Secretary of Labor v. GMS Mine Repair

Plain-English summary

GMS Mine Repair provided underground maintenance and contracting services at the Lively Grove Mine. MSHA issued four citations after finding loose roof-bolter dust filters and silica-bearing dust beyond the filters, an inadequate on-shift examination that missed those conditions, a damaged 995-volt trailing cable, and unsupported sulfur balls in the mine roof. Judge Alan G. Paez found that the contaminated dust system exposed miners to respirable silica and that the failed examination allowed that hazard to continue. He also found that damage to the trailing cable could worsen and cause a fatal shock, while the unsupported sulfur balls could fall without warning and seriously injure miners. Each violation was affirmed as significant and substantial and attributable to moderate negligence. The Judge assessed the proposed penalties in full, totaling $12,294.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 72.630(b), 75.202(a), 75.362(a)(2), 75.606
• Outcome: All four S&S citations were affirmed as written, and penalties totaling $12,294 were assessed.
• Key point: Visible equipment defects and contaminated dust controls can support separate maintenance and examination violations when each standard addresses a distinct safety duty.

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:
202-434-9950 / FAX: 202-434-9949

December 30,
2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

GMS
MINE REPAIR,      

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2014-27

A.C.
No. 11-03193-333379 (MVK)

Docket
No. LAKE 2014-178

A.C.
No. 11-03193-339876 (MVK)

Docket
No. LAKE 2014-115

A.C.
No. 11-03193-337266 (MVK)

Mine:
Lively Grove Mine

DECISION AND
ORDER

Appearances:   C.
Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for Petitioner;

William
C. Means, Esq., GMS Mine Repair, Bruceton Mills, West Virginia,

for
Respondent.

Before:                        Judge
Paez

This
case is before me upon the petitions for assessment of a civil penalty filed by
the Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, (“Mine Act”), 30 U.S.C. § 815(d). In
dispute are four section 104(a) citations issued to GMS Mine Repair (“GMS” or “Respondent”)
at the Lively Grove Mine. To prevail, the Secretary must prove his charges “by
a preponderance of the credible evidence.” In re: Contests of Respirable
Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995)
(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov.
1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096, 1106-07 (D.C. Cir. 1998). This burden of proof
requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC
1066, 1070 (Sept. 2000) (citations and internal quotations omitted), aff’d, 272
F.3d 590 (D.C. Cir. 2001).

I.  STATEMENT OF
THE CASE

Chief
Administrative Law Judge Robert J. Lesnick assigned to me Docket Nos. LAKE 2014‑27,
LAKE 2014-115, and LAKE 2014-178, and I consolidated them for hearing. The
Secretary initially charged GMS with a total of seven section 104(a) citations.
The parties settled two of the seven citations, and I issued a Decision Approving
Partial Settlement on January 20, 2015. Respondent subsequently requested to
withdraw its contest of a third citation, and on January 30, 2015, I issued an
Order Granting Motion to Withdraw Contest disposing of that citation. Thus,
four section 104(a) citations remain at issue.

Docket
No. LAKE 2014-27 involves two citations. First, Citation No. 8444102 alleges a
violation of 30 C.F.R. § 72.630(b) for failing to maintain the dust collection
system of a roof bolting machine. Second, Citation No. 8444104 alleges a
violation of 30 C.F.R. § 75.362(a)(2) for failing to conduct a proper on-shift
examination of the roof bolting machine. The Secretary designated each of the alleged
violations as significant and substantial (“S&S”)[1]
and as a result of GMS’s moderate negligence. The Secretary proposes a total
penalty of $5,802.00 for this docket.

Citation No. 8443658 in Docket No. LAKE
2014-178 alleges a violation of 30 C.F.R. § 75.606 for failing to protect
a trailing electrical cable from damage. The Secretary designated the violation
as S&S and as a result of GMS’s moderate negligence. The Secretary proposes
a penalty of $5,080.00 for this citation.

Lastly, Citation No. 8443659 in Docket
No. LAKE 2014-115 alleges a violation of 30 C.F.R. § 75.202(a) for insufficiently
supporting the mine roof by failing to secure sulfur balls, which are mine roof
irregularities. The Secretary designated the violation as S&S and as a
result of GMS’s moderate negligence. The Secretary proposes a penalty of
$1,412.00 for this citation.

After proper notice to the parties, I
held a hearing in Evansville, Indiana. The Secretary presented testimony from
Inspectors Randy G. Henry and Shane M. Gilpin. GMS presented testimony from GMS
Mine Coordinator Phillip Kittinger. The parties each filed post-hearing briefs
and the Secretary filed a reply brief on April 6, 2015.[2]

II.  ISSUES

The Secretary argues that the conditions
noted in each of the four citations were properly cited as violations and that
the allegations underlying the citations are valid. (Sec’y Br. at 25.) In
response, GMS denies each violation, arguing that the Secretary has failed to
meet his burden of proof for each citation.[3]
(Resp’t Br. at 6.)

Accordingly, the following issues are
before me: (1) whether, for each citation, the Secretary proved that GMS violated
a mandatory safety or health standard at Lively Grove Mine; (2) whether the Secretary
proved that each alleged violation was S&S; (3) whether the Secretary
proved that GMS acted with moderate negligence regarding each violation; and
(4) whether the Secretary’s proposed penalties are appropriate.

For the reasons that follow, I AFFIRM
Citation Nos. 8444102, 8444104, 8443658, and 8443659, as written.

III.  FINDINGS
OF FACT

Lively Grove Mine is an underground,
room-and-pillar coal mine located in Washington County, Illinois. GMS is an
independent contractor that provides underground maintenance and contracting
services to coal mine operators, including Prairie State Generating Company (“Prairie
State”), owner of Lively Grove Mine. (Tr. 55:5–56: 6.) Work at the Lively Grove
Mine was divided into three shifts, a first shift during the day, a second
shift in the evening, and a third shift also called the “midnight” shift. (Tr.
98:16–21, 107:24–108:7.) Miners from GMS staffed the day and evening production
shifts. (Tr. 98:16–21.) Prairie State’s own employees worked during the
midnight shift, a maintenance shift where no coal is produced. (Id.)

Like in all underground coal mines, miners
at the Lively Grove Mine may be exposed to a number of potential hazards from
roof falls and rib bursts to mining-related respiratory illnesses and accidents
involving power machinery.

The coal mining process extracts coal
deposits that exist in layers between rock strata. Removing the coal seam may
expose dangerous irregularities in the mine roof, such as sulfur balls. (Tr.
173:16–174:8.) Sulfur balls, which are also referred to as kettle bottoms and
carbonate nodules, are dense, spherical irregularities in the rock layer. (Tr.
173:11–174:8.) When cut through, sulfur balls often appear different from the
surrounding rock. (Tr. 173:21–174:14.) Because sulfur balls are irregularities
in the rock strata, they may separate from the mine roof and fall suddenly,
particularly when the roof is made of weaker material like shale. (Tr.
174:15–22, 175:9–21.) Due to the risk of sulfur balls falling on miners, MSHA
requires operators to install additional support for these roof anomalies. (Tr.
176:9–25.) Prairie State’s roof control plan specifies that exposed sulfur
balls must be supported with wire mesh or a metal plate across the exposed
anomaly. (Tr. 176:16–20, 203:14–19.)

At
the Lively Grove Mine, the machinery used to install roof bolts produces dust
that, if inhaled, can contribute to respiratory illnesses. (Tr. 38:22–25, 64:4–14.)
Dust containing quartz can lead to the development of silicosis, a deadly lung
disease. (Tr. 34:12–16.) Given this danger, MSHA requires the quartz content of
respirable dust in a working area to be no greater than five percent. (Tr.
53:17–54:5.) MSHA further requires all roof bolting machines to be equipped
with dust control mechanisms such as air vacuums and dust filters before the
machines are permitted into a mine. (Tr. 55:24–56:6); see 30 C.F.R.
§ 72.630(b). As part of this requirement, operators must regularly inspect
the dust suppression systems on the mine’s machinery to ensure the devices are
working properly. (Tr. 63:24–64:14.) At the Lively Grove Mine, GMS conducted
on-shift examinations of Prairie State’s equipment during the first and second
shifts. (Tr. 98:4–21, 55:22–56:6.) GMS also bore responsibility for maintaining
and repairing the roof bolting machine during its shifts. (Tr. 55:22–56:6.)

Additionally,
underground mining takes place with permissible machinery powered by
electricity which presents a potential electrocution risk to miners,
particularly those handling the wiring for energized machinery. (Tr.
163:17–164:8.) Examinations to detect cuts in power or trailing cables are thus
important for safety. Most miners at the Lively Grove Mine do not wear the kind
of work gloves that would protect them from potential electrocution. (Tr.
166:5–11.)

IV.  PRINCIPLES
OF LAW

A.        Significant
and Substantial

A violation is 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). To establish an S&S violation, the Secretary must
prove: “(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard—that is, a measure of danger to safety—contributed to by
the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.” Mathies Coal Co., 6
FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc.
v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135–36 (7th Cir.
1995) (affirming ALJ’s application of the Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
the Mathies criteria).

In providing guidance for the
application of the Mathies test, the Commission has observed that “the
reference to ‘hazard’ in the second element is simply a recognition that the
violation must be more than a mere technical violation—i.e., that the violation
present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(Aug. 1984) (citing Nat’l Gypsum, 3 FMSHRC at 827). The Commission has
further indicated that the correct inquiry under the third element of Mathies
is not whether there must be a reasonable likelihood that the violation will
cause injury, but “whether there is a reasonable likelihood that the hazard
contributed to by the violation . . . will cause injury.” Musser Eng’g, Inc.,
32 FMSHRC 1257, 1281 (Oct. 2010). Evaluation of the reasonable likelihood of
injury should be made assuming continued mining operations. U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Tthe Commission has noted
that “an inspector’s judgment is an important element” in an S&S
determination. Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3
FMSHRC at 825‑26); see also Buck Creek Coal, 52 F.3d at 135
(stating that ALJ did not abuse discretion in crediting opinion of experienced
inspector). Finally, the Commission has adopted a presumption that the
violation of a respirable dust standard is S&S. See Consolidation Coal
Co., 8 FMSHRC 890, 898–99 (June 1986), aff’d, 824 F.2d 1071
(D.C. Cir. 1987).

V.  FURTHER
FINDINGS OF FACT, ANALYSIS,

AND CONCLUSIONS
OF LAW

A.        Citation
No. 8444102 – Drill Dust Controls

1.         Further Findings of Fact

Inspector Henry visited Lively Grove
Mine on August 26, 2013, to collect quarterly respirable dust samples. (Tr. 21:6–24.)
Henry had more than 35 years of experience in the mining industry working as a
miner and an MSHA inspector. (Tr. 20:14–19.) Henry’s training included MSHA
certification as a respirable dust sampler and in respirable dust maintenance
and calibration. (Tr. 20:3–13.)

After examining the mine’s pre-shift and
on-shift examination books, Henry traveled into the mine with Prairie State’s
safety technician, Kim Morgan. (Tr. 22:7–16, 24:8–14.) At the working section, Henry
found two miners using a RRI double boom Fletcher roof bolter. (Tr. 27:9–14,
28:2–10.) The roof bolter, which had previously received certification from
MSHA for use in the mine, contained a dust control system whereby vacuums
sucked in and filtered out dust produced from drilling into the mine roof. (Tr.
41:3–10, 32:16–34:10, 39:1–2.) The roof bolter had two drilling mechanisms, one
on the left side of the machine and a second on the right side. (Tr. 28:20–29:2.)
Accordingly, the roof bolter also had a separate dust collection system for
each side. (Tr. 38:8–11, 41:16–25.)

Inspector Henry began by examining the
left-hand side of the machine. (Tr. 29:22–30:3.) First, he measured the suction
strength of the left-hand vacuum and examined the exterior hoses and fittings. (Tr.
29:6–30:3.) There, Henry discovered a hole in a vacuum-hose fitting that
emitted an audible suction sound. (Tr. 42:4–20.) Although the leak was audible,
Henry did not see dust kicking out of the hole, and the vacuum’s suction
strength was still above the regulatory minimum. (Tr. 39:7–40:23; Ex. G–3 at
26.) Henry continued his check of the left side of the machine and was
surprised to find dust inside the left-hand muffler, which is the exit point
from the system. (Tr. 30:20–31:6, 31:21–32:15.) The muffler is located on the
clean side of the machine, past the system’s dust filters, so drill dust should
not be present in the muffler. (Tr. 31:25–32:15, 34:4–16.)

Inspector Henry then opened the left
side’s dust collection system to see if the filters were functioning properly. (Tr.
34:23–35:2.) There, he discovered that the wing nut attaching the filter had
not been completely tightened. (Tr. 35:1–10.) A loosely installed filter could
fail to seal properly, leaving a gap through which dust could escape. (Tr.
35:20–22.) Henry was able to tighten the wing nut two full revolutions by hand.
(Tr. 35:13–22.) Henry subsequently removed the filter and found loose, dry
drill dust behind the filters. (Tr. 35:24–36:4.) Dust located behind the filter
would be free to evacuate into the air, exposing miners to respirable quartz. (Tr.
36:5–11.) Based on the amount of visible dust behind the filters and the extent
of the dust contamination in the system, Henry estimated that the contamination
had persisted for at least one shift, and probably multiple shifts. (Tr.
36:14–37:2.) Using a small kit Henry designed himself, the inspector collected
a sample of the dust from inside the muffler and behind the filter. (Tr.
37:6–12, 44:25–45:7.)

Inspector Henry then examined the right
side of the roof bolter, first checking the suction hoses and muffler before
examining the internal components. (Tr. 43:2–20.) When Henry examined the
right-side muffler, he again found drill dust on what should be the clean side
of the machine. (Tr. 43:13–17.) Henry discovered that the wing nut attaching
the right-side dust filter was also loose, as he was able to tighten the nut by
three full rotations. (Tr. 44:8–18.) After removing the filter, Henry again
found drill dust contamination behind the filter, on the clean side of the
filtration system. (Tr. 44:25–45:13.) Henry similarly took a sample of the
dust found in the right side of the machine. (Tr. 45:17–24.)

Based upon his observations, Inspector
Henry issued Citation No. 8444102. The condition and practice section states:

The company is not maintaining the dust
collection system on the [No.] RR1 double boom Fletcher roof bolter, in unit
[No. 3] North panel, MMU 007-0 in a permissible and operating condition. When
the dust parameters were inspected for the roof bolter, drill dust was
discovered behind the dust filters and dust was visible in the exhaust
mufflers. There was also a suction hose fitting damaged and leaking on the left
side. This roof bolter is located at cross-cut [No.] 66 in entry [No.] 11.

(Ex.
G–1.) Henry marked the citation as S&S and indicated that two miners were
likely to be affected. (Id.) He determined that this violation was
reasonably likely to result in a permanently disabling injury due to Respondent’s
moderate negligence. (Id.) MSHA proposed a penalty of $2,901.00 for this
violation. The lab results for the sample Inspector Henry submitted for
analysis showed a quartz content of 10.7 percent, which is above the 5.0
percent limit for quartz in respirable dust samples. (Ex. G–4; Tr. 53:12–54:6.)

GMS
abated the violation by replacing the damaged suction hose and purging the dust
collection system to remove any accumulated quartz. (Tr. 62:23–63:19; Ex. G–1
at 2.)

2.         Analysis and Conclusions of
Law

Section 72.630(b) requires, “Dust
collectors shall be maintained in permissible and operating condition. Dust
collectors approved under Part 33 . . . are permissible dust collectors for the
purpose of this section.” 30 C.F.R. § 72.630(b). According to Part 33 of the
Secretary’s regulations, to be permissible, dust collectors must conform to the
requirements of Part 33 and receive a certificate of approval to that effect. 30
C.F.R. § 33.2(a). MSHA issues certificates of approval only to dust collection
systems as a whole. See 30 C.F.R. § 33.9. Therefore, a dust collection
system must be maintained as initially approved by MSHA for the system to be
permissible. Second, section 72.360(b) requires mine operators to maintain dust
collection systems in “operating” condition. 30 C.F.R. § 72.630(b). As I determined
when I previously examined this same regulatory provision, “[t]he plain use of
the word ‘operating’ is synonymous with ‘functional,’ a word defined as
‘performing or able to perform its regular function.’” Liggett Mining, LLC,
33 FMSHRC 1702, 1714 (July 2011) (ALJ) (citing Webster’s Third New Int’l
Dictionary (Unabridged) 921, 1581 (2002)).

In other words, the Secretary may
demonstrate a violation of section 72.630(b) by proving either that: (1) the
dust collection system was not maintained as it had been approved; or (2) the
dust collection system was not able to perform its regular function, i.e., the
system was not functioning regularly.

i.          Violation of 30 C.F.R § 72.630(b)

The parties
acknowledge that the cited roof bolter had received certification from MSHA. To
demonstrate a violation of 30 C.F.R. § 72.630(b), the Secretary must prove either
(1) the cited machine was not maintained in permissible condition, or (2) the
dust collection system was not functioning regularly. The Secretary asserts
that the drill dust found in the muffler and on the clean side of the dust
filtration system shows GMS violated the standard. (Sec’y Br. at 16.) In
contrast, GMS contends the roof bolter was maintained in permissible and
operable condition. (Resp’t Br. at 3–4.) GMS asserts that the Secretary failed
to produce sufficient evidence to show the roof bolter was not functioning as
designed because the visible dust discovered on the clean side of the
filtration system has no relevance to the violation. (Id. at 4.) Rather,
GMS contends only air samples of respirable dust would provide sufficient evidence
of a violation. (Id.)

In issuing the
citation, Inspector Henry found several problems with the roof bolter. First,
he discovered a hole in the vacuum suction fitting large enough to be audible
when the roof bolter was running. (Tr. 42:8–20.) Henry further found the
filters were installed too loosely, allowing dust to escape the filters. (Tr.
35:1–10, 44:8–18.) More critically, Henry found dust in the mufflers and behind
the filters on both the left- and right-side dust collection systems. (Tr.
38:12–19, 44:25–45:13.) Inspector Henry credibly testified that the drill dust
he found indicated the clean side of the dust control system had been
contaminated throughout. (Tr. 38:12–25.) Once the clean side of the system
becomes contaminated, the roof bolter expels dust into the air as if no filter
were present. (Tr. 39:1–6.) Indeed, the dust samples he collected from the
clean side of the filter showed quartz concentrations of 10.7 percent, more
than double the maximum permissible level of 5 percent. (Ex. G–4; Tr. 53:12–21.)

Respondent provides
no evidence to suggest the roof bolter was functioning as designed. Instead,
GMS asks me to disregard the dust samples that Henry collected and deem the
Secretary’s evidence insufficient. (Resp’t Br. at 4.) Respondent fails to cite
to any legal precedent suggesting MSHA must collect respirable dust samples to
prove a violation of section 72.630(b). To the contrary, the D.C. Circuit has
found that a respirable dust sample is not necessary to find a violation of a
related section of the same regulation. Jim Walter Resources, Inc. v. Sec’y
of Labor, 103 F.3d 1020, 1024 (D.C. Cir. 1997) (recognizing that respirable
air samples are not a prerequisite for determining whether 30 C.F.R. §
72.630(a) has been violated). Commission Judges have similarly found violations
of section 72.630(b) without respirable dust samples. See Genwal Res., Inc.,
27 FMSHRC 580, 589 (Aug. 2005) (ALJ); Tri County Coal, LLC, 34 FMSHRC
3255, 3275 (Dec. 2012) (ALJ).

Given Inspector
Henry’s extensive mining experience and training as a dust control specialist,
I give significant weight to his testimony and find his dust sample method
credible. Accordingly, I find that the roof bolter was expelling drill dust
into the air, and that the dust discovered on the clean side of the filter was representative
of the dust expelled. Cf. Tri County Coal, 34 FMSHRC at 3275
(ALJ) (“If visible dust could bypass the filters, certainly invisible
respirable dust could also bypass the filters and would have been exhausted
into the mine atmosphere.”). MSHA would not approve as permissible a dust
collection system that allowed dangerously high levels of silica to enter the
mine’s air. I therefore determine that the Secretary proved the roof bolter was
not being maintained in permissible and operating condition, as the dust
collection system was not functioning regularly to remove the drill dust from
the air.

Given the
Secretary has satisfied both elements of a violation, I conclude that GMS
violated 30 C.F.R. § 72.630(b).

ii.         Gravity and S&S

GMS’s violation
of 30 C.F.R. § 72.630(b) satisfies the first element of the Mathies
test. As to the second element, the presence of visible amounts of dust containing
10.7 percent quartz on the clean side of the filter corroborate Inspector
Harris’s determination that the expulsion of this drill dust into the mine air
would expose miners to hazardous amounts of respirable silica dust capable of
causing silicosis. (Tr. 34:12–16, 38:22–25, 59:14–19.) Accordingly, I determine
that the second element of the Mathies test is also satisfied.

For the third Mathies
element, the Secretary asserts that the high level of quartz present in the
dust sample makes it reasonably likely that a miner exposed to the roof
bolter’s exhaust could suffer an injury. (Sec’y Br. at 16–17.) Cf.
Consolidation Coal, 8 FMSHRC at 899–90 (adopting presumption of S&S,
inasmuch as there is a reasonable likelihood the health hazard contributed to
will result in an illness, where Secretary proves a respirable dust violation
based on samples). GMS contends, however, that the Secretary failed to show an
injury was reasonably likely to occur because no miners were working in the
roof bolter’s exhaust. (Resp’t Br. at 4.) In support, GMS points to the mine’s
ventilation plan, which was designed to carry dust away from the miners. (Resp’t
Br. at 4; See Ex. R–2.) Yet GMS’s own witness, Mine Coordinator
Kittinger, acknowledged that several miners would normally work downwind of the
roof bolting machine, including the operators of a continuous miner and a coal
scoop. (Tr. 115:8–17.) Also, Inspector Henry unequivocally testified that the
two roof bolt operators would be exposed to expelled drill dust as a result of
the violation because, due to the location of the back of the machine, the dust
leaving the machine’s exhaust was being expelled into the intake air and “going
over” the roof bolt operators as air flowed from the intake to the return. (Tr.
66:15–22; Tr. 111:3–20). Based on this evidence, I determine that, given
continued mining operations, it is reasonably likely that at least two miners
would have been exposed to respirable silica dust, resulting in injury.

Finally, even
modest amounts of silica dust can cause silicosis, a deadly respiratory
disease. (Tr. 91:4–13.) Therefore, the Secretary has satisfied the fourth Mathies
element. Based on the evidence before me, I determine that all four Mathies
elements have been satisfied, and I conclude that Citation No. 8444102 is
appropriately designated as S&S.

iii.        Negligence

Inspector Henry
marked GMS’s negligence as moderate. Given the audible hole in the vacuum hose
and the extent of the dust throughout the clean side of the roof bolter’s dust
control system, Henry believed the violative condition was obvious and should
have been discovered in GMS’s on-shift examination of the equipment. (Tr.
36:12–37:2, 42:10–20.) Henry felt the amount of drill dust he discovered took
at least one shift to accumulate and likely longer. (Tr. 64:15–65:9.) Nevertheless,
Henry credited GMS for previously conducting an on-shift examination of the roof
bolting machine and considered this a mitigating factor, even though he found
the examination was insufficient. (Tr. 60:20–61:20; Tr. 66:25–67:5.) Given the
evidence before me, I agree with Henry’s determination and conclude that
Citation No. 8444102 was the result of Respondent’s moderate negligence. I
hereby affirm Citation No. 8444102 as written.

B.
       Citation No. 8444104 – On-Shift Examination

1.         Further Findings of Fact

Inspector Henry met with GMS’s Phillip
Kittinger to discuss the problems Henry had found with the roof bolter. (Tr.
60:22–61:20.) Although Kittinger informed Henry that GMS’s face boss had
conducted an on-shift examination of the roof bolter, the examiner had failed
to identify either the hole in the suction tube or the drill dust
contamination. (Tr. 64:15–65:9.) Given the amount of dust in the dust
filtration system’s exhaust and the audible hose leak, Henry believed GMS
should have discovered both problems in the last on-shift examination. (Tr.
65:2–9.) In light of these observations, Henry issued Citation No. 8444104:

The contractor shall conduct an
on[-]shift examination to assure compliance with the respirable dust control
parameters specified in the min[e] ventilation plan. The contractor performed
an inadequate on[-]shift exam of the [No.] RR1 double boom Fletcher roof bolter
located in unit [No. 3] North panel at cross-cut [No.] 66, entry [No.] 11. When
an inspection of the roof bolter was performed it was discovered that there was
still drill dust behind the filters and contaminating the exhaust and there was
also a suction fitting damaged and leaking.

(Ex.
G–2.) Henry designated the citation as S&S and indicated that two miners
were likely to be affected. (Id.) He determined that this violation was reasonably
likely to result in a permanently disabling injury. (Id.) Henry
considered Respondent’s negligence to be moderate because the operator had
conducted an on-shift examination, but the examination had been merely cursory.
(Tr. 65:6–9, 66:23–67:11.) MSHA proposed a penalty of $2,901.00 for this
violation.

2.         Analysis and Conclusions of
Law

Section 75.362(a)(2) requires a mine
operator to: (1) conduct an examination of the mine’s respirable dust control parameters
specified in the mine ventilation plan; and (2) correct any deficiencies in the
dust controls before production begins or resumes. See 30 C.F.R.
§ 75.362(a)(2).[4]
In addition to specific items, the examination must include “any other dust
suppression measure required by the ventilation plan.” (Id.) Therefore,
the Secretary may demonstrate a violation of section 75.362(a) by proving the
operator either (1) did not examine a dust suppression measure required in the
ventilation plan or (2) did not correct a problem with a dust suppression
measure.

The Commission has recognized that
workplace examinations are “of fundamental importance in assuring a safe
environment underground.” Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan.
1995); see also 61 Fed. Reg. 9764, 9790 (Mar. 11, 1996) (“The preshift
examination is a critically important and fundamental safety practice in the
industry. It is a primary means of determining the effectiveness of the mine’s
ventilation system and of detecting developing hazards, such as methane
accumulations, water accumulations, and bad roof.”). Indeed, the Commission has
upheld S&S violations for inadequate pre-shift and on-shift examinations even
where actual hazards were not detected. See Jim Walter Res., Inc., 28
FMSHRC 579, 604 (Aug. 2006); Buck Creek Coal Co., 17 FMSHRC 8 (Jan
1995).

i.          Violation of 30 C.F.R. § 75.362(a)(2)

GMS contends that its face boss, Jamie
Jones, conducted an on-shift examination of the roof bolter, satisfying the
requirements of section 75.362(a)(2). (Resp’t Br. at 2.) In contrast, the
Secretary contends that GMS’s on-shift examination, if performed, was
inadequate because Respondent failed to notice the problems Inspector Henry
discovered. (Sec’y Br. at 17–18.)

The ventilation plan for the Lively
Grove Mine requires GMS to inspect the roof bolter’s dust collection system as
part of the on-shift examination, including “dust box doors, door gaskets,
latches, filter, muffler, dump skirt, and vacuum on the
head.” (Ex. R–1 at 5(a) (emphasis added).) When Inspector Henry examined the roof
bolter’s dust control system, he found an obvious hole in the vacuum tube, two
dust filters incorrectly installed, and drill dust improperly accumulating in
the mufflers and behind the filters on the clean side of the dust control
system. (Tr. 42:8–20, 35:1–10, 44:8–18, 38:12–19, 44:25–45:13.) I have already
determined that these problems constituted a dust control violation. See
discussion, supra, Part V.A.2.i. GMS failed to note any of these
problems in its on-shift examination of the roof bolter’s dust collection
system, let alone fix the conditions prior to resuming work with the roof
bolter.[5]
GMS did not call Jamie Jones to discuss his on-shift examination of the roof
bolter’s dust collection system.

By failing to
identify and fix the improperly installed filters, as well as the hole in the
left-side vacuum hose, GMS did not correct problems with the roof bolter’s dust
collection system. Even if GMS’s Jamie Jones examined the machine, the
Secretary has thus proved the second element of a violation of section
75.362(a)(2). I therefore conclude that GMS violated 30 C.F.R. § 75.362(a)(2)
by not conducting a proper on-shift examination of the roof bolter.

ii.         Gravity and S&S

GMS’s violation of
30 C.F.R. § 75.362(a)(2) establishes the first Mathies element. As
Inspector Henry noted, the operator’s failure to find and fix the problems with
the roof bolter’s dust control system resulted in miners being exposed to
respirable silica dust. (Tr. 90:17–91:16.) Thus, the Secretary has satisfied
the second Mathies element. Because the roof bolter operators and any miners
working downwind of the roof bolter were exposed, it is reasonably likely that
they would inhale the silica dust, which in turn can cause silicosis. The
Secretary has therefore satisfied the third element of the Mathies test.
See discussion, supra, Part V.A.2.ii. Regarding the fourth
element, as noted above the injury likely to result from exposure to respirable
dust is silicosis, a dangerous lung disease. See id. Given that the
Secretary has proven all four Mathies elements, I conclude that the
Secretary properly designated Citation No. 8444104 as S&S.

iii.        Negligence

The Secretary
asserts that this violation of the on-shift examination requirements was the
result of GMS’s moderate negligence. (Sec’y Br. at 18.) Inspector Henry marked GMS’s
negligence as moderate because he believed an on-shift examination, although
inadequate, did take place. (Tr. 60:20–25.) As previously discussed, I have
already found GMS’s negligence for the underlying violation—Citation No.
8444102—to be moderate. See discussion, supra, Part V.A.2.iii. Considering
all the evidence before me, I conclude that Citation No. 8444104 was the result
of Respondent’s moderate negligence. I hereby affirm Citation No. 8444104 as
written.

C.        Citation
No. 8443658 – Protection of trailing cables

1. Further Findings of Fact

Inspector Gilpin conducted a general E01
inspection at the Lively Grove Mine on September 11, 2013. (Tr. 127:15–24.) Prairie
State’s compliance officer, Rich Baker, accompanied Gilpin during the
inspection. (Tr. 129:4–12.) On the active section, Gilpin examined the
mine’s feeder, a large machine that breaks coal into smaller pieces and feeds
it onto the mine’s conveyor belt. (Tr. 131:7–13, 132:21–133:20.) The
feeder continually sprays water to suppress dust created by crushing and
transferring coal. (Tr. 133:8–20.) Although the feeder generally remains
stationary during mining, Prairie State typically moved the equipment once a
week during its maintenance shift as coal production advanced deeper into the
Lively Grove Mine. (Tr. 155:24–157:10, 167:7–13.) The feeder, which is
self-propelled, receives power from a 750-foot-long, 995-volt electrical cable
connecting the feeder to a power center. (Tr. 135:3–13.) When Gilpin inspected
the feeder, GMS had laced the power cable in long loops on the wall of the
crosscut between Entry Nos. 5 and 6. (Tr. 141:1–25.) The power cable was hung
approximately 4-1/2 to five feet off the mine floor. (Tr. 145:1–10.)

After examining the feeder’s exterior,
Inspector Gilpin de-energized the machine so he could closely examine its power
cable. (Tr. 134:12–135:2.) Gilpin ran his hands along the cable, searching for any
irregularities. (Tr. 135:17–23.) While examining the cable, Gilpin found a cut
approximately 1-1/2 inches long. (Tr. 138:11–22.) The chest-high cut had
penetrated the hard outer jacket of the cable, exposing the inner insulated
power conductors. (Tr. 138:20–139:12.) The cut in the cable had not penetrated
the inner insulation to expose any bare wires. (Tr. 140:2–141:15.) Gilpin
believed the damage occurred either by the cable being run over by mobile
equipment while it dragged on the ground behind the feeder during a move, or by
the cable being hit by mobile equipment, such as a scoop or a ram car, pulling into
the crosscut while the cable was suspended on the wall. (Tr. 143:6–144:18.)
Gilpin also believed that the damage to the cable would worsen over time if
left unrepaired. (Tr. 145:13–24.)

Inspector Gilpin observed that miners
regularly traveled the area near the damaged section of cable, often
congregating around a picnic table approximately 40 feet away. (Tr.
142:11–143:5.) Miners also used hoses nearby to clean mining equipment. (Tr.
142:1–5.) At the time of the inspection, approximately three inches of water
had accumulated on the mine floor in the vicinity of the damaged section of
cable. (Tr. 142:1–8.)

Based on his observations, Gilpin issued
Citation No. 8443658, alleging a violation of 30 C.F.R. § 75.606(a):

When inspected the trailing cable (2/0 3
Conductor) that supplies 995VAC power to the company [No.] 601 feeder that is
in service in the 3rd Panel North Unit MMU: 001 & 007) has a cut in the
outer jacket approximately 1.5 [inches] in length. This cut is exposing the
inner insulated power conductors. The area of the mine where this cable is
located has standing water on the mine floor up to 3 [inches] in depth. Trailing
cables shall be adequately protected to prevent damage by mobile equipment.

(Ex.
G–5.) Gilpin marked the citation as S&S and determined that this violation
was reasonably likely to result in a fatal injury to one miner due to GMS’s
moderate negligence. (Ex. G–5.) MSHA proposed a penalty of $5,080.00 for
Citation No. 8443658.

2. Analysis
   and Conclusions of Law

Section
75.606 requires that operators adequately protect trailing cables to prevent
damage by mobile equipment. 30 C.F.R. § 75.606. Section 75.606 mirrors section
306(f) of the Mine Act, 30 U.S.C. § 866(f). In enacting section 306(f), Congress
emphasized the hazardous nature of unprotected trailing cables in mines and
recognized the significant danger of shock and mine fires posed by damage to
power cables. Spartan Mining Co., 30 FMSHRC 699, 707 (Aug. 2008) (citing
S. Rep. No. 91-411, at 71 (1969), reprinted in Senate Subcomm. on Labor, Comm. on
Human Res., Part I Legislative History of the Federal Coal Mine Health and
Safety Act of 1969, at 197 (1975)). The Commission has similarly emphasized
the importance of keeping intact both the inner and outer protective layers of
electrical cables. See U.S. Steel Mining Co.,

6
FMSHRC 1573, 1574 (July 1984).

i.          Violation of 30 C.F.R. § 75.606

To prove a
violation of section 75.606, the Secretary must show that: (1) a trailing cable
(2) was not adequately protected from damage (3) by mobile equipment. 30 C.F.R.
§ 75.606.

For Citation No.
8443658, the Secretary asserts that the feeder’s cable was a trailing cable,
covered by the regulation, and that mobile equipment caused the 1-1/2-inch cut Inspector
Gilpin discovered on the cable. (Sec’y Br. at 19; Sec’y Reply at 6–8.) In contrast,
GMS contends that it did not violate section 75.606 because the cable was not a
trailing cable and the cut was not substantial enough to constitute a
violation. (Resp’t Br. at 5.) In support, GMS emphasizes that the feeder is a
very large, mostly stationary piece of equipment. (Id.)

Although the
feeder primarily remained in one place, the machine was self-propelled and
moved as frequently as every week. (Tr. 155:20–157:15, 167:7–13, 135:3–13,
136:1–14.) More importantly, Prairie State, owner of the Lively Grove Mine,
opted to treat the feeder’s cable as a trailing cable for purposes of MSHA
regulation rather than as a stationary power cable. (Tr. 137:15–138:5.) By
opting to treat the feeder’s cable as a trailing cable, Prairie State and GMS
were permitted to handle the feeder’s cable less carefully, including lacing
the cable along the mine ribs and dragging it on the mine floor. (Tr.
137:1–14.) Respondent presented no evidence to contradict the Secretary’s proof.[6]
Because Prairie State previously informed MSHA of its choice to treat the
feeder’s cable as a trailing cable, Inspector Gilpin’s examination of the feeder’s
cable under 30 C.F.R. subpart G (Trailing Cables) is reasonable. I therefore find
that the feeder’s cable is a trailing cable. The Secretary has thus satisfied
the first element of a violation under section 75.606.

Although
Respondent admits a 1-1/2-inch cut existed in the outer jacket of the trailing
cable, it contends this alone cannot constitute a violation of section 75.606
because the inner jacket was not cut. (Resp’t Br. at 5.) Respondent’s argument
runs contrary to Commission precedent. The Commission has emphasized the
importance of both the inner and outer jackets of trailing cables for the
protection of miners. See Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1284–85 (Dec. 1998) (affirming trailing cable violation as S&S even with
no exposed wires); U.S. Steel Mining, 6 FMSHRC at 1573–74 (affirming
trailing cable violation as S&S where outer jacket was cut but inner jacket
wires remained individually insulated at time of inspection). Accordingly, I find
that the 1-1/2-inch cut in the trailing cable’s outer jacket is sufficient
evidence to satisfy the second element of a violation of section 75.606.

Finally, Respondent does not challenge the
testimony that mobile equipment caused the damage to the trailing cable. Inspector
Gilpin believed the damage to the trailing cable resulted from mobile equipment,
like a scoop or a ram car, either hitting the cable suspended on the rib of the
crosscut when mobile equipment pulled into the crosscut from the travel way, or
running over the feeder’s trailing cable as it was being dragged through the
mine by the belt moving crew. (Tr. 143:6–144:18.) GMS presented no
evidence to contradict Gilpin’s testimony and no alternative theory to explain
the cable’s damage. Based on the evidence before me, I find that mobile
equipment caused the damage to the trailing cable, satisfying the third element
of a violation of section 75.606. Thus, the Secretary has proven all three
elements for a violation of section 75.606. Accordingly, I conclude that GMS
violated 30 C.F.R. § 75.606.

ii.         Gravity and S&S

GMS’s violation
of 30 C.F.R. § 75.606 establishes the first Mathies element. The second Mathies
element requires that the violation contribute to a safety hazard. As Inspector
Gilpin explained, the damaged trailing cable contributed to the hazard of a
miner being electrocuted. (Tr. 146:21–147:8.) Thus, the Secretary has
satisfied the second element of the Mathies test.

Regarding the
third Mathies element, Inspector Gilpin explained that the damage to the
cable could reasonably be expected to worsen as mining continued and the feeder
advanced further into the mine. (Tr. 145:13–24, 146:8–14.) The cable hung
at chest height in an area miners frequented. (Tr. 145:25–146:7.) Moreover, the
area around the trailing cable was wet, with hoses and water sprayers nearby
causing approximately three inches of water to accumulate on the mine floor. (Tr.
142:1–8.) GMS contends a cut that does not penetrate the cable’s inner
insulation cannot create a reasonable likelihood of injury. (Resp’t Br. at 5.) To
the contrary, the Commission has held that damage to a cable’s outer jacket
could be expected to worsen and reasonably be expected to injure a miner. See
Harlan Cumberland Coal, 20 FMSHRC at 1284–85 (affirming finding of
S&S where outer jacket of trailing cable damaged); U.S. Steel Mining,
6 FMSHRC at 1574. In addition, miners at the Lively Grove Mine did not wear
gloves capable of protecting them from electric shock. (Tr. 166:5–11.) Given the
evidence before me, and considering the harsh environment of an underground
coal mine, I determine that the damage to the feeder’s trailing cable was
reasonably likely to worsen as mining continued and result in injury to a
miner. Accordingly, the Secretary has satisfied the third Mathies
element.

Finally, the
trailing cable carried 995 volts of electricity, nine times the amount of
voltage that commonly is fatal. (Tr. 146:21–147:8.) Given this evidence, it is
reasonably likely that an injury from being shocked by the trailing cable would
be fatal. The Secretary has thus satisfied the fourth Mathies element. I
conclude Citation No. 8443658 was properly designated as S&S.

iii.        Negligence

Inspector Gilpin
marked GMS’s negligence as moderate because the damaged portion of the trailing
cable could not be easily seen. (Tr. 149:15–22.) Nevertheless, Gilpin felt that
GMS should have discovered the gash during its weekly electrical examination. (Tr.
160:1–16.) Given this evidence, I conclude that GMS’s negligence for Citation
No. 8443658 was appropriately designated as moderate. I hereby affirm Citation
No. 8443658 as written.

D.        Citation
No. 8443659 – Unsupported Roof             

1. Further Findings of Fact

On October 2, 2013, Inspector Gilpin
conducted a spot inspection at the Lively Grove Mine. (Tr. 169:12–170:21.) Gilpin,
MSHA Inspector Greg Waldeck, and Prairie State’s compliance officer, Dale
Pearman, traveled underground together to the active section. (Tr. 171:4–20.)
While checking the section for imminent dangers, Gilpin found six black,
circular irregularities in the mine roof in the last open crosscut of the
section. (Tr. 172:3–174:14.) Gilpin identified the irregularities as sulfur
balls, or kettle bottoms. (Tr. 172:3–23.) Each sulfur ball measured one to two
feet in diameter. (Tr. 173:4–15.) Gilpin tested the density of the sulfur balls
with a sounding rod and confirmed that the anomalies, when tapped, sounded
different than the surrounding shale roof. (Tr. 177:15–178:5.) GMS had installed
roof bolts in the intersection with the sulfur balls approximately two hours
prior to Gilpin’s inspection, but the mine had failed to install direct support
for these roof irregularities. (Tr. 183:14–19.)

Based on his observations, Gilpin issued
Citation No. 8443659, alleging a violation of 30 C.F.R. § 75.202(a):

The roof where persons work or travel
shall be supported or otherwise controlled to protect persons from hazards
related to falls of the mine roof. 6 carbonate nodules (sulfur balls) were
observed unsupported in the immediate mine roof. This area had been previously
roof bolted. These sulfur balls were located between entries 1 and 2 at ss:
47+80 of the 3rd North Panel Unit (MMU:001). These sulfur balls measure
approximately 1’ to 2’ in diameter and were approximately 7’ from the mine
floor.

(Ex.
G–7.) Gilpin marked the citation as S&S and reasonably likely to result in
an injury causing lost workdays or restricted duty to one miner. (Id.) Gilpin
characterized GMS’s negligence as moderate because the sulfur balls were
obvious, but they had persisted unaddressed for only around two hours. (Exs.
G–7, G–8 at 2; Tr. 183:3–24.) MSHA proposed a penalty of $1,412.00 for Citation
No. 8443659.

2.         Analysis
and Conclusions of Law

Section 75.202(a) requires mine
operators to support or otherwise control the roof and ribs of a mine to
protect persons from hazards related to roof falls. 30 C.F.R. § 75.202(a). Accordingly,
the Secretary may demonstrate a violation by showing (1) that the roof or ribs
were not supported to protect persons from hazards related to roof falls, and
(2) the insufficiently supported roof or ribs were located in an area where
persons work or travel. See Jim Walter Res., 37 FMSHRC 493, 495 (Mar.
2015). Because section 75.202(a) is worded broadly, the Commission has held
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.” Harlan Cumberland Coal, 20 FMSHRC at 1277 (citing Canon
Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)).

i.                   
Violation
of 30 C.F.R. § 75.202(a)

The conditions cited by Inspector Gilpin
were located in the last open crosscut, an area recently mined and near the
active face. (Tr. 172:16–23, 178:23–179:8, 183:14–19, 198:9–18.) Respondent
does not contend that the cited conditions were located in an untraveled area
of the mine. Accordingly, I find that the cited conditions were in an area
worked and traveled by miners, satisfying the first element of a violation of
section 75.202(a).

Next, Respondent admits that Inspector
Gilpin observed several anomalies in the mine roof that were not supported. (Resp’t
Br. at 6.) Moreover, Respondent agrees that these anomalies appeared to be
sulfur balls.[7]
(Id.) Indeed, GMS’s Kittinger testified that when he examined the area
after Inspector Gilpin, Kittinger found the six discolored anomalies Gilpin
cited. (Tr. 196:11–197:16.) When Kittinger tested the anomalies with a sounding
rod, he too noticed that the anomalies sounded different from the rest of the
mine roof. (Tr. 197:19–25.) Kittinger agreed that the anomalies were sulfur
balls. (Tr. 202:21–24.) Given this evidence, I find that the anomalies in the
roof identified by Gilpin were sulfur balls.

Prairie State’s roof control plan requires
the mine to provide additional support for exposed sulfur balls, such as installing
wire mesh. (Tr. 203:14–19.) This additional support is necessary because sulfur
balls can fall out of the roof with little or no warning. (Tr. 174:15–22,
192:14–23.) Inspector Gilpin had experienced such a sudden fall firsthand, as a
sulfur ball once fell on Gilpin, dislocating his shoulder. (Tr. 178:7–16.) Here,
the discovered sulfur balls were in a roof of shale, a weaker rock that has the
tendency to flake off and allow sulfur balls to fall out more easily. (Tr. 175:
9–21.) Given this evidence, I determine that a reasonably prudent miner,
familiar with the danger posed by unsupported sulfur balls in a shale roof and
the requirements of section 75.202(a), would have provided more support for the
cited sulfur balls. See Harlan Cumberland Coal, 20 FMSHRC at
1277.

The Secretary has proved both elements
of a violation of section 75.202(a). Accordingly, I conclude that GMS committed
a violation of 30 C.F.R. § 75.202(a) by not supporting the cited sulfur balls
in the mine roof.

ii.         Gravity & S&S

GMS’s violation
of section 75.202(a) establishes the first Mathies element. By failing
to support six sulfur balls, GMS contributed to the hazard of a miner being hit
by material falling from the mine roof. This satisfies the second Mathies
element because the violation contributed to a discrete safety hazard.

Regarding the
third Mathies element, Respondent asserts that the Secretary failed to
demonstrate the sulfur balls were reasonably likely to fall onto a miner and
cause injury. (Resp’t Br. at 6.) Specifically, GMS asserts that the Secretary
has not provided sufficient evidence regarding the size and weight of the sulfur
balls, or regarding how compacted the sulfur balls were in the mine roof. (Id.)
In support, Respondent points to the testimony of GMS’s Kittinger, who had
difficulty finding any bulging sulfur balls when he viewed the area after GMS
had installed additional wire mesh to support the conditions. (Tr.
196:16–197:6, 203:20–205:1.) Kittinger checked the roof with a sounding rod and
believed the area sounded generally “competent for people to work” under. (Tr.
197:20–198:6.) Yet Kittinger admitted the sulfur balls sounded different from
the surrounding roof, and indeed the discoloration ring around the sulfur balls
did not sound as solid. (Tr. 197:13–198:2.) Kittinger thus contradicted
his own testimony that the roof seemed solid. Moreover, I note that Kittinger
examined the cited area only after additional support had been installed,
making the roof difficult to examine. (Tr. 203:20–205:1.) In contrast, Inspector
Gilpin testified that the sulfur balls reasonably could be expected to fall out
if left unsupported. (Tr. 192:14–193:2.) Gilpin had painfully witnessed
firsthand how sulfur balls can fall from a mine roof without any warning. (Tr.
178:7–16.) Gilpin further testified that the discovered sulfur balls each
measured one to two feet in diameter. (Tr. 173:4–15.) Gilpin estimated the
sulfur balls weighed 150 pounds or more. (Tr. 173:4–15, 178:9–22.) Respondent
provided no evidence to challenge Gilpin’s estimates. Given the evidence before
me, and considering Inspector Gilpin’s extensive mining background and
firsthand experience with sulfur balls, I credit Gilpin’s testimony and
determine that there was a reasonable likelihood the hazard of the sulfur balls
falling from the mine roof would lead to an injury. Accordingly, the Secretary
has satisfied the third element of the Mathies test.

Finally, Gilpin
testified that a falling sulfur ball would at least result in bruises and
broken bones, and could even be fatal. (Tr. 178:7–22.) Gilpin himself suffered
a dislocated shoulder from being hit by a falling sulfur ball approximately the
size of those he cited at the Lively Grove Mine. (Tr. 178:11–14.) Given this
evidence, I determine that a miner hit by a falling sulfur ball would suffer a
serious injury, satisfying the fourth Mathies element. The Secretary
satisfied all four elements of the Mathies test. Accordingly, I conclude
that Citation No. 8443659 was properly designated as S&S. I hereby affirm
Citation No. 8443659 as written.

iii.        Negligence

Inspector Gilpin
marked this citation as moderate negligence because the sulfur balls had been
left unsupported for approximately two hours. (Tr. 180:25–181:6.) Gilpin
believed a mine foreman had not been in the area since GMS had installed its
initial roof support, thus mitigating GMS’s negligence. (Tr. 181:7–15.) Nevertheless,
Gilpin felt the miners who bolted the area should have noticed the sulfur balls
and corrected the problem because the anomalies were fairly obvious. (Tr.
181:15–182:4.) Given the evidence before me, I agree with the inspector’s
determination that GMS demonstrated moderate negligence in failing to support
the sulfur balls for two hours. Accordingly, I conclude that the negligence
determination for Citation No. 8443659 was properly designated as moderate.

IV.       PENALTIES

When assessing a
civil penalty, section 110(i) of the Mine Act requires the Commission’s
Administrative Law Judges to consider the following six criteria: (1) the
operator’s history of previous violations, (2) the appropriateness of the
penalty relative to the size of the operator’s business, (3) the operator’s
negligence, (4) the penalty’s effect on the operator’s ability to continue
business, (5) the gravity of the violation, and (6) the demonstrated good faith
of the operator in attempting to achieve rapid compliance. 30 U.S.C. § 820(i).

The Secretary
proposes a penalty of $2,901.00 for Citation No. 8444102, a penalty of $2,901.00
for Citation No. 8444104, a penalty of $5,080.00 for Citation No. 8443658, and
a penalty of $1,412.00 for Citation No. 8443659.

For each
citation, I have concluded that GMS violated MSHA’s regulations and determined
each violation to be both S&S and the result of Respondent’s moderate
negligence. GMS has stipulated that it is large in size and that the
Secretary’s proposed penalties would not affect its ability to remain in
business. (Ex. Jt.–1.) Respondent demonstrated good faith in abating each
citation. (Id.) I further note that GMS did not receive any citations
under sections 72.630(b), 75.362(a)(2), 75.606, or 75.202(a) in the two years
prior to these citations being issued. (Exs. G–9, G–10, G–11.)

Given the
evidence before me and considering each of the six penalty factors in section
110(i), I determine that the Secretary’s proposed penalty assessments are
appropriate. Accordingly, I assess a penalty of $2,901.00 for Citation No.
8444102, a penalty of $2,901.00 for Citation No. 8444104, a penalty of $5,080.00
for Citation No. 8443658, and a penalty of $1,412.00 for Citation No. 8443659.

VI.  ORDER

In light of the
forgoing, it is hereby ORDERED that Citation Nos. 8444102, 8444104,
8443658, and 8443659, are AFFIRMED as written.

WHEREFORE, Respondent GMS
Mine Repair is ORDERED to pay a civil penalty of $12,294.00 within 40
days of this decision.

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

C.
Renita Hollins, Esq., Office of the Solicitor, U.S. Department of Labor, 211 Seventh
Avenue North, Suite 420, Nashville, TN 37219

William
C. Means, Esq., GMS Mine Repair, 224 Moyers Road, Bruceton Mills, WV 26525

/aal

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

[2] In this
decision, the hearing transcript, the Secretary’s exhibits, and GMS’s exhibits
are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. The parties
also admitted a list of stipulations in a joint exhibit, which was admitted as
“Ex. Jt.–#.”

[3] GMS argues that
Citation No. 8444102 and Citation No. 8444104 are duplicative citations based
on the same facts. GMS contends that it should have been cited only once, if at
all, for either a violation of 30 C.F.R. § 72.630(b) or 30 C.F.R. § 75.362(a)(1).
However, the two standards impose separate and distinct duties—in a nutshell,
monitoring versus maintaining. Because these violations may have arisen due to
the same event is not dispositive. Cumberland Coal Res., LP, 28 FMSHRC
545, 553 (Aug. 2006); Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003-05
(June 1997); Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar.
1993).

[4] At the time the
citation was issued, section 75.362(a)(2) provided, in pertinent part: “A
person designated by the operator shall conduct an examination to assure
compliance with the respirable dust control parameters specified in the mine
ventilation plan . . . . Deficiencies in dust controls shall be corrected
before production begins or resumes. The examination shall include air
quantities and velocities, water pressures and flow rates, excessive leakage in
the water delivery system, water spray numbers and orientations, section
ventilation and other control device placement, and any other dust suppression
measures required by the ventilation plan.” 30 C.F.R. § 75.362(a)(2) (Apr.
2012).

[5] Respondent
points to the testimony of Inspector Henry to support its position that GMS
complied with section 75.362 by performing the required on-shift examination. (Resp’t
Br. at 2.) Yet Respondent’s argument misrepresents the nature of Henry’s
testimony. Although Henry credited GMS’s assertion that a miner had performed
an on-shift examination, the MSHA inspector clearly felt the examination was
not sufficiently thorough. (Tr. 61:11–20, 64:9–65:9.) Moreover, section
75.362(a)(2) requires more than a mere check of the dust control equipment; it also
requires the operator to fix any problems with the equipment. 30 C.F.R.
§ 75.362(a)(2).

[6] Indeed,
Respondent declined to call a witness for Citation No. 8443658.

[7] Although
Respondent admits the cited anomalies were sulfur balls, GMS contends the
conditions could not be a violation under section 75.202(a) because they were
not cited under the mine’s roof control plan. As Inspector Gilpin explained,
however, he could have cited the unsupported sulfur balls either under section
75.202(a) or as a violation of the mine’s roof control plan. (Tr. 176:9–177:11.)