American Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

MSHA litigated eight violations involving American Coal's large underground Galatia Mine after the parties resolved 32 other violations. Judge Michael E. Zielinski upheld the validity of a mine-specific safeguard requiring loose or dislodged bridge boards to be secured or removed from travelways. He vacated one examination order because MSHA did not prove that the hazardous boards were visible when the examination occurred, but affirmed seven other violations involving bridge boards, mine examinations, muddy escapeway conditions, and combustible trash. Several findings of fatal gravity, high negligence, or unwarrantable failure were reduced because the evidence supported less serious characterizations, while a preshift-examination violation in the gassy mine remained S&S and unwarrantable. The judge assessed $37,300 rather than the $119,684 proposed for the eight contested violations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1403, 75.361(a), 75.362(a)(1), 75.363(a), 75.380(d)(1), and 75.400
• Outcome: One order was vacated, seven violations were affirmed with modifications, and total penalties of $37,300 were assessed.
• Key point: A valid mine-specific bridge-board safeguard supported several violations, but MSHA still had to prove when hazards existed, what examiners should have seen, and the gravity and negligence of each condition.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

202-434-9981/tele 202-434-9949/fax

October 21, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

AMERICAN COAL COMPANY,

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2009-134

A.C. No. 11-02752-168665 -01

Docket No. LAKE 2009-135

A.C. No. 11-02752-168665 -02

Galatia Mine

DECISION

Appearances:  Karen Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, on behalf of the Secretary of Labor;

Jason W. Hardin, Esq., Fabian & Clendenin, Salt Lake City, Utah, for American
Coal Company.

Before:            Judge Zielinski

These cases are before me on Petitions for Assessment of 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. § 815(d). The petitions allege that American Coal Company (“AmCoal”) is liable for 40
violations of the Secretary’s Mandatory Safety Standards for Underground Coal Mines,

and
propose the imposition of civil penalties in the total amount of $224,354.00. A hearing was held
in Evansville, Indiana, and the parties filed briefs after receipt of the transcript. Prior to and in
the course of the hearing the parties settled 32 of the violations. A Decision Approving
Settlement was entered on July 18, 2011, disposing of those violations and 93 other violations in
six additional Commission dockets. Remaining at issue are eight violations for which the
Secretary has proposed penalties in the amount of $119,684.00. For the reasons that follow, I
find that AmCoal committed seven of the violations, and impose civil penalties in the total
amount of $37,300.00.

Findings of Fact - Conclusions of Law

At all times relevant to these proceedings, AmCoal operated the Galatia Mine, an
extremely large underground longwall coal mine, located in Saline County, Illinois.

Galatia is a
“gassy” mine, having liberated over one million cubic feet of explosive methane gas in a 24-hour
period, and is subject to 5-day spot inspections under the Act.

For many years, water has
drained into areas of the mine, softening the fire clay mine floor, and making it difficult to
maintain roadways. Various steps were taken to keep the roadways passable, including pumping
water, depositing gravel and rock dust, and installing wooden “bridges.” Bridges have been used
for many years. Since about 2005, they have been made of three layers of rough-sawn lumber,
bolted together.

Woven steel cable loops are attached to facilitate installation. A photograph of
new bridges, ready for installation in the mine, was introduced into evidence. Ex. R-78. Bridges
were placed in particularly soft locations, and were often covered with gravel. Over-traveling
mobile equipment pressed them into the mine floor.

A piece of heavy mobile equipment, e.g., a ram car hauling supplies, can place
considerable stress on a wooden bridge, and is capable of breaking boards or dislodging them
from the bridge structure. In 1990, when Kerr-McGee Coal Corporation operated Galatia, a fatal
accident involving a dislodged bridge board occurred. A ram car rode over a dislodged 12-foot-long bridge board that was lying in the travelway parallel to the direction of travel. As the car’s
forward wheel finished traversing the board, the end of the board was pressed down into the mine
floor, cantilevering the opposite end up into the air. As depicted in a photograph, the operator’s
compartment of that particular type of ram car was directly behind the wheel, and about 12 feet
away from it. Ex. R-79. The elevated end of the board entered the compartment and impaled the
operator as the car continued to move forward. MSHA investigated the accident, and issued a
report. Ex. R-36.

Pursuant to section 314(b) of the Act, and the Secretary’s regulations, 30 C.F.R. § 75.1403, authorized representatives of the Secretary may issue safeguards to address hazards
related to the transportation of men and materials at a particular mine. The mine operator is
obligated to comply with a safeguard, violations of which may subject it to citations or orders
issued pursuant to section 104 of the Act. As a result of the aforementioned accident, Notice to
Provide Safeguard No. 3538483 was issued on August 17, 1990. It states, in pertinent part:

The established rubber-tired (off track) haulage roadway located in the No. 1 entry
of the 1st East Longwall tailgate entries was not maintained to allow safe passage
of miners and material. Numerous pieces of bridging lumber (2-1/2" x 10-1/2" x
12'-14'), which were used to stabilize the mine floor, were dislodged or protruding
from the mine floor along the travel entry. This is a notice to provide safeguards
requiring all bridging lumber used on the mine floors be secured or that loose and
dislodged pieces of lumber be re-secured or removed from the travelway.

Ex. G-A.

Underground coal mines must be inspected by the Secretary’s Mine Safety and Health
Administration (“MSHA”) four times each year.

Two veteran MSHA inspectors were involved
in issuing the subject violations, both of whom were familiar with conditions in the Galatia Mine
and had considerable experience as inspectors and miners. Steven Miller worked as an MSHA
inspector for 18 years before becoming a supervisor in 2009, and worked in the mining industry
for 13 years prior to joining MSHA. He began inspecting the Galatia Mine in 1991, and had
inspected it many times before the subject inspections in May and July of 2008. Keith Roberts,
an MSHA inspector and coal mine health and safety specialist, had worked for MSHA for 12 years, and had also inspected the Galatia Mine. Prior to joining MSHA, he had worked for 15 years as a staff safety engineer at the Galatia Mine for AmCoal’s predecessor Kerr-McGee.
He also had worked for 11 years as a miner, section foreman and training and labor specialist for
Old Ben Coal Company.       

At about 7:45 p.m. on May 1, 2008, Miller received a phone call from an unidentified
miner at Galatia who related a series of complaints about conditions in the mine, including that
the headgate and tailgate travelways at what was then called the New Future portal were nearly
impassable because of mud and water. The employee reported that equipment was being pushed
through the travelways and he was concerned about the safety of the miners. He also reported
that when MSHA was not present, the operation was “run wild.”

Miller reported the call, typically referred to as a “code-a-phone,” to his supervisors, who
instructed him to get Roberts and investigate the complaint.

Roberts had been at the mine that
day, and had returned to the MSHA field office to complete some paperwork. They proceeded
to the mine, reviewed the books and mine map, dressed, and went underground about 10:20 p.m.
As they were walking the main travel road they encountered two members of AmCoal’s
management team, and gave them a copy of the “sanitized” code-a-phone complaint. They
proceeded inby and encountered Gary Hamby, an AmCoal shift manager, on his way out of the
mine, and gave him a copy of the complaint. Hamby continued outby to take two miners to the
bottom, and said that he would return and give Miller and Roberts a ride. They continued to
walk inby on the South Sub-Main primary intake escapeway/travelway and arrived at an
“underpass,” between crosscuts 11 and 13 where the roadway dipped down approximately four
feet to clear an overcast for the belt.

The general area of the mine was wet, and standing water
had collected in the underpass to a depth of nearly a foot. Miller and Roberts observed loose
bridge boards in the travelway, in apparent violation of the previously mentioned safeguard, and
initiated enforcement action. Miller issued an order pursuant to section 104(d) of the Act,
closing the travelway until the hazard presented by the boards was abated.

Order Nos. 6673958 and 6673961

Order No. 6673958 was issued at 11:30 p.m., on May 1, 2008, pursuant to section
104(d)(2) of the Act.

It alleges a violation of 30 C.F.R. § 75.1403, and charges Respondent with
failing to comply with Notice to Provide Safeguard No. 3538483. The violation was described in
the “Condition and Practice” section of the Order as follows:

The South Sub-Main Primary Intake Escapeway/Travelway was not being
properly maintained. Bridging lumber being used on the mine floor, from
crosscut number 11 to crosscut number 13 were not secured nor removed from the
mine floor. The lumber was protruding up out of the mine floor and ranged in
length from 7 feet to 2 feet, width 6 inches to 12 inches and 2 inches to 6 inches in
thickness. The travelway is traveled by management personnel each operating
shift. This condition is a violation of a Notice to Provide Safeguard(s) No.
3538483 dated, 8/17/1990, requiring that all bridging lumber used on the mine
floors to be secured or that loose and dislodged pieces of lumber be resecured or
removed from the travelway. This condition should have been observed by mine
management who travel this area. Loose lumber was floating on top of the water
in some of these areas.

Ex. G-A.

Miller determined that it was highly likely that the violation would result in a fatal injury,
that the violation was significant and substantial (“S&S”), that one person was affected, and that
the operator’s negligence was high. The citation was issued pursuant to section 104(d)(2) of the
Act, and alleged that the violation was the result of the operator’s unwarrantable failure to
comply with the mandatory standard. A civil penalty, in the amount of $21,993.00, was
proposed for this violation.

AmCoal challenges the order on a number of grounds. It contends that: the safeguard is
invalid for lack of specificity and that it was misapplied to the alleged conditions; there was no
hazardous condition; an injury was unlikely to result; the violation could not be reasonably
expected to result in a fatal injury; its negligence was low such that the orders should not have
been issued pursuant section 104(d); and the assessed penalty is excessive.

The Validity of the Safeguard

In Cyprus Cumberland Res. Corp., 19 FMSHRC 1781, 1784-85 (Nov. 1997), the
Commission reiterated the law applicable to a determination of the validity of a safeguard.

Under section 314(b) of the Mine Act, the Secretary may issue “[o]ther
safeguards adequate, in the judgment of an authorized representative of the
Secretary, to minimize hazards with respect to transportation of men and
materials.” 30 U.S.C. § 874(b). In order to issue such a safeguard, an inspector,
must determine that there exists an actual transportation hazard not covered by a
mandatory standard and that a safeguard is necessary to correct the hazardous
condition. Southern Ohio Coal Co., 14 FMSHRC 1, 8 (January 1992). (SOCCO
II). He must also specify the corrective measures an operator must take. The
Commission reviews the Secretary’s issuance of a safeguard under an abuse of
discretion standard.

The inspector’s decision to issue a safeguard must be based upon “his evaluation of the
specific conditions at a particular mine and on his determination that such conditions create a
transportation hazard in need of correction.” SOCCO II, 14 FMSHRC at 11-12. A safeguard
“must identify with specificity the nature of the hazard at which it is directed and the conduct
required of the operator to remedy such hazard.” Southern Ohio Coal Co., 7 FMSHRC 509, 512
(Apr. 1985) (SOCCO I). It is the Secretary’s burden to prove the validity of a safeguard.
SOCCO II, 14 FMSHRC at 13-14. While the language of a safeguard, which may be issued
without consulting with representatives of the operator, must be narrowly construed, the
Secretary’s authority to issue a safeguard is interpreted broadly. Cyprus Cumberland, 19
FMSHRC at 1785; SOCCO I, 7 FMSHRC at 12.

AmCoal argues that the safeguard does not identify with specificity the particular hazards
it was intended to address. It contends that an operator needs clear notice of an inspector’s
rationale in issuing a safeguard and the specific hazards that might befall miners so that it can
ensure that it does what is necessary to comply. These same arguments, and others, were raised
by AmCoal in cases pending before other Commission Administrative Law Judges. Those
Judges rejected AmCoal’s arguments and affirmed the validity of Notice to Issue Safeguard
3538483.

I also reject AmCoal’s challenge to the safeguard.

AmCoal seizes upon language from SOCCO I and argues that a safeguard must identify
particular and specific hazards, e.g., specify the precise mechanics of how a piece of loose
bridging lumber could result in an injury to a miner. I reject that argument. While the language
imposing required conduct on an operator must be narrowly construed, the Secretary’s authority
to issue a safeguard is interpreted broadly. This safeguard identifies the hazardous condition it
was designed to address; “Numerous pieces of bridging lumber (2-1/2" x 10-1/2" x 12'-14') . . .
were dislodged or protruding from the mine floor along the travel entry” rendering it unsafe for
the passage of miners and material. Nothing more is required. I find that the Secretary has
established that issuance of the safeguard was not an abuse of discretion.

Much of AmCoal’s argument is grounded on familiar due process concepts, i.e., that it
must have fair notice of what is required to enable it to do what it necessary to comply with the
safeguard. These arguments are more properly addressed to the interpretation of the safeguard,
not its validity. However, the requirements of the safeguard could hardly be clearer. It directs
that “all bridging lumber used on the mine floors be secured or that loose and dislodged pieces of
lumber be re-secured or removed from the travelway.” I find no ambiguity in that language and,
with limited exceptions, AmCoal points to none.

I find that Notice to Issue Safeguard No. 3538483 is valid.   

The Violation

There is no significant dispute about the presence of loose bridge boards in the travelway,
ranging in length from two to seven feet. AmCoal does not contend that the boards were not
present, as described in the order and by Roberts and Miller in their testimony and notes.
Hamby, who was with Miller and Roberts when the order was issued, testified that he didn’t see
any boards sticking up, and the boards that he saw didn’t present a hazard. Tr. 390-91, 409. He
confirmed that there was a seven-foot board, but said it was laid up on a rib. Tr. 409-10. I find
that there were loose and dislodged bridge boards in the travelway, as described by Miller and
Roberts.

AmCoal argues that the safeguard was written too broadly, has been enforced
inconsistently, and should not have been applied to those particular boards because they did not
present the same hazard as the condition that led to the issuance of the safeguard.

Essentially, it
argues that the safeguard should be interpreted restrictively as applying only to loose or
dislodged bridge boards that are the approximate length of the board involved in the 1990
fatality, i.e., 10-12 feet.

Stephen Willis, AmCoal’s manager of health and safety, did not see the
condition as cited, but opined that the boards referred to in the order did not pose the type of
hazard that resulted in the 1990 incident. Tr. 287. He also described the configurations of
different types of mobile equipment that used the travelway, and expressed his opinion that an
incident like the 1990 fatality was highly unlikely to result from the presence of the cited boards.
Tr. 288-93.

The safeguard was, indeed, written broadly. It covers all loose or dislodged bridge
boards, and requires that they be secured or removed from travelways. The hazards presented by
loose boards in travelways are not restricted to the specific circumstances of the 1990 incident.
Miller and Roberts explained that there were several ways that a board could cause serious
injury, including becoming wedged against a rib, or flipping up into an operator or passenger
compartment. These were not fanciful speculations. Especially at the underpass, mobile
equipment was subject to considerable sideways movement, both intentional and unintentional.
Vehicles had to travel up a grade, gaining approximately four feet in elevation before reaching
the established roadway height at the next crosscut, roughly 100 feet away. In
watery/muddy/slurry conditions, heavy equipment such as ram cars had to be maneuvered side-to-side to gain enough traction to climb the grade. Tr. 44. Hamby agreed that in such conditions
equipment had to “worm and squirm” to get through. Tr. 380. Willis confirmed that heavy
equipment would have to be maneuvered side-to-side. Tr. 277-78. Roberts testified that
equipment had to make a 90-degree turn where the South Sub-Main travelway met the 9th West
headgate travelway, and that equipment operating in wet, soft, muddy conditions can “fishtail a
lot or slide a lot.” Tr. 213. That movement, particularly in slippery, deeply rutted conditions,
could result in loose pieces of lumber being pushed against a rib, into the side of a deep rut, or
into mud built up along a rib, a condition he observed six days later, as noted infra. Such pieces
of lumber, of any appreciable length, e.g. four-seven feet, could enter the operator or passenger
compartment of a piece of mobile equipment resulting in injury to a miner.

There were several different pieces equipment that used the travelway, including, ram
cars, scoops, tractors, golf carts, mantrips and shield movers. The varying configurations of the
vehicles, particularly, the locations of operators and/or passengers, presented different potentials
for injuries to miners caused by loose lumber. Tr. 45, 88, 97, 230-32. Mantrips, carrying as
many as 16 miners, have open sides. A piece of lumber stuck in mud on the miner floor, or
along a rib or the side of a rut, could enter the operator or passenger area of such a vehicle,
especially if it was sliding or turning in slippery conditions. Tr. 88, 236. Similarly, miners
riding in golf carts are exposed to injuries from loose lumber. While they most likely would not
suffer an impalement like in the 1990 incident, the carts could slide around in ruts left by heavier,
larger equipment, exposing the occupants to pieces of lumber that had been pushed against a rib,
or embedded in mud. Tr. 92, 96. A smaller board could be flipped up by a wheel. Tr. 92-93.

Moreover boards considerably shorter than 12 feet could present an impalement hazard,
as in the 1990 incident. One end of a board seven feet in length, for example, could be pressed
down into the fire clay bottom and the opposite end could remain elevated after the wheel passed
over the board. Roberts testified, and I agree, that he could not rule out the occurrence of an
accident similar to the 1990 incident caused by a smaller board. Tr. 229-30, 236. Following the
1990 accident, steel bar “lips” were welded along the top edge of ram car operator’s
compartments in an effort to prevent boards from riding up the side and entering the
compartment. Tr. 274; Ex. R-79. While the bars might catch a board that was sliding up the low
front wall of the compartment and prevent it from contacting the operator, a board could still
pose a risk of serious injury, and the lip would not catch the end of a board that was at or above
its height.

As noted above, Hamby and Willis expressed opinions that the boards cited in the order
did not present hazards. However, they also agreed that “anything can happen,” that the potential
injuries described by Roberts and Miller were possible, and that neither boards nor other objects
should be in travelways. Tr. 276, 292-93, 298, 390.

To the extent that AmCoal’s “overly broad” argument is addressed to the validity of the
safeguard, I find that it was well within the Secretary’s discretion to issue a safeguard that
addressed the breadth of hazards presented by loose boards in travelways. To have restricted the
safeguard to 10-12-foot-long boards, would not have provided the protection to which miners
were entitled.

AmCoal’s argument that the boards in question did not present hazards, and that the
safeguard should be restricted to only cantilever hazards presented by boards of approximately 12 feet in length, is rejected. It would entail a substantial and unjustified re-writing of the
safeguard. I find that the loose and dislodged boards in the travelway violated the safeguard.

Significant and Substantial

The Commission recently reviewed and reaffirmed the familiar Mathies

framework for
determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC
___, ___ (October 5, 2011):

The S&S terminology is taken from section 104(d) of the Mine Act,
30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if,
based on the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822,
825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103
(5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

. . . .

. . . .

The Commission recently discussed the third element of the Mathies test
in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine
map). The Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by the violation, i.e.,
[in that case] the danger of breakthrough and resulting inundation, will cause
injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove
a reasonable likelihood that the violation itself will cause injury.” Id. The
Commission also emphasized the well-established precedent that “the absence of
an injury-producing event when a cited practice has occurred does not preclude a
determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996)).

The fact of the violation has been established. A measure of danger to safety, a discrete
safety hazard, was contributed to by the failure to re-secure or remove loose and dislodged pieces
of lumber from the travelway, i.e., that a person using the travelway would be injured by the
boards. While some injuries resulting from the violation, e.g., a contusion resulting from a small
piece of lumber being flipped up, might not be reasonably serious, the majority of the injuries
posed by the presence of more lengthy boards that could impale an operator or passenger would
be reasonably serious. As is often the case, the primary issue in the S&S analysis is whether the
hazard contributed to by the violation was reasonably likely to result in an injury.

Miller determined that the hazard was highly likely to result in a fatal injury. AmCoal
challenges both determinations, and argues that the hazard was unlikely to result in an injury and
that any injury would not have been fatal.

Miller and Roberts measured six pieces of bridging lumber that were in the travelway.
The lengths of the pieces were seven feet, six feet, 42 inches, 40 inches, 36 inches and two feet.
Tr. 38; Ex. G-A (notes at 7). The cross-section of the six-foot piece was six inches by six inches.
The two longest pieces presented the more serious hazard. As noted above, under certain
specific conditions, they could result in an impalement injury similar to the 1990 incident, i.e.,
either a fatality or a reasonably serious injury.

As to the likelihood of an injury causing event occurring, the Secretary argues that there
was heavy traffic through the area and that the condition had existed for more than one shift and
would have continued to exist for some time. AmCoal was setting up to mine a new longwall
panel. Mining crews were being transported on mantrips and golf carts and numerous trips to the
set-up area were being made by heavy equipment, all of which had to traverse the wet slippery
conditions at the underpass. AmCoal used shield movers or heavy ram cars to move up to 10
shields per shift, each weighing 15 tons. There is no dispute that there was a high volume of
traffic through the area during the set-up process.

As to the length of time that the condition had existed, there is insufficient evidence to
establish that it had existed for any appreciable length of time prior to the issuance of the order.
However, there is evidence that it would have continued to exist for some time, had it not been
cited.

There is no evidence as to exactly when the boards became dislodged from the bridges.
Miller did not know when the boards had become dislodged. Tr. 49. He testified that, judging
from the number and appearance of the boards, that the damage did not occur on the previous
shift, but had existed for “some time.” Tr. 49, 68-69. However, it is apparent that his conclusion
that the subject condition had to have deteriorated over a period of time greater than a shift or
two was more a reference to the generally poor condition of the travelway at the underpass than
to the presence of the boards. Tr. 49-50, 65. In responding to a question about the length of time
the condition existed, Miller first referred to the road, and then corrected to the boards, before
stating that the condition existed for some time and did not just occur.

Likewise, in addressing
the companion examination order, he explained that the bridge board condition had existed for
“quite some time,” in part by noting that the longwall foreman had told him that conditions were
“too bad to travel out of the [set-up] area,” presumably observations he would have made on his
way into the set-up area at the beginning of the shift. Tr. 62. The conditions that the foreman
had referred to were muddy, rutted roadways, not the presence of loose bridge boards. Tr. 63-64.

There was general agreement that heavy equipment, e.g., a ram car moving a shield or
loaded with rock dust, could do considerable damage to a bridge. Tr. 67, 240, 277-78, 306, 343.
Earlier on the shift, five shields had been moved through the underpass, and four ram cars loaded
with rock and rock dust had traversed it. Tr. 318-20, 400. Any of those pieces of heavy
equipment could have dislodged the boards. While it may have been reasonable to conclude
from the number of board pieces that more than one piece of heavy mobile equipment caused the
damage, the nine ram cars could easily have dislodged and broken those pieces of lumber during
the 4:00 p.m. to 12:00 midnight shift.

As to the appearance of the boards, Miller testified that he recalled that none of the boards
appeared to have been freshly broken. Tr. 68-69. However, it is apparent that Miller had
virtually no recollection about the appearance of the boards, and that his conclusion about their
appearance was, essentially, a deduction from the fact that he had commented in his notes that
the condition had existed for some time. Tr. 66-69. He conceded that there is no reference to the
appearance of the boards in his notes. Tr. 67-69. Hamby testified that he had been through the
area several times earlier on the shift, the last time about two hours before the order was issued,
and had not seen any loose boards. Tr. 390-92. He also opined, referencing notes made by Paul
Vuljanic, an AmCoal project engineer, who was also at the scene and helped to investigate the
alleged violation, that the boards appeared to have been freshly broken. Tr. 385-87; Ex. R-67.

I have serious doubts that even a seasoned inspector like Miller or Roberts could reliably
determine whether a broken piece of wood had been lying in those muddy conditions for one
hour, 12 hours, or longer, based solely on its appearance. The conditions were extremely muddy,
and a freshly broken board that had been lying in the mud could easily be judged to have not
been freshly broken. It is more plausible that a recent break might appear to have been fresh. I find that there is insufficient evidence to justify a finding that the boards had been dislodged on
an earlier shift.

It is likely, however, that the boards would have remained in the travelway for some time.
AmCoal was intent on completing the longwall set-up, and would have continued to send
equipment through the underpass. AmCoal’s examiners conduct a visual inspection; they do not
probe for sub-surface objects. Tr. 359. Muddy boards in those conditions would be very
difficult to see, particularly by an equipment operator who was attempting to navigate the
borderline passable travelway. While the pieces that were “protruding” would have been easier
to spot, passing equipment could push them down into the mud. Following the 1990 incident,
Kerr-McGee, and now AmCoal, continuously train all employees to look for and remove loose or
dislodged bridge boards from travelways. Tr. 224-25, 279, 349. However, it would not be
unreasonable to assume that an operator of mobile equipment attempting to navigate the heavily-rutted, water-filled, muddy slopes at the underpass would be reluctant to stop, or wade back on
foot, to retrieve a loose board, particularly a smaller piece of board that might not be perceived as
a hazard.

To establish the severity of injury, i.e., that it would be fatal, the Secretary relies on the
fact of the 1990 accident, a generalized statement by Roberts that “there have been similar types
of accidents in the industry, not always associated with lumber, but with other types of rigid or
semi-rigid materials,” and Willis’ acknowledgment of an incident in 2003, where a scoop
operator was fatally injured by a piece of PVC water pipe. Tr. 215, 356. AmCoal maintains that
the 2003 incident, which involved a 20-foot long segment of 4-inch diameter PVC water pipe,
with a metal coupling on the end, bears no resemblance to the 1990 incident or the risks
presented by the much shorter pieces of lumber at issue here.

It also points to the fact that there
have been no lost-time accidents attributable to bridge boards at Galatia in the past 20 years,
despite the utilization of hundreds of bridges that suffer continuous, ongoing damage. Tr. 98,
278, 367.

It is apparent that Miller’s determination as to the severity of injury was based, almost
exclusively on the occurrence of the fatality in 1990. As he recorded in his notes: “If an injury
[were] to occur it would be fatal as this mine has had a fatal because of this type of condition.”
Tr. 39; Ex. G-A (notes at 12). The 1990 accident was a highly unusual incident that occurred
under very specific conditions. A 12-foot board was lying parallel to the line of travel of a ram
car, the operator’s compartment of which was directly behind the lead wheel by about 12 feet.
Steel bar “lips” were subsequently welded on the operator’s compartments of all ram cars in an
effort to prevent such boards from entering the compartment. None of the other types of mobile
equipment traversing the area share that ram car’s configuration. The boards at issue here were
no longer than seven feet. Roberts testified that the shorter boards did not present the same
hazard as a 12-foot board, but that one could not “rule out” a fatal accident caused by a shorter
board. Tr. 228-31. I find that, while it is possible that a fatal impalement-type injury might
occur with a seven-foot board, it is unlikely that such an event would occur. The general,
unexplained reference to similar types of accidents, and the dissimilar 2003 incident, do not alter
that conclusion.

Miller and Roberts identified several other potential means by which a board might cause
injury to an operator or passenger, including becoming wedged against a pillar by a sliding or
turning piece of equipment and bowing or bending and snapping into a vehicle such as a mantrip
or golf cart. Again, it would be possible that such an incident could occur. However, it seems
unlikely that those lighter vehicles would bow or bend a six or seven foot board, especially one
with the cross section of the six-foot piece, i.e., six-by-six inches. Such a piece of lumber would
more likely hold the vehicle away from the pillar and, if it entered the side of the vehicle, would
not result in a fatal injury.

Because of the high volume of traffic, the fact that the boards had been in the area for part
of a shift and were likely to remain for several hours, and the underpass was an area where
mobile equipment struggled to get through very difficult conditions, I find that under continued
mining conditions it was reasonably likely that a board could enter a vehicle and strike the
operator or a passenger, resulting in a reasonably serious injury.

I find that the violation was S&S, but that it was not highly likely to result in a fatal
injury. Rather it was reasonably likely to result in an injury requiring lost time or restricted duty.

Unwarrantable Failure - Negligence

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. 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, 194 (Feb. 1991)
(“R&P”); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of an unwarrantable
failure analysis is determined by looking at all the facts and circumstances of each
case to see if any aggravating factors exist, such as 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. See Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug.
1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material
Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and
circumstances of each case must be examined to determine if an actor’s conduct is
aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at

353. 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. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
     1998).

The Secretary argues that the violation was the result of AmCoal’s unwarrantable failure
because, despite being aware of the condition, it continued mining operations and made no effort
to address or remedy the hazard. The Secretary also maintains that AmCoal had been put on
notice that greater efforts were necessary for compliance. AmCoal counters that it was not aware
of the dislodged bridge boards at the underpass, and that, prior to issuance of the orders, it had
taken steps to address travelway conditions, including pumping down water accumulating at the
underpass.

The Secretary is correct in pointing out that there was considerable notice to AmCoal that
conditions on the travelways were deteriorating because of the large volume of heavy equipment
traffic associated with the longwall move. When Roberts was at the mine earlier in the day, he
observed numerous pieces of heavy equipment including the longwall stage loader, being moved
toward the set-up area. Tr. 200-01. He pointed out to an AmCoal shift mine manager that
substantial damage was being done, and would likely be done, to the travelways and bridges, and
asked him to follow-up with the oncoming shift. Tr. 201-02, 208. In addition, MSHA had met
with AmCoal safety personnel in an effort to secure better maintenance of travelways and reduce
the number of citations and orders issued for such violations. Tr. 50-51. However, most, if not
all, of the Secretary’s “need for greater compliance effort” evidence pertains to general roadway
conditions affecting the ability of equipment and personnel to use the travelways, not to hazards
presented by loose or dislodged bridge boards. While such general maintenance evidence is
relevant to the issue of whether AmCoal was on notice that greater compliance efforts were
needed, it does not establish that AmCoal was on notice that it needed to pay closer attention to
the somewhat unique hazards presented by loose or dislodged bridge boards.

As to general roadway conditions, AmCoal introduced credible evidence that it was
attempting to address deteriorating roadway conditions, including the condition at the underpass.
The preshift examiner for the oncoming 4:00 p.m. to midnight shift, had noted water build-up at
the underpass and indicated that road work was needed on the 9th West Headate travelway. Tr.
394-96; Ex. R-43. Hamby had reviewed the report and noted the entries when he started his shift
and made work assignments. At his direction, the water in the underpass was pumped down and
grading was done on the roadway from crosscuts 17-23. Tr. 324, 395-97, 402-04; Ex. R-43. On
the previous shift, work had been done on the 9th West Headgate roadway, and that set-up road
had been shut down for the entire shift for road work. Tr. 310-16: Ex. R-53.

The evidence on the issue of whether AmCoal was on notice of the dislodged bridge
boards is not nearly as strong as the Secretary asserts. Miller believed that AmCoal was on
notice of the condition because he concluded that it existed for more than one shift and that
management personnel, including the longwall boss he talked to after issuing the order, would
have traveled through the area during the preshift examination for the second shift and during the
shift change at the beginning of the second shift, i.e., around 4:00 p.m.

Tr. 47, 62. As he
recorded in his notes, the condition was “on the travelway used by man trips that are operated
and/or supervised by section foremen,” and that management had been in the area on the shift
before the order was issued. Ex. G-A (notes at 14). In his testimony, Miller also opined that the
preshift examiner for the oncoming midnight shift, who would have traveled the area between
9:00 p.m. and 11:30 p.m. when the order was issued, should have seen the condition. Tr. 62-63.

As noted in the S&S discussion, there was insufficient evidence to justify a finding that
the boards had been dislodged on an earlier shift. Consequently, the primary “notice” evidence
relied upon by the Secretary, and the only notice evidence recorded by Miller in his notes, is
unavailing. It is likely that at least some of the boards had been dislodged by the time the
preshift examination was conducted, after 9:00 p.m. on May 1, and possibly could have been
seen by the examiner. However, it is also likely that at least some of the nine pieces of heavy
equipment that traversed the area during the shift did so after the preshift examination had been
conducted, and could have dislodged some of the boards and/or rendered them more visible. The
report of the preshift examination that was conducted between 9:00 p.m. and 12:00 a.m. on May
1, does not note the presence of dislodged bridge boards at the underpass, but does note rutted
and muddy conditions on the 9th West Headgate travelway. Ex. R-43. On the whole, while it is
possible that AmCoal should have been on notice that there were dislodged bridge boards in the
travelway, I find that the Secretary did not carry her burden of proving that AmCoal had actual
knowledge of the conditions.

On the factors relevant to the unwarrantable failure determination, I find that the
following considerations weigh against a finding of unwarrantable failure: AmCoal did not have
knowledge of the hazardous condition; the condition did not exist and was not obvious for a
significant period of time and was most likely caused by one or more of the nine ram cars that
traveled through the underpass on the 4:00 p.m. to midnight shift; the condition was confined to
the area of the underpass and was not extensive; while it was S&S, it did not pose a high degree
of danger; and, AmCoal’s abatement efforts were prompt and effective. I find the need for
greater compliance efforts factor weighs in favor of a finding of unwarrantable failure, but not
strongly. While AmCoal was on notice that hazardous travelway conditions were occurring and
were likely to occur, and that such conditions could include dislodged bridge boards, it had taken
steps to address deteriorating roadway conditions, including pumping of accumulated water at
the underpass. The previous violations that prompted the meetings with MSHA to discuss
remedial action appear to have been directed to the wet conditions and resulting deterioration of
the roadways.

Because of the nature of the use of bridges, continued attention to such problems
should have been, and apparently was, a focus of AmCoal’s travelway maintenance efforts.

I find that the violation was not the result of AmCoal’s unwarrantable failure, and that its
negligence was moderate.

Order No. 6673961

Order No. 6673961 was issued by Miller at 4:15 a.m. on May 2, after exiting the mine
and re-checking the preshift examination records for references to the dislodged bridge boards at
the underpass. It alleges a violation of 30 C.F.R. § 75.363(a), which requires that hazardous
conditions found during required examinations “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.” The subject order
alleges that the hazardous condition identified in Order No. 6673958 was, or should have been,
observed by AmCoal managers and was not immediately corrected or posted with a conspicuous
danger sign. Miller determined that the violation was highly likely to result in a fatal injury, that
it was S&S, that one person was affected, and that the operator’s negligence was high. A civil
penalty in the amount of $21,993.00 was proposed for this violation.

The Violation

As noted in the discussion of the unwarrantable failure issue with respect to the safeguard
order, I have found that AmCoal did not have actual notice of the conditions. There is
insufficient evidence to justify a finding that the condition existed for more than one shift, as
Miller believed. Consequently, the management personnel who would have traveled through the
area during and prior to the 4:00 p.m. shift change cannot be charged with observing and
reporting the condition. As also noted in that prior discussion, the Secretary failed to carry her
burden of establishing that the condition existed and was visible during the preshift examination
that was conducted between 9:00 p.m. and 11:30 p.m., such that AmCoal should have had
knowledge of the condition.

Because the Secretary failed to prove by a preponderance of the evidence that the
hazardous condition that allegedly should have been observed, reported, and dangered-off or
remedied, i.e., loose or dislodged bridge boards, had existed and was visible when the
examinations were made by AmCoal managers, I find that Order No. 6673961 must be vacated.

Order Nos. 6673588 and 6373589

Roberts returned to the mine on May 7 to complete the investigation of the code-a-phone
complaint by inspecting the 9th West longwall’s tailgate entries that he and Miller could not get
to on May 1.

In the course of the inspection, he issued Order No. 6673588 for an alleged
violation of the previously discussed safeguard for loose and dislodged bridge boards near a
feeder. He also issued Order No. 6373589, for AmCoal’s failure to identify and correct the
bridge board hazard during on-shift examinations.

Order No. 6673588

Order No. 6673588 was issued by MSHA inspector Keith Roberts at 10:40 a.m., on May
7, 2008, pursuant to section 104(d)(2) of the Act. It alleges a violation of section 314(b) of the
Act and 30 C.F.R. § 75.1403, and charges Respondent with violating the previously discussed
Safeguard No. 3538483. The violation was described in the Condition and Practice section of
the Order, as amended, as follows:

Loose, broken, unsecured and dislodged bridge boards are present in the 9th West
Tailgate (MMU 005-0) working section at the feeder breaker location, the No. 3
Entry between 5550' W and the connecting cross cut between No. 3 & No. 4
entries at 5625' W.

At the feeder location five (5) bridge boards have been dislodged and are exposed
and/or loose and unsecured. These exposed/dislodged bridge boards range from
12" to 36" [long] x 5" - 11" [wide] x 2" [thick].

In the No. 3 entry, a bridge board approximately 44" [long] x 5" [wide] x 2"
[thick] is present in the shuttle car haulage road. Four (4) splintered bridge boards
ranging from 5' - 8' [long] x 6" [wide] x 2" [thick] are present on a ledge above
and adjacent to the road along the south rib.

Loose, unsecured, broken and splintered bridge boards are present in the
connecting cross cut between entry No. 3 and entry No. 4 at 5625' W. A
splintered board approximately 4' [long] x 1 1/2" [wide] x 1 -2 “ [thick] is
protruding from the “wind row” of mud/gob along the east rib line. Bridge boards
approximately 44" [long] x 4" [wide] x 2" [thick], 5.5' [long] x 1 - 5" [wide]
(tapered) x 2" [thick], and 8' [long] x 6" [wide] x 2" [thick] have been run over by
mobile equipment as evidenced by tire tread markings on the boards and the
boards being depressed into the floor. A Wagner diesel-powered coal scoop, Co.
No. CS-11, has traveled over the bridge boards and is still located in the cross cut.

This condition is a violation of Section 314(b) of the Mine Act and the Notice to
Provide Safeguard(s) No. 3538483, dated 08/17/1990 requiring that all bridging
lumber used on the mine floor be secured or that all dislodged pieces of lumber be
re-secured or removed from the travelway.

This condition represents a distinct power haulage hazard to a miner operating the
coal scoop or the ram car using the travel road or connecting cross cut.

The mine operator has a repeated history of citations and orders for violation of
the standard, including three 104(d)(2) orders issued since 04/11/2008 for similar
conditions.

Ex. G-D.

Roberts determined that the violation was highly likely to result in a fatal injury, that it
was S&S, that one person was affected, and that the operator’s negligence was high. A civil
penalty in the amount of $21,993.00 was proposed for this violation.

AmCoal challenges this order on the same grounds that it challenged the previous
safeguard order. Aside from the previously rejected challenge to the validity of the safeguard, it
contends that: the safeguard was misapplied to the alleged conditions; there was no hazardous
condition; an injury was unlikely to result; the violation could not be reasonably expected to
result in a fatal injury; its negligence was low such that the order should not have been issued
pursuant section 104(d); and the assessed penalty is excessive.

The Violation

While traveling the 9th West tailgate, Roberts observed loose and dislodged bridge
boards and pieces of boards at several locations in the area of a feeder used in development of the
tailgate entries as a travelable bleeder for the longwall panel. The sizes and locations of the
boards are described in the Order and Roberts’ notes. Ex. G-D. Bob Hatcher, at the time a
member of AmCoal’s safety department, accompanied Roberts and assisted in measuring the
boards. Hatcher, who began working for MSHA prior to the hearing, also took notes, and
prepared a report on the alleged violation.

Ex. R-69, R-70. While Hatcher purportedly
disagreed with Roberts’ assessment of the hazards presented by the boards, his description of the
location of the boards largely comports with Roberts’. I find that the loose and dislodged bridge
boards were present in the travelway, as described by Roberts, and that the safeguard was
violated.

S&S - Gravity

As with the boards that were the subject of the previously discussed orders, AmCoal
disputes the gravity of the violation, and contends that the boards did not present hazards,
especially hazards that were highly likely to result in a fatal injury.

While some of the boards did not present serious hazards, there were several loose boards
of significant length that were located in the portion of the travelway actually used by mobile
equipment. Both Roberts and Hatcher identified boards of 44 inches, eight feet, and five and
one-half feet that were lying in the travelway, and a splintered board protruding from a windrow.
Ex. G-D, R-69, R-70. Some of the boards were removed by being pried up from the floor, but
that was simply an indication that they had been pressed down into the mine floor, not that they
were still secured or attached to a bridge. Tr. 512-13.

AmCoal argues that several of the boards did not present hazards. The five boards near
the feeder were relatively short, the longest was three feet, and did not pose an impalement
hazard. Roberts testified that he would not cite “just small boards;” they had to have some size
to pose a hazard to mobile equipment operators. Tr. 454-55. There also were boards located in
the travelway that were worn or “serrated,” close to where a five-and-one-half-foot board was
laying. Roberts’ notes reflect that they were “exposed but secured,” i.e., still attached to a
bridge, and he explained that they were not included in the order. Tr. 456, 466-67; Ex. G-D. At
Hatcher’s direction, a scoop was used to pull some of those boards free using a chain. Others
were sawed through to allow their removal. Roberts commended Hatcher for removing them as
a means of preventing them from becoming loose, like the other boards that resulted in the
violation. Tr. 456, 466-67. There apparently were also some boards that may have been secured
to a bridge in the area where the approach wheel of a shuttle car would stop when dumping on
the feeder. It is unclear whether those boards were included in the order.

Four boards had been
placed on a “windrow,” a build-up of mud along the rib that was three feet high and four feet
wide. Those boards were in the travelway, but they were not located where mobile equipment
would encounter them, as least while they remained on the windrow. Roberts acknowledged that
they did not present a hazard in that location, but believed that they had been improperly stored
and could fall down onto the traveled part of the roadway. Tr. 452.

Accepting AmCoal’s arguments, the fact remains that there were several loose boards of
significant length in the travelway. There is no material difference between the hazards
presented by the boards at issue in Order No. 6673958 and those that were the subject of this
order.

Roberts was unable to state when the boards had been dislodged. Tr. 440. He knew, and
AmCoal’s production reports confirm, that coal had not been mined on the day shift prior to his
arrival. Tr. 453; Ex. R-53. He concluded that the boards had become dislodged during the 12:00
a.m. to 8:00 a.m. shift, when coal had been produced in development of the tailgate entries and
shuttle car and other traffic would have occurred in the area. Tr. 435-37. As he explained, there
were no shuttle car runs for production on the day shift, consequently, the boards “would have
had to have been dislodged on the midnight shift.” Tr. 440. AmCoal contends that even though
no coal was being produced, mobile equipment was operating in the area on the day shift and
could have dislodged the boards. A crew was working inby the feeder installing bridges, and
bridging material would have been brought through the travelway and connecting crosscut by a
scoop, or, possibly a ram car. Roberts confirmed that the bridging crew was working inby the
feeder on the day shift. Tr. 419, 422. Roberts also believed that mechanics were traveling in the
area to attend to disabled equipment. Tr. 419.

Chris Ferrell, AmCoal’s mine foreman on the 12:00 a.m. to 8:00 a.m. shift, has 31 years
of experience in the mining industry. He would have conducted the on-shift examinations that
were the subject of the companion order issued by Roberts for a failure to identify and correct the
hazardous condition. The report of his on-shift examination reflected that conditions were
“safe.” Tr. 244; Ex. R-43. He testified that he examined the area of the feeder five-to-six times
per shift, and was last in that area between 7:00 and 7:30 a.m. Tr. 245, 261. He was aware of the
hazards posed by loose bridge boards and the 1990 fatality, took care to identify and remove
dislodged boards, and was certain that there were no unsecured boards in the cited area when he
last examined it. Tr. 250-55.

While I found Ferrell to have been a credible witness, I find that at least a majority of the
boards had been dislodged during the 12:00 a.m. to 8:00 a.m. shift, or earlier. A scoop or ram
car delivering bridges and supplies to the crew working inby may have caused some of the
damage during the day shift. However, there is no evidence that a significant amount of mobile
equipment traffic was associated with the bridging effort. There was considerably more traffic in
the area during the midnight shift when coal was being produced by mining in the bleeder
entries. The condition would also have existed for some time, had it not been cited by Roberts.
It had not been discovered and/or corrected during previous examinations, and it could well have
continued to exist through and, possibly, into the following shift.

As with the previously discussed boards, I find the probability of a fatal injury occurring
to have been remote. However, Miller and Roberts described several scenarios whereby boards
that were 44 inches to eight feet in length could produce a reasonably serious injury. The floor
of the mine in the area was soft and equipment needed to maneuver to access the feeder. I find
that under continued mining conditions it was reasonably likely that a board could enter a vehicle
and contact the operator or a passenger resulting in a reasonably serious injury.

I find that the violation was S&S, but that it was not highly likely to result in a fatal
injury. Rather it was reasonably likely to result in an injury resulting in lost time or restricted
duty.

Unwarrantable Failure - Negligence

Whether the violation was the result of AmCoal’s unwarrantable failure is a close
question. Factors weighing against such a finding are: the condition was not extensive; while it
was S&S it did not pose a high degree of danger; and AmCoal’s abatement efforts were prompt
and effective. Factors weighing in favor of an unwarrantable failure determination are: the
condition had existed for more than one shift; AmCoal was or should have been aware of the
condition; and AmCoal had been put on notice that increased compliance efforts were necessary.

The most significant factor is that AmCoal had been put on notice that increased
compliance efforts were necessary. Roberts noted that AmCoal had been issued three section
104(d)(2) orders for safeguard violations since April 11, less than one month earlier. Tr. 433;
Ex. G-D. One of those was the previously discussed Order No. 6673958, issued on May 1 for a
violation of the dislodged bridge board safeguard. The particular safeguard violated in the other
two orders was not identified. However, the two orders related to loose and dislodged bridge
boards issued on May 1, coupled with the other evidence of prior notice discussed previously,
should have alerted AmCoal to the need for increased efforts to comply with the subject
safeguard. Dislodged boards can be difficult to see. As noted previously, and as pointed out by
Ferrell, if they have been pressed down into the mud “sometimes you can’t see them,” and they
can be exposed or “pulled up” by another passing vehicle. Tr. 256.

As noted in the discussion of the examination order that follows, while I do not find that
Ferrell had actual notice of the condition during the midnight shift, AmCoal is chargeable with
notice of the condition. Because it had been put on notice that increased compliance efforts were
required, it should have initiated more rigorous examination procedures to identify and remove
loose or dislodged bridge boards.

I find that the violation was the result of AmCoal’s unwarrantable failure to comply with
the standard.

Order No. 6673589

Order No. 6373589 was issued by Roberts at 3:00 p.m. on May 7, 2008, the same day as
Order No. 6673588, and alleges a violation of 30 C.F.R. § 75.362(a)(1), which requires that on-shift examinations be conducted at least once during each shift to, inter alia, identify and correct
hazardous conditions in areas where miners are assigned to work. Ex. G-E. The subject order
alleges in the Condition and Practice section that:

An inadequate on-shift examination of the 9th West Tailgate working section
(MMU 005-0) was conducted on the 12:00 a.m. - 8:00 a.m. shift of 05/07/2008 in
that the hazardous condition detailed in Mine Order No. 6673588 was neither
immediately corrected nor posted with a conspicuous danger sign where anyone
entering the area would pass and recorded in a book maintained for that purpose.

Ex. G-E.

Roberts determined that the violation was highly likely to result in a fatal injury, that it
was S&S, that one person was affected, and that the operator’s negligence was high. The order
was issued pursuant to section 104(d)(2) of the Act, and alleges that the violation was the result
of AmCoal’s unwarrantable failure to comply with the standard. A civil penalty in the amount of
$21,993.00 was proposed for this violation.

The Violation

Roberts testified that he does not issue examination orders “lightly.” Tr. 436-7. He
believed that an on-shift examination was done, but that it was inadequate, and did not
understand how the “readily visible” boards in that “relatively small area” could not have been
seen by an examiner. Tr. 434-37, 440. Ferrell, who conducted the on-shift examinations on the
midnight shift, the latest around 7:00 a.m., did not see dislodged boards and reported that the
area was safe. Tr. 244; Ex. R-43. As noted in the discussion of Order No. 6673588, a majority
of the boards had most likely been dislodged during the midnight shift and were present during
one or more of Ferrell’s examinations. However, they may not have been as “readily visible” as
when Roberts saw them. Mobile equipment servicing the bridging crew could have altered the
location and/or appearance of the boards, e.g., it is highly likely that the board protruding from
the windrow was put in that position after the examinations had been done, otherwise Farrell
would have seen it.

As explained with respect to the previous order, AmCoal should have been on notice that
increased efforts to comply with the bridge board safeguard were required. It should have
imposed a more rigorous examination procedure, whereby even loose boards that had been
pressed into the muddy mine floor, but were not completely covered with mud, would have been
detected and removed or re-secured. AmCoal maintained that it is always vigilant for loose
bridge boards, and that they are routinely removed from travelways when observed. It also
points to the fact that it has experienced no lost time accidents as a result of loose bridge boards
for at least many years. That may be accurate. However, it had been the recipient of two section
104(d)(2) orders on May 1 as a result of loose and dislodged bridge boards, and it had received
two other (d)(2) orders for safeguard violations within the past month. Yet it took no additional
measures to identify and remove loose bridge boards. Willis cited AmCoal’s continuing efforts
to comply with the safeguard, but conceded that he “couldn’t say that [AmCoal] did anything
differently after the May 1 orders were issued.” Tr. 488.

I find that a majority of the boards cited by Roberts had been dislodged during the
midnight shift and were present when Farrell made one or more of his examinations. They
should have been detected and removed from the travelway, or the area should have been
dangered-off until the condition could be corrected. I find that the standard was violated.

S&S - Unwarrantable Failure

The inadequate on-shift examination resulted in the hazardous bridge board condition
continuing to exist, at least for the remainder of the shift and most likely well into the oncoming
shift. There is no evidence that the examination was otherwise deficient. For the reasons
identified above with respect to the safeguard violation, and considering that this violation would
have existed for a somewhat shorter period of time, I find that the violation was not highly likely
to result in a fatal injury, but that it was reasonably likely to result in a reasonably serious injury,
i.e., a lost work days or restricted duty injury, and that it was S&S.

The violation of the on-shift examination standard does not lend itself to straightforward
application of the traditional factors applied in the unwarrantable failure analysis. The
inadequate examination was not “extensive,” and, like the safeguard violation, did not pose a
high degree of danger. The order was terminated promptly after AmCoal was reminded of the
requirements of the standard. The violation did not exist for any appreciable length of time,
although its continuing effects would have extended into the next shift. AmCoal did not have
knowledge of the inadequacy of the examination, although it is chargeable with knowledge of the
underlying hazardous condition. The factor that weighs most heavily in favor of an
unwarrantable failure finding is prior notice. The inadequacy of the examination was Farrell’s
failure to detect dislodged bridge boards, at least some of which were most likely not as readily
visible as they were when Roberts saw them. Farrell explained, as Willis had before, that a
passing vehicle can pull/push up loose boards that previous vehicles had pressed down into the
mud where they could not be seen. Tr. 256. Farrell knew about the safeguard and the 1990
fatality and paid particular attention to bridge boards. He should have been aware of the May 1
orders, and should have taken care to closely examine for such boards, including boards that may
not have been readily visible.

I found Farrell to be a credible witness, and find that he made a good faith effort to
identify hazardous conditions, including dislodged bridge boards, when he conducted his on-shift
examinations. I also find that with extra effort prompted by heightened awareness of problems
with bridge boards, he should have identified the hazardous condition. However, I find that his
negligence in failing to do so did not rise to the level of unwarrantable failure, but was moderate.

Aside from its agent Farrell’s inadequate examination, AmCoal was also culpable.
Because of the previous safeguard violations, it should not have relied on its normal examination
procedures to identify dislodged bridge boards, but should have instituted more rigorous
inspections designed to detect boards that had been loosened or dislodged, even those that were
not readily visible. I also find that AmCoal’s negligence in failing to institute more rigorous
examination procedures did not rise to the level of unwarrantable failure, but was moderate.

Considering Ferrell’s and AmCoal’s negligence together, I find that they did not rise to
the level of unwarrantable failure, but that AmCoal’s negligence with respect to the violation was
high.

Citation No. 6674229 

Citation No. 6674229, was issued by Roberts on May 30, 2008, pursuant to section
104(a) of the Act, and alleges a violation of 30 C.F.R. § 75.1403. It charges Respondent with
violating the previously discussed bridge board safeguard, No. 3538483. The violation was
described in the “Condition and Practice” section of the Citation as follows:

A 2" x 8" x 5' section of bridge board, unsecured and parallel to traffic flow is
present on the 9th West Headgate/Longwall set-up unit travel road at XC-20.

This condition presents a distinct powered haulage hazard to mobile equipment
operators traveling along this road in that the unsecured bridge board can foul
against the frame of equipment and be forced into the operator’s compartment.

Ex. G-J.

Roberts determined that the violation was reasonably likely to result in a fatal injury, that
it was S&S, that one person was affected, and that the operator’s negligence was high. A civil
penalty in the amount of $8,893.00 was proposed for this violation.

In defense of this citation, AmCoal asserts virtually all of the arguments made with
respect to the previous safeguard orders, including its previously rejected challenge to the
validity of the safeguard.

The Violation

Roberts was continuing the regular quarterly inspection of the mine on May 30, 2008. At
9:00 a.m., shortly after an 8:00 a.m. “hot seat” shift change from the midnight to the day shift, he
observed a partially dislodged bridge board in the roadway.

He issued the instant citation for
the safeguard violation, and also issued a citation for the poor conditions of the
travelway/escapeway in that area.

Roberts’ field notes reflect that the five-foot section of bridge board was “unsecured” and
that it was “not completely dislodged.” Ex. G-J (notes at 3, 15). He testified that one end of the
board was “kind of secured” but the other was not; it moved when it was hit. Tr. 524-25. The
citation was terminated because the board had been removed when Roberts returned to the area
25 minutes later. Roberts did not know how the board was removed or how long the removal
effort had taken. Tr. 531-34. AmCoal argues that the safeguard does not apply to partially
dislodged five-foot long boards, which would not present a cantilever hazard like the 12-foot
long completely dislodged board that resulted in the 1990 fatality.

The safeguard requires that “loose and dislodged pieces of lumber be re-secured or
removed from the travelway.” Ex. G-A. The board in question was loose, and would eventually
have been completely dislodged by another piece of mobile equipment. Tr. 525. I find that the
loose five-foot long board was present in the travelway in violation of the safeguard.

S&S - Gravity

With respect to the two previous safeguard violations, I found that multiple completely
dislodged bridge boards that had remained in a travelway for at least part of a shift, and were
likely to have remained in the travelway for some time thereafter, were reasonably likely to result
in a lost time or restricted duty injury, and were S&S. Here, there was one loose, but not
dislodged, bridge board. If it were to have become completely dislodged from the bridge, its
five-foot length was sufficient to present a hazard to mobile equipment operators. However,
while it remained attached, it presented a minimal hazard.

Roberts reasoned that the board had
most likely been loosened by a heavier piece of mobile equipment, such as one of the ram cars
that had hauled cribbing material and rock dust on the previous shift. He did not think that the
lighter vehicles involved in the just-completed shift change, would have caused the damage. Tr. 528-29. However, he also acknowledged that he observed the loose board “early in the shift
right after equipment may have passed through” the area. Tr. 521. Whether, or when, the board
would have become completely dislodged, and how long it would have remained in the roadway
thereafter, are unclear.

While I find Roberts’ determination that the board was loosened on the previous shift to
be reasonable, it most likely was loosened toward the end of the shift. As Roberts noted,
equipment that could have loosened the board may have passed through the area just before the
citation was issued. In addition, AmCoal had been removing bridge boards from the travelway
in the same location on the previous shift and, if the board had been loose or partially dislodged,
it most likely would have been removed at that time. Tr. 537-40. Considering AmCoal’s
increased compliance efforts, including its attention to bridge boards at crosscut #20 on the
previous shift, I find that had the board become completely dislodged, it would have been removed from the
travelway relatively promptly.

While the loosened board existed for part of a shift, it did not present a significant hazard.
Had it become completely dislodged, it would have been removed promptly. I find that the loose
bridge board was unlikely to result in a lost time or restricted duty injury, and that the violation
was not S&S.

Negligence

As Roberts noted, AmCoal had enhanced its efforts to comply with the safeguard after
issuance of the May 1 and 7 safeguard orders. Tr. 521-22. AmCoal’s Production & Delay and
on-shift examination reports for the 12:00 a.m. to 8:00 a.m. shift, which ended shortly before the
citation was issued, reflect that loose bridge boards at crosscut #20 were removed, trash was
removed and the roadway at that location was rehabilitated by the placement of bridges and other
measures. Tr. 537-40; Ex. R-46, R-53. One end of the single board in question was still secured
to the bridge and it may well have appeared to have been properly attached, especially in the
muddy conditions. When Roberts saw it, the loose end of the board had been displaced. Tr. 524.
While it was reasonable for Roberts to conclude that one of the heavier pieces of equipment,
possibly a ram car, had detached one end of the board on the previous shift, it may not have been
displaced enough to make it appear loose until struck by one of the lighter vehicles traversing the
area for the shift change.

Roberts believed that AmCoal should have been on heightened awareness for loose
bridge boards and “should check all bridge locations each shift and repair as needed.” Tr. 523.
He later added that “fairly frequent” checks of roadway conditions should have been performed.
Tr. 527-28. It is apparent from AmCoal’s efforts on the immediately preceding shift that it was
monitoring the conditions of the travelway at least once a shift, and probably more frequently.
Considering that this one bridge board was loose for only a small part of a shift, and may not
have been displaced until shortly before the citation was issued, it was not the result of AmCoal’s
high negligence.

I find that AmCoal’s negligence with respect to this violation was low.

Citation No. 6674228 

Citation No. 6674228 was issued pursuant to section 104(a) of the Act and is the
escapeway violation issued by Roberts on May 30, 2008, in conjunction with the safeguard
citation discussed above. It alleges a violation of 30 C.F.R. § 75.380(d)(1), which requires that
escapeways be “maintained in a safe condition to always assure passage of anyone, including
disabled persons.” The violation was described in the “Condition and Practice” section of the
Citation as follows:

The primary escapeway for the 9th West Headgate/Longwall set-up unit is not
being maintained to always assure the safe passage of anyone, including disabled
persons. Standing, muddy (clay) water and slurry-like clay mud, ranging from 8"

• 14" in depth, is present on the mine floor, rib-to-rib, extending from XC-17 to
  XC-19, XC-20 to XC-21 and the intersection of XC-24. The water and mud
  covers bottom irregularities (ruts and “pot holes”) throughout these areas.

Ex. G-H.

Roberts determined that the violation was reasonably likely to result in a lost workdays or
restricted duty injury, that it was S&S, that eight persons were affected, and that the operator’s
negligence was high. A civil penalty in the amount of $7,578.00, was proposed for this
violation.

Respondent does not dispute the fact of violation or the gravity, except to challenge the
number of persons affected. It also challenges the degree of negligence and the amount of the
penalty. Tr. 560.

Persons Affected

The location of the violation was the main travelway for the 9th West longwall, which
also served as the primary escapeway. Roberts determined that eight persons would be affected
by the violation because a typical crew for the longwall consisted of eight miners, and he
believed that it was reasonably likely that all eight would be injured in the event that evacuation
through the escapeway was required.

Respondent argues that, because the longwall was not
operating (it was being set up), and Roberts did not confirm that eight miners were inby at the
time, that the Secretary did not establish that eight persons would be required to use the
escapeway, and that it is not reasonably likely that all persons using the escapeway would be
injured.

Roberts determined from his experience that eight miners would be on the longwall set-up crew. Eight occupations/positions for a typical longwall crew had been listed in
AmCoal’s records, and names had been entered for the various positions. Tr. 589. Because
those miners were not operating the non-functional longwall, he concluded that they were
working on the longwall set-up. Roberts also believed that additional persons might be inby,
e.g., equipment operators or mechanics. In the absence of evidence to the contrary, I find that
eight persons would have been required to use the escapeway in the event that evacuation was
required.

The number of persons affected by a violation is part of the gravity assessment. As stated
in the Secretary’s penalty assessment regulations; “Gravity is determined by the likelihood of the
occurrence of the event against which a standard is directed; the severity of the illness or injury if
the event has occurred or was to occur; and the number of persons potentially affected if the
event has occurred or were to occur.” 30 C.F.R. § 100.3(e). MSHA’s Citation and Order
Writing Handbook for Coal Mines and Metal and Nonmetal Mines, provides a further
explanation of the term persons affected: “ The number of persons affected is the number of
persons who would be expected to be injured if an accident or overexposure occurred as a result
of the violation.”

Roberts determined that all eight crew members were affected by the violation because he
believed that it was reasonably likely that all eight miners would suffer injuries in the event that
they were forced to use the escapeway. Tr. 574-75, 591. Respondent argues that it is not
reasonable to assume that all eight miners on a crew would fall and be injured while exiting the
mine, even under emergency conditions.

The conditions described in the citation, water and slurry 8 to 14 inches deep, covering an
irregular surface, certainly presented treacherous footing and a high likelihood that a person
traversing the areas on foot in an emergency situation would fall. It is possible that a person
falling in soft-muddy conditions could suffer a reasonably serious injury. The question is: was it
reasonably likely that all eight crew members would not only fall, but suffer an injury that would
require lost work days or restricted duty.

The conditions existed in three areas of varying
lengths; 300 feet, 150 feet and 20 feet.

While it is possible that the entire crew could have been
injured, I find it unlikely. While I find it reasonably likely that a majority of the crew, e.g. six
miners, would fall in the soft, muddy conditions while using the escapeway in an emergency, I find it unreasonable to assume that all of those miners would suffer a reasonably serious injury.
It is more likely that no more than half of those falling would suffer a reasonably serious injury,
and I find that three persons were affected by this S&S violation.

Negligence

Roberts had had several discussions with AmCoal’s safety personnel about serious and
ongoing problems with travelways, specifically the 9th West Headgate travelway. Tr. 576-77.
Numerous citations had been issued for similar conditions. Tr. 581. Chronic water problems
had continued to plague the mine, making it extremely difficult, if not impossible, to properly
maintain travelways, particularly during the longwall move when there was a high volume of
heavy equipment traffic. Roberts was frustrated with AmCoal’s employment of short-term
measures to deal with the water, e.g., dumping rock dust or gravel to abate escapeway or
travelway violations, only to have the conditions quickly reoccur. Tr. 565-68. Air pumps were
used for de-watering. Aside from lengthy air supply lines, the pumps’ intake hoses were
typically placed into the water/slurry mixture, where the screen on the hose end quickly became
clogged. AmCoal personnel would, occasionally, clean the screen, but would then place the hose
end back into the slurry where it would soon clog again. The pumps could have been more
effective if a culvert-type basin, with filtering screens, had been constructed to keep the heavier
slurry away from the pumps’ intakes. Tr. 565-66. A member of AmCoal’s engineering
department had characterized its efforts to address water problems at the underpass as “futile.”
Tr. 580-81. Roberts believed that additional efforts should have been made to address the water
problems, and that numerous management personnel were well aware of the problems because
mine managers, shift foremen, and other agents of AmCoal had traveled through the area, which
had been deteriorating over more than one shift. Tr. 576-78, 580.

AmCoal argues that the conditions had not existed for several shifts because it had done
considerable work on the travelway in that area on the previous shift. As noted in the discussion
of Citation No. 6674229, it had removed loose bridge boards, placed new bridges and worked to
improve conditions in the area cited. In conjunction with those efforts, it also points to the fact
that nine pieces of heavy equipment had recently traveled the roadway, and that the cited
conditions were most likely largely caused by that recent traffic. Roberts conceded that “some
efforts were being made” to address the problems. Tr. 605.

While AmCoal’s failure to effectively address the chronic water problems contributing to
deterioration of the travelways could establish that its negligence was high, I find that its efforts
on the previous shift to remedy adverse conditions in and near the area cited is a mitigating factor
sufficient to lower its negligence to moderate.

Citation No. 6674230 

Citation No. 6674230, was issued by Roberts on May 30, 2008, pursuant to section
104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.400, which requires that: “Coal dust,
including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not allowed to accumulate in active workings, or on diesel-powered and electric equipment therein.” The violation was described in the “Condition and
Practice” section of the Citation as follows:

Combustible material, in the form of broken/splintered wooden pallets, empty
rock dust sacks, empty cardboard boxes and several large sections of plastic
shrink wrap, has been stockpiled in cross cut #39 (Right) of the 9th West
Headgate travel road. The stockpile is approximately 10' L x 4' W x 5' H.

Ex. G-N.

Roberts determined that the violation was unlikely to result in a lost workdays or
restricted duty injury, that it was not S&S, that eight persons were affected, and that the
operator’s negligence was high. A civil penalty in the amount of $2,678.00, was proposed for
this violation.

Respondent does not challenge Roberts’ assessment of gravity, but does contest the fact
of violation, the number of persons affected, the negligence assessment and the amount of the
assessed penalty.

The Violation

As stated in the citation, Roberts observed approximately 200 cubic feet of paper, wood,
and other combustible materials in crosscut #39 off the 9th West Headgate travelway. The
material had a coating of dust on it which, because of its location and conditions in the area, led
Roberts to conclude that it had been there for a considerable period of time, estimated at “several
shifts.” Tr. 616; Ex. G-N.

Respondent’s challenge to the violation is two-pronged. It argues that the “small” trash
pile was not combustible material within the meaning of the standard, and that the material had
not been allowed to accumulate. As to the first point, the materials – broken, splintered wooden
pallets, empty paper rock dust sacks, empty cardboard boxes and plastic shrink wrap – were
obviously combustible. Respondent notes that, while in use, pallets with supplies on them, bags
filled with rock dust, and boxes containing supplies, are not considered combustible materials
that need to be removed from the mine. It argues that inspectors, like Roberts, use a subjective
standard to determine when such materials transition from inventory to trash accumulation
violations, “which makes it difficult for operators to know exactly what may trigger a citation or
order.” Resp. Br. at 35. The argument rings hollow. The substantial amount of material was
clearly combustible trash that was required to be removed from the mine.

It is also apparent that the material had been allowed to accumulate. Roberts explained
that mines typically use a large amount of supplies that generate trash, and it is essential that
operators employ a system for managing the removal of such trash. Supply cars travel into and
out of the mine on practically every shift. Collection of trash, typically depositing it next to
travelways for pick up by exiting supply and other vehicles, should ensure that combustible trash
does not accumulate in active workings. Respondent had an ongoing trash removal program, and
there is some evidence that efforts to remove trash had been made on the previous shift. Tr. 635,
641; Exh. R-53. However, the material in question was relatively deep in the crosscut, which
was not a location consistent with it’s being staged for removal. Tr. 637. In addition, there was
a layer of dust on the material, indicating that it had been there for some time, several shifts by
Roberts’ estimate. Tr. 616; Exh. G-N. While, as noted below, there is some uncertainty about
the length of time that the material had been in the crosscut, the evidence establishes that it had
been there for more than one or two shifts, was not being handled in an effective execution of
Respondent’s trash control program, and had been allowed to accumulate within the meaning of
the standard.

Respondent’s challenge to the number of persons affected is also unavailing, as explained
in the discussion of Citation Nos. 6674228 and 6674229.

Negligence

Roberts’ assessment of Respondent’s negligence was predicated on a number of factors.
He had had recent discussions with safety department personnel about trash accumulation
problems, and had emphasized the need to remove trash. Tr. 613-15. The mine had been cited
for 400 violations of the accumulations standard in the previous 24 months. Tr. 616. Judging
from the dust layer, the materials had been allowed to remain in the crosscut for some time.

The most significant of these factors is Roberts’ discussions with management officials
about the need for increased diligence in implementing its trash removal program, which put
Respondent on heightened awareness of trash accumulation problems. The overall number of
accumulations citations is of limited significance because accumulations of coal most likely
accounted for the vast majority of those citations. Roberts’ estimate of the time that the materials
had been in place was based on the coating of dust. There was no evidence as to the rate at
which dust would accumulate at that location, although Roberts thought that it would be slow
because of the depth of placement of the materials in the crosscut. He acknowledged that the
dust probably resulted from mobile equipment traffic in the travelway. As noted previously, in
general there was considerable traffic during the set-up operation. Relying on the shift report,
Respondent argues that its efforts to remove trash along the travelway on the immediately
preceding shift should be considered a mitigating factor.

Considering the uncertainty of the amount of time that the materials had been allowed to
remain in the crosscut, and Respondent’s documented trash removal efforts on the previous shift,
which indicated a degree of responsiveness to concerns about trash removal issues, I find that its
negligence with respect to the violation was moderate, rather than high.

Order No. 6673981 

Order No. 6673981, was issued by Miller at 11:00 a.m. on July 31, 2008, and alleges a
violation of 30 C.F.R. § 75.361(a) which requires that “within 3 hours before anyone enters an
area in which a preshift examination has not been made for that shift, a certified person shall
examine the area for hazardous conditions, determine whether the air is traveling in its proper
direction and at its normal volume, and test for methane and oxygen deficiency.” The violation
was described in the “Condition and Practice” section of the order as follows:

Two miners and a mine foreman were observed working in an area of the mine
where no preshift examination or supplemental examination had been conducted.
The miners were working at crosscut number 38B, between the number 1 and
number 2 entries of the 9th West tailgate entries. The mine foreman stated that he
did not know who conducted an examination in the area. These miners had also
worked just outby this area on an airlock. The only pre-shift examiner
certification was near the airlock, and was dated 7/30/2008.

Ex. G-C.

Miller determined that the violation was highly likely to result in a permanently disabling
injury, that it was S&S, that three persons were affected, and that the operator’s negligence was
high. The order was issued pursuant to section 104(d)(2) of the Act and alleges that the violation
was the result of Respondent’s unwarrantable failure to comply with the cited standard. A civil
penalty in the amount of $12,563.00 was proposed for this violation.

AmCoal does not contest the fact of the violation, or that it was the result of its
unwarrantable failure, i.e., it concedes that the order was properly issued pursuant to section
104(d) of the Act. It challenges the number of persons affected and the gravity, contending that
an injury was unlikely and any injury would not have been permanently disabling.

Miller was conducting a ventilation survey of the longwall. The members of the
inspection party had traveled up the intake side of the longwall, and were walking out the tailgate
bleeder entries when Miller observed two miners and a foreman working in an area that had not
been the subject of a preshift or supplemental examination. The miners had previously been
working near an airlock just outby where Miller encountered them, also an area where no preshift
or supplemental examination had been done. Notations at that location indicated that the last
examination had been conducted on the previous day. The foreman acknowledged that he did
not know if the area had been examined. The same foreman had previously been the subject of a
citation for working in an un-examined area.

The order was terminated at 11:15 a.m., after a supplemental examination was completed
by Joseph Myers, AmCoal’s safety director, who accompanied Miller, and no hazardous
conditions were found. Tr. 165, 183-84. In addition, no hazardous conditions had been
identified during the preshift examinations of the working sections or by Miller during his
ventilation survey. Tr. 162-63, 188-91.

Miller’s assessment of gravity was based on his experience and knowledge that
conditions can change quickly in a mine, especially in a large longwall operation’s bleeder
system and where the mine liberates large quantities of methane. The location in question was
about mid-way in the longwall panel. He did not know where the face was at the time. Tr. 155.
The mine had “gassed out” that week, i.e., mining had to be curtailed because of excessive
methane. Tr. 158. Miller also was aware of prior incidents at the mine, “ignitions, fires and so
forth,” although the only such incident discussed was a fire that had occurred several years
earlier when the mine was operated by Kerr-McGee. Tr. 166, 172. While the foreman carried a
multi-gas detector that constantly monitored the atmosphere, the miners did not, and they had
been working several crosscuts away from the foreman. Tr. 171.

AmCoal’s challenge to gravity is largely based on the fact that no hazards were
discovered in the supplemental examination, the ongoing ventilation survey, or the preshift
examinations of the working sections. It points to a similar preshift examination violation issued
by another inspector who determined that an injury was unlikely, and argues that, where no
hazards are found in a supplemental examination, an injury of a reasonably serious nature should
be found to be unlikely.

The Secretary counters that the evidence supports Miller’s S&S determination, that the
preshift examination is a critically important and fundamental safety practice in the industry, and
that because of changing conditions subsequent examinations may have little relevance to
conditions at the time of the violation, citing Jim Walter Resources, Inc., 28 FMSHRC 579, 603
(Aug. 2006); Manalapan Mining Co., 18 FMSHRC 1375, 1382 (Aug. 1996); and Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995).

In Buck Creek the Commission described the preshift examination requirement as one of
fundamental importance in assuring a safe working environment underground. Commission
decisions have also made clear that a preshift examination violation can be S&S despite the fact
that an inspector’s subsequent examination of the area discloses no hazardous conditions, in part
because many hazardous conditions are transient in nature and the S&S determination must be
made as of the time of the violation. Buck Creek, 17 FMSHRC at 13-15; Manalapan, 18 FMSHRC 1382 (opinion of Commissioners Holen and Riley), 1396 (opinion of
Commissioners Jordan and Marks); Jim Walter, 28 FMSHRC at 603-04.

In Jim Walter, factors pertinent to sustaining an S&S finding for a preshift violation
included the following; the mine was gassy and, prior to the shift, had experienced an
interruption to ventilation due to a fan check; the mine had a history of fires and ignitions,
including on the same section as recently as two weeks before the violation; and, the mine had a
history of roof falls, including one in the same week on the subject section. If normal mining
operations had continued, power would have been restored, and electric and diesel powered
equipment was present. 28 FMSHRC at 603. In Manalapan, where a finding that a preshift
violation was not S&S was reversed by the Commission, four miners had been in an unexamined
area for four hours. The mine had been out of production for several days, and methane
accumulations and other hazardous conditions can develop during idle periods; the mine
liberated methane, as established by bottle samples; the equipment used by the miners included
welding and cutting torches, and the roof bolter they were repairing was energized, also a
potential ignition source; the area was adjacent to a mined-out area and there was a possibility of
low oxygen in the atmosphere; the mine roof had a tendency to fall, and there had been several
roof falls. 18 FMSHRC at 1382-83. In Buck Creek the Commission reversed a finding that a
preshift violation was not S&S where the mine had been idle the previous two days and the
subject miners were the first ones entering after the idle period; methane can build up during
such periods; during idle periods failures in stoppings can interrupt ventilation; the mine had
prior ventilation problems; and, the mine had a history of methane accumulations and roof falls.
The fact that two of the miners were certified examiners and the area they were in had been
examined did not alter the result, because hazards in other unexamined areas could have affected
them. 17 FMSHRC at 13-14.

In Buck Creek and Manalapan the Secretary urged the Commission to establish a
presumption that every failure to conduct a preshift examination was S&S. The Commission
declined to do so, although in Manalapan two Commissioners argued persuasively for such a
presumption. 18 FMSHRC at 1388-95. Here, the Secretary argues that in the absence of a
preshift examination, it is impossible to rule out the existence of hazardous conditions, and that
Miller “determined that it was highly likely that an injury of a reasonably serious nature would
occur because no pre-shift or supplemental exam had been conducted to rule out potential
hazards in the area.”

Sec’y. Br. at 27. While he disavowed a “cookie cutter” approach, Miller
responded affirmatively when asked whether he believed that a serious injury would always be
highly likely where there has been a failure to conduct a preshift examination, although he added
that it was “even more so” considering the mine’s history.

Tr. 159, 166.

The Secretary’s argument, and Miller’s explanation of his S&S designation, bear some
resemblance to the unsuccessful argument that preshift violations should be presumed to be S&S.
Most of the factors noted by the Commission as supporting S&S findings in Jim Walter,
Manalapan and Buck Creek were not present here. However, Galatia was a gassy mine, subject
to 5-day spot inspections for methane, and had “gassed out” that week. Tr. 158. The miners had
been working in the unexamined area since the beginning of the shift, and most likely would
have continued working for several more hours. The area had last been examined the previous
day, possibly during the required weekly examination. While the working sections had been
examined, they were considerably removed from the area of the violation. The fact that Miller
did not identify any hazards during his nearly contemporaneous ventilation survey of the
longwall cannot inure to AmCoal’s benefit, because under normal mining operations MSHA
would not have been conducting a ventilation survey of the longwall’s bleeder system. In any
event, the area of the violation had not been surveyed prior to issuance of the violation. Nor does
the after-the-fact supplemental examination that disclosed no hazards at that time preclude a
finding that the violation was S&S.

While this is a close case, I credit the assessment by Miller, a highly experienced
inspector, and find that the violation was reasonably likely to result in a permanently disabling
injury and that it was S&S.

I also sustain Miller’s determination that three persons were
affected, in that many of the significant hazards that might have been encountered, particularly
those associated with methane accumulations, would have resulted in injuries to all three
persons.

The Appropriate Civil Penalties

The Galatia mine was a very large mine, the sole mine operated by its controlling entity.
Its history of violations from February 1, 2007 to April 30, 2008, a printout from MSHA’s
computerized database, was introduced into evidence. Ex. G-T. The report indicates that
AmCoal had 695 paid violations in the subject time period and that approximately 237 of those
were S&S. Neither party urges AmCoal’s history of violations as a factor that should increase or
decrease the amount of any civil penalty imposed for the subject violations, and it appears
unremarkable, considering that the Galatia mine was extremely large and was being inspected by
multiple MSHA inspectors on most business days year round. The parties stipulated that the
proposed penalties would not affect AmCoal’s ability to continue in business, and that AmCoal
demonstrated good faith in abating the violations.

Order No. 6673958 is affirmed as an S&S violation. However, it was not the result of
AmCoal’s unwarrantable failure. Rather its negligence was moderate. In addition, the violation
was reasonably likely to result in a lost work days or restricted duty injury, not highly likely to
result in a fatality. A civil penalty of $21,993.00 was proposed by the Secretary. Considering
the reductions in the level of negligence and gravity, and the factors enumerated in section 110(i)
of the Act, I impose a penalty in the amount of $5,000.00.

Order No. 6673588 is affirmed as an S&S and unwarrantable failure violation. However,
the violation was reasonably likely to result in a lost work days or restricted duty injury, not
highly likely to result in a fatality. A civil penalty of $21,993.00 was proposed by the Secretary.
Considering the reduction in the level of gravity, and the factors enumerated in section 110(i) of
the Act, I impose a penalty in the amount of $12,500.00.

Order No. 6673589 is affirmed as an S&S violation. However, it was not the result of
AmCoal’s unwarrantable failure. Rather its negligence was high. In addition, the violation was
reasonably likely to result in a lost work days or restricted duty injury, not highly likely to result
in a fatality. A civil penalty of $21,993.00 was proposed by the Secretary. Considering the
elimination of the unwarrantable failure designation, and the reduction in the level of gravity, and
the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of
$7,500.00.

Citation No. 6674229 is affirmed. However, AmCoal’s negligence was low rather than
high, and the violation was not S&S, rather it was unlikely to result in a lost work days or
restricted duty injury. A civil penalty of $8,893.00 was proposed by the Secretary. Considering
the reductions in the levels of negligence and gravity, and the factors enumerated in section
110(i) of the Act, I impose a penalty in the amount of $500.00.

Citation No. 6674228 is affirmed as an S&S violation. However, AmCoal’s negligence
was moderate rather than high and the number of persons affected was reduced from 8 to 3. A
civil penalty of $7,578.00 was proposed by the Secretary. Considering the reductions in the level
of negligence and the number of persons affected, and the factors enumerated in section 110(i) of
the Act, I impose a penalty in the amount of $2,500.00.

Citation No. 6674230 is affirmed. However, it was the result of AmCoal’s moderate
rather than high negligence. A civil penalty of $2,678.00 was proposed by the Secretary.
Considering the reduction in the level of negligence, and the factors enumerated in section 110(i)
of the Act, I impose a penalty in the amount of $1,300.00.

Order No. 6673981 is affirmed as an S&S and unwarrantable failure violation. However,
the violation was reasonably likely, not highly likely, to result in a permanent injury. A civil
penalty of $12,563.00 was proposed by the Secretary. Considering the reduction in the level of
gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount
of $8,000.00.

ORDER

Order No. 6673961 is VACATED. Order Nos. 6673588 and 6673981, and Citation Nos.
6674229, 6674228, 6674230 are AFFIRMED as modified. Order Nos. 6673958 and 6673589
are modified to citations issued pursuant to section 104(a) of the Act, and are AFFIRMED,
as modified. Respondent is ORDERED to pay civil penalties in the total amount of $37,300.00
within 45 days.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge

Distribution (Certified Mail):

Karen Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver. CO 80202-5710

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Ste. 1200, Salt Lake City,
UT 84111-2323