Rosebud Mining Company

Read the official release (fmshrc.gov)

Plain-English summary

Rosebud Mining contested five enforcement actions at its Dutch Run coal preparation plant with proposed penalties totaling $21,618. Judge Kenneth R. Andrews affirmed three significant and substantial, unwarrantable-failure violations involving inadequate examinations, combustible accumulations, and missing afternoon-shift examinations, leaving penalties of $5,503, $6,115, and $2,000. He upheld a welder-connection violation but reduced it to a non-significant and substantial section 104(a) citation with moderate negligence because the connection carried only 32 volts and did not present the gravity alleged, cutting that penalty from $4,000 to $500. He vacated a refuse-pile order because 30 C.F.R. § 77.215(h) allowed the operator a reasonable time to compact stockpiled material, especially in wet weather, and the record showed no unstable or burning material. The total penalty was reduced to $14,118.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1713(a), 77.1104, 77.504, and 77.215(h)
• Outcome: Three violations were affirmed, the welder order was modified to a $500 citation, and the refuse-pile order was vacated, reducing the total penalty to $14,118.
• Key point: Gravity and unwarrantable-failure findings must match the proved hazard, while a results-oriented refuse standard allows reasonable operational methods and timing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412) 920-7240

FACSIMILE: (412) 928-8689

October 15, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

ROSEBUD MINING COMPANY,

Respondent 

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CIVIL PENALTY PROCEEDINGS

Docket No. PENN 2011-283

A.C. No. 36-08138-248896-01

Docket No. PENN 2011-415

A.C. No. 36-08138-257541-01

Mine: Dutch Run Coal Preparation Plant

DECISION

Appearances:  Rebecca Simon-Pearson, Esq., U.S. Department of Labor, Office of the Solicitor,
Philadelphia, PA, for Petitioner;

Joseph A. Yuhas, Esq., Rosebud Mining Company, Northern Cambria, PA, for
Respondent.

Before:            Judge Andrews

These cases are before me on petition for assessment of civil penalties filed by the
Secretary of Labor, (“Secretary” or “Petitioner”) acting through the Mine Safety and Health
Administration, (“MSHA”) against Rosebud Mining Company, (“Rosebud” or “Respondent”) at
it’s Dutch Run Coal Preparation Plant (“Dutch Run”), pursuant to Sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815, 820 (the “Mine Act” or “Act”).
These dockets involve two citations and three orders issued pursuant to the Act with assessed
penalties totaling $21,618.00. The parties presented testimony and documentary evidence at the
hearing held in Pittsburgh PA, on May 16 and 17, 2012.

Common Facts and Law

The parties agreed to the following stipulations at the hearing:

1.Respondent was an “operator” as defined in § 3(d) of the Federal Mine
Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”),
30 U.S.C. § 803(d), at the coal preparation Plant, or other mine at which
the orders at issue in this proceeding were issued.

2.This proceeding is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission and its designated Administrative Law
Judges pursuant to Sections 105 and 113 of the Mine Act.

3.The subject citations/orders were properly served by a duly authorized
representative of the Secretary of Labor upon an agent of the Respondent
at the dates, times, and places states therein, and may be admitted into
evidence for the purpose of establishing their issuance, and not for the
truthfulness or relevancy of any statements therein.

4.The penalties that have been proposed for the citation and orders in this
proceeding will not affect Respondent’s ability to continue in business.

5.Rosebud Mining’s Dutch Run Coal Preparation Plant (Dutch Run)
demonstrated good faith in the abatement of the citation and orders.

6.The parties stipulate to the authenticity of their exhibits, but not to the
relevance, nor to the truth of the matters asserted therein.

7.         MSHA’s Data Retrieval System, publicly available at  http://www.msha.gov/drs/drshome.htm, accurately sets forth:

a. the size of Dutch Run Coal Preparation Plant, in production
tons or hours worked per year;

b. the size, in production tons or hours worked per year, of the coal or other mine at which the citation and orders at issue in
   this proceeding were issued;

c. the total number of assessed violations for the time period
listed; and

d. the total number of inspection days for the time period listed
herein.

8.Any computer printouts from MSHA’s Data Retrieval System are
considered authentic copies and may be admitted as business records of
the Mine Safety Health Administration.

9.Respondent’s operations at the mine at which the citation and orders at
issue in this proceeding were issued are subject to the jurisdiction of the
Mine Act.

10.Joe Smiley (Smiley) was employed as a Plant Operator at Dutch Run on
January 13, 2011 and was assigned by management to conduct daily
examinations in accordance with 30 C.F.R. § 77.1713(a).

11.On January 13, 2011, Smiley was an agent of Rosebud Mining Company
consistent with the definition provided in § 110(c) of the Federal Mine
Safety and Health Act of 1977.

12.On January 13, 2011, at 5:40 a.m., Smiley made an entry in the official
examination book that stated, “Found everything in good working
condition at the time of the inspection. Found 0.0% methane in tunnel.”

13.       On January 13, 2011, Citation No. 7061996 was issued at 6:25 a.m.

14.On January 13, 2011, Dutch Run’s draw-off tunnel belt conveyor was
energized at 6:10 a.m.

18.No daily examinations were recorded in the official examination book for
the afternoon shift on January 10, 2011, January 11, 2011, and January
12, 2011.

19.Miners were working in the plant on the afternoon shift of January 10,
2011, January 11, 2011, January 12, 2011, and January 13, 2011.

20.On April 11, 2011 the welding rod holder clamp of the Arc Welder
referenced in Order No. 8008680 was clamped to an energized bare area
of the Wire Fed Welder.

23.On April 11, 2011, both welders referenced in Order No, 8008680 were
energized.

24.This bare, non-insulated connection was created by assistant
superintendent and certified electrician, Kevin Kijowski.

25.Kevin Kijowski routinely makes the same bare, non-insulated connection
referenced in Order No. 8008680.

27.Miners at Dutch Run routinely use water hoses to clean up accumulations
of materials in the plant.

Tr. 8-9.

Other facts common to the citations and orders

In addition to the jurisdiction, fact-specific and assessed violation data set forth in the
joint stipulations, above, there are other facts common to the alleged violations. For all five, the
number of persons affected was listed as one, each was determined to be the result of
unwarrantable failure (UWF), and all were abated satisfactorily and terminated. All five were
designated Significant and Substantial (S&S), but one order was modified to a non-S&S citation.
The citations and orders of January 13, 2011 were modified to show a change in ownership from
T.J.S. Mining, Inc., to Rosebud Mining Company effective January 1, 2011. G-7, 9, 10, 13, 21.

The citation and orders were all issued by MSHA Inspector Kevin Deel (“Deel” or

“Inspector”), a Health Supervisor for a District Office since January 2012. He has worked in the
mining industry since 1976, with the first six years as a machine operator, shuttle car operator,
mine operator, and roof bolt operator. He then worked for two years as a mine examiner
beginning in 1980, followed by two years as an assistant mine foreman. He then worked 21
years as general assistant mine foreman in various locations, which included taking charge of
six underground mine units. Tr. 16-18. Deel has worked for MSHA since 2005, first as a
trainee at the Ruff Creek office for a year, then at the Kittaning office as an underground
inspector until June 2007, and then as a surface specialist. He received his AR card and has
served as an Authorized Representative of the Secretary since his first year at MSHA. Tr. 16-18.

Deel conducted inspections at Dutch Run approximately four or five times from 2007 to
January 2011.

Tr.18. During this time, it was a small, one-shift operation, three to five days a
week, with only four to six workers. Tr. 19. Deel testified that Rosebud personnel told him in
January 2011, after the company took over operation of the plant, that the intent was to increase
production to three shifts, six to seven days a week, by the end of January 2011. Tr. 18-20. On
January 11, 2011, the first day of his January 2011 inspection, Deel learned that Stan White had
come to the facility as the Plant Superintendent. Tr. 21. However, a check of the training
records revealed that Mr. White and one other worker did not have the proper hazard training.
Tr. 21. The former superintendent, Mike Rearick, was now the Plant Manager. Tr. 21. Deel
was also at the plant the next day, and again returned to Dutch Run on Thursday, January 13,
2011. Tr. 22.

Applicable legal principals

The orders and one citation discussed below were designated as S&S. S&S is described
in section 104(d)(1) of the Act as a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety or health hazard.”
30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular
facts surrounding that 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).

As is well recognized, in order to establish the S&S nature of a violation, the Secretary
must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co.,
Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that is the source of most controversies regarding
S&S findings. The element is established only if the Secretary proves “a reasonable likelihood the
hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular
facts surrounding the violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided additional guidance:

We have emphasized that, in accordance with the language of
section 104(d)(1), it is the contribution of a violation to the cause
and effect of a hazard that must be significant and substantial. U.S.
Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984);
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July
1984).

Further, “The Secretary need not prove a reasonable likelihood that the violation itself will
cause injury.” and “the absence of an injury-producing event when a cited practice has occurred
does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33 FMSHRC 2357,
2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand &
Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has pointed out that the “focus of the seriousness of the violation is not necessarily
on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather
on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996) emphasis added.

By definition, negligence is:  

conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm. Under
the Mine Act, an operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine that affect the
safety or health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices. The failure to exercise a high standard of care
constitutes negligence.

The categories and definitions of the negligence criterion are as follows:

No negligence is where the operator exercised diligence and could not have
known of the violative condition or practice;

Low negligence is where the operator knew or should have known of the
violative condition or practice, but there are considerable mitigating
circumstances;

Moderate negligence is where the operator knew or should have known of the
violative condition or practice, but there are mitigating circumstances;

High negligence is where the operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances; and

Reckless disregard is where the operator displayed conduct which exhibits the
absence of the slightest degree of care.

30 C.F.R. §100.3(d).

The orders and citations were all designated as unwarrantable failure. The UWF
terminology is taken from section 104(d)(1) of the Act, which establishes more severe sanctions
for any violation that is caused by “an unwarrantable failure of [an] operator to comply
with…mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).

The term “unwarrantable failure” is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or the “serious lack of reasonable care.” Id. at 2004; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include the length of time that
the violation has existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
danger and the operator’s knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23
FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances
exist. Consol, 22 FMSHRC at 353.

The provisions of the Mine Act cited are as follows:

§ 104(d)(1) If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation of any
mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator to cause all
persons in the area affected by such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary determines that such
violation has been abated. (2) If a withdrawal order with respect to any area in a coal or other mine has been
issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by
an authorized representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to those that resulted
in the issuance of the withdrawal order under paragraph (1) until such time as an
inspection of such mine discloses no similar violations. Following an inspection
of such mine which discloses no similar violations, the provisions of paragraph
(1) shall again be applicable to that mine.

30 U.S.C. § 814(d).

104. (a) If, upon inspection or investigation, the Secretary or his authorized
     representative believes that an operator of a coal or other mine subject to this Act
     has violated this Act, or any mandatory health or safety standard, rule, order, or
     regulation promulgated pursuant to this Act, he shall, with reasonable
     promptness, issue a citation to the operator. Each citation shall be in writing and
     shall describe with particularity the nature of the violation, including a reference
     to the provision of the Act, standard, rule, regulation, or order alleged to have
     been violated. In addition, the citation shall fix a reasonable time for the
     abatement of the violation. The requirement for the issuance of a citation with
     reasonable promptness shall not be a jurisdictional prerequisite to the
     enforcement of any provision of this Act.

30 U.S.C. § 814(a).

Findings and Conclusions

Docket No. PENN 2011-283

Inspector Deel returned to Dutch Run on January 13, 2011 in order to conduct a noise
survey. Tr. 21-22. At 5:30 a.m. he found no entries in the examination record book. Tr. 22.
After handing out dosimeters he discovered that an entry had been made in the record book at
5:40 am.

Tr. 23, 24. The entry pertained to the examination of the Dutch Run Prep Plant open
pit mine and, as relevant, read:

Found everything in a good working condition at the time of the inspection,
found 0.0% methane in tunnel…

The entry was not signed, but was initialed by Mike Rearick.

Tr. 22-24, Ex. G-1.

Deel began his inspection in the draw-off tunnel. The draw-off tunnel is a fully lined
concrete tunnel that runs 80 feet or more on a downward vertical slope from the surface. Tr. 26,
95.

The bottom has a flat concrete floor with a sump pump for drainage and is about 30 to 35
feet underground. Tr. 26, 29. The tunnel is 12 feet wide by 6 to 7 feet high and houses a 3 foot
wide conveyor belt with walkways on each side of the belt structure. Tr. 82, 94, 95. The
clearance side walkway is approximately 6 feet wide. Tr. 81. The conveyor belt is used to bring
coal from surface storage down to a belt running to the cleaning plant. Tr. 27, 29. There is a
separate, smaller escapeway tunnel from the bottom of the draw-off tunnel to the surface where
a fan pulls air up through the escapeway for ventilation of both tunnels. Tr. 28, 29.

At 0625 hours Deel issued 104(d)(1) Citation No. 7061996 to Plant Supervisor Mike
Rearick, citing 30 C.F.R. § 77.1713(a) for the following condition or practice:

An adequate examination has not been conducted of the draw-off tunnel and
draw-off tunnel belt conveyor. An examination was conducted and recorded in a
book approved by the Secretary of the draw-off tunnel at 0540 hours on 1-13-2011. The draw-off belt conveyor was started at approximately 0610 hours.
There were no hazards recorded in the daily exam book. Combustible material,
such as fine coal and coal dust, has accumulated under the tail roller of the draw-off tunnel belt conveyor with the belt and roller running in the fine coal
accumulations. When measured the accumulations measure approximately 40 to
50 inches in width by 36 inches in length by 10 to 16 inches in depth. These
accumulations are from coal run on the conveyor dayshift on 1-12-2011. By not
recognizing these combustible accumulations as a hazard and recording the
hazard in an examination book the operator has engaged in aggravated conduct
constituting more than ordinary negligence. This is an unwarrantable failure to
comply with a mandatory standard.

The Inspector determined injury or illness was reasonably likely and could reasonably be
expected to be fatal. The citation was designated S&S, affecting one person, with high
negligence. The penalty assessed was $5,503.00. Ex. G-9.

The citation was terminated at 0930 hours that day after an adequate examination was
conducted and recorded in the daily examination book, including the recording of any hazardous
conditions found and the action taken to correct the hazardous conditions. Ex-G-2, G-9.

The safety standard cited reads:

Daily inspection of surface coal mine; certified person; reports of inspection.

(a) At least once during each working shift, or more often if necessary for safety,
each active working area and each active surface installation shall be examined by
a certified person designated by the operator to conduct such examinations for
hazardous conditions and any hazardous conditions noted during such
examinations shall be reported to the operator and shall be corrected by the
operator.

(b) If any hazardous condition noted during an examination conducted in
accordance with paragraph (a) of this section creates an imminent danger, the
person conducting such examination shall notify the operator and the operator
shall withdraw all persons from the area affected, except those persons referred to
in section 104(d) of the Act, until the danger is abated.

(c) After each examination conducted in accordance with the provisions of
paragraph (a) of this section, each certified person who conducted all or any part
of the examination required shall enter with ink or indelible pencil in a book
approved by the Secretary the date and a report of the condition of the mine or any
area of the mine which he has inspected together with a report of the nature and
location of any hazardous condition found to be present at the mine. The book in
which such entries are made shall be kept in an area at the mine designated by the
operator to minimize the danger of destruction by fire or other hazard.

(d) All examination reports recorded in accordance with the provisions of
paragraph (c) of this section shall include a report of the action taken to abate
hazardous conditions and shall be signed or countersigned each day by at least one
of the following persons:

(1) The surface mine foreman;

(2) The assistant superintendent of the mine;

(3) The superintendent of the mine; or,

(4) The person designated by the operator as responsible for health and safety at
the mine.

30 C.F.R. § 77.1713.

Just minutes later, at 0635 hours, the Inspector issued 104(d)(1) Order No. 7061997, also
to Mike Rearick, citing 30 C.F.R. § 77.1104, for the following condition or practice:

Combustible material, such as fine coal and coal dust, has accumulated under the
tail roller of the draw-off tunnel belt conveyor with the belt and roller running in
the fine coal accumulations. When measured the accumulations measured
approximately 40 to 50 inches in width by 36 inches in length by 10 to 16 inches
in depth. The accumulations are dry in consistency. These accumulations are
from coal run on the conveyor on 1-12-2011. An examination has been
conducted of this draw-off tunnel and draw-off tunnel belt conveyor at 0540
hours on 1-13-2011. No action was taken to correct the condition prior to
starting and running this belt conveyor. By taking no action to correct this
condition prior to starting and running the conveyor with the belt and roller
running in these accumulations, the operator has engaged in aggravated conduct
constituting more than ordinary negligence. This is an unwarrantable failure to
comply with a mandatory standard.

Ex. G-7.

The Inspector determined that injury or illness was reasonably likely and could
reasonably be expected to be fatal. The order was designated S&S, the number of persons
affected was one, and negligence was high. The penalty assessed was $6,115.00.

The initial action identified for this 104(d)(1) Order was Citation No. 7061996,
discussed above, issued ten minutes before. The Order was terminated at 0730 hours after the
accumulations were removed from under the belt and tail roller. Ex. G-2, G-7.

The safety standard cited, § 77.1104 reads:

Accumulations of combustible materials.

Combustible materials, grease, lubricants, paints, or flammable liquids shall not
be allowed to accumulate where they can create a fire hazard.

30 C.F.R. § 77.1104.

About four hours after the above citation and order were issued, Inspector Deel also
issued 104(d)(1) Order No. 8008603 to Mike Rearick, again citing 30 C.F.R. § 77.1713(a) for
the following condition or practice:

No daily examinations for hazardous conditions, by a certified person, have been
conducted for the afternoon shift at the Dutch Run Coal Preparation Plant on 1-10-2011, 1-11-2011 and 1-12-2011.

The plant manager stated that this site has had men working afternoon starting on
1-10-2011. There were various conditions observed and cited on 1-13-2011 that
were present on 1-12-2011. If the daily examinations were being conducted the
operator would have had reason to know of these conditions. By not conducting
the daily examination for hazardous conditions when men are working the
operator has engaged in aggravated conduct constituting more than ordinary
negligence. This is an unwarrantable failure to comply with a mandatory
standard.

Ex. G-10.

The Inspector determined that injury or illness was reasonably likely and could
reasonably be expected to result in lost workdays or restricted duty. The order was designated
S&S, affecting one person, with high negligence. The penalty assessed was $2,000.00. Ex. G-10.

The initial action listed was Citation No. 7061996, issued that day and discussed above,
which cited the same safety standard, § 77.1713(a). The operator designated a certified person
to conduct the daily examinations for the afternoon shift, and the order was terminated that day.
G-2, G-10.

The safety standard cited, 30 C.F.R. § 77.1713(a), is set forth above.

Testimony of Inspector Kevin Deel

Deel testified that the main equipment in the draw-off tunnel is a conveyor belt that
brings coal from the surface storage facility down to a conveyor to the cleaning plant. Tr. 27.
This material would not have been cleaned, and could contain rock, ash, or other materials. Tr.
74, 75.

There is a separate, smaller adjacent tunnel from the bottom, used for ventilation and
for a possible secondary means of escape. Tr. 28. Walking down the draw-off tunnel Deel
observed spillage of loose and fine coal and coal dust

under the running tail roller and belt that
had been ground up in the tail roller and was very powdery and very dry.

Tr. 29, 30. The
conveyor was rubbing the coal and lifting the belt up, with the belt running in the coal. Tr. 29-30. The width of the accumulation was such that it was necessary to walk around the coal to get
to the bottom of the tunnel. Tr. 29, 30, 32.

Deel had just looked at the exam record book, and saw that it had been signed, indicating
that the examination had been done. Tr. 41, 44. Deel spoke with Joe Smiley who told him that
the full examination had been completed. Tr. 44, 97, 98. Smiley also said that he had not done
examinations for at least a year and a half, had just started on Monday of that week, and was not
sure what he was doing. Tr. 41-42, 44, 45. The record book also contained entries for January
11th and 12th by Smiley, which were identical to the entry on January 13th. Tr. 48-50; G-8.
Deel had been at the plant on those days as well, and had issued four citations for
accumulations. Tr. 41, 48-50, 57. During the examinations on the 11th and 12th, the examiner
missed the accumulations and the ignition sources, which created the conditions necessary for a
fire or explosion. Tr. 53. This resulted in a situation where if a fire occurred, a person would
have to exit through toxic smoke and heat, thus leading to burns and respiratory damage. Tr. 54,
55.

The examination was recorded in the book just 20 minutes before Deel found the hazard.
Tr. 56, Ex. G-2. Deel testified that an examination covers the entire facility, a complete
examination of the site for hazards of all kinds, which would entail traveling to all areas where
men were going to work that day including all five floors of the cleaning plant, the draw-off
tunnel, all belts, the truck dump and any electrical buildings. Tr. 45, 46, 53, 54. He estimated
that the examination would take approximately an hour to an hour and a half to complete,
assuming that the examiner found no hazards that he had to take care of, and would be
countersigned by a foreman or superintendent. Tr. 46. If the examiner found a hazard, then in
addition to recording the hazard in the book, he must also record what was being done to take
care of the hazard. Tr. 104. The accumulations had to have been seen by the examiner passing
by them, shortly before Deel found them, but no hazard was entered in the book and no action
was taken to correct the hazard. Tr. 56, 57, 76.

Deel also testified that the accumulations measured 40-50 inches wide, 36 inches long,
10-16 inches deep and were very visible since they came out from under the belt into the
walkway. Tr. 30. The width was measured with a tape measure. Tr. 86. The accumulations
were highly apparent and could not be missed since a passerby would have to step around them.
Tr. 30, 43. The particle size of the accumulations ranged from one-fourth inch to powder. Tr.

103. Deel described what was shown by the four photographs he took and annotated.

Tr. 31,

32. Exhibit G-3 shows the spillage building up directly under the bottom belt of the conveyor,
    with the belt actually rubbing on the top of the spillage, and the tail roller in the distance. The
    area is almost at the bottom of the draw-off tunnel, and the coal is out into the walkway. Tr. 32.
    Exhibit G-4 shows the tight side of the tail roller, and how far the spillage had come out from
    underneath the belt to the right of the guarding and on the walkway around the tailpiece. Tr. 33,
33. Exhibit G-5 was another photograph showing the extent of the coal rubbing the belt and
    spread clear out onto the walkway side. Tr. 35, 36. Exhibit G-6 is a photograph taken from the
    perspective of the area between the top and bottom belt at the tail roller and shows the coal
    spanning the entire width of the bottom belt and actually coming up and over the bottom belt
    where it was running in the coal. Tr. 37, 85-87.

Deel further testified that all the elements were present to make it reasonably likely that a
fire or ignition would occur and result in an injury. Tr. 39. He testified that the accumulations
were extensive, creating a prime fuel source, and that electrical components such as the sump
pump and shaker motors could serve as ignition sources. Tr. 39, 40, 102. Furthermore, if a fire
occurred, the service people and examiners that traveled in this area would be put in direct risk
of serious injury. Tr. 39, 40, 91.

Deel pointed out that fine coal dust can ignite, even when there is rock in it. Tr. 91, 101.
He described some of the factors that could lead to an explosion or fire. Methane is inherent in
coal, and can be explosive. Tr. 88-90. The tunnel was not wet. Tr. 84. An explosion caused by
fire or ignition combined with the fine coal dust would create toxic smoke, leading to injuries
that could be fatal. Tr. 40. He observed no dust in suspension. Tr. 94. He acknowledged that
the time required to exit could be a factor. Tr. 78. In a non-emergency it would take less than
five minutes to walk out of the tunnel. Tr. 93. However, in an emergency situation where smoke
was present, an individual would be required to travel on his hands and knees, thereby extending
the exit time to ten to fifteen minutes. Tr. 80, 81. Deel testified that the accumulations were
present from at least the previous day shift, but could have been present for the three days that
Smiley had been the examiner. Tr. 43, 44, 50, 51.

Deel continued his inspection throughout the coal yard and issued additional citations for
accumulations. Tr. 60. When he returned to discuss the citations, he learned there was also an
afternoon shift, but the daily examination record did not have examinations for the afternoon
shift. Tr. 61, 62. Stan White told Deel that he forgot to assign anybody to conduct examinations
on the afternoon shift for the three days of that week. Tr. 69-70. Injuries were deemed
reasonably likely due to the presence of construction workers throughout the plant and other
workers starting a subsequent shift who would not be aware of a number of possible hazards. Tr.
63-66. Workers rely on the exam books to identify possible hazards, and no examinations had
been conducted where men were working for three days. Tr. 67-69. The plant was not
processing coal on those days. Tr. 100.

Testimony of Examiner Joseph Smiley

Joseph Smiley testified that at the time of the hearing he was unemployed, but he had
spent the majority of his life in the mining industry. Tr. 108-109. After 13 years at PMC
mining, he retrained for an electrical certification, and then worked as a maintenance electrician
for about 2 years. Tr. 109. He then worked at a coal cleaning plant for 2 to 3 years, and in 1995
returned to his original employer until 2000. Tr. 110. He worked at a tipple operation before
working for periods of time for both TJS and Rosebud. Tr. 111. Most of his experience was
around cleaning plants and outside jobs such as clean up, running various types of equipment,
and performing some electrical work. Tr. 111. He did examinations in the 1970s, then again
when first employed by Rosebud for 10 months, and in January 2011. Tr. 112-113. His
certifications include methane, surface, foreman, and electrical. Tr. 113.

On January 13, 2011, Smiley went directly to the tunnel for a gas check “and more or
less looked around in the tunnel” before the belts were started. Tr. 113-114. He described the
conditions in the tunnel as “looking pretty good to me that I could see.” Tr. 117. In performing
the gas check, he described how he would watch the methanometer while walking down
through the tunnel to the bottom, where he would take a reading as high as he could reach.

Tr.

119. The methane check was his first and main priority, as well as trying to observe anything
     that would be a hazard. Tr. 121, 122. He testified that at that time he did not notice any
     hazardous conditions in the draw-off tunnel. Tr. 124. He then checked the catwalk, walking and
     looking through the plant, before signing the book attesting that he found everything to be in
     good working condition. Tr. 123, 124. Inspector Deel approached and asked if he had been in
     the tunnel, or checked it, and Smiley responded, “Yes, I was up there.” Tr. 114. Smiley also
     testified that he did not complete his examination that day, but he believed that Mike Rearick
     would finish it. Tr. 125. When asked, he opined that in the event of an emergency, it would take
     less than one-half a minute for a “real excited” guy to get out of the tunnel. Tr. 116.

Testimony of Plant Operator David Popich

David Popich also testified for the Respondent. Popich has five or six years in the
mining industry, and was last employed by Rosebud for over a year. Tr. 126. He has worked
underground running equipment, including a scoop and a roof bolter, outside as a utility man
and heavy equipment operator, and currently is a plant operator. Tr. 126-127. His certifications
include gas cards, EMT, and Supervisor. Tr. 127. His experience includes above ground pre-shift examinations for over two years. Tr. 127, 128.

On January 10, 11, and 12, Popich worked on the afternoon shift with two contract
workers on the bottom floor of the cleaning plant changing out pipes in the sumps. Tr. 129, 130.
He also testified that, although not assigned to conduct an examination of the second shift, he
did examine the bottom floor on those days to make sure everything would be in safe working
condition. Tr. 130-133. He further testified that since he did not conduct an examination of the
entire plant, and the plant was not producing, he did not write his examinations in the book. Tr.
131-134. After the citation was issued, Stan White told him he had to start writing in the book
that he did an examination. Tr. 134.

Discussion and Analysis

Citation No. 7061996

Contentions

The Respondent’s primary argument is that the citation was issued prematurely. It is not
denied that Smiley did not complete the required examinations at the time the citation was
issued, but it is argued that Smiley had until the end of the work day, 2:59 p.m., if his shift
ended at 3:00 p.m., to complete the examination. Further, since the examination would require
approximately one and a half hours, and Smiley typically continues his exams throughout the
day, he had ample time to complete the examination prior to the end of his shift.

The Respondent also argues in the alternative that the citation was improperly issued
because there was no hazardous material in the tunnel, no need to record the presence of the
material, and therefore no violation. The Respondent argues that the belt was not a possible
ignition source, and supports this position through testimony by Deel and Smiley that neither of
them had ever personally witnessed a fire caused by a belt. Furthermore, Respondent looks to
Mach Mining, LLC, where the Judge found under a different set of conditions that “it was
unlikely that the belt would generate enough heat to ignite the accumulation.” 33 FMSHRC 763,
773 (ALJ) (March 2011). Similarly relying on Mach Mining, Respondent argues that without
evidence of defect, the electrical pump in the sump and the electric shakers were not possible
ignition sources.

Beyond lacking an ignition source, Respondent argues that the accumulation was not a
likely fuel source because it was located near the back of the tunnel, and there was no evidence
of methane or dust in suspension present. Respondent argues that the S&S designation was in
error because the tunnel was only 80 feet long, and could be exited in a matter of seconds, and
since examiners and service people entered the tunnel infrequently, the likelihood of injury in an
explosion was remote.

The Secretary argues that there was an extensive and obvious accumulation of dry coal
and coal dust in contact with the energized belt in the draw-off tunnel that would have been
impossible to miss, even while taking a methane reading. The Secretary argues that Smiley’s
use of the term “everything,” when he wrote in the exam book that he “[f]ound everything in
good working condition,” indicates that he had completed his entire daily examinations,
meaning that the citation was not issued prematurely. Further, the Secretary argues that
Smiley’s admission that he did not know how what he was doing indicates that there would
have been no proper examination on that day, and that it was unlikely that one was conducted on
previous days. The Secretary states that the accumulation of combustible material combined
with several possible ignition sources, including contact with the roller and belt, constituted a
confluence of factors.

The Secretary further argues that there should be a presumption of S&S in instances
where the operator fails to conduct a daily examination. The prophylactic nature of such
examinations, the Secretary asserts, places the requirement in a unique category that does not fit
well within the Mathies framework. The Secretary reasons that the purpose of the daily
examinations is to find possible hazards, so the S&S analysis should focus on the mine at the
time the examination did not occur, rather than by the results.

Findings of Fact and Conclusions

How Smiley could have missed the easily visible accumulations that were under and in
the tail roller, and under the bottom belt of the conveyor at such a height that they were lifting
up the belt, if in fact he did conduct an examination of the draw-off tunnel on January 13 as he
testified, Tr. 114-124, defies credible explanation. Smiley’s admission to Deel that he began as
an examiner on Monday of that week, but was not sure what he was doing, rings hollow in light
of his statement to Deel (and testimony at hearing), that he had conducted examinations only a
year and a half before. Tr. 42, 44, 45; Ex. G-2, pp. 6, 7. Smiley had also made and signed
entries on the 11th and 12th which were essentially the same as the entry on the 13th, that
everything was in good working condition. Ex. G-1, G-8, Stip. #12. Deel reported in his
testimony he had issued four citations for accumulations on the 11th and 12th. Tr. 41, 48-50, 57.
The fact that citations for hazards were issued on days when Smiley recorded no hazards in the
book renders his testimony of a complete examination of the tunnel and the plant on Thursday
the 13th less than credible. Tr. 123, 124.

Deel observed that the accumulations spilled out into the walkway beside the conveyor,
and it was necessary to walk around them to reach the bottom of the tunnel. Tr. 29, 30, 32; Ex.
G-3. Yet only minutes before, Smiley had purportedly walked down the tunnel to the bottom,
Tr. 119, but testified that he did not notice any hazardous conditions. Tr. 122, 124. I am unable
to accord credibility to the testimony of Smiley in the face of the quick discovery of the
hazardous accumulations by the Inspector. Ex. G-2, pp. 4, 5, C/13. Further, Smiley’s testimony
was inconsistent; he said he did examine the tunnel or catwalk, and that he walked through the
plant, Tr. 123, 124, and told Deel a full examination had been done, Tr. 41, 44, 97, 98.
However, he also testified that he did not “complete” the examination. Tr. 125.

Respondent contends, in part, that there was no obvious hazard to be recorded in the
examination book. But the presence of the accumulations and the hazard presented is well
established and will be discussed further below with respect to the order issued minutes later.
Further, Respondent’s attempt to justify an inadequate examination by arguing, after the fact,
that it was only a partial examination to be completed later that day, must fail. While it is true
that more than one examination per shift may be conducted, the standard also specifies that an
examination must be of “each active working area and each active surface installation”
§ 77.1713(a). The examination book entry form is consistent with this requirement and reads in
pertinent part as follows:

I have personally examined the Dutch Run Prep Plant open pit mine located in
Plum Creek Township Armstrong County under Mining Permit No. 3608138…

Ex. G-1, G-8 (emphasis indicates handwritten entries).

When the form is filled out by the examiner, with no notation indicating that only a
particular area was examined, it is essentially his certification that the entire facility where men
were working had been examined. The standard further requires that any hazardous condition
must be reported and corrected. 30 C.F.R. § 77.1713(a). The accumulations in the tunnel on the
13th, and the accumulations cited on the 11th and 12th, were not recorded in the examination
book. Ex. G-1, G-8. The credible evidence clearly shows the examination on January 13, 2011,
recorded at 0540 hours failed to disclose a hazardous condition and was inadequate. Ex. G-2,
pp. 5, C/13. Accordingly, 104(d)(1) Citation #7061996 was validly issued.

The Respondent’s reliance on Mach Mining for the propositions that the belt rubbing
against the accumulations was unlikely to create enough heat to ignite them, and that without
proof of defect in the electrical equipment they were not possible ignition sources, is inapposite.
The facts involved in Mach Mining were significantly different, making the case easily
distinguishable. In Mach Mining, the Judge found that the accumulations in question were not
present during the pre-shift examination, and collected quickly. 33 FMSHRC 763, 773 (ALJ)
(March 2011). Furthermore, the Judge found that the material was wet and the rollers were no
longer in use. Id. These conditions are significantly different than the ones present in the instant
case. The conditions at Dutch Run appear more like those described in AMAX Coal Co., where
the Commission found an accumulation violation to be S&S when a motor belt was running on
packed dry coal. 19 FMSHRC 846 (May 1997).

The citation was correctly designated as S&S. A violation will be found to be S&S
under 104(d)(1) if “there exists a reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature.” Secretary v. Mathies Coal Co., 6
FMSHRC 1, 3 (Jan. 1984). To establish this, the Secretary must show:

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably serious nature.

Id. at 3-4. see also, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir.
1995);"Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-4 (5th Cir. 1988), aff'g Austin Power,
Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). The evaluation is made
in terms of “continued normal mining operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984).

The conveyor in the draw-off tunnel had been energized at 0610 hours. Tr. 52. Deel
observed the bottom belt lifted up by the accumulation and rubbing the fine coal and coal dust,
as well as the tail roller running in the built up spillage with coal ground down to a powdery
consistency. Tr. 29, 30. Ex. G-2, p. 4. There were various friction sources, including the roller,
the roller bearings, and the moving belt, which were all in direct contact with the coal dust and
powder. Tr. 29-30. In addition, there was present other electrical equipment in the tunnel as
well, including a sump pump and electric shakers. Tr. 39-40. Deel testified that these conditions
created the chance of fire or explosion. Tr. 53-54; Ex. G-2, p. C/7. Elements one and two of the
Mathies criteria are satisfied. There was a violation of the applicable safety standard—a
demonstrably inadequate examination—and a measure of danger to safety contributed to by the
violation—the failure to find and report an obvious hazard and therefore fail to give notice to
others, including management.

When analyzing the third element of the Mathies test, the Commission has provided the
following guidance:

When evaluating the reasonable likelihood of a fire, ignition, or explosion, the
Commission has examined whether a “confluence of factors” was present based on the
particular facts surrounding the violation. Some of the factors include the extent of the
accumulations, possible ignition sources, the presence of methane, and the type of
equipment in the area.

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (citations omitted).

According to this analysis, elements three and four are established here since other
miners and management would not be aware of a condition that could result in a fire, leading to
a reasonable likelihood of an injury and a reasonable likelihood that the injury would be of a
reasonably serious nature. As noted by Deel in his testimony, a fire would be accompanied by
toxic smoke and fumes, which would result in attendant respiratory damage, and heat, flames
and burns from an individual’s proximity to fire. Tr. 54, 55. These types of injuries could also
be fatal to the unwary miner in the area. Ex. G-2, p. C/7.

In making this determination, the undersigned is not unmindful that no methane was
shown to be present at the time. Ex. G-1. Yet there was the confluence of factors, combustible
material and ignition sources, to support the S&S designation. See Enlow Fork Mining Co., 19
FMSHRC 5; see also Secretary of Labor, MSHA v. Texasgulf, Inc., 10 FMSHRC 498, 501
(April 1988). The Inspector also correctly found high negligence, because the dangerous
accumulations should have been discovered and reported, and there were no mitigating
circumstances. 30 C.F.R. § 100.3(d).

The citation was correctly found to be UWF. 30 U.S.C. § 814(d). Unwarrantable failure
is “aggravated conduct, constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act.” Emery Mining, 9 FMSHRC 1997, 2004 (Dec. 1987). Based
on the legislative histories of the Coal Act and the Mine Act and on Commission precedent, the
Commission has characterized unwarrantable failure as conduct marked by,

“‘indifference,’ …‘lack of due diligence,’ and “lack of reasonable care’” Emery Mining, 9
FMSHRC at 2003.

In the instant case, there was at least an indifference to the clear meaning of the
regulatory standard as well as a serious lack of reasonable care in the conduct of the required
examination. For three days in a row, citations were issued for accumulations, but for each day
the examination was recorded as everything being in good working condition at the plant, with
no indication of any hazard present until after the instant citation was issued. Ex. G-1, G-8.
This inadequate examination was part and parcel of a series of violations of the mandatory
examination requirement over an extended period of time. The lack of recorded information
about hazardous conditions that would be obvious to any experienced miner posed a high degree
of danger to persons entering the facility unaware that such conditions were present. No effort
was made over at least the three-day period, including January 13th, to insure full and complete
examinations were conducted and recorded. This failure was, and became, obvious through the
lack of reporting of hazards in the examination book, and mine management should have been
aware of the situation because of the issuance of citations for conditions not recorded in the
book on the two days prior to the issuance of the instant citation. These factors are sufficient to
establish aggravated conduct constituting more than ordinary negligence. I find that the UWF
designation was proper.

Therefore, I find Citation #7061996 to be correct as issued, and it is affirmed.

Order No. 7061997

Contentions

Respondent does not deny that accumulations were present, which violated 30 C.F.R. §
77.1104. Rather Respondent argues that the violation was not S&S and that it was not the result
of an unwarrantable failure. Respondent argues that there was no confluence of factors such
that there was a reasonable likelihood that the hazard would result in an injury of a reasonably
serious nature. Respondent asserts that there was no ignition source present. Respondent
concedes that the accumulation of coal may have been touching the belt, but argues that neither
the belt nor the rollers were hot, making ignition unlikely. Citing Mach Mining, and Deel’s and
Smiley’s testimonies that they had never personally witnessed a fire caused by a belt running
over coal, Respondent argues that such an ignition is highly unlikely. Respondent adds that
without methane or dust in suspension present, it was unlikely that an explosion would occur.

If a fire or explosion were to occur, Respondent contends that it would be unlikely that
anyone would be in the tunnel because only service people and examiners entered the tunnel.
Additionally, the accumulations were in the back of the tunnel and Respondent notes that the
tunnel was not 200-300 feet long as the inspector believed when he issued the citation, but
approximately 80 feet long.

Respondent argues that the presence of the coal accumulations was not the result of high
negligence or Rosebud’s unwarrantable failure because the record shows that the accumulations
were present for only one production shift, it was not extensive, and the operator was not on
notice that greater efforts were needed to comply. As a mitigating factor, Respondent notes that
Smiley was conducting a methane examination, which required him to hold the methane
detector above his head and monitor it as he walked through the tunnel. The implication is that
Smiley would have been looking up, and therefore would not have been able to view the
accumulations that were on the ground.

The Secretary argues that there was an extensive and obvious accumulation of dry coal,
loose coal, and coal dust in contact with the energized belt and tail roller in the draw-off tunnel.
In addition to the possibility of ignition from the contact between the coal and the tail roller, the
pump in the sump and shaker motors constituted additional possible ignition sources. The
Secretary notes that the accumulations existed for at least one shift, but possibly up to three
days, and that they were so large that they would have been visible even to a casual observer.
These conditions, the Secretary contends, provided the necessary confluence of
factors—including oxygen, fuel, and ignition necessary for an explosion or fire—to sustain a
designation of S&S.

The Secretary argues that Rosebud displayed high negligence because the operator knew
or should have known about the accumulations, and there were no mitigating circumstances
present. Furthermore, the Secretary argues that the accumulations were the result of an
unwarrantable failure on the part of Rosebud, and that several aggravating factors were present.
These included the length of time that the accumulations existed (between one and three days);
the extent of the accumulations (approximately 40-50 inches wide by 36 inches long by 16
inches deep of fine loose dry coal); the operator’s notice (by a citation for violation of § 77.1104
for accumulations two days prior); the operator’s lack of effort to abate the condition prior to the
citation; the obvious and dangerous nature of the accumulations (they were spilling out into the
walkway); the operator’s knowledge (the accumulations were present and apparent when Smiley
conducted his examination of the tunnel); and the operator’s failure to supervise its inspectors.

Findings of Fact and Conclusions

It appears that Smiley’s main goal on the morning of January 13, 2011 was to measure
for methane in the draw-off tunnel so he could start the tunnel conveyor belt. Tr. 114, 121, Ex.
G-2, p. 7. In his testimony he described taking the methane reading by walking down to the
bottom of the tunnel and holding the meter as high as he could reach. Tr. 119. He also testified
that he looked around in the tunnel trying to observe anything that would be a hazard, but he did
not notice a hazard and the conditions looked pretty good to him. Tr. 114, 117, 122, 124.

In discussing Smiley’s inadequate examination, above, in the context of this related
citation, the undersigned was unable to accord credibility to his testimony. Here, there are
equally incredible aspects of Smiley’s testimony. It is credible that he went into the tunnel for a
methane check so the belt could be started, but not credible that he looked around the tunnel and
did not see the clearly visible, obviously extensive accumulations that had built up under the
bottom conveyor belt and into the tail roller. Ex. G-2, p. 4. The accumulations had even spilled
out beyond the width of the conveyor, and in order to reach the bottom of the tunnel, Smiley
would have to have walked around the material spilled out into the walkway. Tr. 30. The
accumulations Smiley missed could have been present for the two prior days that he recorded in
the examination book that he performed examinations. Ex. G-8. I credit the Inspector’s
observation that the accumulations could not have been missed in the tunnel that morning. Tr.
30.

Although the photographs of the scene are somewhat blocked by the annotations
superimposed by the Inspector and are not sharp, clear images, they are sufficient to visualize
the accumulations of coal under the tail roller that do appear in contact with the bottom belt, and
also appear to extend out beyond the belt structure into the walkway.

Ex. G-3, 4, 5, 6. Beyond
these general observations, I rely on Deel’s testimony, notes, and the Order. This evidence
reasonably establishes that the accumulations consisted of loose and fine coal, coal dust, and
powdery dry coal ground up in the tail roller. Tr. 29, 43, 103. The accumulations measured 40
to 50 inches wide, 36 inches long, and 10 to 16 inches deep. Tr. 30. Deel testified that the
materials came up and over the bottom belt, which was running in the coal. Tr. 37, 85-87, Ex.
G-2, p. 4. He pointed out that fine coal dust could ignite, even when there is rock in it.

Tr. 91,

101. Further, Deel testified the tunnel was not wet. Tr. 84. The draw off tunnel is a confined
     area. Ex G-2, p. C/7. The evidence found credible establishes an accumulation of combustible
     materials under conditions that could create a fire hazard. Accordingly, the undersigned finds
     that Order No. 7061997 was validly issued.

The four elements of the Mathies analytical framework are satisfied. There was a
violation of a mandatory safety standard, as set forth above, and a measure of danger to safety
contributed to by the violation, since the accumulations were combustible due to their
consistency and lack of moisture content. In the presence of an ignition source, dry fine and
powdery coal is combustible and can produce fire and even an explosion. Miners in the area
would be exposed to injury. The moving belt rubbing the accumulations, and the moving tail
roller actually in and grinding up the accumulations, provided the necessary friction that could
have served as an ignition source. There was a confluence of factors constituting a serious risk
to miners. Enlow Fork Mining Co., 19 FMSHRC 5; see also Texasgulf, Inc., 10 FMSHRC 498.
This contribution to a hazard satisfies the third element, and the fourth element is also shown
since the type of injuries that could have occurred would have been of a reasonably serious
nature. With flames, heat, toxic smoke and fumes, there exists the potential for burns and
respiratory damage, with either type of physical injury being severe enough to result in death.
Mathies Coal Co., 6 FMSHRC 1. In addition to S&S, the finding of high negligence is also
correct. 30 C.F.R. §100.3(d). The operator should have known of these conditions, through an
adequate daily examination, which the record indicates did not occur. Furthermore, there are no
credible mitigating circumstances, such as any attempts to clean up the accumulations prior to
the order being issued. Ex. G-2, pp. C/5, C/6, C/13.

I also find conduct constituting more than ordinary negligence. Although Inspector Deel
was unable to conclude that the accumulations had been present for more than a day, the record
reflects he issued citations for three successive days for accumulations that had not been
reported and corrected. While this raises the possibility the accumulations were in the tunnel
beyond the prior day shift on the 12th, it is enough for this analysis that they were not cleaned up
prior to the shift beginning on the morning of January 13, 2011. The accumulations were
certainly obvious and extensive, since they had built up to a height of 16 inches and were into
the bottom belt and tail roller. This condition posed a high degree of danger of friction igniting
the coal dust and powdered coal. Tr. 76. Electrical ignition sources were also in the
environment. This established a confluence of factors constituting a serious risk to miners, as
set forth above.

In responding to the contention that Respondent was not on notice more effort was
required for compliance with the safety standard, under the circumstances presented here this
factor in the analysis is considered less important than those discussed above. IO Coal
Company, 31 FMSHRC at 1351. That said, accumulations cited the previous two days should
have alerted management of an ongoing failure to clean up spilled material, and actual notice as
to these particular accumulations was not necessary. Further, a reasonably prudent person
familiar with the mining industry would recognize that such accumulations are a well known
hazard to the safety of miners and prohibited by the standard cited. It follows that the violation
was properly designated as UWF. Emery Mining, 9 FMSHRC 1997.

I find Order #7061997 to be properly issued as written, and it is affirmed.

Order No. 8008603

Contentions

Respondent argues that Popich conducted proper examinations on January 10, 11, and
12, 2011 of the first floor of the plant as required by § 77.1713(a). Respondent also argues that
Popich was a supervisor and a certified examiner, fully authorized to conduct examinations.
Respondent contends that the regulation only required an inspection where people work and
travel, and since the plant was not producing, the regulation only covered the first floor of the
plant. Respondent further argues that the inspector reached the conclusion on January 13th that
examinations had not been performed on the three preceding days based on conditions in the
yard and inclined walkway, both areas that did not require inspection. The areas where
inspections were conducted, the Respondent asserts, did not contain any hazards.

The Secretary argues that the plant was running an afternoon shift and had miners
working, cutting, torching, welding, and replacing pipes in the plant. The Secretary argues that
Popich did not conduct a proper examination as required by the regulations because he did not
record a methane reading, even though torches were in use, and he did not examine the belts.
The Secretary argues that the violation is S&S because Rosebud management failed to designate
a certified examiner for three days; that by not conducting examinations, miners were exposed
to potential hazards that would have been discovered by examinations; that oncoming shifts rely
on examination books to prepare for hazards, and unrecorded hazards would reasonably result in
injury; and the miners were exposed to potential shocks or burns, crushing injuries, loss of
extremities or amputation, smoke inhalation, burns, contusions, abrasions, broken bones, strains,
sprains, and other serious injuries. The Secretary further argues that in addition to the specific
hazards in this case, there should be a presumption of S&S for failing to conduct proper daily
examinations.

The Secretary further argues that Rosebud’s failure to designate someone to conduct the
required examinations for over three days displayed high negligence. The Secretary focuses on
the prophylactic nature of examinations and the length of time the operator failed to perform
them or designate someone to perform them. Further, the Secretary argues that if Popich was
the designated examiner, then he was an agent of the operator and that he committed an
unwarrantable failure in not conducting the examinations, which should be imputed to Rosebud.

Findings of Fact and Conclusions

There were miners working in the plant each afternoon shift from Monday, January 10,
2011, through Thursday, January 13, 2011, yet no daily examinations were recorded in the
official book for that shift on Monday, Tuesday, or Wednesday. Stip. # 18, 19. After the order
was issued, a person was designated to conduct the required examination for the afternoon shift.
Ex. G-2, G-10. Plant Operator David Popich was working in the cleaning plant on the afternoon
shift each of those days. Tr. 129, 130. He has over two years experience as an above ground
shift examiner. Tr. 127, 128. At that time he was not assigned to conduct examinations, and did
not write in the official book. But he testified that he did examine the bottom floor of the plant
each day to make sure everything would be in safe working condition. Tr. 130-134.

Respondent’s assertion that the plant was not processing coal on the days at issue, when
no examinations meeting the safety standard were conducted, is irrelevant. Nowhere in 30 C.F.R. §77.1713 is there an exception for periods when a plant is not actually producing
products. Inspector Deel noted that here were construction workers throughout the plant on the
13th, and other workers would enter on the next shift. Further, Deel had discovered and cited
various conditions that had been present since the day before, which, had an examination been
conducted, could have been corrected. Tr. 63-66, Ex. G-2, pp. 13, C/56-C/59. It follows that the
informal, uncommunicated look around by Popich cannot satisfy the standard.

The matter of an inadequate examination has been discussed above, and here there was a
complete failure to meet the mandatory safety standard for days before the instant order was
issued. Accordingly, the undersigned finds that Order No. 8008603 was validly issued. Ex. G-10.

The designation of S&S was found correct for the inadequate examination the morning
of January 13, 2011, as discussed above, and it is even more applicable here where there was a
failure to conduct, properly record, and complete official examinations for several days. There
was a violation of § 77.1713, a safety hazard contributed to by the violation, a reasonable
likelihood that the hazard contributed to would result in injury and a reasonable likelihood that
the injury would be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1. Each day,
men entered the work area unaware of hazards, despite the fact that a number of citations had
been issued during the week. On this record, the only thing that alerted mine management and
personnel to hazards was the presence of the MSHA Inspector and his observations and the
citations and orders he issued. The miners were not alerted in advance, and were unnecessarily
exposed to danger. I also find as proper the determination that an injury to an unwary miner
could reasonably be expected to result in lost workdays or restricted duty. Because I find S&S
present in this instance, it is not necessary for me to address the Secretary’s argument that there
should exist a presumption of S&S for failure to perform adequate examinations.

Reckless Disregard is defined as operator conduct, which exhibits the absence of the
slightest degree of care. 30 C.F.R. § 100.3(d). This criterion may apply where no required
examination was conducted for days. Mine managers told Inspector Deel that they simply
forgot to assign someone to do the daily examination on the afternoon shift. Tr. 61, 62, 70, Ex.
G-2, pp. 13, C/55, C/56. In the opinion of the undersigned, daily examinations are much too
important to the health and safety of miners to be overlooked. Yet, in this instance, when
considering whether there was reckless disregard, I will accept the excuse offered mainly
because the afternoon shift had so recently come into effect. I do affirm the finding of high
negligence, since management should have known of the mandatory requirement. Indeed,
examinations, however inadequate, were being recorded in the book for the early shift.

While stopping short of finding reckless disregard, I do find that there was a serious lack
of reasonable care in “overlooking” the mandatory examination of the afternoon shift. The
same aggravating factors that established UWF in the inadequate examination citation discussed
above are also shown in this order, except that the violative condition lasted even longer and
hence posed a higher degree of danger to miners. It was certainly obvious by the lack of
recordings in the examination book regarding the afternoon shift. A reasonably prudent person
familiar with the mining industry would know that examinations are mandatory. Nothing was
done until Deel called the violation to the attention of management. There are no mitigating
circumstances; this was a complete failure, and the standard of aggravated conduct constituting
more than ordinary negligence has been met.

I find that Order No. 8008603 was properly issued as written, and it is affirmed.

Docket No. PENN 2011-415

Three months later, on April 11, 2011 at 1115 hours MSHA Inspector Kevin Deel issued
104(d)(2) Order No. 8008680 to Assistant Superintendent Kevin Kijowski citing 30 C.F.R. §
77.504 for the condition or practice as follows:

The power connection for the Lincoln LN25 Wire Feed Welder is not
mechanically and electrically efficient and is not made with suitable conductors
on the third floor of the Dutch Run Coal Preparation Plant. A welder cable from
a Lincoln Arc 1115 480 volt Welder is clamped on to the power cable of the wire
fed welder using the welding rod holder clamp to supply power to the wire fed
welder. There are bare power leads exposed. The power on both welders is
energized. By not making a mechanically and electrically efficient power
connection the operator has engaged in aggravated conduct constituting more
than ordinary negligence. This is an unwarrantable failure to comply with a
mandatory standard.

The Inspector determined that injury or illness was reasonably likely and could
reasonably be expected to be fatal. The order was designated S&S, affecting one person, with
high negligence. The penalty assessed was $4,000.00.

The initial action was listed as Order No. 7061997 dated January 13, 2011 involving
accumulations and discussed above in Docket PENN 2011-283.

This order was terminated 15 minutes later, at 1130 hours, when the power connection
between the two welders was disconnected. On April 21, 2011 the order was modified to show
that injury expected was lost workdays or restricted duty, instead of fatal, because the voltage
present at the bare connection was reported to be between 36 and 40 volts.

The safety standard cited is as follows:

Electrical connections or splices; suitability.

Electrical connections or splices in electric conductors shall be mechanically and
electrically efficient, and suitable connectors shall be used. All electrical
connections or splices in insulated wire shall be reinsulated at least to the same
degree of protection as the remainder of the wire.

30 C.F.R § 77.504.

On the date the above order was modified, April 21, 2011, at 1100 hours Inspector Deel
also issued 104(d)(2) Order No. 8008631 to Superintendent Stan White, citing 30 C.F.R. §
77.215(h), for the condition or practice as follows:

The operator is not compacting the refuse material at the Dutch Run Coal
Preparation Plant Refuse site No. 00384-02, in 2 foot thick layers. The operator
is hauling more refuse material to the refuse site than can be spread and
compacted with the equipment and man power available. The operator is
spreading the refuse material, without compacting the material to, make room to
dump more refuse material.

The operator is aware that the refuse material is being spread without being
compacted in 2 foot layers.

By taking no action to correct this condition the operator has engaged in
aggravated conduct constituting more than ordinary negligence.

This is an unwarrantable failure to comply with a mandatory standard.

At the time, the Inspector determined that injury or illness was reasonably likely, and
could reasonably be expected to be fatal. The order was designated S&S, the number of persons
affected was one, with high negligence.

The order was later modified to reduce injury or illness to unlikely, because the hazard
would not occur until future layers of refuse were added. The injury expected was reduced to
permanently disabling because the most likely hazard would be toxic smoke and fumes from fire
that could cause lung and respiratory injuries. Since injury or illness was modified to unlikely,
the order was also modified to a non S&S citation.

On June 8, 2011, the citation was terminated when stored filter cake material was
removed, the existing refuse was compacted, and all new refuse was being compacted as it was
brought to the refuse site. The penalty assessed was $4,000.00.

The standard cited, § 77.215, is as follows:

Refuse piles; construction requirements.

(a) Refuse deposited on a pile shall be spread in layers and compacted in such a
manner so as to minimize the flow of air through the pile.

(b) Refuse shall not be deposited on a burning pile except for the purpose of
controlling or extinguishing a fire.

(c) Clay or other sealants shall be used to seal the surface of any refuse pile in
which a spontaneous ignition has occurred.

(d) Surface seals shall be kept intact and protected from erosion by drainage
facilities.

(e) Refuse piles shall not be constructed so as to impede drainage or impound
water.

(f) Refuse piles shall be constructed in such a manner as to prevent accidental
sliding and shifting of materials.

(g) No extraneous combustible material shall be deposited on refuse piles.

(h) After October 31, 1975 new refuse piles and additions to existing refuse piles,
shall be constructed in compacted layers not exceeding 2 feet in thickness and
shall not have any slope exceeding 2 horizontal to 1 vertical (approximately 27°)
except that the District Manager may approve construction of a refuse pile in
compacted layers exceeding 2 feet in thickness and with slopes exceeding 27°
where engineering data substantiates that a minimum safety factor of 1.5 for the
refuse pile will be attained.

(i) Foundations for new refuse piles and additions to existing refuse piles shall be
cleared of all vegetation and undesirable material that according to current,
prudent engineering practices would adversely affect the stability of the refuse
pile.

(j) All fires in refuse piles shall be extinguished, and the method used shall be in
accordance with a plan approved by the District Manager. The plan shall contain
as a minimum, provisions to ensure that only those persons authorized by the
operator, and who have an understanding of the procedure to be used, shall be
involved in the extinguishing operation.

Testimony of Inspector Kevin Deel

On 4/11/2011 Deel was opening an inspection at Dutch Run in the second half of the
inspection year. Tr. 143, 144. After inspecting a new construction site, he went to the prep plant
to meet with assistant superintendent, Kevin Kijowski, in order to discuss the inspection and to
look at the record books. Tr. 146, 147. While performing his inspection on the third floor, Deel
came upon a cart where a welding cable from a Lincoln arc welder was connected to a short
power cable of a wire fed welder by an uninsulated clamp onto a three inch section of
uninsulated copper. Tr. 147, 148. The power on both welders was on. Tr. 149. He described the
photograph he took as showing the bare copper sticking out of a black power lead and the clamp
as part of a live welder cable. Tr. 150. The cart was in an area where men were traveling. Tr.

152. He determined that Kevin Kijowski was the electrician who had made the connection, and
     that this was his normal way of doing it since he had done it this way for years. Tr. 154, 156.
     This was a bare power connection that could energize the metal cart, a metal gas cylinder, and the
     metal floor. Tr. 157, 158. Deel witnessed men walking past the cart, and determined that they
     were put at risk. Tr. 157. He observed one man walk right past the cart, within one or two feet
     of it. Tr. 206, 207. It was later determined that there was only 32 volts in the cable from the arc
     welder. Tr. 153. In rebuttal testimony, Deel stated that in the four years of inspections at Dutch
     Run, he had never seen a bare uninsulated connection on that welder. Tr. 247.

Deel returned to Dutch Run on April 21, 2011, and at the refuse site he observed no
compaction being done. Tr. 163. The dozer operator was pushing five-to-six foot layers short
distances in order to clear the way for more refuse to be brought to the site. Tr. 164. The dozer in
use was a D7, and another dozer, not running, was parked off to the side. Tr. 248. The site
measured about 280 feet wide by 600 feet in length. Tr. 164. The refuse was being pushed to the
side without compacting it because the plant was running three shifts a day, five or six days a
week, and three to four times the amount of material was being brought in as in previous years.
Tr. 167, 168. The dozer operator, Ken Hoffman, told Deel that he had known for a month he
would not be able to keep up with the amount of material coming in, that he had told Stan White
he did not have the equipment or manpower needed, and that White told him to spread the
material without compacting. Tr. 169, 185-190.

Filter cake was also being stored on the site, to be run through the cleaning plant. Tr. 167.
Filter cake is a clay, similar to black mud, whereas refuse is in larger particles the size of gravel
or larger rock. Tr. 180, 181, 195, 196. Deel took a series of photographs that day and explained
that they showed an area that had been compacted, very flat with dozer tracks, and also with a
roadway leading to the filter cake storage dump. The compacted area had two mounds of
uncompacted refuse and, Deel observed very deep ruts caused by dozer tracks. There was also a
two to three acre area of refuse material in five to six foot layers partially surrounding the filter
cake. This material was not compacted and not level, and this was being pushed out to make
room for more refuse. Tr. 165-181. Deel further testified that his concern was for the future:
should compacted layers be added on top of uncompacted material, there would be a danger of
friction and instability. Tr. 164, 182, 183, 191, 192. He spoke with company personnel that day,
and there was an agreement that they did not have the manpower or equipment to properly handle
the amount of material. Deel decided that the 104(d) order would be issued to stop material
coming to the site until there was a plan to remedy the situation. Tr. 188. In rebuttal testimony,
he was of the opinion that coarse refuse material could be compacted regardless of weather
conditions with enough manpower and equipment. Tr. 249.

Testimony of Assistant Supervisor Kevin Kijowski

Kijowski has worked for Rosebud for over a year, but also at Dutch Run under the
former owner intermittently for fifteen years. Tr. 210. He has a total of approximately twenty
five years experience in the mining industry. Tr. 210. His jobs have included mechanical,
welding and fabricating, and he has all three electrical certifications and a gas card. Tr. 211. On
April 11, 2011, he was an Assistant Supervisor at Dutch Run. Tr. 211. Kijowski made the
connection on the welder that was cited that day, which he considered to be suitable since it was
only an extension of a welding rod. Tr. 212. He was emphatic that the connection had been seen
by several inspectors over the last five years and nobody ever commented on it, including
Inspector Deel. Tr. 213, 214, 216. He did not consider the crimped connection to be hazardous
since it had very little voltage and it was not fatal. Tr. 214, 215. He pointed out that no current
runs through the connection until you strike an arc.

Tr. 224. He admitted that the standard
requires the connection to be insulated, and that the connection could have been insulated with a
coupling boot. Tr. 220.

Testimony of Ken Hoffman

Hoffman had been employed by Rosebud since February 2011, and had forty five years
in the mining industry working for four companies as a dozer operator. Tr. 227. Before
Rosebud took over, there were 3 or 4 shifts a week, while after the transfer there were about 15
shifts a week. Tr. 234.

On April 21, 2011, Hoffman was maintaining the Dutch Run refuse site, where he had
worked for fifteen years. Tr. 230. The weather had been nasty for over six months, with rain,
freezing and thawing. Tr. 233. Due to the freeze and thaw cycles, the increased amount of
material coming in started to become an issue. The material was being pushed to the side and
stored in piles, to be brought up later, spread and compacted. Tr. 230, 232, 233. Hoffman
testified that he spoke with Stan White about the conditions, and in the following days two rock
trucks, two D7 dozers and a compactor were added to the D5 dozer at the site. Tr. 233. On
April 21st, Hoffman was operating one of the newly obtained, larger D7 dozers. The other
additional equipment was added after the order was issued. Tr. 235, 236. With the added
equipment the issue of the amount of material was resolved in two and a half weeks. Tr. 233.

Testimony of James J. Szalankiewicz

Szalankiewicz is a self-employed consulting engineer who has Associates degrees in
Mining Technology and in Surveying Technology. Tr. 238. He is a Registered Professional
Engineer and a Professional Land Surveyor in the Commonwealth of Pennsylvania. Tr. 238,

239. He has over 40 years experience in the mining industry as a mine surveyor, mine planning
     engineer, and co-owner, operator and chief engineer of numerous mines in two Pennsylvania
     counties. Tr. 238-239. In 2007 he sold his interest in that company and started his small
     consulting firm Tr. 239.

Szalankiewicz designed the original refuse pile at Dutch Run. Tr. 239, 240. On April
21, 2011, he was called to the site by a Rosebud employee. Tr. 240, 241. At the site he observed
very severe wet weather conditions. Tr. 241. On the compacted areas, there was a large amount
of filter cake, and there was a large area of uncompacted material being stored to be
redistributed and compacted as required when the weather was proper. Tr. 241. He pointed out
that you cannot compact anything in wet, muddy and sloppy conditions, because the moisture
content has to be correct. Tr. 241. He recalled that in the past when weather conditions were
unsuitable, the material was stockpiled on the site and then redistributed and compacted when
the weather changed and the moisture decreased. Tr. 245. The site was overwhelmed because of
the weather conditions. Tr. 244. He further testified that in his experience at Dutch Run there
has never been a time when material was compacted in more than two-foot layers. Tr. 243. He
also stated that, considering the weather conditions on April 21, 2011, additional machines
would not have lessened the extent of the uncompacted material at the site. Tr. 243-244.

Order No. 8008680

Contentions

The Respondent argues that the citation was not properly issued because it was not on
notice that this practice would be cited as a safety hazard. The Respondent asserts that
Kijowski, who has 31 years of mine experience and is presumably a reasonably prudent person,
was not aware that the connection violated § 77.504. Furthermore, Kijowski had been using the
same connection for approximately five years, during which time MSHA had conducted ten
complete inspections. Respondent asserts that during this time, “this connection had been
observed and accepted by several MSHA inspectors.” Resp. Brief 10. Without providing
advance notice of how MSHA was interpreting its regulations, it could not assess a civil penalty
for apparent violations.

The Respondent also argues that it did not violate § 77.504 because the connection
employed was suitable. The Respondent contends that the inspector conflated the various parts
of the regulation, and that there is no requirement that the connection be insulated. All that is
required is that the connection be “mechanically and electrically efficient.” 30 C.F.R. § 77.504.

Respondent argues that if there was a violation, it was not S&S because there was no
reasonable likelihood that the cited condition would result in a serious injury. The Respondent
notes that the potential electrical current in the uninsulated connection was between 12 and 30
volts, that it was located on the third floor (of six) of the plant, and that there was generally only
one person present in the plant at any time. Furthermore, anyone present would have been
accompanied by a certified person who would have proper training such that risk of shock
would be minimal. The Respondent argues that this scenario did not present the appropriate
confluence of factors to find S&S.

Furthermore, the Respondent argues that, that if there was a violation it was not due to
high negligence or unwarrantable failure. Respondent argues that the condition never posed a
high degree of danger and it was abated in a timely manner. Respondent asserts that Kijowski’s
firm belief in the appropriateness of the connection should be counted as a mitigating factor.

The Secretary argues that the citation was properly issued because the plain language of
§ 77.504 requires that electrical connections in insulated wire be re-insulated to the same degree
as the wire. In this instance there was a 3-inch uninsulated piece of copper conductor exposed,
which should have been covered by a coupling boot. The Secretary also argues that the
violation was S&S because the voltage running through the connection would lead to electrical
shock if touched. The Secretary asserts that it was reasonably likely that such electrical shock
would occur and that it would result in injury because the uninsulated condition was located in
an area where miners frequently work and travel, in a plant with wet conditions. Furthermore,
the Secretary argues that the cart could have become energized, which would have sent
electricity to the metal floor or the compressed air cylinder, all of which would have led to
injury to a miner, even if the miner was trained. Lastly, the Secretary argues that the possible
electric shock could have resulted in burns or death, making it of a reasonably serious nature.

The Secretary contends that the violation was due to high negligence and unwarrantable
failure. The Secretary cites the length of time that the uninsulated connection was used (two to
three hours); the extent of the violation in that it was reasonably likely to energize the cart,
cylinder, and floor; that the operator was on notice because the regulation’s meaning was clear;
that there were no attempts to abate the condition; that the violation was obvious and known to
the operator; and that Kijowski should be held to a higher standard of care because he was a
supervisor.

Findings of Fact and Conclusions

This order was modified on April 21, 2011 to reduce the expected injury from fatal to
lost workdays or restricted duty. Ex. G-13, p.2. As will be discussed below, I find that this
modification was inadequate; information available to MSHA after the order was issued shows
that the gravity was overstated.

The safety standard states:

Electrical connections or splices in electric conductors shall be mechanically and
electrically efficient, and suitable connectors shall be used. All electrical
connections or splices in insulated wire shall be reinsulated at least to the same
degree of protection as the remainder of the wire.

30 C.F.R. § 77.504.

This standard concerns the suitability of electrical connections or splices. The first
sentence requires that suitable connectors be used that are mechanically and electrically
efficient. The second sentence adds that connections or splices in insulated wires must also be
insulated, “reinsulated”, to afford the same degree of protection provided by the insulated wires
being connected together. Respondent contends, in effect, that the standard applies only to the
wire that is already insulated. But the plain meaning of the two sentences, read together and as
pertinent here, is that the entire course of an electrical lead, including any splice or connection
anywhere in that lead, must be properly insulated. Falkirk Mining Co., 19 FMSHRC 149 (Jan.
13, 1997) (ALJ). Simply put, this means no bare wire splices or bare metal connectors between
insulated wires.

Respondent’s argument leads to an absurd result, as is evident in this case. The safety
standard seeks to protect individuals from the risk of shock. One cannot subvert the clear intent
of the regulation by simply using wire that had not previously been insulated, and then claim
that the regulation only concerns reinsulation.

The connection found by Inspector Deel on April 11, 2011 consisted of a metal clamp on
a three inch piece of solid copper metal protruding from the insulated boot of one of the
electrical cables.

Stip. # 20. The photograph Deel took illustrates the connection well. Ex. G-12. Assistant Superintendent and electrician Kevin Kijowski made the connection to extend a
welding rod. Stip. # 24, Tr. 212. Kijowski testified that that the same connection had been made
for the last five years and had been seen by several inspectors on various occasions. Tr. 213.
Kijowski testified that nobody, including Inspector Deel, ever commented on the connection, or
remarked that there was anything wrong with it. Tr. 213, 214, 216. He also stated that there was
very little voltage and no current running through the connection. Tr. 214, 215, 224. He did
admit that the connection could have been insulated using a coupling boot. Tr. 220. In his
testimony, Deel denied ever seeing such a connection at Dutch Run, Tr. 247, but we do not need
resolve this conflict in testimony. It is sufficient that the connection was openly visible for
many years and never cited.

The Condition or Practice written by Deel in the citation is only partially correct.
Though the citation states that the issue was the mechanical and electrical efficiency of the
welder, this issue was not addressed at hearing by either party. It has not been established on
this record that the connection was or was not mechanically and electrically efficient. The fact
that it had been used in welding operations at the plant for many years speaks to the general
efficiency of the connection. Further, close expert examination of the components of the
connection and their assembly would be required to determine mechanical efficiency or
inefficiency, and no evidence of such examination has been submitted. In order to determine
electrical efficiency, expert measurement with appropriate instruments across the connection
would be required. This type of evidence is not available in this record.

The issue here is the bare connection, and whether it must be protected, or insulated. Ex.
G-12. Even though the welder was a 480-volt arc welder, such high voltage was not present at
the connection. The modification made on 4/21/2011 was to reduce the voltage to between 36
and 40 volts, Ex. G-13, but Deel conceded in his testimony that only 32 volts were present. Tr.

153. As Kijowski noted, there was no current flowing in the wire. Tr. 224.

However, the undersigned finds that the following parts of the Condition or Practice
were recorded correctly:

The connection was not made with suitable conductors (e.g. insulated);

Bare power leads were exposed; and

Both welders were powered on. See Stip. # 23.

Had Deel limited the narrative in this manner, his credibility would not have been impacted.

Since there was some degree of shock hazard present, the safety standard was violated
by the bare connection between insulated wires. Furthermore, the undersigned finds that the
operator was on notice of the regulation and its meaning. The Commission has looked at a
variety of factors in analyzing whether an operator had fair notice of the Secretary’s
interpretation of a regulation, including “the text of the regulation, its placement in the overall
regulatory scheme, its regulatory history, the consistency of the agency's enforcement, whether
MSHA has published notices informing the regulated community with ‘ascertainable certainty’
of its interpretation of the standard in question, and whether the practice at issue affected
safety.” Secretary v. Weirich Brothers, Inc., 28 FMSHRC 66, 68-69 (Feb. 2006) (ALJ), citing
Island Creek Coal Co., 20 FMSHRC 14, 24-25 (Jan. 1998). In this instance, the regulation’s
clear meaning combined with the publicly available FMSHRC decisions interpreting it in
accordance with the Secretary’s current interpretation, such as Falkirk Mining Co., speak
overwhelmingly to the satisfaction of the fair notice requirement. Furthermore, the regulation at
issue here was safety related, and its violation produced at least some safety risk for those in the
vicinity.

Having found that the mandatory safety standard was violated, and there was a measure
of danger and some degree of shock hazard, which were contributed to by the violation, the first
two elements of the Mathies analysis are present. Electrical shocks can result in injury, and can
also be serious in nature. In this case, however, with only 32 volts and no current present at the
bare connection, it has not been shown that contact would result in such a shock injury that it
would be of a reasonably serious nature. Accordingly, absent satisfaction of the fourth Mathies
element, I find that S&S is not established.

Inspector Deel’s assessment of high negligence was not modified, but should have been,
upon learning that the true number of volts present in the lead was not 480, but rather 32. The
fact that this was not dangerous high voltage presented an entirely different level of gravity,
which was not adequately addressed with the single modification on April 21, 2011. At most,
this was moderate negligence based on the mitigating circumstances ascertained on review. 30
C.F.R. §100.3(d).

The inconsistencies between Deel’s notes and the citation and testimony are revealing.
In his notes he wrote that the area was constantly wet, Ex. G-11, p. C/5, and it was stipulated
that clean up with water hoses is routine. Stip. # 27. But he did not report wet conditions in the
citation, and the photograph shows no visible moisture at all. Ex. G-12. Deel also wrote that
numerous contractors traveled past the connection, EX. G-11, p. 12, but in the citation listed the
number of persons affected as one. Deel’s testimony regarding the level of gravity, presented at
a time when he had learned only 32 volts were present at the connection, is not credible. I do
largely credit the testimony of electrician Kijowski; he candidly admitted that the connection
could have been insulated, but did not consider the connection to be fatally hazardous. He was
correct on both counts. In the opinion of the undersigned, issuing a 104(d) (2) withdrawal order
was not appropriate. However, the operator is now on notice that any use of uninsulated
electrical cable connections in the future will no doubt bring increased scrutiny and potential
penalties.

The connection did not pose a high degree of danger and was not extensive, being
isolated to one welding cart. The bare connection was obvious, but the fact that Kijowski used
this type of connection for years without a citation being written supports a finding that the
operator was not on notice that more needed to be done. From this discussion, it follows that I
find this violation not to be the result of UWF. In conclusion, the citation is further modified.

Order No. 8008631

Contentions

The Respondent argues that the citation for violation of § 77.215(h) was issued
prematurely, as there is nothing in the record to indicate that refuse piles were in excess of the
allowable limit. The Respondent also argues that the regulation does not provide a time period
within which the refuse must be compacted, and Deel cited the operator for possible future
violations. It is asserted that the material was being compacted in two-foot lifts, but adverse
weather conditions made compaction impossible, even if additional machinery and manpower
were added.

The Respondent further argues that if there was a violation, it was not S&S or due to an
unwarrantable failure because the refuse remained uncompacted due to weather conditions. The
wet conditions at the refuse piles made compaction impossible because it is critical for the
material to have a specific range of moisture content prior to compaction.

The Secretary argues that the operator was not compacting refuse into two-foot layers,
thereby creating a risk of fire or instability. The Secretary argues that the uncompacted piles
were approximately 10-15 feet high and 280 feet wide by 600 feet long, which would make
them well above the limit allowed by the regulations. Furthermore, the operator did not stop
adding to these piles, but rather shifted them around as more refuse was brought in. The
Secretary argues that though there is no specific time allowance in the regulations, MSHA has
consistently imputed a reasonable amount of time for compliance in the absence of statutorily
imposed time limits. In this instance, the Secretary argues that the month-long presence of
uncompacted refuse was unreasonable.

Findings of Fact and Conclusions

The record reveals that Inspector Deel issued the 104(d)(2) withdrawal order based on a
concern for the future, fearing that compacted material would be added on top of uncompacted
material, ultimately leading to instability of the pile. Tr. 164, 182, 185, 191, 192. However, this
is not what he wrote in the order at 11 am on April 21, 2011, not long after he arrived at the site.
He first wrote that the operator was not compacting refuse material in 2 foot thick layers. He
also wrote that the material was being spread without being compacted, and that the operator
was taking no action to correct that condition. Ex. G-21. However, there is no evidence that the
compacted layers at the pile exceeded the two-foot thickness limitation. Material was being
spread for future compacting, and this procedure is not in apparent conflict with the regulation.
Far from taking no action, the operator had already begun to remedy the situation with the
addition of a larger D7 dozer. Tr. 233. On the day of the inspection it was true that more refuse
was being hauled to the site than could be handled by one person.

Deel has inspected surface refuse piles for about 4 years, but he has no experience
actually working on a refuse pile or as a dozer operator. Tr. 203. Ken Hoffman has operated a
dozer for 45 years. Engineer James Szalankewiecz actually designed the original pile at Dutch
Run and had been a co-owner, operator and Chief Engineer of numerous mines. Tr. 238, 239.
Both of these witnesses have much more experience with refuse piles than Deel. The testimony
and opinions of Szalankewiecz, by virtue of his education, knowledge, expertise and experience,
are found to be highly credible regarding the conditions on April 21, 2011. In his several years
of experience at Dutch Run, there had never been material compacted in more than two-foot
layers. Tr. 243. He pointed out that material cannot be compacted in wet, muddy and sloppy
conditions because the moisture content must be correct. Tr. 241. He further testified that in the
past at Dutch Run, when the weather was unsuitable, material was stockpiled and then
redistributed and compacted when the moisture was decreased. Tr. 245. In his opinion,
additional machines or manpower would not have reduced the extent of uncompacted material
on April 21, 2011, since the site was overwhelmed as a result of the weather. Tr. 244. Since I
find Szalankewiecz to be a credible witness, I therefore find Deel’s testimony to the effect that
compacting can take place regardless of weather conditions not credible. Tr. 249.

In his notes, Deel recorded information about his meeting with Dozer operator Hoffman,
Engineer Szalankewiecz, and Plant Superintendent Stan White. Hoffman stated to Deel that
more refuse was coming than could be spread in one shift. Szalankewiecz said that the site ran
out of space due to the storage of filter cake, and Stan White told him that the refuse material
would be compacted but, due to the weather, the filter cake had been too wet to move. Ex G-11,
4/21/2011, pp. 3, 6, 7-8.

While meeting with White and the engineers on that day, Deel also learned that they
were working out a plan to remedy the situation at the site. Ex. G-11, 4/21/2011, pp. 9-10.
They were going to immediately move part of the filter cake, start compacting on the outer lip of
the site, bring in a second large D7 dozer, run additional shifts as needed, and start a new layer
of the pile on the northern end of the site. In addition, a written plan would be submitted to
MSHA. Ex. G-11, 4/21/2011, pp. 9, 10. Yet Deel wrote in the order that the operator was
taking no action to correct the condition. Ex. G-21.

On April 27, 2011, only days after the citation was issued, Deel modified the order to a
non-S&S citation, with injury unlikely but expected to be permanently disabling. Ex. G-21. On
June 8, 2011, Deel traveled to the refuse site and found that all the filter cake and refuse had
been spread and compacted, and he terminated order number 8008631. Ex. G-11, 6/8/11, p. 1.

Nothing in the inspection notes or testimony indicates that any refuse had been
compacted on top of uncompacted or improperly compacted refuse. In fact, Deel testified that
the material under the uncompacted material had been compacted. Tr. 250. Deel also
acknowledged that there was a very flat compacted area with a roadway and dozer tracks, and he
was aware that filter cake was just being stored for further processing. Tr. 172-174. In his
conversations on April 21, 2011, Deel learned that: management was already aware of the
situation, a large, D7 dozer had already been added to the site, filter cake would immediately be
moved to facilitate existing compaction, a new layer for compacting would be started in another
area, and additional shifts of personnel would be added as needed. Ex. G-11, 4/21/11, pp. 9-11;
Tr. 197. Despite this information, Deel issued the withdrawal order, which in the opinion of the
undersigned was inconsistent with the standard cited and hence unnecessary.

When compared to the refuse safety standard, set forth above, it becomes clear that the
order was issued in error. The standard does not limit the amount of uncompacted refuse stored
at a pile. The standard does not prohibit storing and spreading refuse, and compacting it at a
later time.

See e.g. Secretary v. Power Operating Company, 17 FMSHRC 421 (Mar. 1995)
(ALJ) (holding that an operator waiting several days to compact as the refuse dried complied
with regulation). Nothing in the standard requires compaction within a certain amount of time
after refuse arrives at a site. And, the standard does not require that compaction take place
regardless of adverse weather conditions.

Even a cursory reading reveals § 77.215(h) to be a results-oriented regulatory provision.
It speaks directly to the construction of a refuse pile in compacted layers not exceeding two feet
in thickness, along with certain slope requirements. The process, methods, timing and other
factors that go into achieving the mandated result are not addressed. It can only be concluded in
this context that the process is left up to the operator, so long as it is within a reasonable
timeframe. Here, the undersigned credits Szalankewiecz’s testimony that the weather served as
a hindrance to immediate compaction, Tr. 241, and therefore finds the timeframe reasonable.
Deel did not discover compacted material on top of uncompacted refuse. There was no fire or
burning material noted. Therefore, there is no evidence of instability or a toxic inhalation or
burn injury hazard. A hazard warranting corrective action within the purview of Section
77.215(h) was not present. Alabama By-Products, 4 FMSHRC 2129 (Dec. 1982).

In the days that followed, mine management followed the plan communicated to Deel.
Tr. 233. A second D7 dozer was added, for a total of three dozers on site. Rock trucks and a
compaction machine were added, and manpower increased three fold with multiple shifts as
needed. Tr. 197, 233, 248. The plan was successful; by June 8, 2011, all refuse was being
compacted and the citation was terminated. Ex. G-11, 6/8/11, p. 1.

Although modified, the order should have been vacated because the standard cited was
not violated. Given all of the facts and circumstances surrounding the Dutch Run refuse site
from April 21, 2011, through June 8, 2011, the operator should have been commended for
recognizing a challenging situation and taking action to insure the proper construction of the
pile. Instead, the operator was cited and fined. Since I am unable to find this order to have been
validly issued, it is vacated.

Civil Penalties

The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Act are well-established. Section 110(i) of the Act
delegates to the Commission and its judges the authority to assess all civil penalties provided in
[the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary.
30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §
2700.28. The Act requires, that in assessing civil monetary penalties, the Commission [ALJ]
shall consider the six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect of the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] 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 undersigned affirms Citation No. 7061996 as issued, and finds the inadequate
examination of the Dutch Run plant to have been a violation of 30 C.F.R. § 77.1713(a). The
citation was correctly designated as being S&S, resulting from high negligence and an
unwarrantable failure. The citation and penalty of $5,503.00 were correct as issued and are
affirmed.

The undersigned also affirms Order No. 7061997 as issued, and finds the accumulations
of combustible materials, as they were, to have been a violation of 30 C.F.R. § 77.1104. The
citation was correctly designated as being S&S, resulting from high negligence and an
unwarrantable failure. The citation and penalty of $6,115.00 were correct as issued and are
affirmed.

The undersigned also affirms Order No. 8008603 as issued and finds the lack of daily
examinations for hazardous conditions to have been a violation of 30 C.F.R. § 77.1713(a). The

citation was correctly designated as being S&S, resulting from high negligence and an
unwarrantable failure. The citation and penalty of $2,000.00 were correct as issued and are
affirmed.

Order No. 8008680 was issued for a violation of 30 C.F.R. § 77.504 for an uninsulated
connection on a welder. The violation was modified by the Inspector to non-S&S, but was
designated as resulting from high negligence and an unwarrantable failure, and a penalty of
$4,000.00 was assessed. For the reasons articulated above, the undersigned modifies the order to
a 104(a) citation, non-S&S, non-UWF and resulting from moderate negligence. Accordingly, the
penalty amount will be reduced. The Act requires, that in assessing civil monetary penalties, the
Commission [ALJ] shall consider the six statutory penalty criteria outlined in §110(i).

The undersigned has fully considered all six statutory penalty criteria and assesses a civil
penalty in the amount of $500.00. The operator stipulated that the higher penalty amount
proposed by the Secretary would not affect its ability to continue in business, so it follows that
this reduced penalty will similarly not affect the operator’s ability to continue in business. Stip.

4. Although the Dutch Run plant has a history of violations in the 15-month period preceding

the issuance of the instant citation, Stip. #7, Rosebud had only operated this plant since January
1, 2011. There was only moderate negligence. The undersigned further notes that there was
rapid good faith compliance. Stip #5.

Finally, the undersigned vacates Order No. 8008631, issued for alleged violation of 30
C.F.R. § 77.215(h) with the assessed penalty of $4,000.00. As articulated more fully above, the
citation was incorrectly issued, as there was no evidence that the operator was not complying
with the regulation by compacting the refuse material in a reasonable manner and within a
reasonable timeframe.

In summary:

Violation #

Original Assessment

Penalty Determined

7061996

$5,503

$5,503

7061997

$6,115

$6,115

8008603

$2,000

$2,000

8008680

$4,000

$500

8008631

$4,000

$0 (Vacated)

Total

$21,618

$14,118

The reduction in the total penalty to $14,118.00 is reasonable considering the operator’s
negligence, the gravity of the violations and the demonstrated good faith in attempting to
achieve rapid compliance.

Considering the stipulation that the penalty of $21,618.00 originally charged
would not affect the operator’s ability to continue to in business, Stip. #4, and also
regarding the size and history of Dutch Run, Stip. #7, the total penalty as assessed herein
is reasonable.

ORDER

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or
VACATED as indicated. Rosebud Mining Company is ORDERED TO PAY the Secretary of
Labor the sum of $14,118.00 within 40 days of the date of this decision.

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution: (Certified Mail)

Joseph A. Yuhas, Esq., Rosebud Mining Company, P.O. Box 1025, Northern Cambria, PA
15714

Rebecca Simon-Pearson, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S.
Independence Mall West, Suite 700 East, Philadelphia, PA 19106