Secretary of Labor v. The Ohio Valley Coal Company

Plain-English summary

An MSHA inspector found extensive black coal dust and fines along the South Mains belt at Ohio Valley Coal's Powhatan No. 6 Mine, including compacted material around the turning tail roller. MSHA issued one order for prohibited accumulations and another because the on-shift examiner had not recorded the condition. Judge John Kent Lewis found that the accumulations had existed long enough to be obvious and that the operator had failed to report and correct a serious fire and smoke hazard. He affirmed both orders as significant and substantial, highly negligent, and caused by unwarrantable failure. Ohio Valley Coal was ordered to pay penalties of $8,421 and $6,115, totaling $14,536.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.363(b)
• Outcome: Both section 104(d)(2) orders were affirmed with total penalties of $14,536.
• Key point: Extensive combustible accumulations and an examiner's failure to record them supported high-negligence and unwarrantable-failure findings.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE
ROAD

PITTSBURGH, PA
15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

THE
OHIO VALLEY COAL COMPANY,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2015-251

A.C.
No. 33-01159-371484

Docket
No. LAKE 2015-309

A.C.
No. 33-01159-373906

Mine:
Powhatan No. 6 Mine

DECISION AND
ORDER

Appearances:               Helga
Spencer, Esq. and Christina Haviland, U.S. Department of Labor, Office of the
Solicitor, Philadelphia, PA, for the Secretary

Jason W. Hardin,
Esq. and Jason Steiert, Fabian VanCott, Salt Lake City, UT, for the Respondent

Before:                                    Judge
Lewis

I.          Statement
of the Case

These cases are before me upon two
petitions for assessment of civil penalties under § 104(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d).    Following an inspection
of Respondent’s mine, an MSHA inspector issued Order No. 8061123 for coal dust
accumulations along the South Mains belt line in violation of 30 C.F.R. §
75.400.    Additionally, the inspector issued Order No. 8061124 to the
Respondent for failing to record the accumulations in its examination books in
violation of 30 C.F.R. § 75.363(b).    A hearing was held in Pittsburgh, PA on
December 16, 2015.    At hearing the Respondent contested the high negligence
and unwarrantable failure designations for both violations.    Respondent also argued
Order No. 8061124 should be vacated because the cited accumulations did not
exist at the time of the on-shift examinations.   

This Court now issues findings of fact
and conclusions of law affirming Order No. 8061124 and affirming the high
negligence and unwarrantable failure designations for both Order No. 8061123
and Order No. 8061124.    This Court also affirms the penalties totaling $14,536.00
for those two orders.

II.        Procedural History

On September 9,
2014, two 104(d)(2) orders were issued at Ohio Valley Coal Company (“Respondent”
or “Ohio Valley Coal”), Powhatan No. 6 Mine.    Respondent contested these orders
on February 18, 2015.    On November 23, 2015, the Secretary filed a motion to
preclude expert testimony in response to Respondent’s Prehearing Report of
November 13, 2015.    On December 1, 2015, the Respondent filed a motion in
opposition, and the Secretary filed a reply on December 2, 2015.    This Court denied
the Secretary’s request for exclusion of Respondent’s proposed testimony and
exhibits, and withheld determination as to the admissibility or weight to be
given to the Respondent’s proposed witness testimony and exhibits. On December
16, 2015, a hearing was held in Pittsburgh, PA.    After the hearing, the
parties submitted Post Hearing Briefs and Reply Briefs, which have been fully
considered.

III.       Stipulations[1]

1.         Respondent
was an “operator” as defined in §3(d) of the Federal Mine Safety and Health Act,
30 U.S.C. § 802(d), at the Mine at which the Orders in this matter were issued.

2.         The operations
of Respondent at the Mine at which the Orders in this matter were issued are
subject to the jurisdiction of the Act.

3.         The
above-captioned proceeding is subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission and its assigned Administrative Law Judges
pursuant to Sections 105 and 113 of the Act.

4.         The
Orders in the matter were properly issued and served by a duly authorized agent
of the Secretary of Labor upon an agent of the Respondent at the date, time,
and place stated therein as required by the Act.

5.         Exhibit
“A” to the complaint accurately sets forth the Respondent’s Mine size points, Controller
size points, VPID points, and RPID points used by the Secretary in setting the
penalty for Orders 8061123 and 8061124.

6.         An
E01 inspection of the Powhatan No. 6 Mine was conducted by MSHA on or about
September 9, 2014.

7.         Representatives
from MSHA and the Respondent were present at the underground site visit on
September 9, 2014.

8.         On
September 9, 2014, MSHA Inspector Terrence A. Saho (AR No. 25193) issued Orders
8061123 and 8061124 during an inspection of the Mine.

9.         Respondent
does not contest that the conditions cited in Orders 8061123 and 8061124 could
be expected to cause injuries resulting in lost workdays affecting two miners.

10.       The imposition
of the proposed penalties will not affect Respondent’s ability to remain in
business.

11.       The
exhibits offered by the Parties are stipulated to be authentic, but no
stipulation is made as to their relevance or the truth of the matters asserted
therein.

12.       The R-17
Assessed Violation History Report is an authentic copy and may be admitted as a
business record of the Mine Safety and Health Administration.

13.       Pursuant
to Section 103(i) of the Mine Act, Powhatan No. 6 Mine is subject to 5 day spot
inspections for methane as this liberates more than 1 million cubic feet of
methane during a 24 hour period.

IV.       Factual Background

On September 9,
2014, Inspector Terrance Saho arrived at Powhatan No. 6 mine at 7:30 a.m.[2]    (Tr. 28).   
He went to Powhatan No. 6 mine for an E0-1 inspection.[3]    (Tr. 27).   
Prior to conducting his inspection, Inspector Saho reviewed the exam books for
the mine.    (Tr. 28).    After reviewing such, he began his inspection of the
South Mains belt and South Mains return.    (Tr. 29).    Inspector Saho
traveled with Bill Hagedorn, Inspector Saho’s supervisor, Jeremi Hossman, a
safety representative, and Nathan Carlton, the union representative.    (Tr. 29).

During the
inspection, Inspector Saho entered the belt line at one crosscut and proceeded inby
along the South Mains belt, between crosscuts 35 and 36.    (Tr. 30-31).    There
was a wall isolating two separate parts of the belt line.    (Tr. 30-31).    When
Inspector Saho arrived at the wall, he went through the man door, on the
walking side of the belt, from a fairly well rock dusted entry into an area
with black coal dust covering the roof ribs, floor, and belt.    (Tr. 32).    He
continued walking down to the end of the belt line where he found the tail
roller was turning in compacted coal and coal fines.    (Tr. 32-33).    At
approximately 10:00 a.m., Inspector Saho issued Order No. 8061123 for
accumulations between crosscuts 36 and 39 in violation of § 75.400. (GX-1).     He
measured the accumulations at the tail roller; the accumulations were six feet
across and two feet in depth.    (Tr. 33).    The accumulations were black,
which showed that there was no mixing of rock dust.    (Tr. 36-37).    Inspector
Saho listed float coal and loose coal accumulations for the violation.    (Tr.
37).    There was also no evidence that anyone had cleaned up the site of the
accumulations when the orders had been issued.    (Tr. 38). The operator subsequently
shut the belt down to abate the condition.    (Tr. 34).

Inspector Saho
proceeded around the tight side of the belt to the return regulator.    (Tr. 34).   
There he saw float dust being sucked through the return regulator and sent down
the return.    (Tr. 34).    This indicated to him that the float dust had been
in this area for an extended period of time and that no one had been in the area
past the wall to maintain the coal dust accumulations.    (Tr. 34).    He also believed
that no one had been in this area that day because there were considerable coal
dust accumulations and no sign of rock dusting.    (Tr. 34).   

The gravity of
the violation was assessed as reasonably likely and Significant and Substantial
(“S&S”) because the float coal dust and accumulations with the tail roller
turning in the coal accumulations could have created a “fire triangle.”[4]    (Tr. 51-52).   
 Inspector Saho testified that coal was impacted by the roller, which created
friction that could have caused a fire.    (Tr. 52).    The coal was damp near
the belt, and there was no other ignitable source other than accumulations
around the tail roller.    (Tr. 72, 76-77).

Inspector Saho
determined that the injury or illness expected for the violation would be lost
workdays or restricted duty because a potential fire on the belt could have led
to smoke inhalation.    (Tr. 52).    He determined that two persons would be
affected because there would have been two examiners present at any given time
on a shift and a belt cleaner could have been in the area.    (Tr. 52-53).    Inspector
Saho further found the violation was the result of an unwarrantable failure to
comply with a mandatory health and safety standard.    (Tr. 53).

Inspector Saho
testified that the 2 South Section and West Mains Section had dumped coal directly
on the South Mains belt at the 25 crosscut.    (Tr.    50).    The 1 South
Section was not in production on September 9, 2014.    (Tr. 50).    Thus, there
was no coal dumping on the South Mains belt that day near crosscuts 36-39.    (Tr.
56).    Therefore, Inspector Saho testified that the coal accumulations had to
be there for longer than the on-shift exams at least.    (Tr. 56).   

Inspector Saho
also issued Order No 8061124 for the examiner failing to report the
accumulation conditions in the examination books, in violation of § 75.363(b).   
(Tr. 58).    Inspector Saho reviewed the examination books and did not find any
note of the accumulations from crosscuts 36-39.    (Tr. 60).    The exams were
conducted between 2:00 and 2:28 a.m. and 6:00 and 6:26 a.m.    (Tr. 60-61). The
order was issued because the examiner failed to record all of the nine
mandatory standard violations he observed.    (Tr. 62).    This order was
designated S&S and indicated that two persons would be affected: the
examiner and belt cleaner.    (Tr. 61-62).

After the orders
were issued, Jeremi Hossman, the safety representative, instructed miners to
clean and rock dust crosscuts 36-39.    (Tr. 51).    The condition was abated
in approximately two hours.    (Tr. 51; RX 1).

Matthew
Skolnick, the section foreman for Ohio Valley Coal, conducted the on-shift examination
of the South Mains belt on September 9, 2014, before the midnight shift.[5]    (Tr.
150-51).    He testified that he had inspected the whole belt line all the way
to the end and had only noted a bad roller during the exam.    (Tr. 152).    He
further testified that he did not see any accumulations along the belt.    (Tr.
154).

On the evening
of September 9, 2014, Skolnick found out about the orders involving
accumulations.    (Tr. 157).    The following morning, at the end of the
midnight shift, Skolnick was told a tear was found in the South Mains belt.    (Tr.
157).

Skolnick
reviewed the Production and Labor reports for September 9, 2014, to determine
which sections had been loaded onto the South Mains belt that day. (Tr. 162). Skolnick
testified that during the midnight shift, the 2 South Section and West Mains
Section were mined, and the coal was dumped onto the belt at crosscut 25.    (Tr.
162).    9,000 tons were mined from the 2 South Section, and 34 feet were mined
from the West Mains Section.    (Tr. 163).    The first car from the 2 South
Section was dumped on the South Mains belt at 1:50 a.m., and the last car was
dumped at 8:05 a.m.    (Tr. 164-65).    The West Mains Section was dumped on
the belt between 3:00 a.m. and 8:30 a.m.    (Tr. 168).    Skolnick testified
that during this period, before the orders were issued, the coal could have fallen
through the tear in the belt and rolled back to the tail, creating the cited
accumulations.    (Tr. 167-68).

However,
Inspector Saho did not believe coal would have traveled along the bottom belt
all the way to the tail roller. (Tr. 93-95). He testified that the coal would
have fallen or been flung off the belt before it reached that far. (Tr. 94-95).   
Both Skolnick, the section foreman, and Hossman, the safety representative,
also acknowledged that coal would have likely fallen off before reaching the
tail roller on the belt if the coal did fall through the tear on the belt.    (Tr.
174, 222).

Jeremi Hossman, the safety
representative, accompanied the inspectors along the South Mains belt on
September 9, 2014.[6]   
(Tr. 202).    He saw the accumulations that were cited along crosscuts 36-39.   
After Inspector Saho issued Order No. 8061123 at 10:00 a.m. and Order No.
8061124 at 10:01 a.m., the miners spent approximately two hours cleaning up the
accumulations, finishing by 12:30 p.m.    (Tr.243; RX 1).    Hossman testified
that during the inspection he had not heard Inspector Saho talk about
footprints in the accumulations, and Inspector Saho testified that his notes
and photographs did not indicate he found any footprints.    (Tr. 89, 119-20,
240-41; RX 5,6).

In the afternoon,
Hossman found out that there was a tear in the South Mains belt, which he
photographed. (Tr. 207; RX 14).    He said he believed this tear was in the
middle of the belt.    (Tr. 215).    As a result of this tear in the belt,
Hossman testified that the coal dumped on the belt could have fallen through to
the bottom and been carried back to the tailpiece and ground up, thus causing
the cited accumulations.    (Tr. 215-17).    Additionally, Hossman testified
that the accumulations were primarily on the edges, underneath the bottom of
the belt, and behind the tail roller. (Tr. 216-17).   

V.        Contentions of the Parties

The Secretary contends that
the coal dust accumulations by the tail roller of the Powhatan No. 6 Mine,
South Mains belt, violated 30 C.F.R. § 75.400, as stated in Order No. 8061123. (Sec’y
Post Hearing Br. at 11-12).    The Secretary also contends this violation was
S&S and reasonably likely to result in lost workdays or restricted duty
affecting two miners.    (Id. at 11).    Further, the Secretary contends
this violation was the result of an unwarrantable failure and high negligence,
and the penalty of $8,421.00 should be affirmed.    (Id. at 22-23).

Respondent contends that the
ALJ should give no deference to the inspector because he had less than the five
years of experience recommended by the Mine Act.    (Resp. Post Hearing Br. at
2-5).    In response, the Secretary contends that the Mine Act does not require
five years of experience and that Inspector Saho had the requisite MSHA
Inspector training and two and a half years of mining experience.    (Sec’y
Reply Br. at 1-4).    Respondent concedes that § 75.400 was violated, as stated
in Order No. 8061123, and that the violation was S&S, with it being reasonably
likely to result in lost workdays or restricted duty affecting two miners. (Tr.
248).    However, the Respondent contends that violative conduct should not be
assessed with high negligence or an unwarrantable failure designation, and the
penalty should be lowered.    (Resp. Post Hearing Br. at 5-26).

Additionally, the Secretary contends
that the Respondent failed to record the accumulations by the tail roller on
the South Mains belt line during the on-shift examinations in violation of §
75.363(b), as stated in Order No. 8061124.    (Sec’y Post Hearing Br. at 23-26).   
The Secretary also contends the violation was S&S, and reasonably likely to
result in lost workdays or restricted duty affecting two miners.    (Id.
at 26).    Moreover, the Secretary contends this violation demonstrated high
negligence, it was an unwarrantable failure, and that the penalty of $6,115.00
should be affirmed.    (Id. at 26-30).

The Respondent counters that
Order No. 8061124 should be vacated because the accumulations did not occur
until after the on-shift examinations.    (Resp. Post Hearing Br. at 27-28).   
The Respondent contends that if a violation is found, the negligence level
should be lowered, the unwarrantable failure designation should be removed, and
the penalty should be lowered.    (Id. at 28-29).

VI.       Analysis

A.        Burden
of Proof and Standard of Proof

The
Secretary bears the burden of proof of by a preponderance of the evidence for
violations. Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec.
2006); RAG Cumberland Resources, Corp., 22 FMSHRC 1066, 1070 (Sept.
2000); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987).    Each
element in a violation must be proven by the Secretary.    In re: Contests
of Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17
FMSHRC 872, 878 (Aug. 2008).

The Commission has held that “[t]he burden of showing
something by a ‘preponderance of the evidence’ the most common standard in the
civil law, simply requires the trier of fact ‘to believe that the existence of
a fact is more probable than its nonexistence.’” RAG Cumberland Resources
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe
& Products of California, Inc. v. Constr. Laborers Pension Trust for S.
California, 508 U.S. 602, 622 (1993).   

Further, the United States
Supreme Court has found that “[b]efore any such burden can be satisfied in the
first instance, the factfinder must evaluate the raw evidence, finding it to be
sufficiently reliable and sufficiently probative to demonstrate the truth of
the asserted proposition with the requisite degree of certainty.” Concrete Pipe
& Products of California, Inc. v. Constr. Laborers Pension Trust for S.
California,
508 U.S. 602, 622 (1993).   

B.        Order
No. 8061123

At
hearing, Respondent conceded that the coal dust accumulations cited between
crosscuts 36 and 39 violated 30 C.F.R. § 75.400 as stated in Order No. 8061123.   
(Tr. 248).            30 C.F.R. § 75.400 requires that:

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

Respondent also
conceded that the violation was likely to result in lost workdays or restricted
duty injuries affecting two miners. (J.S. 9).    During hearing, Respondent
conceded that Order No. 8061123 constituted a S&S violation.    (Tr. 248).   
However, the Respondent contested the high negligence and unwarrantable failure
assessments.

1.         Negligence

Negligence is
not defined in the Mine Act.    MSHA regulations provide that violative conduct
is properly designated as “high negligence” when “the operator knew or should
have known of a violative condition or practice, and there are no mitigating
circumstances.”    30 C.F.R. §100.3(d), Table X.    The Commission has held
that Commission Judges are not required to apply the level-of-negligence
definitions in Part 100 and may evaluate negligence from the perspective
of a traditional negligence analysis rather than the Part 100 definitions.    Brody
Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015); accord Mach
Mining, LLC, 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 1702-03; 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 1703, citing Topper Coal Co.,
20 FMSHRC 344, 350 (Apr. 1998).    “Thus, in making a negligence
determination, a Commission judge is not limited to an evaluation of allegedly ‘mitigating’
circumstances…[and]may consider the totality of the circumstances holistically.”
Brody, 37 FMSHRC at 1702 (emphasis added).    Under such an analysis,
an operator is negligent if it fails to meet the requisite high standard of
care under the Mine Act. Id.

In the instant
case, the cited accumulations were up to two feet deep in some areas. (Tr. 33).   
The operator should have detected such an obvious violation.    (See Tr.
33).    Accumulations this extensive likely existed for several hours, if not
days.    The failure by the Respondent to abate these conditions, which posed such
a fire hazard, displayed an aggravated lack of care.

Respondent alleges
that there was a tear in the belt that was unknown to the operator.    (Tr.
207). This created accumulations at crosscuts 36-39, which Respondent argues
should constitute a mitigating circumstance. (Resp. Post Hearing Br. at 24-25).   
The tear in the belt was not found until the afternoon after the orders
were issued. (Tr. 207).    No one from the mine checked the belt and had found
a tear at the time the order was issued. This would indicate that the tear may
not have existed until after the order was issued. (Tr. 219-20).    The
inspector also did not find a tear in the belt at the time the accumulations
were found.    (Tr. 97-100).    Further, Inspector Saho, Skolnick, and Hossman
testified that—even if there was a tear in the belt—the coal would have fallen
off the belt all along crosscuts 25 to 39. [7]   
(Tr. 94-95, 174, 222).    No evidence has been brought forward by the
Respondent showing that coal had fallen off anywhere other than at crosscuts
36-39. (Tr. 222).    Finally, there was no evidence that further accumulations
had occurred after the order was issued near the tail roller. (224-28).   
 It is unlikely that a tear, which caused accumulations in the morning, would
not continue to cause accumulations until repaired later that afternoon.    As
a result, this Court finds that the Respondent’s arguments concerning the tear
are not persuasive.    Therefore, this court finds that the violation was the
result of high negligence.

2.         Unwarrantable
Failure

The Commission has determined that an
“unwarrantable failure is aggravated conduct constituting more than ordinary
negligence.”    Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013).   
Such a failure may be characterized by the following types of conduct: reckless
disregard, intentional misconduct, indifference, or a serious lack of
reasonable care.    Emery Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec.
1987).

Whether
conduct is “aggravated” in the context of unwarrantable failure is determined
by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, including (1) the extent of the violative condition,
(2) the length of time that the violative condition existed, (3) whether the
violation posed a high degree of danger, (4) whether the violation was obvious,
(5) the operator’s knowledge of the existence of the violation, (6) the
operator’s efforts in abating the violative condition, and (7) whether the
operator had been placed on notice that greater efforts were necessary for
compliance.

Manalapan
Mining Co.,
35 FMSHRC at 293.    The Court must consider all relevant factors, the facts
and circumstances of the case, and whether mitigating circumstances exist.    IO
Coal Co., Inc., 31 FMSHRC 1346, 1351 (Dec. 2009).

As
discussed infra, the Respondent has essentially offered the following
“defenses” or mitigating circumstances to vitiate findings of “high” negligence
and unwarrantable failure: there was an unseen tear in the upper belt; coal
fell through the undetected tear onto the lower belt; the fallen coal was then
transported along the beltway and deposited into unsafe accumulations in the
cited areas; all of which occured after the on-shift examinations.

This
Court will discuss the Manalapan factors below seriatim.    However,
this Court feels constrained to observe there is no need for a sophisticated Pascalian
risk analysis to discern the extremely problematic nature of Respondent’s
contentions.    Why was the fallen coal not strewn along the entire length of
the belt-way area in question rather than only in the cited areas?    What are
the odds that the accumulations would be so deposited and distributed in such a
short period of time?    Why did the inspector never observe the unsafe tear?

Much
more probable and likely explanations for the unsafe accumulations and failure to
report are the ones advanced by the Secretary throughout these proceedings: the
operator’s high negligence and unwarrantable failure in allowing the
accumulations to build up and its highly negligent and unwarrantable failure to
record and report such.

The
Secretary has easily carried its burden regarding the operator’s violative
conduct and the unwarrantable nature of such by the preponderance of the
evidence.

a.         The
length of time and extent of the condition

The
accumulations that Inspector Saho found at crosscuts 36-39 were six feet wide
and two feet deep under the belt tail roller. (Tr. 33).    The accumulations
covered the floor, roof ribs, and belt. (Tr. 17).    The belt tail roller was turned
in compacted accumulations.    (Tr. 33).    Inspector Saho testified that he
did not believe accumulations so extensive could have accumulated after the on-shift
examination. (Tr. 42).    Conversely, the Respondent argues that a tear in the
belt had caused coal to accumulate after the on-shift examination; thus arguing
the accumulations existed for several hours instead of several days.[8] Nonetheless,
the extensiveness of the accumulations and the fact that no coal was loaded
onto the belt from 1 South contradict Respondent’s contentions and support the Secretary’s
contentions that these accumulations most likely had existed for more than one
shift.

b.         Whether
the violation posed a high degree of danger

There was a high
degree of danger created by the instant violation.    Coal accumulations were
packed around the tail end roller, and the belt was also running in contact
with coal accumulations.    (Tr. 33, 36, 45-47, 180; GX 7, 8).    These
conditions created a fire hazard that could have resulted in miners suffering
smoke inhalation or burns.    (Tr. 52, 122).    Although the Respondent argued
that the accumulations were damp, the Commission has held that “[t]he fact that
there was some dampness in the coal did not render it incombustible and…wet
coal can dry out in a mine fire and ignite.” Utah Power & Light Co,
12 FMSHRC 965,969 (May 1990), Aff’d, 951 F.2d 292 (10th Cir. 1991)(citing
Black Diamond, 7 FMSHRC 1117,1120-221 (Aug. 1985)).    Moreover, the
Commission has found that “even absent a fire, accumulations of damp or wet
coal, if not cleaned up, can eventually dry out and ignite.”    Black
Diamond, 7 FMSHRC at 1121.    Consequently, even though the accumulations
were damp, they were a dangerous condition that could result in a fire and
smoke inhalation hazard.

c.         Whether
the violation was obvious

The unsafe
accumulations were readily apparent to Saho. He found widespread combustible
float coal dust, loose coal, and compact coal.    (Tr. 33, 36-37, 71).    The
accumulations were black and were not rendered inert by rock dust.    (Tr. 37,
108).    Considering the testimony and photographic evidence presented at
trial, this Court finds the violative condition had been clearly obvious.    (Tr.
33, 36-37, 71; GX 4-8).

d.         Whether
the operator had knowledge of the condition

The
Commission has held that an operator's knowledge of a violation may be
established where the operator “reasonably should have known of the violative
condition.” IO Coal Co., 31 FMSHRC 1346, 1357 (Dec. 2009). As
discussed within, there is some question as to how long the operator actually
knew of the accumulations’ existence.    However, with the two examinations
that occurred on September 9, 2014, and given the extent of the accumulations
shown by the photographic evidence, the operator and examiner reasonably should
have known of the violative condition.    (Tr. 33, 36-37,
71; GX-4-8).
Thus, this factor weighs in favor of an unwarrantable failure finding testified
to by the Secretary’s witness.

e.         The
operator’s efforts in abating the condition

The Commission
has explained that the abatement efforts relevant to the unwarrantable failure
analysis are those that were made prior to the issuance of the citation
or order. Consolidation Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013). Prior
to the order being issued, there did not appear to be any efforts by the
Respondent to abate the condition.    Therefore, this factor also favors an
unwarrantable failure finding.

f.          Whether
the operator had been placed on notice that greater efforts were necessary for
compliance

Repeated similar
violations may be relevant to an unwarrantable failure determination to the
extent that they serve to put an operator on notice that greater efforts are
necessary for compliance with a standard.    San Juan Coal, 29 FMSHRC
125, 131 (2007) citing Amax Coal Co., 19 FMSHRC 846, 851 (May 1997).    Additionally,
“[t]he Commission has recognized that past discussions with MSHA about an
accumulation problem serve to put an operator on heightened scrutiny that it
must increase its efforts to comply with the standard.”    Consolidation
Coal Co., 23 FMSHRC 588, 595 (2001)(finding unwarrantable failure where
operator was cited 88 times in a two year period for § 75.400 violations). Respondent
had been issued 107 § 75.400 violations in the two years prior for
impermissible accumulations of combustible material at Powhatan No. 6 Mine. (GX
1; Sec’y Post Hearing Br. at 24).    In light of these previous § 75.400
violations, it is clear that the operator had been placed on notice that
greater efforts were required for compliance with accumulation violations.

3.         Conclusion

After considering
the above Manalapan factors, individually and holistically, this Court
finds the record clearly supports a finding of unwarrantable failure.

C.        Order
No. 8061124

During Inspector
Saho’s inspection of the South Mains belt, he issued Order No. 8061124 for the
Respondent’s failure to record in the on-shift examiner’s report the
accumulations cited in Order No. 8061123. 30 C.F.R. § 75.363(b) requires that:

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

The on-shift
examination report for the South Mains belt noted “N/O” or “none observed”
under the dangerous/hazardous conditions section.    (GX 11).    The Respondent
agreed that the accumulations existed during the MSHA inspection, but not that
they were visible during the examination.[9]   
(Tr. 57-58, 185). At approximately 2:28 a.m., Foreman Skolnick was in the area
of the belt tail, and he was at the belt drive again at 6:26 a.m. (during this
second exam, Skolnick was not near crosscuts 36-39).    (Tr. 61, 151, 160, 183,
186).    Inspector Saho observed the accumulations at approximately 10 a.m.    (Tr.
84).

Inspector Saho’s
testimony that the accumulations were up to two feet deep and that no coal was
coming onto the belt from the 1 South transfer indicate that the accumulations
likely existed since at least the last time coal came from the 1 South
transfer.    (Tr. 33, 50).    As discussed, it was much more likely that coal
came along the belt from left to right (starting at the 1 South transfer) than
that the coal accumulations dropped through a tear exactly as the belt intersected
with the West Mains transfer, dropping to the bottom of the belt and travelling
all the way back to the tail of the belt, without leaving accumulations along
the way.    Consequently, the Secretary has shown by a preponderance of the
evidence that the accumulations between crosscuts 36 and 39 existed during the on-shift
examinations and that they were not properly recorded.    Therefore, Order No.
8061124 is affirmed.

Order No. 8061124
was issued as S&S, and reasonably likely to result in lost workdays or
restricted duty affecting two people.    Respondent does not argue the
potential S&S or lost workdays or restricted duty affecting two people.    (Tr.
11-12, 248-49).    However, the Respondent does contest the high negligence and
unwarrantable failure assessments.

1.         High
Negligence

The Secretary
has met the burden of proving high negligence.    As discussed above, it is
more probable that the accumulations between crosscuts 36 and 39 had existed
during the on-shift examinations and that there was a failure to report such.   
The two feet deep accumulations and 1 South transfer not being used on
September 9, 2014, indicate the § 75.400 violation had existed prior to the on-shift
exams.    (Tr. 33, 50).

The Respondent
had a duty to record any of the nine mandatory health or safety standards and to
take corrective action. 30 C.F.R. § 75.363(b).    Between 2:00 and 2:28 a.m.
and 6:00 and 6:26 a.m., on-shift examinations were made by Foreman Skolnick. (Tr.
60-61).    At approximately 2:00 a.m., Skolnick alleges he examined the South
Mains belt to the tail roller, where accumulations were later cited by
Inspector Saho.    (Tr. 61, 151, 160, 183, 186).    However, he did not report
any accumulations and did not undertake to have the coal dust eliminated or the
area rock dusted.    This failure to record the cited accumulations could have
caused a fire and smoke hazard.    Thus, this negligent act by the Respondent
put the health and safety of at least two miners, an examiner and a belt cleaner,
in serious danger.    (Tr. 52-53).    Such violative conduct was more than just
ordinary negligence and shows an aggravated lack of care without any clear
mitigating circumstances.    As a result, this Court finds the Respondent’s
conduct was properly designated as “high negligence” in Order No. 8061124.

2.         Unwarrantable
Failure

Given that Order No. 8061124
involves essentially the same facts and unwarrantable failure factors/analysis
as Order 8061123, this violation also constituted an unwarrantable failure on
the part of the Respondent.    See supra Section B.2.

For this violation, there
was the same obvious condition of accumulations covering crosscuts 36-39 that
were up to two feet deep.    (Tr. 33).    Given the depth of accumulations and
the lack of coal being loaded onto the South Mains belt from the 1 South transfer,
this condition likely existed longer than one shift. (Tr. 33, 50).    The
accumulations of two feet of compacted coal dust by the tail roller created a
fire hazard and posed a high risk of danger, which the examiner failed to
report. (Tr. 33).    The probability of the accumulations lasting longer than
one shift also indicate that Foreman Skolnick was likely on notice of the
condition and still did not abate the condition or report it.    Finally, the
Respondent was on notice that greater efforts were necessary for compliance
with § 75.363(b) given the 107 § 75.400 accumulation violations the Respondent
received in the previous two years. (GX 1).   

In considering all of the Manalapan
factors, this Court finds the unwarrantable failure assessment to be
appropriate. Cf. Manalapan Mining Co., 35 FMSHRC at

293.    The
Respondent had a duty to accurately report the accumulations in crosscuts 36-39
and it failed to do so, creating the possibility of a fire and smoke hazard for
miners.    Accordingly, the Secretary has shown by a preponderance of the
evidence that the violative conduct cited in Order No. 8061124 constituted an
unwarrantable failure and that the Respondent was highly negligent in failing
to report the § 75.400 violation.

D.        Penalty

In determining
the appropriate civil penalty, the Commission applies the statutory criteria in
§ 110(i) of the Mine Act.    This section provides:

In assessing
civil monetary penalties, the Commission shall consider the operator's history
of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation. In proposing
civil penalties under this chapter, the Secretary may rely upon a summary
review of the information available to him and shall not be required to make
findings of fact concerning the above factors.

30 U.S.C. § 802(i).

The Respondent is
a large operator, with an annual coal tonnage of 5,550,146 produced at Powhatan
No. 6 Mine. (GX 1, 9).    The parties have stipulated that payment of the civil
penalty proposed by the Secretary will not affect the Respondent’s ability to
remain in business.    J.S. 10.    Order No. 8061123 was assessed as S&S
with lost workdays or restricted duty. (GX 1).    This court has affirmed the
high negligence assessment and the unwarrantable failure designation.    The
gravity of injury was high due to the fire and smoke inhalation dangers posed
by the accumulations.    While there was compliance with the order in the two
hours after the order was issued, the other statutory criteria weigh heavily
against the Respondent.    (GX 1).    Thus, the originally proposed penalty for
this violation was appropriate.    Accordingly, Respondent is assessed a civil
penalty of $8,421.00.

Given that the
violative conduct in Order No. 8061124 has been assessed as S&S with lost
workdays or restricted duty, and given the high negligence and unwarrantable
failure findings, and having considered all of the statutory criteria in §
110(i), this Court finds the Secretary’s originally assessed penalty to be
appropriate. (GX-9).    Additionally, as the same circumstances involving the
mine size, ability to remain in business, gravity, and compliance apply to this
order, the proposed civil penalty of $6,115.00 is affirmed.   

VII.     Conclusion

This
court AFFIRMS Order No. 8061123 and Order No. 8061124.    Consequently,
it is ORDERED that Respondent pay the Secretary of Labor the sum of $14,536.00
within 30 days of the date of this Decision.[10]    Upon receipt of
payment, this case is hereby DISMISSED.

/s/ John Kent
Lewis

John Kent Lewis

Administrative
Law Judge

Distribution:

Helga Spencer, Esq., Office of the
Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 170 S.
Independence Mall West, Philadelphia, PA 19106

Jason W. Hardin, Esq., Fabian VanCott,
215 South State Street, Suite 1200, Salt Lake City, UT 84111

[1] The parties’
joint stipulations were read into the record at Transcript pages 10-14. (Tr.
10-14). A paper copy was said to be attached to the record as Joint Exhibit 1,
however; the exhibit attached was a Mine Citation/Order Continuation modifying
Citation No. 8057495.    (Joint Ex. 1).    The ALJ also incorporates the
recitation of the stipulations set forth in the Secretary’s Post Hearing Brief
that was not objected to by Respondent (except for the clerical error of using
Order Nos. 802113 and 8062114 instead of the correct Order Nos. 8061123 and
8061124) as though fully recited herein.    (Sec’y Post Hearing Br. at 3-4).   
Hereinafter, joint stipulations will be cited to as J.S. followed by the
stipulation number.    Exhibits will hereinafter be cited to as JX followed by
a number for joint exhibits; GX followed by a number for the Secretary’s
exhibits; and RX followed by a number for the Respondent’s exhibits.

[2] Inspector
Terrance Saho is an inspector for MSHA.    (Tr. 20-21).    In June 2014 he was
authorized as a coal mine inspector.    (Tr. 21).    Prior to becoming a mine
inspector, he received 21 weeks of training at Beckley, West Virginia at the
Mine Academy.    (Tr. 22).    Before working for MSHA, Inspector Saho worked in
the mining industry for approximately two and a half years.    (Tr. 24-25).    He
worked two years with Consol Energy and approximately five months with GMS.    (Tr.
25).    He was a union coal miner at Consol, working as a bolter on the
continuous miner, and various sections jobs, belt work, and general inside
labor.    (Tr. 25).    At GMS, Inspector Saho worked on belts.    (Tr. 25).

[3] An E0-1
inspection is a general inspection.    (Tr. 27).    At this time, Powhatan No.
6 mine was subject to a five day spot inspection where inspectors would take
bottle samples to test for methane liberated from the mine.    (Tr. 27).

[4] Inspector Saho
uses the term fire triangle, comprising of fuel, an ignition source, and oxygen,
to indicate the conditions in a coal mine that can create a fire hazard.    (Tr.
70).

[5] Matthew
Skolnick has been the section foreman for Ohio Valley Coal for three years.    (Tr.
146).    He has worked for Ohio Valley Coal for a total of 6 years.    (Tr.
146).     He has been certified in both West Virginia and Ohio.    (Tr. 146).

[6] Hossman was the
safety representative at Ohio Valley Coal for almost six years.    (Tr. 203).   
He also worked as a surveyor and in the warehouse at the mine.    (Tr. 203).   
He has worked ten years in coal mining.    (Tr. 203).

[7] The Respondent
essentially argues that Inspector Saho’s testimony should be accorded little weight
because he lacks the five years of mining experience recommended by the Act.
(See Also 20 U.S.C. §954, which states in pertinent part that “to the maximum
extent feasible, in the selction of persons for appointment as mine inspectors,
no person shall be so selected unless he has the basic qualification of at
least five years practical mining experience.”)

The
Act accepts that the length of prior mining experience is a relevant factor in
determining the weight to be given an inspector’s opinion. However to the
extent that Respondent implies that Saho’s lack of five years past mining
experience, standing alone, would render his opinions uncredible, the ALJ
expressly rejects such.

The
ALJ notes that Saho did possess approximately two and a half years of prior
mining experience at the time he inspected the subject mine. Additionally, the
Act explicitly uses the disjunctive “or” in listing the qualifications for an
authorized representative, stating that such persons “shall be qualified by
practical experience in mining or by experience as a practical mining
engineer or by education.” (Id.)(emphasis added). In
addition to his mining experience, Inspector Saho received 21 weeks of training
at the Mine Academy in Beckley, West Virginia.

Moreover,
when Inspector Saho issued Order Nos. 8061123 and 8061124 on September 9, 2014,
he had been accompanied by his supervisor, Bill Hagedorn, who did not disagree
with any of Saho’s findings. (Tr. 29).

Finally,
the ALJ notes that Saho’s testimony of his observations of the cited area and
inspections of Respondent’s examination books were essentially uncontradicted
by Respondent.

Considering
in toto the inspector’s past experience and training, the additional
presence of his supervisor and his uncontested observations, the ALJ found Saho
to be both credible and persuasive in his expressed opinions.

[8] At hearing, the
Secretary introduced a photograph showing an examiner’s initials with the date
of 8/24/14.    (Tr.40-41; GX 5).    However, as that examiner did not testify,
this Court does not find that the initials indicate the accumulations existed
since that date.   

[9] Respondent
emphasizes that there were no reported footprints in the accumulations as
evidence that the accumulations did not exist until after the on-shift
examination.    (Tr. 89, 119-20, 240-41).    Specifically, the Respondent believes
the absence of footprints defeats the Secretary’s argument that Foreman
Skolnick saw, but failed to report the accumulations during his on-shift
examination. (Sec’y Post Hearing Br. at 19-20).    However, even though footprints
were not documented by Inspector Saho, this does not prove said footprints did
not exist or that the accumulations were not present prior to the onshift exam
at approximately 2:00 a.m.

[10] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390