Secretary of Labor v. Mach Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Mach Mining for coal dust and loose coal built up along the 3,600-foot slope belt at its Mach No. 1 Mine in Illinois, including places where coal was touching rollers or the moving belt, and separately for a pre-shift examination record that noted only that the slope belt needed cleaning. Judge Thomas P. McCarthy affirmed both citations as written, finding each significant and substantial and the product of high negligence. On the accumulations he credited testimony that friction from the belt could dry and ignite the material in a mine that liberates methane, and noted Mach had been cited 58 times under the same standard in the preceding fifteen months. On the recordkeeping citation he held that a bare note that cleaning was needed does not record the nature and location of the hazard or the corrective action, which is the point of the requirement. He assessed $15,570 and $6,996 for the two litigated citations, declined the Secretary's post-hearing request to raise the penalties to $45,000 because no rationale or motion to amend was offered, and approved a partial settlement of the remaining citations, striking one paragraph of the settlement motion as misstating the law. Total penalties came to $48,027.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.363(b)
• Outcome: Both litigated citations were affirmed as written with penalties of $15,570 and $6,996; four settled citations were modified and one was vacated by the Secretary, for total penalties of $48,027.
• Key point: A pre-shift examination entry saying only that a belt needs cleaning does not satisfy the recording requirement, because it does not tell the next crew what the hazard is, where it is, or what was done about it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004

Telephone No.: (202)
434-9900 / Fax No.: (202) 434-9949

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

MACH MINING, LLC,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2014-0746

A.C. No. 11-03141-360105

Mine: Mach No. 1 Mine

DECISION AND
ORDER

Appearances:               Daniel McIntyre, Esq., Office
of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner

Chris
Pence, Esq., Hardy Pence, PLLC, Charleston, West Virginia, for Respondent

Before:            Judge McCarthy

I. STATEMENT OF THE CASE

This
case is before me upon a petition for the assessment of civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the
Mine Act”), 30 U.S.C. § 815(d).  Docket No. LAKE 2014-0746 involves
thirteen section 104(a) citations issued by the Secretary of Labor (“the
Secretary”) between July 14 and 28, 2014, charging Mach Mining, LLC (“Mach”)
with violations of mandatory health and safety regulations.  On October 29,
2015, the Secretary submitted a motion to approve settlement for 11 citations, which
I approve below.   

A
hearing was held in St. Louis, Missouri on November 2, 2015 on Citations Nos.
8450924 and 8450926.  During the hearing, the parties offered testimony and
documentary evidence.[1]
 Witnesses were sequestered. 

Citation
No. 8450924 charges Mach with violating 30 C.F.R. § 75.400 for failing to
prevent and clean up accumulations of coal dust, loose coal, and other
combustible material.  The Secretary alleges that the violation was significant
and substantial (S&S)[2]
and the result of Mach’s high negligence.  Citation No. 8450926 charges Mach
with violating 30 C.F.R. 75.363(b) for failing to properly record the
accumulation hazard alleged in Citation No. 8450924.  The Secretary
alleges that this violation was also S&S and the result of Mach’s high
negligence.  The issues presented in the case are whether Mach violated the
standards cited by the Secretary; if so, whether the Secretary properly
assessed the gravity of the violations and the level of negligence attributed
to Mach; and what penalties, if any, should be assessed against the
Respondent.  For the reasons set forth below, I affirm Citation No. 8450924, as
written, and assess a civil penalty of $15,570.  I also affirm Citation No.
8459026, as written, and assess a civil penalty of $6,996.

Based
on a careful review of the record, including the parties’ post-hearing briefs
and my observation of the demeanor of the witnesses,[3] I make the
following findings of fact and conclusions of law:

II.
STIPULATIONS AND GENERAL FACTUAL BACKGROUND

A. Stipulations of Fact and Law

At
hearing the parties stipulated to the following:

1.     
Mach was at all times relevant
to these proceedings engaged in mining activities at the Mach Number One Mine located in or near Johnson City, Illinois.

2.     
Mach’s mining operations affect
interstate commerce.

3.     
Mach is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30
U .S.C. § 801 et seq.

4.     
Mach is an “operator” as the word is defined in section 3(d) of the Mine
Act, 30 U.S.C. § 803(d), at the Mach Number One Mine (Federal
Mine I.D. No. 11-03 141) 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 duly authorized representatives of
the
United States Secretary of Labor, assigned to MSHA, and were acting in their official capacity when conducting the inspections and issuing the MSHA citations.

7.     
The MSHA citations at issue in these proceedings were properly served
upon Mach as required
by the Mine Act.

8.     
The  citations  at
 issue  in  these  proceedings  may  be  admitted  into  evidence
 by stipulation for the purpose
of establishing their issuance.

9.     
Mach demonstrated good faith in abating the violations.

10.  In 2013, the Mach Number
One Mine produced 6,694,630 tons of coal and its controlling entity
produced 18,772,988 tons of coal.

11.  The penalties proposed by the Secretary
in this case will not affect the ability of Mach to continue in business.

Resp’t’s
Pre-Hrg. Rpt. 1-2; Pet’r’s Br. 2-3.

B. General Factual Background

1. Mine Examiner Adams’ Shift Examination

On July 14, 2014, mine examiner David
Adams conducted a midnight shift examination of the slope belt at approximately
6:00 a.m.[4] 
Tr. 116.  The slope belt is located in the mine travel way, which slopes
downward from the surface to the underground sections of the mine. 
Tr. 54-55.  The ceiling is approximately ten feet high, and is supported
by a steel, arch-supported line opening.  Tr. 55.  The travel way is divided
into two parts: a 12-foot-wide road for vehicles on the left-hand side and a
seven-foot-wide slope belt flanked by a four-foot-wide walkway on the right-hand
side.  Tr. 55, 68, 222.  The travel way and the slope belt are separated by
steel beams placed at five foot intervals.  Tr. 197.  There are four carbon
monoxide (“CO”) detectors and a fire suppression system present along the slope. 
Tr. 346-47.

Adams conducted his examination by driving
along the 3,600-foot slope belt and checking for accumulations of coal,
structural damage, and hazards on both the driving side and back side of the
slope belt.  Tr. 215, 222, 239.  At the end of his examination, Adams filled
out the examination book for each belt line and travel way, which takes about
20 minutes.  Tr. 231.  He observed spillage on the slope belt due to washback, but
denied observing any accumulations in contact with the belt.  Tr. 227, 229. 

At the time of the inspection, Respondent
was mining a new panel, which resulted in water coming off the longwall face,
and spillage onto the slope belt.  Tr. 283.  Although some of this water
was discharged through water pumps and pipes, some was transported with coal
and rock via the belt.  As the material was transferred from one belt to
another, the weight of the water and other material made it difficult for the
belt to force the material uphill and out of the mine.  Tr. 98.  As a result,
the material washed back downhill, flooding the area below.  Tr. 98.  Mine
manager Rorer described this as “washback,” which happens when water builds up
to a certain peak on the belt, and rolls back on the belt instead of exiting
the slope.[5] 
Tr. 334.  

Adams testified that accumulations
can occur very quickly on a slope belt due to spillage resulting from
“washback,” which consists of water, coal, and other materials sliding down the
slope belt as a result of efforts to remove the water discharged from longwall
mining operations.  Tr. 253.  Mach has a 44-46 percent recovery rate,
meaning that 44 to 46 percent of what is mined by weight is coal.  The rest is
rock or other rejected material.  Tr. 390. 

Respondent had previously
investigated the washback phenomenon, and mine manager Parker Phipps visited other
mines to view their dewatering systems.[6]
  Tr. 389.  After these visits, Phipps ordered a new dewatering system to
address the washback issue.  Tr. 337, 389.  It took about three months to
purchase and install the system.  Tr. 339.  The dewatering system was installed
at the mine nearly two months after the issuance of Citation No. 8450294.  Tr.
389. 

In the interim, Phipps testified
that additional miners were hired to shovel as needed each shift, and company
foremen patrolled the belt for rollers contacting accumulations. Tr. 227, 383,

399.  The number of shovelers varied from day to day, but more miners were
needed early in the week because the longwall was idled on Saturdays and
Sundays, and then started again on Sunday, causing washback.  Tr. 391.  Rorer
testified that in order to combat the water, the mine would set pumps over the
weekends.  On Sunday night, before the long wall began production, the gates on
the tail would be opened to run water off the long wall before coal was produced. 
 Tr. 333. 

After his examination, Adams spoke
to mine manager Rorer to relay the results of his examination and the progress that
the shoveling miners had made at that point.  Tr. 232; 236.   Adams noted in
the slope belt examination book that the “slope belt needs cleaned—work in
progress.”  Tr. 116, 229; R. Ex. 1.  This July 14, 2014 entry was standard
practice at the mine.  Adams testified that Rorer would “know what [his
notation] meant.”  Tr. 264.  Adams testified that he would verbally have told
Rorer any additional or more specific information.  Tr. 264.  

2. The Instant Inspection

MSHA Inspector Bernard Reynolds
arrived at the mine at 7 a.m. on July 14, 2014 to conduct a regular E01
inspection.[7]
 Tr. 51, 186.  During that inspection, miner Guy Webster drove Reynolds into
the mine.[8]
 Tr. 54, 56, 301.  As they proceeded down the travel way, an
unidentified miner stopped their vehicle to inform Webster that a set of rails
on the slope was broken, and that the belt was running in contact with coal
accumulations.  Tr. 56.[9] 
Hearing this, Reynolds decided to inspect the broken rail on foot.  The broken
rail was located approximately 300-500 feet from the top of the slope.  Tr.
57-58. 

When Reynolds set out on foot,
there were five to seven miners at the top of the slope cleaning the belt.  Tr.

69. Reynolds observed coal accumulations up to 30 inches deep and six feet
    wide.  Tr. 60.  In some places, rollers touched the accumulations.  Tr. 60. 
    Based on the extent of the accumulations, Reynolds estimated that the
    accumulations had existed for several shifts.  Tr. 63-64.

As Reynolds walked the belt, he
found accumulations 12 inches deep on the back side of the belt approximately
100 feet from the slope collar.  Tr. 65.  At 200 feet, he found accumulations
approximately 14 inches deep.  Tr. 66.  The accumulations increased to about 16
inches at 250 feet.  Tr. 66.  At 570 feet down the belt, Reynolds observed that
the belt and three of the bottom idler rollers were running in approximately
ten feet of coal dust accumulations that were 24-30 inches deep.  Tr. 69-70, 72. 

At 650 feet, Reynolds found that three bottom
roller brackets were hot from contact with the moving belt.  Tr. 78.  Further,
the belt had cut into the I-beam approximately one-eighth of an inch.  Tr. 78. 
Reynolds estimated that the rubber belt had rubbed into the steel I-beam for at
least 24 hours. Tr. 79.[10]

Approximately 1,100 feet down the belt, near the
slope tripper drive, Reynolds observed another area of significant accumulation,
where five rotating rollers were rubbing the belt, creating a frictional heat
source.  Tr. 80.[11]
 Reynolds testified that dust was visible in the air near the slope tripper
drive, which led Reynolds to conclude that the coal in that area was fairly
dry.  Tr. 83, 131.  Although Reynolds did not observe any miners in the
immediate area, Reynolds noted that the air would take the suspended dust up
the slope, toward the location where the five to seven miners were cleaning the
belt at the top of the slope.  Tr. 81, 83-84.  Water sprays were installed near
the slope tripper drive to suppress the dust, but they were non-functional on
the day of the inspection because the water from the main pipe had been shut
off.  Tr. 86-87. 

Approximately 1,600 and 2,000 feet down the belt,
Reynolds observed even more significant accumulations in contact with roughly fifteen
feet of the moving belt and two rotating belt rollers.  Tr. 87-88.   Further
down the belt, at 2,000 to 2,200 feet, Reynolds observed varying amounts of
accumulations, up to 30 inches deep, in contact with two rollers and ten feet
of the belt.  Tr. 88.  At 2,200 feet, Reynolds observed 24-inch-deep
accumulations in contact with one bottom belt roller.  Tr. 89.  At 2,300 feet, Reynolds
observed accumulations between four and 24 inches deep along half the width of
the belt, but no potential heat sources were present.  Tr. 90.  

In sum, Reynolds observed six
discrete locations where bottom rollers contacted accumulations.  In total, 14
bottom rollers and 105 feet of belt were in contact with coal.  Tr. 100; P.
Ex. 4, at 14. 

Initially, Reynolds thought it would
be necessary to shut the belt down to clean up the accumulations, but
thereafter he determined that the accumulations could be cleaned while the belt
was running.  Tr. 91.  Reynolds declined to issue a closure order because he determined
that shutting the belt down would cause a buildup of water.  Tr. 93-94. 

Based on his observations, Reynolds
issued Citation No. 8450924, alleging a violation of 30 C.F.R. § 75.400.   Section
75.400 provides that “coal dust, including float coal dust deposited on rock
dusted surfaces, loose coal, and other combustible materials, shall be cleaned
up and not be permitted to accumulate in active workings, or on diesel powered
and electric equipment therein.”  30 C.F.R. § 75.400.  The condition
alleged in Section 8 states:

Loose coal was allowed to accumulate in
excessive amounts along the slope belt, from approximately 100 feet below the
slope collar to the bottom.  These accumulations were in continuous windrows
along both sides of the belt (the majority of the instances were along the back
side of the belt), which ranged from 4” to 30” deep & from 16” to 72” wide,
and occasionally up to the full width of the belt.  Additionally, the
accumulations were in contact with the moving belt and bottom rollers at the
following approximate locations: 570’ station; 1100’ station; 1900’ station;
2100’ station; 2200’ station; 2300’ station. 

P. Ex. 2.  Reynolds
designated the violation as significant and substantial, and determined that,
as a result of Respondent’s high negligence, the alleged violation was
reasonably likely to result in lost workdays or restricted duty for six
miners.  Id.  The Secretary initially proposed a penalty
of $15,570.

After his underground inspection, Reynolds
inspected the Respondent’s record books for the previous month.  Tr. 119.  The
belt inspection examination entries are kept in a separate book.  A review of
the belt examination book indicates that each of the eleven belts at the mine
is inspected every shift, and the results are recorded on a separate page for
each morning, evening, and midnight shift.  Thus, each page represents one
shift, and contains eleven entries, one for each belt examined during the shift.
 The pages include spaces to designate the mine name, the date of the
examination, and the shift, and contain the following instruction:

List all belts checked and make notation
of any corrections needed or made in the following spaces.  Include violations
of designated regulations.  If belt inspected is OK, so state.  Indicate all
corrections by action taken, date, and signature.

R. Ex. 2. 

As noted, slope belt examination book entry at
issue that Adams made for July 14, 2014 states that the “slope belt needs
cleaned—work in progress.”  Tr. 116, 229; R. Ex. 1. 

All of the slope belt exam
notations for each shift from July 9 to July 13, 2014 (the five days and
fifteen shifts preceding the issuance of Citation No. 8450924 on July 14)
stated either “needs cleaned—work in progress” or “needs cleaned—cleaning in
progress,”  except for the July 9 evening shift, which stated “none.”  Id. 
 Some of the entries for other belts were more specific, such as the July 9 day
shift entry for the east belt (“Need to clean under rollers from 3 to 8”)  or
the July 10 day shift entry for the SM3 belt (“Need to clean 7A flowthrough”). 
These more specific entries were followed by the additional notation “done,”
and initials, presumably from the miner or supervisor, who took the corrective
action.  Id.  

The slope belt exam book entry for the July 15
midnight shift (the first shift examination following the issuance of Citation
No. 8450942) states: “Needs cleaned 100 foot inby tripper to tailpeace [sic] on
back side tripper to travel road side 300 foot from tripper to top travel road
side.”  The July 15 day shift entry states: “Need to clean from 1800 to 2300
and 1000 to 1100 need to clean tail of take up.”  The July 15 evening shift
entry reads: “Need to clean tail on backside and under tail roller, need to
clean from 300 ft marker to tripper backside and from tripper to tail backside.
 Need to clean from tripper to tail travel road side.  Need to clean take-up
under belt.”  Id. 

Reynolds testified that the
accumulations that he observed on the morning of July 14, 2014 were too
extensive for an examiner to miss.  He found that the examination record simply
stated “slope belt needs cleaned, work in progress.”  R. Ex. 1; Tr. 121-124.  Reynolds
described this as “non-specific, non-critical” language which did not mention
“coal accumulation” or “washback.”  Tr. 116-17, 124.  According to Reynolds, if
the examiner had, in fact, noticed the extent of the accumulations on the slope
belt, then the language “needs cleaned” failed to indicate the extent of the
accumulations or that they needed to be removed immediately.  Tr. 117-18.

Since the notation made by Adams
did not reflect the conditions Reynolds observed in the mine just two hours
after Adams’ examination, Reynolds issued Citation No. 8450926 for an alleged
violation of 30 C.F.R. § 75.363(b), which states
in pertinent part: 

(b) A record shall be made of
any hazardous condition and any violation of the nine mandatory health or
safety standards found by the mine examiner. This record shall be kept in a
book maintained for this purpose on the surface at the mine. The record shall
be made by the completion of the shift on which the hazardous condition or
violation of the nine mandatory health or safety standards is found and
shall include the nature and location of the hazardous condition or violation
and the corrective action taken. This record shall not be required for
shifts when no hazardous conditions or violations of the nine mandatory health
or safety standards are found. (italics added)

The citation alleged:

The mine
examiner has not properly recorded hazardous conditions in the examination
record as were found to exist along the slope belt.  Six individual areas were
observed which posted distinct safety hazards in that accumulations of
combustible material in the form of loose coal was in contact with the moving
belt and bottom belt rollers.  The exam record for the last examination of this
area, which was completed just prior to the MSHA inspection, only indicated
that the slope belt “needs cleaned.”  This language does not indicate the
hazard that was found to exist.

Ex. P-3.  Reynolds designated
the violation as significant and substantial, and determined that the alleged violation
was reasonably likely to result in lost workdays or restricted duty for six
miners, as a result of Respondent’s high negligence,.  Id.  The
Secretary proposed a penalty of $6,996.  

Two weeks later, on July 28, 2014, MSHA
inspector Brittain Belford issued Citation No. 8451307, alleging another violation
of 30 C.F.R. § 75.400 based on slope belt accumulations “extend[ing] from the
bottom of the slope to the top and rang[ing] from approximately 1 ft-4 ft in
depth and 1 ft-3ft in width.”  P. Ex. 5.  Inspector Belford also observed
rollers touching the accumulations.  Id.  Respondent agreed to settle
Citation No. 8451307, as issued, with no modifications or changes in penalty,
as part of the partial settlement in this docket.  ALJ Ex. 1. 

III. PRINCIPLES OF LAW

A.  Establishing a Violation

To
prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the evidence that a violation of the Mine Act occurred.  RAG
Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272
F.3d 590 (D.C. Cir. 2001).  A mine operator is held strictly liable for
violations that occur at its mine.  Spartan Mining Co., 30 FMSHRC
699, 706 (Aug. 2008).  The operator may avoid liability only by showing
that it was not properly on notice of the violative nature of its conduct. 
Even in the absence of actual notice, the Secretary may properly charge the operator
with a violation when a reasonably prudent person familiar with the protective
purposes of the cited standard and the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the mining
industry, would have recognized a hazard warranting corrective action within
the purview of the applicable regulation.  LaFarge North America, 35
FMSHRC 3497, 3500-01 (Dec. 2013); Ideal Cement Co., 12 FMSHRC 2409,
2415-16 (Nov. 1990); Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(Dec. 1982).

B.  Gravity and Significant and Substantial (S&S)

The
Mine Act describes a S&S violation as one “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.”  30 U.S.C. § 814(d)(1).  By contrast, the
gravity of a violation “is often viewed in terms of the seriousness of the
violation.”  Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept.
1996).  )).  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). 

As the Commission has noted, the gravity component of the
penalty assessment is not synonymous with finding that a violation is S&S,
but may be based on the same evidence.  The gravity inquiry is concerned with the
effects of a hazard, while the S&S analysis focuses on the reasonable
likelihood of serious injury.  See
Consolidation Coal Co., 18 FMSHRC at 1550 (explaining that “the focus of the
[gravity inquiry] is not necessarily on the reasonable likelihood of serious
injury… but rather on the effect of the hazard if it occurs”).  Alternatively, a violation is S&S if, “based on the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.”  Cement 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.[12] 
Mathies Coal Co., 6 FMSHRC 1, 3­-4. (Jan. 1984).  The S&S
determination should be made assuming “continued normal mining operations.”  U.S. Steel Mining
Co., 7 FMSHRC 1125, 1130 (Aug. 1985).  This evaluation is also made in consideration
of the length of time that the violative condition existed prior to the
citation and the time it would have existed if normal mining operations had
continued, without any assumptions regarding abatement.  Elk Run Coal Co., 27 FMSHRC
899, 905 (Dec. 2005); U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); see
also Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d
sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014);
Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek,
811 F.3d at 165-66 (upholding Commission’s rejection of “snapshot” approach to
evaluating S&S for accumulations violation); Mach Mining, 809 F.3d
at 1267-68 (discussing the operative timeframe for violations in the context of
S&S analyses).

The
Commission has explained that “the reference to ‘hazard’ in the second element
[of the test] is simply a recognition that the violation must be more than a
mere technical violation – i.e., that the violation presents a measure of
danger.”  U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug.1984)
(internal citation omitted).  “There is
no requirement of ‘reasonable likelihood’” encompassed in this element.  Musser
Engineering, Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1280 (Oct.
2010).  Rather, longstanding Commission precedent indicates that the likelihood
of harm should be accounted for in the third Mathies element, which
“requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.”  U.S.
Steel, 6 FMSHRC at 1836 (quoted by the Commission on numerous occasions
over the next two decades, including in Elk Run Coal Co., 27 FMSHRC 899,
906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250, 1254-55
(Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf,
10 FMSHRC 498, 500 (Apr. 1988).  The
Secretary, however, “need not prove a reasonable likelihood that the violation
itself will cause injury.”  Cumberland
Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc., 32
FMSHRC at 1281).  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.” Musser
Engineering, Inc., 32 FMSHRC at 1281 (citing Elk Run Coal Co., 27
FMSHRC at 906); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).  

In a
decision issued on January 21, 2016, the Fourth Circuit shifted the focus of
the traditional S&S analysis from the third to the second Mathies
prong, restricting the consideration of the facts bearing on the reasonable
likelihood of injury under the third prong.  See Knox Creek, 811 F.3d at

162. The Fourth Circuit interpreted the second Mathies prong
     to entail an inquiry into the likelihood of harm, stating:

In our
view, the second prong of the test . . . primarily accounts for
the Commission’s concern with the likelihood that a given violation may
cause harm.  This follows because, for a violation to contribute to a discrete
safety hazard, it must be at least somewhat likely to result in harm.

Id.  Under the Fourth Circuit’s application of Mathies,
the occurrence of the hazard must be assumed under the third prong of the test. 
Id. at 161-65.  Evidence of the likelihood that the hazard will occur is
not considered at this prong.  Rather, the inquiry is whether the hazard,
assuming it occurred, would likely result in serious injury.  Id. at

162.  The Seventh Circuit has previously adopted a similar interpretation of
the Mathies test, stating that the question in applying the third prong
of Mathies “is not whether it is likely that the hazard . . . would
have occurred[,]” but “whether, if the hazard occurred (regardless of
likelihood), it was reasonably likely that a reasonably serious injury would
result.”  Peabody Midwest, 762 F.3d at 616.

For
violations that contribute to the hazard of an ignition, fire, or explosion,
the Commission has held that the third Mathies element is satisfied when
a “confluence of factors” is present that could have triggered an ignition,
fire, or explosion, under continued normal mining operations.  Zeigler Coal
Co., 15 FMSHRC at 943; Texasgulf, 10 FMSHRC at 501; see,
e.g., Paramont Coal Co. Va., LLC, 37 FMSHRC 981, 984 (May 2015). 
In particular, “the confluence of factors
analysis requires consideration of the particular circumstances in the mine,
including the possible ignition sources, the presence of methane, and the type
of equipment in the area.”  Excel Mining, LLC, 37 FMSHRC 459, 465 (Mar.
2015). 

The fourth Mathies factor
requires the Secretary to show, by a preponderance of the evidence, a
reasonable likelihood that the injury in question will be of a reasonably
serious nature.  Mathies, 6 FMSHRC at 3.  The Commission noted in Mathies
itself that, “as a practical matter, the last two elements will often be
combined in a single showing.”  Id.  Consistent
with this approach, MSHA inspectors determine whether a violation meets the criteria
for S&S by the likelihood of injury and the expected severity of injury,
which correspond to the third and fourth Mathies elements.[13]

C.  Negligence

Negligence
is not defined in the Mine Act.  The Commission has found that “[e]ach
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.”  A.H. Smith Stone Co., 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 Jim Walter Res., Inc., 36 FMSHRC
1972, 1975-77 (Aug. 2014) (requiring Secretary to show that operator failed to
take specific action required by standard violated); Spartan Mining, 30
FMSHRC at 708 (negligence inquiry circumscribed by scope of duties imposed by
regulation violated).  In this regard, the gravamen of high negligence is “an
aggravated lack of care that is more than ordinary negligence.”  Brody
Mining, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co.,
20 FMSHRC 344, 350 (Apr. 1998)). 

Commission
judges are not required to apply the level-of-negligence definitions in Part
100 penalty regulations and may evaluate negligence from the starting
point of a traditional negligence analysis rather than from the Part 100
definitions.  Brody Mining, LLC, 37 FMSHRC at 1701; accord Mach
Mining, 809 F.3d at 1263-64.  Thus, in making a negligence determination, a
Commission judge is not limited to an evaluation of allegedly mitigating
circumstances, but 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.  Brody, 37 FMSHRC at
1701. 

Although
MSHA’s regulations regarding negligence are not binding on the Commission, see
Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), as
noted, MSHA has defined 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.  

30 C.F.R. § 100.3, Table X. 

I
note that the Commission generally gives deference to MSHA’s regulations.  See
Auer v. Robbins, 519 U.S. 452, 461 (1997) (an agency’s interpretation of
its own regulation is controlling unless “erroneous or inconsistent with the
regulation”); cf. Hidden
Splendor Res., Inc., 36 FMSHRC 3099,
3101-02 (Dec. 2014) (holding that the ALJ was not bound by the Secretary’s
definition of “high negligence” set forth in 30 C.F.R. § 100.3(d)). 
Under MSHA’s standard, high negligence is
properly designated when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.”  Id.  This analysis 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).  MSHA’s negligence
regulation further provides that mitigation is an affirmative action by the
operator 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.  Id. 

D. Penalty Criteria

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);
30 U.S.C. § 820(i).  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,
30 FMSHRC at 723.

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, 37 FMSHRC at 1880 n.1 (Jordan, Chairman and Nakamura,
Comm’r concurring); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (holding that an agency’s
interpretation of its own regulation should be given controlling weight unless
it is plainly erroneous or inconsistent with the regulation).  The Secretary’s
assessment is not binding, but operates as a lodestar, since the 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 two citations at issue in this case.

IV. FURTHER FINDINGS OF FACT,
ANALYSIS, AND CONCLUSIONS OF LAW

A. Accumulation Violation, Citation No. 8450924

As discussed above, on July 14, 2014, Reynolds
found that the accumulations which ran the length of the slope belt constituted
a violation of 30 C.F.R. § 75.400, a mandatory safety standard.  P. Ex. 2.   Reynolds
designated the violation as S&S, and reasonably likely to result in lost
workdays or restricted duty for six miners.  P. Ex. 1.  He found that the violation
was attributable to Respondent’s high negligence. 

The Secretary requests that I affirm
the citation as written.  Sec’y Br. 32.  The Respondent requests reduction of
the negligence designation, deletion of the S&S designation, and reduction
of the number of persons affected.  Resp’t’s Br. 3, 30.  Although Respondent
does not contest the fact of the violation, it argues that the Secretary has
not met his burden to support the second, third, and fourth prongs of the Mathies
test.  Resp’t’s  Br. 15.  Respondent argues that the coal was wet and mixed
with other material, that the accumulations were being shoveled, and that
safety measures were in place to negate any risks of ignition or explosion.  Accordingly,
Respondent argues that ignition was unlikely, and even if an ignition were to
occur, injuries would be minimal.  Resp’t’s Br. 16.

1. Citation No. 8450924 was Appropriately Written
as S&S. 

I find that the large amount of
coal accumulations in continuous contact with the belt rollers created the
possibility of a belt fire, which constitutes a discrete safety hazard under
the second element of the Mathies test.  I find unpersuasive the Respondent’s
argument that the dampness of the accumulations and the absence of any ignition
sources negate the existence of a hazard.  See Resp’t’s Br.16.  Although
Reynolds conceded that he did not measure the heat of the belt parts that were
in contact with the coal, and did not issue an imminent danger withdrawal order
because he did not observe a visible flame or any smoldering or smoke, I do not
find these facts fatal to the Secretary’s assertions that the accumulations
created a discrete safety hazard. Tr. 100-101, 178.  The Commission has long held that “wet coal accumulations pose a
significant danger in underground coal mines.”  Consolidation Coal Co., 35
FMSHRC 2326, 2329-30 (Aug. 2013); Black
Diamond, 7 FMSHRC at 1120-21 (rejecting the argument that wet coal does not
pose a dangerous combustible risk because wet coal can dry out and fuel or propagate
a fire or explosion); see also Continent Res. Inc., 16 FMSHRC 1226,
1230-32 (June 1994) (affirming S&S determination and holding that
“accumulations of damp or wet coal, if not cleaned up, can dry out and
ignite”).  

I
also find that the discrete safety hazard created by the accumulations was
reasonably likely to cause harm, satisfying the second prong of the Fourth
Circuit’s application of Mathies.  Knox Creek, 811 F.3d at

162.  In other words, the accumulations were reasonably
likely to ignite, and such an ignition would likely case cause harm.  Respondent
argues that the wetness of the coal and the 45% recovery rate reduce the
likelihood of an ignition.  Resp’t’s Br. 16. Reynolds’ testimony, however, establishes
that the frictional heat from the belt would dry the coal under continued
normal mining conditions, and the accumulations touching the belt therefore
constituted a potential ignition source.  Tr. 70.  In fact, Reynolds testified
that three of the bottom roller brackets that he observed were hot from contact
with the moving belt.  Tr. 78.  Phipps conceded that if heat is applied to wet
material, the water would eventually evaporate, drying the material.  Tr. 410.

Respondent also argues that the likelihood
of ignition was reduced due to the smaller percentage of combustible material
being transported by the belt.  Resp’t’s Br.16-18.  Phipps testified that 44 to
46 percent of what is mined by weight is coal, and the rest is rock or other
rejected material.  Tr. 390.  Although Reynolds conceded
the possibility that only 45 percent of the material transported by the belt
was coal, this fact did not change his opinion that the accumulation
constituted an S&S violation.  Tr. 178, 179, 180, 200.  Reynolds’
determination is consistent with Commission precedent holding that “even wet coal accumulations are prohibited by section
75.400 because they can dry out in a mine fire and ignite.”  Manalapan
Mining Co., Inc., 32 FMSHRC 690, 698 (June 2010) (citing Utah Power
& Light Co., 12 FMSHRC 965, 968-69 (May 1990) (internal citations
omitted).  Reynolds explained that if coal is present, it is
combustible, and any ignition will spread through both the combustible
and noncombustible material.  Tr. 200.  Therefore, due to the frictional heat
sources present, I find that the coal accumulations presented an ignition
hazard that would likely result in an injury under the Fourth Circuit’s
application of the Mathies test.  See Knox Creek, 811 F.3d
at 162 (“[F]or a violation to contribute to a
discrete safety hazard, it must be at least somewhat likely to result in
harm.”). 

Regarding the third Mathies factor,
Respondent argues that the reasonable likelihood of an injury was so low that Reynolds
allowed the belt to continue operating, and therefore the S&S designation
should be deleted.  Resp’t’s Br. 12.  Reynolds permitted the belt to continue
operating because, after consultation with Webster, he
determined that the accumulations could be cleaned up without immediate
danger.  Tr. 292.  The Fourth Circuit and Seventh Circuit’s Mathies application
requires an assumption that the hazard occurred, and the third prong of the
test focuses on whether the hazard is likely to result in a serious injury.  Knox
Creek, 811 F.3d at 162; Peabody
Midwest, 762 F.3d at 616.  Based on the extent of the accumulations and the
presence of ignition sources, I credit Reynolds’ testimony that if the
accumulations were left unabated, then an ignition would likely result.  Tr.

105.  Circuit Court precedent indicates that equipment operating in coal
accumulations constitutes an ignition source for S&S purposes, even absent
any defects in the equipment.  See Buck Creek, 52 F.3d at 135 (affirming
S&S designation where the frictional heat from a roller turning in coal
dust could easily cause a fire, despite no evidence that the roller was either
hot or defective).  Additionally, Commission judges have found accumulation
violations to be S&S based solely on contact between accumulated coal dust
and non-defective equipment that could constitute an ignition source.  See, e.g.,
American Coal, 36 FMSHRC 1311, 1343 (May
2014).  High levels of methane may also
increase the risk of ignition and are appropriately considered in a
confluence-of-factors analysis.  Excel Mining, LLC, 37 FMSHRC at 462.  The
mine was on a 5-day spot inspection because the mining process liberated an
excessive amount of methane.  Tr. 188.   In short, the gassiness of the
mine, coupled with the extent of accumulations touching hot rollers, created a
dangerous combination that was reasonably likely to cause an ignition. 

Regarding the fourth Mathies factor
and the likelihood that any injury caused by the hazard would be of a
reasonably serious nature, Respondent argues that the violation is not S&S because
the CO detectors on the belt would alert miners to fire, and the slope’s fire
suppression equipment would prevent any serious injury.  Resp’t’s Br. 18.  Redundant
safety measures do not constitute a defense to an S&S allegation.  The Commission has held that extra precautions may
reduce risks, but do not make a violation non-S&S.  Consolidation Coal
Co., 35 FMSHRC at 2330.  The Seventh Circuit has specifically rejected the
contention that fire prevention and safety measures mitigate the S&S status
of an accumulation violation.  Buck Creek, 52 F.3d at 135; see also Cumberland Coal Res., LP, 33 FMSHRC at 2369 (treating redundant mandatory
safety protections as a defense to S&S findings would lead to the anomalous
result that every protection would have to be nonfunctional before a S&S
finding could be made), aff'd sub nom., Cumberland Coal
Res., LP v. Fed. Mine Safety & Health Review Comm’n, 717 F.3d 1020,
1029 (D.C. Cir. 2013).   Even Rorer testified that an extinguished fire would
still generate smoke, which could be inhaled by a miner downwind.  Tr. 354.
 In addition, Reynolds testified that in the event of an ignition, not only
would miners in the immediate area be affected by flames, smoke inhalation, or
carbon monoxide exposure, but miners downwind of the vent would also be exposed
to smoke and carbon monoxide.  Tr. 106.  Furthermore, the slope is next one of two
designated escapeways, potentially exposing miners to burns and smoke
inhalation as they attempt to exit a mine during an emergency.  Tr. 191.  Smoke inhalation and burns
constitute serious injuries for purposes of the Mathies analysis.  Amax
Coal, 19 FMSHRC 846, 847 (May 1997) (upholding judge’s finding of
S&S based on evidence of smoke inhalation and burns as serious injuries) . 
Accordingly, I reject the Respondent’s argument that the presence
of CO detectors or the fire suppression system justifies deleting the S&S
designation. 

In
conclusion, I find that even if the accumulations were wet and the belt
primarily transported non-combustible material, the reasonable likelihood of an
ignition risk remained.  Frictional heat was likely to dry the coal
accumulations, and high methane concentrations compounded the risk of ignition. 
Any injury from an ignition would likely result in smoke inhalation and burns,
which constitute serious injuries likely to result in lost work days or
restricted duty.  In these circumstances, I find that the citation was properly
designated as S&S.

2. Citation No. 8450924 was the
   Result of Respondent’s High Negligence.

As noted above, 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 at 1910.  Reynolds testified that, based on the extent of
the accumulations observed, mine managers or examiners, who traveled the slope
numerous times every day, should have recognized and dealt with the accumulations. 
Tr. 109.  Accordingly, Reynolds designated Respondent’s negligence as “high.”  P.
Ex. 2. 

Respondent argues that its actions
regarding the accumulations were consistent with what a reasonably prudent
operator familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation would have done in the circumstances. 
Resp’t’s Br. 14.  The Respondent argues that Mach’s mitigation efforts weigh in
favor of a lower negligence designation.  Resp’t’s Br. 5-8.   Respondent argues
that the accumulations increased significantly between Adams’ initial
examination and Reynolds’ inspection about two hours later.  In light of that alleged
rapid build-up, Respondent argues that the actions it took were sufficient to mitigate
Reynolds’ high negligence designation.  Resp’t
13.  

Respondent also argues that while it
awaited the arrival of the new dewatering system, conditions on the slope belt
were being monitored and abated.  As noted, the
dewatering system was installed at the mine nearly two months after the
issuance of Citation No. 8450294.  Webster testified that ten miners
were shoveling the belt around the clock.  Tr. 283, 304; Resp’t’s Br. 13.  Phipps testified that additional miners were hired to
shovel as needed, and company foremen patrolled the belt for rollers contacting
accumulation.  Tr. 383, 389, 399.   I note, however, that only five to
seven miners were shoveling at the time of the inspection, and they were
located at the top of the slope belt where the accumulations were less
significant.  

While installing a dewatering
system was a prudent long-term decision, Respondent’s belated reaction to the
recurring washback issue fails to mitigate its negligence.   Rorer conceded
that it would have been possible to shut the long wall down and install a dewatering
system before mining the longwall panel, but Respondent declined to do so.  Tr.

367.  As indicated by the receipt of another accumulation citation just two
weeks after the instant citation, Respondent’s mitigation efforts were
inadequate to address the accumulation hazards.  P. Ex. 5. 

Reynolds testified that the washback
phenomenon was a predictable consequence of Respondent’s decision to use the
belt conveyor to transport water out of the mine, and opined that since the
Respondent was using the belt conveyor to discharge water, its pumping system
was inadequate to handle the amount of water encountered.  Tr. 97-99.  Although
Respondent argues that the severity and timing of the washback was unpredictable,
it also admits that the phenomenon itself was an inevitable consequence of
using the slope belt to remove water.  Tr. 385; Resp’t’s Br. 14.  As the
Secretary argues, the development of accumulations is therefore directly attributable
to Respondent’s choice to expel water using the slope belt.  Sec’y’s Br. 19;
see also Tr. 99, 199. 

I find that despite the foreseeability
of the washback accumulations and the assignment of miners to shovel the belt
each shift, Respondent did not implement adequate measures to keep the belt clear
of accumulations.  In fact, Respondent was only able to keep the slope clear an
estimated ten percent of the time in the month prior to the issuance of
Citation No. 8450294.  Tr. 403; R. Ex. 1; Sec’y’s Br. 20.  Given the high
methane concentrations within the mine, Respondent should have been
particularly attentive to recurring accumulations with possible ignition
hazards present. Tr. 334.

Both the Secretary and Respondent
have directed my attention to a prior case involving a section 75.400 citation
issued to Respondent at Mach No. 1 Mine for slope belt accumulations.  See
Mach Mining, LLC, 33 FMSHRC 763 (March 2011) (ALJ).  In that case, Judge
Manning deleted the Secretary’s S&S designation due to the wetness of the
accumulations and the redundant fire-suppression safety measures.  Id.
at 773.  The accumulations at issue in that case, however, were significantly
less extensive than those at issue here.  Id. at 770.  Furthermore, as
discussed above, precautionary safety measures do not make a violation
non-S&S.  Consolidation Coal Co., 35 FMSHRC at 2330; see also
Buck Creek Coal, Inc., 52 F.3d at 135; Cumberland
Coal Res., LP, 33 FMSHRC at 2369.  Judge Manning’s decision was not
appealed and is not binding here.   I find it particularly significant,
however, because it indicates that Respondent was aware of the issues caused by
the washback phenomenon for at least five years prior to the installation of
the dewatering system.

In sum, I conclude that Respondent failed
to address serious and largely self-imposed accumulation hazards that developed
over the course of several shifts in a particularly gassy mine.  I do not find
persuasive Respondent’s contention that its actions were consistent with what a
reasonably prudent operator familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation would have done in the
circumstances, particularly since Respondent knew of the washback problem as
early as 2011.  Resp’t’s Br. 14.  Furthermore, in the 15 months preceding
Citation No. 8450294, Respondent received 58 citations for violating section 75.400.  P. Ex. 2.  Respondent was aware of the frequent
and extensive accumulations caused by using the slope belt to transport water
and the consequent washback accumulations.  Respondent’s failure to timely
assign sufficient miners to correct the recurring problem demonstrated more than
an ordinary lack of care.  The totality of circumstances warrants a finding of
high negligence.

B.  Recordkeeping Violation, Citation No. 8540926

The Respondent
requests that Citation No. 8540926 be vacated, the negligence designation be
reduced, and the S&S designation be deleted.  In support of its request to
vacate, Respondent argues that the accumulations at the time of Adams’ examination
were not in contact with the slope belt, that Adams’ notations satisfied 30 C.F.R. § 75.363(b), and that Respondent did not have
fair notice that MSHA required more detail in recordkeeping notations.  Resp’t’s
Br. 20. 

Adams
testified that at the time of his shift examination two hours before Reynolds’
inspection, Adams observed spillage on the belt due to washback, but did not
observe accumulations touching the belt.  Tr. 228-29.  Adams’
testimony is corroborated by Webster, who stated that accumulations were not
touching the belt at 6:00 a.m., and by Rorer, who passed by the belt at 7:15 a.m. 
Tr. 299; Tr. 342, 344. 

While it is possible that the
accumulations occurred rapidly as a result of the washback, considering all the
circumstances of this case, I credit Reynolds’ testimony that accumulations had
existed for several shifts. Tr. 64.  Adams conducted his slope belt
examination as he drove out of the mine.  Reynolds conducted his inspection on
foot by walking the length of the belt from top to bottom.  Tr. 56, 196, 239.  Reynolds
testified that the majority of the accumulations were on the back side of the
belt, opposite the travel way, and partially obstructed from view by the steel
I-beams and the belt itself.  Tr. 56, 196-98.  Reynolds opined that it
would be difficult to conduct a thorough examination of the belt from a moving
vehicle, as Adams had done, due to these obstructions.  Tr. 197-98.  Reynolds also
testified that there were fewer accumulations on the side of the belt facing
the road, and it appeared that those accumulations had been cleaned.  Tr. 68. 

In addition, at 650 feet down the
slope, Reynolds observed that the slope belt had cut into the I-beam for approximately
one-eighth of an inch.  He estimated that this would have taken at least 24
hours for the rubber belt to cut into the steel I-beam.  Tr. 78-79.   Webster confirmed
that it would have taken some time for the rubber belt to cut one-eighth of an
inch into a three-eighths of an inch-thick, steel I-beam.  Tr. 301-02.  As
noted above at note 10, I have credited the testimony of Reynolds and Webster
that the friction between the belt and I-beam likely existed for a significant
period of at least 24 hours.   As such, it should have been noted by Adams.   The
frictional damage to the I-beam undercuts Respondent’s claim that it was
actively monitoring belt conditions because Adams or other shift examiners
should have noticed and documented such belt damage, and they did not.  Based on
the facts outlined above, I find that the Secretary proved by a preponderance
of the evidence that the accumulations existed at the time of Adams’ inspection
and were in contact with the belt rollers.

1.      Citation
No. 8450926 was Properly Issued for Respondent’s Failure to Record the Nature
and Location of Hazardous Conditions as Required by 30 C.F.R. § 75.363(b).   

Respondent
argues that section 75.363(b) requires five elements:

[1] A record shall be made of any
hazardous condition and any violation of the mine mandatory health or safety
standards found by the mine examiner. [2] This record shall be kept in a book
maintained for this purpose on the surface of the mine. [3] The record shall be
made by the completion of the shift on which the hazardous condition or
violation of the mine mandatory health or safety standards is found and [4]
shall include the nature and location of the hazardous condition of the
violations and [5] the nature of the corrective action taken.

30 C.F.R. § 75.363(b); Resp’t’s
Br. 23.  Based on these elements, Respondent argues that Adams’ notation of “slope
belt needs cleaned—work in progress” satisfied the first four requirements, and
was insufficient only in that it did not specifically refer to precise
locations along the belt where accumulations had occurred.  Id.  The
Secretary argues that the notation was inadequate because it failed to identify
the specific hazard of accumulations touching the running belt in six
locations.  Sec’y Br. 24; Tr. 113. 

Although my
research reveals that the Commission has not addressed section 75.363(b), the
Secretary points out that prior Commission ALJ decisions have recognized three
discrete elements pertaining to records kept under the requirements of section
75.363(b): the nature of the hazard, the location of the hazard, and the
corrective action taken.  Drummond Company, Inc., 25 FMSHRC 644,
646 (Oct. 2003) (ALJ).  The Secretary contends that Adam’s notation is
deficient in that it fails to document the extent of the accumulations and the
locations where the rollers and the moving belt were in contact with the
accumulations.  Tr. 116-17; Sec’y’s Br. 23.  Respondent argues that Adams’
notation regarding the accumulations was sufficient to meet the requirements of
section 75.363(b) because the notation of “slope belt needs cleaned” would have
been understood by a reasonable person familiar with the mining industry to
mean that the entire belt needed cleaning from top to bottom.  Resp’t’s Br. 9,
20, 22-23. 

The purpose of
section 75.363(b) is to create a history of conditions in the mine that “mine
management can use . . . to determine if the same hazardous conditions are
occurring and if the corrective action taken is effective.”  Safety
Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9803
(March 11, 1996) (codified at 30 C.F.R. § 75.363).  The adequacy of records is
analyzed from the perspective of a miner reading the record for requisite
information.  Twentymile Coal Co., 34 FMSHRC 2138, 2156 n. 22 (ALJ
2012).  

Reynolds
testified that the “slope belt needs cleaned—work in progress” notation was
inadequate because slope belts generally need cleaning every shift.  Tr. 117.  While
the notation may have been generally understood by a reasonable miner to indicate
that the entire slope belt needed cleaning, the notation failed to give notice
as to the specific hazards posed by the slope belt accumulations, as evidenced
by the fact that six miners cleaning the belt during Reynolds’ inspection were
working at the top of the belt where there were fewer accumulations, rather
than farther down the belt where there were greater accumulations near possible
ignition sources.  Tr. 126.  

In addition,
the nearly identical previous entries for the slope belt examinations and
Respondent’s long history of slope belt accumulation citations indicate that
the entries were not sufficiently specific to serve the regulation’s purpose of
demonstrating to mine management whether its corrective actions were effective.
 I therefore find that Adams’ “slope belt needs cleaned—cleaning in progress”
notation did not identify the nature or location of the hazard, nor the nature
of the corrective action, i.e. that the slope belt was actually cleaned at the
locations of the numerous accumulation hazards. 

2.     
Respondent had Fair Notice Regarding the Requirements of Section
75.363(b).

The Respondent also argues that it
did not have fair notice that its recording practices violated 30 C.F.R. § 75.363(b).  Resp’t’s Br. 7.  Fair notice
provides a defense when the standard at issue is “so incomplete, vague,
indefinite, or uncertain that [persons] of common intelligence must necessarily
guess at its meaning and differ as to its application.”  Ideal Cement Co.,
4 FMSHRC 2128, 2129 (Dec. 1982).  On the other hand, where a
regulation is clear, “the terms of the provision must be enforced as they are
written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results.”  Lode Star
Energy, Inc., 24 FMSHRC 689, 692 (July 2002).

Regulatory
interpretation is a two-step analysis.  Walker Stone, 19 FMSHRC 48, 51
(Jan 1997), aff’d, 156 F.3d 1076, 1081 (10th Cir. 1998).  The first step
is to determine whether the regulation is clear and unambiguous.   Northshore
Mining Co. v. Sec’y of Labor, 709 F.3d 706, 709 (8th Cir. 2013).  The
regulation must be applied as written where the regulatory language is clear
and unambiguous.  Id.  If the regulation is ambiguous, the second step
is to determine whether the agency’s interpretation is reasonable.  Plateau
Mining Corp. v. Fed. Mine Safety & Health Review Comm’n, 519 F.3d 1176,
1192 (10th Cir. 2008) (citing Auer v. Robbins, 519 U.S. 451, 461
(1997)).  An interpretation is reasonable unless it is plainly erroneous or
inconsistent with the regulation.  Id.  In making this reasonableness
determination, the Commission considers the regulatory language and history.  Twentymile
Coal, 36 FMSHRC 2009, 2012-13 (Aug. 2014).

Even
absent actual notice, the Secretary may charge an operator with a violation
when a reasonably prudent person familiar with the protective purposes of the
cited standard and the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining industry, would
have recognized a hazard warranting corrective action within the purview of the
applicable regulation.  LaFarge North America, 35 FMSHRC at 3500-01; Ideal
Cement Co., 12 FMSHRC at 2415-16; Alabama By-Products Corp., 4 FMSHRC
at 2129.  The Secretary argues that the
requirements of section 75.363(b) are explicit: the record of the hazard must contain
the nature of the hazard, the location of the hazard, and the correction action
taken.  Sec’y’s Br. 23.  As discussed above, Respondent argues that the plain
language of the statute contains five requirements: a record maintained in a
book on the surface of the mine that identifies the nature and location of
hazards during shift inspections and the corrective action taken to alleviate those
hazards. 

A
review of the record book itself indicates that notations for other belt
examinations contained the elements that the notations for the slope belt
lacked.  For example, the July 9 day shift entry for the east belt states:
“Need to clean under rollers from 3 to 8.”  The July 10 day shift entry for the
SM3 belt states: “Need to clean 7A flowthrough.”  Both of these entries were
followed by the additional notation “done,” and initials.  R. Ex. 2.  As demonstrated by
these notations, Respondent recognized the essential elements of the regulation
and properly recorded at least some of the hazards identified during its
examinations prior to the issuance of Citation No. 8450962.  Accordingly, I
find that Respondent had fair notice regarding the plain language of the
requirements of section 75.363(b).  The regulation at issue is clear and
unambiguous, and thus should be interpreted in accordance with its plain
language.  

Even assuming that the regulation
is ambiguous, the Secretary’s interpretation is reasonable and should be
accorded deference.   See Auer v. Robbins, 519 U.S. 452, 461
(1997).  As noted above, the purpose of
section 75.363(b) is to create a history of conditions in the mine that “mine
management can use . . . to determine if the same hazardous conditions are
occurring and if the corrective action taken is effective.”  Safety Standards
for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9803 (March 11,
1996) (codified at 30 C.F.R. § 75.363).  I find that the
Secretary’s interpretation of the regulation is consistent with this purpose.  To allow generalized notations like Adams made to
satisfy this standard would nullify the regulation’s requirements to identify
the nature and location of the hazard, and the specific identification of the
corrective action taken for such hazard, thereby undermining the purpose of the
regulation.  Accordingly, I find that Adams’ notation of “slope belt needs
cleaned—cleaning in progress” does not satisfy the requirements of 30 C.F.R. §
75.363(b).    

3.     
Citation No. 8540926 Was
Appropriately Written as S&S. 

Recording hazardous conditions
discovered in a shift examination is crucial to the health and safety of miners. 
See, e.g.,  American Coal Co., 34 FMSHRC 2058, 2082 (ALJ
2012).  In the context of an S&S designation, the Commission must determine
whether the failure to record contributed to a hazard that is reasonably likely
to result in a serious injury.  Id.  Reynolds issued Citation No.
8540926 because, in his opinion, Adams’ notation did not identify the nature
and location of the accumulations hazards that were prevalent at numerous
locations along the slope belt.  As discussed above, accumulations touching the
belt and rollers constituted an S&S violation that contributed to the
discrete safety hazard of an ignition that was reasonably likely to result in a
serious injury.  Accordingly, I turn to the issue of
whether the failure to properly record the nature and location of the slope
belt accumulations contributed to the discrete safety hazard that management
and miners would be unaware of the nature and location of the ignition hazards
and any corrective actions taken, thereby enhancing the likelihood of
reasonably serious injuries resulting in lost work days or restricted duty. 

Reynolds designated Citation No. 8540926
as reasonably likely to result in a lost workdays or restricted duty injury because
the location and nature of the accumulation hazards were not detailed in the
examination report.  Consequently, management and miners would not be able to
immediately address the accumulations most likely to result in ignitions.  Tr. 130.
 In fact, at the time of the inspection, miners were shoveling where ignition
hazards were not present.   Adams’ poor and deficient documentation of the
accumulation and ignition hazards present were reasonably likely to enhance an
actual ignition during continued mining operations,  and the ignition itself was
reasonably likely to result in serious injuries of smoke inhalation and burns.

Respondent argues that Adams’ notation
“slope belt needs cleaned—work in progress”  served the purpose of notifying
miners and management of specific hazards in the mine because six workers were
assigned to shovel the accumulations on the slope belt, potentially abating the
discrete hazards that might arise from inadequate reporting.  Tr. 242, 317; Resp’t’s
Br. 29.   I disagree.   I reject this argument.   The belt was running.  No
specific hazards were mentioned, nor was the specific location of such hazards
mentioned.   Further, as Adams testified, the six or so miners were shoveling
at the top of the slope, rather than addressing those areas of the belt where the
accumulations were touching the rollers or the belt itself.  Tr. 126.

In addition, 27 miners were
assigned to clean the belt after the issuance of Citation No. 8450924. 
Tr. 132.  It took the 27 miners between two and three days to abate the hazards.
 P. Ex. 2.  It is therefore unlikely that the six miners assigned to shovel the
belt on the morning of July 14 had any significant effect on abating the hazards,
even had they been shoveling in locations were the accumulations touched the
belt and rollers.  Without noting the specific location of the hazards
observed, Adams’ notation did little to enable miners or management to abate
hazards within the mine, and thus rendered the examination reporting ineffective in carrying out the purpose of the regulation. 
Accordingly, I uphold the S&S designation and find that Adams’ notations
failed to properly record the location and nature of the accumulations, thereby
contributing to the reasonable likelihood of an ignition that would result in
serious injuries.

4.     
Citation No. 8540926 Was
Appropriately Written as High Negligence

Respondent argues that examiner Adams’
notations accurately reflected slope conditions at the time of his inspection, and
accordingly his recordkeeping was not negligent.  Resp’t’s Br. 27. 
Although Reynolds conceded that Adams may have observed a “minimally less
extensive” amount of accumulations during his examination, I have found that the
Secretary established that the accumulations had accrued over more than one
shift, and that Adams’ examination from a moving vehicle precluded him from
observing the accumulations and ignition sources on the far side of the belt.  Tr.
139-141. 

Respondent also argues that Adams’
notation provided an opportunity for the examiner and the foreman to discuss
accumulation issues.  According to Adams, his July 14, 2014 entry was standard
practice at the mine, and the mine foreman Rorer “would know what [his entry]
meant.”  Tr. 264.  Adams testified that when he spoke to Rorer after the
examination at 7 a.m., Adams told Rorer that the entire belt needed to be
cleaned.  Tr. 262.  Adams further testified that after his examinations, he usually
would verbally convey to Rorer where shoveling was needed, rather than
indicating such locations in the record book.  Tr. 264, 357.   However, miners
going underground after the examination are entitled to review the examination
book to determine the nature and location of hazardous conditions and
violations found, and the corrective actions taken.  Allowing verbal
communications between examiners and supervisors to substitute for the written
record required by section 75.363(b) would deprive miners of this right.  The plain
language of section 75.363(b) does not allow verbal communication to substitute
for its written recording requirements.  Furthermore, despite his discussion
with Rorer, Adams’ notation did not result in any significant action regarding
the abatement or mitigation of the accumulations hazards until after the
citation was issued.  In addition, Respondent’s belt examination book entries for
July 9 and 10 indicate that Respondent attempted to at least comply with the
standard’s specific location requirements when it wanted to do so.  In these
circumstances, I find that Respondent’s examiner was highly negligent in
failing to properly document the nature and location of the numerous accumulation
hazards, and the corrective action taken. 

V.
Civil Penalty

The Secretary initially proposed a
penalty of $15,570 for Citation No. 8450924 and a penalty of $6,996 for
Citation No. 8450926.  In his post-hearing brief, the Secretary requested that
the proposed penalty be increased to a total of $45,000 for both citations, but
provided no supporting rationale.  Pet’r’s Br. 32.  At trial, the
Secretary did not move to amend its Petition for the Assessment of Civil
Penalty to increase the proposed penalty. 

The parties stipulated that in
2013, the Mach Number One Mine produced 6,694,630 tons of coal and its
controlling entity produced 18,772,988 tons of coal.  The parties also
stipulated that the penalties proposed by the Secretary in this case will not
affect the ability of Mach to continue in business, and that Mach demonstrated
good faith in abating the violations.  Respondent was cited 58 times for
violations of section 75.400 in the fifteen months prior to the issuance of
Citation No. 8450924.  Given this history of violations, my confirmation of inspector
Reynolds’ gravity, negligence, and S&S determinations, and Respondent’s
good-faith abatement of the violation, I assess a penalty of $15,570 for
Citation No. 8450924 under the penalty criteria set forth in Section 110(i) of
the Act.

Citation
No. 8450926 was the first time Respondent was cited under 30 C.F.R. § 75.363(b).  Given the absence of any
history of violations, my confirmation of Reynolds’ gravity, negligence, and
S&S determinations, and Respondent’s good-faith abatement of the violation,
I assess a penalty of $6,996 for Citation No. 8450926 under the penalty
criteria set forth in Section 110(i) of the Act.

VI.
Approval of Partial Settlement

On
October 29, 2015, the Secretary submitted a motion to approve settlement for 11
citations, and proposed a reduction in penalties from $34,317 to $25,461.  The Solicitor states that Citation No. 8439597 has been
vacated.  The Secretary’s discretion to vacate a citation or order is not
subject to review.  See, e.g., RBK Constr., Inc., 15 FMSHRC 2099
(Oct. 1993).  The Solicitor also requests that:

Citation
No. 8439593 be modified to reduce the likelihood of injury or illness from
“reasonably likely” to “unlikely,” and to delete the significant and
substantial designation;

Citation
No. 8439594 be modified to reduce the likelihood of injury or illness from
“reasonably likely” to “unlikely,” and to delete the significant and substantial
designation;

Citation
No. 8439599 be modified to reduce the level of negligence from “high” to
“moderate;” and

Citation
No. 8451307 be modified to reduce the number of persons affected from “ten
persons” to “five persons.”

The remaining citations and penalties are unchanged.           

Pursuant to 29 C.F.R. § 2700.1(b) and Federal Rule of
Civil Procedure 12(f), I strike paragraph four from the Secretary’s Motion to
Approve Settlement as immaterial and impertinent to the issues legitimately
before the Commission.  The paragraph incorrectly cites and interprets the case
law and misrepresents 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.

I have considered the representations and
documentation submitted in this case, and I conclude that the proffered settle­ment
is appropriate under the criteria set forth in section 110(i) of the Act.  The
settlement amounts are as follows:

Citation No.

Assessment

Settlement

8439592

$334

$334

8450925

$745

$745

8439593

$2,282

$2,282

8439594

$1,944

$1,944

8451302

$108

$108

8439595

$460

$460

8451306

$11,306

$11,306

8439598

$2,282

$2,282

8439599

$5,503

$2,000

8451307

$8,893

$4,000

TOTAL

$33,857

$25,461

VII. ORDER

Citation Nos. 8450924 and 8450926 are
AFFIRMED, AS WRITTEN. 

It
is ORDERED that Citation No. 8439593 be MODIFIED to reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely,” and to
delete the significant and substantial designation.

It
is ORDERED that Citation No. 8439594 be MODIFIED to reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely,” and to
delete the significant and substantial designation.

It
is ORDERED that Citation No. 8439599 be MODIFIED to reduce the
level of negligence from “high” to “moderate.”

It
is ORDERED that Citation No. 8451307 be MODIFIED to reduce the
number of persons affected from “ten persons” to “five persons.”

To the extent it has not already
done so, Mach Mining is ORDERED to pay a total civil penalty of $48,027 for
the litigated and settled citations within thirty (30) days of the date of this
Decision and Order.[14]

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution: (Certified Mail)

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

Christopher D. Pence, Esq., Hardy
Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV
25329

[1]
In this decision, “Tr.” refers to the hearing transcript, “ALJ Ex. #” refers to
the ALJ’s exhibits, “P. Ex. # refer to the Petitioner’s exhibits, and “R. Ex. #”
refers to the Respondent’s exhibits.  ALJ Exs. 1 and 2; P. Exs. 1, 2, 4, and 5;
and R. Exs. 1 and 2 were received into evidence at the hearing.   R. Ex. 4
(Longwall Production Reports for July 12-14, 2014) and R. Ex. 5 (Continuous
Miner Production Reports for July 12-14, 2014) were submitted after the
hearing, and I now admit them into the record. 

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

[3]
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]
David Adams worked full time for Respondent from 2007 until March of 2015. 
Tr. 212.  At the time of the inspection, Adams was a mine examiner, who
was required to check all working sections, belt lines, and air courses for
hazardous conditions or violations.  Tr. 214.  At the time of the hearing,
Adams had retired and was working for Respondent as a part-time contractor.  
Tr. 212.  Adams began mining in 1972, and held mine examiner, mine
manager, EMT and electrical certifications.  He has thirty years of experience
in the mining industry.  Tr. 213-15. 

[5]
Rorer has worked at Mach for over seven years.  Tr. 321.  He spent one year
running a scoop, three years as a belt foreman, and the three years before the
inspection as a certified mine manager.  Tr. 321, 323-24.  Prior to
working at Mach, Rorer worked at the Eagle Valley mine for five years as a roof
bolter, and then at the Willow Lake mine as a roof bolter and a scoop
operator.  Tr. 322. 

[6]
Phipps has a Bachelor of Science in Mining Engineering.  Tr. 382.  He holds
underground mining foreman papers from Colorado, and a mine manager certification
for Illinois.  Tr. 382.  Phipps has seven years of underground mining
experience.  Tr. 382.  He began working for Mach Mining in 2013, and was
promoted to general manager in July of 2014.  Tr. 383.

[7]
Reynolds has been an inspector with MSHA for 7 years.  Tr. 33.  He is a
ventilation specialist and has a Bachelor’s of Science degree in Mining
Engineering.  Tr. 33.  Reynolds had 22 years of experience in underground
mining.  Before becoming an inspector, most of this experience involved
long-wall mining.  Tr. 34, 37. 

[8]
Webster has twenty years of experience in underground mining.  Prior to the
hearing, Webster worked for Mach for ten years, the last six as an out-by
boss.  Tr. 278.  As an out-by foreman, Webster led a team performing
various jobs and projects, other than producing coal.  Tr. 279-80.  Webster
has mine examiner and mine manager papers.  Tr. 279.  At the time of the
inspection, Webster supervised underground miners, who were performing tasks
other than extracting coal, such as shoveling the belt.  Tr. 277. 

[9]
The rail is part of the belt structure’s framework and supports the rollers on
the belt.  Tr. 57-58. 

[10]
This estimate is in dispute.  Webster testified that this result would have
occurred after a “long time.”  Tr. 301-302.  Adams testified that it would not
take very long, possibly four hours.  Tr. 268-269.  In light of their
substantial combined experience, I credit the testimony of Reynolds and Webster
indicating that the friction between the belt and I-beam likely existed for a
significant period of at least 24 hours, and I reject Adams’ contrary testimony.

[11]
The slope tripper drive provides increased power to the belt to keep it moving
and transporting coal.  Tr. 81.  The slope tripper drive is a transfer point,
where coal travels from one belt to another.  When coal is dumped onto another
belt, it travels through the air before landing on the next belt.  This
transfer often generates coal dust as the coal being transferred breaks and
creates dust.  Tr. 82. 

[12]
The Secretary, mine operators, and the federal
appellate courts have accepted the Mathies test as authoritative.  See
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016)
(noting federal appellate courts’ uniform adoption of Mathies test and
parties’ recognition of authority of the test); Mach Mining, LLC v. Sec’y of
Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria);
Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52
F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).

[13]
Inspectors are trained not to designate a violation as S&S, unless item
10.A on the citation form is marked “reasonably likely,” “highly likely,” or
“occurred,” and item 10.B is marked “lost workdays or restricted duty,”
“permanently disabling,” or “fatal.”  See MSHA, Program Policy Manual, Vol. I, § 104 (2003).

[14]
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.