Secretary of Labor v. White County Coal, LLC

Read the official release (fmshrc.gov)

Plain-English summary

White County Coal operates the Pattiki underground coal mine in Illinois, where MSHA issued citations involving ventilation, roof support, and damaged trailing-cable splices. After the company settled 31 citations, it contested the gravity or negligence findings for six others but conceded the underlying violations. Judge Thomas P. McCarthy affirmed all six litigated citations as written, finding that the ventilation and one roof-control violation were significant and substantial, that damaged 480- and 600-volt cable splices created fatal electrocution hazards, and that moderate negligence was supported for every citation. He also approved the partial settlement, including reductions to several negligence and gravity designations, which lowered the penalties for the 31 settled citations from $50,130 to $35,091. The judge assessed $13,587 for the six litigated citations and ordered White County Coal to pay $48,678 in total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.370(a)(1), and 75.604(b)
• Outcome: Six litigated citations were affirmed as written, the partial settlement of 31 citations was approved, and total penalties of $48,678 were assessed.
• Key point: Existing examinations and safety practices did not overcome evidence that ventilation, roof-support, and cable-splice hazards had persisted long enough that the operator knew or should have known of them.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE
OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON,
DC 20004-1710

TELEPHONE:
202-434-9900 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

WHITE COUNTY COAL, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket No. LAKE 2014-0062

A.C. No. 11-03058-335119

Mine:  Pattiki Mine

DECISION
AND ORDER

DECISION
APPROVING SETTLEMENT

Appearances:               Daniel
R. McIntyre, Esq., Office of the Solicitor, Department of Labor,

Denver,
Colorado for Petitioner  

Tyler H. Fields,
Esq., Alliance Coal, LLC, Lexington, Kentucky for Respondent

Before:                       Judge
McCarthy

I.          Statement
of the Case

This case is before
me upon a petition for assessment of civil penalty filed by the Secretary of
Labor on behalf of the Mine Safety and Health Administration (MSHA), against White
County Coal, LLC (Respondent) pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(d).[1]  The Secretary has
proposed a total civil penalty of $13,587 for the six alleged violations of
mandatory safety standards still at issue.  P. Ex. 18 (Exhibit A, Docket No.
LAKE 2014-0062).    

The
primary issues before me are: (1) whether the Secretary’s gravity and
negligence determinations in Citation Nos. 8451616, 8449462, 8449464, and
8451627 are appropriate; (2) whether the Secretary’s negligence determinations
in Citation Nos. 8451620 and 8451626 are appropriate; and (3) whether the
Secretary’s proposed civil penalties are appropriate for all six citations at issue.

An evidentiary
hearing was held March 11-12, 2015, in Henderson, Kentucky.  Witnesses were
sequestered.  The parties presented testimony and documentary evidence, and
filed post-hearing briefs.[2]  For the reasons set
forth herein, I affirm the six citations, as written, and assess the proposed
penalties after independent assessment of section 110(i) criteria.  On the
entire record, including my observation of the demeanor of the witnesses,[3] and after
considering the post-hearing briefs, I find and order the following:

II.        Stipulations

At hearing, the parties agreed to the following
stipulations:

1.      White County was at all times relevant to these proceedings engaged in
mining activities at the
Pattiki Mine in White County,
Illinois.

2.      White County’s
mining operations affect interstate commerce.

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

4.      White County is an “operator” as
that word is defined
in §3(d) of the Mine
Act, 30 U.S.C. §803(d),
at the mine where the contested citations in these proceedings were issued.

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

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

7.     
The citations at issue in these proceedings were properly served upon White County as required by the Act.

8.     
The citations
at issue in these proceedings may be admitted into evidence by stipulation for
the purpose of establishing their issuance. The truthfulness or relevancy of any statements
asserted therein
is not stipulated to by
the parties.

9.     
The certified copy of the MSHA Assessed Violations History reflects the history of the
citation issuances at the Pattiki Mine for 15 months
prior to the date of the first citations in these proceedings
and may be admitted
into evidence without objection by White County.

10.  White
County demonstrated good faith in abating the violations.

11.  During
2012, the Pattiki Mine produced 2,380,484 tons of coal.

12.       The penalties proposed by the Secretary in this case will not affect the ability
of

the Respondent to continue in business.

P. Ex. 16; P. Br.
2-3.

III.       Principles
of Law

A.  30
C.F.R. § 75.202(a) – Protection from falls of roof, face and ribs

Section 75.202(a)
requires operators to support or otherwise control the roof, face, and ribs of
areas where persons work or travel to protect those persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts.  30 C.F.R.
§ 75.202(a).  In order to prove a violation of 30 C.F.R. §75.202(a), well-settled
Commission case law holds that “the adequacy of particular roof support or
other control must be measured against the test of whether the support or
control is what a reasonably prudent person, familiar with the mining industry
and protective purpose of the standard, would have provided in order to meet
the protection intended by the standard.”  Canon Coal Co., 9 FMSHRC 667,
668 (Apr. 1987).  See also Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1277 (Dec. 1998) (citing Helen Mining Company, 10 FMSHRC 1672, 1674
(Dec. 1988).

B.     30 C.F.R. § 75.370(a)(1) – Mine ventilation
plans; submission and approval

Section 75.370(a)(1)
requires operators to develop and follow an approved ventilation plan that is designed
to control methane and respirable dust, and that is suitable to the mine's
conditions and the mining system used.  30 C.F.R. § 75.370(a)(1).  The terms of
an approved ventilation plan are enforceable as mandatory standards under the
Act.  Zeigler Coal Co., Kleppe, 536 F.2d 398 (D.C. Cir. 1976); see
also Peabody Coal Co., 16 FMSHRC 2199, 2203 (Nov. 1994) (affirming
ALJ's conclusion that a ventilation plan is violated when an operator does not
follow its specific terms).  

C.    30 C.F.R. § 75.604(b) – Permanent splicing
of trailing cables

Section 75.604(b)
requires that when permanent splices in trailing cables are made, they shall be
effectively insulated and sealed so as to exclude moisture.  30 C.F.R. §
75.604(b); see e.g., Black Beauty Coal Co., 36 FMSHRC 1821, 1858
( Mar. 2014) (ALJ) (“Assuming the continuation of normal mining operations, it
was reasonably likely that the splice would be further degraded, moisture would
get into the splice, and an injury of a reasonably serious nature or a fatality
would result.”); see U.S. Steel Mining Co., 6 FMSHRC 1573 (July
1984) (recognizing that a tear in the outer jacket of a cable significantly
compromises the cable's protective function); see also Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1286 (Dec. 1998) (holding there is a
danger of electrocution even if no copper wires are exposed).

D.    Gravity

The gravity
penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is
often viewed in terms of the seriousness of the violation.”  Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone
Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr.
1987)).  The seriousness of a violation can be examined by looking at the
importance of the standard violated and the operator’s conduct with respect to
that standard, in the context of the Mine Act’s purpose of limiting violations
and protecting the safety and health of miners.  See e.g., Harlan
Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). 

The gravity
analysis focuses on factors such as the likelihood of an injury, the severity
of an injury, and the number of miners potentially injured.  The
Commission has recognized that an assessment of the likelihood of injury is to
be made assuming continued normal mining operations, without abatement of the
violation.  U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

E.     Significant and Substantial (S&S)

A violation is
properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature.”  Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 
The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation.  Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec.
1987).  The Secretary bears the burden of proving all elements of a citation by
a preponderance of the evidence.  In re: Contests of Respirable Dust Sample
Alteration Citations: Keystone Mining Corp., 17 FMSHRC 1819, 1838 (Nov.
1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter Resources,
Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ) (“The Secretary’s burden is to prove
the violations and related allegations, e.g., gravity and negligence, by a preponderance
of the evidence.”)

In Mathies Coal
Co., the Commission established the standard for determining whether a
violation was S&S:

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

6 FMSHRC 1, 3-4 (Jan.
1984).

The third element of
the Mathies test often presents difficulty when determining whether a
violation is S&S.  In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125,
1129 (Aug. 1985), the Commission provided additional guidance:  [T]he third
element of the Mathies formula “requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in
which there is an injury.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC
1834, 1836 (Aug. 1984)).  The Secretary, however, “need not prove a reasonable
likelihood that the violation itself will cause injury.”  Cumberland Coal
Res., 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and
PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010)).  Further, the
Commission has found that “the absence of an injury-producing event when a
cited practice has occurred does not preclude a determination of S&S.”  Id.
(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005)); Blue Bayou
Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).  The S&S evaluation
also considers the length of time that the violative condition existed prior to
the citation, and the time it would have existed if normal mining operations
had continued.  Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).

F.     Negligence

Negligence
is not defined in the Mine Act. The Commission has provided guidance for making
the negligence determination in A. H. Smith Stone Co., stating that:

Each
mandatory standard thus carries with it an accompanying duty of care to avoid
violations of the standard, and an operator’s failure to satisfy the
appropriate duty can lead to a finding of negligence if a violation of the
standard occurred.  In this type of case, we look to such considerations as the
foreseeability of the miner’s conduct, the risks involved, and the operator’s
supervising, training, and disciplining of its employees to prevent violations
of the standard in issue.

5 FMSHRC 13, 15 (Jan.
1983) (citations omitted).   In determining whether an operator meets its duty
of care under the cited standard, the Commission considers what actions would
have been taken under the same or similar circumstances by a reasonably prudent
person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.  See generally U.S. Steel Corp., 6
FMSHRC 1908, 1910 (Aug. 1984).   See also JWR Res. 36 FMSHRC
1972, 1975, 1976-77 (Aug. 2014) (requiring Secretary to show that operator
failed to take specific action required by standard violated); Spartan
Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) (negligence inquiry
circumscribed by scope of duties imposed by regulation violated). 

The
Mine Act imposes a high standard of care on foremen and supervisors.  Midwest
Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman … is
held to a high standard of care”)); see also Capitol Cement Corp., 21
FMSHRC 883, 892-93 (Aug. 1999) (“Managers and supervisors in high positions
must set an example for all supervisory and nonsupervisory miners working under
their direction, ” quoting Wilmot Mining Co., 9 FMSHRC 684, 688
(Apr. 1987); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995)
(heightened standard of care required of section foreman and mine
superintendent).

Although
MSHA’s regulations regarding negligence are not binding on the Commission, see
Wade Sand & Gravel Co., _ FMSHRC , slip op. at 4 (Sept. 16,
2015), MSHA defines negligence by regulation in the civil penalty context as follows: 

Negligence
is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm.   Under the Mine Act, an operator is held to a high standard of care.  A
mine operator is required to be on the alert for conditions and practices in
the mine that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices.   The failure to
exercise a high standard of care constitutes negligence. The negligence
criterion assigns penalty points based on the degree to which the operator
failed to exercise a high standard of care,  When applying this criterion, MSHA
considers mitigating circumstances which may include, but are not limited to,
actions taken by the operator to prevent or correct hazardous conditions or
practices. . . .

30 C.F.R. § 100.3(d).  
Thus, mitigation is something the operator does affirmatively, with knowledge
of the potential hazard being mitigated, and that tends to reduce the
likelihood of an injury to a miner.  This includes actions taken by the
operator to prevent or correct hazardous conditions.  30 C.F.R. § 100.3(d).   The
level of negligence is properly designated as high when “[t]he operator knew or
should have known of the violative condition or practice, and there are no mitigating
circumstances.”  30 C.F.R. § 100.3, Table X.  The level of negligence is
properly designated as moderate when “[t]he operator knew or should have known
of the violative condition or practice, but there are mitigating
circumstances.”  Id.  The level of negligence is properly designated as low when
there are considerable mitigating circumstances surrounding the
violation.  Id. (emphasis added).   

Recently,
the Commission held that Commission judges are not required to apply the level-of-negligence
definitions in Part 100 and may evaluate negligence from the starting
point of a traditional negligence analysis rather than from the Part 100
definitions.   See Brody Mining, LLC, ___ FMSHRC ___, slip op. at 13
(Aug. 25, 2015).  Moreover, because Commission judges are not bound by the
definitions in Part 100 when considering an operator's negligence, they are not
limited to a specific evaluation of potential mitigating circumstances, and may
find “high negligence,” in spite of mitigating circumstances, or moderate negligence,
without identifying mitigating circumstances.   Id.   In this regard,
the gravamen of high negligence is “an aggravated lack of care that is more
than ordinary negligence.” Id., citing Topper Coal Co., 20 FMSHRC
344, 350 (Apr. 1998).   Thus, in making a negligence determination, a
Commission judge is not limited to an evaluation of allegedly “mitigating”
circumstances, and instead may consider the totality of the circumstances
holistically.  Under such an analysis, an operator is negligent if it fails to
meet the requisite high standard of care under the Mine Act.  Id.

G.    Penalty Assessment

The Act requires that
the Commission consider the following statutory criteria when assessing a civil
penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty to the size of the business; (3) the operator’s
negligence; (4) the operator’s ability to stay in business; (5) the gravity of
the violation; and (6) any good-faith compliance after notice of the
violation.  Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May
2000).  The Commission is not required to give equal weight to each of the
criteria, but must provide an explanation for any substantial divergence from
the proposed penalty based on such criteria.  Spartan Mining Co., 30
FMSHRC 699, 723 (Aug. 2008).

As I discussed in my
final Big Ridge decision, in an effort to avoid the appearance of
arbitrariness, I look to the Secretary’s penalty regulations and assessment
formula as a reference point that provides useful guidance when assessing a
civil penalty.  Big Ridge Inc., 36 FMSHRC 1677, 1681-82 (July 2014) (ALJ); see
also Wade Sand & Gravel, supra, slip op. at 7, n. 1 (Chairman
Jordan and Commissioner Nakamura concurring).  See also Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945) (holding agency’s
interpretation of its own regulation should be given controlling weight unless
it is plainly erroneous or inconsistent with the regulation).  This formula is not binding, but operates as a
lodestar, since factors involved in a violation, such as the level of
negligence, may fall on a continuum rather than fit neatly into one of five
gradations.  Unique aggravating or mitigating circumstances will be taken into
account and may call for higher or lower penalties that diverge from this
paradigm.  My independent penalty assessment analysis applies to each of the
six citations at issue.

IV.       Findings
of Fact and Legal Analysis

A.  General Background

The Pattiki Mine, I.D. No.
11-03058, is operated by White County Coal, LLC and is located in White County
near Carmi, Illinois.  Tr. 226-27.  The
Pattiki Mine liberates enough methane to be considered a “gassy” mine, and
therefore undergoes five-day spot inspections by MSHA.  Tr. 226-27.   White County mines coal from the Springfield and
Herrin seams that are prevalent throughout Southern Illinois and Indiana.  Id. 
Coal is mined on two shifts daily, five days a week, with an annual production
of more than 2,000,000 tons.  P. Ex. 1.  The first and second shifts operate
from 7:00 a.m. to 3:00 p.m. and from 3:00 p.m. to 11:00 p.m., respectively.  Tr.
58, 110, 167.  The third shift conducts maintenance from 11:00 p.m. until 7:00
a.m.  Major repairs are conducted during third shift.  Tr. 132.

The six citations litigated
at hearing were issued by two inspectors on four different calendar days.  P.
Exs. 2, 4, 6, 8, 10-11.  Five of the citations were issued during EO1 regular
health and safety inspections, and one citation was issued during an EO8
non-injury accident investigation for a reported roof fall.  Id., P. Ex.

4.  Respondent concedes that it violated the mandatory safety standards set
forth in each citation, but takes issue with the gravity and negligence determinations
in Citation Nos. 8451616, 8449462, 8449464, and 8451627.  R. Br. 26, 38, 46. 
Respondent disputes only the negligence determinations in Citation Nos. 8451620
and 8451626.  R. Br. 37, 46. 

B.   Findings of Fact for Ventilation Citation
No. 8451616

On August 21, 2013,
at 10:00 a.m., MSHA inspector Chad Lampley issued
Citation No. 8451616 alleging a violation of 30 C.F.R § 75.370(a)(1) because
Respondent failed to maintain airflow in the proper direction along the unit
No. 3 1st belt line in violation of the approved ventilation plan.[4]  The cited regulation provides:  “The operator
shall develop and follow a ventilation plan approved by the district manager. 
The plan shall be designed to control methane and respirable dust and shall be
suitable to the conditions and mining system at the mine.” 30 C.F.R. § 75.370.

The Citation states:

The operator did not
comply with [the] approved ventilation plan on Unit #3.  When checked with
chemical smoke, air along the Unit #3 and Unit #3 1st belt conveyor was not
moving in the proper direction.  Directional movement was tested at multiple
locations along both conveyor belts, resulting in outby movement.  The
operators [sic] approved ventilation plan depicts air travel in the inby
direction when using a return stopping line belt vent.  A return line vent is
present at crosscut #6.

P. Ex. 2.

Lampley determined
that an injury or illness was reasonably likely to occur, that the injury could
reasonably result in lost workdays or restricted duty, that two people were
affected, and that the Respondent’s negligence was moderate.  Id.  The
Secretary proposed a civil penalty in the amount of $1,657.  P. Ex. 18.

Lampley designated Citation
No. 8451616 as significant
and substantial (“S&S”) primarily because he had written Citation No. 8451615
as an S&S violation involving multiple
accumulations in contact with the moving Unit #3 1st belt
conveyor that were reasonably likely
to result in a lost workdays or restricted duty injury to two persons as a
result of moderate negligence.  Tr. 258-60; see P. Ex. 22.  In
settlement, Respondent accepted Citation No. 8451615, as
written, thereby admitting the violation.   ALJ Ex. 1. 

Respondent contends
that the S&S designation for Citation No. 8451616 was improper because Petitioner has not proven the
third Mathies element as redundant safety measures were in place.  
Respondent characterizes the hazard contributed to by the violation as “delayed
notification of a fire on the belt line.”  R. Br. 26.  Petitioner counters that
exposure to smoke from a fire is the hazard contributed to by the violation,
which will result in an injury.  Tr. 299, 483; P. Br. 26.  Respondent argues
none-the-less, that carbon monoxide (“CO”) sensors in place at the time of the
citation would detect a fire, regardless of placement and airflow.  R. Br. 27. 
Furthermore, Respondent asserts that the moderate negligence determination
should be reduced to low negligence because considerable mitigating
circumstances were present at the time the citation was issued.  R. Br. 33.

The record established that White County changed mining
direction, and conducted a belt move “a couple days before” Citation Nos.
8451615 and 8451616 were issued.  Tr. 209.  The change in location and
direction of mining did not allow enough room for White County to emplace the
return belt vent regulator as approved in the ventilation plan and map.  Tr.
277, 282; P. Exs. 3, 15.[5]  The return belt
vent regulator was positioned to move air inby, but was actually moving air
outby.  Tr. 267-68; P. Ex. 3 at 11.  An intake air belt vent would have been
appropriate for the direction that the air was moving, and would have complied
with the ventilation plan.  Id.  Alternatively, White County could have
moved the location of the regulator to the intake side of the belt.  P. Ex. 14
at 41-43. 

After
conducting the belt move, White County installed additional check curtains
between entries 5 and 6, and between cross-cuts 6, 7, and 8.  Tr. 277.  These
curtains were not permitted by the ventilation plan.  Id.  The
unauthorized check curtains combined with the improper location of the return
belt vent regulator caused the airflow to course in the wrong direction.  Tr.
277-79.  Lampley credited White County for not deliberately causing the reverse
airflow because the conditions resulted from the change in mining direction. 
Tr. 279, 282.

Less than two hours before issuing Citation No. 8451616,
Lampley observed three distinct areas of accumulations along the same belt
line.  P. Ex. 22.  Citation No. 8451615 states:

Accumulations of loose coal and coal
fines are present along the Unit #3 1st belt conveyor off the 9th 48. 
Accumulations are present in multiple areas along the belt, and in contact with
the moving belt at crosscut #9 and crosscut #4.  Accumulations of loose coal
measuring 9 feet in length, 4 feet in width and 2 feet in height, are present
at the crosscut #9 transfer point.  Accumulations of dry black coal fines are
in contact with a turning roller at crosscut #4.  Piles of fines under bottom
rollers are present between crosscuts #2 and #3.  A pile of coal fines are [sic]
present under the head pulley. 

Id. 

1. S&S
   Analysis

Since
White County concedes the first, second, and fourth Mathies elements for
Citation No. 8451616, my analysis focuses on the third Mathies element. 
R. Br. 26. 

As noted, Citation No. 8451615 was settled as an S&S prior to
hearing.  ALJ Ex. 1; Tr. 534, 615.  Respondent admitted this violation per
paragraph 11 of the Motion to Approve Partial Settlement and Order Payment.   Lampley
determined that the observed accumulations that had been cited in Citation No.
8451615 were in contact with the belt line and therefore constituted “a
friction ignition source.”  Tr. 409; P. Ex. 22.   Thus, Citation No. 8451615 is a crucial link for
Petitioner’s S&S determination with respect to Citation No. 8451616. 

The accumulations cited in Citation No. 8451615 are
significant because the observed accumulations were upwind of the emplaced carbon
monoxide (“CO”) sensors required by the ventilation plan.  Tr. 211.  The Matrix
S1000 CO sensors that White County utilizes are required to be placed downwind
of likely ignition sources.  Tr. 603; 30 C.F.R. § 75.1103-4.  Placing CO
sensors downwind ensures that products of combustion are transported to the
sensor.  Tr. 290.  Fifty feet per minute of air movement sufficiently allows the
air to transmit particles of combustion or CO to the sensors along the
beltline.  Tr. 280.  Belt drives, tail pulleys, take-ups, section loading
points and transfer points are likely ignition areas that require CO sensor
placement to be less than 100 feet downwind.  Tr. 292; 30 C.F.R. § 75.1103-4(a)(1). 
Misplaced sensors can cause a delay in activation, which results in miners
being exposed to smoke for longer than necessary in the event of a fire.  Tr.
291-92.  Exposure to smoke, exacerbated by a delay in notification, is reasonably
likely to cause serious injury.  American Coal Co., 35 FMSHRC 2208, 2265
(July 2013) (ALJ).  Thus, I find the Secretary has established that the
violation in Citation No. 8451616 contributed to a smoke hazard in the event of
a fire that was reasonably likely to result in a serious lost-time injury as a
result of the accumulations found to be S&S in Citation No. 8451615.   Accordingly,
all four elements of the Mathies test have been satisfied and the
violation cited in Citation No. 8451616 was properly designated S&S.

2. Negligence
   Analysis

White County miner, Patrick Yates, was working on the
ventilation system prior to Lampley’s arrival on the belt line.  Tr. 425; R.
Ex. 11.[6]  Yates took measurements
and determined that he had more intake than return air.  Id.  This
signaled that something was wrong.  Id.  Yates told Lampley that he made
the ventilation changes “last night,” on the second shift.  Tr. 426.  When
questioning unidentified miners at the cited location, Lampley was told that
the curtains, which contributed to the outby airflow, were hung “the night
before.”  Tr. 304.  Lampley further observed the dates, times, and initials
(“DTIs”) of the previous on-shift examiner, who examined the belt line prior to
Lampley’s issuance of Citation No. 8451616.  Tr. 303. 

I find that the
curtains were improperly placed on August 20, 2013, sometime between 3:00 p.m.
and 11:00 p.m., towards the end of the second production shift.  On-shift
examinations were required prior to the end of the second shift at 11:00 p.m.,
and a pre-shift examination was required prior to the beginning of the first
production shift at 7:00 a.m.   Respondent adduced no evidence that the
violation was recorded and rectified.   Under the best case scenario for
Respondent, the cited condition existed for at least three hours during the
first production shift before the citation was issued at 10 a.m.   See
P. Ex. 2. 

Additionally,
Respondent was aware that this particular area of the mine required more
attention than other areas.  Tr. 280; R. Ex. 11.  Jim
Connors, a White County safety representative, recorded Lampley’s comments on
an internal company document that states: “You guys no [sic] you are struggling
for air up here on this end of the mine.  You need to do something different. 
Pat they need to give you some help.  Talking to Pat Yates.”  R. Ex. 11. Thus, Respondent’s own exhibit establishes
that Respondent’s safety department was or should have been on greater alert
for ventilation conditions that would adversely affect the health or safety of
miners in the cited are of the mine.  R. Ex. 11; see also 30 C.F.R. §
100.3(d) stating that “an operator is held to a high standard of care” that
requires it to be on “alert for conditions or practices in the mine that affect
the safety or health of miners and to take steps necessary to correct or
prevent hazardous conditions or practices.”   

I conclude that White County knew or should have known of
the violation, and acted with moderate negligence in failing to execute its
ventilation plan.  I credit Lampley’s finding that the change in mining
direction the previous day created sufficient mitigating circumstances to
support a moderate negligence determination.  Tr. 303.   I affirm the moderate
negligence determination.  See Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135-36 (7th Cir. 1995) (ALJ did not abuse discretion in crediting
opinion of experienced inspector).

3.  Penalty Assessment

The
parties stipulated that Respondent is a large operator and that the originally
proposed penalty of $1,657 would not affect Respondent’s ability to remain in
business.  MSHA recognized Respondent’s good-faith compliance in abating the
citation.  I affirm the Secretary’s negligence and S&S determinations.  After
consideration of the penalty assessment criteria discussed earlier and set
forth in section 110(i) of the Act, I assess a $1,657 civil penalty against the
Respondent for Citation No. 8451616.

C.  Findings of Fact for Roof Control Citation
No. 8451620

On August 25, 2013,
Lampley conducted an EO8 roof fall investigation, and observed the conditions
that led to the alleged violation in Citation No. 8451620.  P. Ex. 13 at 11; P. Br. 31.  The next day, August 26,
2013, at 7:04 p.m., Lampley reduced Citation No. 8451620 to writing and alleged
a violation of 30 C.F.R. § 75.202(a) because there were multiple areas of
inadequately supported roof in the Nos. 8 and 9 entries in front of the No. 1
seal route.  Tr. 237-38.[7]  Citation No. 8451620 states:

The mine roof is not adequately
supported along the Route #1 seals.  The following conditions were observed in
the return parallel off the 6th 48.  When measured bolt spacing between the
coal rib and permanent support roof bolts are in excess of [sic] 5 foot in
locations along both sides of entry #8 between crosscuts #27 and #26. 
Supplemental support is needed in entry #9 from crosscut 28 to crosscut 23.  An
above anchorage fall is present in entry #9 crosscut #27 blocking access to the
Route 1 seal #1.  Multiple limestone thickness transitions are present through
this area, rib/pillar stresses, heaving of the floor/convergence observed on 6
x 6 posts in the area of seal #3.

P. Ex. 4.

Lampley determined
that an injury or illness was unlikely to occur, and that if an injury did
occur, it would reasonably result in fatality, with one person affected, as a
result of Respondent’s moderate negligence.  Id.  The Secretary proposed
a civil penalty in the amount of $1,304.  P. Ex. 18.

Respondent only
disputes the moderate negligence determination.   Respondent asserts that low
negligence is more appropriate because considerable mitigating circumstances
were present at the time the citation was issued.  R. Br. 33. 

The
record establishes that on August 25, 2013, at 2:00 a.m., White County mine
examiner, Cliff Goff, discovered a four-way intersection roof fall directly in
front of route No. 1, seal No. 1, entry No. 9.  Tr. 310, 502, 506.  White
County mine examiners travel entry No. 9 three times per day, once each shift. 
Tr. 322, 432. 

Goff
recorded the roof-fall discovery in the pre-shift examination book during his 3:00
a.m. to 7:00 a.m. pre-shift examination on August 25, 2013.  R. Ex. 7.  Goff
reported the roof fall to Greg Thompson, White County’s certified “fill-in”
mine manager, who then reported the fall to White County safety director, Josh
Bell.  Tr. 608-09.  Thompson reported to Bell that he “had airflow on both
sides [of the seal], wasn’t picking up excessive amount of methane or harmful
gas” from the seal.  Id.  Bell then notified MSHA field office
supervisor, Steve Miller, who issued a section 103(j) Order over the phone.  Id.;
Tr. 213, 236-37; P. Ex. 13 at 1.  After reporting the fall, Goff continued
his pre-shift inspection and utilized the weekly inspected return route to
travel to the back side of the fall.  Tr. 513. 

Miller verbally issued section 103(j) Order No. 8451619 on
August 25, 2013 at 5:15 a.m.  P. Ex. 13 at 11.  Miller issued the Order because
he was unsure whether the No. 1 seal was damaged or remained fully intact.  Tr.
310-11.  The Order was modified at 5:16 a.m. to allow White County to install
additional roof support in the three, unobstructed passageways in front of the
No. 1 seal.  Three additional crib supports were installed.  Tr. 322-25, 431, 547;
P. Ex. 13 at 2, 12.  Installing the additional supports required miners to
travel through entry No. 8.  Tr. 323, 548. 

Entry No. 8 was not on the examiner’s normal route.  The
operator is not required to monitor that entry.  Tr. 433, 517.  Entry No. 8 is
an active working, but was not required to be examined prior to issuance of the
103(j) Order.  Tr. 476-77, 479. 

At 5:17 a.m., the 103(j) Order was further modified to
allow White County to examine and pump water near the seal.  This modification
required Respondent to monitor air quality to ensure that the area was safe for
miners to work.  P. Ex. 13 at 13. 

The
No. 1 seal was one of five seals in an area that contains approximately 140 to 150
acres of sealed-off, irrespirable air, with 45% methane gas present in the
atmosphere.  Tr. 312; P. Ex. 13 at 5-7.  Air flowing through the area nearest to
the first supplemental support contained traces of methane gas.  Tr. 330.  Thus,
MSHA’s number one priority was to determine whether the No. 1 seal had been
breached.  Tr. 331. 

Lampley arrived at the mine on August 25, 2013 at
approximately 9:20 a.m.  He notified White County of his arrival, and modified
the section 103(j) Order to a section 103(k) Order.  Tr. 307; P. Ex. 13 at 14. 
Lampley then inspected the roof fall.  Tr. 236.  He observed eight to 10 feet
of rock covering the entire intersection.  Tr. 371.  Lampley then traveled
through the No. 8 entry to observe all sides of the roof fall.  P. Ex. 13 at 3.

With regard to the conditions cited in Citation No. 8451620,
Lampley first observed “some roof bolts” exceeding the allowed distances from
the pillar in the No. 8 entry at cross cuts 26 and 27.  Tr. 336, 338; P. Ex. 13
at 5.  Roof pressure on the pillars, as a result of the roof fall, caused rib
sloughage in the No. 8 entry, which subsequently resulted in roof-bolt spacing outside
of allowable tolerances.  Tr. 335-36.  Lampley determined
it could take “a couple of years” for the roof bolts in entry No. 8 to
deteriorate to their cited condition.  Tr. 336.   Lampley denied White County assistant safety director
Jay Kittinger’s immediate offer to install extra supports and abate the roof-bolt
spacing issue.  Tr. 435, 484, 542.[8]  Kittinger noted that “[o]ur examiners have been
allowed to travel through this area over 24 hours before the citation was
written.”  R. Ex. 10 at 2.

Lampley testified that he had authority to allow White
County to install additional supports, but he did not want to further modify
the 103(k) Order without “plans in place” because he was unsure whether the
roof fall had breached the No. 1 seal.  Tr. 436.  Lampley requested
Respondent’s air sample readings, but was given inaccurate data.  Tr. 315, P.
Ex. 13 at 8.  Lampley then asked for the air sample data that Respondent had recorded
in the bound record book, which was more accurate.  Tr. 316, P. Ex. 13 at 9. 

Lampley balanced the pros and cons of miners installing
supplemental support against the risk of contact with noxious air from a
possible seal breach.  Tr. 437.  All personnel underground carry handheld
detectors designed to monitor and alert the user to dangerous conditions in the
atmosphere.  Tr. 332.  As noted, however, air readings had already been taken,
and Respondent determined that there was not an air-quality hazard in the area
around the roof fall, albeit after providing incorrect data to Lampley.  Tr.
438-39.  Additionally, a seal-monitoring station was set up in the No. 8 entry,
to monitor air quality from around the fall.  Tr. 438-39, 544. 

Lampley next observed abnormal sloughage from a pillar corner
near the seal No. 3 entry in cross cut 25.  Tr. 339.  Lampley noted that cap
blanks installed on the tops of rib props were compressed and broken, which indicated
that they were taking weight from the roof.  Tr. 362.[9]  Other six-by-six rib
props were bowed and showed signs of taking weight.  Id.  Also, the floor
heaved in this location.  Tr. 339.[10]  Lampley observed
several pre-existing props in front of the entry to seal No. 5, which showed signs
of breakage and that “the area was converging some.”  Tr. 346-47.  Lampley further
observed several additional props taking weight throughout the entire length of
the No. 9 entry.  Tr. 362.  

Lampley determined that additional support should have been
emplaced in the intersections based upon his observations made during the roof-fall
investigation.  Tr. 344.  Lampley considered the close proximity of a prior intersection
failure along the same parallel, and the fact that the route down entry No. 9
was traveled three times a day.  Tr. 344, 366; P. Ex. 13 at 6.  Lampley also determined that “[o]ther things
was [sic] going on, that roof conditions were deteriorating, so at that point,
additional support was needed.”  Tr. 370.  For example, quick
transitions of limestone were evident from visual inspection, along with differences
in the length of previously installed roof bolts.  Tr. 365; P. Ex. 4.[11]  Lampley
credibly testified that the roof bolt operator would have had to “detect that
transition quickly enough and make adjustments accordingly to the permanent
support that he’s putting in place.”  Tr. 369.  Notably, however, the permanent supports down entry
No. 9 were properly installed, and still in place.  Tr. 370. 

Lampley’s analysis of
the conditions near the seal No. 3 floor heave is also persuasive.  Lampley
testified that the signs of stress that he had observed had likely existed for
5 days to a week, that floor heaving takes several days to several weeks to
occur, and that the heave would continually get worse over time depending on roof
stride above and the soft clay below.  Tr. 366. 

Lampley determined that
the heaving and smashed props occurred over a period of time, “at least several
weeks,” but could change over merely “a couple of days.”  Tr. 341. 
Additionally, the presence of dust from the mine atmosphere that had accumulated
on the broken props led Lampley to conclude that this condition existed for a
period of time prior to the roof fall.  Tr. 450-51, 475.  Lampley, however,
failed to record the presence of dust in his notes.  Tr. 450-51.  Lampley
conceded the possibility that the dust from the roof fall likely accumulated on
the props, and gave the appearance that the props had been broken for longer
than they actually had been.  Tr. 453. 

Lampley recorded
“considerable mitigating circumstances, not usual travel” in his notes, and
confirmed this notation in testimony at trial.  Tr. 444, 486; P. Ex. 5 at 4.  However,
Lampley testified that the cited area could have been written as high
negligence or low negligence, so moderate negligence was a good balance.  Tr.
487. 

1.  Negligence Analysis

I affirm inspector Lampley’s moderate negligence determination. 
Respondent should have known of the size, location, and conditions observed by
Lampley at the floor heave area alone.  This entryway is inspected three times
daily.  Additionally, the presence of highly-deteriorated roof bolts and
smashed cribs and props reinforce my finding.  Although the roof fall

constitutes a
mitigating circumstance, I find that Respondent knew or
should have known of the adjacent violation, and acted with moderate negligence
by not adequately supporting the roof, face and ribs of areas where persons
work or travel.  30 C.F.R. § 75.202(a).    Accordingly, a moderate negligence determination is appropriate
here. 

2.  Penalty Assessment

As noted
previously, Respondent is a large operator, and the originally proposed penalty
of $1,304 would not affect Respondent’s ability to remain in business.  MSHA
recognized Respondent’s good-faith compliance in abating the citation.  I have
found that Respondent acted with moderate negligence.   After
consideration of the penalty assessment criteria discussed earlier and set
forth in section 110(i) of the Act, I assess a $1,304 civil penalty against the Respondent.

D.  Findings of Fact for Roof Control Citation
No. 8451626

On September 10, 2013
at 11:20 a.m., Lampley issued Citation No. 8451626 alleging a violation of 30
C.F.R. § 75.202(a) because he observed an area of inadequately supported roof
in entry No. 1 of unit No. 2’s right side return.  Tr. 372-373, P. Ex. 6.  The
Citation states:

The mine roof is not
adequately supported at crosscut 48, entry #1 of unit Unit #2’s right side
return.  Adverse conditions are present in the form of slips/crack and
considerable amounts of water coming from the roof in the affected
intersection.  Visual signs of inadequate support are present in the form of
curling roof bolt bearing plates, corner pillar stresses, bagging of the mine
roof, and compression of the single 30 inch four point crib built in the center
of the intersection.  This area is traveled weekly by the examiner.

P. Ex. 6.

Lampley
determined that an injury or illness was unlikely to occur, that if an injury
did occur it would be fatal, that one person was affected, and that the
Respondent’s negligence was moderate.  Id.  Lampley expected a roof fall
to occur if the conditions persisted, but determined that an injury was
unlikely because the cited area was only traveled once per week.  Tr. 375-76.  Lampley
determined that only the examiner would be affected by the violation.  Tr. 378. 
The Secretary proposed a civil penalty of $1,304.  P. Ex. 18. 

Respondent only
disputes the moderate negligence determination.  Respondent contends that a low
negligence determination is more appropriate because it had no way of knowing
that the cited condition existed.  R. Br. 46.  

Respondent’s
examination book indicated that the required weekly inspection was conducted on
September 4, 2013.  Tr. 455-56, R. Ex. 13.  The next required examination was due
the day after Lampley cited the Respondent.  Tr. 456.  Lampley testified that
the cited conditions would continue to deteriorate, and lead to a “massive
intersection failure.”  Tr. 215.  Respondent’s mine foreman, however, testified
that an intersection failure was not likely.  Tr. 578; R. Ex. 13.

Lampley
observed 84-inch roof bolts, the primary roof support, properly installed.  Tr.
215, 460.  He also observed a single crib in the middle of the intersection that
had taken “considerable” weight.  Tr. 373-74.  Lampley noted that the crib was
located in a recently mined area, and that the environmental conditions “were
changing quickly.”  Id.  Lampley also observed water as it streamed from
a large crack in the roof.  Id.  Finally, Lampley observed the roof
“bagging down,” and “curled” roof bolt plates, which he concluded were the result
of roof pressure on the 84-inch bolts.  Id.

Examiners
travel the cited area weekly to conduct inspections.  Tr. 216, 481, 579. 
Respondent contends that it had no way of knowing about the cited conditions
since the last examination.  Tr. 218-19, R. Br. 43.  Lampley observed no dust
on top of “some rib sloughage,” which leads Respondent to posit that the cited
conditions occurred after the last inspection.  Tr. 457-58.  Lampley conceded
at hearing that if the cited conditions developed after the last examination,
then Respondent would have had no way of knowing, nor should it have known, of
the cited conditions.  Tr. 458. 

Lampley
credited Respondent for its attempt to mitigate the deteriorating conditions by
installing the supplemental crib.  Id.  He testified, however, that
Respondent did not do enough to mitigate “bad roof conditions.”  Id. 
Lampley also testified that Respondent knew of the adverse conditions for three
days or more because it stopped mining the cited area several cross-cuts out. 
Tr. 377.

Respondent
addressed the conditions that Lampley observed and immediately “took care of [them].” 
Tr. 581, R. Ex. 13.  Respondent added seven cribs to abate and terminate the
violation.  Tr. 398, P. Ex. 15 at 6.

1.  Negligence Analysis

The existence
of the supplemental roof support and still functioning primary roof support,
combined with the rapid nature with which these conditions could develop, and
the mine’s evidence that no hazardous conditions were present in the last
examination, support the Respondent’s position regarding low negligence.   Respondent,
however,  stopped mining the area three days earlier.   Also, the presence of
the supplemental supports leads to the conclusion that Respondent knew or
should have known of the rapidly deteriorating roof conditions, but did not make
sufficient efforts to mitigate the problem, particularly since seven
additional cribs were necessary to abate and terminate the violation only three
days after mining ceased.  Accordingly,
I affirm inspector Lampley’s determination that Respondent was moderately
negligent by not adequately supporting the roof, face and ribs of areas where
persons work or travel.  30 C.F.R. § 75.202(a).             

2.  Penalty Assessment

The parties
stipulated that the originally proposed penalty of $1,304 would not affect the Respondent’s
ability to remain in business.  MSHA recognized Respondent’s good-faith
compliance in abating the citation.  I have found that Respondent’s negligence
was moderate.   After consideration of the penalty assessment criteria discussed
earlier and set forth in section 110(i) of the Act, I assess a $1,304 civil penalty against the
Respondent.

E.  Findings of Fact for Roof Control Citation
No. 8451627

With
regard to roof control Citation No. 8451627, the record establishes that on September 7, 2013, four
days before the citation was written, Respondent conducted an examination of
the cited parallel air course and did not record any hazards.  Tr. 588, R. Ex.

14.  The parallel air course is traveled weekly by examiners.  Tr. 216, 395,
481, 582.  Lampley could not recall whether Respondent recorded any hazards in
the weekly examination record book.  Tr. 396.  Respondent, however, had previously
flagged the area to prevent travel.  Tr. 391, 473; P. Ex. 9 at 1, 3.[12]

On
September 11, 2013, inspector Lampley issued Citation No. 8451627 alleging a
violation of 30 C.F.R. § 75.202(a) because he observed an area of inadequately
supported roof in entry No. 7 on the 6th 48 parallel intake.  The Citation states:

The mine roof is not
adequately supported at crosscut 35, entry #7 of the 6th 48A parallel intake
(left side intake).  Three loose permanent support roof bolts are present
leaving an unsupported area that measured 12 feet by 7 feet.  Loose rock and
unconsolidated material are present at the affected area.  After this citation
was issued the area was flagged off to prevent travel.

P. Ex. 8.

Lampley
designated the citation S&S because he determined that the primary roof
support was failing and loose rock and unconsolidated material were hanging
from broken wire mesh immediately above the examiner’s route.  Tr. 379-380; P.
Ex. 9.  Lampley determined that an injury or illness was reasonably likely to
occur, that if an injury did occur it would result in lost workdays or restricted
duty, that one person was affected, and that the Respondent’s negligence was
moderate.  Id.  The Secretary proposed a civil penalty in the amount of
$1,944.  P. Ex. 18. 

Respondent
argues that the Secretary has not proven the third Mathies element, and
therefore the S&S designation should be removed.  R. Br. 47.  Specifically,
Respondent argues that the gravity of the injury or
illness in Citation No. 8451627 should be modified from reasonably likely to
unlikely based on alleged similarities
to Citation Nos. 8451626, which was so designated.    Respondent also contends
that the moderate negligence determination is inappropriate because the
operator had no way of knowing about the cited conditions prior to the next required
examination.  R. Br. 45.

The primary
roof support no longer functioned as approved, unlike the conditions cited in in
Citation No. 8451626.  Tr. 215.  Accordingly, Lampley believed that it was more
likely for loose rock or unconsolidated material to fall on a miner because of
the unconsolidated nature of the roof.  Tr. 215-16.  Lampley also observed
rusted, screen-wire mesh,[13] a rusted primary-support
roof bolt protruding from the ceiling by 16 to 18 inches, and multiple layers
of rock that had fallen onto the ground.  Tr. 380-82, P. Ex. 9.

Respondent’s
mine foreman, Roger Adams, admitted the damaged wire mesh was obvious.  Tr.

582.  Lampley photographed the fallen rock “bagging and hanging” from the
rusted and partially broken skin control.  Tr. 383, P. Ex. 9.  A person of
average height would have to duck to avoid the damaged wire mesh.  Tr. 490.  The
supplemental wire mesh no longer controlled the roof, as designed.  Tr. 381,
582.  Lampley credibly testified that he should not have been able to observe
the three roof bolts if they had been properly positioned.  Tr. 379, 381, 385. 

Wooden
props were spaced along the walkway approximately seven feet apart.  Tr. 382.  Marks
on the props indicated that Respondent had installed supplemental support, but
that additional rock had fallen afterwards.  Tr. 389.  The unsupported
area of roof is directly over the examiner’s walkway.  Tr. 385, 394; P. Ex. 15
at 40.  Fallen and unconsolidated rock already covered the walkway.  P. Ex. 9
at 3. 

Lampley testified
that rock in the walkway fell in multiple stages.  Tr. 383-84.  Rock sloughed
off the roof, and fell onto the mine floor.  Id.  Lampley deduced that
the rusty and muddy colored rock appeared “to have been there for a longer
period of time.”  Id.  Oxidation was present on rock that had fallen
previously.  Tr. 388-90, 470-72.  Lampley opined that the initial pile of rock fell
more than six days before his inspection.  Tr. 488.

The unsupported area
of roof should have been reported as a hazard because the conditions were
obvious and the roof was no longer supported by the permanent-support roof
bolts.  This was evident because the roof bolt bearing plates were no longer in
contact with the mine roof.  Tr. 392.  The area should have been reported as a section
75.202(a) hazard in the examiners book, but Respondent failed to do so.  Tr.
394.       

1.      The Reasonable Likelihood of Injury and
S&S Designations Were  Appropriate

Lampley properly
designated Citation No. 8451627 as S&S because the roof bolts performing
primary support no longer performed their approved function and Lampley observed
fallen rock substantial enough to injure a miner.  Tr. 393.  The primary roof
support no longer functioned, as approved.  Tr. 393.  Fallen rock was large
enough to seriously injure a person such as the examiner walking directly beneath
the inadequately supported roof.  P. Ex. 9.  Further, unconsolidated rock would
continue to fall, unless the cited conditions were abated.  Additionally, the
route had been flagged off by the Respondent prior to Lampely’s inspection.  Tr. 391, 473; P. Ex. 9 at 1, 3.  Based
on the preponderance of the evidence, I find it reasonably likely that unconsolidated
rock would continue to fall and result in a lost-work-days or restricted-duty
injury to an examiner as roof conditions deteriorated during normal mining
operations.   Big Ridge, Inc., 36 FMSHRC 1677, 1689 (June 2014) (ALJ).  Accordingly,
I affirm the citation, as written.  Citation No. 8451627 was correctly
designated S&S.

2.      Negligence Analysis

Lampley
reasoned that a moderate negligence designation was appropriate because he
observed sloughage throughout the entry.  Tr. 387-88.  Lampley testified that it
is the operator’s responsibility to be proactive and provide additional support
where necessary, especially in an area that is deteriorating and traveled only
once a week.  Id. I find Lampley’s reasoning
convincing and consonant with the spirit and intent of the Mine Act.  Further, I credit Lampley’s testimony that based on oxidation,
the initial pile of rock had fallen prior to the last examination. 

Thus, Respondent knew
of the deteriorating conditions because it previously flagged-off the area for
travel, and had installed supplemental support.  Although Respondent’s
installation of supplement support provides some mitigation, Respondent knew or
should have known that additional support was necessary based on previously
fallen rock.   Accordingly, I affirm the Secretary’s moderate negligence
determination.

3.      Penalty Assessment

As noted previously, Respondent is a large operator, and the
originally proposed penalty of $1,944 would not affect Respondent’s ability to
remain in business.  MSHA recognized Respondent’s good-faith compliance in
abating the citation.  I have affirmed the S&S and moderate negligence
designations.  After consideration of the penalty assessment criteria discussed
earlier and set forth in section 110(i) of the Act, I assess a $1,944 civil penalty against the
Respondent.

F.     General Background Concerning Inspector
Hudson’s Issuance of Citations Nos. 8449462 and 8449464

On September 5, 2013,
MSHA inspector Terry Hudson issued Citation Nos. 8449462 and 8449464 alleging
violations of 30 C.F.R. § 75.604(b) because he observed damaged splices on two
trailing cables, one on a shuttle car, and one on a roof bolter.[14]  The regulation
provides: “[w]hen permanent splices in trailing cables are made, they shall be:
. . . (b) [e]ffectively insulated and sealed so as to exclude moisture.”  30
C.F.R. § 75.604(b).

Respondent concedes the
S&S violation for both citations at issue, but disputes that the injury or
illness designation for each citation could reasonably be expected to be
fatal.  R. Br. 38.  Respondent further disputes Hudson’s designation that it
acted with moderate negligence regarding both citations.  Id.  The
Secretary proposed a civil penalty of $3,689 for each S&S violation.  P.
Ex. 18.

The Secretary argues
for application of the missing witness rule with respect to both Citation Nos.
8449462 and 8449464.  See Eagle Energy, Inc., 23 FMSHRC 1107, 1120 (Oct.
2001).  I decline to invoke such a presumption.  The Secretary could have requested
subpoenas for the “compulsory attendance of witnesses” at hearing, but did not
do so.  29 C.F.R. § 2700.60(a).

G.  Findings of Fact for Shuttle Car Trailing
Cable Citation No. 8449462

At 11:30
a.m., on September 5, 2013,  Hudson issued Citation No. 8449462 pursuant to
section 104(a) of the Act for an alleged violation of mandatory safety standard
30 C.F.R. § 75.604(b), cited above.[15]  The Citation states:

The company #4067
Auxier Welding Shuttle Car, in use on the coal producing section Unit #3
MMU-013, had two splices in the trailing cable supplying 600 VDC to the machine
that were not effectively insulated and sealed so as to exclude moisture. The
outer wrap on the splices was open exposing the inner leads of the cable. One
of the openings measured approximately ¼ inch by 1 ½ inches and the other
measured approximately ¼ inch by ¼ inch.

P. Ex. 10.  

Hudson
testified that the blacked taped splices on the black cable were open, damaged
and readily apparent due to wear and tear during normal mining operations.  Tr.
32-33, 94.  Further, the area where the shuttle car was operating was damp and
wet.  Tr. 38-39. 

Hudson determined
that the violation was S&S because it was reasonably likely to lead to a
fatal injury, as a result of Respondent’s moderate negligence, with one miner affected. 
Id.  Specifically, Hudson testified that “I felt that it was reasonably
likely that if you come in contact with this 600-volt voltage that’s on this
cable, that it could cause a fatal shock, yes.”  Tr. 42. 

With regard to
likelihood of injury, Hudson’s notes state:

Likelyhood [sic] –
reasonably likely- The splices were not sealed to exclude moisture & the
mine floor is damp wet where this machines [sic] cable lays on the mine floor
during operation.  History of electrical shocks & fatalities due to elec.
shocks are from cable hazards similar to this hazard.  

P. Ex. 12, p. 18. 

With
regard to negligence, Hudson’s notes state:

Neg

• Mod- The heat from the cable has caused this hazard & not noticed.  

How long – A shift or longer – based on mining exp.

Who
knew – The car oper. and/or the person making the weekly check.  

P. Ex. 12, p. 18-19. 

Respondent contests
Hudson’s determination that a fatal injury could reasonably be expected to
occur, and that Respondent’s negligence was moderate.  R. Br. 38. 

As
noted, the day shift at Pattiki Mine begins at 7:00 a.m.  Tr. 85.  The shuttle
car takes approximately 40 minutes to arrive at its designated workstation.  Id. 
Hudson issued the citation at 11:30 a.m., which means that shuttle car #4067
was in use for less than four hours.  P. Ex. 10.  The shuttle car traveled
“probably a few hundred feet” between loads.  Tr. 37.  The record establishes
that the shuttle car trailing cable incurs normal “wear and tear” from
frictional contact with the ribs, as well as repeated winding on and off the
cable reel.  Tr. 32, 101.

Respondent
called assistant general manager, Joshua Bell, to testify generally about
Respondent’s standards book regarding personal protective equipment policies,
shuttle car per-operational and operational checks, and roof bolter
pre-operational and operational checks, although Bell did not know who the #
4067 shuttle car operator or his supervisor was on September 5, 2013.  Tr.
158-160; R. Exs. 1-3.  Bell also testified about Respondent’s permissibility
examination on the 4067 shuttle car on September 5, 2013 (R. Ex. 4) and on the
6096 roof bolter on August 30, 2013 (R. Ex. 5).   Tr. 167-171.   On cross
examination, however, it was established that Bell did not supervise the
permissibility checks and had no personal knowledge of the circumstances
surrounding them.  Tr. 173-74.  

Based
on R. Ex. 4, Bell testified that on the morning of September 5, 2013, during
the maintenance shift prior to issuance of Citation No. 8449462, respondent’s mechanic, Terry Adams, conducted a
weekly permissibility examination on the #4067 shuttle car and found and replaced a broken lens cover.  Tr. 168; R.
Ex. 4.  Adams did not testify.

Bell testified that permissibility
examinations are usually conducted on the maintenance shift.  Tr. 167.  They
require the entire trailing cable to be pulled off the reel and inspected.  Tr.

164.  Such examinations are conducted by a mechanic and countersigned by the
maintenance chief.  Tr. 141-42.  They are then reviewed by the individual
miner’s supervisor, the maintenance foreman, and the maintenance chief.  Id. 
Bell testified that Hudson did not cite Respondent for failure to conduct a
proper permissibility exam.  Tr. 176.  Hudson, however, candidly testified that
he was not aware whether Adams had performed a permissibility examination on
the #4067 shuttle car on the prior shift, or whether a pre-operational check
had been done by the operator.   Tr. 87-88.     

Hudson testified that
pre-operational examinations are required on shuttle cars.  Tr. 56-57; R. Ex.

2.  Operators inspect for damage to the trailing cable during these
examinations.  Id.  Hudson testified that the shuttle car operator
should notice excessive fraying, but may not notice small openings unless he
conducts a proper pre-operational examination.  Tr. 88. 

Spliced areas of the
cable, however, are weak spots and require extra vigilance to maintain in good
condition.  Tr. 31, 98.  Shuttle car operators must notify a foreman or
repairman to repair any damaged cable.  Tr. 102.  A qualified person must then
certify that a splice has been repaired correctly.  Id. 

As noted, Hudson
observed open splices that were not being properly maintained.  Tr. 29; P. Ex.

10.  The openings in the splice’s outer insulation were obvious to him,
although he testified on questioning from the undersigned that they might not
be obvious during operation of the machine.   Tr. 32-33, 45, 96.  No damage to
the inner insulated leads was observed.  Tr. 80. 

The #4067 shuttle car
operates via variable frequency drive, which means it rectifies 600 volts
direct current (“VDC”) to alternating current on the car.  Tr. 52.  Heat from
the reel causes damage to tape splice kits.  Tr. 51, 53-54.  Heat causes tape
splice kit adhesive to lose adhesive properties and “roll back” on the trailing
cable.  Tr. 129.  Based on his mining experience, Hudson credibly testified
that heat alone, from less than four hours of mining operations, would not
cause the conditions that he observed.  Tr. 86-87. 

I think that the – had
it been properly insulated and sealed at the start of that shift, then I would
think that it would take longer.  It takes more wear and tear to – for this
slice to be – receive the damage. 

As far as being open,
it’s hard for me to determine how long it was open, you know, it’s – as we’ve
talked, it’s an abrasive environment and it could – it could have been pulled
open on that night – and but I – as far as what caused it, I think that the – it
was the heat and abrasion over a longer period of time. 

Tr. 87.  In short, Hudson
testified that the damage was from wear and tear during normal mining
operations and existed for a shift or longer.  Tr. 32, 57, P. Ex. 12. P. 19. 

Respondent’s
maintenance foreman, David Baker, testified
that the Respondent “doesn’t have any trouble with heat,” because of the
shuttle car model and set-up utilized.  Tr. 129.  Baker’s testimony supports my
finding that the cited damage to the shuttle car trailing cable existed for
longer than the heat generated during one shift.

Baker abated the
violation.  Tr. 117-18.[16]  Baker cut out the
old, damaged splices and created new splices in the trailing cable.  Tr. 132-33,
135.  

1. A
   Fatal Injury Was Reasonably Likely to Occur

Higher
voltage generally equates to a greater likelihood of fatal shock.  Tr. 43.  Hudson
testified that contact with 600 volts of direct current was reasonably likely
to cause death.  Tr. 42; P. Ex. 10.  Based on his electrical training, Hudson
credibly testified that contact with amperage as low as 100 milliamps can cause
death due to heart fibrillation.  Tr. 43.[17]  The ground fault
protection on the shuttle car is set at 800 amps.  Tr. 43-44, 64.  Therefore, a
miner could be exposed to nearly 8,000 times the amperage that could cause
death due to heart fibrillation.  Tr. 44

Hudson credibly testified
that a fully insulated cable would effectively contain the electrical current,
but the copper leads could be damaged at any point along the cable regardless
of whether the outer jacket of the trailing cable was damaged.  Tr. 78, 120. 
Thus, visible bare copper leads are not required for exposure to an electrical
current.  Tr. 66-67.  Commission precedent directly supports this determination. 
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1286 (Dec. 1998).  In Harlan,
the Commission held that damage to only the outer jacket is sufficient to
support a finding of S&S.  This is so because “there's
no way of knowing [whether there are holes in the insulation surrounding the wire
within the cable].”  Harlan Cumberland Coal at 1286; cf. U.S. Steel,
6 FMSHRC 1573, 1574-75 (July 1984)(recognizing that a tear in the outer jacket
of a cable significantly compromises the cable's protective function).  Based on these facts, I conclude that under
continued normal mining operations, the violation contributed to a hazard that was
reasonably likely to result in a fatal injury.  Accordingly, I affirm Hudson’s
gravity determination, as written.  P. Ex. 10.

2. Negligence
   Analysis

I find that
Respondent was moderately negligent in failing to maintain the spliced areas of
the shuttle car trailing cable.  In the absence of testimony from Respondent’s

4067 shuttle car operator on September 5, 2013 or any other witness with

first-hand knowledge, I credit Hudson’s testimony based on his extensive
experience, that the damaged splices were obvious, caused by heat and abrasion,
and existed for more than one shift.  Accordingly, Respondent’s permissibility
examiner, Terry Adams, should have repaired the damaged splices in addition to
fixing the broken light lens.   Further, based on Respondent’s own
pre-operational procedures, it should have known of the damaged splices and
fixed them.   In addition, given the roof bolter trailing cable violation
discussed below, there was more than one violation of 30 C.F.R. § 75.604(b) on
the same day, and Respondent violated § 75.604(b) seven times in the 15 months
preceding the instant citation.  P. Ex. 1, p. 7-9.  Accordingly, I affirm Citation
No. 8449462, as written.

3. Penalty
   Assessment

Respondent
is a large operator.  The parties stipulated that the originally proposed
penalty of $3,689 will not affect Respondent’s ability to remain in business. 
MSHA recognized Respondent’s good-faith compliance in abating the citation.  I have
affirmed MSHA’s gravity and negligence determinations.  After consideration of
the penalty assessment criteria discussed earlier and set forth in section
110(i) of the Act, I assess a $3,689
civil penalty against the Respondent.

H.  Findings of Fact for Roof Bolter
Trailing Cable Citation No. 8449464

Assistant
mine manager Bell testified that that on August 30, 2013, a permissibility
examination was conducted on roof bolter #6096, and the examination record
indicates that examiner Terry Adams (TA) detected and remade a bad splice on
the roof bolter trailing cable.  Tr. 170-71, R. Ex. 5.  Bell further testified
that this was the last permissibility examination required prior to inspector
Hudson’s issuance of Citation No. 8449464 , and that another permissibility
examination was not required until after Hudson’s September 5, 2010
inspection.  Tr. 171. 

Permissibility
examination for roof bolters require that the entire cable to be pulled off the
reel and inspected.  Tr. 164.  Roof bolter operators are also required to
conduct pre-operational examinations, just like shuttle car operators.  Tr. 57,
161-62, R. Ex. 3.

On September 5, 2013, Hudson issued Citation No. 8449464
pursuant to section 104(a) of the Act for an alleged violation of mandatory
safety standard 30 C.F.R. § 75.604(b).  The Citation states:

The company #6096
Fletcher Roof Bolter, in use on the coal producing section Unit #3 MMU-003,
that had two splices in the trailing cable supplying 480 VAC to the machine
that were not effectively insulated and sealed so as to exclude moisture. The
outer wrap on the splices was open exposing the inner leads of the cable. One
of the openings measured approximately ½ inch by 1 ½ inches and the other
measured approximately ¼ inch by 2 inches.

P. Ex. 11.

Hudson determined
that the violation was S&S because it was reasonably likely to lead to a
fatal injury, as a result of Respondent’s moderate negligence, with one miner affected. 
Id.  Respondent concedes the S&S designation and only contests
Hudson’s determinations that a fatal injury could reasonably be expected to
occur and that Respondent’s negligence was moderate.  R. Br. 38. 

Hudson
discovered the opened splices on the roof bolter trailing cable shortly after
his inspection of the shuttle car trailing cable, which was at 11:30 a.m.  Tr.
83-84.  The roof bolter cable extends from a reel just like the shuttle car
cable.  Tr. 47.  The roof bolter trailing cable is slightly smaller in diameter
than the shuttle car trailing cable, but the openings that Hudson observed were
larger than the openings observed on the damaged shuttle car trailing cable. 
Tr. 47, 90.   Hudson did not observe
any damage to the inner insulated leads.  Tr. 68, 80.   Respondent removed and
replaced the outer wrap of the tape splice to abate the cited condition.  Tr.
68.  

Unlike
the shuttle car trailing cable, the roof bolter trailing cable is handled
frequently throughout the shift.  Tr. 48.   Hudson testified that during operation, damage is more likely to be
observed on the roof bolter trailing cable than on the shuttle car trailing
cable.  Tr. 96.  The roof bolter trailing cable is repetitively moved from the
ground, and hung on the ribs during operation.  Tr. 71.  Also, unlike the
shuttle car trailing cable, the roof bolter trailing cable does not travel as
extensively throughout the mine, but instead remains closer to the coal cutting
machine at the face.  Tr. 50.  Water is constantly being applied by the coal cutting
machine.  Id.  Thus, the roof bolter trailing cable is constantly
exposed to wet conditions.  Id.  Moisture between the inner and outer
layers of cable insulation allows the electrical current to track.  Tr. 39,

78.  The #6096 roof bolter was operating in a “damp, to wet” area of the mine. 
Tr. 50. 

Hudson
admitted that the openings in the damaged splices that allowed the opportunity
for moisture to penetrate the damaged outer jacket and reach the leads could
have occurred during the shift.   Tr. 97, 100, 205-06.  However, based on the
extent of heat deterioration and abrasive wear on the taped splices, his
thirty-two years of mining experience lead him to conclude that the condition had
deteriorated over a longer period of time.   Tr. 97, 99.      Hudson’s notes
regarding negligence state:

Neg – Mod – Heat,
abrasion & wear have caused the splice outer wrap to be in this cond. &
not noticed.

How long – A shift or
longer – hard to determine

Who Knew – The
operators and/or the person making the wkly chc.  

P. Ex. 12, p. 27; Tr.

70.   Further, Bell opined that the roof bolter trailing cable violation
would have existed for a longer period of time than the shuttle car trailing
cable violation.   Tr. 193.

1.  A Fatal Injury was Reasonably Likely
to Occur

Hudson credibly testified
it is reasonably likely that contact with 480 volts alternating current (“VAC”)
will cause death.  Tr. 47.  I take judicial notice that contact with 480 VAC has
caused death.[18]  I apply the same
analysis for the roof bolter trailing cable as I applied to the shuttle car
trailing cable in which I found that the violation contributed to an
electrocution hazard that was reasonably likely to result in a fatal injury.  I
emphasize that the roof bolter trailing cable had larger damaged areas, was
handled more frequently, and was operated in wet conditions that were more
extensive than the shuttle car trailing cable. 

Based on these facts,
I conclude that under continued normal mining operations, the violation contributed
to an electrocution hazard that was reasonably likely to result in a fatality. 
Therefore, I affirm Hudson’s gravity designation, as written.  P. Ex. 11.

2. Negligence
   Analysis

I find that
Respondent was moderately negligent in failing to maintain the spliced areas of
the roof bolter trailing cable.  I have credited Hudson’s testimony that
during operation of the roof bolter, damage is more likely to be observed on
the roof bolter trailing cable than on the shuttle car trailing cable.  Further,
the openings in the roof bolter trailing cable were larger than the shuttle car trailing cable openings.  
In the absence of testimony from Respondent’s # 6096 roof
bolter operator on September 5, 2013 or any other witness with first-hand
knowledge, I credit
Hudson’s judgment based on his extensive experience that the damaged splices were caused by heat and abrasion that likely exceeded
one shift.   Based on Respondent’s own pre-operational procedures, it should
have known of the damaged splices on the roof bolter trailing cable and fixed
them before Hudson cited them.  In addition, given the shuttle
car trailing cable violation discussed above, there was more than one violation
of 30 C.F.R. § 75.604(b) on the same day, and Respondent violated § 75.604(b)
seven times in the 15 months preceding the instant citation.  P. Ex. 1, p.
7-9.  Accordingly, I affirm the moderate
negligence determination.  

3. Penalty
   Assessment

Respondent
is a large operator.  The parties stipulated that the originally proposed
penalty of $3,689 will not affect Respondent’s ability to remain in business. 
MSHA recognized Respondent’s good-faith compliance in abating the citation.  I
have affirmed MSHA’s gravity and negligence determinations.  After
consideration of the penalty assessment criteria discussed earlier and set
forth in section 110(i) of the Act, I assess a $3,689 civil penalty against the
Respondent.

V.        Decision
Approving Settlement

As noted at
footnote 1, the parties filed a joint motion to approve settlement of 31 of the
37 citations at issue.  ALJ Ex. 1.  A total reduction in penalties from $50,130
to $35,091 is proposed for those 31 citations, as set forth below.  The parties
request that Citation Nos. 8451609, 8451610, 8451611, 8451630, 8451631,
8451633, 8451634, 8451635, and 8451642 be modified to reduce the level of
negligence from “high” to “moderate.”  The parties request that Citation No.
8451605 be modified to reduce the level of negligence from “moderate” to
“low.”  The parties also request that Citation No. 8451614 be modified to
reduce likelihood of injury or illness from “reasonably likely” to “unlikely,”
and to remove the “S&S” designation.  Finally, the parties request that
Citation No. 8445198 be modified from “fatal” to “lost workdays or restricted
duty.”  I have considered the representations and documentation submitted in
this case, and I conclude that the proffered partial settlement is appropriate
under the criteria set forth in section 110(i) of the Act. 

The settlement
amounts and citation modifications are as follows:[19]

Citation No.   
Assessment    Settlement      Modification
To Citation

8445186         
$1,944             $1,944             None

8451605          $308                $100                Reduce
to low negligence

8445189         
$1,944             $1,944             None

8451609          $1026              $200                Reduce
to moderate negligence

8451610          $1,111             $200                Reduce
to moderate negligence

8451611          $1,111             $200                Reduce
to moderate negligence

8445194         
$334                $334                None

8451612         
$5,080             $2,745             None

8431977          $5,080             $5,080             None

8431978          $3,405             $3,405             None

8451613          $1,657             $1,657   
         None

8451614          $1412              $200                Reduce
to unlikely & non-S&S

8451615          $2,901             $2,901             None

8445196          $392                $392                None

8445198          $5,080             $1,000             Reduce
to LWD or RD

8445199          $1,795             $1,795             None  

8445200          $224                $224                None

8451623          $1,795             $1,795             None

8449465          $946                $946                None

8451628          $285                $285                None

8451629          $285                $285                None

8451630          $946                $200                Reduce
to moderate negligence

8451631          $946                $200                Reduce
to moderate negligence

8451632          $285                $285                None

8451633          $946                $200                Reduce
to moderate negligence

8451634          $946                $200                Reduce
to moderate negligence

8451635          $1026              $200
               Reduce to moderate negligence

8451638          $207                $207                None

8449477          $5,080             $5,080             None

8451642          $946                $200                Reduce
to moderate negligence

8451644          $687                $687                None

$50,130           $35,091

VI.       Order

WHEREFORE,
the motion for approval of settlement is GRANTED.

It is ORDERED
that Citation Nos. 8451609, 8451610, 8451611, 8451630, 8451631, 8451633,
8451634, 8451635, and 8451642 be MODIFIED to reduce the level of
negligence from “high” to “moderate.”

It is ORDERED
that Citation No. 8451605 be MODIFIED to reduce the level of negligence
from “moderate” to “low.” 

It is ORDERED
that Citation No. 8451614 be MODIFIED to reduce likelihood of injury or
illness from “reasonably likely” to “unlikely,” and to remove the “S&S”
designation. 

It is ORDERED
that Citation No. 8445198 be MODIFIED from “fatal” to “lost workdays or
restricted duty.”

For the reasons
set forth above, Citation Nos. 8451616, 8451620, 8451626, 8449462, 8449464, and
8451627 are AFFIRMED, as written.   

It is further ORDERED
that the operator pay a total civil penalty of $48,678, i.e., $35,091 for the
settled violations and $13,587 for the violations litigated at hearing, within
thirty days of this Order.[20]

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Daniel R. McIntyre, Esq., U.S.
Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, Suite 216,
Denver, CO 80204

Tyler H. Fields, Esq., Alliance
Coal LLC, 1146 Monarch Street, Lexington, KY 40513

[1] Prior to
hearing, the parties agreed to settle 31 of the 37 citations at issue in Docket
No. LAKE 2014-0062.  ALJ Ex. 1.  My Decision Approving Settlement is set forth
in Section V.   Citation Nos. 8451616, 8451620, 8451626, 8451627, 8449462, and
8449464 were left for hearing.

[2] Petitioner
Exhibits (P. Exs.) 1-22 were received into evidence.  P. Ex. 5A was subject to
in-camera review, found to be protected by the deliberative privilege process,
sealed, and placed in the rejected exhibit file for Commission review on
appeal, if necessary.  Tr. 496-97, 615.  Respondent's Exhibits (R. Exs.) 1-15
were received into evidence.

[3] In resolving
conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their
testimony in light of other events, corroboration or lack of corroboration for
testimony given, experience and credentials, and consistency, or lack thereof,
within the testimony of witnesses and between the testimony of witnesses.

[4] Lampley has
inspected coal mines with MSHA for approximately eight years.  Tr. 221. 
Lampley earned a Bachelor’s degree in Applied Sciences from Southern Illinois
University, worked briefly at Galatia Mine, and subsequently attended and
completed all required Mine Academy training for MSHA in Beckley, WV.  Tr.
223-24.  Lampley routinely undergoes refresher training to maintain competency
on all standards of enforcement, electrical systems, and journeyman training
requirements.  Tr. 224.  I find him to be an exceptionally knowledgeable and
credible inspector.

[5] P. Ex. 3 at 10
is a generalized view of the approved ventilation plan.  P. Ex. 3 at 11
represents the actual equipment locations the day Citation No. 8451616 was
issued.  Both exhibits were utilized at hearing to highlight and compare the
approved ventilation plan with the actual emplacement of equipment.

[6] Yates’ position
at White County was not adduced at the hearing. 

[7] 30 C.F.R. § 75.202(a) provides:  “The
roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect the person from hazards related to falls of the
roof, face or ribs and coal or coal bursts.”  30 C.F.R. § 75.202(a).

[8] Kittinger
currently serves as White County’s safety director at the Pattiki Mine.  R. Br.

10.  Kittinger is a 31-year veteran of the mining industry.  Tr. 536. 
Kittinger began his career at White County as a general laborer, moved up to
operate face equipment, and then worked as section foreman, third-shift
foreman, and day foreman, before transferring to White County’s safety
department.  R. Br. 10.

[9] “Cap blanks”
are also referred to as “cat planks” in the transcript.  Tr. 340, 362.  They
are large, wooden shims placed between the mine roof and the top of the wooden
rib prop to close the gap between the mine roof and the top of the prop.  Id. 

[10] A floor heave
occurs when the floor pushes up towards the mine roof.  Tr. 339.  The clay
floor had been pushed up due to overburden pressure from the roof.  Tr. 362.  See
Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms
258 (2d ed. 1997).  The floor heave that Lampley observed was approximately 150
to160 lateral feet from the roof fall.  Tr. 340.

[11] The limestone
roof transitioned from 48 inches to 18 inches in thickness across the entry
covered by the fall.  Tr. 367-69.  Lampley observed the “relatively quick
transition” because the roof fall exposed that portion of the limestone roof.  Id.

[12] The operator “flags”
an area by installing a readily visible warning to alert miners of unsafe roof
conditions.  Tr. 474; see 30 C.F.R. § 75.208.

[13] Tensar wire mesh is used as “skin
control” to support the immediate area of rock around each roof bolt.  Tr. 381.

[14] Retired MSHA
coal mine inspector, Terry Hudson, worked in the coal mining industry for 32
years.  Tr. 24.  Hudson issued Citation Nos. 8449462 and 8449464 during the
same EO1 inspection.  P. Exs. 10-11.  Hudson was an MSHA coal mine inspector
for six years, and was an electrical specialist for MSHA for four years prior
to issuing the two citations at issue.  Tr. 25, 28, 81.  Hudson now works for
Sunrise Coal as an assistant maintenance manager.  Tr. 25.

[15] The Citation
indicates that it was issued at 10:40 a.m., but it was amended to 11:30 a.m.
consistent with Hudson’s testimony that he had initially recorded the incorrect
time.  Tr. 83-85; P. Ex. 10.

[16] David Baker is a 17-year veteran
of White County, and has been employed in the mining industry performing maintenance work since 1990.  Tr. 110-115.  Baker has served
as Respondent’s maintenance foreman for the past seven years. 
Tr.

115. As maintenance foreman, he is responsible for supervising the maintenance personnel on production shifts.  Tr. 110.
      Baker is acertified mine manager, and has his electrical card and hoisting papers in Kentucky and Illinois.  Tr. 115-16.

[17] Amperage is the
measurement of electron current flowing in an electrical conductor.  Tr.
43-44.  Voltage is the pressure applied to the electrical conductor that causes
electrons to flow in a specified direction.  Id.

[18] MSHA, 2003 Fatalgrams and Fatal Investigation
Reports Coal Mines, http://www.msha.gov/FATALS/2003/FAB03c21.htm (last visited July 29, 2015)
(attributing death of a miner to electrocution from damaged trailing cable
energized with 480 VAC).

[19] Pursuant to 29
C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike paragraphs
three and four from the Secretary’s Motion as immaterial and impertinent to the
issues legitimately before the Commission.  The paragraphs incorrectly cite and
interpret the case law and misrepresent the statute, regulations, and
Congressional intent regarding settlements under the Mine Act.  Instead, I have
evaluated the proposed settlement in accordance with sections 110(i) and 110(k)
of the Act.

[20] Payment should
be sent to: Mine Safety & Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.