Secretary of Labor v. River View Coal, LLC

Plain-English summary

An MSHA inspector at River View Mine in Kentucky checked a roof bolting machine whose on-shift respirable dust examination had already been certified complete on the board underground. Opening the dust collection box, he found a damaged filter and rock drill dust on the clean side of both filters, meaning the dust control system was not working. The crew had only tested vacuum suction, not looked inside the box, and the section foreman had certified the exam based on a radio report that everything was good. Judge David P. Simonton affirmed the violation of 30 C.F.R. § 75.362(a)(2) and kept the significant and substantial designation, because four miners worked downwind and rock drill dust carries silica that causes silicosis, a permanently disabling disease. He also kept the high negligence finding: the foreman knew every step had to be done before certifying, and told the inspector the exam was complete. But he struck the unwarrantable failure designation, finding the foreman made a serious mistake rather than showing aggravated indifference, given the trained crew, the timely abatement, and no prior citations under this standard. The citation was modified from a 104(d)(1) to a 104(a) violation and the penalty reduced from $5,961 to $4,500.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.362(a)(2)
• Outcome: Violation and S&S affirmed, high negligence affirmed, unwarrantable failure vacated, citation modified from 104(d)(1) to 104(a), penalty reduced from $5,961 to $4,500.
• Key point: Do not certify an examination as complete based on a radio report; certifying before the dust box is actually opened is high negligence, though a genuine mistake by a foreman with a trained crew is not aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

July 22, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

RIVER VIEW COAL, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2014-782

A.C. No. 15-19374-358607  

Mine: River View Mine

DECISION

Appearances:               Hanah Harris-Yager, U.S. Department of
Labor, Office of the Solicitor

1244
Speer Boulevard, Suite 216, Denver, Colorado 80204

Gary
D. McCollum

1146
Monarch Street, 3rd Floor, Lexington, Kentucky 40513

Before:            Judge Simonton

I.      
INTRODUCTION

This case is
before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against
River View Coal, LLC, at the River View Mine, pursuant to the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §801. This case involves
one citation, number 8506100, issued on October 23, 2013 as a 104(d)(1)
violation for an assessed penalty of $5,961.00. The parties presented
testimony and documentary evidence at a hearing held in Henderson, Kentucky on
May 3, 2016.

MSHA Inspector Matthew
Stone testified for the Secretary. River View Mine Unit 7 Foreman Michael
Duckworth and Safety Department Manager Gerome Thomas testified for River View
Coal (Respondent). After fully considering the testimony and evidence presented
at hearing, I find that the Secretary met his burden in establishing a
violation of the cited standard. All elements of the citation with the
exception of the unwarrantable failure aspect are upheld. After considering the
necessary criteria for penalty assessments, I find that a penalty of $4,500.00
is appropriate.

II.    FINDINGS
OF FACT AND SUMMARY OF TESTIMONY

Inspector Stone alleged that there
was an inadequate on-shift examination for the 8157 roof bolting machine in
violation of 30 CFR §75.362(a)(2), leading him to issue citation number 8506100.
The gravity was marked as reasonably likely, permanently disabling, and
significant and substantial with four miners affected. Ex A. Stone found
Respondent to be highly negligent and designated the violation as an unwarrantable
failure on the part of the Respondent’s management. Id. The §75.362(a)(2)
standard states “persons designated by the operator shall conduct an
examination to ensure compliance with the respirable dust control parameters
specified in the mine ventilation plan.” Tr. 17, 39-40.

On October 23, 2013 Inspector Stone
traveled to the mine to collect respirable dust samples on the Number 7 Unit. Tr.
26, 36. Section Foreman Michael Duckworth entered the mine around 6:15 that
morning, while Inspector Stone waited outside for the Unit to get started. Tr.
138-139. Prior to Inspector Stone entering the mine, the scoop operator radioed
Duckworth informing him that the on-shift dust parameter exam for the 8157 roof
bolter was good. Tr. 154. Foreman Duckworth was given the suction rating and
told everything else was good. Id. Three roof bolting machines were
located in the unit at the time, however only two were typically used. Tr.
152-153. The 8157 roof bolter was an extra machine and did not need to be run
that day. Tr. 160. Standard §75.363(g) states “The certified person directing
the on-shift examination to ensure compliance in respirable dust control
parameters specified in the mine ventilation plan shall certify, by initials,
date and time that the examination was made.” Tr. 38. A certified machine
should be ready for operation even if currently idle. Tr. 120-121.

Upon entering the mine, Inspector
Stone travelled underground and arrived at the power center where the DTI board
was located. Tr. 37. The DTI board is where examinations are posted with the
day/time and initials to signify the exam is complete. Id.. Inspector
Stone observed the date and initials on the DTI board for the 8157 on-shift
examination, indicating it had been completed. Tr. 37-39, 49, 60, 64, 114-115. During
his testimony at hearing, Section Foreman Duckworth did not recall certifying
that the examination was completed on the DTI board. Tr 155. However, Inspector
Stone recalled that during his inspection Duckworth acknowledged he had signed
the DTI board indicating the examination of the 8157 roof bolter was complete. Tr.

65. Stone also noted he was told by Duckworth and the roof bolters that they
    had completed an examination of the 8157 roof bolting machine. Tr. 115. Inspector
    Stone approached and conducted his inspection of the machine. Tr. 40. The roof
    bolter operator informed Stone that he had checked the vacuum and the machine
    had good suction. Tr. 49-50. Stone noted in his testimony that it is necessary
    to check both the suction and the dust filter because there may still be an
    issue with the dust box even with adequate vacuum pressure. Tr. 41. Inspector
    Stone noticed dust accumulation on the mufflers coming from the dust collection
    system. Tr. 45-46. After opening the collection box, Stone found a damaged
    filter and rock drill dust accumulation on the clean side of both filters. Tr.
    45-47. It is not possible for dust to have gone backwards through the muffler
    because a great amount of pressure would be required for dust to enter the wrong
    end of the machine. Tr. 117. There were small dents to the outer ring of the
    filter, which could have been caused by banging the filter, creating damage and
    allowing dust to bypass. Tr. 195, 47-48. Inspector Stone concluded from the
    dust build up that the condition of the dust box existed for more than one
    shift. Tr. 71-72. At the time, there were four miners working down wind of the
    machine. Ex. A, Tr. 70.

Inspector Stone then issued the
8506100 citation. Tr. 56-57. He concluded that the Respondent had violated the
standard because they did not adequately examine the entire system as specified
in the ventilation plan. Tr. 63. The inspection of the collection box only
included the vacuum suction test, not a visual check inside the box and filter.
Tr. 59-60. On the day of the inspection no replacement dust filters were located
at Unit 7, however additional filters were available from other units at the
mine. Tr. 182-183. If an additional filter were requested, Foreman Duckworth
would have been informed. Tr. 182-183. Duckworth acknowledged that all steps
for the on-shift examination need to be conducted prior to the examination
being certified. Tr. 171. Inspector Stone noted that if a full examination had
been conducted, the issue would have been found and resolved. Tr. 124.

Inspector Stone testified that on-shift
examinations are important because they eliminate hazards and exposure to
respirable dust for miners. Tr. 64. Drill dust can cause silica to enter the
surrounding air and lead to a permanently disabling disease, silicosis. Tr. 69,

72. Silicosis is caused when silica particles, similar to glass or sand, enter
    the lungs and cut the tissue. Tr. 72-73, 207. Persons affected by silicosis will
    never get better, even if the individual is removed from the environment. Tr.
    72-73, 207.

Section Foreman Duckworth testified
that since the 8157 roof bolter was the extra machine at the unit, it was not
in operation at the time of the inspection. Tr. 79. The 8157 roof bolter was
located in an area that would not have allowed for dumping of the dust box because
the air for that day flowed through the section and could have exposed workers
on the left side to harmful dust. Tr. 177, 206-207. However, according to Inspector
Stone the box could have been opened with minimal dust release to check the
filter without dumping the dust inside. Tr. 60-62, 116. Additionally, there
were acceptable areas the machine could have been moved to conduct the full
inspection. Tr. 61-63.

The roof bolter standard in the Respondent’s
mine standard book number 8 states “dust boxes should be cleaned at the
beginning of each shift and at mid-shift. Boxes should only be emptied as close
to the face as possible so they can be loaded out in the loading cycle wall,
wearing a dust mask.” Tr. 146. Foreman Duckworth further testified that it was
standard procedure at the River View Mine for the roof bolter operators to wait
until they reached the face to open the box because each time the box is opened
there is a chance for dust to enter the air. Tr. 175. The roof bolters
operating the 8157 roof bolter were proficient in MSHA training and the River
View Mine’s expectations training. Tr. 148-150. The Respondent requires the filters
in the box to be changed on Mondays, Wednesdays and Fridays or as needed. Tr.

163. When roof bolters are in use, boxes will typically be dumped three or four
     times per shift, and the roof bolter operators conduct a visual inspection of
     the filter during each dump. Tr. 175-176, 214. There were no restrictions
     preventing the roof bolter operators from conducting another exam once they
     pulled up to the face. Tr. 166, 174, 210.

Prior to the inspection in
question, Respondent had not been cited under this particular standard in the
15 months prior to the citation at issue. Ex A, Tr. 158. Between April 23, 2013
and October 23, 2013 MSHA and mine operator respirable dust samples were taken
from the River View Mine. Tr. 159-160. Of the total 525 dust samples, two
exceeded the 2-milligram standard for respirable dust. Tr. 159-160. All of the
samples taken on the working sections of the mine were compliant with the
standard. Tr. 195-196.  

Respondent contested the citation,
claiming their inspection of the dust box was not inadequate.

III. PARTY
ARGUMENTS

The Secretary argues that in
order for the Respondent to comply with Standard 30 C.F.R Section 75.362(a)(2),
an on-shift examination must be conducted to determine whether the dust
collection system is in operational condition. Sec’y Br., 14. Foreman Duckworth
certified the on-shift exam for the roof bolter was complete. Sec’y Br. 18, Tr.
37-39, 49, 60, 64, 114-115. However, since dust was found on the clean side of
the filter, the Respondent did not check the interior of the box, and therefore
did not complete the on-shift examination. Sec’y Br., 16. The Secretary states
the Respondent accepted the dust collection system was not maintained in
operative condition and the condition was a significant and substantial
violation of the standard. Tr. 16. The Secretary argues the violation should
remain designated as high negligence since there were no mitigating factors. Sec’y
Br., 25. Although the machine was located in an area not adequate for dumping,
the box could have been opened to check the filter with minimal dust release. Sec’y
Br., 28-29, Tr. 177, 60-62. In addition, there were other acceptable areas the
machine could have been moved to conduct a full examination. Sec’y Br. 28-29, Tr.
61-63. The Secretary argues the violation was an unwarrantable failure as the condition
was visibly obvious and the Respondent was aware of the hazard, it was common
practice at the mine, and posed a high degree of danger. Sec’y Br., 25-26, Tr.
15-16. The Secretary contends that since Foreman Duckworth was aware that the roof
bolter operators usually wait to reach the face before dumping the drill dust
box, he also knew or should have known the dust filter had not been examined as
part of the on-shift examination when he certified it complete. Sec’y Br., 26, Tr.
15-16.

The Respondent argues the citation should be
vacated because it was premature and speculative. Resp. Br., 15, 20. The
Respondent asserts the No. 8157 roof bolting machine was not engaged in
production at the time of the inspection and according to the plain language of
30 C.F.R. Section 75.362(a)(2) “…The examination shall be made before
production begins on a section. Deficiencies in dust controls shall be
corrected before production begins or resumes.” Resp. Br., 16, 19. The
Respondent argues they still had time to conduct the examination and therefore
no violation occurred. Resp. Br., 19. In the alternative, the Respondent argues
the negligence level should be reduced from high negligence to a lower level
given the presence of mitigating factors. Resp. Br., 26, Tr. 24. The Respondent
contends that the Secretary failed to demonstrate an unwarrantable failure on
the part of the River View Mine. Resp. Br., 20-21. The Respondent argues that
the situation did not result from aggravated conduct but rather demonstrated
poor communication and a difference in opinion on rock drill dust safety
practices. Resp. Br., 21.

IV. ANALYSIS

A.    Citation
No. 8506100

Inspector Stone alleged in part
with Citation No. 8506100 that:

An inadequate examination was
conducted on the CO#8157 roof bolter operating on the #7 unit (MMU 011-0/012-0)
to assure the compliance of the respirable dust control parameters specified in
the approved mine ventilation plan. The operator had conducted the examination
prior to the MSHA inspection and no deficiencies were found by the operator. An
MSHA inspection was conducted on the CO#8157 roof bolter and the following
deficiencies were found. The opposite operator side dust filter was damaged
from being beat out, accumulations of rock drill dust were found on the clean
side of both the operator side and opposite operator side dust filters and dust
has accumulated on the machine frame from dust blowing from the exhaust
mufflers. These deficiencies were obvious to the most casual observer and
should have been found by a person who is trained to conduct these exams.

Inspector Stone went on to state that:

The operator has engaged in
aggravated conduct constituting more than ordinary negligence. This violation
is an unwarrantable failure to comply with a mandatory standard.

Inspector Stone found that the
condition of the filter violated 30 C.F.R. §75.362(a)(2) which requires:

A mine operator to conduct an
examination of the mine’s respirable dust control parameters specified in the
mine ventilation plan and correct any deficiencies in the dust controls before
production begins or resumes.

The Secretary may demonstrate a
violation of §75.362(a)(2) by proving the operator either did not examine a
dust suppression measure required in the ventilation plan or did not correct a
problem with a dust suppression measure. GMS Mine Repair, 37 FMSHRC 2841
(Dec. 2015) (ALJ).

Inspector Stone determined that the
violation was reasonably likely to result in injury, that injury was likely to
be serious, and the violation was significant and substantial (S&S) and
affected four people. Ex. A. Inspector Stone alleged the violation was the result
of high negligence with no mitigating factors and an unwarrantable failure on
the part of the respondent’s management. Id..

There is no dispute among the
parties that there was dust located on the clean side of the filter. Tr. 45-47,

157. While examining the machine, the roof bolter operator informed Inspector
     Stone that he had checked the vacuum and the machine had good suction. Tr.
     49-50. Inspector Stone observed the date and initials on the DTI board
     indicating the exam was completed. Tr. 37-39, 49, 60, 64, 114-115. Section
     Foreman Duckworth acknowledged in his testimony that all steps for the on-shift
     examination need to be conducted prior to the examination being certified. Tr.
158. Finally, Inspector Stone testified that if a full examination had been
     conducted the issue would have been found and resolved. Tr. 124-125.

Based on the testimony and entered
exhibits, I find that the Secretary presented sufficient evidence to show that
a violation of 30 CFR §75.362(a)(2) occurred at Unit 7 of the River View Mine. I
affirm Citation No. 8506100 but, as explained below, do not find the violation
to be an unwarrantable failure on the part of Respondent.

B.     Significant
and Substantial

A
violation is significant and substantial (S&S), “if based upon the
particular facts surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).

In
order to uphold a citation as S&S, the Commission has held that the
Secretary of Labor must prove: 1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

The
Secretary must prove there was a reasonable likelihood that the hazard
contributed to by the violation will cause an injury, not a reasonable
likelihood that the violation, itself, will cause injury. West Ridge
Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser
Eng'g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).

I
have already held that a violation of 30 CFR §75.362(a)(2) occurred at
Unit 7 of the River View Mine. Secondly, since dents were found in the filter
and rock drill dust on the clean side of the filter, the violation contributed
to the discrete safety hazard of silica particles in the air. Tr. 45-48. If the
machine was in use it is reasonably likely that silica particles would have
entered the air contributing to an injury. Tr. 69, 72. Silica particles in the
air can cause silicosis, a permanently disabling condition. Tr. 69, 72.

Because the examination of
the roof bolting machine was certified as complete, it was available and ready
to be placed into production with the defective filter. And at no time prior to
his decision to issue a citation was Inspector Stone notified by the roof bolt
operators or Foreman Duckworth that further inspection was necessary or going
to take place prior to the machine going into production. To the contrary he
was also told by Duckworth and the roof bolters that they had completed an
examination of the 8157 roof bolting machine. Tr. 115. This led Stone to
reasonably conclude that the machine was in fact ready and available to be
placed into production in the condition he found it during his inspection. It is
undisputed that the condition of the filter was likely to contribute to a
permanently disabling injury, and in the event a violation is found that the
condition of the dust filter was a significant and substantial violation of the
standards. Tr. 16. It is also undisputed that four people would have been
affected had silica particles entered the air since there were four miners
working in close proximity to the roof bolting machine at the time of the violation.
Ex. A, Tr. 70. Therefore, based on the evidence presented by the Secretary, I
find that the Secretary has satisfied all four elements of the Mathies S&S
test and affirm citation No. 8506100 as S&S.

C.    Negligence

The Mine Act defines reckless
disregard as conduct which exhibits the absence of the slightest degree of
care, high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or
constructive knowledge of the violative condition with mitigating
circumstances; and low negligence as actual or constructive knowledge of the
violative condition with considerable mitigating circumstances. 30 CFR § 100.3:
Table X.

Inspector Stone, without
equivocation, credibly testified that the DTI board reflected that the
examination certification was complete. Tr. 37-39, 49, 60, 64, 114-115. Even
though the 8157 roof bolter was not in operation at the time of inspection, a
certified machine should be ready for operation even if currently idle. Tr. 79,
120-121. Foreman Duckworth testified he knew all steps for the on-shift
examination needed to be conducted prior to the examination being certified. Tr.

171. He was aware that the 8157 roof bolter was not at the face when his roof
     bolters communicated the suction rating and relayed to him through the scoop
     operator that everything else was good. Tr. 169. Duckworth also testified the
     standard procedure is for the roof bolters to wait until the machine is at the
     face to inspect the dust boxes and dump them if needed. Tr. 168-169, 175. Even
     though the box could have been opened to check the filter, the machine was not located
     in an area suitable for dumping. Tr. 177, 60-62. Duckworth also clarified that
     the boxes do need to be checked wherever the machine is located. Tr. 180. Further,
     Inspector Stone noted the roof bolter operators had the option to move the
     machine to a different area or to the face before certifying a complete exam. Tr.
     61-63.

Foreman
Duckworth testified that the roof bolters operating the machine were proficient
in MSHA training as well as the River View Mine’s expectations training. Tr.
148-150. It was standard procedure at River View for the roof bolter operators
to wait until they reached the face to open the dust boxes because there is a
chance for dust to enter the air each time a box is opened. Tr. 175. When roof
bolters are in use, boxes will typically be dumped three or four times per
shift, and the roof bolter operators conduct a visual inspection of the filter
during each dump. Tr. 175-176, 214. There were no restrictions preventing the
roof bolter operators from conducting another exam once they pulled up to the
face. Tr. 166, 174, 210. However, the operators should have reported their
intent to Foreman Duckworth rather than communicate that everything with the
machine was good. It was this report that led Duckworth to certify on the DTI
board that the inspection was complete. I find Foreman Duckworth certified the
examination as complete knowing that the dust boxes were not examined by the
roof bolters. The examination should never have been certified until such time
as the dust boxes were examined. While it is true Respondent, under the
standard, had until the time the machine went into production to conduct
further examinations and correct the deficiencies in the dust filter there is
no indication that was going to happen. In fact Inspector Stone was told by
both Duckworth and the roof bolters that the inspection of the machine was
complete. Under these circumstances I find the high negligence level designated
by Inspector Stone to be appropriate.

D.    Unwarrantable
Failure

Section 104(d)(1) of the
Mine Act states:

If, upon any
inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health
standard,….and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety
standards, he shall include such findings in any citation given to the operator
under this Act.

Unwarrantable
failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “willful
intent”, “indifference,” or the “serious lack of reasonable care.” Id.
at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94.
(February 1991).

The Commission
considers the following factors when determining the validity of 104(d)(1) and
104(d)(2) orders: (1) the length of time that the violation has existed and the
extent of the violative condition, (2) whether the operator has been placed on
notice that greater efforts were necessary for compliance, (3) the operator’s
efforts in abating the violative condition, (4) whether the violation was
obvious or posed a high degree of danger and (5) the operator’s knowledge of
the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340,
353 (Mar. 2000). All of the relevant facts and circumstances of each case must
be examined to determine if an actor’s conduct is aggravated, or whether
mitigating circumstances exist. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec.
2009).

For Citation No. 8506100, I find that the
Secretary has not produced sufficient evidence to satisfy the five factor test
considered by the Commission in evaluating unwarrantable failure designations. Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Therefore citation 8506100 shall
be MODIFIED from a 104(d)(1) to a 104(a) violation.

1.      Extent
and Duration of the Violation

Inspector Stone observed the dust
accumulation on the mufflers was noticeable to a casual observer. Ex. A. Inspector
Stone concluded from the dust build up that the condition of the dust box
existed for more than one shift. Tr. 71-72. However, Foreman Duckworth
testified that he observed rock dust on the machine in question and that due to
its location at the last open crosscut it would have been rock dusted over
calling into question the length of time the condition of the dust box Inspector
Stone observed existed. Tr. 156. While it is undisputed there was dust on the
clean side of the filter and that the filter had been damaged there is
insufficient evidence to conclude the length of time that the filter had been
damaged and operated in that condition.

2.      Notice
to the Operator

The “notice” factor of
unwarrantable failure pertains to MSHA citations, directives, and communications
prior to the violation at issue that notify the operator of hazardous
conditions or practices. Consolidation Coal, 22 FMSHRC 2353; IO Coal.
Co., 31 FMSHRC 1353-55.

The River View Mine has not been
cited for a violation of 30 C.F.R. § 75.362(a)(2) in two years as of 2015. Ex

1. Furthermore, previous MSHA and mine operator respirable dust samples taken
   from the mine showed only 2 samples exceeding the standard for respirable dust.
   Tr. 159-160. Neither of the samples were taken from working sections of the
   mine. Tr. 195-196.

3.      Abatement
Efforts

Citation 8506100 notes that
Inspector Stone allowed Respondent “time to meet with all roof bolter operators
and section foreman to train these persons to conduct the examination to assure
compliance with respirable dust control parameters and to provide proof by
signature that these individuals received this training.” Ex A. No evidence was
presented at hearing to dispute that Respondent abated this citation in
anything other than an effective and timely fashion.

4.      Obviousness
of the Hazard and Degree of Danger

Inspector Stone noticed dust
accumulation on the mufflers coming from the dust collection system and rock
drill dust on the clean side of both filters. Tr. 45-47. Inspector Stone
alleged the deficiencies were obvious to a casual observer and should have been
found by a person who is trained to conduct these exams. Ex. A. However, as
noted above, Section Foreman Duckworth testified that he observed rock dust on
the machine in question and that due to its location at the last open crosscut
it would have been rock dusted over calling into question whether what
Inspector Stone observed on the outside of the machine was rock dust or hazardous
drill dust. Tr. 156.

At the time of the citation there were four
miners working downwind from the machine. Ex. A, Tr. 70. Rock drill dust is
dangerous because it contains silica, which can lead to a permanently disabling
disease called silicosis. Tr. 69, 72. Silicosis is caused when airborne silica
particles, similar to glass or sand, enter the lungs and cut the tissue. Tr.
72-73, 207. Persons affected by silicosis will never get better, even if the
individual is removed from the environment. Tr. 72-73, 207.

5.      Operator’s
Knowledge of the Violation

During Foreman Duckworth’s
testimony he acknowledged that all steps of the on-shift examination needed to
be completed prior to the examination being certified. Tr. 171. Duckworth did
not complete the examination himself, rather a scoop operator radioed him
informing him of the suction rating and that everything else was good. Tr. 154.
It was standard procedure at the River View Mine for the roof bolter operators
to wait until they reached the face to open the dust collection boxes. Tr. 175.
In failing to ensure that the filter was checked prior to certifying the
examination of the 8157 roof bolter complete I found Foreman Duckworth acted
with high negligence as noted above.

However, I am not convinced
Duckworth acted with reckless disregard or willful aggravated intent to justify
an unwarrantable failure designation. He knew the roof bolter operators were
certified in MSHA training and the River View Mine’s expectations training. Tr.
148-150. He also knew that the dust boxes would be checked and dumped once the
roof bolter was trammed to the face. His mistake here was knowingly certifying
that the examination was complete before it was actually complete. A highly
negligent failure on his part but not one indicative of aggravated conduct. I
find that had Foreman Duckworth been aware of the condition of the dust box and
filter he would have promptly corrected the problem or instructed the operators
to do so. Factoring in that no prior violations of this standard had occurred
and Respondent’s timely abatement I conclude that the faulty certification of
an inadequate examination of the dust collection box was not an unwarrantable
failure on the part of the Respondent.

V.   
PENALTY

It is
well established that Commission administrative law judges have the authority
to assess civil penalties de novo for violations of the Mine Act. Sellersburg
Stone Company, 5 FMSHRC 287, 291 (March 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider the six
statutory penalty criteria:

(1) the operator’s
history of previous violations, (2) the appropriateness of such penalty to the
size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator’s ability to continue in business, (5)
the gravity of the violation, and (6) the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

30 U.S.C. 820(I).  

Respondent had no history of violations
for this particular standard in two years as of 2015. Ex 1. In 2013, 525 MSHA
and mine operator respirable dust samples were taken from the River View Mine. Tr.
159-160. Two of the samples exceeded the respirable dust standard, however all
samples from working sections of the mine were satisfactory. Tr. 159-160,
195-196. The Respondent had not been placed on notice that greater efforts were
needed in complying with the standard. Resp. Br., 23. The Respondent is a large
mine, employing approximately 600 miners during the time of the violation. Resp.
Br., 2. The payment of a reasonable civil penalty will not affect the
Respondents ability to continue business. Resp. Prehearing Report, 4. As I have
stated above the Respondent was highly negligent because the examination of the
8157 roof bolter was not complete at the time Section Foreman Duckworth
certified the examination as complete. It is undisputed that the condition of
the dust box filter was likely to contribute to a permanently disabling injury,
and that the condition of the dust filter was a significant and substantial
violation of the standards. It is also undisputed that four people would have
been affected had silica particles entered the air since there were four miners
working in close proximity to the roof bolting machine at the time of the
violation. Silicosis is caused from silica particles entering the air and is a
permanently disabling disease. Tr. 69, 72. The Respondent quickly worked to abate
the violative condition by immediately informing inspector Stone they would get
someone to clean out the box and get the filter taken care of. Tr. 209, Resp.
Br., 24.

The Secretary proposed a
regularly assessed penalty of $5,961.00. I find that the Respondent was highly
negligent but that the failure to conduct a complete respirable dust
examination prior to the examination being certified as complete was not an
unwarrantable failure. Thus, after considering the statutory criteria, I find
that a penalty of $4,500.00 is appropriate.

VI.
ORDER

Respondent
is hereby ORDERED to pay the Secretary of Labor the total sum of $4,500.00
within 30 days of this order.[1]

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (U.S. First Class Mail)

Hanah Harris-Yager, U.S. Department of Labor,
Office of the Solicitor, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Gary D. McCollum, 1146 Monarch Street, 3rd
Floor, Lexington, KY 40513

[1]
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390