Secretary of Labor v. Peabody Midwest Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued Peabody Midwest Mining five section 104(d)(2) orders involving loose ribs, an inadequate weekly examination, extensive combustible accumulations along a belt line, an inadequate belt examination, and inaccurate preshift records. Judge Priscilla M. Rae found 35 loose ribs across about 4,000 feet and credited evidence that the condition was longstanding, obvious, and known to management. She also found widespread coal and float-coal-dust accumulations near a misaligned belt and held that the examination and recordkeeping failures left those hazards uncorrected and understated. The Judge affirmed every violation as S&S, high negligence, and an unwarrantable failure, including findings that the belt-related hazards could lead to a fire affecting up to 30 miners. She declined MSHA's special assessment for the rib order because the Secretary did not provide case-specific support for the enhancement. Total penalties were reduced from $203,963 proposed to $170,500.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.364(b)(2), 75.400, 75.362(b), and 75.360(g)
• Outcome: All five orders and their S&S, high-negligence, and unwarrantable-failure findings were affirmed; total penalties were reduced to $170,500.
• Key point: Longstanding rib and belt hazards, combined with inadequate examinations and inaccurate records, supported unwarrantable-failure findings even though the Judge rejected one specially assessed penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

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

February 15,
2019

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

PEABODY
MIDWEST MINING, LLC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2016-0421

A.C.
No. 12-02295-416252

Docket
No. LAKE 2017-0178

A.C.
No. 12-02295-430695

Docket
No. LAKE 2017-0382

A.C.
No. 12-02295-434929

Mine:
Francisco Underground Pit

DECISION AND
ORDER

Appearances:               Edward
B. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for the Petitioner,

Arthur
M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for the
Respondent.

Before:                        Judge
Rae

I.                   
INTRODUCTION

A.     Statement of the
Case

These cases are before me upon
three petitions for assessment of civil penalties filed by the Secretary of
Labor (“the Secretary”) pursuant to § 105(d) of the Federal Mine Safety and
Health Act of 1977, as amended, (“the Mine Act” or the “Act”), 30 U.S.C. §
815(d). At issue are five § 104(d)(2) orders issued to mine operator Peabody
Midwest Mining, LLC (“Peabody”) as a result of two separate inspections
conducted by authorized representatives for the Department of Labor’s Mine
Safety and Health Administration (MSHA).

A hearing was held in Evansville,
Indiana, at which time testimony was taken and documentary evidence was
submitted. The parties also filed post-hearing briefs. I have reviewed all of
the evidence at length and have cited to the testimony, exhibits, and arguments
I found critical to my analysis and ruling herein without including a detailed
summary of the testimony given by each witness.

After consideration of the
evidence and observation of the witnesses and assessment of their credibility,
I uphold the five § 104(d)(2) orders as written for the reasons set forth
below.

B.      Stipulations

The parties have stipulated to the
following facts:

1. Peabody Midwest
   Mining, LLC, is an “operator” as defined in § 3(d) of the Federal Mine Safety
   and Health Act of 1977, as amended (Mine Act), 30 U.S.C. §803(d), at the coal
   mine at which the citation at issue in these proceedings was issued.

2. The Francisco
   Underground Pit mine is operated by Respondent in this case, Peabody Midwest
   Mining, LLC.

3. The Francisco
   Underground Pit mine is subject to the jurisdiction of the Mine Act.

4. At all relevant
   times, the products of the Francisco Underground Pit mine entered commerce or are
   products that affect commerce, within the meaning of the Mine Act, 30 U.S.C. §§
   802(b) and 803.

5. These
   proceedings are subject to the jurisdiction of the Federal Mine Safety and
   Health Review Commission and its designated Administrative Law Judges pursuant
   to §§ 105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.

6. 30 C.F.R. §
   75.202(a) is a mandatory health or safety standard as that term is defined in §
   3(l) of the Mine Act, 30 U.S.C. § 802(l).

7. 30 C.F.R. §
   75.364(b)(2) is a mandatory health or safety standard as that term is defined in
   § 3(l) of the Mine Act, 30 U.S.C. § 802(l).

8. 30 C.F.R. §
   75.400 is a mandatory health or safety standard as that term is defined in §
   3(l) of the Mine Act, 30 U.S.C. § 802(l).

9. 30 C.F.R. §
   75.362(b) is a mandatory health or safety standard as that term is defined in §
   3(l) of the Mine Act, 30 U.S.C. § 802(l).

10. 30 C.F.R. §
    75.360(g) is a mandatory health or safety standard as that term is defined in §
    3(l) of the Mine Act, 30 U.S.C. § 802(l).

11. In Docket LAKE
    2016-421, payment by Respondent of the proposed penalty of $5,054.00 will not
    affect Respondent’s ability to remain in business.

12. In Docket LAKE
    2017-178, payment by Respondent of the proposed penalty of $154,363.00 will not
    affect Respondent’s ability to remain in business.

13. In Docket LAKE
    2017-382, payment by Respondent of the proposed penalty of $44,546.00 will not
    affect Respondent’s ability to remain in business.

14. The individual
    whose signature appears in Block 22 of the Orders at issue in these proceedings
    was acting in his official capacity and as an authorized representative of the Secretary
    of Labor when the citation was issued.

15. A duly
    authorized representative of the Secretary served the subject orders and any termination
    thereof upon the agent of the Respondent at the date and place stated therein, as
    required by the Mine Act, and the citation and termination may be admitted into
    evidence to establish its issuance.

16. The orders
    contained in Exhibit A attached to the Petitions for Assessment of Penalty for these
    dockets are authentic copies of the orders at issue in this proceeding with all
    appropriate modifications and terminations, if any.

17. The exhibits
    listed in each party’s List of Witnesses and Exhibits are true and accurate copies
    of the originals.

Joint Ex. 1; Tr. 7. [1]

II.                
BACKGROUND

Peabody Midwest Mining, Francisco
Underground Pit is a large underground bituminous coal mine located in
Francisco, Indiana. MHSA inspector Ryan Seitz [2]
conducted a quarterly inspection of the mine on June 7, 2016 at the 3rd
Southwest Sub-Main R/S Return Entry #8. During his examination, he found what
he determined to be hazardous rib conditions for which he issued an order,
specifically at crosscuts #64-65 and #89-90 as a violation of 30 C.F.R. §
75.202(a). Upon an inspection of the weekly examination books pertaining to
this entryway, he found the hazardous conditions were not properly noted in the
examination record, nor were the corrective measures taken by the operator to
adequately control the problem. As a result, he issued an order in violation of
30 C.F.R. § 75.364(b)(2) for an inadequate weekly examination of the entryway. Both
of these orders were assessed as reasonably likely to result in permanently
disabling injuries to one person, significant and substantial (S&S), with
high negligence, and an unwarrantable failure to comply with the applicable
mandatory standards. The proposed penalty for the violation of § 75.202(a) has
been enhanced by a special assessment by MSHA.

On September 20, 2016, MSHA inspector
Nicholas Vandergriff [3]
conducted a quarterly inspection of the mine at the 4th SE Belt Entry. The belt
in this entry had been recently converted from two separate belts to one belt measuring
almost one mile long. Along the belt, Vandergriff observed accumulations of
coal, belt pressings, and float coal dust in what he determined to be hazardous
dimensions over an extensive number of crosscuts. When compared to the
examination record book, he found the hazards listed as Observed and Corrected
did not correspond with the extensive conditions he observed underground. As a
result, he issued three orders that day - one for accumulations of combustible
materials, one for an inadequate pre-shift/on-shift examination, and the last
for improper recordkeeping of pre-shift examination results. Each of these
orders was assessed as reasonably likely to result in fatal injury to 30
persons, S&S, with high negligence, and an unwarrantable failure to comply
with mandatory health and safety standards.

Peabody contests each violation
and asserts that each should be dismissed. In the alternative, it argues that
none of the violations should be found as significant and substantial, of high
negligence, or an unwarrantable failure. It also argues that there was no basis
provided by the Secretary for the specially assessed penalties.

III.             
LEGAL
PRINCIPLES

A.     Standard of
Proof

A mine operator is strictly liable
for Mine Act violations that occur at its mine. Spartan Mining Co ., 30
FMSHRC 699, 706 (Aug. 2008). The Secretary bears the burden of proving any
alleged violation by a preponderance of the credible evidence. In re:
Contests of Respirable Dust Alteration Citations , 17 FMSHRC 1819, 1838
(Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp.,
153 F.3d 1096 (D.C. Cir. 1998).

B.      Significant and
Substantial and Gravity Findings

A significant and substantial
violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d). A violation is properly designated
significant and substantial “if, based upon the particular facts surrounding
the violation, there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co. , 3 FMSHRC 822, 825 (Apr. 1981).

In Mathies Coal Company ,
the Commission set forth the following four-part test to determine whether a
violation is properly designated significant and substantial:

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
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC , 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor , 861
F.2d 99, 103 (5th Cir. 1988); Consolidation Coal Co. v. FMSHRC , 824 F.2d
1071, 1075 (D.C. Cir. 1987).

The Commission has stated that the
focus of the Mathies analysis “centers on the interplay between the
second and third steps.” Newtown Energy, Inc ., 38 FMSHRC 2033, 2037
(Aug. 2016). The second step “addresses the extent to which the violation
contributes to a particular hazard” and “is primarily concerned with likelihood
of the occurrence of the hazard against which a mandatory safety standard is
directed.” Id. Thus, the second step requires the judge to first
identify the hazard, which the Commission defines “in terms of the prospective
danger the cited safety standard is intended to prevent,” then determine
whether the violation sufficiently contributed to this hazard by considering “whether,
based upon the particular facts surrounding the violation, there exists a
reasonable likelihood of the occurrence of the hazard.” Id. at 2038. At
the third step, the judge must determine whether the occurrence of the hazard
would be reasonably likely to result in injury, assuming the hazard were to
occur. Id.  

The significant and substantial
determination must be based on the particular facts surrounding the violation
at issue. Peabody Coal Co ., 17 FMSHRC 508, 511-12 (Apr. 1995); see,
e.g. , Wolf Run Mining Co ., 36 FMSHRC 1951, 1957-59 (Aug. 2014). Evaluation
of the reasonable likelihood of injury should be made assuming “continued
normal mining operations,” U.S. Steel Mining Co ., 6 FMSHRC 1573, 1574
(July 1984), i.e., the evaluation should be made “in consideration of the
length of time that the violative condition existed prior to the citation and
the time it would have existed if normal mining operations had continued.” Black
Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012); Rushton Mining Co., 11
FMSHRC 1432, 1435 (Aug. 1989). The inspector’s judgment is also an important
element of the significant and substantial determination. Wolf Run , 36
FMSHRC at 1959; Mathies , 6 FMSHRC at 5.

The significant and substantial
nature of a violation and the gravity of the violation are not synonymous,
although they are frequently based on the same or similar factual
circumstances. Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept.
1987). The Secretary assesses gravity in terms of the reasonable likelihood of
injury, the severity of the expected injury, the number of persons affected,
and whether the violation is significant and substantial. The Commission
generally expresses gravity as the degree of seriousness of the violation. Hubb
Corp ., 22 FMSHRC 606, 609 (May 2000); Consolidation Coal Co ., 18
FMSHRC 1541, 1549 (Sept. 1996). The Commission has pointed out that the focus
of the gravity inquiry “is not necessarily on the reasonable likelihood of
serious injury, which is the focus of the significant and substantial inquiry,
but rather on the effect of the hazard if it occurs.” Consolidation , 18
FMSHRC at 1550; see also Harlan Cumberland Coal Co ., 12 FMSHRC 134,
140-41 (Jan. 1990) (ALJ) (explaining that some violations are serious
notwithstanding the likelihood of injury, such as a violation of an important
safety standard, a violation demonstrating recidivism or defiance on the
operator’s part, or a violation that could combine with other conditions to set
the stage for disaster).

C.      Negligence and
Unwarrantable Failure

Negligence is conduct that falls
below the standard of care established under the Mine Act. Under the
Secretary’s regulations, an operator is held to a high standard of care and is
required to be on the alert for conditions and practices that may cause
injuries and to take necessary precautions to prevent or correct them. 30
C.F.R. § 100.3(d). The Secretary defines high negligence as having occurred in
connection with a violation when “[t]he operator knew or should have known of
the violative condition or practice, and there were no mitigating
circumstances.” Id. ; § 100.3, Table X. High negligence “suggests an
aggravated lack of care that is more than ordinary negligence.” Topper Coal
Co., 20 FMSHRC 344, 350 (Apr. 1998). The Commission generally assesses
negligence by considering what actions a reasonably prudent person familiar
with the mining industry, the relevant facts, and the protective purpose of the
cited regulation would have taken under the circumstances. Leeco, Inc .,
38 FMSHRC 1634, 1637 (July 2016); see also Brody Mining, LLC , 37
FMSHRC 1687, 1701-03 (Aug. 2015) (explaining that Commission ALJs “may evaluate
negligence from the starting point of a traditional negligence analysis” rather
than adhering to the Secretary’s Part 100 definitions); accord Mach Mining,
LLC v. Sec’y of Labor , 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). 

More serious consequences can be
imposed under the Mine Act for violations that result from the operator’s
unwarrantable failure to comply with mandatory health or safety standards. The
unwarrantable failure terminology is taken from § 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. The Commission has determined that unwarrantable
failure is aggravated conduct constituting more than ordinary negligence. Emery
Mining Corp. , 9 FMSHRC 1997, 2001-04 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id.
at 2003-04; Rochester & Pittsburgh Coal Co. , 13 FMSHRC 189, 193-94
(Feb. 1991); Buck Creek Coal, Inc. v. FMSHRC , 52 F.3d 133, 136 (7th Cir.
1995).

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 or mitigating
circumstances exist. These factors often include (1) the extent of the
violative condition, (2) the length of time 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 prior to the issuance of the
violation that greater efforts were necessary for compliance. See CAM
Mining, LLC , 38 FMSHRC 1903, 1909 (Aug. 2016); Wolf Run Mining Co. ,
35 FMSHRC 3512, 3520 (Dec. 2013); IO Coal Co. , 31 FMSHRC 1346, 1350-57
(Dec. 2009). Because supervisors are held to a high standard of care, another
important factor supporting an unwarrantable failure determination is the
involvement of a supervisor in the violation. Lopke Quarries, Inc. , 23
FMSHRC 705, 711 (July 2001).

The factors listed above must be viewed
in the context of the factual circumstances of a particular violation, and it
is not necessary to find that all factors are relevant or deserving of equal
weight in order to determine that the violation is unwarrantable. Wolf Run ,
35 FMSHRC at 3520-21; E. Assoc’d Coal Corp. , 32 FMSHRC 1189, 1193 (Oct.
2010); IO Coal , 31 FMSHRC at 1351. However, all factors that are
relevant should be considered. San Juan Coal Co. , 29 FMSHRC 125, 129
(Mar. 2007).

IV.             
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

A.    
Order
No. 9101931 (Docket No. LAKE 2017-0178)

1. Finding
   of Facts

Order No.
9101931 was issued by MSHA Inspector Ryan Seitz on June 7, 2016 during an E01
inspection of the Francisco Underground Pit. Tr. 25-26. Upon arrival at the
mine, Seitz reviewed the inspection tracking documents to determine the areas
of the mine that still required inspection. Tr. 29. He then traveled to the 3rd
South West Sub-Main Return Entry #8 (“return entry”) with Matt Kamman, a mine
employee escort, to begin the day’s inspection. Tr. 28. Immediately prior to
their arrival, Jim Robinson, the weekly examiner, began an examination of the
same section. Throughout the inspection, Seitz and Kamman encountered Robinson
as he examined the area concurrently. Tr. 30-31.

Immediately upon
reaching the return entry, Seitz observed loose ribs and loose coal material on
the ground in the number 8 entry. Tr. 32; Ex. S-3. No timbers or floor-to-roof
support was present in the areas of concern. Seitz questioned Robinson on how
he identified hazards and how they are abated and communicated to management. As
Seitz noted in his inspection notes taken contemporaneously with the
inspection, Robinson stated there were too many hazards for one person to fix
and he (Robinson) had another set of large air courses that he must examine
during the same shift. Ex. S-3. Seitz testified that as he continued his
examination of the number 8 entry, he remarked to Kamman and Robinson, “I’m
starting to see some areas here I don’t really like.” Tr. 32.

As Seitz and
Kamman walked inby, they observed Robinson, three or four crosscuts ahead of
them, prying down loose ribs and hanging red flags. Tr. 34. Seitz noted at
hearing that no red flagging, timbers, or any other stabling mechanisms were in
place prior to Robinson’s work. Tr. 34-35. Seitz continued to observe
sloughage, or coal material that comes down off the rib or ceiling, as he
walked inby. The pathway measured 18 feet long and 6 feet wide. Tr. 35. Seitz
rejoined Robinson at crosscut 80 and they continued together to crosscuts
89-90. Upon further discussion with Robinson, Seitz was informed that during
the two years in which Robinson had been examining this area, the conditions
observed by Seitz had existed. Robinson stated that it had always been “a
problem area.” Tr. 94. In fact, Robinson told Seitz that the conditions were
the same in 2013 and 2014 when the area was actively mined. Tr. 39. Robinson
further informed Seitz that he had sat down with John Devers, Peabody’s General
Manager, about 30 days prior and voiced his concerns to Devers about the
conditions. Robinson said he also told Devers that an entire crew comprised of
30 to 40 miners armed with slate pry bars would spend an entire shift prying
ribs down and it would not get them all. Robinson asked Devers, in fact, to
take him off this examination route citing personal reasons but told Seitz the
real reason was because he didn’t want to be in the area or sign the
examination record book. Robinson characterized Dever’s response as minimal. Ex.
S-3. Based upon his initial observations, Seitz informed Kamman and Robinson
that he would be issuing a 104(a) citation because of the loose ribs. Robinson
proceeded alone to continue his inspection. Tr. 33.

Upon continuing
his inspection of the entryway, Seitz observed loose ribs and rib rash
throughout the entire entry. He testified that most of the ribs in the area
measured around 7.5 feet long, 4 feet high and 12 inches wide and gapped
approximately 9 to 12 inches away from the wall. He observed rock dust within
the gap behind these ribs, which indicated the conditions had been present for
some period of time. Tr. 38. Additionally, Seitz stated that he did not observe
any tire tracks from a scoop or a hose line for a trickle duster in the area. There
were no bags of rock dust present for use in hand dusting and neither Kamman
nor Robinson mentioned anything about dusting methods used. Tr. 37. All of
these factors led Seitz to the conclusion that the conditions were not new and
had existed for an unreasonably long period of time without corrective action
taken. Tr.37-41. Due to the number of loose ribs present and the lack of
corrective action taken, coupled with Robinson’s comments concerning how long
the conditions had existed, Seitz informed Kamman that he was elevating the
citation to a 104(d) order. [4]
Ex. S-3.

Matthew Kamman,
a certified foreman, testified on behalf of Peabody. He contended that rib
conditions change rapidly in a mine and the conditions observed by Seitz had
occurred recently. Tr. 109, 126. Kamman stated that he worked in the area when
it was actively mined and described that a mud seam ran through the ribs
causing them to “flake off some” and explained that they would get worse as
mining advanced. He stated that the ribs were scaled and extra bolts were added
as needed. Tr. 108. He had not examined this cited air course recently. Tr. 109,

120. Kamman asserted that Seitz only found two loose ribs in the entire entry
     and otherwise found no violations. Tr. 111-14. He denied the comment contained in
     Seitz’s notes that he said the ribs were “bad” when the area was actively mined
     in 2013 and 2014. Tr. 115, Ex. S-3, p. 22. Kamman confirmed that the black area
     left when a rib has been pried down will continue to appear black until the
     area has been rock dusted or a long period of time passes. Tr. 122. I find Kamman’s
     denial of his comment to Seitz is not credible as Seitz recorded it in his
     notes contemporaneously with the event. I also find his minimization of the
     number of bad ribs found by Seitz to be unreliable as self-serving and
     contradicted by Seitz’s very specific listing in his notes of the crosscuts
     affected and by the measurements he took. Ex. S-3.

Aaron Meador, a
certified foreman, testified for Peabody. As an examiner of the cited entry, he
stated that he would carry a pry bar with him and scale any loose ribs while he
was making his examination. If a rib could not be addressed by him, he would
hang a red danger flag. Tr. 129-30. He claimed there was a rock dust bore hole
into which large quantities of dust would be dumped into the intake air course
adjacent to the return causing dust to be vented through the return. Tr.
130-31. He claimed he would enter the specific location of any loose ribs he
found in the examination book whether or not he pried them during his
examination. However, he stated that at the time of this inspection it was not
common practice to specifically identify the location where corrective action
was taken during the pre-shift examination. It was only after being issued a
citation by MSHA for not doing so that it became common practice. Tr. 133-34. Meador
noted loose ribs recorded in numerous examination book entries and confirmed
that the examination books were countersigned by management. Tr. 134-39, 144;
Ex. S-4. I find Meador’s testimony that he corrected all loose ribs during his
examination to be contradicted by the sheer number of loose ribs found by Seitz
and the fact that it took nine miners 24 hours to abate the order. Ex. S-1. It
is also contradicted by the credible testimony of Seitz as confirmed by his
inspection notes taken contemporaneously with the event.

John Devers,
General Manager, testified that Robinson left Peabody in July 2016 and that he
had never spoken to Devers about the rib conditions. Tr. 150. He maintained
that Robinson and he never spoke of work – only personal things. Tr. 154. He
also attributed the loose ribs to the mud seam and stated that it made the ribs
less stable than elsewhere in the mine. Tr. 154. I find Devers’ testimony to be
unreliable. There is no objective reason why Seitz would record a conversation
he had with Robinson on the day of the inspection in such detail had it not
taken place. It is also corroborated by the fact that shortly after this event,
Robinson left the employment of Peabody when Devers did not respond to his complaint
about the condition of the ribs and his request to be relieved of his duties to
examine this entryway.

2. The Violation

The narrative section of Order No.
9101931 states that the 3rd South West Sub-Main R/S Return Entry #8 from
crosscuts 64 to 90 were found to have rib rash and multiple loose ribs on both
rib lines exposing the weekly mine examiner to the hazard of being crushed by
rib rolls and/or rib failure, in violation of 30 C.F.R. § 75.202(a). Ex. S-1.

The violation is assessed as high
negligence, S&S, and an unwarrantable failure affecting one person and
reasonably likely to result in permanently disabling injuries. The Secretary
has proposed a specially assessed civil penalty of $40,400.00 as the cited
standard is identified as a “Rule to Live By” standard and the most frequently
cited as causing fatal accidents. Ex. S-5.

This regulation mandates: “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.” 30 C.F.R. § 75.202(a).

Respondent argues that the violative
conditions found by Seitz occurred at some time after the last examination. Further,
it asserts that a violation did not occur because it took reasonable efforts to
control the loose roof and ribs in the return entry as established by its
witnesses. I do not find Respondent’s argument to be persuasive. While it is
true that weekly examiners recorded that they had identified and pried down some
loose ribs in this area, the credibility of this examination record is
questionable because the examiners failed to specifically record the areas
where loose ribs were located and pried down, as required. Tr. 44; Ex. S-4. Furthermore,
Seitz contradicted the accuracy of the examination records based on his
observations of the entry. He saw no evidence of recent pry-downs. Instead he
observed dark gray rock dust on the floor, no evidence of rock dusting
equipment tracks, or material for hand dusting. The gap identified by Seitz was
obviously not recent as indicated by the color of the rib behind it. He was
informed by Robinson that the conditions in this entry were so bad that a crew
of 30 to 40 miners could not pry all the loose ribs in one shift. Indeed,
Robinson had asked to be taken off the section because he no longer wanted to
examine it. In addition, the extent of the hazardous conditions contradicts
Respondent’s argument that examiners consistently pried down ribs in the weeks
prior. While conditions can change rapidly, the existence of 35 loose ribs over
the course of 4,000 feet, an overwhelming length, does not support Respondent’s
claims of reasonable efforts to control the ribs in this area. Tr. 46.

Additionally, relying on the premise
that adequate measures were being taken to pry loose ribs during the
examinations, Respondent argues that the presence of a loose roof or ribs alone
does not establish a violation of the section. Respondent relies on Jim
Walter Resources, Inc ., ( JWR ), 30 FMSHRC 872, 879 (ALJ) (Aug. 2008);
Harlan Cumberland Coal Co ., 22 FMSHRC 672, 681 (ALJ) (May 2000); and Energy
West Mining Co ., 18 FMSHRC 1628, 1639 (ALJ) (Sept. 1996). Respondent’s reliance
on these cases is misplaced. While each of these decisions is an Administrative
Law Judge’s and thus have no precedential value, they are also clearly
distinguishable on their facts. In each of these cases, a sudden rock fall or
coal burst had occurred. In JWR, Judge Zielinski found the MSHA
investigator issued no violations for unsupported roof and was of the opinion
that JWR was following its roof control plan and a reasonably prudent
person familiar with the mining industry and the protective purpose of the Act
would not have concluded otherwise. Likewise, Judge Cetti found in the other
two cases that the failure of the pillars was unpredictable and that the
operator had fully complied with their roof control plan approved by MSHA. In
the case of Energy West, the evidence was clear that the operator had
been working in conjunction with MSHA to deal with the overburden on the
pillars and had followed suggestions offered by MSHA. Judge Cetti found in both
cases that a reasonable person familiar with the mining industry and the
protective purposes of the Act would not have found the operator’s actions to
be unreasonable in light of the circumstances known at the time of the event.

I find in the
instant case any reasonable person familiar with the mining industry would
recognize that Peabody was not adequately addressing the loose rib problem
which had been known to management for a prolonged period of time. They were
not sufficiently pried down, there was no additional support through bolting or
timbers and they were of such a number that, as Robinson stated, it would take
more than a crew of 30 men over the course of an entire shift to begin to
correct them all. While that was an exaggeration, it did in fact, require 9
miners 24 hours to pry down the ribs sufficiently to terminate this violation. Ex.
S-1. I find that this violation occurred.

3. Gravity
   and S&S

The
first prong of Mathies has been satisfied in my finding a violation
occurred. Based upon the conditions described by Inspector Seitz, I find the
second prong of Mathies has also been satisfied. The discrete safety
hazard, a weekly examiner being crushed by rib rolls or a rib failure, was
contributed to by the presence of 35 loose ribs over the course of 4,000 feet
that had existed for a prolonged period of time without corrective action being
taken . As even Respondent’s witnesses confirmed, the condition of the
ribs can change and worsen rapidly, which underscores the dangerousness of the
hazard involved if corrective action is not timely, ongoing, and consistent. As
Seitz stated, an examiner would be exposed to the hazards of a rib fall during
each examination and he would not be walking past one loose rib for “one or two
seconds,” but instead traveling a large area “past a lot of ribs.” Tr. 49. Because
of this prolonged exposure to loose ribs, Seitz found it reasonably likely the
examiner “would be struck with a rib.” Tr. 49.

The third and
fourth prong of Mathies , the reasonable likelihood that the hazard
contributed to will result in an injury and that the injury will be reasonably
serious, are easily established by the inspector’s common sense, as he stated
being hit by a loose rib that measures as much as 29 feet long, 6 feet high,
and 12 to 14 inches thick and weigh, at a minimum, approximately 10,000 pounds,
would be at least permanently disabling. Tr. 50. Violation of this mandatory
standard is known to be one of the most frequently cited for causing fatal
accidents. Ex. S-5.

Respondent contends the violation is not
S&S because it would be unlikely that the weekly examiner would be
traveling the entry at the exact time and place that a rock or rib would roll,
thereby causing injury. Resp. Br. 15. It further argues that an injury was not
likely because the entry was only traveled once a week by one examiner who
would correct the hazards as he found them during his pre-shift examination. Respondent
relies on Administrative Law Judge decisions Ohio County Coal Co ., 31
FMSHRC 1486, 1489 (ALJ) (Dec. 2009) and Freedom Energy Mining Co ., 32
FMSHRC 1809, 1829 (ALJ) (Dec. 2010) for the proposition that this
“simultaneous” occurrence of events is necessary to find this violation is
S&S. However, these decisions are both Administrative Law Judge decisions
and therefore do not express the position of the Commission, nor do they serve
as legal precedent. Furthermore, this “confluence of factors” has been
addressed by the Commission in cases involving explosions and fires in mines,
not roof and rib falls. See Paramount Coal Co., Virginia, LLC, 37 FMSHRC
981 (May 2015); Consolidation Coal Co., 35 FMSHRC 2326 (Aug. 2013). Those
cases discussed the presence of all three elements necessary to cause a fire or
explosion – potential ignition sources, fuel, and methane or coal dust. There
is no requirement that the Secretary establish the likelihood of simultaneous
events, as the Respondent states, for this type of violation to be S&S.  

The Respondent cites to Patriot
Mining LLC , 31 FMSHRC 1464, 1470 (ALJ) (Dec. 2009) in support of his second
argument which is equally unpersuasive. Again, the decision does not carry
precedential value and has been squarely addressed to the contrary by the
Commission. In Paramount , the trial judge found that there was not a
confluence of factors which would have resulted in an ignition of a belt fire
because wooden baffles that were causing friction were immediately removed from
service. The Commission, in its remand, stated, “the operative time frame for
determining if a reasonable likelihood of injury exists includes both the time
that a violative condition existed prior to the citation and the time that it
would have existed if normal mining operations continued.” Paramount , 37
FMSHRC at 985 ( quoting Rushton Mining Co., FMSHRC 1432, 1435 (1989)). The
Commission has also stated that the argument that a condition would be
corrected in a pre-shift examination “is at odds with the basic tenets of mine
inspection requirements, in that all violations could be defended against as to
whether they are S&S by maintaining that they would have been recognized in
the next pre-shift examination.” Consolidation Coal Co., 35 FMSHRC 2326,
2337 (Aug 2013). Additionally, while Respondent maintains that only one miner
traveled this entry once per week, it ignores the fact that in order to address
the hazard it would and did require 29 miners over a 24 hour period to correct
the hazard thereby increasing the exposure to the number of persons over a much
broader time period if Peabody were to properly maintain the safety of the
ribs.

I find that, assuming continued normal
mining operations, the Mathies test has been met. I also find the
gravity of this violation to be extremely serious affecting one miner, being
the weekly examiner, and likely to result in at least permanently disabling
injuries.

4. Negligence and Unwarrantable
   Failure

Seitz stated his rationale in
assessing the negligence as high was that Robinson, a foreman, was acting as an
agent for the operator while conducting his examination. When Seitz issued the
verbal citation, Robinson had nothing to say in mitigation. In fact, Robinson
stated that he had spoken with Devers 30 days earlier about the condition of
the ribs and that he could not correct them during his examination because he
had other air courses to examine and it would take dozens of miners to pry all
the loose ribs down. Tr. 51-52, Ex. S-3. Kamman could not give Seitz any
mitigating factors either when he was asked. Tr. 51. I find the conduct here
exhibited an aggravated lack of care that is greater than ordinary negligence. The
operator is required to be alert for hazardous conditions such as loose ribs
that can cause injuries to miners and to take necessary precautions to prevent
or correct them. As Seitz described, the loose and gapping ribs were throughout
the entry and patently obvious to anyone. Management was aware of the problem
which had existed sufficiently long to expose at least the weekly examiner to
such danger. It neither took preventive measures in the form of timbers or
barricades, nor did it take sufficient corrective measures as evidenced by the
state in which they were found by Seitz. I find this violation is the result of
high negligence.

Seitz designated the violation as
an unwarrantable failure to comply with a mandatory standard, because the loose
ribs were extensive in that they were “everywhere they looked” and they were
hanging off the wall. Tr. 53. In his opinion, they had been that way longer
than the previous weekly examination and there were no danger flags, barricades
or timbers. The danger was that, while walking through this entry, ribs were
hanging over a miner’s head, on both sides of the passage, and these ribs could
come down and the condition was very obvious. Tr. 53-4. He determined that the
operator was aware of the condition because the notation of loose ribs had been
in the examination book since April 19, 2016. The book is signed by the
examiner, who is an agent of the operator, and countersigned by the
superintendent. Tr. 54, 60, 144. Seitz stated that management was on heightened
“negligence” for loose ribs and roof from prior violations. He explained that MSHA
keeps a record in their office of mines with prior § 75.202(a) violations. The
lead Authorized Representative determines when to put a mine on the list and
informs the operator of it. On June 7, 2016, this mine was still on that list. Tr.
55-56.

At the hearing, Seitz reiterated
that the loose ribs had existed, in their current form, for at least a week and
possibly since April 19, 2016, when loose ribs were marked in the weekly
examination book. He based this duration estimate on the existence of dark-gray
rock dust on the ground and in the gaps between the loose ribs and the passage
wall. Tr. 53. Respondent’s examiner, Jim Robinson, conceded the area was known
to have rib problems as the same conditions had existed in 2013 and 2014. Tr.

53. Seitz testified that “everywhere they looked . . . there were loose ribs.” Tr.
54. In addition, he observed no attempt to abate the condition, prior to
    Robinson’s simultaneous examination, through flagging, timbering, or prying. Tr.
    58-61.

The
Secretary argues the unwarrantable failure designation should be upheld based
upon the inspector’s assessment of the circumstances.

Respondent
argues the violation did not result from aggravated conduct. Relying on IO
Coal , in which the Commission held that whether the operator engaged in
abatement prior to the subject inspection is a key consideration in an
unwarrantable failure analysis, Respondent argues it took necessary steps to
identify and pry the loose ribs during the preceding seven weeks. Tr. 43; Resp.
Br. 18. In addition, Respondent argues the hazardous conditions were neither
extensive nor lasted an extended period of time. Resp. Br. 20-22. Based upon my
analysis below in addressing each of these factors, I uphold the unwarrantable
failure designation.

(a)     Extensiveness of
Violation

The
extensiveness of a violation can be analyzed in terms of the physical
dimensions of the affected area, the number of persons endangered, the efforts
required to abate the violation, or other similar factors. Twentymile Coal
Co., 36 FMSHRC 1533 (June 2014); Peabody Coal Co., 14 FMSHRC 1258
(Aug. 1992); E. Assoc’d Coal Corp., 32 FMSHRC 1189 (Oct. 2010). Other
factors that may also be relevant to extensiveness include the number of
persons affected by the violation and the measures required to abate it. The
Commission has stated that the extensiveness inquiry “ultimately is a fact
question concerning the material increase in the degree of risk to miners posed
by the violation,” and should account for the broad scope of the circumstances
surrounding the violation . E. Assoc’d Coal Corp. , 32 FMSHR at 1196
(instructing ALJ to consider extensiveness of abatement measure needed to
terminate the citation).

In
this case, the condition was found throughout almost an entire entry; a total
of 35 ribs were loose on both sides of the walkway for 50 crosscuts, or 4,000
feet. Tr. 53. To terminate the violation, it required 9 miners over the course
of 24 hours to pry down the loose ribs. The condition was extensive in both
physical dimensions and the amount of effort it took to abate it.

(b)    Duration of
Violative Condition

According
to the mine’s own records, the rib violations existed since at least April 19,
2016. This was seven weeks prior to Seitz’s inspection. This significant
duration meant that a mine examiner walked through this passage, past loose rib
after loose rib, seven times. Tr. 59. Robinson and Kamman admitted similar
conditions had existed as far back as 2013 and 2014, when the area was actively
mined. Tr. 39, 108. Ex. S-3. While the current conditions likely did not date
back to 2013 or 2014, they had, at the very least, existed for a week,
according to Seitz’s estimates based on the gray color of the rock dust and the
absence of rock dusting equipment. While the exact length of time is difficult
to determine, the Commission has stated that even imperfect evidence of
duration should be taken into account by the judge. Coal River Mining, LLC, 32
FMSHRC 82, 93 (Feb. 2010). Because it was clearly established that the
condition of loose ribs can worsen quickly, one week is sufficiently long to
cause a serious injury.

(c)     Degree of Danger
Posed by Violation

Both the extent
of the dangerous conditions, which increased the likelihood of a hazardous
event, as well as the inability of the examiner to contact others in the case
of that event, contributed to the high degree of danger that a failed rib would
strike or crush an examiner, rendering him permanently disabled or worse. This
violation was extremely dangerous as evidenced by the fact that this standard
is the most frequently cited as the cause of fatalities.

(d)    Obviousness of
Violation

The
violation was very obvious.

From
the outset of the inspection, Seitz immediately noticed the area looked “a
little rough” as he observed loose ribs. He even remarked to Kamman and
Robinson, “Hey, I’m starting to see some areas here I really don’t like.” Tr.

32. These were not hidden dangers, rather “everywhere they looked . . . there
    were loose ribs.” Tr. 53. The gaps formed between the sloughing material and
    the passage wall was not insignificant. Seitz observed the material was
    sloughing away from the wall by 9 to 12 inches. He could easily observe rock
    dust in these gaps. Tr. 38.

(e)     Operator’s
Knowledge of Existence of Violation

An operator’s knowledge may
be actual or constructive. Knowledge of the predicate circumstances is
sufficient to establish constructive knowledge. Coal River Mining, LLC ,
32 FMSHRC 82 (Feb. 2010).

As stated above, the
obviousness of the violation, the frequency with which it was recorded in the
examination books, and that fact that the operator was put on notice that
greater efforts at compliance were necessary to address the problem, make it
clear that the operator knew of the long-standing existence of the violation. I
make this finding even discounting the fact that Robinson addressed the hazards
with Devers prior to this subject inspection.

(f)     Operator’s
Efforts at Abating Violative Condition

The focus of this element is the efforts,
if any, made by the operator prior to the issuance of the order. Seitz found no
evidence Respondent attempted to abate the dangerous conditions prior to his
inspection. I find this assessment to be credible. Seitz asked both Robinson
and Kamman what had been done to remedy this problem. Neither gave an adequate
answer. Seitz did not observe any flagging, aside from the flags placed by
Robinson on the day of the inspection, nor did he observe any timbers or
freshly-pried sloughage (again, aside from that created by Robinson during the
course of the simultaneous examination). It is evident that Respondent knew of
the dangerous conditions and took no action to abate the conditions prior to
Seitz’s inspection.

(g)    Operator’s Notice
that Greater Compliance Efforts Were Necessary

An operator’s history of past
similar violations or other specific warnings from MSHA is relevant to inform
the operator of the interpretation of a standard or when it can be charged with
a violation. To demonstrate notice of the need for greater compliance for
unwarrantable failure purposes, the operator’s history of violations,
discussions with inspectors, and other forms of specific warnings by MSHA, as
well as evidence of record including shift book reports evidencing notice to
management of a recurring safety problem in need of correction, is relevant. IO
Coal , 31 FMSHRC at 1353; Lion Mining Co., 18 FMSHRC 695 (May 1996);
Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992).

According to the inspection notes,
Respondent was cited 22 times for violations of 75.202(a) since February 2,
2015. Exs. S-3, S-6. In addition, Seitz explained that the mine was put on
heightened notice for greater compliance and management was made aware of this
when it was added to the record kept at the MSHA office. Tr. 55-56. Furthermore,
both Respondent and the Secretary introduced multiple examination reports
showing prying of loose ribs and other actions such as bolting were ongoing
requirements. Exs. R-2, R-3, R-5; Ex. S-4, 1, 3, 5-7, 9-11, 13-15, 17-19, 21-27,

30. Witnesses for Peabody confirmed that this area was known for having loose
    ribs that changed and worsened rapidly. The examination books, which are countersigned
    by the superintendent, clearly demonstrate that the operator should have been
    keenly aware by the ongoing nature of the hazard that greater efforts at
    compliance were necessary. Yet no additional support was present in the entry.

(h)    Weighing the
Factors

Obviousness and the degree of
danger posed by a violation alone can support an unwarrantable failure finding.
Manalapan Mining Co ., 35 FMSHRC 289 (Feb. 2013); Windsor Coal Co.,
21 FMSHRC 997 (Sept. 1999). I have already found that the rib condition existed
throughout the number 8 entry and that roof and rib falls are known throughout
the industry to be the leading cause of mine fatalities. In light of this, that
Peabody had done nothing more to support the ribs than expect the weekly
examiner to pry them down while covering thousands of feet of entries during
his examination is tantamount to subjecting him to a game of Russian Roulette. These
two elements are sufficient to show the complete disregard Peabody exhibited for
the safety of its miners. In this case, there is also ample evidence to satisfy
each of the other factors within the unwarrantable failure analysis set forth
by the Commission. The existence of 35 loose ribs over the course of 4,000 feet
demonstrate an extensive violation. The hazardous conditions had been present
for at least one week, but had definitely existed, in some form, for at least
seven weeks. Respondent knew these conditions existed, as they had been
recorded in the weekly examination record, and Respondent knew greater efforts
were necessary for full compliance. For these reasons, I find these factors
support a finding of reckless disregard for safety and higher than average
negligence.

B.      Order No. 9101933
(Docket No. LAKE 2016-0421)

1. Finding of Facts

After
making his inspection of the number 8 entry, as detailed in the above Order,
Seitz went to the surface to review the examination book for the period between
April 19 and May 31, 2016. Tr. 43; Ex. S-4. Upon reviewing the records, he
discovered examiners had recorded the existence of loose ribs in the area and
that these loose ribs had been “pried down.” Tr. 43. The examination book had
been countersigned by several supervisors including Superintendent Eric Carter.
Ex. S-3. He questioned Robinson as to why the precise number and locations of
the ribs were not documented as required and Robinson’s response was that “he
would run out of room in the book” if he did so. Tr. 43. Aaron Meador confirmed
that it was not until the operator received a violation for inadequate
examinations that they started listing specific locations for hazards found and
he never thought it was necessary to do so if the hazard had been corrected. He
said this was because no one would have to come later to correct it so he
didn’t think such precision was necessary. Tr. 133. However, as I have found in
the previous order, the conditions were not being corrected during the
examinations or thereafter. As Seitz testified, there was no visible evidence
that such prying had taken place. There were also no timbers, barricades, or
other means of support in the area.

2. The Violation

The narrative section of this
order issued by Inspector Seitz states that an inadequate weekly examination
was conducted on the 3rd South West Sub-Main R/S Return air course. It cites
the same conditions of the ribs as cited in the previous order and goes on to
document that the record book “lists hazards as loose ribs only, and pried ribs
down as the action taken.” Ex. S-2. The order is assessed as reasonably likely
to result in permanently disabling injury to one person, S&S, high
negligence, and an unwarrantable failure to comply with the mandatory standard.
The Secretary has proposed a penalty of $5,054.00. Ex. S-2.

The cited mandatory standard
requires:

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: . . . (2) In at least one entry of each return air course, in its
entirety, so that the entire air course is traveled.

30 C.F.R. §
75.364(b)(2).

In his post-hearing brief, the
Secretary argues Respondent violated 30 C.F.R. § 75.364(b)(2) in two distinct
ways. First, a violation occurred when Respondent’s weekly examiners recorded
that they had pried down loose ribs in the return entry, despite the fact that
Inspector Seitz observed no newly-pried materials to corroborate that claim. Sec’y
Br. 14. Second, Respondent violated § 75.364(b)(2) when its weekly examiners
recorded the existence of loose ribs and their actions of prying down those
ribs, but did not list the exact locations of the ribs or the actions taken,
despite the requirement for specificity. Sec’y Br. 15.

Respondent argues the weekly
examinations, both the one conducted by Mr. Robinson on June 7, 2016, and those
previous, were adequate and thus no violation of § 75.364(b)(2) occurred. Respondent
summarizes the steps taken by Mr. Robinson on June 7, 2016, including checking,
flagging, and prying ribs, as needed. Tr. 73, 111; Resp. Br. 12. In addition,
Respondent argues that prior weekly examinations were accomplished in a similar
fashion. Resp. Br. 12. [5]

I do not find Respondent’s
arguments to be persuasive. While some notations were made in the book
concerning loose ribs and prying them down, Robinson and Meador confirmed conditions
were omitted or not specified due to common practice of the mine and the sheer
number of hazards they would have had to document. Ex. S-4. Seitz was quite
clear in explaining that even hazards that no longer exist, i.e., those which
have been abated, must be recorded with particularity. Tr. 45.

In a recent unpublished opinion
issued by the United States Court of Appeals for the District of Columbia, the
court addressed the recordkeeping requirement by mine examiners for hazardous
conditions and corrective actions taken in a situation where the examiner
recorded in the book “slope needs cleaned – work in progress.” Mach Mining,
LLC. v. FMSHRC, No. 18-1048, Sept. Term, 2018 (DC Cir. 2019). The operator
argued that this was sufficient to record the nature and location of the
hazardous condition. The Court of Appeals upheld the judge’s determination that
it was not sufficient. It concluded that the location must be sufficiently
recorded so that those who read it will know where and how to address the
problem. Mach Mining, LLC., No. 18-1048, Sept. Term, 2018 (DC Cir. 2019).

The Commission, in its review of the
trial judge’s decision in Mach , categorically rejected Mach’s contention
that the language of the standard does not require any degree of specificity. Mach
Mining II, 40 FMSHRC 1 (Jan. 2018). The Commission held that there were
multiple locations over a distance of 105 feet where accumulations were in
contact with the belt. The inspector had testified that the notations in the
book were deficient because the slope belt needed cleaning every shift. The
same notation appeared in the examination book over the course of dozens of
examinations. The Commission stated, “MSHA has recognized that “[a] record of
all hazards found, as well as the required corrective action, serves as a
history of the types of conditions that can be expected in the mine. When the
records are properly completed and reviewed, mine management can use them to
determine if the same hazardous conditions are recurring and if the corrective
action being taken is effective.” Mach Mining II , 40 FMSHRC at 12
( citing Safety Standards for Underground Coal Mine Ventilation, 61
Fed. Reg. 9764, 9803 (Mar. 11, 1996)). The Commission found the vague
language in Mach’s examination book frustrated the purpose and further did not
enable miners to know of dangerous conditions before they went underground. Mach
Mining II , 40 FMSHRC at13. The language in the recordkeeping
regulation involved in Mach is essentially identical to that contained
in the regulation cited here. That is, “a record of hazardous conditions and
violations . . . found during each examination and their locations, and
corrective action taken” are to be recorded in the examination book. 30 C.F.R. §
75.364(h).

The purpose of both mandatory
standards, § § 75.363(b) and 75.364(h), is identical – to help identify
recurrent conditions, assess the effectiveness of corrective action taken, and
to protect miners before going underground.  Although Seitz’s Order is not
charged as a violation of the recordkeeping section of § 75.364, if the record
is inadequate, then the entire examination is for naught and frustrates the
purpose of identifying ongoing problems, correcting them, and protecting the
health and safety of the miners.  

The facts in Mach are also
analogous to the instant case. The hazards were numerous and widespread over
the course of a 4,000-foot-long entry. The record books indicated, as did the
witnesses from Peabody, that this area was known to have recurrent problems
with the ribs. To abate the violation, nine miners spent 24 hours cleaning the
area. Had the examination been adequate and the specific locations and
corrective actions been recorded, it should have been readily apparent that the
measures taken were deficient and more support was needed. It also forced the
weekly examiners to go underground not knowing exactly where the hazards would
be located and exposing them to an unreasonable danger.

I find the Secretary has met his burden
of proving this violation.

3. Gravity and
   S&S

Inspector Seitz characterized this
as an S&S violation essentially for the same reasons as the previous Order.
Tr.57. The weekly examiner would go through the area by himself exposed to
large ribs either coming down off the top or sloughing down which would be
reasonably likely to cause an injury. Any injury would be serious in nature and
permanently disabling. Since the examiners did not have trackers on them, he
would be unable to contact anyone for help. Tr. 57-58. Respondent disputes the
S&S finding and makes the same argument against such a finding as it made
concerning the S&S finding for Order No. 9101931. Because the argument is
duplicative, I incorporate my earlier analysis, as applied to Order No.
9101931, here. [6]

I
find that this violation meets the four elements of the Mathies test and
therefore I uphold the Secretary’s characterization of the violation as
S&S. Respondent violated § 75.364(b)(2), a mandatory safety standard, when
it failed to adequately conduct a weekly examination of the return entry. This
created a “measure of danger to safety” because it increased the likelihood
that hazardous conditions within the return entry, such as loose ribs, would go
unresolved . Mathies , 6 FMSHRC at 3-4. The Commission has found that the
failure to conduct an adequate pre-shift examination satisfies the third prong
of the Mathies test, because such a failure “exposed its miners to the
underlying hazardous conditions.” Dominion Coal Corp ., 35 FMSHRC
3557 ,
3600
(Dec. 2013). Here, an inadequate weekly examination exposed miners to a
reasonable likelihood of an injury sustained by a rib failure and such injury
would be serious.

I find that, assuming continued
normal mining operations, the Mathies test has been met. I also find the
gravity of this violation to be extremely serious affecting one miner, being
the weekly examiner, and likely to result in at least permanently disabling injuries.

4. Negligence and Unwarrantable
   Failure

Seitz testified that he marked this
violation as high negligence and an unwarrantable failure for the same reasons
as the previous order. Peabody contests the negligence and unwarrantable
failure designation based on the same arguments raised and addressed in the
previous Order. I find they are not persuasive for the same reasons set forth
in my analysis above.

I uphold the high negligence designation
for the reasons set forth in the previous Order. I also find the unwarrantable
failure designation to be supported for the same reasons set forth above and
reiterated below.

(a) Extensiveness of Violation

The
extensiveness was demonstrated by the fact that there was no specificity in the
examination book to determine how many or where the ribs were that needed
correction. In fact Seitz found far more loose and sloughing ribs, and in many
more locations, than was indicated in the examination record. In fact, he found
loose and sloughing ribs on both sides of the entry throughout the 4,000-foot
length of it with no flagging, barricading, timbering, or prying having taken
place. The violation was also extensive in the sense that it had been the
historical practice at the mine not to indicate the location or corrective
actions taken in the examination book until a violation for failing to do so
was issued. The statements of both Robinson and Meador confirmed this.

(b)
Duration of Violative Condition  

Seitz
reviewed the examination book back as far as April 19, 2016, in determining
that the record was not being properly completed. Tr. 44, 59. The weekly
examiners failed to adequately record the results of their weekly examinations
for at least seven weeks. However, as Robinson told Seitz, he never put all the
information in the book because he would run out of room. Meador confirmed that
at the time of this inspection, they had not been in the practice of recording
that information in the examination book. It was not until they were cited for
not doing so that the practice changed. It is unclear just how far back the
practice went but it is abundantly clear that it was far too long considering
the danger posed to the examiner making his weekly examination. It would
additionally pose the same danger to miners had Respondent assigned the
appropriate number of persons needed to maintain the ribs in satisfactory
condition.

(c)
Degree of Danger Posed by Violation

The
degree of danger posed by the inadequate, even misleading, record of the weekly
examination was great. As discussed, despite the fact that examiners claimed to
have pried down loose coal material during prior weekly examinations, Seitz
witnessed no evidence to corroborate this claim. Tr. 53. Therefore, the
inadequate weekly examinations created a situation where a miner would go
underground without knowledge of where loose ribs were located, thus exposing
him to grave danger. It did, however, enable management to ignore the fact that
this was a serious ongoing problem which required greater corrective action to
protect its miners. This rib failure could have catastrophic effects, including
the striking, crushing, or pinning of a miner. Tr. 49.

(d)
Obviousness of Violation

A
trained weekly examiner of a mining operation would have known the requirement
to list the specific locations of hazards and the actions taken to abate them. The
two-word notations, “loose ribs” and “pried down,” lacked any specificity
sufficient to alert other examiners, miners, or mine management of the location
of these hazards. This would have been obvious to any informed reader of the
examination book.

(e)
Operator’s Knowledge of Existence of Violation

Testimony
from both Seitz and Peabody’s witnesses confirmed that once the weekly examiner
signed the examination book, it was countersigned by the Superintendent of the
mine. Tr. 54-55, 60, 141, 144. Based upon the extensiveness and obviousness of
the rib condition compared to the vague and very few notations in the book, I
find the operator had at least constructive knowledge of this violation.

(f)
Operator’s Efforts at Abating Violative Condition

While
the examiner noted that “loose ribs” were “pried down” in preceding
examinations, Seitz found no evidence that loose material had been pried down
in the passage. Tr. 48. No visible evidence, in the book or the passage,
demonstrated an effort to abate the violation. Tr. 53. There was also no
evidence presented that the operator took any steps to instruct or train the
examiners to properly complete the examination books until they were cited for
the behavior.

(g) Operator’s Notice that Greater
Compliance Efforts Were Necessary     

Respondent was aware of the need for
greater compliance efforts in conducting weekly examinations because it had
been cited 15 times for violating § 75.364(b) since June 29, 2015. Ex. S-3. Seitz
stated that the mine was on heightened negligence for this condition and it was
communicated to the operator. Tr. 61

(h)
Weighing the Factors

There is ample evidence to satisfy
each of the factors within the unwarrantable failure analysis set forth by the
Commission. It
had obviously been the practice of the examiners to omit from the record book the
specific location and action taken of hazards found. Whether it was because the
conditions were so extensive that the examiner would run out of room in the
book or because it would have revealed to the MSHA investigator, who reviews
the mine books during each quarterly inspection, how extensive and unabated the
conditions were is immaterial. As the Commission has stated, the specificity
required in the examination book is to protect miners from entering an area
without warning of the potentially deadly hazards that may exist there. It also
serves to identify for the operator ongoing problems that would require more
extensive remedial action. The book was countersigned by the Superintendent of
the mine which means such behavior was at least condoned by management making
the violation that much more egregious. I find the danger posed by this
violation alone supports a finding of an unwarrantable failure to comply with
the mandatory standard.

C.      Order No.
9101766 (Docket No. LAKE 2017-0178)

1. Finding of Facts

MSHA inspector Nicholas Vandergriff
issued this order on September 20, 2016, during his quarterly inspection of the
mine. Tr. 163. Vandergriff started his inspection by reviewing the mine’s files
including roof control and ventilation plans to check for deficiencies. He also
reviewed a copy he brought from the heightened negligence book retained at
MSHA. This mine had been on the list for accumulations since July 2015. Tr.157,

217. He was then escorted underground by Randy Hammond, a weekly examiner and
     member of the mine’s Compliance Assistance Safety team. Tr. 163. Vandergriff
     began his underground inspection at the power center of the 4th Southeast (SE)
     belt line, which runs coal to the outside of the mine. Tr. 163, 166. Almost
     immediately upon his arrival underground, the belt went down. Tr. 167. Hammond
     contacted Jason Fink, the head maintenance chief, who attempted to diagnose the
     problem with the belt. Tr. 167.

While Fink worked on the belt,
Vandergriff went to observe the head drive and saw two miners who were assigned
to go from belt drive to belt drive cleaning by shoveling loose coal, dusting
the drive, and spraying them as needed. Tr. 168, 171. This concerned Vandergriff
because he had reviewed the examination book prior to going underground and the
miners were not addressing the conditions observed by the examiner and were
engaged in cleanup work in an area that had been listed in the examination book
as having been completed on September 19, 2016 Tr. 168-71; Ex. S-12, 34.

Traveling inby within the first break or
two, Vandergriff observed loose coal on the intake side of the belt. The
accumulations measured anywhere from two to four inches deep and two to
four-and-a-half feet wide. Tr. 173. After observing these conditions for
another three to four crosscuts, or about 200 to 250 feet, Vandergriff informed
Hammond he was going to issue a 104(a) citation. Hammond did not respond. Tr.

174. After walking four more crosscuts, Hammond said, “This is going to get
     bad. I have to go make a phone call.” Tr. 174. He did not elaborate. At that
     point, Hammond left. The belt had been switched on and off three or four times
     prior to Hammond’s remark and was currently off. Vandergriff observed piles of
     coal along the entire length they had walked so far. Tr. 174-75. He began
     photographing the conditions. Tr. 174-75; Ex. S-11. At trial, referring to his
     photographs, he pointed out an “abnormal” amount of accumulations several
     crosscuts long on the intake side of the belt and a misaligned roller above a
     pile of coal. Tr. 175-78; Ex. S-11. Vandergriff pointed to one photograph where
     in one location on the intake side of the belt, a portion of the belt was not
     properly aligned with the top roller which would cause the belt to sway back
     and forth when in motion. Tr. 179-80; Ex. S-11, 7. Photograph 10, Vandergriff
     testified, showed the top belt shoved towards the haul road side of the entry. He
     explained this misalignment happens when coal is dumped onto a full belt which
     causes it to be deposited onto the bottom belt and then thrown onto the ground.
     Tr. 192. Referring to Photograph 6, he testified that it depicts where the belt
     was running inside the top roller rather than underneath them causing the belt
     to overhang the roller by as much as 10 inches. Tr. 195-98. He additionally
     observed areas where the belt was resting on the metal structure and had made
     gouges from one-half to one inch deep. Tr. 199. During the time Vandergriff was
     taking photographs, Hammond repeatedly met up with him and then walked back to
     the haul road to call in to get people to start shoveling. Tr. 180-81.

Vandergriff was approached by MSHA
Compliance Assistance Program (CAP) personnel Danny Mann and Kris Robinson. At
this time, Vandergriff told Hammond he was issuing a 104(d) order. Tr. 183.
Robinson requested that Vandergriff not issue the order, because they would
ensure the spillage was cleared. After a short conversation with Mann,
Vandergriff reiterated to Robinson and Hammond that he was going to issue a
(d)(2) order. Hammond left with no response. Vandergriff walked down to the
head drive and the belt was locked and tagged out. Tr. 185.

Vandergriff continued his inspection
walking inby the belt drive. Six or seven miners were shoveling the
accumulations. Tr. 185. He recognized an examiner, Nathan Kamman, and asked him
how long the belt had been in this condition. Kamman answered that he had not
examined the belt in some time, but when he had, it had always been as Vandergriff
observed and he, Kamman, and management knew about it. Tr. 185-86.

Vandergriff stated that he determined
the condition had existed since September 6, 2016. He explained that there had
been an A and a B belt at one time but the motors on the B belt went down so
the B belt drive was removed and the A and B belts were spliced together. When
they did so, they removed the rollers but not the tails on the B belt and just
moved it over and connected them together. While the A belt was straight, the B
belt had a slight angle, so when the two were spliced together the change was
“enough to throw off an entire belt line” in his opinion. Tr. 186-87. This
caused the accumulations that he observed on the ground. Kamman confirmed that
the situation had been like that since they removed the B belt. Tr. 187.

As he continued up the belt line,
Vandergriff continued to take photographs, make notes, and take measurements of
the accumulations. After 25 or 30 breaks, Hammand would walk back in at each
crosscut, ask what conditions were found, and go back to the haul road and call
for additional people. Tr. 188. Vandergriff stated that he found coal, float
coal dust, and belt pressings anywhere from 2 to 10 inches deep. Tr. 188. At
crosscut 119, he spoke to Don Moeller, another examiner, who stated he knew
about the (d)(2) orders and told him the cited conditions had existed for a
long time. Tr. 189. Moeller stated that management knew about the issues, but
did not specifically identify any member of management. Tr. 190. By this time,
two hours had elapsed since Vandergriff had placed the closure tag on the belt,
which had effectively shut down the mine. Tr. 189-190. He observed nearly 20 to
25 people shoveling the accumulations in the worst part, which was located 30
breaks away from where the belts were spliced together. Tr. 191.

2. The Violation

In the narrative section of Order
No. 9101766, it states that accumulations on the 4th SE belt line in the form
of loose coal, float coal dust, and belt pressings were found in numerous
specified locations from the 2nd Main South tail to the head drive measuring
varying widths and depths primarily on the intake side. The violation is
charged as reasonably likely to result in a fatality, affecting 30 miners,
S&S, and an unwarrantable failure to comply with a mandatory standard. The
Secretary proposes a civil penalty of $69,417.00. Ex. S-7.

The cited mandatory standard provides:
“Coal dust, including float coal dust deposited on rock-dusted surfaces, loose
coal, and other combustible materials, shall be cleaned up and not be permitted
to accumulate in active workings, or on diesel-powered and electric equipment
therein.” 30 C.F.R. § 75.400. The purpose of the standard is to prevent the “confluence
of factors” which can cause a fire and propagate an explosion in a mine. McCoy
Elkhorn Coal, Corp., 36 FMSHRC 1987, 1992 (Aug. 2014).

The Secretary maintains that
Respondent violated § 75.400 because it allowed coal material to accumulate
along a “vast majority” of the 4th SE belt line and failed to properly abate
those conditions in an effective and timely manner. Sec’y Br. 40. Allowing the
coal, coal dust, and belt pressings to accumulate in an environment where the
belt was rubbing on the metal structure would in the course of continued normal
mining operations pose the hazard of a fire or ignition.

Peabody contests the violation on three
grounds. First, that Vandergriff did not actually take measurements of the
accumulations. Second, that what Vandergriff cited was actually spillage rather
than accumulations. Third, that it was not likely that the material was
combustible.

Hammond stated that he did not see
Vandergriff take the measurements listed in the narrative section of the order.
However, he confirmed that he was continually darting back and forth between
the belt line and the haul road to call out for shovelers to address the
conditions found by Vandergriff. He maintained that he went out and back in the
same crosscut each time purporting to say that Vandergriff was never out of his
sight. Tr. 328. While Hammond was at the haul road, which was frequent,
Vandergriff did not stop his inspection on the opposite side of the belt. It is
entirely plausible that Hammond did not observe a great deal of what
Vandergriff was doing during his frequent absences. And, in fact, Hammond testified
that he didn’t “recall” seeing Vandergriff take measurements which is quite
different from saying he did not do so. Tr. 328. When asked whether he trusted
Vandergriff, Hammond testified that he found him to be competent and
trustworthy and he believed the measurements he cited. Tr. 368. Hammond also
confirmed, as Vandergriff had testified, that the coal was one half of an inch
away from the belt at crosscuts 13 to 17. Tr. 352. I find Peabody’s first
argument to be baseless.

As
to its second point of contention, that the coal represented “spillage” rather
than an accumulation, I find the implied significance of the distinction between
the two unsupported by case law. In support of its argument, Peabody cites to Old
Ben Coal Co., 1 FMSHRC 1954 (Dec. 1979) and Utah Power & Light Co.
v. Sec’y of Labor, 951 F.2d 292 (10th Cir. 1991). However, these cases do
not support the Respondent’s theory of spillage versus accumulations. In
addressing whether a condition was an accumulation or spillage, the Court of
Appeals stated, “FMSHRC has expressly rejected the argument that ‘accumulations
of combustible materials may be tolerated for a reasonable time.’” Black
Beauty Coal Co. v. FMSHRC , 703 F.3d 553 (DC Cir. 2012). The court went
further to state that § 75.400 “was directed at preventing accumulations in the
first instance, not at cleaning up the materials within a reasonable period of
time after they have accumulated.” Black Beauty , 703 F.3d. at 2 ( citing
Old Ben Coal Co. (Old Ben 1) , 1 FMSHRC 1954 (1979)). Citing Utah Power
& Light Co., the court recognized that the test for whether an
accumulation exists is if “a reasonably prudent person familiar with the mining
industry and the protective purpose of the standard, would have recognized the
hazardous condition that the regulation seeks to prevent.” Black Beauty Coal
Co. , 703 F.3d at 558 ( citing Utah Power & Light Co ., 951 F.2d
292 (10th Cir. 1991)). I find Vandergriff’s testimony that the
amount of material he observed was both extensive in length, sufficiently deep
to be abnormal, and posed a potential for a fire or explosion credible. See
McCoy Elkhorn Coal Co ., 36 FMSHRC 1987, 1993-94 (Aug. 2014) (finding accumulations
were extensive where spillage was more extensive than normal). I further find,
based upon his description, measurements, and photographs of the conditions, he
found that a reasonably prudent person familiar with the mining industry would
recognize the hazardous condition that the regulation seeks to prevent. The
material found by Vandergriff was not spillage, as Respondent defines it, and
there is no tolerance for it to exist without appropriate corrective action
underway, which there was not.

With regard to its last argument,
the fact that some of the coal may have been wet, mixed with mud, or dusted making
it non-combustible is not persuasive. The Commission has long recognized that
wet coal can dry out quickly and provide the fuel necessary for a fire or
explosion. See Consolidation Coal Co ., 35 FMSHRC 2326 (Aug. 2013); see
also Continent Res. Inc ., 16 FMSHRC 1226 (June 1994). Again, the
photographs taken by Vandergriff, his notes taken simultaneously with the
inspection, and his measurements clearly disprove the assertion that the
material was mostly wet, muddy material. This is especially true in the area
where the coal was a mere half of an inch from the belt.

The Secretary has met his burden of proving this violation.

3. S&S
   Designation and Gravity

I find that this violation meets the
four elements of the Mathies test and therefore I uphold the Secretary’s
characterization of the violation as S&S. The first factor is satisfied by
my finding of the violation of a mandatory safety standard.

The
second element is also satisfied because the discrete hazard posed by the accumulations
was reasonably likely to cause harm. The testimony established that
accumulations were a mere one half of an inch below the belt at points and the
belt had gouged into the metal structure by as much as an inch, which could be
an ignition source. Assuming continued normal mining operations and the amount
of coal being dumped off the belt, it would take a very short period of time
before the accumulations were sufficiently deep to make contact with the belt
providing fuel to propagate a fire or explosion. The accumulations would be
likely to ignite and such an ignition would be likely to result in injury.

Respondent contends that the
material would have been corrected during the next examination. I have already
rejected the argument that this was merely a spill. The validity of the
argument that the condition would be corrected during the next examination has
also been addressed in section A. 2. of this decision’s discussion of Paramount
Coal Co . under Order No. 9101931. The condition was far too extensive for
correction to be made during an examination. It required numerous miners a
considerable amount of time to rectify the situation.

Respondent argues that there was
not a confluence of factors to make an ignition possible as there were no
ignition sources present. It alleges that Vandergriff’s testimony regarding the
belt rubbing in the structure was essentially fabricated. Resp. Br. 49. I find
Vandergriff was a credible witness. He exhibited excellent recall of the facts
without having to reference his notes. That this particular fact was not in his
notes is not a concern to me. His testimony as a whole was specific, detailed,
and corroborated by photographs and in some instances by witnesses for Peabody.
As described in some detail above, he had a photograph of a section of the belt
that extended over the rollers by a significant margin. The misalignment of the
belt rubbing against the rollers alone could serve as an ignition source. A
belt rubbing in coal can also be an ignition source and with continued normal
mining operations, it would take very little time for the accumulations to
contact the belt.

The third Mathies factor is
also satisfied. The Fourth and Seventh Circuits’ application of this factor
requires the assumption that the hazard occurred and looks to whether an injury
would be serious. Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148,162
(4th Cir. 2016); Peabody Midwest Mining, LLC v. FMSHRC , 762 F. 3d 611,
616 (7th Cir. 2014). [7]
Due to the extensive nature of the accumulation, an ignition would be highly
likely to result in a fatality. This entry also serves as a haul road, meaning
that equipment passes through it. Tr. 202. Additionally, belt rollers and head
drive motors located on the belt are considered pieces of equipment. See
Buck Creek, 52 F.3d at 135 (affirming S&S designation where the
frictional heat from a roller turning in coal dust could easily cause a fire,
despite no evidence that the roller was hot or defective). Tom Burnett
testified that on September 16, 2016, his team changed a bad roller
which he confirmed can become a fire hazard. Tr. 452-55; Ex. S-12, 27. While
there was no evidence produced that this mine is gassy or methane was present,
it does not negate the likelihood that rollers running in coal creates an
ignition hazard. Tr. 454-55.

The fourth factor has also been
met. As Vandergriff testified, the beltline is also an escapeway. It is the
primary escapeway for Unit 3 at crosscut 52 and a secondary one for the other
two units. Should there be a fire on Unit 3 inby crosscut 52, with the air
directed outby, the fire could travel through their primary escapeway
preventing escape. Tr. 203. If an explosion were to occur, it would be
propagated outby and any miners located outby the explosion could be burned,
overcome by smoke, or disoriented and unable to escape. Tr. 202.

I find this violation was properly
designated as S&S. Vandergriff explained that the unit averaged 16 to 18
miners in Unit 3 and there were commonly mechanics, shovelers, and others
working on the haul road at any one time. There could be as many as 30 persons
affected. Tr. 203. I find the gravity to be extremely serious as the hazard
could have caused fatal injuries to at least 20 miners.

4. Negligence and
   Unwarrantable Failure

a.        Negligence

Vandergriff determined that the
violation was due to reckless disregard when he issued the order. It was
subsequently modified to high negligence. He stated that high negligence was
appropriate due to the conditions he saw and because no one was able to offer
any mitigating evidence. Tr. 204.

The Commission considers the actions a
reasonably prudent person familiar with the mining industry would have taken
under the circumstances to comply with the protective purpose of the mandatory
standard. See U.S. Steel Corp., 6 FMSHRC at 1910.

The
Respondent argues that high negligence is not supported by the evidence,
however, it offers no explanation as to why in its brief. It addresses only the
unwarrantable failure factors.

Witnesses for Peabody testified that
they were aware of the problem with the belt spilling coal. Ryan Sandefur,
Peabody’s safety manager, testified that he was the belt coordinator at the
time of the inspection. Tr. 258. At one time, there were two belts, 4th SE A
and 4th SE B, serving the three working units. Units 1 and 2 dumped onto the B
belt and Unit 3 dumped onto the A belt at crosscut 50. Tr. 287. At some point
around September 6, 2016, two or three reducers failed on the B belt. Each
reducer costs $25,000.00 and would require at least one shift of down time to
install them. Tr. 288. Due to the time and expense, it was determined that the
two belts could be joined into one without affecting the ability of the belt to
function. Additional structure was added to bridge the gap between the two
belts and belts were spliced together. The newly spliced belt measured 7,000
feet in length and worked well until September 13, 2016, when it started to
spill coal mostly at the head of the belt. Tr. 262-70, 285. Sandefur began to investigate
the cause of the spills over the next several days and assigned a belt
mechanic, Travis Kyffin, to spend extra time on the belt to figure out what the
cause was. Tr. 271-75. He also assigned workers to spray the belt, level the
structure between the head and the 3A dump area where most of the spillage was
occurring. Tr. 277. On September 19, 2016, he told his leadman that the two of
them were going to come in the following day to figure out what was going on even
if they “had to live down there for the rest of the week.” Tr. 280. Before that
plan could be put into effect, however, Vandergriff showed up the next morning
to conduct his inspection of the belt line. Tr.282.

In
contrast to Sandefur’s testimony, when Vandergriff asked examiner Nathan Kamman
how long the belt had been in this condition, Kamman answered that he had not
examined the belt in some time, but when he had, it had always been like that
and he had called it out. Tr. 185. Additionally, Sandefur stated that the
spills were located at the head of the belt and that is where the work was
concentrated. Tr. 270. Vandergriff testified that when he arrived at the head,
miners were moving from belt head to belt head shoveling. However, he found the
accumulations were also at the following locations:

4th SE head drive to XC 8 6" to
1" in depth by 3' in width, road side XC 6-11 1" to 5" in depth
by 3 1/2 feet in width, intake side XC 8-12 1" to 2 1/2' in depth by 4'
wide, intake side XC 13-18 1" to 2 1/2' in depth by 4' width, intake side
XC 21-24 1" to 4" in depth by 3 1/2' in width, intake side XC 25-31
1/2" to 6" in depth by 3 1/2' in width, under belt/intake side XC
32-34 1" to 4" in depth by 2 1/2' in width, under belt/intake side XC
36-40 1" to 6" in depth by 2 1/2' in width, under belt/intake side XC
42-46 1" to 3" in depth by 3 1/2' in width, under belt/intake side XC
48-51 1" to 5" in depth by 4' in width, under belt/intake side XC
51-52 1" to 3" in depth by 3 1/2' in width, under belt/intake side XC
52-60 1" to 3" in depth by 3 1/2' in width, under belt/intake side XC
63-69 1" to 3" in depth by 3 1/2' in depth, under belt XC 71-73
1" to 3" in depth by 3' in width, under belt XC 78-82 1" to
3" in depth by 3' in width, under belt/intake side XC 86-89 1" to
3" in depth by 4' in width, under belt XC 90-93 1" to 4" in
depth by 3' in width, all belt line XC 95-101 1" by 6" in depth by
10' wide, all belt line XC 104-114 1" to 3" in depth by 16' in width,
under belt XC 116-119 float dust to 3" in depth.

Ex. S-7.

Shortly before arriving at the mine,
Vandergriff was contacted by another examiner who had asked to speak with him. The
miner met with him briefly and informed him that the 4th SE belt line was a
disaster and no one was taking care of it. Vandergriff was also informed that
the books were being signed off indicating the work was being done when in fact
it had not been and upper management had been informed of it. Ex. S-10. While I
may not give these statements full faith on their own, they corroborate the
conditions Vandergriff observed for himself. They also are corroborated by the
statements made to Seitz by Robinson that the hazardous conditions at Peabody
were not sufficiently corrected. Both he and Meador stated that identified
hazards were not accurately reflected in the examination books and management
was well aware of the practice.  

The
testimony from Respondent’s witnesses do not overcome or in any way mitigate the
gross lack of care for miners’ safety exhibited by Peabody. High negligence is
appropriate.

b.       Unwarrantable
Failure

The Secretary requests Vandergriff’s
unwarrantable failure designation be upheld, citing the extensiveness and
obviousness of the accumulations posing a high risk of danger.

Sec’y
Br. 45.

The
Respondent asserts that the Secretary has not established any of the
unwarrantable factors. It posits that Peabody took numerous steps to control
and remedy the spillage; the condition did not exist for an extended period of
time; it was not extensive; mine management had no knowledge of the cited
conditions; and that the Secretary has disclaimed that the heightened notice
due to past violations was used in support of the unwarrantable failure
assessment. Resp.’s Br. 52-57.

After
considering the following factors, I uphold the unwarrantable failure
designation.

(a)     Extensiveness of
Violation

The accumulations of coal extended
along the 4th SE belt line for a mile and a half as detailed in the narrative
section of the Order. Tr. 166; Ex. S-7. Their depth ranged from two to six
inches, while their width ranged from four to four and a half feet wide. Tr.
173; Ex. S-7. The windrow of coal, which was measured to be one half of an inch
from the belt in one area, was 1,600 feet long. Tr. 349-50. This was an
extensive accumulation of coal material. While Respondent has argued that
Vandergraff did not take measurements, Hammond agreed at trial that Vandergriff
is indeed a competent and trustworthy person and he believed the measurements
he found. Tr. 368.

Other factors that may also be
relevant to extensiveness include the number of persons affected by the
violation and the measures required to abate it. The Commission has stated that
the extensiveness inquiry “ultimately is a fact question concerning the
material increase in the degree of risk to miners posed by the violation,” and
should account for the broad scope of the circumstances surrounding the
violation. E.
Assoc’d Coal Corp .,
32 FMSHR at 1196 (instructing ALJ to consider extensiveness of abatement
measure needed to terminate the citation). Vandergriff credibly testified that
were a fire to start inby crosscut 52, the entire Unit 3 could be trapped. With
return air traveling outby, a propagation could make the entire entry, which
served as a secondary escapeway, impassable. Nathan Courtney testified that it
required at least six unit miners, three shovelers, and several other miners at
least one day to abate the violation. Tr. 469. Vandergriff characterized the
amount of accumulations as “abnormal.” See McCoy Elkhorn Coal Co., 36
FMSHRC 1987, 1993-94 (Aug. 14) (finding accumulations were extensive where
spillage was more extensive than normal). He stated that, while he did not
terminate the Order, he was aware that the entire mine had stopped production. He
stated he thought it would have taken 70 to 80 people to shovel it. Tr. 247.

I find the violation was extensive
based upon all of these factors.

(b)    Duration of
Violative Condition

While Peabody witnesses testified
that the condition had only existed since September 13, 2016, Vandergriff found
evidence in the examination book that it had existed since the September 6 or
7, and that the notations that it was cleaned every shift were not believable. Tr.

205. From his experience, the number of shovelers they had on staff at the time
     would not have been able to clean every shift. Tr. 206. Both Kamman and Moeller
     told Vandergriff that the conditions had existed for a long time. Tr. 186, 189.
     Because coal can accumulate quickly, it was already confirmed to be within one half
     of an inch from the belt, and there was evidence of the belt rubbing the
     structure, the existence of uncorrected accumulations for two weeks is sufficiently
     long to cause an ignition.

(c)     Degree of Danger
Posed by Violation

The operator’s conduct exposed
miners to the hazards of a fire or explosion along the 7,000-foot-long belt line.
This could have caused miners to be burned, disoriented, or trapped, thus
preventing their escape. A mine fire or explosion is one of the single most
dangerous of hazards in mining and has led to catastrophic results.

The degree of danger posed by the
accumulations was extremely high.

(d)    Obviousness of
Violation

The violation was blatantly
obvious to the most unsophisticated of observers. Coal had accumulated along
approximately a mile and a half of the belt line and measured as much as four
feet wide and two and one half feet deep. Tr. 173. Hammond testified that one
windrow ran from Crosscut 6 to Crosscut 30 or 31, a distance of 16,00 feet. Tr.
349-50.

(e)     Operator’s
Knowledge of Existence of Violation

Knowledge of a violation is established
where the operator knew or reasonably should have known of the violation. Coal
River Mining, LLC , 32 FMSHRC 82, 95 (Feb. 2010). The knowledge or
negligence of an agent may be imputed to the operator. Excel Mining, LLC ,
37 FMSHRC 459, 467-68 (Mar. 2015); Martin Marietta Aggregates , 22 FMSHRC
633 (May 2000).

Sandefur testified that several
days after the belts were spliced together, they were aware that the belt was
dumping coal. It was an ongoing problem of which management was aware. Multiple
agents of Respondent admitted to Vandergriff during the inspection that they
knew the hazardous conditions had existed for a long time. Both Kamman and
Moeller stated they personally knew about the belt problem and the resultant
accumulations. General Manager Eric Carter stated to Vandergriff that he had
been approached by an examiner asking for help in training miners to shovel and
that he had no excuse for the conditions. Tr. 207. The miner who contacted
Vandergriff prior to the examination stated that the information had been
brought to management’s attention and they continued to sign off on the
examinations knowing the work had not been done. The unabated conditions were
clearly known to management, yet the superintendent signed off on the
examination books indicating corrective actions had been taken despite his
knowledge that the hazard persisted.

The extensiveness and obviousness
of the hazard alone would put any reasonable person on notice of the violation.
Here, I find the operator had actual knowledge of the violation.

(f)     Operator’s
Efforts at Abating Violative Condition

While some effort was taken to clear the
accumulations of coal material along the belt line, these efforts were a mere
fraction of that required to satisfactorily abate the conditions. As has been
repeatedly stated, the coal accumulations lasted for nearly a mile and a half
along the belt line. Tr. 285. Only two miners were cleaning the head drives and
only one other miner was shoveling in the area of crosscuts 14 to 17. Tr. 207. Hammond
observed no miners shoveling the 1,600-foot windrow of coal. Tr. 354. Vandergriff
disputed the claim that the accumulations were cleared during every shift, as
recorded in the examination book. He testified, “I do not believe [the
accumulations] were cleared every shift like it states in the book. From my
experience and the amount of shovelers that they had on staff at the time,
there is no way they could have cleared it every single time.” Tr. 205-06. Even
the General Manager, Eric Carter, admitted the need to train more shovelers
lest his examiners kill themselves. Tr. 207.

Vandergriff stated that while he did not
terminate the Order, he was aware that the entire mine had stopped production. He
thought it would have taken 70 to 80 people to clean it in order to abate the
condition. Tr. 247.

I do not find Sandefur and his workers’
efforts to determine the cause of the coal dumping off the belt to be abatement
efforts. Their work was directed towards keeping the belt running so that
production could continue rather than protecting the miners as evidenced by the
fact that so much of the affected area was left untouched by cleanup efforts
before Vandergriff’s Order was issued.

I
find no meaningful effort at abatement was made.

(g)    Operator’s
Notice that Greater Compliance Efforts were Necessary

An operator’s history of past similar
violations or other specific warnings from MSHA is relevant to the
unwarrantable failure analysis to the extent the past violations and warnings
placed the operator on notice, before the citation was issued, that greater
efforts were necessary for compliance with the cited safety standard. IO
Coal , 31 FMSHRC at 1353. Respondent was cited for violations of § 75.400
178 times in two years at this mine. Such a high frequency of violations
provided Respondent notice of a need for greater compliance efforts when it
came to accumulation prevention and clean up. Additionally, Vandergriff
testified that the mine was put on the heightened awareness list by MSHA for
violations of accumulations throughout the mine since July 2015 and management
was so informed. Tr.157, 217.

Respondent cites Vandergriff’s testimony
that the past enforcement actions did not play a part in issuing an unwarrantable
failure. Resp’s Br. 57. However, the Commission has said that an Administrative
Law Judge must consider all relevant record evidence not limited to
specific warnings from MSHA, including shift record books , to
determine whether an operator is on notice of recurring safety problem in needs
of correction. Jim Walter Res ., 19 FMSHRC 480, 485 (Mar. 1997) (emphasis
added). This case is instructive for two reasons. First, it underscores the
fact that it is the judge who determines the issue of whether past enforcement
actions put the operator on notice. Second, it highlights the fact that other
forms of notice are sufficient. Vandergriff testified that the records books
indicated problems along the belt line for some time, although he did not
believe the corrective work listed had been done as evidenced by the
extensiveness of the accumulations.

I
find that MSHA had sufficiently put Peabody on notice of the need for greater
compliance efforts through the heightened awareness designation issued in 2015,
the number of prior violations of this standard, and the repeated entries in
the examination book indicating an ongoing problem.

(h)    Weighing the
Factors

There
is ample evidence to satisfy each of the factors to satisfy the unwarrantable
failure analysis set forth by the Commission. This was an extraordinary amount
of accumulated coal. Mine management knew the belt line was dumping coal at an
alarming rate. They had known this for some time. In the event of continued
normal mining operations, the chance of an ignition caused by the belt rubbing
the structure and the ever-present possibility of the failure of a roller was
great. For these reasons, I find this violation was the result of an
unwarranted failure to comply with the mandatory standard.

D.     Order No. 9101767
(Docket No. LAKE 2017-0382)

1. Findings of Fact

As Vandergriff testified, he reviewed
the on-shift/pre-shift examination book for the 4th SE belt line prior to going
underground. Tr. 168; Ex. S-12. Specifically, he reviewed the entries for the
day before and the day of the inspection. Tr. 168-70; Ex. S-12, 33- 34. The
Conditions Observed listed in the book for September 19, 2016, indicated only:
“Broom 30 to 40, 47-56, Spill Head at 21.” Tr. 170; Ex. S-12, 33-34. Under
Actions Taken, the book indicates those areas had been cleaned. Tr. 170, Ex.
S-12, 33. As stated above, when Vandergriff went underground, he saw miners shoveling
at the head. Tr. 171. The miners told Vandergriff that they were going from
head to head cleaning and Vandergriff described the work they were doing as
“substantial.” Tr. 171. This concerned him because this work had been recorded
in the examination book as having been completed on September 19, 2016. Tr.

171. In comparing the conditions recorded in the examination book with the accumulations
     he observed and photographed underground, Vandergriff stated that he found and
     recorded 218% more accumulations than what the examiners had found and recorded
     from the previous day. Tr. 208; Ex. S-12, 33. Vandergriff confirmed that he had
     found 83 crosscuts with accumulations while three examiners had found 38. Tr.
     244-45. Vandergriff was under the misapprehension at the time he made the
     inspection that one examiner had made the belt. At trial, he acknowledged that
     it had been three and stated, “if three examiners, three experienced, certified
     examiners, cannot find 83 [accumulation locations] – even half of what a
     federal man finds, then they’re not doing their job.” Tr. 246. As a result of
     his findings, Vandergriff issued the Order for an inadequate examination in
     violation of a mandatory standard.

172. The Violation

The narrative Condition or
Practice section of Order No. 9101767 alleges in part: “The operator failed to
examine for hazardous conditions and violations of the mandatory health and
safety standards. Accumulations on the 4th SE belt line in the form of loose
coal, float coal dust, and belt pressings were observed from the 2nd Main South
tail to XC #119.” Ex. S-8.

Each
of the crosscuts at which accumulations were found were listed in the order, as
well as the measurements he made of each. The violation was assessed as
reasonably likely to result in fatal injury to 30 persons, S&S, high
negligence, and an unwarrantable failure in violation of 30 C.F.R. § 75.362(b).
Ex. S-8. The Secretary has proposed a civil penalty of $44,546.00.

This regulation mandates:

During each
shift that coal is produced, a certified person shall examine for hazardous
conditions and violations of the mandatory health or safety standards
referenced in paragraph (a)(3) of this section along each belt conveyor
haulageway where a belt conveyor is operated. This examination may be conducted
at the same time as the preshift examination of belt conveyors and belt
conveyor haulageways, if the examination is conducted within 3 hours before the
oncoming shift.

30 C.F.R. §
75.362(b).

Peabody
contests the issuance of this Order, arguing that the Secretary has not proven
that the conditions found by Vandergriff existed at the time the pre-shift
examination was done. Peabody maintains that production continued after the
examination was done and again argues that what was found was the result of a
“spill” that would have been cleaned during the shift. This seems to be a
recurrent excuse for the operator and, as discussed at length above, I reject
these arguments as unpersuasive for the same reasons as previously stated. I
also take into consideration my findings that the accumulations were not
recent, they had existed for some time, they represented a condition in the
mine that was long standing, they were too extensive to represent a spill that
had occurred just before the inspector arrived and they were of such magnitude
that it required a total shutdown in production to abate the condition. I find
the violation has been proven.

3. S&S
   Designation and Gravity

Respondent contests the S&S
designation for the same reasons as the previous Order. I therefore find them
unfounded for the same reasons as set forth above.

I find that this violation meets the
four elements of the Mathies test and therefore I uphold the Secretary’s
characterization of the violation as S&S. The first factor is satisfied by
my finding of the violation of a mandatory safety standard.

The
second element is satisfied because the inadequate pre-shift examination
contributed to the dangers of continued accumulations, as well as the
ineffective clearing of those accumulations. Both of these dangers contributed
to the discrete safety hazard of a fire or ignition of accumulated coal.

The
third element is satisfied because, in the event of the hazard, that is, a fire
or ignition, an injury was reasonably likely. Due to the extent of the coal, it
was likely a fire would quickly spread through this escapeway, burning those in
the passage, as well as causing disorientation, confusion, and entrapment
preventing evacuation.

Finally,
the injuries sustained from the reasonably likely event of a fire would be extremely
serious and likely fatal. Belt fires are probably the single-most feared
occurrence in a mine and have resulted in catastrophic events.

In
conclusion, considering all the facts presented by Vandergriff and other
witnesses, I find the violation satisfies the Mathies test and was
properly assessed as significant and substantial. I also find the gravity of
this violation to be very serious and likely to cause fatal injuries to as many
as 30 miners.

4. Negligence and
   Unwarrantable Failure

This Order was designated as high
negligence and an unwarrantable failure by Vandergriff for the same reasons as
the previous Order. Respondent contests both assessments for the same reasons
as the previous order as well. Based upon the same findings of fact and
analysis of law above, I find that high negligence is supported by a
preponderance of the evidence. I also find the violation was an unwarrantable
failure as stated above and as summarized below.

The
hazardous condition was of sufficient duration to pose a substantial threat of
an explosion or fire. Examiners from Peabody confirmed the conditions had existed
at least since September 6 or 7, 2016. They were extensive as they ran the
course of 1 and a half mile of belt line and measured up to 4 feet wide and as
much as 4 inches deep – just one half of an inch below the bottom of the belt
in one area. As such, they were patently obvious and highly dangerous as they
were present in the primary escapeway for Unit 3 and secondary for the rest of
the units and could have prevented escape in the event of a fire or explosion
propagated by the coal. Peabody’s examiners and members of management stated
they were aware of the conditions and were signing off the examination book
which did not accurately reflect either the extent of the hazard or that the
conditions had not been corrected. The mine was on heightened negligence for
the hazards and had been cited numerous time for similar violations. The
efforts at abatement were nil.

I
find the danger posed by the violation in subjecting miners to unknown,
uncorrected hazardous underground conditions, as well as the operator’s
knowledge of these condition to be particularly persuasive factors in finding
this violation is an unwarrantable failure.

E.      Order No.
9101768 (Docket No. LAKE 2017-0178)

.           1 .
The Violation

This
Order was issued based upon the same findings as stated above in discussion of
Order 9101767. Vandergriff stated that he found the pre-shift report dated September
19, 2016 reported correct actions taken for the 4th SE belt line included “broomed
30 to 40, 47 to 51, cleaned head number 8, 21 to 15, and 120 to 122.” Tr. 211;
Ex. S-9. However, only 6 of the 30 crosscuts listed in the pre-shift report had
actually been cleaned. Twenty-four remained untouched and he found miners
shoveling in those areas on September 20, 2016, that were listed on the
previous day as having been completed. Tr. 211. He explained that, if no
actions are taken to abate a condition listed in a pre-shift report, the corresponding
abatement action cannot be listed in the report if it has not been completed. Instead,
the condition should be recorded once again in the next examination report
until it is properly abated. Tr. 247-48.

The standard violated is cited as 30
C.F.R. § 75.360(g). Ex. S-9. It is assessed as reasonably likely to result in
fatal injuries to 30 persons, S&S, high negligence, and an unwarrantable
failure. The Secretary proposes a civil penalty of $44,546.00.

This recordkeeping regulation mandates
in pertinent part:

A record of the
results of each preshift examination, including a record of hazardous
conditions and violations of the nine mandatory health or safety standards and
their locations found by the examiner during each examination shall be made on
the surface before any persons, other than
certified persons conducting examinations required by this subpart, enter
any underground area of the mine. The record shall be made by the
certified person who made the examination or by
a person designated by the operator. If the record is made by someone
other than the examiner, the examiner shall verify the record by initials and
date by or at the end of the shift for which the examination was made. A record
shall also be made by a certified person of the action taken to
correct hazardous conditions and violations of mandatory health or safety
standards found during the preshift examination. All preshift and corrective
action records shall be countersigned by the mine foreman or equivalent mine
official by the end of the mine foreman's or equivalent mine official's next
regularly scheduled working shift.

30 C.F.R. § 75.360(g).

The Respondent again contests the
violation, gravity, negligence, S&S, and unwarrantable failure designations
with the same arguments as those posed in first Order above. Repetition of them
is unnecessary and they are rejected for the same reasons as stated in Order No.
9101766. I find the violation did occur.

2. S&S Designation and Gravity

I have found the violation occurred. I
also find the failure to maintain an accurate recording of the hazards found
and corrective action taken in the examination book contributes to the discrete
safety hazard of a miner being exposed to a fire or explosion from the
accumulation of coal. Tr. 212. I also find under continued normal mining
operations the rapidity with which accumulations can amass and dry out while in
contact with the belt, rollers or metal structure can lead to an ignition
making an injury reasonably likely. It is likely a fire would quickly propagate
through the belt line which serves as an escapeway that would reasonably result
in confusion, disorientation, and possible entrapment of miners leading to
fatalities to as many as 30 miners. This violation is very serious and I find
it to be S&S.

3. Negligence and Unwarrantable Failure

The hazardous conditions,
including those not recorded by the examiners, lasted anywhere from two days to
one week or even to all of the way back to September 6 or 7, 2016. Such a
lengthy period of insufficient recordkeeping could have catastrophic effects,
such as the inability of mine personnel to abate hazards. Out of 30 crosscuts
identified by an examiner as sufficiently broomed, only 6 of those crosscuts
were actually properly broomed, meaning it was extensive. The extensiveness and
obviousness of coal along the 4th SE belt line could not have been ignored by management.
The inaccuracy of the record book would be obvious to those in management who
countersigned the book when compared to the conditions readily observable underground.
The danger posed by misleading a miner into believing a hazardous condition had
been corrected is that he would face potentially deadly conditions underground
without warning. There is no evidence the operator took any measures to abate
the situation. In fact, management was condoning such practice.

While
there is evidence of only two prior violations of this standard in the two
years prior to this violation, such lack of clear notice of greater efforts at
compliance is not critical to my analysis of an unwarrantable failure here. As
the Commission has stated, it is not necessary to find all factors are relevant
to determine that a violation is unwarrantable. Wolf Run , 35 FMSHRC at
3520.

V.                
PENALTY

The Commission has reiterated in Mize
Granite Quarries, Inc. , 34 FMSHRC 1760, 1763-64 (Aug. 2012):

Section
110(i) of the Mine Act grants the Commission the authority to assess all civil penalties
provided under the Act. 30 U.S.C. § 820(i). It further directs that the
Commission, in determining penalty amounts, 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.

30 U.S.C. § 820(i).

The
Commission and its ALJs are not bound by the penalties proposed by the
Secretary, nor are they governed by MSHA’s Part 100 regulations, although
substantial deviations from the proposed penalties must be explained using the §
110(i) criteria. See Am. Coal Co. , 38 FMSHRC 1987, 1992-93 (Aug. 2016);
Sellersburg Stone Co. , 5 FMSHRC 287, 293 (Mar. 1983). In addition to
considering the 110(i) criteria, the judge must provide a sufficient factual
basis upon which the Commission can perform its review function. See Martin
Co. Coal Corp. , 28 FMSHRC 247, 266 (May 2006).

The Secretary
has proposed a Special Assessment (SA) for Order No. 9101931 issued by
Inspector Seitz. At trial the Secretary offered no additional evidence in
support of his proposed enhanced penalty. As discussed by the Commission, the Special
Assessment Narrative Findings (SANF) forms are general in nature and provide no
specific reasons for the SA. However, the Secretary does have the burden before
the Commission and its judges of providing evidence sufficient in the Judge’s
discretionary opinion to support the assessment. “When a violation is specially
assessed that obligation may be considerable.” See American Coal Co., 38
FMSHRC 1987, 1993 (2016). The Commission underscored the fact that the
assessment of penalties is a matter addressed de novo by the judge based
upon the evidence presented to comport with her discretionary opinion. I have
considered the gravity, negligence and seriousness of the § 75.200 violation. I
have explained my unwarrantable failure findings and considered that fact that
there was no injury or imminent danger involved. The mine was not ordered to
shut down to abate the violation, negligence was high yet not reckless, there
were 29 prior violations in two years at the mine which is not excessive and I
find no particularly aggravating factors involved. I also consider the fact
that the closely related order issued for an inadequate examination based upon
the same conditions was not given an enhancement in proposed penalty and the
operator was given a 10% Good Faith reduction in the calculation of the
proposed penalty. Based upon these considerations, I find the SA is not warranted
and I make an entirely independent assessment of the appropriate penalties for
all violations herein as set forth below.

A.     Size of
Operator; Ability to Continue in Business; Violation History

The mine is
large and the parties have stipulated that the proposed penalties will not
affect the operator’s ability to continue in business. Joint Ex. 1.

B.      Good Faith

The Secretary
credited Peabody with good faith in abating all violations at issue in this
case except Order No. 910931. Good faith is also reflected in the portion of
each citation that describes the actions taken to abate the condition and in
the testimony regarding the operator’s abatement efforts. 

C.      Negligence,
Gravity and Unwarrantable Failure

The gravity of
each violation and Peabody’s negligence with respect to the violations are
discussed at length within the body of my decision above. Specific findings as
to each factor for unwarrantable failure of each violation are discussed within
the body of my decision above.

D.     Conclusion

After considering
the six statutory penalty criteria, I assess the following penalties for the
five violations at issue in this case:

Docket No. LAKE
2017-0178, Order No. 9101931: $6,000.00

Docket No. LAKE
2017-0178, Order No. 9101766: $69,400.00

Docket No. LAKE
2017-0178, Order No. 9101768: $45,000.00

Docket No. LAKE
2017-0382, Order No. 9101767: $45,000.00

Docket No. LAKE
2016-0421, Order No. 9101933: $5,100.00

ORDER

Peabody Midwest
Mining, LLC is hereby ORDERED to pay a total penalty of $170,500.00 for
the five violations at issue in this docket within thirty (30) days of the date
of this Decision and Order. [8]

/s/
Priscilla M. Rae

Priscilla M. Rae

Administrative
Law Judge

Distribution:

Edward B.
Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South
Dearborn Street, Room 844, Chicago, Illinois 60604

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

[1] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing. There
are two volumes to the transcript and the pages are numbered sequentially
therefore they will not be referred to by volume number. The Secretary’s
exhibits are numbered Ex. S-#, Respondent’s Ex. R-#

[2] Seitz had been with MSHA for
approximately three years assigned to the Vincennes, Indiana office. He began
his mining career in 2008 with Peabody Energy and then moved to Vectren Energy.
He held mine foreman papers, methane certification, and respirable dust and
impoundment certifications. He then attended the Mine Academy and became an
Authorized Representative for MSHA.

[3] Vandergriff had been employed by
MSHA since 2015 at the Vincennes, Indiana office. He had worked for Sunrise
Coal for nine years running all types of equipment including roof bolters and
served as a face boss. He held mine foreman papers while at Sunrise. He then
attended the Mine Academy to obtain his Authorized Representative card from
MSHA.

[4] Section 104(d)
of the Mine Act states in relevant part that when an inspector finds a
violation that is of such a nature that it could significantly and
substantially contribute to the cause and effect of a coal mine safety or
health hazard, and that is caused by an unwarrantable failure of the operator
to comply with the mandatory standard, he shall include such finding in any
violation issued to the operator under this Act.

[5] Respondent also argues that the
written order is invalid as it does not provide the required specificity as to
the date and time of the particular examination that was inadequate. This order
was issued orally during the examination by Seitz who was accompanied by a
representative of management. The reason for the violation was explained to him
at the time the violation was found. The Commission has consistently held a
written violation is sufficient if the operator is adequately advised of the
violating conditions and the operator was sufficiently notified of them in
order to abate them. Additionally there was no prejudice to the operator in
their preparing for trial as pretrial discovery was robust. See Jim Walters
Resources, 1 FMSHRC 1827 (Nov. 1979); Twentymile Coal Co., 26 FMSHRC
666 (Aug. 2004).

[6] As stated above, the argument
that a condition would be corrected in a pre-shift examination “is at odds with
the basic tenets of mine inspection requirements, in that all violations could
be defended against as to whether they are S&S by maintaining that they
would have been recognized in the next pre-shift examination.” Consolidation
Coal Co ., 35 FMSHRC 2326, 2337 (Aug 2013).

[7] This case was heard in Southern
Indiana within the 7th Circuit.

[8] 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.