Secretary of Labor v. Big Ridge, Inc. (amended)

Read the official release (fmshrc.gov)

Plain-English summary

Big Ridge operated the underground Willow Lake Portal coal mine, where MSHA issued 33 contested violations with proposed penalties totaling $801,018. The parties settled 25 violations for $296,571, while Judge David P. Simonton decided eight after a hearing. He affirmed several accumulation, roof-control, electrical-examination, rock-dust, and red-zone violations, but reduced penalties or enforcement designations on most of them and vacated one ventilation-plan order. The litigated penalties fell from $316,142 to $94,274. Together with the settlement, Big Ridge was ordered to pay $390,845. The Commission later reviewed the electrical-examination order and approved a settlement restoring its original high-negligence and unwarrantable-failure designations while retaining the judge's $15,000 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.220(a)(1), 75.370(a)(1), 75.400, 75.403, and 75.512
• Outcome: Seven litigated violations were affirmed or modified, one was vacated, their penalties totaled $94,274, and 25 settled violations added $296,571.
• Subsequent review: The Commission later approved a settlement concerning Order No. 8445268 in lake-2012-506-commission.
• Key point: The judge distinguished proven safety violations from enhanced negligence and unwarrantable-failure findings, reducing several designations and penalties where management knowledge or aggravated conduct was not established.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

�

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St., Suite 443

Denver, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

�����������������������������������������������������������

April
16, 2014

SECRETARY OF LABOR

��MINE SAFETY AND HEALTH���

��ADMINISTRATION, (MSHA),

����������������������� �� Petitioner,

�����������������������

�����������������������

��������������� �v.

BIG RIDGE, INC.,

���������������� Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2013-66

A.C. No. 11-03054-301718

Docket No. LAKE 2012-506

A.C. No. 11-03054-284471

Docket No. LAKE 2013-251

A.C. No. 11-03054-309969-01

Docket No. LAKE 2013-252

A.C. No. 11-03054-309969-02

Docket No. LAKE 2013-307

A.C. No. 11-03054-312677

Docket No. LAKE 2012-896

A.C. No. 11-03054-298858

Mine: Willow Lake Portal

�����������

AMENDED
DECISION AND ORDER

Appearances:����� �������� Ryan
Pardue, Office of the Solicitor, U.S. Department of Labor,

1999 Broadway, Suite 800, Denver, CO 80202 for
Petitioner

Lauren Polk, Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 800, Denver, CO 80202 for Petitioner

����������������������������������� Arthur
Wolfson, Jackson Kelly, 3 Gateway Center, Suite 1500,

401 Liberty Ave., Pittsburgh, PA 15222 for Respondent

Before:����������� ����������� Judge Simonton

I.       INTRODUCTION

This case is
before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Big
Ridge, Inc. at its Willow Lake Portal 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
�Mine Act� or �Act�). The cases include six separate dockets that originally included
33 contested violations with a total proposed penalty of $801,018.00. The
parties settled all but eight of these contested violations prior to hearing. The
parties presented testimony and documentary evidence at the hearing held in Benton,
Illinois beginning December 3, 2013.

II.
BACKGROUND

�

Big Ridge, Inc. (�Big
Ridge�) operates an underground bituminous coal mine, the Willow Lake Portal
mine (the �mine�) in Equality, Illinois. The mine is subject to regular
inspections by the Secretary�s Mine Safety and Health Administration (�MSHA�)
pursuant to section 103(a) of the Act. 30 U.S.C. � 813(a). The parties
stipulated that Big Ridge, Inc. is the operator of the mine and that its
operations affect interstate commerce and it is subject to the jurisdiction of
the Mine Act. Tr. 9.

����������� At hearing, the Secretary presented
testimony by MSHA Inspectors Chad Lampley, Larry Morris, Eddie Kane, Scott Lee,
and Dean Cripps. I have organized my findings by individual docket and detailed
my final ruling for each citation within its respective subsection. For the eight
citations contested at hearing, the Secretary has assessed a combined monetary
penalty of $316,142.00.

The Secretary designated
the majority of these contested citations as �Significant & Substantial� (S
& S) violations that also constituted an �unwarrantable failure� to comply
with mandatory safety standards. Additionally, for five of these citations, the
Secretary assigned specially assessed monetary penalties in excess of the
standard penalty calculation. At hearing, Big Ridge contested the factual
representations of the testifying MSHA inspectors, the underlying legal basis
of the citations, the Secretary�s gravity and negligence designations, and the
assessed monetary penalty amounts.

As such, I have prepared
a Statement of Law outlining the Commission�s instructions regarding: 1) Statute
and Safety Plan Interpretation; 2) Burden of Proof; 3) Significant and
Substantial violations; 4) Unwarrantable Failure; and 5) Civil Penalty and
Special Assessment. I have followed these guidelines for each of the eight
contested violations.

The hearing for these eight
citations lasted three days and produced a 670 page transcript with numerous
exhibits. The parties submitted a combined total of over 200 pages of
post-hearing briefs articulating their position on the evidence presented at
hearing. I have reviewed all of this evidence at length. In the interest of
clarity, I have not included a summary of the testimony presented, but have cited
to the testimony, exhibits, and arguments I found critical to my ultimate
ruling within my analysis.

III. �STATEMENT
OF LAW

A. Interpretation

Mandatory
site specific safety plans, including ventilation plans, are enforceable as
mandatory standards. UMWA v. Dole, 870 F. 2d 662, 671 (D.C. Cir. 1989); Ziegler
Coal Co. v. Kleppe, 536 F. 2d 298, 409 (D.C. Cir. 1976); Energy West
Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995).

Because
MSHA-required site specific safety and health plan provisions are enforceable
as mandatory standards,

The
operator is entitled to the due process protection available in the enforcement
of regulations... When a violation of a regulation subjects private parties to
criminal or civil sanctions, a regulation cannot be construed to mean what an
agency intended but did not adequately express. Laws
must give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly

Energy West Mining
Co., 17 FMSHRC 1317-18 (internal citations omitted).

However,
the Secretary is not required to provide the operator actual notice of its
interpretation of a mandatory site specific safety standard, rather,

The
Commission has applied an objective standard of notice, i.e., the reasonably
prudent person test. The Commission has summarized this test as �whether a
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard.�

Id. at 1318
(internal citations omitted).

�����������

B. Burden of
Proof

The Commission has long held, �In an enforcement action
before the Commission, the Secretary bears the burden of proving any alleged
violation.� Jim
Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987); Wyoming Fuel Co.,
14 FMSHRC 1282, 1294 (August 1992). The Commission has described the
Secretary�s burden as:

The
burden of showing something by a �preponderance of the evidence,� the most
common standard in the civil law, simply requires the trier of fact �to believe
that the existence of a fact is more probable than its nonexistence.

RAG Cumberland Res.
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas Co.,
11 FMSHRC 2148, 2152 (Nov. 1989).

The
Secretary may establish a violation by inference in
certain situations. Garden Creek Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary
facts and the ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132,
1138. (May 1984).

If
the Secretary has established facts supporting the citation, the burden shifts
to the respondent to rebut the Secretary�s prima facie case. Construction
Materials, 23 FMSHRC 321, 327 (March 2001) (ALJ Feldman).

C. Significant and Substantial

A
violation is Significant & Substantial (S&S), �if based upon the
particular facts surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.� Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).

In
order to uphold a citation as S&S, the Commission has held that 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).

An
S&S designation must be based upon the particular facts surrounding the
violation and must be made in the context of continued normal mining operation.
Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The Secretary does not necessarily
have to �prove a reasonable likelihood that the violation itself will cause
injury.� Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011)
(holding that failure to maintain emergency equipment was S&S despite low
likelihood of emergency occurring); See also Musser Engineering, Inc.
and PBS Coals 32 FMSHRC 1257, 1280-81 (Oct 2010) (PBS).

However,
the Commission has recently reiterated that �it is the contribution of a
violation to the cause and effect of a hazard that must be significant and
substantial. � Black Beauty Coal, 34 FMSHRC 1733, 1740 (August 2012)
(upholding Judge�s S&S determination that a � mile wide gap in a protective
berm created a safety hazard of trucks driving over a steep embankment) (quoting
US Steel Mining Co., 6 FMSHRC 1834, 1836)(Aug 1984).

Additionally,
for accumulation violations of 30 CFR � 75.400, the Commission has ruled the
question is whether there was a confluence of factors that made an
injury-producing fire and/or explosion reasonably likely. UP&L, 12
FMSHRC 965, 970-71 (May 1990). Factors that have been considered include the
extent of the accumulation, possible ignition sources, the presence of methane,
and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf,
10 FMSHRC at 500-03. An ALJ has also recently determined that roof control
violations of 30 CFR � 75.202(a) are S&S when the Secretary demonstrates
hazardous conditions in the roof and a reasonable likelihood of injury, but non
S&S when the Secretary has failed to demonstrate a reasonable likelihood of
injury. Hidden Splendor, 34 FMSHRC 3310, 3318, 3370 (ALJ Manning)
(December 2012) ( holding that (75.202(a) violation was S&S when roof was
taking weight and sagging in area of travel but separate 75.202(a) violation
was not S&S when Secretary did not show likelihood of miners travelling in
that area); See also C.W. Mining, 15 FMSHRC 178, 186 (ALJ Cetti)
(January 1993) (holding that 75.202(a) violation was non S&S when area was
5�8� high, difficult to get under, and resistant to scaling attempts).

�����������

D. Unwarrantable
Failure

Section 104(d) (1) of the
Mine Act states:

If, upon any
inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health
standard� and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety
standards, he shall include such findings in any citation given to the operator
under this Act.

Unwarrantable
failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as �reckless disregard,� �willful
intent�, �indifference�, or the �serious lack of reasonable care.� Id.
at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94. (February
1991).

The Commission
considers the following factors when determining the validity of 104(d)1 and
104(d)2 orders: (1) the length of time that the violation has existed and the
extent of the violative condition, (2) whether the operator has been placed on
notice that greater efforts were necessary for compliance, (3) the operator�s
efforts in abating the violative condition, (4) whether the violation was
obvious or posed a high degree of danger and (5) the operator�s knowledge of
the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340,
353 (Mar. 2000). All of the relevant facts and circumstances of each case must
be examined to determine if an actor�s conduct is aggravated, or whether
mitigating circumstances exist.

IO Coal Co., 31 FMSHRC 1346,
1351 (Dec. 2009).

E. Penalty
Assessment

It
is well established that Commission administrative law judges have the
authority to assess civil penalties de novo for violations of the Mine Act. Sellersburg
Stone Company, 5 FMSHRC 287, 291 (March 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider the six
statutory penalty criteria:

(1) the operator�s
history of previous violations, (2) the appropriateness of such penalty to the
size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator�s ability to continue in business, (5)
the gravity of the violation, and (6) 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).

����������� Although I assess monetary penalties
de novo, the Secretary has submitted proposed penalty amounts for each citation
contested at hearing. Following 30 CFR �100.3, the Secretary submitted
regularly assessed penalty amounts based upon point values corresponding to the
six statutory criteria for Citation Nos. 8445336, 8431905, and 8444863. Pursuant
to 30 CFR �100.5(a), the Secretary has submitted specially assessed penalty
amounts for Order Nos. 8436212, 8436107, 8445268 and Citation Nos. 8444809 and
8445037.

����������� For all penalty assessments, the
Secretary bears the burden of establishing the proposed penalty is appropriate
based upon the statutory criteria of Section 110(i) of the Act. In re:
Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241
(ALJ Broderick) (January 1992) (Order). Similarly, for specially assessed
penalties in excess of the standard penalty calculation, the Secretary has the
burden of establishing the existence of aggravating factors to justify such an
increase. S&M Construction, Inc., 18 FMSHRC 108, 1052-53 (ALJ
Koutras) (June 1996); Freeport McMoran Morenci, Inc., 35 FMSHRC 172, 181
(ALJ Miller) (January 2013)

����������� In this matter, the parties have
stipulated that Big Ridge is a large operator and Willow Lake is a large mine. Tr.

10. Big Ridge has not argued or presented any evidence indicating that any of
    the proposed penalties would affect its ability to continue business
    operations. I have discussed the violation history, negligence, gravity, and
    abatement efforts pertaining to each alleged violation within my findings for
    each order/citation.

IV. �ANALYSIS
LAKE 2012-506

�����������

A.��� �Order No. 8436212

MSHA Inspector Chad
Lampley issued Order No. 8436212 on September 12, 2011 for an alleged violation
of 30 CFR � 75.400. Tr. 12. Lampley alleged within the citation that:

Accumulations of
combustible materials are present at the 2nd North conveyor belt
tail. Accumulations are in the form of coal fines with dry material in contact
and pressed by the moving conveyor belt. Accumulations range from 24 to 16
inches in depth for a distance of approximately 6 feet.

Sec�y Ex. 1, 1.

����������� Lampley determined that the violation
was reasonably likely to result in a lost workdays or restricted duty injury,
affected 2 persons, the violation was S&S, the result of Big Ridge�s high
negligence, and a 104 d (2) unwarrantable failure. Sec�y Ex. 1, 1. The
Secretary has proposed a specially assessed penalty of $66,142.00. Sec�y Br.,
13.

1.      Findings

30 CFR � 75.400 mandates
that:

Coal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be permitted to accumulate
in active working areas or on diesel-powered and electric equipment therein.

On cross examination,
Inspector Lampley confirmed that 30 CFR � 75.400 only prohibits accumulations
of �combustible� material in active workings, and does not prohibit
accumulations of water, rock dust, or other incombustible material. Tr. 62-63. As
such, I have reviewed the testimony of Inspector Lampley and Shift Manager Podoriscki
in order to determine whether or not the accumulated material at the 2nd
North tail pulley was indeed combustible. However, the Commission has firmly
held that it is not necessary for an inspector to test the combustibility
of an accumulation in order to issue a valid 30 CFR � 75.400 citation. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1290 (December 1998). Instead, a
determination of combustible content can be based on the experience of the
observing inspector. Id.

Furthermore, the presence
of rock dust, moisture, and reject material within the accumulation of what
Inspector Lampley described as �coal fines� does not remove the accumulation
from coverage of the standard. Tr. 27. 30 CFR � 75.400 itself specifically
prohibits �coal dust deposited on rock-dusted surfaces.� Additionally, other
ALJs have previously upheld 30 CFR � 75.400 citations when the accumulations
contained wet portions. Eastern Associated Coal Corp., 7 FMSHRC 601, 603
(April 1985) (ALJ Faveur). ALJ Faveur reasoned that when an accumulation of partially
damp coal is present in an active working area, a hazard still exists as,
�water on the coal would only slow down the burning process; it would not make
the coal incombustible.� Eastern, 7 FMSHRC 603.

Inspector Lampley
credibly testified that the accumulation contained �a lot� of coal fines at the
center of the accumulation and that the accumulation was dried out where the
pile was in contact with the moving conveyor belt. Tr. 27, 29, 37. Inspector
Lampley also credibly testified that the coal was so compacted that it took at
least an hour for several miners to chip away at the pile and remove the
material. Tr. 48. Big Ridge has contested Lampley�s assertion that it took over
an hour to clean the accumulation, stating the belt had been restarted before
Lampley returned to the area to officially terminate the order. Resp. Br,, 12. However,
I credit Lampley�s testimony and note that Big Ridge felt it necessary to
provide additional workers in order to remove the accumulation. Tr. 48. Additionally,
the photos offered by the Secretary substantiate Inspector Lampley�s observations
regarding the compacted nature of the accumulations, as they show vertical
shelves of what appears to be coal in close contact with the conveyor belt and
tail roller. Sec�y Ex. 2A, 2B.

For this reason, while I
find Shift Manager�s Podoriscki�s testimony generally credible, I do not
believe his description of the accumulation as a wet slurry to be an accurate
description of the accumulation. Tr. 89. If the accumulation had indeed been a
recently formed wet slurry, it would not have stood up in a vertical shelf or
been layered with distinct layers of rock dust. Tr. 30; Sec�y Ex. 2A, 2B.

Thus, I find that the
material accumulation at the 2nd North tail pulley primarily
consisted of compacted coal fines, and that these coal fines were dry and
combustible where they were in contact with the moving conveyor belt. Therefore,
I hold that Big Ridge violated 30 CFR � 75.400 by allowing this condition to
develop and persist.

2.      Gravity

Additionally, I find that
Inspector Lampley correctly designated the accumulation as an

S & S violation. I have already held that the
accumulation constituted a violation of 30 CFR � 75.400. Coal accumulations at
an active conveyor belt contribute to the discrete safety hazard of an
increased likelihood of an ignition, fire, and/or explosion occurring.

In this particular
situation, Lampley credibly testified that contact between the coal fines and
the moving conveyor belt could produce enough frictional heat to start a fire. Tr.
50-51. I do take note that an ALJ has declined to designate a violation of 30
CFR � 75.400 as S & S when the accumulation was completely saturated with
water. United States Steel Mining, 5 FMSHRC 1873, 1874-75 (October 1983)
(ALJ Broderick) (upholding 330 CFR � 75.400 violation but removing S&S
designation when accumulation was so wet it was too �soupy� to shovel).
However, in this case, the compacted coal fine accumulation at the back of the
tail pulley was dry and in contact with the moving belt. Tr. 26. As such, I
hold that there was a reasonable likelihood of the accumulation resulting in a
fire that would cause serious injuries to the belt worker and examiner assigned
to this area. Tr. 52.

Finally, I find that if a
fire did occur, it was reasonably likely that workers would suffer serious burn
and or smoke inhalation injuries. As such, the Secretary has produced
sufficient evidence to sustain all four elements of the Mathies S&S
test.

I also hold that the
presence of fire suppression systems do not motivate me to downgrade the
violation from S & S. As explained by Inspector Lampley, the fire
suppression systems in place may have detected a fire and prevented the fire
from spreading, but they would not have prevented the fire from starting in the
first place and endangering miners in the immediate area. In fact, the
Commission has recently held that the presence of fire suppression systems does
not �mean that fires do not pose a safety risky to miners.� Big Ridge, Inc.,
35 FMSHRC 1525, 1529 (June 2013) (quoting Buck Creek Coal Co. v. FMSHRC,
52 F. 3d 133, 136) (�Big Ridge I�). Therefore, I uphold Order No.
8436212 as an S&S violation.

I agree with Inspector
Lampley in his determination that the violation most likely endangered the two
miners who normally work in that area. Both Inspector Lampley and Shift Manager
Podoriscki testified that Ms. Tucker was working in the adjacent area at the
time of the citation. Tr. 46; 89. Lampley also credibly testified that a fire
at this area would also expose the belt examiner who was required by law to be
in the belt travel way while the belt was operating. Tr. 52. To hold that this
violation affected more than two persons would be to assume that any fire that
occurred would be reasonably likely to spread smoke and or flame to other areas
of the Willow Lake mine not detailed at hearing. I decline to make this
assumption as I cannot completely ignore the presence of fire suppression
systems, fire resistant conveyor belts, and split air ventilation systems at
the Willow Lake mine. For these reasons I hold that the violation in Order No.
8436212 affected 2 persons.

3.      Negligence

I also find that the
violation was the result of high negligence on the part of Big Ridge. Inspector
Lampley credibly testified that an agent-operator was required to examine the
area at least once per shift and yet the accumulation was so compacted it
appeared that it had been there for at least three shifts. Tr. 43, 53. Lampley
also explained that MSHA had previously notified Big Ridge personnel in
close-out conferences about the importance of properly cleaning up
accumulations along conveyor belt lines. Tr. 54, 57. While Lampley stated that
Big Ridge personnel informed him they had recently held safety meetings about
cleaning up coal accumulations, the compacted nature of the accumulation and multiple
layers of rock dust within the coal fines indicated that this was not a
recently formed accumulation. Tr. 29-30. For these reasons, I find that Big
Ridge�s clean-up efforts at this location were ineffective and demonstrated a
high level of negligence.

4.      Unwarrantable
Failure

For Order No. 8436212, I
find that the Secretary has produced sufficient evidence to satisfy the five
factor test considered by the Commission in evaluating unwarrantable failure
designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

a.       Extent
and Duration of the Violation

�����������

����������� The entered photos and Inspector�s
Lampley testimony demonstrate that the accumulation of coal fines had built up
past the midpoint of the tail pulley, indicating that the accumulation was significant
and had lasted for some time. Tr. 22; Sec�y Ex. 2A, 2B. Additionally, the
layers of rock dust within the compacted coal fines also show that the
accumulations had persisted for at least several shifts. Tr. 30, Sec�y Ex 2B.

b.      Notice
to the Operator

����������� Inspector Lampley credibly testified
that MSHA had recently issued similar citations for impermissible coal
accumulations at the Willow Lake portal mine. Tr. 54, 55. Additionally, Lampley
stated that MSHA had emphasized the importance of important cleanup measures at
conveyor belts in recent closeout meetings. Tr. 54, 57.

c.       Prior
Abatement Efforts

Big Ridge Shift Manager
Podoriscki credibly testified that he assigned an hourly employee to the
dedicated task of cleaning conveyor belts in this area on a regular basis and
had done so on the day of the violation. Tr. 85. Inspector Lampley corroborated
that a miner was cleaning a conveyor belt in an adjacent area when he issued
the citation. Tr. 46. However, the presence of rock dust within the accumulated
and compacted coal fines indicates that previous clean-up efforts were
insufficient. Tr. 32.

�

d.      Obviousness
of the Hazard and Degree of Danger

����������� At the time of the citation, the
accumulation was 24 inches high and in contact with the conveyor belt and
roller. Tr. 22; Sec�y Ex. 1. Although Shift Manager Podoriscki claimed that wet
sprays could cause material to build up quickly, I have repeatedly noted that
the presence of rock dust within the coal fines indicates that this condition
had existed for several shifts. Tr. 32, 90. Similarly, although Big Ridge
contends that the accumulation was too wet to ignite and Lampley concedes the
accumulation was not warm at the moment, it is reasonably likely that the
material would have continued to dry out and increase frictional heat under
continued belt operation. Tr. 39-40. As such, the condition posed a high degree
of danger as it increased the likelihood of a coal-belt fire occurring.

e.       Operator�s
Knowledge of the Violation

����������� Again, the presence of rock dust within the accumulation
and compacted nature of the coal fines indicates the accumulation had existed
for several shifts. Tr. 22, 32. As such, Big Ridge examiners failed to identify
the hazard and completely remove the accumulation during mandatory pre and
on-shift examinations.

Thus, the Secretary has produced
supporting evidence for all Commission unwarrantable failure factors, and Big
Ridge�s evidence of prior abatement efforts only point to previous ineffective
efforts. Therefore, I hold that Big Ridge conducted cleanup efforts with a
�serious lack of reasonable care� and hold that the violation was properly
designated a 104 d (2) unwarrantable failure.

�����������

5.      Penalty
Assessment

����������� Although I assess monetary penalties
de novo, the Secretary has submitted a proposed specially assessed penalty of
$66,142.00 for Order No. 843212 without any evidence to justify or support the
enhanced penalty. Secy. Br., 13. The Respondent introduced, over the
Secretary�s objections, a Special Assessment Narrative Form that indicates the
penalty for Order No. 8436212 would have been regularly assessed a penalty of
$15,971.00. Resp. Ex. B. The special assessment form indicates that the
specially assessed penalty was due to an increase in the number of points
assigned to the likelihood of occurrence, severity of injury, number of persons
affected, negligence, and unwarrantable failure penalty designations. Resp. Ex.
B.

����������� As indicated by Inspector Lampley�s
testimony and the Special Assessment Narrative Form, Big Ridge has been cited
for numerous violations of 30 CFR � 75.400 at the Willow Lake Mine. Tr. 55;
Resp. Ex. B. The parties have stipulated that Big Ridge is a large operator. Tr.

10. Big Ridge has not claimed or presented any evidence indicating that the
    proposed penalties will affect its ability to continue mining operations. I
    have found that Big Ridge�s negligence was high due to a serious lack of
    reasonable care in properly cleaning up accumulated material. However, I find
    that its attempt at clean-up efforts prior to the citation, while insufficient,
    indicate that the accumulations were not the result of intentional misconduct
    or wanton disregard of the standard. I have determined that while an injury was
    reasonably likely to cause permanently disabling injuries to miners in the
    immediate area, the number of miners likely to be affected is two. Finally, Big
    Ridge personnel promptly and properly removed the accumulation from the tail
    pulley area after Inspector Lampley issue the order.

����������� After considering these statutory
factors, consulting, for reference purposes, the 30 CFR 100.3 penalty tables
and noting the high degree of danger posed by the violation, I assess a civil
monetary penalty of $30,000 for Order No. 8436212.

�����������

B.������� Order No. 8436107

MSHA Inspector Larry
Morris issued Order No. 8436107 as a 104(d)(2) unwarrantable failure on
November 28, 2011 for an alleged violation of 30 CFR � 75.202(a). Tr. 239.
Morris alleged within the citation that:

An area of roof,
measuring 5 feet by 8 feet 8 inches, at cross cut # 92 along the 2nd
Main North travel way, is not supported or otherwise controlled to protect
persons from hazards related to falls of the roof or rib. There is one loose
roof bolt in this area and it had been painted a bright orange and was visible
to even the most casual observer. The travel way between cross cut 3 92 and #
93 has tensar bolted to the roof and is bagged down with the weight of loose
rock. These tensar bags must be cut down and the area re-supported.

Sec�y Ex. 6, 1.

����� Morris determined that the likelihood of
injury was unlikely, that a resulting injury would be lost workdays or
restricted duty, the violation was non S&S, 4 persons were affected, and
that the violation was a 104 (d) (2) unwarrantable failure to comply with a
mandatory safety standard. Sec�y Ex. 6. The Secretary has proposed a regularly
assessed penalty of $14,700.00 for Order No. 8436107. Sec�y Br., 32.

1.      Findings

����������� The cited standard, 30 CFR � 75.202
(a), requires that:

The roof, face and
ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.

Inspector Morris credibly
testified that the base plate of the cited roof support bolt was bent and
loose. Tr. 249. The Secretary introduced photos that clearly showed the bent
condition of the base plate. Morris explained that the damaged bolt was part of
the standard support pattern in this area and necessary under the mine�s
mandatory roof plan. Tr. 290. Respondent has not disputed the damaged condition
of the roof bolt base plate or the violation itself. As such, I hold that Big
Ridge violated 30 CFR 75.202 (a) by failing to repair the damaged base plate on
the pattern roof bolt.

2.      Gravity

����������� Morris testified that the bent base
plate was the only damaged bolt in the adjacent area and that the roof was
sound in this specific area. Tr. 249, 255. Morris maintained at trial that he
determined an injury was not reasonably likely to result from this condition. Tr.

256. For these reasons, I find that the cited condition was �unlikely� to
     result in injury and that the violation was appropriately designated as non
     S&S. The damaged bolt was located in a main travel way regularly traveled
     by unprotected personnel carriers. Tr. 246. Therefore, I uphold Inspector
     Morris�s determination that in the event of a roof-fall, the condition could
     expose four persons to �Lost Workday or Restricted Duty� injuries.

3.      Negligence

Inspector Morris based
his high negligence designation for Order No. 8436107 upon his belief that the
rock dust on top of the plate indicated Big Ridge had failed to repair the
damaged bolt for more than one shift and was in fact aware of the damage since
the bolt was painted orange. Tr. 247, 251. Morris also referenced his previous
warnings to Big Ridge about the lack of clearance in travel ways and the high
number of previous 30 CFR 75.202 violations at Willow Lake Mine. Tr. 258.

Big Ridge contests the
high negligence designation, arguing that the damaged base plate was not
obvious, as a different MSHA inspector had passed through the same area only
half an hour earlier without noting the damaged bolt or issuing a related
citation. Tr. 277; Resp. Br., 51. Big Ridge also argues Willow Lake personnel
normally flagged off a safe perimeter around a damaged bolt rather than
painting the damaged bolt in order to avoid exposing workers to a roof-fall
hazard. Tr. 280-81; Resp. Br., 57.

Big Ridge further
contends that the Secretary�s photo show that neither the roof nor the top of
the bent plate is painted. Resp. Br., 57. Big Ridge concludes that this
demonstrates the bolt was painted before the damage occurred. Id. Big Ridge
also contends that as the damaged bolt was a replacement bolt installed after
the roof was originally rock dusted, it is reasonable to conclude that some
rock dust would have adhered to the topside of the plate before it was bent
loose from the roof. Resp. Br., 56.

After considering both
parties arguments and the entered exhibits, I hold that the Secretary did not
produce sufficient evidence to establish that Big Ridge acted with high
negligence. Big Ridge personnel credibly testified that miners normally flag
off a safe perimeter rather than painting damaged bolts. Tr. 280-81. In the
Secretary�s photos, a clear outline appears on the roofline indicating where
the baseplate was positioned before it was struck and rotated loose from its
original position. Sec�y Ex. 8, 1-2. As such, I hold that the base plate was
painted before the bolt was struck loose. Although neither party offered an
alternate explanation for why the roof bolt was painted, I find that given the
high volume of traffic in this passageway, Big Ridge may have painted the bolt bright
orange to warn equipment operators and prevent equipment from striking the bolt.
For all of these reasons, I hold that the Secretary failed to show that the
roof bolt had been damaged for a long enough period of time to justify a high
negligence designation

Additionally, I find that
the presence of bagged down tensar netting was neither a violative condition nor
an indication of Big Ridge�s negligence. The Secretary did not contend that the
use of tensar violated Willow Lake�s roof plan or point to any official
guidance that provided guidelines for appropriate vs. non-appropriate use. Although
an inspector may rely upon his experience in issuing citations, Inspector
Morris did not claim that the tensar was frayed or damaged in any way. The
photos entered into evidence do not demonstrate any excessive loading or
damaged conditions. Sec�y Ex. 7, 19-21. For these reasons I have not factored
the presence of the rock-filled tensar netting into my negligence findings.

I also find Inspector
Morris�s reference to previous meetings on equipment/roof clearance, and Willow
Lake�s history of 75.202(a) citations an insufficient basis to merit a finding
of high negligence for this Order. I have already ruled that the Secretary did
not establish that the roof bolt had been damaged for an extended period of
time. As such, previous meetings regarding the importance of roof clearance and
a history of roof control violations did indeed put Big Ridge on notice that
more effort was needed in general to achieve roof control compliance. However,
the Secretary has only demonstrated that Inspector Morris found one partially
damaged bolt in the course of his inspection on Nov 28. 2011. Therefore, I find
that Big Ridge acted with moderate negligence in failing to immediately
identify and repair the single damaged bolt.

4.      Unwarrantable
Failure

For many of the same
reasons discussed above in my negligence findings, I find that the Secretary
has not produced sufficient evidence to satisfy the five factor test considered
by the Commission in evaluating unwarrantable failure designations. Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

a.       Extent
and Duration of the Violation

The Secretary did not
establish that the roof bolt had been damaged for a significant time period,
and the violative condition was not extensive as only one bolt was partially
damaged. Sec�y Ex. 6.

b.      Notice
to the Operator

MSHA had put Big Ridge on
notice that greater efforts toward roof-control compliance were necessary
through previous close-out meetings and other 30 CFR 75.202 citations. Tr. 258.

c.       Prior
Abatement Efforts

The parties did not
specifically discuss prior abatement activities, but Inspector Morris testified
that the Willow Lake mine had suffered numerous roof falls in the recent past. However,
Inspector Morris and Supervisor Cummins also testified that Big Ridge began
using longer roof bolts in response to roof falls, that the bolt in question
was itself a replacement bolt for a different damaged bolt, and that a nearby
hazardous kettle bottom had been supported and then eventually removed from the
roof. Tr. 244, 252-53.

d.      Obviousness
of the Hazard and Degree of Danger

While the roof-bolt was
painted bright orange, that paint was not necessarily indicative of damage and it
is undisputed that an MSHA inspector passed through the area shortly before
without noting the damage. Tr. 277. As such, the damage was not inherently
obvious and Inspector Morris confirmed that the roof in the area was structurally
sound and it was unlikely for an injury to result from this specific violation.
Tr. 249, 256.

e.       Operator�s
Knowledge of the Violation

The Secretary did not
present convincing evidence that Big Ridge was aware of the damage to this
specific bolt. The Secretary has argued that the bright orange paint indicates
that Big Ridge marked the bolt as damaged yet failed to install a replacement
bolt. However, I have found that the absence of paint on the roof underneath
the base plate and top of the bent plate indicates that the bolt was painted
before it was struck loose. As such, I find that Big Ridge did not have any
actual knowledge of the damaged roof bolt.

Therefore, I find that
the Secretary has only offered supporting evidence for the second and peripherally
third factors considered by the Commission in an unwarrantable failure analysis.
Additionally, the testimony indicates that Big Ridge had undertaken some
abatement work in improving their roof control measures, mitigating the
Secretary�s contention that the Willow Lake Mine had pervasive roof control
problems.

The Secretary has only
offered evidence supporting two of the five unwarrantable failure factors. The
underlying violation itself in Order No. 8436107 concerned a single partially
damaged bolt that was not likely to cause an injury. While it is not necessary for
the Secretary to provide supporting evidence for all of the unwarrantable
failure factors, the Consolidation Coal unwarrantable failure test is a
balancing test and I hold that the evidence, when considered as a whole, fails
to establish that Big Ridge acted with a serious lack of reasonable care,
willful intent or reckless disregard. IO Coal Co., 31 FMSHRC 1346, 1351
(Dec. 2009); Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. As
such, I find that the Secretary has not established that Order No. 8436107 was
an unwarrantable failure to comply with a mandatory safety standard due to more
than ordinary negligence. For this reason, Order No. 8436107 shall be modified
from a 104(d) (2) Order to a 104 (a) Citation.

5.      Penalty
Assessment

����� The Secretary has proposed a specially
assessed penalty of $14,700 for Order No. 8436107. Sec�y Br., 2. The Special
Assessment Narrative Form indicates that Order No. 8436107 would have received
a regularly assessed penalty of $4,000.00. Resp. Ex. K. As discussed above, I
have already held that the negligence designation for this citation shall be
reduced from high to moderate and that the unwarrantable failure designation
shall be removed. The Secretary has not specifically addressed his
justification for the specially assessed penalty amount, but has pointed out
that Big Ridge was cited 136 times in the previous two years for alleged
violation of 30 CFR � 75.202(a), that the Willow Lake mine had experienced
numerous roof falls in the recent past, and that Inspector Morris had
specifically addressed the need to improve equipment clearance in travel ways. After
considering all statutory penalty criteria and the specific background for this
violation, I assess a civil monetary penalty of $1,500.00 for the modified
Citation No. 8436107.

�

V.� ANALYSIS DOCKET LAKE 2012-66

A.� Citation
No. 8444809

MSHA Inspector Scott Lee issued Citation No. 8444809 on June 12, 2012 for
an alleged violation of 30 CFR 75.202(a). Tr. 373. Lee alleged within the
citation that:

The roof where
persons work or travel was not adequately supported to protect from hazards
related to falls of the roof. Two roof bolts in patterns were damaged and were
not tight against the roof. One of the roof bolt plates was completely missing
and the other bolt was curled up towards the roof. The area of exposure was
approximately 4 to 5 feet in width and approximately 10 feet in length.

This condition was
observed in the # 6 entry (SS 84+25) on the inby corner of the intersection
immediately adjacent to the dumping location on the feeder (#5 entry) in unit #
4, (MMU 014).

� �

Sec�y Ex. 11, 1.

� �

�� � �Lee
determined that that the violation was reasonably likely to result in a lost
workdays or restricted duty injury and affected 1 person. Lee also determined
that the violation was S&S and the result of Big Ridge�s high negligence. Sec�y
Ex. 11, 1. The Secretary has proposed a specially assessed penalty of
$47,700.00. Sec�y Br., 42.

1. Findings

�� �The cited
standard, 30 CFR � 75.202(a) requires that,

The roof, face and
ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.

�� �Inspector Lee
testified that without the bearing plate tight to the roof, the grouted roof
bolts were not serving their intended purpose. Tr. 388. Big Ridge Safety
Manager Schiff stated that in his opinion, the bearing plates were not
necessary for structural support, but agreed that the Willow Lake Roof Plan
required bearing plates to be tight to the roof.[1]
Tr. 414. Both Lee and Schiff testified that, in addition to the missing and
loose bearing plates, the bolts were bent over. Tr. 386, 407. As such, it is
clear that the two pattern bolts were not in place as designed and required by
the mine�s mandatory roof control plan. Therefore, I hold that the Secretary
has established that Big Ridge violated 30 CFR � 75.202(a) and the mine�s
mandatory roof control plan by not repairing bent pattern roof control bolts
and baseplates.

� ��� 2. Gravity

���� Inspector
Lee designated Citation No. 8444809 as an S&S violation. Sec�y Ex. 11. I
have already held that the Secretary has established the violation of a
mandatory standard thus meeting the first element of the Mathies test. However,
I find that Big Ridge has sufficiently rebutted the Secretary�s allegation that
the bent plates created a discrete safety hazard by presenting credible
testimony corroborated by Inspector Lee that the roof was in fact sound in this
area.

���� Specifically,
the affected area was described by Inspector Lee as creating a 20 square foot
area of exposure. Tr. 390. The surrounding roof was properly bolted and the
bent bolts were up against the rib. Sec�y Ex. 42. Additionally, the bent bolts
were fully grouted and the immediate area was still solid according to Safety
Manager Schiff. Tr. 410. Although Inspector Lee testified to a history of roof
falls at the Willow Lake mine, Lee confirmed that the roof in this area was not
cracked at the time of the inspection and did not give any other indication of
instability. Tr. 389, 394. Even after considering continued normal mine
operations given the surrounding roof bolting, the fully grouted installation, the
stability of the immediate roof area, and the location of the damaged bolts up
against the rib; I find that in these specific circumstances the Secretary has
not demonstrated that a hazard was created by the bent base plate and bolts.

���� Additionally,
even if I were to have found a discrete safety hazard was created by the bent
roof bolts, I also find that due to the particular location and the relatively
small size of the affected roof area, it was highly unlikely for an exposed
miner to be in that area in the unlikely event of a roof fall. Big Ridge Safety
Manager Schiff credibly testified that a No Walk Zone prohibited miners from
entering Entry #6 from the nearby dinner hole and feeder belt. Tr. 407-08. Big
Ridge Section Foreman Reeves also testified that mining activities were located
in a separate area and only haul cars with protective canopies traveled entry

6 during the June 12, 2012 production shifts. Tr. 423. Inspector Lee�s diagram

in his inspection notes indicates that the damaged bolts were up against the
rib. Sec�y Ex. 42. Similarly, Safety Manager Schiff stated that a miner would have
to almost �crawl� against the rib in order to pass underneath the damaged
bolts. Tr. 416. As any roof fall that occurred in the affected area would
likely involve relatively small amounts of material, I find that ram car
operators were protected from injury by the canopy of their cars. As pedestrian
traffic was prohibited in this area, I find that the Secretary has not
established there was a reasonable likelihood of an injury occurring. For these
reasons, I rule that the likelihood of injury for Citation No. 8444809 shall be
MODIFIED to unlikely. Additionally, as the Secretary has failed to
satisfy the second and third elements of the Mathies test, I also hold
that Citation No. 8444809 shall be modified to non- S&S.

For reasons discussed above regarding the location of the damaged
bolts, I also hold that any resulting accident would likely involve lost workdays
or restricted duty injuries and affect one person.

��� 3. Negligence

��� I find that
the violation was the result of moderate negligence on the part of Big Ridge. Inspector
Lee stated that the bolts had been dusted over and had likely been damaged
somewhere between 5 to 12 shifts prior to his inspection depending on whether a
ram car or miner had struck the bolts. Tr. 391, 398. However, the Secretary did
not present any definitive evidence of when the bolts had actually been damaged.
Furthermore, rock dust made it difficult to detect the damage, as Inspector Lee
himself noted that �if you wasn�t looking real close at it, you would miss it
because it had been dusted through.� Tr. 392-93. Indeed, Lee himself passed by
the bolts without noting the damage on his way towards the face, and MSHA
Inspector Eddie Kane also passed by the area without noticing the damaged bolts
earlier that same shift. Tr. 407, 409. As such, although the damaged bolts were
in an area that required mandatory inspections, it is reasonably likely that
the damage occurred within the past several shifts and was obscured by rock dusting
operations. Therefore, the location of the damage at a corner up against the
rib, the layer of rock dust, and the likelihood of recent damage all decreased
the likelihood of Big Ridge identifying the damaged bolts and stand as
mitigating circumstances. As such, I rule that the negligence designation for
Citation No. 8444809 shall be MODIFIED from high to moderate. �

��� 4. Penalty
Assessment

��� The Secretary
has proposed a specially assessed penalty of $47,700.00. Other than listing the
factors considered in the negligence designation for this penalty, the
Secretary has not presented any specific evidence supporting the justification
for the specially assessed penalty. Upon review of the Special Assessment
Narrative Form and 30 CFR � 100.3, it appears that the original penalty
designations would have resulted in a regularly assessed penalty of $15,971.00.
Resp. Ex. S. However, I have already held that Citation No. 8444809 shall be
modified from reasonably likely, S&S and high negligence to unlikely, non-S&S
and moderate negligence. After considering these modifications and the six 30
CFR � 100.3 penalty criteria, including Big Ridge�s history of previous roof
control violations, I assess a civil monetary penalty of $3,000.00.

B.� Citation
No. 8445037

��� �MSHA
Inspector Eddie Kane issued Citation No. 8445037 on June 19, 2012 for an alleged
violation of 30 CFR � 75.202(a) as a 104(a) citation. Tr. 300-01. The Citation
alleges in part that:

There is an area
of unsupported roof on unit # 5, entry # 6 in the last open crosscut, at survey
station 8+40. The unsupported area measured 9.75 feet by 6 feet with an
unsupported coal brow in the affected area that measured 4.5 feet wide by 22
inches thick by 26 inches tall.

Sec�y Ex. 13, 1.

��� �Inspector
Kane determined that the condition was reasonably likely to result in injury, a
resulting injury was likely to be fatal, the violation was S&S and that the
violation was the result of Big Ridge�s moderate negligence. Sec�y Ex. 13. The
Secretary has proposed a specially assessed penalty of $47,700.00. Sec�y Br.,
38.

����� �1. �Findings

� ����� Inspector
Kane issued Citation No. 8445037, because he determined that the overhanging
coal brow was a violation of 30 CFR � 75.202(a) which mandates in part that:

The roof, face and
ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof�

����� The
testimony from both parties clearly indicates that an overhanging coal brow
approximately 4 feet wide, 9 feet long, and 26 inches thick was left during the
mining cycle and not bolted sometime prior to June 19, 2012. Both the Secretary
and Big Ridge have generally agreed that the overhang varied between 55 and 66
inches in height above the mine floor. Tr. 307-08; Tr. 340. The photos entered
into evidence by Big Ridge corroborate Compliance Supervisor Cummins�s
statements that the majority of the unsupported overhang was only 55 inches
above the mine floor. Tr. 340; Resp. Ex. AA 4, 5.

����� Although Big
Ridge has not contested the violation itself, they have argued that it would
have been difficult for a miner to get under the overhang. Resp. Br., 67. As
such, it is necessary to determine whether this unsupported area meets the
standards definition of an area �where persons work or travel.� 30 CFR
75.202(a). Both parties testified that the coal brow was located at the last
open crosscut in Unit 5, Entry # 6, which was an active face of the Willow Lake
Portal Mine. On cross-examination, Compliance Supervisor Cummins confirmed that
while miners generally walked down the centerline of the entry, it would have
been possible, if not likely, for the coal brow to fall and trip out into the
entry. Tr. 333, 337-38. As such, I hold that the Big Ridge violated 30 CFR
75.202(a) by failing to control or support the coal brow in an active entryway
where miners worked and traveled.

2. Gravity

����� Inspector
Kane designated Citation No. 8445037 as an S&S violation. However, I find
that the Secretary has failed to establish the second and third elements of the
Mathies S&S analysis and hold that Citation No. 8445037 is
non-S&S.

����� �I have
already determined that Big Ridge violated 30 CFR � 75.202(a) and, thus, the
Secretary has shown the violation of a mandatory safety standard. However,
while the coal brow was not bolted, I have found that in this specific case,
Big Ridge has sufficiently rebutted the Secretary�s determination that the coal
brow contributed to a discrete safety hazard of a possible roof fall.

����� The
Secretary argues that Inspector Kane�s notes and testimony regarding a crack
and oozing water supports his determination that the brow was certain to fall. Sec�y.
Br. 39-40. Both Big Ridge witnesses testified they did not observe any cracks
and oozing water at the time of the citation. Tr. 330, 353. The photos entered
by Big Ridge are not entirely clear, but they do not indicate any obvious gaps,
water, or sluffage. Tr. 330-31; Resp. Ex. AA 4, 5. While I find that Inspector
Kane must have seen something that caused him to note a crack and oozing water,
it is clear that the coal brow was in fact stable at the time of the citation. Kane,
Cummins, and Kanady all testified that when the continuous miner was brought in
to remove the coal brow, it was necessary to turn the mining heads on to cut
the overhang down. Tr. 319, 332-33, 354. Compliance Supervisor Cummins
testified in detail that the operator first tried the normal method of tramming
the continuous mining machine into the coal brow with the cutting heads off but
the brow would not fall under pressure from the 20 ton machine. Tr. 332-33.
Additionally, Kane himself testified that the surrounding roof area was
generally sound and properly bolted up to the coal brow. Tr. 312, 323. Given
this specific evidence regarding the stability of the coal brow and surrounding
roof, I find that the Secretary has not shown the coal brow created a discrete
safety hazard even when considering, as I must, normal continued mine
operations.

�� ��� Furthermore,
the Secretary has not shown that even if the coal brow did fall, it was
reasonably likely for miners to be struck by the coal brow and injured. Inspector
Kane measured the overhang as standing between 55 and 66 inches above the mine
floor. Tr. 307-08. Compliance Supervisor Cummins testimony that the majority of
the overhang was only 55 inches above the mine floor is supported by the photos
entered into evidence by Big Ridge. Tr. 340; Resp. Ex. AA 4, 5. Relying on Cummins�s
statement that hard hats add 3 inches of clearance height to miners, I find
that only a miner shorter than 5�-3� could walk under the highest part of the
coal without stooping or crawling. �Tr. 344-45. In fact, a miner would have to
be 4�-9� or shorter to walk under the majority of the overhang closer to the
rib. Furthermore, Big Ridge Supervisor Cummins credibly testified that miners were
trained to walk down the centerline of entryways to increase visibility. Tr.
333-34. Given the height of the overhang, the absence of any evidence
demonstrating a need for miners to pass under the relatively small overhang, and
the fact that miners typically walked down the center of the travelway, I find
that it was not reasonably likely for a miner or ram car to travel underneath
the underhang.

����� The
Secretary stated during cross-examination that it is not possible to predict
how material in a roof collapse will fall and that miners further out into the
entry would have been endangered by the coal brow against the rib. Tr. 337. While
I do not disagree with the Secretary�s argument as a general proposition, the
third element of the Mathies test requires the Secretary to show a
reasonable likelihood that the hazard contributed to will result in an injury. Although,
as I have ruled above, the Secretary has established a theoretical possibility
of the overhang falling and striking workers further out into the entry, the
Secretary has not provided sufficient evidence to raise the likelihood of a
roof fall in this area actually striking a miner to the level of reasonably
likely.

����� Additionally,
the next workers to enter this location would have likely been continuous miner
operators making their next cut into the Entry # 6 face. Section Foreman Kanady
credibly testified that once in the area, the continuous miner operator would
have identified and brought the overhang down as part of the normal mining
cycle. Tr. 352. Inspector Kane testified that he thought Big Ridge personnel
may continue to overlook the overhang. Tr. 320. However, I find Foreman
Kanady�s testimony credible, particularly given that the coal brow obviously
contained coal, providing additional motivation to Big Ridge personnel to quickly
bring the overhang down and add to their production totals.

������ After considering
evidence regarding worker travel in this area, I hold that the Secretary has
failed to show that the overhang was reasonably likely to result in an injury. As
such the Secretary has failed to satisfy the second and third elements of the Mathies
test and I rule that Citation No. 8445037 shall be MODIFIED to non S&S.[2]
For these same reasons, I rule that the likelihood of injury for Citation No. 8445037
shall be MODIFIED to unlikely.

������ Inspector
Kane designated Citation No. 8445037 as reasonably likely to result in a fatal
injury. Kane based this determination partly upon a recent fatality at a nearby
mine that involved a roof fall similar in size to the size of the coal brow. Tr.

314. While roof falls may certainly be fatal, Big Ridge Compliance Supervisor
     Cummins credibly testified that miners traveled down the center of the entry
     way and ram cars could not fit under the underhang. Tr. 333-34. As such, I find
     that if the coal brow were to fall, it would only be reasonably likely to
     result in an indirect glancing blow to a miner. For this reason, I rule that the
     type of injury for Citation No. 8445037 shall be MODIFIED to permanently
     disabling. Additionally, as I have found that ram cars were not able to pass
     under the coal brow, I uphold the Inspector Kane�s determination that the
     violation affected one person.

����� �3. Negligence

����� �Inspector
Kane determined that this violation was the result of Big Ridge�s moderate
negligence. Kane based this designation partially on previous meetings with Big
Ridge regarding the need to control and or support coal brows. Tr. 314-15. Kane
also noted in his inspection notes and testified that Section Foreman Kanady
told him he had set sights in this entry twenty minutes before Inspector Kane
arrived, but that the rock dust and perspective from the entry prevented him from
noticing the overhang. Tr. 312, 317.

� ����� At
hearing, Section Foreman Kanady disputed Kane�s assertion that he had set
sights in this area, and testified that he had not set sights in any area that
morning and had not yet traveled the # 6 Entry. Tr. 350-51. Big Ridge further argues
that the negligence designation should be reduced to low or none based upon
Kanady�s testimony and lack of management knowledge. Resp. Br., 70-71.

����� The
Secretary argues that as the area had been previously scooped, dusted and
examined at the beginning of the shift, Big Ridge management had ample
opportunity to identify the overhang in the two and a half hours after the area
was cut and a negligence designation of moderate or high is warranted. Sec�y
Br. 41-42.

� ��The Mine Act
defines high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or
constructive knowledge of the violative condition with mitigating
circumstances; and, low negligence as actual or constructive knowledge of the
violative condition with considerable mitigating circumstances. 30 CFR � 100.3:
Table X.

��� �In this
situation, Big Ridge had been cited for this standard 119 times in the previous
two years and at an unspecified time, Inspector Kane had conducted close-out
meetings focusing on the hazards of coal brows. Tr. 315. However, the coal brow
had only been created two and a half hours before Inspector Kane traveled Entry

6 and rock dust made the coal brow difficult to see as miners approached the

face. Therefore, I find that mitigating circumstances made it difficult for Big
Ridge to promptly identify the hazard. Thus, I find that the violation was the
result of Big Ridge�s moderate negligence.

���

� ��� 4. Penalty

��� The Secretary
has proposed a specially assessed penalty of $47,700.00 for Citation No.
8445037 as originally written. The Special Assessment Narrative form indicates
that Citation No. 8445037 would have received a regularly assessed penalty of
$15,971.00. Resp. Ex. CC. I have already ruled that the Citation No. 8445037
shall be modified from reasonably likely to unlikely, from fatal to permanently
disabling, and from S&S to non-S&S.

��� Other than
noting Big Ridge�s history of 30 CFR � 75.202 violations and Inspector Kane�s previous
focus on controlling coal brows when supporting their negligence designation,
the Secretary has not provided any specific support for the specially assessed
penalty. I have found that Citation No. 8445037 was unlikely to result in
injury and non-S&S. I have determined that the violation was the result of
Big Ridge�s moderate negligence. Inspector Kane testified that Big Ridge
immediately abated the condition by bringing the overhang down with the
continuous miner. Tr. 318-19. After considering the six statutory penalty
criteria and reviewing the standard penalty tables provided in 30 CFR � 100.3,
I assess Big Ridge a civil monetary penalty of $2,000.00 for Citation No.
8445037.�������������������������������� ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������

C.�� Citation
No. 8445268

���� MSHA
Inspector Lampley issued Citation No. 8445268 on August 23, 2012 for an alleged
violation of 30 CFR � 75.512. Tr. 101. Lampley alleged within the Citation
that:

The company 301
welder, in service and energized at the unit # 1 battery barn has not been
frequently examined, tested, and properly maintained. Multiple hazards were
found on the 480 V.A.C. power cable for the welder, reference citation #
8445267, in which three damaged areas were found� Upon inspection of the weekly
electrical examination book, records indicate the company #01 welder has not
been examined since 08/06/2012. The operator engaged in aggravated conduct in
that management is directly responsible for completion of required weekly electrical
examinations�

Sec�y Ex. 15, 1-2.

���� � ��Lampley
determined that the violation was reasonably likely to cause an injury, the
resulting injury would be fatal, the violation was S&S, affected one
person, and was the result of Big Ridge�s high negligence. Sec�y Ex. 15, 1. Lampley
also determined that the violation was a 104(d) (1) unwarrantable failure to
comply with a mandatory safety standard. Sec�y Ex. 15, 1. The Secretary has
proposed a regularly assessed penalty of $25,810.00. Sec�y Br., 20.

����� �1. �Findings

����� �30 CFR �
75.512 and subsection 30 CFR � 75.512-2 require mine operators to inspect
equipment �at least weekly.� 30 CFR � 75.512; 30 CFR � 75.512-2. Inspector
Lampley credibly testified and introduced inspection logs that showed Big Ridge
failed to inspect the welding machine located at the No. 1 battery barn for a
period of 17 days. Tr. 118; Sec�y Ex. 16 A-C. Big Ridge management acknowledged
that the required weekly inspection for the welder was indeed missed. Tr. 139. As
such, I hold that Big Ridge violated 30 CFR � 75.512 by failing to inspect the
welding machine on a weekly basis.

����� �2. Gravity

����� �As an
initial matter, I take note that Inspector Lampley issued Citation No. 8445267
for the damaged electrical cable itself on the same day as Citation No.
8445268. Sec�y Ex. 15, 1. Big Ridge has accepted and paid the civil monetary
penalty for Citation No. 8445267.[3]
As such, I have focused on Big Ridge�s knowledge of, and negligence in failing
to inspect the welder while taking note of the actual hazards that developed
during the missed inspection time period as evidence of the violation�s gravity.

����� I uphold
Inspector Lampley�s designation of Citation No. 8445268 as an S&S violation.
The first element of the Mathies test requires a violation of a
mandatory safety standard, and I have already found that the failure to inspect
the welding machine for a period of 17 days was a violation of 30 CFR � 75.512.
The second Mathies element is a contribution to a discrete safety
hazard. By failing to inspect the welding machine and its power cable, Big
Ridge allowed damaged electrical components to go unrepaired, exposing miners
to possible electrocution, fire, and ignition hazards.

���� The third Mathies
element requires a showing that a significant injury is reasonably likely to
occur under normal mining operations. The Secretary contends that an
electrocution injury was reasonably likely to occur through one of several
different possibilities. Sec�y Br., 22-23. According to the Secretary, a miner
may have unknowingly contacted one of the damaged areas of the cable without
realizing the copper conductors were exposed, or have been electrocuted if they
contacted the metal a-frame hoist or welding trailer with the damaged area in
contact with the metal frame. Sec�y Br. 23.

���� Big Ridge
argues that the violation was not reasonably likely to lead to a significant
injury as Mr. Pinkston, the normal examiner, would have inspected the welding
machine on his return and identified the damaged areas. Resp. Br., 30. Big
Ridge also argues that the damaged areas were not reasonably likely to cause a
significant injury because miners did not normally contact the power cable
directly while it was energized. Resp. Br., 30-31.

���� After considering
both parties testimony, I find that the missed electrical inspection did make
it reasonably likely that a significant injury would occur. Inspector Lampley
credibly testified that the No. 6 gauge cable was thin for a 480 VAC power
supply and easily susceptible to damage. Tr. 123. Indeed, after 17 days this
cable was damaged in three different places, exposing copper conductors in two
locations. Tr. 105, 107. Although Big Ridge contends that Mr. Pinkston would
have eventually inspected the cable and identified these hazards, it is unclear
how soon Mr. Pinkston would have inspected the welding machine due to the
confusion regarding inspection responsibilities.

��� �Additionally,
although Maintenance Foreman Melvin credibly testified that miners did not
normally handle the energized power supply cable, Big Ridge did not state that
they had a policy in place to prevent such contact with the energized cable or
the metal frame of the welding machine/A-frame hoist during welding operations.
Tr. 163. I also take note that another Commission ALJ has previously upheld an
alleged violation of 30 CFR 75.512 at the Willow Lake Portal mine as S&S
despite the presence of safety protocols when the judge found the protocols did
not prevent the possibility of an electrocution. Big Ridge Inc., 33
FMSHRC 2238, 2248-49 (Sept. 2011) (ALJ Melick). In this situation, hazards
could and actually did develop in the time period of the missed inspection. Tr.
104-05. Therefore, given that the time period for the next welder inspection was
uncertain and miners routinely worked around, and with, the three damaged areas
on the 480 VAC power cable, an electrocution was reasonably likely to occur. Tr.
124, 170-71.

���� The fourth Mathies
element requires a reasonable likelihood that a resulting injury will be
reasonably serious. Both Inspector Lampley and Supervisor Mullins testified
that a miner who contacts an exposed 480 VAC conductor could suffer a fatal
shock. Tr. 121, 150. While the ground fault protection system for the welder may
have mitigated the potentially fatal hazard of uncorrected damaged electrical
components, it is clear that failing to inspect and repair the damaged power
cable exposed miners to a reasonable likelihood of suffering a reasonably
serious injury.

��� �As the
evidence produced at hearing supports all four elements of the Mathies formula,
I hold that the Secretary has established that Citation No. 88445268 was an
S&S Violation.

��� �As stated
above in my analysis of the third Mathies element, I find that the
missed inspection was reasonably likely to cause a significant injury as the
missed inspection allowed damage to a high voltage power supply cable and
welding machine to go unrepaired. I also find that due to the high voltage
capacity of the 480 VAC damaged power cable, a resulting injury was likely to
be fatal. I additionally find that the missed examination exposed the one worker
observed by Inspector Lampley in the battery barn to the violative condition.
Tr. 124.

���� �3. Negligence

���� �Big Ridge
personnel failed to inspect the welder at the unit #1 battery barn when
inspection duties were transferred from the normal examiner, Mr. Pinkston, to a
qualified replacement examiner, Mr. Schutt. Tr. 158. Mr. Schutt was not aware
that the welder was located nearby the battery barn because the battery barn
inspection log did not contain an entry for the welder. Tr. 159. As such, Mr.
Schutt did not inspect the welder and management officials that reviewed the
inspection logs did not notice the missed inspection because the welder did not
have a formal entry in either the battery barn log or the outby equipment log. Tr.
167, 173. The Secretary has alleged that these circumstances show Citation No.
8445268 was the result of high negligence on the part of Big Ridge. On the
contrary, Big Ridge has argued that these facts should motivate this court to
reduce the negligence designation to either moderate or low. The Mine Act
defines high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or
constructive knowledge of the violative condition with mitigating circumstances;
and, low negligence as actual or constructive knowledge of the violative
condition with considerable mitigating circumstances. 30 CFR � 100.3: Table X.

���� �The two
examiners responsible for inspecting the welder, Mr. Pinkston and Mr. Schutt,
both appeared to have carried out their individual inspection duties in good
faith. Tr. 157-58. However, I find it concerning that Big Ridge management did
not have a more accurate method of ensuring inspection of mobile equipment
other than relying on individual examiners to manually write in mobile
equipment whenever it was within their inspection area. Tr. 172. I also note
that Inspector Lampley testified that he and other inspectors had issued
similar citations for failure to inspect equipment within the last couple of
years. Tr. 130.

��� As testified to
by Big Ridge witnesses, the size of the Willow Lake Portal mine and the sheer
number of different pieces of equipment made it difficult for shift and area
level foreman to track and inspect each piece of equipment. Tr. 171-72. Given
Big Ridge�s status as a large sophisticated operator, Big Ridge should have
known that the very nature of mobile equipment and the size of the Willow Lake
Portal mine required a more fail-safe inspection tracking method other than
penciled-in inspections on various different inspection logs. However, I do
acknowledge that Mr. Pinkston�s temporary absence contributed to the missed
inspection. I also credit Big Ridge�s inspection supervision efforts, as
management reviewed the inspection log on a daily basis to ensure all listed
hazardous conditions were promptly corrected. Tr. 162.

��� As such, while
I find that Big Ridge should have identified the missed inspection; I also hold
that Mr. Pinkston�s absence and Big Ridge�s efforts to ensure prompt corrective
action for completed inspections stand as mitigating circumstances. Therefore,
the negligence designation for Order No 8445268 is MODIFIED from high to
moderate.

��� 4. Unwarrantable
Failure

��� I hold that
the Secretary has not produced sufficient evidence to satisfy the five factor
test considered by the Commission in evaluating unwarrantable failure
designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

a.       Extent
and Duration of the Violation

��� Order No. 8445268 involved a failure to
inspect the welding machine at the No. 1 battery barn for a period of 17 days. Tr.

118. Due to the construction of the governing statute Big Ridge was 4 days
     overdue in inspecting the welding machine. Resp. Br., 33. Big Ridge Safety Manager
     Grounds credibly testified that Mr. Schutt had properly inspected all other
     pieces of equipment at the battery barn during Mr. Pinkston�s absence. Tr. 142.
     Although Inspector Lampley testified that other citations for failure to
     inspect equipment had previously been issued at the Willow Lake mine, it does
     not appear that there were any other failures to inspect equipment in this area
     in the immediate timeframe.

b.      Notice
to the Operator

��� �As I have just noted, Inspector
Lampley credibly testified that he had previously cited Big Ridge for failure
to inspect equipment and emphasized the importance of properly conducting
inspections with maintenance foremen in closeout meetings. Tr. 130.

c.       Prior
Abatement Efforts

����������� Although Big Ridge had not developed a
formal program to ensure inspection compliance in the event of an examiner�s
absence, Big Ridge did appoint a qualified miner to conduct Mr. Pinkston�s
inspections during his absence. Tr. 152. Additionally, Big Ridge also
instituted a voluntary back-check system designed to ensure listed hazards were
promptly corrected. Tr. 162.

d.      Obviousness
of the Hazard and Degree of Danger

���� �As the welder inspections had previously
been penciled-in to the outby equipment log rather than formally entered the
battery barn inspection book, the missed inspection was not obvious to Mr.
Schutt or Big Ridge management who reviewed the logs. Tr. 160. However, as I
have previously noted, the multiple entry logs and policy of allowing pencil
inspections should have alerted upper management that an inspection could be
missed without an examiner realizing his oversight. I have already held that
the missed inspection exposed miners to a high degree of danger as it permitted
a damaged high voltage power cable to go unrepaired for multiple shifts.

����������� �

e.       Operator�s
Knowledge of the Violation

�

����� Big Ridge did not have actual knowledge of
the missed inspection as Mr. Schutt relied upon the battery barn inspection log
as the complete list of equipment in that area. Tr. 160. Additionally, Big
Ridge management that reviewed inspection logs would not have known to look for
a missed welder inspection as the welder had previously only been penciled-in
to the outby inspection log. Tr. 161. For these reasons, I strongly urge Big
Ridge to consider a more failsafe comprehensive inspection log. However, it
does not appear that Big Ridge was aware of, or had been notified by MSHA of
the need to improve its inspection logs at the procedural level.

���� �As I have found that the missed examination
was not extensive, did not exist for a significant period of time relative to
the inspection cycle, was not obvious to mine examiners or immediate management,
and that Big Ridge had undertaken genuine effort to improve inspection
follow-up, I hold that the violation was not due to a reckless disregard or
serious lack of reasonable care in conducting inspections. For these reasons,
Order No. 8445268 was shall be MODIFIED from a 104(d)(2) order to 104(a)
citation.

���� �

����� 5. �Penalty
Assessment

����� The
Secretary has proposed a regularly assessed penalty of $25,810.00 for Citation
No. 8445268. As I have held above, Citation No. 8445268 shall be modified from
a high negligence 104 d(2) unwarrantable failure Order to a moderate negligence
104(a) Citation. Big Ridge abated the violation by completing the required
electrical examination for the welder. Sec�y Ex. 1, 3. After accounting for
these modifications, considering the six statutory penalty criteria, including
the hazard of an uninspected high voltage cable, and reviewing the 30 CFR �
100.3 penalty tables, I assess a civil monetary penalty of $15,000.00.

VI.������ ANALYSIS DOCKET LAKE 2012-251:

A. Order
No. 8444863

����� MSHA
Inspector Scott Lee issued Order No. 8444863 as a 104(d)(1) Order on August 20,
2012 at 9:45 a.m. for an alleged violation of 30 CFR � 75.370 (a)(1). Tr. 429. The
Order alleges that:

C Crew (Midnight A
Shift) was not mining coal according to the mines approved ventilation plan in
unit # 2 (MMU 002). The Plan requires that a spray block of 5 have 5 sprays
available with at least 3 of those sprays working. The bottom left block on the
left side of the cutting head had 1 of its 5 sprays plugged, (with a steel
plug). Also a block of 3 sprays must have 3 sprays available with 2 of those
working at a minimum. The block of 3 sprays just behind the cutting head on the
left side of the machine had one of its sprays plugged with wood, leaving only
2 available, none of those sprays were working properly at start of �A� shift,
(days). There was a blown water line to these sprays that had to be repaired at
start of shift. The mine plan also requires a block of 3 sprays be centered in
the throat of the conveyor. This miner had 2 blocks of 3 sprays on either side
of the conveyor in this location, only 1 side was working and not adequately
covering the width of the conveyed coal� A spray count was done at 1300, (6
hours into the shift) the repairmen at that time had only been able to repair
32 of the 35 sprays required to operate with a minimum spray count. The crew
foreman on unit 2 (MMU 002) engaged in aggravated conduct constituting more
than ordinary negligence in that he allowed this condition to exist while
mining.

Sec�y Ex. 17, 1-2.

������ �Inspector
Lee determined that this violation was reasonably likely to result in an
injury, that the resulting injury would be expected to be permanently disabling,
the violation was S&S, two persons were affected, the violation was the
result of Big Ridge�s high negligence, and that the violation constituted an
unwarrantable failure to comply with a mandatory safety standard. The Secretary
has proposed a specially assessed civil monetary penalty of $52,500.00.

������� 30 CFR �
370 (a) (1) requires that:

The operator shall
develop and follow a ventilation plan approved by the District Manager. The
plan shall be designed to control methane and respirable dust and shall be
suitable to the conditions and mining system at the mine.

������ �Inspector
Lee issued this Order after he attempted to obtain a routine dust pump sample
for the #242 miner and was unable to do so because the day shift was unable to
get the machine up to compliance after six hours of repair work. Tr. 433-35. In
particular, Lee alleged Big Ridge had violated 30 CFR � 370(a)(1) and the
mine�s ventilation plan due to 1) the presence of spray plugs, 2) an unapproved
throat spray configuration, and 3) his determination that the Midnight crew
must have operated with an insufficient total number of sprays. Tr. 439, 441,
450.

1. Spray
   Availability

����� �According
to Inspector Lee, the Willow Lake ventilation plan required spray banks to have
all sprays available, if not actually operational. Tr. 438-39. For this reason,
Lee considered the presence of steel and wood plugs at several of the spray
nozzles to be an unacceptable violation of the mine�s ventilation plan. Tr.

439. On cross examination, Lee confirmed that the plan stated that 3 out of 5
     sprays in a bank of 5 and 2 out of 3 sprays in a bank of 3 must be
     �operational�, and did not actually state that all sprays must be �available.� Tr.
440. However, Lee maintained that the diagram in the ventilation plan depicted
     a certain number of sprays at each bank. Id. Lee stated that this
     diagram indicated that while the plan allowed a certain number of sprays to
     malfunction, it was necessary to have all sprays �available.� Id.�

����� �Big Ridge
argues that Inspector Lee�s interpretation of the ventilation plan is incorrect
and unsupportable, as neither the diagram nor the text of the ventilation plan
make any explicit reference to a minimum number of �available� sprays. On
cross-examination, Big Ridge pointed out that there is no functional difference
between a spray clogged with sediment and a spray that is mechanically plugged.
Resp. Br., 88; Tr. 465. Additionally, Big Ridge contends that the plugged sprayer
is in fact available, as an operator can replace the plug with a new spray in
several minutes with simple hand tools if needed. Tr. 469, 519.

������ I find that
the presence of plugs on the continuous miner was not in itself a violation of
the 30 CFR � 370 (a) (1) or the mine�s ventilation plan. The Willow Lake
Ventilation Plan neither prohibits the use of plugs nor mandates that all
sprays be �available� at all times. Sec�y Ex. 19. The plan does require a
certain number of sprays at various locations on the continuous miner, but
allows the miner to operate as long as a certain fraction of the sprays in that
bank are �operational�. Sec�y Ex. 18, 27.

����� �Inspector
Lee�s determination that the diagram�s depiction of five sprays prohibits the
use of spray plugs is illogical. According to Lee, a bank of five sprays with
one sediment clogged spray is acceptable but a bank of five sprays with one
mechanically plugged spray is unacceptable. Tr. 466-67. This interpretation of
the plan would not improve dust control at the continuous miner or at the Willow
Lake Portal mine. Indeed, as alluded to by Inspector Lee, the use of a plug at
a damaged spray head may allow a mining crew to maintain proper water pressure
across the entire machine. Tr. 458. Additionally, although Lee referenced
previous meetings regarding the need to maintain sprays, Lee did not indicate
he had previously instructed Big Ridge not to use spray plugs. Other than
relying on Lee�s interpretation of the ventilation plan, the Secretary has not
pointed to any program policy manual or other agency publication that warns
against the use of spray plugs.

������ �As the
ventilation plan did not prohibit the use of plugs, the Secretary did not
introduce evidence demonstrating that MSHA had prohibited the use of spray
plugs at the Willow Lake Portal mine, and the Secretary�s interpretation is not
one a reasonably prudent miner would have anticipated, I hold that the presence
of plugs was not in itself a violation of the mine�s ventilation plan or 30 CFR
� 370 (a) (1).

2. Throat
   Spray Configuration

������� �Inspector
Lee testified that the unit #2 miner had two separate banks of three sprays
offset to either side of the conveyor belt at the throat, rather than the one
bank of three sprays centered on the conveyor belt depicted in the mine�s ventilation
plan. Tr. 441. Lee confirmed that positioning dual spray banks to the side of
the conveyor belt was not a hazard in and of itself, but he maintained that the
failure to obtain MSHA approval constituted a violation. Tr. 441, 444-45.

�

������ �Big Ridge
Safety Compliance Manager Todd Grounds testified that nearly every continuous
mining machine at the Willow Lake mine had the dual offset throat spray
configuration. Tr. 485. Grounds stated that the continuous miners were
configured this way by the factory and that MSHA Inspectors, including
Inspector Lee, had never previously issued a citation regarding the offset
spray configuration for the 242 machine or any other continuous miner. Tr.
485-86.

������ I find that
the offset dual spray block configuration was not in itself a violation of the
mine�s ventilation plan or 30 CFR � 370 (a) (1). As pointed out by Big Ridge
and confirmed by Inspector Lee, the dual spray block provided additional sprays
and adequate coverage of the conveyor belt when the sprays were working. Resp.
Br., 91; Tr. 441. As such, �a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard� could have
determined that while the diagram required a minimum of three sprays
centered on the throat, it was acceptable to position a total of six sprays to
the sides of the conveyor belt in order to ensure proper coverage and avoid
damage. Energy West Mining Co., 17 FMSHRC 1318. Indeed, Inspector Lee
himself explained at length that:

Typically they�ll
move the (throat spray) to the side like that, because if they put them dead
center, if they�re not just right, a rock or something will come through there
and knock them out. So they move them on either side which is fine, because,
you�re just trying to knock dust down there in that conveyor.

Tr. 442.

����� The Willow
Lake ventilation plan did explicitly require that �Any changes or deviations in
the plan require approval by the district manager before implementation.� Tr.

443. However, it is also clear that this offset dual spray bank set-up was
     installed in the majority of the continuous miners at the Willow Lake Portal
     mine and had been observed by MSHA inspectors on numerous previous occasions
     without incident. Tr. 485-86. Indeed, as emphasized by Inspector Lee, he
     himself had inspected and collected dust samples from continuous mining
     machines over a dozen times in the 2012 fall quarter. Tr. 457, 459, 467. As
     MSHA performed regular and extensive dust control checks on the continuous
     mining machines at the Willow Lake Portal Mine, and had never previously raised
     any concerns regarding this common and obvious condition, it was reasonable for
     Big Ridge to assume that the dual spray block configuration complied with the
     mine�s ventilation plan and 30 CFR � 370 (a) (1). Good Construction, 23
     FMSHRC 995, 1005 (Sept. 2011).

����� As such, I
hold that the dual spray block configuration at the throat was not a violation
because it met the minimum requirements of the ventilation plan and MSHA had
never provided Big Ridge any advance notice that this common configuration was
impermissible.

3. Midnight
   Shift Operation

���� �Inspector
Lee alleges within Order No. 8444863 that the midnight shift operated the #242
continuous miner in violation of the mine�s ventilation plan and 30 CFR � 370
(a)(1). Tr. 450. Lee based this conclusion on the presence of a blown water
line at the beginning of the day shift and the day shift�s inability to achieve
the required 80% level of functioning sprays in six hours of repair time.

����� �Lee
testified that he had persistent difficulties obtaining dust samples from
continuous mining machines at the Willow Lake Portal mine. Tr. 434. Lee had
only been able to gather 3 valid samples out of 13 attempts during the 2012
fall quarter. Tr. 434. Lee stated that he was often not able to collect a
sample at all because Big Ridge personnel were unable to meet the requirements
of their dust plan, including sufficient spray nozzles. Tr. 435, 459. Lee
stated that that he was confident Big Ridge only performed the lengthy dust
parameter repairs during MSHA inspections, and simply ran out-of-compliance
when MSHA was not present. Tr. 460.

����� I find that
the Secretary has not produced sufficient evidence to support Lee�s
determination that the August 19-20 midnight shift operated with insufficient
sprays or water pressure. Lee was not present during the midnight shift and did
not question any midnight shift employees regarding August 19-20 shift
operations. Tr. 463. Lee assumed that the presence of the broken water line at
the beginning of the morning shift indicated that the midnight shift had
produced coal without the water line or sufficient water pressure. Tr. 450. However,
midnight Section Foreman Davis credibly testified that the water line blew at
the end of the shift and that the crew reported the damage to the maintenance
department for repair. Tr. 507-08. Indeed, Lee confirmed that the day shift was
already repairing the damaged line at the start of the day shift when he first
arrived at the # 242 miner. Tr. 450; Sec�y Ex. 17. As such, it appears that Big
Ridge considered the blown water line a necessary repair item and was working
in earnest on the line before Inspector Lee began to inspect the machine.

����� Additionally,
Lee�s conclusion that the midnight shift must have run without an adequate
number of sprays is not supported by sufficient evidence. Lee based this
conclusion on the day shift�s inability to obtain 35 working sprays after 6
hours of repair time. However, Section Foreman Davis credibly testified that he
personally checked the #242 miner at the beginning of the August 19-20 shift
and observed 36 working sprays. Tr. 514. Davis also stated that the miner
operator checked the sprays between each cut and that the operator could
quickly repair malfunction sprays if necessary. Tr. 506.

����� At hearing,
Lee stated that the day shift could not get spray nozzles to stay in certain
spray heads because the threads were worn. Tr. 439. However, on
cross-examination Lee stated he was not entirely certain that spray heads on
the #242 had blown out under pressure. Tr. 469. While I generally found Lee a
credible witness, Lee did not note worn spray threads or blown out spray
nozzles in the text of the citation or within his inspection notes. Additionally,
Compliance Supervisor Grounds testified that repair difficulties were due to
the spray nozzles clogging quickly with in-line debris. Tr. 497. Indeed,
Inspector Lee himself testified that debris within the water line was a common
cause of clogged sprays and could be caused by the installation of a new water
line. Tr. 474-75. In this situation, both parties agreed that a main feeder
bull line and the continuous miner�s water line had blown and been repaired in
the previous 12 hours. Tr. 453, 510.

����� After
reviewing all available evidence, I find that the day shift�s difficulty in
obtaining a sufficient number of sprays was most likely due to recent damage to
the water lines that fed the sprays. While I acknowledge Inspector Lee�s concerns
regarding his inability to gather valid dust samples in the past, neither Lee
nor the Secretary presented sufficient evidence to support an inference that
Big Ridge personnel were ignoring or postponing necessary dust parameter
repairs. Therefore, I credit the testimony of Davis who observed the #242
continuous miner in operation during the August 19-20 midnight shift over the
inferences of Inspector Lee who was not present. For these reasons, I hold that
the Secretary has not produced sufficient evidence to establish that the
midnight shift violated the mine�s ventilation plan or 30 CFR � 370 (a) (1).

����� As I have
found that neither the spray plugs nor the dual bank spray configuration
violated the mine�s ventilation plan in themselves, and that the Secretary has
failed to demonstrate that the midnight shift operated the #242 miner with an
insufficient amount of sprays or water pressure, Order No. 8444863 is VACATED.

VII. �ANALYSIS DOCKET LAKE 2012-307

A.��� Order
No. 8445336

����� �MSHA
Inspector Lampley issued Order No. 8445336 for an alleged violation of 30 CFR �
75.403 on October 29, 2012 as a 104 (d) (2) unwarrantable failure to comply
with a mandatory safety standard. Tr. 174. Lampley alleged within the Order, in
part, that:

As the result of
lab analysis, 10 out of 24 (41.67%) samples collected in rock dust Survey #1
contain less than the required 80 percent incombustible content. Rock dust
survey # 1 was collected on October 23, 2012 in the second right panel off the
5th North Sub-main, Unit # 2 (MMU-002 & 012). The affected areas
of the mine floor are black with pulverized coal mixed into the clay.

Sec�y Ex. 21, 1.

������ �Lampley
determined that the violation was unlikely to result in an injury, that any
resulting injury would be fatal, the violation was non-S&S, 4 persons were
affected, the violation was the result of Big Ridge�s high negligence, and that
the violation constituted a 104(d) (2) unwarrantable failure to comply with a
mandatory safety standard. Sec�y Ex. 21, 1. The Secretary has proposed a
regularly assessed penalty of $7,774.00. Sec�y Br., 26.

����� 1. �Findings

����� At the time
of Order No. 8445336, 30 CFR � 75.403 required 90% of samples taken in a rock
dust survey to have an incombustible content higher than 80%. Inspector Lampley
credibly testified and provided documentation demonstrating that only 14 of the
24 samples he collected at the Old 2nd Right Area met the 80%
incombustible content requirement. Tr. 185. Thus, only 58% of the samples taken
by Lampley on the October 29 survey met the standard and the survey did not
meet the requirements of 30 CFR � 75.403.

��� �Although Big
Ridge pointed out that Lampley did not collect samples from the roof at any of
the sample locations, they did not contradict Lampley�s assertion that his
sampling methods were acceptable under MSHA regulations and the Mine Act. Tr.

216. Big Ridge has also stated that the average incombustible content of all 24
     samples was 80.8% when considered as a collective whole. Tr. 229. However,
     Safety Director Barras confirmed that the standard required operators to
     maintain an 80% incombustible level at each sample location throughout all
     required areas. Tr. 236. As such, I hold that the Secretary has established
     that Big Ridge violated 30 CFR � 75.403 by failing to maintain the mandatory
     level of rock dust throughout the sampled Old 2nd Right Area.

��� �2. Gravity

��� �Inspector
Lampley found that Citation No 8445336 was unlikely to result in injury due to
the lack of ongoing mining activities at this area. However, he credibly
testified that the scheduled removal of remaining equipment would require
powered machinery that could produce an ignition source. Tr. 203-04. Lampley
also stated that that the insufficiently rock dusted area extended for several
hundred feet and contained enough combustible material to sustain a coal dust
explosion. Tr. 206. Lampley explained that a coal dust explosion of that size
would generate a massive amount of heat and gases that could cause a fatal
accident. Tr. 205.

��� Big Ridge
argues, in essence, that there was no likelihood of ignition or injury because
Big Ridge had stopped active mining in that area. Resp. Br., 45. Big Ridge
states that Lampley did not provide a specific mechanism for ignition other
than referencing the presence of electrical equipment. Id. However, I
find that Lampley provided adequate support for his unlikely and fatal gravity
designations by detailing the high combustible content of the samples gathered
near the face, referencing the removal plans for electrical mining equipment
including the continuous mining machine, and explaining the severe effects of a
resulting explosion. I also find that Lampley credibly testified removal
efforts would typically involve a crew of four miners, justifying his
designation of four persons affected. �

���� 3. �Negligence

���� The Mine Act
defines high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances. Within the citation itself,
Inspector Lampley noted that several of the failing areas were black in color
and easily visible, and that MSHA had notified Big Ridge on Sept 26, 2012 that
greater efforts were required to comply with rock dust standards. Sec�y Ex. 21.
Lampley testified to all these conditions at hearing and added that MSHA
personnel had informed Big Ridge prior to this survey that they had not yet
surveyed the Old North panel and that it would be necessary to do a good job
rock dusting that area. Tr. 209.

���� �Big Ridge
argues that the Secretary has failed to establish a nexus between the September
26 close out meeting, previous failed surveys, and Order No. 8445336. Resp.
Br., 46-47. Big Ridge contends that the violative condition resulted from the
unusual nature of the halted mining activities at the fault location. Resp.
Br., 38-39. Big Ridge also contends that the increase an rock dust applied per
ton of coal produced over the previous years demonstrates that Big Ridge was
making serious efforts towards compliance with the standard. Tr. 233-34; Resp.
Ex. EEE. Big Ridge argues that it would be improper to rely on Lampley�s
characterization of the failed areas as very dark in color as an indication of
Big Ridge�s negligence, as Lampley himself did not issue a citation until he
received official lab results. Resp. Br., 43-44.

����� �I find
that Big Ridge was aware or should have been aware of the violation, and the
conditions listed by Big Ridge are not mitigating circumstances in terms of Big
Ridge�s negligence. Mining operations had stopped four days before Lampley
conducted the survey, and yet 10 of the 26 samples taken failed to meet the
standard, and the area closest to the abandoned working face was dark in color
and obviously in need of additional rock dust. Tr. 182-83, 186, 200-01. Lampley
credibly explained that he waited on the official lab results, not because he
was uncertain about whether individual samples would fail, but because he was
following standard protocol and allowing for the possibility that several
individual samples could fail and the overall survey still pass if 90% of the
samples were compliant. Tr. 218.

��� �Although Big
Ridge contends that previous meetings and citations regarding rock dust levels
did not notify management regarding this specific condition, I find that MSHA provided
ample notice of the specific need to adequately rock dust the old North area. Inspector
Lampley credibly testified that in addition to the Sept 26 meeting following a
failed dust survey, MSHA had also specifically informed Big Ridge that this
panel was due for dust sampling and that greater efforts would be needed to
achieve compliance as several recent surveys in adjacent areas had failed. Tr.
208-09. Big Ridge criticizes Lampley�s testimony regarding these meetings as
lacking specificity. However, I found Lampley�s testimony regarding meetings in
the months prior to this citation entirely credible and sincere.

�� �Additionally,
I find that the significant increase in rock dust application in terms of
pounds applied/coal tonnage mined from 2009-2012 at the Willow Lake mine is not
a mitigating factor for this Order. Tr. 233-34; Resp. Ex. EEE. While this
metric may serve as a useful tool for Big Ridge management in monitoring
mine-wide rock dusting efforts over the course of a year, it tells me very
little about Big Ridge�s effort to improve rock dust levels following the Sept
26, 2012 meeting in which Big Ridge was notified that a mining area at the
Willow Lake mine had failed to meet the standards of 30 CFR � 75.403. Similarly,
I do not find the presence of a geologic fault at this area as a mitigating
circumstance that excuses the lack of mandatory levels of rock-dust in a
required area. Although the fault may have forced Big Ridge to change their
standard pattern of equipment removal/belt advancement, Big Ridge Safety
Manager Barras confirmed that at the time of the Order, four days and 12 shifts
had already passed since mining activities had been halted at the fault. Tr.

237. As such, Big Ridge had adequate time to meet the requirements of 30 CFR �
     75.403 through some combination of dusting equipment, yet failed to do so.

��� �For all these
reasons, I hold that Order No. 8445336 was the result of high negligence on the
part of Big Ridge, as they should have been aware of the violation and there
were no legitimate mitigating circumstances.

4.      Unwarrantable
Failure �

For Order No. 8444536, I
find that the Secretary has produced sufficient evidence to satisfy the five
factor test considered by the Commission in evaluating unwarrantable failure
designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

a.       Extent
and Duration of the Violation

The Secretary established
that the Big Ridge had stopped actively mining at the Old North face four days
before Lampley conducted the survey, and the band of failed samples extended
for several hundred feet. Tr. 182-83, 206. These conditions demonstrate that
the condition had existed for a significant period of time and that the
violation was extensive. Big Ridge�s attempt to cite the overall 80%
incombustible content of the entire survey as evidence the condition was not
extensive is misleading. This contention ignores the requirements of the
standard itself and fails to acknowledge that six of the ten failed samples were
significantly below the required 80% standard and located in an unbroken survey
band that extended for several hundred feet. Sec�y Ex. 21, Tr. 206.

b.      Notice
to the Operator

MSHA had put Big Ridge on
notice that greater efforts towards rock dusting were necessary through the Sept
26, 2012 close out meeting, advance warnings of the need to survey the old
North area, and the issuance of 44 other 30 CFR � 75.403 violations in the previous
two years at the Willow Lake mine. Tr. 208-09; Sec�y Ex. 21, 2. Big Ridge�s
argument that Inspector Lampley failed to provide specific evidence of this
notice is unavailing, as I found Lampley�s testimony regarding the early
warning for the Old North rock dust survey entirely credible. Tr. 208-09. As Big
Ridge Safety Manager Barras himself acknowledged that management was tired of
getting rock dust failure citations, it is clear that Big Ridge was aware that
rock dusting was considered a critical safety requirement by MSHA and that they
needed to do a better job of rock dusting. Tr. 234.

c.       Prior
Abatement Efforts

Big Ridge presented
credible evidence that they had increased rock-dusting efforts at the Willow
Lake Mine from 2009 to 2012. Tr. 232-33; Resp. Ex. EEE. However, they did not
present any evidence concerning heightened efforts after the Sept 26, 3012 closeout
meeting or claim they were applying additional rock dust at the Old North face
at the time of Lampley�s inspection. Thus, Big Ridge did not present convincing
evidence of specific prior abatement efforts related to the specific violative
condition identified in Order No. 8445336

d.      Obviousness
of the Hazard and Degree of Danger

����������� Inspector Lampley credibly testified that
near the abandoned face, the sample areas were dark, indicating to him that
those samples would not meet the 80% incombustible requirements of the
standard. Tr. 200. Indeed, at the farthest inby survey band, six samples were
collected and none of those samples contained more than 65% incombustible
material, with one sample containing only 49.5% incombustible material. Sec�y
Ex. 21. As such, I find that the test results corroborate Lampley�s testimony
that the condition was visually obvious. In an apparent attempt to dispute the
obviousness of the violation, Safety Director Barras stated at hearing that the
test results indicated that rock dust was present at every sample location. Tr.

238. However, after reviewing the test results, it is clear that the test
     results only report total incombustible content and do not detail specific amounts
     of applied rock dust. As the Respondent pointed out in regards to Order No.
     8436212, not all mined material is combustible and the average baseline
     incombustible content of mined material at the Willow Lake mine is 50%. Tr. 93.
     Thus, noting Big Ridge�s earlier statement that Willow Lake material on average
     has a 50% incombustible content, I find that incombustible content results in
     the 50% to 65% range indicate that very little rock dust had been applied at
     that sample location. As such, the test results corroborate Mr. Lampley�s
     observations that at the farthest inby band, rock dust was very thinly applied
     and visually deficient.

����������� I have already held that due to halted
mining activities, there was only a small probability of an ignition occurring
at the old North area. However, if planned equipment removal activities were to
cause an ignition, the presence of uncontrolled combustible material throughout
a several hundred foot area could sustain a fatal coal dust explosion. As such,
while the likelihood of an injury event occurring was low, the risk of such an
ignition was not totally eliminated and the insufficiently rock dusted areas
still presented a high degree of danger.

e.       Operator�s
Knowledge of the Violation

����� The Secretary has not established that Big
Ridge management had actual knowledge that the old North area was not
adequately rock dusted. However, as I have ruled above, the fact that the area
closest to the abandoned face was dark and significantly lacking in sufficient
rock dust indicates that Big Ridge should have identified the violation.

As such, the Secretary
has presented strong evidence for four of the unwarrantable failure factors
while Big Ridge has only produced evidence of a general effort to improve rock
dusting efforts without providing evidence of specific efforts at the location
in question or time period immediately before the survey. Therefore, for all
the reasons stated above, I find that Order No. 8445336 was the result of Big
Ridge�s unwarrantable failure to comply with a mandatory safety standard and
uphold the Secretary�s 104(d) (2) designation.

�

�� 5. �Penalty
Assessment

���� �The
Secretary has proposed a regularly assessed penalty of $7,774.00. In
considering the six statutory penalty criteria, I find that Big Ridge violated
30 CFR � 75.403 44 times in the two years prior to this citation and the
proposed penalty is appropriate to Big Ridge�s status as a large operator. I
have ruled that Big Ridge was highly negligent and that the violation involved
a low likelihood of injury yet still presented a high degree of danger. The
Secretary acknowledged that Big Ridge did abate the condition through repeated
redusting efforts. Tr. 197; Sec�y Ex. 21, 3.

After considering
all these criteria, I uphold the Secretary�s proposed penalty and assess Big
Ridge a civil monetary penalty of $7,774.00 for Order No. 8445336.

B.��� Order
No. 8431905

MSHA Inspector
Dean Cripps issued Order No. 8431905 on November 29, 2012 for an alleged
violation of 30 CFR � 75.220 (a)(1), finding that Big Ridge had violated its
roof control plan by allowing miners to operate in the �red zone�. Sec�y Ex. 34,

1. The Order alleges in part that:

�Interviews were conducted with several employees as part of
an accident investigation. Several of the employees stated that they have
recently observed continuous miner operators in the Red Zone while operating
the machine. They have also stated they have recently observed operators
tramming the continuous mining machine while standing on the cable and leaning
against the machine.�

Sec�y Ex. 34, 1-2.

����������� Cripps determined
than an injury was highly likely, a resulting injury would be fatal, the
violation was S&S, 1 person was affected, the violation was the result of
Big Ridge�s high negligence, and constituted a 104(d) (2) unwarrantable failure
to comply with a mandatory safety standard. Sec�y Ex. 34. The Secretary has
proposed a regularly assessed penalty of $53,858.00. Sec�y Petition: Exhibit A.

30 CFR �
75.220(a) (1) states:

Each mine operator shall develop and follow a
roof control plan, approved by the District Manager, that is suitable to the
prevailing geological conditions, and the mining system to be used at the mine.
Additional measures shall be taken to protect persons if unusual hazards are
encountered.

The relevant
portion of Respondent�s roof control plan cited in the order states in part:

While repositioning the continuous mining machine within the
working place, all persons involved shall be positioned in a safe location away
from any part of the continuous mining machine. During place changing, all
persons involved with the move shall be positioned in a safe location away from
the continuous mining machine while the machine is being trammed.

Tr. 572, Sec�y Ex. 34.

Inspector
Cripps issued Order No. 8431905 while completing an EO3 hazard complaint investigation
in response to a November 17, 2012 miner hazard complaint. The complaint
alleged that employees at the mine were operating continuous miners in the red
zone while standing on the power cable and leaning against the machine, an
action Cripps refers to as �cable surfing�. Tr. 533, 546. The hazard complaint
investigation occurred in conjunction with a separate accident investigation
initiated on the same day. Tr. 537. On November 19, 2012, MSHA investigators Cripps
and Steve Miller interviewed Willow Lake Section 1 third shift crew members
about miner operators allegedly working in the red zone. Tr. 538. Several of
the interviewed miners confirmed that they had observed miner operators working
in the red zone and standing on the continuous miner power cable while
tramming, leading Cripps to believe the alleged hazard complaint was valid. Tr.
549, 557-58. As such, Cripps issued Order No. 8431905 based on the miners�
descriptions of violative actions separate from the events of the November 17
accident. Tr. 538-539. Specifically, six of the eight miners interviewed
confirmed observing miner operators performing work in the red zone. Tr. 540,
Sec�y Ex. 45.

Inspector
Cripps designated the risk of injury in the order as highly likely and fatal,
stating that many fatalities had resulted from employees being �pinched� while operating
the miner in the red zone. Tr. 567-568. He designated the negligence level as
high and an unwarrantable failure because everyone he interviewed had knowledge
about and had been trained with regard to the red zone. Tr. 568. Cripps
concluded that management must have seen or been aware of miners working in the
red zone due to the number of miners working in a variety of positions
indicating they had witnessed red zone violations. One such miner, Josh
McClendon indicated it was a common practice for miners to operate in the red
zone and that he had observed this practice as recently as the last full shift
he worked. Tr. 568-569. As such, Cripps determined that the widespread knowledge
of this common practice among hourly employees indicated that the practice must
have been extensive enough for the shift foreman and management to have
observed the practice as well. Tr. 569. Cripps also testified that as there
were no records of anyone being disciplined for working in the red zone despite
the miners� statements regarding how common red zone work was, it appeared that
Big Ridge was not enforcing their red zone policy. Tr. 571. Cripps noted one
person would be affected, the person who was working in the red zone. Id.

1.     
Findings

���� Big Ridge argues that
Order No. 8431905 fails to meet the particularity requirements of Section
104(a), which should be incorporated into the elements of a 104(d) (2) order. Resp
Br. 111-113; Emerald Mines Co. 863 F.2d 51, 52 (D.C. Cir. 1998). Big
Ridge specifically questions a lack of specificity regarding which miners were
observed in the red zone, when the instances occurred, the circumstances
surrounding the violations, and whether any managers were present when the
alleged instances occurred. Resp. Br. 114. Accordingly, Big Ridge urges me to
vacate the Order entirely. Resp. Br., 109. While I agree the particularity
requirement in 104(a) generally applies to a 104(d) enforcement action, and
that MSHA needed to provide more details to sustain the Secretary�s high
negligence and unwarrantable failure designations, the Order and evidence
gathered during the E03 investigation produced sufficiently specific facts to
sustain the underlying violation.

����� �Big Ridge notes that the
Commission has held that an order must allege particular facts so that the
operator has an opportunity to both abate the violation and defend itself by
challenging the legitimacy of the allegations. Resp. Br., 115-117; Erie
Mining Co., 2 FMSHRC 2717, 3721 (Sept. 1980)(ALJ Lasher)(vacating citation
when the Order recited language of the standard without specifying whether
cable was energized, whether tongs were used, or whether other protective
measures were employed). In the present case, the Willow Lake mine was closed
permanently following the November 17 accident thus, abatement efforts are not
at issue in this matter. Resp. Br., 115 n. 96. Furthermore, in Erie Mining, the
standard, 30 CFR � 55.12-14, allowed for alternate means of compliance that
were not addressed by the citation issued, leading the judge to conclude that
the operator did not understand what it was being charged with. Erie Mining
Co., 2 FMSHRC 2722. Indeed, the judge in Erie warned the regulation
at issue in that case must not be confused with other regulations which are
more simplistic. Id. at 2721. I find the regulation at issue in this
case, the specific red zone prohibition required by 30 CFR � 75.220(a) (1),
lacks the alternate means of compliance dilemma that was presented to the ALJ
in Erie. In this case, the Willow Lake roof control plan clearly
prohibits miners from operating in the red zone whenever the continuous miner
is energized and not cutting coal. More specifically, anytime the continuous
miner is �tramming�, or moving from one cut to another, and a miner enters the
area between the miner and the rib or actually contacts the machine, that miner
is automatically violating the red zone prohibition. Tr. 598.

����� Additionally, the Order
itself specifically charges that miners were �tramming the continuous mining
machine while standing on the cable and leaning against the machine.� Sec�y Ex.

34. As such, the Secretary must point to evidence that sustains this allegation
    and Big Ridge may defeat the allegation by rebutting the Secretary�s evidence
    that miners have recently �surfed� the continuous miner power cable or
    otherwise violated the red zone prohibition. Big Ridge management and their
    legal representative were present at the November 19, 2012 interviews with the
    Willow Lake Section 1 third shift crew members and thus, were aware of their
    identities. Big Ridge had over a year before the hearing to further interview
    or depose those crew members in order to prepare a defense rebutting the
    miners� statements regarding red zone violations. Tr. 664-65. Indeed, Big Ridge
    did call one of the original interviewees, Shift Leader Duty, to explain the
    exact meaning of his statements to MSHA during the hazard complaint
    investigation. Tr. 643. Thus, I find that the Order described minimally sufficiently
    specific factual allegations that allowed, and did in fact prompt, Big Ridge to
    prepare a defense to the Secretary�s allegations.

������ �Alternatively, Big
Ridge argues that the Secretary has failed to meet his burden of establishing a
violation by a preponderance of evidence because the cited violation is based
entirely on unsubstantiated hearsay interviews conducted by Cripps and Miller. Resp.
Br. 117. Respondent correctly acknowledges that hearsay evidence is admissible
in a FMSHRC hearing and cites Judge Feldman�s Metz decision for the
proposition that it is most apt to be credited when it is corroborated. See,
e.g., Metz v. Carmeuse Lime, Inc., 32 FMSHRC 1710, 1713 (Nov. 2010),
aff�d 532 Fed. Appx. 309 (3rd Cir. 2013) (unpublished). While I
acknowledge this holding, I must note that hearsay testimony �may be treated as
substantial evidence, even without corroboration, if, to a reasonable mind, the
circumstances are such as to lend it credence.� Mid-Continent Resources,
Inc., 6 FMSHRC 1132, 1135 (May 1984) (finding hearsay evidence is
admissible in Commission proceedings so long as it is material and relevant)(quoting
Hayes v. Department of the Navy, 727 F. 2d 1535, 1538 (Fed. Cir. 1984)).

������� In this light, Big Ridge
specifically questions whether some of the interviewed miners understood that
when a continuous miner is cutting coal the red zone prohibition does not
apply. Resp. Br. 118. Big Ridge bases this claim on Car Drivers Hawkin�s and Van�s
statements that red zone violations could occur any time the continuous miner
was �tramming back or any time it�s energized� and �any time the miner is
running if it�s up against the rib or a car.� Tr. 544, 547. Big Ridge claims
that these statements may indicate that the miners believed a red zone
violation could occur while the miner was cutting coal. Resp. Br., 118. However,
I find that as Big Ridge had provided extensive red zone and pinch point
training to the entire underground crew, these statements demonstrate that the
miners fully understood it was not permissible to enter the red zone while the
continuous miner was neither cutting coal or actively tramming, but was energized
with the pumps on. Tr. 598-99, 654, 659. Additionally, Van specifically stated
that he himself had trammed the continuous miner but had never cut coal. Sec�y
Ex. 45: Van 1:08:00- 1:09:00.[4]
As such, Van obviously understood the difference between tramming and cutting. While
I recognize some variances in the way each interviewed miner explained their
understanding of the red zone, none of them inaccurately described a situation
where they characterized an operator as violating the red zone regulations
while the continuous miner was cutting coal.

������ �Additionally, Roof
Bolter McClendon and Car Driver Van explicitly stated they had observed
operators standing on the power cable and leaning back against the continuous
miner while tramming.[5]
Tr. 557-58, Sec�y Ex 45, Van 1:07:00-1:10:00. McClendon specifically stated
that he had observed this type of red zone violation as recently as the last
full shift he worked and described it as a �common practice� Tr. 557-58. Van
stated he had observed operators tramming the continuous miner while standing
on the cable as recently as two weeks before the November 19 interview. Sec�y
Ex 45, Van 1:07:00-1:10:00. These observations clearly and unequivocally describe
recent tramming operations at the Willow Lake Portal mine while the continuous
miner was not cutting coal, and by definition depicted violations of the red
zone prohibition. Tr. 545-46. As such, I do not agree with Big Ridge Safety
Manager Barras� belief that all the interviewed miners were referring to red zone
violations outside of the Willow Lake mine or to instances in the distant past.
Tr. 664-65.

��� ����In addition to
questioning the accuracy of the miners� interpretation of the red zone, Big
Ridge has argued that the miners� out of court statements are not corroborated
by independent evidence. Resp. Br. 117-119. I acknowledge that the Secretary
has not produced physical evidence or first-hand testimony from an MSHA
inspector that corroborate the red zone violations described by the interviewed
miners. However, while preferable, such evidence is not absolutely necessary in
order to prove a violation. Mid-Continent Resources, Inc., 6 FMSHRC
1135. I would also note in fairness that Big Ridge urged me, in order No.
8444863, to rely on a Big Ridge Section Foreman�s hearsay testimony that a
separate miner operator, who did not testify at hearing, had told him he
checked the spray heads of a continuous miner in support of their argument that
the order should be vacated. Resp. Br. 89; Tr. 507. Here, the Secretary
presented audio recordings of the miners� November 19, 2012 interview
responses. Tr. 544-566. I find the recordings absolutely relevant and material
to the question of whether there was a violation of Big Ridge�s roof control
plan. All of the interviewed miners sounded entirely direct, genuine and
sincere in their responses. However, even after accounting for some apparent and
unexplained inconsistencies in some of the miner�s statements about general red
zone violations I still find the responses by McClendon, Van and Duty, specifically
related to cable surfing while at the Willow Lake Portal mine, consistent and
compelling enough to support an affirmative finding for the underlying
violation. This is underscored by the fact that these interviews were conducted
in response to a hazard complaint and a fatal accident investigation, a fact
each miner was painfully aware of and which dispels Big Ridge�s argument that
somehow they thought they were being asked about red zone violations occurring
at any time in their careers prior to working for Big Ridge.

������� Accordingly, I find
that the Secretary of Labor demonstrated by a preponderance of the evidence
that miners at the Willow Lake Portal mine had recently entered the prohibited
red zone area around a continuous miner while it was energized and not cutting
coal. As such, I hold that Big Ridge violated 30 CFR � 75.220 (a)(1) and the
mine�s mandatory roof control plan.

� �2. Gravity

������� Inspector Cripps stated
that operating in the red zone is an S&S violation because it is highly likely
that a continuous miner operator would suffer severe or fatal injuries due to
the risk of being pinned between the machinery and a coal rib. Tr. 567-568. Applying
the four Mathies S & S criteria, I have already found a violation of
30 CFR �75.220(a) (1). Additionally, operating the continuous miner while in
the red zone creates a discrete safety hazard by increasing the likelihood of
caught-between, struck by, and pinch injuries. In this situation, the Secretary
presented credible statements of Big Ridge miners describing operators standing
on the continuous miner power cable and leaning back against the machine while
the machine was tramming at the Willow Lake Portal mine during recent shift
work. Tr. 558. As such, the preponderance of evidence indicates that there was
a high likelihood that the hazard would result in a serious injury, as
operators who surfed the cable could be caught underneath the tracks of the
continuous miner, or pinched between moving machine parts and the coal rib. Big
Ridge has previously emphasized that the 20 ton continuous mining machines at
the Willow Lake Portal mine can crush and shatter rock and coal formations
through their weight alone. Tr. 332. As such, I agree with Inspector Cripps
that a miner caught underneath the miner or between the miner and the rib would
most likely suffer severe or fatal injuries in the event of an accident. Tr.

567. Therefore, I find that the Secretary has produced satisfactory evidence to
     meet all 4 Mathies elements necessary to establish that the violation at
     issue is S & S. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

������ I note that Big Ridge
has challenged the S & S and highly likely chance of injury designations of
Order No. 8431905 due to a lack of specificity cited in the order. Resp. Br.
119-120. However, as I held above, the Secretary has credibly established
through the statements of Willow Lake employees that operators at the Willow
Lake Portal mine stood on the continuous miner power cable and leaned back
against the machine while tramming the machine backwards in the shifts prior to
November 17, 2012. Due to the weight of the machine, the close confines of the
mine entryways, and the multiple trip/pinch point hazards presented by the
power cable and articulated joints of the continuous miner, I cannot conceive
of a situation in which these actions would not be highly likely to lead to a
serious injury or death. As such, I uphold Order No. 8431905 as S&S and
highly likely to result in an injury.��� �

����� 3. �Negligence

Inspector
Cripps determined that Order No. 8431905 was the result of Big Ridge�s high
negligence. Sec�y Ex. 34, 1. He made this determination based upon the number
of miners in different positions that observed miners operating in the red zone
and McClendon�s statement that surfing the cable was a �common practice� at the
Willow Lake mine. Tr. 558. Cripps surmised that if numerous hourly employees
had observed red zone violations, management officials must have been aware of
these actions as well. Tr. 569. Furthermore, the fact that Big Ridge had not
previously disciplined or terminated any miner for working in the red zone led
him to believe Big Ridge was not enforcing its red zone policy. Tr. 570-71.

Big Ridge
disputes these inferences and denies any knowledge of red zone violations.
Resp. Br., 121. Of the eight miners interviewed, one would clearly be
considered management, Section Foreman Benjie Reeves. Reeves stated he has
never observed or caught any miners at Willow Lake operating in the red zone or
�cable surfing�. Tr. 562. Although not relied upon as a management employee by
MSHA for negligence designations, Shift Leader Duty�s interview with Miller and
Cripps is more difficult to assess.

Rank and file
hourly employees are considered agents when they perform inspections, �that one
might expect an employer more normally to delegate to management personnel,� Pocahontas
Fuel Co., 8 IBMA 136, 48 (1977). As such, I find that Duty was a member of
management for the two years he was a shift leader as his duties included
directing production on one side of a split air unit and examining pre-shift
inspection records. Sec�y Ex. 45: Duty 3:35:00-3:39:00. During the November 19
interview, Duty stated he had both observed people operating the continuous
miner in the red zone and leaning against the machine with their feet out and
pushing the cable away as they trammed the machine. Tr. 560-561. At hearing
however, Duty denied ever seeing these practices while working either as a
shift leader or previously as a mechanic at the Willow Lake mine, but testified
that he had seen it in his previous mining experience at other mines. Tr.
639-640. Big Ridge argues that Duty was in a bad emotional state during the
November 19 interview because he had just lost a friend, co-worker Chad Meyers,
who was the subject of the concurrent MSHA accident investigation. Big Ridge
reiterated Duty�s claim that he interpreted the interview questions about
observing work in the red zone to mean whether he had ever observed these
practices at any time during his seventeen year mining career. Resp. Br., 123,
Tr. 643.

Close examination
of the questions asked of Duty during the interview lends partial support to
Big Ridge�s argument. Duty was asked �Have you ever observed anybody
else operating the continuous miner while in the red zone?� And �Have you ever
noticed anyone moving a continuous miner - - I used to call it the old way

• • with kind of leaning against the machine with their feet out and pushing
    the cable away as he trammed the machine around it? Have you ever seen
    that happen? Tr. 561. (Emphasis added). He answered affirmatively to both
    questions. However, his response to a follow-up question � �How recently have
    you seen that happen?� adds confusion ��It�s been probably a pretty good while
    because I�ve been on the idle crew mostly here lately.� Tr. 560-561.

I find Duty�s
reference to his current assignment on the idle crew indicates that his answer
described actions he had observed at some point during his work experience at
the Willow Lake mine contrary to his testimony at trial. However, as stated by
Duty himself during the interview, it had �been a good while� since he had
observed red zone violations. As such, it appears doubtful that Duty was aware
of the violations Roof Bolter McClendon referred to as a �common practice� that
McClendon had observed as recently as the last full shift. Tr. 558.

The
preponderance of the evidence compels me to hold that �surfing the cable� was a
common enough occurrence that Big Ridge management should have been able to
identify violations of the red zone and initiated disciplinary action. However,
as Big Ridge had instituted a zero tolerance policy regarding red zone
violations, it is entirely plausible that operators would only engage in the
�cable surfing� practice when they knew management was not present or in a
position to see them. When Inspector Miller asked Roof Bolter McClendon if he
believed operators were violating the red zone due to a lack of safety training
or the operator�s desire to take a short cut, McClendon answered �I believe the
operator think it�s easier for them; they have more control of the cable.� Tr.

559. McClendon went on to state that he had participated in plenty of safety
     talks regarding the prohibition of red zone work. Tr. 559. When Inspector
     Miller asked Duty a similar question regarding what might cause operators to
     enter the red zone, Duty replied, �I think they need to move their cable, and
     that�s the only reason I can think of.� Tr. 561. Section Foreman Reeves stated
     he�d received red zone training in annual refresher trainings and that he�d
     never caught anybody operating in the red zone. Tr. 562-63. These responses
     indicate that the practice of surfing the cable appeared to be initiated by
     individual operators in direct contradiction of Big Ridge�s safety policy when
     management personnel were not present or in a position to readily observe them.

While
Inspector Cripps and Miller did ask questions about safety training, the
interview excerpts presented by the Secretary do not indicate that they asked
any hourly miners if management was aware of red zone violations, if management
was present during any of the violations observed by hourly miners or if they
reported their observations to management. Section Foreman Reeves indicated he
had never operated or observed anyone else operate in the red zone. Tr. 562-63.
Even discounting Duty�s claim at hearing that he only observed red zone
violations at other mines, Duty stated at the November 19 interview that he had
been on a different work assignment and it had been a �good while� since he had
observed anyone operate in the red zone. Tr. 561, 640. I find the Secretary has
not demonstrated by a preponderance of evidence that management was aware of
the recent red zone violations upon which the underlying violation is based.

����������� Big Ridge
Operations Superintendent Haantz, Mine Manager Genisio and Regional Safety
Manager Barras testified regarding Big Ridge�s zero-tolerance red zone policy. Haantz,
Genisio and Barras described Big Ridge�s daily safety meetings, annual safety
refresher training, an off-site �Safety, A Way of Life, Days� training, and
posters warning against work in the red zone placed on bulletin boards and in
the facility restrooms. Tr. 614-15, 631-32, 562, 653-60, Resp. Ex. PPP; RRR (1),
(3); QQQ (1); OOO; MMM; NNN. Big Ridge also maintains a 1-800 �Tell Peabody�
anonymous hotline whereby employees can call into the company�s legal group for
any issue they have. Tr. 650. These witnesses also confirmed that Big Ridge
instructs all employees if they are caught working in the red zone, they will
be subject to immediate termination with no progressive discipline. Tr. 619,
630, 649-650. Both Haantz and Barras confirmed that miners had been fired from
other Peabody mines in the region for violating the red zone policy as well as
other life-saving rules. Tr. 618-619, 650. Finally, Big Ridge management
personnel Haantz, Barras, Genisio, and Reeves all deny having any prior knowledge
of any allegations of miners working in the red zone at the Willow Lake mine. Tr.
616, 632, 660, 562-63.

Big Ridge had
instituted a comprehensive safety plan prohibiting red zone work and
encouraging anonymous safety complaints to be filed by Peabody employees. Therefore,
although it appears that red zone violations occurred often enough that
management should have been aware of the issue; the hourly operators who
violated the red zone did so on their own accord in direct violation of the
company�s safety policy without the actual knowledge of management. Thus, I
hold that the company�s efforts to prohibit, identify, and discipline red zone
violations are legitimate mitigating circumstances. As such, I hold that the
negligence designation for Order No. 8431905 shall be MODIFIED from high
to moderate.

4.      Unwarrantable
Failure �

For Order No. 8431905, I
find that the Secretary has not produced sufficient evidence to satisfy the
five factor test considered by the Commission in evaluating unwarrantable
failure designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar.
2000).

a.       Extent
and Duration of the Violation

�����������

����������� After reviewing the transcript and the
submitted compact disk recording of the eight interviewed miners, it is clear that
some continuous miner operators at the Willow Lake Portal mine violated the red
zone on an intermittent basis, �when they felt like they needed to be there.�
Tr. 549. However, it also appears some operators followed the mine�s safety
rules and consistently stayed out of the red zone. Sec�y Ex. 45: Van 1:07:00-
1:10:00. Unfortunately, the length of time the violation existed cannot be
determined because as Big Ridge argues there is very little evidence provided
regarding the details of observed red zone violations. All we really know is
that several miners answered affirmatively when asked if they had ever observed
miner operators either working in the red zone or using their feet while
tramming to push the power cable out of the way of the miner cats, a term
Cripps refers to as �cable surfing.� This evidence is woefully inadequate to
meet the burden of demonstrating duration. Likewise the extent of the violation
is difficult to assess. Out of all the miners interviewed only one, Roof Bolter
McClendon opined that it was common practice to see a miner operator using
their feet while tramming to push the cable out of the way of the miner cats. This
is minimally sufficient to at least suggest that the violation was relatively
extensive.

b.      Notice
to the Operator

����������� The Secretary did not produce any
evidence suggesting that MSHA had previously cited or warned Big Ridge about
red zone violations at the Willow Lake Portal mine. Big Ridge Safety Manager
Barras credibly testified that he had never been informed of any red zone
violations at the Willow Lake Mine during ten years as a safety officer. Tr.
660-61. Section Foreman Reeves stated during the Nov 19 interview he had never
observed anyone working in the red zone. Tr. 562-63. I find on balance, Shift Leader
Duty�s statements indicate that while he had previously observed red zone
violations most likely at the Willow Lake mine there is no indicia of specifically
when he made such observations, who was involved, the circumstances he observed
and most importantly his reaction to what he observed. As such, the Secretary
has not produced any evidence to demonstrate that MSHA had notified Big Ridge
of a need to increase red zone enforcement/monitoring, and woefully
insufficient evidence that Big Ridge management was aware of ongoing red zone
violations in the weeks and months prior to the November 17 hazard complaint.

�����������

c.       Prior
Abatement Efforts

����������� Big Ridge incorporated red zone
violations into a group of Life Safety Rules that were posted throughout mine
facilities. Big Ridge conducted numerous pre-shift safety talks on red zones
and hosted a full day refresher course that emphasized the hazards of working
in red zone and pinch point areas. Tr. 559; 651-52. Big Ridge created an
anonymous safety complaint hotline to encourage miners to report safety
hazards. Tr. 650. Big Ridge also appears to have consistently and promptly
terminated any employee observed by management working in the red zone at other
nearby Peabody mines whenever a complaint was filed. Tr. 618-19. However,
Barras stated management had not observed or received any reports regarding red
zone violations at the Willow Lake mine. Tr. 660-61. Therefore, I find that Big
Ridge instituted a substantial preventative safety program designed to prevent
red zone violations from occurring.

d.      Obviousness
of the Hazard and Degree of Danger

����������� As red zone violations involved the
minute to minute work movements of miner operators, red zone violations could
only be identified by closely monitoring the operation of the continuous miner
operator or unfortunately, if an accident occurred. Although hourly employees
described seeing red zone violations, no evidence was proffered to show that
the hourly employees ever reported them to management. Tr. 660-61. As such,
while the hazard of a red zone violation was obvious at the times it actually
occurred, such a violation appears to have lasted for a brief period of time
and was not detectable as soon as the operator removed himself from the danger
zone. Additionally, the Secretary has not specifically contended that Big Ridge
management failed to adequately supervise continuous miner operations in their
work. In fact both Shift Leader Duty and Reeves informed MSHA inspectors that
they watched continuous miner operators make cuts as part of their regular
supervisory duties. Sec�y Ex. 45: Duty 3:44:00-3:46:00, Reeves 4:03:00-4:05:00.

�����������

As I have held above, red
zone violations posed a high degree of danger to continuous miner operators, as
the operator could become entrapped or crushed by the continuous miner.

e.       Operator�s
Knowledge of the Violation

����������� The Secretary has presented no
evidence of management�s knowledge of red zone violations in the months leading
up to the November 17 hazard complaint. The Secretary merely relies on an
inference made by Inspector Cripps that given the observations of the
interviewed miners management must have been aware of red zone violations at
Willow Lake. Said inference is countered by the credible straightforward
testimony, on this point, by Big Ridge management officials. Safety Manager
Barras stated that while he had received reports of other life safety
violations at Willow Lake, he had never been informed of a red zone violation
at Willow Lake in his ten years as a safety officer. Tr. 660-61. Mine Manager
Genisio testified that he had never observed or received a report of a red zone
violation during two years as the third shift mine manager at Willow Lake leading
up to November 2012. Tr. 632-33. Section Foreman Reeves stated during the November
19 interview that he had never operated or observed anyone else in the red zone
of a continuous miner. Tr. 562-63. Shift Leader Duty did state in the November
19 interview that he had observed red zone violations but that he had not seen
any for a �pretty good while� since he had been assigned to an idle shift. Tr.

561. As such, I cannot conclude, with so little information about Duty�s prior
     observations, that he was aware of the recent red zone violations observed by
     McClendon and Van referenced in the order at issue.

����������� The Secretary has argued that since McClendon
described red zone violations as a �common practice�, it is simply not credible
that Big Ridge management was not aware of ongoing red zone violations. However,
when reviewing the statements made by the miners during the November 19
interview, it appears that the miners� exposure to red zone violations varied
greatly as some workers had seen red zone violations as recently as the �last
full shift� while some had not seen any violations for �months� or a �long
while� Tr. 558, 553, 566. As the third shift ran two separate continuous mining
operations and different continuous miner operators ran the miners from shift
to shift, it appears that this variance may be attributed to the tendencies of
individual continuous miner operators. Sec�y Ex. 45: Hawkins 23:00-25:00; Sec�y
Ex. 45: Van 1:07:00- 1:10:00. As noted in the discussion regarding prior
abatement efforts, Big Ridge management testified without dispute that it had
terminated employees for violating its red zone violations at other mines in
the region. Tr. 618-19. Thus, I find it reasonable to believe that a few
continuous miner operators at the Willow Lake mine simply, and regrettably,
disobeyed company policy when they knew management was not present and that no
one reported such violations to anyone in management. Tr. 618-19.���

������ After reviewing all five
unwarrantable failure factors, I have determined that the Secretary has not
presented sufficient evidence to demonstrate Big Ridge was aware of ongoing red
zone violations, and that Big Ridge credibly demonstrated it had instituted comprehensive
life-safety training and policies designed to prevent such violations. Although
the Secretary does not necessarily have to prevail on all unwarrantable failure
factors, I find that when the factors are considered as a whole, the Secretary
has not demonstrated that Big Ridge acted with a serious lack of reasonable
care, intentional misconduct or reckless disregard of the standard. Emery
Mining Corp., 9 FMSHRC 1997, 2004. As such, Order No. 8431905 shall be MODIFIED
from a 104(d) (2) Order to a 104(a) Citation.

5.     
Penalty Assessment

The Secretary
has proposed a regularly assessed penalty of $53,858.00 for Order No. 8431905. Resp.
Br., 127. I have already held the negligence level shall be modified from high
to moderate and that the 104(d)(2) unwarrantable failure designation shall be
modified to a 104(a) citation

Order No.
8431905 indicates that standard 75.220(a) (1) was cited 46 times in two years
at the mine. Sec�y Ex. 34. However, the Secretary did not present any evidence
showing whether any of these citations were for red zone violations. The
parties have stipulated that Big Ridge, Inc. is a large operator. Tr. 10. I
have found Big Ridge to be moderately negligent. There is no indication that
the assessed penalty would have any impact on Big Ridge�s ability to continue
in business. I have determined that the gravity of the violation is properly
assessed as highly likely and S &S. Finally, Big Ridge acted in good faith
to achieve rapid compliance after being notified of the violation when it
closed the mine. Tr. 572. After considering all of the above factors, the 30
CFR � 100 penalty tables, and noting the extraordinary danger involved in red zone
violations, I find it appropriate to assess a penalty of $35,000 for Citation
No. 8431905.

VIII.� JUDGMENT SUMMARY

����� �For the
eight citations and orders contested at hearing, I hereby ORDER that the
following penalty modifications and monetary penalty adjustments shall be made:�������������������������������������������������������������������������������������������������������������������������������������������
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Citation No.

Originally Proposed Assessment

Judgment Amount

Modification

LAKE
2012-506 (Judgment Only)

8436212

$66,100.00

$30,000.00

Reduce Number of Miners Affected from �4� to �2�

8436107

$14,700.00

$1,500.00

Modify 104 (d)(2) Order to 104(a) Citation[6]

LAKE
2012-66 (Judgment Only)

8444809

$47,700.00

$3,000.00

Reduce Likelihood of Injury from

�Reasonably Likely� to �Unlikely�

Remove Significant and Substantial Designation

Reduce Negligence from �High� to �Moderate�

8445037

$47,700.00

$2,000.00

Reduce Likelihood of Injury from

�Reasonably Likely� to �Unlikely�

Remove Significant and Substantial Designation

Reduce Severity of Injury from

�Fatal� to Permanently Disabling

8445268

$25,810.00

$15,000.00

Modify 104(d)(1) Order to a 104(a) Citation

Reduce Negligence from �High� to �Moderate�

LAKE 2012-251 (Judgment Only)

8444863

$52,500.00

$0.00

Vacate

LAKE 2013-307 (Judgment Only)

8445336

$7,774.00

$7,774.00

Upheld as Written and Assessed

8431905

$53,858.00

$35,000.00

Modify 104(d)(2) Order to 104(a) Citation

Reduce Negligence from �High� to �Moderate�

Judgment

Total

$316,142.00

$94,274.00

IX.� �SETTLEMENT

����� �The Secretary has filed a motion to approve
settlement of 25 of the violations involved in this matter. I acknowledge and
accept the explanation for the agreed upon settlement contained in the parties�
settlement motion and amendments. The originally assessed amount for these 25
citations was $484,876.00 and the proposed partial docket settlement is
for $296,571.00. The parties have moved to approve the proposed
settlement as follows.

Citation No.

Originally Proposed Assessment

Settlement Amount

Modification

LAKE 2013-251 (Settlement Only)

8445322

$32,800.00

$32,800.00

8407445

$70,000.00

$35,000.00

Modify
Number of Persons Affected from

��9�
Persons to �4� Persons

8407466

$70,000.00

$35,000.00

Modify
Number of Persons Affected from

�9�
Persons to �4� Persons

LAKE 2013-252

8407448

$2,901.00

$2,000.00

Reduce
Monetary Penalty

8407451

$2,678.00

$2,678.00

Reduce
Monetary Penalty

8407464

$3,405.00

$3,405.00

8407902

$3,689.00

$3,689.00

8444868

$19,793.00

$15,000.00

Reduce
Monetary Penalty

8445325

$3,996.00

$3,200.00

Reduce
Monetary Penalty

8445328

$2,473.00

$2,200.00

8445332

$1,795.00

$1,795.00

8445339

$11,306.00

$8,500.00

Modify
Severity of Likely Injury from

�Fatal�
to �Permanently Disabling�

LAKE 2012-506 (Settlement Only)

8428748

$27,900.00

$20,000.00

Modify
Likelihood of Injury from

�Reasonably
Likely� to �Unlikely�

Remove
�Significant and Substantial� Designation

8434918

$21,900.00

$14,000.00

Modify
�104(d)(2) Order� to �104(a) Citation�

8435824

$14,700.00

$10,000.00

Modify
Likelihood of Injury from

�Reasonably
Likely� to �Unlikely�

�

Remove
�Significant and Substantial� Designation

8435826

$35,500.00

$20,000.00

Reduce
Monetary Penalty

8428781

$13,600.00

$8,899.00

Modify
�104(d)(2) Order� to �104(a) Citation�

8435650

$6,600.00

$5,000.00

Modify Likelihood of Injury from

�Reasonably Likely� to �Unlikely�

�Remove �Significant and Substantial� Designation

LAKE 2013-307 (Settlement Only)

8445327

$14,700.00

$14,700.00

8445331

$70,000.00

$35,000.00

Reduce Monetary Penalty

LAKE 2012-896

8445020

$13,600.00

$8,000.00

Reduce
Monetary Penalty

8424296

$9,882.00

$2,000.00

Modify
�104(d)(2) Order� to �104(a) Citation�

8424297

$4,440.00

$1,000.00

Modify
�104(d)(2) Order� to �104(a) Citation�

8428355

$13,609.00

$6,396.00

Reduce
Monetary Penalty

8428356

$13,609.00

$6,309.00

Reduce
Monetary Penalty

Total

$484,876.00

$296,571.00

X.� ORDER

I have considered the submitted settlement documents and I
conclude that the proposed settlement is appropriate under the criteria set
forth in section 110 (i) of the Act. The motion to approve settlement is GRANTED
and the citations contained in this agreement are MODIFIED as set forth
above for a partial settlement total of $296,571.00.

Based
on the criteria in section 110(I) of the Mine Act, 30 U.S.C. � 820(I), I assess
the eight penalties contested at hearing above for a total judgment penalty of
$94,274.00. Big Ridge, Inc. is hereby ORDERED to pay the Secretary of
Labor the total sum of $390,845.00 within 30 days of this order.[7] �

�������������������������������������������������������������������������������������������������� /s/
David P. Simonton��

�������������������������������������������������������������������������������������������������� David
P. Simonton

�������������������������������������������������������������������������������������������������� Administrative
Law Judge

Distribution: (First Class U.S. Mail)

Ryan Pardue, Office of the
Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202
for Petitioner

Lauren Polk, Office of the Solicitor,
U.S. Department of Labor,1999 Broadway, Suite 800, Denver, CO 80202 for
Petitioner

Arthur Wolfson, Jackson Kelly, 3
Gateway Center, Suite 1500, 401 Liberty Ave., Pittsburgh, PA 15222 for
Respondent

[1]
Although Manager Schiff agreed that the Willow Lake roof control plan required
bearing plates to be tight to the roof, the Willow Lake Roof Control Plan
submitted by the Secretary does not appear to actually state this requirement.
Additionally, in their Post Hearing brief, the Secretary relied upon Schiff�s
statement during cross-examination rather than pointing to a particular clause
of the roof-control plan to assert that the Willow Lake Roof Control plan
required bearing plates to be tight to the roof. Sec�y Br., 43. As Respondent
has not contested this ambiguity, and Inspector Lee credibly testified that the
loose bearing plate and bent bolt were violations of 30 CFR � 75.202(a), I have
accepted the Secretary�s representation for the purpose of determining that a
violation occurred.

[2]
In modifying Order Nos. 8445037 and 8444809 from S&S to Non S&S, I am
not requiring the Secretary to demonstrate roof instability in order to sustain
an S&S determination. However, in both these instances, the Respondent has
produced credible and sufficient evidence corroborated by the Secretary�s
witnesses to show that the roof was in fact stable at these areas. Tr. 319,
332-33, 354, 389, 410. As such, I have determined that in these specific
instances, although Big Ridge violated the specific mandates of the Willow Lake
roof control plan, these violations did not in fact create or contribute to a
discrete safety hazard as required by the second element of the Mathies
test.

[3]
MSHA website http://www.msha.gov/drs/ASP/MineAction.asp
Mine ID 1103054 08/23/2012 Citation Status.

[4]
The CD audiotape submitted by the Secretary does not contain an index or
accurate time search function. I have cited to the relevant segment of the
audio recording to the best of my ability.

[5]
A third miner, Car Driver Hall similarly confirmed he observed operators in the
red zone leaning against or sitting on the continuous miner while moving it and
with their feet on the cable to keep their feet and the cable from under the
cats. He is not relied upon in my finding because he also testified somewhat
inconsistently that he had not observed miners in the red zone while they were
tramming the continuous miner from place to place. TR 552. A fourth miner,
Shift Leader Duty corroborated the observations of the other three miners when
interviewed by Miller and Cripps but he is not relied upon in findings regarding
the underlying violation because it is unclear whether he understood he was
being asked about his observations while working at the Willow Lake mine. In
fact, he testified at hearing he believed he was being asked about whether he
had ever seen this practice in his mining career, not specifically at the
Willow Lake mine. TR 560-561, 643.

[6]
Modification reflects reduction from �Special Assessment Narrative Form Chart;
Resp. Ex. B�

[7]
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