Secretary of Labor v. Peabody Midwest Mining, LLC

Plain-English summary

MSHA found at least seven obvious loose ribs along two connected primary escapeways at Peabody Midwest Mining's Francisco Underground Pit. A mine examiner had traveled the areas about nine hours earlier without recording rib hazards, and the mine's recent examination records identified no similar problems. The Judge credited the inspectors that the large, gapped conditions had existed well beyond one shift and that pulled-down material fell in travel areas, including beneath lifelines. He affirmed two rib-control orders under 30 C.F.R. § 75.202(a) and an inadequate weekly-examination order under 30 C.F.R. § 75.364(b). All three violations involved high negligence and unwarrantable failure; the second-southwest rib violation and inadequate-examination violation were S&S, while the main-south rib violation was non-S&S as issued. The orders were affirmed as written, with penalties of $15,900, $4,000, and $4,000, totaling $23,900.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a) and 75.364(b)
• Outcome: All three section 104(d)(2) orders were affirmed as written, and total penalties of $23,900 were assessed.
• Key point: Multiple obvious rib hazards missed during a required escapeway examination supported high negligence and unwarrantable failure, even when normal travel through the escapeways was limited.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW
JUDGES

1331 Pennsylvania Avenue, NW,
Suite 520N

Washington, DC 20004-1710

Phone: (202) 434-9933 | Fax:
(202) 434-9949

February 20, 2018

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE
SAFETY AND HEALTH                      :

ADMINISTRATION
(MSHA),                        :     Docket No. LAKE 2016-0120

Petitioner,                          :     A.C.
No. 12-02295-397991

:

v.                                                   :     Docket
No. LAKE 2016-0140

:     A.C.
No. 12-02295-400067

:

PEABODY
MIDWEST MINING, LLC,            :     Mine: Francisco Underground Pit

Respondent.                      :

DECISION AND ORDER

Appearances:               Emelda
Medrano, Esq. and Kevin Wender, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

Arthur
Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222                      

Before: Judge
Moran

These
consolidated cases are before the Court upon petitions for assessment of civil
penalties under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). A hearing was held in Owensboro, Kentucky on November
7, 2017. For the reasons which follow, the Court upholds each of the Orders and
imposes the penalties sought by the Secretary.
[1]

Violations
at issue in Docket No. LAKE 2016-0120

At
issue in Docket No. LAKE 2016-0120 is one 104(d)(2) order, Order No. 9036624 ,
with a proposed penalty of $4,000.00.

Order
No. 9036624 alleged a violation of 30 C.F.R. § 75.364(b). [2]
The MSHA inspector assessed the gravity reasonably likely, the injury or
illness that could reasonably be expected to be lost workdays or restricted
duty, the negligence as high, and the violation as S&S, with one person
affected. The condition or practice alleged is:

The
examination conducted on the entire M.S. primary escapeway (35 crosscuts) and
from crosscut #1-26 of the 2nd South West primary escapeway have been found to
be inadequate. When inspected, there were at least 7 loose ribs that were
pulled down along the primary escapeway in this short distance. The last exam
of this area was conducted on 10/28/2015. These loose ribs were gapped from the
rib and were obvious to the most casual observer. This violation is an
unwarrantable failure to comply with a mandatory standard.

Order
No. 9036624.

As
a subsequent action, the operator retrained all examiners on 30 C.F.R.
75.202(a), “with an emphasis on loose rib maintenance.” Id .

Marked
as S&S, an unwarrantable failure, and high negligence, it was regularly
assessed at $4,000.00.

Violations
at issue in Docket No. LAKE 2016-0140

At
issue in Docket No. LAKE 2016-0140 are two 104(d)(2) orders, Nos. 9036623 and
9036625. Order No. 9036623 was marked as S&S, an unwarrantable failure, and
high negligence and was specially assessed at $15,900.  Order No. 9036625 marked
as non- S&S, but as an unwarrantable failure, and with high
negligence was regularly assessed at $4,000.00.

Order
No. 9036625

Order
No. 9036625 alleged a violation of 30 C.F.R. § 75.202(a). [3]
The MSHA inspector assessed the gravity as unlikely, the injury or illness that
could reasonably be expected to be lost workdays or restricted duty, the
negligence as high, and the violation as non-S&S, with one person affected.
The condition or practice alleged is:

The ribs along
Main South Primary escapeway, crosscut 7-8, entry #6 are not being adequately
supported to protect miners from falls of the rib. There are 3 loose ribs in
this area. The largest of these ribs was approximately 6 feet in length, and
appproximately [sic] 8 inches thick, and gapped from the rib approximately 3
inches. The rib on the off belt side is approximately 4 feet long and up to
approximately 6 inches in thickness. This loose rib was gapped away from the
rib approximatley [sic] 1 inch. The mine operator immediately pulled these ribs
down. Standard 75.202(a) was cited 30 times in two years at mine 1202295 (30 to
the operator, 0 to a contractor). This violation is an unwarrantable failure to
comply with a mandatory standard.

Order
No. 9036625.

The
operator pulled the ribs down in order to terminate the order. Id .

Order
No. 9036623 :

Order
No. 9036623 alleged a violation of 30 C.F.R. § 75.202(a). The MSHA inspector
assessed the gravity as reasonably likely, the injury or illness that could
reasonably be expected to be lost workdays or restricted duty, the negligence
as high, and the violation as S&S, with one person affected. The condition
or practice alleged is:

The Ribs along
the 2nd South West primary escapeway are not being adequately supported to
protect miners from falls of the rib. The rib between entries number 6-7,
crosscut number 13, on the inby side are gapped away from the rib approximately
2 inches in length. There are 2 ribs on the outby side of this entry that are
also gapped from the rib. The largest of these ribs measured approximately 10.5
feet in length and up to 10 inches thick. There are also 2 loose ribs at
crosscut 25-26, entry #6, in the primary escapeway. The largest of these ribs
measures approximately 10 feet long up to 10 inches in thickness. This area had
was examined prior to inspection on 10/28/2015. The mine operator immediately
pulled these ribs down. Standard 75.202(a) was cited 29 times in two years at
mine 1202295 (29 to the operator, 0 to a contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.

Order
No. 9036623.

The
operator pulled down the loose ribs to terminate the order. Id . The
Secretary proposed a civil penalty of $15,900.00.

Findings
of Fact [4]

Testimony began with MSHA Inspector
Stephen William Tisdale. He was at the Respondent’s Francisco Underground Pit
on October 28, 2015 for an E01 (aka a “regular quarterly”) inspection. With him
was MSHA inspector trainee John Hohn. The mine’s compliance manager, John
Schwartze, accompanied them. Tr. 26. Shown Exhibit P 3, Tisdale identified it
as the mine’s exam records for that day relating to the mine’s primary
escapeway. Referring to that exhibit, Tisdale noted that the examiner did not
note any hazards, nor any actions for hazards. Tr. 28.

When
Tisdale entered the mine that day he “directly entered the primary escapeway in
the intake air course and the group proceeded to inspect inby on the main
south, and from there then to the second southwest. Tr. 28. Tisdale identified
Exhibit P 4 as the Order he issued that day to Schwartze concerning “the ribs
along the main south primary escapeway.” Tr. 29. Tisdale wrote the order
because of “[t]he amount of loose ribs that [he] found on this particular air
course and the size of them, and how they fell.” Tr. 29. By using the term “how
they fell,” Tisdale explained that the ribs were pried down while they were
present, so he watched them fall. Tr. 30. It was noted that Tisdale’s
description of the conditions was an approximation of the length and thickness
of the ribs. This was because it was too dangerous to take an actual
measurement. Tr. 30. Despite his observations, Tisdale informed that he knew
the area had been recently examined. This was because he found DTI (date, time,
and initial) tags on the intake air course when they entered it. Thus, it was
evident that the mine’s Mr. Meador had been there that morning. Tr. 31-32. The
DTI reflected a time after 12:00 a.m. and Tisdale was then there a short time
thereafter, at 7:00 a.m.

Returning
to his observations associated with the order, Tisdale informed, he observed “several
loose ribs at crosshead 7A and entry 6. There were at [least] three loose ribs
in this one area that were obvious. They were gapped from the rib and were not
addressed.” [5]
Tr. 33. Tisdale stated that the ribs identified in Order No. 9036625 were from
the floor to the roof, and therefore were about five feet high. Id. When
Tisdale made his estimates, he used a tape measure and, upon informing Schwartze
of his numbers, the latter agreed. Tr. 34. Finding that the conditions
presented by the number of loose ribs created a safety hazard, Tisdale cited
the Respondent under 30 C.F.R. §75.202(a), a standard speaking to control of
ribs.

The
inspector listed the gravity as unlikely “because of the way that they fell and
the amount that fell in the actual travel way. [He did not] believe that it
would have been real likely that someone would have been injured severely with
that.” Tr. 35. He added, the ribs “fell on the sloughage for the most part. [However]
[t]he tops did fall in the primary escapeway underneath of the lifeline, which
was the walk route by the examiner and anyone who would have been following the
lifeline in the same scenario.”  Tr. 35-36. The height of the ribs was another
factor he considered, affirming the obvious that “the bigger they are, the --
the more room they have to fall. The higher they are, the more they can fall on
you. The farther they're going to come out, the more damage they're going to
do.” Tr. 36. Tisdale listed 1 person as being affected, essentially anyone who
would be traveling through the area, or performing functions such as attending
to a loose roof bolt, or rock dusting . Not to be overlooked, the cited area
was an escapeway. Id. In terms of the expected injury, in the Court’s
view, Tisdale again displayed his reasonableness, listing “contusions, scrapes,
slips, trips, falls, and anything associated with the falls of ribs,” which
would include the potential for broken bones. Tr. 37.

Negligence,
however, was another matter, as he marked that as “high,” because “the examiner
had been through this area nine hours prior to [his] inspection examining this
area for exactly these conditions.” Tr. 37. He added that the “examiner had
been trained on this as required, according to Mr. Schwartze, for this standard
[ ] because it's required every quarter. Also this mine had been put on heightened
enforcement for this standard due to other citations being issued for exactly
this, so another reason for them to have -- be aware that this was something
they needed to pay attention to. And by the sheer number and obviousness of
them all.” Id.

The
Court inquired of the inspector whether “there [was] any possibility that the
conditions that you observed developed in the interval from when the mine
examiner was last there and when you appeared during that approximate nine
hours.”  Tisdale answered, “I don't believe so, sir, because [of] how wide the
gaps were on these and how big these ribs are. It's not something that's going
to happen in nine hours. It typically takes quite a while for it to trade that
kind of gap as material falls behind it and pushes it away from a rib.”
However, he added that “[t]here was nothing showing me anything that there was movement
at that time while I was inspecting it.” Tr. 38.

In
terms of how long the conditions he observed had existed prior to his viewing
them, Tisdale responded that “they existed at least three weeks, if not more.” Tr.

39. The cited conditions could’ve been more expansively included, as they were
    obvious too, but because of the way they fell, he didn’t include them in the
    citation. Id. As he summed it, these conditions do “not happen in a
    short period of time.” Tr. 39. The Court asked for additional information,
    inquiring why, for example, his estimate was not two weeks or only two shifts. Tisdale
    responded that his estimate was based on his experience. [6]

Tisdale
also informed that the mine was put on heightened notice in July and August
2015 because MSHA had been finding a lot of 75.202(a) and 75.364(b) violations.
Tr. 41.     In terms of Tisdale listing the violation as an unwarrantable
failure, he reiterated that an examiner for the mine had been in that area
about nine hours before his inspection and the conditions were obvious. Tr. 43.
Yet no action had been taken and the exam records noted nothing either. Tr. 43.
Tisdale considered whether he could just issue 104(a) citations, and verbally
stated he would do so, but then, upon reflection, given all that he
observed, he decided an order was necessary. Tr. 43-44. The conditions were
both obvious and not hard to detect. Tr. 46. As noted, several ribs had to be
pulled down during the course of inspection that day, and Tisdale observed
those actions being taken. Tr. 48-49.

Still
referring to Order No. 9036625, involving the main south primary escapeway, [7]
Tisdale informed that “These [ribs] specifically fell where miners would be
traveling, evidenced by traffic through the area. They also fell underneath of
the lifeline or the escapeway, which would be traveled by anyone trying to
escape the mine and also where the examiner is normally traveling.” Tr. 50. His
measurements also factored into his assessment of the conditions, because,
“[r]ocks that size hitting you are going to cause an injury.” Tr. 50.

Directed
to Exhibit P 5, Order No. 9036623, Tisdale identified it as the order he issued
on October 28, 2015 for the second southwest primary escapeway.   Id. As
with the order just discussed, this order was issued because of “[t]he number
of loose ribs that were found, the size of them, and the -- the obviousness of
them.” Id. The conditions he observed were similar to those he found on
the main south primary escapeway, as he advised that the second southwest
primary escapeway was “[a] lot of what we seen on the main south primary
escapeway, more loose ribs that are not being controlled or being prevented
from hurting miners, no indication that any of them had been identified. The examiner
had traveled that area also. They put tags about every ten crosscuts and we
were able to see that he had been through there at a pretty good pace.” Tr. 51.
These conditions were examined by the same mine examiner that had examined the main
south primary escapeway, resulting in Order No. 9036625 being issued. Id.
Thus, two separate escapeways had these problems.

As
with the previous order, Tisdale found for Order No. 9036623 “several loose
ribs again that were obvious. Obviously gaps in the rib that were not being controlled.”
[8]
Tr. 52. It is also important to note the inspector’s information about where
these ribs fell, as he informed, he “believe[d] these fell directly underneath
the lifeline. On the second southwest, the mine operator had done some rehab
work and had scooped a lot of the second southwest, and this particular area
was one of those, so there was not a lot of sloughage. The ribs fell where
miners had obviously traveled evidenced by their foot tracks, and it also fell
directly underneath the lifeline.” Tr. 53. Not to be lost among these findings,
and to be plain, the hazard was again loose ribs. Tr. 54. Marking the gravity
as “reasonably likely,” Tisdale identified the likely injury to be “[w]ith ribs
this size, [he]put down bruises, scrapes again, just like on the main south. But
with this size, you're going to have broken bones again. We've had fatalities
with smaller ribs of the same thing. It's a rules to live by standard [9]
just for that reason. There are many, many different injuries that can occur
from bad ribs like this.” [10]
Id. Tisdale expressed that the size of the ribs falling on a miner would
cause a severe injury.  Again, as expressed before, the miners exposed to this
hazard would be anyone traveling through the area or working in it or those
needing to use it as an escapeway. Tr. 58. The same rationale used for the
prior order, applied to this one. The examiner had recently been in the area
and the conditions were obvious.   Id. This reasoning applied to his
unwarrantable failure designation as well. As before, Tisdale’s estimate was
that these conditions had existed for at least three weeks. Tr. 60.

Tisdale
was then directed to Exhibit P 6, Order No. 9036624. This Order, very much
associated with the other orders just discussed, was for an inadequate exam. As
he expressed it, the order was issued because of “[t]he apparent lack of care
to – to specifically check for loose ribs through this whole area just was not
finding them, not looking for hazards in this area -- for the -- both the areas
that were orders on.” Tr. 62. Thus, the mine examiner failed to adequately look
for loose ribs, which conditions were obvious, in both the southwest primary
escapeway and

the main
south primary escapeway. Tr.63. Though he could not give an exact number,
Tisdale found at least seven hazardous ribs. [11]
Id.

In
determining that the gravity was “reasonably likely,” Tisdale explained that
was “[b]ecause of what we found with the ribs being that large and falling on
someone, and that the sheer number that there are, they're going to cause an
injury.” Tr. 67. One person was marked as being affected.   In the
inspector’s view, the mine offered no cognizable mitigating factors, as weather
and the assertion that this was not a (d) citation or (d) order mine were not
persuasive to him. Tr. 69-70.

Under
cross-examination, Tisdale agreed that there are two examination records noted
within Ex. P 3., October 12 th and October 26 th . Tr. 72. It
was pointed out by the Respondent that the exhibit did not include the exam for
the week between those dates. [12]
The inspector agreed that for the week of October 26 th , a condition was
listed at line 5 and for the week of October 12 th , a hazard was
noted at line 12, the condition being exposed bolts. Tr. 72-73.

Regarding
the height of the ribs for Order No. 9036625, Ex. P 4, pertaining to the main
south escapeway, the inspector agreed that his order did not list the rib
height. Tr. 73. The same was true for Ex. P 7, no rib height was listed. Tr.

74. The inspector also agreed that beyond the primary escapeways he cited, a
    mine is required to have a secondary escapeway. Id . That secondary
    escapeway is the mine’s travel way, meaning the road used in normal mining
    operations and on which miners drive in and out of the mine using rubber tired
    vehicles. Id.  The inspector agreed, and there is no dispute, that the rather
    obvious idea behind having two escapeways is to deal with the situation if one
    cannot be used during an emergency. Given a choice , the inspector also
    agreed that the roadway escape would be the preferred exit. [13]
    Tr. 75.

The
Court notes that, as to the import of that argument, that an escapeway would
rarely be S&S, because there are two of them, and a second escapeway would
only be needed if the first escapeway could not be used, little needs to be
said. The idea behind the two escapeway requirement is just for such an
eventuality. It is noted that even motels, hardly dangerous places, have two
stairway exits for escape. 

Regarding
the inspector’s statement that the mine had been put on notice, the inspector
agreed that such notice is broad, applying to any type of inadequate
examination. [14]
Tr. 76. Also, although the inspector knew that the mine had been put on notice regarding
75.202(a) on August 12, 2015, he did not know the circumstances which led to
that notice. [15]
Tisdale agreed that knowing of that prior notice created an additional factor
that might more readily lead him to issue heightened negligence, as it informed
him that the mine “had reason to know.” Tr. 78. Further the mine is not trapped
in purgatory forever by receiving such a notice as, upon not receiving new citations
for that specific condition, they would be lifted from the heightened awareness
admonition . Tr. 79. While the mine protested that it had been “doing better,”
Tisdale informed that he didn’t know what they had been doing better, as
there had not been any air course inspections subsequent to that notice. Tr. 79-80.

Turning
to Ex. P 5, Tisdale stated that he did not “measure” the ribs referred to in
that exhibit as both the inby side in crosscut 13 and the outby side of the
crosscut were identified. Instead, as he expressed earlier, he estimated the
ribs on the outby side, measuring only the rib on the inby side. Tr. 81-82.

On
redirect, Tisdale was asked to read from Ex. P 7, his inspector notes, stating
from those notes, “[t]hese ribs were from the mine floor to the mine roof. The
largest loose rib at the second southwest was approximately seven feet tall. The
top strata fell with it that was measured for thickness. It was measured at
what would have been the top when it was standing, ten inches thick.” Those
notes, he confirmed, reflect what he observed at that time. Tr. 83-84. Though
he could not state the exact time when he made the notes, they were written at
the site of the observed conditions and while he was still underground. Tr. 85-86.

In
response to a hypothetical question from the Court inquiring if the inspector
were to put aside the issue of the mine being “on notice,” if he would still
have issued these orders as he did, Tisdale answered, he “would have marked the
negligence exactly the same as [he] did whether they were put on notice or not
because of everything that [he had previously] stated [in his testimony]. They
had reason to know. [The] [e]xaminer was there. The -- these are conditions
that have lasted for quite a while and they were obvious and extensive. Even if
they weren't put on notice, [he believed it would] support the negligence on it
regardless of whether they were already on [notice] or not.” Tr. 90. Tisdale
affirmed that also would be his position regarding the inadequate exam. Tr. 91.

Turning
around the question about Tisdale’s view that the conditions had existed for
three weeks, the Court asked if, based upon his same mining experience, the
condition could have lasted for less than a shift. Tisdale informed it would
not have existed for less than a shift. Tr. 92.

The
Secretary also called MSHA Inspector John N. Hohn. Prior to his employment with
MSHA he had a little more than eight years of mining experience, all of it in
underground mining. Tr. 97, 121. At the time of the matters in issue in this
proceeding he was an MSHA trainee. Id. Interestingly, as a trainee, Hohn
was instructed not to point out anything to the inspector he was
accompanying that day. Tr. 98.  Directed to Ex. P 3, he identified it as the
weekly examiner’s records of what they observed that day and whether they took
any corrective actions. Tr. 100. Essentially, Hohn confirmed observing the same
conditions that Tisdale saw. He stated that there were large gaps in the ribs
and “[w]hen Schwartze pried them down, they fell solid, falling across where
the walk path would be. They were then measured as they were sitting on the
ground.” Tr. 103-104. Tisdale then took the measurements and called them out to
him and he (i.e. Hohn) then recorded them in his notes. Hohn’s notes appear in
Exhibit P 8. [16]
Tr.104-105. Hohn stated that the problematic ribs were not difficult to see. Tr.

106. It was his estimate that one could detect these conditions from a distance
     of approximately 40 feet. Id.

Asked
if Schwartze challenged the accuracy of any of the measurements, Hohn related
that Schwartze stated, “How can I argue with the tape measurer?” [17]
Tr. 107. The Court would note that it is a fair and accurate summation to state
that Hohn’s testimony corroborated that of Inspector Tisdale’s. Hohn related
that Schwartze’s expressed grounds for mitigation were that “[h]e was asking
Inspector Tisdale not to write these as orders. ‘Orders are for bad mines. We
are not a bad mine. We try hard. We have been fixing things on belt lines and
travel roads. We've retrained our engineers and are doing a lot better.’” Tr.

116. These were not mitigating factors, Hohn informed, because “[m]itigating
     circumstances means that you've done something to prevent this from happening,
     or you've -- you've got some reason that's valid that it happened. This
     statement [i.e. Schwartze’s ]sound[ed] just like begging.” Tr. 117.

Hohn
then added that Tisdale gave the mine several opportunities to present mitigating
circumstances to him, informing, “There were a number of times that Inspector
Tisdale was offering Schwartze to provide some kind of mitigating
circumstances. And Tisdale stated that with the recent history, past
violations, the mine being placed on notice of higher negligence, examiners
having been retrained, and that the area being cited had been examined this
morning, he couldn't see any way out of writing a D [order] without mitigating
circumstances.” [18]
Id.

Under
cross-examination, Hohn agreed that he did not know what, specifically, the
mine had been put on notice about, other than for section 202(a) roof and rib
control. Tr. 123. Respondent’s point was that such a notice is broad and covers
a number of roof and rib matters, including roof spacing, and roof bolts. Tr.
123-124.

The
Respondent’s defense began with John Schwartze. He was the mine’s compliance
manager, at that time of these orders and occupied the same position at the
time of the hearing. Tr. 137. He has about 30 years of coal mine experience. Tr.

138. Questioned about the events of October 28, 2015, Schwartze informed that
     the primary escapeway is traveled by an examiner once a week. Tr. 140. Schwartze
     stated that the main south escapeway “starts in the pit or the surface area,
     and extends due south for 34-35 crosscuts” and that “the second southwest
     escapeway starts at the inby end of the main south.” Tr. 140-141. The second
     southwest starts where the main south ends. Tr. 141. He stated that these areas
     are subject to changing conditions due to weather, humidity and temperature. Id.
     These areas also function as air courses. These factors, he stated, can
     have an effect on roof and rib conditions and that those conditions were
     present in October 2015. Tr. 142.

Regarding
the orders in issue, Schwartze was asked about his notes associated with them. Tr.

143. Exhibit R 3. The notes reflect his summary of the day, which he wrote when
     he returned to the surface. Id. The inspection, he related, began with
     the main south. Focusing on the area at crosscut seven to eight, and whether
     Tisdale alleged any loose ribs, Schwartze remarked that “Tisdale stated he was
     going to issue a non S and S citation for loose ribs, crosscut seven to eight,
     entry six. And he made that decision because if nothing fell onto the walkway,
     it was unlikely that anyone would be hit.” Tr. 144-145. Schwartze advised that
     he pulled down the rib with his walking stick. He did not “remember anything”
     about the size of the material that came down. Tr. 145. Schwartze informed that
     if one does need to apply a lot of pressure when taking down a rib it will “most
     generally will fall straight to the ground.” Tr. 146. To the Court, rather than
     diminishing the hazard, Schwartze’s testimony indicates how susceptible the rib
     was to coming down.

Contradicting
the earlier testimony of both MSHA inspectors, Schwartze stated that he did not
observe either inspector taking measurements. Tr. 146. However, as to whether
either inspector related “numerical values related to estimates or measurements
of the rib size” to him, Schwartze informed only, “[n]ot -- not that I recall.”
Id. Attempting to support his lack of recollection, he maintained that
if such estimates had been stated, he would have entered them in his notes. [19]
Id.

Schwartze
agreed that the inspection then continued to the second southwest primary
escapeway. Referred to Ex. P 5 and a reference within that to crosscut number
13, Schwartze acknowledged that the inspector pointed out conditions involving
ribs in that area, but he could not recall how many problem ribs were
identified, responding, “[n]o, I just know that a citation was issued.” Tr.

148. For this too, he pulled the ribs down, but he had no recollection about
     their size and he didn’t take any measurements, nor could he recall how the
     ribs fell. Tr. 148, 150. As before, he did not remember either inspector taking
     notes. Tr. 150. Similarly, he asserted that if that had occurred, that would
     have been in his notes. Id. Schwartze added that the inspector made no
     mention that an order would result. Tr. 151.

Referring
to Exhibit E 5, and that exhibit’s reference to “two loose ribs at crosscut 25
and 26,” Schwartze agreed that ribs were pointed out to him at that location. Id.
However, he could not remember how many ribs were involved. He was asked to
pry them down and informed that in this instance they were hard to pull down,
breaking his walking stick in the effort. Tr. 152. He opined that, because of
that, the rib was not loose enough to fall on its own. Tr. 153.  The Court
would comment that there is no suggestion that a walking stick is the
equivalent of a rib pry bar.

Schwartze’s
notes contained no information about the size of that rib, and he did not
recall either inspector taking measurements there either and reiterated that
had they called any measurements out to him, he would have recorded that in his
notes. Id. Schwartze disclosed that the inspector then advised that
another citation would be issued and still another for an inadequate
examination. Tr. 153. No mention was made then that an order would instead be
issued. Tr. 154. As discussed below, the Court does not find that an inspector
must be wedded to his initial determination. Certainly, an inspector is
entitled to further contemplate the appropriate paper to be issued for a
violation.  This works both ways; if an order was contemplated first and then
the inspector reconsidered his initial view, perhaps upon being provided with
mitigating circumstances, it would not make sense to suggest that no reduced
violation could be entertained.  

Schwartze,
still reading from his notes, not on any independent recollection, stated that
upon reaching the surface Tisdale was going to issue a citation, not an order,
adding that “if things had been any worse, he would be considering a D order,
but not -- did not want to do that.” Tr. 155. However, he then acknowledged
that upon reaching the surface and while then in Schwartze’s office, Tisdale
told him he was issuing (d) orders. Tr. 156. Thus there was no extended delay
associated with Tisdale’s ultimate decision. Certainly within that short a time
frame an inspector is entitled to contemplate the correct action to take
regarding observed violations. Further, Schwartze admitted that Tisdale raised
the issue of a (d) order while they were still underground. Tr. 176.

The
Respondent elicited from Schwartze that significant distances were involved
within the main south and the second southwest escapeways and that Schwartze
knew of no reportable injuries resulting from adverse rib conditions. Tr. 158.

Not
exactly helping the Respondent’s case, when Schwartze was asked about Hohn’s
statements in Ex. P 8, at pages 37-38, and whether Schwartze actually made the
remarks attributed to him, he answered, he “probably would have participated in
the pre-shift meeting, but [he did not] remember saying this.” Tr. 159. So that
the import of his answer was made clear, the Court then inquired, “[s]taying on
that page you were just on there, it's -- you know by looking at, particularly
on page 38,that this Inspector Hohn has put quotation marks asserting that you
said effectively -- or part of it is ‘We dropped the ball. It is what it is. We
have to do better.’ It's my understanding from your testimony just a moment ago
that you're not claiming that Inspector Hohn has made this up, it's just that
you don't recollect. You might have said it. You might not have said it. You
just don't recall; is that fair?” To his credit, Schwartze responded candidly,
“That is correct.” Tr. 159-160.

Upon
cross-examination, Schwartze stated that as the compliance manager he is not ever
required to review weekly exams to determine if any hazards are needed to be
addressed. Tr. 163. In terms of his earlier testimony, that he didn’t see
Tisdale take measurements of the ribs, Schwartze undercut his earlier assertion,
as he confirmed that he couldn’t recall if he saw Tisdale take measurements or
not. Tr. 167. Schwartze confirmed that he did recall pulling down a number of
ribs during the inspection, but about their size, when asked if some were big
and some were small, he could only state, “[s]ome were bigger than others, yes.”
Tr. 167. The Court inquired further about this and Schwartze’s decision not to
take measurements, as per his remark the he “didn’t think it was necessary.” Tr.

169. When then asked why he felt it was not necessary, Schwartze’s answer was
     only he “just didn’t.” Tr. 169-170.

Asked
about his notes, made that day on October 28, 2015, Schwartze stated that he
made them because an order had been issued. This is his practice whenever an
order is issued and he is involved, as he was for these matters. Tr. 170-171.

Schwartze
also agreed that MSHA has told him that the mine is under heightened awareness
for 75.202(a). Tr. 177. However, consistent with his general lack of
recollection about these matters, except for his notes, he could not recall if
the mine was on heightened awareness for inadequate examinations before October
2015. Tr. 178. This is an appropriate point to note again that while the Court
found that Mr. Schwartze was candid, that does not mean that his testimony was
informative or persuasive on the issues before the Court.

The
Court inquired further about the essence of Schwartze’s testimony, first
referring to the rib issue along the main south primary escapeway and asking if
it was fair that his problem was that an order was issued. It asked whether
Schwartze essentially agreed that there was a violation, but it never should
have warranted an order being issued. Schwartze agreed. Tr. 184.

Turning
to the next order, and posing the same question, Schwartze agreed there were problems
with the ribs along the second southwest primary escapeway, but that a
citation, not an order should have resulted. Tr. 185.  However, he parsed that response
by adding “if that.” Id.   This, he explained, was because “some of the
ribs [the mine] pulled down “already had timber set in front of them.” Id. With
that qualification, however, Schwartze agreed that, for the ribs described in
Ex. P 5, there were problems for those ribs. Id. He then conceded that,
just based on that, and apart from the unidentified areas he said were
timbered, the remaining areas would be a violation of 75.202(a). Tr. 185-186. Following
that exchange, Schwartze then agreed that he did not dispute that the order
ending in 625 [Order No. 9036625] was also a violation. Tr. 186.

Though
he conceded the first two orders at least reflected violations of 75.202(a), Schwartze
did not agree that necessitated a finding that the examination had been
inadequate. Tr. 186. His reasoning was that “[w]hen -- when the examiner would
have traveled this area, he would have been by himself. Maybe he focused on
ribs, maybe he focused on something else. Two sets of eyes, we had six sets, so
there was more of us. We had time for a more thorough

examination.”
Tr. 186-187. Pressed about his perspective, the Court inquired if he was
contending that “it is reasonable that an examiner would have missed all of the
locations identified in those two orders and, therefore, it still would be
considered an adequate examination?” Schwartze affirmed that was his view, and
that it was based on two considerations; that an examiner has only one set of
eyes and that “maybe some of them didn't

exist
when the examiner was there.” Tr. 188. The Court does not buy into the multiple
sets of eyes argument, nor the suggestion that maybe some of the bad
ribs weren’t present. This is because of the number of hazardous ribs found as
expressed through the credible testimony of Tisdale.

The
Respondent then called Bill Sheffer who, in October 2015, was the compliance
supervisor at the mine. Tr. 191. He has some 38 years of mining experience. Id.
On the day in issue, Sheffer was working the second shift, meaning he would
be at the mine by 2 p.m. Upon his arrival he was advised of the three orders
and was directed to take pictures of the rib rolls. Tr. 193. The locations were
identified to him as “[t]he second southwest, the crosscut 13, and I thin[k] 25
to 26. And also in the main south, there was a seven to eight crosscut.” Tr.

194. Exhibit R 4 reflects photos Sheffer took that day. Asked if that
     represented all the pictures he took that day, he answered, “That's all I can
     remember.” [20]
     Id. Photos 1 – 3 were from the second southwest at crosscut 13. [21]
     Tr. 195. Asked if he saw any evidence of cleanup, Sheffer stated he didn’t
     remember any cleanup there. Sheffer identified a lifeline in Photo 3, in the
     top center, which appears as a thin rope or cable. By his estimate, the height
     of the roof in this area was about six feet. Sheffer maintained that the
     material that had been pried down did not extend into the area where the
     lifeline was located. Tr. 197. Photos 4, 5 and 6 were then discussed. Those
     were taken at the same location, “[o]n the second southwest. The crosscut was
     25, 26, 24 or 25 or something.” Tr. 198. He could not recall the exact
     location. Id. He also could not recall how many ribs there was evidence
     of being pried down. [22]
     

Continuing
with his testimony associated with those photos, he identified the lifeline in
photo 6, and stated that the material came right to the edge of the lifeline.
Tr. 199. The Court questioned Sheffer’s description in that regard, stating
that it appeared that the material was directly beneath the lifeline cone. The
Court offered Sheffer an opportunity to correct the Court’s perception of the
photo, if it was inaccurate but he only responded, “I'm mis -- this right here,
I don't know if that's just part of a bad picture or if that actually is the
rib right in the center.” Tr. 201. He added that, though from his own photo, he
did not recall. Tr. 201. However, Sheffer stated that the majority of pried
down material was between the rib and the water line, a point made because he
had earlier stated that miners don’t usually travel in the space between the
rib and the water line. Tr. 199. Again, referring to those photos, Sheffer
stated that he did not remember any evidence of cleanup “on the second
southwest, crosscuts

25 and
26.” Tr. 201. Moving to Photo 7, Sheffer identified it as “on the main south at
seven to eight,” [and therefore relating to Order No. 9036625, the non-S&S
order] stating that there had been evidence of cleanup there. Tr. 202.

Upon
cross-examination, Sheffer stated that the photos represented all of the areas
listed in the orders. Tr. 203. He admitted that he had not seen any of the
cited ribs prior to them being pulled down. Id.   For the first six
photos, he did not know if anyone had been down to those locations after the
orders had been issued and the time when he arrived. In contrast, with regard
to photo 7, he had been told that someone had been on the main south. Id. He
took no notes of the locations that he walked, nor of the locations that he
photographed and he was by himself when he took the photos. Tr. 204. Regarding
the water and power lines displayed within photos 4, 5, and 6, Sheffer stated
that there would be no maintenance associated with those lines, unless the
water line were to blow or if there was a problem with the power on the line. Tr.
206-207. [23]

When
compared to the testimony of Inspector Tisdale (and secondarily to trainee
Hohn), the Court was not persuaded by Sheffer’s testimony. Neither the
circumstances of his role and more particularly his testimony regarding the
photos aided the Respondent’s case. [24]

The
Respondent then called Aaron C. Meador, a mine examiner for the Respondent’s
mine. Tr. 222. He has been an examiner since 2008. Tr. 225. Meador works the
third shift, from 11 p.m. to 7 a.m. Id . He does pre-shift exams and
weekly exams. Tr. 223. The weekly exams involve the air courses. As noted, at
this mine there were entries that served both as escapeways and air courses. Id.
Two separate records were required to be made for those exams. Turning to the
Main south escapeway and the second southwest primary escapeway, both also are
air courses. Tr. 224. In the course of his exams, Meador will look for “[a]ny
and all hazards, specifically loose ribs,exposed bolts, loose roof, slipping
and tripping hazards, man door signs not up, lifeline being connected all the
way, oxygen deficiency, methane accumulates, ventilation short circuits,
adequate rock dust, things like that.” Tr. 225. Meador stated that, if he comes
upon a loose rib, he will try and pry it down, using his walking stick. If that
doesn’t accomplish the task, he will “flag it out” using red danger tape and he
will also report it. Tr. 226.

Focusing
then upon his exam of October 28, 2015, he was asked about Exhibit R 1 at page
9 and R 2. For the former, Meador identified it as the weekly examination of
emergency escapeways. Line 7 of R 1 reflects the exam for the main south and the
second southwest up to crosscut 84. Tr. 229.  R 2 is the “weekly examination
for hazards, conditions, violations, including test for methane. It's the
regular air course book .” Tr. 229. Line 4 reflects a listing in the air course
records that also accounts for this main south and second southwest to the crosscut
84 area. Tr. 229. That line records, “[i]ntake air course, pit to northwest main,
crosscut 10.” Id. Other locations he examined that day are also recorded
on the exhibit. Tr. 230.

Asked
if he observed any hazards from those exams, Meador affirmed, “Yes, on line 2
in the second southwest right return, I found a hazard of an exposed bolt,
entry number 11 to 12, crosscut 86,” on the second southwest, right intake. Tr.

231. And that was it, Meador found nothing else in terms of hazards. Tr. 233.

Then,
directed to the first eight pages of R 1, Meador stated they reflected the
other times he had done escapeway exams. Tr. 233. For the week beginning
September 1, 2105, Meador stated that exam reflects hazards he had found. At
that time he found, “no double cones for a

branch
line, and that was entry 6, crosscut 79 … [and he] found where there was no man
door sign, entry 6,crosscut 88.” Tr. 234. For the week of September 8 th ,
he found a hazard at the primary escapeway, crosscut 84, second southwest to
unit 3, in that there was a walkway needing cleraring. Tr. 235. Meador cleared
the walkway. Id. For the week of September 14 th Meador found
in the first northeast entry for crosscut 79 that there were no double cones
for a branch line and in the first northeast entry 4, crosscut 75, crosscut 82,
and crosscut 85, there were no spears on the lifeline. He corrected those
deficiencies. Tr. 237. For the week of September 21, 2015, he found that there
was a curtain left up. This presented a ventilation issue, which he rectified
by taking the curtain down.  Tr. 238. For the week of October 12 th ,
at the secondary escapeway from the second southwest crosscut 81 to unit 3, he
found some exposed bolts at the southeast entry 4 to 5 to crosscut 57 and entry
4 to 3, crosscut 82. Tr. 238. He corrected that hazard. Id. For the week
of October 19 th , Meador found another exposed bolt and the absence
of a man door sign in an entry, and he addressed those hazards. Tr. 239-240.

Meador
confirmed to the Court that in reviewing his examinations, as discussed during
his testimony, he did not find a single instance of a problem with any rib. Tr.

242. The Court considered that to be notable. Cross-examination continued that
     theme. Directed to Exhibit R 1, and page 9 and line 7, Meador read that the
     location was “the primary escapeway from the pit to second southwest crosscut
     84,” and that he found no conditions or hazards there. Tr. 244. Further, he
     agreed that he examined the primary escapeway of entries 6 and 7 and that had
     he pulled any ribs down in that location he would have noted that in his weekly
     exam log, and that no such notations about ribs were made. Tr. 244-245. Though
     he could not be specific about a date, Meador conceded that he was told about
     being more alert for rib problems prior to October 2015. Tr. 248.

Applicable
Law

Unwarrantable
Failure violations

As
the Commission has noted, “The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious
conduct by an operator in connection with a violation. In Emery Mining Corp .,
9 FMSHRC 1997, 2001 (Dec. 1987), the Commission determined that unwarrantable
failure is aggravated conduct constituting more than ordinary negligence.
Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable
care.” Id . at 2002-04; Rochester & Pittsburgh Coal Co ., 13
FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA , 52
F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test). Whether the conduct is “aggravated” in the context of unwarrantable
failure is determined by looking at all the facts and circumstances of each
case, including (1) the extent of the violative condition, (2) the length of
time that it has existed, (3) whether the violation posed a high risk 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 has been placed on notice
that greater efforts are necessary for compliance. Consolidation Coal Co .,
35 FMSHRC 2326, 2330 (Aug. 2013), citing Manalapan Mining Co ., 35 FMSHRC
289, 293 (Feb. 2013); IO Coal Co ., 31 FMSHRC 1346, 1350-57 (Dec. 2009); Cyprus
Emerald Res. Corp ., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds,
195 F.3d 42 (D.C. Cir. 1999); see also Consol Buchanan Mining Co. v. Sec’y
of Labor , 841 F.3d 642, 654 (4th Cir. 2016). These factors must be viewed
in the context of the factual circumstances of a particular case. Consolidation
Coal Co ., 22 FMSRHC 340, 353 (Mar. 2000).” American Coal, 39 FMSHRC 8, *9, (Jan. 2017).

Related
to that is the subject of negligence, the Commission has noted that it “evaluates
the degree of negligence using ‘a traditional negligence analysis.’ Mach
Mining, LLC v. Sec’y of Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016)
(citation omitted). Because the Commission is not bound by the Secretary’s
regulations addressing the proposal of civil penalties set forth in 30 C.F.R.
Part 100, the Commission and its Judges are not required to consider the
negligence definitions in 30 C.F.R. § 100.3(d). Id. at 1263-64.” Id. at
*14.

“Significant
and substantial” violations

As the Commission has stated, [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. See
Cement Div., Nat’l Gypsum Co ., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies
Coal Co ., 6 FMSHRC 1 (Jan. 1984), the Commission further explained: In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard -- that is, a measure of danger to safety -- contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature. *6 Id. at 3-4 (footnote
omitted); accord Buck Creek Coal, Inc. v. MSHA , 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria). Consol Pennsylvania Coal Co. ,
39 FMSHRC 1893, 1899 (Oct.
2017).

Discussion

In
addition to determining whether violations were demonstrated for these three
matters, something the Court finds was clearly established for each, the other
key issues involve whether unwarrantable failures were present for all three orders
and, for two of them, whether the violations were significant and substantial. The
Court, as noted at the outset of this decision, affirms all three and in all
particulars. [25]

The
Respondent maintains that no violation of the adequate examination standard, occurred,
as alleged in Order No. 9036624. Respondent notes that “[d]etermination of
compliance with Section 75.364(b) is an objective inquiry that asks whether the
operator acted reasonably prudently and conducted an adequate examination for
hazardous conditions and certain violations [and that] [t]he ‘reasonably
prudent person’ test considers whether ‘a reasonably prudent person, familiar
with the mining industry and protective purpose of the standard, would have
recognized [the condition at issue as a] hazardous condition that the standard
seeks to prevent.’” R’s Br. at 11. To support its contention, Respondent
asserts that Meador checked for “myriad hazards and conditions,” and if a loose
rib was encountered he would either pry it down or flag the condition. Id .
at 12.

The
problem is Meador’s professed diligent examination does not square with the
conditions Tisdale found. Though examiner Meador’s testimony went through the
few hazards he found, they were relatively isolated discoveries and not a one
involved loose ribs. Accordingly, the Court finds that Meador’s testimony actually
supported the Secretary’s case. The multiple weeks of his escapeway exams during
September and October of 2015 were notable for how little he found wrong over
that extended period of time. Though the Respondent argued that gaps in the
ribs can be difficult to discern, the inspector’s order asserted that the loose
ribs “were obvious to the most casual observer.” Order No. 9036624. The Court which
finds Tisdale’s testimony to have been credible overall, finds that the ribs
were as described by the inspector. It must be remembered that this was not
simply one missed loose rib. The inspector found, credibly in the Court’s
determination, at least seven loose ribs that day.  The violation is therefore
affirmed.

Addressing
the unwarrantable failure and high negligence determinations in the inspector’s
evaluation, as supported by his credible testimony, Respondent contends that
neither finding was proper. R’s Br. at 14. To support these arguments,
Respondent contends that the conditions were not extensive.  The evidence shows
otherwise. Further, that the ribs were pried down in short order does not address
either unwarrantable failure or the high negligence determinations made by the
inspector.  The Court has already addressed the argument that the inspector
reconsidered his initial view that a citation, not an order, was appropriate.

Respondent
then moves to the issue of examining whether there is a high degree of danger
in deciding if a violation constitutes an unwarrantable failure, contending
that no such high degree was present in this instance. R’s Br. at 17. For this
the Respondent points to relatively infrequent travel in the cited areas and because
of testimony that some of the rib material did not fall into the walkway.  R’s
Br. at 17-18.

The
Respondent also contends that the claim that the conditions existed for an
extended time was speculative. R’s Br. at 19. Arguing that the conditions were
not shown to have been growing over the three week period, Respondent contends
that the Secretary’s evidence was only the inspector’s “testimony in support of
[the] point.” Id . at 21.  The Court would comment that the inspector’s
opinion was derived from his considerable mining experience. It is simply not
serious to suggest that the numerous loose ribs the inspector found all
developed in the approximate nine hours that elapsed between the mine examiner’s
examination and the inspector’s observations.

It
is also contended by the Respondent that the “Secretary’s witnesses’ bald
assertions that Peabody was ‘on notice’ does not support the unwarrantable
failure findings.” R’s Br. at 21. To support that assertion, the Respondent
notes that the notice was nonspecific and that the standard involved, 30 C.F.R.
§ covers more than ribs as it also addresses roof and face support. Id.
But, it must be noted that ribs, roof and faces are of the same family of concerns;
each address areas where
persons work or travel and are aimed at protecting persons from falls from each
of the three. Indeed, the standard’s title itself informs that it addresses
“[p]rotection from falls of roof, face and ribs.”  Beyond that observation, the
inspector testified, credibly, as noted in the findings of fact that, putting
aside the prior notice issue, he still would have issued his unwarrantable
failure findings, irrespective of that notice. Further, when given the
opportunity to present mitigating factors, the Respondent came up empty.

Respondent’s
contentions regarding the S&S and “reasonably likely” determinations for Order
Nos. 9036623 and 9036624, the rib support and inadequate examination.

Those
orders, the reader will recall, relate to the rib conditions found by the
inspector along the two cited escapeways and the claim that the ribs were not
adequately supported to protect miners from rib falls. However, the Court notes
at the outset that, while Inspector Tisdale found that Order No. 9036623 was
S&S, he also found that his other order for inadequate support, per Order
No. 9036625, was not S&S. In the Court’s estimation these speak to the
inspector’s discernment that the conditions did not present identical risks and
it dispels the idea that the inspector simply reflexively designated all such
instances as S&S.  

In
any event, speaking to the third prong of Mathies , the Respondent
contends that “[i]n the context of a Section 75.202(a) violation, ‘[t]he
likelihood of an injury producing event must be evaluated by considering the
likelihood of two specific events occurring simultaneously, a rock or other
material falling from the roof [or rib] and the presence of a miner directly
underneath it.’” R’s Br. at 27. Reduced to its essence, the Respondent has in
essence argued that infrequent travel in the cited area negates an S&S
finding.  R’s Br. at 27-28. The Respondent also contends the material which
fell “did not substantially extend to the center of the entry, where miners
would be expected to travel.” Id . at 29. Further, the Respondent
maintains that the inspector’s testimony “does not support that any injury was
reasonably likely [as there was no evidence] … to demonstrate the likelihood
that a rib would fall at such a time when someone would be present.” Id at

29. Thus, Respondent argues that there was “no explanation to support that a
    fall of rib that would affect a miner would be reasonably likely.” Id at
    30.

Last,
the Respondent urges that the penalties sought by the Secretary are excessive,
observing that “[t]he Secretary proposed a specially assessed penalty of
$15,900 for Order No. 9036623, and penalties of $4,000 each for Order Nos.
9036624 and 9036625, which represented the statutory minimum for a Section
104(d)(2) enforcement action at the time of their issuance.”

Id. at 30. After noting that, when
before the Commission, penalties are imposed de novo and therefore that
it is not bound by the Secretary’s proposed penalties, Respondent adds that substantial
divergences from the proposed penalties require that the basis for such changes
be explained. Id . at 30-32.

In
each instance, the Respondent notes that the burden remains with the Secretary
to establish the appropriateness of the penalties sought and “when the Secretary
petitions for penalties above the normal formula or statutory minimum, … he has
the burden of establishing the existence of aggravating factors to justify such
an increase.” R’s Br. at 32. Focusing upon Order No. 9036623, for which the
Secretary has sought a special assessment of $15,900.00, instead of the
statutory minimum of $4,000.00, the Respondent contends that “[t]he Secretary
has offered no evidence that would show the propriety of penalties beyond [the
regular, in this instance, statutory minimum, assessment] amounts [and
accordingly] [w]hen the Secretary produces no justification for a specially
assessed penalty, it should be rejected.” Id . at 33-34.   If the Court
were to agree with the Respondent that “the unwarrantable failure and high
negligence findings for all three Orders are inappropriate [and consequently
that] … the unwarrantable failure findings were deleted, [ ] the statutory
minimum [would] no longer [be] applied. [26]
Id . at 34.

The
Respondent’s arguments in support of lower penalties only apply if the Court
agrees that aggravating factors were not demonstrated, and that the
unwarrantable failure and high negligence designations are not appropriate. The
Court does not agree with the Respondent’s perspective.  

The
Secretary’s post-hearing brief

The
Secretary asserts that the uncontroverted evidence establishes that five loose
ribs were identified during the inspection of the 2nd Southwest Primary
escapeway, which were gapped from the rib and that three loose ribs were
identified at the Main South Primary escapeway which were gapped from the rib. Sec.
Br. at 18-19. Ostensibly, these areas had been examined only 9 hours earlier. Also,
as the Secretary notes, no rib hazards were identified by the Respondent in the
previous two months of examinations. Id. at 19. The Court finds that,
rather than helping the Respondent’s position, those examination records, with
so few problems identified, detract from it.

The
Court is in agreement with the Secretary’s observation that the Respondent’s
objection was directed more to the issuance of orders, instead of citations,
with the latter being more palatable.

Regarding
the S&S finding for the 2nd Southwest Primary escapeway, as the Secretary
notes, those ribs, when pulled down, fell under the lifeline. As for the
S&S finding for the inadequate examination, the Secretary correctly
observes, quoting from Mach Mining, LLC , 32 FMSHRC 1375, 1381 (Sept.
2010) (ALJ) (“ Mach ”), “[I]f the condition of the escapeway was itself a
significant and substantial violation, then for the same reasons the failure to
document and report such conditions constitutes a significant and substantial
violation.” Sec. Br. at 23.  The Court agrees with the reasoning of the
administrative law judge in that decision and that these violations go hand in
hand.

Continuing
with its S&S analysis, the Secretary, and working from the Court’s finding
that all three violations were established, the second element, the measure of
danger to safety – contributed to by the violation, the twin failures – the failure
to support the ribs and the failure to note their presence – “resulted in the
mine not addressing hazardous conditions and therefore exposing miners to those
conditions. By allowing the hazardous rib conditions to continue in an area
that had not been adequately examined, Peabody put its miners at risk for harm.”
Id . at 24.

As
for the third prong of Mathies , a reasonable likelihood that the hazard
contributed to will result in an injury, the inspector credibly testified in
support of that element. As the Secretary contends, “[t]he failure to identify
loose ribs in examinations and the failure to control them are reasonably
likely to contribute to an injury.” Id. at 25.

For
the fourth Mathies element, that there is a reasonable likelihood that
the injury in question will be of a reasonably serious nature, the Secretary
notes that falling material, or falls and tripping on material on the ground
constitute such a reasonably serious injury. Id. In the Court’s view,
applying the Mathies analysis, establishes the S&S nature of the two
orders which made those assertions. While Mathies was met simply based
on the limited regular travel along these escapeways, it is also independently
satisfied when viewed from the use of these areas should the need for an escape
occur. One cannot predict when the need for an escapeway will arise. There is
nothing in this record which would suggest that, under continued normal mining
operations, the unsupported ribs would have been addressed, especially given
that no such problems were noted, even 9 hours earlier. Again, the inspector
displayed both reasonableness and discernment in assessing the unsupported ribs
by finding that only one of the two unsupported rib violations was S&S.

As
for the unwarrantable failure designations, which were applied to each of the
matters heard, the Secretary asserts that on the basis of Inspector Tisdale’s
observations of “obviously gapped ribs across two different escapeways, which
had not been discovered and corrected despite Peabody’s heightened notice
regarding ongoing issues it was having with respect to rib control [and
considering that] Inspector Tisdale reviewed Peabody’s inspection reports and
found the examiner had not identified these hazards a mere nine hours prior to
the MSHA inspection [and also that] …. the hazards had not been identified at
any time during the previous two months,” such confluence of factors requires
the Court to affirm the ‘unwarrantable failure’ classification.” Sec. Br. at
26-27. Although the Secretary points to the issuance of “30 citations over the
past two years for violations under 75.202(a),” in support of its unwarrantable
failure contention, the Court considers that aspect of the analysis to be
potentially problematic, as the status of those citations is unclear. Instead,
the Court looks to the testimony that the Respondent was put on notice about
the issue of roof, face and rib issue, per 30 C.F.R. § 75.202, not long before
the orders in this case.

Beyond
the history/notice issue, the Secretary points out the importance of examinations
in general, as a fundamental for safe mining. The Court agrees, seeing this as
an obvious but equally important responsibility, which is important to call
out. As the Secretary states, miners “rely on the information recorded in the
examination books to ensure that everything is safe for the oncoming shifts.  Examiners
are charged with a unique and singular responsibility to protect miners from
identifiable hazards, and it is paramount that mine examiners report these
hazards on the books so that mine management can eliminate the hazards and
minimize the potential for accidents.” Sec. Br. at 28-29.  

Conclusions
and Penalty Determinations

The
three violations involved here are obviously interrelated. Two involved
inadequately supported ribs along connected escapeways, while the other pertained
to the concomitant obligation to have the weekly inspections of those areas adequately
performed. Because all three were closely so related, it would be logically
inconsistent to determine that only one or two were unwarrantable failures. The
conditions should have been observed during the examinations, as they existed
for a considerable period of time, certainly over multiple shifts, if not
weeks. Such conduct clearly constitutes a serious lack of reasonable care.

The
same is true for the two orders involving a failure to adequately support the
ribs, as a serious lack of reasonable care occurred. The credible testimony from
Inspector Tisdale was clear – there were multiple instances of ribs, at least
seven, which had to be taken down. The inspector watched them being pried down
and then made reasonable tape-measured estimates of their size. As MSHA trainee
inspector Hohn credibly recalled, Schwartze remarked that the mine “dropped the
ball” and it had to do better. Later, Schwartze did not fully deny that he made
that admission.

Among
the seven factors the Commission has identified to determine if conduct is
“aggravated,” as set forth above, the Court finds that six were present. The
lone factor that could be debated was “whether the violation posed a high risk
of danger.” This factor requires some parsing. Given the critical nature for
mine safety that examinations play, the Court finds that, as to the inadequate
exam charge, there was a high risk of danger, given the number of inadequately
supported ribs and the length of time those conditions existed. As for that
factor’s application to the inadequate supported ribs themselves, the inspector
drew distinctions between the two, finding the ribs along the 2 nd
South West primary escapeway to be “reasonably likely” to result in an injury,
while determining that the ribs along the Main South primary escapeway, was
unlikely to result in an injury.

However,
there is no suggestion that the Commission has required all seven factors to
exist for an unwarrantable failure. Instead, that determination is to be made “by
looking at all the facts and circumstances of each case.” That is the approach
the Court took. The Court found that Inspector Tisdale was knowledgeable,
articulate and reasonable in his assessment of the two areas where he found
inadequately supported ribs.  His testimony was credible on those matters, whereas
the evidence presented by the defense was unpersuasive. Given the Court’s
findings of unwarrantable failure for all three orders, the “high negligence”
determinations are similarly sustained.

As
for the S&S determinations, applicable to the inadequate examination and
the inadequately supported ribs along the 2 nd South West primary
escapeway, the violations have been established.  The discrete safety hazard, a
measure of danger to safety, contributed by the violation, inadequate exams
being a linchpin to effective safety, provides such a measure when an exam
fails to note conditions “obvious to the most casual observer.” Regarding the
last two factors, the reasonable likelihood that the hazard contributed to will
result in an injury; and that the injury in question will be of a reasonably
serious nature, the Court finds that Inspector Tisdale’s testimony was
persuasive on those scores. Harlan Cumberland Coal, 20 FMSHRC 1275, 1278
(Dec. 1998). The idea that infrequent travel along the cited escapeways is
inconsistent with an S&S finding is rejected.

Summary

Having found that the violations
identified in the Orders were each established and that the Inspector’s
evaluation of the gravity and negligence and his finding of unwarrantable
failure were demonstrated and no cognizable mitigation advanced, [27]
the Court therefore finds, that upon application of the statutory criteria, the
penalties proposed by the Secretary should be applied. [28]

Order
No. 9036623  $15,900.00

Order No.
9036624  $ 4,000.00

Order No.
9036625  $ 4,000.00

Total
penalty imposed: $23,900.00

ORDER

It
is hereby ORDERED that the three Orders in this decision are AFFIRMED
as written. Respondent is ORDERED to pay civil penalties in the
total amount of $23,900.00 within 30 days of this decision. [29]

/s/
William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Arthur
M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

Emelda
Medrano, Esq. and Kevin Wender, Esq., Office of the Solicitor, U.S. Department
of Labor, Region 5- Chicago, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604

[1] On November 2,
2017, the Court approved a partial settlement for three citations involved in
Docket No. LAKE 2016-0120; Citation Nos. 9036721, 9036722 and 9036832. Order
No. 9036624 was the only remaining violation from that docket for which
evidence was presented at hearing. Also, at the hearing the Court announced
that it was approving the partial settlement for LAKE 2016-0140 for Order
Nos.9036701, 9033599, and 9033600, leaving Order Nos. 9036623 and 9036625 for
decision. The Decision approving partial settlement for LAKE 2016-0140 is being
issued on the same day as this Decision and Order.

[2] § 75.364,
titled, “Weekly examination,” provides at subsection (b), in relevant part:
“Hazardous conditions and violations of mandatory health or safety standards.
At least every 7 days, an examination for hazardous conditions and violations
of the mandatory health or safety standards referenced in paragraph (b)(8) of
this section shall be made by a certified person designated by the operator at
the following locations: (1) In at least one entry of each intake air course,
in its entirety, so that the entire air course is traveled. (2) In at least one
entry of each return air course, in its entirety, so that the entire air course
is traveled. … (5) In each escapeway so that the entire escapeway is traveled.
… (8) Weekly examinations shall include examinations to identify violations of
the standards listed below: (i) §§ 75.202(a) and 75.220(a)(1) - roof control …”

[3] 30 C.F.R. §
75.202, titled, “Protection from falls of roof, face and ribs,” provides at
subsection (a), “The roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons from hazards
related to falls of the roof, face or ribs and coal or rock bursts.”

[4] As noted, portions
of these two dockets were settled prior to the hearing’s commencement and the
Court announced that it was approving those settlements. Remaining for
disposition at the hearing from Docket No. LAKE 2016-0140 are Orders Nos. 9036623
and 9036625 and, from Docket No. LAKE 2016-0120, is Order No. 9036624. Tr. 10.

[5] Indicative of
the Inspector’s reasonableness, Tisdale added that “[t]here were several other
ribs as well that were loose, but with the way they fell and everything, I did
not put them in the citation.” Tr. 33. He did not include those conditions in
the order because “[t]he way that they fell, they would have fell in the
sloughage, where is not where miners would normally travel …” Id. However,
when questioned by the Court about these other conditions which he elected not
to include in his order, Tisdale advised that if he had only observed those
conditions, they would still have constituted a violation of 75.202(a). Tr. 40.
Further, all of the uncited ribs were pried down as the inspection proceeded. Tr.
42.

[6] Tisdale added
that his estimate of three weeks was derived, because of their size and his]
mining experience, informing, “[t]ypically they will grow -- if they're tight,
you can try to pry on them and they won't move and you can -- you can almost
steadily watch them get bigger and bigger.” Tr. 39.

[7] Although the
two cited escapeways have separate air courses, they are related as they “are
connected to each other … Once the main south stops, then it continues on as
the second southwest air course.” Tr. 60.

[8] Referring to
his order, Tisdale provided specifics about the locations for these problem
ribs, stating, “The rib between entries 6 and 7, crosscuts number 13 on the
inby side are gapped away from the rib approximately two inches. There are two
ribs on the outby side of this entry that are also gapped from the rib. And the
largest of these ribs measured approximately ten and a half feet in length and
up to ten inches thick. The ones that were on the outby side of this that are
described were where a miner had cut and left notches in the rib, and these
were also very large and very thick, but were not quite as long and large as
the one that's noted here as far as the measurements.” Tr. 52. In this instance,
Shwartze again told Tisdale that he agreed with the inspector’s measurements. Tr.
53.

[9] Though well
known, Tisdale reminded that the “Rules to live by” involve standards that are so
identified because there are “so many fatalities for that specific violation --
for that specific hazard in a mine, that we try to raise awareness. … There are
ten of them [i.e. ten rules], and we try to make sure all miners are aware of
them.” Tr. 54-55.

[10] The Court asked
about Tisdale’s noting a two inch gap, positing that it did not seem to be a
very significant gap and that it would be difficult to spot such a small gap. Tisdale
informed, “[m]y best example of that would be just like sitting in this
courtroom, … If you seen a crack in the wall that was approximately two inches
wide in a -- in a difference of what you see in this area, would you -- would
you notice it? I mean, you -- because it's going to be jagged. It's going to be
dark inside of it. Your -- it's going to stand out to you. We were walking the
same way as the examiner and your light is going to shine right on that rib and
it's going to create a shadow right behind it as well. It's going to stand out
just like it would in this room if there was a crack either in the ceiling or
if it was on the wall.” Tr. 55-56. Tisdale stated that with only a cap lamp,
such a two inch gap would still be obvious to detect. Tr. 56.

[11] Though the
order was based on the ribs, the examiner’s failure to see the obvious
conditions made the inspector worry “what else [the examiner is] not
identifying.” Tr. 65. However, the Court made it explicit that any violations
which may be upheld would be based on what the inspector observed, not on
speculation about other safety conditions which may have been overlooked.  Tr.
67.

[12] The Court later
inquired about the missing exam week, because there was at least a hint that
perhaps the Secretary did not want it included. As it developed this was not
the case; the Secretary did request the missing information. The Court
noted initially, “[w]e've got the week beginning of 10-26. We've got the week
beginning of 10-12, and it was pointed out that there's

a
missing week. Can either counsel, as officers of the court, explain to me this
--.” The Secretary informed that it did not believe it had the missing page but
that it had been requested. Tr. 160. Respondent’s Counsel then informed that it
had not provided the missing page to the Secretary. Tr. 161. He then advised
that the missing page would be provided during the hearing, as part of a
planned exhibit for the Respondent covering two months of such exam records. Id.

[13] Later in the
hearing the mine’s Schwartze would testify about travel frequency in the
escapeways in normal mining operations, as “[a]ll miners are required to travel
the escapeways -- the primary escapeway twice a year in practice just so they
know how to get out, and they travel the secondary escapeway twice a year. Actually
(referring to the secondary escapeway) they travel it all the time ,
but it's -- record is kept of it twice a years.” Tr. 140 ( italics
added).

[14] The Court does
not find this argument persuasive. The fact that there are many types of exams
required; pre-shift, belts, weeklies of escapeways and air courses, seals and
permissibility exams, is an odd, and ineffective, way to defend the failures
identified in these two orders.

[15] Again, the
Court does not find this argument persuasive. The fact that the notice
pertaining to 75.202(a) applies to roofs, as well as ribs, hardly constitutes
any shortcoming of the notice. Following that line of logic would mean that the
specific area would need to have been cited before. The “notice” is meant to
wake up the mine to be attentive to all roof and rib issues.

[16] Hohn, looking
at his notes, remarked that for those ribs he had “one that was six foot long,
four foot tall, and eight inches thick. And … one recorded that was four foot
tall, three-and-a-half foot by six inches thick.” Tr. 105. During this time
Schwartze at times held the freestanding end of the tape measurer and at other
times was prying down ribs. Tr. 106.

[17] Tisdale’s
measurement process was also explained by Hohn: “[o]nce they were pried down,
the ones that fell, they were still a big solid piece. He'd – Inspector Tisdale
measured the solid piece and said that as far as he saw it, measuring the extra
broken around the perimeter was a bit of benefiting, and that would just give
the operator something to argue about, so he measured the solid slab of the
rib.” Tr. 107. Measurements were not taken before the ribs were pried down
because of the obvious safety hazard of such an action. Id.

[18] In fact, Hohn
stated that he overheard Schwartze tell another miner who asked what Tisdale
was expecting of the examinations, that “ ‘These were not small, unnoticeable
cracks. These were obvious. We dropped the ball. It is what it is. We have to
do better.’” Tr. 119, and Hohn’s notes, Exhibit P 6 at p. 38.

[19] The Court did
express that it found Schwartze to be honest and candid. However, that said, he
had no useful memory of the events at all. As stated during the hearing, the
Court remarked it, “appreciate[d] [ ] [Schwartze’s] candor, that you're being
honest in your answers. I have the impression that in many respects you don't
remember the details of these three matters and that you have to rely almost
entirely upon your notes as opposed to on your own; is that fair? Is that
accurate?” Schwartze responded, “ I -- I think it is, sir.” Tr. 154. As
discussed later, against the credible testimony of Inspector Tisdale,
primarily, and as augmented by trainee inspector Hohn, when evaluated upon
consideration of Schwartze’s testimony and the other witnesses for the
Respondent, as set forth below, the Secretary established the violations under
the applicable burden of proof.

[20] When asked by
the Court if he took other photos of the ribs that day, Sheffer again stated
that he didn’t recall taking other photos, but admitted it was possible other
pictures were taken. Tr. 212-213.

[21] All three of
those photos are of the same location and the same rib. The arrow depicted
pointing right is outby. The rib shown is on the inby side of the crosscut. Tr.
195-196.

[22] Looking at
photo 4, he believed there was rib down on the left. For Photo 6 he stated it
was both ribs, “more or less the center of the entry,” he could not tell if a
rib had been recently pried down from that photo. Tr. 198.

[23] When Sheffer
was asked whether at that time, he was aware of Peabody being placed on heightened
notice or heightened enforcement for 202(a) for rib conditions, he responded
that he did not remember. Similarly, when asked if he recalled if the mine was
on heightened notice or heightened enforcement for inadequate examinations, he
did not remember. Tr. 207.

[24] At the
conclusion of his testimony, the Court noted that Sheffer was “a nice gentleman”
and wished him well. Those comments, while sincere, did not mean that the Court
found his testimony persuasive.

[25] While the Court
read and fully considered the parties post-hearing briefs and the reply briefs,
it does not believe it is necessary to discuss with particularity each
contention raised.  

[26] The
Respondent’s contends that if its arguments were adopted, “Order No. 9036623 would
have been assessed a penalty of $3,493, Order No. 9036624 would have been
assessed a penalty of $2,976 and Order No. 9036625 would have been assessed a
penalty of $705.” Id.

[27] The Secretary
proved all elements of the alleged violations by a preponderance of the
evidence. RAG Cumberland Res. Corp ., 22 FMSHRC 1066, 1070 (Sept. 2000)

[28] The other
statutory factors were duly considered. From the parties’ stipulations, it is
noted that the Francisco Underground Pit mine site worked 2,935,577 tons during
the period of January 1, 2015 to December 31, 2015 and that the Respondent had
515 previous violations in the 15 month period ending October 28, 2015.. (Stipulations
6 and 7; Sec’y Ex. P-1). 7. The factors of good faith and ability to continue
in business did not impact the penalty determination.

[29] 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.