Secretary of Labor v. Armstrong Coal Company, Inc.

Plain-English summary

Armstrong Coal's Parkway Mine was required by its ventilation plan to perform additional respirable-dust parameter checks during the fifth hour of each production shift. During an impact inspection, MSHA found that the checks had not been completed on either mechanized mining unit and issued a section 104(d)(1) order. The Judge rejected Armstrong's argument that the deadline meant five hours of actual production after subtracting downtime and held that it plainly referred to the fifth hour of the shift. She found that the mine regularly failed to perform the checks, had a history of dust-control problems, and had received an inadequate-examination citation earlier in the same inspection. The violation was serious, involved high negligence and unwarrantable failure, and exposed 12 miners to the risk of permanently disabling respirable-dust disease. Order No. 8506201 was affirmed as written, and a $9,122 penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.370(a)(1)
• Outcome: Order No. 8506201 was affirmed as written for high negligence and unwarrantable failure, with a $9,122 penalty.
• Key point: A plan requiring checks in the fifth hour of production meant the fifth hour of the shift, not an individually calculated fifth hour after subtracting equipment downtime.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE: 202-233-4010
/ FAX: 202-434-9949

March 8, 2018

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

ARMSTRONG
COAL COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2015-125

A.C.
No. 15-19358-364163

Mine:
Parkway Mine

DECISION AND
ORDER

Appearances:               Thomas
J. Motzny, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner

Marco
M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick & True PLLC,
Lexington, Kentucky, for the Respondent

Before:                        Judge
Rae

I.          
STATEMENT OF THE CASE

This case is before me upon a petition
for assessment of a civil penalty filed by the Secretary of Labor (“the
Secretary”) against Armstrong Coal Company, Inc. (“Armstrong” or “Respondent”)
under section 105(d) of the Federal Mine Safety and Health Act of 1977, as
amended, (“the Mine Act”), 30 U.S.C. § 815(d). The sole matter at issue in this
proceeding is Order Number 8506201, [1]
which was issued under section 104(d)(1) of the Mine Act, 30 U.S.C.

§
814(d)(1). [2]

A hearing was held in Madisonville,
Kentucky, at which time testimony was taken and documentary evidence was
submitted. The parties also filed post-hearing briefs. I have reviewed all of
the evidence at length and have cited to the testimony, exhibits and arguments
I found critical to my analysis and ruling herein without including a detailed
summary of the testimony given by each witness. Based upon the entire record
and my observations of the demeanor of the witnesses, I uphold Order Number
8506201 as written and assess a penalty of $9,122.00 against Armstrong for the
reasons set forth below.

II.        STIPULATIONS

The parties have entered into the
following stipulations:

1. Armstrong
   is subject to the Mine Act and to the jurisdiction of the Federal Mine Safety
   and Health Review Commission.

2. The
   presiding Administrative Law Judge has the authority to hear this case and
   issue a decision.

3. Armstrong
   is an “operator” as that word is defined in section 3(d) of the Mine Act, 30
   U.S.C. § 802(d), at the mine where the order contested in this matter was
   issued.

4. Armstrong
   has an effect upon commerce within the meaning of section 4 of the Mine Act, 30
   U.S.C. § 803.

5. Armstrong
   has Mine ID 15-19358.

6. Armstrong
   mined 1,347,372 tons of coal in 2013 and 1,125,164 tons of coal in 2014.

7. The
   order in this docket was properly served on Armstrong by a duly authorized
   representative of the Secretary on the dates stated therein.

8. The
   penalty proposed in this docket would not affect Armstrong’s ability to remain
   in business.

Joint
Ex. 1; Tr. 7. [3]

III.     FACTUAL
BACKGROUND

The one violation at issue in this
proceeding was written by MSHA Inspector Matthew Stone [4]
on April 4, 2014 at the Parkway Mine, an underground coal mine operated by
Armstrong in Kentucky. Ex. S-1. Inspector Stone had traveled to the mine that
day with six other MSHA personnel to conduct an impact inspection, which was
prompted by an incident several months earlier where MSHA had received a hazard
complaint about respirable dust sampling [5]
at the mine. Tr. 44, 91-92, 134; Ex. S-5. After investigating the complaint,
MSHA had issued a citation on January 24, 2014 alleging that Armstrong had knowingly
allowed miners to leave their respirable dust sampling devices at a power
center instead of wearing them during the shift, in violation of the
Secretary’s mandatory respirable dust sampling procedures. Tr. 91-92; Ex. S-5. The
January 24 citation was issued under section 104(d)(1) of the Mine Act, placing
the mine on the “d-chain,” which refers to a chain of increasingly severe
sanctions the Secretary is authorized to impose on operators under 104(d). Ex.
S-5; see Lodestar Energy, Inc. , 25 FMSHRC 343, 345-46 (July 2003). [6]
The mine was still on the d-chain at the time of the April 4, 2014 impact
inspection.

Inspector Stone and his colleagues
arrived at the mine that day to initiate the impact inspection at approximately
3:15 PM, just after the 3:00 production shift (the second shift) had begun. Tr.
44, 72-73, 177. The miners working the second shift had already gone
underground because the mine engaged in “hot-seating,” a practice in which a
lapse in production is avoided by sending the incoming shift directly into the
mine before the miners on the preceding shift have exited. Tr. 18-19, 84-85,
100, 113, 141, 227-28. While Stone and the other MSHA inspectors were waiting
for a ride to take them underground, they reviewed the pre-shift books and mine
maps and Stone issued a citation for a recordkeeping violation. Tr. 46-47,
151-52; Ex. S-6. At about 4:00 PM, the inspection party descended into the
mine, joined by Armstrong safety representative Steven J. DeMoss and miner
representative Brandon H. Shemwell. Tr. 47, 52, 102.

When Inspector Stone arrived on the #1
unit he traveled directly to the working face to inspect the equipment,
starting with the Company No. P2 roof bolting machine, which was blowing dust
out of its exhaust system. Tr. 47-49, 102-03, 115, 155. He issued three
citations on the roof bolter, including one citation alleging deficiencies in
the machine’s dust collection system and another alleging the machine had not
been subjected to an adequate dust parameter examination at the beginning of
the shift to ensure compliance with the dust control requirements set forth in
the mine’s ventilation plan. [7]
Ex. S-6; Tr. 49-51, 115, 156. He then took air readings and inspected the
Company No. M22 continuous mining machine, which revealed no deficiencies. Tr.
51-52.

At around 9:00 PM, Inspector Stone asked
Shemwell to get section foreman Billie Q. Hearld. Tr. 21, 57-58, 104. When
Hearld arrived, Stone requested the results of the section’s fifth hour dust
parameter examination. Tr. 23, 52-53, 58, 105, 163. The testimony conflicts as
to whether the examination had actually been performed by then, but admittedly,
Foreman Hearld did not yet have the results. Tr. 23. After speaking to Hearld
and two equipment operators, Inspector Stone felt certain that the fifth hour
examination had not been conducted. Tr. 59, 88. Accordingly, he halted
production and issued the order that is the subject of this proceeding, Order
Number 8506201, which alleges that a fifth hour dust parameter examination was
not conducted on either of the mine’s two mechanized mining units. Tr. 59-60,
105; Ex. S-1. Stone characterized this violation as an unwarrantable failure to
comply with a mandatory safety standard. Ex. S-1; Tr. 62-63. The violation was
issued as a 104(d)(1) order because of the unwarrantable failure designation
and because the mine was already on the d-chain due to the issuance of the
predicate 104(d)(1) citation in January. Ex. S-1. The order was written at 9:50
PM. Ex. S-1. Afterward, Foreman Hearld personally checked the dust control
parameters for each piece of equipment on the section and recorded the results
at the power center. Tr. 24-25, 35-36, 105. Inspector Stone terminated the
order at 10:30 PM with notation that the required examination had been
conducted and no deficiencies had been found. Tr. 63-64, 76-77, 171-73; Ex.
S-1.  

IV.     LEGAL
PRINCIPLES

A.    
Violation

A mine operator is strictly
liable for Mine Act violations that occur at its mine. Spartan Mining Co. ,
30 FMSHRC 699, 706 (Aug. 2008). The Secretary bears the burden of proving any
alleged violation by a preponderance of the evidence. In re: Contests of
Respirable Dust Alteration Citations , 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d
sub nom. Sec’y of Labor v. Keystone Coal Mining Corp. , 153 F.3d 1096 (D.C.
Cir. 1998).

B.     
Gravity

Gravity is generally expressed as
the degree of seriousness of a violation. Hubb Corp. , 22 FMSHRC 606, 609
(May 2000); Consolidation Coal Co. , 18 FMSHRC 1541, 1549 (Sept. 1996). The
Secretary assesses gravity in terms of the reasonable likelihood of injury, the
severity of the expected injury, the number of persons affected, and whether
the violation is S&S. The Commission has pointed out that the focus of the
gravity inquiry “is not necessarily on the reasonable likelihood of serious
injury, which is the focus of the S&S inquiry, but rather on the effect of
the hazard if it occurs.” Consolidation Coal , 18 FMSHRC at 1550; see
also Harlan Cumberland Coal Co. , 12 FMSHRC 134, 140-41 (Jan. 1990) (ALJ)
(explaining that some violations are serious notwithstanding the likelihood of
injury, such as a violation of an important safety standard, a violation
demonstrating recidivism or defiance on the operator’s part, or a violation
that could combine with other conditions to set the stage for disaster).

C.     
Negligence
and Unwarrantable Failure

Negligence is conduct that falls
below the standard of care established under the Mine Act. Under the
Secretary’s regulations, an operator is held to a high standard of care and is
required to be on the alert for conditions and practices that may cause injuries
and to take necessary precautions to prevent or correct them. 30 C.F.R. §
10.0(d). The Secretary defines high negligence as having occurred in connection
with a violation when “[t]he operator knew or should have known of the
violative condition or practice, and there were no mitigating circumstances.” Id.
§ 100.3, Table X. The Commission generally assesses negligence by
considering what actions a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purpose of the cited
regulation would have taken under the circumstances. Leeco, Inc. , 38
FMSHRC 1634, 1637 (July 2016); see also Brody Mining, LLC , 37 FMSHRC
1687, 1701-03 (Aug. 2015) (explaining that Commission ALJs “may evaluate
negligence from the starting point of a traditional negligence analysis” rather
than adhering to the Secretary’s Part 100 definitions); accord Mach Mining,
LLC v. Sec’y of Labor , 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). 

More
serious consequences can be imposed under the Mine Act for violations that
result from the operator’s unwarrantable failure to comply with mandatory
health or safety standards. The unwarrantable failure terminology is taken from
section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious
conduct by an operator in connection with a violation. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Emery Mining Corp. , 9 FMSHRC 1997, 2001-04
(Dec. 1987). Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh
Coal Co. , 13 FMSHRC 189, 193-94 (Feb. 1991); Buck Creek Coal, Inc. v.
FMSHRC , 52 F.3d 133, 136 (7th Cir. 1995).

Whether conduct is “aggravated”
in the context of unwarrantable failure is determined by looking at all the
facts and circumstances of each case to see if any aggravating factors or
mitigating circumstances exist. These factors often include (1) the extent of
the violative condition, (2) the length of time the violative condition
existed, (3) whether the violation posed a high degree of danger, (4) whether
the violation was obvious, (5) the operator’s knowledge of the existence of the
violation, (6) the operator’s efforts in abating the violative condition, and
(7) whether the operator had been placed on notice prior to the issuance of the
violation that greater efforts were necessary for compliance. See CAM Mining,
LLC , 38 FMSHRC 1903, 1909 (Aug. 2016); Wolf Run Mining Co. , 35
FMSHRC 3512, 3520 (Dec. 2013); IO Coal Co. , 31 FMSHRC 1346, 1350-57
(Dec. 2009). Because supervisors are held to a high standard of care, another
important factor supporting an unwarrantable failure determination is the
involvement of a supervisor in the violation. Lopke Quarries, Inc. , 23
FMSHRC 705, 711 (July 2001).

The factors listed above must be viewed
in the context of the factual circumstances of a particular violation, and it
is not necessary to find that all factors are relevant or deserving of equal
weight in order to determine that the violation is unwarrantable. Wolf Run ,
35 FMSHRC at 3520-21; E. Assoc’d Coal Corp. , 32 FMSHRC 1189, 1193 (Oct.
2010); IO Coal , 31 FMSHRC at 1351. However, all factors that are
relevant should be considered. San Juan Coal Co. , 29 FMSHRC 125, 129
(Mar. 2007).

V.        FINDINGS
AND DISCUSSION

A.    
Violation
of 30 C.F.R. § 75.370(a)(1)

Order Number
8506201 alleges a violation of § 75.370(a)(1), which mandates that each
operator of an underground coal mine develop and follow a ventilation plan that
is designed to control methane and respirable dust and is suitable to the
conditions and mining system at the mine. 30 C.F.R. § 75.370(a)(1). Ventilation
plan provisions are enforceable as mandatory safety standards at the mine once
they have been approved by the Secretary. Martin County Coal Corp. , 28
FMSHRC 247, 254 (May 2006); UMWA v. Dole , 870 F.2d 662, 671 (D.C. Cir.
1989). In this case, Armstrong is alleged to have violated a provision of the
Parkway Mine’s approved ventilation plan requiring dust parameter examinations
to be conducted each shift.

A dust parameter
examination is an examination of the working section that involves taking air
readings, checking for proper placement of ventilation controls, and checking
each piece of equipment on the section, including the roof bolters, continuous
miners, and feeder, to ensure compliance with the respirable dust control parameters
set forth in the ventilation plan. Tr. 24, 54-55, 149-50, 202, 212-13, 231-32;
30 C.F.R. § 75.362(a)(2). The section foreman must certify the results of the
examination by date, time, and initials. Tr. 37, 56; 30 C.F.R. § 75.362(g)(2). At
the Parkway Mine, the equipment operators are charged with performing the
required dust parameter checks on their respective equipment and the results
are then conveyed to the section foreman. Tr. 33-34, 172, 239-40. By
regulation, a dust parameter examination must be completed during the first
hour of each shift. 30 C.F.R. § 75.362(a)(2). An additional dust parameter
examination must be completed “every fifth hour of production” pursuant to the mine’s
ventilation plan, which states, “Fifth hour dust perimeter [sic] checks will be
made within the fifth hour of production and recorded on site.” Ex. S-2 at 21,
22, 25. This provision was added to the ventilation plan due to the Parkway
Mine’s history of noncompliant respirable dust samples. Tr. 53.

According to the
Secretary, the phrase “fifth hour of production” refers to the fifth hour of
the production shift, meaning that the fifth hour dust examination for the 3:00
PM production shift should be conducted between 8:00 and 9:00 PM. Sec’y Br. 6-11;
see Tr. 86.  Inspector Stone testified that when he asked Foreman Hearld
for the results of this exam, Hearld admitted it had not been completed even
though he knew it was past time to do so. Tr. 53, 58. Stone said he also spoke
to a roof bolter and miner operator who told him the fifth hour checks had not
been conducted. Tr. 59, 88. In the order, he alleged:

The approved
ventilation plan is not being followed on the #1 unit (MMU 001-0/002-0). The
mine operator has failed to conduct the fifth hour dust parameter examination
to assure compliance of the respirable dust controls specified in the mine
ventilation plan. … When ask[ed] to provide proof of the fifth hour dust
parameter examination section foreman Billy Hearld admitted he did not conduct
the examination.

Ex. S-1. 

Armstrong argues
that all the credible evidence proves the required fifth hour checks were, in
fact, completed by the equipment operators before Stone asked about them, and
therefore no violation occurred. Resp. Br. 11-14. Armstrong also argues that
the deadline to complete the checks had not yet passed because it was not the “fifth
hour of production.” Id. at 10-11. According to Armstrong, this means
five hours of actual production; any down time that has occurred during
the shift does not count toward the five hours. Id. at 6-10. When
Inspector Stone asked for the dust checks, five hours of actual production had
not yet taken place because the shift had not begun producing coal until 3:40
PM and the equipment had been downed for at least an hour due to the inspection.
Tr. 141-48; Ex. R-6; Ex. R-7.

I reject
Armstrong’s interpretation of “fifth hour of production” as illogical and not
supported by the evidence. DeMoss was the only witness whose testimony
supported this interpretation. He stated that the equipment operators keep running
their equipment until they reach five full hours of production before stopping
to conduct dust parameter checks. Tr. 148. But this would require each
equipment operator to independently track production and stoppage times during the
shift in order to determine when to conduct his checks. DeMoss could not explain
how he expected rank-and-file miners to accomplish this task given that there
is no way for each individual equipment operator to know if another piece of
equipment has been taken out of service during the shift and for how long. See
Tr. 181-82. Also, if each equipment operator were individually responsible
for deciding when to perform his checks, the timing of the checks would vary
between different pieces of equipment and between shifts, which would be
chaotic and unenforceable. Furthermore, all the other evidence reflecting the
actual practice at the mine contradicts DeMoss’s account that the fifth hour is
calculated by tracking production time and subtracting down time. Roof bolter
Joshua Q. Divine testified he performs the fifth hour checks five hours after the
first hour checks without tracking production time. Tr. 207. Miner operator Phillip
W. Keeton said he performs his checks around 8:00 PM when working the 3:00 PM
shift, regardless of down time or how long the miner has been running. Tr.
245-47. Unit mechanic John P. Wilson, who performs dust checks on the feeder,
also said he conducts his checks between 8:00 and 9:00 PM, and Foreman Hearld
agreed that the fifth hour falls “[a]round 8:00,” indicating they are simply
counting the hours from the beginning of the shift. Tr. 23, 213. Bolstering this
testimony, instruction cards distributed by Armstrong to equipment operators at
the Parkway Mine state that dust parameter checks will be conducted on the fifth
hour “of each shift .” Ex. S-5 (emphasis added).

The Secretary’s interpretation
of “fifth hour of production” as referring to the fifth hour of the shift is
consistent with the evidence discussed above reflecting the actual practice at
the mine. It is also consistent with other examination regulations, which
typically require examinations to be conducted within a specific, determinate
time period. See, e.g. , 30 C.F.R. §§ 75.360(a)(1), 75.364(a), 75.512-2. Further,
requiring dust checks to be completed during the fifth hour of the shift,
rather than the fifth hour of actual production, promotes safety by ensuring
that checks will occur at regular intervals at the beginning and middle of each
production shift.

Based on the analysis
above, I find that the phrase “fifth hour of production” as used in the Parkway
Mine’s ventilation plan clearly refers to the fifth hour of the production
shift because it would be unreasonable to interpret it any other way. Because
the language is clear, it should be enforced as written. See Hecla Ltd. ,
38 FMSHRC 2117, 2122 (Aug. 2016) (stating rule that clear regulations are
usually enforced as written); Martin County Coal , 28 FMSHRC at 255 (applying
law governing regulatory interpretation to plan provisions). Even if
there were room for doubt, the Secretary’s interpretation of an ambiguous
regulatory provision is entitled to deference unless it is unreasonable,
plainly erroneous, inconsistent with the regulation, or does not reflect the
agency’s fair and considered judgment. Christopher v. SmithKline Beecham
Corp. , 567 U.S. _, 132 S. Ct. 2156, 2166 (2012); Auer v. Robbins ,
519 U.S. 452, 461-63 (1997); Hecla , 38 FMSHRC at 2122. For the reasons
discussed above, I find that the Secretary’s interpretation of “fifth hour of production”
as referring to the fifth hour of the shift is reasonable and serves the
overall safety-promoting purposes of the Mine Act. Accordingly, it is entitled
to deference. Because any person familiar with the mining industry and Mine Act
would reach the same interpretation, I also reject Armstrong’s argument that it
was not on notice of this interpretation. 

Because
fifth hour checks must be conducted during the fifth hour of the shift, they
should have been completed between 8:00 and 9:00 PM on the day of the
inspection. A preponderance of the evidence shows they were not timely
completed.

Although Foreman
Hearld, who was called as an adverse witness by the Secretary, said that the equipment
operators had conducted the checks by the time Inspector Stone asked for the
results around 9:00 PM, (Tr. 33-34), his testimony on this point was
unconvincing. The only reason he could provide for believing the equipment
operators had performed the checks was that it was their job to do so. Tr.
34-35. He admitted he did not actually ask each equipment operator whether the
checks had been performed. Tr. 24-25. Moreover, he responded to Stone’s inquiry
about the dust parameter examination by leaving and performing the required checks
on each piece of equipment himself. Tr. 24-25, 35. There would have been no
reason for him to redo these checks if the equipment operators had already
completed them; his actions indicate they had not.

DeMoss’s
testimony was also unconvincing. Although he insisted the checks had been
completed, incongruously, he also testified that it was not time to do them yet
because it was not the fifth hour of production. Tr. 183-84. When pressed to
explain why the equipment operators would have done the checks if it was not
time yet, DeMoss at first said he did not understand the question, then said
the equipment operators must have been nervous because MSHA inspectors were
present, but finally admitted he did not know if the checks had actually been
completed after all. Tr. 184-85, 189. His testimony struck me as self-serving
and manufactured, and I decline to credit it.

Armstrong called
three rank-and-file equipment operators as witnesses, but each of them stopped
short of affirmatively stating that he had completed his dust checks the night
of the inspection. Wilson testified, “I don’t recall exactly doing that.” Tr.

213. Keeton also said he did not specifically remember performing the checks. Tr.
214. Divine said he was sure he would have done them, but it was clear he was
     speaking generally and had no specific memory of the night in question. Tr. 204-05,
215. Overall, these witnesses’ testimony was vague and seemed evasive and
     coached at times.

In addition, the
company witnesses offered discrepant accounts of how dust parameter checks were
usually recorded on the section. Divine testified that no one wrote down the
results of their checks, while Keeton testified that he wrote down his results to
give to the foreman, and DeMoss asserted the results were relayed to the
foreman by memory but later admitted to having testified at deposition that the
equipment operators were supposed to record the results on pieces of paper. Tr.
188-89, 207, 236. These discrepancies suggest the mine had no established
procedure for ensuring that dust parameter checks were being completed.

The Secretary
presented testimony from Justin Greenwell, a former roof bolter for Armstrong,
that the checks were not being completed at all. Greenwell had been working on
the cited section for about a year prior to the inspection but said he had
never conducted or even heard of dust parameter checks before Inspector Stone
raised the subject. Tr. 116-17. Corroborating this assertion, Foreman Hearld
invoked his Fifth Amendment right not to respond when asked whether it was his
regular practice to conduct and certify fifth hour dust parameter examinations,
which raises an adverse inference that it was not. Tr. 30-32, 38. The
implication that Armstrong failed to regularly conduct dust parameter
examinations is also consistent with the ample evidence of ongoing dust control
problems at this mine. As previously noted, the requirement to perform fifth
hour dust checks was added to the ventilation plan due to the mine’s history of
noncompliance with respirable dust standards, and the April 4 inspection was
spurred by the mine’s recent receipt of a citation for falsifying dust samples.
Tr. 53, 91-92; Ex. S-5. Shemwell, a scoop operator on the cited section, described
witnessing problems such as dusty roads and missing ventilation curtains and said
that “we didn’t really have any dust control” until after the inspection. Tr. 106-08.
At the beginning of the inspection, Inspector Stone had observed a roof bolter
blowing dust out of its exhaust system and had issued citations for a
deficiency in the machine’s dust collection system and an inadequate first hour
dust parameter exam. Tr. 47-51; Ex. S-6. Greenwell was one of the miners
operating this roof bolter and testified that when he arrived on the section
that day he had raised concerns that the dust collection box was full, but
Foreman Hearld had instructed him to continue bolting rather than stopping to
clean it. [8]
Tr. 114. The foregoing evidence reveals a lax attitude toward dust control at
this mine, and against this backdrop, I credit Greenwell’s testimony that he
worked at the mine for a year without ever being asked for dust parameter
results.

After
considering all the evidence, I find that the fifth hour dust parameter checks had
not been completed by the time Inspector Stone asked for the results. I further
find that the evidence indicates Armstrong regularly failed to perform these
checks. This conduct violated the mine’s ventilation plan and § 75.370(a)(1).

B.     
Gravity

Inspector Stone assessed this
violation as unlikely to cause injury and non-S&S, but capable of causing
permanently disabling injuries to twelve miners. Ex. S-1; Tr. 60-62. He
explained that failure to conduct dust parameter examinations prevents the mine
operator from knowing if any ventilation or dust control problems exist that
need to be corrected. Tr. 61.

Armstrong’s failure to conduct a
fifth hour dust parameter examination created a hazard that miners working on
the unit would be exposed to unrecognized, unaddressed dust control
deficiencies. This was an active working section where coal was being drilled
from rock in an enclosed underground environment, so dust control deficiencies
would have exposed miners to airborne respirable rock drill dust containing
coal and silica particles. These particles are harmful when inhaled, particularly
silica particles, which become embedded in the lung tissue and cause scarring
over time. Tr. 63. Armstrong argues that “conditions on the section were good,”
noting that no actual dust control problems were identified when the fifth hour
checks were finally conducted (which was the reason Inspector Stone marked the
probability of injury as “unlikely”). Resp. Br. 15-16; Resp. Reply Br. 5; Ex.
S-3 at 8. Armstrong also suggests that a dust parameter examination was
unwarranted because so little production took place during the shift in
question. Resp. Br. 15-16; Tr. 140. But, as discussed above, the evidence is
clear that Armstrong habitually failed to conduct dust parameter checks
regardless of production, not just on this one occasion. The fifth hour dust
parameter examination requirement had been added to the mine’s ventilation plan
due to its history of dust control problems, as exemplified by Inspector
Stone’s issuance of two citations for dust control deficiencies on a roof
bolting machine earlier in the inspection and the mine’s receipt of a predicate
104(d)(1) citation several months earlier for falsification of dust samples. Ex.
S-5; Ex. S-6. If normal mining operations had continued without issuance of Order
Number 8506201, any further dust control problems that arose on the cited
section would not have been promptly identified and addressed due to
Armstrong’s failure to conduct the fifth hour checks. I find that this failure
posed a hazard that miners would develop permanently disabling injuries due to
respirable dust exposure.

Armstrong
disputes that the hazard would affect all twelve miners on the section because
this was a split-air unit, meaning that a dust control problem on one side of
the unit would not necessarily impact the other. Resp. Br. 16; see Tr.
62, 78, 175-76, 206. However, a fifth hour dust parameter examination was not
conducted on either side of the unit, exposing the miners on both sides to the
hazard. Tr. 83-84.

Because
this violation exposed all the miners on the section to permanently disabling
injuries from exposure to respirable dust, and because of the importance of
dust control in underground coal mines, I find that this was a serious
violation.

C.     
Negligence
and Unwarrantable Failure

The Secretary asserts that this
violation involved high negligence and was an unwarrantable failure to comply
with the cited safety standard because Armstrong was aware of the requirement
to conduct fifth hour dust parameter examinations as mandated in the
ventilation plan, yet regularly failed to do so, posing a serious risk to
miners’ health. Sec’y Br. 11-15. Inspector Stone testified he designated the
violation as an unwarrantable failure due to “the history of this section” and “the
issues encountered at the start of the shift,” namely, the fact that he had
observed a roof bolting machine discharging rock drill dust from its exhaust
system and cited it for an inadequate first hour dust parameter examination. Tr.
62-63.

Armstrong contests the Secretary’s
allegations of high negligence and unwarrantable failure, asserting that the
violation presented no danger to miners and that Inspector Stone failed to
consider mitigating circumstances raised during the inspection, including that
it was not Foreman Hearld’s responsibility to do the dust checks and that he
obtained the results quickly after the inspector asked for them. Resp. Br.
14-17; Resp. Reply Br. 5-6.

Notice of Need
for Greater Compliance Efforts

An
operator’s history of past similar violations or other specific warnings from
MSHA is relevant to the unwarrantable failure analysis to the extent the past
violations and warnings placed the operator on notice that greater efforts were
necessary for compliance with the cited safety standard.

The
fifth hour dust parameter examination requirement that is the subject of this proceeding
was added to this mine’s ventilation plan due to its history of dust control
problems. Tr. 53. Less than 90 days before the inspection, Armstrong received a
104(d)(1) citation for falsifying dust samples. Ex. S-5. The mine’s violation
history data submitted by the Secretary reveals numerous other dust control
violations received in the fifteen months preceding the inspection, including
two violations of the dust parameter examination regulation. Ex. S-4. Just a
few hours before Order Number 8506201 was written, Inspector Stone issued a
citation for an inadequate first hour dust parameter examination. Ex. S-6. The prior
violation was written on the same section during the same shift and issued to
the same person, DeMoss. Ex. S-1; Ex. S-6. I find that this mine’s history and
the citation issued a few hours earlier served to place Armstrong on notice prior
to the issuance of this violation of the need to make greater efforts to comply
with the dust parameter examination requirement.

Knowledge of
Violation; Obviousness; Abatement Efforts

Knowledge
of a violation is established where the operator knew or reasonably should have
known of the violation. Coal River Mining, LLC , 32 FMSHRC 82, 95 (Feb. 2010).
The knowledge or negligence of an agent may be imputed to the operator. Excel
Mining, LLC , 37 FMSHRC 459, 467-68 (Mar. 2015); Martin Marietta
Aggregates , 22 FMSHRC 633 (May 2000).

Foreman Hearld was acting as
Armstrong’s agent at the time of the violation, as he was the person charged
with responsibility for the operation of the cited section and for supervising
the miners working there. See 30 U.S.C. § 802(e) (defining “agent”); Martin
Marietta , 22 FMSHRC at 637-38. In this capacity, he was responsible for
making sure that dust parameter checks were completed within the fifth hour of
the shift and recorded onsite in accordance with the ventilation plan. Ex. S-2
at 25. He knew he was supposed to record the results of the checks at the power
center and certify them by date, time, and initials. Tr. 37. He conceded that
the checks should have been done “[a]round 8:00” and recorded by 9:00 PM, but
they were not. Tr. 23-24. Hearld said “[t]here was a lot going on” the night of
the inspection. Tr. 30. But it remained incumbent on him, as the foreman, to make
sure the required checks were completed. It should have been obvious to him that
the checks had not been done because none of the equipment operators had communicated
the results to him and because he should have already attempted to collect the
data so he could record and certify it. Instead, he completely ignored the
fifth hour examination requirement until Inspector Stone asked about it.

Although Armstrong notes that
Hearld obtained the dust parameter data quickly after being asked to do so,
abatement efforts undertaken after the issuance of the violation are not
relevant to the unwarrantable failure analysis. IO Coal Co. , 31 FMSHRC
1346, 1356 (Dec. 2009).

I find that Hearld had knowledge
of this violation yet failed to abate it. Because he was Armstrong’s agent, his
knowledge and negligent conduct in failing to abate the violation are imputable
to the company.        

Duration of
Violation; Extensiveness; Degree of Danger Posed

Although
the fifth hour dust parameter checks were less than an hour overdue when
Inspector Stone issued the order, the underlying violative conduct was Armstrong’s
failure to ensure these checks were being completed. As discussed above, the
evidence shows that Armstrong regularly failed to conduct the fifth hour checks
and that this conduct was part of an ongoing pattern of laxness toward dust
control on the part of mine management. Thus, this violation arises out of
violative conduct of longstanding duration.  

This
violation was also extensive in that it affected the entire section and all of
the miners working there, as the required examination had not been conducted on
either of the section’s two mechanized mining units or on any of the equipment.

I
further find that this violation posed a high degree of danger. As discussed
above, failure to perform the dust parameter examination exposed miners to
permanently disabling injuries from exposure to respirable dust that causes diseases
such as silicosis, the prevention of which was one of Congress’ fundamental
goals when it passed the Mine Act. See U.S. Steel Mining Co. , 8 FMSHRC
1274, 1278-80 (Sept. 1986).

Conclusions

Based on the
factors discussed above, particularly that a supervisor knew of this violation
yet failed to abate it, that it was Armstrong’s practice not to comply with the
cited dust control requirement, and that Armstrong’s conduct posed a high
degree of danger to miners, I find that Armstrong engaged in aggravated conduct
constituting more than ordinary negligence. Because a predicate 104(d)(1) citation
was issued less than 90 days earlier, this violation was properly issued as a
104(d)(1) order.

Based on the
same factors, I also find that Armstrong’s negligence was high.

VI.     PENALTY

A.     Legal Principles

The Commission
has reiterated in Mize Granite Quarries, Inc. , 34 FMSHRC 1760, 1763-64
(Aug. 2012):

Section 110(i)
of the Mine Act grants the Commission the authority to assess all civil penalties
provided under the Act. 30 U.S.C. § 820(i). It further directs that the
Commission, in determining penalty amounts, shall consider:

The operator’s
history of previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was negligent,
the effect on the operator’s ability to continue in business, the gravity of
the violation, and 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).

The
Commission and its ALJs are not bound by the penalties proposed by the
Secretary, nor are they governed by MSHA’s Part 100 regulations, although
substantial deviations from the proposed penalties must be explained using the
section 110(i) criteria. See Am. Coal Co. , 38 FMSHRC 1987, 1992-93 (Aug.
2016); Sellersburg Stone Co. , 5 FMSHRC 287, 293 (Mar. 1983). In
addition to considering the 110(i) criteria, the judge must provide a
sufficient factual basis upon which the Commission can perform its review function.
See Martin Co. Coal Corp. , 28 FMSHRC 247, 266 (May 2006).

B.      Penalty
Assessment

The Secretary asks me to assess a
penalty of $9,122.00 for this violation. This proposed penalty was calculated
using the Secretary’s “regular assessment” formula set forth in 30 C.F.R. § 100.3.

The Secretary has submitted a
violation history form showing that the Parkway Mine received 470 violations
from MSHA that became final during the fifteen months preceding the issuance of
this order. Ex. S-4. I find Armstrong’s violation history to be moderate considering
the large size of its business. The parties have stipulated that the proposed
penalty will not affect Armstrong’s ability to remain in business. Joint Ex. 1.
My findings regarding gravity and negligence are discussed at length above in
the body of my decision. The evidence reflects that Armstrong demonstrated good
faith in achieving rapid compliance after notification of the violation by
promptly conducting the required dust parameter checks. Tr. 24-25, 105, 171;
Ex. S-1.

After considering the six
statutory penalty criteria, I assess a penalty of $9,122.00 for this violation.

ORDER

Armstrong Coal Company, Inc. is hereby ORDERED
to pay a penalty of $9,122.00 within thirty (30) days of the date of this
Decision and Order. [9]

/s/
Priscilla M. Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Thomas
J. Motzny, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

Marco
M. Rajkovich, Jr., Rajkovich, Williams, Kilpatrick & True PLLC, 3151
Beaumont Centre Circle, Lexington, KY 40513

[1] Five violations
were initially at issue in this proceeding, but the parties settled four of
them prior to hearing. The settlement was approved by Order dated December 15,
2015.

[2] The issuance of
an order under section 104(d)(1) denotes that the alleged violation was caused
by the mine operator’s “unwarrantable failure” to comply with a mandatory
health or safety standard and that at the time the violation occurred, the mine
had already received a predicate 104(d)(1) citation in the preceding 90 days. 30
U.S.C. § 814(d)(1).

[3] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered S-1 through S-6 and the Respondent’s exhibits
are numbered R-5 through R-8. See Tr. 124, 162, 177.

[4] Stone works for
MSHA as a roof control specialist. In his five years at MSHA, he has also
worked as a health specialist and as a regular coal mine inspector. He worked
in the coal mining industry as a continuous miner operator from 1997 to 2011
before being hired by MSHA in September 2011. Tr. 43, 64.

[5] Operators of underground
coal mines are required to minimize miners’ exposure to harmful respirable dust
by, among other things, maintaining the mine’s atmospheric dust concentrations
at or below certain levels and conducting dust sampling to ensure compliance. See
30 C.F.R. Part 70.

[6] Armstrong had
initially contested the predicate citation and associated civil penalty before Administrative
Law Judge Margaret Miller in Docket No. KENT 2014-601, but the operator subsequently
withdrew its contest.

[7] Armstrong initially
contested both of these violations but ultimately settled them for reduced
penalties. Armstrong Coal Co. , No. KENT 2014-585 (Apr. 30, 2015)
(unpublished ALJ order).

[8] Armstrong
attempted to impeach Greenwell’s credibility by introducing testimony that the
dust collection system on the roof bolter appeared to have been “sabotaged” by
a knife slit and that “it just seemed like Greenwell had it out for” Hearld. Tr.
215-16, 244. The record does not support these allegations. Greenwell came
across as a credible witness whose testimony was corroborated by the other
evidence. He had no motive to sabotage his own machine or concoct allegations
against mine management, especially considering that he no longer worked in the
mining industry at that time of the hearing. Tr. 112-13. He had voluntarily
quit his job with Armstrong after discovering at age 28 that he had black lung.
Tr. 118.  

[9] 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.