Secretary of Labor v. Prairie State Generating Company, LLC

Plain-English summary

Prairie State sent miners to rock-dust an area that had not received the required preshift or supplemental examination and contained loose roof and rib hazards. Judge Alan G. Paez affirmed the violation as S&S, highly negligent, and an unwarrantable failure, finding systemic management failures in coordinating shifts and training supervisors on examination records. He also held shift managers Steven Rees and Michael Welch personally liable under section 110(c): Rees failed to order or communicate the needed examination, and Welch unreasonably assumed one had occurred. Prairie State was assessed $4,000, and each manager was assessed $500.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.360(a)
• Outcome: The section 104(d)(1) order and both managers' section 110(c) liability were affirmed, with total penalties of $5,000.
• Key point: Mine supervisors may be personally liable when they know or should know a preshift examination is required and fail to ensure it occurs before miners enter the area.

Full text (FMSHRC public release)

March 9, 2016

SECRETARY OF LABOR,

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Docket No. LAKE 2013-187

Petitioner,

:     A.C. No. 11-03193-296240

v.

:

:

PRAIRIE STATE
GENERATING COMPANY, LLC,

:     Mine: Lively Grove

:

Respondent.

SECRETARY OF LABOR,

:    

:

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Docket No. LAKE 2015-130

Petitioner,

:     A.C. No. 11-03193-366707A

v.

:

:

STEVEN B.
REES, employed by PRAIRIE STATE GENERATING COMPANY, LLC,

Respondent.

:     Mine: Lively Grove

:    

:

SECRETARY OF LABOR,

:    

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Docket No. LAKE 2015-144

Petitioner,

:     A.C. No. 11-03193-366708A

v.

:

:

MICHAEL
WELCH, employed by PRAIRIE STATE GENERATING COMPANY, LLC,

:     Mine: Lively Grove

:    

Respondent.

:    

DECISION

Appearances:   Emelda Medrano, Esq.,
Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois, for
Petitioner;

Arthur M. Wolfson, Esq., Jackson
Kelly, PLLC, Pittsburgh, Pennsylvania, for Respondent.

Before:                       Judge Paez

This case is before me upon the petitions for
assessment of civil penalty filed by the Secretary of Labor (“Secretary”)
pursuant to sections 105(d) and 110(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §§ 815(d), 820(c). In dispute are one section 104(d)(1)
order issued to Prairie State Generating Company, LLC (“Prairie State”) and two
companion section 110(c) penalty assessments issued to Steven B. Rees (“Rees”)
and Michael Welch (“Welch”), alleging their personal liability as agents of
Prairie State. To prevail, the Secretary must prove any cited violation “by a
preponderance of the credible evidence.” In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden
Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom.
Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C.
Cir. 1998). This burden of proof requires the Secretary to demonstrate that
“the existence of a fact is more probable than its nonexistence.” RAG
Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and
internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).
To establish a violation under section 110(c), the Secretary must prove that
(1) an agent knew or had reason to know of a violative condition, and (2)
failed to act to correct the condition. See 30 U.S.C. § 820(c); Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689
F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).

I.  STATEMENT OF THE CASE

Chief Administrative Law Judge
Robert J. Lesnick assigned to me Docket No. LAKE 2013-187, which I stayed on January
31, 2014, pending MSHA’s completion of a related section 110(c) investigation. In
separate orders, Chief Judge Lesnick assigned to me Docket Nos. LAKE 2015-130
and LAKE 2015-144, which contain the Secretary’s petitions for the assessment
of civil penalty under section 110(c), and I consolidated them with Docket No.
LAKE 2013-187 for hearing and disposition. Docket No. LAKE 2013-187 involved
two violations. The parties settled one of these violations, Citation No.
8440270, and I disposed of it in a separate Decision Approving Partial
Settlement on September 21, 2015.

The remaining alleged violation in
Docket No. LAKE 2013-187 was issued at Lively Grove Mine on June 26, 2012. Order
No. 8440269 charges Prairie State with a violation of 30 C.F.R. § 75.360(a)
for failing to conduct a pre-shift examination before sending miners to work underground.[1]
The Secretary designated the order as significant and substantial (“S&S”)[2]
and characterized Prairie State’s negligence as high. The Secretary also
determined that the violation resulted from Prairie State’s unwarrantable
failure to comply with a mandatory health or safety standard.[3]
The Secretary proposes that Prairie State pay a penalty of $2,000.00. Additionally,
in Docket Nos. LAKE 2015-130 and LAKE 2015-144, the Secretary proposes that
Rees and Welch each pay a penalty of $1,500.00 under section 110(c) of the Mine
Act in connection with Order No. 8440269. Thereafter, I held a hearing on
September 23, 2015, in St. Louis, Missouri.

At the hearing, the parties
stipulated to the following:

1.      Prairie
State is engaged in mine operations in the United States, and its mining
operations affected interstate commerce.

2.      Rees
was the afternoon shift mine manager at the times relevant to this matter.

3.      Welch
was the midnight shift mine manager at the times relevant to this matter.

4.      Prairie
State is the owner and operator of the subject mine, Mine ID No. 11-03193.

5.      Prairie
State, Rees, and Welch are subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.

6.      The
administrative law judge has jurisdiction in this matter.

7.      Order
No. 8440269 was properly served by a duly authorized representative of the
Secretary upon an agent of Prairie State on the date and place stated therein
and may be admitted into evidence for the purposes of establishing its
issuance.

8.      The
assessed penalties, if affirmed, will not impair Prairie State’s ability to
remain in business.

(Ex. S–1.)[4]
The Secretary then presented testimony from MSHA inspector Robert Hatcher and
MSHA special investigator Robert Bretzman, as well as Prairie State mine
examiner Daniel Bertelsman. Prairie State presented testimony from shift
managers Rees and Welch. The parties each filed post-hearing briefs and reply
briefs.

II.  ISSUES

For Order No. 8440269, the Secretary
asserts that Respondents failed to fulfill the duty imposed by 30 C.F.R. §
75.360(a) by not examining an area of the mine for hazardous conditions before
miners were sent to work there. (Sec’y Br. at 7.) Testimony at the hearing
established that Prairie State did not record a pre-shift or supplemental
examination of this area in any of its logs. (Exs. S–3, R–10 at 7 [20]; Tr.
42:17–43:4.) The Secretary also contends that his section 110(c) allegations
and his proposed penalties against Rees and Welch are valid and appropriate. (Sec’y
Br. at 20–23.)

In response, Prairie State does not contest its
failure to conduct the required examination but challenges the Secretary’s
gravity and negligence determinations, specifically the S&S and unwarrantable
failure designations. (Resp’t Br. at 7–17.) Rees and Welch deny the section
110(c) allegations against them. (Id. at 17–22.) Specifically, Rees
argues that he did not know he needed to conduct a pre-shift examination of the
area because his supervisor never told him when and where miners would be sent
to work. (Id. at 18–19.) Additionally, Welch asserts that due to his
limited experience as a mine manager, he reasonably believed the required
pre-shift examination had occurred based on his reading of the mine’s
examination book. (Id. 20–22.)

Accordingly, the following issues are before me:
(1) whether Order No. 8440269 issued for a violation of 30 C.F.R. § 75.360(a) is
S&S; (2) whether Prairie State’s negligence in committing the violation is
“high” and constitutes an unwarrantable failure; (3) whether Rees is liable
under section 110(c); (4) whether Welch is liable under section 110(c); and (5)
whether the Secretary’s proposed penalties against Prairie State, Rees, and
Welch are appropriate.

For the reasons set forth below, Order No.
8440269 is AFFIRMED. Additionally, the section 110(c) liability of
Steven B. Rees is AFFIRMED, and the section 110(c) liability of Michael
Welch is AFFIRMED.

III.  FINDINGS OF
FACT

A.        Operations at Lively Grove Mine

Lively Grove Mine is an underground bituminous
coal mine located in Marissa, Illinois. (Sec’y Pet.; Tr. 11:5–6.) The mine
contains long, corridor-like entries and perpendicular crosscuts driven through
the coal seam, with rectangular pillars of coal remaining in place to support
the mine’s roof and keep it from collapsing. (See Ex. S–4.) The distance
between each crosscut measures approximately 100 feet. (Tr. 48:10–49:15.) Together,
the entries and crosscuts form a grid if viewed from above. (Exs. S–4, R–3(b).)
The entry and crosscut walls, which are called ribs, may over time loosen or separate
from the pillars that support the mine roof, creating a hazard of falling rock
to miners working in those areas. (Tr. 46:19–21, 54:18–25.) Pre-shift
examinations help to identify such hazards before miners are sent into areas to
work. (Tr. 54:23–55:3.)

During the time at issue, Lively
Grove Mine operated on three overlapping 10-hour shifts. (Tr. 157:3–18.) During
the time at issue, the first shift operated from 6:30 a.m. to 4:30 p.m. (Tr.
139:18–19, 157:10–14.) The second, or afternoon, shift operated from 3:30 p.m.
to 1:30 a.m. (Tr. 139:19, 157:18.) The third, or midnight, shift operated from
10:30 p.m. to 8:30 a.m. (Tr. 156:19–20, 157:4–9, 189:23–24.) The third shift
was a maintenance shift that did not produce coal. (Tr. 170:21–22, 188:14–24.) Each
shift had a manager responsible for executing the work orders received from
Superintendent Aaron Jackson. (Tr. 160:12–23, 161:10–22, 189:6–10,
189:24–190:10.) On the dates of the inspection in this case, Rees was the shift
manager for the second shift from 3:30 p.m. to 1:30 a.m., and Welch was the
shift manager for the third shift from 10:30 p.m. to 8:30 a.m. (Ex. S–1.)

Whenever Prairie State has planned
work for an upcoming shift, its examiners must perform a pre-shift examination
of the work area to ensure the area is safe for miners. (Tr. 27:13–17, 36:8–10,
121:4–15.) Miners are not permitted to work or travel underground unless an
examiner has conducted a pre-shift examination of that area within three hours
prior to the shift’s start. (Tr. 27:13–17, 28:1–2, 36:8–10.) If, during a
shift, miners must enter an area that has not undergone a pre-shift
examination, the mine operator must conduct a supplemental examination before
miners enter that area. (Tr. 181:9–14, 220:24–221:3.) Each shift’s manager is
responsible for assigning pre-shift and supplemental examinations and ensuring
work areas have been properly examined. (Tr. 105:3–13.)

Additionally, mine operators must
maintain records of pre-shift examinations. 30 C.F.R. § 75.360(g).
Prairie State’s examiners recorded examinations in a book kept in the mine’s
office aboveground. (Tr. 25:13–16, 168:10–15; Exs. S–3, R–2(a), R–2(b).) A
shift manager must sign the examination book every shift. (Tr. 168:10–18,
190:22–25.) Moreover, mine examiners must record dates, times, and initials
(“DTIs”) throughout the mine to certify that an area has been examined. 30 C.F.R. § 75.360(f).
At Lively Grove, examiners listed their DTIs on date boards located underground
throughout the mine. (Tr. 41:3–43:14.)

Federal and state laws also require
Prairie State to conduct routine examinations of the mine’s escapeways. (Tr.
29:15–23, 124:14–15, 125:18–24.) In the mine’s Main North Intake section,
Prairie State maintained a primary escapeway to provide miners a safe pathway
to exit in the event of an emergency. (Ex. R–4; Tr. 137:3–11.) Along the
escapeway, the mine installed a lifeline, a cable hung from the mine’s roof to
guide miners out of the mine. (Tr. 137:12–138:3.) In this section, the
escapeway route began at a mechanical escape hoist called the Avro. (Ex. R–4(a);
Tr. 42:11–16.) Escapeway examinations must be performed once every 24 hours
under state law and once a week under federal law. (Id.) During an
escapeway examination, examiners at Lively Grove follow the escapeway’s
lifeline, inspecting for hazards. (Tr. 135:12–20; Ex. S–4(a).)

B.        Hatcher’s Inspection of the Lively Grove Mine

Inspector Robert Hatcher arrived at Lively Grove
for a routine quarterly inspection at approximately 8:25 p.m. on June 25, 2012.
(Ex. R–10 at 1 [1]; Tr. 22:1–5.) Upon his arrival, Inspector Hatcher visited
the mine’s office to review the mine’s examination books for hazards and
violations that had been reported by the mine’s pre-shift and on-shift
examiners. (Tr. 25:13–16.) Inspector Hatcher found no hazards listed in the
books. (Tr. 32:6–10.)

Hatcher then went underground to
inspect the mine with Kim Morgan, a safety technician at Prairie State. (Tr.
36:15–24.) During the inspection at around 1:05 a.m., a group of miners
complained to Hatcher about rockdust coming into the area where they were
working. (Tr. 93:24–94:14, 37:9–13; Ex. R–10 at 5–6 [14–15].) By this time,
the third shift that began at 10:30 p.m. was well under way, so Hatcher asked third
shift manager Welch where rockdusting was taking place. (Tr. 38:1–8.) Welch
informed Hatcher that miners were rockdusting in the Main North Intake area. (Tr.
38:4–8; 199:13–19.) Indeed, by 10:00 p.m. Welch had received written orders
from Jackson to rockdust an area of the Main North Intake, consisting of Entry
Nos. 7, 8, 9, 10, and 11 from crosscut No. 6 to the Avro, or an area of at
least 5,200 feet. (Exs. S–4(a), S–11, R–8(b); Tr. 48:10–49:15, 192:21–193:6,
212:7–14.)  

Hatcher then traveled a few
thousand feet to the Main North Intake area, where he found three miners rockdusting.[5]
(Tr. 39:5–18, 40:15–16, 198:17–200:22; Ex. R–3(b).) This area being rockdusted
was not an area normally traveled. (Tr. 203:23–204:5.) As Hatcher approached
the three miners, he came across an area of loose, unsupported rib. (Ex. S–4(a),
Tr. 39:19–21, 40:8–10.) The loose rib was large, measuring 15 feet in
length, seven feet in height, and one to 12 inches in thickness after being
scaled down. (Exs. S–5, S–6.) Hatcher issued Citation No. 8440268 for failing
to support the loose rib. (Ex. S–6.) Hatcher designated the violation as
S&S and characterized Prairie State’s negligence as high.[6]
(Id.)

Hatcher then checked whether an examiner
had conducted a pre-shift examination of the area being rockdusted. (Tr.
40:23–41:6.) Hatcher started searching for DTIs at the Avro located at the end
of the Main North Intake escapeway. (Ex. S–4(a); Tr. 42:6–20.) Inspector
Hatcher weaved throughout an area that appeared to be freshly rockdusted, covering
Entry Nos. 8, 9, and 10 and Crosscut Nos. 3, 4, 5, 6, and 7. (Tr. 44:7–16; Ex.
S–4(a).) He found DTIs at only two locations along the Main North Intake escapeway
but none outside the escapeway. (Tr. 42:17–21, 43:2–4; Ex. R–10 at 7 [20].) Although
DTIs were absent outside the escapeway, the entire area, including areas
outside the escapeway, appeared to have a fresh coating of rockdust. (Tr. 45:8–13;
Ex. S–4(a).)

Hatcher learned that earlier during
the second shift, Superintendent Aaron Jackson instructed Rees to send
equipment for rockdusting to the Main North Intake section. (Tr. 67:8–14;
Exs. R–10 at 6 [17], R–8(a), S–10 at 1.) When Hatcher later summoned Welch and asked
him whether a pre-shift examination had been conducted, Welch could not confirm
that an examiner had conducted one of the area. (Tr. 46:22–25, 94:18–21,
199:21–22; Ex. R–10 at 6 [16].) Hatcher then asked Welch whether he had
conducted a supplemental examination, and Welch replied he had not. (Tr. 47:1–2,
222:17–20.)

Hatcher subsequently issued Order
No. 8440269 for the failure to conduct a pre-shift examination in the area
miners were rockdusting. (Tr. 47:3–4; Ex. S–8.) Hatcher wrote:

Three miners were observed working in
the intake air course and had been rockdusting from cross cut #6 in entries #7
through #11 to the intake air shaft. A pre-shift examination for hazardous
conditions had not been conducted in this area as required on the previous
shift. Also the shift manager failed to conduct a supplemental examination for
hazardous conditions for the miners. Citation #8440268 has been issued in
conjunction with this order. This violation is an unwarrantable failure to
comply with a mandatory standard constituting more than ordinary negligence.

(Ex. S–8.) Hatcher designated the order as an S&S
violation that was reasonably likely to result in lost work days or restricted
duty for three affected miners. (Ex. S–8; Tr. 62:11–24.) He also characterized
Prairie State’s level of negligence as high. (Ex. S–8; Tr. 62:25–63:4.)

When back on the surface, Hatcher reviewed the
mine’s examination book once more. (Tr. 60:19–25.) This time, Hatcher noted an
entry under the pre-shift side of the mine’s examination book, indicating that the
Main North Intake escapeway had been examined during the afternoon shift. (Ex.
S–3 at 1; Tr. 26:4–8, 60:22–25.) However, Hatcher did not find any entries
indicating that the area where rockdusting took place had been examined. (Tr.
83:22–84:3.)

To abate Order No. 8440269, Prairie
State examined the affected area and removed all hazards. (Tr. 60:11–18; Ex.
S–8 at 2.) Large loose ribs were found and scaled down in nine different
locations. (Exs. S–8 at 2, S–4(a); Tr. 69:7–74:4.) Each of the three entryways
and five of the six crosscuts that Prairie State’s miners rockdusted contained
these loose ribs. (Exs. S–4(a), S–8 at 2.) After Prairie State removed the
hazards, Hatcher re-inspected the affected area and terminated the order. (Tr.
84:7–12; Ex. S–8 at 2.)

Hatcher’s issuance of the section
104(d)(1) violation triggered an investigation of Rees and Welch under section
110(c) conducted by MSHA special investigator Bretzman. (Tr. 102:24–103:12.)
Bretzman interviewed Rees and Welch, as well as superintendent Jackson and
Prairie State’s staff and mine examiners, including Bertelsman. (Tr. 103:13–22.)
Bretzman reported his findings and recommendations on liability, resulting in
the decision by MSHA to file civil penalties against the two shift managers, Rees
and Welch. (Tr. 128:10–129:16.)

IV.  PRINCIPLES OF
LAW

A.        Pre-Shift Examinations under 30 C.F.R. §
75.360(a)

Section 75.360(a) requires operators to
conduct a pre-shift examination in the three hours preceding the beginning of
any shift during which any person is scheduled to work or travel underground. 30
C.F.R. § 75.360(a)(1). The person conducting the pre-shift examination shall
examine for hazardous conditions in all areas where work or travel during the
oncoming shift is scheduled. 30 C.F.R. § 75.360(b). If an
operator has not conducted a pre-shift examination of an area, the operator
must perform a supplemental examination for hazardous conditions before any
miner may enter that area. 30 C.F.R. § 75.361(a). The pre-shift
examination is intended “to prevent hazardous conditions from developing” in a
mine. Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 1997). The
pre-shift examination requirement “is of fundamental importance in assuring a
safe working environment underground.” Buck Creek Coal Co., 17 FMSHRC
8, 15 (Jan. 1995).

B.        Significant and Substantial (S&S)

A violation is S&S “if, based on 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). To establish a S&S 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 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. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135-36 (7th Cir.
1995) (affirming ALJ’s application of the Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 104 (5th Cir. 1988) (approving
the Mathies criteria).

In providing guidance for
the application of the Mathies test, the Commission has observed that
“the reference to ‘hazard’ in the second element is simply a recognition that
the violation must be more than a mere technical violation – i.e. that the
violation present a measure of danger.” U.S. Steel Mining Co., 6
FMSHRC 1834, 1836 (Aug. 1984). The Commission also has indicated that “[t]he
correct inquiry under the third element of Mathies is whether the hazard
identified under element two is reasonably likely to cause injury.” Black
Beauty Coal Co., 34 FMSHRC 1733, 1742-43 & n.13 (Aug. 2012). The
Commission further has found that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of
S&S.” Musser Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010)
(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Blue Bayou
Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). Finally, the
Commission has specified that evaluation of the reasonable likelihood of injury
should be made assuming continued mining operations. U.S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984)).

The S&S designation of a pre-shift violation
must be evaluated apart from an associated violation that led to its issuance.
Brody Mining, LLC, 37 FMSHRC 1687, 1700 (Aug. 2015) (vacating and remanding
ALJ’s decision that removed pre-shift violation’s S&S and unwarrantability
designations solely because underlying violation had neither designation). However,
factors associated with an underlying condition are relevant to whether an
inadequate examination that failed to detect that condition was S&S. Id.
Additionally, unknown hazards that “may have existed at the time the area
should have been examined” may be relevant to a pre-shift violation’s S&S
determination. See Jim Walter Res., Inc., 28 FMSHRC 579, 604 (Aug. 2006) (affirming ALJ’s S&S
designation for pre-shift violation despite no hazards discovered during supplemental
exam performed on next shift).

C.        Unwarrantable Failure

The Commission has determined that
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (1987). It is
characterized by “indifference,” a “serious lack of reasonable care,” “reckless
disregard,” or “intentional misconduct.” Id. at 2003-04; see also
Buck Creek Coal, 52 F.3d at 136 (approving the Commission’s unwarrantable
failure test). Whether conduct is “aggravated” in the context of unwarrantable
failure is determined by looking at all the facts and circumstances of a case
to see if aggravating or mitigating factors exist. See IO Coal Co.,
31 FMSHRC 1346, 1350–51 (Dec. 2009). The Commission has identified several
such factors, including: the length of time a 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 was obvious, whether the
violation posed a high degree of danger, and the operator’s knowledge of the
existence of the violation. See id. These factors are viewed in the
context of the factual circumstances of each case. Consolidation Coal Co.,
22 FMSHRC 340, 353 (Mar. 2000). All relevant facts and circumstances of each
case must be examined to determine whether an actor’s conduct is aggravated or
if mitigating circumstances exist. Id.

In applying these factors to a pre-shift
violation, the Commission analyzes the pre-shift violation in context with any
associated violation that led to the pre-shift violation’s issuance.  Brody
Mining, LLC, 37 FMSHRC at 1700. However, the unwarrantability of a
pre-shift violation is not entirely dependent on the unwarrantability of an
underlying violation. Id.

D.        Section 110(c) of the Mine Act – Agent
Liability

Section 110(c) liability “is
generally predicated on aggravated conduct constituting more than ordinary
negligence.” Ernest Matney, 34 FMSHRC 777, 783 (Apr. 2012). Under
section 110(c), a violation committed “knowingly” constitutes aggravated
conduct. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). “Knowing”
in the context of section 110(c) does not require specific intent, and includes
both actual and constructive knowledge. Freeman United Coal Mining Co. v.
FMSHRC, 108 F.3d 358, 363 (D.C. Cir. 1997).

Thus, corporate directors,
officers, or agents are liable under section 110(c) when they know or had
reason to know of a violative condition, and fail to act to correct the
condition. See 30 U.S.C. § 820(c); Kenny Richardson, 3 FMSHRC at
16 (Jan. 1981). Agents of an LLC may also be held liable under section 110(c). Sumpter
v. Sec’y of Labor, 763 F.3d 1292, 1298 (11th Cir. 2014). An unreasonable belief
that a practice is safe does not serve as a defense to section 110(c) liability,
even if held in good faith. Lafarge Constr. Materials, 20 FMSHRC 1140,
1150 (Oct. 1998).

V.  ADDITIONAL
FINDINGS OF FACT, ANALYSIS, AND

CONCLUSIONS OF LAW

A.        Order No. 8440269 – Failure to Conduct Pre-Shift
Examination

Prairie State violated section 75.360(a) by not
conducting a pre-shift examination of the Main North Intake section that
Prairie State assigned miners to rockdust on June 25, 2012. Prairie State did
not record a pre-shift or supplemental examination of this area in either its
examination book or by DTIs on its date boards underground. (Exs. S–3, R–10 at
7 [20]; Tr. 42:17–43:4.) Prairie State does not deny that it failed to
conduct the required examination but disputes the violation’s S&S and
unwarrantable failure designations. (See Resp’t Br. at 1–6.)

1.     
Gravity and S&S

To establish the first element of the Mathies
test, the Secretary must prove an underlying violation of a mandatory safety
standard. Prairie State’s violation of section 75.360(a) establishes the first
element of an S&S violation.

As for the second Mathies
element, the Secretary must show that the violation contributed to a discrete
safety hazard. Prairie State exposed miners to dangerous conditions by failing
to identify safety hazards in the working area through a pre-shift examination.
(Tr. 85:13–18) These hazards included multiple instances of loose rib that
could fall and strike a miner. (Ex. S–8 at 2.) Sending miners into the unexamined
area contributed to these safety hazards, thus satisfying the second element of
the Mathies test.

With regard to the third Mathies
element, the Secretary must demonstrate a reasonable likelihood the hazard will
result in an injury. Prairie State claims the Secretary has not proven that the
loose rib material would be reasonably likely to injure a miner.[7] (Resp’t Br. at 9–10.) Additionally,
Prairie State asserts that the area was not a regular travelway, and the work
assignment required the miners to pass through the area only once. (Id.)

The miners assigned to rockdust in
the Main North Intake covered an area spanning multiple entries and crosscuts. (Ex.
S–4(a).) Within this area, Prairie State found nine different locations where
loose rib had to be scaled down. (Exs. S–4(a), S–8 at 2.) The numerous
locations of loose rib greatly increased the likelihood of rib material
striking miners as they traversed the section. Indeed, at one location, the
scaled rib covered over half an entry and measured 15 feet in length, seven feet
in height, and one to 12 inches in thickness. (Tr. 54:8–9; Exs. S–5, S–6.)

Moreover, certain mine conditions
are transitory in nature; thus, a later examination of an area is not
sufficiently indicative of the hazards that may have existed at the time the
area should have been examined. Jim Walter Res., Inc., 28 FMSHRC at 604
(citing Manalapan Mining Co., 18 FMSHRC 1375, 1382 (Aug. 1996)). An
operator’s failure to conduct a pre-shift examination allows various hazardous
conditions in a mine to develop without notice. These hazards include poor roof
conditions, low oxygen, and high methane concentrations. (Tr. 85:13–18.) Because
Prairie State did not perform an examination, its miners did not know of all
the potential hazards that might have existed in the area at the time the
miners were sent down to work. Furthermore, the miners assigned to rockdust
were relatively inexperienced and were not certified to perform examinations to
identify hazards on their own. (Tr. 45:20–46:18.)

Consequently, I determine that the
hazard of loose ribs falling and striking a miner, in conjunction with exposing
miners to unknown hazards, was reasonably likely to result in injury, thus
satisfying the third element of the Mathies test.

Lastly, under the fourth Mathies
element, the Secretary must prove a reasonable likelihood the resulting injury
will be of a reasonably serious nature. With regard to this element, Prairie
State asserts that any injury caused by the loose ribs would not be serious because
the miners traveled in a ram car equipped with a steel canopy and side panels. (Resp’t
Br. at 9–10.)

If loose rib falls and strikes a
miner, the resulting injuries may include lacerations, fractures, and
contusions. (Tr. 62:20–24.) Although the miners traveled in a semi-protected
ram car, the car still left the miners exposed along the front and sides of the
vehicle. (Exs. R–5(a), R–5(b); Tr. 55:14–56:15.) Moreover, additional
preventive safety measures do not eliminate the S&S nature of a violation. See
Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013) (rejecting
operator’s argument that other equipment safety measures reduced the degree of
danger and rendered an accumulations violation non-S&S).

Given the magnitude and numerous
locations of loose rib Prairie State had failed to identify before sending
miners into the area for rockdusting, I determine that the injuries which could
have resulted from these hazards would have been reasonably serious, thus
satisfying the fourth Mathies element.

Accordingly, the Secretary has
satisfied all four elements of the Mathies test. I therefore conclude
that Order No. 8440269 was appropriately designated as S&S.

2.      Unwarrantable
Failure and Negligence

The Secretary asserts that Prairie State’s conduct
amounted to high negligence and was an unwarrantable failure. (Sec’y Br. at
10–20.) The Secretary states that the violation was highly negligent because
prior incidents where examinations had not been conducted placed Prairie State
on notice that it needed to be more careful in conducting pre-shift
examinations before sending miners underground. (Id. at 10.) Additionally,
the Secretary asserts Prairie State’s actions were highly negligent and an
unwarrantable failure particularly because two supervisors engaged in violative
conduct, the violation was obvious, the supervisors should have known of the
violation, and the violative condition posed a high degree of danger. (Id.
at 13.)

In contrast, Prairie State asserts
that the negligence and unwarrantable failure designations are inappropriate
because Rees did not know to perform a pre-shift examination, and Welch believed,
in good faith, that an examiner had checked the area prior to the third shift. (Resp’t
Br. at 10–17.) Specifically, Prairie State argues that the violation was not
extensive, did not last an extended length of time, was not obvious, and did
not pose a high degree of danger. (Id. at 12–14.) Additionally, Prairie
State asserts it was not on notice and had no knowledge of the violation. (Id.
at 13–17.)

In analyzing an unwarrantable failure, I must
consider the Commission’s factors for determining aggravated conduct. See IO
Coal Co., 31 FMSHRC at 1350–51. When applying these factors to a pre-shift
violation, the Commission considers the pre-shift violation’s unwarrantable
failure designation in context with any underlying violative conditions the
operator failed to identify as a result of its insufficient examination. See
Brody Mining, LLC, 37 FMSHRC at 1700; Consolidation Coal Co.,
23 FMSHRC 588, 597–98 (June 2001) (remanding for consideration of the extent,
duration, and obviousness of an underlying accumulations violation when
assessing unwarrantable failure of an inadequate pre-shift examination).

Prior to the June 25 inspection,
MSHA twice told Prairie State that it needed to make better efforts to comply
with the pre-shift examination requirement. On May 30, 2012, Inspector Hatcher
cited Prairie State for failing to conduct a pre-shift examination of a work
area for two shifts. (Ex. S–7.) A week later, on June 4, 2012, Hatcher again
discovered that Prairie State had failed to record a pre-shift examination
prior to sending miners into a work area. (Tr. 63:9–25, 66:6–7.) Although an
examiner had performed a supplemental examination of the area in this June
instance, Hatcher warned Superintendent Jackson that the operator needed to do
a better job of performing and recording its pre-shift examinations. (Tr.
63:9–64:9.) Specifically, Hatcher warned Jackson that a superintendent should have
a contingency plan for mine examinations, even for work assignments he had not
anticipated. (Tr. 66:14–21.) Hatcher told Jackson that if the superintendent knows
he has work planned in an area not normally examined, then the area needed to
be pre-shifted. (Tr. 64:1–3.) Past violations and discussions with an MSHA
inspector regarding a safety standard may demonstrate that an operator had
notice of its need for greater compliance efforts. Enlow Fork Mining Co.,
19 FMSHRC at 11–12. Based on the facts here, I determine that Prairie State had
notice of the need for greater compliance efforts with the pre-shift
examination requirement.

In terms of the extent and danger
of the violation, examiners identified loose ribs in nine different locations. (Ex.
S–8.) Prairie State’s miners actually completed rockdusting in an area that
spanned three entryways (Entry Nos. 8, 9, 10) and six crosscuts (Crosscut Nos.
2 through 7), an area somewhat different from Jackson’s written instructions. (Exs.
S–4(a), R–8(b).) The area actually rockdusted covered approximately 3,000 feet.
(See Tr. 192:23–193:6; Exs. S–4(a), S–9, S–10 at 2, R–8(b).) Jackson’s
written orders instructed Welch to rockdust an even larger area covering at least
5,200 feet across five entryways (Entry Nos. 7 through 11) and seven crosscuts
(Crosscut No. 6 to the Avro). (Ex. R–8(b); see Tr. 48:10–49:7; Exs.
S–4(a), R–8(b).) Yet Prairie State’s examination of the primary
escapeway at 4:30 p.m. covered only 800 feet, or about 15 percent of the
assigned work area. (See Tr. 48:10–49:7; Exs. S–4(a), R–8(b).) Significantly,
the Main North Intake’s escapeway examination cannot be credited as a pre-shift
because it took place outside the three-hour window prior to the start of the
third shift at 10:30 p.m. (Tr. 42:17–43:4, 142:24–143:1; 149:6–8, 17:2–3;
148:19–149:1; see Ex. R–10 at 7 [20].) As a result, Prairie State failed
to identify loose ribs located in each of the three entryways and five of the
six crosscuts that its miners had rockdusted. (Exs. S–4(a), S–8 at 2.) In sum,
loose ribs posing a high degree of danger to miners were located in numerous
places those miners were required to work and travel. See discussion supra
Part V.A.2.

Regarding the obviousness of the
violation, upon entering the Main North Intake area, Inspector Hatcher found
before him a significant unsupported rib that, when scaled down, covered half
the entryway. (Tr. 38:19–41:2, 54:3–17.) The unsupported piece of rib Hatcher
discovered was 15 feet long, seven feet high, and up to a foot thick. (Exs.
S–5, S–6.) The operator’s subsequent examination uncovered nine roof and rib
hazards that required scaling. (Tr. 69:7–75:4, 120:19–121:3.) Given the number
and size of the discovered hazards, these underlying conditions were obvious to
a reasonably prudent miner in the area. Similarly, these obvious hazards make
Prairie State’s failure to conduct a pre-shift examination obvious. The date
boards in the Main North Intake section compounded the obviousness of the
missing pre-shift examination, as all but two date boards contained no DTIs
whatsoever. (Tr. 77:14–78:24, 111:17–112:9.)  

Nevertheless, Prairie State asserts
that its failure to perform a pre-shift examination was not obvious because the
escapeway entry in the examination book suggested a pre-shift examination had
been completed for the entire area. (Resp’t Br. at 2–3, 10–14.) In support,
Prairie State points to Welch’s testimony, asserting that he believed in good
faith a pre-shift examination had been performed. (Id. at 2–3, 13–14.) Prairie
State further argues that because the violation was not obvious, the operator
did not know and did not have reason to know that it had failed to conduct a
pre-shift examination. (Id. at 13–14.)

Welch testified that he mistakenly believed the
escapeway examination entry in the aboveground examination book showed a full
pre-shift examination had been performed for the Main North Intake area. (Tr.
194:4–198:1.) Although Rees did not specifically recall his June 25 shift, he stated
that he would have reviewed the recorded escapeway examination. (Tr. 168:10–169:16.)
Rees suggested that based on the escapeway exam book entry he would not have
believed a pre-shift examination of the North Main Intake area was necessary. (Tr. 170:23–171:10.)
In contrast, however, MSHA Investigator Bretzman and Prairie State’s
Bertelsman, who conducted the Main North Intake escapeway examination,
testified that any reasonable miner would have understood from the entry that a
full pre-shift examination had not been completed for the Main North Intake
area. (Tr. 116:13–20, 142:15–144:22.) I credit the testimony of Bretzman and
Bertelsman and determine that a reasonable shift manager should have known that
the escapeway examination in the examination book did not mean the mine
examiner had conducted a full pre-shift of the section. See also
discussion, infra, Part V.B. Accordingly, both Welch and Rees’s readings
of the escapeway examination entry were unreasonable.

Furthermore, any confusion created
by the escapeway examination’s listing was created by Prairie State’s
insufficient policy. At the time of the violation, Prairie State kept its
pre-shift examination records in the same column as its on-shift escapeway
examination records. (Tr. 17:2–3, 148:19–149:1; Ex. S–3.) The Commission
has recognized that a lack of obviousness does not mitigate an operator’s
negligence when the operator’s actions caused the violation to be less obvious.
E. Associated Coal Corp., 32 FMSHRC 1189, 1200 (Oct. 2010) (rejecting
operator’s argument that violative condition was not obvious because operator
had clear control over an obstruction’s removal). Here, Prairie State had clear
control over its procedures for recording pre-shift and on-shift examinations. The
operator chose to keep these records in the same column, despite the risk of
confusing the mine’s supervisors and thus endangering the lives of miners
working in unexamined areas. Indeed, Prairie State’s new manager, Welch, sent
three miners with minimal experience to work in an area with significant
unidentified hazards. If I am to believe any actual confusion occurred due to
the escapeway exam book entry, Prairie State does not merit sympathy for
maintaining poor recordkeeping that allowed such a mistake to happen. The
missing pre-shift examination was obvious, and Prairie State reasonably should
have known that it needed to conduct a full examination of the Main North
Intake area prior to sending miners there to rockdust. See San Juan Coal Co.,
29 FMSHRC 125, 134 (Mar. 2007) (considering whether an operator
“reasonably” should have known of a violation when analyzing the operator’s
knowledge of the violation).

With regard to the violation’s duration, any
amount of time a miner spends in an unexamined portion of a mine is prohibited,
unless the miner is a certified examiner. 30 C.F.R. § 75.360(a). Here, an
examination was only conducted after the violation was discovered and an order
issued by Inspector Hatcher. However, the pre-shift violation lasted for less
than one shift.[8]
Accordingly, I determine that the duration of the violation is neither a
mitigating nor aggravating factor.

In considering the abatement factor, the
Commission focuses on compliance efforts made prior to the issuance of the
citation or order. Enlow Fork Mining Co., 19 FMSHRC at 17. Here, the
record provides no evidence of any abatement efforts made prior to the order’s
issuance. In terms of being a mitigating factor, therefore, I afford it no
weight.

Prairie State exposed miners to dangerous mine
conditions by failing to conduct the required pre-shift examination. The unexamined
area was extensive, covering over a 5,200-foot area, and posed risks to miners
at each entryway they traveled. Prairie State’s examination records in the
aboveground book made it obvious that no pre-shift examination occurred, and thus
Prairie State should have known of the violation. Despite prior warnings,
Prairie State again failed to comply with the pre-shift requirement, leading
the inspector to issue this withdrawal order. Although the duration of the
violation and the operator’s abatement efforts do not necessarily weigh in
favor of either party, the notice that greater efforts were required, the operator’s
knowledge of the violation, the extent, danger and obviousness of the
violation, and all the facts and circumstances considered as a whole support a finding
of aggravated conduct.

Accordingly, for Order No. 8440269 I
conclude that Prairie State’s violation of section 75.360(a) was an
unwarrantable failure to comply with a mandatory health or safety regulation. For
the same reasons explained above, I also conclude that Prairie State was highly
negligent in failing to conduct a pre-shift examination.

B.        Section 110(c) Liability

The Secretary seeks separate civil penalties
against shift managers Rees and Welch for their conduct in connection with
Order No. 8440269.[9]
To hold either Rees or Welch liable under section 110(c) of the Mine Act, the
Secretary must prove that each miner (1) knew or had reason to know that Prairie
State needed to conduct a pre-shift examination; and (2) failed to have the
required examination performed before sending miners into the area. See Kenny
Richardson, 3 FMSHRC at 16.

1.     
Rees – Section 110(c) Liability

The Secretary argues that
Rees had reason to know an examination needed to be performed in the area. (Sec’y
Br. at 21.) In support, the Secretary asserts that Rees’s belief that the
escapeway examination listed in the mine’s aboveground book showed the entire
work area had been pre-shifted was unreasonable. (Id. at 21–22.) The
Secretary further asserts that Rees failed to act by neither ordering the
pre-shift examination during his shift nor alerting Welch to perform a
supplemental examination before workers were sent down to perform rockdusting. (Id.
at 21–22.) The Secretary notes that Rees normally had the opportunity to speak
to Welch prior to the midnight shift about conditions in the mine and any
needed examinations. (Id. at 21.) The Secretary asserts that Rees’s
behavior resulted in exposing miners to danger and therefore amounts to
reckless disregard. (Id. at 22.)

Rees claims he was not in
a position to know that a pre-shift examination of the area was needed. (Resp’t
Br. at 18.) Rees asserts he should not be held liable under section 110(c)
because he did not know when or where the rockdusting would occur. (Id.)
Rees also implied the escapeway examination recorded in the mine’s examination
book meant that the area had undergone the required pre-shift examination. (Tr.
170:23–171:3.)

Prairie State
superintendent Jackson left the authority to order examinations and assign
examiners solely to the mine’s shift managers. (Tr. 104:5–10, 105:2–7,
167:14–168:5.) Rees, the second shift mine manager, has 31 years of mining
experience and is considered a very knowledgeable mine manager. (Tr. 172:14–15;
122:13–17.) On June 25, 2012, Jackson instructed Rees in a written note to haul
dust to the Main North Intake during the second shift. (Ex. R–8(a).) Jackson’s
instructions directed Rees to a map but did not specifically indicate when
miners would rockdust.[10]
(Id.; Tr. 173:8–14.) However, rockdusting typically occurred during the
third shift, which was a maintenance shift. (Tr. 193:14–17.) Rees directed his
miners to set up the equipment in the Main North Intake area. (Tr. 105:18–25,
177:7–11, 212:15–213:1; Exs. S–4 at 1, R–10 at 6 [17].)

A reasonable miner with Rees’s
experience would be familiar with the mine’s normal work routine and would have
known that the rockdusting equipment would likely be used in the area where it
was set up. Inspector Hatcher learned from Welch that Jackson at 10:00 p.m. instructed
him to rockdust in the Main North Intake area where Rees had set up the
rockdusting equipment. (Ex. R–10 at 6 [15–17].) Rees ended his shift at 1:30
a.m. (Tr. 190:5–7, 139:19.) Rees therefore had the opportunity to talk with
Welch about the third shift’s assignment to rockdust the area and use the
equipment Rees had set up. Based on these facts, I find Rees reasonably should
have known rockdusting would occur in the Main North Intake section during the
subsequent third shift. Accordingly, Rees should have known an examiner needed
to perform a pre-shift examination of the area prior to that shift.

Given this knowledge,
Rees was responsible for ordering the pre-shift examination of the areas in the
Main North Intake that Jackson scheduled to have rockdusted for the oncoming
third shift. (Tr. 105:2–13, 167:20–168:5.) Because Rees was responsible for
ordering pre-shift examinations for the next shift, he normally reviewed the third
shift’s pre-shift examination report to see what his examiners entered into the
book. (Tr. 168:10–169:16.) This review typically occurred toward the end of his
shift when he returned aboveground from the mine. (Tr. 169:4–6.) The third
shift’s pre-examination report on the night of Hatcher’s inspection had no
pre-shift examinations listed for the Main North Intake area.[11]
(Ex. S–3.)

Rees maintains he did not
believe a pre-shift examination of the area was necessary because the
aboveground examination book showed that an examiner examined the Main North
Intake escapeway during that night’s second shift. (Tr. 170:23–171:3.) However,
special investigator Bretzman and examiner Bertelsman both testified that an
experienced mine manager would know that escapeway examinations were limited to
only the escapeway route. (Tr. 116:13–20, 142:15–144:22.) In fact,
Bertelsman conducted a portion of the Main North Intake escapeway examination
that day and only followed the normal route of the escapeway during such
examinations unless a shift manager instructed him otherwise. (Tr. 134:12–18, 135:12–20.)
According to Bertelsman, unless an examination was part of a routine daily
duty, mine examiners only examined areas upon a shift manager’s request. (Tr.
134:11–18.) The Main North Intake area was not a normal travel area and thus
was not routinely pre-shifted. (Tr. 203:23–204:5, 214:3–6.) In order to
have a pre-shift examination performed in the Main North Intake, Rees therefore
would have had to specifically ordered an examiner to conduct one. Rees did not
order any examiners to perform such a pre-shift examination. (Tr. 186:19–25.)

Given this evidence, it
was not reasonable for Rees to believe a pre-shift was performed for the Main
North Intake on June 25. Accordingly, I do not credit Rees’s testimony
regarding the escapeway examination book entry based on his inconsistent
statements. Rather, I credit Bretzman and Bertelsman’s testimony and determine
that Rees, an experienced mine manager, should have known the escapeway
examination was not a pre-shift examination and did not include the areas
outside the escapeway route.

As the second shift
manager, part of Rees’s duties entail checking the examination books for
hazards and other abnormalities and bringing them to the attention of the third
shift manager, Welch. (Tr. 169:25–170:20.) When Rees had reason to know an
examiner needed to perform a supplemental examination during the next shift, he
normally would tell the oncoming shift manager. (Tr. 170:4–20.) In
particular, Rees would discuss anything out of the ordinary, such as “equipment
out of place or whatever.” (Tr. 169:22–170:20.) Such conversations allowed the
managers to tie up any loose ends left from the previous shift. (Id.) Rees
usually had ample opportunity to speak with Welch, as both managers were at the
mine for four and one-half hours from Welch’s arrival at 9:00 p.m. until Rees
ended his overlapping second shift at 1:30 a.m. (Tr. 190:5–7, 139:19.) Indeed,
on the night of Hatcher’s inspection, Rees spoke with Welch at some point during
their overlap. (Tr. 187:1–4, 190:5–7, 139:19.) Rees had delivered
rockdusting equipment to an infrequently traveled area of the mine. Yet Rees
never put the pieces together to inform Welch that a full pre-shift examination
had not been performed for the Main North Intake and that a supplemental
examination was necessary. (Tr. 185:18–21.)

The Mine Act demands a
high level of care from mine supervisors. See Lion Mining Co., 19 FMSHRC
1774, 1778 (Nov. 1997). Given the evidence before me, I determine that Rees had
a duty to either order a pre-shift examination or alert Welch that a
supplemental examination was necessary. By neither conducting a pre-shift
examination nor informing Welch that he needed to perform a supplemental examination,
Rees failed in his responsibility to pass the baton to the oncoming shift and
ensure that the necessary safety precautions took place before the third shift
began work. A simple, brief conversation about each manager’s work assignments would
have revealed that miners were headed to an unexamined work area, blind of the
hazards that could be lurking therein. That simple conversation did not take
place.

I therefore conclude that
Rees should have known that a pre-shift examination was necessary for the Main
North Intake area before the third shift on June 25, 2012. By neglecting to
either order the pre-shift himself or inform the third shift manager that a
supplemental examination was necessary, Rees failed to act as required by the
Mine Act to protect miners. Rees’s inaction exposed miners to serious hazards. A
simple discussion with Welch would have avoided such a dangerous situation. Given
the danger presented and the ease of the solution, I conclude that Rees
exhibited a serious lack of reasonable care constituting more than ordinary
negligence. Accordingly, Rees engaged in aggravated conduct and is liable under
section 110(c) of the Mine Act.

2.     
Welch – Section 110(c) Liability

The Secretary argues that Welch had
reason to know an examination of the Main North Intake area needed to be
performed and that Welch’s reliance on the recorded escapeway examination was
unreasonable. (Sec’y Br. at 23.) The Secretary asserts that Welch knew the
escapeway examination was limited to the escapeway route and failed to act by
not performing a supplemental examination of the other areas. (Id.) The
Secretary claims that Welch exhibited reckless disregard in exposing miners to
danger. (Id.)

In contrast, Welch asserts that he should
not be held liable under section 110(c) because he reasonably believed the
required examination had been performed. (Resp’t Br. at 20.) Welch argues that
his belief that the escapeway examination covered the entire work area was
reasonable because the mine’s examiners routinely listed pre-shift examinations
by general location, rather than specific location. (Resp’t Br. at 20–22; Tr.
195:7–17.) Welch also claims he was inexperienced as a mine manager, having
only been in that position for a month at the time of the violation, and
performed his duties in good faith to the best of his ability. (Resp’t Br. at 20–22;
Tr. 189:11–14.)

Upon arriving at the mine
around 9:00 p.m. prior to the start of the third shift, Welch reviewed his work
orders, which included Jackson’s instructions to rockdust the Main North Intake.
(Tr. 189:24–190:4, 190:5–7.) Jackson’s written instructions were detailed about
the area needing rockdusting, specifying exact entries and crosscuts. (Ex.
R–8(b).) Welch subsequently checked the pre-shift examination book to see
whether an examiner had examined the area where rockdusting was going to occur.
(Tr. 194:14–18.) Welch saw that the second shift mine examiners had examined
the Main North Intake escapeway and incorrectly concluded that the examination
covered the entire area to be rockdusted. (Tr. 194:22–195:14.) However, most of
the entries and crosscuts Jackson specified in Welch’s instructions were outside
of the Main North Intake escapeway. (Ex. S–4.)

Though a few examination book
entries describe general areas, such as “Third North Construction Area,” nearly
all of the entries describe areas with specificity, listing particular entryway
numbers, travelways, and belts. (See Exs. S–3, R–2(a), R–2(b).) Although
Welch had only been a mine manager for one month before the violation, he had
17 years of mining experience. (Tr. 209:6–8.) Moreover, Welch obtained his mine
examiner’s papers before he began working in Prairie State’s safety department
in 2010. (Tr. 208:8–209:5.) Thus, Welch had significant experience,
particularly in mine safety and in performing examinations.

A reasonably prudent mine manager
would know that escapeway examinations do not include the areas outside the
escapeway route. (Tr. 122:23–123:9.) If Welch was unfamiliar with Prairie
State’s examination procedures, as a mine manager he had a duty to inquire and
know about those practices, as they are fundamental to protecting the safety of
the miners who work under him. Indeed, Welch had opportunities to do so before
sending miners underground to rockdust. Not only did Welch speak to his
superior, Superintendent Jackson, that evening, he could have checked with
Rees, a more seasoned shift manager, about whether a pre-shift examination in
the Main North Intake area had occurred. (Tr. 187:1–4, 190:5–7, 139:19,
213:2–7, 219:9–15.) Given the facts before me, I determine that Welch’s
reliance on the Main North Intake escapeway examination as a pre-shift
examination was unreasonable. Consequently, I determine that Welch should have
known an examination of the area had not been performed.

Despite his reason to know an examination
was necessary, Welch did not conduct a supplemental examination of the area
during his shift. (Tr. 46:25–47:2, 197:21–198:1.) As a result, Welch sent miners
down into an area that had not been examined and contained serious hazards. I
therefore determine that Welch failed to act in protecting those miners.

Welch’s mistaken belief that the
area had undergone a pre-shift examination does not satisfy the high duty of
care required of mine supervisors. Welch knew or had reason to know an
examination of the work area had not been performed, and he failed to act by
not ordering a supplemental examination before miners began working in the area.
Welch exhibited a serious lack of reasonable care by sending miners into an
unexamined area and exposing them to serious danger. Accordingly, I conclude
that the Secretary has also proven Welch engaged in aggravated conduct and is
liable under section 110(c) of the Mine Act.

VI.  PENALTY

Under Section 110(i) of the Mine Act, I must
consider six criteria in assessing a civil penalty: (1) the operator’s history
of previous violations; (2) the appropriateness of the penalty relative to the
size of the operator’s business; (3) the operator’s negligence; (4) the
penalty’s effect on the operator’s ability to continue in business; (5) the
violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i). These same section 110(i) factors are also applicable when
assessing penalties under section 110(c) cases. Mize Granite Quarries, Inc.,
34 FMSHRC 1760, 1764 (Aug. 2012). In the section 110(c) context, the
“relevant inquiries include whether the penalty will affect the individual’s
ability to meet his financial obligations and whether the penalty is
appropriate in light of the individual’s income and net worth” but should “not
include the size of the mine [or] . . . the penalties levied against the
corporation.” Id. at 1764–65.

A.        Prairie State’s Penalty

The Secretary has proposed that Prairie
State pay a penalty of $2,000.00 for Order No. 8440269, the minimum penalty for
an unwarrantable failure violation under section 104(d)(1). 30 U.S.C. § 110(a)(3)(A).
Nothing in the record suggests that the proposed penalty is inappropriate for
the size of Prairie State’s business, and the parties have stipulated that the
proposed penalty will not affect Prairie State’s ability to remain in business.
(Ex. S–1.) Additionally, nothing suggests that Prairie State failed to make a
good faith effort to achieve rapid compliance with the safety standard after
Inspector Hatcher issued the order. In fact, Prairie State has since changed
its examination recording procedures in order to help eliminate any possible confusion
as to whether a pre-shift examination has been conducted in the mine. (Tr.
149:2–8; Ex. R–11.)

On the other hand, I have upheld the Secretary’s
S&S, unwarrantable failure, and negligence designations. Such conclusions
ordinarily support the Secretary’s proposed penalty. In addition, I considered
the mine’s history of violations concerning this safety standard. (Exs. S–2, S–7.)
MSHA cited Prairie State for another violation of section 75.360(a) less than
one month prior to the issuance of Order No. 8440269. (Ex. S–7.)  

Prairie State’s systemic failure to
ensure that required examinations took place at the mine placed miners in grave
danger, putting them at risk of serious injury. Prairie State had direct
control over training its managers on the mine’s examination recording
procedures; yet it put in charge a new shift manager who apparently did not
know how to read the examination book properly. Superintendent Jackson then gave
written instructions to both Rees (second shift) and Welch (third shift) and
was in the best position to know when work was to be done and when pre-shifts
should be ordered. Yet Jackson not only failed to communicate adequately with
Rees about work to be done on the third shift that would trigger a pre-shift
examination, he also failed to adequately oversee Welch, a new shift manager, thus
raising serious questions about the operator’s procedures. These failures of
Prairie State’s management warrant an increased penalty. Given the gravity of
the hazardous conditions found, coupled with Prairie State’s failure to
coordinate and supervise adequately its shifts to ensure compliance with
examination requirements, I determine that a higher penalty is appropriate for
Prairie State’s unwarrantable conduct. Considering all of the facts and
circumstances set forth above, I hereby assess a civil penalty of $4,000.00.

B.        Steven B. Rees’s Penalty

The Secretary has proposed that Rees pay
a penalty of $1,500.00 under section 110(c). Rees did not present evidence
regarding his ability to meet his financial obligations or his individual
income and net worth. Rees’ failure to either conduct a pre-shift examination
or inform the oncoming shift manager an examination was needed resulted in a
violation of the pre-shift standard that was S&S, highly negligent, and an
unwarrantable failure. However, no evidence in the record shows that Rees has
engaged in any past violative conduct. The Secretary did not prove Rees’s
action or inaction was intentional. Nonetheless, the facts and circumstances
establish that Rees failed to meet his high duty of care. Accordingly, I
conclude a penalty smaller than the Secretary’s proposal is appropriate in this
case. Thus, I assess a civil penalty of $500.00 against Rees under section
110(c).

C.        Michael Welch’s Penalty

The Secretary has proposed that Welch pay
a penalty of $1,500.00 under section 110(c). Welch did not present evidence
regarding his ability to meet his financial obligations or his individual
income and net worth. Welch’s failure to act resulted in a pre-shift violation
that was S&S, highly negligent, and an unwarrantable failure. His mistake
in this case was objectively unreasonable and resulted in a serious hazard to
miners. However, the absence of intentional misconduct and the fact Welch had
only been a manager for a short period before the violation occurred suggests
some leniency is appropriate. In addition, the record contains no evidence demonstrating
Welch’s involvement in any past violative conduct. In light of the above
criteria, I conclude a penalty smaller than the Secretary’s proposal is
appropriate in this case. Thus, I assess a civil penalty of $500.00 against
Welch under section 110(c).

VII.  ORDER

In light of the foregoing, it is hereby ORDERED
that Order No. 8440269 is AFFIRMED. The section 110(c) liability of
Steven B. Rees and Michael Welch is AFFIRMED. Prairie State is ORDERED
to PAY a civil penalty of $4,000.00 within 40 days of the date of this
decision. Steven B. Rees is ORDERED to PAY a civil penalty of $500
within 40 days of this decision. Likewise, Michael Welch is ORDERED to PAY
a civil penalty of $500 within 40 days of this decision.[12]

/s/ Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Emelda Medrano, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, Room 844, Chicago, Illinois 60604

Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway
Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, Pennsylvania 15222

/ivn

[1] Section 75.360(a) provides, in relevant part: “[A]
certified person designated by the operator must make a pre-shift examination
within [three] hours preceding the beginning of any [eight]-hour interval
during which any person is scheduled to work or travel underground. No person
other than certified examiners may enter or remain in any underground area
unless a pre-shift examination has been completed for the established
[eight]-hour interval.” 30 C.F.R. § 75.360(a).

[2] The S&S terminology is taken from section
104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), which
distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.”

[3] The unwarrantable failure terminology is taken from
section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), which establishes
more severe sanctions for any violation that is caused by an “unwarrantable
failure of [an] operator to comply with . . . mandatory health or safety
standards.”

[4] In this decision, the hearing transcript, the
Secretary’s exhibits, and Respondent’s exhibits are abbreviated as “Tr.,” “Ex.
S–#,” and “Ex. R–#,” respectively.

[5] Hatcher learned that these three miners had relatively
little experience. Two of the miners had approximately one year of experience
working in an underground mine, and the third miner had only five months of
experience. (Tr. 45:24–10.) None of these miners were certified to examine for
hazards. (Tr. 46:12–13.)

[6] Citation No. 8440268, originally issued as a section
104(d)(1) citation, was modified to a section 104(a) citation as part of a later
settlement. Prairie State Gen. Co., LLC, FMSHRC Docket No. LAKE 2012-900
(Mar. 20, 2013) (ALJ) (order approving settlement). The citation retains its
S&S designation but is no longer designated as an unwarrantable failure. Id.

[7] Contrary to Prairie State’s assertion that the loose
rib conditions do not warrant the pre-shift violation’s S&S designation,
the underlying violation—Citation No. 9440268—retained its S&S designation
as part of a settlement. Prairie State Gen. Co., LLC, FMSHRC Docket No.
LAKE 2012-900 (Mar. 20, 2013) (ALJ) (order approving settlement). Moreover, the
loose rib was just one of nine problematic locations Hatcher identified in his
inspection. (Ex. S–4(a); Tr. 69:7–74:4.)

[8] The violation began when Prairie State failed to
conducted the required pre-shift examination. See Jim Walter Res., Inc.,
28 FMSHRC at 602. Prairie State should have conducted the pre-shift examination
by the start of the third shift at 10:30 p.m. (See Tr. 156:4–24.) Inspector
Hatcher issued Order No. 8440269 at 3:15 a.m., nearly five hours into the third
shift, and withdrew the miners from the area until Prairie State examined the
area. (Ex. S–8 at 1; Tr. 47:4–6.) The violation, therefore, lasted at least four
hours and 45 minutes. See Old Ben Coal Co., 1 FMSHRC 1954, 1959
(Dec. 1979) (finding unwarrantable failure where violative accumulations had
existed for less than one shift).

[9] In their post-hearing brief, Respondents Rees and
Welch again assert that the 110(c) civil penalties in this case should be
dismissed because of MSHA’s delay in completing its section 110(c)
investigation. (Resp’t Br. at 18–19.) On August 26, 2015, I issued an Order
Denying Respondents’ Motion to Dismiss 110(c) Dockets based on the same
argument. Docket Nos. LAKE 2015-130 and LAKE 2015-144, unpub. order at 1–4
(Aug. 26, 2015) (ALJ). Given the Secretary’s non-frivolous explanation for his
delayed investigation and Respondents’ failure to show they were prejudiced by
the delay, I determined that the 110(c) dockets should not be dismissed. (Id.)
Because Respondents have not presented any new evidence regarding this issue,
my prior determination stands.

[10] Although Jackson’s instructions mentioned a map, the
map was no longer available at hearing, and Rees did not recall whether it was
attached to the instruction sheet. (Tr. 183:2–184:3.) Nevertheless, Rees had
the equipment delivered to the proper area. (Tr. 105:18–25, 177:7–11; Exs. S–4
at 1, R–10 at 6 [17].)

[11] Although the report listed an examination for the
Main North Intake escapeway, the escapeway examination was not a pre-shift
examination, but an on-shift examination. (Tr. 142:20–143:1.) At that time,
Prairie State’s practice was to list its on-shift escapeway examinations in the
same section as its pre-shift examinations. (Tr. 17:2–3; 148:19–149:1.)

[12] Payment should be sent to: U.S. Department of Labor,
MSHA, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please
include docket and A.C. numbers.