Centre Crown Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

The case resolved 60 citations issued at Centre Crown's underground Crown III Mine, including hazards involving conveyor belts, ventilation controls, parking brakes, roof support, and the mine's approved plans. The judge approved a settlement of 44 citations for $14,641 and decided 16 more after a hearing. She affirmed the adjudicated violations, removed the S&S designation from two short-lived ventilation-plan violations, and otherwise generally accepted MSHA's gravity findings. For a large loose rib beside a heavily traveled route, she increased the expected injury from permanently disabling to fatal, raised negligence from moderate to high, and assessed $3,500. The adjudicated penalties totaled $22,428, bringing the four-docket total to $37,069.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(a), 75.333(h), 75.350(a), 75.1909(d), 75.370(a)(1), 75.202(a), 75.208, and 75.220(a)(1)
• Outcome: Forty-four settled citations and sixteen adjudicated citations produced total penalties of $37,069.
• Key point: An underground operator's safety measures are judged under continued normal operations, and repeated roof and ventilation hazards can support serious gravity and negligence findings.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

February 9, 2011

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

CENTRE CROWN MINING, LLC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. LAKE 2009-418

A.C. No. 11-02632-179544-01

Docket No. LAKE 2009-419

A.C. No. 11-02632-179544-02

Docket No. LAKE 2009-494

A.C. No. 11-02632-185333

Docket No. LAKE 2009-542

A.C. No. 11-02632-188265

Mine: Crown III Mine

DECISION

Appearances:  Natalie Lien, Esq., Office of the Solicitor, U.S. Department of Labor,

Denver, Colorado, for Petitioner;

Hershiel Hayden, Knoxville, Tennessee, for Respondent.

Before:            Judge Rae

This case is before me on a petition for assessment of civil penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Centre Crown
Mining, LLC, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, (the “Mine Act” or “Act”),30 U.S.C. §§ 815 and 820. A hearing was held on October 26,
2010 in Evansville, Indiana at which the parties presented testimony and documentary evidence
on sixteen (16) violations issued by MSHA to Centre Crown Mining, LLC, (“Crown”), at the
Crown III Mine.

The parties settled 44 violations prior to the hearing which are listed in Gov. Ex. 46. I
approve the proposed settlement herein. The Respondent requested the opportunity to submit
financial statements to contest his ability to pay the proposed penalties and provide an affidavit
from a union representative to contest citation no. 6675284, Docket No. LAKE 2009-542. By
email dated January 2, 2011, Mr. Hayden indicated that he was withdrawing the objection to the
assessed penalties with regard to their ability to remain in business and that they would not be
submitting the affidavit. Ct. Ex. 1. The Secretary filed a post-hearing brief.

The parties entered into stipulations contained in the Secretary’s Prehearing Response
pleading. Specifically, they stipulated that: (1) Crown III Mine is subject to the jurisdiction of
the Act, (2) Centre Crown Mining, LLC is an operator within the meaning of the Act, (3) I have
jurisdiction over the proceedings, (4) Centre Crown Mining, LLC owns Crown III Mine, (5) the
exhibits are authentic, (6) the inspector who signed the citations was acting within his official
capacity as an authorized representative of the Secretary of Labor, and (7) the operator
demonstrated good faith in abating all cited conditions.

The parties also stipulated that the proposed penalties would not affect Centre Crown Mining’s
ability to remain in business. That stipulation was withdrawn; however, based upon the above
referenced email, the ability to remain in business is no longer at issue.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Crown operated the underground bituminous coal mine known as the Crown III Mine (“Crown
III”) from June 15, 2008 until July 17, 2009. The mine produced 1,360,392 tons of coal in 2009.
Between January and May, 2009, several MSHA inspectors conducted regular inspections of the
Crown III mine and issued a number of citations for violations of the Act, including the sixteen
addressed herein.

1. Citation No 6675539 (Gov. Ex. 1)

Inspector Chad Lampley has been an MSHA inspector for 3 ½ years. Prior to that, he was
a miner for almost two years performing general labor, roof bolting, driving underground
equipment and performing mechanic’s duties. He holds a master’s degree in applied science
and an associate’s degree in auto mechanics. On January 29, 2009, Inspector Lampley,
conducted a regular inspection of Crown III and issued Citation No. 6675539 to Crown for a
violation of 30 C.F.R. §75.1725(a). The citation states:

The main west belt was not being maintained in safe operating condition in that a
bottom roller was missing and the belt was rubbing the metal frame. This condition
was present between crosscuts 94 & 95. Due to a failed bearing a top roller was
turning against the structure, stopping at times while in contact with the conveyor
belt. This condition was present at crosscut 96. Both conditions create a frictional
heat source. The belt was immediately removed from service by the operator.

The inspector assessed the gravity of the violation as reasonably likely to cause in an
injury resulting in lost workdays or restricted duty. He designated the violation as significant and
substantial affecting two persons and the operator’s negligence as moderate. The proposed
penalty is $687.00.

a. The Violation

Section 75.1725(a) states that mobile 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. Inspector Lampley testified that the conveyor belt located
between crosscuts 94 and 95 was missing several rollers causing the belt to cut into the metal
frame thereby causing friction. Similarly, a top roller on the belt at crosscut 96 was turning
against the frame cutting into metal below. This resulted in a heat source. Coal was being
moved on the belt at the time he observed these conditions. At crosscut 94/95, the belt line is
adjacent to the travelway used by the miners. It is also the secondary escapeway. There is
common air between the travel way and the belt line. Tr 22-26.

Crown does not dispute that the violation occurred but argues that the gravity should be
assessed as unlikely to cause an injury. Tr 44. This would necessitate a finding that the violation
was not significant and substantial.

b. Significant and Substantial

A violation is significant and substantial (“S&S”) if the violation is “of such a nature as
could significantly and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. §814(d)(1). There must be “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). Under the National Gypsum
definition, “the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard –that is, a measure of danger to safety – contributed to by
the violations; (3) a reasonable likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (De. 1987) (approving
Mathies criteria).

In order to meet the requirements of the third, and most difficult to establish, element of
the Mathias formula, the Commission has provided the following guidance:

We have explained further that the third element of the Mathies formula “requires
that the Secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6FMSHRC
1834, 1836 (August 1984). We have emphasized that, in accordance with the
language of section 104(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., Inc.
6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573- 1574 (July 1984).

This evaluation is made in consideration of the length of time that the condition in
violation existed prior to the citation and the time it would have existed if normal mining
operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S
depends upon the surrounding circumstances of the violation. Texasgulf, Inc, 10 FMSHRC 498
(Apr. 1988); Youghioghen & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

As stated above, Crown does not dispute that the mandatory safety standard was violated.
Nor did they contest the moderate degree of negligence assessed. Inspector Lampley testified that
based upon his experience, he properly designated the violation as S&S because there was an
accumulation of coal on the belt. In fact, 33 citations had been issued to this operator for
improper accumulations of coal on the belt, three during this particular inspection. He explained
that the accumulations provided combustible material near a heat source caused by friction from
the belt rubbing against the metal frame of the conveyor. The damaged rollers and the damaged
structural components and some misalignment also caused frictional heat sources. This created a
significant potential for smoke and fire in an underground mine environment. Tr 27-28.
Conveyor belts, according to Lampley, are one of the more likely sources of an underground fire.
Tr 30.

The Commission has also considered the hazards posed by accumulations on improperly
maintained conveyor belts. An ALJ’s finding that a belt running on packed coal created a
potential source of ignition of loose coal and float dust, which was reasonably likely to result in
an injury, was upheld by the Commission. Amax Coal Co., 19 FMSHRC 846 (May 1997). In a
case very similar to the present case, the Commission held that friction between the belt rollers
and the accumulations or between the belt and the frame of the conveyor in the presence of
accumulations could cause the accumulations to ignite. The hazard was properly designated as
S&S. It was immaterial, the Commission stated, that there was no identifiable hot spot in the
accumulations because continued use of the equipment in the normal course of mining operations
must be taken into account. Mid-Continental Resources, Inc., 16 FMSHRC 1218 (June 1994).

Inspector Lampley further testified that if a belt fire were to occur, it would be reasonably
likely that a miner would be injured as a result. Because the conveyor belt is also a travel road
for the miners, it is used several times per day. Additionally, the miner examiner is required to
examine the belt each shift exposing him to injury, as well as any miners assigned to a cleanup
crew. Tr 29. Generally, there are likely to be at least two miners in this area at any one time but
there could be as many as eight if they are traveling by mantrip. Tr 31. The nature of the injury
likely to occur, in Lampley’s opinion, is exposure to fire and smoke inhalation resulting in lost
workdays and restricted duty. Tr 30.

The Respondent suggested that if they had CO2 sensors along the belt line this would
have reduced the likelihood of injury to unlikely, however, Inspector Lampley stated that he did
not recall there being CO2 sensors present. Regardless, such sensors would only protect workers
who were inby, not those who were outby. Tr 46. Crown did not introduce any evidence of CO2
sensors being present. Inspector Lampley did say that he considered the fact that there was no
methane or carbon monoxide present and that the area was rock dusted but he also considered the
fact that there was float coal dust and accumulations present on and around the belt. The amount
of coal dust that had rubbed off the belt indicated that the condition had existed for at least one
shift already. Tr 36-39, 43. Crown suggested that fire resistant belt material would also reduce
the likelihood of a fire, however, again, they provided no evidence (Crown called no witnesses)
that the belt was made of such material. They represented that they would provide this evidence
post-hearing which was never done. Tr 39.

Even if Crown had provided evidence of CO2 detectors, fire resistant belt material or
other protective equipment, it would not reduce the likelihood of a serious injury occurring,
thereby changing the designation to non-S&S. In the case of Buck Creek Coal, 52 F.3rd 133, 136
(7th Cir. 1995), the operator presented evidence that the mine was equipped with CO detectors,
fire retardant belts, firefighting equipment and personnel, and a rescue team. The Court upheld
the ALJ’s decision that the seriousness of a fire hazard was not lessened by the presence of safety
measures with which to fight a fire but, rather, the precautions put in place underscore the
“significant dangers associated with coal mine fires.”

I find that Inspector Lampley provided highly reliable information regarding the gravity
and nature of the safety hazard posed by the improperly maintained conveyor belt, giving due
consideration to all of the surrounding circumstances that existed at Crown III at the time. I,
therefore, find that the preponderance of the evidence establishes that it was reasonably likely
that the missing rollers, misaligned belt and top rollers produced sources of friction in the
presence of accumulations that possessed a reasonable likelihood of causing injuries that would
be serious or fatal. The Secretary has established the four elements under Mathies; the violation
is properly designated as S&S.2. Citation No. 6675540 (Gov. Ex. 3)

On February 5, 2009, Chad Lampley issued this citation at Crown III during a regular
inspection for violation of 30 C.F.R. §75.333(h). The citation reads as follows:

The permanent stopping line separating entries # 6 and #7 of the 1st North Submain,
was not being maintained for the purpose which it was built. The stopping line
separates the belt entry and travelway (Secondary Escapeway) from the intake entries
(Primary Escapeway) for Unit III (MMU-002 & MMU-012) working section. Holes
or leaks in the stopping line were present at the follow (sic) locations; 1) Crosscut

79 leaks along the top and bottom, 2) Crosscut #77 a 13 inch by 4 inch hole, 3)

Crosscut #76 leaks along the bottom, no sealant along the bottom, 4) #75 leaks
around the bottom, no sealant along the bottom, 5) #74 leaks through a hole in the
upper north corner, and not sealed along the bottom. All areas were tested with
chemical smoke and air was moving from the belt entry into the primary escapeway.

The inspector found that a permanently disabling injury was reasonably likely to occur,
that the violation was the result of moderate negligence, that 20 persons would be affected and
that the violation was significant and substantial. The Secretary proposed a penalty of $3,689.00
be imposed.

a. The Violation

This ventilation control standard, in relevant part, requires “all ventilation controls,
including seals, shall be maintained to serve the purpose for which they were built.” Inspector
Lampley testified that on the day of this inspection, he found the air courses between the intake
and conveyor belt and secondary escapeway were not being maintained properly. The belt line
poses an inherent fire hazard and needs to be separated from escapeways. This separation of
airways is accomplished by placement of permanent stopping curtains in the appropriate places.
The curtains between crosscuts 6 and 7, however, were not being properly maintained to
adequately separate the air from the belt line and the travelway or the escapeway. The damaged
curtains were found at several places outby the working section and were noted with the defects
as set forth in the citation above. Tr 51-54.

Crown does not contest that the regulation was violated nor did they object to the level of
negligence. I find that the violation existed as cited by Inspector Lampley. Crown argues that the
likelihood of an injury should be modified to unlikely and the nature of the injury should be lost
work days rather than permanently disabling. Tr 66. This would necessitate a finding that the
violation is not S&S.

b. Significant and Substantial

Lampley testified that should a fire occur in the belt line, the damaged stoppings, coupled
with the improper air pressure cited in the following citation, would cause smoke to move from
the belt line into the intake entry which is the primary escapeway, as well as into the travelway
which doubles as the secondary escapeway. The improper air pressure at the site was forcing the
air from the belt line toward the travel and entryways. The numerous large holes and gaps in the
stoppings did not prevent the air from flowing into these areas as they are designed to do. He
observed float coal dust on the intake side that had entered through the stoppings. This indicated
to him, together with other factors, that this condition had existed for several days. As he
previously testified, the belt line is an inherently likely location for a fire caused by the friction
on the belt igniting the coal accumulations. If this were to occur under the conditions as they
existed, the smoke would flow into the escapeways and the miners working inby of the area
would be exposed to smoke inhalation injuries which could in turn prevent their escape. Tr 55-59. The entire working crew would be affected by this hazard which would be 20 miners. Tr
58.

Crown confirms that it had been several days since the last belt was moved which
confirms that the condition existed for several days. Tr 65. They assert, however, that since
Inspector Lampley did not take air readings inby on the intake that he could not tell the exact
volume of air seeping into the entryway. Lampley did use chemical smoke to test the air
exchange and could see it coursing through the stoppings. Tr 64.

Inspector Lampley has a master’s degree in applied science. He has experience as a miner
as well as three years as an MSHA inspector. I accept his expert opinion that there was a
sufficient volume of air passing through the numerous sizeable holes and gaps in the stoppings
into the entry and escapeways to reasonably expose the miners to smoke inhalation injuries.

Thus, I find the Mathies formula has been satisfied. There has been an undisputed
violation of a mandatory standard. Secondly, there is a measure of danger to safety contributed
to by the violation – the danger of smoke infiltrating the intake entries and escapeways in the
event of a belt fire. Third, the seepage of smoke from the belt line airway would cause smoke
inhalation injuries, and finally, that such injuries would be serious and quite possibly fatal.

3. Citation No. 6675541 (Gov. Ex. 4)

On February 5, 2009, Inspector Lampley issued this citation for a violation of 30 C.F.R.
§75.350(a). The citation states:

Air from the belt entry was being used to provide air to the working section Unit III
(MMU-002 & MMU-012). When tested with chemical smoke air was traced from
the belt entry to the working section. Air was traveling through leaks in the
permanent stopping line separating the (#6) belt entry from the intake entry (#7)
(reference citation #6675540). The operator immediately halted mining and removed
the belt from service.

The violation was assessed as posing a reasonable likelihood of causing a permanently
disabling injury to 20 miners and was deemed significant and substantial. A moderate degree of
negligence was involved. The penalty was proposed at $3689.00.

Crown acknowledged the violation but requested the nature of the injury be modified to
lost workdays. Tr 87. They did not offer any evidence to support their assertion or to contest the
degree of negligence assessed.

a. The violation

30 C.F.R. §75.350(a) states that “the belt air course must not be used as a return air
course; and except as provided in paragraph (b) of this section, the belt air course must not be
used to provide air to working sections or to areas where mechanized mining equipment is being
installed or removed.”

The air in the mine is designed to travel down the primary escapeway which is also the
intake aircourse to ventilate the working section. The air should then return via the secondary
escapeway/return aircourse, which shares air with the belt line, and exit the mine. This air flow
is controlled, in part, by maintaining lower pressure in the return course in order to push the fresh
air down the intake course and draw it out through the return. What Inspector Lampley found
was that the air pressure in the intake was reversed; it was lower than the return. The return air
then from the belt line was being sucked from the return into the entry/primary escapeway, partly
due the holes and leaks in the permanent stoppings between the two air courses, and was
traveling to the working section. Tr 68-69. Although the improperly maintained stoppings
contributed to the hazard caused by the violation, the reverse air pressure was, in and of itself, a
separate and distinguishable violation caused by the return vent not being opened to the correct
degree. Tr 72-73. This violation existed for several shifts in Lampley’s estimation. Tr 73. The
operator abated the violation by opening a vent at the end of the return to create lower pressure in
the return aircourse. Tr 69.

b. Significant and Substantial

Inspector Lampley testified credibly that the belt line is an inherently likely source of a
fire in a mine. At the time he issued the citation, the belt line was in operation and it was in a
working section. Tr 71. There was also the potential for diesel equipment being transported
through the travelway to catch fire. The very real potential for fires on the belt line has been
recognized by the court and the Commission as well in Buck Creek Coal, supra. The threat of
explosions are also a constant hazard in an underground mine. See Wabash Mine Holding Co. v.
Secretary of Labor, 28 FMSHRC 155 at 168 (March 2006)(ALJ). Furthermore, this mine has a
history of accumulations of coal along the belt way which was cited during this inspection as
well. The Commission has held that it was not necessary to identify a particular hot spot in the
accumulations of coal on a conveyor belt to properly designate a violation as S&S recognizing
the inherent danger of ignition posed by accumulations. Mid-Continent Resources, Inc., 16
FMSHRC 1218, 1222 (June 1994).

If a fire or explosion were to occur in the belt line or secondary escapeway outby of the
working section, the lower pressure in the intake would cause the smoke and deadly gases to be
drawn into the primary escapeway thereby resulting in a contaminated primary and secondary
escapeway. Tr 71-72, 87-88. With both escapeways contaminated with smoke and carbon
monoxide, the injuries would be reasonably likely to be serious in nature, if not fatal, and
reasonably likely to occur.

The Respondent established through cross-examination of Inspector Lampley that the
precise volume of air flowing from the return aircourse into the intake was not measured.
Inspector Lampley also admitted that he did not know exactly how many parts per million of
carbon monoxide or methane would be required to overcome a miner seeking escape from the
mine in the event of a fire in the belt line. Tr 83-85. The difference in air pressure was, however,
obvious in that he could feel the air flowing through the holes in the stopping. By using chemical
dust, he was able to see the transfer of air from the return to the intake. Tr 74-75. Furthermore,
as stated in the discussion above regarding the previous citation, he also observed float coal dust
on the intake side that had filtered through the holes and gaps in the stoppings. The holes and
gaps were large as well as numerous. Based upon this information, I find that Inspector
Lampley’s expert opinion that there was a sufficient leakage of air from the return aircourse to
pose a discrete and heightened safety hazard contributed to by the violation is well founded based
upon all surrounding circumstances. I accept his assessment and find the violation is properly
designated as significant and substantial.

4. Citation No. 6675847 (Gov. Ex. 8)

This citation was issued by Inspector Lampley on March 27, 2009, when he found Alpha
4035 diesel truck did not have a functioning parking brake in violation of section in 1909(d) of
the Secretary’s regulations. The citation 6675847 alleges that:

The company #4035 diesel maintenance truck was not provided with a functional
parking brake. The #4035 truck was in service at the bottom shop. The operator
removed the truck from service.

This citation was also designated as S&S with a reasonable likelihood to result in an
injury causing lost workdays or restricted duty affecting one person. It was a result of moderate
negligence. The proposed penalty is $634.00.

Crown contends that the Secretary has not met her burden of proving that the mandatory
standard was violated because the equipment was not tested on grade which is required by the
regulation.

a. The Violation

When the truck operator set the parking brake, put the truck in gear and lightly pressed on
the accelerator, the truck continued to move with little or no resistance when acceleration was
stopped. This test was conducted on a flat surface. Tr 119. Inspector Lampley determined that
this demonstrated to him that the truck was not being maintained in accordance with section
75.1909(d) which provides , in relevant part, that “self-propelled nonpermissible light-duty diesel
powered equipment under §75.1908(b)…must be provided with a parking brake that holds the
fully loaded equipment stationary on the maximum grade on which it is operated despite any
contraction of the brake parts, exhaustion of any nonmechanical source of energy, or leakage.”

When questioned by the Respondent as to why he did not test the truck on the maximum
grade in the mine where the truck would be used, Lampley testified that because the truck would
not hold on a flat surface, there was no needed to test it further on grade. Furthermore, as a
former assistant service manager for Ford, a certified auto mechanic and an outby mechanic
miner, he knew from experience that if the brake did not hold on flat ground, it also would not
hold on grade and testing the brakes in the manner in which it was done was appropriate. Tr
119-121. 142. He also did not want to endanger any miners driving a truck with faulty breaks to a
location where there was a grade. The mine is very large and relatively flat. To find an area
where there was a grade would have required driving the truck a considerable distance. Tr 131-134.

In a similar case before Judge Koutras, the inspector testified that he did not test the
parking brake in accordance with the manufacturer’s specifications which provided that the test
be done on level ground. The standard required the parking brake be tested on the maximum
grade on which the vehicle traveled. Instead, the inspector tested it on a slight incline while the
loader was rolling to see how long it took for the parking brake to stop its movement. He
concluded that the inspector, with 16 years of experience with MSHA, rightly determined that if
the empty loader failed to pass the most minimal test, the parking break would not hold on the
maximum grade of travel. See Secretary of Labor v. Highlands County Board of
Commissioners, 14 FMSHRC 270 (Feb. 1992)(ALJ). Judge Koutras cited several prior cases
which affirmed inadequate parking brake citations challenged on the testing procedures. In
Thompson Coal & Construction, Inc., 8 FMSHRC 1748 (Nov. 1986), the inspector tested the
brake by instructing the driver to put the vehicle in reverse on level ground. In a case heard by
Judge Cook, the parking brakes were tested by the driver putting the vehicle in third and fourth
gear, depressing the brake and accelerating. The truck started to creep which was sufficient proof
that the brakes would not hold on any grade on which it would travel. The respondent could not
establish that the test produced inaccurate results and the judge concluded that the test results
established a prima facie violation. See Medusa Cement Company, 2 FMSHRC 810 (Apr.
1980).

I have considered the testimony presented, the inspector’s experience, not only with
MSHA but also as a trained mechanic with a master’s degree in applied science, and the fact that
the respondent has offered no evidence to rebut the inspector’s expert opinion. In conclusion, I
agree with Inspector Lampley’s logical assessment that if the parking brake does not hold the
truck stationary on a flat surface after acceleration has ceased, it will not hold under the more
rigorous test of setting it on a grade. Inspector Lampley used good judgment in determining
that driving the malfunctioning truck to another location only to confirm what was readily
apparent, would unnecessarily put others at risk of harm. I find that the Secretary has proven by
a preponderance of the evidence that the mandatory safety standard was violated. The citation is
affirmed.  

b. Significant and Substantial

The violation was deemed S&S because the vehicle was used routinely in all areas of the
mine. When not in use, it was parked near the shop which is an area traveled by miners going to
and from their work areas. There were always people in and around this vehicle. Tr 126. If this
truck was parked on grade or not put in park, it could strike an individual or another piece of
equipment with a miner on it. Continued use of the vehicle under normal mining operations
posed a reasonable likelihood that such an accident would occur, in Inspector Lampley’s
estimation. Tr 125. Resulting injuries would result in, at a minimum, lost workdays or restricted
duty. Tr 127. The vehicle was subject to weekly inspections as well as daily operation;
therefore, the condition should have been detected and remedied. Tr 127-128. The respondent
has offered nothing to contradict Inspector Lampley’s testimony.

In Secretary of Labor v. FMS Corporation, 28 FMSHRC 50 (Jan. 31, 2006) (ALJ
Manning) a Jeep’s parking brake failed when the transmission slipped from park into reverse on
level ground pinning the driver between the rear bumper and a wall. He suffered extensive
internal injuries as a result. The violation was upheld as S&S by Judge Manning, in part,
because a serious injury did occur which was directly related to the violation. While no injury
occurred at the Crown III mine due to the inoperative parking brake, the FMS Corporation case
is illustrative of the severity of injuries that are reasonably likely to occur in the context of
normal mining operations even when operating the vehicle on level ground.

I conclude, having considered the credible testimony of Inspector Lampley and the
surrounding facts and circumstances, that the Secretary has established the Mathies criteria by a
preponderance of the evidence. The discrete safety hazard –being struck by an uncontrollable
truck – has been created by the nonfunctioning parking brake. There exists a reasonable
likelihood that being run over, struck or pinned by the truck would result in an injury and that the
injury would be of a reasonably serious nature.

5. Citation No. 7493279 (Gov. Ex. 10)

This citation was issued by Inspector Larry Rinehart for inadequate parking brakes on a
small mantrip under section 74.1909(d). Inspector Rinehart is a retired MSHA inspector with
prior experience as an electrician in underground mines. He attended college studying power
mechanics which included testing of brakes and other mechanical systems on vehicles. He was
also trained in the military to conduct preoperational inspections on motorized equipment and
finally, he worked in an Exxon service station performing motor vehicle safety inspections for
the state of West Virginia. His training for this job was provided by the state of West Virginia
and included training on brake testing procedures.

The violation issued on March 18, 2009, during a regular inspection, was designated as
S&S with the reasonable likelihood of causing an injury resulting in lost workdays or restricted
duty affecting one person resulting from moderate negligence on the part of Crown. The citation
alleges that “the diesel vehicle, company number 3121 located in the bottom shop was not
equipped with a park brake that would hold the machine stationary on a grade.” The proposed
penalty is $499.00.

a. The Violation

Inspector Rinehart testified that he tested the mantrip’s parking brake in the same manner
as Inspector Lampley did the truck involved in the preceding violation discussed above. Tr 139-141. Like Lampley, Rinehart determined based upon his many years of experience in auto
mechanics, that it was unnecessary to test the mantrip on grade when it did not hold on level
ground.

Crown contests this violation for the same reason as they did Citation No. 6675847
discussed above. Based upon the same analysis, I find the Secretary has established a violation
of the mandatory safety standard.

b. Significant and Substantial

Inspector Rinehart testified that the equipment in question is a five or six man light-duty
vehicle. Tr 141. The lack of a functioning parking brake exposed miners to the hazard of being
struck by it if it were to remain in operation under normal mining conditions. Tr 143. He
inspected the wear on the brakes as well as the preoperational inspection reports and determined
that the park brake and the service brake could fail at any time and the condition had existed for
at least one shift. Tr 144.

The respondent’s representative declined the opportunity to cross-examine the inspector
stating “this is the same issue as the previous one…we think it should be vacated because it was
not the proper test.” Tr 145.

For the same reasons and based upon the same analysis set forth in section 4. b. above, I
find the citation was properly designated as S&S.

6. Citation No. 7493286 (Gov. Ex. 12)

This citation was also issued by Inspector Rinehart under section 74.1909(d) on May 5,
2009 for vehicle number 3044. The citation alleges that this vehicle “located on unit two was not
equipped with a park brake that would hold the machine stationary on a grade.”

The citation is written as reasonably likely to cause an injury that would result in lost
workdays or restricted duty, that it would affect one person and was the result of a moderate
degree of negligence. It was designated as S&S and carries a proposed penalty of $634.00.

a. The Violation

Inspector Rinehart initially testified that the vehicle was placed on a slight grade, the
parking brake was set, and when placed in neutral, the vehicle began to roll down hill. Tr 147.
He later said that additional testing was done on the vehicle by turning off the motor and placing
it in each gear. Again, it rolled down hill without any resistance. Tr 151. At this point, Crown
accepted the violation as written. Tr 152. Thus I find it unnecessary to discuss the S&S
designation as it would be identical to the two preceding citations and has not been challenged.

7. Citation No. 6675287 (Gov. Ex. 20)

Dennis Baum is a certified MSHA inspector certified in March 2007. His prior
experience is as a miner for Consolidation Coal for five years and with Crown III for 20 years.
During a regular inspection he conducted on April 15, 2009, the inspector issued a citation under
section 75.370(a)(1) of the regulations. Specifically he cited the following alleged violation:

A violation of the operator’s approved ventilation plan is present in the 2nd
South/Main West panel, 001/011 MMU. When checked with a calibrated
anemometer, there is only 17,685 CFM of air in the last open crosscut between
entries #2 and #3. The approved ventilation plan requires a minimum of 20,000
CFM of air in the last open crosscut. Coal production was ceased until ventilation
could be restored.

Baum designated the violation as S&S with a reasonable likelihood that an injury would
occur resulting in a permanently disabling condition affecting five persons. The negligence was
marked as low. The proposed penalty is $745.00.

a. The ViolationThe cited standard provides:

The operator shall develop and follow a ventilation plan approved by the district
manager. The plan shall be designed to control methane and respirable dust and shall
be suitable to the conditions and mining system at the mine. The ventilation plan
shall consist of two parts, the plan content as prescribed in §75.371 and the
ventilation map with information as prescribed in §75.372. Only that portion of the
map which contains information required under §75.371 will be subject to approval
by the district manager.

30 C.F.R. §75.370. 

Inspector Baum was in possession of the approved ventilation plan for the Crown III mine
when he performed his inspection. The plan requires 20,000 CFM of air at the last open
crosscut. Tr 231-232 and Gov. Ex. 39. When he took his measurements, there was 17,685 CFM
in that location.

Crown does not contest the violation per se but argues that this violation and the two
discussed below should be modified to unlikely to occur and resulting in lost workdays or
restricted duty. They admit that the air readings were accurate but that the lower levels
permissible under the plan prior to Centre Crown ownership justify this reduction.

Tr 249-259.
This standard requires strict adherence to the approved ventilation plan which was clearly
violated.

b. Significant and Substantial

Black lung disease is a permanently disabling medical condition caused by long term
exposure to coal dust. At the time Inspector Baum took his readings, there was float coal dust
visible in the air and miners were working downwind of it. Inspector Baum stated that this mine
has a history of miner’s claims of black lung disease and the inability to meet the respirable dust
requirements. Tr 234-236. The inspector was not able to say, however, that any such violations
have been cited since Crown took over operations of Crown III mine. Nor could he say that he
was aware of any black lung disease claims since Crown has operated the mine. Because he saw
the coal dust in the air while miners were working in the area, the inspector designated this
particular violation S&S. Tr 236-237. The condition was believed by the inspector to have lasted
only a short period of time. In fact, he recalled that mine personnel had taken air samples that
shift and the volume met the ventilation plan requirements. Also, they were running the dust
pumps which would provide the requisite amount of air to the area. He explained that in the past
there was a problem but now they have someone go in and monitor the pumps and take air
readings and ensure they are maintaining ventilation. Tr 237-238. In order to abate this citation,
they tightened some curtains to keep the air in the crosscut. This increased the volume of air to
24,300 CFM. Gov. Ex. 20.

I find that should an injury occur as a result of this violation, it would likely be
permanently disabling. However, I find Inspector Baum’s testimony that the violation existed for
a short period of time and that Crown personnel were actively taking timely steps to remediate
the condition, not only at the time this citation was issued, but on a regular basis by checking the
pumps and taking air readings, significant. I also find significant that fact that Centre Crown had
fairly recently taken over operations of Crown III mine and the inspector could not say the history
of similar violations had been committed by this operator. Furthermore, complicated
pneumoconiosis is contracted only from exposure to coal dust over a very long period of time.
Taking these facts together, I find that an injury was not reasonably likely to occur because there
was no evidence presented that the hazard lasted for a prolonged period of time or was likely to,
considering the operator’s demonstrated actions in monitoring air volumes. The third criterion
under Mathies has not been met; this violation is not significant and substantial.

8. Citation No. 6675290 (Gov. Ex. 22)

This citation was issued under the same standard as the previous citation. It was issued
on April 21, 2009, by Inspector Baum. The citation reads as follows:

A violation of the operator’s approved ventilation plan is present in the 3rd West
panel off the 1st North Sub-Mains. When checked with a calibrated anemometer,
there is only 15,113 CFM of air in the last open crosscut between entries 2 and 3.
The approved ventilation plan requires that 20,000 CFM of air be in the last open
crosscut. Mining was ceased until corrections were made.

Inspector Baum cited the gravity as unlikely to result in permanently disabling injuries to
two miners as a result of a moderate degree of negligence by the operator. This citation, unlike
the previous one or the following one, was not designated as significant and substantial.
Inspector Baum’s reasoning was that he did not see any float coal dust in the air when he issued
the citation. Otherwise, this violation was alike in all other respects from the other two. Tr 240-241. The proposed penalty is $207.00. The operator abated the violation by tightening the
curtains and the air volume increased to 23,562 CFM. Gov. Ex. 22.

As noted in the above discussion, I find the operator’s objection to the change in the
approved ventilation plan does not provide Crown with a valid defense to this violation. This
standard imposes strict liability for a violation. The air readings were not challenged and the
Secretary has met her burden of proving the violation therewith.

9. Citation No. 6675297 (Gov. Ex. 24)

This citation was issued on April 24, 2009, under the same standard as two citations
discussed above. This one, like citation no. 6675287, was designated as S&S because there was
coal dust visible in the air. Tr 244-245. The gravity is cited as reasonably likely to result in
permanently disabling injuries due to the potential for coal dust to cause black lung disease and
was the result of moderate negligence on the part of the operator. The citation states that the 2nd
South/Main West, 001/010 MMU when checked with an anemometer had 17, 677 CFM of air.
The curtains were tightened and air was restored to 21,645 CFM within approximately 30
minutes. Gov.Ex. 24. The proposed penalty is $1,203.00.

a. The Violation

For the same reasons stated above, I find the Secretary has met her burden of proving that
the violation did occur.

b. Significant and Substantial

Inspector Baum testified that he designated this violation as significant and substantial for
the same reasons as he did citation number 6675287 discussed above. He stated that based upon
the mine’s history and the fact that this was the third such violation issued during this inspection,
he felt the operator was just not paying sufficient attention to this issue. Tr 246. He was aware
of miners who claimed black lung disease injuries and prior problems with maintaining proper
air volume before he left the Crown III mine. However, again, Baum testified that he has been
with MSHA since March 2007 and Centre Crown took over operations in June 2008, well after
Baum’s employment at Crown III ended. I find, therefore, that the mine’s history as Baum knew
it is not a deciding factor in the S&S analysis of these citations. Furthermore, with respect to the
earlier discussed citation, he testified that Crown was addressing the issues and checking air
readings and running the pumps, indicating an improvement in the amount of attention being
paid to the situation. I also do not find that fact that there was coal dust in the air at the moment
the inspector took his anemometer readings is a sufficient factor to distinguish a significant and
substantial violation from a non-significant and substantial violation. The coal dust could have
been present for only minutes and depended upon several factors including what type of work
was being conducted at the moment. There was no evidence presented on this point. Moreover,
complicated pneumoconiosis, the disabling form of black lung disease, is the result of very long
term exposure to coal dust. Therefore, all three of these citations should logically be designated
the same way and for the reasons set for the above in section 7. b., I find that they should not be
designated as significant and substantial.10. Citation No. 6675836 (Gov. Ex. 6)

This citation was issued on March 17, 2009 by Inspector Lampley during a regular
inspection. The violation is issued under 30 C.F.R. §75.220(a), for failure to adhere to the
approved roof control plan. It alleges:

The company’s approved roof control plan was not being followed on Unit 1 (MMU-011), 2nd South panel, entry #9 S.S. 1838. From 10 ft. outby the last open crosscut
up to the face (approximately 60 ft.) ten roof bolts were damaged or loose.

The citation was amended to a violation of section 75.202(a), however, the wording of
the narrative section of the citation was not changed.

The violation was assessed as reasonably
likely to cause an injury resulting in lost workdays or restricted duty affecting two persons. It
was the result of a high degree of negligence and was designated at significant and substantial.
The proposed penalty is $3405.00.

a. The Violation

Section 75.202(a) states the following: “the roof, face and ribs of areas where persons
work or travel shall be supported or otherwise controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock bursts.”

The inspector testified that he found ten roof bolts ten feet outby of the last open crosscut
were damaged or loose. Four had no contact with the bearing plate and were hanging loose from
the roof. Two had no damage from being struck by equipment but were loose indicating that
either some portion of the roof had fallen or they were improperly installed. None of the bolts
was offering support to the roof. The entire area of unsupported roof measured 70’ x 75’. This
was located in a working section and exposed the miner operator, his helper, the scoop man and
any haulage car drivers to the dangers of working in this unsupported area. Tr 91-94.

Crown III does not argue that the violation did not occur but that the negligence should be
changed from “high” to “moderate” and the gravity of the violation to “unlikely” alleging that the
area had just been cut and the violation was issued just after an idle shift. The respondent further
stated that they had requested a conference with the district manager to discuss the high degree of
negligence cited but before the request could be approved, the assessment of the penalty was
proposed. Tr 115. I find this irrelevant to my independent assessment of the degree of negligence
involved as discussed below. I conclude that a section 75.202(a) violation under the amended
citation occurred as Inspector Lampley testified, rather than as the first sentence of the narrative
section of the citation states.

b. Significant and Substantial

The designation of this citation as S&S was based upon Inspector Lampley’s observations
of the cited condition as well as his knowledge of this mine’s history of roof falls as well as
industry records of injuries caused by falls. Lampley testified that this 70’ x 75’ area of roof was
not being supported by the damaged or loose roof bolts. As a result, a large area of roof may fall
out injuring the miner operator, his helper, the scoop operator and any haulage vehicle operators.
This section of the mine had coal and shale sloughing away from the limestone. The permanent
roof bolts are designed to support the roof in between each bolt but with missing or loose bolts, a
larger area of roof could fall and would be more likely to do so. Where there are multiple
permanent support bolts missing or not supporting the roof in an area where miners travel
multiple times each day without any warning flags to prevent exposure, there is an increased
likelihood of a miner being struck by falling rock. Tr 92- 98. An injury caused by a rock fall is
reasonably likely to be serious. Tr 98.

The Crown III mine, according to Inspector Lampley, had one of the highest incidents of
roof falls with injuries in the district at the time of this violation. Within an 18 to 24 month
period, they had approximately 65 falls. Additionally, there were incidents of miners being
struck by sloughing rock with resulting lacerations. Lampley was aware of this history from
reviewing the mine’s profile before starting his inspections. Tr. 99 and Gov. Ex. 34. Although
not all of the falls may have been due to unsupported roof, the likelihood is increased with the
presence of damaged or loose bolts, in Lampley’s opinion. Tr 101.

Inspector Lampley also referred to a January 2, 2002 fatalgram during his testimony as
evidence of the likelihood of an accident and the gravity of a roof fall under these circumstances.
Gov. Ex. 38. The cause of the fatal roof fall reported therein was due to the presence of seven
damaged roof bolts in an entryway at the second crosscut, a situation very similar to this one. Tr
103-104.

The number of persons affected by the violation was determined to be two persons at any
one time. Although there were multiple persons likely to be in this working section of the mine,
it would be likely that a miner and his helper, or a bolter and his helper would be in the area at
the same time in close proximity to each other and would both be struck by a roof fall. Tr 104. It
would be expected that at this particular location in the mine, if a portion of the roof fell, it would
likely be a relatively small amount of material causing injuries serious enough to result in lost
workdays or restricted duty. Tr 102.

Based upon the expertise of the inspector, and in the absence of evidence to the contrary,
I find the preponderance of the evidence establishes that it was reasonably likely that the
damaged and loose permanent roof bolts contributed to the hazard of a roof fall in a working area
of the mine which would be reasonably likely to result in injuries that would be reasonably
serious. The Secretary has satisfied the four Mathies criteria and established the S&S violation.

c. The Negligence

The respondent requested that the negligence by reduced from “high” to “moderate”
asserting that the area in question had been recently cut therefore the condition had exited for
only a short period of time thus posing a lower exposure of danger to the miners. In support of
this theory, Inspector Lampley was asked if it was possible that the damaged bolts were a result
of being struck by a piece of equipment being used on the previous shift. Tr 110. Inspector
Lampley responded by saying that if a piece of metal such as the bolt had been recently struck, he
would able to determine that by a visual inspection. Freshly struck metal rusts relatively quickly
enabling one to assess how long the condition had existed. There was no indication from what he
saw that the condition had just occurred. Tr 116. Furthermore, Inspector Lampley indicated on
his sketch of the area made at the time he cited the violation, that he put the notation “no
contact” on several of the bolts. That meant that the loose bolts were not damaged or bent from
being struck by a piece of equipment. Tr 109 and Gov. Ex. 7. If they had been, there would be a
shiny metal stripling in the otherwise brown metal. Tr 106. They were either loose due to
sloughing rock or improper installation. Tr 93. It was also evident that the face had remained
unchanged for a period of time from the date, time and initials (DTI) that were inscribed on the
roof support plates. There were DTIs from at least three shifts on the plates when Lampley
inspected them. Tr 106.

The reason the inspector charged the operator with high negligence for this violation is
because the number of DTIs on the plates proves that an examiner had been there on five
different occasions, during at least three shifts, and knew or should have known the hazardous
condition existed and took no corrective action. Tr 107. Nothing was done to flag off the area
and nothing was noted in the pre-shift or on-shift examination book indicating the hazard. Tr

107. Nothing was offered by the operator in mitigation; however, the condition was abated in a
     timely manner. Tr 108.

I conclude that the Secretary has established that a high degree of negligence was
involved in allowing this condition to exist. This mine is known for having an extremely high
incident rate of roof falls with injuries, one of the worst in the district. The pre-shift and on-shift
examiners are tasked with the duty to ensure the roof is properly supported in working sections
for the protection of the miners. They should be on heightened alert of such hazards during their
inspections being aware of the history of this mine and of the fatality rate from roof falls in
general. It is unconscionable that five inspections were made of these roof supports and DTI’d
over the course of three shifts and not one of the examiners noted the hazard, flagged out the area
or took steps to install proper support pins. Moreover, they offered nothing to mitigate the
severity of the violation except to ask the inspector how he could be sure all ten bolts in this 70’
x 75” area hadn’t just been damaged by a piece of equipment used on the preceding shift. Their
lack of concern for the safety of the miners is apparent.

11. Citation No. 6675278 (Gov. Ex. 16)

The regular inspection of April 2, 2009 resulted in the issuance of this citation for another
violation of section 75.202(a). This citation alleges:

The roof in the number 6 entry in the 3rd West/1 North Sub-Main panel, 012 MMU,
Is not being supported or otherwise controlled to protect persons from the hazards of
a fall of roof. One roof bolt was knocked out and the rib was worn off by the ram
cars, creating an area of unsupported roof measuring approximately nine feet by nine
feet. This area is used by the ram cars hauling coal and is one crosscut inby the turn
to the feeder. The area was dangered out to prevent travel.

Inspector Baum found that an injury resulting in lost workdays or restricted duty was
reasonably likely to result, that one person would be affected, that the violation was significant
and substantial and that it was due to a moderate degree of negligence on the part of the operator.
The penalty proposed is $1203.00.

a. The Violation

While traveling in the belt entrance in the number 6 entry, Inspector Baum saw a corner
where a bolt had been knocked out and the corner of the wall, or rib, had been rubbed off. It was
obvious that as the ram cars turned the corner coming out of that entry, either their canopy or side
board had knocked the bolt and nut off the bearing plate and broke the bolt off. The plate was
gone as well. Tr 203. Because the turn was a tight one and the cars could not get around it
easily, the side of the equipment was rubbing the corners and in this one particular place, the wall
was worn away all the way up to the roof. Tr 203-204. The inspector’s main concern with this
situation was the unsupported roof resulting from the missing bolt as there were miners working
and traveling in this section of the mine. Tr 204.

The mandatory standard states “the roof, face and ribs of areas where persons work or
travel shall be supported or otherwise controlled to protect persons from hazards related to falls
of the roof, face or ribs and coal or rock bursts.” In the inspector’s opinion the missing bolt
posed such a threat of a roof fall to the miners working and traveling in this area. He based his
opinion, in large part on his 20 years of experience as a miner at Crown III. He stated that he
recalled the Crown III mine had poor roof conditions and an extensive history of roof and rib
accidents, the majority of which resulted in injuries. Tr 205. During his years at Crown, he saw
many roof falls and explained that the roof can fall in between the bolts when the roof is fully
bolted. When a section is unbolted, the likelihood of a fall increases. Tr 206. As a miner’s
representative, Inspector Baum investigated a roof fall at Crown III which resulted in an injury
serious enough to warrant an immediate report to MSHA. In that instance, the roof had fallen in
between the bolts. Tr. 206 – 207.

Crown raised only an objection to the S&S designation and the likelihood of an injury.
Based upon this and Inspector Baum’s unique expertise on roof falls in this mine, I give full
credit to his testimony and find the violation occurred as cited.

b. Significant and Substantial

Inspector Baum designated the violation as S&S, again, in large part based upon his
unique familiarity with the Crown III mine’s history of roof falls and related injuries. In his
experience, the mine has had bad roof conditions for decades throughout the mine. Many
injuries have resulted from the falls under the best of conditions. With an area of unsupported
roof, if the condition were allowed to continue under normal mining conditions, in his opinion,
there would be a roof fall and an injury. Tr 205-206. Because this area is inby the loading point,
there are workers present, usually one at any given time who would be exposed to the danger of a
fall. Tr 207. The loading point is examined on every shift during the pre-shift and on-shift
examinations and the condition should have been identified as a hazard as it was an obvious
condition. Tr 208. Based upon how the rib was worn, the inspector estimated that the condition
had existed for at least one shift. Tr 207. Inspector Baum recalled 58 roof falls and 18 other roof
and rib accidents at Crown III, many of which resulted in injuries and lost workdays. Tr 213.
Inspector Baum went through each and every one of these incidents to determine how many
occurred while Centre Crown was operating the mine. There were 13 falls, two of which
resulted in injuries to miners. Tr 214-221. He felt this was a very high number in the space of
one year. Tr 221. A review of Gov. Ex. 34, the mine history, there were actually 18 roof falls in
that eleven month period with two resulting in injuries.

Regardless of whether there were 13, 18 or two roof falls, it is not necessary that an injury
actually occur to find a violation is properly designated as S&S. It is also not required that the
Secretary show that it is more probable than not that an injury will result from the violation, U.S.
Steel Mining Co., 18 FMSHRC 862, 865 (June 1996) and the inspector’s opinion that a violation
is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1278-79 (De. 1998); Buck Creek Coal, Inc. v. MSHA, 52 F3d 133, 135-36 (7th Cir. 1995).

The respondent tried to establish through Baum that by the old rule of thumb, one could
advance inby the last row of permanent support a certain distance – this distance being arm’s
length. Tr 210. The respondent then asked if this would be a distance of four feet. Baum
responded by saying “if you’ve got an arm’s length of four feet, I’d say you’re a heck of a man.”
The distance would be closer to two feet. Tr 211. Because this broken bolt was located in a
corner, there was a distance of nine feet to the next bolt in a triangular pattern. Most accidents,
Baum confirmed, occur in an intersection but he has seen them in entries as well. Tr 211-212.
This exchange, I infer, was intended to establish that the one broken corner bolt would pose little
more of a hazard than that which exists of a roof fall between bolts or in setting the next row of
bolts in unsupported roof. This logic ignores Inspector Baum’s testimony that the roof in this
mine in notoriously bad and even when bolts are in place, falls occur. Therefore, it is that much
more of a risk when even one single bolt is not properly installed, or is damaged, broken or
otherwise not doing its job. Additionally, the next bolt was nine feet away, not two.

I find no merit in the respondent’s assertions that an injury was unlikely taking into
account Crown III’s history of having an excessive number of roof falls due to poor roof
conditions throughout the mine as Inspector Baum so clearly described. Instead, I find the S&S
designation is supported by the expert testimony of Baum. One damaged roof bolt under the
conditions of this mine could be reasonably likely to result in an injury due to falling rock. The
many past injuries from such an accident have already proven to be reasonably serious on too
many occasions to doubt that an injury from this particular violation would be reasonably serious
as well. The Secretary has met her burden of proof.

12. Citation No. 6675733 (Gov. Ex. 14)

George Hoytheacock has been an inspector for MSHA since May 2007. Prior to that he
worked in underground coal mines for over 31 years, seven of which he worked as a roof bolter.
Tr 153-155. During a regular inspection conducted on April 3, 2009, he issued this citation to
Crown under section 75.202(a). It reads as follows:

The roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof, face
or ribs. Loose and unsupported roof was observed in Unit #4 (MMU-014) working
section. A roof bolt located between room #27 and room #28 has been damaged and
the exposed area measured approximately 8 feet by 7 feet.

The inspector assessed the likelihood of an injury as reasonably likely resulting in lost
workdays or restricted duty affecting two miners and designated the violation as significant and
substantial. The proposed penalty is $1304.00.

a. The Violation 

This standard is a stated above in sections 10 and 11. When Inspector Hoytheacock was
making an imminent danger run across the face in this section of the mine, he observed a
damaged bolt that appeared to have been struck by something. Tr 157. In his experience he
knows that when a bolt is struck, it can become loose. The bearing plate was no longer in contact
with the roof thereby offering no roof support. The area of unsupported roof measured 8’ x 7’
which is a significantly large area. Tr 158. In addition to the obvious condition of the bolt, it
was also evident that there were gaps and slits in the roof. The inspector made a sounding to
determine the exact condition of the roof where the gaps and slits were located. When tapped
with a brass knobbed stick, a “drummy” noise was made indicating the rock was no longer solid
and could fall. Tr 159. This was in a working section of the mine exposing miners to the hazard
of a roof fall. Tr 160.

Crown does not contest the violation but requested that the gravity be reduced to unlikely
that an injury would occur because this area was not in an intersection and the negligence be
reduced to low because there had not been a roof fall in this location before. Tr 176.

I accept the inspector’s assessment of the conditions in this area of the mine and his
determination that the standard was violated. In addition to having been an inspector for MSHA
for a significant period of time, he also was familiar with the roof falls in Crown III and had
seven years of experience as a roof bolter to draw upon in making this assessment. I find the
violation supported by the evidence.

b. Significant and Substantial

This violation was designated at significant and substantial because, as Inspector
Hoytheacock stated, approximately 56 square feet of the roof was unsupported in an area where it
was no longer solid. Taking into consideration the fact that this mine had had 10 lost time
accidents due to roof falls in a 10 to 18 month period, this condition created a reasonable
likelihood that a fall would occur. Tr 161-162. Based upon the size of the unsupported area, it
was reasonably likely that a rock of sufficient size would strike a miner and cause a reasonably
serious injury resulting in lost workdays at a minimum if mining operations were to continue. Tr

162. It would be likely that two persons would be injured as there would be a continuous miner
     operator and his helper in close proximity to one another working in this last open crosscut. Due
     to noise constraints and the need to communicate with each other, they would be close enough
     together to be struck at the same time. Tr 162-163.

It is not required that the Secretary show that it is more probable than not that an injury
will result from the violation, U.S. Steel Mining Co. I therefore find the respondent’s argument
unpersuasive that an injury would be unlikely because a roof fall has never occurred, at least as
he alleges, in this location before. “As long as a miner could be at risk during the course of
normal mining operations, there need not be actual exposure of miners proven” to find a
violation is properly designated at S&S. Consolidation Coal Co., 19 FMSHRC 1897 (Dec. 23,
1997) (ALJ Bulluck). Again, relying on Harlan Cumberland Coal Co., and Buck Creek Coal,
Inc. v. MSHA, the inspector’s opinion that a violation is S&S is entitled to substantial weight.
Inspector Hoytheacock articulated sufficient facts upon which to base his expert opinion and I
find that this violation is significant and substantial.

c. Negligence 

Crown also contends that the negligence level should be low rather than moderate
because a roof fall has never occurred in this section of the mine before and would not likely to
do so from only one defective bolt. He attempted to establish that under any roof plan, the roof
is supported from one bolt to the next. On Crown’s four foot square plan, therefore, the roof
would be supported four feet in each direction from the last installed bolt. What would follow
using this logic is that when one bolt in the square pattern is defective, the bolt to its north, south,
east and west would hold the roof. The respondent asked the inspector how far inby the last row
of bolts the roof is supported. Tr 167-169. Inspector Hoytheacock responded that it would be an
imminent danger to proceed past the last row of bolts. Tr 169. He added that taking into account
the cracks in the roof in this area, the roof would fall out from pin to pin. Each roof bolt
contributes to the support of the roof. Tr 172. Put another way, if one bolt is out in a row of
bolts, it decreases the overall strength of the roof. And although a fall had not occurred in this
section before, a roof fall can occur anywhere in a mine in the inspector’s opinion. Tr 177.

The respondent argued also with regard to this citation as well as the last one, that falls
more often occur in the intersections and not when the damaged bolt is in a pillar as in this case.
Tr 176. He asked the inspector if this was correct in an attempt to prove the point. The
inspector’s response was that being in a pillar, a fall would be less likely to be “massive” but a
lesser fall would reasonably result in serious injuries as well. Tr 175.

Inspector Hoytheacock determined that the condition existed for one shift by the presence
of dry rock dust being present which is done on the outer shift. The inspection was done during
the subsequent day shift so the rock dust had to have been laid during the preceding shift. This
being the case, the area should have been inspected twice before the inspection took place –once
on a pre-shift examination three hours before the day shift began and again on the on-shift
examination. Management, therefore, knew or should have known that the condition existed. Tr
163-164. Hoytheacock did consider the presence of rock dust a mitigating factor in reducing the
negligence from high to moderate. He explained that had there not been rock dust, the area would
have been black making the damaged bolt easier to see. Tr 164. He found no additional
mitigating circumstances and management offered none at the time. Tr 165.

Negligence is the failure to meet the standard of care required by the circumstances.
Moderate negligence is defined by the regulations as when an operator knows or should know
that a violative condition exists but there are some mitigating circumstances. 30 C.F.R.
§100.3(d), Table X. Inspector Hoytheacock offered credible testimony as to the circumstances
surrounding this violation. They are that: 1) Crown III has an extensive history of roof falls
many of which resulted in relatively serious injuries; 2) The mine is known to have poor roof
conditions making proper roof support extraordinarily important; 3) The failure of even one bolt
in a four by four square configuration weakens the overall support of the roof; 4) Coupled with
cracks and gaps in the roof, a damaged bolt will reasonably likely result in a roof fall under
normal mining conditions; 5) Roof falls can occur in any part of a mine, not only in
intersections; 6) The unsupported roof condition between room #27 and #28 existed for at least
one shift and should have been examined twice prior to the issuance of this citation; and, 7)
Management knew or should have known of the condition and did nothing to correct the
situation. This was the third of six citations issued between March 17, 2009 and May 7, 2009 for
similar unsupported roof or rib conditions. It appears that Crown bears little sense of
responsibility for the safety of their miners. It is only upon Inspector Hoytheacock’s testimony
that he felt the presence of rock dust mitigated the violation that I find moderate rather than high
negligence is appropriate.

13. Citation No. 6675454 (Gov. Ex. 29)

This citation also alleges a violation of section 75.202(a). It was issued on May 7, 2009
by Inspector Jeffrey Adams. Adams has been an MSHA inspector for three years and was a
miner for 26 years prior to that. His experience in underground mining includes working as a
roof bolter. The citation he issued alleges:

A loose rib in Unit 3, entry no. 4, at survey station 700 was not supported or
otherwise controlled to protect persons from hazards related to falls of roof, face, or
ribs and coal or rock bursts. The rib measured approximately 10 feet in length by 8
feet in height and was directly adjacent to the high voltage sled behind the section
power center.

The violation was assessed as reasonably likely to result in a permanently disabling
injury, significant and substantial affecting one person and a result of moderate negligence. The
proposed penalty is $1795.00.

a. The Violation

On the day in question, Adams was performing respirable dust sampling when he walked
through what is known as the “dinner hole” which is a place where miners congregate before
they go to the working face. It is also a place where parts are stored in the shop area. As he
exited the dinner hole going towards the face, he saw a loose rib near the section power station.
Tr 184-185. He determined that the rib was loose by its appearance. Both ends of this ten foot
by eight foot section of the coal wall had a gap approximately six inches wide at each end. There
was also a crack across the top from end to end. Tr 185. The condition was very obvious and
located in one of the two entryways leading to the face. It is traveled by 20 to 22 people on that
unit at least once per shift. Tr 186. Adjacent to this area is the high voltage sled similar to a table
on which excess high voltage cable is coiled. The sled is rather large and takes up the majority of
the entryway leaving only six feet or so between it and the rib for miners to pass by. Tr 187.
Three timbers were required to support the rib in abatement of the citation. Gov. Ex. 29.

Crown contests the gravity of the citation asserting that it should be marked as unlikely to
cause an injury but does not contest the violation.

I find, based upon Inspector Adams’ testimony, the violation is established as cited.

b. Significant and Substantial

Inspector Adams described the rib as weighing approximately three tons. It was larger
than the travel way and would have covered the entire walkway had it fallen. Tr 188. The large
gaps at both ends and the crack across the top indicated to him that it was loose and posed a real
danger of falling. Tr 184. The likely outcome of such a fall would be a crush injury that would
be at least permanently disabling and very likely fatal. Tr 188-189. In support of his opinion, he
referred to two fatalgrams, Gov. Ex. 42 and 43. Both fatal incidents were the result of falls of
unsupported loose ribs in underground mines similar to the condition found at Crown. The most
recent one was dated January 22, 2010. Tr 189-192. The location of this condition in one of the
two travelways to the face made the condition especially perilous. Every miner on the unit
numbering 20 to 22 was exposed to it. Generally, only one person at a time would be walking
through there which is why Adams assessed the exposure as to one person. Tr 193

It does not take any imagination to find that this condition, had it not been cited and
abated, posed a discrete safety hazard of a rib fall that in all reasonable likelihood would result in
an injury and that injury would be of a reasonably serious nature. Taking into consideration the
weight of the rib and the relative size as compared to the width of the travelway, I find that an
injury resulting from a fall would likely be fatal rather than permanently disabling. I so modify
the gravity of the citation.

c. Negligence

Inspector Adams testified that there were no mitigating facts offered by management at
the time of the inspection. Tr 195. It appeared that the condition had existed for more than one
shift as he explained that usually a pillar cracks first and then as it takes weight over the course of
time, it separates. Tr 193-194. Inspector Adams stated that he designated this citation as
moderate in negligence because even though it was so obvious that someone must have seen it,
he could not designate it as high because he could not put the operator or a supervisor “right
there to say that they saw it, but someone did.” Tr 194. However, he did confirm the fact that
this section would have been subject to the pre- and on-shift examinations. Tr 195.

Three timbers were required to support this huge rib. It was in plain sight in a heavily
trafficked area and was subject to mandatory examinations at least twice before the citation was
issued. It is not necessary to prove that management knew of the condition, only that they should
have known and that there were no mitigating factors to consider in order establishing a high
degree of negligence. Crown has a long and flagrant history of fall-related accidents and clearly
lacks any concern for the safety of their miners. I find the appropriate degree of negligence is
high rather than moderate.

14. Citation No. 6675284 (Gov. Ex. 18)

Inspector Baum issued this citation on April 14, 2009 for an alleged violation of section
75.208 because he found:

A visible warning device or physical barrier was not installed to impede travel
beyond permanent roof support. This condition was present in the number 2 entry
of the 3rd West panel off the 1st North Sub-Mains. The continuous miner had holed
the crosscut between number 1 entry and number 2 entry and did not post the last row
of permanent support. 

The citation was designated as significant and substantial, reasonably likely to cause an
injury resulting in lost workdays or restricted duty, affection one person and involving a
moderate degree of negligence on the part of the operator. The proposed penalty is $634.00.

a. The Violation

The standard cited in this citation requires that “except during the installation of roof
supports, the end of permanent roof support shall be posted with a readily visible warning, or a
physical barrier shall be installed to impede travel beyond permanent support.” What Inspector
Baum encountered during his inspection was a crosscut that had been mined between two entries
with no visible warning posted to impede traffic in the unbolted crosscut. Tr 224. There were no
roof supports being installed at the time the inspector cited this violation. Tr 225. Inspector
Baum stated that the area should be flagged before the cut is made but, at a minimum, it had to
been done as soon as it is made. Tr 228. When asked by the respondent if he was told there had
been a flag posted earlier that had fallen off, Inspector Baum stated that he did not recall any such
comment and he would have put it in his notes if that had been the case. Tr 230.

The violation was accepted by Crown but they requested that the gravity be reduced to
unlikely because they believed that area had been flagged when the cut was made. The
respondent stated at the hearing that they would provide an affidavit post-hearing from an
individual who was aware of the flag being posted. By email dated January 2, 2011, Mr. Hayden
indicated that they would not be submitting the affidavit. Ct. Ex. 1. There is no evidence that the
area had been flagged off to contest this violation or mitigate the gravity. I find the standard was
violated as cited.

b. Significant and Substantial

This citation was deemed S&S by Inspector Baum because, as he had previously testified,
this mine has bad roof conditions throughout making a fall reasonably likely. The area in which
he found this unsupported roof was an active area of the mine exposing miners to a reasonable
likelihood of being injured by a roof fall. Tr 227. Inspector Baum believed that if struck by a
roof fall, the injury would be reasonably serious and would, at a minimum, result in lost
workdays or restricted duty. Such a fall could easily result in a fatality, however. Tr 226-227.
Given the fact that only one miner would typically be traveling in this area at any one time, the
inspector felt one miner would be exposed to this hazard. Tr 227. The operator was given only
five minutes to abate this violation because it posed such a serious danger. Tr 229.

The testimony of Inspectors Lampley, Hoytheacock, Adams, and Baum make it
inexorably clear that there exists a very serious and imminent potential for a roof or rib fall in
Crown III due to geological conditions and lack of safety precautions. This is underscored by the
dozens of roof falls recorded in the history of this mine, many of which have resulted in serious
personal injury. Under these conditions, it is impossible for the operator to justify the risk posed
to miners for allowing unsupported roof conditions to exist for even a minimal period of time.
The fact that the operator has conceded the existence of each of these violations indicates to me
that they not only knew of the unsafe practices being followed in this mine but that the safety of
those who toiled underground was of little consequence to them. It is a well known truth that
mine roofs are inherently dangerous and subject miners to the very real possibility of injury or
death in the event of a fall. For this reason, I find that Inspector Baum’s assessment of this
violation as S&S is justified.

15. Citations No. 6675296 (Gov. Ex. 25), and 6675299 (Gov. Ex. 27)

These citations were issued under section 75.220(a)(1) of the regulations by Inspector
Baum during the April 24, 2009 and April 29, 2009 regular inspections as a violation of Crown’s
approved roof control plan. Gov. Ex. 33. Citation no. 6675296 alleges:

A violation of the operator’s approved roof control plan is present in the 2nd
South/Main West, 001/010 MMU. The crosscut right off of #1 entry at survey
station 2600, is mined from 18’2” to 20’5” wide for a distance of approximately 17’.
The approved roof control plan requires that the width of entries and crosscuts be
mined to a maximum of 18’.

Citation no. 6675299 alleges the same facts except that the location of the violation was
in the 3rd South/Main West working section, 001/010 MMU crosscut between 7 and 8. The area
was mined to approximately 19’5” wide to 19’7” wide for a distance of approximately 25’. Inspector Baum designated both violations as reasonably likely to result in an accident
causing lost workdays or restricted duty, significant and substantial and resulting from moderate
negligence on the part of the operator. He determined that one person was exposed to the hazard
in the first citation and two persons in the second. The proposed penalty is $897.00 on the first
citation and $873 on the second.

a. The Violation

Section 75.220(a)(1) provides that “Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine. Additional measures shall be taken to
protect persons if unusual hazards are encountered.” The approved roof control plan for Crown
III in effect at the time of this inspection provided that the maximum width of a main entry or
main entry crosscut shall be 18’. Gov. Ex. 33 pg 1.

Crown argued that under a supplemental roof plan, if a cut exceeded 18’ an additional
bolt no less than 18 inches in length could be installed to bring the operator into compliance with
the roof support plan. Inspector Baum testified that this supplemental plan required in the event
an entry is driven wider than 18’ or the ribs slough off wider than that width, a bolt no less than
two feet in length must be installed between the rows of the bolts installed in the regular pattern.
When questioned by the respondent why they were, then, not in compliance with the
supplemental plan, Inspector Baum pointed out that the only bolts in the area were those on
pattern according to the plan. There were no additional support bolts as required under the
supplemental plan installed. Tr 274-276.

After Baum provided this explanation of why Crown was not in compliance with the roof
control plan or the supplemental provision, Crown accepted these two violations as written. Tr

277. I therefore find these two citations were correctly cited and approve them as written.

II. PENALTIES

The Mine Act delegates the duty of proposing civil penalties for violations to the
Secretary. 30 U.S.C. §§815(a) and 820(a). When an operator challenges the Secretary’s
proposed penalties, the Secretary petitions the Commission to assess them. 29 C.F.R. §2700.28.
Once petitioned to assess the penalties, the Commission delegates the authority to the
administrative law judges to assess the civil penalties de novo. Section 110(i), 30 U.S.C.
§820(I). The administrative law judge is required by the Act to consider the following six
statutory criteria in her assessment of the appropriate penalties:

(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the operator
was negligent, (4) the effect on the operator’s ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of the person charged
in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C.
§820(i).

The penalty assessment for a particular violation is within the sound discretion of the
administrative law judge so long as the six statutory criteria and the deterrent purpose of the Act
are given due consideration. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d,
736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000).

I have given each of the six statutory criteria consideration as well as the deterrent
purpose of the Act in assessing the penalties below. The parties entered into several stipulations
of fact which affect the assessment of penalties. They are: 1) the operator produced 1,360,392
tons of coal in 2009; 2) Crown demonstrated good faith in abating the cited citations, and 3) the
proposed penalties will not affect Crown’s ability to remain in business. Secretary’s Prehearing
Response. The last stipulated fact was withdrawn at the commencement of the hearing and
respondent was provided the opportunity to provide financial records post-hearing to contest this
issue. By email dated January 2, 2011, they withdrew their objection to this stipulation and
declined to submit any financial information. Ct. Ex. 1. I find, therefore, that they have
conceded this point.

The parties entered into a settlement agreement on 44 citations prehearing. The terms of
this agreement are contained in Gov. Ex. 46. They have agreed to modify Citation No. 6675094
to reasonably likely to unlikely, high negligence to moderate negligence and S&S to non-S&S
with a penalty of $270.00; Citation No. 6675530 from permanently disabling to lost workdays or
restricted duty with a penalty of $100.00; Citation No. 6675531 from 10 persons affected to 2
with a penalty of $745.00; Citation No. 6675533 from reasonably likely to unlikely, and
permanently disabling to lost workdays or restricted duty with a penalty of $191.00; Citation No.
6675097 from reasonably likely to unlikely with a penalty of $426.00; Citation No. 6675534
from permanently disabling to lost workdays or restricted duty and from 18 persons affected to 2
with a penalty of $109.00; Citation No. 6675098 from reasonably likely to unlikely and from 40
persons affected to 2 with a penalty of $335.00; Citation No. 6675535 from permanently
disabling to lost workdays or restricted duty and from 9 persons affected to 2 with a penalty of
$119.00; Citation No 6675536 from permanently disabling to lost workdays or restricted duty,
affecting 2 persons instead of 9 with a penalty of $335.00; Citation No. 6675542 from 3 persons
affected to 1 and moderate negligence to low with a penalty of $128.00; Citation No. 6675546
from moderate to low negligence with a penalty of $100.00; Citation No. 6675552 from lost
workdays or restricted duty to no lost workdays and from moderate to low negligence with a
penalty of $100.00; Citation No. 6675556 from high negligence to moderate with a penalty of
$1,112.00; Citation No. 6675557 from 20 persons affected to 1 and from moderate negligence to
low with a penalty of $100.00; Citation No. 6675558 from moderate to low negligence with a
penalty of $635.00; Citation No. 6675325 as assessed with a penalty of $127.00; Citation No.
6675562 from moderate to low negligence with a penalty of $100.00; Citation No. 6675832 from
moderate to low negligence with a penalty of $426.00; Citation No. 6675833 from moderate to
low negligence with a penalty of $100.00; Citation No. 6675834 as assessed with a penalty of
$224.00; Citation No. 6675835 as assessed with a penalty of $499.00; Citation No. 6675838
from 10 persons affected to 1 and from moderate to low negligence with a penalty of $100.00;
Citation No. 6675842 from high to moderate negligence with a penalty of $500.00; Citation No.
6675848 from fatal to no lost workdays with a penalty of $100.00; Citation No. 6675850 from
fatal to no lost workdays with a penalty of $100.00; Citation No. 6675277 as assessed with a
penalty of $540.00; Citation No. 6675736 from 13 persons affected to 1 with a penalty of
$128.00; Citation No. 6675280 from reasonably likely to unlikely with a penalty of $109.00;
Citation No. 6675416 from high to moderate negligence with a penalty of $207.00; Citation No.
9942564 from high to moderate negligence with a penalty of $1,530.00; Citation No. 6675744
from fatal to no lost workdays with a penalty of $100.00; Citation No. 6675286 from fatal to
permanently disabling with a penalty of $100.00; Citation No. 6675288 from 4 to 1 person
affected with a penalty of $285.00; Citation No. 6675748 as assessed with a penalty of $499.00;
Citation No.6675750 from 12 to 1 person affected with a penalty of $128.00; Citation No.
6675294 from high to moderate negligence with a penalty of $100.00; Citation No. 7493284
from reasonably likely to unlikely with a penalty of $309.00; Citation No. 6675903 from fatal to
permanently disabling with a penalty of $191.00; Citation No. 6675453 from permanently
disabling to lost workdays or restricted duty with a penalty of $163.00; Citation No. 6675906
from fatal to lost workdays or restricted duty and from 20 to 1 person affected with a penalty of
$425.00; Citation No. 6675457 as assessed with a penalty of $190.00; Citation No. 6675459
from permanently disabling to lost workdays or restricted duty with a penalty of $634.00;
Citation No. 6675909 from high to moderate negligence with a penalty of $1,795.00; and,
Citation No. 6675910 from high to moderate negligence with a penalty of $127.00. The total
penalties agreed upon by the parties are $14,641.00.

I accept the stipulations by the parties and the proposed modifications and penalties on
the settled citations as being appropriate to this operator’s size, ability to pay, history of
violations, degree of negligence, seriousness of the violation and good faith abatement of the
condition.

As to the citations adjudicated at the hearing, I assess the following penalties:

Citation No. 6675539: I assess a penalty of $687.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675540: I assess a penalty of $3,689.00 as proposed by the Secretary for
the reasons set forth above.

Citation No. 6675541: I assess a penalty of $3,689.00 as proposed by the Secretary for
the reasons set forth above.

Citation No. 6675847: I assess a penalty of $634.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 7493279: I assess a penalty of $634.00 based upon the fact that this citation
is for a violation of the same standard as in citations nos. 6675847 and 7493296 with the same
gravity and degree of negligence. The penalty, therefore, should be the same in all three
violations and I find based upon the gravity and negligence, this penalty is appropriate.

Citation No. 7493286: I assess a penalty of $634.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675287: I assess a penalty of $207.00 based upon my finding that this
violation was not significant and substantial.

Citation No. 6675290: I assess a penalty of $207.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675297: I assess a penalty of $207.00 based upon my finding that this
violation was not significant and substantial.

Citation No. 6675836: I assess a penalty of $3,405.00 as proposed by the Secretary for
the reasons set forth above.

Citation No. 6675278: I assess a penalty of $1203.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675733: I assess a penalty of $1304.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675454: I assess a penalty of $3500.00 based upon my finding the degree
of negligence is high rather than moderate, and the gravity is fatal rather than permanently
disabling as set forth above.

Citation No. 6675284: I assess a penalty of $634.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675296: I assess a penalty of $897.00 as proposed by the Secretary for the
reasons set forth above.

Citation No. 6675299: I assess a penalty of $897.00 based upon the fact that the
circumstances surrounding the violation were identical to that involved in citation no. 6675296. I
find based upon the degree of negligence and the gravity of the hazard the penalty is appropriate
as set forth above.

A total of $ 22,428 is assessed for the violations heard and decided herein. The total
penalty for the four dockets (Lake 2009-418, Lake 2009-419, Lake 2009-494 and Lake 2009-542) is $37,069. 

III. ORDER

Centre Crown Mining, LLC. is ORDERED to pay the Secretary of Labor the sum of
$37,069.00 within 30 days of the date of this decision.

Priscilla M. Rae

Administrative Law Judge

Distribution:

Natalie Lien, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202-5708

Hershiel Hayden, President, Centre Crown Mining, LLC, 524 Brooktree Rd., Knoxville, TN
37919