Big Ridge, Inc. v. Secretary of Labor

Read the official release (fmshrc.gov)

Plain-English summary

Big Ridge operated the Willow Lake Portal underground bituminous coal mine in Illinois. The consolidated cases involved roof control, combustible accumulations, ventilation controls, belt alignment, and pre-shift examinations, along with the operator's right to accompany MSHA inspectors. Judge Thomas P. McCarthy affirmed some violations, reduced negligence or gravity findings and penalties on others, and vacated three enforcement actions. He found that MSHA violated Big Ridge's walkaround rights during an impact inspection and excluded evidence for two citations where the operator was prejudiced, leaving insufficient proof of those violations. He also credited mine witnesses who said a pre-shift examination occurred and vacated the related order. The judge approved the parties' settlement terms and ordered a total penalty of $309,376 for the litigated and settled citations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1731(b), 75.202(a), 75.202(b), 75.220(a)(1), 75.333(h), 75.360(a)(1), 75.360(f), 75.400, and 75.403
• Outcome: Some violations were affirmed or modified, three enforcement actions were vacated, settlement terms were approved, and a total penalty of $309,376 was ordered.
• Key point: A denied walkaround right can justify excluding inspection evidence when the operator shows prejudice in observing, testing, or defending against the cited condition.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE
OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON,
D.C. 20004-1710

TELEPHONE
202-434-9950 / FAX: 202-434-9940

June
19, 2014

BIG RIDGE,
INC.,

Contestant

v.

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH

ADMINISTRATION
(MSHA),

Respondent

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner

v.

BIG RIDGE,
INC.,

Respondent    

CONTEST
PROCEEDINGS

Docket
No. LAKE 2012-453-R

Order
No. 8431667; 03/06/2012

Docket
No. LAKE 2012-454-R

Citation
No. 8431668; 03/06/2012

Docket
No. LAKE 2012-455-R

Citation
No. 8431669; 03/06/2012

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2012-174

A.C.
No. 11-03054-270696-02

Docket
No. LAKE 2012-175

A.C.
No. 11-03054-270696-03

Docket
No. LAKE 2012-262

A.C.
No. 11-03054-273420-02

Docket
No. LAKE 2012-263

A.C.
No. 11-03054-273420-03

Docket
No. LAKE 2011-349

A.C.
No. 11-03054-242336-02

Mine:
Willow Lake Portal

Appearances:   Letha A. Miller,
Esq., and Breyana Penn, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado for Petitioner

Arthur M.
Wolfson, Esq., and Jason P. Webb, Esq., Jackson Kelly, PLLC, Pittsburgh,
Pennsylvania for Respondent

Before:            Judge McCarthy

DECISION AND ORDER

I.  Statement of the Case

This case is before
me upon three Notices of Contest filed by Contestant Big Ridge, Inc. against
the Secretary of Labor and five Petitions for Assessment of Civil Penalties
filed by the Secretary against Big Ridge, Inc. (Respondent) pursuant to
sections 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d) (the “Mine Act”), as amended. Twelve violations of mandatory safety
standards remain at issue from four dockets. They involve nine 104(a)(1)
citations and three 104(d)(2) orders issued by various MSHA inspectors between
August 2010 and October 2011. P. Exs. 1, 4, 6, 9, 10, 12, 21, 32, 34, 38, 40,

43. The Secretary has proposed specially assessed penalties for six of the
    twelve unresolved citations/orders. Respondent contests the alleged
    unwarrantable failure, significant and substantial (S&S), gravity and/or
    negligence designations, and the validity of the proposed civil penalties.

A hearing was held in
Carbondale, Illinois. The parties agreed to conduct several “mini trials” on
each unresolved citation/order, elected to waive opening statements, and
introduced testimony and documentary evidence, with witnesses sequestered. Tr.
13-24.

Based on the entire
record, including the parties’ lengthy post-hearing briefs and my observation
of the demeanor of the witnesses, I first evaluate citations/orders for roof
control, accumulations of combustible material, and maintenance of the
incombustibility content of rock dust. I then evaluate the ventilation control,
belt maintenance, and accumulation citations written during an impact
inspection in which Respondent allegedly was denied its walkaround rights under
section 103(f) of the Mine Act. Finally, I affirm my bench decision vacating on
credibility grounds an alleged unwarrantable order for failure to perform a
pre-shift examination and certify that the examination had been made.

II.  Basic Legal
Principles

A.        Significant and
Substantial

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

It is the third
element of the S&S criteria that often is the most difficult to apply. The
element is established only if the Secretary proves “a reasonable likelihood
the hazard contributed to will result in an event in which there is an injury.”
U.S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S
determination must be based on the particular facts surrounding the violation
and must be made in the context of continued normal mining operations. Texasgulf,
Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood
that the violation itself will cause injury.” Cumberland Coal Res., LP, 33
FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser Engineering, Inc., 32 FMSHRC
1257, 1280-81 (Oct. 2010).

The S&S nature of
a violation and the gravity of a violation are not synonymous. The Commission
has pointed out that the “focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus
of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). The Commission has emphasized
that, in accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Co., 6 FMSHRC at 1575. With
respect to citations or orders alleging an accumulation of combustible
materials, the question is whether there is a confluence of factors that make
an injury-producing fire and/or explosion reasonably likely. Utah Power &
Light Co., Mining Div., 12 FMSHRC 965, 970-971 (May 1990) (“UP&L”). Factors
that have been considered include the extent of the accumulation, possible
ignition sources, the presence of methane, and the type of equipment in the
area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-03.

B.        Negligence and
Unwarrantable Failure

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

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

30 C.F.R. § 100.3(d).

The Commission has
defined an unwarrantable failure as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable
failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.” Emery
Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d at 136. Whether conduct is “aggravated” in the context of an unwarrantable
failure analysis is determined by looking at all the facts and circumstances of
each case to see if any aggravating factors exist, such as the length of time
that the violation has existed, the extent of the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for
compliance, the operator’s efforts in abating the violative condition, whether
the violation is obvious or poses a high degree of danger, and the operator’s
knowledge of the existence of the violation. See, e.g., Consolidation Coal Co.,
22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are relevant to an
unwarrantable failure determination to the extent that they serve to put an
operator on notice that greater efforts are necessary for compliance with a standard.
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

C.        Penalty Assessment
Principles

The Commission
outlined the parameters of its responsibility for assessing civil penalties in
Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles
governing the Commission’s authority to assess civil penalties de novo for
violations of the Mine Act are well established. Section 110(i) of the Mine Act
delegates to the Commission “authority to assess all civil penalties provided
in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28
and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties,
the Commission [ALJ] shall consider” six statutory penalty criteria: [1] the
operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect of the operator’s ability to continue in
business, [5] the gravity of the violations, and [6] the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation.

22 FMSHRC at 600
(citing 30 U.S.C. § 820(i)).

In keeping with this
statutory requirement, the Commission has held that “findings of fact on the
statutory penalty criteria must be made” by its judges. Sellersburg Stone Co.,
5 FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have
been made, a judge’s penalty assessment for a particular violation is an
exercise of discretion, which is bounded by proper consideration for the
statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000).

In exercising this
discretion, the Commission has reiterated that a judge is not bound by the
penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723
(Aug. 2008). In addition, the de novo assessment of civil penalties does not
require “that equal weight must be assigned to each of the penalty assessment
criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). However,
when a penalty determination “substantially diverge[s] from those originally
proposed, it behooves the . . . judge[] to provide a sufficient explanation of
the bases underlying the penalties assessed.” Spartan Mining, 30 FMSHRC at 699.
Otherwise, without an explanation for such a divergence, the “credibility of
the administrative scheme providing for the increase or lowering of penalties
after contest may be jeopardized by an appearance of arbitrariness.” Sellersburg,
5 FMSHRC at 293.

As Senior Judge
Zielinski recently explained in American Coal Co., 35 FMSHRC ___, slip op at
54-55, No. LAKE 2008-666 (May 19, 2014), the purpose of explaining significant
deviations from proposed penalties is to avoid the appearance of arbitrariness.
See Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984). Similarly situated operators, determined to be liable for
violations with similar gravity, negligence and other penalty criteria, ideally
should be assessed similar penalties. Absent some guideline, however, a judge
has no quantitative reference point to aid in specifying a penalty within the
current statutory/regulatory range of $100 to $70,000. The Secretary’s
regulations for determination of a penalty amount by a regular or special
assessment, 30 C.F.R. §§ 100.3, 100.5, take into consideration the statutory
factors that the Commission is obligated to consider under section 110(i) of
the Act. The product of these assessment formulae provide a useful reference
point, which promotes consistency in the imposition of penalties by Commission
judges. See Magruder Limestone Co., 35 FMSHRC 1385, 1411 (May 2013) (ALJ)
(regular assessment regulations provide a helpful guide for assessing an
appropriate penalty that can be applied consistently).

Accordingly, in
determining penalties for the litigated violations, the penalty produced by
application of the Secretary’s assessment formula will be used as a reference
point, and adjusted depending on the particular findings with respect to the
statutory penalty criteria. The tables and charts in the regulations provide a
limited number of categories for some factors. For example, the table for
operator’s negligence consists of five gradations, ranging from “No negligence”
to “Reckless disregard.” 30 C.F.R. § 100.3(d). In reality, however, the degree
of an operator’s negligence will fall on a continuum, dictating that
adjustments will generally be required. Other unique circumstances may dictate
lower or higher penalties. Violations involving extreme gravity and/or gross
negligence, or other unique aggravating circumstances may dictate substantially
higher penalty assessments. A party seeking a reduced or an enhanced penalty
must assume the burden of producing evidence sufficient to justify any
requested adjustment.

Where the Secretary
urges a penalty higher than that derived by reference to the assessment process
set forth in 30 C.F.R. § 100.3, he will have the burden of establishing the appropriateness
of the higher penalty, based upon the statutory penalty criteria. The
undersigned recognizes that the Secretary has developed, pursuant to his
authority under 30 C.F.R. § 100.5, a process for the special assessment of
proposed penalties. MSHA, Office of Assessments, Accountability, Special
Enforcement & Investigations, Special Assessment General Procedures (Sep.
7, 2011), http://www.msha.gov/PROGRAMS/assess/SpecialAssess/
Special Assessments2011.pdf. These procedures, however, have not been codified
as binding regulations, and thus, have not been subject to notice and comment
rule making, unlike the normal assessment procedures in section 100.3. Where
the Secretary has provided adequate documentation of how he determined the
specially assessed penalty and is able to demonstrate the appropriateness of
proposing a specially assessed penalty, the guidance in the General Procedures
may also provide a helpful guide for assessing an appropriate penalty.

The Secretary has
proposed a total penalty of $274,153 for the twelve citations/orders remaining
at issue. For the reasons explained herein, I assess a total penalty of
$116,622.

III.  Stipulated Facts

The parties
stipulated to the following facts at hearing.

1.         At
all times relevant to these proceedings, Respondent was engaged in underground
bituminous coal mining operations at Willow Lake Portal (Mine ID 11-03054) in
Equality, Illinois.

2.         Respondent’s
mining operations affect interstate commerce.

3.         Respondent
is subject to the jurisdiction of the Federal Mine Safety and Health

Act of
1977. 30 U.S.C. §§ et seq. (the “Mine Act”).

4.         Respondent
is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803 (d), at
Willow Lake Portal where the Citations being contested in the proceedings were
issued.

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

6.         The
parties stipulate to the authenticity of their exhibits, but not to the
relevance or truth of the matters asserted therein.

7.         The
individuals whose signatures appear in Block 22 of the Citations at issue in
these proceedings are all authorized representatives of the United States
Secretary of Labor, assigned to MSHA’s Benton, Illinois and St. Clairsville,
Ohio Field Offices at the time of the inspections at issue. All six inspectors
were acting in official capacity when the Citations at issue were issued.

8.         The
Citations at issue in these proceedings were properly served upon Big Ridge,
Inc. as required by the Mine Act.

9.         The
Citations at issue in these proceedings may be admitted into evidence for the
purpose of establishing their issuance, but not for the truthfulness or
relevancy of any statements asserted therein.

10.       The
proposed penalties will not affect Respondent’s ability to remain in business.

11.       The
certified copies of the MSHA Assessed Violations History reflect the history of
the citation issuance at the mine for fifteen months prior to the date of the
Citations and may be admitted into evidence without objection by Respondent.

12.       The
operator demonstrated good faith in abating the violations.

13.       Big Ridge,
Inc. is a large operator and Willow Lake Portal is a large mine.

14.       The
parties have settled Docket LAKE 2011-349; and citations from Docket LAKE
2012-174, LAKE 2012-175, LAKE 2012-262 and LAKE 2012-263. The specific terms
are outlined in Joint Exhibit 2.

Jt. Ex. 1; see also Tr. 11-12.

IV.  Factual Background

Respondent operates
the Willow Lake Portal Mine (“WLPM”), an underground, bituminous coal mine,
located in Equality, Illinois. Jt. Ex. 1, para 1; Tr. 30-33. The coal is mined
via perimeter or room and pillar mining. Jt. Ex. 1; Tr. 434. The mine is large
and made up of miles of belt and air courses. Several MSHA inspectors work on a
regular basis for about three months to complete each quarterly inspection. Jt.
Ex. 1; Tr. 31-32.

WLPM is a “gassy”
mine and liberates in excess of 1,000,000 cubic feet of methane every 24 hours.
Inspectors regularly travel the mine to perform five-day spot ventilation
inspections. Tr. 31, 510.

At material times
herein, the WLPM operated on three shifts. The day shift ran from 7:00 a.m.
until 3:00 p.m. The afternoon shift started at 3:00 p.m. and ended at 11:00
p.m. The midnight or graveyard shift started at 11:00 p.m. and continued until
7:00 a.m. Tr. 150-51.

WLPM has a
significant history of roof falls and the inspectors in this case had knowledge
that a number of unintentional roof falls had occurred before their
inspections. Tr. 188-89, 207, 326-27, 330-31; P. Exs. 28-30, 61. Three of the
citations at issue concern alleged roof control violations of §§ 75.202(a),
75.202(b) and 75.220(a)(1). They were designated as S&S violations, with
high or moderate negligence. Two of these three citations were issued in August
2010 by inspector James Preece and one was issued in June 2011 by inspector
James Rusher. The timing is significant because of WLPM’s recent history of
roof control problems and because MSHA repeatedly notified Respondent that it
needed to make greater efforts to comply with roof control standards after it
implemented its Rules To Live By (“RTLB”) program in March 2010. Tr. 193-94; P.
Ex. 26. The RTLB fatality prevention program specifically included sections
75.202 and 75.220(a)(1), the first two standards on the list. Tr. 193-94; P.
Ex. 26.

MSHA inspectors
specifically discussed the RTLB program and Respondent’s need to comply with
the roof control standards with Respondent’s management at closeout meetings
immediately prior to the roof control citations at issue. P. Exs. 28-29; Tr.
62-63, 192-93. The first closeout meeting occurred on March 29, 2010. The
closeout document that was circulated gave Respondent the following notice:

Better focus on the
“Rules To Live By” standards especially since MSHA is holding the mine operator
more accountable for violation of the identified standards with stronger
enforcement. P. Ex. 28, at 3; Tr. 192-93. The document indicates that section
75.202(a) was cited twenty-one times and section 75.220(a)(1) was cited ten
times that quarter. P. Ex. 28, at 17. Thereafter, the June 2010 closeout
document indicated that roof control violations had decreased that quarter, but
gave the same notice regarding enhanced enforcement under the RTLB program. P.
Ex. 29, at 2-3.

Inspector Preece
found several roof violations in August 2010. Preece issued Citations Nos.
8030991 and 8030992 alleging violations of § 75.220(a) and § 75.202(b),
respectively. See P. Exs. 4, 6. The day before he issued said citations, Preece
issued two other roof control citations, one for violation of §75.220(a) and
one for violation of § 75.203(e)(2). R. Ex. 85, at 14; Tr. 237-45.

Thereafter, on September
24, 2011, another closeout meeting occurred. P. Ex. 30. The closeout document
indicated that twenty-five citations were issued for section 75.202(a)
violations during the quarter. It further stated:

Roof and Ribs - roof
control violations are high here. Problems need to be addressed before we have
to take care of them.

P. Ex. 30, at 9.

For the inspection
quarter from July through September 2010, there were twenty-five section
75.202(a) violations, the second most violated standard at the mine that
quarter. P. Ex. 30, at 5. Furthermore, Respondent was aware that its mine had a
significant history of roof falls and falling rock in draw rock areas. Between
February and August 2010, Respondent reported six roof falls that resulted in
injuries and several others that were reported as accidents without injury. P.
Ex. 61.

On June 24, 2011,
inspector James Rusher issued one of the roof control citations at issue,
Citation 8427546, alleging a violation of § 75.202(a). P. Ex. 21. The record
establishes that 140 section 75.202(a) citations were served on Respondent in
the two years prior to June 24, 2011. Id.; Tr. at 328, 346. Furthermore, in the
six months prior to the citation issued by Rusher in June 2011, nine reportable
roof falls resulted in two injuries. P. Ex. 61.

The record also
establishes that Respondent had significant problems with accumulations, as
evidenced by recurring citations, orders, and discussions with MSHA personnel. In
the two years prior to Preece’s August 2010 inspections, Respondent was cited
for 299 violations of § 75.400. P. Ex. 1; Tr. 66. Although the March 2010
closeout conference noted a reduction in

§ 75.400 citations, the June 2010
closeout conference notes emphasized that § 75.400 violations had increased
again and needed improvement. See P. Exs. 28-30. Even after Preece issued
104(d)(2) Order No. 8030700 on August 2, 2010. Section 75.400 was the most
cited violation for the third quarter that year. P. Ex. 30.                         V.
 Findings of Fact and Conclusions of Law

A.        Roof Control Citations
Nos. 8030991, 8030992, and 8427546

1.         Citation
No. 8030991

Respondent does not
challenge the violation of section 75.220(a)(1) alleged in Citation No. 8030991
for failure to follow the MSHA-approved roof control plan. R. Br. 26. Rather,
Respondent challenges the gravity, S&S, and high negligence findings and
the appropriateness of the specially assessed $47,700 penalty. I affirm the
violation, as written, but reduce the negligence to moderate and reduce the
specially assessed penalty from $47,000 to $14,700.

a.         The
Alleged Violation

During an E01
inspection on August 4, 2010, inspector Preece, accompanied by Respondent’s
safety and compliance manager, Bob Clarida, issued Citation No. 8030991 for a
violation of 30 C.F.R. § 75.220(a)(1). Tr. 173-74; P. Ex. 4. Preece determined
that Respondent was not following the MSHA-approved roof control plan because
the fender (block of coal) between the #8 and #9 perimeter cuts on unit 5
measured five-feet three-inches wide, instead of the six-foot width required in
the plan. P. Ex. 4, P. Ex. 5, at 24; Tr. 192, 266. Accordingly, Preece wrote
Citation No. 8030991 alleging the following unlawful condition or practice

The approved roof
control plan page 24 was not being complied with on the 005/005 section. The
fender left between the No. 8 and No. 9 perimeter (3+25) cuts measured 5’3”. Visible
footprints were observed where a miner had traveled behind the barricade as
referenced in citation 8030991 . . . .

P. Ex. 4.

Preece determined that
the violation contributed to the hazard of a roof fall, which was reasonably
likely to cause an injury because miners were traveling in areas that had been
mined, but not supported properly. P. Ex. 4; Tr. 178, 186, 200. Preece
determined that the most likely injury would be a fatal, crushing injury from a
roof fall. P. Ex. 4; Tr. 187. Preece also determined that one person would be
affected because ten to twelve people were actively working on the section, and
there were fresh, visible footprints in the area. P. Ex. 4; Tr. 184, 200.

b.  Positions
of the Parties

Respondent argues
that the Secretary adduced no evidence to demonstrate a reasonable likelihood
of a serious injury based on the nine-inch deviation from the plan requirement
that the front of the fender be six feet wide. R. Br. 28 (citing P. Ex. 5, at
24; P. Ex. 8). Respondent also argues that there is no evidence that the cited
condition adversely affected the immediate roof in the area. Rather, Respondent
relies on Clarida’s testimony that the narrow fender did not compromise roof
control, and the roof condition in the area looked “pretty good, normal.” Respondent
also relies on Preece’s acknowledgment that there were no problems with the
roof bolts, and on compliance manager Todd Grounds’ testimony that roof bolts
with cables attached were installed before the continuous miner made perimeter
cuts. R. Br. 28; Tr. 222, 264-65, 276.    

In addition,
Respondent claims that there was no exposure to the condition. R. Br. 29. Respondent
notes that the perimeter cuts that created the fender were complete. Id.
(citing Tr. 276). According to Respondent, the supplemental roof support would
have been removed from the “fresh air side” of the fender. Therefore, the
continuous miner operator would not have been exposed to the fender while
removing supplemental support. Id. (citing Tr. 265). Respondent further notes
that after the cut, the area around the fender was barricaded, and there was no
reason for anyone to pass by that area. Id. (citing Tr. 276, 291). Although
Preece testified that “[if] you don’t follow the roof control plan, over time
it’s going to deteriorate and come out as well.” Tr. 212. Respondent argues
that “over time,” there would be no exposure because the immediate area around
the fender was barricaded and the entire set of rooms was barricaded at the
mouth, when completed. R. Br. 29 (citing Tr. 259-60).

Preece designated the
violation as S&S because he believed that there was travel through the area
after the fender was created based on visible footprints behind the barricade. Tr.
184; P. Ex. 4. In response to a leading question suggesting that the footprints
were fresh, Preece testified that the footprints were fresh because the day
before there had been rock dusting citations issued, and the footprints were
visible in the fresh rock dust. Tr. 199. Respondent argues that Preece was
mistaken because the Certified Violation History Report shows that no citation
was issued on August 3, 2010 for a violation of section 75.400 or 75.403, each
of which would require rock dusting for abatement purposes. R. Br. 30, n.17
(citing P. Ex. 63). In addition, because the footprints went straight through
and not around the barricade, Respondent disputes any travel through the area
after the perimeter cuts were made. R. Br. 30 (citing Tr. 279-80).

Respondent further
argues that even if travel past the fender occurred, the Secretary has failed
to establish that the nine-inch deviation in fender width resulted in a roof
condition that posed a reasonable likelihood of serious injury. Respondent
relies, in part, on ALJ decisions applying section 75.202(a), which delete
S&S determinations based on the unlikelihood that two specific events will
occur simultaneously, i.e., a rock will fall from the roof while a miner is
directly underneath it. R. Br. 29, n. 16 (citing Ohio County Coal Co., 31
FMSHRC 1486, 1489 (Dec. 2009) (ALJ); Freedom Energy Mining Co., 32 FMSHRC 1809,
1829 (Dec. 2010) (ALJ)). Respondent argues that Preece’s own actions undercut
his determination that the width of the fender posed any serious hazard because
Preece placed himself at the fender to measure it and travel past it. Id.
(citing Tr. 176-77). Finally, Respondent argues that Preece’s attempt to link
the purported travel past the fender to exposure to unsupported top should be
discounted because Preece followed the footprints “till they ended” and he
never traveled under unsupported roof. R. Br. 30-31 (citing Tr. 197, 198,
223-24). Therefore, Respondent concludes that the route of travel past the
narrow fender did not place anyone under unsupported top. R. Br. 31.

The Secretary relies,
in part, on a fatalgram from MSHA’s website that involved the death of a miner
caused by a roof fall in a mine with a similar roof. P. Ex. 31, at 2; Tr. 211. The
fatalgram states that the roof at issue was “gray shale and sandstone with
intermittent siltstone and carbonaceous shale deposits.” P. Ex. 31, at 2; Tr.
at 211. Preece testified that the roof at WLPM is similar since black shale and
limestone are present. Tr. at 211. The fatalgram investigation established that
the mine was not following its roof control plan and a rock – measuring 89
inches long by 45 to 54 inches wide by one to four inches thick – broke in two
pieces when it struck the victim. P. Ex. 31, at 1; Tr. 211. As noted, Preece
testified that when a mine does not follow its roof control plan, the roof will
deteriorate over time and material will come loose from the roof. Tr. 211.

Respondent counters
that the roof control plan violation in the fatalgram involved a West Virginia
mine where thirty-five bolts exceeded the four-foot spacing requirement in the
rock-fall area. It did not involve the width of a fender during perimeter
mining. Respondent argues that the instant violation involves different
requirements for different mining practices, and is not the least bit similar. R.
Br. 32-33. Further, Respondent argues that none of the roof falls that occurred
at WLPM between October 2009 and October 2011 (see P. Ex. 61) resulted from a
fender that was less than six feet in width. Therefore, Respondent argues that
the fatalgram is immaterial. Id.

c.         Legal
Analysis

I find the violation
to be S&S. I credit the testimony of Preece, an experienced underground
coal inspector, over contrary testimony from Clarida, that the violation of the
mandatory standard created a measure of danger to safety because the
non-compliant fender contributed to the hazard of a roof fall that was
reasonably likely to result in a serious injury. Tr. 212. Specifically, Preece
testified that in his experience a roof fall is “very likely . . . if you don’t
support the roof, the roof will fall . . . it has no support . . . over time
it’s going to deteriorate and come out . . .” Tr. 212. Although Respondent
relies on Clarida’s testimony that no one was exposed to the noncompliant
fender because the barricades were up and no one was supposed to be in that
area after the cut (Tr. 276), I find that a miner was in the area based on the
visible footprints that Preece observed, and that other miners were likely to
be in the area and exposed to the noncompliant fender during required
examinations.

I also emphasize that
the instant record establishes an ongoing likelihood of roof falls at WLPM. Tr.
178, 190, 206-07. Using Petitioner’s Exhibit 61, Preece highlighted the
multitude of roof falls at WLPM in the six months prior to his inspection. P.
Ex. 61; Tr. 202. The MSHA District Office considers such history when a roof
control plan is approved, and there are no exceptions to the fender-length
requirement. Tr. 174. The standard requires development of a roof control plan
that “is suitable to the prevailing geological conditions and the mining system
to be used at the mine.” MSHA determined that the geological conditions and the
room and pillar mining system used at WLPM required the fender to be six or
more feet wide at the front. It was nine inches too narrow.  

Grounds, Respondent’s
compliance manager, conceded that the roof control measurements that Respondent
agreed upon and MSHA approved are important and should be as precise as
possible. Tr. 267-68. Respondent’s other witnesses also conceded that
Respondent must comply with the specific requirements of its MSHA-approved roof
control plan. Tr. 286, 292. In these circumstances, particularly in light of
Respondent’s recent history of roof falls, I conclude that during continuous
mining operations, it was reasonably likely that the noncompliant fender would
contribute to a hazard of another roof fall that would result in serious
injury.

I further find that
Respondent’s negligence should be reduced from “high” to “moderate.” Per
regulation, high negligence occurs when an operator knew or should have known
of the violation, and there are no mitigating circumstances. 30 C.F.R. § 100.3,
Table X. Respondent presented evidence that the continuous miner operator, an
hourly employee, was responsible for taking the cuts that created the narrow
fender, and that the section foreman or shift leader was only responsible for
marking where the cuts were to be taken. Tr. 265, 289. In addition, Respondent
presented evidence that the section foreman or shift leader would have limited
opportunity to observe the narrow fender because a barricade was installed
right after the cut was made and no one would travel past that point. Tr. 276,

283. In these circumstances, I find that Respondent has raised sufficient
     mitigating circumstances to reduce negligence from high to moderate. See Excel
     Mining LLC, 497 F. App’x 78, 79 (D.C. Cir. 2013) (if no mitigating factors
     exist, the violation is attributable to high negligence; otherwise, the
     inspector must find moderate, low, or no negligence).

The Secretary
justified a special assessment in this matter, particularly given Respondent’s
history concerning roof control violations and the Rules to Live By notice. Tr.
242-44, 246. Guided by the criteria set forth in § 100.3(a) and the Special
Assessment General Procedures, I assess a penalty of $14,700.  

2.         Citation
No. 8030992

The Secretary argues
that Respondent violated § 75.202(b) when a miner traveled under unsupported
roof in a previously mined area, and that such violation was significant and
substantial, reasonably likely to be fatal, and resulted from moderate
negligence. P. Br. 24. Respondent argues that it did not violate the standard
because no miner worked or traveled under unsupported top. R. Br. 42. Respondent
also challenges the S&S and moderate negligence designations and the
appropriateness of the specially assessed $13,600 penalty. I affirm the
violation, reduce negligence from “moderate” to “no negligence,” reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely,” and
delete the significant and substantial designation. Based on said
modifications, I decline to be guided by the Secretary’s special assessment of
the proposed penalty, and assess a penalty of $162.

a.         The
Alleged Violation

Near the cited
fender, Preece observed fresh footprints in rock dust that he traced back to a
previously mined-out perimeter area until they turned and ended at the corner
mouth of an old set of unbolted rooms (return) where a miner had gone to the
bathroom under unsupported roof on fresh rock dust. Tr. 196-200; P. Ex. 8. Preece
cited Respondent for a violation of § 75.202(b), which states that “[n]o person
shall work or travel under unsupported roof unless in accordance with this
subpart.” The alleged unlawful condition or practice states:

Visible footprints
were observed where a miner had traveled behind the barricade located on the
005 section, No.1 room entry, 04+00 and between the Nos. 7 and 8 perimeter cut
which was not supported. The miner traveled through the bleeder in the
previously cut set of rooms to relieve them self . . . .

P. Ex. 6.

Preece designated the alleged
violation as S&S after determining a reasonable likelihood that standing or
squatting under unsupported roof to relieve oneself would result in a crushing
or fatal injury from the hazard of a roof fall. Tr. 200-01; P. Ex. 6. Preece
designated negligence as moderate, but did not know whether a rank-and-file
miner or a member of management was responsible for the excrement. Tr. 216-17. When
asked whether management should have been aware of the alleged violation,
Preece responded, “I would hope so, because management controls the workforce
on the section where people work and travel.” Id.

On cross examination,
Respondent established that the entries in the old set of rooms were bolted. Tr.
225, 234. Respondent also established that when Preece was a foreman, members
of his crew would take certain action unbeknownst to him. Tr. 228.

On redirect, however,
Preece reaffirmed that there was no support on the corner of the old perimeter
mining area where the miner went to the bathroom. “There is no support at all
there.” Tr. 250-51.

Respondent’s
compliance manager Grooms and safety representative Clarida testified that all
entries and crosscuts in the rooms were bolted. Tr. 259, 282. In addition,
Clarida contradicted Preece and testified that “the evidence of the person
relieving themselves was under supported roof.” Tr. 283. When asked by the
undersigned why this was so, Clarida testified, “well, you can look up and see
there’s roof bolts in the roof. It’s supported.” Tr. 285.

Both Preece and
Clarida confirm that they never traveled under unsupported roof. Tr. 197, 223,

282. Clarida, however, testified that when he observed the excrement, he stood
     only a foot away from it. Tr. 285. 

On rebuttal, Preece
was shown his notes for the instant citation. Tr. 298-99; P. Ex. 7. Page 8 of
his notes state:

1) 1820

2)
Visible footprints were observed in the number 1 entry and through the
barricade into the previous cut set of rooms to relieve themself. The Miner
traveled by the No. 7               & 8 perimeter cut that was unsupported.

3)
005/005 Section, No. 1 entry 4+00 bleeder

4)
Foreman was not aware that a miner traveled through the area

5) from
the previous shift

6) 1
miner traveling through the area to relieve themself

7) Crushing
injuries

8)
unsupported (illegible) 7-8

9)
Visible footprints

b.         Legal
Analysis           

In resolving the
credibility conflict between Preece and Clarida as to whether the excrement was
under supported or unsupported roof, I credit Preece’s testimony in direct
response to questioning from the undersigned and find that someone went to the
bathroom under unsupported roof in fresh rock dust. Tr. 200, 250-51; P. Ex. 8;
see also P. Ex. 5, at 24 (showing that about ten feet in the corner of the
entry of the perimeter mining area was unsupported).

I reverse Preece’s
S&S determination. Preece’s testimony suggests that it was not a regular
practice for miners to relieve themselves under unsupported top. Rather, it was
common practice was to do so under supported top. Tr. 300-01. I find that the
instant violation was a brief aberration, and the hazard contributed to by the
violation was not reasonably likely to result in an injury given the limited
exposure and the unlikelihood that a rock would fall during such brief
exposure. Cf., Ohio County Coal, 31 FMSHRC at 1489; Freedom Energy, 32 FMSHRC
at 1829 (deleting S&S designation for a violation of section 75.202(a) “in
light of the uncertainty of a potentially injury-causing event and limited
presence of miners in the subject area”). Accordingly, I find that the third
prong of the Mathies test was not established.

The Secretary argues
that I should uphold Preece’s moderate negligence determination. Although
Preece could not determine if a miner or management was traveling under
unsupported roof, the Secretary argues that management either knew or should
have known that workers were traveling in unsupported areas. P. Br. 28. I
disagree. Preece specifically testified that management should have known of
the violation because management controls the workforce on the section where
miners work and travel. Tr. 217. But Preece’s inspection notes indicate that
the “[f]oreman was not aware that a miner traveled through the area.” P. Ex. 7,
at 3. As noted, Preece could not determine whether the miner who relieved
himself in the old set of rooms was an agent of the operator. Tr. 216. Since
the negligence of an hourly employee cannot be imputed to the operator for
purposes of a negligence designation, and the foreman was not aware of the
violation, which represented a brief aberration from regular practice, I find
that the Secretary has failed to establish any level of operator negligence.

The Secretary failed
to justify a special assessment in this matter, and particularly failed to
establish that multiple citations were issued for the same violation, as Preece
testified. Tr. 242. Guided by the regular assessment criteria set forth in §
100.3 and my findings above, I assess a penalty of $162. 

3.         Citation
8427546

The Secretary argues
that there was a S&S violation of section 75.202(a) resulting from high
negligence because five pattern roof bolts and plates had separated from the
roof causing de-lamination and increasing the pressure on surrounding bolts to
support more weight than intended. P. Br. 29. Respondent does not challenge the
violation, but challenges the gravity, S&S, and high negligence findings
and the appropriateness of the specially assessed $50,700 penalty. I affirm the
violation, as written, and the specially assessed penalty of $50,700.

a.         The
Alleged Violation

On June 24, 2011,
inspector James Rusher was traveling the No. 2 room haulageway, where
steel-canopied haulers transport coal from face to feeder. P. Ex. 21; Tr. 314. Respondent’s
section supervisor and safety representative, Crit Stephenson, accompanied
Rusher. Tr. 370-71.

Rusher noticed five
pattern roof bolts that had been dislodged by mobile equipment, three in one
place (tag No.0+65) and two more just a few feet away (tag No.1+95), which was
causing separation and de-lamination in the immediate roof. P. Ex. 21; P. Ex.
22, at 9; Tr. 314. Rusher cited Respondent for a violation of § 75.202(a),
which states, “[t]he roof, face and ribs of areas where persons work or travel shall
be supported or otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts.” P. Ex. 21; Tr. 315.  

All five plates were
loose, which caused causing sagging or de-lamination of the roof in those
areas. Tr. 316-17, 320-22. Rusher explained that when the bolts and plates
became loose, layers of the roof began to separate, and support for the
immediate roof was compromised by strain on the surrounding bolts. Tr. 314-17,
318, 322. Although Stephenson testified that he did not notice any
de-lamination and that Rusher did not point it out (Tr. 378-79), I credit
Rusher’s specific description of the de-lamination, which was obvious after
rock dusting, and made the roof unsafe because it put greater load on the
surrounding bolts and would likely result in a roof fall. Tr. 316-22; 344. Rusher’s
testimony concerning the de-lamination is corroborated by Rusher’s inspection notes.
P. Ex. 22, at 9. Rusher further credibly testified that the face boss had to
travel through that particular intersection to check on the face for methane
every twenty minutes, and should have detected the condition. Tr. 334, 365.

I also agree with
Rusher’s S&S determination because the violation contributed to a specific
roof-fall hazard that was reasonably likely to result in a serious or
permanently disabling injury to two miners, i.e., a coal haul operator and a
supervisor making rounds or checking faces, in the heavily traveled haulageway.
P. Ex. 21; Tr. 322-330. Although Rusher noted that the roof conditions were
solid (P. Ex. 22, at 6) and Stephenson testified that the roof looked fine (Tr.
372, 381), I find that the number of dislodged roof bolts in the pattern and
the de-lamination of the roof in the immediate area contributed to a discrete
roof fall hazard because during the course of continued mining operations, the
other surrounding bolts would not support the weight of the roof. A roof fall
across the compromised area would likely crush even those traveling in a covered
canopy. Furthermore, Respondent has a remarkable history of roof falls even
with fully grouted bolts. P. Ex. 61; Tr. 380-81. Accordingly, I affirm the
gravity and S&S findings.

I also affirm
Rusher’s high negligence determination because Respondent knew or should have
known about the violation, and there are no mitigating circumstances. As
outlined above, there were many roof falls and roof-control issues at WLPM. P.
Exs. 28-30, 61. Respondent was aware of MSHA’s warnings regarding increased
enforcement, particularly in light of the closeout conferences and enhanced
emphasis on §§ 75.202(a) and (b) in the RTLB program. There was constant
traffic in the haulageway. Tr. 325, 334. I have found that rock dusting made
the separated bolts and plates and the concomitant de-lamination obvious. The
face boss traveled through the intersection every twenty minutes and should
have detected and corrected the condition. In these circumstances, and in the
absence of any mitigating circumstances, I find that the violative condition
resulted from Respondent’s high negligence.

The Secretary
justified a special assessment in this matter, particularly given Respondent’s
history concerning roof control violations, the Rules to Live By notice, and
Rusher’s testimony that this was an active haulageway, with five roof bolts
dislodged and extensive de-lamination. Tr. 242-44, 246, 360. Guided by the
criteria set forth in § 100.3 and the Special Assessment General Procedures as
set applied in the Special Assessment Narrative Form (R. Ex. 58), I assess a
penalty of $50,700.

B.        Accumulations of
Combustible Material Order No. 8030700 and Citation Nos. 8428798, 8428776, and
8436403

1.         Order No.
8030700

The Secretary argues
that Respondent violated section 75.400 because accumulations of combustible
material were amassed in two different crosscuts, and although the non-S&S
violation was unlikely to lead to a lost workdays or restricted duty injury, it
was an unwarrantable failure resulting from high negligence. Respondent
specifically challenges the unwarrantable failure and high negligence findings
and the specially assessed $8,400 proposed penalty. As explained below, I find
the non-S&S violation, reduce Respondent’s negligence to moderate, reverse
the unwarrantable failure finding, and assess a penalty of $500. 

a.         The
Alleged Violation

On August 1, 2010,
when inspector Preece and miner/union representative Rodney Shires were exiting
the mine in a diesel vehicle driven by Respondent’s mine manager, Roby
Podoriscki, Preece asked, “[w]hat is that in the crosscut?” Tr. 68. Preece
testified that he received a response that it was roadway gob or something to
that effect, but he did not identify who gave that response. Tr. 68-69. Rodney
Shires did not testify. Given the noise of the diesel engine and Podoriscki’s
denial that he had such a conversation or heard any such conversation between
Preece and Shires, the Secretary failed to establish that Podoriscki knew about
the conditions on August 1, 2010. See Tr. 88-89, 100-104.

On August 2, 2010,
inspector Preece, accompanied by Respondent’s safety representative Shane
Kendall and miner/union representative Rodney Shires, rode to crosscut 107 in
the 5D travel road where Preece had noticed accumulations the prior day while
exiting the mine. Tr. 33-37, 60, 116-17, 119. Preece issued 104(d)(2) Order No.
8030700 for accumulations of combustible material. The alleged accumulations
consisted of a mix of combustible and non-combustible materials, consisting of
wood, coal mixed with mud or stone, roadway material such as fire clay, gob of
rock and mud, crushed up oil cans that still had oil in them, roof bolts, glue
and plates, and other refuse, such as rock dust bags. The materials were piled
up in two locations about 300 feet apart in the 107 and 109 crosscuts on the 5D
travel road. The alleged accumulations in the 107 and 109 crosscuts where piled
four feet high and covered an area of 10x20 feet and 8x15 feet, respectively. Tr.
35-37, 47, 78, 122-125; P. Ex. 1-3; R. Exs. 81(c)-(f).

The Order states:

Accumulation
of combustible materials were allowed to accumulate in the No. 6 to No. 5 entry
crosscut, 5 “D” Travel road. Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible materials (wood and
paper) were not being cleaned up and permitted to accumulate. The following
conditions existed:

1.) 107
crosscut, 80+70, Combustible material mixed with roadway material, gob and coal
from sloughage of the rib existed next to the stopping measuring 10 feet in
length, 20 feet in width and 4 feet in height.

2.) 109
crosscut, Combustible material mixed with roadway material, gob and coal from
sloughage of the rib existed next to the stopping measuring 8 feet in length,
15 feet in width and 4 feet in height.

Upon
interviews with Mine Management, management stated that the condition was
obvious and extensive, has existed for over 24 hours and has a history of
accumulation violations (299 in the previous 24 months) and Mine management was
in the area of the accumulations on all shifts.

P. Ex. 1. Preece testified that
his concern was that the accumulations had not been rock dusted properly,
although there was some rock dust underneath the piles. Tr. 46-47.

Preece designated the
alleged violation as non-S&S after determining that the hazard of fire or
propagation of an explosion was unlikely because of the location of the
material in the crosscuts and the fact that no vehicles were running over the
coal present in the piles, the coal was not raised in suspension, and other
areas of the mine were adequately rock dusted. P. Ex. 1; Tr. 42, 45-46, 89. If
a fire or explosion were to occur, however, Preece determined that the likely
injury would be lost workdays or restricted duty to one person due to smoke
inhalation. P. Ex. 1; Tr. 46.

Preece determined
that Respondent’s negligence was high because the condition had existed for at
least three shifts, and prior to Preece’s inspection the previous day, Rodney
Shires had confirmed this. Tr. 43-45, 60-61, 67; P. Ex. 2, at 3. Preece also
testified that management must have known of the conditions because “someone
gave orders for someone to clean up these roadways and put this material in
certain locations.” Tr. 43.

Preece further
determined that the alleged violation was an unwarrantable failure because
management should have known that the condition existed, it was present for
more than three shifts, it was obvious and extensive, and it was not rock
dusted to ensure inertness. Tr. 66-67.

Respondent argues
that the condition was not extensive or obvious, existed for an indeterminate
period of time, and did not pose a high degree of danger to miner safety. Respondent
further argues that the operator had no specific knowledge of the alleged
violation and had not been placed on notice that greater efforts for compliance
with the standard were necessary.

To abate the
conditions, Preece required the material to be rock dusted, but not removed
from the mine. Tr. 71, 76-77. After rock dusting, Respondent’s third-shift
safety manager, Andy Murphy, took a zip-lock bag sample of each pile of
material by scraping off the rock dust and reaching six to eight inches into
each pile to obtain the samples. Tr. 143-45. Preece did not observe the
sampling. Tr. 72.

Murphy testified that
in each sample, he obtained gob or real soft material, which likely originated
from the travel road. Tr. 146, 150. Each sample was labeled and given to
Respondent’s compliance manager, Todd Grounds, who delivered them that same day
to Standard Lab for analysis. Tr. 150, 157.

The sample taken from
crosscut 107 was determined to be 66.12% incombustible. The sample taken from
crosscut 109 was determined to be 72.71% incombustible. Tr. 157-58; R. Ex. 82. During
this time, both samples met section 75.403’s incombustibility requirement for a
travel road, which was 65%, but has since been increased to 80%. Tr. 158-59.

The Secretary argues
that combustibility tests are only performed in section 75.403 violations and
are irrelevant to section 75.400 violations. P. Br. 37. Also, even if relevant,
the Secretary argues that Respondent’s tests would not have passed under
today’s standards. P. Br. 37-38; (citing Tr. 157). Finally, the Secretary notes
that the samples were not band samples, and they were not taken or handled by
anyone with training in sampling for incombustibility determinations. P. Br. 38
(citing Tr. 163).

Mine manager Roby
Podoriscki testified that the roadway bottoms primarily consist of fireclay, a
soft noncombustible substance. Tr. 108. He further testified that the practice
of scooping up gob from the travel roads and pushing it into the crosscuts was
common practice at WLPM and at four or five other Illinois mines where he had
worked. Further, Podoriscki had never received, nor was he aware of, any
citations for this practice. Tr. 107-08. Similarly, prior to the issuance of
the Order, MSHA had never warned or cited WLPM for this practice. Tr. 107.

b.         Legal
Analysis           

To the extent that Respondent’s
brief can be read as challenging the violation, I affirm inspector Preece’s
finding of a non-S&S violation. Section 75.400 provides that “[c]oal dust,
including float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered and electric equipment
therein.” The record establishes that loose coal, crushed oil cans, wood and
other combustible material, mixed with non-combustible material were allowed to
accumulate in two large piles about 4 feet high, 20 feet wide, 10-15 feet long,
and about 300 feet apart in the 107 and 109 crosscuts on the 5D travel road for
over three shifts.

The Commission has
held that a “construction of the standard that . . . allows accumulations of
loose coal mixed with noncombustible materials, defeats Congress’ intent to
remove fuel sources from mines and permits potentially dangerous conditions to
exist.” Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985); but see
Lion Mining Co., 19 FMSHRC 651, 656 (Mar. 1977) (ALJ) (vacating 104(d) order
alleging that gob material was an accumulation and concluding that section
75.403 is the appropriate standard to address the potential hazards associated
with combustible material in gob). In this case, the Secretary has interpreted
the standard consistent with Black Diamond, supra, and I give deference to the
Secretary’s reasonable interpretation consistent with Commission precedent. Accordingly,
I affirm the non-S&S violation.

I reduce Respondent’s
negligence to moderate. The Respondent should have known of the violation, but
there are mitigating circumstances for Respondent’s failure to clean up the
accumulations. Irrespective of mine manager Podoriscki’s denial that he knew
about the conditions until after issuance of the Order (Tr. 104) and Preece’s
speculation that management must have directed the workforce to push the
materials in the crosscuts (Tr. 72), I credit and rely on Preece’s testimony
that examinations on the roadway are done by agents of the Respondent three
times daily. Tr. 70. Thus, Respondent’s examiner agents should have known about
the accumulations.

Respondent, however,
presented credible evidence of mitigating circumstances. The accumulations were
significantly composed of gob laced with debris and were pushed deep into
crosscuts to clear the travel roads. Respondent presented evidence that this
was a common practice at Willow Lake and in the Illinois Basin and Respondent
had not been cited by MSHA before for this practice. Further, both of
Respondent’s samples exceeded incombustibility requirements for when rock
dusting was required. Moreover, MSHA required rock dusting to abate the
violation. Accordingly, I reduce Respondent’s negligence to moderate.

I reverse the
unwarrantable failure designation. I find, contrary to Respondent’s arguments,
that the accumulations were obvious, existed for over three shifts, and should
have been detected for clean up by Respondent’s examiners even though the
conditions were about 70 feet within the crosscuts. See R. Br. 13. In fact,
Preece noticed the accumulations in passing from the 5D travel road the day
before the Order was issued and specifically inquired about them. Tr. 68, 76. The
fact that the accumulations of combustible and non-combustible material were
unlikely to ignite does not exempt an examiner from documenting them as
potential hazards in examination reports.

While Respondent
concedes that the piles were significant in size, it argues that the amount of
combustible material was not extensive since about two-thirds of each pile was
composed of non-combustible material. R. Br 15 (citing Tr. 157-58; see also R.
Ex. 82). I find some merit in this argument since the standard requires cleanup
of combustible material. Moreover, abatement was accomplished quickly by adding
additional rock-dust. Preece did not require the accumulations to be removed
from the mine. Tr. 76-77. On the other hand, there were two large piles of
material with some combustible content within 300 feet of each other. In these
circumstances, I find the extensiveness factor to be neutral in the
unwarrantable failure analysis.

The condition did not
pose a high degree of danger to miner safety. The Order was designated
non-S&S and involved piles of material that were largely incombustible. As
noted, abatement was accomplished by adding additional rock-dust, but the
accumulations were not removed.

Although Respondent
was clearly placed on notice of a past history of section 75.400 violations, it
was not placed on notice that greater efforts were necessary to comply with its
apparent practice of pushing large gob piles into a crosscut to clear travel
roads. Tr. 83. The Secretary provided no evidence to rebut the testimony of
Respondent’s witnesses Podoriscki and Kendall that the practice was employed at
Willow Lake and other mines in the Illinois Basin where they had worked, and
that MSHA did not notify Respondent that the practice was prohibited. In fact,
MSHA’s sanctioned abatement method of additional rock-dusting rather than
removal adds confusion as to what should be done with such accumulations. I
also note as a practical matter, that when clearing travel roads of debris, it
may be difficult to immediately remove non-S&S accumulations such as those
at issue from the mine. Under these circumstances, I find that Respondent was
not placed on notice that greater efforts were necessary to comply with the
standard as applied in this case. Rather, in the absence of any evidence that
the past citations or discussions with MSHA involved conditions that bore any
resemblance to the conditions cited in Order No. 8030700, I decline to find
that Big Ridge was on notice that greater efforts toward compliance were necessary.
See, e.g., Cumberland Coal Res. LP, 31 FMSHRC 137,157 (Jan. 2009) (ALJ)
(finding in the section 75.400 context that “to establish that [the operator]
had been put on notice that additional compliance efforts were needed, the
Secretary was required to show more than a history of prior citations for
violations of the broad standard”).

In sum, I find that
the accumulations were obvious, extant for at least three shifts, and
Respondent should have known that they existed. On the other hand, the accumulations
of combustible material were not particularly extensive since they comprised
only about one-third of the piles and were quickly abated through rock dusting,
they did not present a high degree of danger, and Respondent was not placed on
notice that greater efforts were necessary to comply with its practice of
pushing large piles of gob mixed with lesser combustible material into crosscuts
to clear travel roads. Thus, while the issue is close, on balance I find no
aggravated conduct or unwarrantable failure here.    

Since I have reduced
Respondent’s negligence to moderate and reversed the unwarrantable failure
finding, which was the primary basis for Preece’s special assessment
recommendation (Tr. 72-73), I decline to be guided by the Secretary’s special
assessment guidelines. Consistent with my findings above and section 110(i)
criteria, I find that a penalty of $500 is appropriate for the violation.

2.         Citation
No. 8428798

The Secretary argues
that Respondent violated section 75.400 because the transformer “5D” belt line
had accumulations of float coal dust on previously rock dusted areas. The
Secretary claims that the violation was S&S because it was reasonably
likely to lead to a lost workdays or restricted duty injury to one person. The
Secretary also claims that the violation was the result of high negligence
because the cited condition was recorded in the on-shift examination records
and Respondent provided no mitigating information to the inspector about why
the condition was allowed to continue unabated.

Respondent argues
that the citation should be vacated because no violation of the cited standard
occurred; that if a violation is found, the S&S and high negligence
designations are inappropriate; and that the regularly assessed proposed penalty
of $13,268 is excessive.

a.         The
Alleged Violation

During the day shift
on October 13, 2011 at 9:20 a.m., MSHA inspector Anthony Fazzolare issued
104(a) Citation No. 8428798. It alleges a violation of 30 C.F.R. § 75.400, as
follows:

The transformer for
the “5D” Belt Line had float coal dust deposited on previously rock dusted
areas. The float coal dust was paper-thin to approximately 1/8 inch thick,
black in color and from rib to rib and on the top of the transformer.

This condition was listed
in the on-shift examiners report from the previous shift’s examination.

This is the 267th
violation of this standard at this mine since 10/20/2009. P. Ex. 40. The
Citation was designated S&S, reasonably likely to result in a lost workdays
or restricted duty to one person, and was the result of high negligence. Id.
Fazzolare’s photographs depicted accumulations of coal on the transformer, on a
permissible electrical light, and on the floor as indicated by visible
footprints. Tr. 812-16, 832, 898; P. Ex. 41.

The accumulations
were in an active working area where miners were required to work and travel. Tr.
818-19, 890. In fact, the on-shift examiner’s report from the previous shift
listed the condition. P. Ex. 40.

Fazzolare’s testimony
about the condition was consistent with the citation, as written. Fazzolare
described the float coal dust as paper thin to approximately one-eighth of an
inch thick, black in color, from rib to rib approximately 20 feet in width, and
present on the top of the transformer. Tr. 806, 808; P. Ex. 40. Fazzolare
described the condition as dangerous because float coal dust is highly
combustible, can ignite at 300 degrees Fahrenheit, and was permitted to
accumulate from rib to rib, and on top of the permissible transformer (power
center). Tr. 806-08, 817, 869. No methane was detected in the area. Tr. 835.

Bishop testified that
he did not see Fazzolare check inside the transformer, although Bishop looked
inside and did not see any material. Tr. 857-58. Bishop also testified that the
west side of the transformer was damp. Tr. 865.

The transformer was
in the same crosscut off the 5D travelway where the accumulations were found on
the floor from rib to rib. Tr. 811, 828, 852. The transformer receives power
and distributes it to run the 5C belt. Tr. 806, 812. Fazzolare testified that
as the transformer receives power, it generates heat, and the float coal dust
on top of the transformer would act as a thermal blanket trapping heat inside. Tr.

809. Fazzolare testified that the cat heads going into the power center were
     another potential heat or ignition source. Tr. 818.  

Fazzolare was
concerned about a fire because float coal dust is highly volatile and does not
require much temperature to ignite. Tr. 816. Fazzolare further testified that
since the float coal dust was paper thin and sat on top of the rock dust, the
rock dust would do nothing to extinguish a fire. Rather, the float coal dust
would burn off and add fuel to a fire. Tr. 808. Fazzolare determined that the
three elements necessary for a fire were present: fuel (float coal dust);
oxygen (in the air throughout the mine), and an ignition source (permissible
power center). Tr. 817. Fazzolare was concerned that the power center could
have a problem at any time under continued mining operations. Tr. 844. Fazzolare
determined that in the event of a fire, one person in the area, an examiner or
maintenance person, was reasonably likely to suffer a lost workday or
restricted duty injury from smoke inhalation. Tr. 818-19.

Respondent’s
assistant shift mine manager, Charles Lane Hendricks, testified that during the
pre-shift examination on the midnight shift, the examiner reported that the
transformer for the 5D drive needed dusting because it was black. Tr. 878; R.
Ex. 92. The written report was reviewed and noted by Hendricks about 6:15 a.m.,
prior to the start of the 7 a.m. day shift. Tr. 877-879. Hendricks discussed
the condition with other shift managers and assigned day-shift belt shoveler,
Harley Partridge, to address the condition. Tr. 878-79. Hendricks credibly
testified that he instructed Partridge to adjust his work duties and make the
condition his first stop of the day, thus giving the matter priority. Tr. 879.

Hendricks testified
that Partridge typically would catch the first available ride into the mine
after shift change, and get off about thirty minutes later at his golf cart
located on one of the main north belts, which he used to travel to different
belt drive locations. Tr. 879. Hendricks recalled that on the day in question
(October 13), Partridge and others did not get a ride into the mine until about
8 a.m., which meant that Partridge would not have reached his golf cart until
about 8:30 a..m., and would not have reached the location of the 5D transformer
until about 8:55 a.m., i.e., about twenty-five minutes before Fazzolare wrote
the citation. Tr. 880-81. Hendricks further testified that about 9 a.m., he
received a call from another mine manager, Ronnie Hughes, informing him that
Partridge’s golf cart had malfunctioned, and that the inspector had found a
problem at the transformer. Hughes asked Hendricks, who was in another area of
the mine, to get down there. Tr. 882-83.

Fazzolare testified
that Respondent provided no mitigating information as to why the condition was
allowed to continue. Tr. 823-24. By contrast, Hendricks testified that when he
arrived at the transformer, Fazzolare explained why he was writing the
citation. In response to a leading question, “[d]id you tell him what you told
us, that you had somebody on the way,” Hendricks testified, “Yes, I did.” Hendricks
did not recall any response from Fazzolare. Tr. 883. Safety compliance
supervisor, Daniel Bishop, testified that Hendricks told Fazzolare that he had
sent an employee to address the problem, but his ride went dead and he had not
made it there yet. Tr. 865. On cross examination, Fazzolare admitted that he
vaguely recalled the mine manager telling him that somebody was on the way, but
his ride had broken down. Tr. 841. Accordingly, I find that Hendricks did offer
evidence of mitigation, i.e., that Partridge had been dispatched to correct the
accumulation problem, but his ride had broken down and Partridge had not
arrived yet.

Hendricks opined that
the condition would have been addressed about twenty minutes after Fazzolare’s
arrival at the transformer. Tr. 883-84. The Citation was abated in about ten
minutes when rock dust was spread around the transformer on the floor. Tr. 859,

890. Bishop testified that Fazzolare did not require any cleaning of the top of
     the transformer or the nearby light to abate the Citation. Tr. 858-59, 871.

b.         Legal
Analysis

I find a violation of
section 75.400. The credited evidence establishes that Respondent permitted
accumulations of float coal dust from rib to rib in an active working area and
on the transformer or power center, a piece of electric equipment. In fact,
Respondent’s examiner reported that the transformer for the 5D drive needed
dusting because it was black. Tr. 878; R. Ex. 92.

I further find that
the violation is not S&S. Fazzolare credibly testified that although coal
dust has a relatively lower heat threshold required for combustion, the coal
dust in the Illinois coal basin must be heated to 300 degree before it will
ignite. Tr. 807; see also Tr. 900. Fazzolare was primarily concerned that the
electrical transformer might provide an ignition source for the coal dust. Fazzolare,
however, did not remember if the transformer was hot during the inspection and
did not offer any testimony as to the potential heat the transformer could
generate. Tr. 831.  Respondent, on the other hand, adduced uncontradicted
testimony from Barras that the transformer was between 100-180 degrees, but was
not hot enough to burn a miner if touched. Tr. 896. Furthermore, Bishop
credibly testified that the transformers where never too hot to handle
comfortably during the hundreds of times that he had accessed them. Tr. 856-57.

I am not convinced by
Fazzolare’s assertion that the paper thin layer of coal dust would have
provided sufficient insulation to cause the transformer’s temperature to rise
over the 100 degrees necessary to cause the coal dust to ignite. There is no
question that there can be a danger of electrical equipment overheating and
rising to a temperature capable of igniting coal if there is a significant
amount of densely packed coal enveloping electric equipment. See Enlow Fork
Mining Co., 19 FMSHRC 5, 8-11 (Jan. 1997) (remanding S&S analysis where
inspector noted up to 2 ½ feet of coal dust, hydraulic oil, and loose coal
packed in and around a gear case). Commission ALJs, however, have not been
inclined to find that an ignition source exists when only a relatively small
layer of combustible material covers electrical equipment. Pittsburg &
Midway Coal Mining Co., 16 FMSHRC 574, 578-79 (Mar. 1994) (ALJ); Cam Mining,
LLC, 34 FMSHRC 2965, 2972-75 (Nov. 2012) (ALJ) (finding that an ignition based
upon the heat generated by a transformer box and the electrical connections
therein was not reasonably likely).

In the case at hand,
the dust on the outside of the transformer enclosure was only paper thin and
there is insufficient evidence on this record to establish that enough coal
dust would accumulate under continued mining operations to create the “thermal
blanket effect” described by Fazzolare. No dust was observed in the enclosure
where it could be ignited by sparks or arcing that might occur assuming
malfunction during continued mining operations. Tr. 831; see also Knox Creek
Coal Corp., 35 FMSHRC ___, slip op at 7, No VA 2010-81-R (May 28, 2014) (judges
should assume common malfunctions of electric equipment in determining whether
electronic equipment is an ignition source).

Based on the
foregoing, I find that under continued normal mining operations, it was
unlikely that a fire at the transformer would result in a lost workday or
restricted duty injury from smoke inhalation to a miner traveling in the active
working area. Tr. 818-19. The Secretary has failed to show a confluence of
factors such as methane or ignition sources as required under Commission
precedent in Texasgulf, 10 FMSHRC at 500-3. Accordingly, the S&S
designation is removed.

I reduce Respondent’s
negligence from high to moderate. It is undisputed that the Respondent knew
about the accumulation problem. Although Fazzolare testified that Respondent
provided no mitigating information as to why the condition was allowed to
continue, I have found that Hendricks did offer evidence of mitigation, i.e.,
that Partridge had been dispatched to correct the accumulation problem, but his
ride broke down and he had not arrived yet. Hendrick’s testimony was
corroborated by Bishop’s testimony and Fazzolare’s vague recollection. Although
the Secretary argues this was not a mitigating circumstance because the
citation was issued at least two and a half hours after the on-shift examiner
recorded the hazardous condition, I credit Hendrick’s testimony that he gave
the matter priority that morning, but Partridge’s golf cart broke down. The
Secretary offered no evidence to the contrary, and did not subpoena Partridge
to testify. In these circumstances, I find sufficient evidence of mitigation to
reduce Respondent’s negligence from high to moderate.

Guided by the regular
assessment criteria set forth in § 100.3 as applied to my findings above, I
assess a penalty of $807.

3.         Citation
No. 8428776

The Secretary argues
that Respondent violated section 75.400 because there were accumulations of
float coal dust under the cable reel of the Fletcher Roof Bolter Co. No. 425,
located in the #1 Unit on the right side. The Secretary claims that the
violation was S&S because it was reasonably likely to lead to a lost
workdays or restricted duty injury to two persons, and was the result of high
negligence because Respondent should have known about the condition and offered
no mitigating circumstances.

Respondent argues
that the S&S and high negligence designations are inappropriate and that
the regularly assessed proposed penalty of $14,373 is excessive.

a.         The
Alleged Violation

On September 3, 2011,
MSHA inspector Fazzolare, accompanied by Respondent’s representative Mike
Cummins, inspected the Fletcher Roof Bolter No. 425. Tr. 966. There were no
defects observed with the cable, or any other component of the permissible roof
bolter (pinner), which might act as a potential ignition source. Tr. 939, 943,
950, 966-67.

Fazzalore issued
104(a) Citation No. 8428776, which alleged a violation of 30 C.F.R. § 75.400,
as follows:

There
were accumulations of coal, oil and float coal dust under the cable reel of the
Fletcher Roof Bolter Co. No. 425, located in the #1 Unit on the right side.

These
accumulations were black in color and ranged in depth from 1 inch to 1½ inches
deep and the cable reel had been rolling in accumulations. P. Ex. 32; Tr. 956. The
citation was designated S&S, reasonably likely to result in a lost workdays
or restricted duty injury to two persons, and the result of high negligence. P.
Ex. 32.

Consistent with the
citation, Fazzolare testified that he observed accumulations of coal, oil and
float coal dust under the cable reel of the Fletcher roof bolter. Tr. 924. Cummins
testified that there was no float coal dust present. Rather, there was moist
material comprised of fire clay, coal fines, and rock dust from the mine floor.
Tr. 965.

The cable reel is
insulated to isolate the possibility of the flow of electrical current and it
carries about 350 feet of 480-volt energized cable, which powers the roof
bolting machine. Tr. 924-25, 960-62, 973. The cable reel retracts or releases
cable as the bolter moves. Tr. 925. The reel is guarded in front and covered on
top, making observation or photographing of the inside of the reel compartment
difficult. Tr. 964-65; R. Ex. 87(a). To reach into the compartment, a miner
would have to reach between two guides that aid the retraction and extension of
the cable. Tr. 977.

At one point,
Fazzolare testified that the cable reel served as an ignition source. Tr. 927,
929; P. Ex. 32. Although the bolter is permissible equipment, this fact did not
factor into Fazzolare’s assessment because of the location of the accumulations
underneath the cable reel. Tr. 929. Fazzolare testified that once the cable
reel was full, the cable would be rolling in the accumulations. Tr. 926.

Upon subsequent
questioning from the undersigned, Fazzolare testified, without further
explanation, that he saw evidence that the cable reel had been rolling in
accumulations. Tr. 932. I discredit this testimony because, as further
explained below, Fazzolare walked and examined the full length of the cable
when it was extended off the reel (Tr. 950), and the power was not energized on
the machine to observe the retraction because the unit was idle. Tr. 934, 952,

954. Rather, I find that Fazzolare was speculating as to what would occur
     during the retraction process.

Fazzolare then
testified that the roof bolter, the electrical motors on the roof bolter, and
the cable, all generate heat. Tr. 932. Fazzolare testified that he had no knowledge
of the cable being shielded. Tr. 939, 967. Fazzolare examined the full length
of the cable and found no defects. Tr. 942.

Fazzolare testified
that the cable reel would be full of energized cable and there could be a
pinhole in that electrical cable that would be hard to see or detect and create
an ignition source. Fazzolare also testified that he got shocked because of a
pinhole when he was a roof bolter on a different type of machine, but the cable
on that machine was not shielded. Tr. 930-31, 947, 950-51.

The specific hazard
that Fazzolare was concerned with was smoke inhalation by the two roof bolters
in the event of a fire. Tr. 930-31. He testified that if the cable reel was
full during roof bolting, and there was a bad spot in the cable, a pinhole
would ignite the float coal dust or coal, and the miners would be exposed to
smoke inhalation from the fire, resulting in lost work days or restricted duty.
Tr. 932-33. Fazzolare further testified that splices in cable are common
because the cable or insulation gets torn, exposing the inner leads, and the
cable gets run over, requiring spicing. Tr. 949.

The record
establishes that underneath the cable reel and between its side walls there are
clean-out holes that permit water and other material to exit the compartment
when it is washed out, or enter the compartment when the rear of the
articulated bolter pivots up and down to follow the contours of the mine floor
during tramming. Tr. 961-63, 965-66; R. Ex. 88(a). Cummins, a former 11-year
roof bolter, testified that a clean reel compartment can become dirty in
minutes from mine floor material entering the compartment through the drain
holes if the bolter is operated with the rear of the machine articulated on the
ground. Tr. 959, 965, 984.

Cummins further
testified that the retracting cable would not rub in the accumulations because
a tape ball prevents overloading beyond the sides of the cable reel. Tr. 972. He
further testified that the reel moves at such a slow rate of speed during the
tramming process – about 35 feet of cable could be retracted in a minute – that
frictional heat would not be generated. Tr. 972-73.

Fazzolare testified
that the accumulations under the cable reel were in active workings because “[t]his
is a producing unit.” Tr. 928. Fazzolare further explained that at some
unspecified time after he issued the Citation, he revisited the unit and it was
running coal. Tr. 952-53. Fazzolare confirmed that the accumulations were black
in color, indicating that they had not been mixed with rock dust to lower
combustibility. Tr. 928. The accumulations extended about one to 1.5 inches
under the cable reel and about two feet wide. Tr. 925-26. Fazzolare testified
that once the cable reel was full of cable, the cable would be rolling in the
accumulations creating a frictional heat source that could ignite the
accumulations. Tr. 926-27. In addition, Fazzolare testified that he was
concerned about the high temperature oil which was present and also
combustible. Tr. 928.

Fazzolare testified
that the production unit was idle at the time of his inspection and had been
idle for a week. Tr. 934; 952. Fazzolare conceded that under normal
circumstances, there would be no power on the roof bolter when the unit was not
operating. Tr. 954. Cummins confirmed this. Tr. 981. The Secretary failed to
establish that there was power on the cable.

Even when the unit
was idle, the cable reel and cable were subject to a thorough permissibility
examination on a weekly basis, including cleaning and washing out of
accumulations, if necessary. Tr. 954, 968-69, 979. Such cleaning also occurred,
as needed. Tr. 980-81. The last weekly examination was performed on August 28,
2011, six days prior to the citation and within the weekly period. Tr. 968; R.
Ex. 90.         

b.         Legal
Analysis

I find a violation of
section 75.400. I credit Fazzolare’s testimony about the nature of the
accumulations in lieu of Cummins’ testimony and find that accumulations of
coal, oil and float coal dust were present under the cable reel of the Fletcher
roof bolter. Tr. 924. Although Cummins testified that there was no float coal
dust present and the material was moist, I discredit this testimony,
particularly since the pinner had not been washed, at least since the last
examination almost a week earlier.

I further find that
the accumulation violation under the cable reel of the roof bolter was in an
active working, even though the production unit was idle for about a week,
because miners continued to work or travel in the unit for maintenance and
inspection purposes. Cf. Consolidation Coal Co., 20 FMSHRC at 348-49.

On the other hand, I
find that the violation was not S&S under the third prong of the Mathies
test because the violation did not contribute to a hazard that was reasonably
likely to result in a mine fire. When evaluating an S&S designation related
to the reasonable likelihood of a fire, ignition, or explosion, the Commission
examines the “confluence of factors” present based on the particular facts
surrounding the violation. Amax Coal, 19 FMSHRC at 848 (citing Texasgulf, 10
FMSHRC at 501). These factors include the extent of accumulations and the
presence of possible ignition sources, the presence of methane, and the type of
equipment in the area. Maple Creek, 22 FMSHRC at 755 (citing Enlow Fork, 19
FMSHRC at 9).

The unit was idle at
the time of the inspection and no power was energizing the roof bolter. Tr.

952. Therefore, an ignition would not have occurred. Even when production and
     power was restored during continued mining operations, no ignition source was
     established that was reasonably likely to result in a mine fire. The bolter was
     maintained in permissible condition. Although Fazzolare testified that he
     “could have missed” a pinhole defect in the cable, he found no defects with the
     insulated cable. In fact, Fazzolare performed a full inspection of the pinner
     and its cable and issued no citations. Moreover, the electric shock that
     Fazzolare experienced through a pinhole when he was a bolter occurred on a
     different type of bolting machine that lacked a shielded cable. Finally,
     Fazzolare provided an insufficient evidentiary foundation for his summary
     conclusion that if the cable reel was full during bolting, a pinhole would
     ignite the float coal dust or coal and the miners would be exposed to smoke
     inhalation from the fire, resulting in lost work days or restricted duty.

Similarly, I reject
the argument that the cable reel would likely serve as a frictional heat
source. I have discredited Fazzolare’s testimony that he observed the cable
rolling in the accumulations and found that this was mere speculation as to
what he thought would occur when the cable was recoiled during the retraction
process. By contrast, I am more persuaded by Cummins’ testimony that the retracting
the cable would not rub in the accumulations because a tape ball was designed
to prevent overloading beyond the sides of the cable reel. Furthermore, the
Secretary relies on little more than Fazzolare’s conclusory belief that the
bolter could produce heat sufficient to produce an ignition. That belief is
unsupported by fact on this record. Rather, I credit Cummins’ testimony that
the slow movement of the cable back onto the reel at about 35 feet per minute
would generate insufficient frictional heat to start a fire.

In sum, based on the
particular facts surrounding this violation, the Secretary has failed to prove
that an injury-causing event was reasonably likely to occur. Accordingly, I
find that the violation was not S&S.

I reduce Respondent’s
negligence from high to moderate. Although Fazzolare testified that there were
no mitigating factors provided to him when he wrote the citation, Respondent
established some at trial. The design of the roof bolter and the location of
the accumulations made detection difficult. Although Fazzolare was led on cross
examination to testify that the violation was obvious, I discredit this
testimony because the testimony from Cummins and the photographs in evidence
establish that the reel compartment was not readily visible and was protected
by bolted covers and by a guard. Furthermore, one would have to get down and
peer through the guides to observe the accumulations. Tr. 959-960, 964, 974,
977, 981-82; R. Ex. 87(a). Finally, since the unit was idle, it was less likely
that an examiner would discover the condition until production resumed and the
bolted covers were removed by a rank-and-file bolter operator during his
examination and cleaning. That weekly examination was not yet due at the time
the citation was written. Accordingly, I find sufficient mitigating
circumstances to reduce Respondent’s negligence to moderate.

Guided by the regular
assessment criteria set forth in § 100.3 as applied to my findings above, I
assess a penalty of $807.        

4.         Citation No.
8436403

The Secretary argues
that Respondent violated§ 75.400 because there were accumulations of float coal
dust in crosscut 100 on the main west travel way. The Secretary claims that the
violation was S&S because it was reasonably likely to lead to lost workdays
or restricted duty to one person, and was the result of high negligence because
Respondent should have known about the condition and offered no mitigating
circumstances.

Respondent argues
that the S&S and high negligence designations are inappropriate and that
the regularly assessed proposed penalty of $13,268 is excessive.

a.         The
Alleged Violation

On October 19, 2011,
inspector Fazzolare, accompanied by Respondent’s compliance supervisor, Vernon
Dunn, issued 104(a) Citation No. 8436403 alleging a violation of 30 C.F.R. §
75.400, as follows:

There
were paper thin to approximately 1/16 accumulations of float coal dust in XC
100 on the Main West travelway, these accumulations were rib to rib, on the
ribs and on the 1200 volt energized power center, on the overhead light, on
both cat heads and on the switch box.

This is
the 267th violation of this standard at this mine since 10/20/2009.

P. Ex. 43. The citation was
designated S&S, reasonably likely to result in a lost workdays or
restricted duty injury to one person, and the result of high negligence.

Fazzolare observed
combustible and volatile accumulations of float coal dust out by active
workings on a 1200-volt energized power center, and on the permissible overhead
light, and the cat heads and switch box located at crosscut 100 in the Main
West travelway, which paralleled the Main West No. 2 belt. Tr. 988, 990-93,
1010, 1015, 1022, 1024; P. Exs. 43, 44. The floor of the Main West travelway
was composed of gray clay-like material, and there was approximately three to
four inches of rock dust on the floor of the cited area. Tr. 1023-24. Dunn
testified that the float coal dust could have come from the running belt or the
roadway. Tr. 1026-27.

The accumulations
were paper thin to one-sixteenth of an inch thick and found in an area that had
been rock dusted previously. Tr. 989; P. Ex. 45, at 7. Fazzolare was concerned
with the accumulations of combustible material on top of the rock dust. Tr.
1013. Fazzolare testified that in the event of a fire, the float coal dust
would burn off and fuel the fire. Tr. 989.

There were some
accumulations on top of the transformer, but not inside the transformer. Tr.
1008, 1025. No citations were issued with respect to the transformer or overhead
lights. Tr. 1026. There was no methane in the area. Tr. 1029.

Based on his
experience and the extent of the accumulations, Fazzolare determined that the
cited condition existed for more than one shift, and likely did not arise after
the last pre-shift examination. Tr. 995-96; 1033. Dunn confirmed this. Tr.
1027, 1033.

Fazzolare designated
the violative condition as S&S because there were several ignition sources
present around the highly volatile fuel source, which exposed an examiner or
maintenance person working on the power center to the hazard of a fire, which
was reasonably likely to result in lost workdays or restricted duty due to
smoke inhalation. Tr. 994-95; P. Ex. 43.

Fazzolare also
determined that the violation resulted from high negligence given the large
number of section 75.400 citations that Respondent was issued, and because the
cited area was supposed to be pre-shifted every eight hours. Tr. 996. Although
Fazzolare testified that he was not shown any pre-shift inspection reports indicating
that the area had been examined, he did not write any citation for failure to
conduct a pre-shift under section 75.360. Tr. 991-92, 996. Fazzolare testified
that the condition was obvious and should have been noted by the pre-shift
examiner and by any maintenance personnel or foreman, who entered the area. Tr.
996-97, 1015. Fazzolare did not recall management providing any mitigating
circumstances. Tr. 999. His notes, however, indicate that Dunn told him that he
did not think there was a hazard present. P. Ex. 45, at 7.

Dunn testified that
he told Fazzolare that the citation should not be written because the condition
did not present a hazard given the amount of rock dust present and the absence
of any ignition source. Tr. 1028, 1037-38. According to Dunn, Fazzolare
responded that the transformer constituted the ignition source. Tr. 1038.

Fazzolare testified
that the citation was terminated twenty minutes after issuance when
Respondent’s agent mixed the float coal dust with the existing rock dust in the
area to lower combustibility, and also wiped off the switch box and overhead
light. Tr. 999, 1014. Dunn testified that the abatement process lasted
“probably ten minutes.” Tr. 1025. Dunn testified that the rock dust on the
floor was so deep that it was just kicked around with his feet and a broom. Tr.
1025. Dunn further testified that when he cleaned off the top of the
transformer, he felt nothing but “body temperature-type heat” of about 100
degrees, which he opined was insufficient to cause any sort of ignition. Tr.
1025-26, 1029.

Fazzolare did not
testify with any specificity about the overhead light mentioned in the
citation. Dunn testified that it was a fluorescent-type light with a plastic
cover, and that he did not recall seeing float coal dust on the light bulb, or
cleaning or wiping off the light bulb or its cover. Tr. 1032-35.

b.         Legal
Analysis

I find a violation of
section 75.400. Respondent permitted paper thin accumulations of float coal
dust from rib to rib in the Main West travel way at cross cut 100, and on the
transformer, overhead light, cat heads and switch box located at this location.
Section 75.400 provides that “[c]oal dust, including float coal dust deposited
on rock-dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on
diesel-powered and electric equipment therein.”

Essentially for the
same reasons set forth above with respect to Citation No. 8428798, I find the
violation set forth in Citation No. 8436403 to be non-S&S. The float coal
dust accumulations on top of the coal transformer did not contribute to a
discrete fire hazard that was reasonably likely to result in a serious injury. Under
continued normal mining operations, it is unlikely that the paper thin layer of
coal would cause the transformer to reach a temperature of 300 degrees, which
was enough to ignite the coal dust. Accordingly, the S&S designation is
removed.

I affirm the high
negligence designation. The Secretary established that Respondent should have
known of the condition. I reject Respondent’s argument that it is unlikely that
the condition came into existence since the last pre-shift examination because
it was located near an active belt line and travel way. I note that Dunn,
Respondent’s own witness, confirmed Fazzolare’s testimony that the condition
likely existed at the time of the last pre-shift examination. Furthermore, I
discount the argument that a mine examiner would not have regarded the condition
as hazardous and reportable. Although Dunn told Fazzolare that he did not think
there was a hazard present, particularly given the amount of rock dust present
and the absence of any ignition source, these are not mitigating circumstances
because the amount of rock dust on the floor did not mitigate the float coal
dust on the transformer, cat heads and overhead light, which are potential
ignition sources capable but not likely to result in a mine fire. In sum, the
high number of past violations of section 75.400, the fact that Respondent had
notice that accumulations were at issue at the mine, the fact that the
condition should have been recorded, but was allowed to exist for at least one
shift, and the absence of persuasive mitigating circumstances support my
finding of high negligence.

Guided by the regular
assessment criteria set forth in § 100.3 as applied to my findings above, I
assess a penalty of $2,678.  

C.        Maintenance of
Incombustible Content of Rock Dust Order No. 8428378

1.         Order No.
8428378

The Secretary alleges
that the Respondent violated section 75.403 because the mine floor in entry no.
6 of MMU 011 did not contain enough rock dust to achieve 80% non-combustible
content. The Secretary further alleges that the violation was unlikely to
result in injury, but if injury did occur, it would be fatal, with sixteen
persons affected. The Secretary further alleges Respondent’s high negligence
and unwarrantable failure to comply with the standard.

Respondent argues
that the Order should be vacated because it was based on samples taken from
discrete piles of material that were not representative of the entry floor. Respondent
also challenges the gravity, high negligence, and unwarrantable failure
designations, and the appropriateness of the specially assessed proposed
penalty of $45,000.

a.         The
Alleged Violation

During an E02 spot
inspection on June 20, 2011, inspector Eddie Kane, accompanied by Respondent’s
representative Mike Cummins and miner’s representative Ron Pinkston, issued
section 104(d)(2) Order 8428378 for a violation of 30 C.F.R § 75.403. Tr. 564,
567; P. Ex. 34. Section 75.403 states:

Where
rock dust is required to be applied, it shall be distributed upon the top,
floor, and sides of all underground areas of a coal mine and maintained in such
quantities that the incombustible content of the combined coal dust, rock dust,
and other dust shall not be less than 80 percent. Where methane is present in
any ventilating current, the percent of incombustible content of such combined
dust shall be increased 0.4 percent for each 0.1 percent of methane.

The Order was
designated non-S&S, unlikely to result in a fatal injury to sixteen
persons, and the result of high negligence and an unwarrantable failure. P. Ex.

34. As a result of this Order, the area was closed off, and no other activity
    was allowed to proceed through the area. Tr. 700.

The Order issued at
10:30 a.m., when the unit was in full production running coal. P. Ex. 34; Tr.
592, 656. The shift began at 7:15 a.m. The first coal run was made at 8:05 a.m.
Tr. 706; R. Ex. 25. Three cuts had been taken on the left side of the unit, at
the 9 left crosscut, entry no. 9 and entry no. 8. Tr. 706-07; R. Ex. 25. Typically,
three coal haulers on the left side of the unit used entry no. 6 to go to the
feeder. Tr. 669. The ram cars made about 60-80 trips from face to feeder per
shift. Tr. 669.

Kane testified that
upon arriving at Unit 1 entry no. 6, Kane observed a lot of coal dust and float
coal dust all over the entry and obvious to the casual observer. Tr. 565-66,

592. Kane had to stop and wait for a ram car to pass through the area. Kane
     noticed that the ram car was kicking up a lot of black coal dust and suspending
     it in the atmosphere. Tr. 566, 577.

Kane then walked further
into entry 6, which was off the 2nd right panel from the 5th north main, and he
noticed that this condition was extensive between survey station 10 + 75 and 12

• 35. Tr. 566. Kane took two floor samples from the area where the violative
      condition existed. Tr. 580-81, 583. Kane took photographs, measurements, and
      two spot samples about 160 feet apart across the entire entryway. Tr. 577-79,
      584-85; P. Ex. 35-37. The piles of coal sampled on the return side ribs were
      18-24 inches wide, and six to ten inches deep. Tr. 578-79, 584; P. Ex. 35; P.
      Ex. 36, at 3. The piles that were cited extended approximately 18-24 inches in
      width from the left rib line into the entry. Tr. 578-89, 615-16; P. Ex. 35; R.
      Exs. 23(i), 23(k), 23(w). Cummins and Shires credibly testified, as
      corroborated by photographic evidence, that the piles were created when ram
      cars struck the ribs as they turned into the crosscut toward the feeder. Tr.
      658, 668, 678, 708-09; R. Ex. 2, at 15-18; R. Ex. 23(a); R. Ex. 23(x). Cummins
      also explained that the miner cable was present on the opposite side of the
      piles, which would cause the operators to “hug farther to the left-hand rib to
      stay off the cable.” Tr. 669-71.

Kane testified that
the accumulations occurred over a period of time, which he estimated to be
about two shifts, excluding the current one. Tr. 586. Although section foreman
Shires testified that entry no. 6 was regularly scooped at least once per shift
to clean spillage along the haulageway (Tr. 710), Respondent proffered no
specific testimony or documentary evidence that entry no. 6 was scooped and/or
rock dusted on the prior two shifts. By contrast, Kane’s notes indicate that
the condition has existed for at least two shifts since it appears that the
accumulations came from overloaded ram cars dropping excess coal on the haul
road, and then continually running over the coal until it was ground into a
fine powder and pushed to the rib line by the wheels of the ram car. P. Ex. 36,
at 3. In these circumstances, I credit Kane’s empirical estimate that the
accumulations existed for about two shifts. Tr. 586.

Cummins did not
witness Kane take a sample across the entire width of the mine floor. Tr. 680. Cummins
and Shires confirmed that Kane took two samples, although Cummins and Shires
only witnessed Kane take one spot sample from the rib area floor. Tr. 680-82,
691-92, 715-16. Cummins specifically raised an objection with Kane about the
manner in which Kane was taking his sample. Tr. 692. Cummins also recorded his
observation in documentation that he completed immediately after the
inspection. Tr. 683; R. Ex. 19. Cummins noted, “[t]he inspector only collected
a sample of the coal that was spilled.” R. Ex. 19. Neither Cummins nor any
other representative of Respondent took a sample of their own. Tr. 689, 697.

For each sample
taken, Kane received lab results indicating that the incombustible content of
the rock dust was non-compliant. One sample contained 43.4% incombustible
content, the other 48.1%. Tr. 585, P. Ex. 37. Per section 75.403, each sample
should have had 80% incombustible content. Tr. 586.

Kane testified that
MSHA’s policy on rock dust sampling is dependent on the area where the sample
is taken and the ability to take a representative sample of the area. Tr.
580-82. Where possible, MSHA procedures typically require the taking of a band
sample from the roof, ribs, and floor, but MSHA’s inspection procedure manual
does not indicate that a band sample is mandatory. Tr. 588-89; P. Ex. 58. The
ribs and roof had been rock dusted with a wet duster and were a whitish color. Tr.
582, 618, 667; P. Ex. 35. Kane did not include any of the rock dusted surfaces
from the roof or ribs in his samples. Tr. 680.

Kane testified that
he took two floor samples from the area where the violative condition existed. Tr.
580-81, 583. He testified that the rib had wet rock dust on it and the floor
away from the ribs was very hard and there was not enough material to sample
down an inch and “cone and quarter.” To obtain a representative sample, Kane used
a floor brush and a dust pan to brush 1/8 to 1/4 inch across the surface of the
entry floor from rib to rib. Kane then ran the sample through his 20-mesh sieve
and tagged the entire sample to be sent to the lab for testing. Tr. 581-82.

As noted, Cummins and
Shires testified that they did not observe Kane take a sample from across the
entire width of the floor, but they each observed one sample at survey station
10+85. Tr. 679-80, 682, 709, 718. In any event, I credit Kane’s testimony,
confirmed on cross examination, that he used a floor brush and a dust pan to
brush across the surface of the entry floor from rib to rib. Tr. 616-17. Accordingly,
I find Cummins’ testimony – that the floor in the entry consisted of
incombustible fire clay, other than the piles cited – to be an overstatement
that does not account for coal dust across the entry. Tr. 667.

Respondent’s witness
Steve Kattenbraker, a former MSHA field office supervisor and current
contractor for parent Peabody Energy, confirmed that while a band sample from
floor, rib, and roof may be preferable, an inspector could take a sample
representative of the entire floor, and if such sample cannot be taken an inch
down, the inspector should brush what he can off the floor. Tr. 635-39, 642-45.
Further, safety compliance supervisor Danny Bishop testified regarding Citation
8428798 that Respondent has only taken floor samples, not band samples, when
the floor was the area cited. Tr. 867, 869-70. Finally, based on prior sampling
experience from ribs after wet-dry dusting, Kane testified that a band sample
that included the ribs and roof would have been less representative of the
violative condition and put even more combustible material into the sample. Tr.
626-29.

Kane determined that
no methane was present in the air course in entry no. 6, and that the methane
at the face was not high and measured 0.2%. Tr. 588, 620; P. Ex. 36, at 2. Kane
further determined that a coal dust explosion was unlikely and the violation
was non-S&S. Tr. 590. Kane also testified, however, that the left-side
miner was used in the entry, and cutting torches or welding equipment may be
brought into the area, thereby introducing an ignition source necessary to
trigger an explosion. Tr. 590-91, 621. Kane determined that in the unlikely
event of a coal dust explosion, injury would be fatal, and all sixteen miners
working inby would be killed. Tr. 590-94; P. Ex. 36.

Kane testified that
Respondent had failed several rock dust surveys in the past and that
Respondent’s management was repeatedly told during closeout conferences that it
needed to comply with the standard and get the mine rock dusted, or there would
be increased enforcement. Tr. 571. Kane also testified about fatalities in
mines because of inadequate rock dusting and that such fatalgrams are posted on
MSHA’s website and hand-delivered to mine operators upon issuance. Tr. 572-73;
P. Exs. 50-51. Kane further testified that MSHA provides bulletins to operators
to educate them on proper rock dusting and ventilation maintenance to keep
methane away from the faces in an effort to prevent explosions and fires,
especially during winter months. Tr. at 574; P. Ex. 52.

Kane determined that
Respondent’s violation resulted from high negligence because Respondent had
been warned repeatedly to increase rock dusting, and the condition was open and
obvious to face bosses, who were required to walk through the entry to reach
the working section and its face for on-shift examination purposes. Tr. 591-92.
Kane further determined that the violation was an unwarrantable failure to
comply with the rock dusting standard because the condition was obvious and
extensive and the face bosses should have known that it existed. Tr. 594.

Abatement efforts,
which involved scooping the area and rock dusting the floor, took about an
hour. Tr. 595.

b.         Legal
Analysis

I find a violation of
section 75.403. Section 75.403 requires that the incombustible content of the
rock dust be no less than 80%. 30 C.F.R. § 75.403; Tr. 568-69. The Secretary’s
unrebutted sample evidence shows that both samples were non-compliant; one
sample contained 43.4% and the other 48.1% incombustible content, well below
the 80% incombustible content requirement.

Respondent argues
that observations alone are insufficient to support a section 75.403 violation,
and that the violative samples taken from isolated coal spills are not evidence
of inadequate rock dusting. Rather, Respondent argues that the samples must be
taken from representative areas of the mine floor rather than from areas where
discrete coal accumulations are located. Accordingly, Respondent argues that
Order No. 8428378 should be vacated because it is premised upon samples that
were taken from discrete piles of material that were not representative of the
floor in entry no. 6.

I reject Respondent’s
arguments. The standard does not require the taking of band samples. Cf.
Eighty-Four Mining Co., 22 FMSHRC 690, 698 (2000) (ALJ). In addition, I have
credited Kane’s testimony that he used a floor brush and a dust pan to brush
across the surface of the entry floor from rib to rib in order to take a
representative floor sample. Finally, the testimony from Kane and Respondent’s
witnesses establishes that the sampling methodology employed to obtain
representative samples was reasonable given the nature and location of the
accumulations along the rib.

I further find that
the violation was the result of high negligence. The record establishes that
the coal dust accumulations in entry no. 6 were open and obvious to face bosses,
who were required to walk through the entry to reach the working section and
its face for on-shift examination purposes. Tr. 565-66, 591-92. In addition,
Respondent had been admonished repeatedly during close out conferences to
enhance rock dusting at the mine. Tr. 571. Finally, Respondent proffered no
evidence of mitigating circumstance other than its challenge to sampling
methodology, rejected above. Tr. 595-96. In sum, the fact that Respondent had
knowledge of rock dusting inadequacies and did not take facile steps to become
compliant supports a high negligence finding.

Although the issue is
close, I further find that the violation was an unwarrantable failure because
there is sufficient evidence of aggravated conduct constituting more than ordinary
negligence and a serious lack of reasonable care. As noted, “aggravating
factors” include the length of time that the violation has existed, the extent
of the violative condition, whether the operator has been placed on notice that
greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition before citation, whether the violation was
obvious or posed a high degree of danger, and the operator’s knowledge of the
existence of the violation. IO Coal, 31 FMSHRC at 1350-51.

Initially, I find
that the violative condition was fairly extensive. Both piles of material were
twenty-four inches in width from the ribline, about six to ten inches deep, and
were about 160 feet apart in the no. 6 entry. More importantly, the first
sample was about 46% non-compliant and the second sample was about 40%
non-compliant. Furthermore, Kane credibly testified that the coal dust and
float coal dust was present all over the entry. In these circumstances, even
though the condition was abated in about an hour by scooping and rock dusting,
I find that the extensiveness factor tips in favor of an unwarrantable failure
finding.

I have credited
credit Kane’s testimony that the condition existed for about two shifts,
despite general testimony from Respondent that entry no. 6 was regularly
scooped at least once per shift. Two shifts is definitely a period of time long
enough to require that action be taken to eliminate the violative condition. Cf.,
Windsor Coal Co., 21 FMSHRC 997, 1002 (Sept. 1999); see also Buck Creek Coal,
52 F.3d 133, 136 (7th Cir. 1995) (finding unwarrantable failure where cited
accumulation must have been present at least since the previous shift). Accordingly,
I find that the duration of the violation for about two shifts weighs in favor
of finding an unwarrantable failure.

I have also credited
Kane’s testimony that Respondent repeatedly was placed on specific notice
during closeout conferences that greater efforts were necessary for compliance
with rock dusting standard section 75.403, or increased enforcement would
result. Although Respondent notes that it was assigned only two repeat
violation history points for Order No. 8428378 (R. Ex. 28), this fact confirms
that Respondent had at least six recent violations of the same standard in the
past fifteen months, and bolsters rather than undermines Kane’s testimony that
greater compliance efforts were necessary. Respondent did, however, make some
efforts to comply with the rock dust requirement as demonstrated by the fact that
the roof and ribs of entry #6 were adequately rock dusted and Respondent was
supposed to regularly scoop the haulage way once per shift. Tr. 583, 630, 710. Accordingly,
this factor tips slightly in favor of an unwarrantable failure finding.

With regard to
whether the condition posed a high degree of danger, Kane determined that a
coal dust explosion was unlikely and the violation was non-S&S. Tr. 590. No
ignition sources were present. There was no methane in the air course in entry
no. 6 and negligible methane at the face. Tr. 588, 620; P. Ex. 36, at 2. It is
undisputed that the roof and ribs of entry no. 6 were adequately rock dusted. The
Secretary’s own documentation on explosions and rock dusting awareness states
that “[f]loat coal dust on the ribs, roof, and other elevated surfaces
(overhead dust) can be dispersed much more readily by an explosion than dust on
the floor.” P. Ex. 53, at 2. In these circumstances, despite Kane’s testimony
that in the unlikely event of a coal dust explosion, injury would be fatal and
all sixteen miners working inby would be killed (Tr. 590-94; P. Ex. 36), I find
that the remote possibility of a high degree of danger weighs against an
unwarrantable failure finding.

The record
establishes that the violative condition was open and obvious. Upon arriving at
Unit 1 entry no. 6, Kane observed a lot of coal dust and float coal dust all
over the entry and open and obvious to the casual observer. Tr. 565-66, 592. The
piles of coal sampled on the return side ribs were 18-24 inches wide, and six
to ten inches deep, and the dust extended approximately 160 feet across the
entry. Tr. 578-79, 584; P. Ex. 35; P. Ex. 36, at 3. The piles that were cited
extended approximately 18-24 inches in width from the left rib line into the
entry. Tr. 578-89, 615-16; P. Ex. 35; R. Exs. 23(i), 23(k), 23(w). Accordingly,
the obviousness factor supports an unwarrantable failure finding.

The operator had
knowledge of the condition or at least should have known about it. Both
management representatives Cummins and Shires were aware that ram cars
traveling through the entry would strike the ribs, resulting in accumulations. Tr.
658-59, 672, 709. As noted, I have credited Kane’s empirical estimate that the
accumulations existed for about two shifts. Tr. 586. Thus, face bosses, who
were required to walk through the entry to reach the working section and its
face for on-shift examination purposes, should have noted and corrected the
condition prior to the inspection. Tr. 591-92, 594. Accordingly, the knowledge
factor supports finding an unwarrantable failure.

Finally, an
operator’s efforts to abate a violation are relevant to an unwarrantable
failure determination. Thus, where an operator has been placed on notice of a
problem, the level of priority that the operator places on abatement of the
problem is relevant. IO Coal, 31 FMSHRC at 1356 (citing Enlow Fork Mining, 19
FMSHRC at 17). The focus is on abatement efforts made prior to issuance of the
citation or order. Id.

Concededly,
Respondent made some efforts to rock dust to maintain the requisite
incombustible content required by the standard. Nevertheless, even though
Respondent did attempt to make efforts to eliminate section 75.403 violations
generally, this evidence is not dispositive of the specific unwarrantable
failure allegation at issue. Where an operator has actual knowledge of a
violative condition, the Commission has considered the operator’s abatement
efforts of the specific violation in question. See Consolidation Coal, 22
FMSHRC at 330-33; Windsor Coal, 21 FMSHRC at 1005-07. As noted, both management
representatives Cummins and Shires were aware that ram cars traveling through
the entry would strike the ribs, resulting in accumulations. Further, the
accumulations existed for about two shifts and the face bosses examining the
working section and face should have corrected the condition prior to the
inspection. Accordingly, I conclude that Respondent failed to make adequate
efforts to abate the known violation prior to its issuance. Respondent’s
inadequate abatement efforts also support an unwarrantable failure finding.

On balance, after
considering and weighing the relevant Commission factors, I conclude that all
of the factors except the high degree of danger factor support a finding that
the violation in Order No. 8428378 was the result of Respondent’s unwarrantable
failure to comply with section 75.403. Moreover, even that factor had a remote
possibility of a high degree on danger. Accordingly, I find an unwarrantable
failure violation for Order No. 8428378.

Although the
Secretary adduced no specific evidence or rationale to justify the special
assessment in this matter, Respondent did so by introducing the Special
Assessment Narrative Form received in evidence as R. Ex. 28. Given my high
negligence and unwarrantable failure findings, I find that a specially assessed
penalty was warranted here. Accordingly, guided by the criteria set forth in §
100.3 and the Special Assessment General Procedures, I assess a penalty of
$45,000.

D.        The September 12, 2011
Impact Inspection and the Alleged Violation of § 103(f) Walkaround Rights
Regarding Citation Nos. 8431250, 8431251, and 8431252

1.         Commission
Precedent in SCP Investments

In SCP Investments,
the Commission recognized that the qualified walkaround rights set forth in
Section 103(f) of the Mine Act are mandatory, but their erroneous denial
provides no basis for vacating citations or orders. SCP Invs., LLC, 31 FMSHRC
821 (2009). The Commission did not address the complex constitutional issue of
whether a violation of the Due Process Clause of the Fourteenth Amendment would
defeat the final clause of Section 103(f), which bars vacation of a citation or
order for failure to comply with Section103(f) requirements. Respondent has
raised that constitutional due process argument here. R. Br. at 76-78.

In SCP Investments,
Commissioners Young and Cohen directed Commission judges to hold a suppression
hearing and apply an exclusionary rule under which evidence obtained in
violation of an operator’s walkaround rights may be excluded when an operator
can demonstrate prejudice in the preparation or presentation of its defense. 31
FMSHRC at 834-37. Chairman Jordan dissented and found that safety violations
observed in contravention of walkaround rights do not constitute evidence
obtained by virtue of an illegal action such as a violation of the Fourth
Amendment’s protection from unreasonable searches and seizures. She found it
improper for the judge to consider denial of walkaround rights in deciding
whether the Secretary established a violation. Id. at 841-45. Commissioners
Nakamura and Althen have not yet passed on the issue.

Against this
backdrop, the undersigned heard testimony from one company representative (Crit
Stephenson) and three MSHA inspectors (Robert Hatcher, Larry Morris, and
Phillip Stanley) regarding an impact inspection on September 12, 2011. Respondent
argues that three citations – Citation Nos. 8431250, 8431251, and 8431252 –
which inspector Hatcher wrote during that impact inspection when he walked a
beltline unescorted, violated its walkaround rights under section 103(f) of the
Mine Act.

The issues presented
are whether Respondent’s section 103(f) walkaround rights were denied with
respect to the three citations issued by inspector Hatcher. If so, what is the appropriate
remedy for such denial under extant Commission precedent? If not, did the
violations occur as alleged, and what are the appropriate gravity and
negligence findings and the appropriate penalties?

For the reasons set
forth below, I find that Respondent’s walkaround rights were violated during
the instant impact inspection and I apply an exclusionary rule that examines
whether Respondent has shown prejudice in its ability to observe the condition,
as cited. Applying this analysis, I exclude all evidence in support of Citation
8431251, which resulted from the unescorted inspection, including the
Secretary’s photographs and Hatcher’s testimony, and I find insufficient
independent evidence to support that citation and the proposed penalty. Similarly,
with regard to Citation No. 8431250, I also find that Respondent has been
prejudiced by its inability to observe and challenge Hatcher’s chemical test
and his testimony based on that test. Accordingly, I exclude such evidence and
conclude that there is insufficient evidence to support a violation of the
cited standard. Finally, with regard to Citation No. 8431252, I find that
Respondent has not been prejudiced by Hatcher’s testimony or the photographs he
took concerning this violation because Respondent could go back and check the
belt alignment and its contact points with the brackets and stands after notice
of the violation, and Respondent could observe the violation in essentially the
same condition as inspector Hatcher observed it. Accordingly, I affirm that
citation as non-S&S because it was unlikely to result in a lost workdays or
restricted duty injury, with one person affected. I also affirm Hatcher’s high
negligence determination. Although Respondent was denied an opportunity to
timely proffer mitigating circumstances to the inspector, Respondent was given
an opportunity but failed to raise any mitigating circumstances after the fact
and at trial. Accordingly, guided by the regular assessment criteria set forth
in § 100.3(a) as applied to my findings above, I assess a penalty of $1,203.

1.         Suppression
Hearing Facts

On September 12,
2011, five MSHA inspectors arrived at WLPM to perform an impact inspection
during the middle of the afternoon shift about 6:30-7:00 p.m. During that
impact inspection, MSHA inspector Hatcher issued Citation Nos. 8431250,
8431251, and 8431252 at issue herein. Tr. 415, 421-22, 436, 468; P. Exs. 9, 10,
12.

Outby foreman Crit
Stephenson had just transported a sick miner to the surface when he encountered
MSHA field office supervisor Steve Miller and assistant district manager Mary
Jo Bishop at the staging area of the bath house. Tr. 413-15. Miller was the
lead MSHA supervisor for the WLPM. Tr. 496. Miller told Stephenson that MSHA was
conducting an impact inspection and instructed him not to contact anyone or
make any phone calls and to transport three inspectors (Hatcher, Morris, and
Stanley) underground to different locations. Tr. 415.

Neither Miller nor
Bishop testified at the hearing and the Secretary has adduced no evidence to
rebut Stephenson’s account of Miller’s directive. Ordinarily, Stephenson would
have obtained company escorts for each inspector, but he did not in this
instance because he was he was told not to make any phone calls. Tr. 416.

Stephenson waited
until MSHA inspectors Robert Hatcher, Larry Morris, and Phillip Stanley were
ready to be transported underground. Tr. 415, 417, 469. Stephenson testified
that Respondent usually uses a four-man safety ride to travel from the surface
to the underground mine. Tr. 407. That ride left no room for additional
escorts. I infer that MSHA knew this since inspectors were at the mine on a
daily basis.

Inspector Morris
testified that MSHA has impact inspections during the middle of a shift to
catch an operator by surprise. Tr. 437. He further testified that when regular
inspections are conducted at the start of a shift, Respondent has escorts
waiting to accompany the inspectors, but MSHA is not required to wait for the
escorts. Tr. 438.

Morris testified that
when the inspectors arrived, they were already dressed and ready to go
underground. Tr. 438. They went through the diesel shop area and offered three
hourly miners the opportunity to accompany them as miners’ representatives, but
these miners declined. Tr. 441. Morris further testified that had there been
more salaried employees (management representatives) present on the surface,
they would have been offered walkaround rights as well because that is normal
procedure. Tr. 441, 453. But on cross of Morris, Respondent established that
although other management representatives besides Stephenson were not present,
MSHA was not going to wait around for anyone else. Tr. 456.

Morris’ testimony
suggests that during an impact inspection, MSHA takes deliberate measures to
show up mid-shift with several inspectors already dressed and ready to go when
it is likely that most management representatives are already underground or
gone for the day. Tr. 432, 452-53, 454-55. Morris further testified that
section foremen can often be found underground on a miner or longwall unit and
then offered walkaround rights, but seldom do such representatives take MSHA up
on the offer. Tr. 453-54. In this case, however, the impact inspectors targeted
belt lines where foremen normally are not present. Tr. 454.

Respondent argues
that MSHA did not follow its typical procedures under which MSHA inspectors,
several of whom may be present at the large mine on a daily basis, arrive at
the mine’s safety department office prior to the commencement of the shift,
announce their presence, and wait for a company escort and a miners’
representative to accompany each inspector before beginning the inspection. R.
Br. 63 (citing Tr. 405-06, 416, 438). Stephenson testified, and inspector
Hatcher confirmed, that in such circumstances the inspectors would not tell
their escorts where they were going until they left the surface. Tr. 406-07,

494. Stephenson testified, therefore, that there was no opportunity to provide
     advance notice of the inspection to miners working underground. Tr. 409. Stephenson
     further testified that this arrangement never caused any problems. Tr. 410. The
     Secretary did not establish any history of providing advance notice at the
     WLPM.

Hatcher testified
that once Stephenson and the three inspectors began traveling inby, they
stopped a vehicle coming out, which had some hourly miners on it, and asked if
the miners wanted to accompany the inspectors. The miners declined and were
instructed not to tell anyone that the inspectors were in the mine. Tr. 484-85.
Morris confirmed that miner’s representative Ron Pinkston was given and
declined the opportunity to turn around and follow the inspection party. Tr.
458-59.

Eventually,
inspectors Morris and Hatcher instructed Stephenson to drop them off at the 4th
North and 1st West belt intersection. Tr. 417. Morris inspected the 4th North
belt and wrote three citations that are not at issue, one for unsupported roof
in the corner of an intersection on the belt line; one for a hole in a
ventilation stopping; and one because four contract miners did not have
multi-gas detectors. Tr. 457, 460-61.

After writing these
citations without any management representative present, Morris contacted mine
manager, Joel Hughes, because Morris could not leave the contract miners
without multi-gas detectors. Tr. 447-451, 462. When Hughes arrived, Morris
informed Hughes about the three citations that he had written and Hughes went
and obtained multi-gas detectors for the contract miners. Tr. 450-451. Morris
then offered Hughes the chance to accompany him as he walked the rest of the
belt, but Hughes declined. Tr. 450.

As noted, Hatcher
inspected the 1st West belt and wrote the three citations at issue, Citation
Nos. 8431250, 8431251, and 8431252, between 9:45 and 10:45 p.m. Tr. 487; P.
Exs. 9, 10, 12. In his notes, Hatcher wrote “Declined” in the space used to
identify the miners’ representative. But in the space used to identify the
company representative, Hatcher wrote, “Impact Inspection.” P. Ex. 14, at 1.

Citation No. 8431250
alleges a violation of 30 C.F.R. § 75.333(h) and states:        

The
Kennedy equipment doors separating the intake (primary escape way) from the 1st
West conveyor belt at cross cut #13 are not being maintained to serve the
purpose for which they were built. The equipment doors next to the belt
conveyor line are damaged. The west door has a hole at the top of the door 1
inch to 3 inches in width x 5 feet in length. The east door has a hole along
the bottom of the door and is 12 inches to 3 inches in width x 6 feet in
length. Air is leaking through the bottom and top of the doors to the belt
line. This was determined by chemical smoke.

Standard
75.333(h) was cited 28 times in two years at mine 1103054 (28 to the operator,
0 to a contractor).

P. Ex. 9. The citation was
designated non-S&S, unlikely to result in a lost workdays or restricted
duty injury, with one person affected, and the result of high negligence. Id. The
proposed penalty is $873.

Citation No. 8431251
alleges a violation of 30 C.F.R. § 75.400 and states: as follows:

Accumulation
of combustible materials in the form of coal pressing have been allowed to
accumulate under the bottom return roller at cross cut #37. The bottom return
roller is in contact with the coal pressing and the mine floor. The belt was in
service at time of inspection.

P. Ex. 10. The citation was
designated S&S, reasonably likely to result in a lost workdays or
restricted duty injury, with one person affected, and the result of high
negligence. Id. The proposed penalty is $13,268.

Citation No. 8431252
alleges a violation of 30 C.F.R. § 75.1731(b) and states:

Conveyor belts must
be properly aligned to prevent the moving belt from rubbing the structure or components.
The bottom return conveyor belt on the 1st west conveyor belt line is not
properly aligned and is rubbing the steel bottom roller hanger brackets at the
following locations: 2 bottom brackets at cross cut #5 to cross cut #6, 1
bottom roller bracket at cross cut #6 to cross cut #7, and 2 bottom roller
brackets at cross cut #7. Also the bottom return belt is in contact with 1
bottom belt stand on the south side of the conveyor belt at cross cut #10 and
at cross cut #37 the bottom return conveyor belt has bee[n] in contact with the
bottom belt stand and has cut through the steel 2 inch bottom belt stand for a
depth of 1¾ inches.

P. Ex. 12. The citation was
designated non-S&S, unlikely to result in a lost workdays or restricted
duty injury, with one person affected, and the result of high negligence. Id. The
proposed penalty is $1,203.

The Secretary
provided no evidence that Respondent’s representatives were informed of or
learned of the violations written by Hatcher shortly after he observed them.

Meanwhile, after
dropping Hatcher and Morris off, Stephenson continued driving inspector Stanley
inby and dropped him off at the tail of the 2nd West belt. Tr. 418, 469. At
that location, hourly belt shoveler Lonnie Frederickson was present and Stephenson
asked Frederickson to act as a miner’s escort with Stanley. Tr. 418-19. Stephenson
then parked at the head of the 2nd West belt and rejoined Stanley. Tr. 418-420.

After accompanying
Stanley for part of his inspection of the 2nd West belt, Stephenson
subsequently met Hatcher and then Morris, before driving all three inspectors
out of the mine. Tr. 420-21. On the surface, the inspectors met with the
midnight-shift mine manager, Nathan Genesio, and the midnight-shift miners’
representative, Martin Long, during the closeout conference. Neither Genesio
nor Long raised any issue about denial of walkaround rights. Tr. 463.

It is undisputed that
no company escort or walkaround representative was with Hatcher when he wrote
the three citations at issue during his inspection of the 1st West belt. Tr.

420. Respondent argues that this was because Miller told Stephenson above
     ground that he would not permit Stephenson to make any phone calls to obtain
     additional escorts. R. Br. 70-71. The record establishes that Respondent
     provides its escorts with training on how to take samples, heat gun
     measurements, photographs and notes, and how to gather other information
     relating to particular cited conditions. Respondent does this, in part, to
     facilitate the presentation of mitigating factors to the inspector, which
     address gravity and negligence findings in a citation/order. Tr. 410-413. Of
     particular relevance, Stephenson testified that if an inspector, such as
     Hatcher here, was walking a belt line and found a roller turning in
     accumulations or a belt rubbing at the stand, the escort would use a heat gun
     to determine the temperature of the frictional ignition source and assess the
     likelihood of fire. Tr. 411. Similarly, for a rock dusting or accumulation
     citation, the escort would take a sample to determine the combustibility
     content. Tr. 411-12.

By contrast, the
Secretary argues that at no time during Hatcher’s inspection did any management
representative seek Hatcher out in an effort to accompany him. P. Br. 66 (citing
Tr. 489). In addition, the Secretary emphasizes that Stephenson did not ask to
make any phone calls after he dropped off the inspectors underground, although
he had the ability to call anywhere in the mine. In fact, Stephenson never
asked any of the three inspectors whether he could call additional company
representatives to accompany the inspectors once they were in place. P. Br.
64-65 (citing Tr. 424, 444, 470). Respondent notes, however, that Morris and
Hatcher began their inspections as soon as they got off their ride upon arrival
at their locations, and based on Morris’s testimony about not waiting on the
surface, Respondent argues that the inspectors were not going to wait for
management representatives or escorts to arrive underground. R. Br. 62, at n.
45, 71, 72 (citing Tr. 456, 495, 500-01).

Morris testified that
Stephenson could have made phone calls once the inspectors were in place
because that would not have constituted pre-notification. Tr. 444. Hatcher also
testified that Stephenson could have asked for a management representative to
accompany Hatcher on his inspection. Tr. 485-86.

Stephenson never
indicated to the inspectors that he was upset that more management
representatives were not with him to accompany the inspectors. Tr. 424-25, 444,
470, 485. To the contrary, Stanley described Stephenson as very amicable. Tr.

470. The Secretary, however, failed to establish that any inspector advised
     Hatcher that he could call additional representatives once the inspectors were
     in place or extended him the opportunity to do so after Miller issued his
     directive on the surface that Stephenson not call anyone.

2.         Legal
Analysis

a.         No
Fourth Amendment Violation is Present

At the outset, I
reject Respondent’s argument that any denial of section 103(f) walkaround
rights, by extension, is also a violation of the Fourth Amendment’s protection
“against unreasonable searches and seizures” because the opportunity to
accompany inspectors is critical to the Mine Act’s “inspection program,” which justifies
warrantless searches. Cf., New York v. Burger, 482 U.S. 691, 703 (1987). In
Donovan v. Dewey, the Supreme Court held that warrantless inspections of mines
pursuant to Section 103(a) of the Mine Act are not per se unreasonable and
therefore do not violate the Fourth Amendment. 452 U.S. 594, 605 (1981). Respondent
argues that warrantless inspections, even in the context of a pervasively
regulated industry such as mining, are deemed reasonable only if three criteria
are met. Burger, 482 U.S. at 702 (1987). First, there must be a substantial
government interest that informs the regulatory scheme to which the inspection
is made. Id.; Donovan, 452 U.S. at 602. Second, the warrantless inspection must
be necessary to further the regulatory scheme. Burger, 482 U.S. at 702;
Donovan, 452 U.S. at 600. Third, the statute’s inspection program, in terms of
the certainty and regularity of its application, must provide a constitutional
substitute for a warrant. Burger, 482 U.S. at 703; Donovan, 452 U.S. at
604-605.

It is noteworthy that
an “impact inspection” is not mentioned in the Mine Act or any MSHA-promulgated
regulation. It is a special initiative following the explosion at the Upper Big
Branch Mine (UBB) to enhance surprise and promote miner safety and health, the
paramount concern of the statute. Monthly impact inspections, which began in
force in April 2010 following the explosion at UBB, involve mines that merit
increased agency attention and enforcement due to poor compliance history or
particular compliance concerns. These matters include: high numbers of
violations or closure orders; frequent hazard complaints or hotline calls; plan
compliance issues; inadequate workplace examinations; a high number of
accidents, injuries or illnesses; fatalities; and adverse conditions, such as
increased methane liberation, faulty roof conditions, inadequate ventilation
and accumulations of respirable dust. See, e.g., Press Release No. 13-2103-NAT,
MSHA, MSHA Announces Results of September Impact Inspections (Oct. 31, 2013),
available at http://www.msha.gov/MEDIA/PRESS/2013/NR131031.asp.

Typically, an impact
inspection involves multiple inspectors who simultaneously arrive unannounced
at a pre-selected mine site, capture the phones to preclude advance notice, and
spread out to find as many violations as possible. MSHA targets mines with a
particular history of compliance problems. Such problems include use of tactics
to hide violations from MSHA; employee hazard complaints or anonymous hotline
calls; non-compliance with MSHA-approved plans; inadequate workplace exams; a
high injury rate; a fatality; a pattern of violations; or hazardous conditions
at the mine. See, e.g., Michael T. Heenan, Dreaded Impact, Pit & Quarry,
Nov. 2012, at 50. As in this case, these surprise impact inspections often
occur mid-shift or during night shifts, when fewer representatives are
available to accompany the inspectors on behalf of the operator. Id.

As practitioner
Heenan points out, however, such inspections are not really new because MSHA
has been doing “blitz” inspections since the earliest days of the Federal Coal
Mine Health and Safety Act of 1969 (Coal Act), and they have continued under
the Federal Mine Safety and Health Act of 1977 (Mine Act) as consistent with
provisions that encourage “frequent inspections.” Id. After the UBB disaster,
however, MSHA’s impact inspections are conducted nearly every month under a
formalized program in which mines are selected according to the
above-referenced criteria and the results are publicly announced. Id. Accordingly,
I find that the certainly and regularity of impact inspections targeting
particular mines that meet specific criteria satisfies constitutional search
and seizures concerns irrespective of whether distinct and separate statutory
walkaround rights are violated.

Furthermore, in the
circumstances of this case, I find that the public interest in promoting safety
at the WLPM outweighs the inconvenience of unannounced, warrantless impact
inspections that make the exercise of statutory walkaround rights more
difficult. Section 103(a) of the Act explicitly gives MSHA inspectors the right
to enter any mine without any advance notice of an inspection. 30 U.S.C. §
813(a). In fact, section 103(a) of the Act grants MSHA inspectors the right to conduct
warrantless inspections in the inherently dangerous and pervasively regulated
mining industry to ensure compliance with mandatory health and safety standards
without violating the Fourth Amendement. Donovan v. Dewey, 452 U.S. 594, 596,
603, 605 (1986). Accordingly, mine operators must be aware and expect
continuous and frequent impact inspections without a warrant or probable cause.

b.         The
Statutory Provisions in Tension: Section 103(a) Must be Balanced with Section
103(f)

Section 103(a) of the
Mine Act states in part, “[i]n carrying out the requirements of this
subsection, no advance notice of an inspection shall be provided to any person
. . . .”

Section 103(f) of the
Mine Act states in pertinent part:

Subject
to regulations issued by the Secretary, a representative of the operator and a
representative authorized by his miners shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the provisions of
subsection (a), for the purpose of aiding such inspection and to participate in
pre- or post-inspection conferences held at the mine . . . . Compliance with
this subsection shall not be a jurisdictional prerequisite to the enforcement of
any provision of this Act.

The Secretary has not
issued any regulations under section 103(f). Nor has the Secretary issued any
regulations to govern impact inspections, which have become prevalent since the
April 2010 UBB coal mine disaster.

I agree with the
Secretary that the ability of MSHA inspectors to protect miners from deadly
hazards without advance notice of an inspection under section 103(a) of the
Mine Act must be balanced with the operator’s right to accompany the inspector
under section 103(f) of the Mine Act during an inspection. P. Br. 61. This case
presents the novel issue of how the Commission should determine such balance
during an impact inspection involving multiple inspectors when MSHA
specifically informs the operator’s walkaround representative not to make any
phone calls and to escort multiple inspectors underground. I conclude that MSHA
is obligated to provide an opportunity to an operator representative to
accompany each inspector for the purpose of aiding each inspection. Otherwise,
statutory rights under section 103(f) effectively vanish during impact
inspections.

In this case, there
was no outright denial of Respondent’s walkaround rights as in SCP Investments.
Respondent’s representative Stephenson was given an opportunity to accompany
the Secretary’s authorized representatives. But Stephenson could not be in
three places at once to aid the inspectors when they fanned out underground,
and he was specifically instructed by Miller, the lead MSHA supervisor for the
WPLM, not to make any phone calls.

The statutory
language of section 103(f) uses the word “representative” in the singular,
i.e., “a representative of the operator and a representative authorized by his
miners shall be given an opportunity to accompany the Secretary or his
authorized representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsection (a), for the purpose of
aiding such inspection . . . . “ In the legislative history, however, the
Senate Committee explained that section 103(f) requires “that representatives
of the operator and miners be permitted to accompany inspectors in order to
assist in conducting a full inspection. It is not intended, however, that the
absence of such participation vitiate any citations and penalties issued as a
result of an inspection.” SCP Invs., 31 FMSHRC at 831 (citing Rep. No. 95-181,
at 28 (1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 616
(1978). Thus, the Commission has held that Section 103(f) affords both
representatives of operators and representatives of miners the right to
accompany an MSHA inspector during a “physical inspection of [the] . . . mine”
and to “participate in pre- or post-inspection conferences held at the mine.” See
Sec’y of behalf of Wayne v. Consolidation Coal Co., 11 FMSHRC 483, 488 (April
1989) (citing 30 U.S.C. § 813(f)).

This right to
accompany an inspector is not an unqualified right because it is “[s]ubject to
regulations issued by the Secretary,” requires that a representative “be given
an opportunity to accompany” the inspector, and grants the inspector discretion
to permit additional representatives where he determines that more than one
walkaround representative would aid his inspection. Id. (citing 30 U.S.C. §
813(f); Emery Mining Corp., 10 FMSHRC 276, 279 (Mar. 1988)). Furthermore, the
Secretary has given MSHA inspectors the authority to limit the number of
representatives participating in an inspection, consistent with the primary
obligation to carry out inspections in a thorough, detailed, and orderly
manner. Interpretative Bulletin, 43 Fed. Reg. 17546 (1978); Emery Mining Corp,
10 FMSHRC at 289, n. 13. More specifically, the Secretary’s Interpretative
Bulletin, which sets forth guidelines for the inspector’s interpretation and
application of section 103(f) provides that “[w]here necessary in order to
assure a proper inspection, the inspector may limit the number of
representatives of the operator and miners participating in an inspection.” 43
Fed Reg. at 17546.

In this case,
however, the Secretary has failed to show that Miller’s directive to Stephenson
not to make any phone calls was necessary to assure a proper impact inspection
and preclude advance notice. Rather, on this record I conclude that MSHA failed
to give Respondent an opportunity to exercise its full section 103(f)
walkaround rights when Miller instructed Stephenson to transport three
inspectors underground and not to contact anyone or make any phone calls. Tr.

415. Miller explicitly denied Stephenson the “opportunity” to contact other
     management officials to act as operator representatives to aid in the
     inspection. I credit Stephenson’s testimony that he did not attempt to obtain
     company escorts for each of the three inspectors (Hatcher, Morris, and Stanley)
     because he was told by Miller not to make any phone calls. Tr. 416. Miller’s
     directive runs counter to MSHA’s statutory obligation to afford an operator
     representative an opportunity to accompany each authorized representative of
     the Secretary during the physical inspection of the mine.

I reject the
Secretary’s argument that MSHA did not deny Respondent an opportunity to escort
the inspectors because Stephenson should have called for an escort after
dropping off each inspector at the various locations. As noted, Stephenson was
given an explicit directive by Miller not to call anyone, and another
supervisory official (Bishop) was present when Miller’s directive was given.
Tr. 415. Stephenson recognized them as supervisory officials for MSHA. Id. I
decline to require Stephenson to buck Miller’s direct order and invoke or
insist on the opportunity for one-to-one walkaround rights either on the
surface or underground as a means of securing the opportunity that the statute
requires MSHA to give. But see NLRB v. J. Weingarten, Inc., 420 U.S. 251, 257
(1975) (employee’s statutory right to union representation during an
investigatory interview arises only where the employee requests representation;
hence, employee may forego his statutory right and participate in an interview
unaccompanied by his union representative). Of course, the Commission is free
to fashion a policy decision to the contrary.

Miller’s pre-emptive
directive to Stephenson suggests that MSHA had little interest in affording
Respondent its statutory opportunity to have a representative escort each
inspector for the purpose of aiding their impact inspection. Both on the
surface and underground, Stephenson complied with the government’s directive
and did not call any other management officials to act as company escorts. Tr.

416. As a result, Hatcher’s inspection of the 1st West belt was unescorted. Although
     inspectors are not required to wait for management escorts and can “walk” into
     a mine (Tr. 456-57), section 103(f) places the onus on MSHA to give an
     opportunity to company representatives to accompany the inspectors for purposes
     of aiding their inspection. In short, Miller’s directive, which Stephenson
     followed, denied Respondent an opportunity to escort Hatcher’s inspection.

The Secretary
justifies Miller’s directive to Stephenson not to call company escorts on the
grounds that Respondent cannot provide advance notice of an inspection. P. Br.

61. On this record, that justification is a red herring. All inspections
    preclude advance notice and operators are charged with this knowledge. The
    Secretary failed to establish that affording Respondent an opportunity to
    provide an escort for inspector Hatcher would compromise any protection against
    advanced notice of the inspection. On the contrary, Stephenson testified that
    regular inspections with multiple inspectors are common at the WLPM. Tr. 405,
62. Normally, during such inspections, MSHA provides Respondent with an opportunity
    to obtain a company representative for each inspector before the beginning of
    the inspection. Tr. 406, 416. Before such inspections, the inspectors would not
    tell the representatives where they were going to inspect so as to reduce any
    likelihood of advanced notice. Tr. 406-07, 494. These inspection procedures
    worked and the Secretary has not alleged any problems of advanced notice at the
    WPLM. Tr. 504. Therefore, on this record, the Secretary’s generalized concern
    over the possibility of advanced notice do not override the Respondent’s
    section 103(f) right to be given an opportunity to aid in each portion of the
    impact inspection, including Hatcher’s inspection.

In addition, I find
it telling that Hatcher’s notes state “Impact Inspection” in the space used to
identify a company representative, suggesting that MSHA may think that such
inspections are exempt from 103(f) requirements. At the very least, it would
appear that Hatcher never intended for there to be a company representative
with him during the impact inspection.

I reject any argument
that Stephenson was an operator representative, who was given an opportunity to
accompany Hatcher during his inspection. After transporting Hatcher to the 1st
West belt, Stephenson was required to drive further inby and drop inspector
Stanley off.

I also reject the
argument or any suggestion that section 103(f) rights do not apply in impact
inspections. Rather, I agree with Respondent that the Secretary cannot justify
MSHA’s failure to offer an opportunity to an operator representative to
accompany inspector Hatcher simply by characterizing the September 12, 2011
inspection as an “impact inspection” designed to preclude advance notice. I
note that inspector Morris, on cross examination, conceded that the impact
inspection was part of a regular EO1 inspection. Tr. 436. More importantly, the
Commission has held that walkaround rights under Section 103(f ) apply to all
inspections. Consolidation Coal Co., 16 FMSHRC 713, 719 (Apr. 1994) (issue of
miners’ representative). In fact, one Commission judge has characterized the
right of a mine operator to be afforded an opportunity to be present and to
accompany an inspector as a fundamental right and found that MSHA inspectors
must make every reasonable effort to give a mine operator an opportunity to
exercise its walkaround rights. DJB Welding Corp., 32 FMSHRC 728, 733, 735
(June 2010) (ALJ) (emphasis added).

Although impact
inspections make it more difficult for operators to invoke walkaround rights,
the enhanced miner safety and health that results from impact inspections
outweighs this difficulty. Furthermore, operator preparation and training for
impact inspection contingencies can alleviate this concern.

On the other hand,
MSHA cannot employ this successful and important initiative to deny an operator
its statutory right to accompany an inspector for the purpose of aiding such
inspection under section 103(f). As the Commission has stated, “[w]e are not
prepared to restrict the rights afforded by [section 103(f)] absent a clear
indication in the statutory language or legislative history of an intent to do
so, or absent an appropriate limitation imposed by Secretarial regulation.”) Consolidation
Coal Co., 3 FMSHRC 617, 618 (Mar. 1981). I find no clear indication in
statutory language, legislative history, or regulation to limit section 103(f)
rights during impact inspections.

In sum, I conclude
that MSHA failed to give Respondent an opportunity to accompany inspector
Hatcher for the purpose of aiding his inspection of the WLPM during the impact
inspection on September 12, 2011. This failure violated Respondent’s statutory
walkaround rights under section 103(f) of the Mine Act.

As a remedy for the
statutory infringement of Respondent’s walkaround rights, I apply an
exclusionary rule and determine what, if any, evidence from Hatcher’s
inspection of the 1st West belt should be excluded if Respondent can
demonstrate prejudice in the preparation or presentation of its defense. SCP
Invs. LCC, 31 FMSHRC at 835-37 (citing Frank Lill & Son, Inc. v. Sec’y of
Labor, 362 F.3d 840, 846 (D.C. Cir. 2004); Pullman Power Prods., Inc. v.
Marshall, 655 F.2d 41, 44 (4th Cir. 1981); Marshall v. Western Waterproofing
Co., 560 F.2d 947, 951-52 (8th Cir. 1977); Hartwell Excavating Co. v. Dunlop,
537 F.2d 1071, 1073 (9th Cir. 1976); Chicago Bridge, 535 F.2d at 376;
Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833-34 (5th Cir. 1975); Titanium
Metals Corp. of Am., 7 OSHC 2172 (Jan. 1980); Laclede Gas Co., 7 OSHC 1874
(Oct. 1979); Able Contractors, Inc., 5 OSHC 1975 (Oct. 1977)).

c.         The
Constitutional Due Process Issue

Before addressing an
exclusionary rule remedy for the statutory infringement of Respondent’s
walkaround rights, I first address Respondent’s argument that the erroneous
denial of its right to be given an opportunity to participate in Hatcher’s
inspection was a violation of constitutional due process. I do so because an
argument can be made based on non-precedential decisions of Commission judges
that a denial of due process may be grounds for vacating citations otherwise
jurisdictionally and substantively valid, i.e., a potentially stronger remedy
than application of an exclusionary rule. See SCP Invs., LLC., 32 FMSHRC 119,
at 124-25 (Jan. 2010) (ALJ after remand) (citing American Coal Co., 29 FMSHRC
941, 952-53 (Dec. 2007)); Gates & Fox Co. v. OSHRC, 790 F.2d 1189, 1193
(9th Cir. 1982) (considerations of due process prevent imposition of a civil
penalty and validation of a citation otherwise properly issued); DJB Welding,
32 FMSHRC at 734-35 (suggesting, even after the Commision’s decision in SCP
Investments, that a violation of walkaround rights that results from an abuse
of discretion provides a sufficient basis for vacating citations). It is
troubling that the Secretary does not even address the Respondent’s due process
arguments on brief, even though the Secretary was clearly on notice at the
hearing that Respondent was raising this constitutional issue when Respondent
unsuccessfully moved to vacate the citations written by inspector Hatcher. Tr.
398-400.

In its remand in SCP
Investments, Commissioners Young and Cohen noted that “[t]he only possible
basis to overcome the [jurisdictional] statutory language would have to be
constitutional in nature, such as a violation of the Due Process Clause,” a
“complex issue” not presented in that case. 31 FMSHRC at 834, fn. 14. Extant
Commission case law establishes that violations of due process are grounds for
vacating citations otherwise jurisdictionally and substantively valid. American
Coal Co., 29 FMSHRC at 952-53 (citing Gates & Fox Co. v. OSHRC, 790 F.2d at
1193). Consequently, the constitutional issue presented in this case is whether
MSHA’s denial of the Respondent’s statutory section 103(f) walkaround right to
accompany inspector Hatcher when he wrote citations on the 1st West belt line
was a due process violation. Especially cognizant of the judge’s analysis of
this issue on remand from the Commission in SCP Investments, I conclude that
MSHA’s conduct during the subject impact inspection constituted a
constitutional violation of procedural due process.

The Fifth Amendment
provides that “no person shall be . . . deprived of life, liberty, or property,
without due process of law . . . .” Clearly, no deprivation of life occurred
here. Nor do I find any deprivation of a liberty interest. Concededly, the
Supreme Court recognized in Board of Regents v. Roth, that the definition of
liberty must be “broad” and include “not merely the freedom from bodily
restraint but also the right of an individual to contract, to engage in any of
the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the
dictates of . . . conscience, and generally to enjoy those privileges long
recognized . . . as essential to the orderly pursuit of happiness by free men.”
408 U.S. 564, 576-78 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 392
(1923)). Despite this broad definition, the Roth court did not look to the
“weight but to the nature of the interest at stake” and held that the
opportunity to keep a teaching positions at a state university, or other
government job was not comparable to those freedoms enunciated in Meyer. 408
U.S. at 575. Similarly, I find that the mandatory language in section 103(f)
creating a statutory right in an operator representative to be given an
opportunity to accompany an MSHA inspector for the purpose of aiding in an
inspection does not implicate a major loss of personal freedom or liberty such
that due process protections must be accorded. Compare Goss v. Lopez, 419 U.S.
565 (1975) (ten-day suspension from high school implicates liberty interest),
and Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation), and
Morrisey v. Brewer, 408 U.S. 471 (1972) (parole revocation), with Sandin v.
Conner, 515 U.S. 472 (1995) (mandatory language in state prison regulations
will not create a liberty interest for placement in solitary confinement
because of prison misconduct unless the deprivation imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life).     

The property interest
analysis is more difficult. The Roth Court recognized that a property interest
is “a legitimate claim of entitlement” that arises, not from the Constitution
itself, but is created and defined “by existing rules or understandings that
stem from an independent source such as state law-rules or understandings that
secure certain benefits and that support claims of entitlement to those
benefits.” Roth, 408 U.S. at 576-78. Thus, Respondent must demonstrate that
some authoritative source of law “establishes a definite standard to guide the
decision . . . rather than confiding the decision to the discretion of the
administering authorities.” See Gilbert v. Frazier, 931 F.2d 1581 (7th Cir.
1991). For example, in Goldberg v. Kelly, where the Court finally abandoned the
right-privilege distinction, the welfare claimants had a property interest at
stake because the underlying federal legislation provided that individuals who
met certain criteria had a legal right to receive welfare payments. 397 U.S.
254, 261-63 (1970); see also Mathews v. Eldridge, 424 U.S. 319 (social security
benefits).

Here, Respondent has
demonstrated a legitimate claim of entitlement to be given an opportunity to
accompany inspector Hatcher during his inspection of the 1st West belt. Like in
Goldberg v. Kelly and Mathews v. Eldridge, this right is grounded in federal
statute, specifically section 103(f) of the Mine Act. The denial of
Respondent’s statutory right to be given an opportunity to accompany inspector
Hatcher during the impact inspection for the purpose of aiding such inspection
also operated to deprive Respondent of an opportunity to provide exculpatory
information or a different version of the facts during the course of the
inspection, which could have been relied on during participation in the
post-inspection conferences at the mine, and in its defense of the civil
penalty petition at trial. Obviously, any civil penalty assessed compels
Respondent to relinquish money, which is a tangible property interest.

Despite the
Secretary’s silence, I recognize that an injury to a protected property
interest does not qualify as a deprivation if the injury is inflicted through
mere negligence rather than deliberation. See, e.g., Daniels v. Williams, 474
U.S. 327 (1986). On this record, however, I find that MSHA made a deliberate
decision to limit walkaround rights during the impact inspection. Two facts
lead inexorably to this conclusion. Lead field office supervisor Miller
instructed Stephenson not to make any phone calls with the foreseeable result
that Stephenson, without disobeying the government edict, could not obtain
sufficient company representatives. Second, Hatcher’s notes indicate that no
company representative was needed because this was an impact inspection.

Since I have
determined that a constitutionally protected property interest was infringed, I
next address what procedures the Constitution requires for the violation. In
Matthews v. Eldridge, the Court endeavored to maintain flexibility in due
process analyses based on the particular situation presented. The Court looked
to three factors in order to determine what process is due.

First, the private
interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value if, any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirements would entail.                  

Mathews v. Eldridge, 424 U.S. at
334-35 (1976) (citing Goldberg v. Kelly, 397 U.S. at 263-271).

Addressing the first
factor, the deprivation of Respondent’s private interest to accompany inspector
Hatcher for the purpose of aiding in his inspection is readily apparent. A
major objective of the Mine Act is to encourage the efforts of mine operators
and miners “to prevent the existence of . . . [hazardous] conditions and
practices in . . . mines.” 30 U.S.C. § 801(e). Accordingly, section 103(f) of
the Act confers the right of representatives of mine operators and miners to
accompany inspectors during inspections “for the purpose of aiding such
inspection.” 30 U.S.C. § 813(f). See SCP Invs. LLC, 32 FMSHRC 119, 126-27 (Jan.
2010) (ALJ). Skirting the statutory walkaround requirement during an impact
inspection or otherwise could deprive the inspector of important information
that would have been supplied to him by the operator representative had one
been given an opportunity to accompany the inspector. Cf., SCP Invs. LLC, 31
FMSHRC at 843 (Jordan, Commr., dissenting).

With regard to the
second factor, I have determined that MSHA’s instant impact inspection, as
carried out consistent with Miller’s directive that Respondent not make any
phone calls, erroneously deprived Respondent of its statutory right to be given
an opportunity to accompany inspector Hatcher during his inspection of the 1st
West belt. The Secretary, having failed to even address the complex due process
argument raised by Respondent, obviously has failed to proffer any additional
or substitute procedural safeguards for protecting Respondent’s walkaround
rights. But this does not mean that there are none. Even though the statutory
walkaround violation that I have found constitutes a denial of due process
because of the erroneous denial of Respondent’s right to be given an
opportunity to participate in Hatcher’s inspection, I find that any process due
for violation of this statutory right is constitutionally satisfied by
application of an exclusionary remedy as explained by the Commission plurality
in SCP Investments. This finding accounts for the Commission’s unanimous
conclusion that even MSHA’s intentional failure to honor statutory walkaround
rights under section 103(f) does not prevent MSHA from taking enforcement
action under the last sentence of that provision, which precludes vacature. SCP
Invs. LLC, 31 FMSHRC at 831.

Finally, turning to
the Government’s interest, including the function involved and the fiscal and
administrative burdens that [any] additional or substitute procedural
safeguards would entail, I have no doubt that impact inspections, which are
designed for surprise and to preclude advance notice, enhance miner safety and
health. But MSHA can still employ this successful and important initiative
without denying an operator its statutory right to be afforded an opportunity
to accompany each inspector on an impact inspection for the purpose of aiding
the inspection under Section 103(f). MSHA’s provision of this mandatory but
qualified right imposes no significant fiscal or administrative burden on
MSHA’s inspection regime.

In fact, affording
Respondent an opportunity to participate in Hatcher’s inspection, furthers,
rather than burdens, the Government’s interest in encouraging a safer mining
environment. There can be little doubt that Respondent’s representatives are familiar
with the particular conditions that are unique to the WLPM. A representative of
a mine operator can alert an inspector to potential dangers based on
familiarity with the mine. Mine operator representatives, like miner
representatives, are assets to a successful mine inspection, which seeks to
identify hazardous conditions and require remedial actions to alleviate the
dangers. See SCP Invs. LLC, 32 FMSHRC at 126. Accommodating walkaround rights
does not result in any significant administrative burden other than having to
deal with a representative who may point out hazards, offer justifications,
proffer mitigating circumstances, and collect evidence that may support a
perspective contrary to the inspector’s view at hearing.

Accordingly, MSHA
must accommodate an operator’s statutory walkaround rights during an impact
inspection with as little vitiation as is necessary to perform its inspection
function effectively without advance notice. Here, MSHA has not done that. Miller’s
directive precluding any phone calls to invoke a statutory right, was less
designed to preclude advance notice, already outlawed under section 103(a),
than a purposeful effort to preclude Respondent’s representatives from
accompanying the three inspectors. Hatcher’s notes bolster this inference. MSHA
had many options available to afford Respondent an opportunity to aid in the
impact inspection. And since MSHA failed to do so, an exclusionary rule can be
applied to remedy the violation and provide a sufficient procedural safeguard
should the operator demonstrate that it was prejudiced by the violation.  

d.         The
Exclusionary Rule and Evidence of Prejudice

Applying an
exclusionary rule pursuant to the plurality opinion of the Commission in SCP
Investments, I determine whether MSHA’s actions during the impact inspection
prejudiced Respondent. Under this approach, once a determination is made, as
here, that an operator’s walkaround rights were violated, the Commission
determines what prejudice, if any, resulted from the violation and what, if
any, evidence proposed for admission by the Secretary should be excluded
because of prejudice to the operator, i.e., some, none, or all of the evidence
resulting from the inspection. 31 FMSHRC at 836-37.

Relying on the
judge’s post-remand decision in SCP Investments, Respondent argues that an
arbitrary denial of section 103(f) rights is prejudicial per se, regardless of
whether it interferes with an operator’s ability to defend itself. R. Br. 78-79
(citing SCP Invs., 32 FMSHRC at 128-29). While I am sympathetic to this
argument, the Commission requires a showing of actual prejudice to the
preparation or presentation of the defense. See, e.g., Long Branch Energy, 33
FMSHRC 1960 (Aug. 2011) (ALJ), rev’d, 34 FMSHRC 1984, 1992 (Aug. 2012) (Duffy,
Comm’r, dissenting) (rejecting Supreme Court’s “danger of prejudice” factor
enunciated in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380,
395 (1993), and requiring that the prejudice be “real” or “substantial” and
demonstrated by a specific showing tied to “the preparation and presentation of
the operator’s case.”); Chicago Bridge, 535 F.2d at 374, 377 (essentially
rejecting company argument that to allow the Secretary to bypass the statutory
walkaround right will permit the inspection process to operate on the employer
in an “inherently prejudicial manner,” and emphasizing both substantial
compliance with the walkaround right and the failure of the company to
demonstrate “any concrete prejudice to its defense by the exclusion from the inspection
party”). On this record, however, Respondent has made a sufficient case that it
was actually prejudiced in the preparation or presentation of its typical
defense to the citations.

Actual prejudice
occurs when an operator can show that the denial of section 103(f) rights
resulted in an inability to prepare or present its defense on the merits before
the Commission. See SCP Invs. LLC, 31 FMSHRC at 835 (Aug. 2009) (citing
Titanium Metals Corp. of Am., 7 OSHC 2172 (Jan. 1980); Laclede Gas Co., 7 OSHC
1874 (Oct. 1979); Able Contractors, Inc., 5 OSHC 1975 (Oct. 1977)). For
example, an operator’s ability to defend itself is adversely affected by the
absence of an opportunity to provide material contemporaneous information at
the time of the inspection. SCP Invs. LLC, 32 FMSHRC at 128-29; but see
Marshall v. W. Waterproofing Co., 560 F.2d 947, 951-52 (8th Cir. 1977) (a
showing that a large number of citations were withdrawn and a small number of
citations were sustained after a complaint was filed, coupled with the fact
that an employer had to post all citations at the workplace, do not establish
prejudice to an operator’s ability to defend on the merits); Titanium Metals
Corp. of Am., 7 OSHC 2172 (a claim that failure to comply with the walkaround
provision could create labor-management problems is not the type of prejudice
contemplated by the OSHA). Rather, actual prejudice occurs when the operator
makes a specific showing that the misbehavior prejudiced it in preparing or
presenting its defense. A. J. McNulty & Co., 19 OSHC 1121, 1125 (Oct. 2000)
(finding no prejudice since the operator’s representatives learned of the
violations almost immediately after the inspector observed them); see also
Laclede Gas Co., 7 OSHC 1874 (Oct. 1979). Essentially, this actual prejudice
requirement puts the burden on the operator to establish the speculative
possibility that the inspection would have revealed different facts or the
operator would have been aided in preparation of its typical defense to the
citations.

On remand in SCP
Investments, the judge recognized the difficulty in applying an exclusionary
hearing to determine what information, if any, would have been provided during
the inspection in defense of each citation.

Having been deprived
of the opportunity, we will never know what information Stone would have
provided during the December 2005 inspection. Any testimony he now may give
concerning what he might have said is entitled to little weight because it is
remote in time and self-serving. In other words, the Secretary’s denial of
Stone’s due process has undermined the value of Stone’s testimony. Certainly,
the Government should not benefit from its own misconduct. Rather, two
Commissioners suggested that I determine, in view of the denial of Stone’s 103(f)
walkaround right, whether “none, some, or all of the evidence resulting from
the inspection” should be excluded. 31 FMSHRC at 836-37.

Once due process
issues arise, all direct and indirect evidence obtained as a result of a
government official’s abuse is excluded. See, e.g., Weeks v. United States, 232
U.S. 383 (1914); Nardone v. United States, 308 U.S. 338, 341 (1939)
(suppression of “fruit of poison tree”); Wong Sun v. United States, 371 U.S.
471, 484 (1963) . . . . Having given the Secretary the opportunity to address
the due process issue, and, having determined that Stone’s right to due process
was violated, all evidence obtained as a result of the inspector’s observations
of the mine conditions during the inspection must be excluded. Weeks, supra.     

I decline to exclude
all direct and indirect evidence obtained as a result of MSHA’s violation of an
operator’s walkaround rights. In my view, such a result essentially compels
exclusion without initial assessment of the prejudice issue in application of
an exclusionary rule.

Given the difficulty
of determining what evidence would have been presented had an operator’s
statutory rights not been violated by MSHA, I am of the view that a practical,
flexible and fact-based test of prejudice should take into account the dynamic
nature of the mining industry. Accordingly, when an operator is put on notice
of the safety or health violation at issue, it is prejudiced if it is unable to
go and observe the condition or practice cited as the inspector saw it in order
to defend itself against the alleged condition. After all, the operator has
only been deprived of the opportunity to accompany the inspector and observe or
test as the inspector did. If this opportunity is still available, the operator
is not actually prejudiced by the denial of the opportunity to observe and
test. Although there may be a denial of the opportunity to timely proffer
mitigating circumstances to the inspector, the operator can still raise
mitigating circumstances in an attempt to reduce a negligence determination
after the fact and at trial.

In this case,
Respondent has offered some evidence to demonstrate that it was prejudiced in
its ability to prepare its defense to the unescorted Hatcher citations. Respondent
focuses on specific prejudice that is best illustrated by Citation No. 8431251.

1.         Citation
No. 8431251

Citation No. 8431251
alleges an S&S violation of section 75.400 for accumulations present along
the 1st West belt line. P. Ex. 10. Stephenson credibly testified, and
Respondent essentially demonstrated throughout the hearing, that for citations
involving an alleged accumulation of combustible material, Respondent’s
walkaround representative would typically take a sample of material to
determine the combustibility content (Tr. 411-12), take a heat reading to
determine the amount of heat the alleged frictional ignition source would
generate (Tr. 411), and take measurements and/or photographs to provide
additional information about the condition. Here, because MSHA failed to afford
Respondent an opportunity to accompany inspector Hatcher to aid his inspection,
Respondent had no opportunity to gather such specific evidence in defense of
Citation 8431251. In short, because Respondent was not afforded the opportunity
to provide a representative to accompany inspector Hatcher along the 1st West
belt line, Respondent was precluded from gathering the very types of evidence
in defense of Citation No. 8431251 that it relied upon for its defenses of
Order No. 8030700, Order No. 8428378, Citation No. 8428798 and Citation No.
8436403, discussed herein.

It is undisputed that
Respondent was denied any opportunity to sample the material cited to determine
its combustibility content. The standard, 30 C.F.R. § 75.400, requires an
accumulation of combustible material. Respondent argues that such evidence
would have been particularly critical because the Secretary’s three photographs
of the condition (P. Ex. 11) arguably shows material consisting of
incombustible white rock dust. R. Br. 82. If Respondent could show that the
material cited was not combustible coal pressings, but incombustible,
rock-dusted material, there would be no violation of the standard and the
citation could be vacated. Respondent has made a colorable showing that it was
denied this opportunity.

In addition,
Respondent argues that it was denied any opportunity to take a heat reading of
the alleged frictional ignition source to determine if the roller that was in
contact with the coal pressings was capable of generating heat sufficient to
produce an ignition or smoldering fire, i.e., the basis for Hatcher’s S&S
finding. See Tr. 528-30. Although extant Commission case law is not sympathetic
to this argument for overturning an S&S finding, Respondent was denied the
opportunity to support the arguments it has raised in an effort to convince the
Commission otherwise. Further, although Hatcher determined negligence to be
high because the operator had been put on notice about citations of this
nature, Respondent was denied any opportunity to take measurements or
photographs of the alleged condition to counter Hatcher’s testimony that the
condition was open and obvious, such that a belt examiner knew or should have
known about it. Tr. 532. Moreover, Respondent was denied the opportunity to
present any mitigating circumstances to inspector Hatcher at the time of the
inspection or shortly thereafter based on observations made by its
representative.

Applying the
exclusionary rule in light of Respondent’s prejudice arguments, I exclude all
evidence that resulted from the unescorted inspection, including the
Secretary’s photographs and Hatcher’s testimony proffered in support of
Citation 8431251. Such exclusion is appropriate because Respondent’s section
103(f) walkaround rights were violated and Respondent has demonstrated
sufficient prejudice because it was denied the opportunity to observe, test,
and/or photograph the alleged combustible material and frictional heat source
in the same condition that the inspector observed them. See SCP Inves., 31
FMSHRC at 835; Chicago Bridge, 535 F.2d at 378; Marshall, 560 F.2d at 952. Upon
such exclusion, there is insufficient independent evidence to support Citation
8431251 and the proposed penalty.

2.         Citation
No. 8431250

I next turn to Citation
No. 8431250 alleging that Respondent violated section 75.333(h) because the
Kennedy equipment doors separating the intake air from belt air at cross cut

13 were not being maintained to serve the purpose for which they were

intended. In its SCP Investment decision, the plurality found that evidence may
be excluded “when the employer can demonstrate prejudice.” SCP Invs. LLC, 31
FMSHRC at 835 (citations omitted). When addressing the question of prejudice in
Chicago Bridge, the Seventh Circuit noted that the Secretary bears the burden
of proof on the citation and the “company has not attempted to demonstrate that
this burden has not been met, nor has it offered evidence to demonstrate
prejudice.” 535 F.2d at 377, n. 15. Although Respondent has not made any
specific prejudice argument on brief with respect to Citation No. 8431250,
Respondent has at least attempted to demonstrate that the Secretary has not met
his burden of proof when an exclusionary rule is applied because it argues that
all evidence should be excluded.

The Secretary
attempts to prove the violation alleged in Citation 8431250 through Hatcher’s
observation and testimony that air was leaking through the top and bottom of
the doors to the belt line based on the chemical smoke test that Hatcher
performed, and from which Respondent was excluded. According to Hatcher, the
top of the west door had a hole that was one to three inches in width and five
inches in length, while the bottom of the east door had a hole that was three
to twelve inches in width and six feet in length. I conclude that Respondent
was not prejudiced by these measurements because it could go back and check
them shortly after notice of the violation. But the violation turns on whether
the doors were serving their intended purpose to separate the intake air from
the belt air, not on whether the doors were damaged. Although Respondent could
go back after the fact and observe the dimensions of the holes in the door, the
Secretary provided no evidence, separate from Hatcher’s testimony based on the
chemical test that he performed, which would establish that the doors were not
serving their intended purpose. The violation was only established by the
chemical test, which the operator was unable to observe or challenge. A
representative of Respondent was not given an opportunity to be present to
recreate the chemical test or challenge its methodology or reliability. The
Secretary failed to establish by any independent evidence that the extent of
the holes in the damaged doors necessarily established that the doors were not
being maintained to serve their intended purpose. While it may be possible to
make such an inference had the case been tried differently, in the absence of
such evidence on this record, I decline to draw the inference.

Applying the
exclusionary rule in light of the foregoing, I find that Respondent has been
prejudiced by its inability to observe and challenge Hatcher’s chemical test
and his testimony based on that test. Accordingly, I exclude such evidence. Upon
such exclusion, there is insufficient evidence to support a violation of the
standard, as written, or the proposed penalty.

3.         Citation
No. 8431252

Finally, I address
Citation No. 8431252, which alleges a violation of section 75.1731(b) because
the bottom return belt on the 1st west belt line was not properly aligned and
was rubbing steel hanger brackets at three specified locations, and because the
bottom return belt was in contact with a stand on the south side of belt at
cross cut #10, and had cut through the two-inch steel stand at cross cut #37
for a depth of 1¾ inches. Again Respondent has not advanced any specific
prejudice argument on brief with respect to this Citation, but has at least
attempted to demonstrate that the Secretary has not met his burden of proof
when I apply an exclusionary rule because all evidence from the inspection
should be excluded. I decline to exclude such evidence.

The violation turns
on whether the belt was misaligned and rubbing the brackets and cutting into
the stands. Respondent was not prejudiced by Hatcher’s testimony or the
photographs he took concerning this violation because Respondent could go back
and check the belt alignment and its contact points with the brackets and
stands shortly after notice of the violation, and Respondent could observe the
violation in essentially the same condition as inspector Hatcher observed it.

Accordingly, I affirm
Citation No. 8431252 as non-S&S, unlikely to result in a lost workdays or
restricted duty injury, with one person affected. Although Respondent was
denied the opportunity to timely proffer mitigating circumstances to the
inspector in an effort to reduce the high negligence determination, the
operator had an opportunity but failed to raise any mitigating circumstances after
the fact in the closeout conference or at trial. Guided by the regular
assessment criteria set forth in § 100.3 as applied to my findings above, I
assess a penalty of $1,203.

E.         Bench Decision
Granting Respondent’s Motion to Vacate Order No. 8428701

1.         The
Alleged Violation

At the end of the
hearing, the undersigned granted Respondent’s request for a bench decision to
vacate Order No. 8428701. Tr. 1056-57. MSHA inspector Fazzolare wrote that
Order alleging that Respondent had not conducted a pre-shift examination of the
right-side set of rooms in Unit 5 during the midnight shift on May 9, 2011. P.
Exs. 38, 39, at 12; Tr. 723-24.

Order No. 8428701 was
issued pursuant to section 104(d)(2) and initially alleged a violation of 30
C.F.R. § 75.360(a)(1), as follows:

There was
no evidence of a pre-shift examination being conducted on MMU 015-0, rooms to
the right on the number 5 unit, for day shift production crew.

There
were no D, T & I’s in any of the three entries of the rooms. The last time
there was evidence of a pre-shift examination was 05/08/2011 for the oncoming midnight
shift.

Standard
75.360(a)(1) was cited 2 times in two years at mine 1103054 (2 to the operator,
0 to a contractor).

The Order was
designated S&S because highly likely to result in a permanently disabling
injury, with nine persons affected. The Order was also alleged to be the result
of high negligence and an unwarrantable failure. P. Ex. 38.

Near the end of the
hearing, the undersigned granted the Secretary’s Motion to Plead in the
Alternative and allege a violation of 30 C.F.R. § 75.360(f), which states that
the pre-shift examination shall be certified at each working place by DTIs
(date, time, and initials). Tr. 1056.

The issues presented
are whether a violation of either alternatively pled standard in Order No.
8428701 was established; whether any such violation was properly designated
S&S and/or an unwarrantable failure; whether the gravity and negligence
determinations were proper; and the appropriate amount of any penalty.       

The Secretary argues
that Respondent violated 30 C.F.R. § 75.360(a)(1) as alleged in Order No.
8428701 because it failed to conduct a pre-shift examination of three entries
on the right side of the MMU 015 Unit. Alternatively, the Secretary argues that
Respondent violated 30 C.F.R. § 75.360(f) when it failed to certify the
pre-shift examination by date, time, and initials in the three entries on the
right side of the MMU 015 Unit.

Respondent argues
that the undersigned appropriately granted Respondent’s motion to vacate at the
close of the hearing because no violation occurred. Even assuming arguendo that
any violation occurred, Respondent argues that the gravity, S&S, high
negligence, and unwarrantable failure findings are excessive and not supported
by the record evidence, and the specially assessed penalty of $52,500 is
inappropriate.

2.         Factual
Background

a.         The
Secretary’s Evidence

Inspector Fazzolare
issued Order No. 8428701 at 9:30 a.m. on May 9, 2011 because he found a hazard
in the No. 1 entry, which was cut too wide, and he could not find any DTI tags
in the three right-side entries of the MMU 015 Unit. Tr. 723-724, 728. Fazzolare
testified that it was obvious to the casual observer that the width of the
entry was “wider than the law permits.” Tr. 730. Fazzolare designated Order
8428701 as significant and substantial because the excessively wide width of
the #1 entry contributed to the hazard of a roof fall, which should have been
identified by the pre-shift examiner during his examination, and this condition
was highly likely to result in permanently disabling injuries, such as multiple
broken bones. Tr. 728-33; P. Ex. 38. Fazzolare determined that the mine
examiner had not conducted a pre-shift examination of the three right-side
entries in violation of § 75.360(a)(1). Tr. 723-724. Fazzalore did not know who
the pre-shift examiner was and never spoke to him. Tr. 741.

Fazzolare determined
that undiscovered hazards, including but not limited to the wide entry contributing
to a roof fall hazard, would affect nine miners on the unit. Tr. 732-33. Fazzolare
also testified that methane gas buildup was another concern in the absence of a
pre-shift inspection. Tr. 732. The Secretary argues that Fazzolare’s
determination regarding the likelihood and severity of injury was reasonable,
particularly given the history of roof falls at the WLPM. Tr. 730.

Fazzolare testified
that he could have cited the condition as a violation of section 75.360(f)
because of the absence of the DTIs. Tr. 724. Fazzolare testified that the
hazard of not having DTIs in place is that miners would not know whether a
pre-shift examination has been performed or whether hazards exist in a
particular area of the mine. Tr. 730. When asked by the undersigned, why he did
not cite § 75.360(f), Fazzolare testified that “[o]nce I found the wide spot in
the entry, I was convinced that no pre-shift had been performed in them three
entries.” Tr. 751-52.

Fazzolare determined
that Respondent’s negligence was high and the violation was an unwarrantable
failure because he determined that the preshift examiner, an agent of the
operator, made a conscious decision not to do the pre-shift and no one on his
shift knew of any hazards. Tr. 735. Fazzolare determined that the hazard within
the #1 entry was obvious, existed for at least one shift, and would have been
noticed by an examiner had a pre-shift been conducted. Tr. 728- 31; P. Ex. 39,
at 3 and 12.

During the third day
of hearing, the Secretary moved to plead in the alternative that the conditions
set forth in Order No. 842870 also violated section 75.360(f). Tr. 736, 738. The
undersigned initially denied the motion because it should have been made at the
outset of the hearing, particularly since the Secretary was aware through
pre-trial conference calls that the Order essentially involved a credibility
dispute as to whether a pre-shift was done (Tr. 739), and the allegation that
there were no DTIs could be substantially different from the allegation that no
preshift examination was done, particularly in the context of the unwarrantable
failure designation. Tr. 738. At the conclusion of the hearing, however, the
undersigned reconsidered, granted the motion to amend, and issued a bench
decision, which vacated Order No. 8428701 on credibility grounds under either
standard. Tr. 1056.

As further explained
below, the undersigned credited the testimony of third-shift mine examiner
Norman Risley, that he conducted a pre-shift examination of the right-side
rooms, the left-side rooms, and the panel entries (Tr. 758); that Risley walked
to each face, checked for methane or other gas, examined the bolts, roof and
ribs, and ensured that ventilation curtains were hung (Tr. 759); and that
Risley wrote the date and time and his initials on a paper tag that was hung
from a roof bolt with wire at each entry. Tr. 759-60; see also R. Ex. 6
(statement given to compliance manager Grounds the next day). The undersigned
also credited scoop operator Tim Whiting’s testimony, which partially
corroborated Risley’s testimony that he hung the tags, because Whiting credibly
testified that he saw Risley do so at the number 3 face. Tr. 770-71, 775. Finally,
the undersigned credited the testimony of all of Respondent’s witnesses that
they saw Risley in the right-side rooms. See generally Tr. 1056-57.

b.         Respondent’s
Evidence

Third-shift certified
mine examiner, Norman Risley, credibly testified that during the midnight shift
of May 9, 2011, he conducted a pre-shift examination of the right-side and left
side faces and set of rooms on Unit 5. Tr. 754-58. Risley also pre-shifted the
two rescue chambers, the power center, transformer, and the tailpiece on Unit

5. Tr. 759.

Risley was required
to conduct his examination within three hours of the start of the oncoming day
shift, which began at 7:00 a.m. Accordingly, Risley began his pre-shift
examination about 4:00 a.m. Tr. 723, 727-28, 756-57.

Risley credibly
testified that he examined the right-side rooms, the left-side rooms, and the
panel entries. Tr. 758. Risley walked to each face, checked for methane or
other gas, examined the bolts, roof and ribs, and ensured that ventilation
curtains were hung. Tr. 759. At each entry, Risley wrote the date and time and
his initials on a paper tag that was hung from a roof bolt with wire. Tr.
759-60; R. Ex. 6 (statement given to compliance manager Grounds the next day). When
asked by the undersigned whether he specifically remembered hanging the tags,
Risley testified affirmatively and recalled that he asked scoop operator Tim
Whiting to move out of his way so he could get to a face to hang a tag. Tr.
760-61.

On direct
examination, Risley was shown Respondent’s Exhibit 11. That exhibit was a
section 104(a) citation that inspector Fazzolare wrote under 75.220(a)(1) for
failure to follow the approved roof control plan because the no. 1 entry
exceeded the 20-foot width set forth in the plan by approximately one and three
quarter feet over a six-foot distance. Risley testified that he never noticed
the condition during his examination. Tr. 761.

Risley had left the
mine for the day by 9:30 a.m., i.e., the time Fazzolare wrote the Order (P. Ex.
38) alleging a violation of 75.360 (a)(1) because there was no evidence of a
pre-shift examination conducted for the right side rooms on Unit 5 for the day
shift production crew. Tr. 763. The next day, compliance manager Grounds spoke
to Risley about the Order in the examiner’s room where Respondent keeps its
books. Tr. 76-62. Risley told Grounds that it was a bunch of bull because
Risley made the rooms and that Grounds should check with Whiting, who was
present at the time. Tr. 762-63. The Secretary’s cross of Risley was minimal,
with little value. Tr. 765.

Scoop operator
Whiting credibly testified that he was working the midnight or third shift (11
p.m. to 7 a.m.) on May 8-9, 2011, when he observed Risley conduct a pre-shift
examination of the right-side rooms on Unit 5. Tr. 766-69. Whiting was sitting
in his scoop in the no. 3 room waiting to clean that room after the roof
bolters finished bolting a fresh cut. Tr. 769-70. While waiting there, Whiting
saw Risley walk by and into the entry of the no. 3 room, conduct his
examination, and hang a paper tag with wiring on a roof bolt plate to post
DTIs. Tr. 770-71, 775. From where he was sitting, Whiting could not see the no.
1 and 2 rooms. Tr. 771.

As Risley apparently
continued his examination of the other right-side rooms, section foreman Keith
Hawkins instructed Whiting to go outby and grab the wet duster and start
dusting the faces. Tr. 771-72. Whiting then used the scoop to run the
hydraulically operated wet duster on the right and left-side rooms. Whiting
received assistance from left-side scoop operator, Nick Courtney, who operated
the hose. Tr. 772-73.

After the Order was
written by Fazzolare, Risley told Whiting about it, presumably the next day. Whiting
testified that Risley appeared upset and told Whiting that he had made the
examination. Tr. 773-74. Whiting told Risley that Whiting saw him hang a tag in
the no. 3 room. Whiting offered to vouch for Risley before compliance manager
Grounds. Tr. 773-74. On the basis of the record before me, I have no basis to
conclude that they conspired to produce false testimony under oath.

Grounds took a
statement from Whiting the day after the Order was issued. R. Ex. 8. Whiting
confirmed the accuracy of the statement except for the last notation, which
states that Risley “was going toward the face of Room #3 to make his
examination.” Id. Whiting testified that he watched Risley actually walk up to
the no. 3 face to hang the tag. Tr. 775. In the absence of any impeachment or
effective cross examination on this issue, I credit Whiting.

Whiting expressed the
belief that the pressure from the dust and water that came out of the wet
duster blew the tag(s) down. Tr. 775-76. On cross, Whiting acknowledged that
the tags might still be present on the mine floor, although equipment ran
through the area. He further acknowledged that the wires “would probably still
be there.” Tr. 775-76. The Secretary argues that this is significant because
neither Fazzalare nor the two employees who accompanied him could find any
wires, tags, or other evidence of DTIs for the prior shift in the three entries
on the right side. Tr. at 724-26, 729, 731, 735, 751. Thus, the Secretary
argues that the lack of DTIs on the right side for the prior shift establishes
a violation of section 75.360(f).

Section foreman Keith
Hawkins also testified that he observed Risley make an examination of the right-side
rooms of Unit 5 on the morning in question. Tr. 779-80. Hawkins was checking on
repairs to the miner that were made between 3:15 and 4:30 a.m. (R. Ex. 4). Hawkins
was engaged in conversation with shift leader Cliff Dillard and Whiting in the
intersection of entry no. 1 and room no. 3, when he observed Risley walk by and
use a spotter to make the face in the right-side rooms. Tr. 780-81, 786. Hawkins
did not observe whether Risley hung any tags. Tr. 782.

The next day, when
Hawkins heard about the Order, he went to see Grounds to tell him that Hawkins
had seen Risley go up in the face and use a spotter. Tr. 783. Hawkins testified
that R. Ex. 7 accurately reflects the conversation he had with Grounds. The
Secretary declined to cross examine Hawkins. Tr. 783.

Shift leader Dillard
also testified that he observed Risley conduct a pre-shift examination of the
right set of rooms of Unit 5 during the midnight shift on May 8-9, 20011. Tr.
785-86. Dillard corroborated Hawkins’s testimony that they were talking in the
intersection of entry no. 1 and room no. 3. Dillard testified that he saw
Risley walk out of the no. 1 room and across the no. 2 room, and then out past
Dillard and Hawkins and end up in the no. 3 room. Dillard specifically
testified that he saw Risley go in and out of each of the three rooms on the
right side, but did not see Risley hang any tags. Tr. 786, 788-89.

Dillard testified
that Hawkins told him about the Order the next day and Dillard was shocked
because he saw Risley there the day before to make the examinations. Tr.
786-87. Dillard testified that Risley would typically hang his DTIs on a roof
bolt in the second row from the face on the right or return air side of the
entry where an air reading was taken. Tr. 789.

Dillard confirmed
that Respondent’s Exhibit 9 was an accurate statement of what was discussed
with Grounds on May 10, 2011. Tr. 787. Respondent’s Exhibit 9 states, inter
alia, that “[i]f the examiner tags are not twisted, the wet duster can knock
the tags down from the roof bolt plates.” Neither the Secretary nor Respondent
ever asked Risley whether he twisted the tags.

Compliance manager
Grounds testified that Respondent’s walkaround representative Vernon Dunn
called the surface and informed Grounds that inspector Fazzolare was going to
issue the Order. Tr. 791. Grounds spoke with members of the crew the next day
and prepared written statements from Risley, Hawkins, Whiting, and Dillard. Tr.
791-92; see also R. Exs. 6-9. After the interviews, Grounds concluded that Risley
had conducted the pre-shift examination of the right-side rooms on unit 5
during the third shift on May 9, 2011. Accordingly, Risley did not receive any
discipline. Tr. 792.

On cross, Grounds
testified that he did not go underground to check on the condition cited in the
Order. Rather, Grounds spoke with Dunn, who informed him that no initials were
identified or tags found on the right side, but DTIs had been identified on the
left side. Tr. 794-95.

On rebuttal, and in
support of the Secretary’s alternative pleading, inspector Fazzolare testified
that he issued Order 8428701 because he could find no evidence of a pre-shift
or DTIs in the 3 entries on the right side. Tr. 797-98. Fazzolare testified
that he did see enough DTIs in the left side entries and the advanced entries
to ensure that Respondent had pre-shifted those areas. Tr. 798, 802. He further
testified that in his experience, it was unlikely that a tag wired to a roof
bolt would fall down, and that it was “impossible” for all three tags to have
disappeared. Tr. 798-99. Fazzolare further testified that if a wet duster
caused a tag to fall down, the wire would be left on the roof bolt, and he did
not see any evidence of that. Tr. 799.

Respondent declined
to cross examine Fazzolare on rebuttal.

In response to
questioning from the bench, Fazzolare testified that he traveled with Dunn to
the face in each of the rooms on the right side. After discovering the wide
spot in the last room, Fazzolare asked Dunn to help him find the DTIs to show
that the examiner had been there. Fazzolare told Dunn that if you can find one
set of DTIs (in the right side rooms), I will not issue the Order. Tr. 799-800.

The Secretary argues
that at most, Respondent’s witnesses established that Risley made a pre-shift
examination of the left side and main set of entries and the #3 entry on the
right side. Although several of Respondent’s witnesses saw Risley in the three
right-side entries, none saw Risley hang a tag in the #1 and #2 entries and
none testified as to the length of time Risley was in each of these entries. Tr.
770-71, 773, 775, 782, 786-88, 792. The Secretary argues that Respondent’s
witnesses failed to refute Fazzolare’s testimony regarding the absence of the
tags or other DT&Is in the right-side entries. Thus, the Secretary argues
that the evidence, even considered in the light most favorable to Respondent,
shows a violation of section 75.360(f) for the #1 and #2 right-side entries. Given
Risley’s failure to identify the excessive width in the #1 entry as a hazardous
condition, the Secretary further argues for a violation of section
75.360(a)(1). Tr. 724, 729-30, 761.

3.         Legal
Analysis

As noted, at the
close of the hearing, the undersigned granted Respondent’s motion to vacate
Order No. 842870 and found that no violation of section 75.360(a)(1) or section
75.360(f) had occurred. Tr. 1056-57. I credited Risley’s testimony that he
conducted a pre-shift examination of the right-side rooms, which was
corroborated by all of Respondent’s witnesses. Tr. 1056. I further credited
Risley’s testimony that he hung tags denoting his DTI’s in the right-side
rooms, which testimony was partially corroborated by Whiting, who observed him
hang one such tag at the number 3 face. Tr. 1056. Having reviewed the record, I
reaffirm my credibility findings and also credit section foreman Hawkins that
he saw Risley walk by and use a spotter to make the face in the right-side
rooms. Tr. 780-81, 786.

The fact that the
DTI’s were not present when Fazzolare conducted his inspection at 9:30 a.m.
does not establish that Risley did not hang the tags when he conducted his
examination about 4 a.m. On questioning from the undersigned, Risley
specifically testified that he hung all three tags on the right-side entries. Tr.

760. Whiting corroborated Risley’s testimony for the right-side number 3 room. Tr.
761. It is conceivable, given the use of the wet rock duster after Risley
     conducted his examination, that the tags were blown down due to the pressure of
     the machine combined with the heavy mixture of dust and water it sprays. Tr.
     775.

I find it possible
that the pressure or force from the mixture of dust and water emanating from
the wet duster after Risley conducted his examination blew the paper tags down
and rendered them irretrievable, especially if the tag wires were not twisted
in place. Tr. 775. It was certainly not impossible, as Fazzolare testified,
particularly with equipment running through the area and the pressure of the
machine combined with the heavy mixture of dust and water that it sprays. Tr.
775-76. While the wires would probably still be there, the Secretary failed to
establish the exhaustiveness or specific location of Fazzolare’s search for
said wires. As Fazzolare acknowledged, “[o]nce I found the wide spot in the
entry, I was convinced that no pre-shift had been performed in them three
entries.” Tr. 751-52. In my view, Fazzolare had made up his mind that no
pre-shift had been performed and did not diligently search for the DTIs or
attempt to speak to the examiner Risley.

Clearly, Fazzolare
relied on his issuance of Citation No. 8426700, which alleged that the no.1
room was wide by less than two feet for a distance of six feet in length, as
evidence that no pre-shift examination was performed. Tr. 728; R. Ex. 11. Such
reliance is suspect. It is likely that the cited area was mined after Risley
conducted his examination because it was inby the last open crosscut and mined
recently. The Secretary failed to show that the condition was present when
Risley was scheduled to conduct his pre-shift examination. Tr. 748. The mere
fact that Fazzolare observed the condition cited in Citation No. 8428700 does
not establish that Risley did not conduct the examination, particularly when
Risley and essentially four other witnesses confirmed that he did.

I was convinced
during the hearing by Risley’s demeanor and clear and adamant testimony upon
questioning from the undersigned that he conducted a pre-shift examination of
the right-side rooms and that he hung three tags denoting his DTI’s in the
right-side rooms. Tr. 760. Risley’s testimony that he examined the right-side
rooms was corroborated by Whiting, Hawkins and Dillard, each of whom observed
him do so. Tr. 770, 779-80, 786. Risley’s testimony that he made the
examinations by DTI’s is partially corroborated by Whiting, who observed him
hang a tag at the number 3 face. Tr. 770, 775. Accordingly, I reaffirm my bench
decision and vacate Order No. 842870.          

VII.  Order

WHEREFORE, the
parties’ joint settlement motion and agreement made on the record and set forth
in Joint Exhibit 2 is GRANTED. It is ORDERED that Citation/Order Nos. 8030991,
8030700, 8428798, and 8428776 be modified to reduce the level of negligence
from “high” to “moderate;” Citation No. 8030992 be modified to reduce the level
of negligence from “moderate” to “no negligence;” Citation Nos. 8436403,
8030992, 8428798, and 8428776 be modified to reduce the likelihood of injury or
illness from “reasonably likely” to “unlikely,” and to delete the significant
and substantial designation; and Order No. 8030700 be modified to change the
type of action from a section 104(d)(2) order to a section 104(a) citation; and
that Citation Nos. 8428701, 8431251, and 8431250 be vacated. It is further
ORDERED that the operator pay an a penalty of $116,662 for all litigated
citations and $192,754 for all settled citations for a total penalty of
$309,376 within thirty days of this order.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Letha Miller, Esq. & Breyana
Penn, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver, CO 80202-5710

Arthur M. Wolfson, Esq. &
Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave.,
Suite 1500, Pittsburgh, Pennsylvania 15222