Secretary of Labor v. Tri County Coal, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Tri County Coal for roof-bolter dust-collection defects, inaccurate escapeway maps, failure to follow the roof-control plan, inadequate rock dust, and defective trailing-cable splices. Judge L. Zane Gill affirmed all seven litigated violations. He removed the S&S designations from two dust-collector citations because the Secretary did not prove that the case-specific dust concentration, makeup, duration, and exposure were reasonably likely to cause lung disease. He upheld S&S findings for inaccurate refuge and escapeway maps, two overwide areas without required supplemental roof support, and a damaged cable splice that exposed inner conductors where miners handled the cable. The remaining rock-dust and cable-splice violations were non-S&S, and total penalties of $8,853 were assessed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 72.630(b), 75.1505(b), 75.220(a)(1), 75.403, and 75.604(b)
• Outcome: Seven violations were affirmed with modified S&S and affected-person findings, and penalties totaled $8,853.
• Key point: A work-practice dust-control violation does not automatically establish S&S without proof connecting the actual exposure conditions to a reasonably likely serious illness.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

DECISION AND
ORDER

Appearances:               Emily
L. B. Hays, Esq., Department of Labor, Office of the Solicitor, Denver, CO, for
Petitioner;

Wesley T. Campbell, Manager of
Safety and Training, Farmersville, IL, for Respondent.

Before:                                    Judge
L. Zane Gill

This proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or
“Act”) involves seven section 104(a) citations, 30 U.S.C. § 814(a), issued by
the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Tri
County Coal, LLC (“Tri County” or “Respondent”) at its Crown III Mine. The
parties presented testimony on April 2, 2013, in St. Louis, MO.

During the hearing parties came to
an agreement on one citation.[1]
Additionally, the day before the hearing, Respondent withdrew its contest on
Citation No. 8433712 for Docket LAKE 2011-0937. (Tr. 8:2-5) Citations No. 8429578,
8429598, 8429536, 8419112, 8419546, 8419577, 8419579 were litigated.

Decision Summary

Citation No. 8429578 – Tri
County violated § 75.630(b) of the Mine Act; its negligence was moderate; it
was reasonably likely that an injury would occur and result in permanently
disabling illness; and, the violation did not justify being designated as
significant and substantial (“S&S”). I assess a penalty of $300.00.

Citation No. 8429598 – Tri
County violated § 75.630(b) of the Mine Act; its negligence was moderate; it
was reasonably likely that an injury would occur and result in permanently
disabling illness; and, the violation did not justify being designated as
S&S. I assess a penalty of $300.00.

Citation No. 8429536 – Tri
County violated § 75.75.1505(b) of the Mine Act; its negligence was high; it
was reasonably likely that an injury would occur and result in a fatality; and,
the violation was properly designated as S&S. I assess a penalty of
$3,144.00.

Citation No. 8419112 – Tri
County violated § 75.220(a)(1) of the Mine Act; its negligence was moderate; it
was reasonably likely that an injury would occur and result in a fatality; and,
the violation was properly designated as S&S. I assess a penalty of
$1,944.00.

Citation No. 8419546 – Tri
County violated § 75.403 of the Mine Act; its negligence was moderate; and, it
was reasonably likely that an injury would occur and result in a fatality. I
assess a penalty of $634.00.

Citation No. 8419577 – Tri
County violated § 75.604(b) of the Mine Act; its negligence was moderate; and,
it was reasonably likely that an injury would occur and result in a fatality. I
assess a penalty of $425.00.

Citation No. 8419579 – Tri
County violated § 75.604(b) of the Mine Act; its negligence was moderate; it
was reasonably likely that an injury would occur and result in a fatality; and,
it was properly designated as S&S. I assess a penalty of $2,106.00.

Stipulations:

The parties submitted the following
stipulations at the hearing: (Tr. 452:10 – 453:1)

1.                 
These dockets involve an underground coal mine known as Crown III Mine,
which is owned by Springfield Coal Company and operated by Tri County Coal,
LLC;

2.         The
mine, located in Macoupin County, Illinois, MSHA ID 11-02632, is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977, the Mine Act,
30 U.S.C. § 801 through 965;

3.         The
administrative law judge has jurisdiction over these proceedings pursuant to
Section 105 of the Mine Act. 30 U.S.C. § 815;

4.         Respondent
is an operator as defined in 3(d) of the Mine Act, 30 U.S.C. § 803(d);

5.         Respondent
is engaged in mining operations in the United States and its mining operations
affect interstate commerce;

6.         Dennis
Baum, Henry Trutter, Matthew Lemons, and Marsha Price are authorized
representatives of the United States Secretary of Labor and were acting in an
official capacity when the citations were issued;

7.         Respondent
demonstrated good faith in abating the violations at issue in these dockets;

8.         The
proposed penalties will not affect respondent's ability to remain in business;

9.         The
certified copies of the MSHA assessed violations history reflect the history of
the mine for 15 months prior to the date of issuance of the citations at issue
and may be admitted into evidence without objection by Tri County;

10.       The
Secretary modifies citation 8429536 in docket LAKE-2011-377 from unlikely to
reasonably likely and from non-significant and substantial to significant and
substantial.

Basic Legal Principals

Significant and Substantial

The Secretary bears the burden of proving all
elements of a citation by a preponderance of the evidence. In re: Contests
of Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17
FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim
Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski)
(“The Secretary’s burden is to prove the violations and related allegations,
e.g., gravity and negligence, by a preponderance of the evidence.”) Some of the
citations in dispute and discussed below have been designated by the Secretary
as S&S. A violation is properly designated S&S “if, based upon the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The question of whether a particular violation is S&S
must be based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to
violations of mandatory health and safety standards. Cyprus Emerald Res. Corp.
v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999).

In Mathies Coal Co., the
Commission established the standard for determining whether a violation was
S&S:

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

6 FMSHRC 1, 3-4 (Jan. 1984).

The third element of the Mathies
test presents the most difficulty when determining whether a violation is
S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),
the Commission provided additional guidance: [T]he 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.”
(citing U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984)).
The Secretary, however, “need not prove a reasonable likelihood that the
violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC
2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc.,
32 FMSHRC 1257, 1281 (Oct. 2010). Further, the Commission has found that “the
absence of an injury-producing event when a cited practice has occurred does
not preclude a determination of S&S.” Id. (citing Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel,
Inc., 18 FMSHRC 853, 857 (June 1996)). This evaluation is also made in consideration
of the length of time that the violative condition existed prior to the
citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel Mining Co.,
Inc., 6 FMSHRC at 1574.

There is additional case law regarding
evacuation standards for S&S designations. The Commission found that
“[e]vacuation standards are different from other mine safety standards. They
are intended to apply meaningfully only when an emergency actually occurs. When
the citation for a violation of an evacuation standard is issued, presumably no
emergency exists at that moment.” Cumberland Coal Res., 33 FMSHRC at
2367. The Court also laid out the application of the second and third elements
of the Mathies test to evacuation standards as follows:

Regarding the second Mathies
element, the judge found that the hazard contributed to by the violations was
“miners not escaping quickly in an emergency with attendant increased risk of
injuries due to a delay in escape.” We conclude that this statement is an
accurate description of the relevant hazard contributed to by the violations
[…] [I]n addressing the third Mathies element, the next question before
the judge was whether there was a reasonable likelihood that this identified
hazard would result in injury.

Id.at 2364-65. (internal citations omitted)

Negligence

Negligence “is conduct, either by
commission or omission, which falls below a standard of care established under
the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d).
“A mine operator is required […] to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. “MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.” Id. Reckless
negligence is present when “[t]he operator displayed conduct which exhibits the
absence of the slightest degree of care.” Id. High negligence is when
“[t]he operator knew or should have known of the violative condition or
practice, and there are no mitigating circumstances.” Id. Moderate
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” Id.  Low
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances.” Id.
No negligence is when “[t]he operator exercised diligence and could not
have known of the violative condition or practice.” Id.

The Commission has provided
guidance for making the negligence determination in A. H. Smith Stone
Co., stating that:

Each mandatory standard thus carries
with it an accompanying duty of care to avoid violations of the standard, and
an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence... In this type of case, we look to such considerations as the
foreseeability of the miner’s conduct, the risks involved, and the operator’s
supervising, training, and disciplining of its employees to prevent violations
of the standard in issue.

5 FMSHRC 13, 15 (Jan. 1983)(citations omitted).

Mitigation is something the operator does
affirmatively, with knowledge of the potential hazard being mitigated, that
tends to reduce the likelihood of an injury to a miner. This includes actions
taken by the operator to prevent or correct hazardous conditions.

Gravity

The gravity penalty criterion under section
110(i) of the Mine Act, 30 U.S.C. § 820(i), “is often viewed in terms of the
seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541,
1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287,
294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny
& Ohio Coal Co., 9 FMSHRC 673, 681 (April 1987)). The seriousness of a
violation can be examined by looking at the importance of the standard which
was violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the
safety and health of miners. See Harlan Cumberland Coal Co., 12
FMSHRC 134, 140 (Jan. 1990)(ALJ Fauver). The gravity analysis focuses on
factors such as the likelihood of an injury, the severity of an injury, and the
number of miners potentially injured. The Commission has recognized that the
likelihood of injury is to be made assuming continued normal mining operations
without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at
1130.

Penalty

The principles governing the authority of
Commission administrative law judges to assess civil penalties de novo for
violations of the Mine Act are well established. Section 110(i) of the Mine Act
delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the
duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus,
when an operator notifies the Secretary that it intends to challenge a penalty,
the Secretary petitions the Commission to assess said penalty. 29 C.F.R. §
2700.28.

Under Section 110(i) of the Mine Act, the
Commission is to consider the following when assessing a civil penalty: (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
in abatement of the violative condition. 30 U.S.C § 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the Commission is bound by the Secretary's proposed penalties … we find no basis upon which to conclude that [MSHA's Part 100 penalty regulations] also govern the Commission.”); See American Coal Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski).

The Commission has repeatedly held
that substantial deviations from the Secretary's proposed assessments must be
adequately explained using the section 110(i) criteria. E.g., 293 Sellersburg Stone Co.,
5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera
Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how
the findings contributed to his or her penalty assessments. Cantera Green,
22 FMSHRC at 622.

Although
all of the statutory penalty criteria must be considered, they need not be
assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503
(Sept. 1997). Generally speaking, the magnitude of the gravity of a violation
and the degree of operator negligence are important factors, especially for
more serious violations for which substantial penalties may be imposed. Musser
Engineering, 32 FMSHRC at 1289 (judge justified in relying on utmost
gravity and gross negligence in imposing substantial penalty); Spartan
Mining Co., 30 FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise
a penalty significantly based upon findings of extreme gravity and
unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July
2001) (judge did not abuse discretion by weighing the factors of negligence and
gravity more heavily than the other four statutory criteria). For example,
violations involving “extreme gravity” and/or “gross negligence,” or, as stated
in the former section of 105(a), “an extraordinarily high degree of negligence
or gravity, or other unique aggravating circumstances,” may dictate higher
penalty assessments. See 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. at
13,621.

In
addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg
Stone Co., 5 FMSHRC at 293:

When …
it is determined that penalties are appropriate which substantially diverge
from those originally proposed, it behooves that Commission and its judges to
provide a sufficient explanation of the bases underlying the penalties assessed
by the Commission. If a sufficient explanation for the divergence is not
provided, the credibility of the administrative scheme providing for the
increase or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.

Citation No. 8429578 (LAKE
2011-0937) and Citation No. 8429598 (LAKE 2011-0937)

On May 2,
2011, at 11:30am MSHA Inspector Marsha Price[2]
(“Price”) issued Citation No. 8429578 to Tri County Coal’s Crown III Mine
alleging a violation of 30 C.F.R. § 72.630(b) pursuant to Section 104(a)[3] of the Mine Act. The relevant section
of the regulation states that “[d]ust collectors shall be maintained in
permissible and operating condition.” 30 C.F.R. § 72.630(b). Section
72.630(b) regulates a mandatory safety standard. The Citation alleges:

The dust
collection system on the Fletcher Double Boom Bolter company number 30, serial
number 91010/2005348, operating on the number 1 Unit (MMU 010-0) is not being
maintained in permissible and operating condition. The following conditions
were found: (1) The left drill pod has a bolt missing on the bottom of the pod.
(2) Fine dust has accumulated on the clean side of the filter media of the left
side collection box. (3) The dust collection approval tag is not on the
machine.

Ex. S-5.

On June
8, 2011, at 5:10pm Inspector Price issued Citation No. 8429598 to Tri County
Coal’s Crown III Mine also alleging a violation of 30 C.F.R. § 72.630(b)
pursuant to Section 104(a) of the Mine Act. The Citation alleges:

The dust
collection system on the Fletcher double boom bolter, company number 58, being
used on MMU 013-0 active miner unit, is not being maintained in permissible and
operating condition in that the following conditions were found: (1) The
suction hose connector is leaking on the right side of the drill arm. (2) Three
bolts are missing on the bottom of the left side drill pod. (3) The suction
hose under the left side drill pod has a hole in it. (4) Fine dust has
accumulated on the clean side of the filter media in the right side dust
collection box.

Ex. S-9.

Violations

Respondent
does not dispute that the conditions Inspector Price observed were violations. (Tr.73:17-19)
Inspector Price determined that the dust collection systems for both citations
were not being maintained in permissible or operating condition, in violation
of the standard. “Permissible, as applied to a dust collector, means that it
conforms to the requirements of this part, and that a certificate of approval
to that effect has been issued.” 30 C.F.R. § 33.2(a).

Manufacturers
of dust collection systems for use on roof bolters in mines must submit them
for testing by MSHA, which entails measuring the net concentration of airborne
dust at each drill operator's position while a series of test holes are drilled.
See, gen. [sic.] 30 C.F.R. Part 33. Additionally, dust
concentrations may not exceed 10 million particles (5 microns or less in
diameter) per cubic foot of air. 30 C.F.R. § 33.33(b). Systems that pass the
test are issued a certificate of approval, which must be reproduced as an
approval plate. The plate must be stamped or affixed to the unit, which
identifies it as permissible. Id. § 33.11. Without an approval plate, no
unit has the status of “permissible.” Id. § 33.11(d). Use of the
approval plate is not authorized except on units that conform strictly with the
drawings and specifications upon which the certificate of approval was based. Id.
§ 33.11(e).

Tri County Coal, LLC, 34 FMSHRC 3255, 3274 (Dec. 2012) (ALJ Zielinski).

Citation
No. 8429578 deals with the left side dust
collection system. It alleges an injury was reasonably likely to occur, the
injury could reasonably be expected to result in permanently disabling injury,
the violation was S&S, two people could be affected, and the negligence level
was moderate. (Ex. S-5) Citation No. 8429578 identifies three issues on a
Fletcher roof bolter: (1) the left drill pod was missing a bolt underneath the
pod; (2) there was dust behind the clean side of the filter media; and (3) the
Respondent did not have a dust approval tag or plate on the machine. (Tr. 16:19-22)

Inspector
Price testified that to check if bolts on the Fletcher roof bolter are secure, she
one checked the vacuum pressure with a gauge and listened to hear if there were
any leaks. (Tr. 25:3-20) Price testified that when she performed the vacuum
test, she was alerted that there was a bolt missing by what she heard. Id. She
asked the operator raise the drill so she could see if a bolt was missing. She
visually confirmed that a bolt was missing on the left drill pod. (Id.;
Tr. 23:16-17; Ex. S-5) Price testified that a missing bolt can cause the cap to
loosen, which causes a leak in the vacuum system, and if left unfixed, causes
the other bolts to loosen, resulting in a drop in vacuum below the 12 inches-of-mercury
minimum. (Tr. 25:22-25)

Price
also determined that an MSHA-issued approval tag or plate was missing. (Tr. 27:14-19)
The MSHA tag assigns the machine an identification number and designates the
approved suction level in inches-of-mercury. Id. Price concluded that
the dust collection unit was not being maintained in a permissible and
operating condition because of the missing bolt and the missing MSHA plate. (Tr.
26:8-22; Tr. 28:19-20)

Price
asked the operator to remove the dust filter for inspection. (Tr. 21:10-14) She
could see and feel dust behind the clean side of the filter on the left side
dust box. Id. If functioning properly, the filter media prevents
respirable dust from entering into the exhaust system and the mine atmosphere. (Tr.
19:11-19) Price considers dust on the clean side of the filter evidence that
the dust collector is not in proper operating condition and thus not
permissible. (Tr. 23:8-13)

Citation
No. 8429598 deals with the right side dust
collection system. It alleges that an injury was reasonably likely to occur,
the injury could reasonably be expected to result in permanently disabling
injury, the violation was significant and substantial, two people could be
affected, and the negligence standard level was moderate. (Ex. S-9) Citation No.
8429598 identifies four violating conditions: (1) the suction hose connector on
the right side of the drill arm was leaking; (2) three bolts were missing on
the bottom of the left side drill pod; (3) the suction hose under the left side
drill pod had a hole in it; and, (4) fine dust had accumulated on the clean
side of the filter media in the right side dust collection box. Id.

First,
Price observed and found that the right side drill arm’s suction hose was
leaking. (Tr. 47:13-25) The suction hose connects on the bottom side of the
drill pod and runs to a collection box. Id. Price testified that she
observed a hole and air leakage on the drill-arm connector. (Tr. 48:20-22) Price
testified that she used a vacuum gauge on the drill pod and heard a leak. (Tr. 49:10-11)
The leaking suction hose connector causes a bypass in the suction system. (Tr. 49:12-14)
Price concluded that the suction hose was not being maintained in a permissible
condition per the MSHA approval plate and it was not in operating condition
because it was not functioning correctly. (Tr. 50:9-17; Tr. 50:4-8)

Second,
Price discovered a hole in the suction hose on the left side of the drill pod. (Tr.
51:4-6) She testified that she used the same method as before and could hear
sound coming from the hole in the hose. (Tr. 52:6-8) She measured the vacuum
level; on the left side it was 12 inches, and on the right it measured 18
inches. (Tr. 52:9-16) Price testified that because of the hole in the hose, the
vacuum level on the left side was near the low end of the allowable vacuum
range − 12 inches. (Tr. 53:3-7) Price concluded that the hole in the left side
hose was not permissible. (Tr. 53:19-24)

Third,
three bolts were missing on the left side drill pod. (Tr. 53:10-13; Tr.54:4-10)
Price testified that, as above, she saw that three bolts were missing (Tr. 54:15-18)
and concluded that the dust collector was not in permissible or operating
condition because of the missing bolts. (Tr. 54:19-24)

Fourth,
dust had accumulated on the clean side of the filter media in the right-side
dust collection box. (Tr. 55:2-7) At Price’s request, the operator opened the
dust collection boxes and removed the filter for her to inspect. (Tr. 55:4-7) She
concluded that the dust collection box was not being maintained in permissible
condition and was not in operating condition because of the dust behind the
filter. (Tr. 56:1-8)

Tri
County argues that, under the Secretary’s regulations, dust collection systems
must be evaluated as a whole, and that without evidence of dust sampling
showing non-compliance with applicable performance standards, the citation must
be vacated. “It is well-settled, however, that section 72.630, upon which the
citation was based, is a workplace standard designed to protect, not only drill
operators, but other miners in the immediate area, and that enforcement of the
standard does not require dust sampling.” Tri County Coal, LLC, 34
FMSHRC at 3274-75; Jim Walter Resources, Inc., 17 FMSHRC 1423, 1444-45
(Aug. 1995) (ALJ Barbour); aff'd Jim Walter Resources, Inc. v. Sec'y of
Labor, 103 F.3d 1020, 1024 (D.C. Cir. 1997), cited in Genwal Resources,
Inc., 27 FMSHRC 580, 588 (Aug. 2005) (ALJ Manning); White Buck Coal Co.,
30 FMSHRC 535, 541-42 (June 2008) (ALJ Hodgdon).

Although
it can be argued that a vacuum level of 12 inches of mercury did not render the
system inoperable, MSHA would not have issued a certificate of approval for a
system with a hole in the suction hose, a leak in the hose connector, or a
component with missing bolts. Additionally, the presence of visible dust on the
clean side of the filters is credible evidence that the dust collection systems
were not maintained in a permissible or operating condition. If the systems
were working properly, there should not have been any dust on the clean side of
the filters. If visible dust can bypass the filters, invisible respirable dust
can also bypass them and be exhausted into the mine atmosphere.  I find that
the left-side dust collection system for Citation No. 8429578 and the right-side
dust collection system for Citation No. 8429598 were not maintained in
permissible condition. Tri County violated Section 72.630(b) of the Mine Act
for Citation Nos. 8429578 and 8429598.

Negligence

Inspector
Price assessed both violations at the level of moderate negligence. As stated
above, moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.”
30 C.F.R. § 100.3(d). Price designated Citation No. 8429578 as moderate
negligence because the mine requires a pre-shift examination of the roof
bolters in its ventilation plan. (Tr. 44:18 – 45:5; Tr. 70:10-18) The section
foremen and/or the roof bolters should have known of the condition because the
section foreman approves the pre-shift examination. Id. Similarly, Price
designated Citation No. 8429598 as moderate negligence, because the operator
should have known of the condition due to the pre-shift examination requirement.
(Tr. 57:1-4) Based on the above, I agree and find Respondent’s negligence to be
moderate for both Citation Nos. 8429578 and 8429598.

Gravity

The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured. These
Citations were marked as reasonably likely to result in permanently disabling
illness or injury, namely black lung or lung disease, from miners breathing
contaminated atmosphere. (Tr. 29:1-11; Tr. 44:4-12; Tr. 56:11-13) Price
testified that when she designates something as reasonably likely, she looks to
the condition at the time of the inspection and factors in what could be
anticipated if the condition were allowed to continue. (Tr. 56:14-19)

Price
testified that breathing even a small amount of respirable dust can cause an
eventual deterioration of lung capacity and overall health, and further, the
more exposure one has, the more potential there is for black lung to develop
over time. (Tr. 30:16-19; Tr. 32:12-17) Price also testified that she is aware
of studies showing that even a small amount of exposure to respirable dust over
time can lead to lung disease. (Tr.104:22 – 105:3)[4] Price also testified that she marked
the citations as permanently disabling because exposure to respirable dust can
restrict lung capacity and breathing and can be fatal, if the illness is
serious enough. (Tr. 31:3-12; 44:4-12)[5]
I agree that it is reasonably likely that breathing respirable dust could
result in serious injury, i.e. permanently disabling lung disease. Therefore, I
find that it is reasonably likely that the illness would be serious in nature.

Significant
and Substantial

There was
a violation of a mandatory safety standard for both citations. The improperly
maintained dust collection systems contributed to a discrete safety hazard,
i.e., respirable dust expelled into the mine’s atmosphere subjected miners to
the risk of developing lung disease. Any such illness would be serious. What is
left to be determined is whether it was reasonably likely that the hazard
identified here would contribute to an illness.

“There is
no doubt that a violation of the respirable dust standards, sections 70.100[6] or 70.101, 30 C.F.R. §§ 70.100 or
70.101, is presumed to be ‘significant and substantial.’” White Buck Coal Co.,
30 FMSHRC at 541-42; U.S. Steel Mining Co., Inc., 8 FMSHRC 1274, 1281
(Sept. 1986); Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). However,
the dust collector violations in this case do not arise from respirable dust
standards. They involve a workplace practice standard which does not require a
showing of dust sampling results above a minimum concentration (as the
respirable dust standards do) and the related presumption of disease causation
built into the sampling criteria. Every element of an S&S allegation must
be proved by a preponderance of evidence unless there is an applicable
presumption that can substitute for actual provable facts. The Secretary asks
the court to graft the same presumption of causation from the respirable dust
standards onto the workplace standards involved in these citations, and therein
lies the rub.

Commission
judges have been divided about how to apply Section 72.630(b). Some appear to
have interpreted the legislative history to support an S&S designation
based on a presumption of disease causation. See, e.g., White Buck Coal Co.,
30 FMSHRC 535, 541-42; Genwal Resources, Inc., 27 FMSHRC 580,
588-89.[7]
Specifically, the legislative introduction to Section 72.630(b) notes that
during drilling, “there is the potential for extremely high exposures in short
periods of time to both miners doing the […] drilling and to other miners in
the immediate areas.” Air Quality Standards for Abrasive Blasting and Drill
Dust Control, 59 Fed. Reg. 8318 (February 18, 1994). Further, “[t]he
development of silicosis and pneumoconiosis among underground coal miners has
been well documented, particularly among roof bolters and transportation
workers”[8]
Id. at 8322, and that Ҥ 72.630 is a work practice standard that does
not require sampling.” Id.

Others
have resisted applying a presumption of disease causation derived from the
legislative language. Within this camp, the Secretary still bears the burden of
proving disease causation despite the concern for lung disease mentioned in the
legislative history. Thus, the finding that a violation deserves an S&S
designation must be based on preponderant facts rather than a presumption of
causation. See, e.g., Tri County Coal, 34 FMSHRC at 3274-75; Banner
Blue Coal Co., 34 FMSHRC 1321, 1342 (June 2012)(ALJ Koutras). My decision
follows this line of cases. I cannot find a rationale from the cited
legislative language to dispense with the requirement that disease causation
must be proved directly by preponderant evidence.

Without a
presumption that the mere presence of respirable dust in the mine atmosphere
(the hazard) causes lung disease, irrespective of its concentration, its
constituent makeup, its duration, and without the benefits of actual dust
sampling data, I must limit my review to the evidence in the record to
determine whether the S&S requirement -- that the hazard contributes to a
serious disease or injury -- is satisfied.

As
always, the Secretary carries the burden to prove, based on a preponderance of
evidence, that there was respirable dust in the mine atmosphere, that the
amount of dust in the atmosphere, its makeup, duration, and presence near the
miners, if any, created a reasonable likelihood that a serious illness would
result.

The
Secretary suggests two reasons for the S&S designation: (1) a suction
disruption due to the holes and missing bolts will cause respirable dust to
enter the mine atmosphere, which causes serious illness; and (2) it can be
inferred that dust on the clean side of the filter means that respirable dust
is entering the mine atmosphere, which causes serious illness. Indeed, Price
testified that the only time MSHA issues an S&S citation for a violation of
this standard is when dust is on the clean side of the filter or the vacuum
level is less than 12 inches of mercury. (Tr. 57:22-58:7) She testified that
both or either of these scenarios apply in this case. (Tr. 58:18-21) The
evidence is clear that there was a hole in the right side suction hose, a leak
in the hose connectors, missing bolts, and dust on the clean side of the
filters.

The
filter element is designed to prevent respirable dust from entering the miner’s
atmosphere after passing through the dust control system. (Tr. 19:11-19) Price
testified that dust on the clean side of the filter shows that dust has entered
the mine atmosphere (Tr. 55:20-25), and that it takes a significant amount of
dust to become visible on the filter. (Tr. 89:10-13) Further, Price testified
that the visible dust on the clean side of the filter represents large dust
particles that have escaped the filter unit. She inferred from this that
invisible and respirable dust particles also bypassed the filter and went into
the mine atmosphere. (Tr. 90:1-5) Price testified that dust behind the filter
contributes to lung disease. (Tr. 76:5-6)

Price
testified that she could not take air samples on the days she wrote these
citations because on both of the days, the mine was operating below the minimum
production threshold necessary to make dust samples relevant under MSHA’s
respirable dust sampling regimen. (Tr. 66:3-7)[9]
 Additionally and importantly, she did not observe airborne dust coming out of
the exhaust system at any time. (Tr. 88:22-23)

According
to Price, when the bolter is being moved, one operator is in back of the
machine handling the cables, behind the exhaust system. (Tr. 33:23 – 34:5)[10] Anyone downwind of the roof bolter
could be exposed to respirable dust, including the roof bolter operators. (Tr. 33:15-20)
The exhaust systems of the roof bolters in question are powered when the roof
bolter is being moved. (Tr. 36:7-9) When the machine moves from place to place,
the vacuum system is not operating but the exhaust system is. (Tr. 86:8-15) On
the day of the inspection, the roof bolter operators were not wearing
respirators. (Tr. 40:15-17)

The fact
remains that despite Price’s testimony regarding a bypass in the vacuum system,
both roof bolters were measured for suction and were within the 12
inches-of-mercury requirement. (Tr. 68:14-17) Although the suction might not
have been functioning optimally due to bypasses in the system, it was still
within the parameters set by MSHA. While the roof bolter noted in Citation No. 8429578
did not have an MSHA approval tag outlining the appropriate inches-of-mercury
parameters, Price testified that as a general rule, the allowable range of
vacuum is 12 to 22 inches. (Tr. 53:1-2)

In
summary, the weight of evidence does not support a conclusion that these
violations were S&S. The only evidence tending to show that respirable dust
could have entered the mine atmosphere is the presence of dust behind the
filter elements. The evidence showing permissibility problems and lack of
operational condition must be balanced against the fact that the vacuum levels
for both systems were within MSHA guidelines. Although it could be inferred
from this that some respirable dust might have entered the mine atmosphere,
there is nothing to show duration, concentration, makeup, or anything else
relevant to establish that the violating conditions were reasonably likely to
contribute to the development of lung disease.  I conclude that the Secretary
has failed to carry his burden to prove that the violations warrant an S&S
designation.

Price
designated both citations as potentially affecting two people. However, in
light of my findings above and of the testimony that only one roof bolter would
be downstream from the exhaust at the time the roof bolter was being moved, it
is necessary to modify both citations from two persons affected to one person
affected.

Penalty

For
Citations No. 8429578 and 8429598, the Secretary suggests a penalty of
$1,026.00 each. Tri County’s mine produces 1,310,941 tons annually. Tri County
was moderately negligent. Tri County’s business will not be significantly
affected by the penalty sought by the Secretary. The violations are not S&S.
According to the parties’ stipulations, Tri County demonstrated good faith in
abatement of the violating conditions. Considering the factors itemized in
section 110(i), and guided by the Secretary's penalty assessment regulations, I
impose a penalty of $300.00 for each violation − a total of $600.00.

Citation No. 8429536 (LAKE
2011-0377)

On December 7, 2010,
at 8:35am MSHA Inspector Price issued Citation No. 8429536 to Tri County Coal’s
Crown III Mine alleging a violation of 30 C.F.R. § 75.1505(b) pursuant to
Section 104(a) of the Mine Act. The regulation states that “[a]ll maps shall be
kept up-to-date and any change in route of travel, location of doors, location
of refuge alternatives, or direction of airflow shall be shown on the maps by
the end of the shift on which the change is made. ” 30 C.F.R. §
75.1505(b). Section 75.1505(b) is a mandatory safety standard. The Citation
alleges:

All maps
shall be kept up-to-date and any change in route of travel, location of doors,
location of refuge alternatives, or direction of airflow shall be shown on the
maps by the end of the shift on which the change is made. The Refuge Chamber
located at crosscut 10 between entry 7 and entry 8, the Refuge Chamber located
at crosscut 10 and the lifelines in the primary and secondary escapeways are
not noted on the active Number One Unit, the Third West, MMU 011-0.

Ex. S-2.

Violation

The Citation alleges
that an injury is unlikely; an injury could reasonably be expected to be fatal;
the violation was not S&S; one person could be affected; and high
negligence. Id. However, the parties stipulated to modify Citation No. 8429536
from unlikely to reasonably likely and from non-S&S to S&S.[11] (Tr. 9:23 – 10:1; Tr. 144:16 –
145:24) Respondent presented no evidence at trial to contradict Price’s
testimony, and did not dispute the fact of the violation in its brief. (Resp. Br.
at 13)

Price testified that
the regulation generally requires that all mine maps be kept up to date, and
any changes in the mine must be added to the maps. (Tr. 112:22 – 113:3) Price
testified that the correct locations of two refuge chambers were not shown on
three different mine maps. (Tr. 114:7-20; Tr. 113:19-21)[12] Price also testified that the
lifelines for the alternate and primary escapeways were not marked on the three
escapeway maps. (Tr. 113:7-13; Tr. 116:6-20) The three incorrect maps were
located at the two refuge chambers and at the end of the primary escapeway, or
the first point at which a miner would access a lifeline to exit the mine in
case of an emergency. (Tr. 116:15-20) 

I find that Tri County
failed to show the correct locations of the refuge chambers and escapeway
lifelines on the three maps mentioned above. This violated Section 75.1505(b)
of the Mine Act.

Negligence

Inspector Price
assessed both violations as arising from high negligence. As stated above, high
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3(d). Price testified that the mine conducts a pre-shift examination of the
alternative escapeway and the refuge chambers for each shift. Therefore, an
examiner had been at the chamber several times and never noticed that the map
was inaccurate. (Tr. 125:8-16) Additionally, miners are required to perform
periodic escapeway drills. Generally, there is one person in charge of maps
during such drills. (Tr. 126:11-20; Tr. 130:14-16) The inaccurate maps existed
long enough for miners to make 14 crosscuts, which Price testified could be
anywhere from several days to weeks. (Tr. 125:17-22) Additionally, the
examination records on the outside of the refuge chambers did not reflect that
the maps were inaccurate. (Tr. 141:21-22)

Price designated the
citation as high negligence because mine management knew or should have known
about the defective maps, and there were no mitigating circumstances. (Tr. 124:23
– 125:5) I agree and conclude that Respondent’s negligence for Citation No. 8429536
was high.

Gravity

The citation’s gravity
was classified as unlikely to cause injury or illness, but Price testified that
in hindsight she should have raised the gravity designation to reasonably
likely and S&S. (Tr. 122:10-25) Price stated that she should have evaluated
the condition in the context of an emergency, stating that it would be
reasonably likely in an emergency that this condition would result in a fatal
injury if a miner couldn’t find a refuge chamber or if he followed the wrong
escapeway out of the mine. (Tr. 122:10-16)

Price designated this
citation as fatal because in an emergency situation the confusion caused by
inaccurate map information could cause a miner to panic, thus increasing the
likelihood he would die from lack of oxygen or not be able to find his way out
of the mine. (Tr. 123:123:4-7) One of the inaccurate maps was located at the
first point a miner would access if he were trying to escape. Panic and
confusion could cause a miner to travel in the wrong direction, and the
resulting delay could cost the miner valuable breathing time on his
self-rescuer. (Tr. 118:2 – 119:13) An inaccurate map increases the likelihood
of panic, particularly if a miner is running out of oxygen and cannot find a
refuge chamber or escapeway lifeline. (Tr. 121:7-13; Tr. 118:13-23)

Price added that when
a miner enters a refuge chamber, he takes the mine map in with him so he can
give the rescue team at the surface his location. (Tr. 121:4-6; Tr. 123:17 –
124:4) If the miner gives rescuers the wrong location because the map is not
accurate, he might not be rescued. (Tr. 123:17 – 124:4)

Price designated the
citation as affecting one person, but she testified she should have marked it
for the whole crew, perhaps 10 to14 persons. (Tr. 124:7-20) I find it
reasonably likely that in an emergency a crew would be affected, but the
Secretary did not prove by a preponderance of evidence how many persons would
be in the crew. Therefore, I asses the number of persons affected as three –
the continuous miner operator, his helper, and the foreman.

Based on these facts
and inferences, I conclude that the injury possible from the scenario of miners
not being able to escape the mine quickly because of inaccurate maps could be
serious and potentially fatal.

Significant
and Substantial

I have determined that
there was a violation of a mandatory safety standard and there was a reasonable
likelihood that a reasonably serious injury would ensue. The three inaccurate
maps gave incorrect locations for two refuge chambers, the lifeline for the
alternate escapeway, and the lifeline for the primary escapeway. This
contributed to a discrete safety hazard which had the potential of resulting in
injuries to miners who might not be able to quickly escape the mine. I must yet
determine whether there was a reasonable likelihood that the hazard was
reasonably likely to result in an injury. Mathies, 6 FMSHRC at
3-4.

A miner must know
where to go in an emergency. (Tr. 118:2-4) Updated and current escapeway maps
are crucial in an emergency. (Tr. 128:20-22) Price testified that the impact of
not showing refuge chambers on the mine map depends on the timing of events. (Tr.
119:7-13) Self-rescuers only have a certain amount of oxygen which must last
until a refuge chamber is found. Id. If a miner runs out of oxygen, he
might not make it out of the mine. (Tr. 118:13-23) If a miner actually makes it
to a refuge chamber, he is trained to take the map into the chamber with him so
he can communicate his location. (Tr. 120:24 – 121:3) However, as explained
above, if a miner gives rescuers the wrong location, the chances increase that
rescuers will not reach him in time.

Lifelines are a backup
escape measure. A miner could follow a lifeline out of the mine without a map,
however the potential for confusion increases in the dark and panic without an
accurate map. (Tr. 117:16-20) Indeed, a miner might follow a lifeline to the
place on an out-of-date map where a refuge is supposed to be only to realize it
is not there. The inverse is also possible. A miner might follow a lifeline and
be close to a refuge not shown on the map but not know it. (Tr. 119:14-19)

Respondent
argued that the hazard was not reasonably likely to result in an injury because
its miners participated in previous escapeway drills. (Tr. 130:1-131:24) However,
previous training is not a substitute for accurate maps. Training cannot
guarantee that in a real-time emergency situation where miners are more likely
to be panicked and relying on escapeway maps to guide them safely out of the
mine or to refuge chambers that their drill experience will lead them to safety.
Furthermore, “[e]scapeway maps are the primary source of information needed by
miners as they are evacuating the mine. Locations of refuge alternatives are
critical to decisions made during evacuation efforts and must be kept current
on the escapeway map.” Refuge Alternatives for Underground Coal Mines, 73 Fed. Reg.
80656, 80681 (Dec. 31, 2008).

Respondent
also argued that the presence of lifelines should mitigate the likelihood of
injury. This argument is unavailing, however, because the Mine Act requires both
lifelines and accurate maps. 30 C.F.R §§ 75.1505(b); 75.380(d)(7). Additionally,
there is well established Commission and D.C. Circuit case law holding that the
presence of redundant safety systems is irrelevant to the designation of a
violation as S&S. Cumberland Coal Res., LP, v. FMSHRC, 717
F.3d 1020, 1029 (D.C. Cir. 2013). Something that is required to be on hand is
not properly considered a mitigating factor in this context.

In an
emergency, the out-of-date maps would show an incorrect location for the
lifelines in the primary and secondary escapeways and the two refuge chambers. Importantly,
it is incorrect to assume a lifeline would always be present during an
emergency. The emergency itself could obliterate it, increasing a miner’s need
for and reliance on the mine map to exit the mine or find a refuge chamber. Even
assuming a miner did find a refuge chamber; incorrect information on the map
located at the refuge chamber itself would still be reasonably likely to result
in an injury because the miner might not be able to give an accurate location
to a rescue team. In this case, both refuge chambers had inaccurate maps. In an
emergency two separate rescue crews could have been misled by the inaccurate
maps.

I
conclude there was a reasonable likelihood that the inaccurate maps would
result in injury, i.e. the inability of a miner or miners to escape quickly, or
at all, in an emergency. Thus, the Secretary proved by a preponderance of the
evidence that an S&S designation was warranted for Citation No. 8429536.

Penalty

The
Secretary proposed a penalty of $2,107.00 for this violation. Tri County’s mine
produces 1,310,941 tons annually. Tri County’s negligence was high. Its
business will not be significantly affected by the penalty sought by the
Secretary. The violation is S&S. According to the parties’ stipulations,
Tri County demonstrated good faith in abatement of the violating conditions. Considering
the factors itemized in section 110(i), and guided by the Secretary's penalty
assessment regulations, I impose a penalty of $3,144.00.

Citation No. 8419112 (LAKE
2011-0309)

On
October 30, 2010, at 1:50am MSHA Inspector Dennis Baum[13] (“Baum”) issued Citation No. 8419112
to Tri County Coal’s Crown III Mine alleging a violation of 30 C.F.R. §
75.220(a)(1) pursuant to Section 104(a) of the Mine Act. The regulation states
that “[e]ach 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. ” 30
C.F.R. § 75.220(a)(1). Section 75.220(a)(1) regulates a mandatory safety
standard. The citation alleges:

A
violation of the operator’s approved roof control plan is present in the unit
1, 3W/2S panel. Two areas have been mined in excess of the 18’ wide maximum
that is allowed by the plan. Location 1 is in the number 3 entry from the inby
rib line of the intersection at survey station 490 inby toward the face. This
wide place measured approximately 18’6” to 20” wide for a distance of
approximately 27’. Location 2 is in the last open crosscut between entries 2
and 3 at survey station 420. This place was mined 19’1” to 20’ wide for a
distance of approximately 37’. Standard 75.220(a)(1) was cited 41 times in two
years at mine 1102632 (41 to the operator, 0 to a contractor).

Ex. S-14.

Violation

The
Citation alleges that the violating condition is reasonably likely to result in
an injury, the injury could reasonably be expected to be fatal, the violation
was significant and substantial, two persons could be affected, and the
negligence level was moderate. Id.

Inspector
Baum was at the mine as part of an EO1 inspection. (Tr. 151:2-6) He testified
that he found a violation of the roof control plan, viz. two locations had been
mined in excess of the maximum width allowed by the plan. (Tr. 152:16-23) Respondent
does not dispute the fact that the area was mined in excess of the approved
roof control plan. (Resp. Br. at 17)

The
maximum entry width at the Crown II mine is 18 feet per the roof control plan. (Tr.
153:20-23; Tr. 154:17-18; Ex. S-16, pg. 2) Page 11 of the roof control plan
provides that if miners inadvertently mine the entries too wide, or if the ribs
weather and slough off, the mine must take additional measures to install
supplemental support. (Tr.154:19 − 155:6; Ex. S-16, pg. 11) According to the
roof control plan, in those instances: “a bolt, no less than 2 foot long, will
be installed between the rows of bolts and the rib to compensate for the wider
entry.” (Ex. S-16, pg. 2) Respondent had not installed supplemental support at
the two cited locations as required by the roof control plan. (Tr. 155:7-16)

The first
location was in entry number three at the last open crosscut toward the face;
it extended approximately 27 feet and was approximately 20 feet wide. (Tr. 153:2-12)
Baum measured the roof with a tape measure. (Tr. 153:12-13) There was no
additional support installed at this location. (Tr. 155:7-10)

The
second location was in crosscut entries two and three, where examiners and the
foreman take air readings. (Tr. 156:3-9) The width at this location ranged from
19 feet 1 inch to 20 feet for approximately 37 feet, which is almost the entire
length of the coal pillar. (Tr. 156:13-15) Baum measured the width with a tape
measure. (Tr. 156:16-17)

Baum
testified that Respondent abated the violation by installing 19 fully grouted
bolts between the two locations and putting a bolt at least two feet long
between the existing rows of bolts in the wide area. (Tr. 164:17-22) He also
testified that the violating conditions were not the result of sloughage; they
had been mined too wide. (Tr. 165:24-25) The roof control plan specified a
maximum width of 18 feet. However, in two locations, the width was more – as
much as 20 feet. There was also no additional support, as required under the
roof control plan.

I find
that the width of the entries at the two locations just discussed exceeded the
maximum set by the roof control plan. I conclude that the Respondent violated
Section 75.220(a)(1) of the Act.

Negligence

Inspector
Baum assessed the violation at moderate negligence. Moderate negligence is when
“[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Respondent
did not object to Baum’s negligence designation. (Tr. 171:25 – 172:3)

Baum
chose moderate negligence because the pre-shift mine examiner and the foreman
knew or should have known about the roof condition from being in the area while
taking air readings. (Tr. 162:8-16) Additionally, Baum testified that the mine
has a policy that the roof must be measured after it is cut and bolted. Id. Inspector
Baum testified that he could have issued the citation as high negligence. (Tr. 162:22-24)
Baum further testified that in the entry itself, the excess cut width was
obvious enough that somebody should have seen it, especially since there were
people in that area regularly. (Tr. 162:17-19)

I
conclude that Respondent was moderately negligent for Citation No. 8419112.

Gravity

Inspector
Baum testified that the violating conditions must have existed for a shift or
more based on when the areas would have been mined. (Tr. 164:2-5) The first
location extended approximately 27 feet with a width of approximately 20 feet. The
second location was approximately 37 feet long – almost the entire length of
the coal pillar – and was approximately 19 feet 1 inch to 20 feet wide. The
danger to miners was proportionately greater because the excess cutting
occurred in two locations.

It is
clear that a miner could be injured by a roof fall. (Tr. 158:2-4) It is obvious
that if a roof slab fell on a miner, the injury could be fatal. Baum testified
that such a roof slab could be more than 18 feet wide and 6 feet thick. (Tr. 159:18-24)
I conclude that if a roof fall were to occur under these circumstances, it
could result in a fatality. Two persons could be affected − the continuous
miner operator and his helper. (Tr. 160:10-16)

This
failure to comply with the roof control plan posed a discrete safety hazard. Miners
were subjected to the danger of falling rock from an unstable and inadequately
supported roof. “[P]ractices that compromise the integrity of the mine roof or
are permitted to exist in an area of compromised integrity are per se of
a ‘reasonably serious nature.’” Excel Mining, LLC, 34 FMSHRC 99, 116
(ALJ Gill). I conclude that there was a reasonable likelihood of serious injury
to two persons.

Significant
and Substantial

Roof
control plans are tailored for the specific conditions in each mine. MSHA set
the maximum cut width for this mine at 18 feet. (Tr. 158:13-17) Inspector Baum designated
this citation as S&S because, consistent with Mathies, there was a
violation of a mandatory safety standard giving rise to a reasonable likelihood
of serious injury and involving at least moderate negligence. (Tr. 160:19 –
161:2) Baum designated the citation as reasonably likely to cause an injury
because of poor roof conditions and the mine’s history of roof falls. (Tr. 157:10-23)

In the
last open crosscut, the roof had “potted out,” (part of the roof had fallen
out) prior to being bolted, indicating to Baum that the roof was susceptible of
falling. Id. Baum testified that he observed a visible slip running
toward the face, parallel with the entry. (Tr. 159:5-8) A slip is an anomaly in
the roof caused by a change in rock strata, which according to Baum, increases
the chance of a roof fall. (Tr. 159:9-13) Additionally, the fact that there
were roof falls despite changes made to the roof control plan to deal with
them, indicates that the quality of the mine roof in general was poor. (Tr. 176:17-22)

Miners
were regularly exposed to the poor roof conditions. In the first location, the
over cut was found at the last open crosscut inby the face, which meant that
people were regularly going to and coming from the face throughout the shift. (Tr.
155:20 – 156:1) Baum also testified that the second location was used for
haulage and ventilation, and mine examiners and foreman did their examinations
regularly throughout the shift at that location. (Tr. 156:22 – 157:5)

Respondent
argued that there had been no fatalities from previous roof falls at the mine. (Tr.
169:18-24) But, it conceded in its brief that if the roof were to fail as
Inspector Baum opined, and if miners were under it, “a fatal injury would
likely result.” (Resp. Br. at 18) Respondent also argued that it was not
reasonably likely that an injury would occur because there was no evidence in
the record that roof failure was imminent. Id. However, this is not the
correct standard to apply. The Court evaluates the citation in the context of continued
mining operations. Miners would be exposed to the hazards of a roof fall in the
two cited unsupported roof areas if a roof fall occurred.

Respondent
also argued that the unit was idle. (Resp. Br. at 18; Tr. 173:5-6) The unit may
have been idle at the time of the citation, but there were still people working
in that section, namely, the section foreman and a couple of miners who were
bolting and cleaning the face. (Tr. 175:10-21) Additionally, the condition had
lasted for more than one shift, and in the context of continued mining
operations, would have continued to exist unabated. Finally, exposure to the
hazard was particularly high at the first location because of the greater width
of the cut and the fact that miners worked there on a regular basis.

The
Secretary has proved by preponderance of evidence that the excess cut width
contributed to the hazard of a roof fall which was reasonably likely to result
in serious injury. Therefore, I find that the S&S designation was warranted
for Citation No. 8419112.

Penalty

The
Secretary proposed a penalty of $1,944.00 for this violation. Tri County’s mine
produces 1,310,941 tons annually. Tri County’s negligence was moderate. Its
business will not be significantly affected by the penalty sought by the Secretary.
The violation is S&S. According to the parties’ stipulations, Tri County
demonstrated good faith in abatement of the violating conditions. Considering
the factors itemized in section 110(i), and guided by the Secretary's penalty
assessment regulations, I impose a penalty of $1,944.00.

Citation No. 8419546 (LAKE
2011-0937)

On May
23, 2011, at 9:45am, MSHA Inspector Baum issued Citation No. 8419546 to Tri
County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.403
pursuant to Section 104(a) of the Mine Act. The regulation states that “[w]here
rock dust is required to be applied, it shall be distributed upon the top,
floor, and sides of all underground areas of a coal mine and maintained in such
quantities that the incombustible content of the combined coal dust, rock dust,
and other dust shall be not less than 80 percent. Where methane is present in
any ventilating current, the percent of incombustible content of such combined
dust shall be increased 0.4 percent for each 0.1 percent of methane.” 30
C.F.R. § 75.403. Section 75.403 regulates a mandatory safety standard. The
citation alleges:

No dry
rock dust has been applied over previously wet dusted surfaces of the roof,
ribs and floor in the 9 Right/2 West Sub-Mains, 002/013 MMU. This condition is
present in the following locations. 1. Entry number 1 from survey station 680
to survey station 890. 2. Entry number 2 from survey station 590 to survey
station 890. 3. Entry number 3 from survey station 680 to survey station 890. 4.
Entry number 4 from survey station 680 to survey station 890. 5. Entry number 5
from survey station 750 to survey station 890. 6. Entry number 6 from survey
station 680 to survey station 960. 7. Entries number 7-10 from survey station
820 to survey station 960. These areas also include the adjoining crosscuts.

Ex. S-18.

Violation

The
Citation alleges that injury is unlikely; the injury could reasonably be
expected to be fatal; the violation was not S&S; four persons could be
affected; and, the negligence level was moderate. Id. Inspector Baum
testified that under Section 75.403, rock dust must be applied to roof, ribs,
and the floor of the coal mine and be maintained at least at 80 percent
incombustible content. (Tr. 183:3-10) Rock dust is used to neutralize the danger
of an explosion. (Tr. 196:7-9) Baum testified that the areas in question were
in the working section, and there were a number of locations where he observed
that no dry dust had been applied to the ribs and roof. (Tr. 183:11-15)

The areas
in question were dry. (Tr. 189:22-24) Baum used his fingers to test areas to
determine if they were wet and needed dusting. (Tr. 190:10-13) Dry rock dust
had not been applied in seven places across the whole section from entries 1
through 20, ranging from 200 to 300 feet in length, including the adjoining
crosscuts between entries. (Tr. 190:18-25) In total, approximately 1,900 linear
feet were not properly dry or wet dusted. (Sec’y Br. at 29)

Baum
testified that the area in question had been wet dusted. (Tr. 183:18-19) Respondent
may wet dust initially, but when the wet dust dries, it must go back and apply
dry dust. (Tr. 184:16-23) The Program Policy Manual dated February, 2003
states: “After the wet rock dust dries, additional dry rock dust shall be
applied to all surfaces to meet applicable standards.” (Tr. 188:4-11; Ex. S-36)
Inspector Baum testified that even the wet dusting in the violating areas was
rather poor. (Tr. 184:25) He testified that the wet dust covered about 50
percent of the area and looked speckled (Tr. 185:8-08; 194:1-3). He could
determine visually that there was not 80 percent coverage. (Tr. 204:19-21) Baum
also testified that at the time he issued the citation, the Respondent’s
representative voiced no objection. (Tr. 205:5-7)

Respondent
argued that they were not in violation of Section 75.403 because they had wet
dusted and because the area was not dry but was in fact damp. Inspector Baum
did testify that the roof and rib were damp, but he testified that they were
not wet. (Tr. 201:1-3) The dampness of the rock dusting relates to likelihood
of an accident or injury occurring (Tr. 222:16-17), not whether the Respondent
violated Section 75.403. And as Inspector Baum noted, there is moisture
everywhere underground in a coal mine. (Tr. 221:19-22)

Respondent’s
“damp” argument is unconvincing because irrespective of whether the area was
damp and not dry, the Respondent’s dust application was insufficient to meet
the standard.

I find
that Respondent did not adequately dry dust the areas in question. I also find
that in the areas that were wet dusted, the surfaces had dried sufficiently to
require dry dusting. The combined coverage was insufficient to satisfy the
standard. Therefore, for the reasons stated above, I conclude that Respondent
violated Section 75.403.

Negligence

Inspector
Baum determined that the violation resulted from moderate negligence. Moderate
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. §
100.3(d). Baum testified that he chose moderate negligence because the working
section is examined before and during each shift by a foreman. (Tr. 198:14-25) Additionally,
Baum had conversations with management before the Citation was issued regarding
the requirement that dry dust be applied after wet dusting. (Tr. 186:12-20)

Baum
testified that the areas were dry dusted after the citation was issued. (Tr. 200:4)
 Baum cited this as the reason he listed moderate negligence; management was
aware of this requirement and had made some effort to comply. (Tr. 191:1-5)

I find
moderate negligence for Citation No. 8419546.

Gravity

The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured. Baum
designated the Citation as unlikely because ignition conditions were not
present at the time. (Tr. 198:9-10; Ex. S-18)

Baum
testified that the areas in question were not dry dusted for more than one
shift based on the location relative to the face. (Tr. 192:22 – 193:8) He also
testified an ignition is more likely to occur at the face because that is where
the methane is liberated during the mining cycle. (Tr. 193:9-13) Here, however,
he did not detect methane at the face nor did the mine have a history of face
ignitions. Baum marked the Citation as unlikely to result in an injury. (Tr. 195:6-18)

Baum
testified that if there were an injury, it would involve at least lost work
days or restricted duty. However, he designated the gravity as fatal because if
an ignition occurred at the face it would likely result in severe burns. (Tr. 196:10-25;
197:12-21) Baum determined that four people would be affected, namely the four
ram car operators that were in the area. (Tr. 197:2-4)

I find
that the injury was serious in nature, was unlikely to occur, but if it did
occur could reasonably be expected to be fatal.

Penalty

The
Secretary proposed a penalty of $634.00. Tri County’s mine produces 1,310,941
tons annually. Tri County’s negligence was moderate. Its business will not be
significantly affected by the penalty sought by the Secretary. The citation was
not designated as S&S. According to the parties’ stipulations, Tri County
demonstrated good faith in abatement of the violating conditions. Considering
the factors itemized in section 110(i), and guided by the Secretary's penalty
assessment regulations, I impose a penalty of $634.00.

Citation No. 8419577 (LAKE
2011-1051) and Citation No. 8419579 (LAKE 2011-1051)

On July 6,
2011, at 11:10 am, MSHA Inspector Baum issued Citation No. 8419577 to Tri
County Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.604(b)
pursuant to Section 104(a) of the Mine Act. The regulation states “[w]hen
permanent splices in trailing cables are made, they shall be: […] (b)
Effectively insulated and sealed so as to exclude moisture […]” 30 C.F.R. §
75.604(b). Citation No. 8419577 alleges:

The
number 2, 3 conductor trailing cable supplying 480 VAC power to the number 57
roof bolter, contains two defective permanent type splices that are no longer
effectively insulated and sealed so as to exclude moisture. The outer jacket of
both of these splices is split open around the splice nearly to the inner
insulated conductors.

Ex. S-24.

On July
7, 2011, at 10:05 am, Inspector Baum issued Citation No. 8419579 to Tri County
Coal’s Crown III Mine alleging a violation of 30 C.F.R. § 75.604(b) pursuant to
Section 104(a) of the Mine Act. Citation No. 8419579 alleges:

The
number 2, 3 conductor trailing cable, supplying 480 VAC power to the number 58
roof bolter, contains one defective permanent type splice that is no longer
effectively insulated and sealed so as to exclude moisture. The outer jacket
material is split open exposing the insulated inner conductors. This bolter is
in service in the 9 North/2 West Sub-Mains, 002/013 MMU.

Ex. S-27.

Violations

Respondent does not
contest the violations, but disputes the “fatal” designation for both citations
and the S&S designation for Citation No. 8419579. (Resp. Br. at 22) Baum
described the process he used to inspect the cables: He started at the power
center, required the mine to turn off the power, and performed a hand-over-hand
evaluation of the entire cable, except for areas he could not reach because
they were hung too high. (Tr. 238:10-19) To inspect the splices, Baum flexed
the cable to see if it was sealed. (Tr. 239:3-6) For the hanging cables, Baum
observed the splices with his naked eye. (Tr. 239:21-23) A hand-to-hand
examination was not needed for the splices that were cited because they were
visible. (Tr. 240:12-16)

Citation No. 8419577 alleges
that an injury was unlikely; the injury could reasonably be expected to be
fatal; the violation was not S&S; one person could be affected; and, negligence
was cited as moderate. (Ex. S-24) Inspector Baum found two defective permanent
splices on roof bolter cable No. 57. (Tr. 226:10-13) He testified that the
outer jacket material was split and the only thing that was left underneath was
some tape. (Tr. 226:15-19)

The tough rubber outer
jacket on these cables is there to protect the inner conductors and to keep
moisture out. (Tr. 226:22-25) The opening Baum found would have allowed dirt,
debris, and moisture to reach the inner conductors. (Tr. 227:3-6) Baum stated
that if moisture gets in and a person makes contact, he could be electrocuted. (Tr.
227:8-18)

Citation No. 8419579
alleges that injury is reasonably likely; the injury could reasonably be
expected to be fatal; the violation was S&S; one person could be affected;
and, negligence was listed as moderate. (Ex. S-27) On roof bolter No. 58, Baum
found one splice. The inner insulated conductors were exposed. (Tr. 231:11-18) Baum
testified that the cable was not adequately insulated and sealed to exclude
moisture. (Tr. 245:19-20)

I conclude that
Respondent violated Section 75.604(b) for Citation Nos. 8419577 and 8419579.

Negligence

Inspector Baum
assessed moderate negligence for both violations. Moderate negligence is when
“[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d).

For Citation No. 8419577,
Baum chose moderate negligence because this condition should have been found
during a weekly electrical examination. (Tr. 229:13-21) Baum testified that the
operator had told MSHA on numerous occasions that they had a policy requiring
miners to walk their machine cables to look for violating conditions. Id. Baum
stated that this condition would have been obvious to anybody checking the
cable. Id.

Baum designated
Citation No. 8419579 as arising from moderate negligence because if miners had
checked their cables as the operator indicated was their practice, someone
should have seen the violation and fixed the problem. (Tr. 234:13-20) Additionally,
this condition should have been found during the weekly bolter examination. (Tr.
234:1-20) Baum testified that the condition was obvious. (Tr. 234:6-7)

I conclude that
Respondent was moderately negligent for both Citation Nos. 8419577 and 9419579.

Gravity

Citation No. 8419577
was designated as unlikely because the tear did not extend all the way through
to the inner conductors, the cable was hanging up on the rib and somewhat out
of the way, and the tear was in an area that would not generally be handled by
anybody during the shift. (Tr. 227:19-228:3) Baum testified that if someone
were to come into contact with defective cable splice, the 480-volt load could
cause a fatal electrical shock. (Tr. 228:4-9) The condition existed for at
least a shift. (Tr. 229:22-24) Baum designated the citation as affecting one
person because generally only one person handles the cable at a time. (Tr. 229:7-12)

In contrast, Citation
No. 8419579 was designated as reasonably likely. (Ex. S-27) The splice was in
an area near the bolter where it would have been handled throughout the shift
on a regular basis. (Tr. 232:7-9) Additionally, the cable would be energized
when in use. (Tr. 231:22-24) When the roof bolter is moved, miners have to hang
the cable, take the cable down, reel it up, deploy it along the ribs, and keep
it out of the way. (Tr. 232:14-19) Baum testified that a fatal electric shock
could happen. (Tr. 233:10-12) He determined that one person would affected
because only one person handles the cable at a time. (Tr. 233:15-19) Baum
testified that the condition lasted at least one shift. (Tr. 234:23-25)

Respondent argued that
the citations should be limited to “lost workdays” because a NIOSH study shows
that only 3.3% of all reportable coal mine electrical injuries were fatal,
whereas 90% of the injuries resulted in lost workdays or restricted duty. (Resp.
Br. at 21) Respondent also stated that according to the MSHA website, there
were only three electrical fatalities between 2001 and 2007. Id. Respondent
used a risk management analysis to determine that the likelihood of injury
would not be fatal. Id. at 22. This is not the proper analysis when the
court makes a determination of gravity.

The seriousness of a
violation can be examined by looking at the importance of the standard which
was violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the
safety and health of miners. Harlan Cumberland Coal Co., 12 FMSHRC at

140. Additionally, the Commission has recognized that the likelihood of injury
     is to be made assuming continued normal mining operations without abatement of
     the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130. Citing statistics
     of fatalities at other mines over a period of time does not adequately account
     for the presumption of continued mining operations at the mine in question and
     under the circumstances at the mine when the citation was issued. Thus, I find
     Respondent’s argument to be less convincing than the Secretary’s.

I find that for
Citation No. 8419577 an injury was unlikely and for Citation No. 8419579 was
reasonably likely to occur, but for both citations, the injury would be
reasonably serious in nature, i.e., electrocution.  

Significant
and Substantial

Citation No. 8419579
described a violation of a mandatory safety standard. There was a reasonable
likelihood that the injury in question will be reasonably serious. The
defective cable splice created an electrocution hazard. The S&S allegation
requires that I determine whether there was a reasonable likelihood that the
hazard would result in an injury.[14]

Baum testified that
the splice was in an area near the bolter where it would have been handled
throughout the shift on a regular basis. He also testified that the cable was
on the ground, and it would only take a pinhole in the insulation on the
conductor for the electricity to get out if the conditions were right. (Tr. 233:1-6)
Additionally, in this case the tear extended through to the inner conductors,
creating a greater chance of shock. (Tr. 233:20-234:6) In addition, because the
splice had opened all the way to the inner conductor, the cable was more likely
to sustain additional damage during continued mining operations. (Tr. 232:2-9) Respondent’s
witness Randy Aymer (“Aymer”)[15]
testified that, as the cable is being moved along the mine floor, rocks and
debris could get inside the outer jacket and cause further damage to the inner
conductor. (Tr. 252:22 – 253:16)

Respondent argued that
Citation No. 8419579 should not be designated as S&S because the bolter was
not in use at the time of inspection, no work was scheduled for the machine for
the remainder of the vacation period, and the roof bolter cable would have been
checked as part of the required electrical permissibility prior to the roof
bolter being placed back into service. (Resp. Br. at 22) Baum testified that
even though the mine was idle for a vacation break, maintenance and repair
crews were still working in the mine. (Tr. 241:18-20) Baum also testified that
if the damaged cable was not found, it would have existed when mining resumed
after the vacation. (Tr. 242:4-10) Respondent presented no evidence, other than
conclusory statements in its brief, that no work was scheduled for the roof
bolter during the vacation period and that the machine had been tagged out,
which would require a permissibility inspection if returned into service. As
such, Respondent’s argument is unconvincing.

Aymer testified that
if a fault occurs in the system, a ground check device would prevent
electrocution, unless the inner insulation was damaged. (Tr. 250:9-23) For
Citation No. 8419579, the inner insulation was damaged. (Tr. 250:9-23). Aymer
confirmed that 480 volts could kill a person. (Tr. 257:1-2) On rebuttal,
Inspector Baum testified that a defect in the cable covering does not always
trip the ground fault protector as Aymer suggested. Baum has witnessed machines
running with cuts in the cable. (Tr. 259:2-7) He testified that minor damage to
the inner conductors does not necessarily cause the power to turn off. (Tr. 259:9-10)

I conclude that it was
reasonably likely that the defective cable splice could contribute to an injury
because of its location and the fact that the tear went all the way to the
inner conductors. The Secretary proved by a preponderance of the evidence that
the S&S designation was warranted for Citation No. 8419579.

Penalty

For Citation No. 8419577,
the Secretary proposed a penalty of $425.00. Tri County’s mine produces
1,310,941 tons annually. Tri County’s negligence was moderate. Its business
will not be significantly affected by the penalty sought by the Secretary. The
citation was not designated as S&S. According to the parties’ stipulations,
Tri County demonstrated good faith in abatement of the violating conditions. Considering
the factors itemized in section 110(i), and guided by the Secretary's penalty
assessment regulations, I impose a penalty of $425.00.

For Citation No. 8419579,
the Secretary proposed a penalty of $2,106.00. Tri County’s mine produces
1,310,941 tons annually. Tri County’s negligence was moderate. Its business
will not be significantly affected by the penalty sought by the Secretary. The
citation is S&S. According to the stipulations agreed to by the parties,
Tri County demonstrated good faith in abatement of the violative condition. Considering
the factors itemized in section 110(i), and guided by the Secretary's penalty
assessment regulations, I impose a penalty of $2,106.00.

WHEREFORE, it is ORDERED
that Tri County pay a penalty of $8,853.00 within thirty (30) days of
the filing of this decision.

/s/ L. Zane Gill

L. Zane
Gill

Administrative
Law Judge

Distribution:

Emily L. B. Hays, Esq., Department
of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, Colorado
80202

Gary Ronald, Managing Partner, P.O. Box 259, 2 Mine Ave.,
Farmersville, IL 62533

[1] I have approved
the Secretary’s Motion in a Partial Settlement Decision dated December 23, 2014
for Citation No. 8419329, Docket No. LAKE 2011-0309, which was placed on stay
in 2013, and Citation No. 8419572, Docket Lake 2011-1051, which was settled at
the hearing.

[2] At the time of
the trial, Marsha Price had been working at MSHA since 2005 as a health
specialist, mine inspector, and had been a CLR since October, 2011. (Tr. 11:23
– 12:17) As a health specialist, Price reviewed ventilation plans, dust
parameters, and ran respirable dust sampling at different mines. (Tr. 12:18-22)
Price is a member of the “dust busters,” a team of health specialists that
perform health analysis of respirable dust in mines. (Tr. 13:1-9) Price is a
regular certified mine inspector as well. (Tr. 13:10-12) Prince has CMI
training, health specialty training, training from the National Dust Lab in
Pittsburgh, CLR training, special investigation training, and the annual
refresher trainings. (Tr. 13:21 – 14:12) Price also worked for American Coal
and Kerr-McGee for over 15 years before joining MSHA. (Tr. 14:21)

[3] All citations
are 104(a) citations, and therefore, no analysis is necessary to determine if
unwarrantable failures existed.

[4] Price testified
that the studies she was referring to are publically available from NIOSH and
MSHA. (Tr. 105:4-9)

[5] In the
Secretary’s Brief, he emphasized the fact that the mine had repeated violations
of Section 72.630(b), which he claimed is evidence of multiple or repeated
exposure to respirable dust. The fact that a citation was issued in and of
itself is not proof that there is actual exposure to respirable dust, nor is it
proof that an S&S designation should be upheld for the Citations at issue
in this case.

[6] Respirable dust
standards: “(a) Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during each shift to
which each miner in the active workings of each mine is exposed, as measured
with an approved sampling device and expressed in terms of an equivalent
concentration, at or below: (1) 2.0 milligrams of respirable dust per cubic
meter of air (mg/m3). (2) 1.5 mg/m3 as of August 1, 2016.
(b) Each operator shall continuously maintain the average concentration of
respirable dust within 200 feet outby the working faces of each section in the
intake airways as measured with an approved sampling device and expressed in
terms of an equivalent concentration at or below: (1) 1.0 mg/m3. (2)
0.5 mg/m3 as of August 1, 2016.” 30 C.F.R. § 70.100.

[7] In both White
Buck and Genwal there is considerable evidence of visible dust in the mine
atmosphere, significant duration of the dust in the atmosphere, and miners
being immediately exposed to the dust escaping the filtration system. These
conditions can legitimately be presumed to persist as part of continuing normal
mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. As
such the reference to the language about the dangers of dust in the mine
environment in the legislative history is dicta. On their facts, these
cases align themselves with Tri-County Coal and Banner Blue Coal,
which reject the notion that disease causation can be presumed merely from the
legislative history. All four decisions can be harmonized with the idea that
disease causation must be proved by preponderant evidence when the violation is
for a workplace practice standard rather than a respirable dust standard. Violation
of the latter follows from proof of extant atmospheric dust determined by dust
sampling. As such, the causation element needed for an S&S determination is
subsumed in an empirical maximum allowable dust measurement, which is another
way of saying that disease causation is presumed for the respirable dust
standards, but not for general workplace standards.

[8] At the hearing
I stated that: “I’m more interested in having this causation tied to this
citation, not just general. I can take judicial notice that exposure - some
exposure to respirable dust can cause black lung, that’s not really a
question.” (Tr. 105:16-17)

[9] Prince
testified that she was at Crow III to work on EO1s and to run respirable dust
sampling for the quarter. (Tr. 16:1-3)

[10] Prince
testified that it takes anywhere from five to thirty minutes to move a roof
bolter and it is moved approximately two to six times a shift. (Tr. 36:10-14)

[11] The Secretary
made a formal motion at the hearing to amend the pleading to mark the Citation
as reasonably likely and S&S (Tr.144:17-19), however, since the Respondent
stipulated and agreed to the change, a formal ruling on the record was not
necessary. (Tr. 145:8-23)

[12] The refuge
chambers were actually located at crosscut 10 between entry seven and eight,
and at crosscut 10 between entry six and seven. (Tr. 114:7-20; Tr. 113:19-21)

[13] At the time of
the hearing, Dennis Baum had worked for MSHA since 2007. (Tr. 147:14-15) From
March, 2012 until June, 2012, Baum was a Certified Mine Inspector for MSHA (Tr.
147:11-15), and he was a roof control specialist since June, 2012. (Tr. 147:3-10)
Inspector Baum completed the mine academy training and had refresher training. (Tr.
148:7-14) He worked in mines for over 25 years and for part of that he worked
at Crown III. (Tr. 149:21-24) He was also a UMWA safety committee chairman for
about 15 years. Id. When he worked at Crown III it was operated by
Freeman United Coal Mining Company (Tr. 150:3-6)

[14] Citation No. 8419577
was not designated as S&S, and therefore, no analysis is necessary.

[15] At the time of
the hearing, Randy Aymer was the chief underground maintenance person for Tri
County Coal. (Tr. 247:25 – 248:1) He has worked in the mine since 1973 and been
chief electrician for a majority of the time. (Tr. 248:4-10)