Secretary of Labor v. Mach Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Mach Mining for unsafe truck transportation, broken elevated handrails, inadequate face ventilation, defective roof-bolter dust collectors, and inadequate conveyor guarding. Judge Kenneth R. Andrews affirmed the truck safeguard violation as S&S and highly negligent because two miners rode on a tailgate with their legs outside the truck bed. He also affirmed the ventilation, dust-control, and guarding citations as S&S, finding risks of black lung disease, silicosis, falls, crushing, and dismemberment. The broken-handrail citation remained S&S, but its negligence was reduced to low because the record did not establish how long the damage had existed. Five citations were affirmed as issued, one was modified, and Mach Mining was ordered to pay $13,876.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 72.630(b), 75.1403, 75.1722(a), 75.370(a)(1), 77.205(e)
• Outcome: Five citations were affirmed, one citation was modified to low negligence with a $700 penalty, and total penalties of $13,876 were assessed.
• Key point: Credible evidence of serious transportation, ventilation, dust, fall, and machinery hazards supported S&S findings, while uncertainty about how long one defect existed reduced negligence for that citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE
ROAD

PITTSBURGH, PA
15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

MACH
MINING, LLC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2011-518

A.C.
No. 11-03141-248113

Docket
No. LAKE 2012-861

A.C.
No. 11-03141-296483

Mine:
Mach #1 Mine

DECISION

Appearances:   Daniel
McIntyre, Esq., United
States Department of Labor, Office of the Solicitor, Denver,
Colorado, for the Secretary.

David
Hardy, Esq., Hardy Pence, PLLC, Charleston, West Virginia, for the Respondent.

Before:                        Judge
Andrews

This case is before me upon a petition
for assessment of civil penalty filed by the Secretary of Labor (“Secretary”),
acting through the Mine Safety and Health Administration (“MSHA”), against Mach
Mining, LLC, (“Mach,” or “Respondent”) at its Mach #1 Mine, pursuant to
Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820 (the “Act”). There were originally five dockets as part
of this proceeding. However, three of them, LAKE 2011-422, LAKE 2011-977, and
LAKE 2012-808, have fully settled, and LAKE 2011-518 and LAKE 2012-861 have
partially settled.[1]
Tr. 4, 5.[2]
At issue in this proceeding are the six remaining citations, and the proposed
assessment of civil penalties totaling $14,706.00. A hearing was held on
October 23, 2014 in Evansville, Indiana at which

time
the parties presented testimony and documentary evidence. After the hearing,
the parties submitted post-hearing briefs.[3]

I.                  
STIPULATED
FACTS

The parties have agreed to the following
stipulations:

Mach Mining, LLC (“Mach”) was at
all times relevant to these proceedings engaged in mining activities at
the Mach #1 Mine located in or near Johnson City, Illinois.

Mach’s mining operations affect
interstate commerce.

Mach is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (the “Mine Act”).

Mach is an “operator” as that word
is defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at the Mach #1
Mine (Federal Mine I.D. No. 11-03141) where the contested citations in
these proceedings were issued.

The Administrative Law Judge has
jurisdiction over these proceedings pursuant to §105 of the Act.

On the dates the citations in these
dockets were issued, the issuing MSHA coal mine inspectors were acting as
a duly authorized representatives of the United States Secretary of Labor,
assigned to MSHA, and was acting in his official capacity when conducting
the inspection and issuing MSHA citations.

The MSHA citations at issue in
these proceedings were properly served upon Mach as required by the Mine
Act.

The citations at issue in these
proceedings may be admitted into evidence by stipulation for the purpose
of establishing their issuance.

Mach demonstrated good faith in
abating the violations.

In 2010 the Mach #1 Mine produced
5,795,493 tons of coal and its controlling entity produced 7,912,241 tons
of coal.

In 2011 the Mach #1 Mine produced
7,226,500 tons of coal and its controlling entity produced 10,846,269 tons
of coal.

The penalties proposed by the
Secretary in this case will not affect the ability of Mach to continue in
business.

JX

1. [4]

II.               
LAKE
2011-518: CITATION NO. 8427074

a.       Summary of the
Evidence

On January 28, 2011, MSHA Inspector
Larry Morris[5]
(“Inspector Morris” or “Morris”) inspected the Mach #1 Mine. Tr. 16. He was
originally called by his supervisor, Mike Rennie (“Supervisor Rennie” or “Rennie”),
to investigate a fire on the mine’s surface. Morris and Rennie went to the mine
together. Tr. 16.

While at the mine site, Morris noticed a
violation of a safeguard issued on January 2, 2009 that required all persons being
transported on all mobile equipment to keep their extremities within the
structural support (bed) of the vehicle. GX 4. Morris testified that the
safeguard was issued in order “[t]o prevent people from getting injured by
having parts of their bodies outside of the structural confines of the
equipment they were being transported in.” Tr. 19. Morris was aware of the
safeguard when he was inspecting Mach #1 Mine in 2011. Tr. 20.

Morris saw two miners sitting on the
tailgate of a truck leaving the slope of the mine with their legs hanging off
the back of the tailgate. Tr. 21. Another truck exited the mine approximately 30
feet behind the first truck. Tr. 25. Supervisor Rennie
also observed both miners with their feet hanging off, and Morris discussed the
matter with him. Rennie sent Morris to issue the violation to the supervisor,
while Rennie attended to the fire. Tr. 42, 43. Morris testified that the miners
“were sitting on the tailgate and their knees were right at the end of the
tailgate with their legs hanging down off the tailgate.” Tr. 23, 24. He
observed that the miners’ legs were hanging vertically from the truck, and their
thighs and buttocks were on the tailgate. Tr. 24, 26. Both miners were sitting
in the back of the truck with their legs hanging out and looking directly at
Morris as he approached the truck. Tr. 32-35, 38.

Morris did not interview either of the
two miners whose legs he saw hanging off the bed of the pickup truck. Tr. 29,

30. But, he had a conversation with Foreman Johnny Dotson (“Foreman Dotson”),
    the driver of the truck, when he went to see him to issue the violation. Tr.
31. Morris walked up to a few feet from the driver’s side of the truck after he
    saw the miners with their legs hanging off the end of the truck. Tr. 103, 115, 116.
    He testified that when the tailgate is down the bumper is underneath it and you
    cannot reach the bumper. Tr. 24, 117. Morris further testified that when the
    tailgate is down, he considered it to be a part of the bed of the truck. Tr.
32. He stated the photograph marked as Exhibit RX 2 was an accurate
    illustration of a tailgate in the down position. Tr. 46, 47. Morris did note that
    some trucks used to have a chain hooked across the back of the sides of the bed
    instead of the device shown in that photograph. Tr. 48.

Inspector
Morris memorialized his observations in handwritten notes recorded at the time
of the inspection:

Mike Rennie
(FOS/MSHA) & myself were standing approx 100 feet from the slope mouth when
2 pick up trucks/mantrips came up the slope approx 30 feet apart. Two miners in
the front truck were sitting in the back of the truck bed with their legs
hanging out over the rear bumper. I walked over to where the truck was being
parked & told the miners that they must keep their legs inside the body of
the truck. I told the foreman Johnnie Dotson, also the driver of the front
truck that I was issuing a citation on the safeguard in force at this mine
regarding this situation.

GX
3, pp 4, 5.[6]

Morris issued a 104(a) Citation, No.
8427074, to Foreman Dotson at 1640 hours. Section 8 of the citation read, in
pertinent part:

Two miners were
observed coming out of the mine in the slope, riding in the back of a pickup
truck/mantrip, sitting in the bed of the truck with their legs hanging out of
the back of the truck bed. There was another pickup truck/mantrip following
approximately 30 feet behind the front truck.

The
Standard, 30 CFR § 75.1403, was cited 13 times in two years at the mine.

Morris determined that the violation was
Significant and Substantial (“S&S”), that an injury was reasonably likely,
and such injury could reasonably be expected to be permanently disabling. He
marked the citation as two miners affected, and the negligence as high. Termination
of the citation was at 1642 hours, when the miners were removed from the truck.

GX
2.

Morris also testified the truck, with
the miners’ legs dangling off the back, would have traveled over various
potholes. Tr. 25, 26. Morris did not see the potholes on the day of the
inspection but knew of the potholes from previous experience. Tr. 36, 37. If a
miner were to fall from the truck, an injury could be permanently disabling or
even fatal. Tr. 26. Morris testified that if the truck in front had stopped,
the truck following only 30 feet behind would not have much stopping distance.
Tr. 25. Morris marked the condition as resulting from high negligence because Foreman
Dotson was driving the pickup truck. Tr. 27, 52. The initial action was listed
as safeguard number 6674671 dated January 2, 2009, and Morris testified this safeguard
put the mine on prior notice. Tr. 27; GX 2, 4.

Robert Darrell Shaw[7] (“Shaw”) testified
for Respondent. Shaw, a shuttle car driver at the Mach mine, was one of the two
people whom Morris observed with his feet hanging out of the truck. Shaw stated
that a crew of 11 people was working outby. Tr. 52. At the end of their shift,
he was riding in the back of a Dodge Ram truck. Tr. 53, 54. The crew rode in
the back of the truck and they all had their “spots”. There was no tailgate on
the truck; there was a tailgate when they went to the work site, but none when
they came back. Tr. 53. Shaw was sitting with his right foot on top of the
bumper and his left foot folded underneath him. Tr. 59, 60. He said that he
would never ride with his legs hanging out of the truck, and that he remembered
his position on the day of the inspection because it is how he sat every day.
Tr. 61. Shaw rode in a truck like that at least two times a day, but sometimes
he would be inside the pickup. Tr. 70. He saw somebody come up and talk to
Dotson but did not know who it was. Tr. 65, 66. Chris Wilson[8] (“Wilson”)
sat across from Shaw, and Wilson was sitting in the same position as Shaw,
except that his feet were in opposite positions. Tr. 63–65. Wilson also sat
like that every day. Tr. 65.

Wilson testified he was working on the
same crew as Shaw on the day of the inspection. Tr. 88. Foreman Dotson was the
crew’s supervisor. Tr. 88. All 11 crew-members were in the truck, with six
riding in the quad cab and five in the back. Tr. 88, 89, 92. Wilson was in the
rear right of the truck’s bed, and Shaw was sitting directly across from him. Tr.
93; RX 7. The two were facing each other. RX 7. Wilson’s left foot was on the
bumper and his right foot was in the bed of the truck. Tr. 99, 100. Wilson also
testified there was no tailgate when they got back. Tr. 101. Wilson testified
that he does not normally sit with his legs hanging over the bed of the truck
because of potential harm. Tr. 100, 102. He also testified that most of the
time the trucks had tailgates. Tr. 108. Wilson recalled that Shaw’s back was to
the Inspector and Shaw would not have been able to see the Inspector run up to
the truck. Tr. 106, 107.

b.      Contentions

The Secretary contended the Respondent
violated the January 2, 2009 safeguard requiring people being transported in a
vehicle to keep their extremities within the vehicle’s structural support. Specifically,
the Secretary alleged that Inspectors Morris and Rennie witnessed two miners
sitting on the tailgate of a truck with their legs hanging off the tailgate’s
back. The miners could be injured by a fall or by the second truck being unable
to avoid a fallen miner. The Secretary further contended the violation was the
result of Respondent’s high negligence, since it was unacceptable to permit the
cited behavior after receiving the safeguard. The Secretary argued that feet on
the bumper would violate the safeguard. The Secretary also argued the
Respondent’s witnesses were not credible, and the Court should uphold the
citation as issued. For this citation, the Secretary proposed a penalty of
$5,080.00.

The Respondent contended that Citation No.
8427074 should be vacated because the Secretary bears the burden of proof but
has not rebutted the operator’s testimony and a violation of Safeguard No.
6674671 has not been proven. The Respondent cited Bethenergy Mines Inc.,
14 FMSHRC 17, 25 (Jan. 1992) in which the Commission held that a safeguard must
be narrowly interpreted so that the Secretary’s authority to require a
safeguard and the operator’s right to fair notice of what the safeguard
requires is balanced. Respondent argued that the safeguard does not define
“structural support” and also does not define what it means to keep extremities
within the “structural support”. The miners were resting their feet on the rear
bumper which according to Respondent is part of the “structural support” of the
vehicle. They did not face any additional danger by having their feet on the
bumper, and there was an absence of clarity regarding the bumper. Respondent
also argued that no person other than the inspector claimed to have seen the
miners riding on the tailgate, and that the inspector did not make an effort to
interview the miners. The Respondent also contended the Secretary failed to
call any witnesses to corroborate Morris’s version of the events in contrast to
the two hourly employees that it called who consistently testified. In the
Respondent’s opinion, the present case is a “quintessential equipoise” case. The
Respondent also contended that any negligence of the miners in having their
feet on the bumper is not attributable to the operator, and the absence of
notice regarding the bumper is a mitigating factor. Also, the Foreman was
driving and there was no testimony he could see the miner’s feet on the bumper.
The negligence should be reduced from high and the significant and substantial designation
should be removed.

c.       Analysis

30 C.F.R. § 75.1403, “Other safeguards”,
provides:

Other safeguards
adequate, in the judgment of an authorized representative of the Secretary, to
minimize hazards with respect to transportation of men and materials shall be
provided.

Under 30 C.F.R. § 75.1403, the operator
was required to follow the safeguard Inspector Bobby Jones issued on January 2,
2009. That safeguard read:

On 1/02/2009 a
Dodge pickup truck was observed heading toward the slope collar with 7 miners
riding in the bed of the truck. Two of the seven miners were sitting on the
tailgate with their legs hanging outside of the structural support (bed) of the
Pick up [sic] truck. This is a notice to provide safeguards requiring
all persons being transported on all mobile equipment to keep their extremities
within the structural support of the vehicle.

GX
4.

While the Secretary bears the burden of
proving the citation by a preponderance of the evidence, I find that Morris’s
testimony was credible and the Secretary presented sufficient evidence to meet
his burden. Morris credibly testified that he witnessed the two miners’ legs
outside the bed of the truck, which was in violation of the January 2, 2009
safeguard. The Secretary also pointed to Shaw and Wilson’s testimony wherein
each miner stated they placed one of their feet on the bumper of the truck, and
even this constituted a violation of the safeguard, which required that all
miners’ extremities remain within the truck.

No strain of interpretation is required
to understand the safeguard at issue. The safeguard is not at all vague,
indefinite or uncertain as to its meaning. It requires that miners keep their
extremities within the bed of a pickup truck. The safeguard, as written,
identifies the truck bed as the structural support of that type of vehicle. It
is striking that what was observed by Inspector Bobby Jones in January 2009 was
identical to what was observed by Inspector Morris two years later. In each
instance two miners were sitting on the tailgate with their legs hanging out. It
is compellingly clear that the operator would be on notice that a repeat of
this behavior would be a violation. Simply put, Respondent disregarded the
safeguard that was in effect.

The Secretary also contended that the testimony
of the Respondent’s witnesses was not credible. Both Shaw and Wilson testified
to the effect that the tailgate was on the truck at the beginning of the trip,
but was off the truck for the trip out. Not established or even explained by
any evidence were the circumstances, the reasons or by whose direction the
tailgate was removed by or on January 28, 2011. For example, no work order for
this change to the truck or even testimony by a person responsible for or
conducting this work is of record. And, Wilson also testified that most of
the time the trucks had tailgates. Just when the truck tailgates were on or
off the trucks was not clearly established. Respondent failed to corroborate the
testimony of the miners regarding the removal of the tailgates.

That Shaw had excellent recollections
about that ride on that day out of the thousands of his rides in and out of the
portal is contradicted by his conflicting testimony that the crew rode in the
back of the truck and all had “spots”, whereas in further testimony he said
that he was not always in the back of the truck but sometimes inside the pickup.
Also, Shaw’s testimony was vague on whether he saw an Inspector come up to the
truck and talk to Foreman Dotson. But Wilson testified that Shaw’s back was to
the Inspector and Shaw would not have been able to see the Inspector approach
the truck.

In contrast, Inspector Morris directly
observed the truck from the time it exited the slope until it parked, discussed
with Supervisor Rennie what they were observing, and recorded what he saw in
his notes. Approaching and arriving only a few feet from the truck, Morris was
in a position to clearly see the miners and how they were riding on the
tailgate with their legs-both legs-hanging down vertically. Morris also pointed
out that with the tailgate down the bumper would be covered and it would not be
possible for the miners to rest their feet on it. Morris considered the
tailgate in the down position to be a part of the bed of the truck.

The plain language of the safeguard has
the word “bed” in parentheses to define “structural support.” It is clear that
the purpose of the safeguard was to ensure that miners kept their extremities
within the bed of the truck. Whether the lowered tailgate is viewed as a part
of or as an extension of a truck bed, this is a reasonable
interpretation of what constitutes the “bed” of a truck and hence “structural
support” for the purposes of the safeguard. The rear bumper is not mentioned in
the context of either “bed” or “structural support”, and for the purposes of
the safeguard there was no need to include it. Indeed, in the instant case, it is
not necessary to determine and does not matter whether the rear bumper is
considered a part of the “structural support” of a pickup truck.

I place the greatest weight on the
evidence presented by the Secretary. The testimony of Inspector Morris, his
contemporaneously written notes, and the citation as issued are all very
consistent. The probative value of this evidence outweighs the uncorroborated
recollections of Respondent’s witnesses. Shaw and Wilson agreed in their
recollections that somehow the truck tailgate had been removed just before they
rode out from their work site. While it is well established that the pickup
trucks at this mine did have tailgates, just when and for what time period the
tailgates were not installed is not clear. I find the testimony of Inspector
Morris to be credible. I do not find the agreed upon memories of Shaw and
Wilson, with no other support, to be credible. It was not necessary for the
Secretary to call any other witness to corroborate Morris’s testimony.

Since both Morris and Supervisor Rennie
observed the violation, there was also no reason to interview any miners. That
no one else claimed to have seen Shaw and Wilson riding on the tailgate
ignores the fact that there were six miners in the cab and three other miners in
addition to Shaw and Wilson present in the bed of the truck. At least one of
the miners in the crew was well aware of the presence of an MSHA Inspector and
the reason the Inspector approached the truck. This miner verbally made a
threat to Morris, which Morris recorded in his inspection notes:

A miner, later
identified as Travis Curry, heard me talking to Mr. Dotson & told his buddy
that he “can’t wait to meet some of these people out in public.”

I told Mr.
Dotson that he needed to get control of his people because that was a threat
made against me & that I was a Federal representative working in the
capacity of my duty.

I then informed
Mike Rennie and Steve Miller (FOS/MSHA) of this incident.

They told me
they would handle it.

GX
3, pp. 5, 6.

Whether
anyone else claimed to see Shaw and Wilson sitting on the tailgate is
not relevant.

Respondent’s
equipoise argument rests on the proposition that where the evidence presented
by the parties is found to be “equally convincing” the doctrine of equipoise
would lead to the conclusion that the Secretary had failed to carry the burden
of proof. See, Dana Mining Co., 33 FMSHRC 2295, 2300-01 (Sep.
2011) (CALJ), and Excel Mining, LLC, 35 FMSHRC 2604, 2622 (Aug. 2013) (ALJ).
However, the Secretary’s evidence is found credible whereas Respondent’s
attempt to dispute the observations of the inspector failed. From the analysis
discussion above, it follows that I do not find the evidence in this case to be
“equally convincing”. Accordingly, the doctrine does not apply here.

I find the citation was validly issued.

This violation
was determined to be Significant and Substantial. The S&S designation of a
violation is derived from section 104(d)(1) of the Act, which describes such a
violation as one “of such 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). 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 Commission has explained that:

[i]n
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.

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 Powder, Inc. v. Secretary, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Powder, Inc., 9 FMSHRC
2015, 2021 (Dec. 1987) (approving Mathies criteria).

The difficulty with finding
a violation S&S normally comes with the third element of the Mathies formula.
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional 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., 6 FMSHRC 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, 1574-75 (July 1984).

The Secretary
“need not prove a reasonable likelihood that the violation itself will cause
injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010). This evaluation is 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 899, 905 (Dec. 2005); U.S. Steel Mining Co.,
Inc., 6 FMSHRC at 1574. 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).

In support of the
determination that the violation was S&S, the Secretary argued that if the
miners were to fall off of the truck, they could either be injured in the fall
itself or by the second truck following closely behind. Moreover, the Secretary
contended that the violation was reasonably likely to result in a permanently
disabling injury since the second trucks’ speed could have prevented it from
being able to avoid hitting a miner if one or both were to fall.

The Respondent argued that the citation
was not S&S because the miners did not face any additional danger by having
their feet on the bumper than if they would have had their feet a few inches
closer to the cab. I do not find this to be persuasive because I credit the
inspector’s testimony that the miners were seated on the tailgate and could not
have had their feet on the bumper. By having their feet outside of the
structural support of the truck, they were more likely to fall out of the truck
and thus more likely to sustain injuries.

The first prong of the Mathies
test was satisfied because the January 2, 2009 safeguard was violated, as
discussed supra[9].
The second prong of the Mathies test was satisfied since the condition
presented a discrete safety hazard, namely, that the miners did not have their
feet within the bed of the truck and could have fallen or bounced out. The
third prong of the Mathies test was satisfied because the hazard
contributed to would result in an injury. If either of the miners fell out of
the truck, they would be injured from the impact with the surface and/or from
being hit by the second truck. The fourth prong of the Mathies test was
satisfied in that such injury would be serious in nature. Whether as a result
of the fall from the tailgate, or by coming into contact with the second truck
following so close behind, the injuries could be at least permanently
disabling.

I find the S&S designation was
correct.

When considering the question of
negligence of a mine operator, I am not bound by the Secretary’s Part 100
regulations; however, those regulations may be useful as guidance. White
County Coal, LLC, 37 FMSHRC 2568 (Nov. 17, 2015)(ALJ); See also Brody
Mining, LLC, 37 FMSHRC 1687, at 1701-1704 (Aug. 2015). Negligence is
defined by 30 C.F.R. § 100.3(d) as “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.” A mine operator is held to a high standard
of care. Further, “A mine operator is required to be on the alert for
conditions and practices in the mine that affect the safety or health of miners
and to take steps necessary to correct or prevent hazardous conditions or
practices.” 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. MSHA finds high negligence to exist when “[t]he
operator knew or should have known of the violative condition or practice, and
there are no mitigating circumstances.”

The Secretary argued that the violation
was the result of Respondent’s high negligence, and that once Respondent
received Safeguard No. 6674671, it was unacceptable for the Respondent to
permit the cited behavior. The Secretary contended this violation was the
result of a deliberate choice of a miner, and that Foreman Dotson contributed
to it. The Secretary further argued that Foreman Dotson was responsible for his
passengers’ safety during the ride, and that the hazard was obvious since Inspector
Morris and Supervisor Rennie observed it from 100 feet away.

The Respondent argued that the absence
of clarity and notice regarding the bumper mitigated the negligence. The
Respondent also argued that the negligence of the miners in keeping their feet
on the bumper is not attributable to the operator. The Respondent noted that
the crew foreman was driving the lead vehicle and that there was no testimony
indicating that he could see the miners’ feet on the bumper.

I have found that the bumper is
irrelevant and the responsible person was Foreman Dotson who did not testify
and hence there could not be any direct testimony whether he could see his miner’s
feet in any position before or during the trip. More important is the
unanswered question of any action taken by Foreman Dotson to insure all
extremities of the crew members were inside the bed of the truck before
the ride began.

I find that no mitigating circumstances
have been established. First, the operator knew or should have known of the
violative practice. As set forth above, the Safeguard was clear and provided
notice that extremities must remain inside a vehicle. The truck itself was
being driven by Foreman Dotson who was responsible for his crew’s safety, which
included insuring that the extremities of his riders were inside the bed of the
truck at all times. The negligence of the foreman is attributable to the
operator.

As pointed out above, I am not bound by
the Secretary’s definitions of negligence, and in this instance even if some
mitigating circumstance were shown I would find high negligence. This is
because the practice of riding seated on the tailgate of a truck over uneven
terrain with lower legs hanging down outside of the tailgate is inherently very
dangerous. In my opinion Respondent ignored the Safeguard, took no steps to
prevent this hazardous practice, and as a result the required standard of care
to protect miners simply did not exist in this case.

Accordingly, I affirm this citation as
written.

d.      Penalty

The penalty assessed by the Commission is
based on the six criteria in section 110(i) and the deterrent purpose of the
Mine Act. Wade Sand & Gravel Company, 37 FMSHRC 1874, at 1876, 1877,
(Sep. 2015); See also Westmoreland Coal Co., 8 FMSHRC 491 (Apr. 1986). While
penalties are independently assessed de novo, MSHA’s Part 100
regulations may provide useful guidance. Orica Nelson Quarry Serv., 35
FMSHRC 3004, 3014 (Sept. 2013) (ALJ); Ligget Mining, LLC, 33 FMSHRC
1702, 1717 (July 2011) (ALJ).

I have found that the violation was serious,
S&S and reasonably likely to result in permanently disabling injuries to
two miners. The operator was highly negligent, since the easily understood
safeguard had been in effect for two years and was ignored by the foreman in
charge of the crew. The parties have stipulated that the penalty would not
affect the operator’s ability to remain in business and there was demonstrated
good faith in abating the violation. The penalty appears appropriate to the stipulated
size of the business, and on this record the violation history is essentially
the safeguard issued in 2009. Therefore, I find that the monetary penalty
should be $5,080.00, as proposed.

III.            
LAKE
2012-861:  CITATION NO. 8420533

a.       Summary of the
Evidence

MSHA Inspector Jeff Adams[10]
(“Inspector Adams” or “Adams”) conducted an E01 general inspection of the Mach

1 Mine on June 27, 2012. Tr. 277. He had previously inspected the Mach #1 Mine

twice and had also been there several times for training. Tr. 277, 278. On that
day, he was inspecting the areas away from the main portal; the bleeder fans,
the pumps, and the area near the Gob Hill equipment. Tr. 278.

Adams was inspecting a turbine water pump
approximately 18 feet above the ground. Tr. 279. During the inspection he issued
the citation because he saw hand rail pipes on the ground. Tr. 279. Upon
further inspection, he saw that the broken pipes were from the handrail that
had surrounded the turbine pump. Tr. 279. Some additional piping remained, but
was broken. Tr. 279. Six pieces of the handrail had fallen off, three of which
were on the ground and, he thought, three were on the landing by the pump. Tr.

279. Two sections were broken away from the upright post and only some were
     still present. Tr. 281. Adams testified these would not support a miner’s
     weight. Tr. 281; GX 6. The area was regularly accessed; it contained an oil tank
     that needed to be filled manually by hoisting a five-gallon bucket up to the
     tank with a rope. Tr. 281. Adams estimated that the five gallon bucket weighed
     about 35 pounds. Tr. 282. Adams stated that a person would have to hang over
     the edge in order to reach out and hoist one of the buckets up to the tank. Tr.
280. He said that while it would take some strength to be able to hoist the
     bucket up, it would probably just take one miner to do it. Tr. 283, 284.

The cited area was about five miles away
from the mine, and there were no Mach employees regularly assigned to that
facility. Tr. 286. Other than a county or township road right next to the location,
the area was isolated. Tr. 286. One miner would be affected because one person
would be required to do the routine work in the area. Tr. 285. The only time
someone would be in the area would be if the person was there to check on a problem
or to service the pump. Tr. 287. This would include filling the oiler. Tr. 287.

Adams did not know how the pump was
monitored and was not aware that it was monitored from a computer five miles
away. Tr. 287. He also did not try to determine the last time that a Mach
employee was at the site, and did not have any firsthand knowledge of when a
Mach employee would have seen the condition. Tr. 288. But, he believed
Respondent was required to regularly maintain the area. Tr. 289.

Because the condition could lead to an
18-foot fall, Adams determined that an injury was reasonably likely to occur.
Tr. 282. He also determined that it could be a permanently disabling injury or
even a fatal injury. Tr. 282. He concluded the violation as S&S because so
many pieces had been broken off and because the rail could give way if someone
leaned against it. Tr. 283.

Adams assessed the violation as the
result of moderate negligence since someone should have been aware that many of
the handrail pieces had been broken off. Tr. 284. However, he did not know how
long the condition existed. Tr. 287, 288. In his opinion, the condition was the
result of a vibration and that it was something that happened gradually over
time. Tr. 284. Based on his experience, he estimated that it took a lot of
force for the breakage to occur. Tr. 284, 85.

In his notes, Adams wrote that six
sections of the handrails had broken off due to excessive vibration caused by a
failing pump bearing and two sections were broken away from the upright posts. Three
of the sections were on the ground adjacent to the ladder and three were on the
elevated walkway next to the pump. A person has to regularly access the pump to
manually fill an oil reservoir, and the two sections broken away from the
upright posts would give way if leaned against. GX 7, pp. 6-10.

Adams
issued a 104(a) Citation, No. 8420533, to Respondent at 110 hours. Section 8 of
the citation reads:

The handrails on
the elevated walkway providing access to the turbine pump beside the bleeder
fan were not being maintained in good condition. Six sections of the handrail
had broken off due to vibration and two sections were broken away from the
upright posts. Management locked the access gate to the elevated walkway to prevent
entry.

The
safety standard, 30 CFR § 77.205(e), had been cited two times in two years.

The violation was marked S&S,
reasonably likely to cause a permanently disabling injury to one person, and
the result of moderate negligence. The citation was terminated at 1600 hours
when the handrails were repaired.

GX
5.

Norman Quertemous [11](“Quertemous”),
a maintenance manager for Mach, traveled with Adams during the June 27, 2012
inspection. Tr. 290. He would normally accompany the inspector to the turbine
pump as part of his job duties. Tr. 290.

Quertemous testified that no employee was
assigned to the area where the turbine pump was located. Tr. 291. Barry Butler,
a Mach maintenance foreman, conducted an installation check at the facility
monthly. Tr. 291. According to Quertemous, Butler was a competent and
meticulous examiner. Tr. 292. If Butler found anything, he would either notify
management immediately or fix the problem himself if he was able to do so. Tr.

292. Quertemous believed that Butler had done a good job in identifying hazards
     during his monthly inspections. Tr. 294.

Quertemous concluded that the damage to
the rail was caused by a “bearing down” in the pump resulting in a violent
shaking. Tr. 292, 293. Based on his experience, Quertemous believed that harmonics
in the steel shook the rail apart quickly, and that it took one to three days
to bring it down. Tr. 293. But, he was not able to determine whether the
condition was present during Butler’s last examination of the area. Tr. 293. Respondent
took prompt measures to repair the railing. Tr. 295.

Quertemous also testified a computer in
central supply monitored this area. Tr. 294, 295. The computer monitored the
current on the pump, but did not monitor vibrations. Tr. 296. If there was a
problem, the superintendent could send someone to take care of it. Tr. 295. The
person checking would either be the maintenance chief or the superintendent.
Tr. 295.

b.      Contentions

The Secretary contended that Citation
No. 8420533 was issued for violating 30 C.F.R. § 77.205(e) because the
Respondent did not maintain the handrails on the elevated walkway at a turbine pump
in good condition. The Secretary argued the citation should be affirmed as
written, because a miner who needed to fill the oil tank, and who needed to
rely on the handrails for support to do his job, would be affected. The
Secretary also contended the S&S designation was correct, since the cited
condition presented a safety hazard, a fall, to miners who regularly accessed
the elevated area during the course of mining. Further, a fall of 18 feet would
cause permanently disabling or possibly a fatal injury. Respondent should have
been aware of the condition since it takes a large amount of force and a long
period of time for handrails to break. Therefore, Respondent was moderately
negligent. The Secretary proposed a penalty of $1,530.

The Respondent contended that Citation
No. 8420533 should be vacated, or, in the alternative, the S&S designation
should be removed and that the moderate negligence should be reduced. Respondent
also contended that a platform is not an elevated walkway and the area around
the turbine pump should not be found to be a walkway, and hence not covered by
the safety standard. Respondent also argued that no employee was assigned to
the location at issue and since one hourly employee only visited the site on a
monthly basis, the operator did not have notice that the handrails were broken.
Further, the area was remote, injury was unlikely, and the citation should not
be S&S. The Respondent also argued that before the inspection, the mine
pump had a bad bearing that caused the platform to violently shake and also
caused damage to the rails. The Respondent further noted that Adams did not
dispute that the condition could have been caused by a vibration from a bad
bearing in the pump and that Quertemous said that the condition could have been
caused over the course of one to three days.

c.       Analysis

The
safety standard cited provides:

Crossovers,
elevated walkways, elevated ramps, and stairways shall be of substantial
construction, provided with handrails, and maintained in good condition. Where
necessary toeboards shall be provided.

30
C.F.R. § 77.205(e).

In support of its contention that the
citation was valid, the Secretary argued that the miner who needed to fill the
oil tank, and who needed to rely on the guardrails to do his job, would have
been affected.

In support of its contention that the
citation should be vacated, the Respondent argued that 30 C.F.R. § 77.205(e)
regulates “elevated walkways” and not “platforms” and that a “platform” is not
an “elevated walkway.” The Respondent cited Alan Lee Good, 23 FMSHRC 995
(Sept. 2001), in which the Commission vacated a citation where the Secretary alleged
that a platform was a “walkway” after interpreting a similar metal/non-metal
standard. In that decision the Commission determined:

A “walkway” is
defined in the dictionary as “a passageway used or intended for walking . . . a
passageway in a place of employment . . . designed to be walked on by the
employees in the performance of their duties.” Webster’s Third New Int’l
Dictionary Unabridged 2572 (1993). A “passageway” is defined as “a way that
allows passage to or from a place or between two points.”

Alan
Lee Good,
at 999 (footnote omitted). Respondent acknowledged that in a different case,
another ALJ found that a platform that is accessed every day for examinations
was a “walkway,” Boart Longyear Co., 34 FMSHRC 2715, 2722, 2724 (Oct.
2012) (ALJ), but this ALJ’s analysis was distinguishable from the Commission’s.
The Respondent pointed out that in Oil-Dri, 34 FMSHRC 458 (Feb. 2012) an
area in question was a “travelway” since it was “used as a means for miners to
go to and from one area of the mine to another.” Oil-Dri, at 461. The
Respondent argued that the present case is factually different than Oil-Dri,
and that because of the differences the area in question at Mach should not be
found to be a “walkway.”

I do not find this argument to be
persuasive. Even using the definition from Alan Lee Good, the surface
area in the instant case would be considered a walkway and therefore governed
by 30 C.F.R. § 77.205(e). This is because the Commission in Alan Lee Good,
citing Webster’s Third New Int’l Dictionary, stated that a walkway is a
passageway in a place of employment designed to be walked on by the employees
in the performance of their duties. That is the case here since miners use the elevated
surface area as a passageway in a place of employment; it is used when miners
need to climb up and walk to the pump assembly and perform maintenance
including filling the oil tank.

I am also not persuaded that the
specific nomenclature for the elevated area constructed to provide access to
the turbine pump is important. Certainly it is an elevated area that must be
accessed and walked on to perform required periodic maintenance. It is a “way”
that allows passage to or from a place, the turbine pump and any associated
equipment. The pertinent language of the standard is “Crossovers, elevated
walkways, elevated ramps, and stairways”. While the term “platforms” was not
included, there is nothing to suggest the named areas were considered all inclusive.
An elevated structure, however named, accessed by miners and walked on to go to
or from a place to perform their duties fits neatly into the safety standard. This
is because the intent of the safety standard is to require the handrails to be
well maintained in such elevated areas, rather than to precisely describe the
surface area to be protected.

Having found that the area falls under
the regulation, it is apparent from the evidence that the handrails were not
kept in good condition. Several parts of the handrail had fallen to the ground
and what remained could not support a miner. A total of six pieces had fallen
off and two sections had broken away from their supporting upright post. With
these conditions present a miner would be 18 feet off the ground while working
on the pump or filling the oiler without the protection of solid, well maintained
handrails. The three photos taken by Adams show a ladder type access to the
walkway around the vertical turbine, visibly broken and missing rails, and
pieces on the ground, just as he described in his testimony and notes. GX 6, 7.
The Respondent violated 30 C.F.R. § 77.205(e) because the rails should have
been securely in place to protect miners from falling.

I
find the citation was validly issued.

Regarding the
S&S designation, the Secretary argued that the cited condition presented a
discrete safety hazard to miners in that they could fall 18 feet from the
platform. The Secretary also argued that this fall would cause a permanently
disabling or possibly fatal injury, and that it could affect many different
people, including non-employees, because it was next to a township road and
accessible by anyone passing through. Further, the Secretary stated that a
miner regularly accessed the platform during the course of mining. Furthermore,
in order to properly fill an oil tank used for the turbine pump, a miner was
required to lean over the handrail and the edge of the platform, which would
require support.

The Respondent argued that the parties agreed
that the area was remote and that the platform was rarely visited. The
Respondent also argued that there were handrails around most of the platform
and that the area was only accessed during the day. The Respondent cited Rivco
Dredging Corp., 10 FMSHRC 1195, 1199 (Sept. 1988) (ALJ) and argued that
violations in remote areas are less likely to be S&S. Similarly, the
Respondent cited Arcata Readimix, 17 FMSHRC 816, 820 (May 1995) (ALJ)
and Carmeuse Lime, Inc., 29 FMSHRC 266, 271 (Mar. 2007) (ALJ). The
Respondent also contended the Secretary did not offer any evidence that
trespassers had entered the area and that Adams acknowledged that the area was
remote, even though it was near a road. The Respondent also argued that the
Secretary did not present evidence that miners would haul buckets of oil onto
the platform and specifically did not present evidence that this had occurred
in the area with the broken railing. Ultimately, the Respondent argued that the
various factors made an injury unlikely and thus the citation should not be S&S.

The
four elements of Mathies and the controlling case law have been set
forth above in the analysis of the first citation. This will not be repeated,
except as needed for clarity, in this decision.

I
find that the violation was properly designated S&S. First, as discussed supra,
there was an underlying violation of a mandatory safety standard. Second, there
was a discrete safety hazard in that a miner could fall while working 18 feet
off the ground to fill the oiler or work on the pump without adequate handrails
in place; this would be the case regardless of how oil is brought up to the
tank. Third, there was a reasonable likelihood that the hazard contributed to
will result in an injury. It is reasonably likely that a miner’s fall from the elevated
walkway would cause an injury. Finally, it is reasonably likely that the injury
in question would be of a reasonably serious nature, because a fall from that
height would be at least permanently disabling if not fatal. The Mathies
criteria have been met.

That the area was remote does not affect
this gravity determination, because the area was regularly accessed by a miner.
While the parties address whether outside people could also access the area
because it was near a public road, a determination on this is not necessary. A
miner, given his duties, was likely to be in an elevated area without well
maintained protective handrails. This by itself, as discussed, allows me to find
the citation was properly designated S&S.

I
have discussed negligence and the duty of care required of an operator in the
first citation, above. Here, the Respondent’s position was that the damage to
the handrails occurred quickly, as a result of a bad bearing in the pump that
caused violent shaking, and the operator was not on notice of the condition of
the handrails. The Secretary’s position was that the damage occurred over a
longer period of time, and the operator should have been aware of it
considering the monthly maintenance visits.

The
flaw in Respondent’s argument was that at the time the bad bearing was
repaired, the damage would already have occurred and should have been readily
visible to and reported by the foreman or the miner making the repairs. Respondent
also argued the monthly access to the pump was by an hourly employee, not an
agent of the operator. However, Respondent’s witness retired Maintenance Manager
Quertemous testified that the person performing the monthly checks was a
Maintenance Foreman. This would suggest a supervisory position, rather
than a rank and file employee. Respondent’s argument on notice appears
incorrect.

The
flaw in the Secretary’s argument was that Inspector Adams in his testimony
could not clearly articulate that it was more likely than not the handrail
damage had been present long enough for the next monthly check to have
discovered it. He was only able to opine that the breakage happened gradually,
over time, since a lot of force would be required. His opinion is simply too
vague to be accorded controlling weight.

Notwithstanding
that the time of breakage cannot, on this record, be accurately determined, the
operator is held to a high standard of care, and is responsible for the safety
of miners. The standard of care in this case is somewhat mitigated by the
infrequent access to the area, which is in a remote location. There is remote
monitoring of the turbine pump, but apparently not for vibration and shaking,
and the length of time the bad bearing could have existed is unknown. The
record does not contain the dates on which the monthly checks were made nor is
there evidence of the date a bad bearing was discovered and repaired. Weighing
these factors, I find the negligence should be reduced to low.

d.      Penalty

The penalty is assessed de novo
pursuant to section 110(i) of the Mine Act. The parties stipulated to the size
of the mine, that the proposed penalties would not affect the ability of Mach
to remain in business, and that Mach demonstrated good faith in abating the
violation. The violation was S&S, and the working environment around the
elevated pump assembly without protective handrails was a serious safety
concern. However, the history of previous violations was not an important
factor, and the negligence was reduced to low. Considering all of the relevant
factors and the change to the citation, I find the monetary penalty should be
reduced to $700.

IV.            
LAKE
2012-861: CITATION NO. 8442233

Respondent did not contest the fact of a
violation of the approved ventilation plan. Tr. 303. The issues remaining are
whether the violation was S&S and whether the negligence was moderate. RRB
14-16.

a.       Summary of the
Evidence

On June 11, 2012, MSHA ventilation
specialist Michael A. Pritchard[12]
(“Inspector Prichard” or “Prichard”) conducted an E02 inspection[13]
at the Mach #1 mine. Tr. 299, 323, GX 8. He was accompanied by a company representative,
Johnny Robertson,[14]
(“Superintendent Robertson” or “Robertson”) Tr. 300, 301, 312. Pritchard had
previously inspected the Mach #1 mine a couple dozen times. Tr. 300.

During the inspection, Inspector
Pritchard issued a citation in the MMU-002 section of the mine because there
was only 5,490 cfm of air at the end of a line curtain that was supplying air
to the continuous mining machine. Prichard testified this was approximately 78%
of the requirement of 7,000 cfm, or 1,510 cfm less than required. Tr. 301, 302,
314, 315, 325, GX 16, p. 13. At the time this condition was discovered,
Respondent was in the process of extracting coal with the mining machine in the

2 right, #195 crosscut. Tr. 302, 303, GX 8. This condition was likely caused

by a disruption in the line curtain. Tr. 318. Periodically, shuttle car
operators will knock a line curtain out of place with their equipment, but
Pritchard did now know whether it happened frequently. Tr. 317. Other problems
could have occurred with the curtain that would require it to be re-hung, moved,
or have a “skirt” added to get it closer to the floor. Tr. 318. Pritchard had
seen line curtains disrupted in a matter of seconds. Tr. 318, 319. He could not
say exactly what had happened to disrupt the curtain in the cited area. Tr.

318. However, he knew it was ultimately corrected by adjusting the curtain. Tr.
     316, 318.

Inspector
Prichard testified that under the mine’s ventilation plan 7,000 cubic feet per
minute (cfm) of air was required to be delivered to continuous miners when they
were extracting coal. Tr. 301, 302, GX 16. This air requirement was placed in
the ventilation plan because of the volume of air discharged from miners’
scrubbers; ideally the same amount of air should be delivered by the
ventilation system as was discharged from the scrubbers. Tr. 303. A scrubber is
a device that gathers dust-laden air from the face while the miner is cutting
coal and traps it in a flooded bed screen. Tr. 304, 307, 328. The relatively
clean air is then discharged from the scrubber. Tr. 304. The scrubber requires
at least 7,000 cfm of air and if it does not receive sufficient fresh air, it
will re-use air that has already been scrubbed. Tr. 304, 307, 308, 324. The
scrubbers cannot remove 100% of the dust in the air and, as a result, the recirculated
air also contains dust. Tr. 304, 305, 308, 324, 325.

Inspector Pritchard did not know how
efficient the scrubber was and never looked up the technical specifications,
but he knew it was not 100% effective because no machine can be. Tr. 324-325. Even
if the scrubber was 99% effective, there would still be a build-up of dust over
time to a dangerous level. Tr. 329. Constant recirculation would result in a
build-up of dust in the air which miners then breathe, resulting in pneumoconiosis,
or black lung. Tr. 304, 305, 308, 310. Prichard further testified that the
amount of time necessary for a miner to develop black lung varies by
individual. For some miners it can take many years and for susceptible
individuals it might take a few months; he was aware of cases of miners in West
Virginia suffering from black lung in their early 20s. Over a long enough
period of time, any miner exposed to coal dust will develop black lung, a
debilitating and even fatal disease. Tr. 310, 311.

Inspector
Pritchard took the reading showing insufficient air volume while the continuous
miner machine and its scrubber were turned off. Tr. 321, 328, 329. He conceded
at hearing that if the scrubber was on, it would increase the air volume. Tr.

321. He also conceded that the anemometer had a margin of error of plus or
     minus 10%, or 700 cfm of air for a required finding of 7,000 cfm. Tr. 321, 322,
     326, 327. If the reading had been 6,300 cfm, Pritchard would have been
     reluctant to write a citation because it would be in the margin of error. Tr.
322. But here, the margin of error might be as low as 549 because of the
     actual, measured reading of 5,490 cfm of air. Tr. 327, 328. Prichard was told
     by the mine foreman that the minimum amount of air was present when the shift
     started in the morning. He saw nothing to refute the foreman’s statement. Tr.
     315, 316.

Inspector Pritchard testified that he
designated the citation as “Reasonably Likely” to result in “Permanently
Disabling” injury or illness because of the risk of black lung from dust
exposure. He determined three miners would be exposed to this condition,
including the miner operator and the two shuttle car operators in the area. Tr.
308–310. Prichard pointed out that when the airflow dropped below 7,000 cfm,
the shuttle operators were exposed to air with a higher dust concentration than
what would normally occur. Tr. 309. With continued mining and continuous
exposure the consequence is black lung, a debilitating disease. Tr. 310. The
miner operator, as a best practice, should stand on the intake side and away
from the discharge on the scrubber but he sometimes had to move to avoid
shuttle cars. Tr. 319, 320. Pritchard did not know where the miner operator was
located while the machine was operating in the instant matter. Tr. 320, 321. He
also conceded he was not a health specialist or black lung expert. Tr. 324,
326.

While in the mine, Pritchard conducted
an imminent danger run and checked the air at the last open crosscut and found
no methane and no imminent danger. Tr. 312, 313, 322, 323. He also checked the
continuous miner, air velocity (even in the belt air), methane monitors, and
other equipment and found no violations. Tr. 313, 314. The only condition he
found was the condition he cited. Tr. 314, 323.

Inspector
Prichard’s notes confirm that multiple checks were made and were good, with no
violations observed except for the line curtain air reading at #2 right,
crosscut #195. GX 9. There, the air velocity was 5490 cfm when the #3A miner
was loading coal. Id, pp. 8, 9. There was dust visible in the air, and
with continued mining activities there would be elevated levels of respirable
dust caused by insufficient fresh air to the scrubber. Id, pp. 10, 11. He
also wrote that the negligence was moderate since the foreman said he measured
8150 cfm at the start of the cut. Id, p. 11.

On June 11, 2012, at
1250 hours Inspector Pritchard issued a 104(a) Citation, No. 8442233,
to Respondent. Section 8 of the citation reads as follows:

The approved
ventilation plan is not being followed on the Headgate #6 unit (MMU-002). When measured,
the quantity of air at the end of the line curtain supplying ventilation to the
company number 3A continuous mining machine was found to be 5,490 cfm; the
approved ventilation plan requires a minimum of 7,000 cfm (page 8,
ventilation). The affected mining machine was extracting coal in the #2 right
(crosscut #195) at the time of the inspection.

Standard
75.370(a)(1) was cited 23 times in two years at the mine.

Pritchard determined the violation was
S&S, injury or illness was reasonably likely to be permanently disabling to
two persons, and the negligence was moderate. The violation was terminated at
1305 hours after the line curtain was adjusted raising the quantity of air to
7,350 cfm.

GX
8.

Former Superintendent Johnny Robertson
testified he traveled with Pritchard during the spot inspection at issue. Tr.
333, 340. The mining faces were at crosscut 195 on a three-entry longwall
development panel when Pritchard wrote the instant citation. Tr. 334-336, 342. Robertson
testified he saw Pritchard take the air reading leading to the citation. The
miners were operating and taking the coal to the tailpiece of the feeder for
transport outside. Tr. 337. Robertson asked the miner operator to shut off his
machine so Pritchard could work. Pritchard then went behind the curtain area
and took his reading. Pritchard found that the area was a bit low, around 5,490
cfm of air. Tr. 342. The scrubber ran at 8,000 cfm of air, so the plan required
between 7,000 and 9,000 cfm. Tr. 352. Ensuring at least 7,000 cfm of air in the
entry allowed the intake air to satisfy the demands of the scrubber and prevent
air coming from the return side. Tr. 352, 353. Robertson testified this
presented a low hazard to the miners. Tr. 353.

Robertson also testified that problems
usually occur at the intake area where shuttle cars run through the curtain. Tr.

346. He believed the cited condition was caused by a shuttle car hitting the
     line curtain, which was pulled loose when a loaded shuttle car went through the
     curtain. Tr. 347, 348. He stated a shuttle car may also pull a curtain out at
     the bottom, because it was hung with nails. Tr. 355. Shuttle car operators were
     warned about the danger of knocking down a curtain. Tr. 348. Robertson also
     testified that a drooping curtain would look different than a tight curtain and
     would be obvious. Tr. 354, 355.

Robertson told the miner not to load, and
then he and the section boss went to tighten the wing curtain coming through crosscut
194 to get more air. Tr. 343, 346. When a curtain is not tight, it will droop
and allow air to pass it, rather than forcing the air to the face. Tr. 346. Once
the curtain was tightened, the air increased to over 7,000 cfm. Tr. 346, 347. This
was the only action needed to terminate the condition and it only took around
15 minutes. Tr. 347.

Robertson testified the section boss
said the air reading was 8,000 cfm when he started the cut. Tr. 348, 349. Robertson
could not tell how long before the citation that the boss had started the cut. Tr.

349. However, he believed that the danger posed by this violation was very low
     because the miner operator would keep himself in fresh air and keep the
     continuous miner turned off until the shuttle cars were ready to load coal. Tr.
     350, 351, 353. Robertson also testified that the continuous miner operator
     would move around in the area where the cuts were made while working, but he
     would know that the intake air was the proper place to start. Tr. 357.

Robertson
also testified that there were three shuttle cars on the section that day and
stressed that each had an enclosed cab with air conditioners installed. Tr.
337, 338, 345, 360. While three cars were present, only two were actually
operating. Tr. 345, 346. The air conditioners had air filtering systems on them.
Tr. 338, 360. Robertson believed these air conditioners offered protection to
the miners and made the hazard they faced by the cited condition low. Tr. 339,

353. However, he did not know if the filters were certified to remove
     respirable dust. Tr. 360, 361.

b.      Contentions

The Secretary contended that the
violation was S&S, since the violation must be considered in the context of
continued normal mining operations. Based on the particular facts surrounding
this violation, the test under the third element is met, since there was a
reasonable likelihood that the hazard contributed to would cause injury. The
Secretary also contended that the violation was the result of Respondent’s
moderate negligence, because Respondent should have exercised heightened
diligence and been aware of the condition since curtains hit by shuttle cars is
a regular occurrence happening periodically during a shift and obvious to
anyone in the area.

Respondent argued that the violation of
the cited standard was not S&S because the Secretary has failed to prove
the third element of Mathies. Respondent contended there was not a
reasonable likelihood that the hazard contributed to will result in injury. Respondent
also contended that the Inspector did not conduct airborne dust sampling, and
no evidence was presented that 78% of the required ventilation was unable to
remove harmful dust and gas when the scrubber fan was off. Respondent argued
that the shuttle car operators were protected by air conditioned cabs, and the
miner operator was protected because he was standing in clean intake air. Respondent
also contended it should not be found to be negligent since the condition was
caused by an hourly shuttle car operator. Further, there were mitigating
circumstances; all of the ventilation controls and dust sprays were working,
there were no other violations on the section, and the problem occurred quickly
with no notice to the operator.

c.       Analysis

The cited standard, 30 C.F.R. §
75.370(a)(1) “Mine ventilation plan; submission and approval”,
provides the following:

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.

30 C.F.R. § 75.370(a)(1).

Regarding the first element of S&S,
the Respondent did not contest the fact of the violation of the safety standard.

The second element of a discrete safety
hazard – that is a measure of danger to safety – contributed to by the
violation was met. Inspector Pritchard credibly testified that the low air
volume would cause the scrubber to recirculate discharged air in order to meet its
capacity. Tr. 304, 307, 308, 324. Pritchard testified that this dust in the air
would contribute to the miners’ exposure to the danger of occupational lung
disease. Tr. 304-305,
308, 310. I do not find credible the testimony of Robertson that the danger
presented by the violation was very low. The reason is that the facts and
circumstances surrounding the violation must be viewed in the context of
continued mining operations.

Respondent
cited Peabody Coal Co., 17 FMSHRC 26 (Jan. 1995) to support its
contentions that the hazard contributed to would not result in injury and hence
the Secretary failed to prove the third element of S&S. However, in Peabody,
the testimony of the Inspector was equivocal on the hazard of dust
recirculation from inadequate airflow. In the instant case Inspector Prichard
credibly testified that the low air volume would cause the scrubber to
recirculate discharge air, that this recirculated air would contain dust, and
with sufficient time exposure to dust would lead to occupational lung disease. Prichard’s
testimony was not equivocal, and hence not the same as the testimony the
Commission found unsupportive in Peabody. Further, the Commission did
not set a binding rule that dust exposure from air recirculation or inadequate
ventilation cannot result in an S&S citation. Instead, the Commission held
that the facts presented and the Inspector’s testimony, as evaluated by the
judge, are the determining factors.

Respondent
also noted that in Peabody the Commission considered that air
measurements were not made while the continuous miner and scrubber were
operational, which could increase the ventilation through the line curtain. However,
the ventilation plan in effect at the Mach #1 Mine specified the minimum cfm
behind the line curtain must be 7,000 without the scrubber operating. GX
16, p. 13. Therefore, there was no need to measure with the scrubber operating.
If such a measure is important, it should have been included in the mine’s
ventilation plan.

Neither
the safety standard nor any authority cited by Respondent requires airborne
dust sampling to be conducted by an Inspector when a violation of 30 C.F.R.
75.370(a)(1) is discovered. Inspector Prichard observed dust visible in the
air, measured the quantity of air as 5,490 cfm at the line curtain, and
determined that the inadequate air was reasonably likely to result in
permanently disabling injury or illness affecting two people. In his notes,
Prichard recorded that injury was reasonably likely with the continuation of
mining activity and exposure to elevated levels of respirable dust caused by
insufficient air being supplied to the scrubbers. GX 9, pp. 9-11. Further,
there was no need for the Secretary to present evidence that the ventilation
present was unable to remove dust and gas. The 7,000 cfm air requirement was
not met and a hazard was created that was reasonably likely to result in injury
or illness.

Other
arguments of Respondent, that the shuttles had air conditioned cabs - that all
other ventilation and dust controls were functioning at the time, and that the
miner operator would stand in clean intake air - are not compelling. Even if
so, these measures would be irrelevant. The fact that additional safety
measures are in place does not mean dust poses no risk to miners; there are
additional precautions that are required because of the significant
danger of respirable dust. See, Buck Creek Coal, Inc., v. Federal Mine
Safety and Health Admin., 52 F.3d 133, 136 (7th Cir. 1995). Even
if other safety measures are in place, insufficient air volume still
contributed to the hazard of visible dust in the air and exposure to respirable
dust would still be a hazard to miners. Therefore, the arguments do not
undermine the S&S designation.

It is important also to recognize the
effect of Musser Engineering, Inc., and PBS Coal Inc., 32 FMSHRC 1257,
1280-81 (Oct. 2010) on the third prong of Mathies. In that case, the
Commission held that the “test under the third element is whether there is a
reasonable likelihood that the hazard contributed to by the violation…will
cause injury.” Id. at 1281. Importantly, it stated that the “Secretary
need not prove a reasonable likelihood that the violation itself will cause
injury.” Id. The Commission also emphasized the well-established
precedent that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Id, (citing
Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Blue Bayou Sand &
Gravel, Inc., 18 FMSHRC 853, 857 (June 1996). Two cases cited by Respondent
were issued well before the Commission’s decision in Musser, and need
not be discussed.

In
short, the question is not whether the particular violation here would result
in miners suffering black lung disease, but instead that the hazard contributed
to by the violation would result in black lung disease. As discussed, the cited
condition contributed to the hazard of coal dust exposure. Inspector Pritchard
credibly testified that this hazard, given sufficient time, will result in
black lung disease. Tr. 304-305, 308, 310. I find the Secretary has carried his
burden, and the third prong of Mathies was met.

The fourth and final element that the
Secretary must establish is that there was a “reasonable likelihood that the
injury in question will be of a reasonably serious nature.” Pritchard credibly
testified that black lung can be a debilitating, even fatal disease. Tr.
310-311. Therefore, the fourth prong of Mathies is also met, and the
cited condition was properly designated S&S.

The Secretary argued that Respondent’s
actions constituted “moderate” negligence. Specifically, the Secretary argued that
a miner striking a line curtain was a regular occurrence and therefore Respondent
should have exercised heightened diligence and checked periodically during the
shift. Further, the Secretary argued that the condition would be obvious because
a loose curtain would look different than a tight curtain.

Respondent contended the condition
occurred quickly, caused by an hourly shuttle car employee, and hence there was
no notice to the operator. Further, all other ventilation controls were
working, and there were no other violations on the section.

The Secretary’s arguments have more
merit. There was a Section Foreman in that area of active mining. Shuttle cars hitting
line curtains are a regular occurrence and certainly could happen periodically
during a shift. The visible dust in the air should have prompted the Section
Foreman to make a quick check to determine the reason. The loose curtain would
have been obvious, and a simple air measurement would have quickly shown that
the air was not at the required velocity. Superintendent Robertson’s testimony
was consistent with that of Inspector Pritchard that loaded shuttle cars did
hit and pull loose line curtains and a drooping curtain would be obvious. The
Section Foreman had both the opportunity and the means to discover and correct
the problem, since adjusting the curtain took only a few minutes. Therefore,
Respondent should have known the air supply to the continuous miner was not
sufficient and did not meet the requirement of its own ventilation plan.

Inspector Prichard was told by the
Foreman, and he recorded in his notes, that the measurement was 8,150 cfm at
the beginning of the cut. This was the mitigating circumstance he found, and he
marked the negligence as moderate. I find no other mitigating circumstance. While
hitting and displacing a line curtain can happen quickly, this does not relieve
the Section Foreman of making sure the ventilation remains adequate during the
extraction of coal. That other ventilation controls were working and there were
no violations in other areas of the section is not relevant to the duty of care
to the miners working in the affected section where the ventilation was not at
the required minimum and there was a violation. The obvious condition of the
curtain and the ease with which it was repaired underscores the conclusion that
it should have been found and corrected by management through its Section
Foreman. I find the negligence was moderate.

d.      Penalty

The discovery of visible dust in the
context of insufficient air movement through the mining section during coal
extraction does not meet the requirement of the mine’s own approved ventilation
plan and under continued mining operations is a serious safety concern. I have
found that the violation was S&S and reasonably likely to result in
permanently disabling injuries to two miners. The operator was moderately
negligent, since the only credible mitigating circumstance was the single
pre-shift air check by the Section Foreman. The parties have stipulated that
the penalty would not affect the operator’s ability to remain in business and
there was demonstrated good faith in quickly abating the violation. The penalty
appears appropriate to the stipulated size of the business, and the violation
history is not so egregious as to warrant an increased penalty. Therefore, I
find the monetary penalty should remain $2,678.00 as proposed.

V.               
LAKE
2012-861: CITATION NO. 8445042 & CITATION NO. 8445043

a.       Summary of the
Evidence

On
June 21, 2012, MSHA Inspector Eddie Kane[15]
(“Inspector Kane” or “Kane”) inspected the Mach #1 Mine. He had inspected the
mine several times in the past. Tr. 198. Kane inspected two Fletcher dual boom roof
bolter machines, Nos. 2 and 4, both in the same section of the mine. Tr. 199, 206,

207. Roof bolter machines drill through shale and slate, which contain a high
     amount of silica. Tr. 201. The amount of silica would vary depending on the
     type of rock, but in Respondent’s mine there would be at least 5% silica.[16] Tr. 219. Silica
     is a fine, dusty powder, like little shards of glass. Tr. 201. The roof bolter machines
     each had two dust collection systems to remove this dust from the air and store
     it in a collection box. Tr. 200-203, 207. Referring to GX-18, a picture of a
     similar roof bolter machine, Kane explained that the systems suction dust from
     the drills and bring it back to the collection box to eliminate it from the
     mine atmosphere. Tr. 200, 201.

Referring
to the two citations he issued, he observed dust behind the filters of the
system, and the seals on the outer doors were not glued down and were separated
from the metal doors. Tr. 199, 200. On bolter No. 2 there was high silica dust
behind both filters and both door seals were worn out and leaking. On bolter
No. 4, there was high silica dust behind one filter, and both door seals were
worn out and leaking. Tr. 220, 237-239.

The
unglued, worn and leaking door seal rings did not properly seal the collection
boxes allowing normal mine air to be drawn into the system and this can cause
the drill pods to lose suction. Tr. 207, 208, 231, 232. As soon as he opened a
door, the seal ring just flopped over. Tr. 218. He also noticed a little bit of
buildup of dust where the door was supposed to be sealed. Tr. 215. One bolter
operator told Kane that the condition had existed for two or three days and
that he had spoken to the mechanic about it. Tr. 216, 230, 244, 245, 251-253. He
was told the parts were not available for a fix right on the spot. Tr. 217. Kane
testified the condition of the door seals should have been caught during the
weekly permissibility checks. Tr. 252. The dust collection systems were required
to be checked daily as part of the dust parameter checks to make sure the
system was functioning. Tr. 214, 215, 241, 242, 251. However, Kane conceded
that if the parameter checks were done indicating adequate suction, the
condition of the doors did not affect the integrity of the system. Tr. 227-30,
250, 254, 255.

Kane
was worried that when the machine was turned off, back pressure in the
collection box would blow dust out through the areas where the door seals were
inadequate and put dust in the air. Tr. 208, 224, 225, 232. Kane had seen this
“burp” of dust back into the air when a bolter was shut down. Tr. 218, 224,

225. Kane did not ask the bolter operator to start the machine and turn it off
     to test if the back pressure blow out would occur. He did not want to expose
     miners to the hazard. Tr. 225.

Each
dust collection box contained a filter. Tr. 202, 203. Referring to GX 19, Kane
explained the black rim on the filter[17]
will not seal if drill dust is not cleaned out of the box Tr. 203, 204. The
filters should screw down to a good, snug fit against the back metal wall of
the box so that nothing can get past the gasket. Tr. 204. Behind or after the
filters is the exhaust or clean area of the collection boxes. Tr. 203, 205,

206. Dust comes into the box, is collected, and clean air is then pushed out of
     the exhaust area to the muffler at the back of the machine. Tr. 202, 205, 206. Respondent
     was required to keep dust out of the exhaust area, which should be clean with
     only air that had passed through the filter. Tr. 208, 232, 233.

Kane
found dust in the exhaust or clean area of three of the four collection boxes. The
dust itself was located in a small trench just behind the filter. Tr. 233. Dust
in the exhaust area could be caused when a filter is installed without first
cleaning out the collection box. Tr. 204, 234, 239, 243. The dust in the
collection box would be pushed back into the trench and get between the filter gasket
and the structure of the equipment. Tr. 234, 235, 239, 243. When the dust is
not cleaned out of this trench the filter gasket will not seal and will allow
dust to leak into the exhaust and be continuously expended into the mine
atmosphere when the machine is operating. Tr. 204, 233, 235, 243, 250.

Kane
testified miners would be working in the area of the expelled exhaust. Tr. 209.
These miners would be exposed to the danger of silicosis, or pulmonary
fibrosis. Tr. 209. It is the non-visible dust that is much smaller than a
pinhead that is the most dangerous and causes silicosis, which is why the
system is required to be maintained clean and free of dust. Tr. 209, 210, 211. Contracting
these diseases would depend on the exposure time, but it can take as little as
five to ten years. Tr. 209, 210, 223. Eventually, exposure would definitely
lead to silicosis. Tr. 213, 214. He believed the condition would be permanently
disabling because it would block the lungs and was related to renal failure and
cancer. Tr. 214. A miner could live several years with silicosis, but
eventually it would cause death. Tr. 214.

Kane
testified the issues with dust in the exhaust areas and the inadequate door seals
were unrelated; one did not cause the other. Tr. 212, 213, 230, 231, 237, 242. There
would be two distinct ways the dust would enter the atmosphere. Tr. 213. The
only common causes between the two conditions were poor maintenance of the
equipment and sloppiness in changing the
filters. Tr. 212.

Kane
marked the citations as reasonably likely to result in permanently disabling injury.
Tr. 213, 214. He made this determination based on NIOSH and CDC information
regarding silicosis. Tr. 213, 218, 219. He marked the citations as affecting
two miners because there were roof bolters and utility men in the area. Tr.
218.

Kane
believed that Respondent’s behavior exhibited moderate negligence with respect
to the two citations at issue. Tr. 217. It would take time for the door seals
to deteriorate to the condition he found. Tr. 216. However, Kane recognized
that the bolter operators were a bit younger and may not have understood the
problem.

Inspector
Kane’s notes show he was conducting an E01 inspection of the day active
production equipment on MMU 002. When he came to roof bolter No. 2 he found
leaking and worn out seals on both doors and dust behind the filters. He wrote
that the condition was obvious when the boxes were opened. The bolter operator
stated he had asked for new gaskets. Based on the amount of dust behind the
filters and the deterioration of the gaskets he determined the condition had
lasted 2 to 3 days. Kane also wrote that the condition would allow high silica
dust to become airborne, and this would be reasonably likely to cause
permanently disabling injuries from silicosis. GX-12, pp. 10-13.

Kane
then wrote about the same conditions on roof bolter No. 4, except there was
dust behind the left side filter only. The condition was obvious and should
have been found by the mechanics and bolter operators. He again determined that
the conditions appeared to have existed for 2 to 3 days, and that high silica
dust would become suspended and reasonably likely to cause permanently
disabling injuries from silicosis. GX-12, pp. 14-16.

At
1130 hours Inspector Kane issued a 104(a) Citation, No. 8445042,
to Respondent. Section 8 of the citation reads as follows:

The dust
collection system of the Fletcher roof bolter #2 is not being maintained. Both
dust box seals are worn out and leaking and there is high silica dust behind
the filters. This condition will cause high silica dust to become suspended in
the air when the system is ran [sic].

At
1155 hours Kane issued citation No. 8445043, for a substantially similar
condition on another bolter. Section 8 of that Order, Condition or Practice,
reads as follows:

The dust collection
system of the Fletcher roof bolter #4, located on MMU 002, is not being
maintained. Both dust box seals are worn out and leaking and there is high
silica dust behind one filter. This condition will cause the high silica dust
to become suspended in the air when the system is ran [sic].

Kane
marked both of the violations as S&S, reasonably likely to be permanently
disabling to two persons, and moderate negligence. On both he recorded that Standard
72.630(b) was cited 12 times in two years at the mine. Both citations were
terminated the next morning after new door gaskets were installed and the dust
was removed from behind the filters.

GX
10, 11.

Former
Maintenance Manager Norman Quertemous (“Quertemous”) was travelling with Kane
when the two citations were issued. Tr. 260. Quertemous had worked with
Fletcher roof bolters for 30 years and had worked with the two roof bolter
machines at issue here since the time they were manufactured. Tr. 261, 262. He
explained the suction system works by pulling air near the drill pod and
sending it through a hose down to the dust tank’s cyclone. There, the bigger material
settles out to the bottom of the tank while the finer material goes into the
filter before the air is exhausted out to the muffler. Tr. 265. Hourly
employees on every shift examined the dust boxes when they do dust parameter
checks and clean their boxes. Tr. 268, 269.

Quertemous
agreed that the door seals had deteriorated and that glued portions had
detached in places. He also agreed that the seals were attached all the way
around the doors when the machine first came from the factory. Tr. 271, 272. He
believed the condition of the seals, along with the vacuum inside the box, would
allow outside air into the dust box. Tr. 262. This condition would be obvious
during a parameter check because there would be a short circuit back to the
blower, with less sucking at the drill head. Tr. 262, 263. If the machine was
not pulling enough air, then the bolter operator was at risk. Tr. 264. In that
case, the vacuum gauge would not be in the green and the bolter operator would
report the condition to management. Tr. 263, 264. If there was some leakage through
the dust box doors but the gauge remained green, then that leakage would be
insignificant. Tr. 264. The leakage through the doors would be clean air that
would go to the exhaust. Tr. 264, 265. Quertemous could not say how long the
dust box door seals had been compromised. Tr. 268, 269. He did not recall
anyone telling him the condition had been reported to management. Tr. 268.

Quertemous
disagreed with the assertion that back pressure would cause air to burp back
out through the doors when the machine was turned off; he had never in his
career seen it happen. He testified that a 50 horsepower motor created the
vacuum, and when the power is cut off the weight of the rotor would make the
motor coast down and the vacuum in the tank collapse slowly. Tr. 260, 261.

Quertemous
testified there could be several reasons for dust settling behind the filter; a
hole in the filter, a torn filter gasket, and dust contamination caused when
changing the filter. Tr. 266, 267. He believed the most likely reason was when
they changed the filters. Tr. 268. Quertemous explained the change process as
follows: You take the wing nut off, pull the filter out, get a new filter, and
shove the new filter in. He further explained if you are not “really, really,
really,” careful when you shove it in to screw the nut back down you could push
dust back up in there. Tr. 267, see also GX-19. He had seen this before,
and the bolter men were trained to be cautious.

Quertemous
testified a compromise of the filter gasket allows dust to get through to the
clean side of the system, and the dust would exhaust into the atmosphere. Tr.
269, 270. He also testified that filter gasket damage could be a hazard. Tr.

270. He had been told exposure to that dust causes silicosis, and did
     “absolutely” understand the filter systems were important. Tr. 270, 271.

b.      Contentions

With respect to Citation Nos. 8445042 and
8445043,
the Secretary argued that Respondent violated 30 C.F.R. § 72.630(b) since the roof
bolter dust collectors were not maintained in permissible and operating
(functional) condition. Further, section 72.630 incorporates Part 33 of the
regulations which require an operator to maintain the machines as they were
approved by MSHA. All four dust box door seals were worn out and leaking. Of
the four boxes on the two roof bolting machines, three had dust behind the
filters. The secretary contended the violations were S&S because there was
a reasonable likelihood that the exposure to dust created by the condition of
the collectors will eventually result in injury, silicosis, and this would be
at least permanently disabling. The Secretary further argued the operator was
moderately negligent because the door seals had been damaged for two to three
days and a mechanic had been notified but the condition had not been corrected.
In addition, the dust that was found behind the filter gaskets can also
compromise the purpose of the filters by allowing dust to get past the filter
gasket to the clean side. Dust on the clean side will be blown out and
suspended in the mine atmosphere when the machine is in operation. The Secretary
proposed a penalty of $1,944.00 for each citation.

Respondent
argues that it did not violate the cited standard, and that both citations
should be vacated because the Secretary did not prove the dust collection
systems were not permissible and inoperable allowing respirable dust to enter
the atmosphere. Further, Respondent argues the S&S designation should be
deleted since the “burp” of dust out of the doors was not proven, no dust
samples were collected, the filter gaskets were not damaged, and the
ventilation system was operating properly. Respondent also contends there was
no negligence, since the miners are taught to carefully install filters and
clean out boxes to avoid allowing dust to get behind the filter, there was no
notice of dust behind the filters or the worn door seals, and proper
examinations had been performed on the roof bolter machines.

c.       Analysis

The cited standard, “Drill dust control at underground areas of underground
mines”, provides the following:

Dust collectors.
Dust collectors shall be maintained in permissible and operating condition.
Dust collectors approved under Part 33—Dust Collectors for Use in Connection
with Rock Drilling in Coal Mines of this title or under Bureau of Mines
Schedule 25B are permissible dust collectors for the purpose of this section.

30
C.F.R. § 72.630(b)

This safety standard contains two
requirements. The first is that dust collection systems must be maintained in
“permissible” condition. The second is that the systems must be maintained in
“operating” condition.

Permissibility under Part 33 requires
that dust collection systems be maintained as MSHA approved them, based on
testing and the issue of a certificate of approval. Tri County Coal, LLC,
34 FMSHRC 3255, 3274-3275 (Dec. 2012) (ALJ). In Tri County, dust was found
behind the filters in the clean sides of the collection boxes, and there was
also a hole in a hose that did not render the system inoperable. The judge
found that the systems were not being maintained in permissible condition
because the conditions found could not have conformed to the drawings and
specifications upon which the approval certificate was based. Id. The
systems were also not in operating condition because there should not have been
any dust on the clean side of the filters. Id. In the instant case, the
unglued and leaking door seals did not render the systems inoperable. But the
door seals could not be found to be permissible, since they were not maintained
in the same condition as existed when the equipment was approved by MSHA.

As to “operating” condition, in Liggett
Mining, LLC, 33FMSHRC 1702 (July 2011) (ALJ), Judge Paez analyzed the
language in section 72.630(b) and concluded that the plain use of the word
“operating” was synonymous with “functional”, a word defined as “performing or
able to perform its regular function”. Id., at 1714, citing Webster’s
New Int’l Dictionary (Unabridged) 921, 1581 (2002). In Liggett Mining,
there was dust on the clean side of the machine indicating the filter was being
bypassed and this evidence established the dust collection system was not
performing its regular function. This was because the regular function of the
system is to filter and contain dust before it reaches the clean side of the
system. Id., at 1714. In the instant case, three of the four filters
were not performing their regular function since there was drill dust in the
clean area behind the filters.

In
Mach Mining, LLC, 37 FMSHRC 614 (Mar. 2015)(ALJ), Judge Paez again
considered safety standard 72.630(b) and concluded the Secretary may
demonstrate a violation of section 72.630(b) by proving either (1) that
the dust collection system was not maintained as it had been approved or
(2) that the dust collection system was not in operating condition. The judge
also found that in the context of section 72.630(b) the meaning of
“permissible” is defined in accordance with Part 33 of the regulations. Id.,
Fn 5. Recently, in GMS Mine Repair, 37 FMSHRC 2568, (Dec. 30, 2015)
Judge Paez applied the same reasoning in determining that drill dust in the
clean side of the systems revealed the dust collectors were not performing
their regular function and proved the roof bolter machine was not being
maintained in permissible and operating condition. Id., at pp.7, 8.

I
find the reasoning in these Commission ALJ decisions to be persuasive. As
applied to the instant case the unglued, worn and leaking door seals could not
be considered to be permissible since the equipment would not have been
approved in that condition. Considering the integrity of the dust compartment,
Inspector Kane credibly testified that the seals on the doors were worn out, no
longer glued in place, not properly sealed against outside air and leaking. Respondent’s
witness Quertemous also testified that the door seals had deteriorated and that
glued portions had detached in places. He was present at the time the machines
came from the factory and recalled the seals were properly attached all the way
around the door. He further stated that the deteriorated condition of the seals
would allow outside air into the collection boxes. The testimony of both
witnesses well establishes that the door seals of all four collection boxes
were not being maintained in permissible condition.

The
clean areas of three of the four dust collection systems would not have been
approved either. The presence of drill dust behind the filters in those clean
areas could not have conformed to the specifications for the systems and would
not have been present when the equipment was tested for approval. Kane credibly
testified he found drill dust in trenches just behind the filters which could
get between the filter gaskets and the metal of the boxes. This would allow
drill dust to bypass the filters and be exhausted into the mine atmosphere. On
this record there is no dispute that there was drill dust behind three of the
four collection box filters. Roof bolter machine No. 2 had impermissible clean
areas in both collection boxes, and roof bolter machine No. 4 had one
impermissible clean area.

The
three impermissible dust collection systems were also not being maintained in
operating condition because the dust in the clean area would be exhausted into
the mine atmosphere when the roof bolter machine was in use. It is not necessary to determine that the
condition actually did cause drill dust to be exhausted into the area of active
mining, but only that this would happen. The system was not performing its
regular function because dust had reached the clean side of the filter system. Kane
testified if the dust is not cleaned out of the trench the filter will not seal
and will allow dust to leak into the exhaust and be continuously expended into
the mine atmosphere when the machine was operating. Quertemous agreed any dust
present on the clean side of the filter would go into the mine atmosphere. As a
result, the drill dust found in the clean area behind the filters was
sufficient to find Respondent failed to maintain three of the four dust
collection systems in operating condition on the two roof bolter machines.

It
follows, then, that I do not agree with Respondent’s contentions for vacating
the citations. The arguments center on operating condition, citing an unrelated
proceeding involving Respondent, Mach Mining, LLC, 35 FMSHRC 2827 (Aug. 2013)
(ALJ). In that case, unlike the instant proceeding, the citations alleging
violations of section 72.630(b) only stated that the dust collection
systems were not being maintained in permissible condition and the
Secretary had made no attempt to prove the systems were not in permissible
condition. Id., at 2832. In dicta, considered wholly unnecessary
to the holding, the judge suggested that proof the systems were not in operating
condition required air readings, compliance with the Mine’s Ventilation Plan,
and visible dust in the air. Id., at 2833, 2834. I do not agree with
these suggestions in the context of the safety standard at issue, and in any
event consider it inappropriate to rely on dicta.

Section
72.630 sets forth alternative methods of dust control: dust collectors, or
water, or ventilation, or other approved method or device. Since dust
collectors are used on Respondent’s roof bolters, controlled by subsection (b),
the use of water or compliance with the ventilation plan is not required and
irrelevant to this decision. The enforcement of the safety standard does not
require dust sampling. Jim Walter Resources, Inc., 17 FMSHRC 1423,
1444-45 (Aug. 1995) (ALJ); aff’d Jim Walter Resources, Inc., v. Sec’y of
Labor, 103 F.3d 1020, 1024 (D.C.Cir.1997). See also the regulation
history, Air Quality Standards for Abrasive Blasting and Drill Dust Control, 59
Fed. Reg. 8318, 8322 (February 18, 1994). The argument that dust must be seen
ignores the fact that silica dust can be measured in microns in size, invisible
and dangerous as testified by Inspector Kane. Respondent also argued that the
machines met the vacuum parameter checks and therefore were in operational
condition. However, that the suction at the drill pods was most likely
maintained despite the unglued, worn and leaking door seals is also irrelevant
since the systems were otherwise violatively defective.

Respondent
argued that the deteriorated door seals would not cause dust to blow out of the
collection boxes when the roof bolter was shut off. Quertemous testified that
in his 30-year career he had never seen this happen. He gave his opinion why
this would not occur, essentially that the vacuum motor would shut down slowly.
Inspector Kane testified he had seen this occur, but he did not elaborate on
the circumstances surrounding any past incident. The Secretary did not offer
any authority, such as MSHA or manufacturer testing or instructions, to support
the purported back pressure “burp back” condition. However, it is not necessary
to resolve this conflict in the evidence; I have determined that the dust
collection systems were neither in “permissible” condition nor in “operating”
condition.

After
careful consideration of the evidence presented and Respondent’s arguments, I
find that the Secretary has met the burden of proof. Respondent violated 30
C.F.R. § 72.630(b) with respect to both Citation Nos. 8445042 and
8445043.

Inspector Kane found the gravity in
Citation Nos. 8445042
and 8445043 as
being “Reasonably Likely” to result in a “Permanently Disabling” injury to two
persons and that the violations were S&S. In the event that silica dust was
emitted from the dust collection system, it would result in silicosis and/or
pulmonary fibrosis. Respondent’s witness Quertemous also testified to his
understanding that exposure to the dust causes silicosis. This condition can
cause permanently disabling injuries to miners and eventually lead to death. Further,
there were at least two miners working in the area of each roof bolter. Therefore,
I agree and find that the gravity was properly marked as reasonably likely to
cause permanently disabling injuries to two miners.

Regarding the first element of S&S -
the underlying violation of a mandatory safety standard - it has already been
established that Respondent violated 30 C.F.R. § 72.630(b).

The second element of Mathies, a
discrete safety hazard – that is a measure of danger to safety – contributed to
by the violation – has also been met. The safety hazard of silica dust in the
active mining section atmosphere from the roof bolter drills has been clearly
identified. Inspector Kane credibly testified that the invisible, microscopic
silica dust would be contained in the drill dust generated by roof bolting. While
the amount was disputed, the fact of silica in the drill dust was not disputed.
The hazard that contributed to the danger to safety was the drill dust found in
the clean area of three of the collection boxes of the two machines. On
operation of the machines, this would be expelled from the machine and become
suspended in the air where miners were working.

Inspector Kane credibly testified that
exposure to silica dust, over time, would result in injury and even, ultimately
in death. Respondent’s witness Quertemous evaded directly addressing the
danger, but he did testify he had been told exposure to dust causes silicosis,
and he understood the importance of the filter systems. The condition of the
collection boxes had existed uncorrected for two to three days at the time of
the inspection. It is not necessary for the Secretary to prove that the
violations, the impermissible and non-functional dust collection systems, will
result in injury. Rather, it is the contribution of these violative conditions
to the exposure to silica dust and the injury due to silicosis and/or pulmonary
fibrosis that is important. In the context of continued normal mining
operations such exposure is very serious and reasonably likely to result in a
disabling respiratory disease. The third element of the Mathies formula
is met.

Due to the seriousness of silicosis, the
fourth element is also met. I specifically find that both violations were
S&S.

In its brief, Respondent argued that management
did not know and should not have known about the cited conditions because the
filters were installed by hourly employees. RPHB 11 and RRB 21 citing Martin
Marietta Aggregates, 22 FMSHRC 633 (May 2000). It is generally true that
the actions of a rank-and-file employee are not imputable to an operator. However,
a person’s actions are imputable to the operator when that person is charged
with the responsibility for the operation of part of the mine. 30 U.S.C.
802(e). The Commission has previously found that rank-and-file miners are
charged with the responsibility for the operation of part of the mine when
assigned statutorily mandated responsibilities of the operator, like conducting
examinations. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194-195 (Feb. 1991); see also Mettiki Coal Corp., 13 FMSHRC 760, 772 (May
1991). In the instant matter, Respondent’s bolter operators, while
rank-and-file employees, were charged with conducting pre-operational examinations
of the roof bolter machines and their dust collection systems. As a result,
those operators were acting as Respondent’s agents, and their negligence is
imputable to Respondent.

With respect to knowledge, Inspector
Kane credibly testified that one of the bolter operators was aware of the
broken door seals and had reported the condition to a mechanic. The problem was
obvious as soon as someone looked inside the compartments, the seals would just
flop over. Similarly, the dust behind the three filters was most likely pushed
into place by a miner when installing the filters. That miner should have been
aware and cautious, based on the training provided. Quertemous testified the
condition was most likely caused by changing the filters, and the bolter men
were trained to be cautious. In addition, the dust behind the filters should
have been caught on the weekly permissibility examination. Therefore Respondent
knew, or should have known, that the dust collection system was not in either
permissible or operable condition.

In its brief, the Secretary argued that
Respondent’s actions constituted “moderate” negligence. Specifically, the
Secretary contended that the condition was obvious to anyone looking into the
machine. Further, while the door seal condition was reported to a mechanic, it
had not been corrected. In fact, it had existed for several days and for
several cuts. The Secretary contended Respondent should have realized the dust
collection systems were compromised and taken actions to correct the
conditions. However, in the post hearing brief the Secretary did not suggest a
mitigating circumstance to support the “moderate” determination. Considering
the arguments advanced, this omission could be construed as a request for
modification of both citations to high negligence.

In testimony, Inspector Kane observed
that the bolter operators were a bit younger, which I take to mean
inexperienced. Considering the testimony of Respondent’s witness Quertemous
that there was an awareness of the danger of pushing dust behind the filters
and the bolter operators were trained to be cautious in changing the filters,
their relative inexperience is not a mitigating circumstance. Notwithstanding,
and despite the delay in correcting the door seals, at least one bolter
operator did report the condition to a mechanic; essentially a request for
repairs to be made. Therefore, I will not disturb the determination of the
Inspector that the negligence was moderate.

I am aware that in the Sixth Circuit
Court of Appeals decision in Rex Coal Company, Inc., v. Secretary of Labor,
Case No. 14-4123 (October 29, 2015) (Unpublished) the Court noted that three
citations were issued and three fines imposed where the same negligence
resulted in the violation of three separate regulations. The Court commented
that this appeared to be “piling on” and urged caution in the issuance of
multiplicitous citations for the identical negligence. In Rex Coal, a
single truck with inadequate brakes was involved, whereas in the instant case
two separate roof bolter machines were each violatively defective and each was
issued a single citation. Therefore, the concern for “piling on” is not
applicable here.

d.      Penalty

As in the discussion of the previous
citation regarding dust in an active mining section, here the failure to
properly maintain the two roof bolter dust collection systems raises serious safety
concerns. Both of these violations were S&S and reasonably likely to result
in permanently disabling injuries to two miners. I was able to find a
mitigating circumstance and affirm the determination of moderate negligence. The
violation history, while significant in the context of dust control, does not
support an increased assessment. The remaining factors have been stipulated by
the parties. The Secretary proposed a penalty of $1,944 for each citation, and
my independent assessment is that these amounts are appropriate.

VI.            
LAKE
2012-861: CITATION NO. 8445234

At the hearing, the Respondent did not
contest the fact of the violation or, based on discussions at hearing regarding
mitigation, the designation of moderate negligence. Tr. 190, 191. The
Respondent argued only the designation of the violation as S&S. Tr. 191. See
also, RPHB, RRB.

a.       Summary of the
Evidence

On June 27, 2012, Inspector Chad Meacham
Lampley[18]
(“Inspector Lampley” or “Lampley”) inspected the Mach #1 Mine. Tr. 122. He had
been to the mine numerous times in the past. Tr. 122-123. During the
inspection, he found an inadequate guard at the drive of an 84-inch conveyor
belt. Tr. 123. Referring to GX-17, he testified that a chain had been run
through steel grating[19]
and draped across and hooked to a motor lift eyelet on the other side. Tr. 124,
125, 149. He explained the chain was not sufficient as a guard because it could
easily be disconnected and dropped, or ducked under, and did not prevent any
miner from going into the drive area during cleanup. Tr. 125, 127, 128, 145,

146. This area had rotating components; two drive roller assemblies with
     tension where the belts come around the rollers. Tr. 124, 125. Referring also
     to GX-14, a wider view of the area, Lampley further explained that the rotating
     assemblies are required to be guarded to prevent any miner from coming into
     contact with those moving parts. Tr. 126, 127. The guard is supposed to extend
     a sufficient distance from the parts to prevent contact, and be secure in place
     so that it could not easily fall off or be removed. Tr. 127. The belt area
     would be routinely accessed by miners for cleaning, Tr. 130, 135, and by the
     mine’s examiners each shift. Tr. 135. The area could also be accessed by
     general inside laborers, or if there was a problem by somebody going to see the
     belt running. Tr. 138.

Inspector Lampley testified that injury
was reasonably likely because people would be coming through the area, a place
where accumulations occur directly underneath or in close vicinity to the belt
itself. Tr. 135, 150. A miner would have to get close and reach with a shovel
underneath the belt and drive to clean that area. Tr. 149, 150. Depending on
where one measured from the chain, the distance to the rotating parts was 4 to
6 feet. Tr. 143, 144. Lampley considered the hazard to be the ease of access by
just unhooking the chain and going into the area to clean and coming in contact
with the rollers. Tr. 124, 145, 146. Lampley further testified he marked injury
as permanently disabling because a miner or his clothing could contact a pinch
point, get caught in a roller, or be pulled into the rotating components and
have a crushing injury or dismemberment. Tr. 124-126. Lampley also testified
that many accidents, injuries and fatalities were caused by belt conveyors,
rotating assemblies, and related equipment. Tr. 126, 136.

Inspector Lampley marked the violation
as “S&S” because of the frequency with which miners were exposed to the
hazard and the history of injuries in the mining industry from pulleys and
rotating parts. Tr. 137.

In his notes Inspector Lampley wrote that when
walking the 84 inch conveyor belt toward the head with Jimmy Henderson he
observed the drive was not adequately guarded to prevent miners from contacting
the moving rollers. He saw that the guards there did not extend a sufficient
distance to prevent miners from traveling into the hazardous area of the drive.
A chain was installed at the two foot opening of the walkpath from the end of a
guard to the motor; the location of the opening would allow miners performing
cleaning easy access to where the hazards of the rotating drive existed and
could cause permanently disabling injuries. GX-15, pp. 29-33.

At
1517 hours Inspector Lampley issued a 104(a) Citation, No. 8445234,
to Respondent. Section 8 of the citation reads as follows:

The 84 inch belt
conveyor drive is not adequately guarded to prevent miners from contacting the
moving drive rollers. Guards do not extend a sufficient distance to prevent
miners from traveling into the hazardous area. A two foot walkpath at the inby
drive motor has a single chain installed from the end of the guard to the
motor.

The safety
standard 30 CFR § 75.1722(a) was cited two times in two years at the mine.

Lampley
marked the violation as S&S, reasonably likely to be permanently disabling
to one person, and moderate negligence. The citation was terminated at 1555
hours when metal guarding was extended to the drive motor.

GX 13.

Mine
Manager Jimmy Henderson[20]
(“Manager Henderson” or “Henderson”) testified for the Respondent. Tr. 152. He
also observed the chain at the 84-inch belt drive area that had been put up to
prevent a miner from accidentally getting in the hazard of a pinch point where
the belts run around the drive pulley.[21]
Tr. 155-157, 160. Henderson had not seen that chain before and did not believe
it was adequate guarding. Tr. 160, 178. He also testified the purpose of a
guard was to prevent accidental contact. Tr. 164-165. A miner contacting the
drive could get a piece of clothing caught and his arm pulled into a pulley.
Tr. 165. Miners were occasionally injured and killed by inadvertent contact
with pulleys. Tr. 180. However, Henderson did not believe that miners would
typically enter a chained off area because a chain could be used as a warning
sign. Tr. 166, 179. He conceded that miners would sometimes cut corners. Tr.
180.

Manager
Henderson testified that the belt drives are examined every shift, and there is
a chance for cleaning to go on every shift. Tr. 160. Henderson had assigned
miners to clean in the area around running belts in the past and had observed
miners doing so. Tr. 175-176. Miners would clean the area with a 10 to 12 foot
pancake shovel standing on the right side of the motor. They would not have to
go under the chain. Tr. 176, 177. Henderson testified for someone to be hurt by
the missing guard, they would have to walk up, take the chain off or go under
or over the chain, walk four or five feet, and intentionally stick their arm
out in between the belt and the pulley. Tr. 167. In his opinion, you could not
be accidentally hurt by the chain being there and the guard missing. Tr. 168. The
condition was abated promptly by removing the chain and welding a guard onto
the drive perpendicular to the belt. Tr. 161, 164, 167.

b.      Contentions

The Secretary contended that the
violation was S&S since a miner behind the chain would be exposed to
getting clothing or a body part in contact with the drive rollers causing
crushing injuries or dismemberment. The area is regularly accessed for cleaning
when the belt is running. One miner, examiner or cleaner, would be affected. The
hazard created was reasonably likely to result in a permanently disabling
injury that would be reasonably serious. The Secretary proposed a penalty of
$1,530.

The
Respondent contended that the S&S designation should be deleted. The chain
was a protective barrier making access to the belt drive difficult. A miner
would have to remove or cross over or under the chain to approach the conveyor
drive, and miners would not regularly be in the area protected by the chain. The
Respondent argued the distance from the chain to the drive was 4 to 6 feet, the
floor was not wet, and there was no need for miners to pass the chain to clean
the area; therefore, injury would be highly unlikely.

c.       Analysis

The safety standard, “Mechanical equipment guards” provides the following:

a. Gears;
sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; couplings,
shafts; sawblades; fan inlets; and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury to persons shall be
guarded.

b. Guards at
conveyor-drive, conveyor-head, and conveyor-tail pulleys shall extend a
distance sufficient to prevent a person from reaching behind the guard and
becoming caught between the belt and the pulley.

c. Except when
testing the machinery, guards shall be securely in place while machinery is
being operated.

30
C.F.R. § 75.1722.

I
understand, of course, that Respondent here concedes the guarding was
inadequate, and contests only the determination of S&S. However, to fully
consider this issue, an understanding of the requirements for a “guard” is
needed. The safety standard lists a number of types of moving machine parts
that must be guarded, that the guard must be extended a sufficient distance
from the pulleys to prevent a person reaching behind the guard becoming caught
between the belt and pulley, and that the guard must be securely in place while
machinery is operated. However, the term “guard” is not further defined in the
regulation. The MSHA Program Policy Manual[22]
contains relevant details:

Guards
installed to prevent contact with moving parts of machinery shall:

1.      Be of
substantial construction;

2.      Be of such
construction that openings in the guard are too small to admit a person’s hand;

3.      Be firmly bolted
or otherwise installed in a stationary position; and

4.      Be of sufficient
size to enclose the moving parts and exclude the possibility of any part of a
person’s body from contacting the moving parts while such equipment is in
motion.

Program
Policy Manual, Volume V, Subpart R, Pages 155, 156.

Over
thirty years ago the Commission provided guidance on an identically worded
safety standard for guarding:

We find that the most logical
construction of the standard is that it imports the concepts of reasonable
possibility of contact and injury, including contact stemming from inadvertent
stumbling or falling, momentary inattention, or ordinary human carelessness. In
related contexts, we have emphasized that the constructions of mandatory safety
standards involving miner’s behavior cannot ignore the vagaries of human
conduct. See, e.g., Great Western Electric, 5 FMSHRC 840,
842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531
(November 1981). Applying this test requires taking into consideration all
relevant exposure and injury variables, e.g., accessibility of the
machine parts, work areas, ingress and egress, work duties, and as noted, the
vagaries of human conduct. Secretary of Labor v. Thompson Brothers Coal
Company, Inc., 5 FMSHRC 2094, 2097 (Sep. 1984).

The
test is “reasonable possibility” of contact and injury. Id.

In
the instant case, as clearly shown by the photograph GX 14 and the closer view
GX 17, and by descriptions in testimony, the easily removed or circumvented
chain did not in any meaningful way prevent access to moving machine parts via
a two foot wide pathway from the work area. Cleaners, examiners, maintenance
workers or others in this pathway would be in close proximity to the open,
exposed and unguarded pulley and belt readily visible adjacent to the
end of the pathway. Respondent’s exhibit RE 8 was marked to point to the pulley
in question; when compared to GX 17 and GX 14 the same assembly is indicated. Considering
the vagaries of human conduct, including inadvertent or accidental contact with
this moving pulley and belt due to carelessness, inattention, stumbling or
falling, the test of “reasonable possibility” of contact and injury is met.

Respondent
contended the chain was a “protective barrier” or an “area guard” that would
prevent miners from accessing a pinch point. I find the chain was neither. The
ALJ decisions cited by Respondent do not support the argument, and in any event
are not persuasive.[23]
The entrance to the pathway between the structure and the motor was not
completely screened off and the chain was not welded and padlocked and had no
warning sign attached. Other decisions cited regarding distances between
installed guards and moving parts do not apply here, since there was no
guard between the end of the pathway and the exposed pulley and belt.

I credit the testimony of Inspector
Lampley that miners would enter the area to clean up. He observed that miners
often take expedient actions, even when such actions are not safe, and they
would ignore the chain and not avoid the area behind the chain. He also
testified that examiners are trained to find problem areas; therefore it was
reasonably likely that an examiner or maintenance person would need to closely
view the drive assembly if there was a problem. Respondent’s witness Henderson
testified that miners did enter the area to clean coal spillage, and he
conceded that miners would cut corners. In this context, whether the cleaners
were provided 12-foot long shovels does not matter; it is how and where shovels
of any type would be used that makes a difference. In this case, there was no
effective “barrier” or “area guard” to prevent access to moving machine
parts by any miner.

Inspector Lampley found the gravity of
the violation to be “Reasonably Likely” to result in a “Permanently Disabling”
injury to one miner. I agree with these determinations and find each is
supported by a preponderance of the evidence.

Regarding the
first element of S&S - the underlying violation of a mandatory safety
standard - it has already been established that Respondent violated 30 C.F.R. §
75.1722(a).
We
begin the S&S analysis here with the second element of Mathies,
whether there was a discrete safety hazard – that is a measure of danger to
safety – contributed to by the violation. As discussed supra, the drive
assembly, specifically the unguarded pulley and belt easily accessed from the
pathway,
could cause injuries if contacted. These exposed moving parts contributed to
the danger of clothes or limbs coming into contact with the pulley and belt and
the miner being pulled into the pinch point. Miners did enter the area on a
regular basis to perform various assigned tasks, including the mine’s examiners
and those sent to clean the area around and under the belt. The violation
contributed to the safety hazard of a miner in the area contacting the moving
parts of the drive. Therefore, the second prong of Mathies was met.

The
third element of Mathies – a reasonable likelihood that the hazard
contributed to will result in an injury – was also met. Lampley and
Henderson testified that a miner contacting moving equipment could be pulled
into the machine and suffer crushing injuries or dismemberment. Both
acknowledged that these injuries, and fatalities, did occur in the mining
industry. With continued normal mining operations there was a reasonable
likelihood that the hazard contributed to by the violation, being pulled into
exposed and dangerous moving equipment would result in injury. The third prong
of Mathies was also met.

The
fourth element of the Mathies test – a reasonable likelihood that the
injury in question will be of a reasonably serious nature - was also met. It is
essentially uncontested that miners pulled into these moving assemblies would
be crushed or suffer dismemberment. This would be, at least, permanently
disabling and therefore of a reasonably serious nature. All four prongs of Mathies
were met, and I find the determination of S&S to be correct.

d.      Penalty

I affirmed the
gravity and S&S findings, and again considering the six criteria as
required by Section 110(i) including the lack of a significant history of this
type of violation and the matters stipulated by the parties, I also affirm the
penalty
of $1,530.00.

ORDER

It
is ORDERED that Citations numbered 8427074, 8442233, 8445042, 8445043,
and 8445234 are AFFIRMED as issued with civil penalties totaling $13,176.

It
is further ORDERED that Citation Number 8420533 is MODIFIED to
reduce the negligence to LOW and the civil penalty to $700.

It is further ORDERED that Mach
Mining, LLC, PAY the Secretary of Labor the sum of $13,876.00
within 30 days of the date of this Decision.[24]

Upon receipt of payment, this case is
hereby DISMISSED.

/s/ Kenneth R. Andrews

Kenneth
R. Andrews

Administrative
Law Judge

Distribution:

Daniel
McIntyre, Esq., United States Department of Labor, Office of the Solicitor,
1244 Speer Blvd., Suite 216, Denver, CO 80204

David
J. Hardy, Esq. & Christopher D. Pence, Esq., Hardy Pence, PLLC, 500 Lee
Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

[1] A Decision
Approving Settlement was issued for LAKE 2011-422, LAKE 2011-977, LAKE
2012-808, Citation No. 8424247 of LAKE 2011-518 and Citation Nos. 8436394,
8445204, 8445218, 8445222, 8445228, 8445233, and 8444830 of LAKE 2012-861 on
October 29, 2014.

[2] Here and
hereinafter, the official transcript of the hearing from October 23, 2014 is
abbreviated as “Tr.”

[3] The Secretary’s
Post Hearing Brief is abbreviated as “SPHB.” Mach Mining’s Post Hearing Brief
is abbreviated as “RPHB.” Respondent’s Response Brief is abbreviated as “RRB.”

[4] The Joint
Exhibit is abbreviated as “JX.” The Government’s exhibits are abbreviated as
“GX.” The Respondent’s exhibits are abbreviated as “RX.”

[5] Morris was a
Coal Mine Inspector and accident investigator for MSHA, and has also worked as
a conference and litigation representative. Tr. 12, 13. He has worked for MSHA
for approximately eight years and was in the mining industry for an additional
32 years. Tr. 12, 14. He attended 26 weeks of training and also underwent
on-the-job training, learning from experienced inspectors and specialists. Tr.
15.

[6] Respondent
objected to the admission of the notes of the Inspectors on the basis that such
notes can only be used to refresh the recollection of the witness. However, an
Inspector’s notes written at the time of the inspection are not so limited. These
recordings of observations and actions taken are relevant to the violations
cited and are admissible as evidence into the official record. At the hearing,
notes of the Inspectors in the Government’s exhibits were admitted.

[7] At the time of
the hearing, Shaw had worked at the Mach mine for almost 8 eight years. Tr. 50.
He was an hourly worker there. Tr. 51. He was a certified miner for the State
of Illinois, and is able to drive a scoop and tram a pinner. Tr. 50, 51. He was
not a roof bolter. Tr. 51.

[8] Chris Wilson
was employed by Mach for almost eight years. Tr. 85. He worked as a coal miner
for Willow Lake before working for Mach. Tr. 86. He worked for almost 14 years
in the mining industry, and held a certification from the State of Illinois. Id.

[9] Although
Respondent did not make the argument that safeguards are not mandatory safety
standards, it should be noted that they have been found to satisfy this first
element of Mathies. See, e.g. Wolf Run Mining, 31 FMSHRC
306 (Feb. 26, 2009)(ALJ).

[10] Jeff Adams was
an MSHA surface specialist. Tr. 275. A surface specialist takes care of all
strip mines and surface properties, which are surface mines and surface components
of underground mines. Tr. 275. He holds an associate’s degree and a bachelor’s
degree in industrial education. Tr. 275. He has worked for MSHA for seven
years. Tr. 275. Before working for MSHA, he spent 26 years working at Galatia
Mine, including three years underground. Tr. 276. At the time of the inspection
on June 27, 2012, Adams was an underground inspector in Hillsboro, Illinois. Tr.

277. He subsequently became a surface specialist. Tr. 277.

[11] Norman Quertemous
retired from Mach Mining on March 31, 2014. Tr. 257. He worked in mining for 42
years, including nine years for Mach. Tr. 257. At Mach, Quertemous worked as a
maintenance manager, and in this position he helped with a variety of tasks.
Tr. 258. Quertemous also worked as an instructor at Southeastern Illinois
College, teaching electrical retraining, annual refresher training, and safety
courses. Tr. 258.

[12] Michael
Pritchard worked as a health specialist for approximately two-and-a-half years,
and has been with MSHA for over five years. Tr. 298. He possessed a bachelor’s
degree in general engineering and a master’s degree in mining engineering. Tr.
298, 299. He had worked as a mining engineer in the coal industry for 25-30
years. Tr. 299.

[13] An E02
inspection is a five-day spot inspection of a mine’s ventilation. Tr. 300. A
mine is placed on a spot inspection schedule based on the amount of methane it
liberates in a 24-hour period. Tr. 300.

[14] Johnny
Robertson was the superintendent of the Mach #1 Mine. Tr. 330. All personnel
reported to him. Tr. 330. He was retired at the time of the hearing. Tr. 331. He
had 32 years of underground mining experience. Tr. 331. He held various MSHA certifications
and was a certified instructor. Tr. 333.

[15] Eddie Kane had
been a special investigator for one year and previously worked as a regular
inspector for five years. Tr. 196,97. Before MSHA, Kane spent six and a half
years in the mining industry. Tr. 197. He had a BS degree in business
administration, and also had extensive training Tr. 197. He was certified to
“run dust” but he was not a health specialist and there was no such thing as a
dust specialist. Tr. 221, 222.

[16] Rock dust used
in the mine must be below 1% silica. Tr. 219.

[17] This is the gasket
on the filter. Tr. 233.

[18] Inspector
Lampley earned a BS degree from Southern Illinois University and had been with
MSHA for about seven and a half years. Also, he had previously worked for about
a year and a half for a coal company as a laborer and mechanic. Tr. 120, 121.

[19] Exhibits GX 17
and GX 14 show the chain passed through a small piece of grating attached
perpendicular to the structure.

[20] Jimmy Henderson
was responsible for everything at the mine, including safety and production
during his shift and maintenance of guards. Tr. 152–53, 170. He had extensive
experience. Tr. 154, 187. He had traveled with inspectors when they expected
guards in the past. Tr. 186.

[21] The drive was
located at the end of a 400-foot beltline that dumped onto the slope belt that
takes the coal outside. Tr. 156. The drive operates a series of pulleys that
move the belt. Tr. 156, 157.

[22] The Program
Policy Manual is an agency issue available to the public on the MSHA website.
Although counsel for the Secretary referred to the Manual at the hearing, there
was no need to offer it as an exhibit. All or any part of the Manual may be
downloaded and/or printed.

[23] Respondent
cited Secretary v. Consolidation Coal, 15 FMSHRC 1264, 1286-1287 (June
20, 1993) and Secretary v. Overland Sand & Gravel, 14 FMSHRC 1337,
1342 (August 3, 1992).

[24] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390.