Big Ridge, Inc.

Plain-English summary

Big Ridge contested enforcement actions involving hazardous-condition examinations, its roof-control plan, combustible accumulations, electrical equipment, a tool-transport safeguard, and equipment permissibility at the Willow Lake Portal mine. Judge Gary Melick affirmed four enforcement actions as issued, affirmed the combustible-accumulations violation without its significant and substantial designation, and vacated the safeguard citation because he found that the underlying notice did not identify the hazard with enough specificity. He assessed $80,100 for the litigated violations, approved settlements requiring $272,961 more, and noted that the Secretary had vacated two citations. The Commission later reversed the safeguard ruling and remanded that citation for further proceedings.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1), 75.363(a), 75.363(b), 75.400, 75.503, and 75.512
• Outcome: Five violations were affirmed, one safeguard citation was vacated, settlements were approved, and total ordered penalties were $353,061.
• Subsequent review: The Commission reversed the safeguard vacatur and remanded that citation in lake-2008-436-commission.
• Key point: The ALJ required a safeguard notice to identify the transportation hazard, but the Commission later rejected that requirement.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

September 8, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner

v.

BIG RIDGE, INC.,

Respondent

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2008-436

A.C. No. 11-03054-148746

Docket No. LAKE 2009-057

A.C. No.11-03054-163984-01

Docket No. LAKE 2009-058

A.C. No.11-03054-163984-02

Docket No. LAKE 2009-059

A.C. No.11-03054-163984-03

Docket No. LAKE 2009-378

A.C. No.11-03054-177990-02

Mine ID: 11-03054

Mine: Willow Lake Portal

DECISION

Appearances:
Tyler Mcleod, Esq., and Beau Ellis, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, on behalf of the Secretary of Labor;
Arthur M. Wolfson, Esq. and Jason P. Webb, Esq., Jackson Kelly PLLC,
Pittsburgh, Pennsylvania, on behalf of Big Ridge, Inc.

Before:
Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., (“the Act”), charging Big Ridge, Inc., (“Big Ridge”) with multiple violations of mandatory
standards and seeking civil penalties for the alleged violations. The general issue before me is
whether Big Ridge violated the cited standards as alleged and, if so, what is the appropriate civil
penalty for these violations. Additional specific issues are addressed as noted. During hearings, the
parties reached a settlement regarding a number of charging documents and submitted supportive
documentation post hearing. I have reviewed the representations and documentation submitted with
respect to those charging documents and find that the settlement is acceptable within the framework
of section 110(i) of the Act. An order approving that settlement accompanies this decision.

Order Number 6673440

As amended, this order, issued pursuant to section 104(d)(2) of the Act, alleges, alternatively,
a violation of the standard at 30 C.F.R. § 75.362(a)(2), 30 C.F. R. § 75.363 (a) and 30 C.F.R. §
75.363(b), and charges as follows:

An inadequate on-shift examination was conducted on the MMU 002-0 coal
production unit during the 6:30 a.m. - 3:30 p.m. shift of January 24, 2008. The
conditions detailed in Mine Citation/Order No. 6673438 were neither posted nor
recorded in a book maintained for that purpose.

The conditions were extensive, obvious and readily identifiable to the certified
person (foreman) conducting the on-shift examination

For the reasons that follow, I find that the Secretary has sustained her burden of proving a
violation of the standards at 30 C.F.R. § 363(a) and 363(b). Accordingly, there is no need to consider
herein whether there was also a violation of the standard at 30 C.F.R. 75.362(a).

The cited standard at 30 C.F.R. § 363(a) provides as follows:           

a) Any hazardous condition found by the mine foreman or equivalent mine official,
assistant mine foreman or equivalent mine official, or other certified persons
designated by the operator for the purposes of conducting examinations under this
subpart D, shall be posted with a conspicuous danger sign where anyone entering the
areas would pass. A hazardous condition shall be corrected immediately or the area
shall remain posted until the hazardous condition is corrected. If the condition creates
an imminent danger, everyone except those persons referred to in section 104(c) of
the Act shall be withdrawn from the area affected to a safe area until the hazardous
condition is corrected. Only persons designated by the operator to correct or evaluate
the condition may enter the posted area.

The standard at 30 C.F.R. § 363(b) provides as follows:

(b) A record shall be made of any hazardous condition found. This record shall be
kept in a book maintained for this purpose on the surface at the mine. The record
shall be made by the completion of the shift on which the hazardous condition is
found and shall include the nature and location of the hazardous condition and the
corrective action taken. This record shall not be required for shifts when no
hazardous conditions are found or for hazardous conditions found during the preshift
or weekly examinations inasmuch as these examinations have separate record
keeping requirements.

Inspector William Keith Roberts of the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) who has more than eleven years experience as an MSHA Inspector and
significant industry experience, issued the subject order on January 25, 2008.Roberts testified that,
at the beginning of the day shift on that date, he observed approximately 19 tons of loose coal and
coal dust in mechanized mining unit number two. According to Roberts, the unit was idle at that time
and the foreman from the prior working shift had left the piles of loose coal behind. Indeed,
Respondent’s Safety Manager, Bart Schiff, admitted at hearings that there were coal accumulations
in the cited area including coal piles next to the continuous miner. He also acknowledged that
although there was a layer of rock dust on top of the coal it was not mixed within the piles and that
an explosion could lift that rock dust and expose the coal and coal dust underneath. Roberts issued
the order at bar for an inadequate on-shift examination by the foreman and for failing to identify,
immediately correct and post and record this material.

Roberts opined that loose coal and coal dust in a gassy mine is a hazardous condition. The
subject mine is classified as a “gassy” mine liberating more than two million cubic feet of methane
every 24 hours. Roberts testified that amounts far less than what he observed have been shown in
test conditions to further propagate a mine fire or explosion, and that the presence of such coal dust
could turn an ignition into an explosion. He also noted that this material in a working section is of
particular concern since there are trailing cables, cable reel equipment and electrical equipment that
may become damaged and are known fire sources. Miners were also working immediately outby
on a construction project.

Roberts also noted that despite having failed to first remove the 18.99-ton piles of coal from
the floors and ribs, Respondent placed only a “very light layer of rock dust” in the area from a
slinger-type rock dusting machine. According to Roberts, this machine does not rock dust the floor,
but rather the rock dust that ended up on the floor and the accumulation piles was simply residue that
had not attached to the ribs or roof. According to Roberts, the rock dust layer was thinner than a
sheet of paper thus rendering it insignificant.

Roberts further opined that underneath the thin layer of rock dust were deep piles of pure
coal and coal dust. He noted that the concussive forces from an explosion would suspend
approximately one inch of the material into the air thereby exposing the pure combustible material
in the accumulations. The cited loose coal and coal dust therefore constituted a condition that would
create or increase the possibility of loss in the event of an ignition or fire.

Roberts noted that foreman Les Hawkins was obligated to perform the subject on-shift
examination on the January 24 day shift and that Hawkins was also required under section 363(a)
to post the hazardous conditions with a conspicuous danger sign and immediately correct the
conditions or keep the area posted until the conditions were corrected. He was also required under
section 363(b) to record the conditions and the corrective action in the on-shift examination reports.
The Secretary maintains that Hawkins failed to comply with both of these requirements.

The subject unit was considered a “spare” unit since a scheduled crew was not assigned, but
rather miners elected to work this area on their days off. It is undisputed that this unit last produced
coal during the day shift (i.e., 6:30 a.m. to 3:30 p.m.) on January 24 when Hawkins was the foreman.
In Respondent’s pre-shift and on-shift reports, the mine examiners had repeatedly noted, “unit needs
more cleaning”. The examiners placed these comments under “remarks”on January 24- 3 a.m. to
7 a.m, and 7 p.m to 11 p.m, . Hawkins therefore was on notice that cleanup efforts were needed
before he worked the unit on the January 24 day shift, but failed to clean the unit, report the
condition, or post the area as a hazard pending corrective action.

The on-shift report for the subject shift shows that the section was in fact in production on
the day shift January 24, and that Hawkins was present, Hawkins failed to record information
concerning the purported loose coal piled around the unit, or why he failed to clean the unit as noted
by the pre-shift examiners. Hawkins also failed to post the area. Considering the credible testimony
of Inspector Roberts, significantly corroborated by Mr. Schiff, I find that a reportable hazard in fact
existed and that Hawkins therefore violated the requirements of sections 75.363(a) and 75.363(b).
Even applying a “reasonably prudent” person test it is clear that the significant size and amount of
combustible accumulations herein constituted a “hazardous condition” within the meaning of the
cited standard. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). I note, however that
the violation was not deemed to have been “significant and substantial” and it is therefore of lesser
gravity.

The Secretary also maintains that the violation was the result of Respondent’s unwarrantable
failure. Unwarrantable failure is “aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act.” Emery Mining Corp., 9 FMSHRC 1997,
2004 (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); see also Rock of Ages
Corp. v. Secretary of Labor, 170 F.3d 148, 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA, 52
F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test). Moreover, the
Commission has examined the conduct of supervisory personnel in determining unwarrantable
failure and recognized that a heightened standard of care is required of such individuals. See
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987) (section foreman held to
demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov.
1995) (heightened standard of care required of section foreman and mine superintendent).

When determining whether conduct is “aggravated” all the facts and circumstances must be
considered to see if any aggravating factors are present. These factors include, “the length of time
that the violation has existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating
the violative condition, whether the violation is obvious or poses a high degree of danger, and the
operator’s knowledge of the existence of the violation.” Consolidation Coal Co., 22 FMSHRC 340,
(Mar. 2000).

The pre-shift examiners reported that the unit needed cleaning since at least the midnight
shift before Hawkins worked on the unit. Roberts testified that the mine produced the 18.99 tons of
loose coal and coal dust during more than one mining cycle. He explained that accumulations in a
normal mining cycle would be produced in a single location to be cleaned. This situation, however,
involved extremely large accumulations in multiple areas. Thus, it is clear that Respondent
permitted the conditions to exist for an extended period of time. Roberts further emphasized that this
was not a remote location, but rather at the last open crosscut across all the headings. The conditions
were therefore extensive and obvious and Hawkins was working in the area the entire shift in
question, yet failed to address the serious problem in any manner.

In addition, Safety Manager Schiff acknowledged that Hawkins was required to do an on-shift examination. After Roberts told Schiff there would be an enforcement action for the
accumulations and potentially for the examination, mine manager Terry Ward arrived on the unit.
Ward told Roberts that the unit had in fact produced coal on the previous day shift and that he and
Hawkins specifically discussed at that time the need to clean the unit. When Roberts asked Ward
why nothing had been done, Ward stated that it was not entirely Hawkins’ fault since Hawkins’s
requested a coal scoop but Ward had removed if from that area to be used on a nearby construction
project.

I do not find Ward’s excuse that he was using the coal scoop for other purposes was a
mitigating factor. Indeed, Roberts’ discussion with Ward established that both the foreman and the
mine manager knew that there were significant loose coal and coal dust accumulations throughout
the unit on January 24, if not before and that the foreman had requested a scoop to clean the unit, but
the mine manager would not provide the scoop and that the foreman did not implement any other
means to remove the coal from the unit. These factors are indicative of an unwarrantable failure to
comply.

I also find that Respondent had been placed on ample notice that it had an ongoing problem
with accumulations. At the time of his inspection, Roberts viewed the violation history for the
previous 24-month period and noted that the mine had previously been cited for 164 violations of
the cited standard during that time. He testified credibly that these violations were discussed with
the Respondent in pre- and post-inspection conferences, in addition to informal meetings during the
course of the inspection period. Respondent was thereby placed on notice that additional compliance
efforts were necessary. See Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (Jan 1997).

Within the above framework of evidence, is clear that the violation cited in Order No.
6673443 is proven as charged, and that it was the result of Respondent’s unwarrantable failure.

Order Number 6673462

This order, also issued pursuant to section 104(d)(2) of the Act, alleges a “significant and
substantial” violation of the mine operator’s roof control plan under the standard at 30 C.F.R. §
75.220(a)(1) and charges as follows:

The mining of perimeter cut #25 in the previously mined room developed off Entry
8@ 42+50', MMU 014-0, was not compliant with the approved roof control plan.
The perimeter cut was mined in a manner that not only holed the cut through into the
preceding perimeter cut but also eliminated the required 5' wide coal fender between
the perimeter cuts.

This pillar recovery effort resulted in only a small “stump” of coal between the
perimeter cuts and the rib line of the room. This small fender has subsequently
crushed out due to its reduced width and the weight of the roof strata. The mining
method at the cited location presented a distinct roof fall hazard to the continuous
mining machine operator.

The relevant pages of the mine operator’s approved roof control plan are set forth in
Appendix A, attached hereto and exhibit G-8.

The roof control plan (“Plan”) stated in relevant part as follows with respect to engaging in
perimeter mining:

1.This plan can be seen on sketches on pages 20-24 [Appendix A pp.
5-9].

*      *      * *

5.If a perimeter cut inadvertently holes into the preceding cut, the miner
machine will immediately stop and pull out of this cut and proceed to
the next cut (Ex. G-8 p.24 and Appendix A p.4).

The Plan included a sketch that illustrates the manner in which the continuous mining
machine is to make the perimeter cut, as well as the requirement that the remaining coal fender must
be equal to or greater than five feet in width (Ex. G-8 pps. 22 and 27 and Appendix A pps.2 and 7).
The coal fender is the remnant of coal left between two perimeter cuts to help support the roof,
which is illustrated as the triangle shape on the Plan ( Appendix A p. 7).

Inspector Roberts testified that this sketch depicted a cut similar to the one at issue. He
further testified that a five-foot coal fender is the minimum amount of coal necessary to adequately
support the immediate and main roof. The Plan also included a sketch illustrating a perimeter cut
where the remaining coal fender is configured differently in light of the angled headings. In this
illustration, the fender was required to be equal to or greater than five feet at the back end of the
fender or six feet at the front end. (Ex. G-8 p. 29 and Appendix A p. 9).

Roberts explained that while he was performing a five-day spot inspection in unit four, he
noticed a large number of timbers and cribs at the mouth where there typically should only be three
timbers. This area was immediately adjacent to a frequently traveled shuttle car road. Roberts
observed the missing coal fender and walked around the area to view the condition. Roberts testified
that based on his observation, it was “obvious” that the miner operator had not only holed through
the fender but continued to mine out the remaining portion of the fender toward the rib, leaving only
a small triangular coal stump behind the miner at the front end of the fender. He concluded that this
small stump then crushed out from the weight of the roof leaving no roof support. Roberts explained
that, under the Plan, in the event the miner holes through the fender, the miner operator is required
to immediately cease mining and withdraw the machine from that cut and start a new perimeter cut
if there is one to be made. Roberts opined, however, that since there were no other cuts to be made
in this instance, the operator would have had to back the equipment into the panel entry headings.
Roberts opined that the miner operator apparently did not wish to do this. Based upon his experience
as an equipment operator and a face boss in pillar recovery methods, Roberts opined that the miner
operator had approached the fender at an incorrect angle and cut through the entire fender after
holing through.

I find that the testimony of this highly qualified and experienced mine inspector to be entitled
to prevailing weight and that, therefore, I find the violation to have been proven as charged. In
reaching this conclusion I have not disregarded the arguments presented by Big Ridge attempting
to discredit the expert testimony of Roberts. However, I find those arguments unconvincing. I also
find significant the unexplained absence of first hand testimony from the participants in this incident,
namely the miner operator and the foreman Hawkins.

The Secretary has further alleged that the violation was “significant and substantial.”A
violation is properly designated as "significant and substantial" 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 Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:

In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum 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 injury and (4) a reasonable likelihood that the injury in question will be of a
  reasonably serious nature.

See also Austin Power Co. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986); Southern Ohio Coal Co.,
13 FMSHRC 912, 916-917 (June 1991).

In this regard, I find that a roof fall under the circumstances herein was reasonably likely for
several reasons. First, the removal of the coal fender created an excessively wide roof. Based upon
his background and experience (including as an MSHA Roof Control Specialist), Roberts credibly
testified that excessive widths are the primary cause of roof falls. He explained that the 90-degree
perimeter cut created a four-way intersection, with one leg of the intersection unsupported without
roof bolts. Because the fender had been largely removed, the width of the unsupported area was
significantly increased, exposing miners to a roof fall. I further find that Respondent was aware of
the excessive width and the danger posed because it had installed a substantial number of timber
cribs at this location. When perimeter mining is properly performed pursuant to the Plan the mine
need only to place three timbers (without any cribs) at the mouth of the rooms for roof support and
to alert miners to stay out of the unbolted rooms.

A second factor is that the subject mine has a history of unplanned roof falls in four-way
intersections. Roberts testified that there were 75 unplanned falls from 2005 to the time he wrote the
subject order and approximately 120 falls between 2005 and 2010. Roberts noted that all of the falls
occurred at intersections and primarily four-way intersections. In this case, the removal of the fender
increased the cross-sectional area by a minimum of 20 feet beyond the minimum 68 feet limitation
in the Plan.

According to Roberts, the miner operator was exposed to the hazard at the time the fender
was holed through and while the fender was being removed. He also found that the shuttle car
operators were in this location and also exposed to the hazard. The perimeter cuts were also adjacent
to the active working section near the power center and dump point which were frequented by
foremen. Roberts anticipated that a miner exposed to a roof fall at this location would sustain fatal
crushing injuries since the fall material would typically be six to eight feet thick, the width of the
crosscut and anywhere from 15 feet to 100 feet long. Within the above framework of evidence, I find
that the violation was “significant and substantial” and of high gravity

I further find that the violation was the result of the operator’s unwarrantable failure. Big
Ridge had been, for one thing, recently placed on notice of the specific perimeter mining
requirements of the Plan. Inspector Roberts had issued Citation Number 666740 on October 11,
2007, which involved facts similar to the situation herein. In that case Roberts observed a fender
holed through in two locations in violation of section 75.220(a)(1). Like the present order, this action
violated item 5 of the Plan, since the continuous miner failed to stop and withdraw from the cut. To
terminate that citation Roberts required that production personnel be re-instructed in the
requirements of the same Plan provision at bar.

Based on his background and experience as a section foreman, and his knowledge of the
subject mine, Roberts opined that it was absolutely key that Hawkins ensure proper maintenance of
the fender in this location to protect the miner operator and shuttle car operators during the mining
process. I further find that section foreman Hawkins was grossly negligent. Roby Podoriscki, a mine
manager for Big Ridge, explained that a hole through typically occurs due to an inexperienced miner
operator, an incorrect angle of the cut, or a misdirected sight line. Podoriscki acknowledged that the
foreman is ultimately in charge of directing the miner cuts. He testified however that Hawkins was
moving cables on a continuous miner while the fender was being obliterated in this instance. While
there is some evidence that Hawkins may have been suspended or fired specifically for allowing this
incident to occur, I do not consider that evidence herein in determining negligence as it is contrary
to social policy to discourage the taking of steps in furtherance of added safety. See Rule 407,
Federal Rules of Evidence. In any event, it is the well established law that foremen are held to a high
degree of care and that their actions are imputable to the mine operator.

Citation Number 6667476

This citation alleges a “significant and substantial” violation of the standard at 30 C.F.R. §
75.400 and charges as follows:

Combustible material in the form of hydraulic oil, automatic transmission fluid and
oil/fluid-saturated coal dust has been permitted to accumulate immediately beneath
the exhaust pipe of the non-permissible Alpha diesel-powered mantrip, Co. No. MT-08. The accumulations are approximately 1/8" to 1/4" in depth along the entirely of
the enclosed 9" x 6' tunnel that houses the drive shaft and exhaust pipe. The exhaust
pipe is neither wrapped with heat resistant material nor otherwise shielded from
contact with these accumulations of combustible material.

The cited standard, 30 C.F.R. §75.400, provides that “[c]oal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up
and not be permitted to accumulate in active workings, or on diesel- powered and electric equipment
therein.”

Inspector Roberts issued this citation on November 23, 2007, when he observed what he
found to be accumulations of combustible fluids and coal on a mantrip. Roberts explained that he
observed a combination of hydraulic oil, automatic transmission fluid and motor oil, with oil
saturated coal dust, immediately beneath the exhaust pipe of the non-permissible diesel powered
mantrip. According to Roberts, the fluids and coal were in the chamber or tunnel that runs down the
center of the machine from the rear of the engine along the drive shaft and exhaust pipe toward the
rear of the vehicle. Using a tape measure in the tunnel area Roberts estimated the accumulations to
be approximately 1/8 to 1/4 inches deep along the entire area. I find the expert testimony of Inspector
Roberts to be credible and sufficient to prove the violation as charged.

The Secretary also maintains that the violation was “significant and substantial”. The mantrip
was located on the surface and available for transport underground. It carried 14 miners in and out
of the mine and, they would, according to Roberts, be affected from smoke in the event of a fire. He
designated the violation as “significant and substantial” on the basis that the combustible materials
were in close proximity to the exhaust. He opined that the surface temperature of the subject exhaust
pipe while the vehicle was in use would be sufficient to ignite the material, or could intensify a fire
that started at another location on the machine. Roberts was particularly concerned in this instance
since the exhaust pipe on this vehicle was not wrapped with heat shielding, thus exposing the fluid
to the exhaust heat.

While there appears to be no dispute that the various substances cited were combustible at
some temperature I find that the Secretary has failed to sustain her burden of proving the
temperatures at which these materials would ignite and the temperatures to which they were exposed.
The opinion testimony of Inspector Roberts that these materials would ignite from the heat of the
exhaust is simply ipse dixit i.e. based on a bare assertion resting solely on the authority of the
individual expert, and is insufficient without some underlying factual basis. Without that essential
foundation, there is no basis to determine the likelihood of an event or the likelihood of injuries.
Accordingly, I do not find that the Secretary has met her burden of proving that the violation was
“significant and substantial.” Rather, the violation was of lesser gravity.

I find however that the violation was the result of operator negligence. The credible evidence
is that the mixture of combustible fluids and coal had existed for several shifts, was extensive and
was obvious. According to Roberts, the vehicle had an access door that allowed an examiner or
vehicle operator to simply look through to identify the condition. Roberts discovered the condition
in this way. Roberts also explained that there had been an ongoing issue with cleaning accumulations
on equipment. In the previous 18-months there had been more than 150 citations of the standard at
issue. Moreover, Roberts testified that he had had discussions with the mine’s safety personnel,
including Bob Clarida, Bart Schiff, Tom Patterson, (safety director), Mark Cavinder (business unit
manager), and Ricky Phillips, (mine superintendent) and that a significant topic of these discussions
was the accumulations on equipment and equipment clean up programs. This evidence clearly
demonstrates at least a moderate degree of negligence.

Citation Number: 6674611

As amended, this citation alleges a “significant and substantial” violation of the standard
at 30 C.F.R. § 75.512 and charges as follows:

“Except when testing the machinery, guards shall be securely in place while
machinery is being operated.” The face plate (guard) on the #5 (995 volt) breaker
had been damaged. The face plate had been distorted, opening a 2 inch by 6 inch gap
down the side of the breaker. Exposing bare conductor lead 3 inches inside the
panel.

The cited standard provides as follows:

All electric equipment shall be frequently examined, tested, and properly maintained
by a qualified person to assure safe operating conditions. When a potentially
dangerous condition is found on electric equipment, such equipment shall be
removed from service until such condition is corrected. A record of such
examinations shall be kept and made available to an authorized representative of the
Secretary and to the miners in such mine.

Inspector Bobby Jones had been an MSHA inspector for four years, specializing in coal mine
safety and health, but also has 32 years of underground coal mine experience in many capacities.
Jones testified that he issued the citation at bar on August 8, 2008, after observing a two inch by six
inch opening on a breaker cover panel that exposed the inner conductors of a 995 volt breaker.
According to Jones, the breaker controlled a circuit used to power the continuous miner and,
although a cable was not plugged into the outlet supplied by the circuit, the upstream, or back side,
of the breaker was still energized. The 995 volt circuit controlled by the breaker was but one circuit
and outlet that were part of a larger assembly i.e. the number five transformer used to supply
electrical power throughout the production unit. Other circuits and outlets of varying voltages were
supplied by and located on the transformer and were in close proximity to the damaged breaker face
plate. These other circuits supplied electrical power to equipment such as roof bolters, feeder
breakers, chop saws, and microwave ovens. According to Jones, there were numerous pieces of
equipment deriving power from the transformer so there were numerous electrical cords leading from
the transformer, ranging in size from one-and-a-half inches in diameter for a roof bolter cable to
three inches in diameter for a continuous miner cable.

According to Jones, in addition to plugging and unplugging the cables that supplied the
various pieces of equipment, miners entered the transformer area to perform a number of other tasks
throughout the day, including pre-shift and on-shift examinations, gas checks, breaker resets, and
heating up their meals, either with the help of a microwave oven or, because the transformer is warm,
the transformer itself. Jones testified that miners also used chop saws plugged into the transformer
to cut drill steels generally eight to ten feet in length. There is no dispute that steel readily conducts
electricity when in contact with energized electrical components, such as those exposed by the
damaged breaker panel. Based on the credible testimony of expert witness Bobby Jones, I find the
violation has been proven as charged.

The Secretary also argues that the violation was “significant and substantial.” In this regard,
Inspector Jones testified that numerous electrical cables, some as large as three inches in diameter,
were present on the ground around the damaged breaker panel, along with rocks and chunks of coal.
There is no dispute these objects presented tripping and stumbling hazards. Jones testified that the
floor of underground coal mines is uneven and littered with rocks and chunks of coal. Jones also
testified that there was no ambient lighting in the area and that the miners’ cap lights served as the
sole source of light. Thus, the presence of numerous cables, rocks, and chunks of coal in an unlit area
with an inherently uneven surface made it reasonably likely that, given continued normal mining
operations, a miner would trip and come into contact with the energized conductors exposed by the
damaged breaker panel. Jones further testified, without contradiction, that contact with 995 volt
electrical current would most likely result in electrocution. Clearly, the violation was “significant
and substantial”and of high gravity.

In reaching this conclusion, I have not disregarded Respondent’s assertion that its policy
requiring miners to wear gloves and boots when working with the electrical cables diminished the
likelihood of an accident. However, according to the credible testimony of inspector Jones, the
gloves required by Respondent’s glove policy were plain leather gloves, not voltage-rated electrical
protective gloves. Such gloves are not designed to protect the wearer against electrical current but,
if clean and dry, may have afforded a small, but indeterminate amount of electrical protection.

Respondent also asserts that miners’ use of rubber boots reduced the likelihood of
electrocution. However, both Jones and Barras testified that rubber boots do not provide protection
from electrocution if a miner falls while in contact with the electrical current, as uninsulated parts
of the miner’s body, such as knees, backs, or shoulders would come into contact with the ground and
thereby allow the electrical current to flow through and exit his body.

Respondent further argues that the presence of rubber mats around the transformer also
provided miners protection against electrocution. However, the mats used by Respondent were not
true electrical protective equipment, rather they were pieces of an old conveyor belt that was no
longer suitable for its intended purpose. These mats were not subject to periodic testing and, as
Jones testified and Barras admitted, were not designed to serve as electrical protective equipment
nor were they tested or evaluated to determine quantitatively the electrical protection, if any, they
afforded. The small size of the mats also reduced or negated any electrical protection they would
provide in the event of a fall. The mats, which were approximately two feet square, would not fully
prevent a fallen miner from contacting the earth, thus providing a path for the electrical current to
travel to ground. I also note that since Barras was not present during the inspection and did not
observe the conditions giving rise to the violation, I give his testimony that an accident was unlikely
but little weight.

Jones determined that Respondent exhibited a moderate degree of negligence with respect
to the violation. I find, based on the credible evidence that the condition was obvious and that the
section foreman would have been in the transformer area to perform the on-shift inspection. Based
on his observation of the breaker the previous day, Jones credibly estimated that the condition
existed for up to three shifts. Under the circumstances, I find the operator chargeable with moderate
negligence.

Citation Number 6674618

This citation alleges a “significant and substantial” violation of Safeguard Notice No.
7583088 and charges as follows:

Two mantraps were observed transporting roof bolting materials in the mantrip
with the miner. DT-18 had 12 bundles of 4 foot roof bolts (5 bolts to the bundle)
standing up in the seat. DT-04 had 7 bundles of 4 foot roof bolts (5 bolts to the
bundle) standing up in the seat, 28 chain in the passenger seat behind the driver.

As amended, the cited safeguard notice, No. 7583088 issued by former MSHA inspector
John Winstead on July 12, 2006, provides as follows:

DT 15-160 was observed coming out of the mine with a ram car
bed jack adjacent to the driver unsecured in the vehicle. This is a
notice to provide safeguards requiring that supplies or tools, except
small hand tools or instruments, should not be transported with
men at this mine.

On August 11, 2009, Inspector Jones accompanied underground by Respondent’s
representative Donnie Hughes, observed two diesel-powered mantrips designated DT-18 and DT-04,
transporting materials in the passenger compartment along with miners. Mantrip DT-18, which
contained a driver and a passenger, had twelve bundles of four-foot roof bolts standing up in the rear
seat behind the driver. Each bundle contained five roof bolts, with each bolt weighing approximately
two pounds. Mantrip DT-04 contained seven bundles of roof bolts and a bucket of chain in the seat
behind the driver, along with 28 steel chain hangers on the floorboard. Jones issued the citation at
bar based upon the cited safeguard notice.

Respondent argues that the citation at bar was invalid because the safeguard notice upon
which it was based was invalid. More specifically Respondent argues that the nature of the hazard
was not described with the requisite specificity. The Secretary bears the burden of establishing the
validity of the safeguard by showing that the inspector evaluated the specific conditions at the mine
and determined that the safeguard was warranted in order to address an actual transportation hazard.
Southern Ohio Coal Co., 14 FMSHRC 1, 14 (Jan. 1992). A safeguard must identify with specificity
the nature of the hazard involving the transportation of miners or materials at which it is directed.
Southern Ohio Coal Co., 7 FMSHRC 509, 512 (April 1985). See also Rochester & Pittsburgh Coal.,
14 FMSHRC 37 (Jan. 1992).

Indeed, even MSHA’s Program Policy Manual (“PPM”), Vol. 5 Subpart O, requires that a
valid safeguard should identify the nature of the hazard to which it is directed. The PPM states as
follows:

Where an inspector determines that a safeguard notice is necessary in order to
address a transportation hazard, the specific safeguard requirements are to be
determined by the inspector based on the actual, specific conditions or practices that
constitute a transportation hazard at that particular mine. The inspector should
document either in the notice or in the inspector’s notes the conditions which provide
the basis for the issuance of the safeguard notice. The safeguard notice should also
identify the nature of the hazard to which it is directed. For example, if a notice to
provide safeguards is issued to require a specific minimum clearance distance
between pieces of haulage equipment, the safeguard should also include a statement
of the hazards that the clearance distance is intended to prevent, such as injury to
equipment operators from pieces of rib coal which could be knocked loose or, if the
area is a walkway, injury to pedestrians by the equipment due to insufficient
clearance.(emphasis added).

The Secretary’s argument that a description of the condition is, in effect, a description of the
hazard is contrary to both the program policy manual and commission case law. Clearly, the
safeguard notice at issue did not identify with specificity the nature of a hazard to which it was
directed and that Notice is therefore invalid. Accordingly, the citation at issue based on that Notice
is also invalid and must be vacated.

Significantly, both inspectors also admitted at hearings that the subject Notice of Safeguard
identified only the condition and not the hazard, if any, to which it was directed. Former Inspector
Winstead testified in this regard in the following colloquy at hearings:

Q.        Sir, what you described for me was the condition you observed, right? The bed
jack was unsecured, that’s the condition, correct?

A.        Yes                                                                                                     (Tr. 426)

*      *      * *

Q.        But your safeguard does not also define a hazard, does it?

A.        No.                                                                                                      (Tr. 427)

Inspector Jones reviewed the same Notice of Safeguard that he relied upon when he issued
the citation at bar and also admitted that no hazard was identified in that the Notice. He testified in
this regard in the following colloquy:

Q.        So there is no hazard defined in this safeguard as it’s written?

A.        As it’s written, no                                                                               (Tr. 407)

Citation No. 6673743

This citation, issued pursuant to section 104(a) of the Act alleges a “significant and
substantial” violation of the standard at 30 C.F.R. § 75.503 and charges as follows:

The #872 Stamler coal hauler being used on the No. 3 unit was not being maintained
in approved condition. An opening in excess of .005 inches was present under the
lid of the operators side tram motor.

The cited standard provides that “[t]he operator of each coal mine shall maintain in
permissible condition all electric face equipment required by §§ 75.500, 75.501, 75.504 to be
permissible which is taken into or used inby the last open crosscut of any such mine.”

MSHA Inspector Dean Cripps has a degree in electrical engineering technology and
specializes in electrical installations in coal mines. He has additional experience as a coal miner. On
October 12, 2008, Cripps issued the citation at bar after he inspected the number 872 stamler coal
hauler and found an excessive opening under the lid of the tram motor. He explained that the
maximum opening permitted is .004 of an inch, and the opening in this instance was .022. There
is no dispute that the excessive opening was a violation of § 75.503. In this regard, Cripps testified
that the specific hazard posed by the violation was the ignition of methane. He explained that the
coal hauler transports coal from the continuous mining machine to the feeder and stops underneath,
and in contact with, the tail of the continuous miner while it empties coal onto the hauler. According
to Cripps, the vehicle, therefore, regularly operates close to the coal face where methane may be
liberated. He noted however, that if the vehicle is maintained in permissible condition, sparking
within the various compartments on the machine will not cause a methane ignition.

Cripps explained that when the subject lid to the tram motor compartment is shut, and the
opening is within permissible parameters, an explosion proof environment is created within the
motor compartment. Although methane may still enter the enclosure, the flame and the heat resulting
from an explosion inside the container would not ignite methane that may be present outside of the
enclosure. The explosive forces and gases are sufficiently cooled by the time they exit through the
small permissible opening and across the flame vent or flame arresting path (i.e., the joint between
the lid and the motor). Because of this cooling process, there is insufficient heat to ignite methane
outside the compartment.

According to the credible testimony of Inspector Cripps, the subject hauler is used inby the
last open crosscut where coal is being extracted and methane is liberated. When the methane is
liberated the ventilation air carries it over the miner and the hauler. He further noted that the presence
of coal dust, makes methane more explosive in that when the dust generated by the continuous miner
and is mixed with methane it can lower the explosive range of methane. According to the inspector,
the hauler is also exposed to methane as it travels in the last open crosscut or the return entry to and
from the feeder and continuous miners. Cripps testified credibly that the presence of methane and
its exposure levels are unpredictable. He also noted the subject mine is known to liberate in excess
of two million cubic feet of methane in a 24-hour period, which is why it is on a 5-day spot
ventilation inspection regimen.

Cripps further testified that sparking or arcing occurs in the tram motor compartment in its
normal operation. The motor has brushes and commutators that create sparking and arcing while
tramming. I find that Cripps’ testimony is entirely credible and established that it was reasonably
likely for an ignition and serious injury to occur in light of (1) the excessive opening, (2) the arcing
in the tram motor compartment, (3) that the subject mine was known to liberate large quantities of
methane, and (4) the hauler regularly operated near the face and in the last open crosscut where
methane is liberated from the coal. The violation was accordingly, “significant and substantial”and
of high gravity.

The Secretary also maintains that the violation was the result of moderate negligence. In this
regard I find from the credible evidence that the opening was easily identified that qualified
electricians were permitted to perform work on this vehicle and that the compartment lid was bolted
on the machine and the electrician who installed the lid did so while gob was in the compartment
preventing it from shutting flush. Despite the obvious nature of the condition, Respondent failed to
timely correct it and permitted the coal hauler to operate in face areas. I find accordingly that the
violation was the result of moderate negligence.

Civil Penalties

Under Section 110(i) of the Act, the Commission and its judges must consider the following
factors in assessing a civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operators ability to continue in
business. 

Big Ridge is a large size mine operator and there is no evidence that the penalties imposed
herein will affect its ability to remain business. Big Ridge had a significant history of violations in
the 24 months preceding each of the charging document at issue. There is no dispute that the
violations were abated in good faith. The gravity and the negligence history have been previously
discussed.

ORDER

Citation No. 6674618 is hereby vacated. Charging Documents Nos. 6673440, 6673462,
6674611 and 6673743 are hereby affirmed as issued and Big Ridge Inc., is directed to pay civil
penalties of $5,600.00, $60,000.00, $4,000.00 and $2,500.00 respectively for the violations charged
therein within 40 days of the date of this decision. Citation No. 6667476 is affirmed but without
“significant and substantial” findings and Big Ridge Inc., is directed within 40 days of the date of
this decision to pay a civil penalty of $8,000.00 for the violation charged therein. Pursuant to the
motion to approve settlement filed herein, Big Ridge is further directed within 40 days of the date
of this decision to pay civil penalties of $272, 961.00. The Secretary has vacated Citation Nos.
6668239 and 6683077.

Gary Melick

Administrative Law Judge

202-434-9977

Distribution:

Tyler Mcleod, Esq., and Beau Ellis, Esq., U.S. Department of Labor, Office of the Solicitor, 1999
Broadway, Suite 800, Denver, CO 80202

Arthur M. Wolfson, Esq., R. Henry Moore, Esq., and Jason P. Webb, Esq, Jackson Kelly PLLC,
Three Gateway Center, 401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222

/to