Oak Grove Resources, LLC

Plain-English summary

Oak Grove allowed 83 miners underground even though high water prevented certified examiners from traveling an entire return air course and completing required weekly ventilation checks. Judge William B. Moran rejected the company's duplication defense because an earlier citation arose two weeks before and each seven-day period creates a new examination duty. The Judge found the violation S&S because Oak Grove was an ultra-gassy mine, inaccessible areas prevented verification of methane, oxygen, airflow, and fan performance, and changed ventilation could expose miners to serious hazards. He also found unwarrantable failure because management countersigned reports identifying the incomplete examinations, a similar high-negligence citation had issued two weeks earlier, and the mine had seven prior violations of the same standard in two years. Pumping efforts did not permit miners to enter before the route was completed. The Judge affirmed the order and assessed the specially proposed $70,000 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.364(b)(2)
• Outcome: The violation was affirmed as S&S and an unwarrantable failure, with a $70,000 penalty.
• Key point: Every seven-day interval creates a new complete-examination duty, and miners may not enter while water prevents verification of the full return-air course.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Telephone: (202) 434-9933

Fax: (202) 434-9949

March 7, 2012

HILDA L. SOLIS, SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

OAK GROVE RESOURCES, LLC

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. SE 2010 - 1236

A.C. No. 01-00851-230779

MINE: OAK GROVE

DECISION

Before: Judge William Moran

Appearances: Mary Beth Zamer, Esquire

Jennifer Booth-Thomas, Esquire

Office of the Solicitor, United States Department of Labor

Nashville, Tennessee

R. Henry Moore, Esquire, Jackson Kelly, PLLC

Pittsburgh, Pennsylvania

In this proceeding under the Mine Act, Respondent, Oak Grove Resources, LLC, was
issued an Order, citing an alleged violation of 30 C.F.R. § 75.364(b)(2) for failing to conduct an
exam for hazards in at least one entry of each return air course in its entirety before miners enter
the mine. That provision states:  

(b) Hazardous conditions. At least every 7 days, an examination

for hazardous conditions at the following locations shall be made

by a certified person designated by the operator: . . . (2) In at least

one entry of each return air course, in its entirety, so that the entire

air course is traveled.

Section 75.364(b)(2) (emphasis added).

The Order included special findings that the violation was both “significant and
substantial” and an “unwarrantable failure.” Respondent admits that the exam was not conducted
but contends that because there was a prior outstanding citation for the same deficiency, the
Order in issue here was “duplicative” and therefore must be vacated. In addition, the Respondent
asserts that neither of the special findings should be upheld. A hearing was held in Birmingham,
Alabama on July 28, 2011. For the reasons which follow, the Court finds that the violation was
not duplicative and that it was both a significant and substantial violation as well as an
unwarrantable failure on the Respondent’s part.

Findings of fact:

MSHA Inspector Larry McDonald

issued the Oak Grove mine Citation No. 8518110 on
March 23, 2010.

Inspector McDonald was at the mine on that day as a result of a section 103(g)
complaint, which alleged that miners had re-entered the mine without it being “made,” that is,
without being examined or inspected in its entirety, prior to their entry, as required by law. Tr.

78. When Inspector McDonald arrived at the mine, he examined the record books for the “Old
    Works,” and found that it listed, for March 18, 2010, an inability to inspect due to high water.
    Tr. 25. GX 4, the Old Works fireboss (i.e. weekly) report

for the Thursday day shift for the
same date, which report is part of the weekly examination books. The Inspector stated that, for
March 18th, no air readings were made for the “first east south air courses, 8 south to section one
faces.”

Tr. 26-27. Of concern to McDonald when he examined those records was that the
certified examiner listed, under notes, “Hazards, unable to make high water.” Tr. 28, GX 4, at
the bottom third of the page. As a result of those hazards, the examiner recorded that he wasn’t
able to enter those areas and consequently could not make readings to enter in the books. Tr. 29.
Accordingly, those areas were blank, reflecting that the examiner could not make and record the
air nor the air quality readings. For example, there are no readings for the number 4 entry, 1C,
nor for the number 4 fan check, nor for the 10 south number 3 entry, first east south of first east
north. Tr. 29. The absence of those entries demonstrates that the examiner could not in fact get
to those locations to obtain readings. Tr. 30. The same examiner also listed “unable to make,
high water hazard.”

Tr. 30.

Importantly, the fireboss, weekly, report, GX 4, reflects that it was also signed by mine
foremen, Miller and Ingle. Tr. 33. Those signatures by management are to be signed right after
the certified examiner completes his exam,

and any listed hazards are to be corrected
immediately. Tr. 33. McDonald affirmed that such mine management individuals have to review
the examiner’s weekly report. Tr. 79. Such examinations are important to make sure that there
is proper air in those areas to keep the methane swept out. Tr. 30. Further underscoring the
importance of these examinations, it is typical for methane to build up in areas that have already
been mined. Tr. 31. McDonald considered it “crucial” to maintain ventilation in these areas
because if there is a methane buildup, that can deplete oxygen levels, presenting significant risks.
Tr. 31.

McDonald was cognizant that the cited section, 30 C.F.R. § 364(b)(2) requires a weekly
examination for hazardous conditions and that at least one entry of each return air course shall be
traveled in its entirety before miners enter the mine. Tr. 36. Therefore, upon examining the
books and noting the examination shortcomings, the inspector asked mine foreman Ingle if the
mine was producing coal. Foreman Ingle informed that they were producing coal. Tr. 31. As
reflected in GX 5, there were 83 miners underground that morning, March 23, 2010. Confirming
that production was indeed occurring, foreman Ingle asked if the mine needed to stop production,
and McDonald advised that was the proper thing to do.

Turning to GX 5, McDonald agreed that the middle column called “pumper fireboss” and
the name Archie Wilcoxen appears there. Tr. 91. Wilcoxen is assigned as a pumper at the 8
South but the Inspector informed that he did not encounter Wilcoxen in that area. Tr. 91. Then,
referring to GX 4, the Inspector agreed that it reflects that the areas were attempted to be made on
March 18th and again on March 20th. Tr. 92. The mine’s certified examiner, Mr. Workman,
made it to the 1B point but couldn’t make the 1C. Tr. 92. The Inspector acknowledged that
Workman’s notes reflect that all pumps were running, that some progress was being made and
that water was no longer running over into the intake.

In any event, Workman’s notes indicate
that the mine was trying to deal with the problem. Despite these distractions,

it is clear that the
the miners should not have entered the mine.

McDonald then proceeded to go underground to see the area firsthand. With him were
Keith Miller, mine foreman and Randy King, a miners’ representative. Both men were with the
inspector the entire time of his inspection.

Tr. 35. There was awareness that certified examiner
Workman had noted an inability to examine the entirety of the return air course and that
Workman had noted in that regard that he was unable to “make,” i.e. unable to get to, in order to
take readings, the first east south air courses, 8 south of the section 1 faces, the number 4 entry
air station 1 C and the number 4 fan.

At that number 4 fan, as there are 4 approaches, (north,
south, east and west), and the examiner was to have taken four readings there.

Tr. 38.

The Inspector found that he couldn’t get to the 1C. Still, while Respondent’s Counsel
inquired whether there was airflow in the direction of 1C, McDonald informed that he was
approaching it from the side. He could not get to the point even to see where the 1C was located.
Tr. 89. Using Joint Exhibit 1, a map of the Oak Grove mine, Inspector McDonald made various
markings on it, which were associated with his testimony.

He marked his arrival point as “A”
on the joint exhibit. Tr. 42. He then traveled the north track to the first east track, marking “B”
at that location. Tr. 42. McDonald’s intention was to reach the number 4 fan at the number 4
intake shaft area. Tr. 43. He then traveled down the first east to point “C.” At that point he
could travel no further on the man bus. He then entered 8 north, traveling down the 8 north entry
inby. Tr. 44. From there, at point “D,” the party turned left at the 8 south, number 1 section area.
It took about an hour to travel from point “C” to “D” because the mine height is low, ranging
from 42 to 48 inches. Tr. 45. McDonald, who is six feet tall, obviously had to travel “bent over”
in those restricted mine heights. At point “D” the group went to 8 south and then to point “E,”
the 4 intake shaft. Tr. 46. At “E” the inspector intended to take air readings because it was part
of the route in issue. This was an area where examiner Workman had recorded an inability to
make his examination. Tr. 47. At the 4 intake shaft, McDonald took three intake air readings.
Tr. 47.

McDonald then traveled from point “E” to air station 1D where he was able to make
additional air readings. Tr. 47-48. He then traveled to air station 1A, where he took velocity and
air quality readings. Water was present at 1D and 1A, but not so much as to prevent his ability
to take readings those locations. Next he went to 1 B. Along his way there he encountered
murky water and stumbling and tripping hazards, as the 1B is actually an old track and the track
had never been removed. Tr. 49. He also had to deal with 24 inches of water in that area. Tr.

50. McDonald, feeling his way through the water with his feet, stated that he did stumble as he
    proceeded, as did others with him. Tr. 50. At the 1B, he was unable to take air readings because
    there were too many stumbling and tripping hazards. The examiner, Chris Kilgore, who was
    with him, advised that the water would be getting deeper. Tr. 51. The 1B is one of the areas
    within the Old Works 10 South for which there is to be a weekly examination. Tr. 51.
    McDonald also stated that when he stopped as he was heading to the 1 B point, the water was 24
    inches deep and that he did not go further because examiner Kilgore told him that the water
    would become waist deep. Tr. 101, 103. McDonald reiterated that the mine manager told him
    that the water would be getting deeper toward the 8 south faces. Tr. 102.

The inspector then traveled to the air station at 1C, where he was also unable to take
readings because of excessive water height. Tr. 52. At that location the water was about waist
deep. Tr. 52. 1C is another location where weekly readings are required. He then traveled to the
3 West cut-through, where he was able to take a velocity and air quality reading. Tr. 52. Next,
his travel took him to the 4 east cut-through, where he could take readings. Essentially, the
inspector was trying to take readings at each air station. Those stations are marked on the map as
air station 1A, 1B, etc. and, underground, there is a sign indicating each location. Tr. 53.

McDonald then traveled in the number 1 entry toward the base area. This was marked
with an “F” on the map. Tr. 54. The faces that the Inspector marked on Exhibit 1 as “F” are
known as the 8 south faces or “South 1 face.” Tr. 90. At that location, he was able to take the
necessary readings at the number 2 regulator. Tr. 55. However he encountered water at that
location, as he walked about 100 feet inby, with a depth of about 32 inches. The inspector was
stumbling at that point and the water was up to his thighs, so he was unable to make that base
area. Tr. 55-56. He then traveled to the location marked as “G,” which is where the fault pump
is located.” Tr. 57. At that location, on the left side of the entry, the water was “roofed,”
meaning that water went all the way up to the mine’s roof. Tr. 57. That meant that the water was
at a depth of 6 to 8 feet in that fault pump area. Tr. 57. McDonald informed that the air was
restricted at the fault pump area, where airflow was minimal, but that he otherwise did not find
ventilation problems but the important point is that an air reading is required to be taken at the
fault pump. Tr. 89. This is another area where a weekly examination is required. Tr. 57.
Thus, McDonald was unable to make any of the return entries past the fault line from that
location. Tr. 58.

From there, the Inspector attempted to go to “H,” where the number 4 fan is located,
traveling form the G location, toward the D location and the number 4 fan, but he again
encountered water. He was traveling in an area with a 48 inch roof and dealing with 24 inches of
water at that location. In addition he faced tripping and slipping hazards as he proceeded.
He traveled for three crosscuts, a distance of about 300 feet, under these conditions. Tr. 60.
McDonald was unable to get to the Number 4 fan to take readings because of these conditions.
This is yet another area where readings are required. Tr. 60-61. As there are four approaches at
that location, four readings are required, but the Inspector could not take any of them. Tr. 61. It
was at that point that McDonald issued his Order to Keith Miller. He then retreated, taking the
same path he used to enter the areas, then returning to the elevator and exiting the mine. Tr. 61-62. No one who accompanied the Inspector voiced any disagreement over the issuance of his
order. Tr. 63. Upon cross-examination, McDonald stated that the number 4 fan services the
bottom half of the bleeder. The three active sections as marked on Ex. 1, 12 east, 13 east and the
long wall, are located in that area and they are serviced by two different fans. Tr. 87. Although,
upon cross-examination, McDonald acknowledged that he could have gone to the number 4 fan
on the surface to check the airflow on March 23rd and that he did not do that, the Court notes that
the standard does not talk in terms surface checks as an alternative means of compliance with
that requirement. Rather, the standard requires an examination for hazardous conditions in at
least one entry of each return air course, in its entirety, so that the entire air course is traveled.

McDonald expressed that his Order, citing the violation of 75.364 (b)(2) was based on the
inability to travel all the entries in their entirety, which therefore precluded taking the required
velocity and air quality readings. Tr. 65-66. The last prior complete examination to that had
been at least seven days prior. Tr. 67. The Inspector considered the gravity of the violation as
“highly likely,” because ventilation carries away the methane gas. At this multi-fan mine, each
fan plays a role in that task, for effective mine ventilation. If one fan is not working properly it
impacts the other mine fans. Tr. 67. In this instance the Number 4 fan was compromised by the
restrictions put on it by the water. Tr. 67. The Inspector also believed that other hazards made
the violation highly likely to cause an injury or illness, by virtue of the water’s depth, its
murkiness and the tripping hazards, including slickness and the uneven terrain one had to travel
in that area which were made more difficult by that water’s presence and depth. Tr. 67.
McDonald also marked on the Order that lost workdays or restricted duty were the likely results
by those conditions, exposing the examiner to “getting entangled in stuff, getting tangled up on a
track, breaking his leg down there and possibly striking his head.” Tr. 68. As the mine examiner
customarily travels solo, no one would know of such an injury until he was noted to be missing at
the end of the shift. Tr. 68.

Associated with Inspector Freeman’s earlier citation (i.e. Number 6699704) is GX 7,
which consists of that inspector’s handwritten notes and the Old Works fireboss rounds
connected with that. Tr. 73. Freeman issued his citation at 7:40 that morning, a little more than
an hour after his arrival at the mine. A difference, Inspector Freeman, stating that there were no
known conditions that could cause an ignition, listed the violation as non-S&S. However, unlike
McDonald, Freeman did not go underground to personally view the situation. Tr. 75. Thus,
while Freeman’s violation was based strictly on not entering the weekly routes being made on
March 4th and 5th, 2010, Inspector McDonald’s citation was a physical examination of the route
coupled with the hazardous conditions that he observed. Tr. 75. Although Inspector McDonald
originally listed on GX 2 the number of persons affected as six, in his testimony on direct at the
hearing he revised that number to two, because the mine would only send two miners down to
deal with the pumps. Tr. 77. When asked if his concern was an inability to get to a particular
location to take air readings or not knowing if the air itself was not moving as intended, the
Inspector advised that he had no way of knowing how much the fan had been jeopardized. His
concern was also the water. He added that as this was an old area of the mine, it had “squeezed”
so that in areas where the mine height had, in the past, allowed one to stand, now in some
locations one would need to crawl. When added to that, one has water and an uneven mine floor
and old, left-behind, materials such as rail and belt lines, the area is full of tripping and
entangling hazards. Tr. 80.

The inspector agreed that, at the fault bore hole pump,

he could have come at that from
the north

and got “close” to the area where the water was. Tr. 87. It is true that, for the areas
the inspector was able to reach, he didn’t find any methane in the areas he examined down by the
water, nor did he find low oxygen. Tr. 87.

Similarly, Respondent’s Counsel’s effort to turn to Inspector Freeman’s citation, issued
on March 9th, and which was written as “non S & S” violation, involves a matter which is not in
issue here. On that date the mine had been evacuated because of gas in the atmosphere behind
the seals. This is because section 75.336 requires such an evacuation upon certain levels of
methane and oxygen being present.

The mine remained down from March 9th through March
23rd because of that seal issue. Tr. 105.

Respondent’s defense began with a subject the Court considers to be irrelevant to the fact
of violation as well as to the attendant special findings. Keith Miller, the mine’s day shift
foreman, identified the areas where coal was being mined on the day in issue, with the point
being that such mining was a significant distance, some 5 to 6 miles, from the return air course
which had not been examined in its entirety. Tr. 114. Miller, who did accompany the Inspector
on the day in issue, March 23, 2010, was then directed to R 6, which depicts the area where the
Order was issued. The essence of this part of Miller’s testimony was apparently to show that two
pumps were working on March 23rd to remove the water. Tr. 119. Miller did admit that they had
prior problems with the 4 intake but added that, at the time he and Inspector McDonald were
down there, they were pumping.

Tr. 120.

Miller did not dispute that there were “water issues”

and that the mine was already
“down” at that point in time because of another issue; that is, the previously mentioned methane
behind the seals. Because of that problem, only firebosses and certified people were working in
the mine then. Tr. 134. Although a good part of Miller’s testimony involved the efforts being
made to contend with the mine’s water issues, when refocusing on the issues involved here,
Miller agreed that the examiner could not get to the 10 south faces. Tr. 139. Also, at the number
4 entry, 1-B, and entry 1 C, there are no readings either, Miller agreed. And, all the way down to
the number 4 fan shaft, the examiner was unable to get a reading. Tr. 139. Thus, Miller agreed
that for at least four areas, there was no reading. Tr. 140.

Miller also conceded that the Old Works, which is in 10 south, requires an examination
and readings at certain air stations and that has to be done every seven days. Tr. 141. Miller
agreed that, per R’s Ex. R 1, there was no reading for the first east south air courses, and all the
way down 1C there is no reading and also no reading was made for the Number 4 fan shaft, and
the main north, first east. Tr. 141-142. Miller agreed it was again water that precluded those
exams. Tr. 142. As he put it, “We had water problems and he did not make those air readings.”
Tr. 142. Miller therefore agreed that the examiner was not able to examine the area in the seven
day period. Tr. 142. He agreed that Inspector McDonald came to the mine on the 23rd and the
mine had not been able to examine the Old Works area on that day either. Tr. 142. Further,
Miller agreed that the mine was in production: “Yes. We started that day.”

Tr. 142. Regarding
the only genuine issue here, Miller agreed the Old Works had not been examined in its entirety.
Tr. 143.

Miller also agreed that GX 5 reflects those miners who were underground on March 23,
2010, and that he was the individual who filled out that document. Tr. 143. Miller’s handwriting
reflects that 83 miners were underground. Those miners began at 7:00 a.m. that day. Tr. 144.
When Inspector McDonald arrived that day, production was underway; that is to say, the
Respondent was mining coal. Tr. 144. Referring to the second page of the Old Works book,
Miller agreed his signature appears there. Tr. 145. Miller stated that, at the time he signed that
page, he had read miner Workman’s entries and he admitted that at the time he read those entries
it noted that Workman was unable to make the examination in areas because of hazards and high
water. Tr. 145. Further, Miller agreed that the examiner’s notes reflected that the 10 south fault
pump was impassable due to high water and that for the 8 south faces all entries going to the
faces had high water. Tr. 145- 146. Miller next agreed that miner Workman tried to make an
examination on March 22, 2010 too. Normally, the exam is done for this area on a Thursday.
Tr. 146. Aware of the problem, Miller ordered Workman to try and conduct the exam on a
Saturday. Yet, per Mr. Workman’s notes for March 23, 2010, even then he still could not make
the 4 fan and faces due to the high water. Tr. 147.

Referring to Inspector McDonald’s issuance of the violation, Miller agreed he was with
the Inspector on the day of the inspection. Miller agreed that the water at 10 south route, located
at the air station 1B, the water was 24 inches deep.

Tr. 148. Miller also did not dispute the
accuracy of the report’s statement that “when traveling to the number 2 regulator, accumulations
of water started approximately 50 feet outby and 200 feet inby at the number 2 regulator toward
the old 8 south faces.” Tr. 150. He also agreed that the “water was 32 inches deep and rising
inby the number 2 regulator,” nor did he take issue with the statement in the report that “[w]hen
traveling to the 10 south fault pump, water was roofed on the left side of the entry and
approximately 18 inches from the roof on the right side of the entry.” Tr. 150. Upon being
directed to all the red markings on the Respondent’s Exhibit, Miller stated that all the active
mining was on the other side of the map, at the top of it, from the area where Miller walked with
Inspector McDonald. Tr. 154.

Later, Miller agreed that although he completed a Citation/Order/Review form pertaining
to Order number 8518110, the order in issue here, that form, rather than being filled out right
after he accompanied the inspector, was only completed about a month before the hearing in this
matter. Tr. 169-170. On the form there is a section to address the likelihood of an injury
occurring and the only thing listed is the risk of tripping while walking in the water. Despite that
listing, Miller asserted that was not an admission on his part of any tripping hazard. Tr. 171.
His position did not change though he admitted there were belts, rocks, rails and other objects
one could trip over. Further, on the form, while he listed that no one could get hurt, his theory
was based on the return air course not being an active area of the mine. Yet, admitting that the
area must be made every seven days, he conceded that it is an “important” part of the mine
because one wants to know about the ventilation in that area. Tr. 173-174.

The Respondent also called Gary Shortt, who is currently the senior mining engineer at
the mine, a job entailing activities with the surface, the pumps, ventilation and mine planning and
design. Tr. 183. Shortt informed that on March 15th, the mine was not producing coal due to
atmospheric issues behind the seals but that, around March 22nd, the atmosphere around the seals
became acceptable. It was then that Shortt noticed that there were two areas that had not been
made; the air course of 1 right extension and the number 4 intake area, and the 1 right extension
in the D 5 pump on the 1. Tr. 184-185. Shortt stated he made arrangements to have those areas
examined on the evening shift before the 22nd anticipating that waders might be needed. Tr. 185.
When he arrived at the mine the next morning he learned that one area had been made but that
the number 4 fan area had not. Tr. 185-186. He then instructed that the area be examined
immediately. Tr. 186. Like Miller, Shortt also did not consider the use of waders to be a big
deal. Nor, it must be said, did the government have an issue about the use of waders when
traveling through water during an examination.

Again, it is important to keep in mind that
McDonald, waders or not, could not make the area, nor could the mine’s certified examiner.
At any rate, a Mr. Kilgore could not make the area and Shortt maintained that he did not report
that failure to anyone. Tr. 187.

Shortt clarified that he did not direct that Kilgore do the examination, but rather that he
only ordered that someone make the area. At any rate, he apparently did order that the area be
examined on March 22nd and when he found, the next morning, that no exam had been done, he
ordered that it be examined immediately. Tr. 195. With obvious reluctance in his testimony to
the admission, he acknowledged that miners began mining on the 23rd at their normal time,
stating, “It was a normal start time [for the production miners]. I didn’t tell them not to go, no.”
Tr. 197. (emphasis added.) In attempting to mitigate his order that production was to resume,
Shortt stated that he “was expecting” that the Old South Works would have been examined the
night before, on the 22nd. Tr. 199. Explanations aside, mining resumed, that is miners were in the
mine for production purposes, as of 11 p.m. on the 23rd. Tr. 200.

DISCUSSION. 

The claim of duplication

Respondent contends the Order in issue here, No. 8518110, is duplicative of Citation No.
6699704, as the latter was still pending when the former was issued. Primarily relying upon
Spartan Mining, 30 FMSHRC 699, 717-718, 2008 WL 4287784, (August 28, 2008), Respondent
contends that the duty to comply with the requirements of this standard were subsumed

within a
previously issued alleged violation of that standard. Oak Grove asserts that the previous citation
and the present order were based upon the same act or omission; the mine’s failure to examine at
least one entry of each return air course in its entirety. Respondent contends that MSHA should
have issued a Section 104(b) order for failure to abate Citation No. 6699704, instead of issuing
the subject order.

The problem with Respondent’s contention is that the prior citation was issued on March
9, 2010, whereas the present order was issued on March 23, 2010. The standard in issue is
entitled “Weekly examination,” and the cited provision within it very clearly requires an
examination at least every 7 days. Accordingly, at a minimum, every 7 days creates a new
obligation to perform the weekly exam. As the interval between the two enforcement actions
exceeded the 7 day maximum interval between examinations, a new violation arose. To suggest
that the duty which arose by the March 23rd failure is subsumed with the March 9th failure,
ignores the weekly examination requirement and there is no dispute that the last complete
examination to the order here had been at least seven days prior. Tr. 67.

Further, Oak Grove misapprehends Spartan Mining’s instruction on the subject. First, in
reviewing the claim of duplication for an entirely different standard than the matter involved
here,

while the Commission split evenly on the issue, the effect of that was to uphold the
administrative law judge’s determination that the matters were not duplicative. As the members
of the Commission noted in upholding the judge’s determination, “the two violations occurred at
different points in time.” Not only did those upholding the judge depart from the idea that
duplication exists where the method of abatement is the same, they also found that, while
subsuming can occur, as applied in that instance, the duty cited in one regulation was not
subsumed in the other. Instead, those members upholding the judge stated that it has “never
focused on abatement in its analysis,” but rather whether “different actions” were required. Id. at
*17. Here, clearly, different actions are required, namely that, there be an examination “[a]t least
every 7 days” . . . “[i]n at least one entry of each return air course, in its entirety.” 30 C.F.R. §
75.364(b)(2) (emphasis added).

It should also be noted that the other enforcement action, the previous citation that
Respondent looks to in support of its duplication claim here, was not tried in this proceeding, and
that it cited a failure to comply with the proscription against anyone entering an underground area
if there has not been a weekly examination within the previous 7 days. Thus, there is no
evidentiary record to consult if it were accepted for the sake of argument that the present matter
could be subsumed with the prior enforcement action. Last, the words employed in the two
standards suggest that the focus of the standard cited in this case is upon the importance of
examining the entirety of one entry of each return air course while the focus of the earlier citation
is to ensure that no one enters “any underground area of the mine” unless the weekly exam
occurred within the previous 7 days. 30 C.F.R. § 75.364(f)(2) (emphasis added). Obviously,
different evidence would be used to establish the respective provisions.

Having rejected the Respondent’s only basis for attacking the fact of violation, the Court
noting that the Respondent has effectively otherwise conceded the violation, now turns to the
remaining issues of whether the violation was “significant and substantial” and demonstrated an
“unwarrantable failure” to comply with the cited provision.

The determination that the violation was Significant and Substantial.

A significant and substantial (“S&S”) violation 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).
The Commission has explained that:

[i]n order to establish that a violation of a mandatory safety standard

is significant and substantial under National Gypsum, the Secretary of

Labor must prove: (1) the underlying violation of a mandatory safety

standard; (2) a discrete safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a reasonable likelihood that

the hazard contributed to will result in an injury; and (4) a reasonable

likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. MSHA, 52
F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies
criteria).

On occasion, the difficulty with finding a violation S&S may arise with the third element
of the Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the
Commission provided additional guidance:

We have explained further that the third element of the Mathies formula

“requires that the Secretary establish a reasonable likelihood that the

hazard contributed to will result in an event in which there is an injury.”

U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).

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).

This evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6
FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). The Secretary is not required to
establish that it is more probable than not that an injury will result from the violation. U.S. Steel
Mining Co., Inc., 18 FMSHRC 862, 865 (June 1996).

As noted in a recent administrative law judge decision, “[T]he Commission has long held
that “[t]he fact that injury [or a condition likely to cause injury] has been avoided in the past or in
connection with a particular violation may be ‘fortunate, but not determinative.”’ U.S. Steel IV,
18 FMSHRC at 867 (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk
Run Coal Co., 27 FMSHRC 899, 906-07 (Dec. 2005) (holding that absence of adverse roof
conditions at time of or prior to violation does not preclude establishing S&S violation); Blue
Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996) (noting that absence of accidents
involving violative equipment does not preclude S&S finding). The Commission recently
reiterated these principles in Cumberland Coal Resources, LP, 2011 WL 5517385 (FMSHRC
Oct. 5, 2011), [FN6] and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 2010). Citing Elk
Run Coal and Blue Bayou Sand & Gravel, the Commission emphasized that the test under the
third prong of Mathies is whether the hazard fostered by the violation is reasonably likely to
cause injury, not whether the violation itself is reasonably likely to cause injury. Cumberland
Coal Res., 2011 WL 5517385, at *5; Musser, 32 FMSHRC 1280-81.” See, Pine Ridge Coal,
2012 WL 601258 at * 9, upholding significant and substantial element for violation of 30 C.F.R.
§ (b)(2).

Respondent notes that the Inspector’s “primary justification for [his] S & S designation
was that of slip and/or trip injuries.” Respondent’s Br. at 15. (emphasis added). Given that,
Respondent contends that no significant and substantial designation can be supported because the
standard in issue is focused on “ventilation issues,” not “slipping and tripping hazards.”
Respondent contends that, to be sustainable, an S & S finding must be related to the intended
purpose of the standard. Alternatively, Respondent asserts that even if one may look outside the
subject addressed by a standard to evaluate whether a violation is “S & S,” here the evidence that
there was such a slipping and tripping hazard was no more than speculative.

It is true that when asked by the Court to sum up his “S&S” determination, Inspector
McDonald stated that it was “S & S” because of the tripping hazards of those miners who would
have to travel the route. He considered the hazard to be both obvious and extensive.

Tr. 82.

Before reaching the issue of whether slipping and tripping hazards can be addressed by 30
C.F.R. § 75.364, the Court first makes the finding that the Inspector’s testimony was anything
but speculative on that question, and further finds that it was persuasive on the issue. Clearly,
there were slipping and tripping hazards abundant as Inspector McDonald waded through the
water in the entry, as he attempted to make it in its entirety. In contrast, Respondent’s witness,
Miller, in his testimony could “not remember” if there was any stumbling or the Inspector
dropping his clipboard, although Miller allowed “I mean, he might have [stumbled] but [he
didn’t] remember [McDonald] falling or tripping.” Tr. 121. Miller added, regarding the slipping
or sliding issue, “We just walked up there to it, you know. I mean, I don’t remember any - -.”
Tr. 122. And again, later, in terms of any slipping or tripping in these conditions, Miller couldn’t
“remember it happening.” However, he added, “It’s a possibility it could have happened.”
Tr. 128. Though he maintained that, for him, it posed no slipping or tripping hazard, Miller
acknowledged that the old track rail remained in the area. Tr. 122. Turning to the mine water
itself, Miller agreed that the water was dark and that one can’t see the bottom, that there are
objects in the water, including rocks, belts, and old tracks. Tr. 152. In fact, Miller acknowledged
that he was walking around the rib, holding onto the rib as he was making his way along, “Yeah.
I just put one hand on the rib and stayed alongside the rib. That’s correct.” Tr. 152. This
technique was done to help guide him through the water, he admitted.

Notwithstanding the foregoing, the Court finds despite the record evidence establishing a
significant slipping and tripping hazard, such conditions cannot form the basis for a “S & S”
finding where a section 75.364(b)(2) violation is alleged, because that is not the focus of that
standard.

However, it is noted that other administrative law judges have reached a contrary
conclusion. In Consolidation Coal Co., 15 FMSHRC 1408, 1993 WL 411806 (July 1993 ALJ) ,
dealing with the same provision, 30 C.F.R. § 75.364, the judge, considering the depth of the
water, the fact that it was cloudy or muddy, the extent of the accumulation, the presence of two
pipes in the water, and the fact that mud and rocks occur naturally on the floor of mines,
concluded that the accumulation of water cited constituted a hazardous condition that should
have been reported. 15 FMSHRC at * 1413. The judge continued, having found that the
Contestant did violate Section 75.364, and that the violation did contribute to the hazard of
slipping or tripping. In evaluating the third element of the Mathies formula, the judge took note
of the “depth of the water; the fact that the bottom could not be seen through the water; the
presence of 2 pipes in the water; the uncontradicted testimony of . . . an MSHA Inspector who
inspected the site on February 7, 1993, and observed, in the area cited, planks and crib blocks
lying on the floor in the center of the entry on the right side . . . and [ ] uncontradicted testimony
that . . . he had observed a canvas lying on the floor covered with mud which made it extremely
slippery when wet.” The judge concluded that “[w]ithin the above framework, . . .it has been
established that an injury producing event i.e., slipping or tripping, was reasonably likely to have
occurred [and that] . . . due to the nature of the items in water, that should a person have tripped
or slipped, there was a reasonable likelihood of an injury of a reasonably serious nature. . . . [and]
[t]hus, [he] concluded that it [w]as established that [the] violation [ ] was significant and
substantial. Id. at *1415.

This Court’s conclusion that a slipping and falling hazard cannot form the basis for a
significant and substantial finding in connection with a Section 75.364 violation does not mean
that the violation was not S & S in this case, as there is other, substantial evidence, to support
that conclusion. The inspector is not a lawyer, nor a jurist. His critical contribution to making
the determination of whether a violation is S & S comes from the facts he observes and his
knowledge bases concerning the hazards attendant to the violation. Thus, whether a violation is
S & S does not rise or fall on a given inspector’s legal analysis; it is for the Court to apply the
evidence from the hearing and make that legal determination. The Court made note of this
observation at the hearing. Tr. 220.

As the Respondent itself concedes, Inspector McDonald’s testimony regarding his
“S & S” finding was not limited to slipping or tripping issues.

Id. at 15. Respondent observes
that the Inspector did testify that he was also concerned that the Number 4 fan was compromised
by the restrictions put on it by water and that there was no way of knowing if the fan was
affected. R’s Br. at 18, citing Inspector’s testimony at Tr. 67, 79-80. However, the Respondent
asserts that there was “no evidence that the cited condition actually had an effect on the
ventilation, or the No. 4 fan.” Id. Respondent notes that both the Inspector and Mr. Miller
conducted some air readings during the attempt to conduct the weekly inspection and that those
readings did not reveal methane or oxygen problems. Acknowledging that the Inspector testified
that there were airflow problems at the borehole pump, Respondent points out that no tests of air
velocity were taken there, nor did he test the No. 4 fan on the surface. Tr. 89. Respondent
characterizes McDonald’s concerns over potential issues with the fan as speculation and
discounts such concerns, even if valid, as of minimal concern because the active workings would
not be affected by such issues. Id. Last, Respondent concludes its contention that the violation
was not shown to be S & S by noting that the evidence at the hearing established that the
ventilation was not compromised and even had that been the case, with air traveling down the
No. 6 entry and then ventilating the faces, any ventilation issues would have been detected at the
1-B air station. Id. at 19.

However, Miller admitted that, even though there was no active mining in the areas cited
by the Inspector, he was not contending that it was not important to take those air readings. Tr.

155. He agreed such readings were in fact important to take. Tr. 155. He also agreed it was
     important to take those readings every week. Tr. 155. Asked by the Court why taking those
     reading is important, Miller stated “[j]ust to see if there is hazards back there, that if there is low
     oxygen or high methane. Those are not the only concerns either. One is also examining the roof
     conditions, as someone could get hurt by such conditions as the fireboss makes his exam once a
     week. Tr. 156. As noted earlier, Miller admitted that the area must be made every seven days,
     and he conceded that it is an “important” part of the mine because one wants to know about the
     ventilation in that area. Tr. 173-174.

As the Secretary notes, when Inspector McDonald arrived at the mine on March 23, 2010,
in response to the Section 103(g) miner complaint, a complaint based on the very grounds for
which the Inspector later issued his Order here, he examined the mine’s record books, finding
that the weekly exam for March 18th listed several areas which the examiner could not carry out
his examination for the Old Works 10 South and returns weekly exam, because of excessive
water. Thus, initially it was the mine’s certified examiner, not an MSHA Inspector, who could
not examine all the required areas. That examination requires air, oxygen and methane readings
at specified locations. These readings are critical to assess whether the mine’s ventilation plan is
working properly, informing whether there is proper air quality and to determine if methane is
being swept out. And while Inspector McDonald may have been mistaken in evaluating the
slipping and tripping aspects in reaching his view that the violation was S & S, as noted earlier,
he spoke to other safety concerns about the violation as well. In this respect, he stated that the
gravity of the violation was “highly likely,” because ventilation carries away the methane gas. At
this multi-fan mine, each fan plays a role in that task, for effective mine ventilation. If one fan is
not working properly it impacts the other mine fans. Tr. 67. In this instance the Number 4 fan
was compromised by the restrictions put on it by the water. Tr. 67. Further, when asked if his
concern was an inability to get to a particular location to take air readings or not knowing if the
air itself was not moving as intended, the Inspector advised that he had no way of knowing how
much the fan had been jeopardized. Tr. 75-80.

Inspector McDonald added, in response to further questions, that if one can’t take
measurements at the fans and the other measurement places, one is then without any readings,
and that means one will not know if something has occurred in those areas to change the air
readings. The readings offer assurance that nothing has changed. For example, the brattice could
be out at some location and thereby altered the mine ventilation. Tr. 84. If the ventilation is
altered, a situation made graver if one is unable to know of such a change, one could, in an area
such as the Old Works, have low oxygen and high methane. As the Old Works is located right
below the long wall gobs, if the fan were altered, that low oxygen, high methane situation could
occur. Tr. 84. Under such conditions, if one had the low oxygen, and high methane drifting
down, an explosion level of methane could occur and one would not know of it because of the
incomplete weekly exam. As another example of the hazard which could develop, McDonald
related that there have been instances when a weekly examiner has encountered low oxygen on
his route and died.

Tr. 84.

Inspector McDonald’s concerns over the threats associated with the failure to make the
entire entry were not mere conjecture. As the Commission noted in its Oak Grove, November
2011 decision, this mine is subject to spot inspections because it liberates more than a million
cubic feet of methane every 24 hours. 2011 WL 5905640 at *1. In that decision, the Commission
noted that Oak Grove failed to take the required air measurements at the “specific locations
identified in the mine ventilation plan,” areas that, as here, those areas could not be accessed
because of water accumulations.

As noted, the Court views Inspector McDonald’s other statements to be sufficient, (i.e.
those statements apart from his slipping and sliding concerns), regarding his determination that
the violation was significant and substantial and it so finds it as such.

Having found that the
violation occurred and, based on Inspector McDonald’s testimony as well as that of Keith Miller,
that there was a clearly identified measure of danger to safety contributed to by the violation, the
first two Mathies elements were established. Further, both Inspector McDonald’s testimony, and
Miller’s too, established the reasonable likelihood that, at this ultra-gassy mine, the hazard
contributed to will result in an injury and that it would be an injury of a reasonably serious
nature. The Court’s determination that the violation was significant and substantial is especially
true, when viewed in the context of the undisputed evidence identifying the multiple areas
McDonald was unable to access.

Although the foregoing represents the basis for the Court’s significant and substantial
finding, some additional observations are in order. The cited provision has a long history in
terms of coal mine safety. The importance of the provision in issue here was recognized in the
Coal Mine Health and Safety Act of 1969.

In enacting the 1969 Coal Act, Congress expressed the importance of the same matter
before this Court. By that statutory provision being directly included in that Act, Congress made
a clear statement of the importance of this safety practice and in so doing elevated the
requirement which later was echoed as a mandatory safety standard.

Congress provided:

In addition to the preshift and daily examinations required by

this section, examination for hazardous conditions, including tests

for methane, and for compliance with the mandatory health or

safety standards, shall be made at least once each week by a certified

person designated by the operator in the return of each split of air

where it enters the main return, on pillar falls, at seals, in the main

return, at least one entry of each intake and return aircourse in its

entirety, idle workings, and, insofar as safety considerations permit,

abandoned areas. Such weekly examination need not be made during

any week in which the mine is idle for the entire week, except that such

examination shall be made before any other miner returns to the mine.

Section 303(f), Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, 91st
Congress, S.2917, December 30, 1969 (emphasis added).

That statutory provision then appeared in the proposed and final rule, repeating it as a
mandatory safety standard for underground coal mines. See, proposed rule at Fed. Reg. Vol 35,
12911, at 12923, and final rule at Fed Reg. Vol 35, 17890, at 17901, November 20, 1970.

No surprise, the statutory provision from 1969 Coal Act was continued with the Federal
Mine Safety and Health Act of 1977 and its amendments, also appearing at Section 303(f), 30
U.S.C. § 863. Accordingly, given the Congressional statement of the importance of this
requirement for more than 40 years, it would not be unreasonable to view any violation of the
provision as presumptively significant and substantial.

The determination that the violation was an Unwarrantable Failure

The unwarrantable failure terminology derives from section 104(d)(1) of the Mine Act and
refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d).
In Emery Mining Corp., the Commission determined that an unwarrantable failure is aggravated
conducted constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester &
Pittsburgh Coal, 13 FMSHRC at 194; see also Buck Creek Coal, 52 F.3d at 136 (approving the
Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist, such
as 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 are necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation is obvious or poses 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); Cyprus Emerald Res. Corp., 20
FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest
Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Peabody Coal, 14 FMSHRC at 1261; BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). 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. Consolidation Coal Co., 22 FMSHRC at
353.

Inspector McDonald confirmed that if no exam is conducted, no one is to enter the mine,
other than certified people, until the mine is made in its entirety. Tr. 68. McDonald’s Order also
listed the negligence as a “reckless disregard.” Tr. 69. In so marking that assessment of
negligence, the Inspector listed the citation of MSHA Inspector Steve Freeman, citation number
6699704, issued March 9, 2010, and that the information was duly recorded in the examinations
book for that date. That information and the citation put the Mine on notice about its failure to
make their weekly examination routes.

Tr. 69-70. As management had countersigned the
books, they were aware that the water was present.

Tr. 70, 82 McDonald stated that it was the
mine’s duty to remove the high water to the point the entries could in fact be examined in their
entirety, so that the required air and air quality readings could be made. Tr. 70. As just noted,
associated with that earlier citation (i.e. No. 6699704) is GX 7, which consists of Inspector
Freeman’s handwritten notes and the Old Works fireboss rounds connected with that. Tr. 73.
Freeman issued his citation at 7:40 that morning, a little more than an hour after his arrival at the
mine.

As with its S & S analysis, Respondent asserts that the Secretary failed to prove that any
aggravated conduct was associated with the violation. R’s Br. at 20. Maintaining that neither the
extent nor the duration of the violation was extensive, Respondent curiously first reminds the
Court that, at least from Respondent’s perspective, this was the same condition that had been
previously cited by Citation No. 6699704, as asserted in its argument that the matter at hand is
duplicative. Having asserted that, Respondent then, shifted its argument, maintaining that the
condition only existed for “essentially one shift.” R’s Br. at 22.

With the exam needed to be done no later than the afternoon shift on March 22nd,
Respondent concedes that did not happen but that the absence of an exam only existed for a short
time. Of course, the claimed “short duration” of the violation did not happen in a vacuum. There
was, after all, some history here, namely the 103(g) complaint. Nor was the mine’s action
attributable to some proactive safety step taken by the operator, as Inspector McDonald issued his
Order and the miners were then evacuated from the mine.

Respondent also contends that the violation did not present any danger, maintaining that the
Commission has relied upon such an evaluation and whether a “high degree of danger” exists, to
support an unwarrantable failure finding.

Because the evidence did not establish a hazardous
condition with the ventilation and failed to show that the condition “actually affected the
ventilation,” Respondent maintains no unwarrantable failure was demonstrated. R’s Br. at 23.
However, this may be equally attributable to good fortune. Further, as noted, the after-the-fact
determination approach, not applicable to an S & S analysis, is even less pertinent to the
negligence and unwarrantable evaluation.

Respondent also urges that it had “no reason to believe that greater efforts were required
beyond the pumping procedures” it was implementing. In this regard it notes that the earlier
citation for the problem was not marked as “S & S” and it believes that this translates into a lack of
notice that it should have been on “heightened alert” to increase its compliance efforts. It points to
its diligent efforts to remove the water from the area with all the pumps it had employed to deal
with the problem. In an observation that the Court believes undercuts the Respondent’s
contention, Respondent notes that its own examiners could not “conduct the requisite examinations
for the faces of 10 South on March 11th [nor a week later on March] 18th [and that both] Mr. Shortt
and Mr. Miller ordered that the examinations be conducted on March 20.” Even then, Respondent
admits, “water impeded [the mine’s own] examiners from conducting the examinations.” R’s Br.
at 24. Of course, the condition cited by Inspector McDonald was not the only problem present, as
the mine had been shut down because of the “atmospheric issue behind the seals.” By its account,
Mr. Shortt had ordered that the exam in issue be conducted before production resumed on the
midnight shift on March 23, 2010 and it was on the morning of March 23rd that he then discovered
that the exam had not been done. This recounting omits that it was not simply that the exam had
not been done but that it could not be done. Shortt, it contends, did not know that the exam had
not, nor could not have, been done and that his mistake did not rise to any reckless disregard or
unwarrantable failure on the mine’s part. R’s Br. at 25. Shortt, Respondent contends, simply did
not know that the exam was not done.

Last, Respondent maintains that it took “reasonable steps to abate the purported violation,”
and that such reasonable efforts by the mine bears upon the unwarrantable analysis. R’s Br. at 26.
Oak Grove, it contends had taken “significant steps” both to pump out the water accumulations and
to attempt the required weekly examinations. In this regard it points to the various pumps it had
installed to address the water accumulations and its unsuccessful attempts to do the required
examinations. Viewing its efforts as diligent, it maintains that the steps it took were inconsistent
with a conclusion that its failure was unwarrantable.

In addressing the unwarrantable failure contention, the Secretary notes that the Inspector
found both Mine Foreman Keith Miller’s signature and General Mine Foreman David Ingle’s
signature on the March 18th Old Works 10 South exam, along with the certified mine examiner’s
signature for that date. Ineluctably this meant that those two foreman were fully aware that the
weekly exam could not be completed or, an equally bad conclusion, that they simple signed the
report without ever looking at it. Whether the information identifying the problems was simply
ignored or the foremen didn’t look at it, as they were supposed to, the purpose of management’s
signature is to make them aware of the problems noted in the examination and to attend to them
immediately. Upon finding the problem, Inspector McDonald then asked if the mine was then
producing coal and Ingle advised that in fact they were. The miners were then withdrawn and the
Inspector went underground to determine if the Old Works 10 South could still not be examined.
Upon doing so, he found that a number of areas could not be made, as previously described.

It is noteworthy that Inspector McDonald’s ensuing Order , in which he listed the areas
which could not be made for the return air course, noted that the certified examiner identified such
areas on March 18 and again on March 20, 2010, and that such problems, though identified, were
countersigned by members of management. Inspector McDonald then included in his Order that a
“HIGH NEGLIGENCE” Citation (# 6699704) had been issued on March 9, 2010 “for entering the
mine with weekly routes not being made and not being made in its entirety.” Further, Inspector
McDonald’s Order pointed out that the mine had been “cited for a violation of 75.364(b)(2) seven
times in the past 2 years.” Order No. 8518110. Given the history, including the recent history by
virtue of Inspector Freeman’s prior citation for the same failure, that the problem was clearly
identified by the mine’s certified examiner and that two management officials signed off on the
examiner’s report which listed the problem, this demonstrates a serious lack of reasonable care on
mine management’s part for which it was clearly on notice of the obvious and extensive violation
of the provision.

Accordingly, based on the foregoing, the Court affirms the violation, finding that it was
both significant and substantial and an unwarrantable failure on the part of Respondent Oak Grove
Resources LLC.

PENALTY

The principles governing the authority of Commission administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the
Mine 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). 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 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 on 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 parties have stipulated that Oak Grove demonstrated good faith in the abatement of the
Order, and that the proposed penalty will not affect the Respondent’s ability to remain in business.
GX 1, the R 17 history report, covering March 23, 2008 through March 22, 2010, was admitted,
with the notation that this history of violations includes the March 9, 2010 citation but that it was
not a final order as of the date of the time captured in this history report. Tr. 17. The Court has
considered the appropriateness of such penalty to the size of the business; Oak Grove was assigned
13 points out of 15 possible mine points and 8 controller points out of a possible 10 points.
Accordingly, the Respondent is a large mine. The negligence and gravity have already been
extensively discussed.

ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), the Court assesses a
civil penalty of $70,000.00, the same amount as specially assessed. Oak Grove Resources, LLC is
hereby ORDERED TO PAY the Secretary of Labor the sum of $70,000.00 within 30 days of the
date of this decision.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution: (First Class U.S. Certified Mail)

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United States Department of Labor

618 Church Street, Suite 230

Nashville, TN 37219-2456

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Jackson Kelly, PLLC

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