Secretary of Labor v. ICG Illinois, LLC

Plain-English summary

The Viper Mine's refuge alternative was about 1,110 feet from the nearest working face, exceeding the 1,000-foot maximum. Judge Kenneth R. Andrews found the violation S&S because the methane-prone mine had a history of ignitions, an emergency could impair visibility and movement, and the extra distance could prevent 17 miners from reaching shelter. Self-contained self-rescuers did not eliminate the risk because their air supply was limited and they offered no protection from burns or falling roof. The judge reduced negligence from high to moderate because the production supervisor had begun arranging a tractor and preparing the new location before learning that MSHA intended to issue a citation. The penalty was reduced from $42,944 to $25,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1506(c)(1)
• Outcome: The violation and S&S designation were affirmed, negligence was reduced from high to moderate, and the penalty was reduced to $25,000.
• Key point: A refuge chamber beyond the regulatory distance can be S&S when mine-specific emergency conditions make the additional travel reasonably likely to endanger miners, even when self-rescuers are available.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

ICG
ILLINOIS, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2013-160

A.C.
No. 11-02664-305974

Mine:
Viper Mine

DECISION

Appearance:    Michele
A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E.
Chavez Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO for the
Secretary

John
M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151                                 Beaumont
Centre Circle, Suite 375, Lexington, KY for Respondent

Before:                        Judge
Andrews

This
case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against ICG Illinois, LLC, (“ICG” or “Respondent”) at
its Viper Mine, pursuant to Sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act”). This case was
originally assessed a civil penalty totaling $49,140.00. Prior to hearing, the
parties settled Citation Nos. 8442892 and 8420666, leaving only Citation No.
8443225, which was assessed a penalty of $42,944.00. A hearing was held on
January 14, 2014 in Springfield, Illinois at which the parties presented
testimony and documentary evidence. After the hearing, the parties submitted
post-hearing briefs.

STIPULATIONS

1.      ICG Illinois,
LLC (“ICG”) at all times relevant to these proceedings, engaged in mining
activities and operations at the Viper Mine in Sangamon County, Illinois.

2.      ICG’s mining
operations affect interstate commerce.

3.      ICG 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.      ICG is an
“operator” as defined in § 3(d) of the Mine Act, § 803(d), at the mine where
the contested citation in these proceedings was issued.

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

6.      Dennis J. Baum
was, at the time the citation was issued, an authorized representative of the
United States of America’s Secretary of Labor, assigned to MSHA, and was acting
in his official capacity when issuing the citation at issue in these
proceedings.

7.      The citation at
issue in these proceedings was properly served on ICG as required by the Mine
Act.

8.      The citation 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.

9.      The certified
copy of the MSHA Assessed Violations History reflects the history of the
citation issuances at the mine for 15 months prior to the date of the citation
at issue and may be admitted into evidence without objection by ICG.

10.  ICG demonstrated
good faith in abating the violations.

11.  The penalties
assessed in this case will not affect the ability of ICG to remain in business.

Government
Exhibit 5.[1]

BASIC LEGAL
PRINCIPLES

A.    Significant and
Substantial

The Citation
in dispute and discussed below has been designated by the Secretary as
significant and substantial. A significant and substantial (“S&S”)
violation is described in section 104(d)(1) of the Act as a violation “of such
nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1).
A violation is properly designated S&S “if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981).   

The
Commission has explained that:

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

Mathies Coal Co., 6 FMSHRC 1,
3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).

The
difficulty with finding a violation S&S normally comes with the third
element of the Mathies formula. In U.S. Steel Mining Co., Inc., 7
FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance: We
have explained further that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S.
Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of section 104(d)(1), it is
the contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574-75 (July 1984). The Secretary “need not prove a reasonable
likelihood that the violation itself will cause injury.” Cumberland Coal
Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser
Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).

This
evaluation is made in consideration of the length of time that the violative
condition existed prior to the citation and the time it would have existed if
normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899,
905 (Dec. 2005); U.S. Steel Mining Co., Inc.,

6 FMSHRC at
1574. The question of whether a particular violation is S&S must be based
on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(Dec. 1987).

B.     Negligence

Negligence
“is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to 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.” Id. MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or
correct hazardous conditions or practices. Id. Low negligence exists
when “[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” Id. Moderate
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” Id. High
negligence exists when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.
See also Brody Mining, LLC, 33 FMSHRC 1329 (2011) (ALJ).

CITATION NO.
8443225

On
September 18, 2012 at 8:20 a.m., MSHA Inspector Dennis Baum (“Baum”) issued Section
104(a) Citation No. 8443225 for an alleged violation of 30 C.F.R. §
75.1506(c)(1) stating,

The refuge
alternative in the Main West, 006 MMU primary escapeway, is not located within
1000’ of the nearest working face. The refuge alternative is located between
entries 5 and 6 at survey station 172+07 and the faces of number 5 and 6
entries are at approximately survey station 183+17, a distance of approximately
1110’.

Ex. GX-1. Baum
determined that the violation was reasonably likely to result in fatal injuries
to seventeen people and S&S in nature. Id. He further found that the
violation was the result of Respondent’s high negligence. Id. The
citation was terminated at 10:45 a.m. when a tractor was used to advance the
refuge alternative to a survey station within 1,000 feet of the working face. Tr.
36; Ex. GX-1.

The
cited regulation, entitled “Refuge Alternatives,” provides:

Refuge
alternatives shall be provided at the following locations:

(1)              
Within
1,000 feet from the nearest working face and from locations where mechanized
mining equipment is being installed or removed except that for underground
anthracite coal mines that have no electrical face equipment, refuge
alternatives shall be provided if the nearest working face is greater than
2,000 feet from the surface.

30
C.F.R. § 75.1506(c)(1).

CONTENTIONS OF
THE PARTIES

The
Secretary contends that Respondent violated 30 C.F.R. § 75.1506(c)(1) when it
did not move the refuge alternative to within 1,000 feet of the working face. He
further argues that the violation was S&S because, when viewed in light of
an emergency, the extra distance could reasonably result in fatal injuries. The
Secretary states that this violation was the result of Respondent’s high
negligence because it was aware of the condition for, at least, an entire shift
but failed to move the refuge alternative until the inspector informed it that
a citation would be issued.

Respondent
concedes that it violated 30 C.F.R. § 75.1506(c)(1). However, it argues that
the Secretary has not proven that the substantial evidence at hearing shows
that the violation is S&S. In essence, Respondent accepts that emergency
circumstances should be presumed, but it argues that the Secretary presumed S&S
because he did not consider the particular facts surrounding the violation,
including the accessibility of SCSRs. Moreover, Respondent contends that high
negligence is inappropriate because it was in the process of moving the refuge
alternative before the citation was issued.

SUMMARY OF THE
TESTIMONY

The
findings of fact are based on the record as a whole and my careful observation
of the witnesses during their testimony. In resolving any conflicts in the
testimony, I have taken into consideration the interests of the witnesses, or
lack thereof, and consistencies, or inconsistencies, in each witness’s
testimony and between the testimonies of the witnesses. In evaluating the
testimony of each witness, I have also relied on his demeanor. Any failure to
provide detail as to each witness’s testimony is not to be deemed a failure on
my part to have fully considered it. The fact that some evidence is not
discussed does not indicate that it was not considered. See Craig v. Apfel, 212
F.3d 433, 436 (8th Cir. 2000) (administrative law judge is not
required to discuss all evidence and failure to cite specific evidence does not
mean it was not considered). I have also fully considered the contents of the
official file including the pre- and post-hearing submissions of the
parties, and the exhibits admitted into evidence.

On
September 18, 2012, Baum[2]
was in the Viper Mine for an E02 spot inspection. Tr. 16. This inspection was
required due to the fact that the Mine liberated more than 500,000 cubic feet of
methane in a 24 hour period. Tr. 16-17. However, this inspection does not limit
the inspections to methane issues; rather, inspectors are still required to
enforce all Mine Act statutes and regulations. Tr. 17-18.

While
looking at Respondent’s examination books, Baum noticed an entry from the
afternoon shift on September 17, 2012 that the refuge alternative needed to be
moved inby, closer to the working face. Tr. 18-19; Ex. GX-3. A refuge
alternative is “a large steel-constructed device that’s designed to provide
miners a place of safety in the event of a mine fire, ignition of any type or
disaster where they can’t get out of the mine.” Tr. 21. It contains all of the
supplies necessary to keep up to thirty-five miners sustained for ninety-six
hours. Tr. 21-22. However, the refuge alternative was not mentioned in the
preshift examination report for September 18, 2012. Tr. 20; Ex. GX-4. At this
point, Baum warned Safety and Compliance Foreman Kris Oglesby[3]
(“Oglesby”) that a citation would be issued if the refuge alternative was still
too far outby. Tr. 23.

Production
Supervisor Gabriel Alderman[4]
(“Alderman”) arrived at the Mine on the morning at issue and reviewed the
preshift examination reports to see what had been found and whether any
corrective action was needed. Tr. 83. There was nothing in the preshift
examination report that indicated that the refuge alternative needed to be
moved. Tr. 83; Ex. GX-4. While Baum and Oglesby were looking at the preshift
examination reports and the mine map, Alderman headed underground at 7:30 a.m.
to begin his shift. Tr. 85, 103-104. When he arrived on the section, Section
Foreman Jim Brown (“Brown”) told Alderman that the refuge alternative needed to
be moved closer to the face. Tr. 85. At this point, Alderman testified that he
asked the scoop operator to begin preparing the area and called Mine Manager
Jerry Jones (“Jones”) for a tractor at roughly 7:40 a.m. Tr. 86, 98-99,
104-105. Depending on where the tractor was located on mine property,
Compliance Coordinator Denny Alderman[5]
(“D. Alderman”) testified that it could take anywhere from between an hour and
two and a half hours for the tractor to arrive at the necessary location. Tr.
111-112. In this instance, Alderman testified that it was there in about an
hour. Tr. 93. Alderman further testified that it takes roughly two hours for
the refuge alternative and new location to be “prepared” for the relocation. Tr.

103. A crosscut must be scooped, and floor dust must be laid in the new
     location.  Tr. 103. Moreover, the signs and lifelines must also be moved. Tr.
104. To prepare the refuge alternative, the scoop must remove a beam that acts
     as roof support from the top. Tr. 102-103.

Baum
and Oglesby traveled to the refuge alternative and confirmed that it was beyond
the 1,000-foot requirement. Tr. 23-24, 69-70. It measured somewhere between
1,110-1,125 feet from the closest working face. Tr. 24. Baum testified that
every foot counts during an emergency situation. Tr. 32-33. He acknowledged
that miners carry Self Contained Self Rescuers (“SCSRs”), but these only
provide oxygen and mostly benefit miners who can escape. Tr. 27-28. The
alternative to the refuge alternative would be constructing a barricade big
enough to seal the area with enough oxygen for the miners. Tr. 29-30. However, there
have been instances where barricades have failed. Tr. 30.

When
Baum wrote Citation No. 8443225 as S&S, he assumed, and was trained to
assume, the occurrence of a disaster because the refuge alternative would only
be used under conditions in which escape was impossible.[6]
Tr. 26, 45-46. He testified that 110 feet is a long distance to travel during
an emergency where when visibility could be poor, miners may have to crawl and
injured miners may have to be assisted. Tr. 31. This is compounded by the fact
that this distance is above and beyond the 1,000 feet that would have already
been traveled from the face. Tr. 32. Baum believed that fatal injuries were
likely if the seventeen miners on the section could not reach the refuge
alternative. Tr. 54. Because he believed the miners either would not be able to
reach SCSRs during an emergency or they would be destroyed, he did not consider
them as a mitigating factor. Tr. 35-36, 49. While Baum testified that he would
not necessarily consider every violation of an emergency standard S&S, he
would find any violation of this standard at this Mine S&S because of the
its particular history of methane, ignitions and 107(a) withdrawal orders. Tr.
46-47.

Baum
testified that he further designated Respondent’s negligence as high because no
mitigating circumstances or excuses were offered. Tr. 33, 57. It was obvious to
Baum that no equipment had been to the area because a thin layer of dust was
undisturbed on top of the rock dust, and there were no equipment tracks. Tr.

33. Oglesby and Alderman insisted that a scoop was not capable of moving the
    refuge alternative; however, they also admitted that they had not tried.[7]
    Tr. 34. They informed Baum that a tractor was on its way, but Baum did not
    consider this to be mitigating because it was only called after Respondent knew
    that it would likely be receiving a citation. Tr. 35, 41-42, 57. Further, the
    condition was reported after the afternoon shift. The midnight shift had
    worked, and, at 8:20 a.m. the next morning, roughly twelve hours later, nothing
    had been done. Tr. 35, 52, 58.

Oglesby
and Alderman testified that a scoop is incapable of moving the refuge
alternative because it is too heavy. Tr. 71, 86. However, both admitted that
they had never attempted or personally seen anyone else attempt to move one
with a scoop. Tr. 71, 87. Baum continued his inspection within the Mine. Respondent
ultimately moved the refuge alternative with a tractor, and the Citation was
terminated at 10:45 a.m. Tr. 56; Ex. GX-1.

ANALYSIS AND
CONCLUSIONS

I
find that the Secretary has proved that Citation No. 8443225 meets all four
factors in the Mathies test and, therefore, is S&S and reasonably
likely to cause fatal injuries to seventeen miners. Respondent admits that
Citation No. 8443225 was validly issued. Tr. 9, 69-70. This violation contributes
to the possibility that miners will be incapable of reaching the refuge
alternative in the event of an emergency, such as an explosion, an ignition or
a roof fall. It is the extra distance miners must traverse from the face that
would result in additional and possibly critical delays accessing the chamber. These
possibilities constitute a measure of danger contributed to by the violation. The
Viper Mine is subject to ten-day spot checks because it liberates more than
500,000 cubic feet of methane in a 24-hour period. Further, Baum testified that
the Mine has a history of ignitions and methane issues. Because this is a
working face, equipment would be running for most of the shift and could serve
as an ignition source. All of this contributes to the reasonable likelihood
that an explosion or ignition could occur. If this were to happen, visibility
could be poor and the conditions could be disorienting, creating the likelihood
that all seventeen miners on the working section would suffer from serious
injuries or fatalities.

While
Respondent accepts that an emergency situation should be assumed, it argues
that the Secretary has presumed the S&S designation without taking into
account the particular facts surrounding the violation. However, I disagree. Baum
credibly testified that he would not necessarily consider every violation of
this standard S&S; however, he would find every violation of this
standard at this mine S&S. In explaining his determination, he
explained that the Viper Mine has a history of ignitions, methane problems and
Section 107(a) imminent danger withdrawal orders. Moreover, the refuge
alternative serves to protect miners at the working face, where there would
certainly be equipment moving in the area and providing ignition sources. Based
on this evidence, I find that the Secretary has proven all four Mathies
factors, and the violation is properly designated S&S.

Second,
Respondent argues that it is unreasonable for Baum to have assumed that all of the
available caches of SCSRs would have been destroyed. Moreover, it states that
these SCSRs would reduce or negate any likelihood that injury would occur. Like
Respondent, I do not assume that every SCSR would be destroyed. However, I do
not agree that the SCSRs would greatly reduce or negate the likelihood of
injury. While the SCSRs would increase the amount of time that the miners had
access to breathable air, they could not ensure that disoriented miners would
be able to reach a refuge alternative located more than 100 feet beyond the
distance they are trained to travel in emergencies. Further, SCSRs are still
limited in time and could not protect the miners from burns associated with
fire or from falling rock during a roof fall. In these situations, the refuge
alternative would still be the most important means of survival. While I find
that the SCSRs are an important resource in the Mine, their availability does
not change the S&S nature of this violation.

Although I
affirm the Secretary’s determination of S&S, I find that the violation was
the result of moderate, rather than high, negligence. Baum agreed with
Respondent’s witnesses at hearing that there was no reason to believe that any
one underground had been warned of his presence in the mine. Tr. 42-45, 68,

114. Alderman did not speak to Baum prior to going underground, and he had no
     reason to believe that there was a problem with the refuge alternative because
     nothing was included in the preshift examination report. Tr. 84-85; GX-4. While
     word may travel quickly in a mine, there is no evidence to suggest that Brown
     knew that Baum was in the area or that Alderman informed him upon arrival. Rather,
     the uncontroverted evidence at hearing suggests that Alderman only realized
     that the refuge alternative needed to be moved during his preshift conference
     with Brown. At roughly 7:40 a.m., Alderman called outside and told Jones that a
     tractor was needed to move the refuge alternative closer to the face, and the
     tractor arrived approximately one hour later. Further, he instructed the scoop
     operator to begin preparing both the refuge alternative and the new location. The
     fact that the entire process was completed approximately three hours later
     supports the idea that Alderman independently began the process of moving the
     refuge alternative. In light of this, I find that mitigating circumstances
     exist and Respondent’s negligence should be reduced from high to moderate.

The
Secretary argues that Respondent’s negligence is high because it could provide
no mitigating evidence for its failure to move the refuge alternative. Baum
credibly testified that at 8:20 a.m., when he issued the Citation, the thin
layer of dust in the area around the refuge alternative was undisturbed and
there were no tire tracks in the area. However, this does not account for the
fact that the scoop may have been in transit to or already preparing the new
location. Moreover, there would be no signs of a tractor in transit to the
location of the refuge alternative. While I find it disturbing that Respondent
seemingly assumes that a scoop is incapable of moving the refuge alternative,
Baum had no experience or information to suggest that it was a certainty. Further,
while Respondent’s communication may not have been enlightening during the
inspection, the testimony and evidence at hearing suggest that it was taking
action to bring the refuge alternative into compliance. As such, I reduce
Respondent’s negligence from high to moderate.

PENALTY

It
is well established that Section 110(i) of the Act grants to the Commission and
its judges the authority to assess all civil penalties provided under the Act. 30
U.S.C. § 820(i). It further directs that:

[i]n assessing
civil monetary penalties, the Commission shall consider the operator’s history
of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation.

30 U.S.C. §
820(i).

The
parties stipulated to Respondent’s violation history, good faith compliance,
and ability to continue in business. Further, there is no argument that the
penalty is disproportionate to the size of Respondent’s business. As stated
above, the Secretary’s gravity determination has been affirmed. However, I have
determined that Respondent’s negligence should be reduced due to the testimony
and evidence presented at hearing. In light of this reduction, I find that $25,000.00
is a more appropriate penalty.

ORDER

It
is ORDERED that Citation No. 8443225 is MODIFIED to reduce the
negligence attributable to the operator from “High” to “Moderate.” It is
further ORDERED that ICG Illinois, LLC, PAY the Secretary of
Labor the sum of $25,000.00 within 30 days of the date of this Decision.[8]
Upon receipt of payment, this case is hereby DISMISSED.

/s/ Kenneth R. Andrews

Kenneth
R. Andrews

Administrative
Law Judge

Distribution:

Michele
A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E.
Chavez Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204

John M.
Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513

/kmb

[1] Hereinafter, reference to the
Secretary of Labor’s exhibits will be cited as GX. Reference to Respondent’s
exhibits will be cited as RX. Citations to the transcript will be cited as Tr.
followed by the corresponding page number(s).

[2] Baum started working for MSHA in
March 2007 and received his AR card in February 2008. Tr. 15. Prior to this, he
had about thirty years of experience in underground mines in which he ran
nearly all of the equipment and conducted examinations. Tr. 15-16.

[3] Oglesby has worked in coal
mining for about twenty-nine years, all of which have been at the Viper Mine. Tr.
65-66. During this time, he has worked nearly every production position in the
mine from roof bolting to examining. Tr. 66. In his current position, he conducts
examinations and essentially works to ensure that jobs are being completed in
the correct manner. Tr. 64, 66. He also fields any questions that arise from
the workforce. Tr. 65.

[4] Alderman has worked in coal
mining for sixteen years, all of which have been at the Viper Mine. Tr. 79. He
began working outby and then began working on production. Tr. 80. He eventually
became a foreman and has since served as the Production Supervisor for the past
five years. Tr. 80. This position is similar to a section foreman or face boss.
Tr. 80-81. He oversees the production process, including ensuring that miners
are working safely. Tr. 81. He also plans the present and future cutting
sequence. Tr. 81.

[5] D. Alderman has worked in the
mining industry for nearly forty years. Tr. 106. He has been at the Viper Mine
for thirty-one years. Tr. 106. He began outby before becoming the Construction
Coordinator. Tr. 106-107. He has held managerial positions within the Mine
since this time. Tr. 107. In his current position, he acts as a liaison between
the Mine and MSHA inspectors. Tr. 107. He either escorts the inspectors or
assigns other miners to do, but he is responsible for following up on any
citations issued or suggestions made. Tr. 107.

[6] Baum specified that some of
these scenarios could involve roof falls, fire, bad air or an ignition at the
face that caused an explosion on the section. Tr. 26.

[7] Baum admitted at hearing that he
had never personally seen a refuge alternative moved, so he was unsure whether
a scoop could actually move it. Tr. 38-39. He was mostly concerned that
Respondent had not even tried. Tr. 39.

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