Big Ridge, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Six dockets against Big Ridge covered belt accumulations, mine examinations, machine guarding, equipment safety, fire warning systems, and many additional citations resolved by settlement. Judge Richard W. Manning assessed $90,000 on the litigated matters, including substantial penalties for combustible accumulations and inadequate examinations, while vacating one preshift-examination citation and one fire-warning citation. He found that the cited fire-warning standard did not govern the water-based suppression system and that the mine's carbon-monoxide monitoring system was functioning. The parties settled the remaining citations for $247,194, with numerous changes to gravity, negligence, and the number of miners affected. The combined penalty was $337,194.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.360(a)(1), 75.362(b), 75.400, 75.1103, 75.1722(b), and 75.1725(a)
• Outcome: The litigated citations were affirmed, modified, or vacated for $90,000, settlements totaled $247,194, and the combined penalty was $337,194.
• Key point: The Secretary must prove each cited standard, while supported settlements may resolve a much larger group of related enforcement actions in the same consolidated case.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-3577/FAX 303-844-5268

January 4, 2012

SECRETARY OF LABOR,

:

CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:

Docket No. LAKE 2009-325

Petitioner,

:

A.C. No. 11-03054-175456-01

:

:

Docket No. LAKE 2009-326

:

A.C. No. 11-03054-175456-02

:

:

Docket No. LAKE 2009-435

v.

:

A.C. No. 11-03054-180530-01

:

:

Docket No. LAKE 2009-436

:

A.C. No. 11-03054-180530-02

:

:

Docket No. LAKE 2009-705

BIG RIDGE, INC.,

:

A.C. No. 11-03054-195111-01

Respondent.

:

:

Docket No. LAKE 2009-706

:

A.C. No. 11-03054-195111-02

:

:

Willow Lake Portal

Appearances: 
Tyler P. McLeod, Esq,, and Francesca Cheroutes, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner; R. Henry Moore, Esq., and Jason Webb, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for Respondent.

Before:
Judge Manning

DECISION 

These cases are before me on petitions for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Big
Ridge, Inc. (“Big Ridge”) pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced
testimony and documentary evidence at a hearing held in Evansville, Indiana, and filed post-hearing briefs.

Big Ridge operates a large underground coal mine in Saline County, Illinois. The cases
involve six section 104(a) citations and four 104(d)(2) orders of withdrawal. The Secretary
proposed a total penalty of $116,912 for the citations and orders that were adjudicated.

I. BASIC LEGAL PRINCIPLES

A.           Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and
substantial nature (“S&S”). An S&S violation is a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based
upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In order to establish
the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to
safety – contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be
of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck
Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor,
861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that is the most difficult to apply. The
element is established only if the Secretary proves “a reasonable likelihood the hazard
contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7
FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular
facts surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a
reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources,
LP, 33 FMSHRC __, slip op. at 9, No. PENN 2008-189 (Oct. 5, 2011).

The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S
inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18
FMSHRC 1541, 1550 (Sept. 1996). The Commission has emphasized that, in accordance
with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that must be significant and substantial. U.S.
Steel Mining Co., 6 FMSHRC 1573, 1575 (July 1984). With respect to citations or orders
alleging an accumulation of combustible materials, the question is whether there was a
confluence of factors that made an injury-producing fire and/or explosion reasonably likely.
UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors that have been considered include the
extent of the accumulation, possible ignition sources, the presence of methane, and the type
of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-503.  

B.Negligence and Unwarrantable failure

The Secretary defines conduct that constitutes negligence under the Mine Act as
follows:

Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to
protect miners against the risks of harm. Under the Mine Act, an
operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps
necessary to correct or prevent hazardous conditions or
practices. The failure to exercise a high standard of care
constitutes negligence.

30 C.F.R. § 100.3(d) (2011). The Commission has defined an unwarrantable failure as
aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9
FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of
reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F. 3d. 133, 136 (7th Cir. 1995). 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 e.g.
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are
relevant to an unwarrantable failure determination to the extent that they serve to put an
operator on notice that greater efforts are necessary for compliance with a standard.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

II. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

A.           Docket No. LAKE 2009-325

1.         Order Nos. 6675150 and 6675151

On October 28, 2008, MSHA Inspector Larry Morris issued Order Nos. 6675150 and
6675151 under section 104(d)(2) of the Mine Act, alleging violations of section 75.400 and
section 75.360(a)(1) of the Secretary’s safety standards. Order No. 6675150 states:

An accumulation of combustible materials, in the form of float
coal dust (black in color), coal fines and loose coal, is present at
the operating slope tail pulley. The accumulations are in contact
with the rotating belt and tail pulley for a distance of
approximately 10 feet. The belt was removed from service by
management when notified by MSHA. The accumulations range
from a layer of float coal dust to 16 inches in depth of coal fines
and loose coal by approximately 9 feet in width by 20 feet in
length. This mine has been issued 8 previous violations for this
standard in the last thirteen days. This violation is an
unwarrantable failure to comply with a mandatory standard.

(Ex. GX-1). Order No. 6675151 states:

An inadequate pre-shift examination was made on the midnight
shift on October 28, 2008 on the slope tail piece. Accumulations
of combustible materials are in contact with the conveyor belt and
tail pulley outby for approximately 10 feet on the East side of the
belt. The hazardous condition was noticeable to even the most
casual observer. There is no record of any hazards recorded in the
examiner’s pre-shift record book for this shift on this date. This
order is issued in reference to Order #6675150 issued on
10/28/2008. This violation is an unwarrantable failure to comply
with a mandatory standard.

(Ex. GX-2). Inspector Morris determined on both orders that an injury was reasonably likely to
occur and that such an injury could reasonably be expected to result in lost workdays or
restricted duty. Further, he determined that both violations were S&S, the operator’s negligence
was high, and that eight persons would be affected.

Section 75.400 of the Secretary’s regulations requires that “[c]oal dust, including float coal
dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and
electric equipment therein.” 30 C.F.R. § 75.400. Section 75.360(a)(1) requires that a “certified
person designated by the operator must make a preshift examination within 3 hours preceding
the beginning of any 8-hour interval during which any person is scheduled to work or travel
underground.” 30 C.F.R. § 75.360(a)(1).

The Secretary proposed penalties of $27,959 and
$10,705, respectively.

2.         Background Summary of Testimony

Inspector Morris has worked for MSHA since January 2007 and is currently a coal mine
inspector and accident investigator. (Tr. 1:16).

Morris has inspected the Willow Lake Portal on
more then 100 occasions since October 2008. (Tr. 1:19). Prior to joining MSHA, Morris
worked in the mining industry since 1974. (Tr. 1:17).

On October 28, 2008, Morris was at the mine to perform a required inspection. (Tr. 1:20).
During the inspection Morris was accompanied by Bill Shover, who works in the outby areas of
the mine and is a safety steward. (Tr. 1:95-96). Morris testified that he started his inspection “at
the top of the slope belt and walked it underground.” At the tail piece, accumulations were
present underneath the belt and visible from the west side of the belt. (Tr. 1:24). At the time
Morris arrived the belt was running and the east side of the belt was running in coal for
approximately ten feet around the tail pulley. (Tr. 1:24). Morris further testified that
accumulations measured approximately nine feet in width, twelve feet long, and sixteen-inches
deep. (Tr. 1:24, 1:31). The accumulations consisted of combustible material, coal fines, loose
coal, and float coal dust. (Tr. 1:30). The floor of the mine at this location was made of concrete.
Some of the accumulations were wet under the surface due to the slope being washed down and
water sprays at the belt transfer. (Tr. 1:70-72). Morris testified that the accumulations can dry
out and burn in the right conditions. (Tr. 1:32). The slope belt tail, referenced in the order, was
in an area with two transfer points from inby belts carrying coal from the mine’s working
sections. (Tr. 1:33-34). One belt, the 4-A, is on the east and handles two production sections
and the other belt, the north, handles the mine’s other three production sections. (Tr. 1:33).
Morris stated that it took approximately one hour and forty-five minutes for eleven miners to
abate the condition. (Tr. 1: 43-44).

Morris determined that the accumulation violation was S&S due to the likelihood of a fire if
the accumulations were left in the cited condition. (Tr. 1:35). He reasoned that if the bearings
on each side of the tail pulley failed, metal would be in contact with metal, producing frictional
heat and igniting the grease and in turn the coal surrounding the bearings. (Tr. 1:35). The slope
belt is located in the primary entrance to the mine so that a fire and smoke would affect
numerous workers. (Tr. 1:35-36). The main injuries that could occur from this hazard, Morris
stated, are respiratory problems from breathing in smoke and getting lost within the mine. (Tr.
1:39-40). Morris further determined that the violations would affect eight workers and could
potentially result in lost workdays and restricted duties. (Tr. 1:40). The CO monitors located in
the violation area, Morris noted, would not limit the exposure to the hazardous condition because
CO monitors often fail and the response by miners can be slow due to complacency. (Tr. 1:42).

Morris further determined that the accumulation violation was an unwarrantable failure
because eight previous violations had been issued for the same standard within thirteen days of
Order No. 6675150. (Tr. 1:44). These eight preceding violations where all issued by Morris and
seven of them concerned accumulations along conveyor belts. (Tr. 1:48-49). Six of these seven
violations were S&S because the belt was running and in contact with the accumulations. (Tr.
1:49). Fifteen section 75.400 citations were issued in the mine between October 1 and October

28. (Tr. 1:50). Additionally, Morris stated that the accumulations should have been obvious to
    an examiner and had existed for some time. (Tr. 1:45-47). Monte Applin, a mine examiner, was
    in the area at around 5:35 a.m. for the preshift and initialed the date board without referencing
    any accumulations. (Tr. 1:46). Morris deduced that the accumulations had existed since the belt
    was shut down during the previous midnight shift. (Tr. 1:47). Morris noted that the mine has
    three shifts: morning and afternoon production shifts, and a midnight maintenance shift. (Tr.
    1:37). Morris explained that by the time the morning shift performed all the required checks, no
    coal would have been produced and transported along the belts from the end of the afternoon
    shift to the time of his inspection the next morning. (Tr. 1:47).

Morris determined that the violation was a result of the operator’s high degree of
negligence because the operator had been put on notice that it was not consistently complying
with section 75.400. (Tr. 1:50). Morris had discussions with the operator after writing his
previous eight violations. (Tr. 1:50). Additionally, Morris stated that conditions along the belts
were widely ignored. (Tr. 1:50).

Inspector Morris also issued an order for an inadequate preshift examination on the
midnight shift on October 28, 2008, based on the same conditions discussed in the
accumulations violation above. (Tr. 1:52). Morris testified that the midnight shift examiner
typically examined the transfer areas while the examiners on the other shifts usually only walked
the west side of the belt, which is why he cited the midnight shift for the violation. (Tr. 1:53-54). In the preshift examination book Applin wrote, “The top entry slope, no methane, 20.9
percent oxygen, no hazardous conditions found” on October 28, 2008 at 5:35 a.m. (Tr. 1:54; Ex.
GX-5). In the entry for the dayshift Charlie Hayers, the examiner, wrote “Slope tail dirty”
before Morris issued the order. (Tr. 1:55; Ex. GX-5). Morris reasoned that a violation of the
examination standard occurred because Applin failed to observe an obvious hazard. (Tr. 1:57).
Morris designated the examination violation as S&S because the violation matched the other
order and the hazardous condition was allowed to remain unabated. (Tr. 1:57). Morris
additionally explained that he designated the examination violation as an unwarrantable failure
because the examiner is an agent of the operator and the accumulations were obvious. (Tr. 1:58-59). Morris opined that the examiner should have seen the accumulations, shut the conveyor belt
off, and notified the operator. (Tr. 1:59).

On cross-examination, Morris testified that as far as he knew the CO sensors on the belt
line were working on October 28, 2008. (Tr. 1:67). In addition, MSHA’s standards require that
false alarms be treated the same as actual alarms. (Tr. 1:66). Finally, Morris agreed that when
the examination books have comments about certain conditions, corrective action is usually
undertaken. (Tr. 1:84-85). Morris testified that on October 29, 2008, the day after the orders
were issued, Applin spoke with him about recording a note in his personal journal about
accumulations on the belt line. (Tr. 1:86-87).

Shover, the safety steward, testified that the slope tail was running in the accumulations,
including dry float coal dust, when he arrived with Morris on October 28, 2008. (Tr. 1:96-97).
He also recalled the conversation between Morris and Applin in which Applin pulled out his
notebook and told Morris that the hazard in question was in his notes; he just forgot to log it in
the exam book. (Tr. 1:98). On cross-examination, Shover stated that he stayed at the slope belt
while ten to eleven workers spent between an hour and an hour and a half abating the order. (Tr.
1:98-99).

Applin, the examiner, has more than 30 years of experience with five years as an
examiner. (Tr. 1:101). He testified that during preshift inspection, at the end of the midnight
shift, he walked by the slope tail and looked for any hazards or accumulations. (Tr. 103-104).
Applin stated that he saw the accumulations and went over to two “red hat” miners in the area
and told them to clean the slope tail. (Tr. 1:106). Because he assumed that the miners had
cleaned the accumulations, Applin did not reference the accumulations in the exam book. (Tr.
1:108). Applin further testified that the accumulations by the tail were mostly wet and he did not
see any float coal dust. (Tr. 1:109). He did not consider the accumulations to be a hazard
because the accumulations were not touching the belt or rollers. (Tr. 1:107). Applin stated that
he did not record the accumulations because he considered accumulations to present a hazard
only when the belt is rubbing against them. (Tr. 1:112).

Terry Butler, the belt manager, testified that he accompanied Morris during inspection of
the slope tail. (Tr. 1:117). Butler did not walk down the slope with Morris and Shover, but met
them at the slope tail. (Tr. 1:117). Butler testified that the accumulations were small and that
one had to get down on hands and knees to see the coal that was touching the belt. (Tr. 1:118).
Additionally, there was a windrow of coal up the east side of the belt approximately six to eight
inches deep and ten feet long. (Tr. 1:118). Butler noted that the accumulations were not obvious
and there was no float coal dust at the slope tail. (Tr. 1:119-20). Furthermore, during the
termination of the order, Butler testified that eleven workers could not be working at the location
at the same time. (Tr. 1:122). On cross-examination Butler clarified the written statement he
made regarding October 28, 2008. (Ex. GX-43). Within the written statement Butler references
four inches of float dust “on the framing and under the tail.” (Ex. GX-43). Butler testified that
he was referencing the belt line on the 4A belt and not the slope tail. (Tr. 1:129-130).

3.         Summary of the Parties’ Arguments

The Secretary argues that Morris established that the operator violated both sections 75.400
and 75.360(a)(1). Section 75.400 was violated due to the presence of float coal dust, a
combustible material, within an active working belt area, observed by Morris and further
confirmed by both Butler and Shover. (Sec’y Br. 4-5). Section 75.360(a)(1) was violated due to
the volume of accumulations on the belt line present early in the morning shift. (Sec’y Br. 5).
The Secretary relies on the testimony that the belt in question was started on October 28, 2008,
around 6:00 a.m. and only residual coal from the prior days’ afternoon shift was on the belt.
(Sec’y Br. 5). Morris observed the condition at 7:50 a.m.; thus, the belt was running for less
then two hours. (Sec’y Br. 5). The morning production shift starts at 6:30 a.m., and there is an
additional time lag for coal to reach the area after the morning shift starts production. (Sec’y Br.
5). The Secretary reasons that the volume of accumulations was so significant that it took
around one hour and 45 minutes to clear and this volume could not have been produced solely
from the morning shift. (Sec’y Br. 5). Therefore, the accumulations were present for at least
one shift and the examiner failed to recognize and record the condition. (Sec’y Br. 5).

The Secretary further argues that the S&S designation on both violations should be
affirmed because the cited condition exposed miners to the potential for serious injuries. The
accumulations created a fire hazard along a belt line in a common travelway. (Sec’y Br. 6-7).
The Secretary contends that the fire hazard existed regardless of the CO monitors referenced by
the operators. (Sec’y Br. 7-8). The Secretary also argues that the violation was properly
characterized as an unwarrantable failure because the condition was obvious, existed for a
significant time, the examiner knew about the condition, and the operator was on notice for an
ongoing accumulations problem. Applin, the examiner, observed the accumulations and should
have recorded any maintenance request in the book. (Sec’y Br. 10). Inspector Morris had been
having ongoing discussions with management about accumulation problems and the operator
had been issued numerous section 75.400 violations. (Sec’y Br. 11). The Secretary states that
both past discussions and multiple violations serve to put an operator on notice of a recurring
safety problem. (Sec’y Br. 12).

Big Ridge argues that no violation of section 75.360(a)(1) occurred but does not contest the
occurrence of the violation of section 75.400. Regarding section 75.360(a)(1), Big Ridge
contends that at the time of Applin’s examination no hazard existed because the belt was not in
contact with any accumulations. (Big Ridge Br. 8-9). At the time of the inspection the contact
between the accumulations and the belt was only one square foot. (Big Ridge Br. 9). Thus, the
hazardous condition was not in existence for a substantial period of time. (Big Ridge Br. 9).

Big Ridge further argues that the S&S designation was improper for both orders. An
injury-causing event was not reasonably likely to occur. (Big Ridge Br. 3). The accumulations
were very wet and less likely to ignite; additionally, the inspector confused the presence of float
coal dust on the 4A belt with the conditions in the slope tail area. (Big Ridge Br. 3). Methane
was also not detected in the area. (Big Ridge Br. 4). Big Ridge further relies on its fire detection
systems: CO sensors coupled with fire suppression equipment on the belt line would provide
early warning and prevent ignition. (Big Ridge Br. 4). Moreover, Big Ridge relies on Terry
Bentley, the MSHA Chief of Health and Safety, and his report on belt entry fires, which states
that between 1980 and 2005 there were only 63 reportable fires and no fatalities or lost time
(“Bentley Report”). (Big Ridge Br. 5; Ex. R-7). Therefore, the hazardous condition is unlikely
to result in any serious injury. Specifically for the violation of section 75.360(a)(1), the S&S
designation must be based on the failure to report, not necessarily on the presence of the
condition itself. (Big Ridge Br. 9).

Big Ridge also contests the unwarrantable failure designation for both orders. Big Ridge
argues that management had no knowledge of a hazard; Applin did not observe accumulations in
contact with the belt line. (Big Ridge Br. 7.) Furthermore, the accumulations were limited in
scope and not obvious. (Big Ridge Br. 7). Butler testified that the belts were carrying coal
during the inspection and the condition was likely created by spillage on the current shift. (Big
Ridge Br. 7). The point of contact between the accumulations and belt line was small and could
easily be missed by an examiner. (Big Ridge Br. 8).

4.         Discussion and Analysis

a. Order No. 6675150

Big Ridge did not contest the violation of section 75.400, but it contends that the Secretary
did not establish that the violation was S&S. I agree. The Secretary established the first two
elements of the Mathies test but did not prove that it was reasonably likely that the hazard
contributed to by the violation would result in an injury. The accumulations were mostly wet.
There were no ignition sources in the area that were likely to ignite the coal or cause it to
smolder. The belt rubbing in the coal accumulations was not a likely ignition source. There was
no evidence that the belt was misaligned, that it was rubbing against the metal supports for the
conveyor system, or that any other ignition sources or methane were present. The inspector
testified that if the bearings on the tail pulley were to fail, metal would rub against metal and that
grinding action could create heat and ignite the grease in the bearings which would ignite the
coal. (Tr. 1:35). Such a chain of events, although possible, is unlikely given the facts in this
case. There was no showing that the belt was running during the previous maintenance shift.
Assuming continuing mining operations, the accumulations would have been cleaned up during
the normal mining cycle before an S&S hazard was created. Finally, although the presence of
CO detectors and a fire suppression system does not eliminate the hazard, it reduces the
likelihood of serious injuries. The violation was serious, however, because if a fire were to
break out, a serious injury could result.

Big Ridge also contends that the Secretary did not establish that the violation was the result
of its unwarrantable failure. I find that the violation was the result of Big Ridge’s unwarrantable
failure to comply with the safety standard. The evidence establishes that the violation had
existed since the end of the previous production shift. The violation was confined to a small
area, but it was in a location where the operator should expect accumulations to develop. All of
the coal produced at the mine exits the mine via the slope belt. Several belts dumped onto the
slope belt in the area where the order was issued. Consequently, the operator should give special
attention to this area to make sure that accumulations are promptly cleaned. I find that Big
Ridge had been placed on notice that greater efforts were necessary to comply with section
75.400 throughout the mine and especially along coal-carrying conveyor belts at the mine. Mr.
Applin testified that he told some red-hat miners to clean up the accumulations and that he wrote
down the conditions he observed in his notepad, but he did not write anything in the preshift
examination books. Thus, he was aware that accumulations existed in the cited area. He
believed that he was not required to record coal accumulations if the belt was not rubbing in
them or, presumably, if there were no other ignition sources present. I do not credit the
testimony about the red-hat miners and instead find that Big Ridge made no effort to clean up the
accumulations. The accumulations were not readily obvious, but given their location, it was
incumbent on the operator to take special care to look for accumulations in the cited area. Big
Ridge’s conduct amounted to a serious lack of reasonable care. The negligence was high. A
penalty of $15,000.00 is appropriate for this violation.

b. Order No. 6675151

Big Ridge contends that the Secretary did not establish a violation of section 75.360(a)(1).
I find that a hazardous condition was present at the time of Applin’s preshift examination and
that he failed to recognize this hazard or record the hazard in the preshift records. As stated
above, preshift and onshift examiners have a duty to carefully examine the cited area because it
is subject to spillage and accumulations. The examiner must take a moment to thoroughly
observe the conditions around the slope tail pulley in order to discharge his obligation to conduct
a thorough preshift examination. A cursory walk-though is not sufficient given the likelihood
that accumulations will develop in that location. As discussed above, I found that the
accumulations created a serious safety hazard but that they were not S&S. The obligations set
forth in section 75.360 to examine for and record hazardous conditions are not limited to those
hazardous conditions that are S&S. Enlow Fork Mining Co., 19 FMSHRC 5, 14-15 (Jan. 1997).

I also find that this violation was S&S. The preshift examination requirement “is of
fundamental importance in assuring a safe working environment underground.” Buck Creek, 17
FMSHRC at 15. The preshift examination is intended to “prevent hazardous conditions from
developing.” Enlow Fork, 19 FMSHRC at 15 (emphasis added). Thus, even though Applin did
not consider the accumulation amount to be hazardous at the time of his examination, it was
clear that it would not take much more added coal to create a very serious hazard. Thus, the
failure to recognize and record the hazard presented a reasonable likelihood that the hazard
contributed to by this violation would result in an event in which there was a serious injury.

Whether this violation was a result of Big Ridge’s unwarrantable failure is a closer
question. As the preshift examiner, Mr. Applin was an agent of Big Ridge and his failure to
report the coal accumulation is imputed to Respondent. Rochester and Pittsburgh Coal Co., 13
FMSHRC 195-96 (Feb. 1991). Applin was an experienced examiner. He did not recklessly or
intentionally disregard his responsibilities and he was not indifferent to any hazards present.
Although Applin believed that the conditions did not present a significant hazard because the
coal was damp and the belt was running in only a small section of the accumulations, the
operator had been warned a number of times that it was not doing enough to remove
accumulations. Both these past warnings and multiple violations of section 75.400 during the
weeks leading up to October 28 put the operator on notice that it needed to conduct more
thorough preshift examinations in areas where accumulations were likely to develop. The failure
of Big Ridge to take steps to retrain its examiners to better identify hazardous accumulations
demonstrates a serious lack of reasonable care. Consequently, I find that the Secretary
established that this violation was a result of the operator’s unwarrantable failure to comply with
the safety standard. A penalty of $20,000.00 is appropriate for this violation.

B.Docket No. LAKE 2009-706

1.         Citation No. 8417452

On July 20, 2009, Inspector Morris issued Citation No. 8417452 under section 104(a) of the
Mine Act, alleging a violation of 30 C.F.R. § 75.400 as follows:

An accumulation of combustible materials, in the form of coal
fines and loose coal, is present on the 4F operating conveyor belt
at the belt drive. The accumulations are located on both motor
trays and under the belt drive and range from 1 to 16 inches in
depth by 2-4 feet in width by 1-5 feet in length and are against the
motors.

(Ex. GX-38). The inspector determined that an injury was reasonably likely and that lost
workdays or restricted duty would be expected if an injury occurred. He further determined that
the violation was S&S, the operator’s negligence was high, and two persons would be affected.
The Secretary proposed a penalty of $16,867.

2.         Background Summary of Testimony

Inspector Morris testified that during his regular inspection on July 20, 2009, he observed
accumulations of “combustible materials surrounding the drive motor” on the 4F conveyor belt.
(Tr. 1:133-34). The 4F belt’s drive motors are located on “trays” under the belt. In front of the
drive rollers, there are scrapers present to keep accumulations off the motor. (Tr. 1:134). Morris
found “coal fines and loose coal on both motor trays and under the belt drive.” (Tr. 1:135).
Morris measured the accumulations located against the motors to be approximately one to
sixteen inches deep, two to four feet wide, and one to five feet in length. (Tr. 1:135). Morris
testified that the accumulations were combustible and likely formed because the scrapers were
not properly aligned against the belt. (Tr. 1:135).

Morris designated the citation to be S&S because the accumulations were surrounding the
motors and close to the couplers, which provide a frictional heat source that could produce an
ignition. (Tr. 1:136-37). The resulting fire hazard, Morris reasoned, could produce injuries that
produce lost work days or restrict duties because of breathing problems from smoke inhalation
or injuries from restricted visibility. (Tr. 1:138). Morris testified that CO monitors and a fire
suppression system were located in the area, but he does not take those into consideration
because the hazardous condition still exists and safety measures do not always work properly.
(Tr. 1:138-39). Morris further states that he personally believes that the most likely place to
have a fire in a coal mine is the conveyer belt; he has worked with belts and has been involved
with a belt fire before. (Tr. 1:139-40). The violation was also designated as high negligence
because Morris had previously met with the management about accumulations on the conveyer
belts. (Tr. 1:140-41). Additionally, Big Ridge’s history of section 75.400 violations factored
into Morris’s determination. (Tr. 1:142). Big Ridge shut down the belt and cleaned the area;
Morris terminated the citation two hours later on the same day. (Tr. 1:143). Morris estimated
that the accumulations had existed for more than three shifts based on his mining experience and
the volume of accumulations present. (Tr. 1:143).

On cross-examination Morris testified that he did not take any temperature readings of the
belt drive components and the CO sensors were working as far as he knew. (Tr. 1:146-47).
Morris also confirmed that the belt fire he had experience with occurred before CO sensors and
fire suppression systems were required. (Tr. 1:149). Morris agreed that Big Ridge had fewer
section 75.400 violations prior to Citation No. 8417452 than in previous time intervals but he did
not feel that this should be a mitigating circumstance in this case. (Tr. 1:150-51). On redirect
examination, however, Morris testified that in the first quarter of 2009, twenty-nine section
75.400 violations were issued and in the second quarter ninety-seven section 75.400 violations
were issued to the operator. (Tr. 1:153-54; Ex. GX-18).

Bob Clarida, the safety supervisor, testified that he accompanied Morris during the
inspection on July 20, 2009. (Tr. 1:162). Clarida described the accumulations as “corn flakes,”
which are made up of a mixture of fire clay and coal dust. (Tr. 1:162). The accumulations were
tested and were determined to be 40% combustible. (Tr. 1:163). Clarida further testified that he
did not believe that the accumulations would be reasonably likely to catch on fire because the
running temperature of the motors is typically around 120 degrees and the ignition temperature
of coal is 881 degrees. (Tr. 1:163-64). On cross-examination, Clarida testified that regarding
the numbers he referenced above, the testing had been done a “few years back” and that he never
actually examined any of the results. (Tr. 1:165-66).

Todd Grounds, the compliance manager of the Mine, testified as to the operator’s programs
in place to address section 75.400 violations. (Tr. 1:170). In late January or early February of
2009 a program was put in place to inspect the belt lines above and beyond the regular
examination. The program required that both the walkway side and the back side of the belt
would be inspected. (Tr. 1:170-71). Additionally, in February of 2009 the operators assigned
two additional mechanics to fix hydraulic leaks. (Tr. 1:171). Grounds testified to the positive
results of the programs, where May and June of 2009 showed a significant decrease in the
number of section 75.400 violations. (Tr. 1:172-73; Ex. R-29).

3.         Summary of Parties’ Arguments

The Secretary argues that Big Ridge violated section 75.400 when it allowed accumulations
of combustible materials around the belt drive motor. (Sec’y Br. 13). The Secretary contends
that the violation was properly designated S&S because the accumulations were getting close to
an ignition source, which posed a fire hazard. The rotating coupler produces frictional heat and,
when material is packed around the motor, a fire hazard results. (Sec’y Br. 13). Smoke from a
fire would cause smoke inhalation or injuries from reduced visibility. (Sec’y Br. 14). The
Secretary further argues that the presence of fire protection measures does not control whether a
safety hazard was present. (Sec’y Br. 14). The Secretary also argues that the violation resulted
from Big Ridge’s high negligence. Big Ridge was on notice of the accumulations problem
because of the previous citations and conversations Morris had with management. (Sec’y Br.
15). Additionally, the Secretary contends that the accumulations had existed for a least three
shifts. (Sec’y Br. 15).

Big Ridge does not challenge the violation of section 75.400, but does contest the S&S and
high negligence designations. Regarding the S&S designation, Big Ridge argues that the third
element of the Mathies test was not established; there was no likelihood of an injury-causing
event. (Big Ridge Br. 10). Big Ridge relies on Clarida’s testimony that the accumulations were
mostly non-combustible and the heat generated from the belt drive was not sufficient to ignite
coal. (Big Ridge Br. 10). Further, Big Ridge notes that the Bentley report demonstrates that
there have been few reportable injuries caused by belt fires in the coal mining industry. (Big
Ridge Br. 11-12). Therefore, a belt fire causing an injury is “highly unlikely,” and lost time or
reduced work is not likely to occur. (Big Ridge Br. 11-12).

4.         Discussion and Analysis

The Secretary established a violation of section 75.400. As with Order No. 6675150,
above, I find that the Secretary did not establish that the violation was S&S. The third element
of the Mathies test was not met in this instance. The accumulations were less that 50%
combustible; the temperature of the motor was not great enough to ignite the accumulations; it
was unlikely that any heat generated by the belt drive would ignite the accumulations; and the
CO monitors would have alerted miners if any of the material started smoldering. The risk of an
injury from this violation was remote. There was no evidence that the belt motor, the belt, or
any other piece of equipment was functioning improperly such that it might become an ignition
source. Of course, it was possible that the accumulations could start to smoke, but such an event
was not likely taking into consideration continued normal mining operations. I credit the
testimony of Bob Clarida on this issue. The gravity of the violation was serious.

I find that Big Ridge’s negligence was greater than moderate. I credit the testimony of
Inspector Morris that the accumulations had been present for a lengthy period of time. I do not
doubt that the mine had been doing a better job of examining its belt lines for accumulations
starting in early 2009 or that it reduced the number of citations it has been issued for violations
of section 75.400. Nevertheless, the fact that this accumulation had been present for some time
demonstrates that Big Ridge’s preshift examinations still needed improvement. The negligence
was high. A penalty of $10,000.00 is appropriate.

C.           Docket No. LAKE 2009-326

1.         Citation Nos. 6678829 and 6678835

On September 4, 2008 and September 9, 2008, MSHA Inspector Danny Ramsey issued
Citation Nos. 6678829 and 6678835. Both citations were issued under section 104(a) of the
Mine Act, alleging a violation of 30 C.F.R. § 75.1722(b). Citation No. 6678829 states as
follows:

The tail roller guard, located on the Unit-5 (5C) conveyer tail
piece, was not extended a distance sufficient to prevent a person
from reaching behind the guard and becoming caught between the
belt and the pulley. An opening in the guard measuring
approximately 5 to 8 inches in width and 24 inches in length was
observed exposing the moving tail pulley.

(Ex. GX-9). Citation No. 6678835 states as follows:

The tail pulley guard, located on the Unit-2 2 (B) conveyor tail
piece, was not extended a distance sufficient to prevent a person
from reaching behind the guard and becoming caught between the
belt and the pulley. An opening measuring approximately 3 to 4
inches in width and 24 inches in length was observed exposing the
moving pulley.

(Ex. GX-11). On both citations, the inspector determined that an injury was reasonably likely to
occur and that the injury would be permanently disabling. He further determined that the
violations are both S&S, with Citation No. 6678829 being high negligence and Citation No.
6678835 being moderately negligent. Section 75.1722(b), entitled “Mechanical equipment
guards” provides that “[g]uards at conveyor-drive, conveyor-head, and conveyor-tail pulleys
shall extend a distance sufficient to prevent a person from reaching behind the guard and
becoming caught between the belt and the pulley.” 30 C.F.R. § 75.1722(b). The Secretary
proposes a penalty of $1,795 and $5,961 respectively.

2.         Background Summary of Testimony

a. Citation No. 6678829

Inspector Ramsey testified that on September 4, 2008, he was at the mine and traveled
with Bob Clarida, the company representative, and Zach Gibbons, the miner’s representative.
(Tr. 1:192). During the inspection, Ramsey observed an opening on the guarding for the Unit 5
conveyor tail piece. (Tr. 1:179). The opening exposed the moving tail pulley, and was measured
to be five to eight inches in width and 24 inches in length, about two-thirds the height of the
entire machine. (Tr. 1:179, 184). The guard was made of “belting” and was located “at the end
of the conveyor belt where the section feeder . . . unloads onto it.” (Tr. 1:179). Ramsey testified
that the guarding standard helps prevent miners from reaching behind the guard and exposing
themselves to moving mechanical parts, specifically from becoming caught between the belt and
the pulley. (Tr. 1:180-81, 182). Miners typically have to reach behind the guards to clean,
service, grease, and maintain the tail rollers. (Tr. 1:181-82). The distance between the guard
and the moving tail roller was about ten inches. (Tr. 1:182). Ramsey observed debris and wire
around the shaft of the tail pulley that was “easily” seen from the opening. (Tr. 1:185). The
feeder car on the machine did not provide any protection because the opening was still
accessible. (Tr. 1:186).

Ramsey testified that the violation was reasonably likely to cause an injury because the
machine was going to have to be cleaned out and people sometimes do not make “smart” choices
when working around moving parts. (Tr. 1:187). The violation was likely to result in a
permanently disabling injury. (Tr. 1:187). Ramsey determined this from both MSHA guidelines
and personal experience; he knew two people who had been injured from reaching into moving
machinery. (Tr. 1:188-89). One individual reached into a drive and his arm was pulled off
resulting in a fatality, and the other individual had an injury that exposed bone in his arm. (Tr.
1:188-89). Ramsey reasoned that in this particular case a worker would lose function of a limb
if caught in a pinch point of the machinery. (Tr. 1:189). Only one worker would be affected
because only one can reach within the guard at a time. (Tr. 1:189).

Ramsey further determined that the violation was S&S due to the seriousness of the
potential injury, the frequency of people within the area, and the likelihood of occurrence. (Tr.
1:190). Ramsey also determined the violation was due to moderate negligence on behalf of the
operator. (Tr. 1:190). The condition was obvious, but Ramsey could not determine how long
the condition existed or who knew of the condition. (Tr. 1:190-91). The onshift paperwork did
not reference the cited condition at the Unit 5 conveyor tail piece. (Tr. 1:191). Repairing the
guard, closing the opening, and securing it with tie wire abated the citation. (Tr. 1:193).

On cross-examination, Ramsey testified that section 75.1722(b) specifically references
guarding the point where the belt and roller meet, the pinch point. (Tr. 1:201). The feeder will
overlap with the tail piece and bolt onto the machine’s frame. (Tr. 1:202). With the feeder on
the belt, one would have to crouch and reach in about 20 inches to get to the pinch point. (Tr.
1:207-08). Further, Ramsey testified that most workers would have no reason to reach under the
guard; greasers have a hose that extends out of the guard and they have no reason to reach
underneath the belt; shovelers use long handled shovels affording them protection; and
examiners do not stick their hands under the belt. (Tr. 1:209-10).

Clarida, the safety supervisor, testified that a feeder would make it harder to access the
pinch point. (Tr. 1:222). The feeder overhangs the guard by around 24 to 30 inches. Thus, to
get a hand in the pinch point, one would have to lie down against the machine; one would not
come into contact with the pinch point by merely walking by or working around the area. (Tr.
1:223-24).

b. Citation No. 6678835

Inspector Ramsey testified that on September 9, 2008, he issued another citation for a
violation of section 75.1722(b). (Tr. 1:194; Ex. GX-11). The violation was on the Unit 2, 2B
conveyor tail piece, and Ramsey measured its opening to be three to four inches in width, 24
inches in length, and exposing the moving tail pulley. (Tr. 1:194). The machine was similar to
the machine in the citation above but without the feeder car. (Tr. 1:194). The guarding was
made out of belt material, and the gap in the guards was 16 inches away from moving parts. (Tr.
1:194-95). Ramsey reasoned that the belt material used for the guards could easily have been
made wider for access. (Tr. 1:196). Miners are around the 2-B tail piece at least once a shift
because the mine examiner checks the area, and cleaning as well as maintenance has to be
performed. (Tr. 1:195).

Ramsey determined that the violation was reasonably likely to occur because the moving
pulley was exposed. (Tr. 1:196-97). Ramsey had issued another citation for accumulations
around the tail piece and within the opening; therefore, someone had to be in the area to clean.
(Tr. 1:197). The violation was also determined to likely result in a permanent or disabling injury
and would affect one person for the same reasons as Citation No. 6678829, above. (Tr. 1:198).

Ramsey further determined that the violation was S&S because, if left unabated, a serious
injury would result. (Tr. 1:198). Ramsey determined that the operator displayed a high level of
negligence because the operator knew or should have known about the violation and there were
no mitigating circumstances. (Tr. 1:198). After Ramsey issued Citation No. 6678829, above, on
September 4, 2008, he stated that he gave Clarida a verbal notification that he would raise the
level of negligence in the next citation he issued for a violation of the guarding standard. (Tr.
1:198).

Clarida testified that the setup of the tail piece is similar to the citation above, but no feeder
was located on the belt line. (Tr. 1:226). He believes that any potential injury would not result
in a permanent and disabling injury, and that one would have to deliberately stick a hand in the
opening for an injury. (Tr. 1:227). Clarida states that he believed Ramsey did speak with him
about the guarding violations but could not remember for sure. (Tr. 1:228).

3.         Summary of Parties’ Arguments

The Secretary argues that Big Ridge violated section 75.1722(b) as set forth in both
citations because a gap was allowed in the unsecured guarding on the Unit 5C and 2B tail pieces,
respectively. The regulation requires that a guard be present to prevent reaching behind and
becoming caught. (Sec’y Br. 17). A sufficient distance for moving parts would be
approximately 30 inches or the length of a man’s arm. (Sec’y Br. 17). The Secretary contends
that Citation No. 6678829 was properly designated S&S and moderately negligent. The S&S
designation was proper because an injury was reasonably likely to occur because miners
frequently traveled in the area, and clean up would have to be done in the near future in the area
as well. (Sec’y Br. 17). A moderate negligent designation is also appropriate because the
condition was obvious and the area is examined once a shift. (Sec’y Br. 18). The Secretary
rejects Big Ridge’s argument that section 75.1722(b) only requires guards against the pinch
point between the belt and tail pulley and guards only need to protect miners from accidental
contact. (Sec’y Br. 18-19). The language and intent of the regulation focuses on a miner
deliberately reaching through an inadequate guard and is not limited to just one particular pinch
point. (Sec’y Br. 18-19). The Secretary also contends that Citation No. 6678835 was properly
designated S&S and moderately negligent. The S&S designation was proper because it was
reasonably likely that an injury world occur because accumulations had to be cleaned up around
the tail piece. (Sec’y Br. 19-20). The designation of high negligence by the operator is also
appropriate because Ramsey had previously given notice to Big Ridge about guard violations.
(Sec’y Br. 20).

Big Ridge first argues that no violations of section 75.1722(b) occurred. The guards in
place were sufficient to prevent contact where the belt and pulley meet. (Big Ridge Br. 15). The
guard in Citation No. 6678829 did not permit access to the pinch point located 20 inches from
the guard, and the pinch point was further protected by the feeder. (Big Ridge Br. 16). Citation
No. 6678835 was similar in that the guard did not permit access to the pinch point and one
would have to lie on the ground to access the area. (Big Ridge Br. 16). A miner could not slip
or trip and be placed in a position to contact the pinch point. (Big Ridge Br. 17). If both
guarding violations did occur, Big Ridge argues that both should not be designated S&S. The
S&S designation is improper because there was no likelihood of an injury-causing event, the
third element of the Mathies test. (Big Ridge Br. 17). An injury is unlikely because of the
location of the pinch point and the presence of the guard. (Big Ridge Br. 17). Anyone
performing work on the belt line was required to lock out and tag out the line, and travel by the
belt would not cause contact with the pinch point. (Big Ridge Br. 18). Furthermore, Big Ridge
contests the high negligence designation on Citation No. 6678829, because no conversation
between Ramsey and Clarida ever took place regarding guarding violations on September 4,
2008. (Big Ridge Br. 18). If the conversation did occur, mitigating circumstances were still
present because the guards present prevented all but deliberate conduct. (Big Ridge Br. 19).

4.         Discussion and Analysis

Section 75.1722 is a very important safety standard. It requires that moving machine parts
be guarded to prevent miners from becoming entangled in these moving parts and sustaining
severe injuries. Unguarded or inadequately guarded moving machine parts present a significant
hazard to miners. This safety standard is essential because miners, in conducting their day-to-day activities, should not be exposed to the hazards presented by moving machine parts. As the
Commission stated in Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), guarding
standards should be interpreted to take into consideration a “reasonable possibility of contact and
injury, including contact stemming from inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness.” “Even a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental distractions. . . .” Great Western Electric
Co., 5 FMSHRC 840, 842 (May 1983).

Nevertheless, I am bound by the terms of the safety standard that is cited. In this case, the
inspector cited section 75.1722(b) which provides that “[g]uards at conveyor . . . pulleys shall
extend a distance sufficient to prevent a person from reaching behind the guard and becoming
caught between the belt and the pulley.” (emphasis added). This standard was drafted narrowly
to protect a miner from reaching behind a guard and getting caught between a belt and a pulley.
It does not cover the hazards related to other moving machine parts, such as gears, sprockets,
chains, flywheels, or similar moving machine parts. Consequently, the issue is whether the two
conditions cited by Inspector Ramsey presented a hazard of getting caught between the belt and
the pulley.

With respect to the first citation, Inspector Ramsey testified that it was possible to reach
underneath the belt guarding and come in contact with the pulley. (Tr. 1:186). The point where
the belt rolls onto the pulley was about four to six inches above the ground. (Tr. 1:202).
Someone would have to reach in to contact the pulley and that person would have to be
crouching. (Tr. 1:206). The inspector estimated that it was about 20 inches from the bottom of
the guard to the subject pinch point. (Tr. 1:207). There was also a gap between the pieces of
belting that were being used as a guard. (Tr. 1:208).

With respect to the second citation, Inspector Ramsey testified that it was about 16 inches
between the guard and the pulley. (Tr. 1:195). As with the previous citation, because the guard
was made of hanging pieces of belting, a miner could push them aside. (Tr. 1:196). There were
accumulations behind the guarding. (Tr. 1:197).

I find that the Secretary established a violation in both instances. The belting used as
guarding was not secured in such a way to prevent a miner from coming into contact with the
pinch point between the pulley and the belt. Miners were in the area once a day to perform
examinations and to perform routine maintenance. Based on the testimony of Inspector Ramsey,
I find that there was a “reasonable possibility of contact and injury” with the pinch point
between the belt and the pulley. The guarding material was somewhat flexible and there were
gaps in the guarding with the result that a miner’s hand or clothing could get caught in the
subject pinch point.

I find that the violations were not S&S, however. The two pinch points were very low to
the ground and were a considerable distance behind the existing guards. Although an injury was
possible as a result of the cited conditions, it was not reasonably likely that anyone would be in a
position to become entangled in the cited pinch points. As a consequence, it was not reasonably
likely that the hazards contributed to by the violations would result in an event in which there
was an injury. A person would have to be very low to the ground and reach up under the
existing guards. Even then, it would not be very likely they would be injured at the pinch points
because they were 20 inches or so beyond the guard. The gravity of the citations was low.

I find that the negligence for Citation No. 6678829 was low. Given the position of the
pulley and presence of the feeder, it was not readily obvious that additional guarding was
required under the safety standard. The negligence for Citation No. 6678835 is moderate. I
credit the testimony that Inspector Ramsey discussed the need to provide more substantial guards
at tail pulleys. A penalty of $1,000.00 is appropriate for Citation No. 6678829 and a penalty of
$4,000.00 is appropriate for Citation No. 6678835.

D.           Docket No. LAKE 2009-435 and LAKE 2009-436

1.         Order No. 6683115 and Citation Nos. 6683116 and 6683117

On February 23, 2009, Inspector Scott Lee issued one order and two citations. The citations
and order were issued at the same location along the slope belt. Order No. 6683115 was issued
under section 104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.362(b) as
follows:

An inadequate exam was performed on the slope belt on the 2nd
shift on 2/23/2009. A frozen bottom roller acting like a scraper
approximately 30 ft. outby the slopes tail piece was observed with
accumulations of combustible material in the form of coal fines
underneath it. The fines were approximately 6ft. in width, 5ft. in
length and 25 inches in height, (touching the bottom belt) and were
packed around the roller on its inby side. The onshift examiner
had just walked this belt approximately 45 mins. prior to this
inspector observing this condition. Based upon this inspector’s
experience this condition had been present for at least one shift.
After the cited roller was removed a flat spot 47 inches in length
and 2 inches wide was measured on the roller, another indication
that the condition had existed for some time prior to the
examination. To abate the order all examiners will have to be
retrained on how to examine a belt line properly.

(Ex. GX-13). The inspector determined that an injury was reasonably likely to occur and that the
injury could be expected to result in lost workdays or restricted duty. He further determined that
the violation was S&S, the company’s negligence was high, and three persons were affected.
Section 75.362(b), entitled “On-shift examination,” provides in part that “[d]uring each shift that
coal is produced, a certified person shall examine for hazardous conditions along each belt
conveyor haulageway where a belt conveyor is operated.” 30 C.F.R. § 75.362(b). The Secretary
proposes a penalty of $6,624.

Citation No. 6683116 was issued under section 104(a) of the Mine Act, alleging a
violation of 30 C.F.R. 75.1725(a) as follows:

A frozen bottom roller was observed approximately 30 ft. outby
the slope belt’s tail piece. Accumulations of coal fines were
packed around it on its inby side. This condition should have been
observed by the on shift examiner during his examination
approximately 45 minutes prior.

(Ex. GX-14). The inspector determined that an injury was reasonably likely to occur and that the
injury could be expected to result in lost workdays or restricted duty. He further determined that
the violation was S&S, the company’s negligence was high, and three persons were affected.
Section 75.1725(a), entitled “Machinery and equipment; operation and maintenance” provides
that “[m]obile and stationary machinery and equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall be removed from service
immediately.” 30 C.F.R. § 75.1725(a). The Secretary proposes a penalty of $9,634.

Citation No. 6683117 was issued under section 104(a) of the Mine Act, alleging a violation
of 30 C.F.R. 75.400 as follows:

Accumulations of combustible material in the form of coal fines
was allowed to accumulate and make contact with a bottom frozen
roller. The accumulations measured approximately 6ft. in width,
5ft. in length and 25 inches in height. This condition was observed
approximately 30 ft. outby the slope belt tail piece.

(Ex. GX-15). The inspector determined that an injury was reasonably likely to occur and that the
injury could be expected to result in lost workdays or restricted duty. He further determined that
the violation was S&S, the company’s negligence was high, and three persons were affected.
The Secretary proposes a penalty of $18,271.

a. Background Summary of Testimony

Inspector Lee testified that on February 23, 2009, he was inspecting the slope belt of the
mine. (Tr. 1:238, 240) Lee has worked as an MSHA inspector for eleven years and has over 35
years of experience in the mining industry. (Tr. 1:235). The location of the violation on the
slope belt was approximately 30 to 40 feet outby the location Inspector Morris cited in Order No.
6675150. (Tr. 1:240). Lee had decided to spot check this area because he had issued an order in
the area a few weeks prior and to double-check the examiners who preshifted the slope belt
thirty minutes earlier. (Tr. 1:240-41). Walking the belt line Lee saw accumulations under a
roller from 30 to 40 feet away. (Tr. 1:241). The accumulations were touching the bottom of the
belt and measured 25 inches in depth. (Tr. 1:241-42). Accumulations were observed on both
sides of the roller with more on the outby side because the frozen roller was acting as a scraper
on the return side of the belt. (Tr. 2:4-5). Lee testified that he observed the belt running and the
roller not turning with the accumulations packed around the roller. (Tr. 1:242-43). Lee
measured the accumulations to be approximately five feet in length and five feet in width,
confined in the area around the roller. (Tr. :244-45, 247). The accumulations consisted of moist
coal fines that had the potential to dry out. (Tr. :247). Inspector Lee issued one order and two
citations based on the conditions he observed. (Tr. 1:246-47). Lee further testified that, based
on his experience, the accumulations had been present for at least one shift because of the
volume present. (Tr. 1:248). Lee reasoned that an examination on the belt line was performed
around 45 minutes before his inspection at 3:45 p.m., and the next examination would not have
been performed until six o’clock the next morning. (Tr. 1:249-50, 2:9).

Regarding Order No. 6683115, the inadequate exam violation, Lee testified that he
designated it as S&S because there was an ignition source present. (Tr. 1:251). Lee reasoned
that the “frozen” roller created a heat source that could ignite the coal fines and start a fire. (Tr.
1:251, 1:255). The roller was warm to the touch, but the exact temperature was not measured.
(Tr. 1:251). Lee described the roller as flat on one side where the belt had been rubbing and was
measured to be two inches wide and 47 inches long. (Tr. 1:251-52; Ex GX-16). The slope belt
is along a main travel road, where smoke from a fire would affect anyone on the travel road.
(Tr. 1:257). According to Lee, the hazard would be reasonably likely to occur because no one
would be in the area to observe a fire. (Tr. 1:257-58). Lee further stated that the above
characterization also applied to his designation of Citation No. 6683116, the machinery
violation, and Citation No. 6683117, the accumulations violation, as S&S. (Tr. 2:10).

Lee further testified that he designated the violation in Order No. 6683115 as an
unwarrantable failure because the condition was obvious. (Tr. 2:10). Lee did not have to kneel
down to see the accumulations and the slope belt is the primary hazard area within the travel
way. (Tr. 2:11). A few weeks beforehand, Lee issued an order for a similar issue:
accumulations had built up around bottom rollers on the same slope belt and an exam was
performed 40 minutes prior. (Tr. 2:12). The operator had been made aware of problems with
examinations by MSHA; three or four inadequate exam violations had previously been issued.
(Tr. 2:12-13). Lee determined, based on his experience, that the accumulations had existed for a
period of time because of the amount compacted around the roller. (Tr. 2:13). In Lee’s opinion,
the accumulations existed when the examiner examined the slope belt 45 minutes prior to Lee’s
inspection. (Tr. 2:14). Lee further designated the order as high negligence because there were
no mitigating circumstances; the examiner did not deal with the accumulations properly. (Tr.
2:16). The order was abated after the examiners were given additional training concerning
reporting hazardous conditions. (Tr. 2:21).

Lee testified that he issued Citation No. 663116, the machinery violation, because the roller
was not turning, which was evident by the flat spot on the roller. (Tr. 2:14). When the roller
was taken out, the bearings were still working. (Tr. 2:14). Lee testified that when the
accumulations became packed around the roller, the roller could no longer turn. (Tr. 2:14). Lee
also designated this violation as high negligence for the same reasons as the inadequate exam
violation above. (Tr. 2:17). Lee prepared the closeout report for the mine in March 2009, and
section 75.400 violations had increased from the previous quarter. (Tr. 2:20). The belt was shut
down and the roller was removed to abate this citation. (Tr. 2:22).

Inspector Lee issued Citation No. 6683117 because combustible material had accumulated
around the slope belt. (Tr. 2:17). The violation was determined to be high negligence because
approximately 60 section 75.400 violations had been issued since the first of the year. (Tr. 2:18-19; GX-17). The accumulations were shoveled and removed from the mine to abate this
violation. (Tr. 2:22).

On cross-examination, Lee admitted that some of the citations issued in January 2009 had
been vacated by a judge. (Tr. 2:23-24). Additionally, the closeout report only references
categories of violations and not specific section violations. (Tr. 2:24). CO sensors were also
located on the slope belt. (Tr. 2:33). Lee testified that he was traveling with Mike Cummins, the
union representative, and Cliff Kanady, the safety manager, while performing his inspection.
(Tr. 2:37).

Kanady testified that he has 40 years of mining experience and traveled with Inspector Lee
in February 2009. (Tr. 2:43-44). Kanady did not notice any violations on the belt line until Lee
showed him the frozen roller. (Tr. 2:45). The accumulations were not noticeable until Kanady
“stooped over a certain amount;” the accumulations were on the outby side but not against the
belt. (Tr. 2:46). Kanady testified that he considered the belt line to be clean and the walkway to
be clear. (Tr. 2:47; Ex. R-5). On cross-examination, Kanady testified that he thought the roller
looked new because it was still painted. (Tr. 2:51, 53).

Ronnie Hughes, mine manager, testified that he went to the cited area shortly after the order
and citations were issued. (Tr. 2:57). The belt mechanic and Cummins were changing out the
roller, with accumulations on the inby side. (Tr. 2:58). Hughes took photographs of the area
during this time. (Tr. 2:59; E. R-6). Photograph 6A shows the flat spot on the roller, with paint
still on the roller. (Tr. 2:59-60; Ex. R-6A). Hughes reasoned that the roller had never turned and
did not know when the roller was installed, but during the midnight shift the belts are not
running and the maintenance crew changes out rollers. (Tr. 2:60). Photograph 6B shows the
roller still in the hangers from the outby side, with the belt on the right side. (Tr. 2:61).
Photograph 6C is from the same perspective as 6B, with Hughes testifying that he was on his
knees, bent over at the waist taking the photograph. (Tr. 2:62). Photograph 6D shows the roller
from the inby side with accumulations shown. (Tr. 2:63). Photograph 6E is taken from the same
perspective as 6D. (Tr. 2:63). According to Hughes, the accumulations were wet and damp.
(Tr. 2:63). Photograph 6F shows Cummins helping the belt mechanic change the roller, with the
top belt in view. (Tr. 2:64). Hughes states that the bearings were free on the roller after
removal, but the accumulations were not packed around the bearings. (Tr. 2:65-66). At the time
Hughes arrived at the violations to take photographs, he did not observe anybody shoveling in
the area. (Tr. 2:68).

On cross-examination, Hughes testified that the bottom belt was around 24 inches from the
ground. (Tr. 2:69). Hughes agreed that it was easier to see under the belt from a distance due to
the slope of the floor. (Tr. 2:70). Hughes stated that the accumulations were “shaped like a
pyramid with the bottom approximately four [feet] across and the point touching the roller and
the belt.” (Tr. 2:70). He could not tell if any accumulations had already been removed by the
time he arrived. (Tr. 2:71).

Scott Lawrence, the section foreman in February 2009, testified that he accompanied
Hughes underground to the cited area. (Tr. 2:78). Lawrence stated that he could not see any
accumulations until he got down on his knees to look underneath the belt. (Tr. 2:79). When he
and Hughes arrived, miners were in the area working to raise the belt off the roller in order to
change out the frozen roller. (Tr. 2:79-80). Lawrence testified that he believed the roller froze
within a shift or half a shift because a flat spot does not take long to develop. (Tr. 2:81). The
roller still had paint on it, suggesting that the roller never turned because paint would be gone in
about an hour of use. (Tr. 2:82). The accumulations consisted of coal fines that were wet and
damp. (Tr. 2:82). On cross-examination, Lawrence agreed that it was possible that
accumulations could have caused the roller to freeze, but in this case the accumulations were not
compacted even though accumulations were attached to the roller. (Tr. 2:85-86).

Dennis Morris, the mine examiner in February 2009, testified that he onshifted the slope
belt on February 23, 2009, around 3:00 p.m. (Tr. 2:90, 92, 96). Morris stated that he would
walk the west side of the belt and every 60 to 80 feet he would get down on his knees and look
under the belt. (Tr. 2:91). During the examination Lawrence noted, “carbon flakes and fines
under belt, top to bottom” in the record book. (Tr. 2:93; R-2). Lawrence stated that he did not
observe the condition that Inspector Lee wrote up. (Tr. 2:93).

Charlie Hyers, mine examiner, testified that around 7:00 a.m. on February 23, 2009, he was
on the day shift and examined the slope belt. (Tr. 2:103). Hyers remembers the roller in
question because it was brand new and bright red, and it was turning at the time of his
examination. (Tr. 2:104). Hayes also stated that it is not uncommon for a roller to stop turning
on a belt and a flat spot would not take long to form because of the thickness of the slope belt.
(Tr. 2:105).

Chad Barras, the Midwest regional safety director for Peabody Energy, testified that he is
familiar with the above violation types from the training he received while he was a ventilation
inspector for MSHA. (Tr. 2:115). As part of Barras’s current job with Peabody, he reviews
MSHA and industry reports as well as reports from the mines in his region. (Tr. 2:114-15).
Barras stated that he is familiar with the Bentley Report regarding the MSHA study on belt fire
injuries. (Tr. 2:116; Ex. R-7). In the Bentley Report, from 1980 to 2005 there were no fatalities
and no lost time from belt fires. (Tr. 2:117-18). The mine had fire protection systems located
along the belt line consisting of CO systems, fire suppression systems, and belt slip detection
systems that cannot be turned back on remotely. (Tr. 2:118-19). Barras also testified that the
ignition temperature of processed coal at the mine is 880 degrees Fahrenheit and unprocessed
coal or wet coal would raise the ignition temperature. (Tr. 2:119-20). Peabody has tested
samples of “corn flakes” along the belt line in mines that it operates. When this material was
tested at the Willow Lake Mine, it was 40% combustible. (Tr. 2:121). Additionally, Barras has
used heat guns to determine operating temperatures of mining equipment. (Tr. 2:121). Belt
rollers were measured to typically operate around 80 degrees Fahrenheit, with data showing a
maximum temperature around 180 degrees Fahrenheit. (Tr. 2: 122). Barras testified that he
believes Inspector Lee’s determination that each violation was reasonably likely to result in an
injury is not correct. (Tr. 2:122). The accumulations were wet, the machine temperatures could
not have been around 800 degrees Fahrenheit and fire protection systems were in place along the
belt line. (Tr. 2:123-24). On cross-examination, Barras testified that on one occasion the mine
had been cited for a fire suppression violation when the water within had been turned off. (Tr.
2:129-30). After the Bentley Report was issued in 2005, a belt fire occurred where two miners
got lost in a belt fire and died. (Tr. 131).

b. Summary of Parties’ Arguments

The Secretary argues that the evidence established that sections 75.362(b), 75.1725(a), and
75.400 were violated. Coal accumulations were clearly visible to Inspector Lee and these
accumulations had existed for more then a shift because the coal was packed around the belt
roller. (Sec’y Br. 21-22). The belt roller was not in a safe condition because the roller was
“frozen,” causing more accumulations and frictional heat. (Sec’y Br. 22). An examiner had also
walked the belt line with the conditions present but did not take any action. (Sec’y Br. 22). All
three violations are S&S because two ignition sources were present: (1) frictional heat between
the belt and the frozen roller, and (2) frictional heat between the accumulations against the belt.
(Sec’y Br. 23). The frozen roller had been “flattened” on one side from the belt line and was
warm to the touch. Additionally, the accumulations were pressing against the running belt.
These conditions would have continued to exist for a significant period of time because no one
was working in the area and the next examiner would not have walked by until the next day.
(Sec’y Br. 24). A fire was reasonably likely to occur due to these conditions. (Sec’y Br. 24).
The examiner’s failure to record the hazardous condition exposed miners to injuries from a belt
fire. (Sec’y Br. 24).

The inadequate examination violation was properly designated as an unwarrantable failure
and the accumulations and equipment violations designated as high negligence because the
condition was “extensive, obvious, posed a high degree of danger, existed long enough for
miners to be exposed to the danger, and the mine had been placed on notice.” (Sec’y Br. 25).
Lee walked the belt line no more than 45 minutes after the examiner and the conditions likely
existed when the examiner had been there because of the volume of accumulations. The belt
roller also had a flat spot on it, indicating that the roller had been frozen for some time. The
condition was obvious because Lee observed the accumulations from 30 to 40 feet away. The
operator had been on notice to more quickly remove accumulations on the slope tail belt due to
previous citations and verbal communications by MSHA inspectors.

Big Ridge contends first that no violation for section 75.362(b) occurred because no
hazardous condition existed for an examiner to report. (Big Ridge Br. 21). Morris, the
operator’s examiner, did not observe any contact between accumulations and the belt or observe
any frozen rollers. Coal flakes were noted for further action in the record, but generally the
operator’s examiners performed an adequate exam by walking the entire belt line, stopping every
60 to 80 feet to look under the belt line with a cap light. Next, Big Ridge contends that the
finding of an unwarrantable failure was inappropriate. (Big Ridge Br. 23). The condition was
not obvious or extensive. The accumulations did not reach into the walkway and were only five
feet wide and two feet high. Also, during the examination, the frozen roller, painted red, was not
observed. The condition did not present a high degree of danger because the accumulations were
wet, the roller was not hot, and the belt line had a working fire suppression system. Therefore,
no aggravated conduct was present by the operator.

The designation of all three violations as S&S is also contested by Big Ridge because an
injury-causing event was unlikely to occur. (Big Ridge Br. 25). The accumulations were neither
extensive nor dry, making ignition difficult. The accumulations were mostly comprised of non-combustible material and no methane was present. If a fire were to occur, the presence of fire
detection and suppression systems would reduce the spread of a fire and the likelihood of an
injury. Big Ridge finally contests the high negligence designations of the accumulation violation
and the equipment violation. (Big Ridge Br. 26). The section 75.400 violation was small in size,
not obvious, and underneath the belt. The walkway within the area of the violation was narrow,
four feet wide, and was not well lit. Finally, it was unclear when the conditions developed.

c. Discussion and Analysis

For the following reasons, I affirm Order No. 6683115 in all respects. Big Ridge violated
section 75.362(b) because the on-shift examination was clearly inadequate. I credit the
testimony of Inspector Lee as to the conditions he found. Based on the evidence presented at the
hearing, I find that these conditions were a “hazardous condition,” as that term is used in the
safety standard. This standard specifically directs mine operators to examine each belt conveyor
haulageway and this particular belt haulageway is used to transport all of the coal out of the
mine. I further find that these conditions were obvious and should have been discovered by the
on-shift examiner. Inspector Lee saw the accumulations from a distance of about 40 feet. This
examiner passed through the area about 45 minutes prior to the time Inspector Lee observed the
condition. I find that the credible evidence demonstrates that the conditions had not changed
significantly in those 45 minutes.

Conducting adequate pre-shift and on-shift examinations is crucial to maintain a safe
environment in underground coal mines. On that basis I find that the violation was serious and
S&S. Failure to perform adequate workplace examinations creates a measure of danger to safety
that is reasonably likely to contribute to a hazard that will result in an injury of a reasonably
serious nature. In this instance, coal fines were present that were 25 inches high in some places
and were packed around the frozen roller. This condition created a significant safety hazard that
should have been noted by the examiner and addressed by the operator. As stated above, I credit
the testimony of the inspector as to the conditions he observed.

I also find that Big Ridge was highly negligent and that the violation was the result of its
unwarrantable failure to comply with the safety standard. Inspector Lee had issued an order for
a similar condition in the same general area along the slope belt a few weeks earlier. In addition,
as discussed above, Inspector Morris issued an order for a violation of section 75.360(a)(1) along
the slope belt on October 28, 2008. The operator had been placed on notice that its examiners
need to perform examinations that are more thorough and comprehensive. The violation was
obvious and it had existed for at least a shift. Big Ridge exhibited a serious lack of reasonable
care with respect to this violation. A penalty of $20,000.00 is appropriate.

With respect to Citation No. 6683116 alleging a violation of section 75.1725(a), I find that
the Secretary established a serious violation. It is clear that a roller was frozen about 30 feet
outby the tail piece for the slope belt. Because it was frozen, it acted as a scraper and coal fines
accumulated around the roller and also fell to the floor under the roller. It was this frozen roller
that created the accumulation. I find that the condition had existed for some time because the
belt had worn down the metal on the roller to the extent that there was a two-inch wide flat spot
on the roller that extended almost the width of the belt. The remainder of the roller was still
covered with paint. In all likelihood the roller had never turned or, if it turned at all, it did so for
a very short period of time. I conclude that this equipment had not been maintained in a safe
operating condition and it was not removed from service.

I find that the operator’s negligence was moderate. The evidence establishes that the cited
condition was due to unusual circumstances. Given that the roller was still covered in paint, it is
more than likely that it failed long before one would expect and the roller may not have ever
functioned properly. When tested after it was removed from service, the bearings worked and
the roller turned. Although examiners are expected to look for defective rollers, I hold that the
failure of the operator to replace or repair this roller did not amount to high negligence.

With respect to Citation No. 6683117 alleging a violation of section 75.400, I find that the
Secretary established the violation and that Big Ridge’s negligence was high. As stated above, a
competent on-shift examination should have discovered this violation and the accumulations
should have been removed. The conditions were rather obvious.

Whether Citation Nos. 6683116 and 6683117 were S&S is a closer question. The
temperature at which the coal at this mine will ignite is rather high. I credit the testimony of Mr.
Barras on this issue. Although the frozen roller was warm, it was unlikely that it would have
gotten hot enough to ignite the coal fines, assuming continued mining operations. In addition, a
high percentage of the accumulations were incombustible. Mr. Barras credibly testified that the
combustible content of material that sticks to rollers at the mine is about 40%. (Tr. 120-21).
The CO monitoring system and fire suppression system would activate in the event the
accumulations started to smolder. I find that these two violations were not S&S. It was not
reasonably likely that the hazard contributed to by the violations would result in an injury. It
was unlikely that anyone would suffer a serious injury as a result of the violations, assuming
continued mining operations. The violations were serious, however, because, in the event a fire
started and all of the fire suppression systems failed, one or more miners could suffer from
smoke inhalation.

A penalty of $8,000 is appropriate for Citation No. 6683116 and a penalty of $12,000.00 is
appropriate for Citation No. 6683117.

2.         Order No. 6683119

On February 26, 2009, Inspector Lee issued Order No. 6683119 under section 104(d)(2) of
the Mine Act, alleging a violation of 30 C.F.R. § 75.360(a)(1)

as follows:

An inadequate exam was made of the main north intake/primary
escape way for the south side of the mine. One roof bolt had fell
out of the roof exposing an area 8 ft. in width by 9½ ft. in length.
This area was immediately adjacent to the lifeline. It was evident
by at least one set tire tracks from the examiner’s ride on top of the
fallen rock, (which resulted from the missing roof bolt) that this
condition had existed for at least one shift. Other tire tracks in the
cited area indicated that the examiners had been driving around
this exposed area of unsafe roof for some length of time. There
was no record of this hazardous condition in the mine record
books.

(Ex. GX-21). The inspector determined that an injury was highly likely to occur and that the
injury would be permanently disabling. He further determined that the violation was S&S, the
company’s negligence was high, and one person was affected. The Secretary proposes a penalty
of $17,301.

a. Background Summary of Testimony

Inspector Lee testified that on February 26, 2009, at 8:15 in the morning he issued Order
No. 6683119 because he observed a roof bolt on the ground with fallen rock around in a travel
area of the mine. (Tr. 2:136-37). He observed tire tracks on the ground change from the original
pathway to avoid the debris on the ground. (Tr. 2:137). Additionally, there were tire tracks on
top of the debris showing someone had driven over the top of the rocks. (Tr. 2:137). Some of
the tracks went around these rocks. From this evidence Lee determined that the condition had
existed for some time and an examiner would have been through the area with the condition
present. (Tr. 2:138). The area in question is in the main north intake primary escapeway, 74
crosscut. (Tr. 2:139, 141). Lee described the condition as a 36 to 48 inch long roof bolt lying on
the ground with about an eight to nine foot diameter area of rock, six to eight inches deep that
fell from the roof. (Tr. 2:139-40). The roof bolt was a grouted type bolt. (Tr. 2:140). Lee
testified that he did not see any flagging in the area and no tire tracks from heavy machinery
were around. (Tr. 2:142, 145). Lee stated that an examiner would typically need to flag the
condition and record it. (Tr. 2:144). This particular area did not see a lot of traffic, Lee noted.
(Tr. 2:144). Also, the area was preshifted by examiners every shift because it was part of the
route to get to the seals. (Tr. 2:146-47). Lee testified that he issued the order under the wrong
standard, and the standard should have been under section 360(a)(1). (Tr. 2:151). Section
360(a)(1) requires that examinations occur in any location where miners are going to travel or
work. (Tr. 2:152). The roof bolt was required as part of the Mine’s roof control plan. (Tr.
2:154).

Lee further testified that he determined that the condition was highly likely to result in an
injury because the hazard was not properly dealt with, though the area has no known history of
roof falls. (Tr. 2:155). The injury was designated as potentially permanently disabling because
of the potential for large pieces of falling rock. (Tr. 2:156). The violation was designated as
S&S because the roof system was weakened by the removal of a roof bolt and a lifeline is
adjacent to the condition. (Tr. 2:156). The operator’s negligence was determined to be high
because of previous inadequate exam violations in the quarter. (Tr. 2:157). Lee himself had
written three to four inadequate exam violations within the quarter. (Tr. 2:160). Lee testified
that every time that he had issued an inadequate exam violation he spoke with the operators. (Tr.
2:157). To abate the order mine management retrained the examiners on recognizing hazards.
(Tr. 2:158). The violation was characterized as an unwarrantable failure because the condition
was obvious and the operator knew it was having troubles with examinations. (Tr. 2:162).
When Lee looked at the preshift paperwork, there were no notes regarding the fallen roof bolt.
(Tr. 2:162). Lee spoke with Bart Schiff about the order and discussed the problems of
inadequate exams. (Tr. 2:168). On cross-examination, Lee testified that the violation area was
not a travelway but an intake and workers would typically not be in the area. (Tr. 2:171).
Additionally, the area is not an active working section of the mine. (Tr. 2:178). The violations
Lee relied on had not become final, and some subsequently had been vacated. (Tr. 2:179:80).

Schiff, the mine safety manager, testified that he had accompanied Inspector Lee on
February 26, 2009. (Tr. 2:191). He was not with Lee when the condition was first encountered,
but observed a roof bolt “sheared off” and lying on the ground with the plate and some rock.
(Tr. 2:192-93). The roof bolt on the ground was not the entire roof bolt. (Tr. 2:193). The
escapeway area at the time was not part of the two officially designated escapeways out of the
working section. (Tr. 2:194). Schiff testified that he could not determine when the condition
occurred. (Tr. 2:197). On cross-examination, Schiff stated that heavy machinery had not been
in the area for a year or two, but did not think that any equipment sheared the bolt. (Tr. 2:198-99). He thought that the roof bolt might have been damaged during installation. (Tr. 2:200).

Kevin Rice, the mine examiner, testified that he had been an examiner for four to five
years. (Tr. 2:206). On February 25 and 26, he was performing the preshift examinations in the
area in question. (Tr. 2:209-10). Rice stated that on February 25, no roof bolt had fallen within
the area, and then on the next day two timbers supported the roof and a roof bolt was on the
ground. (Tr. 2:210). Rice wrote up a statement for Lee after he found out that an order was
issued, because he had not personally spoken with Lee. (Tr. 2:213; Ex. R-10). On cross-examination, Rice testified that he had been driving around fallen rock in the intake because it is
customary to leave rock on the ground when scaling down loose rock in between pins. (Tr.
2:215-16).

b. Summary of Parties’ Arguments

The Secretary argues that the examiner failed to record the unsupported roof in the north
intake and thus violated section 75.360(a)(1). (Sec’y Br. 29). A roof bolt was lying on the
ground with rocks around it, and tire tracks where located around and over the debris. This
indicates that examiners had traveled through the area and knew about the hazardous condition.
The violation was properly designated as S&S and highly likely because the missing roof
support exposed miners to falling rocks. The violation was also the result of an unwarrantable
failure because the condition was obvious, had existed for more than two examinations, and the
operator was on notice for the quality of examinations.

Big Ridge contends that no violation existed because the roof bolt fell between the time
Inspector Lee arrived and Rice’s prior examination and thus the condition had not been present
during Rice’s exam. (Big Ridge Br. 29). It argues that the presence of tire tracks does not help
establish the violation. Rice credibly testified that some material had previously fallen from the
roof between roof bolts so these tracks are unrelated to the alleged violative condition.

c. Discussion and Analysis

There is no dispute that a roof bolt had fallen out at the location cited by Inspector Lee.
What is not clear is when the bolt fell and what caused it to fall. The cited area, although
required to be examined, was not a travelway or a designated escapeway. Mr. Schiff’s testimony
that the bolt had not been properly installed is the most logical explanation. Only part of the bolt
fell out. Heavy equipment had not been in the area for several years so it had not been recently
damaged.

I find that the Secretary did not establish a violation because it is not at all clear when the
roof bolt fell. Although Inspector Lee testified that there were tire tracks over fallen rock, Rice
credibly testified that loose rock had been scaled down between pins in this area. (Tr. 2:215).
Examiners may have driven over or around such loose rock. Rice testified that he only records
roof conditions under these circumstances if he finds loose roof bolts, bolts that have fallen, or if
so much material has fallen that it creates a hazard. He said that the cited roof bolt had not fallen
at the time of his examination on February 25. (Tr. 2:210; Ex. R-10).

The Secretary bears the burden of establishing a violation of her safety standard. In this
instance, I find that it is not clear when the roof bolt fell. There is conflicting evidence on this
point. Rice was an experienced examiner and his testimony was credible. Given that the roof
had been crumbling in that area, the presence of rock on the floor of the mine with tire tracks
over and around the rocks does not establish when the bolt had fallen. The inspector’s analysis
of the conditions was based almost entirely on his interpretation of the tire tracks. He assumed
that the rock had fallen at the same time as the roof bolt. (Tr. 137). Based on the record, I find
that his conclusions were speculative. Order No. 6683119 is hereby VACATED.

3.        Citation No. 6683100

On February 9, 2009, Inspector Lee issued Citation No. 6683100 under section 104(a) of
the Mine Act, alleging a violation of 30 C.F.R. § 75.1103 as follows:

When the fire suppression system was tested at the belt drive and
take-up area it would not give a warning to the belt monitor
located on the surface. This condition was observed on the 4C
belt. It was immediately taken out of service.

Ex. GX-26. The inspector determined that an injury was reasonably likely to occur and that the
injury would be expected to include lost workdays or restricted duty. He further determined that
the violation was S&S, the company’s negligence was moderate, and three persons were
affected. Section 75.1103, entitled “Automatic fire warning devices” provides that “[d]evices
shall be installed on all such belts which will give a warning automatically when a fire occurs on
or near such belt.” 30 C.F.R. § 75.1103. The Secretary proposes a penalty of $1,795.

a. Background Summary of Testimony

Inspector Lee testified that he issued Citation No. 6683100 on February 9, 2009, at 6:20
p.m. because the fire suppression system did not produce a warning on the surface when tested.
(Tr. 2:221-22). The fire suppression system was located on the 4C belt line and the warning
indicates that there could be a fire at a specific location. (Tr. 2:222-23). The main purpose of
the fire suppression system is to give early warnings to the operator in order to better control
fires and reduce injuries. (Tr. 2:223-24). Lee testified that he was with Kanady and Greg Fort
during his inspection of the fire suppression system. (Tr. 2:225). To check the fire suppression
system, a test valve turns on water simulating what the system would do in the case of an actual
fire. (Tr. 2:227, 233). Lee stated that Fort was the one who performed this task. (Tr. 2:233).
When the test valve is on, the system will notify the belt monitor, located on the surface, that the
belt line fire suppression system is working. (Tr. 2:229). The system has a five-second delay
between when the valve is turned on to when the warning is received. (Tr. 2:228). According to
Lee, the belt monitor, after noticing the warning, should alert the mine manager of the situation.
(Tr. 2:230). Lee checks to see if the belt line stops and also waits for a call on the mine phone
for the belt monitor on the surface to inform him of the warning. (Tr. 2:230-31). During the
test, the belt line shut down as designed, but Lee never received a call from the monitor about
there being a warning relayed above. (Tr. 2:233). Lee had another worker call up to the monitor
to ask if a warning had been received on the 4C line, but no warnings had been received. (Tr.
2:235-36). Before Lee issued the violation, he tested the fire suppression system one more time,
with the same result. (Tr. 2:237).

Lee further testified that he designated the violation as reasonably likely to result in injury
because the warning is a significant part of the fire suppression system. (Tr. 2:239-40).
Stopping the belt line and spraying water are not always sufficient to stop a fire within the mine.
(Tr. 2:240). When the warning system is not working properly the early detection of a fire is
lost, thereby increasing the possibility of injuries. (Tr. 2:241). Lee testified that lost work days
or restricted duties could occur because of smoke inhalation from the fire. (Tr. 2:241). The
violation was determined to be S&S because the smoke from a fire could cause a serious injury.
(Tr. 2:244). The negligence was moderate because the operator might not have known that the
system was not functioning properly. (Tr. 2:245). Three days prior, the system check showed
that it was working properly. (Tr. 2:245). Lee determined that the additional presence of a CO
monitoring system in the area had no effect on the violation because it is not very reliable. (Tr.
2:247). Lee abated the citation three days later when the test of the system showed a warning
alarm was being received by the monitor above. (Tr. 2:250).

On cross-examination Lee testified that he did not write down in his notes that he tested the
fire suppression system twice on February 9, 2009. (Tr. 2:251-52). Lee agreed that, under
section 75.1103(4)(a), the belt must be equipped with automatic fire sensors and warning devices
and that, under section 75.1101(10), carbon monoxide monitors or point heat sensors are
required. (Tr. 2:256). Lee also stated that he did not have any data showing that CO systems
were not reliable. (Tr. 2:259).

Fort, the Union representative, accompanied Inspector Lee during the testing of the 4C belt
line fire suppression system. (Tr. 2:261). Fort testified that the system was tested twice and
each time the monitor received no warnings. (Tr. 2:262-63). Furthermore, Fort stated that
during this time frame at the mine, the CO system was having “a lot of trouble” and had many
false readings, but none around the belt drive. (Tr. 2:265-66). On cross-examination, Fort
testified that Inspector Lee turned the water valve on to test the fire suppression system. (Tr.
2:268). During the test, the belt shut down and the underground alarms went off. (Tr. 2:269).

Kanady testified that he did not recall testing the fire suppression system more than once or
who actually opened the valves for the test. (Tr. 2:270-71). An underground alarm did go off by
the belt line, however. (Tr. 2:271).

Butler, the belt foreman, testified that after the citation was issued the fire suppression
system was tested again and the entire system worked fine. (Tr. 2:273-74). He opined that Lee
did not let the water run long enough for the system to work. (Tr. 2:274). On cross-examination
Butler stated that he did not personally re-test the fire suppression system and noted that all the
belts in the mine were on the five-second delay. (Tr. 2:277, 279).

Jeff Klope, the electrical foreman, testified that there is a three-second delay in the local
system and then a seven-to ten-second further delay on the network to scan the system. (Tr.
2:283). The delay could be up to thirteen seconds, but also could be less. (Tr. 2:284). MSHA
requires that CO sensors be calibrated and checked. (Tr. 2:286). In February of 2009, Klope
testified that the CO system in the mine was not experiencing any problems. (Tr. 2:287).

b. Summary of Parties’ Arguments

The Secretary argues that the operator violated section 75.1103 because the fire suppression
system failed to send a warning to the belt monitor on the surface. (Sec’y Br. 32). Lee had
tested several belt lines that day, all with the five-second delay, and the 4C line was the only one
that did not send a signal to the surface. Lee let the water run for a sufficient time in order to
bypass the delay. The violation was properly designated as S&S because the warning alarm
failure will reduce the response time in a fire. (Sec’y Br. 33). The Secretary contends that in
this instance the S&S designation should be evaluated while assuming the existence of an
emergency because warning systems are designed to protect in the case of an emergency.

Big Ridge first argues that no violation existed because the wrong standard was cited and
no violation existed. (Big Ridge Br. 30). Section 75.1103 only applies to point heat sensors or
CO monitoring devices. Along the belt line, the fire warning device was the CO system.
Section 75.1103(10) addresses the fire suppression system and does not require a warning alarm
be sent to the surface. Big Ridge contests the performance of the test arguing that Lee or Fort
did not let the system run for longer than five seconds. If a violation did exist Big Ridge also
contests the designation of S&S. (Big Ridge Br. 33). The CO system on the belt line would
produce a warning of a fire, and was functioning at the time of the test. A belt shut down would
draw a response because it would halt production inby. Therefore, there would be no delay in
response time if a fire had occurred.

c. Discussion and Analysis

The cited safety standard requires that devices be installed at belts that will give a
warning automatically when a fire occurs. This section does not require fire suppression
systems. As a consequence, whether the water-based fire suppression system was working is not
covered by the safety standard. Assuming that the water-based fire suppression system was the
only warning device installed at the cited location, it did provide a visual and audible warning
when tested by the inspector. More importantly, Big Ridge had installed a CO monitoring
system that would give a warning if a fire were detected. Although Fort testified that it would
sometimes give false readings, there was no evidence that the CO monitoring system was not
functioning properly at the time of the inspection.

Section 75.1103-1 provides that fire sensing systems installed on belt conveyors must
“provide both audible and visual signals that permit rapid location of the fire.” 30 C.F.R. §
75.1103-1. The system cited in this instance did give audible and visual signals and miners
underground would normally be able to determine where the system had been activated. Of
course, if a signal had been received by the belt monitor on the surface, the precise location of a
potential fire would have been immediately known. Nevertheless, I credit the evidence
presented that Big Ridge uses the CO monitoring system as its fire detection system, which also
notifies personnel on the surface when a fire has been detected.

Section 75.1101-10 is the safety standard that more closely fits the fire suppression
system in use at the Willow Lake Portal. It provides that each water sprinkler system shall be
equipped with a device designed to stop the belt drive in the event of a rise in temperature and
requires that “each such warning device shall be capable of giving both an audible and visual
warning when a fire occurs.” 30 C.F.R. § 75.1101-10. This standard clearly applies to the fire
suppression system cited by the inspector and there is no indication that this standard was
violated.

I find that a violation of section 75.1103 was not established. Citation No. 6683100 is
VACATED.

III. SETTLED CITATIONS

The parties presented a settlement offer at the hearing for those citations that were not
adjudicated at the hearing. The proposed settlement is as follows:

Citation/Order

Modification to
Citation

Proposed
Penalty

Amended
Penalty

Lake 2009-326

6679522

Modify to 1 Affected

$9,634

$6,458

6674555

Modify to Non S&S

$1,944

$392

6674640

$1,304

$1,044

6683615

Modify to 3 Affected

$2,473

$807

9942532

$1,944

$1,944

6678792

$1,944

$1,944

6678795

$1,944

$1,944

6678796

Modify to Permanently
Disabling; Partial
Penalty Reduction

$3,996

$2,400

6679920

$3,405

$3,405

6679921

$1,657

$1,657

9942536

Modify to Moderate
Negligence

$8,893

$2,678

LAKE 2009-436

6683974

$1,026

$923

7572890

Modify to Non S&S

$3,405

$688

6683095

Modify to 8 Affected

$9,634

$6,996

6682840

$12,248

$9,799

6683975

$2,748

$2,102

6683977

$2,473

$2,102

6683979

$2,473

$2,102

6683980

$2,473

$2,102

6683983

$2,678

$2,276

6683985

$2,473

$2,102

6683098

Modify to 3 Affected

$1,111

$363

6683987

Modify to Moderate
Negligence

$2,901

$874

6683099

Modify to 3 Affected

$1,304

$426

6683101

Modify to Non S&S

$5,080

$1,026

6683991

Modify to Moderate
Negligence

$2,901

$874

6683992

Modify to Reasonably
Likely

$12,248

$5,503

6683993

$5,503

$5,503

6683994

$3,689

$3,136

6683104

Modify to Non S&S

$1,530

$309

6683995

$3,143

$2,892

6683105

Modify to Moderate
Negligence

$3,143

$947

7572894

Modify to Non S&S

$3,996

$807

6683108

$3,143

$2,892

6683110

Modify to Non S&S

$5,080

$1,026

6683114

$4,689

$3,752

8414006

$3,143

$2,829

6680506

$1,795

$1,795

6683120

$11,306

$10,175

8414008

$3,143

$2,829

8414010

$5,080

$4,064

8414011

$6,458

$5,167

8414012

Modify to Non S&S

$8,893

$1,796

6680675

Modify to Moderate
Negligence

$1,530

$461

LAKE 2009-705

6682989

$17,301

$17,301

8417664

$5,645

$4,516

LAKE 2009-706

6682990

Modify to 8 Affected

$48,472

$37,416

8417432

$2,901

$2,611

8417434

Modify to Non S&S

$1,657

$335

8417436

Modify to 4 Affected

$27,259

$19,793

8417437

Modify to 4 Affected

$2,473

$1,795

6682993

Modify to Permanently
Disabling; Partial
Penalty Reduction

$3,996

$2,400

8417438

Modify to Non S&S

$1,657

$335

8417439

Modify to Non S&S

$2,106

$426

8417440

Modify to Moderate
Negligence

$14,373

$4,329

6682996

Modify to Permanently
Disabling; Partial
Penalty Reduction

$3,996

$2,400

84177441

Modify to Non S&S

$2,473

$500

8417442

$5,961

$5,961

8417443

Modify to Non S&S,
Moderate Negligence

$6,458

$392

8417444

$2,106

$2,106

8417445

$3,996

$3,597

6682999

Modify to Moderate
Negligence

$10,437

$3,144

8417446

Modify to Moderate
Negligence

$5,080

$1,530

8417447

$3,405

$3,065

8417451

$1,412

$1,271

84177455

$15,570

$12,456

8417456

Modify to Non S&S,
Moderate Negligence

$4,689

$285

8417458

Modify to Non S&S

$1,795

$362

8418003

Modify to Non S&S,
Moderate Negligence

$6,458

$392

8418004

$2,282

$2,054

8417680

Modify to Non S&S

$5,503

$1,111

Total Settlement Amount: $247,194

I have considered the representations and documentation submitted and I conclude that the
proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Act.

III. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are
not disputed. (Ex. GX-41). At all pertinent times, Big Ridge, Inc., was a large mine operator.
The violations were abated in good faith. The penalties assessed in this decision will not have an
adverse effect on Big Ridge’s ability to continue in business. The gravity and negligence
findings are set forth above.

IV. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

Citation/Order No.                                 30 C.F.R. §                             Penalty

LAKE 2009-325

6675150                                                75.400                                     $15,000.00

6675151                                                75.360(a)(1)                            20,000.00

LAKE 2009-326

6678829                                                75.1722(b)                              1,000.00 

6678835                                                75.1722(b)                              4,000.00 

LAKE 2009-435

6683115                                            75.362(b)                                  20,000.00                                 

6683119                                             75.360(a)(1)                             VACATED

LAKE 2009-436

6683100                                             75.1103                                    VACATED

6683116                                            75.1725(a)                                 8,000.00

6683117                                             75.400                                      12,000.00

LAKE 2009-706

8417452                                              75.400                                     10,000.00

SUBTOTAL                                                                           $90,000.00                               

SETTLED CITATIONS                                                        247,194.00

TOTAL PENALTY                                                           $337,194.00

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or
VACATED as set forth above. Big Ridge, Inc., is ORDERED TO PAY the Secretary of Labor
the sum of $337,194.00 within 40 days of the date of this decision.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Tyler P. McLeod, Esq. and Francesca Cheroutes , Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)

R. Henry Moore, Esq., and Jason Webb, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401
Liberty Ave., Pittsburgh, PA 15222 (Certified Mail)

RWM