concepts of reasonable possibility of contact and injury,
including contact stemming from inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness. In related contexts, [the
Commission] ha[s] emphasized that the constructions of mandatory safety
standards involving miners’ behavior cannot ignore the vagaries of human
conduct.” Thompson Bros. Coal Co. , 6 FMSHRC 2094, 2097 (Sep. 1984)
(citing Great Western Elec. , 5 FMSHRC 840, 842 (May 1983); Lone Star
Indus. , 3 FMSHRC 2526, 2531 (Nov. 1981)). Accordingly, the test is whether
there is a reasonable possibility that miners could come in contact with the
moving machinery, which includes a “minimal” possibility of contact. Id.

1.
        Violation – Citation No. 9041085

For
Citation No. 9041085, the Secretary asserts that KenAmerican violated 30 C.F.R.
§ 75.1722(b) because miners could reach through the openings in the hog
wire guarding over the coal conveyor belt and make contact with the tail
roller. (Sec’y Br. at 14–17.) In contrast, Respondent contends that the cited
guarding was sufficient to prevent miners from contacting the tail roller. (Resp’t
Br. at 44–45.) In support, Respondent points to the testimony of KenAmerican’s
Shannon Baker, who measured the distance from the side of the metal panel
guarding surrounding the belt’s perimeter to the nearest moving part of the
belt. ( Id. )

Baker
found that the lateral distance from the metal panel guarding around the sides to
the nearest moving part of the belt was three feet and nine inches. (Tr.
198:16–199:6.) Baker noted that the distance from the end of the metal panel
guarding to the tail roller was greater than three feet and nine inches. (Tr.
198:16–199:6.) DeLeon, however, estimated that the distance from the metal
panel guarding to the tail roller was less than an arm’s length or
approximately 12 to 18 inches. (Tr. 179:13–180:13.) DeLeon admitted that he did
not measure the distance with a tape measure. (Tr. 188:8–13.) DeLeon also acknowledged
that a miner would not be able to get his fingers through the metal panel
guarding surrounding the perimeter of the belt tail. (Tr. 173:17–22.) He noted,
however, that the hog wire on top was only a few inches above the tail roller,
which Baker neither measured nor disputed. (Tr. 179:13–20, 199:14–200:3,
201:23–2.)

DeLeon
explained that he was concerned a miner working in the area could slip and fall
over the side metal panel guarding and reach through the hog wire openings on
top to the belt tail roller because the belt and side metal panel guarding only
rose to waist height. (Tr. 174:4–6, 176:20–177:1, 178:23–179:9, 199:20–200:3.) Because
the mine floor around the tail roller was muddy and “soupy,” DeLeon believed a
miner working there could slip over the side guarding and on top of the hog
wire. (Tr. 178:23–179:20.) Not only did DeLeon fear a miner could fall onto the
hog wire, he also observed a grease hose sticking out of the guarding that he
believed could easily slip through. (Tr. 183:3–184:3.) DeLeon was concerned
that a miner would reach into the hog wire to pull out the grease hose, which
was used at least once a day. ( Id .) DeLeon also observed a hawkeye used
to test the belt’s slip sequence, which miners would also occasionally access near
the cited area. (Tr. 183:18–23, 184:4–9.)

Given
this evidence, I credit DeLeon and find that a miner could reach through the
hog wire and contact the tail roller even if the perimeter guarding were three
feet and nine inches from the belt. Given the mine floor conditions and low
height of the guarding, I determine that it was reasonably possible that a
miner working in the area could fall onto the guarding, reach over, and slip
his hand or arm through the hog wire, contacting the moving tail roller only a
few inches below. Accordingly, I conclude that the Secretary has shown a
violation of section 75.1722(b).

2.
        Gravity Determination and S&S

KenAmerican’s
violation of section 75.1722(b) establishes the first element of the Mathies
test for an S&S violation. For the second element, section 75.1722(b)
requires guarding be sufficient in order to “prevent a person from reaching
behind the guard and becoming caught between the belt and pulley.” 30 C.F.R. §
75.1722(b). Inspector DeLeon testified that the guarding he observed could
allow a miner to contact the pinch point between the tail roller and the mine
conveyor belt. [11]
I credit DeLeon’s testimony and find that the insufficient guarding contributed
to the hazard against which the standard is directed.

The
third and fourth elements of Mathies ask whether the safety hazard is
reasonably likely to contribute to a reasonably serious injury. Several miners
normally worked in the area performing maintenance on the belt and cleaning the
exchange point. (Tr. 193:12–20.) DeLeon also observed a grease hose sticking
out of the guarding, which was used by a miner at least once a day. (Tr.
183:3–184:3.) Inspector DeLeon averred that a miner exposed to the rotating
tail roller would be mangled, causing permanently disabling injuries. (Tr. 184:10–22,
187:7–17.)  Given this evidence, I find that a miner contacting the tail roller
would be reasonably likely to suffer serious injuries, including loss of limbs.
Accordingly, the Secretary has satisfied the third and fourth elements
necessary to show a violation is S&S.

The
Secretary has satisfied all four elements of the Mathies test. I
therefore conclude that the violation was S&S.

3.         Negligence
Determination

The
Secretary asserts that the violation resulted from KenAmerican’s moderate
negligence. (Sec’y Br. at 15–17.) Respondent, in contrast, contends that there
are considerable mitigating circumstances and the operator’s negligence was
low. (Resp’t Br. at 46.)

DeLeon
testified that the hog wire guarding on the tail roller was nearly new, having
been installed within the last two shifts because it appeared shiny and was not
covered in rock dust. (Tr. 193:2–11; Ex. R–5 at 16.) Nevertheless, DeLeon believed
the operator should have discovered the insufficient guarding in that period
because belt examiners should have checked the area for hazards. (Tr.
194:7–10.) Abating the violation was simple, as KenAmerican needed only to
overlap a staggered, second layer of hog wire on top of the area. (Tr.
178:3–10.)

Given
th e evidence as a whole, I find that
KenAmerican should have known that the guarding in place was insufficient. I
conclude that Respondent displayed moderate negligence in failing to install proper
guarding, but again on the lower end of the spectrum for moderate negligence.

C.
  Penalty

Under section 110(i) of the Mine Act, I
must consider six criteria in assessing a civil penalty, including the
operator’s history of previous violations; the appropriateness of the penalty
relative to the size of the operator’s business; the operator’s negligence; the
penalty’s effect on the operator’s ability to continue in business; the
violation’s gravity; and the demonstrated good faith of the operator in attempting
to achieve rapid compliance after notification of a violation. 30 U.S.C. §
820(i).

The
Secretary proposed a penalty of $15,570.00 for Citation No. 8513258, $48,472.00
for Citation No. 9041084, and $1,795.00 for Citation No. 9041085. The parties
have stipulated that the proposed penalties would not affect Respondent’s
ability to remain in business. (Joint Ex. 1.) KenAmerican operates a large
business with Paradise #9 producing over two million tons of coal annually. (Ex.
R–6.) The parties further stipulated that KenAmerican abated the violations in
good faith. (Joint Ex. 1.) In regard to the operator’s general history of
previous violations, KenAmerican had a total of 727 violations from March 3,
2013, to June 10, 2014. (Ex. GX–6 at 17.)

For
Citation No. 8513258, I have affirmed the violation and gravity determination,
but found the negligence level to be on the lower end of moderate. Respondent
does not have an extensive history of violations of section 75.380 in the two
years prior to this violation. (Ex. GX–6, R–15.) Considering all the facts and
circumstances set forth above, I hereby assess a civil penalty of $11,000.00.

For
Citation No. 9041084, I have affirmed the violation and the gravity and
negligence determinations. As noted above, Respondent does not have an
extensive history of violations of this standard. (Ex. GX–6, R–15.) In addition
to the operator’s limited history of violations of this standard, I also
consider Respondent’s reasonable explanation for placing the lifeline to the side
to prevent it from intersecting with the power center, which places the level
of negligence on the lower end of high. Reviewing the evidence as a whole, I determine
that a penalty of $38,750.00 is appropriate for this violation.

For
Citation No. 9041085, I have affirmed the violation and gravity determination,
but again found the negligence level to be on the lower end of moderate. Respondent
has been cited twice for section 75.1722(b) in the two years prior to this
violation, which I do not consider to be extensive. Considering all of the
facts and circumstances set forth above, I hereby assess a civil penalty of
$1,200.00.

VI.   ORDER

In
light of the foregoing, it is hereby ORDERED that Citation Nos. 8513258,
9041084, and 9041085 are AFFIRMED .

WHEREFORE , Respondent is ORDERED
to pay a penalty of $50,950.00 within 40 days of this Decision. [12]

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Michele
A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E.
Chavez Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Jason
W. Hardin, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake
City, UT 84111

/lct

[1] Section
75.380(d)(7)(iv) provides, in relevant part:

Each escapeway shall be –

. . .

(7) Provided with a continuous, durable
directional lifeline or equivalent device that shall be –

. . .

(iv) Located in such a manner for miners
to use effectively to escape

30
C.F.R. § 75.380(d).

[2] Section 75.1722
provides, in relevant part:

. . .

(b) Guards at conveyor-drive,
conveyor-head, and conveyor-tail pulleys shall extend a distance sufficient to
prevent a person from reaching behind the guard and becoming caught between the
belt and the pulley.

30
C.F.R. § 75.1722.

[3] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[4] In this
decision, the hearing transcript, the joint exhibit, the Secretary’s exhibits,
and KenAmerican’s exhibits are abbreviated as “Tr.,” “Joint Ex. #,” “Ex.
GX–#,”and “Ex. R–#,” respectively.

[5] In addition to
regular examinations, MSHA conducts spot examinations of mines that liberate
large amounts of methane gas. (Tr. 32:9–20.) KenAmerican’s Paradise #9
liberated more than 500,000 cubic feet of methane per day and was thus subject to
MSHA’s ten-day spot inspection. (Tr. 32:9–33:18.)

[6] Inspector
DeLeon initially believed the conditions he found were near an underpass in the
primary escapeway. (Tr. 56:25–57:4.) DeLeon did not specify the location of the
underpass in his notes or in the citation, and at hearing he could not identify
the location of the cited conditions on a mine map. (Tr. 59:2–60:12.) On
cross examination, DeLeon acknowledged that he likely was in the secondary
escapeway. (Tr. 58:21–59:1.)

[7] Respondent
points to the Commission’s holding in Cumberland Coal , 33 FMSHRC 2357,
and the Administrative Law Judge’s holding in Twentymile Coal Co. ,
32 FMSHRC 628 (June 2010) (ALJ), as support for KenAmerican’s position. (Resp’t
Br. at 11–12.) Although those cases dealt with the same standard, the violations
were factually distinct. Moreover, the violation was affirmed in both
instances. Respondent’s position lacks a logical foundation.

[8] Respondent also
asserts that the citation should be vacated because KenAmerican lacked fair
notice that commingling the lifeline with other cables would result in a
violation. (Resp’t Br. at 23–24.) KenAmerican received actual notice of the
Secretary’s interpretation when Inspector DeLeon warned the mine in April. (Tr.
18:20–19:24, 30:14–31:10.) “Due process is satisfied when an agency gives
actual notice of its interpretation prior to enforcement.” Tilden Mining
Co., LC , 36 FMSHRC 1965, 1970–71 (Aug. 2014) (citations omitted). Regardless,
in Energy West Mining Company , the Commission held that a mine operator
lacking actual notice still had fair notice of a violation because a reasonably
prudent miner familiar with the mining industry would have understood the
requirements of the standard. 17 FMSHRC 1313, 1317–18 (Aug. 1995). Here, only a
relatively small length of lifeline was commingled with other cables. The fact
that KenAmerican had separated the lifelines from other cables for the other
areas Inspector DeLeon inspected strongly suggests a reasonably prudent miner would
have understood that the lifeline should not be commingled.

[9] Given the
testimony, Inspector DeLeon could have determined the conditions affected even
more miners ( See Tr. 38:24–39:6, 40:6–20), although a higher number of
miners affected would not have impacted the Secretary’s proposed penalty
calculation. 30 C.F.R. § 100.3(e).

[10]
I
recognize that based on DeLeon’s production range, the operator may have advanced
anywhere from four to twelve crosscuts after the first lifeline violation’s
issuance. Thus, the operator may have installed a portion of the cited lifeline
before DeLeon issued the prior lifeline citation. Regardless, KenAmerican had
received a warning about the lifeline prior to Citation No. 8513258’s issuance,
and a preshift examination should have revealed and prompted the operator to
fix any defective portion of the lifeline. I also note that the portion of
lifeline cited in this instance was much longer than in the previous citation
and came directly off the working section, making the violation much more
obvious.

[11] Respondent
asserts that the miners working in the area were trained to avoid hazards and
therefore were not reasonably likely to fall into the moving tail roller. (Resp’t
Br. at 45–46.) Mine operators, however, cannot rely on miners’ training to
defeat a finding of S&S. See Cumberland Coal , 33 FMSHRC
at 2369 (citations omitted).

[12]
Payment should be sent to: U.S. Department of Labor, MSHA, Payment
Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket
and A.C. numbers.