Secretary of Labor v. Mach Mining, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Two dockets contained 20 citations at Mach Mining's underground coal mine. Judge Thomas P. McCarthy approved partial settlements, recognized one citation vacated by the Secretary, granted a directed verdict vacating two chirp-alert citations because section 75.821(a) required periodic testing and the Secretary did not prove the tests were missed, and decided five other citations after hearing. He affirmed violations involving nonpermissible diesel equipment, a malfunctioning methane monitor, an improperly located methane-warning signal, unsafe mobile equipment, and a deficient escapeway lifeline, while modifying negligence on two citations and assessing $43,280 total. The Commission later affirmed the two chirp-alert vacaturs.

Decision snapshot

• Governing standards: 30 C.F.R. §§ 75.1907(a), 75.1914(a), 75.342(a)(4), 75.342(b)(2), 75.380(d)(7)(i), and 75.821(a)
• Outcome: Mixed settlements, modifications, affirmances, and vacaturs resolved all 20 citations, with a $43,280 total penalty.
• Subsequent review: The Commission affirmed the directed verdict vacating Citations 8443200 and 8443901 in lake-2014-77-commission.
• Key point: Defective chirp alerts did not by themselves prove a failure to perform the periodic tests required by the cited standard, while the Secretary proved the separately litigated equipment and escapeway violations.

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:
202-434-9958 / FAX: 202-434-9949

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

MACH MINING, INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2014-0077

A.C. No. 11-03141-334561

Docket
No. LAKE 2014-132

A.C.
No. 11-03141-337701

Mine: No. 1 Underground Mine

AMENDED DECISION
AND ORDER

Appearances:               Thomas J. Motzny, Esq., Office of
the Solicitor, U.S. Dept. of Labor,

Nashville, Tennessee for
Petitioner

Christopher D. Pence, Esq., Hardy
Pence, PLLC, Charleston, West Virginia for Respondent

Before:                        Judge McCarthy

The Decision and Order that issued on May 25,
2016 is hereby amended pursuant to Commission Rule 69(c), 29 C.F.R. § 2700.69(c),
to read as set forth below.

I.  Statement of
the Case

These cases are before me are upon
two Petitions for 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). The two dockets at issue contain 20 citations alleging violations
of mandatory health and safety standards.

A hearing was held on July 22-24, 2014 in
Carbondale, Illinois. During the hearing, the parties introduced testimony and
documentary evidence.[1]
Witnesses were sequestered. Thereafter, the parties submitted post-hearing
briefs. During hearing, the parties made a joint motion to settle nine of the
20 citations. The joint motion to approve settlement was read into the record. Tr.
377-84.

In Docket No. LAKE 2014-0077, the
parties moved for the approval of the settlement of nine of the thirteen citations,
and proposed a reduction in penalties from $10,933 to $7,392.   Tr. 386. The Secretary
vacated Citation No. 8439443. Tr. 383. The Secretary’s discretion to vacate a
citation or order is not subject to review. E.g., RBK Constr. Inc.,
15 FMSHRC 2099 (Oct. 1993). The parties agreed to settle Citations No. 8439449,
8439450, 8439452, 8445747, 8448973, and 8449000 with no modifications or
reductions in penalties. Tr. 383. The parties also request that Citation No.
8445731 be modified to reduce the level of negligence from “moderate” to “low.”
Tr. 383-84.

I have considered the representations and documentation submitted at hearing, and I conclude that the proffered
settle­ment in Docket No. LAKE 2014-0077 is appropriate under the criteria set
forth in section 110(i) of the Act. The settlement amounts are as follows:

Citation No.

Assessment

Settlement

8439449

$224

$224

8439450

$224

$224

8439452

$334

$334

8439460

$3,143

$2,438

8445731

$4,689

$2,000

8445747

$308

$308

8448973

$207

$207

844900

$1657

$1657

TOTAL

$10,933

$7,392

In Docket No. LAKE 2014-0132, the parties
moved for the approval of the settlement of four of the seven citations,
proposing a reduction in penalties from $4,826 to $3,252. Tr. 381. Citation No.
8445755 remains unchanged. Tr. 378. Citation No. 8445758 also remains
unchanged, but the Solicitor justifies the reduction in proposed penalty by
stating that there were legitimate factual and legal disputes regarding gravity
and negligence. Tr. 380-81. The parties also request that:

Citation No. 8445758 be modified to
reduce the level of from “moderate” to low,” and

Citation No. 8451650 be modified to
reduce the number of persons affected from “twelve” to “six.”

Tr. 378-80.

I have considered the representations and documentation submitted at hearing, and I conclude that the proffered
settle­ment in Docket No. LAKE 2014-0132 is appropriate under the criteria set
forth in section 110(i) of the Act. The settlement amounts are as follows:

Citation No.

Assessment

Settlement

8445758

$2,282

$1,845

8451649

$1,530

$700

8451650

$807

$500

8445755

$207

$207

TOTAL

$4,826

$3,252

At hearing, Respondent moved for a
directed verdict on Citation Nos. 8443200 and 8443901 in Docket No. LAKE
2014-132.  The undersigned granted the motion because the Secretary’s evidence
did not support a violation of section 75.821(a). Tr. 242-62.[2]

Citations No. 8451651 in Docket No.
LAKE 2014-0132, and Citation Nos. 8439446, 8432319, 8439454, and 8452203 in Docket
No. LAKE 2014-0077 were litigated at hearing.

For the reasons set forth below, I modify
Citation No. 8451651 to reduce the level of negligence from “high” to
“moderate.” I modify Citation No. 8452203 to raise the level of negligence from
“moderate” to “high.” I find that Citation Nos. 8439446, 8432319, 8439454 were properly
issued, as written.  I assess a total civil penalty of $32,636 for the five
citations adjudicated herein.  

Based on a careful review of the
entire 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.               
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

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

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

C. Significant and Substantial
(S&S)

The Mine Act describes an 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).[4]

In a seminal early decision
interpreting this statutory provision, the Commission held that 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). In so holding, the Commission rejected
the Secretary’s argument that all violations are S&S except technical
violations or violations that pose only a remote or speculative risk of injury
or illness. The Commission found that the Secretary’s interpretation would
result in almost all violations being categorized as S&S, which would be
inconsistent with the statutory language and the role the S&S provision is
intended to play in the Mine Act’s graduated enforcement scheme. 3 FMSHRC at
825, 828. The Commission also found that the Secretary’s interpretation would
leave little room for inspectors to exercise their independent judgment. Id.
at 825-26.[5] 
In addition, the Commission found that the Secretary’s interpretation would
render the Act’s S&S language almost superfluous, and would render the
Act’s pattern-of-violation provisions wholly punitive by making it almost
impossible for a mine to be relieved of withdrawal order liability once placed
on notice of a pattern of violations. Id. at 826-27. Although the
Commission did not develop a test to determine whether violations are S&S,
it enunciated several guiding principles. Specifically, it stated that the term
“hazard” denotes “a measure of danger to safety or health” and that a violation
is S&S if it “could be a major cause” of such a danger. Id. at 827.

In its subsequent Mathies decision,
the Commission set forth a four-prong test for determining whether a violation
is S&S under National Gypsum. Mathies Coal Co., 6
FMSHRC 1 (Jan. 1984). 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. Id. at 3-4. 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 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).

Ensuing case law has solidly
established several general principles regarding the proper application of the Mathies
test. The Commission has held that the S&S determination should be made
assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp.,
36 FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (Aug. 1985)). The assumption of continued normal mining
operations considers “the length of time that the violative condition existed
prior to the citation and the time it would have existed if normal mining
operations had continued,” without any assumptions as to abatement. 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); see also 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 (citing with approval McCoy Elkhorn’s discussion of operative
timeframe for S&S). The Commission has repeatedly stated that the S&S
determination must be based on the particular facts surrounding the violation. See,
e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 1957-59 (Aug. 2014)
(remanding S&S finding for further consideration of relevant
circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co.,
17 FMSHRC 508, 511-12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500
(Apr. 1988).

A line of cases beginning with the
Seventh Circuit’s decision in Buck Creek, supra, has established
that an operator cannot rely on redundant safety measures to mitigate the
likelihood of injury for S&S purposes. See, e.g., Brody Mining,
LLC, 37 FMSHRC 1687, 1691 (Aug. 2015).[6]
Finally, Commission precedent indicates that the likelihood of injury is the
key consideration in determining whether a violation is S&S. Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996) (comparing S&S inquiry,
which focuses on “the reasonable likelihood of serious injury,” with gravity
inquiry, which focuses on “the effect of the hazard if it occurs”).  

The evolving case law, however, has
presented conflicting guidance as to how some of these principles should be
applied. In particular, there is some confusion about how to evaluate the facts
surrounding the violation and the likelihood of injury under the second and
third prongs of the Mathies analysis. The Fourth Circuit’s recent
decision in Knox Creek, supra, and the Seventh Circuit’s decision
in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014),
have cast doubt on whether the traditional application of the literal language
of the second and third prongs of the Mathies test is still valid.

Traditional Application of Mathies
Test

Under the traditional approach,
Commission Administrative Law Judges (ALJs) have conducted the fact-intensive
component of the analysis and evaluated the reasonable likelihood of injury at
the third prong. In one of its earliest decisions applying the Mathies test,
the Commission 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 present a measure of
danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836. “There is no
requirement of ‘reasonable likelihood’” encompassed in this element. Musser
Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 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 at 500). As the
Commission explained in another early decision, “The third element embraces a
showing of a reasonable likelihood that the hazard will occur, because, of
course, there can be no injury if it does not.” Consolidation Coal Co.,
6 FMSHRC 189, 193 (Feb. 1984).

Following this guidance, ALJs have
traditionally applied Mathies by identifying the potential hazard at the
second prong, and then at the third prong, assessing whether there is a
reasonable likelihood that the hazard will result in injury under the
particular facts of the case at hand, with the caveat that normal mining
operations are assumed to continue without abatement of the violation. The crux
of this traditional Mathies analysis is the third and fourth prongs of
the test, which effectuate National Gypsum’s definition of S&S
(reasonable likelihood of a reasonably serious injury) and are often combined
into a single showing (reasonable likelihood that a particular serious injury
will occur under the facts of the case). 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.[7]

Over the years, it appears that the
Commission, with court approval, has developed special rules for applying the Mathies
test in two situations. First, for violations that contribute to the hazard
of an ignition, fire, or explosion, the Commission has held that the third Mathies
element is satisfied only 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 953; Texasgulf,
10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37 FMSHRC
981, 984 (May 2015). Second, for violations of emergency safety standards, the
Commission assumes the emergency when making the S&S evaluation. See,
e.g., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28
(D.C. Cir. 2013); Mill Branch Coal Corp., 37 FMSHRC 1383, 1394 (July
2015).

Effect of Recent Fourth &
Seventh Circuit Decisions

The Fourth Circuit’s recent Knox
Creek decision issued in January 2016 appears to shift the focus of the
S&S analysis from the third to the second Mathies prong and to
restrict consideration of the facts bearing on the reasonable likelihood of
injury under the third prong. 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.

Knox Creek, 811 F.3d at 162. Significantly, the
Fourth Circuit further held that the occurrence of the hazard must be assumed
under the third prong of the Mathies test. Id. at 161-65. Evidence
of the likelihood that the hazard will occur is not considered at this prong,
according to the Fourth Circuit. Rather, the inquiry is whether the hazard,
assuming it occurred, would result in serious injury. Id. at 162.

The particular hazard confronted by the Fourth
Circuit in Knox Creek was the escape of ignited gas into the mine
atmosphere through impermissible enclosures. Id. at 164. The parties had
stipulated that the mine was a “gassy” mine that liberated more than 500,000
cubic feet of methane or other explosive gases per day. Id. at 164.  Consequently,
the ALJ had found that methane was reasonably likely to accumulate to explosive
concentrations. Id. The ALJ had also found that a resulting explosion
was reasonably likely to cause serious injuries, but he had ultimately declined
to find that the violation was S&S because the Secretary had failed to
prove the likelihood of an ignition. Id. at 154, 164-65. Without
discussing the likelihood of ignition, the Fourth Circuit deemed the ALJ’s
other findings sufficient to satisfy the third Mathies prong. Id.

Previously, in Peabody Midwest
Mining, the Seventh Circuit had similarly suggested that the S&S
analysis assumes the occurrence of the hazard. The violation at issue in that
case was the mine operator’s failure to erect berms on an elevated roadway. The
Seventh Circuit defined the hazard as the risk that a vehicle would veer off
the roadway and go over the edge. Peabody Midwest, 762 F.3d at 616. The
operator had argued that a vehicle was not reasonably likely to veer off the
road. Id. However, the Seventh Circuit stated that the question “is not
whether it is likely that the hazard (a vehicle plummeting over the edge) would
have occurred” but “whether, if the hazard occurred (regardless of likelihood),
it was reasonably likely that a reasonably serious injury would result.” Id.

Peabody Midwest does not
discuss the proper role of deference in the S&S context, but the Fourth
Circuit reached its holding in Knox Creek by deferring to the
Secretary’s interpretation that the third Mathies element requires proof
that the hazard, not the violation itself, is likely to cause injury. 811 F.3d
at 161 (declining to afford deference under Chevron, USA, Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837 (1984), but finding the Secretary’s
interpretation persuasive and therefore entitled to deference under Skidmore
v. Swift & Co., 323 U.S. 134 (1944)). The Fourth Circuit further
asserted that this interpretation is consistent with a number of prior cases,
including the Seventh Circuit’s decisions in Peabody Midwest and in Buck
Creek, supra, 52 F.3d at 135 (assuming occurrence of fire at third Mathies
prong when ALJ had engaged in “confluence of factors” analysis at second
prong); the Fifth Circuit’s decision in Austin Power, supra,
861 F.2d at 103-04 (declining to require evidence that the hazard was likely to
occur); and the Commission’s decision in Musser Engineering, supra,
32 FMSHRC at 1280-81 (stating that the third Mathies prong requires a
showing that the hazard, not the violation itself, will cause injury). 811 F.3d
at 161-62.[8]
The Fourth Circuit rejected the operator’s argument that under Zeigler Coal
Company, supra, the Secretary must show that an ignition is
reasonably likely under the third Mathies prong. 811 F.3d at 164. The
Court found this position to be “flatly contradicted” by Musser Engineering and
by decisions of other federal appellate courts. Id.

The Fourth Circuit emphasized,
however, that the Mathies approach that it has adopted “still allows
plenty of room for a fact-intensive S & S analysis, both under prong two,
where the Secretary must establish that the violation contributes to a discrete
safety hazard, and within prongs three and four, where evidence is still
necessary to establish that the hazard is reasonably likely to result in a
serious injury.” Id. Realistically, however, it will likely require very
little fact-specific analysis to conclude that any given non-technical
violation contributes to a discrete safety hazard, because the Secretary
generally does not promulgate a mandatory health and safety regulation (except
technical regulations), unless the Secretary has already found that violating
the standard would contribute to a hazard. Under the third Mathies prong,
judges must consider all of the facts surrounding the violation, but must
assume continued normal mining operations without abatement of the violation,
and may not rely on redundant safety measures to mitigate the likelihood of
injury. Now, under Knox Creek and Peabody Midwest Mining, judges
must also assume that the hazard will actually occur. At some point, so many
circumstances are either assumed or precluded from consideration that judges
will find themselves evaluating the likelihood of injury in the abstract. If
this is the case, the Commission will have turned its back on the principles set
forth in National Gypsum because the Mathies test will have
become a longhand expression for “non-technical violations.” S&S will apply
to almost all violations and therefore will no longer serve as a statutory tool
by which the Secretary can single out the violations that he believes the
Commission should consider significant and substantial when assessing a
penalty.

As noted above, the Fourth Circuit
reached its result in Knox Creek by deferring to the Secretary’s
interpretation of the Mine Act, and the Seventh Circuit reached a similar
result. At the outset of its analysis, the Fourth Circuit indicated that it
would review the Commission’s legal conclusions de novo but would afford
deference to the Secretary’s, not the Commission’s, legal interpretations. Id.
at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc.,
80 F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the
Mine Act’s split-enforcement scheme and concluded that an informal rule created
and implemented by the Secretary was entitled to deference over a contrary
Commission decision).

It is not surprising that the
Circuit Courts have departed somewhat from the traditional Mathies analysis
in favor of the Secretary’s legal interpretation, given the rule of deference
mentioned above, and given the fact that the Secretary’s attorneys, and not the
Commission’s, are the ones who argue for enforcement of the Commission’s
decisions in the Circuit Courts of Appeals. That latter protocol is strange. Notwithstanding
the propriety of the rule of deference applied by the Fourth Circuit, which
raises concerns that I previously discussed in Knife River Corporation
Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense
that although Congress conferred independent adjudicatory authority upon the
Commission to serve as an impartial forum for Mine Act litigation, and although
the Commission itself laid out the test that parties have followed for more
than thirty years to litigate S&S in this forum, the Secretary is permitted
to challenge the Commission’s interpretation of this long-standing test in the
Circuit Courts of Appeals and litigate his own interpretation on behalf of the
Commission. It should be obvious that since the Secretary is one of the litigating
parties before the Commission at the trial level, the Commission’s and the
Secretary’s views on interpretation of the Act may differ. See e.g., The
American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition for
interlocutory review granted, Unpublished Order dated July 11, 2014. In my
view, the Commission’s interpretations of Mine Act provisions that turn on
adjudication and not enforcement should be accorded at least some form of
deference based on the power to persuade, as evidenced by the fact that courts
and litigants have uniformly followed the Commission-derived Mathies test.[9] Compare
Chevron, supra (according full deference to agency’s reasonable
interpretation of ambiguous statutory provision) with United States v. Mead
Corp., 533 U.S. 218 (2001) (according deference based on “power to
persuade” under Skidmore, supra, and finding that Chevron applies
only where the agency was authorized by Congress to make rules carrying the
force of law and did in fact promulgate the proffered interpretation in the
exercise of that authority). It is within the Commission’s authority to specify
how the second and third factors of the Mathies test should be applied –
particularly, whether the hazard must now be assumed at the third factor, and
if so, what steps of the test account for the facts surrounding the violation –
and whether the Mathies test is still intended to effectuate National
Gypsum’s interpretation of the S&S provisions of the Mine Act or
whether the Commission now interprets S&S differently.

Because I am bound by the Mathies
test, I will evaluate S&S under this test after taking into consideration
the more recent approach set forth in Knox Creek and Peabody Midwest
Mining.

D. Negligence

Negligence is not defined in the
Mine Act. The Commission has found “[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, 1976-77 (Aug. 2014)
(requiring Secretary to show that operator failed to take specific action
required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708
(Aug. 2008) (negligence inquiry circumscribed by scope of duties imposed by
regulation violated).

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

Although MSHA’s regulations
regarding negligence are not binding on the Commission, see Wade Sand &
Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines negligence
by regulation in the civil penalty context as follows:

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

30 C.F.R. § 100.3(d).  

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

Recently, the Commission held that
Commission judges are not required to apply the level-of-negligence definitions
in Part 100 and may evaluate negligence from the starting point of a
traditional negligence analysis rather than from the Part 100 definitions. Brody
Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC
v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). Moreover,
because Commission judges are not bound by the definitions in Part 100 when
considering an operator’s negligence, they are not limited to a specific
evaluation of potential mitigating circumstances, and may find “high
negligence,” in spite of mitigating circumstances, or moderate negligence,
without identifying mitigating circumstances. Brody, 37 FMSHRC at 1701; Mach
Mining, 809 F.3d at 1263-64. In this regard, the gravamen of high
negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20
FMSHRC 344, 350 (Apr. 1998)0. Thus, in making a negligence determination, a
Commission judge is not limited to an evaluation of allegedly mitigating
circumstances and may consider the totality of the circumstances holistically. Under
such an analysis, an operator is negligent if it fails to meet the requisite
high standard of care under the Mine Act. Id.

E. Penalty Assessment

The Act requires that the
Commission consider the following statutory criteria when assessing a civil
penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty to the size of the business; (3) the operator’s
negligence; (4) the operator’s ability to stay in business; (5) the gravity of
the violation; and (6) any good-faith compliance after notice of the violation.
Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 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 Co., 30
FMSHRC 699, 723 (Aug. 2008).

As I discussed in my final Big
Ridge decision, in an effort to avoid the appearance of arbitrariness, I
look to the Secretary’s penalty regulations and assessment formula as a
reference point that provides useful guidance when assessing a civil penalty. Big
Ridge Inc., 36 FMSHRC 1677, 1681-82 (July 2014) (ALJ); see also Wade
Sand & Gravel, supra, at 1880 n.1 (Chairman Jordan and
Commissioner Nakamura, concurring). See also 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). This formula is
not binding, but operates as a lodestar, since factors involved in a violation,
such as the level of negligence, may fall on a continuum rather than fit neatly
into one of five gradations. Unique aggravating or mitigating circumstances
will be taken into account and may call for higher or lower penalties that
diverge from this paradigm. My independent penalty assessment analysis applies
to each of the citations at issue in this case.

III. Stipulated
Facts

A. Stipulations of Fact

At hearing, the parties
agreed to the following stipulations:

1.     
Respondent is subject to the
Federal Mine Safety and Health Act of 1977 and to the

jurisdiction of the Federal Mine
Safety and Health Review Commission.

2. The presiding Administrative Law Judge has
the authority to hear this case and issue a

decision.

3. Respondent has an effect upon
   commerce within the meaning of Section 4 of the Federal Mine Safety and Health
   Act of 1977, 30 U.S.C. § 803.

4. At all relevant times,
   Respondent operated Mach No. 1 Mine, Mine ID 11-03141.

5. The violations in this docket
   are complete, authentic and admissible, but the Respondent does not stipulate
   to the allegations asserted therein.

6. Respondent mined 7,528,061 tons of bituminous
coal in 2012 at Mach No. 1 Mine.

7. The violations in this docket
   were properly served on Respondent by a duly authorized representative of the
   Secretary on the dates stated therein.

8. The penalties proposed in this
   docket would not affect Respondent’s ability to remain in business.

9. Respondent abated the citations
   involved herein in a timely manner and in good faith.

10. Tom Crum, Jr. is an agent of the
    operator Mach Mining. Tr. 272.

J. Ex. 1.

IV. Background
Information

Mach Mining’s No. 1 Mine is an underground coal
mine located in Marion, Illinois. The height of the mine is generally nine to
ten feet. Tr. 619. The mine is subject to five-day spot inspections by the
Department of Labor’s Mine Safety and Health Administration (MSHA), pursuant to
§ 103(i) of the Mine Act because the mine liberates more than one million cubic
feet of methane or other explosive gases during a 24-hour period. 30 U.S.C. §
813(i); see Tr. 35, 211-10. At the time of the October 14, 2014 inspection,
the mine liberated approximately two million cubic foot of methane in a 24-hour
period. Tr. 158, 211-10.

V. Citation No.
8451651

A. Findings of Fact

1.     
The Inspection

On October 15, 2014, MSHA inspector Chad Lampley[10]
issued Citation No. 8451651 during an E16 inspection of Mach Mine’s No. 1 mine.[11]
Tr. 140-42. Mark Schilke, the mine safety manager, accompanied Lampley during
the inspection.[12]
Tr. 143, 152, 159-160. The inspection was conducted during a production shift. Tr.

155. At the time of Lampley’s inspection, however, mining had halted due to a
     problem with a conveyer belt. Tr. 153-54, 214-15.

2.     
The Location of the Truck  

During the inspection, Lampley noticed a Dodge Ram
pickup truck parked facing inby in the #3 tailgate entry at the no. 109
crosscut, two crosscuts from the longwall face.  Tr. 144-45, 152; see P. Ex.
113.[13]
Lampley used a 25-foot tape measure and determined that the diesel-powered truck
was approximately 144 feet from the face, rather than the required 150 feet. Tr.
146-47.[14]
Shilke observed Lampley measure the distance between the face and the truck. Tr.
302, 316. Neither Shilke nor Lampley reported any other measurements of the
truck’s location. Tr. 147, 301-02. Respondent does not dispute that the truck was
closer than 150 feet from the longwall face. R. Post Hr’g Br. 4.

Lampley learned that Tom Allen Crum, Jr. (Crum), the longwall
maintenance supervisor, drove the truck. Tr. 152-53, 162, 213. Lampley did not
speak to Crum. Tr. 215.

Crum testified that he drove his truck
into the #3 tailgate entry to repair a conveyor belt. Tr. 265-67,
287.[15]
Schilke testified that the truck was parked “slightly” inby the outby corner of
crosscut 109. Tr. 305-06. Crum, however, testified that the truck was even with the
outby corner. Tr. 268-69. I credit Schilke, particularly since his testimony is
consistent with Respondent’s map of the area where Crum parked.  See R. Ex. 8.

There were no footage markers to indicate the distance
from the face. Tr. 316. Crum estimated that he parked over 150 feet from the
face because the crosscut centers were 120 feet and the face appeared 50 feet
further than the last crosscut center. Tr. 268-71, 284. Because that crosscut
was open, Crum knew that he was not permitted to drive further into the return
air. Tr. 282-83. There were no obstructions blocking Crum from driving the truck
all the way to the face. Tr. 216. Crum testified that had he intended to breach
the 150-feet limit, he could have easily parked by the face. Tr. 271-72, 280. Crum
opined that his actions demonstrated his intent to comply with the
permissibility requirements, and that they negate any classification of high
negligence. Tr. 279-80. 

Crum further testified that he would have moved his
truck before production resumed. Tr. 286-87. He further admitted that he would
have started the truck’s ignition to do so, because he had assumed that it was not
parked in return air. Tr. 287.

3.     
The Presence of Methane

a.     
The Temperature of the Air

Inspector Lampley was concerned that
the non-permissible diesel truck was parked in return air, which presented a
methane ignition hazard.  Tr. 148-49.  Lampley testified that return air is
warm and moist due to heat emitted from the longwall mining unit. Tr. 144, 146,

150. Near the truck, Lampley observed that the air approaching him from the
     face was warmer than the intake air at his back, indicating the presence of
     return air. Tr. 144, 146, 199.

Respondent’s witnesses disagree. Schilke
testified that the vehicle was in intake air because he felt cool air at his
back and warm return air was not present until the middle of the intersection. Tr.
305-08. Crum testified that when he exited his truck, he felt cool intake air
at his back. Tr. 273-76. Crum testified that there was little to no air
movement where he parked the vehicle. Tr. 273. Crum further testified that he did
not feel return air until midway through the crosscut. Tr. 283.

Longwall coordinator Parker Phipps
drove an Electric Mine Utility vehicle (EMU) to the longwall tailgate that day.
Tr. 324.[16]
Phipps was aware of the requirement to park in intake air at least 150 feet
from the face. Tr. 339. He parked approximately 150 feet from the face near
open crosscut no. 109. Tr. 324, 340; see P. Ex. 110 and R. Ex. 8. After
learning about the citation, Phipps observed Crum’s truck underground. Tr. 330.
 Phipps testified that Crum’s truck was parked even with the outby rib,
approximately two feet from the solid coal wall. Tr. 330-331, 333. Phipps
testified that the front of Crum’s truck was within ten feet of the front of his
own vehicle. Tr. 343. Facing inby, Phipps walked into the area between Crum’s truck
and the solid right-hand rib. Tr. 333. Phipps testified that the air was cool
and moved inby. Id. Because return air from the longwall was warmer and
more humid, Phipps opined that the truck was in intake air. Tr. 325, 328.

By the feel of the air, Phipps opined
that the return air began in the center of the crosscut. Tr. 329, 358-359. Phipps
referred to the crosscut center as a mixing zone for return and intake air. Tr.

329. Mixing zones are classified as return air. Tr. 363. Phipps believed that
     the mixing zone was inby Crum’s truck, which left the truck entirely within
     intake air. Tr. 329-331, 335, 363. Phipps later testified, however, that the
     truck was near a “dead spot” with little air movement, where both the outby and
     inby air courses met. Tr. 353-54.  

b.     
Inspector Lampley’s Smoke
Test

After noting the temperature differentials, Lampley
performed a smoke test to determine the direction of return air. Tr. 150-51. A
smoke test reveals the path of air along the mine’s ventilation pattern. Id.
With respect to ventilation in this area, Respondent sent 90,000-100,000 cubic
feet of air per minute (cfm) from the headgate, which was well over the
required 60,000 cfm.  Tr. 181-82. Phipps testified that a great velocity of air
would dilute gases. Tr. 355. In fact, Phipps opined that as little as 50 cfm of
air would render flammable or noxious gases harmless, although Phipps did not
know if the air around the truck reached that velocity. Tr. 361-62.

Lampley released smoke at the mining face and observed
it travel down the entry. Tr. 145-46, 150-51, 207-08. The heavy airflow
displaced the smoke, so Lampley released smoke into the atmosphere several
times as he neared the truck. Tr. 208-10.

The smoke test revealed that the air traveled down the
longwall face to the T-split, where it either seeped into the gob or branched
off towards the #2 and #3 tailgate entries.
Tr. 145, 176, 182-84.[17]
Because the #2 entry had lower air pressure than the #3 entry, the majority of
the air moved from the #3 entry into the #2 entry through the open no. 110
crosscut. The remaining air in the #3 entry reached the open no. 109 crosscut
where the truck was located. Tr. 145, 184, 205-07. Stoppings were legally
removed at the nos. 109 and 110 crosscuts (the first two crosscuts after the
T-split) to allow this air movement. Tr. 187.

Because the return air that reached the no. 109
crosscut was also drawn into the #2 entry, it moved faster at the corner near
the crosscut than it did in the middle or other side of the entry near Crum’s
truck.  Tr. 186, 194-95. Lampley noticed that while a large portion of the
return air hugged the inby corner near the crosscut, some smoke traveled
directly over the hood, windshield, and cab of the truck. Tr. 151, 185-87, 194,

200. Rather than continue over the back of the truck, the air turned and exited
     into the #2 entry through the crosscut upon meeting the intake air in a “mixing
     zone.” Tr. 147, 161, 198. Lampley testified that the front of the truck up to
     the cab area was in return air, and that the cab to the tailgate bumper at the
     back of the truck was in the intake air. Tr. 146, 198-99.

During the inspection, Schilke
watched Lampley conduct the smoke test. Tr. 303, 308. Schilke testified that
Lampley had to stand “almost over the hood of the truck” before the smoke sample
traveled over the hood. Tr. 308. No smoke test was conducted at the tailgate of
the truck. Tr. 313-14.

Schilke testified that when Lampley
tested further inby from the truck, the sample traveled towards the no. 109
crosscut, rather than over the hood of the truck. Tr. 309-311. Further, Schilke
testified that when Lampley tested directly over the hood of the truck, the
smoke rose and spread out, indicating to Schilke that the truck was in a dead
spot. Tr. 307-309, 315. Schilke determined that this dead spot was caused by a
“mixing zone” where return and intake air met. Tr. 307. On cross examination, however,
Schilke conceded that if the truck was in the intake air, that air would push
the smoke inby above the truck, which did not occur, rather than allow the
smoke to rise and spread, which did occur. Tr. 315-16. 

Lampley testified that the exact location of the truck
within the return air was not important. Tr. 158-59. Rather, any place inby the
intake air at crosscut no. 109 posed an equal hazard because it had the same,
undiluted gas concentration where no additional air was added. Tr. 158-59, 194,
196-97, 221-22. Because of this,
Lampley chose not to test the air volume. Tr. 166, 195-96, 198, 219. Lampley conceded,
however, that the concentration of gas would diminish in a mixing zone. Tr.

198. Most of the mixing occurred near the corner where the air velocity was
     greatest, not above the truck. Tr. 200-201, 222. Lampley did not see any
     swirling smoke over the truck to indicate the mixing of intake and return air. Tr.
     222-23.  Lampley agreed, however, that there was no way to easily distinguish
     between return air and intake air. Tr. 201-02.

c.      
Other Considerations

Schilke testified that the cited area usually
had 20.9 % oxygen and up to 0.1 % methane during production. Tr. 318. By
contrast, Phipps testified that methane concentrations typically reached 0.6 %
to 0.8 % during production. Tr. 332. While Phipps was in the cited area, his
methane spotter reported 20.8 % oxygen, no methane, and no carbon monoxide. Tr.

331. He testified that historically no methane was produced in the area when
     the longwall was down. Tr. 331-332.

Crum also carried a methane
detector, which produces audio and visual warnings when methane concentrations
reach one percent. Tr. 276-77. Crum watched his detector closely and observed
no methane in the cited area. Tr. 277.

During the repair work near the
longwall face, the miners were required to take air readings every fifteen
minutes with individual methane spotters. Tr. 289-90. The readings detected no
methane. Id. Crum reported that all the checks were properly conducted. Tr.
290.

Schilke testified that no methane
or carbon monoxide was present because the longwall had been down for several
hours before Crum’s truck arrived. Tr. 312-13. Lampley did not know how long
the longwall had been down before Crum parked his truck, but Lampley noted that
the hood of Crum’s truck was still warm at the time of the inspection. Tr. 155,
213-14.

Schilke testified that the
inspection began at approximately 6:00 a.m. Tr. 301. Phipps testified that the
longwall had been down for several hours when Phipps arrived between 5:00 and
6:00 a.m. Phipps further testified that Crum’s truck had not yet arrived. Tr.
332, 338, 341-42. Crum, however, testified that after working the day shift, he
returned to the mine between 2:00 and 3:00 a.m. because the longwall was down. Tr.
265.

4.     
Issuance of Citation No.
8451651

After observing that Crum’s non-permissible, diesel-powered
pick-up truck was being used where permissible electrical equipment was required,
Lampley issued Citation No. 8451651 for a violation of 30 C.F.R. § 75.1907(a),
which requires that all diesel-powered equipment used where permissible electrical
equipment is required must be approved under part 36.  Tr. 147-48. Lampley
determined that the violation was S&S and contributed to a methane ignition
hazard that was reasonably likely to result in fatal injuries affecting four
miners, as a result of Respondent’s high negligence. Tr. 156, 162-63. The
Secretary proposed a penalty of $16,867.

Lampley determined that the cited diesel truck was not
permissible because it lacked properly enclosed electrical components necessary
to prevent a methane ignition in the mine atmosphere. Tr. 147-49. Engine
enclosures prevent flame paths from reaching the atmosphere. Tr. 149.

Lampley determined that the truck would likely ignite
methane for several reasons.  The truck had numerous ignition sources including
a starter motor and a combustion engine, which produced thousands of
combustions per minute.  The electrical components of the truck were not
sufficiently enclosed to contain any sparks from the engine.  The
diesel-powered truck did not have countermeasures, such as flame arresters,
that were required in permissible equipment. Tr. 156-7.  Most of the ignition
sources were in the front of the truck and exposed to return air. Tr. 224. The
cited truck was in the tailgate (rather than a headgate), which increased the
likelihood of a methane ignition because the air in that area had ventilated
the face. Tr. 175-176. Further, Lampley opined that since Crum was apparently
unaware that he parked the truck in return air, it was likely to remain there
until the longwall resumed production. Tr. 156. Further, during production, the
face would move 2 and ½ feet closer to the truck with each pass of the longwall
drum. Tr. 177.

Lampley was not aware of any
reserves of methane at the mine, nor was he aware of the average concentration
of methane in the mine atmosphere. Tr. 211-12. Lampley testified, however, that
methane would be present in return air coming off an active longwall face in a
gassy mine, which has gob, and would most likely be found at the tailgate or at
a bleeder system at the wall. Tr. 158.  Lampley found no methane present when
he took readings at the T-split of air, when production was down.  Tr. 189-91,

197. Lampley testified that regardless of air quality, or the fact that when
     the citation was written, the air from the T-split of the longwall outby Crum’s
     truck was sufficient to dilute or render harmless any methane, MSHA regulations
     do not allow shorter permissibility distances when the longwall is not in
     production. Tr. 173-74, 227-29.

Apart from the likelihood of ignition during
production, Lampley explained that an ignition hazard could be realized
spontaneously from a rock fall. Tr. 155, 189-92. He noted that rock falls were
not unusual and major gob falls were fairly common in longwall mining and that
the methane concentration “at the gob line where the T-split occurs, that could
change at any given moment whenever a roof fall occurs back there, and it’s
going to fall, it’s just when it’s going to fall.” Tr. 190-92, 230.  If a major
rock or gob fall prevented the absorption of methane by sealing the gob, the
resulting change in air pressure would pull methane from the gob area and allow
methane to accumulate in the active working area. Tr. 227-30. Such a rock fall
in the gob is fairly common given mining conditions in that area, although
pressure changes in this mine were somewhat less likely because of the blowing
and exhausting fans. Tr. 230-33.

Lampley testified that a methane ignition
in a gassy mine could result in a “massive” explosion. Tr. 162. A massive
methane explosion would be fatal to some or all of the miners on the face. Tr.
162-63.  Lampley ascertained that at least two shearer operators, a shieldman,
and a stage loader operator would be affected by an explosion. Tr. 162-64. Lampley
referenced the Upper Big Branch explosion as one caused by the ignition of
methane on a tailgate. Tr. 158.[18]

With respect to the negligence designation, Lampley
found no mitigating circumstances and determined that Respondent’s agent Crum should
have been aware of the presence of return air when parking his truck. Tr.
163-64, 167. Given the change in air temperature and humidity and the lack of a
visible stopping, Lampley opined that Crum knew or should have known that the truck’s
location created a permissibility violation. Tr. 163-64. Crum was a member of
management who should have been aware of the methane ignition hazard created
once Crum drove into the return air and broke the plane of the intersection. Tr.
171-73. According to Lampley, once Crum broke the plane and entered return air,
it was too late to correct the condition. Tr. 173.  Rather, Lampley testified that
Crum should have stopped 300 feet from the face to ensure compliance. Tr.
174-175. Further, Lampley opined that Respondent also could have placed signs
150 feet from the face or blocked off the area to prevent the entrance of
diesel equipment. Tr. 178. Lampley emphasized that the hazard remained whether
the truck was parked six feet within the 150-foot limit or directly next to the
face. Tr. 166-167. Rather, the dispositive issue was that the truck was in
return air. Tr. 166-67.

To abate the alleged violation, the truck
was pulled by chain by another piece of equipment from intake air, and moved to
an outby location outside the 150-foot limit where no return air was coursing
over the pickup.  Thereafter, the truck was disconnected and driven an
additional 150 feet away from the face. Tr. 179; S. Ex. 114. 

B. Analysis and Disposition

1.     
The Violation of §75.1907(a)

30 C.F.R. §75.1907(a)
provides that diesel-powered equipment must meet permissibility standards where
permissible electrical equipment is required. 30 C.F.R. §75.1907(a). Electric
face equipment must be permissible within 150 feet from pillar workings or
longwall faces or in return air outby the last open crosscut. 30 C.F.R. §§75.1002
and 75.507-1.  The truck cited by inspector Lampley was diesel-powered
equipment that did not meet permissibility requirements. Tr. 148.  It is
undisputed that the equipment was closer than 150 feet from the longwall face. R.
Post Hr’g Br. 4. Accordingly, I find that the Respondent violated the cited
standard.  

2.     
The Violation was Significant and Substantial

a.     
There was a Violation of a
Mandatory Safety Standard

For the reasons
explained above, I have found the underlying violation of mandatory safety
standard § 75.1907(a).

b.     
The Violation Contributed
to a Discrete Measure of Danger to Safety

With regard to the
second Mathies factor, the Secretary must show that the violation
contributed to a discrete safety hazard, “which implicitly requires a showing
that the violation is at least somewhat likely to result in harm.” Knox Creek,
811 F.3d at 163 (citing Black Beauty, 34 FMSHRC at 1741, n.12 (“[I]f the
roadway here had lacked berms for only a short distance [thereby making the
hazard of a vehicle falling off the edge less likely], or if the violation had
been otherwise insignificant, the trier-of-fact could have found that the
violation did not contribute to a discrete safety hazard, and hence that the
Secretary had failed in her proof under the second element of Mathies.”)),
aff’d sub nom. Peabody Midwest, 762 F.3d 611; Cumberland Coal
Res., LP, 33 FMSHRC 2357, 2368 (2011) (the violation, under the
particular circumstances, was likely to contribute to the relevant hazard under
Mathies’ second prong), aff’d sub nom. Cumberland Coal Res.,
LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); E. Associated
Coal Corp., 13 FMSHRC 178, 183 (1991) (same); Utah Power & Light Co.,
12 FMSHRC 965, 970 (1990) (same). For the reasons set forth below, I find that
the violation of parking an impermissible diesel-powered truck in return air
where permissible equipment was required contributed to a discrete safety
hazard or measure of danger to safety, that is, a methane ignition or explosion. 

Permissibility requirements like
the one at issue here ensure that ignitions occurring within enclosures on
mining equipment with electrical circuits will not escape into the mine
atmosphere. Knox Creek, 811 F.3d at 153-54; Consolidation Coal Co.,
35 FMSHRC 2326, 2336 (Aug. 2013) (permissibility requirement is designed to
prevent hot gases from escaping from an enclosure containing electrical
connections, thus causing an ignition outside the enclosure.”). Thus, the permissibility
requirements are intended to prevent the ignition of explosive air-methane
mixtures surrounding mine equipment. Consequently, I must determine whether it
was somewhat likely that the violation contributed to the hazard or danger of
allowing an ignition source to be available in this gassy mine.  Cf., Consolidation
Coal, 35 FMSHRC at 2335-36 (Commission affirmed judge’s description of
relevant hazard contributed to by the violation and her determination that second
prong of Mathies was satisfied because the violation contributed to the
hazard of “the danger of allowing an ignition source to be available in this
gassy mine.”). 

When examining the likelihood of a
permissibility violation to contribute to the hazard of a methane ignition or
explosion, the Commission has traditionally examined whether a “confluence of
factors” is present based on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988). The Commission has held that 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); Utah Power & Light Co., 12 FMSHRC at 970-71; Texasgulf, 10
FMSHRC at 501-03.  For example, the mine in Texasgulf contained only
miniscule amounts of methane and had never had a methane ignition or explosion.
See 10 FMSHRC at 501.  Given detailed testimony establishing the mine's history
of low methane emissions, the absence of previous ignitions or explosions, and testimony
establishing a reasonable expectation of low methane emissions in the future, the
Commission concluded that that substantial evidence supported the judge's findings
that there was not a reasonable likelihood that the hazard contributed to would
result in a mine ignition or explosion.

On the
other hand, numerous other Commission cases have upheld an S&S
determination where the particular facts surrounding a violation established
that a methane ignition was reasonably likely in a gassy mine.  See e.g., U.S.
Steel Mining Co., Inc., 6 FMSHRC 1866, 1867–69 (Aug. 1984) (upholding
significant and substantial finding where coal mine liberated over one million
cubic feet of methane in 24-hour period, had a history of methane ignitions,
and there was an excessive accumulation of coal nearby); United States Steel
Mining Co., Inc., 7 FMSHRC 1125, 1128–30 (Aug. 1985) (upholding significant
and substantial finding where coal mine liberated over one million cubic feet
of methane in a 24-hour period, had a history of past methane ignitions, could liberate
dangerous levels of methane in a relatively short period, and
ventilation was substandard); Youghiogheny & Ohio Coal Co., 9 FMSHRC
673, 677–678 (upholding significant and substantial finding where coal mine was
subject to inspection pursuant to section 103(i) and sudden outburst of methane
had occurred recently); Consolidation Coal Co., 35 FMSHRC at 2337 (upholding
a significant and substantial finding for a roof bolter that violated
permissibility standards where methane was emitted during roof bolting, the
bolter was located near the gob and far from the bleeder fans, and the mine was
gassy).

Applying the confluence-of-factors
analysis to the instant facts, I find that supervisor Crum’s truck was a
non-permissible ignition source that was parked in return air and would
therefore likely be exposed to an explosive concentration of methane released
from the longwall face during continued normal mining operations. Parking
impermissible, diesel-powered equipment within 150 feet of the face in return
air contributed to the discrete safety hazard that restarting the truck could
ignite any explosive concentration of methane present in return air during
continuous mining operations. Accordingly, I find that the violation
contributed to the hazard of a methane explosion caused by the location of
impermissible equipment in return air. 

Although the
testimony of Crum, Schilke and Phipps suggested that the return air was inby
the location where Crum parked his non-permissible, diesel-powered Dodge truck
(Tr. 275, 283-84, 308, 330-31), I find that the hood of the truck extended into
the mixing zone intersection and into return air and was not in intake air as
Phipps, Crum and Schilke suggested. I credit Lampley’s testimony and
measurements that the truck was parked within 150 feet of the face, and the
hood of the vehicle, including the combustion engine, was actually parked
within the plane of the intersection or crosscut. Tr. 146-147, 158, 171,
198-99, 217. Crum’s testimony and Respondent’s own map indicate this.  Tr. 269;
R. Ex. 8. Lampley and Phipps both described the intersection at crosscut 109 as
a mixing zone, where return air met intake air. Tr. 107, 329. Lampley and
Phipps both noticed that warmer and more humid air that was characteristic of
return air was present in the intersection or crosscut itself, where such air
mixed with fresh intake air. Tr. 150, 328.  Phipps conceded that areas
containing return air, including mixing zones, are properly classified as
return air. Tr. 363. Further, I have credited Schilke’s testimony that the
truck was parked slightly inby the outby corner of crosscut 109 (Tr. 305-06),
over Crum’s testimony that the truck was parked even with the outby corner. Tr.
268-69.

Although Schilke
testified that Lampley had to stand directly at the Dodge truck and almost over
the hood of the truck to get the smoke to travel over the hood of the truck,
Schilke thereafter acknowledged that the smoke was in a dead spot and
automatically spread out over the hood of the Dodge truck. Tr. 309. I credit
Lampley’s testimony that the results of his smoke test, which recreated the
movement of air from the longwall face to the truck, established that return air
wafted over the hood of the truck where the engine was located, and then out
across crosscut 109. Tr. 151. Based on Lampley’s credited testimony, as
supported by the results of the smoke test, I find that return air, which would
be carrying methane during continuous mining operations in a gassy mine,
reached the hood and windshield of the truck, which extended into the
intersection and mixing zone. Tr. 151, 194, 202.

I further credit
the testimony of Lampley that the truck was an ignition source. Tr. 156-57.  Lampley
identified several sources of ignition within the truck that Respondent did not
contest. Id. Most notably, the engine produced thousands of combustions
per minute. Id. It is undisputed that the truck was not permissible
equipment. Tr. 156-57, 275, 319. Consequently, the truck did not prevent sparks
released by the combustions from encountering potentially explosive methane
concentrations in the air. Tr. 147-49. Due to the numerous ignition sources
within the truck, the number of ignitions per minute, and the lack of
countermeasures to arrest a methane ignition, I find that the truck was a
likely source of methane ignition because it was parked in return air in a
gassy mine on five-day spot protocol where methane would be coming off an
active face and heading outby past gob and over the truck, during continuous
mining operations.  Tr. 157-59.  

It is
important to emphasize that the Mach #1 Mine was subject to section 103(i) spot
inspections every five days because of its excessive liberation of methane.  Although
the Secretary put on no evidence of any prior ignition at the Mach #1 Mine, and
there is no mention of a prior methane ignition on MSHA’s data retrieval, there
is some evidence of the presence of high dust concentration, including float
coal dust, which might propagate a methane ignition. For example, inspector Robert
Bretzman specifically testified that the mine normally had high dust
concentration. In this regard, with respect to Citation 8432319, alleging that
on September 12, 2013, almost a year before Citation No. 8451651 was written, the
longwall shearer on the headgate six unit did not have a visible warning device
to adequately alert the shearer operator when the methane concentration reached
1.0 percent, inspector Bretzman testified as follows: 

I determined that
if—in the event that we did have a high degree of methane, excessive methane,
and the operators were not aware of the methane and we was in a high dust
concentration, like we normally are, we could have an ignition . . . .

Tr. 411 (italics added).  As
further explained below, these facts coupled with Lampley’s testimony that
methane would travel off the active face in return air and past gob to the
truck (Tr. 157-59) are sufficient to make an accumulation of methane at
explosive concentrations reasonably likely during continued normal mining
operations.  Cf., Knox Creek, 811 F.3d at 164; Consolidation
Coal Co., 35 FMSHRC at 2336.  

Respondent argues
that the truck was not exposed to methane, much less any explosive concentration
of methane. This argument is unconvincing in the context of continued normal mining
operations. Although no methane was found in the readings taken at the time of
the citation, I credit Lampley’s testimony that the truck was exposed to numerous
sources of methane. The most likely source of methane was from the gas released
from the face during coal production, under continued normal mining operations.
Tr. 158. Additionally, Lampley convincingly testified that bursts of methane
released from rock falls within the gob could spontaneously increase methane
concentrations to explosive levels quickly. Tr. 189-92.  Finally, as noted
above, the Commission has consistently found permissibility violations to be S&S
where mines are characterized as gassy. See e.g., Consolidated Coal
Co., 35 FMSHRC at 2336 (affirming judge’s finding that of reasonable
likelihood of injury from an explosion despite no methane detected at time of
violation because methane was emitted as bolter drilled into the roof, the
bolter was close to the gob and far from the bleeder fans, and the mine was a
gassy mine).  

As emphasized, this
mine was on a five-day spot and liberated approximately two million cubic foot
of methane in a 24-hour period. Tr. 158. The risks of dangerous concentrations
of methane quickly rising to an explosive level from the above sources are increased
where the mine liberates such high quantities of methane. Although Respondent
offered its ventilation scheme as a sufficient countermeasure against methane
accumulation, the Commission has consistently found that adequate ventilation
within a mine is not sufficient to remove the danger of explosive levels of
methane. U.S. Steel, 6 FMSHRC at 1869; Excel Mining, LLC, 37
FMSHRC at 466.  Based on the entire record, I find it reasonably likely that
under continued normal mining operations, Crum’s non-permissible truck would be
exposed to an explosive concentration of methane in the return air where it was
parked.  

Respondent argues that the truck would have been removed
before production restarted, thus eliminating the presence of the ignition
source. Tr. 286.  I reject this argument. As the Fourth Circuit recently
recognized, the Commission has long “held that an S&S determination ought
to be ‘made at the time the citation is issued (without any assumptions as
to abatement).’ Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC
1573,1574 (1984) (emphasis added); see also Sec’y of Labor v.
McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting the
argument that an S&S finding was erroneous ‘because [the mine operator] was
in the process of cleaning the accumulations when the inspector arrived’); Sec’y
of Labor v.Gatliff Coal Co., 14 FMSHRC 1982, 1986 (1992) (finding that the
ALJ erred in ‘inferring that the violative condition would cease’ in the course
of normal mining operations).” Knox Creek, 811 F.3d at 165. In addition,
Crum’s testimony that the truck would have been removed before production
restarted is speculative and unsupported by any evidence. Apart from Crum’s
interest as a longwall maintenance supervisor in remaining by the longwall to
ensure that the belt and longwall operated properly before he returned to his
truck and the surface, Crum likely would have been delayed in any number of
ways as longwall maintenance supervisor.  Furthermore, because Crum was
ignorant of the violative condition (see e.g., Tr. 284), I find it likely that
he would have started the truck while it was in return air after production
restarted, thus increasing the likelihood of a methane ignition. 

In
sum, I find that the presence of an ignition source, the location of that
ignition source within return air reserved only for permissible equipment, the
likelihood of a methane build up to an explosive level during continued normal
mining operations in this gassy mine, and the testimony that the mine normally
had high dust concentrations make it likely that the violation contributed to a
discrete methane ignition or explosion hazard. As such, I find that the second prong
of Mathies test was satisfied.   

c.      
The Violation Contributed
to a Hazard That was Reasonably Likely to Result in Injury

As the Fourth Circuit has recognized,
the third and fourth prongs of Mathies, which are often combined in a
single showing, are primarily concerned with gravity or the seriousness of the
expected harm. To the extent that the third and fourth prongs are concerned
with likelihood at all, they are concerned with the likelihood that the
relevant hazard will result in serious injury because requiring a showing at
prong three that the violation itself is likely to result in harm would make
prong two superfluous.  Knox Creek, 811 F.3d at 162, citing Mathies,
3 FMSHRC at 3-4.

Regarding the third Mathies
factor, the Secretary demonstrated a reasonable likelihood that the hazard
contributed to by the violation, i.e., a methane explosion contributed to by parking
an impermissible ignition source in return air, was reasonably likely to result
in an injury to the four miners working near the
face.  As noted, for this element to be satisfied “[t]he
Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” Cumberland, 33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser
Engineering, Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010).  Nor is the Secretary required to prove that the hazard contributed to
will actually result in an injury-causing event. Youghioghemy & Ohio
Coal Co., 9 FMSHRC 673, 678 (April 1987).

Rather, the
test under the third prong of Mathies is whether there is a reasonable
likelihood that the hazard contributed to by the violation . . . will cause
injury.  Knox Creek, 811 F.3d at 161, citing Musser Engineering, 32
FMSHRC at 1281, where the Commission assumed the existence of the relevant
hazard and considered only “evidence regarding the likelihood of injury as a
result of the hazard.” Although the Commission’s decision in Ziegler Coal
Co., 15 FMSHRC 949, 953 (1993), supports the argument that evidence of the
likelihood of the hazard is relevant at prong three, as the Fourth Circuit
noted, that position is flatly contradicted by more recent Commission precedent
in Musser, 32 FMSHRC at 1281, and by the unanimous voice of the Fourth,
Fifth and Seventh Circuits. See Knox Creek, 811 at 164; see also Peabody
Midwest 762 F.3d at 616 (holding that the question is not whether it is
likely that the hazard would have occurred, but only if the hazard occurred,
regardless of likelihood, it was reasonably likely that a reasonably serious
injury would result); Knox Creek, 811 F.3d at 161 (Skidmore
deference applied to Secretary’s litigating positions 1) that third prong of Mathies
focuses on the likelihood that the hazard to which the violation contributes
will cause injury, not on the likelihood of the hazard occurring, and 2) the
existence of the relevant hazard should be assumed); Buck Creek, 52 F.3d
at 135 (the third prong of Mathies is satisfied where the ALJ determined
that in the event of the hazard, a reasonably serious injury would result); Austin
Power, 861 F.2d at 103-04 (finding third prong of Mathies satisfied
where the hazard “would almost certainly result in serious injury,” without
requiring evidence that the hazard itself was likely); cf. Cumberland
Coal, 71 F.3d at 1027-28 (Secretary’s interpretation that decision maker should
assume the existence of an emergency when evaluating whether the violation of
an emergency safety standard is S&S is not inconsistent with Mathies
or Commission precedent).

I credit
inspector Lampley’s testimony that the violation, parking the impermissible
truck with unapproved electrical components in return air, contributed to a
methane ignition or explosion hazard that was reasonably likely to result in an
injury to the four miners working at the face. Tr. 156-63. The Commission has
long recognized that a methane ignition or explosion is likely to result in a
fatal injury to exposed miners.  See Consolidation Coal, 35 FMSHRC at
2337 (affirming judge’s determination that the lack of a permissible light on a
roof bolter would contribute to the hazard of a methane gas ignition or
explosion, which is reasonably likely to cause a permanently disabling or fatal
injury); Black Diamond Coal Mining, 7 FMSHRC 117, 1120 (1985)(“We have
previously noted Congress’ recognition that ignitions and explosions are major
causes of death and injury to miners”); Jim Walter Res., Inc., 37 FMSHRC
1968, 1976 (Sept. 2015)(“horrific mine explosion[s took] the lives of 12 miners
at Sago Mine”); Sec’y of Labor v. Performance Coal Co., 34 FMSHRC 587,
588 (2012) (ALJ) (explosion at longwall section due to an ignition of methane
propagated by coal dust resulted in deadliest U.S. mine disaster in 40 years,
killing 29 miners); cf. Knox Creek, 811 F.3d at 163 (permissibility
violations where a mine’s atmosphere contains explosive concentrations of
methane contribute to a methane ignition or explosion hazard that is reasonably
likely to result in an injury-producing event).  Accordingly, I find that the
third prong of Mathies was satisfied.

d.     
There was a Reasonable
Likelihood That the Injury in Question Will Be of a Reasonably Serious Nature

With regard to the fourth Mathies
factor, I find a reasonable likelihood that any injury from a methane explosion
would be of a reasonably serious nature. A methane-related explosion
contributed to by the violation was reasonably likely to result in fatal
injuries to the four miners working at the face.  Consolidation Coal Co.,
35 FMSHRC at 2337; Black Diamond Coal Mining, 7 FMSHRC at 1120; Jim
Walter Res., Inc., 37 FMSHRC at 1976; Sec’y of Labor v. Performance Coal
Co., 34 FMSHRC at 588.  Fatal injuries are necessarily serious in nature. Thus,
I find the fourth Mathies factor satisfied.

In sum, considering all relevant factors, I find
the violation was S&S.

3.     
Respondent’s Negligence is Reduced from High to Moderate

I find
that Respondent’s negligence should be reduced from “high” to “moderate.” It
was not unreasonable for Crum, an agent of the operator, who was visually
estimating distances, to mistake 144 feet for 150 feet and to park the hood of
his truck slightly in return air. I find this honest mistake to be a mitigating
circumstance that supports a reduction in Respondent’s negligence from high to
moderate.  

4.     
Civil Penalty for Citation No. 8451651

Applying the penalty
assessment criteria set forth in section 110(i) of the Mine Act, I find that
Respondent, Mach Mining, Inc., operates the Mach Mining No. 1 Underground Mine,
which mined 7,528,061 tons of bituminous coal in 2012.  The parties stipulated
that the originally proposed penalty of $16,867 will not affect Respondent’s
ability to remain in business. MSHA recognized Respondent’s good-faith
compliance in abating the citation. I have affirmed MSHA’s gravity and S&S
determinations. I have modified MSHA’s negligence determination from high to
moderate. After consideration of the penalty assessment criteria set forth in
section 110(i) of the Act, I assess a $5,081 civil penalty against the Respondent
for Citation No. 8451651.

VI. Citation No.
8439446

A. Findings of Fact

1.     
Inspector Stanley’s
Testimony

After determining that Respondent’s
methane monitor attached to a roof bolting machine failed to register explosive
concentrations of methane, Inspector Phillip Wayne Stanley[19]
issued Citation No. 84539446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr.
465-66. The cited standard requires that methane monitors be maintained in
proper operating condition. Tr. 465. Properly operating monitors de-energize
electrical equipment when methane concentrations reach 2.0 percent or when the
monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465. Stanley
determined that the violation was S&S and contributed to a methane ignition
hazard that was reasonably likely to result in flash burns affecting two miners,
as a result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary
proposed a penalty of $1,412.

On August 6, 2013, Stanley conducted a regular
inspection at Mach Mining. Tr. 461-62. As part of that inspection, Stanley
tested the methane monitor attached to roof bolter #4 on the eighth headgate
panel. Tr. 462, 464. Stanley conducted the inspection with a calibrator that displayed
a digital readout, which listed the methane level. Tr. 464-65. When Stanley applied
2.5% methane to the monitor, it only read as high as 1.6 % methane. Id. The
roof bolter is programmed to automatically de-energize at 2.0 %. Tr. 465. With
an inaccurate methane monitor, the machine would likely fail to de-energize in
explosive levels of methane. Tr. 468.

Under MSHA regulation, methane readings must be taken
every twenty minutes during the process of roof bolting. Tr. 466, 496; 30
C.F.R. §75.362(d)(2).  If a roof bolter lacks a methane monitor, readings must
be taken with a probe at the deepest point of the cut approximately a
foot from the roof or face. Tr. 467, 493-94. If the roof bolter has a methane
monitor, readings can be taken within sixteen feet of the front of the machine.
Tr. 466-67, 494-95. Stanley opined, but was not positive, that the methane monitor
on the bolter did not run all day and was only used when a reading was taken. Tr.
495.

Stanley issued Citation No. 8439446 for a
violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-66. The cited standard requires
that methane monitors be maintained in proper operating condition. Tr. 465. Properly
operating monitors de-energize electrical equipment when methane concentrations
reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. §
75.342(c); Tr. 465.

Stanley marked the citation as “reasonably likely” to
result in an injury because the machine would not de-energize when encountering
an explosive concentration of methane. Tr. 468. The mine liberated two million cfm
of methane in a 24-hour period, and the eighth headgate panel itself released
25,000 cfm of methane in a 24-hour period. Id. Although more methane is
released during extraction, some methane is released during roof bolting. Tr.

496. Because methane is lighter than oxygen, it accumulates in the top third of
     the entry where bolting occurs. Tr. 472-73. The methane monitor was placed on
     the automated temporary roof support system (ATRS) to gather readings in this
     accumulation zone. Tr. 468-69, 492. Additionally, the area near the roof of the
     mine was susceptible to sparking because the carbide tips of the bolter’s drill
     bits encountered materials such as sandstone, limestone, and shale. Tr. 469.  The
     roof bolter also created sparks when its wrench and bolt rotated against a
     steel-bearing plate. Id. Stanley referred to a 2012 ignition at
     Prosperity Mine to demonstrate the hazard resulting from a malfunctioning
     methane monitor on a roof bolter. Tr. 470.

Given the malfunctioning methane monitor, the
likelihood and location of methane accumulation, and the potential for
sparking, Stanley expected resulting injuries from an ignition to manifest as
flash burns. Id. Stanley determined that these injuries would result in
lost workdays or restricted duty and would affect the two machine operators. Tr.
470-71.

At the time of the citation, Respondent’s
ventilation system met regulatory standards. Tr. 490-92. Looking inby, the
system ventilated the roof bolter with air traveling from right to left, and
included a line curtain to assist with ventilation. Id. This air acted
to render harmless or remove noxious and hazardous gases and dust. Id.,
Tr. 505. However, ventilation systems may be inadequate where methane bleeders
are encountered. Tr. 505-06. Bleeders are pockets of methane pressured under
the strata. Id. They may continually replace explosive concentrations of
methane faster than the ventilation can sweep the air. Id.

In deference to Respondent’s implementation of
seven-day checks on its methane monitors rather than the thirty-one day
intervals required by the regulations, Stanley determined that Respondent’s
negligence was moderate. Tr. 471.

2.     
The Testimony from
Respondent’s Witnesses

a.     
Mark Schilke’s Testimony

Schilke accompanied Stanley during his
inspection of the roof bolter. Tr. 552. At the time of inspection, the bolter
was pulled back approximately eighty feet from the face and outby the feeder
break or last open crosscut. Tr. 555-56. The roof bolter is typically pulled in
to secure unsupported roof after the continuous miner takes a fresh cut at the face.
Tr. 557-58.

Schilke testified that prior to
positioning the roof bolter, the roof bolt operators would take a methane
reading. Tr. 553. A separate handheld methane monitor was attached to the probe
and extended at least fifteen feet beyond the bolter. Tr. 553, 629-630, 635. The
bolter operators repeated these readings every twenty minutes with a probe. Tr.
553, 624, 644. Schilke testified that having a methane monitor attached to the
bolter did not affect the nature of the twenty-minute gas checks in any way. Tr.
629-632. There was no evidence to suggest errors in the equipment or data derived
from these regular methane checks. Tr. 554.

Both Stanley and Schilke wore
methane spotters and neither reported methane near the face. Tr. 559. Schilke
testified that although the cited methane monitor failed to deenergize the
machine, it did emit a warning during the methane test. Tr. 552, 628-29. Schilke
also emphasized that methane monitors were an optional safety precaution. Tr.
552-53.

During roof bolting, Respondent ran
a curtain to the tail of the bolter, to facilitate the flow of approximately
3000 cfm of intake air. Tr. 556-57. This ventilation system directed the air
towards the face and across the bolter to remove gas and dust from the bolter. Tr.
556-58. Schilke admitted that the amount of ventilation would not diminish the
necessity of twenty-minute gas checks. Tr. 633.

b.     
Johnny Robertson’s
Testimony

General Manager Johnny Robertson[20]
testified that methane was only liberated when the continuous miners or the
longwall shearers cut coal. Tr. 710-11, 742. Robertson testified that methane
is less likely encountered during roof bolting than mining, and is usually only
present when roof bolting into a coal seam. Tr. 716. Robinson testified that during
his four years of tenure with Respondent, there were no reports of methane
released from the roof or during bolting. Tr. 718-19.

According to Robertson, the
regularity of spot inspections is determined by the amounts of methane and
intake air in the mine. Tr. 743. Higher volumes of intake air reduce the methane
content within the mine. Tr. 743-44.  Robertson explained that Respondent’s
ventilation plan required a minimum of 3000 cfm of intake air blowing against a
line curtain and across the back of the roof bolters. Tr. 711. Although
Respondent met the ventilation requirements, its methane levels nonetheless
required five-day spot inspections. Tr. 709-10, 743-44. Robertson conducted
weekly methane readings where methane accumulated at the bleeder system behind
the longwall. Tr. 710. He testified that during his time as general manager,
neither his readings, nor any readings reported to him, were above 0.7 %
methane. Tr. 711.

Robinson confirmed that Respondent used a
continuous miner to carve out entryways. Tr. 717. After it cut forty feet of
coal and withdrew, the roof bolter moved in to support the roof.  Id., Tr.
742-43. Robertson testified that the light on the monitor was generally visible
to the operator when the continuous miner cut and loaded coal. Tr. 723-24. He
testified that the operator stood in front of the methane monitor. Tr. 745. He
acknowledged, however, that the operator might turn away from the monitor while
the cutter drum cut coal, whenever the shuttle car approached and loaded coal. Tr.
723-25, 745. Under such circumstances, the methane monitor was not visible for
a few seconds. Tr. 723-25, 746. The continuous miner was not programed to
automatically de-energize in concentrations of one-percent methane. Tr. 746-47.
Instead, it was de-energized manually. Id.

Robertson also confirmed that when
the roof bolter had a methane monitor attached to the ATRS, the operators probe
sixteen feet in front of the bolter. Tr. 719. These methane checks were
repeated every twenty minutes during roof bolting. Id. If the bolter did
not have an attached methane monitor on the ATRS, these checks would occur with
a different handheld monitor at the deepest point of penetration about twelve
inches from the face and roof. Tr. 720.

B. Analysis and Disposition

1.     
The Violation of § 75.342(a)(4)

Section 75.342(a)(4) requires that operators
maintain methane monitors in permissible and proper operating condition and calibrate
them with a known air-methane mixture at least once every 31 days. A methane
monitor in permissible and proper operating condition shall automatically de-energize
electric equipment or shut down diesel equipment on which it is mounted when
the methane concentration reaches 2.0 percent or when the monitor is not
operating properly. 30 C.F.R. § 75.342(c).

Respondent admitted the violation. Tr. 552. See
R. Br. 12. The methane monitor failed to de-energize the machine when methane
concentrations reached 2% and failed to provide readings higher than 1.6 %. Tr.
464-65. Respondent argues that the violation was not S&S, that its
negligence was less than moderate, and that the proposed penalty calculation is
inappropriate.  

2.     
The Violation was
Significant and Substantial

a.     
There was a Violation of a
Mandatory Safety Standard

For the reasons explained above, I
have found and Respondent admits the underlying violation of a mandatory safety
standard, i.e., § 75.342(a)(4).  

b.     
The Violation Contributed
to a Discrete Measure of Danger to Safety

As stated previously, the second
Mathies factor requires a showing that the violation created a discrete safety
hazard, “which implicitly requires a showing that the violation is at least
somewhat likely to result in harm.”  Knox
Creek, 811 F.3d at 16, citing Black
Beauty Coal Co., 34 FMSHRC at 1741, n. 12, aff’d sub nom. Peabody
Midwest, 762 F.3d 611 (7th Cir. 2014); Cumberland, 33 FMSHRC at
2368, aff’d sub nom. Cumberland, 717 F.3d 1020; E. Associated
Coal Corp., 13 FMSHRC at 183; Utah Power & Light Co., 12 FMSHRC
at 970.  Where a violation poses a risk of fire or explosion, this
likelihood is demonstrated by the presence of a “confluence of factors,” such
as possible ignition sources, the presence of methane, and the type of
equipment in the area. Excel Mining, LLC, 37 FMSHRC at 465, slip
op. at 7, (Mar. 2015); Utah Power & Light Co., 12 FMSHRC at
970-71; Texasgulf, 10 FMSHRC at 501-03. For example, in Consolidation
Coal, the Commission found that a methane ignition was
reasonably likely because methane was emitted during roof bolting, the bolter
was located near the gob and far from the bleeder fans, and the mine was gassy.
Consolidation Coal Co., 35 FMSHRC at 2337.  

A properly functioning methane
monitor is expected to automatically de-energize electrical equipment in two
percent methane to avoid the potential ignition of explosive levels of methane
at the 5-15% range. The monitor at issue in the present citation did not detect
two percent methane when tested, and would not automatically de-energize the roof
bolter in rising concentrations of methane, thus contributing to the likelihood
of a methane ignition should methane accumulate to an explosive level during
continued normal mining operations. Consequentially, I find that the hazard
contributed to by the violation was a methane-related ignition caused by
undetected explosive levels of methane where ignition sources were present.

The risk of
excessive methane in Respondent’s mine nearly parallels the risk cited in Consolidation
Coal. Methane was liberated during roof bolting. Tr. 469. Due to its
weight, the methane accumulated near the top third of the entry where bolting
occurred. Tr. 468-69. The potential for bleeders increased the possibility of dangerous
methane concentrations. Tr. 505-06.  

Furthermore,
the Commission has held that if a mine liberates high levels of methane there
may be an even greater potential for a methane ignition to occur and that this
may be considered in a confluence-of-factors analysis. Excel Mining, LLC, 37 FMSHRC 465, slip op. at 7,
(Mar. 2015); Knox Creek Coal
Corp., 36 FMSHRC at 1134. As stated previously, the Mach Mining No. 1 Underground
Mine is a gassy mine that is on a five-day spot inspection schedule. Tr. 35. The
mine liberates over two million cfm methane in a 24-hour period and
approximately 35,000 cfm methane at the eighth head-gate panel.  Tr. 468. I
find that the confluence-of-factors test is satisfied here and that the
violation created a discrete safety hazard, which was
at least somewhat likely to result in harm.

Citing facts discussed in the Consolidation
Coal ALJ decision, Respondent argues in its response to the Secretary’s
Post-Hearing brief that the risk of excessive methane in the present case is
substantially different from the risk of excess methane in Consolidation
Coal. R. Resp. Br. 6-7.  According to Respondent, respondent Consolidation Coal
had higher levels of methane because the roof bolters and continuous miners
shut down four to five times in a cycle, and a curtain was removed by a
foreman, thus raising methane levels to 7.7%. Id. However, the facts that
Respondent relies on were not determinative in Consolidation Coal. Instead,
the Commission cited only three factors when establishing a sufficiently
dangerous risk for a methane ignition. Consolidation
Coal Co., 35 FMSHRC at 2337 (emphasis
added).  The Commission cited the emission of methane while roof bolting,
the location of the roof bolter near the gob and further from the bleeder fans,
and the fact that the mine was gassy. Id. (“[T]he Robinsons Run mine liberates more than a million
cfm of methane during a 24-hour period and is subject to five-day methane spot
inspections”). Given the cited conditions, the Commission quoted the
inspector’s testimony that “it would only take a roof-fall for the gob air to …
create an explosive amount of methane.” Id. at 2336. With the additional
danger of encountering pockets of methane bleeders, the present risk factors
are nearly identical to those enumerated by the Commission in Consolidation
Coal.  Accordingly, I do not find Respondent’s argument persuasive.

Respondent also cites Judge
Zielinski’s decision in Ohio County Coal for the proposition that a
malfunctioning methane monitor is not S&S where the mine has low levels of
methane concentrations. Ohio County Coal Co., 32 FMSHRC 220 (Feb.
2010)(ALJ).  Ohio County Coal is distinguishable from the present case in
at least one major way. The mine in Ohio County Coal did not liberate
excessive quantities of methane, as noted by Judge Zielinski in his analysis. 32
FMSHRC at 224 (comparing Freedom mine to mines that liberate greater quantities
of methane and are subject to spot inspections).  Instead, the mine in that
case emitted a mere 12,000 to 13,000 cfm methane in a 24-hour period, in
comparison to Respondent’s liberation of one million cfm methane in a 24-hour
period. Id.

In short,
Respondent roof bolted with a malfunctioning methane monitor in an area
of methane emission and accumulation within a gassy mine. The inspector
credibly testified that sparks released from roof bolting in excess methane
concentrations will cause an ignition. I find that this combination of risk
factors satisfies the confluence-of-factors test for a methane ignition hazard
and supports a finding that the hazard is at least somewhat likely to occur.  Accordingly,
I find that the second Mathies factor is satisfied.

c.      
The Violation Contributed
to a Hazard That was Reasonably Likely to Result in Injury

As stated
previously, federal appellate law and Commission precedent have sufficiently
established that a methane explosion is reasonably likely to result in injures.
See Buck Creek, 52 F.3d at 135; Consolidation Coal Co., 35 FMSHRC
at 2337; Black Diamond Coal Mining, 7 FMSHRC at 1120; Jim Walter
Res., Inc., 37 FMSHRC at 1976; cf. Knox Creek, 811 F.3d at 164-65.  Accordingly,
I find that the third Mathies factor is met.

d.     
There was a Reasonable Likelihood
That the Injury in Question Will Be of a Reasonably Serious Nature

With regard to the fourth Mathies factor,
I find a reasonable likelihood that any injury from a methane explosion would
be of a reasonably serious nature. The record establishes that a
methane-related ignition contributed to by the violation was reasonably likely
to result in a serious injury or illness to at least two miners working with the
bolter, who would suffer flash burns from a methane ignition. I find that the
designation of “lost workdays or restricted duty” was appropriate for this
violation.

In sum, considering all the relevant factors, I
find that the violation was properly designated as S&S.

3.     
Respondent’s Negligence was
Appropriately Designated as Moderate

Based on the testimony and briefs, I do not find
considerable mitigating circumstances that would justify reducing the
negligence designation from moderate to low. Respondent knew or should have
known of the violation.  Respondent’s ventilation and weekly methane monitor
calibrations are mitigating circumstances that support a moderate negligence
designation.  However, Respondent highlighted no action that considerably
mitigated the likelihood or severity of a methane ignition during roof bolting
without a properly functioning methane monitor. In these circumstances, I
conclude that the Secretary properly designated Respondent’s negligence as
moderate.

4.     
Civil Penalty for Citation
No. 8439446

Applying the penalty
assessment criteria set forth in section 110(i) of the Mine Act, I find that
Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties
stipulated that the originally proposed penalty of $1,412 will not affect
Respondent’s ability to remain in business. MSHA recognized Respondent’s good-faith
compliance in abating the citation. I have affirmed MSHA’s gravity, negligence,
and S&S determinations. After consideration of the penalty assessment
criteria set forth in section 110(i) of the Act, I assess a $1,412 civil
penalty against the Respondent for Citation No. 8439446.  

V. Citation No.
8432319

A. Findings
of Fact

1.     
Inspector Bretzman’s
Testimony

After
observing the absence of an auxiliary methane alarm light on a longwall
shearer, MSHA inspector Robert L. Bretzman[21]
issued Citation No. 8432319 for a violation of 30 C.F.R. § 75.342(b)(2), which
requires that “[t]he warning signal device of the methane monitor shall be
visible to a person who can de-energize electric equipment or shut down
diesel-powered equipment on which the monitor is mounted.” Tr. 409.  Bretzman
determined that the violation was unlikely to contribute to a methane ignition
hazard, but that any injuries that did result from the hazard would result in lost
work days or restricted duty affecting three miners, as a result of
Respondent’s low negligence. Tr. 409-411. The Secretary proposed a penalty of $117.

On September 11, 2013, Bretzman was among several
inspectors who conducted a quarterly inspection of Respondent’s longwall. Tr.
396-97. Bretzman testified that the longwall was probably producing coal when
he arrived, but he could not say for sure.  Tr. 418. During the inspection, Bretzman
noticed that there was no auxiliary alarm light on the longwall shearer. Tr. 398.  In Bretzman’s experience,
longwall shearers always have auxiliary alarm lights. Tr. 407, 410. The shearer
at issue has an electric panel with a four to six-inch LED screen, which constantly
displays the current concentration of methane. Tr. 439-440. This methane
reading flashes when methane levels reach a certain percentage. Tr. 440-441. When
methane concentrations reach one percent, an alarm light turns on to alert the
shearer operator of excessive methane. Tr. 441. This alarm light is located in
the bottom right-hand corner of the panel and is approximately the size of a
quarter. Tr. 411-412, 441; S. Ex. 102.

Respondent usually has two longwall
shearer operators, a headgate operator and a tailgate operator, and each has a
remote control box that can de-energize the shearer. Tr. 404-05, 433. The shearer
also has an emergency stop button that can be operated by anyone in the area,
including the stage loader operator. Tr. 434-36.  Bretzman testified that the
stage loader operator works in a stationary position at the headgate of the
longwall.  Tr. 435-36.  Bretzman testified that the only way to see the alarm
on the shearer is to stand directly in front of the monitor. Tr. 402, 413.  Respondent
failed to present any testimony that the stage loader operator could see the
auxiliary light on the longwall shearer.  

Bretzman did not observe the longwall in operation and
did not know for certain where the operators stood that particular day. Tr.
437-438, 442. However, Bretzman testified that it was highly unlikely that a
miner would stand where he could see the monitor because from that location he
would be unable to see the cutting drums. Tr. 402-403. At any given time, an operator
may stand anywhere along the shearer, up to twenty-five feet from the monitor. Tr.
412-15, 438-439, 447. Upon questioning headgate operator Mike Skelton, Bretzman
learned that he was positioned outby the headgate drum when it traveled towards
the headgate. Tr. 446; see S. Ex. 100, p. 3. This location confirmed
Bretzman’s suspicion that the shearer operator would not see the warning light.
Tr. 446. Bretzman’s notes from the day of the inspection do not indicate the
tailgate operator’s usual location, although Bretzman opined that Skelton would have volunteered that information if it was
exculpatory. Tr. 456-57.

Bretzman returned to MSHA and verified that alarm lights
were required on the shearer. Tr. 405, 408, 443. Bretzman decided, and the MSHA
field office supervisor agreed, that a citation was appropriate. Tr. 444. Bretzman
returned to the mine the next day and issued the citation. Tr. 408. The cited
standard requires that “[t]he warning signal device of the methane monitor
shall be visible to a person who can de-energize electric equipment or shut
down diesel-powered equipment on which it is mounted.” 30 C.F.R. § 75.342(b)(2);
see also Tr. 409. Bretzman determined
that the operator could not see the monitor during normal mining operations
unless he was in the direct line of sight of the readout. Tr. 409, 412, 441. As
a result, the operator would not have accurate methane readings during mining. Tr.

409. However, Bretzman conceded that the standard does not specifically say
     that the monitor must be visible to the headgate or tailgate operator. Tr.
     436-37. Any person assigned to watch the monitor would be sufficient. Tr. 437,
410. To Bretzman’s knowledge, no one stood at the center of the shearer. Tr.
411. Furthermore, Bretzman could not recall anyone from Respondent
     telling him that the indicator light could be seen by a person who could
     de-energize the machine.  Tr. 446.  

Respondent argues that the lack of
previous citations from past inspections suggests that the condition was not a
violation. Tr. 725-27. Since 2006, Respondent developed longwall panels for
three miles and was subject to many inspections, including E01 inspections, spot
inspections, and permissibility certifications for 2G longwall equipment. Tr.
422-442. Bretzman testified that the 2G approvals were irrelevant because they
only certified diagrams and plans of the mine, and not the ways in which
equipment was actually used. Tr. 451-452. For instance, Bretzman recalled a
similar citation at the same mine requiring an auxiliary alarm light on a stage
loader. Tr. 406. In that case, the stage loader satisfied 2G permissibility
requirements if one assumed that the operator was in view of the methane alarm.
Tr. 451-52. In practice, however, MSHA inspectors observed that the operators
were not always in position to view the alarm and therefore issued a citation. Id.
Bretzman could not recall if he had spoken with Respondent previously about the
failure to place a light on the shearer, although he believed he had. Tr. 422, 431.
Bretzman testified that every longwall shearer that Bretzman worked with at
Consol, and most of the ones at Joy Technologies had auxiliary alarm lights. Tr.
407.

Bretzman determined that the
unlikely injury that would result from the alleged violation was lost work days
or restricted duty for three miners. Tr. 410-11. He testified that there was
normally a high concentration of coal dust at the site. Tr. 411. Excessive
methane in an environment with coal dust creates an ignition hazard. Id. As a result, Bretzman determined that the
shearer operators and shieldman were at risk for burns. Id. Bretzman
wrote the citation as unlikely because mining had stopped and he had no
evidence to suggest that methane was present. Tr. 410, 420. Furthermore,
Respondent’s ventilation pushed over 100,000 cfm of intake air over the
headgate, and the shearers were designed to automatically de-energize at 2.5 %
methane. Tr. at 417-21. The monitors designed to shut off the shearers worked
properly at the time of the citation. Tr. 421.

To abate the alleged
violation, Respondent ordered the equipment necessary to install an auxiliary
alarm light on the shearer. Tr. 412. Respondent installed a new, two-inch
flashing light that was visible to the shearer operators. Tr. 448. The citation
was terminated by another inspector. Tr. 457-58.

2.     
The Testimony from
Respondent’s Witnesses

a.     
James Key’s Testimony

James
Key was a shearer operator for the Respondent.[22]
Key explained that a longwall shearer is a piece of equipment with two drums,
one at the head and one at the tail end. Tr. 649-650. As the shearer passes from
the headgate to the tailgate, the tail drum cuts the top, and the head drum cuts
the bottom. Id. The headgate operator runs the head drum with a remote control
as cuts are made, while the tailgate operator does the same with the tail drum.
Tr. 650-52. The remotes have stop buttons that can turn off, but not de-energize,
the machine. Tr. 651. Instead, the shearer has an emergency stop that de-energizes
the machine. Tr. 652.

When the shearer moves from the headgate
to the tailgate, the tailgate operator typically stands approximately six to
seven feet to the right of the alarm light in the direction of the tailgate. Tr.
653, 664. Key further testified that the alarm light was visible to the
tailgate operator, if he turned his head. Tr. 664. According to Key, the
headgate operator was usually in a variety of locations, including anywhere
from right behind the tailgate operator to the back of the head drum. Tr.
653-54, 664-65, 668. Key testified that the headgate operator could also see
the light, if he turned his head. Tr. 664.

Key testified that when the shearer moved
in the opposite direction, the tailgate operator typically stood on the head
side of the drum. Tr. 655, 666-68. The headgate operator was usually located closer
to the alarm light, although neither operator remained in a certain location. Tr.
666-68. Although the light was usually visible, the operators might not have
been in position to see the light at any given moment. Tr. 666. Key admitted
that there was not always someone standing in front of the light during mining.
Tr. 674.

Key was familiar with the methane monitor
and the lights on the display. Tr. 661.  Key had worked for a different coal
company with a similar longwall system, which had the monitor in the same
location. Tr. 669. According to Key, the light, which turned on when methane
levels reached one percent, was “pretty bright.” Tr. 662-63, 665. The light was
approximately an inch in circumference. Tr. 663. It was located within an
enclosure that jutted out around the edges. Tr. 673. The raised edges limited
the light’s visibility at certain angles from the monitor. Tr. 673-74.

b.     
Johnny Robertson’s
Testimony

General Manager Robertson was
familiar with the methane monitor on the longwall shearer. Tr. 720-21. Robertson
testified that in one percent methane, a yellow light turned on. Tr. 722, 746. Further,
given adequate ventilation, the operator merely had to stop mining to halt
methane liberation. Tr. 722. Once methane levels dropped below one percent, the
operators could resume mining. Id.

Robertson testified that Respondent
had never received a citation for the location of the auxiliary alarm light on
the shearer during the prior six years when Respondent used the longwall. Tr.
725-27. Additionally, Robertson testified that Massey Energy used the same
methane display and never received a citation during his four years as a
general manager there. Tr. 725-28. Until the instant inspection, Robertson had never
heard of a citation for this issue. Tr. 729. Robertson testified that, apart
from the issuance of the citation, Respondent suffered no reported negative
consequences from the location of the alarm light. Tr. 751-53.  Respondent
abated the citation by ordering an alarm light and installing it on a Saturday,
when the longwall was down. Tr. 756.

Robertson testified that approximately five
years before the date of the hearing, MSHA inspector, Dean Cripps, issued a
similar citation for lack of visibility on a monorail methane monitor.[23]
Tr. 728-30, 749-50. Robertson testified that Cripps’ concern about the location
of the alarm light was limited to the monorail because Cripps did not issue a
citation for the alarm light on the longwall shearer. Tr. 730. According to
Robertson, Cripps informed Robertson’s supervisor, Anthony Webb, that any
change in policy for the shearer methane monitors would be accompanied by
written verification from MSHA. Tr. 730, 738. Robertson testified that Respondent
never received verification in writing on this issue until the issuance of the
citation. Tr. 738-41.

Robertson further testified that two
years ago, Webb and Robertson determined that installing the light required
partially dismantling the shearer, and therefore, any necessary alterations to
the alarm light would occur when the shearer was rebuilt for another mining
panel. Tr. 730-32, 749-50. Robertson, however, admitted that Respondent did not
have to rebuild the shearer to install the light for abatement purposes. Tr.
752.

Robertson relayed his conversations
with Cripps and Webb to Bretzman. Tr. 733, 739-40.

B. Analysis and Disposition

1.     
Respondent had Adequate Notice
of the Requirements for § 75.342(b)(2)

Respondent argues that it did not have fair
notice of the standard before receiving the citation. R. Br. 25-27. Respondent asserts
that a previous MSHA inspector (Cripps) assured Respondent that a change in policy
on the methane monitors would be accompanied by written notification. Tr. 730,

738. Respondent contends that Cripps’ assurance, coupled with a lack of
     previous citations on the longwall shearer’s methane monitor, establish that
     Respondent did not receive fair notice of the standard.

Due process considerations prevent the adoption
of an agency’s interpretation of a regulation that “fails to give fair warning
of the conduct it prohibits or requires.” LaFarge North America, 35
FMSHRC 3497, 3500-01 (Dec. 2013)(citing Gates & Fox Co. v. OSHRC,
790 F.2d 154, 156 (D.C. Cir. 1986)). The Commission has held that adequate
notice is provided where a regulation has clear meaning and is not inconsistent
with MSHA’s Program Policy Manual (PPM). Jim Walter Res., Inc.,
28 FMSHRC 579, 594-95 (Aug. 2006). Where a regulation is not expressly defined,
the Commission has found adequate notice where clarification is found in MSHA
policy publications. See e.g., Dolese Brothers Co., 16 FMSRHC 689,
693-94 (Apr. 1994)(where MSHA’s PPM and a policy letter clarified the applicable
standard).

Here, the language of the
regulation is clear when it states that the “[t]he warning signal device of the
methane monitor shall be visible to a person who can deenergize electric
equipment or shut down diesel-powered equipment on which the monitor is mounted.”
§ 75.342(b)(2). This standard is further explained in MSHA’s Program Policy
Manual (PPM) for machines operated by remote controls. Thus, even assuming some
ambiguity in the regulatory language, the PPM was sufficiently clear regarding
the requirements of the standard. See Coal Employment Project v. Dole,
889 F. 2d 1127, 1130 n. 5 (D.C. Cir. 1989)(PPM, although not binding, is an
accurate guide to current MSHA policies and practices); accord Mettiki Coal
Corp., 13 FMSHRC 760, 766-67 & nn. 6 & & (May 1991). For such
machines, the PPM requires that methane warning devices be installed “in such a
location that [it] can be readily seen or heard by…the machine operator…at all
locations from which the machine is operated.” V MSHA, U.S. Dep’t of Labor,
Program Policy Manual, Part 75.342 at 41(2015) (emphasis added). I find
that the plain language of the regulation, coupled with the accompanying
explanation in the PPM, provided clear and fair notice to Respondent regarding
the interpretation of the cited standard. That is, MSHA requires that methane
warning devices for remote-controlled machinery be visible from all locations
from which the operator is located. 30 C.F.R. 75.342(b)(2).

Respondent’s argument that it detrimentally
relied on inspector Cripps’ assurances that a change in policy on the methane
monitors would be accompanied by written notification is not persuasive.  Essentially,
Respondent argues that MSHA should be estopped from issuing a citation on the
methane warning light on the longwall shearer because of Cripps’ assurances and
lack of previous enforcement. The Commission has declined to apply equitable
estoppel against the government, or in this case, its agents. King Knob Coal
Co., 3 FMSHRC 1417, 1421 (June 1981). Generally, “those who deal with the
Government are expected to know the law and may not rely on the conduct of
government agents contrary to law.” Heckler v. Community Health Services,
467 U.S. 51, 63 (1981). The Commission has held that “an inconsistent
enforcement pattern by MSHA inspectors does not prevent MSHA from proceeding
under an application of the standard that it concludes is correct.” Mach
Mining, 34 FMSHRC 1769, 1774 (Aug. 2012) (citing Austin Powder Co.,
29 FMSHRC 909, 920 (Nov. 2007)).

I have credited Bretzman’s
testimony that MSHA requires visible alarm warnings on methane monitors on
longwall shearers. Bretzman recognized an alleged violation and verified the applicability
of the regulation with his supervisor at MSHA. Tr. 444. I have found that the
plain language of the regulation, coupled with the accompanying explanation in
the PPM, provided clear and fair notice to Respondent regarding the
interpretation of the cited standard. Accordingly, I conclude that Respondent
had adequate notice of the requirements of 30 C.F.R. § 75.342(b)(2).   

2.     
The Violation of § 75.342(b)(2)

Section 75.342(b) provides that the warning
signal device of the methane monitor must be visible to a person who can de-energize
the equipment on which the monitor is mounted. 30 C.F.R. § 75.342(b)(2). The
regulations require the monitor to give this alarm signal when methane
concentrations reach one percent. 30 C.F.R. § 75.342(b)(1). At that point, the
miner must de-energize or shut down the equipment. 30 C.F.R. § 75.342(b)(2).

The Commission and the D.C. Circuit have previously
examined the application of this regulation to longwall methane monitors. Consolidation
Coal Co., 136 F.3d 819 (D.C. Cir. 1998) affirming Consolidation Coal Co.,
18 FMSHRC 1903 (Nov. 1996). The D.C. Circuit determined that a visible alarm is
essential because it alerts miners of dangerous concentrations of methane
should other safety measures fail. Id. at 822. The warning functions as
a fail-safe to ensure that miners respond to potentially hazardous situations. Id.
at 823. The D.C. Circuit Court concluded that the Secretary’s
interpretation of § 75.342(b) which requires that a warning signal be visible
at all times to a miner who can “react to increasing methane levels and, if
necessary, de-energize mining equipment,” was appropriate. Id. at 822.

Respondent attempts to distinguish
the present case from Consolidation Coal on the basis of notice. R. Resp.
Br. 25-26. In that case, the Commission found actual notice where MSHA
reiterated the requirement in seven meetings over the course of one year. Consolidation
Coal, Co., 18 FMSHRC at 1907. Those facts do not prevent a finding of fair notice
in the present case, for the reasons explained above.

I credit Bretzman’s testimony that the longwall
shearer operators would not be able to see the alarm light from various
positions. Tr. 446. Although Key described the warning light as bright, both he
and Bretzman testified that it was quite small, only up to an inch in
circumference. Tr. 412, 661. Furthermore, the control panel in which the alarm
light was contained had raised edges, which further limited its visibility at
certain angels. Tr. 673-74. Finally, Bretzman credibly testified that the
operators worked up to twenty-five feet from the warning light. Tr. 415.

Respondent argues that because
Bretzman did not observe an operator working thirty feet from the monitor, the
citation was inappropriate. R. Resp. Br. 26. However, Key corroborated
Bretzman’s testimony that the operators were not stationary during mining. Tr.
664-668.  Further, Key acknowledged that the alarm was not in the line of sight
of the operators at certain locations or angles. Tr. 666. Bretzman determined
that the operator could not see the monitor during normal mining operations
unless he was in the direct line of sight of the readout. Tr. 409, 412, 441. Therefore,
I find that the Secretary proved by a preponderance of the evidence that the small
methane alarm light on the longwall shearer was not visible from all locations where
the machine was operated, to a person, especially a machine operator working up
to twenty-five feet from the control panel, who could de-energize the equipment.
Indeed, a light the size of a quarter and located within the enclosure
described, would not be visible at much shorter distances.  Respondent failed
to rebut the Secretary’s case by establishing that a person could see the alarm
light from all locations from which the machine was operated remotely. Further,
Bretzman could not recall anyone from Respondent telling him that the indicator
light could be seen by a person who could de-energize the machine.  Tr. 446.  Accordingly,
I find a violation of § 75.342(b)(2).

Bretzman determined that because production had
halted and because he had no evidence of methane present at the time of the
citation, the violation was unlikely to result in an injury. Tr. 410, 420.  Under
extant Commission precedent, I lack authority to modify the non-S&S
designation and make it S&S.[24]

3.     
Respondent’s Negligence was
Appropriately Designated as Low

The Secretary argues that
Respondent’s negligence was low, citing the lack of previous enforcement as a mitigating
factor in the inspector’s analysis. P. Post Hr’g Br. 3-4 (quoting Mach
Mining, LLC, 34 FMSHRC 1769, 1744 (Aug. 2012), citing Austin Powder Co.,
29 FMSHRC 909, 920 (Nov. 2007)). In determining the weight to be given the lack
of enforcement, I note that Commission judges are not bound to apply the levels
of negligence definitions that are designated by potential mitigating
circumstances in the Secrtary’s regulations. Brody, 37 FMSHRC at 1701; Mach
Mining, 809 F.3d at 1263-64. While the Commission has held that
inconsistent enforcement is not a defense to liability, it is relevant to the
determination of negligence, and may be cited as a mitigating factor in
reducing said negligence. Mach Mining, 34 FMSHRC at 1744 (citing King
Knob Coal Co., 3 FMSRHC 1317, 1422 (June 1981), aff’d sub nom Mach
Mining, LLC v. FMSRHC, 809 F.3d 1259 1259 (D.C. Cir. 2016) (inconsistent
enforcement of a regulation may reduce the level of negligence and detrimental
reliance on MSHA’s incorrect interpretation of a regulation is properly
considered in mitigation of penalty).

Both this citation and the previous
citation involve violations of the same standard. While the similarity between
the citations might result in comparable negligence determinations, the precedent
cited above permits consideration of inconsistent prior enforcement at this
juncture to determine the appropriate level of negligence.  I credit Robinson’s
testimony that MSHA overlooked the violation of §75.342(b)(2) on the instant
shearer for years before issuing a citation on the date of the inspection. Tr.
725-27.  Given the lack of previous enforcement, I find that the Secretary
properly designated Respondent’s level of negligence as low.

4.     
Civil Penalty for Citation
No. 8432319

Applying the penalty assessment criteria set
forth in section 110(i) of the Mine Act, I find that Respondent mined 7,528,061
tons of bituminous coal in 2012. The parties stipulated that the originally proposed
penalty of $117 will not affect Respondent’s ability to remain in business. MSHA
recognized Respondent’s good-faith compliance in abating the citation. I have
affirmed MSHA’s gravity and negligence determinations. After consideration of
the penalty assessment criteria set forth in section 110(i) of the Act, I
assess a $117 civil penalty against the Respondent for Citation No. 8432319.  

VII. Citation No.
8439454

A. Findings of Fact

1.     
Inspector Stanley’s
Testimony

On August 15, 2013, Stanley returned to the mine to
conduct a regular inspection of the surface of the property, including any
underground equipment found on the surface. Tr. 472. Stanley inspected a Kubota
10, a two-seater diesel Road Taxed Vehicle (RTV), used to transport men or
material underground. Tr. 473. Stanley did not know who operated the Kubota,
but thought that it was Schilke. Tr. 499. Stanley examined the steering
components of the vehicle as the operator turned the steering wheel. Tr. 474,

482. Stanley inspected the Kubota again in the repair shop. Tr. 486. Stanley
     testified that both times, he observed impermissible play in the lower left
     ball joint. Id.

Stanley observed and concluded that there was excessive
wear and play in the lower left ball joint for three reasons. Tr. 474-75, 482. First,
the tires did not simultaneously turn with the steering wheel. Tr. 474-75, 508.
Stanley described this as hesitation or delay in the steering. Tr. 474-75. Second,
there were areas of shine on the ball joint. Tr. 474, 508. Stanley observed
that the shiny area was more than an eighth of an inch. Tr. 483. He testified
that this shine occurs when the tie-rod end wears on the ball. Tr. 474. Finally,
Stanley observed that there was in excess of an eighth of an inch of play on
the joint. Tr. 474, 480.

Stanley did not use a dial
indicator or any other tool to assist his measurements during either
inspection. Tr. 483, 487, 507.  Instead, he examined for separate movement in
steering  components. Tr. 474-75, 487, 498. Stanley testified that an excess of
an eighth of an inch of play contravenes MSHA out-of-service criteria. Tr.
507-08.  Stanley was unable to verify where the standard for an eighth of an
inch of play could be found in writing. Tr. 511-12. Stanley further testified
that the day before the hearing, he learned from Kubota’s service personnel
that a steering linkage component with any play must be replaced immediately. Tr.
475, 507, 510.

After observing excessive wear on
the ball joint of a Kubota vehicle, inspector Stanley issued Citation No.
8439454 for a violation of 30 C.F.R. § 75.1914(a), which requires that all
diesel equipment be maintained in proper operating condition. Tr. 465, 476. Stanley
determined that the violation was S&S and contributed to a loss of steering
hazard that was reasonably likely to result in a lost workdays or restricted
duty injury for one miner as a result of Respondent’s moderate negligence. P.
Ex. 107; Tr. 476-77. The Secretary proposed a penalty of $1,026.

The Kubota was driven at speeds up to approximately 21
miles per hour (mph) in the mine. Tr. 500, 503. When underground, the Kubota
was driven on a rough, concrete travel road, with potholes and a steep decline of
approximately 3000 feet. Tr. 477, 501-02. Stanley described the slope as having
at least an eight-percent grade. Tr. 478. He testified that an excessively worn
and unrepaired ball joint will cause “the steer tire [to] most likely fold over
and lay down… [resulting in a] complete loss of steering on the vehicle.” Tr.

477. Stanley determined that such a hazard was likely to cause injury to the
     Kubota operator or one of the pedestrian miners clearing coal near the conveyor
     belt along the travelway. Tr. 477-79.  The latter type of injury would result
     from the Kubota either striking a miner or pinching a miner against other
     structures. Tr. 478. Stanley testified that the brakes on the Kubota were in
     good working condition, and that operators generally drove at speeds consistent
     with road conditions. Tr. 499-500.

Stanley opined that the condition needed more than one
day to develop. Tr. 479. He further testified that the wear would not likely be
discovered during weekly inspections.  Id. Stanley did not recall
whether Respondent’s miners made any statements about mitigating factors when
he issued the citation. Tr. 488. Without evidence indicating how long the
condition actually existed, Stanley classified the Respondent’s negligence as
moderate. Tr. 479.

The citation was abated later that day when the
tie-rod end and the ball joint were replaced. Tr. 480, 488. Stanley did not
take measurements after abatement, although he did go under the Kubota to examine
the repair. Tr. 498.

2.     
The Testimony from
Respondent’s Witness

a.     
Schilke’s Testimony 

As noted, Schilke accompanied Stanley
during the inspection. Tr. 560. Schilke testified that he did not recall if Stanley
initially examined the vehicle. Tr. 563. Schilke then testified that Stanley
observed the steering while Jeff Wilkins, the Kubota operator, was directed to
turn the steering wheel. Tr. 560, 563-64.

According to Schilke, after Stanley’s inquiry, Wilkins
told Stanley that Wilkins had checked the Kubota prior to use and found no
issues with the steering. Tr. 560-61, 624, 627. Stanley then directed Wilkins to
drive the Kubota to the repair shop. Tr. 561-62. Schilke observed no problems
with the steering as Wilkins drove the vehicle to the shop. Id., Tr. 624.
At the shop, the vehicle was lifted and the ball joints were examined. Tr. 561,

567. There Schilke observed movement in the ball joint, although neither he nor
     Stanley used an instrument to quantify how much movement was present. Tr.
     561-62, 567-68, 621, 625. Schilke opined that the movement was less than an
     eighth of an inch, or less than the thickness of a quarter. Tr. 568, 622, 625. Schilke
     conceded that the movement would get worse over time if not repaired. Tr. 625.

Schilke testified that the Kubota that Wilkins drove
was very similar to the Kubota that Schilke drove. Tr. 565-66; see R.
Ex. 5 (photograph of Schilke’s Kubota).  Schilke described the brakes on the
Kubotas as “pretty good.” Tr. 566.  The Kubotas have hydrostatic transmissions,
which slow down the vehicles when pressure is removed from the gas pedal. Id.
Finally, Schilke described the concrete slope in the mine as rougher than an
interstate, with a rutted and grooved surface. Tr. 636.

When asked on direct examination to offer
any mitigating circumstances, Schilke testified that the movement of the ball
joint had little impact on the steering. Tr. 569. He also mentioned that any
impact on steering was further reduced by the soft tread of the tires on the
soft clay floor of the mine. Id. Finally, Schilke reiterated that
Wilkins had driven the Kubota down to the seals of the mine and back, and that Wilkins
had found no difficulty with steering. Id.

Schilke also testified that he
spoke with a mechanic for Respondent after Stanley issued the citation. The
mechanic did not testify at hearing. Schilke testified that the mechanic told
him that he would not have allowed an unsafe Kubota to go underground. Tr. 627,

637. According to Schilke’s testimony, the mechanic was of the opinion that the
     Kubota was safe because Wilkins had told him that the steering worked fine. Id.
     Schilke further testified that the mechanic told him that although the Kubota manufacturer
     wants no movement in the ball joint, in practice, vehicles that are used in a mine
     experience similar movement. Tr. 561-62, 566. Schilke later conceded on
     cross-examination that the steering in a private vehicle is very different from
     the steering in a Kubota. Tr. 620.

b.     
Jeff Wilkins’ Testimony      

Jeff Wilkins was
a mine examiner for Respondent.[25]
Tr. 683. Wilkins operated the Kubota in question every day. Tr. 685-686, 697. On
the date of the inspection, Wilkins conducted a pre-operational check of the
Kubota. Tr. 687. This check included an examination of the steering, which he
performed by turning the wheel back and forth to ascertain any slack.[26]
Tr. 687-88. Wilkins stated that a visual inspection of the ball joint while the
wheel was turned was not necessary to detect movement in the ball joint. Tr.
688-89.  Instead, the movement would manifest as play in the steering wheel. Id.
Wilkins testified that without turning the wheel, he would not notice wear in
the ball joint, unless it was substantial. Tr. 699. Wilkins claimed that he
would notice gradual slack in the Kubota’s steering over time. Tr. 698. Wilkins
further testified, consistent with Schilke’s account, that Wilkins did not
notice any problems with the steering during his pre-operational check of the
vehicle. Id.

After concluding his
pre-operational check, Wilkins drove his Kubota underground for approximately
one hour. Tr. 689-90.  He described the underground path driven as a fairly
steep slope, with smooth and rough patches, with rough conditions encountered where
rocks fell off beltlines and along intake ways. Tr. 695-96. He testified that
the Kubota was a slow-moving vehicle and he experienced no problems with the
steering or the brakes. Tr. 690-91, 701.

Wilkins contrasted his trip on the day of the
citation with an earlier experience that he had driving a Kubota with faulty
steering. Tr. 692. In the later instance, Wilkins noticed the steering arm
loosen and jerk when he drove over a rough area. Id. He testified that without
repair, such a steering arm may disconnect from the steering jack, forcing the
vehicle to halt instantly. Id. Wilkins testified that the Kubota
automatically stops when the wheel is turned and the operator removes his foot
from the gas. Tr. 693.

Contrary to Schilke’s testimony, Wilkins
testified that he did not operate the Kubota around Stanley. Tr. 696.  Rather,
Wilkins testified that he left the Kubota after returning to the surface. Tr.
693-94. Wilkins was not present for Stanley’s initial inspection of the vehicle
or for the inspection that occurred in the repair shop. Id. When Wilkins returned to the
vehicle, Stanley and Schilke had already decided to relocate the vehicle to the
repair shop. Id.

B. Analysis and Disposition

1.     
The Violation of § 75.1914(a)

Section 75.1914 imposes two duties
upon an operator: (1) to maintain machinery and equipment in safe operating
condition, and (2) to remove unsafe equipment from service. Derogation of either
duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct.
1979). The Kubota cited by inspector Stanley was mobile equipment. It is
undisputed that such mobile equipment was in service when cited. The dispute is
whether the Kubota was maintained in safe operating condition. I find that the
Kubota was not maintained in safe operating condition and was not removed from
service. Accordingly, I find the violation.

Equipment is in unsafe operating condition when
a reasonably prudent person familiar with the factual circumstances surrounding
the alleged hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action within the
purview of the applicable regulation. Ambrosia Coal & Construction,
18 FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982) (applying identical standard in underground coal
mines)).

The Commission has recognized that
movement in steering linkage ball joints alone can rise to the level of a
hazardous defect. See LaFarge North America, 35 FMSHRC at 3500 (applying
§ 56.14100(c), which concerns defects that make continued operation hazardous,
and remanding to determine amount of movement in ball joints and whether such
amount constitutes a hazardous defect). Stanley credibly testified that MSHA
finds violations where there is excess play in the ball joint. Tr. 507. Both
Stanley, and through Schilke’s hearsay admission, Respondent’s mechanic, reported
that the Kubota manufacturer requires no movement in the ball joint. Tr. 475,

561. In addition, I take administrative notice of the North American Standard
     Out-of-Service Criteria, issued by the Commercial Vehicle Safety Alliance.[27]
     This manual provides that a vehicle is to be taken out of service if any of its
     ball and socket joints exhibit “any motion, other than rotational, between any
     linkage member and its attachment point of more than 1/8 inch (3.2 mm) measured
     with hand pressure only” or if any tie rod exhibits “any looseness in any
     threaded joint.” Commercial Vehicle Safety Alliance, North American
     Standard Out-of-Service Criteria, at 44 (revised April 2010).

I credit inspector Stanley’s
testimony that there was impermissible movement in the lower left ball joint. A
simple visual inspection by Stanley as the operator turned the wheel revealed a
hesitation in steering, while the shine on the ball joint itself supplied
physical evidence of wear. Tr. 474.  Schilke corroborated the play in the ball
joint when recalling the examination conducted in the repair shop. Tr. 561-62. The
operator, Wilkins, used the Kubota after conducting a pre-operational
examination, which he admits did not include a visual examination of the ball
joint, and failed to reveal the play in the ball joint. Tr. 687-89.[28]
 Neither side disputes that, if left unchecked, the movement would grow worse
over time. Tr. 477, 625. Accordingly, I find that excess play in the ball joint
as visually observed by inspector Stanley constitutes a hazard making continued
operation of the Kubota unsafe and requiring its removal from service.

I discredit the recollection of
Respondent’s witnesses concerning the ball joint examination. Respondent’s
witnesses contradict themselves and each other with regard to the Kubota’s
inspection. Schilke alleged that he could not recall Stanley’s examination of
the Kubota’s steering, and then immediately proceeded to describe the
inspection. Tr. 563-64. Although Wilkins did not remember participating in the inspection,
both Stanley and Schilke confirmed the participation of Wilkins during Stanley’s
inspection. Tr. 482, 560-64, 693. 

Based on my review of the
testimony, I find that the Secretary proved by a preponderance of the evidence
that Respondent violated § 75.1914(a) by failing to maintain the Kubota in safe
operating condition, and by failing to remove it from service.

2.     
The Violation was
Significant and Substantial

a.     
There was a Violation of a
Mandatory Safety Standard

For the reasons explained above, I find
the underlying violation of mandatory safety standard § 75.1914(a).  

b.     
The Violation Contributed
to a Discrete Measure of Danger to Safety

My finding of a violation supports a
finding of a discrete measure of danger to safety as the standard violated
requires a failure to maintain mobile equipment in safe operating condition. Accordingly,
if the Kubota is not maintained in safe operating condition, there is
necessarily a discrete measure of danger to safety. This conclusion is
supported by the fact that MSHA, the Kubota manufacturer, and the North
American Standard Out-of-Service Criteria manual require that vehicles with
ball joints exhibiting excessive wear must be immediately repaired or removed
from service. Tr. 507, 475. Furthermore, Stanley credibly testified that such a
ball joint, if left unrepaired, would fail and result in compromised steering
and control over the vehicle. Tr. 477. Accordingly, I find that the second Mathies
factor is satisfied.

c.      
The Violation Contributed
to a Hazard That was Reasonably Likely to Result in Injury

Regarding the third Mathies
factor, the Secretary demonstrated that the hazard contributed to by the
violation, i.e., loss of steering of a Kubota within the mine, was reasonably
likely to result in an injury. Schilke and Wilkins testified that Kubotas are slow
to a stop when pressure is removed from the gas pedal. Tr. 499, 692-93. However,
a Kubota driven at speeds up to approximately twenty-one miles an hour on rough
mine roads at an eight degree slope with undiscovered excess wear on the ball
joint, is reasonably likely to contribute to compromised steering and loss of
control of the Kubota, which hazard is reasonably likely to result in injury to
the driver or injury to a miner working nearby. The driver is exposed to injury
due to the excessive wear in the ball joint, which contributes to a compromised
or loss-of-steering-control hazard that would likely result in collision with
an object or rib and injury to the driver. Further, Stanley’s testimony
credibly establishes that miners working along the conveyer belt adjacent to the
travelway were exposed to injury from a collision due to the loss of control of
the Kubota.  In these circumstances, the loss-of-control hazard contributed to
by the violation, was reasonably likely to result in injury during continued operation
of the Kubota with excessive wear in the ball joint. 

d.     
There was a Reasonable
Likelihood That the Injury in Question Will Be of a Reasonably Serious Nature

With regard to the fourth Mathies
factor, I find a reasonable likelihood that any such injury would be of a
reasonably serious nature. The loss-of-control hazard contributed to by the
failure to maintain the Kubota in safe operation condition was reasonably
likely to result in a collision with associated serious or fatal injury to the
Kubota operator or pedestrian miners working nearby. The Kubota is large enough
to seat two people and has a dump bed in the back. See R. Ex. 5. A
collision with a miner, the rib, or other equipment would likely be serious or
fatal. A miner struck by the Kubota and pinned against the vertical supports
within the mine would likely suffer serious injuries. Accordingly, the
Secretary has shown a reasonable likelihood that an injury resulting from the
hazard contributed to by the violation was reasonably likely to be serious or
fatal.

3.     
Respondent’s Negligence was
Appropriately Designated as Moderate

As discussed above, a reasonably prudent operator
engaging in appropriate buddy-checks of steering linkage components should have
been aware of the cited condition. Based on the testimony and briefs, I do not
find considerable mitigating circumstances that would justify reducing the
negligence designation from moderate to low. Respondent’s assertion that the
soft floor of the mine would reduce the impact of malfunctioning steering is
not persuasive. There was no evidence that the floor disturbed the speed or
performance of a Kubota in safe operating condition. Therefore, I discredit
Schilke’s inference that the same floor would hinder a Kubota with compromised steering.
Tr. 569. Further, the assertion that the Kubota’s operator (Wilkins) noticed no
defect in the steering that day does not eliminate the likelihood of the
danger. Rather, the insufficient examination procedure supports at least a
moderate negligence designation. Respondent’s Kubota operator failed to perform
any visual examination the vehicle, much less while another person turned the
wheel. Tr. 699. In these circumstances, I find that the Secretary properly
designated the Respondent’s level of negligence as moderate.

4.     
Civil Penalty for Citation
No. 8439454

Applying the penalty assessment criteria set
forth in section 110(i) of the Mine Act, I find that Respondent mined 7,528,061
tons of bituminous coal in 2012.  The parties stipulated that the originally
proposed penalty of $1,026 will not affect Respondent’s ability to remain in
business. MSHA recognized Respondent’s good-faith compliance in abating the
citation. I have affirmed MSHA’s gravity, negligence, and S&S determinations.
After consideration of the penalty assessment criteria set forth in section
110(i) of the Act, I assess a $1,026 civil penalty against the Respondent for
Citation No. 8439454.

VII. Citation No.
8452203

A. Findings of Fact

1.     
Inspector Horseman’s
Testimony

After observing a missing portion
of an emergency lifeline, MSHA inspector Steven Paul Horseman[29]
issued Citation No. 8452203 for a violation of 30 C.F.R. § 75.380(d)(7)(i),
which requires that lifelines be installed and maintained throughout the entire
length of the escapeway. Tr. 465, 476. Stanley determined that the violation
was S&S and contributed to an inability-to-timely-escape hazard that was
reasonably likely to result in injuries affecting thirty miners as a result of
Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a
penalty of $13,268.

On September 8, 2013, Horseman conducted an EO2 section
103(i) spot inspection, while being accompanied by safety manager Schilke. 30 U.S.C.
§813(i); Tr. 517; P. Ex. 109. On the way toward headgate seven, Horseman lost
sight of the lifeline along the East Mains travel road. Tr. 517. He asked
Schilke to pull over and the two of them located the lifeline one entry over in
the secondary escapeway. Tr. 517, 529. They returned to their vehicle
and followed the lifeline until they found a break in the line. Id. The
lifeline dangled from the ceiling, approximately five feet above the ground. Tr.
517-18. The other end of the line was located approximately 160 feet away. Tr.

518. Horseman measured the gap between the ends of the lifeline, while Schilke
     found replacement line. Id. With the extra line, Horseman and Schilke
     connected the two ends of the lifeline. Id., 525-26.

Horseman issued Citation No. 8452203 for a
§ 75.380(d)(7)(i) violation. Tr. 519. §75.380(d)(7)(i) requires lifelines to be
installed and maintained throughout the entire length of the escapeway. Id.
A lifeline is typically a durable, nylon rope. In the event of an emergency, a
lifeline provides disoriented miners with a tactile method of escape if the
entry fills with smoke. Tr. 520. The lifeline has cones and reflective lights
that direct the miner towards the exit near the slope. Tr. 543-45; 30 C.F.R. §
75.380(d)(7)(iii-v).

Horseman
opined that all lifeline citations are not automatically S&S. Tr. 526.  He
designated the instant violation as S&S because he determined that the
violation contributed to a hazard that was reasonably likely to result in fatal
injuries affecting 30 miners. Tr. 523-24. With respect to likelihood, Horseman testified
that the lifeline would only be used in the event of an emergency. Tr. 523. If
a fire or explosion occurred, Horseman testified that it would not be unusual
for ventilation control devices to fail. Id. With failed ventilation, Horseman testified that miners
would inhale toxic fumes from smoke, or find themselves in a buildup of carbon
monoxide. Id. Even assuming
sufficient time to don self-contained self-rescuers (SCSRs), Horseman noted the
reduced efficacy of these devices should the miners panic or fumble during the emergency.
Tr. 523. He recalled an incident from his own experience as a miner when a
smoke-filled entry limited visibility to the point where “you could not see
your hand in front of your face.” Tr. 521. He testified that in such
conditions, 160 feet of missing lifeline would prevent a miner from locating
the other end of the lifeline and escaping the mine. Id. Additionally, he testified that the miners may not
have been aware that the lifeline changed entries, which left them susceptible
to further disorientation. Tr. 522. Given these conditions, Horseman believed
that fatal injuries were reasonably likely. Tr. 523. With respect to the number
of persons affected, Schilke informed Horseman that three loading crews comprised
of ten miners apiece were working inby the missing lifeline. Tr. 524.

Horseman
designated the Respondent’s negligence as moderate. Id. He made this designation
because he could not determine how long the condition existed. Tr. 524-25. He conceded
that of the 35,000 feet of secondary escapeway, he found only 160 feet of the
lifeline that was missing. Tr. 542-43. He confirmed that Respondent held escape
drills for miners to familiarize themselves with using the escapeways. Tr. 547.
Additionally, Respondent’s vehicles had tethers. Id. A tether allows miners
to stay attached to one another in case a single miner grows disoriented. Tr.
547-49.

2.     
The Testimony from
Respondent’s Witnesses

a.     
Schilke’s Testimony

Schilke confirmed that a portion of
the lifeline was missing in the East Mains #1 travelway. Tr. 570-72. Schilke
did not know how the condition occurred, or for how long it had existed prior
to discovery by Horseman. Tr. 601-02.  Schilke admitted that he traveled that
route daily and had not discovered the condition. Tr. 615. The mine records did
not contain any notations regarding the missing lifeline. Tr. 602. The cited
condition was in an area where tractors were driven all day long, including the
third-shift tractors, which had passed through the area before the inspection. Tr.
602-03. Schilke did not find the disconnected section of the lifeline and
speculated that it could have been dragged away by a passing vehicle. Tr.
612-15. The remaining ends of the lifeline, normally at shoulder height, were
on the ground. Tr. 613-14.

Schilke testified about the location of the missing
lifeline. If one walked towards the exit of the mine, the lifeline primarily followed
the direction of the travel road. Tr. 600. The travel road headed north before
turning west into the #3 entry of the East Mains #1 route. Id. The
lifeline did not turn with the travel road, but continued into the #2 entry
before turning west. Tr. 601. This detour ran parallel to the travel road and past
three crosscuts. Id. The gap in the lifeline occurred within this detour in the

2 entry. Tr. 578, 599-601. The detour turned south down the #29 crosscut to

rejoin the travel road in the #3 entry. Tr. 597-601; see R. Ex. 11. A
miner, who followed the lifeline into the #2 entry, needed to walk through two
crosscuts to find the other end of the line. Tr. 574-75.

Schilke testified that the miners
were aware of the detour because the lifeline had followed that path since the
area was developed. Tr. 610. He conceded, however, that miners would not be
expecting the section of the lifeline to be missing. Tr. 611. Schilke opined that
miners, who encountered a gap in the lifeline, would continue forward following
the flow of air rather than choose to retrace their path to rejoin the travel
road. Tr. 608. However, he admitted that in an emergency, the direction of air
can change, thus preventing miners from using air courses as directional
indicators. Tr. 616. Nonetheless, he opined miners would know which direction
they were walking because the mine graded up as it headed outby. Tr. 616-17.

According to Schilke, if the miner
could not find the other end of the line, he or she would eventually hit
stoppings placed west and north of the detour through the #2 entry.[30]
Tr. 596, 608. Thus, disoriented miners would eventually be forced to turn south
or return east in the direction from which they came. Tr. 596-98, 608. When
choosing between these options, Schilke opined that the miners would not return
east in the direction from where smoke traveled. Tr. 608. The remaining
direction, south, would lead the miners to the travel road. Tr. 596-97, 608.

The self-contained self-rescuers (SCSRs) are equipped
to last from forty-five minutes to an hour. Tr. 617. Schilke recalled that the
nearest self-rescuer caches were approximately 2,500 feet inby the missing
lifeline, and 3,000 feet outby the missing lifeline. Tr. 640-42. As noted, the
height of the mine is generally nine to ten feet. Tr. 619.  Schilke estimated
that it would take approximately an hour to travel about 5,700 feet, although
some miners may move more slowly than others.  Tr. 619, 637, 644. Additionally,
disoriented or lost miners may take longer to reach a cache. Tr. 644-45. According
to Schilke, the distance from the three working sections to the missing
lifeline was 15,000 feet. Tr. 618. The distance between the missing lifeline
and the slope exit of the mine was about another 15,000 feet. Tr. 617-18. On
foot, it would take a miner nearly three hours to reach the slope from the
missing lifeline. Tr. 619, 637.

Schilke opined that directional signals on the
lifeline and Respondent’s safety protocols reduced the danger of the violation.
On either end of the missing lifeline section, Respondent’s lifeline had cones
and reflectors that indicated the direction towards the exit. Tr. 572-73, 614. The
reflectors were visible in the cited area. Tr. 573-74. Reflectors were spaced
every twenty-five feet and were attached to either a cone or the lifeline
itself. Tr. 573.  Schilke recalled that the cones were spaced every 100 feet. Tr.

573. The cones were situated on the lifelines so that a miner’s hand would
     slide smoothly over the tip of the cone towards the base as the miner traveled
     towards the exit. Tr. 573. If a miner traveled in the wrong direction, the miner’s
     hand would stop against the base of the cone. Tr. 573.

Additionally, Schilke testified that escaping miners
would not rely solely on lifelines during an emergency situation. Tr. 609. He
testified that in the event of an emergency, the ideal method for escape was by
vehicle. Tr. 574, 604-05, 609. He further testified that an escaping vehicle
would continue along the main travelway, rather than detour into the adjacent
entry to follow the lifeline. Tr. 574. Depending on the level of smoke, however,
Schilke was uncertain whether the vehicle could drive down the secondary
escapeway. Tr. 611-12. Schilke opined that a pedestrian miner would exit the
mine along the main travelway, rather than follow the lifeline. Tr. 574-576. He
conceded, however, that a miner might become disoriented, panic, and become
lost in an emergency. Tr. 611, 644-45.

Schilke confirmed that Respondent held escapeway
drills every ninety days and instructed miners to use tethers to keep together
during a mine evacuation. Tr. 603-605, 609, 611. Additionally, he testified
that signs labelling the crosscut numbers would indicate a miner’s location. Tr.
573-74. Schilke maintained that these precautions, combined with the miner’s
knowledge of the mine’s topography and air flow, were sufficient for miners to
find their way out of the mine in an emergency situation. Tr. 608-10.

B. Analysis and Disposition

1.     
The Violation of §
75.380(d)(7)(i)

Section 75.380(d)(7)(i) provides that a
continuous directional lifeline must be installed and maintained throughout the
entire length of each escapeway. 30 C.F.R. § 75.380(d)(7)(i). Neither side
contests that a portion of the lifeline was missing. Tr. 572; see R. Ex.
14 (missing lifeline denoted in red). The missing portion of the line was
approximately 160 feet. Tr. 518. A A missing portion or gap in the lifeline makes
it non-continuous under the plain meaning of the standard and creates a
violation of § 75.380(d)(7)(i).

Respondent argues that the violation was not
S&S because the missing portion of the lifeline was relatively small
compared to the full length of the line, and because additional safety measures
were adequate to ensure the safe evacuation of the miners.

2.     
The Violation was
Significant and Substantial

a.     
There was a Violation of a
Mandatory Safety Standard

For the reason explained above, I
find the underlying violation of mandatory safety standard § 75.380(d)(7)(i).  

b.     
The Violation Contributed
to a Discrete Measure of Danger to Safety

With regard to the second Mathies factor,
the violation created a discrete safety hazard or measure of danger to safety. The
Commission has found that an accurate description of the hazard contributed to
by an inaccessible lifeline is “the danger of not being able to access or use
the lifeline in the event of an emergency where visibility is reduced and
miners must rely upon the tangible nature of the lifeline to quickly and safely
escape the mine.” Black Beauty Coal Co., 36 FMSHRC 1121, 1124 (May
2014). This description supports the Commission’s earlier understanding of the
hazard as “miners not escaping quickly in an emergency with attendant increased
risk of injuries due to a delay in escape.” Cumberland, 33 FMSHRC at
2346, aff’d sub nom., Cumberland Coal Res., LP v. FMSHRC, 717
F.3d 1020 (D.C. Cir. 2013). I find that a 160-foot gap in the lifeline is a significant
and substantial hindrance that contributes to the hazard of not being able to
use the lifeline to escape the mine in an emergency situation.

Respondent argues that an S&S
designation is inappropriate because 160 feet of missing lifeline is a small
percentage of the length of the entire lifeline. R. Br. 20-21. The percentage
of uninterrupted line is essentially immaterial to the impact that a 160-foot
break in the line would have on escaping miners. In Black Beauty, the
Commission found that 110 feet of inaccessible lifeline was reasonably likely
to contribute to an inability-to-timely-escape hazard that would result in
injury. Black Beauty, 36 FMSHRC at 1124-25. Given the greater length of
missing lifeline in the present case, I find that 160 feet of missing lifeline supports
my S&S finding for this violation.

Respondent also argues that its miners would use
quicker alternatives to escape, and that their knowledge of the primary
escapeway would keep them on the quickest path towards the exit, allowing them
to disregard the lifeline entirely. I reject this argument. Although the
Commission has not yet defined the weight that must be given to the presence of
additional safety precautions, the Commission discounts the argument that
additional safety measures prevent an S&S finding. See Brody Mining,
37 FMSHRC at 1691 (stating that evidence of redundant safety measures has been
consistently rejected as irrelevant); Black Beauty, 36 FMSHRC at 1125
n.5 (stating that additional safety measures do not prevent a finding of
S&S); Cumberland, 33 FMSHRC at 2369 (stating that allowing redundant
safety measures to provide a defense to a finding of S&S would defeat the
purpose of any safety protection, and citing Buck Creek, 52 F.32 at 136).
Thus, alternative safety protocols do not undercut the significant and
substantial contribution that violations of mandatory standards have toward
discrete safety hazards.

In the present case, I examine the
impact of a missing lifeline on a miner that must rely upon said lifeline to
quickly and safely exit the mine in an emergency situation. In short, I find
that the hazard contributed to by the violation was the prevention of a quick
escape from the mine by miners who were entitled to rely on a continuous
lifeline when escaping the mine during an emergency. Accordingly, the second Mathies
factor is satisfied.

c.      
The Violation Contributed
to a Hazard That was Reasonably Likely to Result in Injury

I find that the violation contributed
to the hazard that miners would become lost, disoriented, or otherwise unable
to quickly escape from the mine because of a compromised lifeline, and that
such hazard was reasonably likely to result in injury. The Commission requires its
judges to examine the S&S factors for lifeline violations within the
context of emergency conditions. Cumberland, 33 FMSHRC at 2357, aff’d
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). The
Commission has discussed different hazards that are reasonably likely to result
in an injury because of a lifeline violation in an emergency situation. Black
Beauty, 36 FMSHRC at 1125 (inaccessible lifelines contribute to injuries
that are reasonably likely to result from hazards such as tripping or stumbling,
an interruption of ventilation, miner panic and disorientation during an
emergency, and excessive smoke filling a corridor as a result of an a fire
inby). In the present case, should miners follow the lifeline into the secondary
escapeway, and should the secondary escapeway fill with smoke, visibility may
be completely compromised. Because the gap in the lifeline occurs within the
secondary escapeway, miners will be unable to use the lifeline to navigate out
of the secondary escapeway in conditions of reduced visibility, re-enter the
primary escapeway and continue exiting the mine via the primary escapeway. Tr.
522; R. Ex. 11. Inspector Horseman testified that he personally experienced a
situation where smoke within the mine was so thick that he could not see his hand
in front of his face. Tr. 521. With such reduced visibility, locating a lifeline
160 feet away is a staggering and time-intensive obstacle to overcome. A miner
with little to no visibility and no lifeline is likely to be disoriented or
lost.

The Commission has discussed
different ways a lifeline violation in an emergency situation was reasonably
likely to result in injury. Black Beauty, 36 FMSHRC at 1125
(inaccessible lifelines contribute to injuries that may result from hazards
such as tripping or stumbling, an interruption of ventilation, miner panic and
disorientation during an emergency, and excessive smoke filling a corridor as a
result of an a fire inby). Should ventilation fail in an emergency, miners may
breathe toxic air or a buildup of carbon monoxide. Tr. 523. The miners carry portable
ventilation self-rescuers that only last for forty-five minutes to an hour. Tr.

617. This time is reduced if the miners fumble or panic in an emergency. Tr.
618. In an emergency, time spent lost or disoriented due to a missing lifeline
     reduces precious air supply, may prevent miners from reaching the next
     self-rescuer supply cache, or may thwart them from escaping the mine entirely.

Respondent put on evidence that it
has adequate safety protocols and training to ensure that miners will not panic
in an emergency. Tr. 608-10. However, the Commission has reasoned that even
experienced miners “panic and become disoriented in an emergency.” Black
Beauty, 36 FMSHRC at 1124. I find it likely that panic will exacerbate the
consequences of reduced visibility or limited ventilation.

I conclude that a miner who becomes lost,
disoriented, or delayed in locating a missing portion of the lifeline in order
to escape during a mine emergency is reasonably likely to suffer injury from
smoke inhalation, carbon monoxide inhalation, or entrapment during the emergency.
Accordingly, the third Mathies factor is satisfied.      

d.     
There was a Reasonable
Likelihood That the Injury in Question Will Be of a Reasonably Serious Nature

With regard to the fourth Mathies factor,
any such injury from a delayed escape from the mine is reasonably likely to be
of a serious nature. Black Beauty, 36 FMSHRC at 1125 (“The hazard of
delayed or no escape at all due to an inaccessible lifeline in an emergency is
reasonably likely to result in serious or fatal injuries”); Cumberland,
717 F.3d at 1029 (“[T]he lifeline violations at issue here would delay miners
from escaping from an emergency and that such a delay would be reasonably
likely to cause serious injuries or death”). The hazard of a delayed escape is supported
by inspector Horseman’s testimony. He reasonably determined that limited air
supply from the self-rescuers in a corridor filled with smoke and carbon
monoxide, miner panic and disorientation during an emergency, and reduced visibility
are reasonably likely to inhibit a timely escape from the mine. Tr. 523-24. I
credit his testimony that the prolonged inhalation of smoke and carbon monoxide
during such an escape from the mine is reasonably likely to be of a reasonably
serious nature or fatal. Id. Accordingly, the Secretary has demonstrated
a reasonable likelihood that any injury resulting from the hazard contributed
by the violation would be serious or fatal.

3.     
Respondent’s Negligence is Raised
from Moderate to High

I find that Respondent’s negligence should be
raised from moderate to high. Respondent knew or should have known of the
missing lifeline and there are no mitigating circumstances. Initially, I note that
escapeways must follow “the most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners.” 30 C.F.R. § 75.380(d)(5).
The lifeline followed a circuitous route used by drivers to avoid a belt drive
that was once installed in the main travelway. Tr. 610. However, at the time of
the citation, the belt was no longer within the travelway. Tr. 610.  Respondent’s
failure to move the line to the primary travelway indicates that Respondent
paid little to no attention to the path of the line after the belt drive was
removed. Furthermore, Respondent failed to discover the condition of the
lifeline for an undetermined length of time.

The violation before me presents more than a
lifeline that was merely in poor condition. A portion of the primary escapeway
did not have a lifeline because the lifeline took a detour into the secondary
escapeway that was costly in both time and distance for a miner escaping on
foot. Within that detour, 160 feet of lifeline was entirely absent. Schilke
testified that he traveled the route daily and did not notice the condition. Tr.

615. Respondent’s inability to definitively explain why the line was missing or
     for how long the violation existed is not a mitigating circumstance, but
     instead, is further evidence of a cavalier lack of care towards a condition
     that is essential to the survival of miners in an emergency situation. Further,
     Respondent’s ignorance raises the concern that a similar section of the
     lifeline could go missing again without discovery. Finally, Respondent has not
     justified its failure to maintain an intact lifeline -- a failure that
     jeopardized the lives of thirty miners. I find that the Respondent should have
     known of the violative condition and corrected it immediately as a top priority.
     Accordingly, Respondent’s negligence is raised from moderate to high.

4.     
Civil Penalty

Applying the penalty assessment
criteria set forth in section 110(i) of the Mine Act, I find that Respondent mined
7,528,061 tons of bituminous coal in 2012. The Secretary originally proposed a
penalty of $13,268 and the parties have stipulated that the total proposed penalty
from all seven citations equaling $39,500 will not affect Respondent’s ability
to remain in business. MSHA recognized Respondent’s good-faith compliance in abating
the citation. I have affirmed MSHA’s S&S determination. I have modified
MSHA’s negligence determination from moderate to high for the reasons stated
above. After consideration of the penalty assessment criteria set forth in
section 110(i) of the Act, I assess a $25,000 civil penalty against the
Respondent for Citation No. 8452203.  Respondent’s new total penalty from the
combined citations is now $32,636. Given that this is lower than the total amount
which Respondent stipulated will not affect its ability to remain in business,
I find that this increase in penalty is appropriate and justified for the
gravity and severity of the violation and would not affect Respondent’s ability
to remain in business.  

VIII. ORDER

WHEREFORE, the joint motion
for settlement presented at hearing is GRANTED.

It is ORDERED Citation No.
8445731 be MODIFIED to reduce the level of negligence from “moderate” to
“low.”

It is ORDERED Citation No.
8445758 be MODIFIED to reduce the level of from “moderate” to low,” and

It is ORDERED Citation No.
8451650 be MODIFIED to reduce the number of persons affected from
“twelve” to “six.”

It is further ORDERED that
Citation No. 8451651 be MODIFIED to reduce the level of negligence from
high to moderate.

It is ORDERED that Citation
No. 8439446 be AFFIRMED, as written.

It is ORDERED that Citation
No. 8432319 be AFFIRMED, as written.

It is ORDERED that Citation
No. 8439454 is AFFIRMED, as written.

It is ORDERED that Citation
No. 8452203 be MODIFIED to raise the level of negligence from moderate
to high.

It is further ORDERED that
the operator pay a total penalty of $43,280[31]
within thirty days of this decision.[32]

/s/ Thomas P.
McCarthy

Thomas P. McCarthy

Administrative
Law Judge

Distribution:

Marty J. Gayer, Conference & Litigation Representative,
U.S. Department of Labor, MSHA, 2300 Willow St, Suite 200, Vincennes, IN 47591

Christopher D. Pence, Esq., Eric L. Silkwood, Esq., Hardy Pence
PLLC, 500 Lee St. East, Suite 701, Charleston, WV 25301

Jason Grover, Esq., Office of the Solicitor, U.S. Dept. Of
Labor, 201 12th Street South, Suite
500, Arlington,
VA 22202-5450

Daniel McIntyre, Esq., U.S. Dept. of Labor, Office of the
Solicitor, Cesar E. Chavez Memorial
Building, 1244
Speer Blvd, Suite 515, Denver, CO 80204

Thomas J. Motzny, Esq., U.S. Dept. Of Labor, Office of the
Solicitor, Castner Knott Building

618 Church Street, Suite 230, Nashville, TN 37219-2440

[1] ALJ Exhibits (ALJ Exs.) 1-8, Petitioner Exhibits (P.
Exs.) 100-115, Respondent Exhibits (R. Exs.)1-8 and 11, and Joint Exhibit (J.
Ex.) 1 were received into evidence. Tr. 10, 19-20, 304. R. Exs. 9 and 10 were
not offered into evidence. Tr. 757.

[2]
Both citations alleged that Respondent violated Section 75.821(a) because chip
alerts were not working on longwall equipment. A mule train is comprised of
several pieces of equipment that distribute power to the longwall. Tr. 53. Power
enters the unit through a disconnect box, which can be switched on or off, and
then travels to the power centers within the mule train. Tr. 55.  Chirp alerts
indicate that the equipment is energized by making a chirping noise and
emitting a flashing light. Tr. 32-33. On the cited disconnect box in Citation
No. 8443200, the chirp alert failed to make the chirping sound. Tr. 37. On the
cited power center in Citation 8443901, the chirp alert failed to make the
chirping sound and the flashing light failed. Id. MSHA inspector John
Butcher testified that without notification from the chirp alerts that a piece
of equipment is energized, the miners are at risk of fatal injuries from
electrocution. Tr. 65-66, 74-75. Essentially, the Secretary argues that since
the equipment was not being maintained, there was a violation of Section
75.821(a). Section 75.821(a) requires that every seven days, a person qualified
to perform electrical work must test and examine longwall equipment to
determine that such equipment is being properly maintained. 30 U.S.C. § 75.821(a).

The Secretary failed to establish
that Respondent did not assign a qualified person to test and examine the chirp
alerts within the last seven days to ensure that the equipment was being properly
maintained. Inspector Butcher conceded on cross examination that as far as he
knew, the required testing was actually performed and that he was not alleging
that the mine was not conducting the appropriate testing and examination, but
merely alleging that the chip alerts on the inspected equipment were not
working properly. Tr. 109.

Q:        …As
far as you know, the test that was required every seven days was actually     performed,
correct?

A:        As far as I know, yes.

Q:        Okay. And that’s not your allegation,
is it, that the test—

A:        No.

Q:        —wasn’t performed?

A:        No.

Q:        Okay. So your—your allegation is — is
not that the mine wasn’t conducting

examinations? Your allegation is —
is, When I inspected this equipment, the chirp alert wasn’t working, right?

A:        Yes.

Q:        So
there’s no dispute in your mind that the tests that are required by [Section]        75.821(a)
were actually performed at the times required, correct?

A:        Correct.

Tr. 109. In these circumstances, I found that Respondent
complied with the requirements of § 75.821(a), and granted Respondent’s motion
for directed verdict. Tr. 242-62.

[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] See also id. § 814(e), the Mine Act’s
pattern-of-violations provision, which is the only other provision that
mentions S&S, and which defines the term the same way as § 814(d)(1).

[5] The Commission has consistently reiterated that the
inspector’s judgment is an important element of the S&S determination. However,
the concept has generally been raised in the context of deferring to the
inspector’s opinion that a violation was S&S, rather than in the context of
examining whether the inspector exercised independent judgment in forming this
opinion as opposed to merely following the “mechanical approach” advanced by
the Secretary and rejected by the Commission in National Gypsum, 3
FMSHRC at 825. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951,
1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555, 563 n.6 (Aug.
2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

[6] It is not completely clear whether redundant safety measures
are precluded from consideration such that it is error to take them into
account, which could make it difficult for judges at the trial level to
discharge their duty of considering all the particular facts surrounding the
violation, or whether arguments that rely on redundant safety measures are
simply disfavored as a defense to S&S. Compare Brody Mining, 37
FMSHRC at 1691 (stating that evidence regarding redundant safety measures has
been “consistently rejected as irrelevant”) with Black Beauty, 36 FMSHRC
1121, 1125 n.5 (May 2014) (stating only that such measures “do not prevent a
finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck
Creek has safety measures in place to deal with a fire does not mean that fires
do not pose a serious safety risk to miners.”).

[7] The Secretary’s citation/order form contains boxes
for inspectors to check the likelihood of injury and the expected severity of
injury immediately above the line where they designate the violation S&S or
non-S&S. Inspectors are trained not to designate a violation as S&S,
unless item 10.A on the 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).

[8] It is debatable to what extent Austin Power and
Buck Creek truly stand for the proposition the Fourth Circuit seems to
be embracing, which is that the actual likelihood of injury is irrelevant,
except to the extent necessary to establish a “discrete” hazard at the second Mathies
prong. In Austin Power, the Fifth Circuit upheld an S&S finding
for a fall protection violation, reasoning that “[a] danger of falling is a
necessary element of this violation, so by the very nature of a violation there
was a discrete safety hazard.” 861 F.2d at 103. However, the hazard had
actually occurred and had resulted in a fatality, which may have influenced the
Court’s failure to require additional evidence of likelihood at the third Mathies
prong. 861 F.2d at 100.  In Buck Creek, the Seventh Circuit did not
expressly discuss the proper application of the Mathies test, but simply
rejected the mine operator’s argument that the ALJ had not put enough emphasis
on the third and fourth Mathies factors when evaluating S&S for an
accumulations violation. 52 F.3d at 135. The ALJ had made a finding at the
second Mathies prong (rather than the third) that there existed a
confluence of factors, including fuel sources and ignition sources, that could
trigger a fire. Id. By contrast, in Knox Creek, the Fourth
Circuit did not require a “confluence of factors” analysis or a showing that an
ignition source existed at any prong of the Mathies test.

[9] But see Cumberland Coal Res., LP v. FMSHRC,
717 F.3d 1020, 1027 (D.C. Cir. 2013) (expressly declining to address validity
of Mathies test).

[10] At hearing, Lampley had been a certified mine inspector
with MSHA for seven years. He received a degree in Applied Science from
Southern Illinois University (SIU). Upon graduation, Lampley worked in the
automotive field and taught classes at SIU in automotive base, and electrical
theory and operation. Prior to his employment at MSHA, Lampley worked at
American Coal performing general mining tasks and maintenance. Tr. 140-41.

[11] MSHA ceased its regular EO1 quarterly inspections and
normal 103(i) spot inspections during the 2014 government shutdown. Tr. 142. Nonetheless,
Lampley still conducted E16 spot inspections of the working areas of the mine. Id.

[12] Schilke was a certified mine manager, examiner,
instructor, and mine rescuer. 299-300. He worked for Respondent since 2010 in a
variety of roles. Tr. 299. He had a bachelor’s degree in mining engineering
from SIU. Tr. 299-300.

[13] There is some confusion about the correct crosscut numbers.
The crosscut referenced in the text above as no. 109 is referred to in
Lampley’s testimony as no. 108 and in Schilke’s testimony as no. 109. Similarly
the crosscut referred to herein as no. 110 is referred to in Lampley’s
testimony as no. 109 and in Schilke’s testimony as no. 110. In the interest of
clarity, I use  Schilke’s numbers as he was more certain about this issue at
hearing.

[14] Electric face equipment must be permissible within
150 feet from pillar workings or longwall faces or in return air outby the last
open crosscut. 30 C.F.R. §§75.1002 and 75.507-1.

[15] Crum had 13-14 years of mining experience and had worked
at several companies in a variety of roles. Tr. 263-64. Crum was a certified
mine electrician, with face and examiner papers. Tr. 264. He was a member of
mine management and a stipulated agent of Respondent. Tr. 272.

[16] Phipps was a licensed, professional engineer and was
a certified mine examiner, manager, and fire boss. Tr. 323. His duties included
running the longwall on a day-to-day basis, planning production, and dealing
with MSHA inspectors. Tr. 323-324.

[17] A “gob” is an area of the mine where coal has been
removed and the roof and strata have been allowed to cave in. Tr. 177.

[18] Lampley did not personally investigate the explosion
and could not testify whether the majority of the air samples taken at Upper
Big Branch contained methane rather than natural gas, or whether the gas
originated from the face, or from another location, such as a crack in the
floor. Tr. 210-11.

[19] At the time of the hearing, Stanley had been a coal
mine inspector for MSHA for four years and eight months. Tr. 461. Starting in
December 1990, Stanley worked in potash mining for sixteen to seventeen years. Id.
Thereafter, he worked in coal mining for approximately eight years. Id. Stanley
graduated from high school in 1980, worked in the military for four years, and
completed his training at the National Mine Safety and Health Academy. Tr.
461-62.

[20] Robertson had thirty-two years of experience in
mining. For six years before commencement of employment with Mach Mining,
Robertson was employed at Foresight Energy, which owns Mach Mining. Tr. 706. Before
that, he worked for Massey Energy for twenty-six years, and held positions in
engineering, safety, and operations. Id. He supervised multiple mine
sites and was president of one of Massey Energy’s large resource groups. Tr.
706-07. He was certified in Ohio, New Mexico, and Illinois as a foreman or mine
manager. Tr. 707. Robertson was a MSHA instructor with certifications in dust
and noise. Tr. 707. He has a Bachelor’s Degree from Marshall University in West
Virginia. Id. Robertson served in the Army Special Forces. Id.

[21] Inspector Bretzman was employed by MSHA as a special
investigator for two and a half years, and as an electrical specialist for five
years. Tr. 394. Bretzman worked in mining since 1977. Tr. 395. He held
positions as a belt maintenance worker, a shieldman, a mechanic, and a
maintenance foreman. Id. Additionally, Bretzman worked for a short time
in the electrical department for Joy Technologies, a mine manufacturing
company. Id. Bretzman holds an Associate’s degree and received his
Bachelor’s degree from Southern Illinois University in work force education and
training. Tr. 396. He was a certified mine examiner, who possessed a federal
electrical card. Tr. 398.

[22] Key had been employed by Mach Mining since January
2007. Tr. 647. At the time of the citation, Key was certified as a mine
examiner and mine manager. Tr. 648. Prior to that, Key worked as a shearer
operator on the longwall at American Coal’s Galatia Mine for 20 months. Tr.
646-48. Key had twenty years of mining experience. Tr. 647.

[23] Both Robertson and Bretzman referred to a prior
similar citation. Tr. 728-30, 749-50. Bretzman testified that the alarm light in the prior
instance was on a stage loader, and Robertson testified that the citation was
for a monorail alarm light. Id. The particular equipment is not
determinative in the present case.

[24] Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880 (June 1996).

[25] Wilkins was employed with Respondent for seven and a
half years. Tr. 683. Apart from his position as an examiner, Wilkins worked as
an outby laborer and foreman. Id. Prior to his employment with
Respondent, Wilkins worked at three separate mines: Willow Lake Mine, Eagle
Valley Mine, and Sahara Mine. Tr. 683-84. Wilkins was a certified examiner with
an electrical card. Tr. 685.

[26] When the wheel
turned, suspension rose and descended, pivoting the ball joint that was threaded
in the tie rod. Tr. 701-03. The ball joint had a nut and cotter pin that were
intact. Id.

[27] This manual is relied on and cited by the United
States Department of Transportation. 49 C.F.R. Pt. 385.4(b)(1)(2013); 79 F.R.
27766, (May 15, 2014). Under Commission precedent, judicial notice can be taken
of the existence or truth of a fact or other extra-record information that is
not the subject of testimony, but is commonly known, or can safely be assumed,
to be true. Union Oil, 11 FMSHRC 289, 300 n.8 (Mar. 1989).

[28]
Although Respondent was not cited for an
inadequate pre-operational inspection, I have determined in previous cases that
a proper pre-operational inspection of a ball joint requires one person
monitoring the steering linkage while another person moves the steering wheel. Extra
Energy, 36 FMSHRC 2733, 2743 (Oct. 2014)(ALJ).  Wilkins failed to conduct a
visual inspection of the ball joint while another person turned the wheel, or
vice versa.  

[29] At the time of hearing, inspector Horseman had been
employed with MSHA for one year and eleven months. Tr. 515. Apart from a four-year
stint with a phone company, Horseman had worked in mining since 1991. Tr. 516. He
has experience in longwall and continuous mining and has held various positions,
including equipment operator, examiner, IT specialist, electrician, and mine supervisor.
Id.

[30] There was a stopping in the #2 entry inby the # 29
crosscut, which prevented miners from walking further westward. Tr. 595-96. There
were additional stoppings that blocked access to the crosscuts and entries to
the north of the #2 entry. One of the stoppings in the crosscuts north of the

2 entry had a man door. Tr. 596.  A man door allow miners to cross through a

stopping. Id.  During normal production, man doors are closed. Tr.
595-96.

[31] As noted herein, I assess a penalty of $5,081 for
Citation No. 5481651, $1,412 for Citation No. 8439446, $117 for Citation No.
8432319, $1,026 for Citation No. 8439454, and $25,000 for Citation No. 8452203.

[32] 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.