Secretary of Labor v. Consol Pennsylvania Coal Co., LLC

Plain-English summary

MSHA cited Consol Pennsylvania Coal after a sample from the Harvey Mine contained less incombustible material than the rock-dust standard required. The standard did not require rock dusting within 40 feet of the working face, so the sample's location determined whether a violation existed. The citation and contemporaneous notes placed the sample at or near a spad about 15 feet from the face, while the two inspectors gave conflicting testimony that it was taken 50 to 65 feet away. Judge William S. Steele found the Secretary's evidence too inconsistent to prove that the sample came from an area where rock dust was required. The judge vacated Citation 9073907 without reaching its S&S, gravity, or negligence designations.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 75.402 and 75.403
• Outcome: Citation 9073907 was vacated.
• Key point: A noncompliant dust sample does not prove a violation when the Secretary cannot reliably establish that it was collected outside the standard's 40-foot exemption.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE
ROAD

PITTSBURGH, PA
15220

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONSOL
PENNSYLVANIA COAL CO., LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2016-132

A.C.
No. 36-10045-402245

Mine:
Harvey Mine

DECISION AND
ORDER

Appearances:               Anthony
Fassano, Esq., for the Petitioner, U.S. Department of Labor, Office of the
Solicitor, Philadelphia, Pennsylvania

Patrick Dennison, Esq., for the
Respondent, Jackson Kelly, LLC, Pittsburgh, Pennsylvania

Before:                                    Judge
Steele

This case is before me upon a petition
for assessment of a civil penalty, pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). A hearing was held in
Pittsburgh, Pennsylvania on September 20, 2016. [1]
The parties subsequently submitted post-hearing briefs.

Statement of the Case

This case concerns an alleged violation
of 30 C.F.R. § 75.403, “Maintenance of incombustible content of rock dust.” On
December 22, 2015, two MSHA inspectors traveled to the Harvey Mine for a five-day
inspection. During the course of this inspection, a rock dust sample was taken
in the No. 3 Entry of the mine. After the sample was sent off for laboratory
testing, it was found to be non-compliant under rock dusting regulations. As a
result, Citation No. 9073907 was issued to the Respondent. The inspector who
issued the citation and the supervising inspector who accompanied him differed
at hearing on where the sample was taken. The contemporaneous notes of the
issuing inspector, as well as the language of the citation, contradicted the
testimony of the inspectors at hearing. The discrepancies between the evidence

presented
by the Secretary and the testimony offered at hearing, as well as contentions
made by the Respondent, raised questions as to where the sample was actually
taken.

Stipulations

At hearing the parties entered the
following joint stipulations into the record:

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

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

3. Respondent was
   an “operator,” as defined in §3(d) of the Act, 30 U.S.C. § 802(d), at the Mine
   at which the Citations in this matter were used.

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

5. True copies of
   the Citations in this matter were served on Respondent and/or its agents as is
   required by the Act.

6. The Citations
   contained in “Exhibit A” attached to the Secretary’s petition in the case
   bearing Docket No. PENN 2016-132 are authentic copies of the subject Citations,
   with all the appropriate modifications or abatements, if any.

7. Payment of the
   total proposed penalty in this matter will not affect Respondent’s ability to
   continue in business.

8. Respondent
   demonstrated good faith in the abatement of the alleged violations.

9. Pursuant to 30
   C.F.R. §§ 75.402-403, Respondent was not required to rock dust the 3A entry
   from the face outby 40 feet.

10. With the
    exception of Respondent’s exhibit R-1, the parties stipulate to the authenticity
    of the exhibits referenced in the parties Prehearing Statements (with all
    amendments thereto) but not the relevancy or truth of the matters asserted
    therein.

11. The R-17
    Assessed Violation History Report (Government Exhibit 7) is an authentic copy
    and may be admitted as a business record of the Mine Safety and Health
    Administration.

12. Consol escort
    Albert Stein traveled with the inspector on December 22, 2015 when the rock
    dust sample at issue was collected.

Sec’y’s Br., 3-4. [2]

Summary of the Testimony and Record

On December 22,
2015, Inspector Jason Detrick [3]
and his supervisor, Inspector Tom Bochna [4] ,
performed a five day spot-check at the Harvey Mine, operated by the Respondent,
Consol Pennsylvania Coal Company. Tr. 28. [5]
The Harvey Mine is a mine that liberates a large amount of methane,
necessitating these inspections under the Mine Act. Tr. 28; 30 U.S.C. § 813(i).
Inspector Detrick began inspecting on his own in October 2015. Tr. 52-53.

As part of his inspection, Inspector
Detrick took a rock dust sample in the No. 3 Entry of the Harvey Mine. Tr. 37.
Inspector Detrick also sampled the air for methane concentrations. Tr. 45. The
methane detected within the tested area was .5 percent. Tr. 45. The rock dust sample
contained 66.2 percent incombustible content. Tr. 48.

The inspection party on December 22,
2015, consisted not just of Inspectors Detrick and Bochna but also Albert
Stein, safety escort for the Harvey Mine, and Steve Apperson, the supervisor of
safety at the Mine. Tr. 36. Detrick testified that no mining was ongoing at the
time and that ventilation controls were in place and adequate at the time of
inspection. Tr. 77. Parameter checks, which generally take place within the
first hour of operation and are a prerequisite before progressing into mining,
were ongoing. Tr. 43, 84.

Citation No. 9073907 was issued on
December 30, 2015, to Albert Stein [6] ,
the Harvey Mine’s company representative, eight days after Inspector Detrick
took his sample. GX-1. [7]
The citation alleges a violation of 30 C.F.R. § 75.403, “Maintenance of
incombustible content of rock dust.” GX-1. The citation’s “condition or
practice” section reads:

According to lab
analysis results of rockdust bag sample 0155450AA collected on 12/22/2015 in
the #3 Entry (40 ft outby the face) of the 3A Section Return Spad#87+34.09 the
sample is non compliant. The rockdust sample is 66.2% incombustible content
instead of the required 82.0% due to the presence of 0.5% of methane. The
results of the rockdust analysis are attached to the citation. Standard 75.403
was cited 7 times in two years at mine 3610045 (7 to the operator, 0 to a
contractor). Supporting rock dust sample bag numbers: 0155450AA.

GX-1.

The citation was signed by supervising Inspector
Bochna. Tr. 68.

According to Inspector Detrick, 30
C.F.R. § 75.403 requires that rock dusting be performed by the Respondent 40
feet outby the working face and beyond. Tr. 58. At hearing, Detrick testified
that as part of the inspection he was required to take a rock dust sample in
the affected area. Tr. 37. Detrick reported that the sample location was black,
dark, and dry, suggesting that adequate rock dust had not been applied in the
area. Tr. 37, 41.

Detrick testified that before sampling he
stood at the last row of supported bolts from the working face, and Inspector
Bochna stood approximately twelve to fourteen feet from the working face. Tr. 37-

38. Using a 25 foot tape measure held at one end by Inspector Bochna, Detrick
    walked out 25 feet, made a mark on the rib, and waited for Bochna to come up to
    the point marked on the rib. Tr. 75. Then he measured out another 15 feet. Tr.
39. Detrick testified that Inspector Bochna then directed him to give the
    operator the benefit of the doubt and measure out eight to ten feet further.
    Tr. 37. At hearing, Inspector Detrick testified that he was “anywhere from 62
    to 64 feet outby the working face,” when he took his sample. Tr. 38.

Inspector Detrick testified that he then
took a rib sample, putting half in his rock dust bag, and giving the other half
to Stein. Tr. 38-39. Inspector Detrick testified that he asked Al Stein if
there were any problems with either where or how he took the sample, and that
Stein said no. Tr. 39. Inspector Detrick also testified that Harvey Mine safety
supervisor Steve Apperson was concerned about the area and that Apperson
pledged to work a rock dust hose around the corner to rock dust the area. Tr.
41-42, 46.

Inspector Detrick testified that, while
in the area, he used a multi-gas detector and discovered a half percentage of
methane, as well as methane in every working face throughout his inspection.
Tr. 45. After collecting the rock dust and gas samples, Detrick mailed them to
the national laboratory for testing and analysis. Tr. 45. Upon receiving the
results of the testing, and learning the samples taken contained 66.2 percent
incombustible content (instead of the required 82 percent, given the half
percent presence of methane in the gas sample), Inspector Detrick issued
Citation No. 9073907. Tr. 47-48.

Detrick testified that he was concerned
about a methane ignition within the No. 3 Entry of the Harvey Mine where the
samples were taken. [8]
Tr. 48-50. Detrick testified that the combination of float coal dust in the Entry,
as well as the presence of methane in the area, would make an ignition more violent
than a simple coal dust or methane ignition on its own. Tr. 50. Detrick also
testified that the likely injuries from such an ignition would affect ten to
twelve people with injuries including smoke inhalation and burns. Tr. 51. These
injuries, Detrick testified, could cause lost work days, permanent
disabilities, or fatalities. Tr. 51.

During
cross-examination, Inspector Detrick acknowledged that MSHA’s Mine Academy
trains inspectors to describe with particularity the nature of each alleged
violation. Tr. 53. Inspector Detrick acknowledged that, according to MSHA Mine
Academy training, each citation or order must include the location of the
violation, and that failing to provide the location may impede an operator’s
attempts to abate the violation. Tr. 54. Detrick also acknowledged that the
Mine Academy instructs inspectors to note the persons who traveled with the
inspector, and that the notes and citation must accurately capture all relevant
facts of the violation. Tr. 54-55.

In
the same exchange at hearing Detrick acknowledged that the citation appeared to
state the sample was taken at spad 87 + 34.09. [9]
Tr. 56-57. Inspector Detrick acknowledged that the plain text of the citation
appeared to contradict testimony he offered at hearing that the samples were
taken over 60 feet from the working face, but asserted that his testimony at
hearing was accurate. Tr. 57. Inspector Detrick testified that when he
submitted the samples to the national laboratory, he labeled them as taken 40
feet from the working face, and not over 60 feet. Tr. 59. Inspector Detrick testified
that his contemporaneous notes contained the measurement of 40 feet outby the
working face to mirror the language of the mandatory safety standard in
question, 30 C.F.R. § 75.403. Tr. 40; see also Tr. 37. Inspector Detrick
testified that the spad number was meant to be a reference point for future
inspectors to return to in order to ensure proper termination of any potential
citation. Tr. 57.

Inspector
Detrick testified that he did not note the presence of Inspector Bochna or
company representative Steve Apperson in his notes for the December 22
inspection, despite their accompanying him on his inspection that day. Tr. 62-63.
Detrick stated at hearing that he did not document in his notes on December 22
any conversation he had with Steve Apperson regarding the condition of the Entry
or its need for rock dusting. Tr. 66-67.

Inspector
Detrick and the Respondent’s attorney, Patrick Dennison, had the following
exchange at hearing:

Q: Would you
agree with me today, based on your testimony, you didn’t accurately describe
with particularity the violation?

A: That’s
correct, and as you said, yes, I was a new inspector at the time, and I’m not
using that as a crutch by any means.

Tr.
60.

Inspector Detrick later stated that
“[i]f I’m guilty of anything, it is not accurately describing where I took the
rock dust sample.” Tr. 66. Detrick affirmed that he took an accurate and
representative rock dust sample. Tr. 66-7. Inspector Detrick testified that he
took his sample from the rib of the affected area and did not take samples from
the roof or floor of the mine. Tr. 70. Inspector Detrick testified that he did
not cone and quarter the sample as taught at the Mine Academy, and that on most
inspections, cone and quartering is not done. Tr. 71.

Inspector Bochna, Detrick’s supervisor,
also testified regarding the December 22 inspection. Tr. 101. Bochna testified
that he stood at roughly the last strap, or the last bolt away from the working
face, holding the tape measure, while Detrick drew the length of the tape out.
Tr. 100-101. Bochna estimated he was approximately fourteen feet from the
working face when the measurements began. Tr. 101. Bochna asserted that Detrick
was approximately 50 feet from the working face when the sample was collected.
Tr. 101. Bochna could not recall any conversations with either Steve Apperson
or Albert Stein during the collection of the sample or after the collection of
the sample. Tr. 102.

Looking over Citation No. 9073907,
Inspector Bochna testified that it stated the sample was taken 40 feet outby
the working face “roughly in that area” of spad 87 + 34.09. Tr. 104; GX-1. Bochna
asserted that the operator has an independent incentive to properly mark and measure
spads, because failure to do so could lead to unforeseen consequences in the
mining process. Tr. 106-107.

Inspector Bochna could not recall at
hearing what length tape measure was used in determining the distance for the
citation. Tr. 109. Bochna could not recall if he was required to move in order
to measure, as would be necessary if Inspector Detrick used a 20 or 25-foot
tape measure. Tr. 110. Bochna testified that he would expect to see how the
distance was measured in the notes of Citation No. 9073907, but that
information ws not included in the citation or Inspector Detrick’s
contemporaneous notes. Tr. 112. Bochna could not recall definitively at hearing
whether Inspector Detrick took a band sample, consisting of the roof, ribs, and
floor, or instead a rib sample alone. Tr. 118.

Inspector Bochna testified at hearing
that he would not know, simply by reviewing the citation, where exactly the
rock dust sample was taken by Inspector Detrick. Tr. 121. He further testified
that he did not see Inspector Detrick take a sample. Tr. 126.

At hearing, the Respondent introduced
testimony from three witnesses: Albert (“Al”) Stein, Terry Reamer, and Doug
Bell.

Albert Stein was a safety inspector at
the Harvey Mine in December of 2015, and accompanied the inspectors on their
December 22, 2015 inspection. Tr. 129-130, 132. At hearing, Stein testified
that he handwrote notes on a notepad during the inspection. [10]
Tr. 133. The admission of these notes, introduced in typewritten format as
RX-1, was objected to by the Secretary. Tr. 135. The Court overruled the
objection and agreed to admit the notes with the caveat that the exhibit's
weight would be considered post-hearing. Tr. 137. The weight assigned Stein’s
typewritten notes in deciding this case is discussed infra .

Stein testified that he saw Inspector
Detrick take his rock dust sample. Tr. 139. Stein testified that the sample was
taken at spad 87 + 34.09. Tr. 140. Stein testified that neither Inspector
Detrick nor Inspector Bochna measured where they sampled. Tr. 141. Stein
testified that Inspector Bochna pointed to the spad in the ceiling and directed
Inspector Detrick to, "[t]ake [the sample] from this area." Tr.
141. 

Stein testified that Detrick did not
take a band sample, but did collect more than just a rib sample. Tr. 142, 162.
Stein testified that Inspector Detrick reached as high as he could into the
corner of the roof and rib, and dusted down a sample into his rock dusting pan.
Tr. 140. Then, Stein testified, Detrick proceeded to take a sample from the
floor on the other side of a canvas ventilation shield. Tr. 141. Stein
testified that without a tool to reach the roof, Inspector Detrick could not
have taken a sample from the roof. Tr. 143. 

Stein's testimony differed from
Inspector Detrick's regarding the state of the No. 3 Entry. Tr. 144. Stein
testified that the area was a grayish color. Tr. 144. Stein testified that the
area was thoroughly rock-dusted and effectively ventilated. Tr. 144. Using a
mine map, labeled RX-2, Stein testified that a current of positive air pressure
ran along the wall until it came to the working face of the No. 3 Entry. Tr.
144-145. Once the positive air pressure struck the working face, it would rebound
back out of the No. 3 Entry and travel to the exterior. Tr. 144-145. The mine
map was drafted by Harvey Mine engineers and draftsmen. Tr. 145; GX-2. 

Stein, using the mine map, testified
that the No. 3 Entry was lined on one side by a canvas shield. Tr. 145; RX-2.
This canvas shield helped guide positive air pressure from the No. 1 and No. 2
entries into the No. 3 Entry. Tr. 145. Once the positive air current struck the
working face, it would travel along the other side of the canvas shield,
eventually to fans that blow the air out of the mine. Tr. 147. 

At hearing, Stein used an enlarged
section of the mine map to visually demonstrate that on December 22, 2015, spad
87 + 34.09 was marked on the mine map as fifteen feet from the working face.
Tr. 148; RX-3. Stein also testified that he took his own methane measurements
during the inspection. Tr. 149. Stein testified that, using an Altair pocket
detector, he reached up into the corner nearest the last strap from the working
face, twelve inches from the roof and rib, and took a gas sample. Tr. 149.
According to Stein, the sample read .45 percent methane. Tr. 149. The Altair
sample's reading was memorialized in Stein's transcribed notes. Tr. 148, RX-1.

Stein testified that the roof and ribs
were in good condition in the No. 3 Entry. Tr. 150. Stein testified that "Tensar"
brand roof mesh was secured between straps of bolts placed every four to five
feet. Tr. 150-151. Stein also testified that there was no mining ongoing in the
No. 3 Entry on December 22, 2015. Tr. 151-152. Eventually mining would begin
again in the section. Tr. 157. 

The Respondent introduced Terry Reamer [11]
at hearing, a draftsman and surveyor-transit man at the Harvey Mine. [12]
Tr. 169.

As a surveyor and draftsman, Reamer was
responsible for map-making at the Harvey Mine, as well as advancing the sights
of the Harvey Mine while underground. Tr. 170-171. Advancing a sight involves
taking a previous day's sight and beginning from that point. Tr. 170.
Afterward, Reamer uses a back sight to advance a line of sight to the furthest
in-by point of the Entry. Tr. 171. This is necessary to keep mining on course,
as well as keeping detailed records of the mine's layout for mapping purposes.
Tr. 171. Reamer testified that spads are used as guideposts to measure
distances within the mine, sometimes as fixed points for advancing the sights.
Tr. 172. 

Reamer testified that he installed spad
87 + 34.09 on December 16, 2015. Tr. 173. A copy of Reamer's time book, labeled
RX-5, was admitted, which appears to show that Reamer recorded advancing the
sights in the No. 3 Entry on December 16, 2015. Tr. 173-174; RX-5. A copy of
the mine's underground field notes from December 15-16, labeled RX-6, were used
by the witness to support his testimony. Tr. 174-175. Reamer testified that the
underground field notes from that day, as seen in RX-6, include an Entry
listing spad 87 + 34.09. Tr. 176; RX-6. 

Reamer testified that he shared the
location of the spad with his colleague, Doug Bell. Tr. 178.

Doug Bell [13]
testified at hearing for the Respondent. Tr. 178. He testified that, on
December 15, 2015, he was employed as a transit-operator and drafter in the
Harvey Mine. Tr. 181. Bell's duties included using a surveying instrument,
called a "transit," to locate and map out parts of the mine. Tr. 182.
Using distances from the company field book, Bell drafted maps of the mine in
computer software. Tr. 183. 

Bell testified that he measured the
distance from spad 87 + 34.09 to the working face. Tr. 185; RX-6. This was
performed on December 30, 2015, as part of a monthly review conducted by the
mine to determine how much mining had taken place in the last 30 days. Tr. 185.
Bell testified that on December 30, 2015, spad no. 87 + 34.09 was fifteen feet
distant from the working face. Tr. 185. Bell also testified that the distance
of the spad from the working face could not have changed between December 22,
2015 and December 30, 2015, as no mining had taken place in the No. 3 Entry
until January of 2016. Tr. 189. 

Law and Regulations

Burden of
Proof and Standard of Proof

The
Secretary must prove the basis of a violation by a preponderance of the
evidence. Jim Walter Resources, Inc. , 28 FMSHRC 983, 992 (Dec.
2006), RAG Cumberland Resources, Corp., 22 FMSHRC 1066, 1070 (Sept.
2000), Jim Walter Res., Inc. , 9 FMSHRC 903, 907 (May 1987). This
includes every element of the citation. In re: Contests of Respirable Dust
Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 872, 878
(Aug. 2008).

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

The United States Supreme
Court has held that “ [b]efore
any such burden can be satisfied in the first instance, the factfinder must
evaluate the raw evidence, finding it to be sufficiently reliable and
sufficiently probative to demonstrate the truth of the asserted proposition
with the requisite degree of certainty.” Concrete Pipe
& Products of California, Inc. v. Constr. Laborers Pension Trust for S.
California ,
508 U.S. 602, 622 (1993). The assessment of evidence is a process of weighing,
rather than mere counting: “[T]here is a distinction between civil and criminal
cases in respect to the degree or quantum of evidence necessary to justify the
[trier of fact] in finding their verdict. In civil cases their duty is to weigh
the evidence carefully, and to find for the party in whose favor it
preponderates.” Lilienthal's Tobacco v. United States , 97 U.S. 237, 266
(1877). [14]

Assessment of Credibility

As trier of fact, this Court is free to accept or reject, in
whole or in part, the testimony of any witness. In resolving any conflicts in
testimony, this Court has taken into consideration the demeanor of witnesses,
their interests in the case’s outcome, or lack thereof, consistencies or
inconsistencies in each witness’s testimony, and any other corroborative or
conflicting evidence of record. Any failure to provide detail as to each
witness’s testimony is not to be deemed a failure on the Court’s part to have
fully considered it. The fact that some evidence is not discussed does not
indicate that it was not considered. See Craig v. Apfel , 212 F.3d 433,
436 (8th Cir. 2000) (administrative law judge is not required to discuss all
evidence and failure to cite specific evidence does not mean it was not
considered).

Regulations

30 C.F.R. Section
75.402, “ Rock dusting ,” provides that:

All underground
areas of a coal mine, except those areas in which the dust is too wet or too
high in incombustible content to propagate an explosion, shall be rock dusted
to within 40 feet of all working faces, unless such areas are inaccessible or
unsafe to enter or unless the Secretary or his authorized representative
permits an exception upon his finding that such exception shall not pose a
hazard to the miners. All crosscuts that are less than 40 feet from a working
face shall also be rock dusted.

30
C.F.R. § 75.402.

30 C.F.R. Section 75.403, “ Maintenance
of incombustible content of rock dust ,” provides that:

Where rock dust is
required to be applied, it shall be distributed upon the top floor, and sides
of all underground areas of a coal mine and maintained in such quantities that
the incombustible content of the combined coal dust, rock dust, and other dust
shall not be less than 80 percent. Where methane is present in any ventilating
current, the percent of incombustible content of such combined dust shall be
increased 0.4 percent for each 0.1 percent of methane.

30
C.F.R. § 75.403.

Findings of Fact and Conclusions of Law

Contentions of the Parties

The Secretary contends that he has
proven a violation of 30 C.F.R. §
75.403 beyond a preponderance of the evidence. Sec’y’s Br., 9. The Secretary contends
that the alleged violation was Significant and Substantial (S&S) and
reasonably likely to cause an injury resulting in Lost Workdays or Restricted
Duty to at least one miner. Sec’y’s Br., 14-20. The Secretary further argues
that the violation was the product of the operator’s moderate negligence. Sec’y’s
Br., 20.

The Respondent contends that there was
no violation of 30 C.F.R. § 75.403
as Consol was not required to rock dust where the sample was collected. Resp’t’s
Br., 8-19. The Respondent contends in the alternative that even if the sample
was collected more than 40 feet from the working face, the Secretary failed to
demonstrate the sample was representative of the No. 3 entry. Resp’t’s Br., 19-21.
The Respondent further argues that the Significant and Substantial (S&S)
designation and the gravity determination made by the Secretary were improper.
Resp’t’s Br., 21- 28. The Respondent finally contends that the negligence
determination made by the Secretary was improper. Resp’t’s Br., 28-30.

The Secretary Failed to Carry His Burden
of Proving a Violation by a Preponderance of the Evidence

MSHA’s
website for “Most Frequently Cited Standards of 2015; Underground – Coal” ranks
30 C.F.R. § 75.403 as the fourth most cited
mandatory safety standard that year; in 2015 alone the Secretary alleged over
1,683 violations of the 30 C.F.R. § 75.403 in
underground coal mines, comprising 4.34% of all alleged violations within the
set. [15]

In
order to show that 30 C.F.R. § 75.403 has been
violated, the Secretary must present persuasive evidence that the operator
failed to apply a sufficient amount of incombustible material in a mine. In
other words, the Secretary must present persuasive evidence that the operator
failed to rock dust an area adequately. Thus, the relevant element to be
determined in this matter is whether sufficient evidence has been presented to
prove that the sample was taken more than 40 feet from the working face. The
Court finds that the Secretary failed to present sufficient evidence for the
proposition, and therefore vacates the citation.

A.
The Secretary Failed to Present Sufficient Evidence that the Sample Was Taken
More Than Forty Feet from the Working Face

In
presenting his case, the Secretary asks the Court to disregard the plain
language of the citation, as well as contemporaneous documentation, by arguing
that the sample was not taken at spad 87 + 34.09, and, that the sample was not
taken forty feet from the working face. Instead, the Secretary’s witnesses
alleged at hearing the sample was taken significantly more than forty feet from
the working face (the witnesses differed on how much further it was), and that
spad 87 + 34.09 was written as a marker for abatement of a future, hypothetical
citation. Tr. 13, 41, 58, 101.

The
Commission has held that an inspector’s testimony, standing alone, if found
credible and reliable, may constitute sufficient evidence to prove the
existence of a safety violation and support an S&S finding. See Harlan
Cumberland Coal Co ., 20 FMSHRC 1275, 1278-1279 (Dec. 1998) (holding that
the opinion of an investigator that a violation is S&S is entitled to
substantial weight); Buck Creek Coal, Inc. v. MSHA , 52 F.3d 133,
135-136, (7th Cir. 1995) (ALJ did not abuse discretion in crediting expert
opinion of experienced inspector); and Cement Division., National Gypsum Co. ,
3 FMSHRC 822, 825-826 (Apr. 1981) (regarding the probative value of inspector’s
judgment).

Determining
the credibility and reliability of any witness’s testimony is the province of
this Court. Hall v. Clinchfield Coal Co. , 8 FMSHRC 1624, 1629 (Nov.
1986) (holding that a judge’s credibility resolutions cannot be overturned
lightly). The Commission is reluctant to disturb credibility determinations,
but will, if it finds they are self-contradictory or if there is no evidence,
or dubious evidence, to support them. Austin Powder Co. and Bruce Eaton ,
21 FMSHRC 18, 22 (Jan. 1999).

The
Secretary asks that the Court privilege the testimony of two inspectors over
the contemporaneous documentation accompanying the citation, as well as the
citation itself, in arguing for the fact of the violation. However, the
testimony presented by the Secretary’s witnesses lacked sufficient indicia of
reliability to be deemed credible enough for the Court to overlook the plain
language of the citation, as well as contemporaneous documentation.

The
Secretary’s witnesses in this matter differed from one another on basic facts
regarding the violation. Most critically, they disagreed on where the sample
was taken. Compare Tr. 41 with Tr. 101. But these disagreements
in testimony extended to other areas as well. For instance, Inspectors Detrick and Bochna appeared to disagree on where
the working face began for rock-dusting purposes. Compare Tr. 75-76 with
Tr. 100-101, 107-109, 111. Inspector Detrick testified at hearing that the
face for rock-dusting purposes began at the last row of bolts, or the last row
of straps. Tr. 75-76. Inspector Bochna testified that the working face did not
begin at the last row of bolts. Tr. 100-101, 107-109, 111.

In another instance, the
inspectors’ testimony was inconsistent and at times self-contradictory when it
came to the condition of the No. 3 Entry. Inspector Detrick appeared to be of
two minds regarding the condition of the No. 3 Entry. At one point Inspector
Detrick testified that the Entry was obviously in violation, black, dark, and
dry, with float coal dust everywhere. Tr. 52, 37, 41. Later, under
questioning by the Respondent’s attorney, Inspector Detrick testified that it
appeared there was a violation, but he was not sure. Tr. 82. Detrick’s supervisor Inspector Bochna testified that he was
unsure if the Entry was improperly rockdusted, and seemed to suggest that it
wasn’t possible to determine visually if there was a rock-dusting violation.
Tr. 114-115.

The inspectors did not corroborate
one another’s account on the method of measurement. Inspector Detrick agreed
with the Respondent’s attorney at hearing that a 25 foot tape measure was used
to measure the distance from the working face. Tr. 73. But Inspector Bochna
could not recall what length tape measure was used. Tr. 109, Tr. 123. Inspector
Bochna could not recall if the inspectors had to move to measure forty feet (as
would be necessary with a 25 foot tape measure). Tr. 109-110. Inspector Bochna
also failed to see the sample collected, as he was possibly walking back to
check the return of the No. 3 Entry, and therefore could not recall precisely how
and where the sample was taken. Tr. 113, Tr. 126.

The
Court considers the most important factual issue to be whether the sample was
taken more than forty feet from the working face, because the regulation itself
describes this requirement. 30 C.F.R. §§ 75.402-403. Given the Secretary’s
evidence, the Court has multiple measurements to choose from. First, there is
the citation itself, which lists the sample’s location as taken at either spad
87 + 34.09 or forty feet from the working face. GX-1. Then there is the testimony
of the issuing inspector, who testified that the rock dust sample was taken 62 to
64 feet from the working face. Tr. 38. Later, at the same hearing, the issuing
inspector testified that the sample was taken 64 to 65 feet from the working
face. Tr. 41 .
Finally, supervising Inspector
Bochna testified that the sample was taken 50 feet from the working face. Tr.
101.

Moreover,
the location of where the sample was taken was challenged by a witness of the
Respondent’s.

Stein testified
that the sample was taken roughly fifteen feet from the working face at spad 87

• 34.09. [16]
  Tr. 140-141. The Respondent also presented evidence in the form of transcribed
  notes, describing the sample as “taken at spad 87 + 34.09 less than 40’ outby
  the face of #3.” RX-1. Stein testified at hearing that these transcribed notes
  are a faithful representation of contemporaneous notes he took while
  accompanying the inspectors on the inspection. Tr. 134-135. Stein further
  testified at hearing that the original contemporaneous notes were part of a
  notepad that has since been discarded as the notepad became full. Tr. 135. The
  Secretary stated in his brief that these handwritten notes were never produced
  during discovery and were discarded following the Respondent’s receipt of the
  citation, possibly constituting destruction of evidence. Sec’y’s Br., 11. The
  Court assigns little weight to the exhibit itself, given the difficulties
  regarding its provenance, and assesses the credibility of Stein’s testimony
  separately.

The
Respondent has demonstrated through testimony and visual aids that spad 87 +
34.09 was close to, if not exactly, fifteen feet from the working face at the
time the sample was taken. Tr. 148, 173, 185; RX-3; RX-6. The spad was installed
on December 15, 2015, and there is persuasive evidence to suggest that the spad
remained fifteen feet from the working face for some time after the sample was
taken. [17]
Tr. 187-188; RX-3; RX-5; RX-6. Thus, if the sample was taken at spad 87 +
34.09, it is not evidence of a violation.

It
is not clear to the Court upon review of the citation and the inspector’s
contemporaneous notes that spad 87 + 34.09 was identified as a marker for
future termination of a hypothetical citation, as alleged by the Inspector at
hearing. Tr. 58. Instead the citation, the notes drafted to accompany the
citation on December 30, 2015, and the inspector’s contemporaneous notes of
December 22, 2015 all appear to identify spad 87 + 34.09 as the location where
the sample was taken, with no mention of the spad as a future locus for
abatement. GX-1; GX-2; GX-3. Inspector Detrick’s December 30, 2015, notes state
the sample was “collected on 12/22/15 in the #3 entry 40’ outby the face @
spad # 87 + 34.09 .” GX-2, (emphasis added).

The
inspector’s assertion that he wrote in the body of the citation and accompanying
notes “40 feet outby the working face” to “mirror” the language of 30 C.F.R. § 75.403
does not inspire confidence in the Court. Tr. 37,

40. This
    assertion creates, essentially, a second and undefined measurement point, to be
    defined later by the Secretary’s witnesses at hearing, raising questions of
    reliability. If the sample was taken more than twenty feet from where the
    Respondent was required to begin rock-dusting, as the issuing Inspector alleged
    at hearing, including that information in the citation would better support a
    finding of violation. Similarly, if spad 87 + 34.09 was meant solely as a
    location for future inspectors to use to terminate a citation, including the
    spad number without a reference to how far the sample was taken from the spad
    could confuse a future inspector, especially if mining took place in the
    interim.

The
Court is aware that, in the past, the Commission has held that it does not
demand inspectors write citations with the legal precision of attorneys sitting
in comfortable offices. Sunbelt Rentals, Inc. ,; LVR, Inc.,; and
Roanoke Cement Co. LLC, 38 FMSHRC 1619, n. 10 (July 2016). This citation’s
imprecision, however, arises from a deliberate decision made by the issuing
inspector. Tr. 37, 40. This imprecision in drafting could be overcome if the
Secretary’s witnesses presented a credible account of the inspection’s events,
but they failed to do so.

Not
only do the Secretary’s witnesses differ from the stated language of the
citation, they differ with one another. These discrepancies in the Secretary’s
evidence create a contradictory narrative that the Court cannot credit.
Accordingly, the Court cannot find there was sufficient evidence presented to
prove that the sample was taken more than forty feet from the working face, as
required by the regulation.

B. The Citation Met the Requirements of
Section 104(a)

In a separate argument for vacating
Citation No. 9073907, the Respondent’s attorney contends that the citation as
issued failed to satisfy the requirements of Section 104(a) of the Mine Act.

Section 104(a) states that:

If, upon
inspection or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine subject to this chapter has
violated this chapter, or any mandatory health or safety standard, rule, order,
or regulation promulgated pursuant to this chapter, 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 chapter, 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 chapter.

30
U.S.C. § 814(a).

Citation 9073907’s “ condition or
practice ” reads:

According to lab
analysis results of rockdust bag sample 0155450AA collected on 12/22/2015 in
the #3 Entry (40 ft outby the face) of the 3A Section Return Spad#87+34.09 the
sample is non compliant. The rockdust sample is 66.2% incombustible content
instead of the required 82.0% due to the presence of 0.5% of methane. The
results of the rockdust analysis are attached to the citation. Standard 75.403
was cited 7 times in two years at mine 3610045 (7 to the operator, 0 to a
contractor). Supporting rock dust sample bag numbers: 0155450AA.

GX-1.

The Respondent contends that the
citation fails to satisfy Section 104(a)’s requirements because “Mr. Detrick
testified that he failed [to describe with particularity the condition in the
Citation and to accurately capture the facts in his notes to substantiate a
violation].” Resp’t’s Br., 14. The Respondent’s attorney appears to be
referring, primarily, to this line of questioning at hearing:

Q: Would you
agree with me today, based on your testimony, you didn’t accurately describe
with particularity the violation?

A: That’s
correct, and as you said, yes, I was a new inspector at the time, and I’m not
using that as a crutch by any means.

Tr.
60.

The requirements of 104(a) are not so
restrictive as the Respondent contends. Section 104(a) merely requires that a
particular set of facts, and a particular safety standard, be identified in the
body of the citation. The purpose for this is two-fold: firstly, to enable a
Respondent to defend against the citation in a hearing, and secondly, to enable
a Respondent to abate the citation in order to terminate it. The citation as
issued in the present litigation satisfies both requirements, and therefore, is
valid under Section 104(a). See, e.g., Pocahontas Coal Co., LLC , 38 FMSHRC 176,
182, (Feb. 2016); Summit, Inc. v. Secretary of Labor , 19 FMSHRC 429, 431
(Feb. 1997) (ALJ Manning); Asarco Mining Co. , 15 FMSHRC 1303, 1306 (July
1993); Cyprus Tonopah Mining Corp. , 15 FMSHRC 367, 379 (Mar. 1993).

Recently, the Commission addressed a
very similar argument in the matter of Mill Branch Coal Corporation . Mill Branch Coal
Corporation v. Secretary of Labor , 37 FMSHRC 1383 (Jul. 2015). In that
case the Commission reasoned that:

We find
unpersuasive Mill Branch's argument that the orders fail to sufficiently
identify hazardous conditions. Section 104(a) requires that each “citation
shall be in writing and shall describe with particularity the nature of the
violation ….” 30 U.S.C. § 814(a). We have recognized that the requirement for
specificity serves the purpose of allowing the operator to discern what
conditions require abatement, and to adequately prepare for a hearing on the
matter. Cyprus Tonopah Mining Corp. , 15 FMSHRC 367, 379 (Mar. 1993)
(citations omitted). Mill Branch's extensive examination and cross-examination
of witnesses concerning the cited conditions demonstrate that Mill Branch was
able to adequately prepare for trial and knew what conditions would have
required abatement.

Mill
Branch Coal Corporation, 37 FMSHRC 1383, n. 17.

This
Court finds that, as in Mill Branch , the Respondent in this case clearly
knew what safety standard was at issue, and how to properly defend against the
Secretary’s allegation of a violation. Moreover, the Respondent’s attorney’s
extensive examination of witnesses and cross-examination of the inspectors
concerning the cited condition demonstrates that the Respondent was able to
prepare for trial, and knew what conditions would have required abatement.
Therefore, this Court rejects the Respondent’s 104(a) argument, and instead
vacates the citation on evidentiary grounds.

Conclusion

The Secretary has not carried his burden
by the preponderance of the evidence that a violation of 30 C.F.R. § 75.403 occurred . Therefore, the
Court finds that the citation at issue should be vacated. For this reason
the Court makes no finding regarding the significant and substantial (S&S),
negligence, and gravity determinations made by Inspector Detrick.

ORDER

Accordingly,
it is hereby ORDERED that Citation No. 9073907 is VACATED .

/s/
William S. Steele

William S.
Steele

Administrative
Law Judge

Distribution:

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

Patrick
W. Dennison, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave.,
Suite 1500, Pittsburgh, PA 15222

[1] The
above-captioned proceeding contained two 104(a) citations. The parties settled
Citation No. 7033725 prior to hearing. The Court issued a Decision Approving
Partial Settlement and Order to Pay on November 22, 2016.

[2] References to
the Secretary’s brief will be styled as “Sec’y’s Br.”, followed by the
referenced page number. References to the Respondent’s brief will be styled as “Resp’t’s
Br.”, followed by the referenced page number.

[3] At time of
hearing, Jason Detrick had been an MSHA inspector for approximately two and a
half years. Tr. 19. Before joining MSHA, Detrick was a coal miner for Alpha
Natural Resources at the Emerald Coal Mine for seven years. Tr. 19-20. Detrick
worked there as a loading machine operator, operated a continuous miner, and
was a shield operator. Tr. 19-20. Detrick was also chairman of the health and
safety committee at the mine for the United Mine Workers Local 2258, which
involved the escorting of inspectors on their inspections. Tr. 20. Prior to his
work at Alpha Natural Resources, Detrick worked for approximately a year at the
Powhatan No. 6 Mine, in Bel Air, Ohio. Tr. 20. Detrick also worked for Maple
Creek Mining, Inc., for two and a half years, beginning as a general laborer.
Tr. 21. Before joining Maple Creek Mining, Inc., Detrick worked for Mathies
Coal in the supply house of a mine for approximately two and a half years. Tr.
21-22. Detrick testified that as an inspector trainee he took hundreds of rock
dust samples. Tr. 23. While working as a miner, Detrick assisted MSHA
inspectors with the collection of their rock dust samples. Tr. 25.

[4] At time of
hearing, Thomas Bochna had been a supervisory coal mine health and safety
inspector for approximately two and a half years. Tr. 93. Prior to becoming a
supervisor, Bochna was a regular mine inspector beginning in February of 2008.
Tr. 94. Before joining MSHA, Bochna worked for 30 years at the Emerald Mine in
Waynesburg as an hourly employee. Tr. 95. Bochna holds an associate’s degree in
mining technology from Penn State. Tr. 95. Bochna testified that he has
collected hundreds of rock dust samples over the years. Tr. 97.

[5] References
herein to the September 20, 2016 hearing transcript are styled as “Tr.”, followed
by the referenced page number.

[6] Albert Stein
was employed by Consol Energy for five years at the time of hearing as a safety
inspector. Tr. 128, 129. Stein was a safety inspector for Consol at the time of
citation as well. Tr. 130. Stein worked at the Harvey Mine for approximately
three years. Tr. 129. Prior to working for Consol Energy, Stein was employed by
Siemens as an electrical technician. Tr. 129. Stein has his Pennsylvania and
West Virginia black hats and is certified for surface and underground mining.
Tr. 129. Stein also has his “machine runners.” Tr. 129. Prior to his employment
at Consol as a safety inspector, Stein was also an industrial engineer and a
safety tech. Tr. 130. Stein holds an associate’s degree in specialized
technologies from Triangle Tech. Tr. 130.

[7] The Secretary’s
exhibits are styled “GX-“, followed by the exhibit number referenced. The
Respondent’s exhibits are styled “RX-”, followed by the exhibit number
referenced.

[8] At hearing, the
Secretary introduced into evidence an accident investigation report of a
methane and/or dust ignition that occurred at the Harvey Mine in January of
2015, as GX-5. Tr. 31-35. The Respondent objected to its introduction on the
grounds that Inspector Detrick had no personal knowledge of the events
described in the report, that the events occurred nearly two miles from those
in the instant matter, and that there was a discrepancy regarding the dating of
the report. Tr. 31-32. The Respondent also objected to the introduction of the
investigation report on the grounds that the report had no relevance toward
determining whether the citation was Significant and Substantial or not. Tr.

32. This Court, as stated at hearing, assigns very little weight to this
    exhibit, while still considering it admitted, given that the Inspector had no
    personal knowledge regarding the report. Tr. 33.

[9] Spads are
triangular pieces of metal embedded in the ceiling of a mine, fixed by
engineers, and used to guide a mining machine in the course of mining or locate
miners in the case of emergency. Tr. 121-22, 165. The numbers indicate the
distance from the spad’s location to the mine’s entrance, which is designated
the zero point. Tr. 164, 172. Thus, spad 87 + 34.09 was 8,734 feet and 9
hundredths of a foot from the mine entrance at the time of inspection. Tr. 172.

[10] Stein testified that his typed notes did not differ
from his handwritten notes. Tr. 137. Stein testified that once a notepad was
filled, it was discarded. Tr. 138. Notes are typed up if a citation is
subsequently issued. Tr. 137-138. Once the notes are stored on the mine's
computer system, the handwritten notes are discarded. Tr. 137-138. 

[11] Reamer worked with Consol for over twelve years at
the time of hearing. Tr. 168. Reamer worked previously as a draftsman at Mine

84. Tr. 168. Reamer has his Pennsylvania experienced miner card, as well as
    assistant mine foreman papers. Tr. 169. Reamer also took an associate's degree
    in drafting and design, as well as a bachelor's degree in industrial technology,
    from California University of Pennsylvania. Tr. 169-170.

[12] The Secretary objected to the testimony of Terry
Reamer and Doug Bell, two of the Respondent’s witnesses at the hearing. Tr.
166-167. The Secretary argued at hearing that the testimony of Terry Reamer and
Doug Bell should be restricted to what each had personal knowledge of. Tr.
166-167. The Secretary contended this was due to Reamer and Bell's status as
lay witnesses without personal knowledge of the events of December 22, 2015.
Tr. 166-167. The Court allowed both to testify at hearing. 

[13] Doug Bell, a
current employee of the Harvey Mine, began work there in May of 2012 as a
transit operator. Tr. 179. He still held this position at time of hearing. Tr.

179. Prior to work at the Harvey Mine, Bell worked for Consol Energy out of the
     Monongah office as a surface and underground surveyor, responsible for the
     survey of three mines. Tr. 179-180. Prior to his work at Monongah, Bell was an
     engineering technician at Mine 84. Tr. 180. Bell also has his Pennsylvania
     miners papers, as well as his "machine runners." Tr. 181. Bell has
     two associate's degrees, one in land surveying, the other in forestry
     technology, both from Glenville State College. Tr. 181. Bell had been engaged
     in survey work for fifteen years at time of hearing. Tr. 181.

[14] “ What is the most
acceptable meaning of the phrase, proof by a preponderance, or greater weight,
of the evidence? Certainly the phrase does not mean simple volume of evidence
or number of witnesses. One definition is that evidence preponderates when
it is more convincing to the trier than the opposing evidence . This is a
simple commonsense explanation which will be understood by jurors and could
hardly be misleading in the ordinary case.” 2 McCormick On Evid. § 339 (7th
ed.), emphasis added.

[15] This
information is publicly available on MSHA’s website. MSHA, Most
Frequently Cited Standards of 2015; Underground – Coal ,
http://arlweb.msha.gov/stats/top20viols/top20viols.asp (last visited Dec. 28,
2016).

[16] In his post-hearing brief, the Solicitor argues that
one would expect Stein to voice an objection to the sample’s location at the
time of its taking “rather than remaining silent and challenging the location
after the Mine had incurred the costs of litigation.” Sec’y’s Br., 13. Stein’s
failure to challenge the inspector’s sampling location and/or technique could
have arisen out of a fear of retaliation or a hope that the inspector would not
issue a citation at all. Stein did say during questioning that if he thought an
inspector was doing something improper, he would point it out to him, but then
quickly noted that the inspector had a right to take samples wherever he liked,
suggesting that is why he didn’t object. Tr. 162-163. Regardless, it is not the
Respondent’s duty to object to a sample’s validity at its taking in order to
preserve such an objection at the hearing stage.

[17] The Solicitor
objected at hearing to the inclusion of Reamer and Bell’s testimony because the
two lacked personal knowledge of the conditions that led to the violation. Tr.
166-167. After considering the testimony of both witnesses and the Respondent’s
accompanying exhibits, the Court notes that the salient facts raised by all
concern the location of spad 87 + 34.09. The Court credits the testimony and
evidence as having established that no mining occurred between the taking of
the sample and the issuance of the citation, and that the location of spad 87 +
34.09 remained unchanged at 15 feet from the working face.