Secretary of Labor v. Oak Grove Resources, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Four consolidated Oak Grove Resources dockets involved 24 citations and orders, including coal-dust accumulations, pre-shift examinations, and conveyor-belt maintenance. Judge Jerold Feldman approved settlement of 19 matters for $54,188. Of the five litigated matters, he affirmed a belt-maintenance citation and one accumulation order for $12,248 and $32,800. He reduced a separate 2,100-foot accumulation case from a section 104(d)(2), S&S, unwarrantable-failure order to a section 104(a), non-S&S citation with a $5,200 penalty, and vacated two examination orders. Oak Grove was ordered to pay $50,248 for the litigated matters and $54,188 for the settlements, totaling $104,436.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.360(a)(1), 75.363(b), 75.400, and 75.1725(a)
• Outcome: Two matters were affirmed, one was reduced, two were vacated, and 19 were settled, for total penalties of $104,436.
• Key point: Extensive accumulations did not support enhanced S&S or unwarrantable-failure findings where MSHA failed to prove a distinct ignition source or aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

May 3, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

OAK GROVE RESOURCES, LLC,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2013-301

A.C. No. 01-00851-315187-01

Docket No. SE 2013-352

A.C. No. 01-00851-317727-01

Docket No. SE 2013-368

A.C. No. 01-00851-319550

Docket No. SE 2013-399

A.C. No. 01-00851-320606-01

Mine: Oak Grove

DECISION

Appearances:   Thomas
A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville,
Tennessee, on behalf of the Petitioner;

R.
Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,

on behalf of the Respondent.

Before:                        Judge Feldman

These consolidated civil penalty proceedings are
before me based on petitions for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) under section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended (“the Mine Act”), 30 U.S.C.      §
815(d), against the Respondent, Oak Grove Resources, LLC (“Oak Grove”). A
hearing was held on September 1 and September 2, 2015, in Birmingham, Alabama.

I.                  
Settled Violations

These consolidated dockets concern
a total of 24 citations and orders. Prior to the hearing, the parties advised
that 17 of the 18 citations at issue in Docket No. SE 2013-352, and two of the
three 104(d)(2) orders at issue in Docket No. SE 2013-301, had settled. The
record at the hearing was left open for the parties to submit their written
settlement terms, which were filed on February 19, 2016.

a.      Docket
No. SE 2013-352

Regarding the 17 settled citations
in Docket No. SE 2013-352, the parties’ settlement terms include reducing the
total civil penalty from $23,559.00 to $15,713.00. Specifically, the settlement
terms provide for reducing the degrees of negligence attributable to the cited
violative conditions in Citation Nos. 8524989 and 8524999 to “low” and
“moderate,” respectively, with corresponding penalty reductions. Regarding
Citation No. 8526401, the parties agree to modify the number of people affected
from eight to one, with a corresponding penalty reduction. Additionally, the
parties agree to reduce the total civil penalty in Citation Nos. 8524490,
8524979, 8524982, 8524987, 8524991, 8524993, 8524994, 8524995, 8524996,
7684600, 8524499, and 8524500, from $17,108.00 to $11,019.00 based on the
vagaries of litigation, and pay the Secretary’s proposed penalties in full for
Citation Nos. 8524983 and 8524491.      One citation, Citation No. 8520665,
remains at issue in Docket No. SE 2013-352.

b.      Docket
No. SE 2013-301

Regarding the two settled 104(d)(2)
orders in Docket No. SE 2013-301, Order Nos. 8524255 and 8524258, the parties’
settlement terms maintain the unwarrantable failure designations, but reduce
the total civil penalty from $51,300.00 to $38,475.00. Order No. 8520666 in
Docket No. SE 2013-301 remains at issue in this proceeding.

Consequently, the parties’
settlement agreement reducing the total civil penalty for the settled 19
citations and orders in Docket Nos. SE 2013-352 and SE 2013-301 from $74,859.00
to $54,188.00 shall be approved as consistent with the penalty provisions of
section 110(i) of the Mine Act.

II.               
Disposition of Violations at Issue

a.      Summary
of Violations at Issue

In addition to the two violations
remaining at issue in Docket Nos. SE 2013-352 and   SE 2013-301, the two orders
at issue in Docket No. SE 2013-399 and the single order at issue in Docket No.
SE 2013-368 have also been adjudicated in this proceeding. Of these five
contested citations and orders, two orders concern allegedly impermissible coal
dust accumulations along each of two conveyor belt lines, and two orders concern
associated allegedly insufficient pre-shift examinations. These alleged
accumulations and pre-shift examination violations have been attributable to
unwarrantable failures. The remaining citation concerns an allegedly hazardous
conveyor belt that was reportedly observed rubbing against the mine roof at the
site of an overcast.

The Secretary initially proposed a
total civil penalty of $259,848.00 in satisfaction of these four contested
orders and one contested citation. The Secretary’s initial total proposed civil
penalty included a proposed penalty of $146,400.00 for the alleged
accumulations violation in Order No. 8520664 in Docket No. SE 2013-368 that was
designated as a repeated flagrant violation. As discussed below, the flagrant
designation was deleted prior to the hearing.      See Order Deleting
Flagrant Designation, 37 FMSHRC 1311 (June 2015) (ALJ). Consequently, the
Secretary reduced the proposed penalty for Order No. 8520664 to $70,000.00 — the
maximum penalty provided for unwarrantable failure violations under 30 U.S.C §
820(a)(1).  As a result, at the time of the hearing, the Secretary was
proposing a total civil penalty of $183,448.00 in satisfaction of these four
contested orders and one contested citation. The parties’ briefs have been
considered in the disposition of this matter.

b.      Order
No. 8520664 in Docket No. SE 2013-368 (Main North 3 Belt Accumulations)

i.     
Pre-Hearing Deletion of Flagrant Designation

Order No. 8520664, issued on
October 3, 2012, alleges a violation of section 30 C.F.R.  § 75.400.[1]
Order No. 8520664 states:

Combustible material in the form of
float coal dust and dry hard packed coal fines were allowed to accumulate on
the roof, ribs, footwall, and belt structure of the Main North 3 belt entry. The
hard packed coal fines were in contact with moving rollers on the belt line in
multiple locations along the belt entry. The float coal dust existed on the
roof, ribs, footwall, and belt structure from the Main North 3 Tail Piece
extending outby to crosscut 27. This is an approximate distance of 2100 feet. Due
to the extensive amount of accumulations and that this belt is examined every
shift this constitutes more than ordinary negligence and is an unwarrantable
failure to comply with a mandatory health and safety standard. Standard 75.400
was cited 92 times in two years at mine 0100851 (91 to the operator, 1 to a
contractor).[2]
This violation is an unwarrantable failure to comply with a mandatory standard.

Gov. Ex. 5. As previously noted, the accumulation condition
cited in Order No. 8520664 was initially designated by the Secretary as a “repeated
flagrant” under section 110(b)(2) of the Mine Act, for which the Secretary
sought a proposed enhanced civil penalty of $146,400.00. The flagrant
designation was deleted by an interlocutory order on June 1, 2015. Order
Deleting Flagrant Designation, 37 FMSHRC 1311 (June 2015) (ALJ). The interlocutory
order is incorporated by reference.

As the criteria for a repeated flagrant
violation essentially remains a matter of first impression, it is helpful to
summarize the rationale for deleting the repeated flagrant designation in this
matter. It is axiomatic that the Mine Act provides for the application of
“increasingly severe sanctions for increasingly serious
violations or [increasingly inexcusable] operator behavior.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981). Consistent with this
statutory scheme, section 110(b)(2) of the Mine Act, which increases the
maximum civil penalty for extremely hazardous violations deemed “flagrant,” was
promulgated by Congress in 2006 following the Sago and Darby Mine disasters. Section
110(b)(2) provides:

Violations under this section that are
deemed to be flagrant may be assessed a civil penalty of not more
than $220,000. For purposes of the preceding sentence, the term “flagrant” with
respect to a violation means a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.

30 U.S.C. § 820(b)(2) (emphasis added). Thus, section
110(b)(2) applies only to the most hazardous and egregious violations.

Section 75.400, the mandatory standard
prohibiting coal dust accumulations cited in Order No. 8520664, is the most
frequently cited mandatory standard in underground coal mines. For example, section
75.400 violations constituted eleven percent of all citations issued at
underground coal mines in 2015. MSHA, Most Frequently Cited Standards, http://arlweb.msha.gov/stats/top20viols/top20viols.asp
(last visited April 25, 2016).

While the condition cited in Order No.
8520664 appeared to be a routine accumulations violation, in that it lacked the
presence of an identifiable ignition source, the Secretary relied on a
“predicate violation history” to support his designation of a repeated flagrant
violation. However, if violative coal dust accumulations in proximity to a
properly-functioning conveyor system can be elevated to a flagrant violation
based on a “predicate history of violations,” the vast majority of section
75.400 violations can be deemed flagrant.

Consequently, in an effort to narrow the
issues, on March 14, 2014, the parties were ordered to address whether a section
75.400 violation can be elevated to a repeated flagrant violation based solely on
a history of violations, if the cited condition can only contribute to a
reasonably serious injury, rather than proximately cause serious bodily injury
or death.       36 FMSHRC 815 (Mar. 2014) (ALJ).

In response, the Secretary conceded that
“[b]oth reckless and repeated flagrant designations require violations that
substantially and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury.” Sec’y Resp. to Order Scheduling
Briefing, at 6 (Apr. 22, 2014). In other words, the Secretary conceded that
a violative condition that cannot reasonably be expected to be the proximate
cause of serious injury or death cannot be elevated to a flagrant violation
based simply on a history of violations. In this regard, at an oral argument
held on March 4, 2015, for the purpose of addressing the criteria for a
repeated flagrant violation, the Secretary’s counsel stated:

We absolutely agree that history alone
cannot elevate a violation to a flagrant violation. There is no dispute about
that from the Secretary’s perspective.

And I think as [the Court] read
yourself from the Secretary’s response to your briefing order, the Secretary
has noted that both reckless and repeated flagrant designations require
violations that substantially and proximately caused or reasonably could have
been expected to cause, death or serious bodily injury.

Order
Deleting Flagrant Designation, 37 FMSHRC at 1313 (citing Oral Arg. Tr. 29-30).

Following consideration of the Secretary’s
April 22, 2014, response, the Secretary was ordered to file a prehearing brief
addressing whether the cited violative condition in Order No. 8520664 satisfies
the requisite criteria for establishing a repeated flagrant violation under
section 110(b)(2) of the Mine Act. Specifically, the requisite criteria were
identified as follows:

1.      A
repeated flagrant violation is a flagrant violation that is demonstrated by
either:

a.       A
repeated failure to eliminate the violation properly designated as flagrant, or

b.      A
relevant history of violations that also meet the requirements for a flagrant
violation with respect to knowledge, causation and gravity, as enumerated
below.[3]

2.      A
flagrant violation must be a known violation that is conspicuously dangerous,
in that it cannot reasonably escape notice.

3.      A
flagrant violation must be the substantial and proximate cause of death or
serious bodily injury that has occurred or can reasonably be expected to occur.

a.       A
substantial and proximate cause is a dominant cause without which death or
serious bodily injury would not occur.

b.      A
serious bodily injury is a grave injury that results in significant
debilitating and/or permanent impairment.

c.       Such
injury is reasonably expected to occur if there is a significant probability of
its occurrence.

36 FMSHRC 1777, 1789-90 (June 2014) (ALJ).

In response to the above criteria,
the Secretary asserted that:

In the present case, hard packed coal
fines were in contact with moving rollers on the belt line in multiple
locations along the belt entry. Given these ignition sources, it is reasonably
expected that, as normal operations continued, serious and/or deadly
injures from burns and smoke inhalation would result from a fire or explosion. These
injuries would be the proximate and direct result of the fire or explosion
because the accumulations would be the necessary fuel source that, when
combined with oxygen and an ignition source, would cause the fire or explosion.

Sec’y Pre-Hearing Statement, at 2 (Aug. 7, 2014)
(emphasis added). The Secretary’s response relied upon a traditional significant
and substantial (“S&S”) analysis. Specifically, the Secretary conflated the
contribution of a condition to an event resulting in injury of a reasonably
serious nature, based on the potential for future ignition sources that may
arise during the course of continued mining operations, with the actual
presence of ignition sources that have caused, or can be reasonably expected to
proximately cause, death or serious bodily injury.

Reduced to its core, while all
flagrant violations are S&S, it is only the most hazardous of S&S
violations that can properly be designated as flagrant. By way of illustration,
an S&S violation is one that, in the context of continuing mining
operations, is reasonably likely to contribute to a hazard that will result in
an injury of a reasonably serious nature. In contrast, a flagrant violation is
a violation that, itself, presents a present hazard that either has caused, or
can be reasonably expected to proximately cause, death or serious bodily
injury.

On June 1, 2015, I issued an interlocutory
order deleting the flagrant designation in Order No. 8520664, which stated, in
pertinent part:

While the cited accumulations may have
been exposed to future ignition sources based on conveyor belt defects that may
occur during the course of continued mining operations, the undisputed material
facts demonstrate that the cited accumulations were not in
proximity to any identifiable ignition source, such as a misaligned belt or
defective roller on October 3, 2012, the date Order No. 8520664 was issued. In
this regard, the Secretary[’s counsel] forthrightly conceded during oral
argument [in this matter]:

COURT:         Was
there any evidence of any heat? . . .

COUNSEL:    And
the simple answer I’d like to give you . . . is at the time the violation was
issued, there is no evidence of heat sufficient to ignite coal at the time
the violation was issued.

[Oral Arg.] Tr.
129-130 (emphasis added).

Moreover, the cited accumulations were
remotely located where they could not be exposed to ignition sources at the
mine face. In this regard, at oral argument, the parties stipulated that the
location of the cited accumulations was approximately .58 miles from the
zero-gate continuous mining development area, .96 miles from an active working
face, and 2.3 miles from an active long wall mining face. [Oral Arg.] Tr. 139-40;
Oral Arg. Jt. Ex. 1. Rather, the Secretary repeatedly relies on speculation
that there will be future sources of heat that will arise during the course
continued mining operations, as a basis for asserting that the cited accumulations
could reasonably be expected to cause death or serious bodily injury. Sec’y Resp.,
at 6-10. In his brief, the Secretary also repeatedly proposes that the “the
rationale for presuming ‘continued mining operations’ applies equally to
‘flagrant’ and [S&S] determinations.” Id. at 18-22. Consistent with
this proposition, at oral argument the Secretary[’s counsel] stated:

COUNSEL:    If
the Court doesn’t agree that the concept of continued normal mining operations
applies in a flagrant violation, then the Court should rule that way, we would
lose this case.

[Oral Arg.] Tr.
151-52. Precisely.

Fundamentally, the Secretary must not be
permitted to use interchangeably the term “actual (present) ignition source”
with the term “potential ignition source” that may occur as a consequence of a
future defect in the conveyor belt system during continued mining operations. In
the present case, in the absence of ignition sources, the cited accumulations
themselves are not capable of combustion and, as such, cannot be the proximate
cause of serious bodily injury or death, as contemplated by section 75.400. Consideration
of potential exposure to a future ignition source based on continued mining
operations in the context of a traditional S&S analysis goes beyond scope a
flagrant analysis.

Rather, whether the facts surrounding a
violation support a flagrant designation is determined by the facts as they
existed at the time the citation was issued. Coal dust accumulations not in
the presence of ignition sources can be a contributing cause
of injury if they propagate an explosion. However, such accumulations cannot be
the proximate cause of injury.[4]
To conclude otherwise, would be to render the vast majority of prohibited
accumulations under section 75.400 flagrant violations. . . . Simply put — if
everything is flagrant, nothing is flagrant. Nor does the Secretary have the
prosecutorial discretion to arbitrarily and capriciously label violations as
flagrant.

Order Deleting Flagrant Designation, 37 FMSHRC at 1318-19.

In the final analysis, it cannot be ignored that
Congress elected not to provide for the imposition of flagrant designations
based on a timeline when it promulgated section 110(b)(2) of the Mine Act, as
it did for withdrawal orders under section 104(d)(1). Rather, Congress provided
a definition that requires that a violation deemed flagrant must have
proximately caused death or serious bodily injury, or could be reasonably
expected to do so.[5]
The Mine Safety and Health Administration’s (“MSHA”) persistent attempts to
elevate a violation to a repeated flagrant status under section 110(b)(2)
primarily based on a history of violations, despite the statutory definition of
a flagrant violation provided by Congress, is simply not supportable.[6]
See Order Deleting Flagrant Designation, 37 FMSHRC at 1321.

The Secretary did not request
interlocutory review of the June 1, 2015, Order Deleting the Flagrant
Designation in Order No. 8520664. Consequently, the Secretary was ordered to
file an amended petition for civil penalty. In response, on August 21, 2015,
the Secretary filed an Amended Petition for the Assessment of Civil Penalty in
Docket No. SE 2013-368, replacing the enhanced $146,400.00 penalty sought for
Order No. 8520664, with a proposed penalty of $70,000.00—the statutory maximum
penalty for a violation attributable to an unwarrantable failure. While not
necessarily binding, it is noteworthy that, at the hearing, counsel for the
Secretary represented that the Secretary is no longer pursuing the repeated flagrant
designation for the accumulation violation cited in Order No. 8520664. Tr.
16-17.

ii.     
Post-Hearing Findings of Fact

The Oak Grove Mine is an
underground coal mine in Jefferson County, Alabama. During the course of MSHA Inspector
Alveriado Getter’s October 3, 2012, inspection, he traveled the Main North 3
belt entry, where he reportedly observed the accumulation conditions described
in Order No. 8520664. Tr. 33-34. As previously noted, the area where the cited
accumulations were located was approximately .58 miles from the Zero Gate
continuous mining development area, .96 miles from an active working face, and 2.3
miles from an active longwall mining face. Order Deleting Flagrant Designation,
37 FMSHRC at 1318 (citing Oral Arg. Tr. 139-40 and Oral Arg. Jt. Ex. 1).

As stated in Order No. 8520664,
Getter testified that he observed accumulations of float coal dust, coal fines,
and hard packed coal beginning at the feeder and extending 2,100 feet outby
along the beltline.[7]
Tr. 44. However, Getter further testified that, while the identified
accumulations were “not continuous” along the cited 2,100 feet of belt line,
the accumulations were not so sporadic to justify breaking up the condition
into multiple violations. Tr. 44. Order No. 8520664 states that “hard packed
coal fines were in contact with moving rollers on the belt line in multiple
locations along the belt entry.” Gov. Ex. 5 (emphasis added). When asked at
the hearing to quantify “multiple locations,” Getter stated that there were
“more than twenty” locations where hard packed coal fines were in contact with
moving rollers. Tr. 70. However, Getter conceded that neither the order, nor
his contemporaneous inspector notes, provide details regarding the depth and extensiveness
of the cited accumulations, or their proximity to rollers. See Tr. 70;
Gov Ex. 3. Consequently, Getter cannot rely on any past recollection recorded
to refresh his memory with respect to the depth and extent of the accumulations
he observed three years earlier.

Getter believed that the cited
accumulations were properly designated as S&S given the extensiveness he
reportedly observed. Tr. 54-56. As relevant ignition sources, Getter relied on
the purported frictional heat caused by the contact of accumulations with
turning rollers, without alleging that any of the rollers were defective. Tr.
55-56. Getter conceded, however, that he did not take any heat readings, or see
any signs of heat, i.e. smoke, or observe any defective rollers, to support his
belief that the accumulations were in proximity to an ignition source. Tr. 56. Moreover,
Getter did not express a concern that the cited accumulations could “propagate”
an explosion occurring elsewhere in the mine. Tr. 59-60. Getter asserted that
the cited accumulations could not have occurred during the present shift, but
rather opined that the accumulations had been present over nine shifts (three
days), during which time at least five examiners should have examined the belt
entry. Tr. 46-48.

As a result of his observations,
Getter issued Order No. 8520664 for a violation of section 75.400,
characterizing the cited accumulations as S&S in nature, because of their
potential to cause a fire that will result in smoke inhalation and burn-related
injuries to 35 miners working the 14 East entry, the Zero Gate entry, and the longwall,
“because the air on the [cited] belt line is utilized to ventilate [these inby]
sections.” Tr. 56-59. Getter attributed the cited accumulations to a “high” degree
of negligence, given his belief that it existed for at least nine shifts. Tr.
60-61. Thus, Getter characterized the cited accumulations as attributable to an
unwarrantable failure.

Oak Grove’s witnesses disputed the nature and
extent of the accumulations characterized by Getter, arguing that the
accumulations were minimal. Tr. 131, 144-45, 147, 168. For example, consistent
with Getter’s testimony that the cited accumulations were “not continuous,” Oak
Grove Safety Inspector Larry Taft, who accompanied Getter during his
inspection, testified that the accumulations along the Main North 3 belt were intermittent,
characterizing the accumulations as barely notable relative to the visible rock
dust. Taft testified:

Counsel:          And
Main North 3 belt that day, how would you describe the float coal dust?

Taft:                Light
gray.

Counsel.          Okay.
Was it continuous?

Taft:                No,
sir. You’d come to a crosscut that may be, like I said, might be light gray,
you needed to sweep it. And then the next two or three crosscuts would be
white, then a little light gray area, and a little darker gray area and then
white again. It was not dark gray or heavy gray or black the entire length of
the belt. No, sir.

Tr. 131. Although neither Getter’s testimony, his citation,
nor his contemporaneous notes quantified the depth of the cited accumulations, Taft
further testified:

Judge:              The
areas that it was dark gray almost black, would you say it was three inches,
six inches, less than three inches; how would you quantify [the amount of
accumulations]?

Taft:                Oh,
probably 16th to an 8th inch. So less than three inches.

Judge: 16th to an 8th
inch. So less than three inches?

Taft:               Oh,
gosh, yes.

Tr. 144-45; see also Tr. 173 (testimony of Oak Grove foreman
Keith Miller that the accumulations present along the Main North 3 belt line
were “about a quarter of an inch”).

Given Getter’s failure to quantify the extent of the cited
accumulations, it is noteworthy that the Secretary did not make an effort at
the hearing to rebut the testimony of Taft and Miller that the cited
accumulations were significantly less than alleged by the Secretary.

Oak Grove’s witnesses do, however, admit that
there were accumulations in proximity to the mini-washer, a filtering device
used to separate coal and rock from water being pumped through the mine to
prevent coal and rock deposits from clogging the water lines. Tr. 134-36. At
the mini-washer, located a few feet outby from the intersection of the Main
North 3 belt and the Zero Gate belt, coal and rock are filtered from the water
lines and dumped onto the Main North 3 belt. Tr. 131-32. Oak Grove’s witnesses
acknowledged that accumulations are common where the mini-washer dumps the coal
and rock extracted from the water lines onto the belt, as they were a normal
byproduct of mini-washer operations. Tr. 134, 140, 219-20. On this point, Taft
conceded that the accumulations at the mini-washer were significant enough to result
in contact with a single belt roller located near the mini-washer site. Tr.

135. Taft quantified these accumulations as approximately four to six inches in
     depth, amounting to “about six shovels full.” Tr. 139. However, Oak Grove’s
     witnesses also asserted that accumulations at the mini-washer are extremely wet
     by nature. Tr. 135-36; 170-71. Taft described the the cited accumulations at
     the mini-washer as so saturated that water would run out of them when squeezed.
     Tr. 136.

Contrary to Getter’s testimony, Taft
did not recall any locations where belt rollers were turning in accumulations
of coal dust, other than at the mini-washer. Tr. 136. Taft believed that the “hard
packed coal fines . . . in contact with moving rollers . . . in multiple
locations,” described by Getter in the order, may have referred to clumps of caked
mud that had stuck to the belt frame, rather than hard packed coal fines. Tr.
148-49.

Oak Grove foreman Keith Miller
testified that abatement of Order No. 8520664 began immediately. Tr. 178. Miller
testified that the wet accumulations near the mini-washer were shoveled and
that the belt entry was bulk rock dusted to take advantage of the de-energized
belt. Tr. 178. Order No. 8520664 was officially abated at 3:05 p.m. on October
3, 2012, about five hours after its issuance. Tr. 51; Gov. Ex. 5.

iii.     
Fact of the Violation

Section 75.400 requires that coal
dust “shall be cleaned up and not be permitted to accumulate” where miners are
usually required to work or travel. 30 C.F.R. § 75.400. Thus, consideration of
whether a 75.400 violation has occurred requires an analysis of both the
quantity and the duration of the cited conditions. Although Oak Grove disputes
that there were sufficient coal fines in the belt entry to constitute a
violation of section 75.400, Oak Grove concedes that the accumulations near the
mini-washer were sufficient, alone, to support the cited violation. Resp. Br.,
at 9. With respect to the accumulations in the belt entry, although Getter
neither documented, nor testified, regarding the depth or nature and extent of
the cited accumulations, the Secretary will be afforded the benefit of the
doubt that the accumulations along the belt line, although intermittent, were
also sufficient to constitute a violation of section 75.400.

iv.     
S&S

Turning to whether the cited
accumulations were properly characterized as S&S, a violation is properly
designated as S&S in nature if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed
to by the violation will result in an injury or an illness of a reasonably
serious nature. Cement Div., Nat’l Gypsum, 3 FMSHRC 822, 825 (April
1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission
explained:

In order to establish that a violation
of a mandatory safety standard is [S&S] 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 [by the violation] will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Id. at 3-4; see also Austin Powder Inc. v.
Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC
2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the
third element of Mathies, an S&S finding requires a
determination that the violation contributes significantly and substantially to
the cause and effect of a hazard. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (Aug. 1984). Resolution of whether a particular violation of
a mandatory standard is S&S in nature must be made assuming continued
normal mining operations. U.S. Steel Mining Co., Inc., 1 FMSHRC
1125, 1130 (Aug. 1985). Thus, consideration must be given to both the time
frame that a violative condition existed prior to the issuance of a citation,
and the time that it would have existed if normal mining operations had
continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway,
Inc., 8 FMSHRC 8, 12 (Jan. 1986). In the final analysis, the essence of an
S&S violation is whether it is reasonably likely that the hazard
contributed to by the violation will result in an event in which there are
serious or fatal injuries. Bellefonte, 20 FMSHRC at 1254-55.

As a general proposition, the
Secretary has the burden of proving each element of a citation or order by the
preponderance of the evidence, based on direct evidence or adequate
circumstantial evidence. See Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152-53 (Nov. 1989) (citations omitted). The Commission has noted that
the burden of showing something by a preponderance of the evidence standard
requires the trier of fact to believe that the existence of a fact is more
probable than its nonexistence. Rag Cumberland Res. Corp., 22 FMSHRC
1066, 1070 (Sept. 2000) (citations omitted).

Here, the Secretary has
demonstrated that the first, second, and fourth elements of Mathies are
satisfied in that the cited accumulations constituted a violation that posed a
discrete safety hazard, i.e. a fire or explosion, that was capable of causing injury
of a reasonably serious nature. However, as a general matter, accumulations
prohibited by section 75.400 are not S&S per se. Rather,
when reduced to its core, satisfying the remaining third element in Mathies
requires the Secretary to bear the burden of demonstrating that it is
reasonably likely that the hazard contributed to by the cited accumulations
will result in a fire or explosion, causing serious, if not fatal, burn-related
or smoke inhalation injuries. See Bellefonte, 20 FMSHRC at 1254-55.

With respect to evaluating the
likelihood of a fire, the Commission has noted that, in order for ignitions or
explosions to occur, there must be a confluence of requisite factors. Texasgulf, 10
FMSHRC 498, 501 (Apr. 1988). Namely, these factors are the presence of oxygen
and fuel in proximity to ignition sources. With respect to the question of
whether violative accumulations are properly characterized as S&S, as
oxygen is ever-present, the focus shifts to the extent of the accumulations and
whether the cited accumulations are in proximity to potential ignition sources.
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (citing Utah
Power & Light Co., 2 FMSHRC 965, 970-71 (May 1990)); Texasgulf,
10 FMSHRC at 500-03. With regard to the necessity of the Secretary to identify
potential ignition sources to justify an S&S designation, the Commission
has stated:

It was within the province of the Judge
to require evidence of a heat source close enough to sufficient quantities of
dust as a prerequisite to concluding that there was a likelihood of a fire from
the accumulations.

Twentymile Coal Co., 36 FMSHRC 1533, 1545 (June 2014).

Giving the Secretary the benefit of
the doubt that the cited accumulations were not properly rock dusted and thus constituted
a combustible fuel source, the Secretary has failed to adequately demonstrate
that the cited accumulations were in proximity to any identifiable ignition
source. As an initial matter, the cited accumulations were far removed from any
potential acute ignition source at the face, such as sudden friction-related
sparking. Getter’s attempts to identify any local ignition sources in proximity
to the cited accumulations were unpersuasive. Significantly, Getter failed to
identify any potential beltline-related ignition sources, such as defective
rollers or rubbing belts.

Rather, Getter relied on contact
between dry accumulations and the resultant frictional heat from the moving
parts of a properly-functioning beltline to support his S&S designation. Getter
opined:

Judge:              So
your position is that any dry accumulations in the vicinity of a conveyor belt
would constitute an S&S violation and a fire hazard.

Getter:             Yes,
sir. Yes, Your Honor.

Judge:              Even
if the belt is normally operating, if there are no defects in the belt; is that
correct?

Getter:             If
it’s operating, yes, Your Honor.

Judge:              That
is dry accumulations in the vicinity of the belt.

Getter:             Yes,
sir. In contact with the belt, Your Honor, or the moving parts of the belt.

---

Judge:              So
do I understand you to say that that’s an ever-present fire hazard?

Getter:             Yes,
Your Honor.

Judge:              If
the belt is operating normally without any hiccups?

Getter:             Yes,
Your Honor.

Tr. 68-69; 108-09.

Getter’s approach to the S&S
analysis would impermissibly render the vast majority of section 75.400
violations per se S&S. It is noteworthy that in the two year period
preceding the issuance of Order No. 8520664, Oak Grove was cited 34 times for
violating section 75.400. Gov. Ex. 1. Of these violations, only eleven of the
34 were designated as S&S. Id. Consequently, the majority of the
remaining violations were characterized as not reasonably likely to contribute
to a serious injury.

In noting Getter’s failure to
identify the presence of ignition sources, I am cognizant that determining the
likelihood of injury posed by the hazard, i.e. fire or explosion, caused by the
violation must be viewed in the context of continued mining operations. U.S.
Steel Mining Co., Inc., 1 FMSHRC at 1130. Thus, the probability of a
future beltline defect is a proper consideration. However, even considering
continued mining operations, the Secretary must demonstrate sufficient
quantities of coal dust accumulations in contact with moving beltline parts to
support an S&S finding.

Here, Getter quantified the
accumulations as “extensive” and in contact with “more than twenty” turning
belt rollers, and “dry hard packed coal fines [that] were allowed to accumulate
on the roof, ribs, footwall, and belt structure.” Gov. Ex. 5; Tr. 70. However,
Getter was unable to articulate the extensiveness or depth of any of these
accumulations that were allegedly touching rollers. It is noteworthy that
Getter’s contemporaneous inspection notes also do not quantify the extent of
the cited accumulations. See Gov. Ex. 3. Moreover, Getter’s testimony
was devoid of any references to the float coal dust allegedly on the roof,
ribs, and belt structure, cited in the order. As such, Getter’s testimony,
given the Secretary’s burden of proof, can only be characterized as vague and
unconvincing. Rather, I credit the testimony of Oak Grove witnesses Taft and Miller
that the hard packed accumulations were no more than a quarter inch in depth,
sporadic, and, at least, partially rock dusted.[8]

Furthermore, with respect to the
cited accumulations at the mini-washer, Oak Grove conceded that the wet accumulations
were in contact with a turning roller. Given the water-logged nature of these
accumulations, their contact with a moving roller is not reasonably likely to
result in a fire or explosion. Thus, the soupy accumulations at the mini-washer
do not, alone, rise to the level of an S&S violation.  

With regard to the likelihood of a
propagation hazard, the Commission has noted that “[i]t has long been
recognized that a large expanse of float coal dust accumulations . . . can lead
to the dust being put into suspension from normal mining operations.” Twentymile,
36 FMSHRC at 1543. As an initial matter, the subject order characterizes a
substantial, if not a majority of the cited accumulations, as “dry hard packed
coal fines . . . on the roof, ribs, footwall, and belt structure.” Gov. Ex. 5. Such
hard packed accumulations are not readily capable of propagation. Moreover, Getter’s
testimony, given its lack of specificity, failed to demonstrate that the cited
accumulations constituted a large expanse of coal dust capable of propagation. Finally,
even Getter was admittedly not concerned that the cited accumulations had the
potential to propagate an explosion caused by an ignition elsewhere in the
mine, such as at the various working faces. Tr. 59-60. Rather, Getter testified
that his primary concern was a fire caused by the local ignition of the cited
accumulations in the belt entry. Tr. 59-60.  

In the final analysis, the
Secretary has failed to meet his burden of proof to demonstrate that the cited
accumulations in Order No. 8520664 were reasonably likely to result in a fire
or contribute to an explosion. Consequently, the S&S designation in
Order No. 8520664 is deleted.

v.     
Unwarrantable Failure

As a general proposition, an unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2001 (1987). An unwarrantable failure is
characterized by “indifference,” a “serious lack of reasonable care,” “reckless
disregard,” or “intentional misconduct.” Id. at 2003-04; see also Buck Creek Coal, 52
F.3d 133, 136 (7th Cir. 1995) (approving
the Commission’s unwarrantable failure test).
Whether conduct is “aggravated” in the context of an unwarrantable failure is determined by looking at all the
facts and circumstances of a case to see if aggravating or mitigating factors
exist. See IO Coal Co., 31 FMSHRC 1346, 1350-51 (Dec.
2009). The Commission has identified several such factors, including: the
length of time a 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 was obvious, whether the violation posed a high degree of
danger, and the operator’s knowledge of the existence of the violation. Id. These factors are viewed in the context of
the factual circumstances of each case. Consolidation Coal Co., 22
FMSHRC 340, 353 (Mar. 2000). All relevant facts and circumstances of each case
must be examined to determine whether a miner operator’s conduct is aggravated or if mitigating circumstances
exist. Id.

The Secretary contends that the
cited accumulations conditions in Order No. 8520664 were attributable to a
“high” degree of negligence sufficient enough to constitute an unwarrantable
failure. In support of the unwarrantable failure designation, Inspector Getter
submits that the reported extensiveness of the cited accumulations, as well as
his belief that the accumulations existed for at least nine shifts, provide an
adequate basis for an unwarrantable failure designation. Tr. 60-61.

However, the evidence does not
support Getter’s assertion that the cited accumulations were extensive. Rather,
the evidence reflects that there were wet accumulations near the mini-washer
and sporadic accumulations of less than a quarter of an inch along the cited
2,100 feet of belt line. The accumulations near the mini-washer did not pose a
high degree of danger given their extremely wet consistency. Getter’s claim that
other accumulations were in contact with numerous rollers cannot be
substantiated, given the lack of specificity of Getter’s testimony regarding
the depth and extensiveness of the accumulations.

Furthermore, as discussed below, the
fact that the examination reports reflect that the Main North 3 belt line had
been cleaned twice in the three days preceding the issuance of Order No.
8520664 undermines Getter’s belief that the cited accumulations went
unaddressed over a period of nine shifts. In sum, there is insufficient
evidence of aggravating factors, such as length of time, extensiveness and
obviousness, and degree of danger. While the history of section 75.400
violations is sufficient to have placed Oak Grove on notice that greater
efforts were necessary in eliminating accumulation violations, given the
non-S&S nature of the subject accumulations and Oak Grove’s efforts at good
faith abatement, the history of violations, alone, is inadequate to support an
unwarrantable failure designation.

Consequently, the record, when
viewed in its entirety, supports that the cited accumulations are attributable
a “moderate” degree of negligence. Accordingly, Order No. 8520664 shall be
modified from a section 104(d)(2) order to a section 104(a) citation, to
reflect that the cited accumulations were not attributable to an unwarrantable
failure.

vi.     
Civil Penalty

The Commission outlined the
parameters of its responsibility for assessing civil penalties in Douglas
R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the
Commission’s authority 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 “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) and 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§
2700.28 and 2700.44. The Act requires that, “[i]n assessing civil
monetary penalties, the Commission [ALJ] shall consider” six statutory penalty
criteria:

[1] the operator’s history of previous
violations, [2] the appropriateness of such penalty to the size of the business
of the operator charged, [3] whether the operator was negligent, [4] the effect
of the operator’s ability to continue in business, [5] the gravity of the
violations, and [6] the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The
Commission has noted that the de novo consideration of the appropriate
civil penalties to be assessed does not require “that equal weight must be
assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co.,
19 FMSHRC 1495, 1503 (Sept. 1997).

In keeping with this statutory
requirement, the Commission has held that “findings of fact on the statutory
penalty criteria must be made” by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been
made, a judge’s penalty assessment for a particular violation is an exercise of
discretion, which is bounded by proper consideration for the statutory criteria
and the deterrent purposes of the Mine Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000).

Oak Grove is a large mine operator
and it has neither been contended nor shown that the proposed penalty for this
violation is disproportionate to the size of the business or that it would
impede its ability to remain in business. The cited accumulations were abated
in a timely manner. While the Secretary now proposes a penalty of
$70,000.00—the maximum penalty for an unwarrantable non-flagrant violation—as
discussed herein, the gravity of the subject violation and the degree of
negligence attributable to Oak Grove is no more than moderate. However, the
history of Oak Grove’s violations of section 75.400 is an aggravating factor.

Given the deletion of the S&S and
unwarrantable failure designations, a civil penalty of $5,200.00 shall be
imposed for Citation No. 8520664.

c.       Order
No. 8520666 in Docket No. SE 2013-301 (Main North 3 Belt Examinations)

i.     
Findings of Fact

Inspector Getter believed that the
cited accumulations in Citation No. 8520664 along the Main North 3 belt line should
have been observed by five examiners over nine shifts prior to the issuance of
the violation. Gov. Ex. 2; Tr. 60-61. After observing the accumulation
conditions that gave rise to the issuance of Order No. 8520664, Getter returned
to the surface of the Oak Grove Mine to inspect the mine’s pre-shift
examination books for the operative nine preceding shifts from September 30 to
October 3, 2012. Tr. 50-51. Getter testified that inspection of the books for
that period confirmed his belief that accumulations in the Main North 3 belt
had not been cleaned for nine shifts. Tr. 50-51.

After reviewing the pre-shift
examination books, Getter issued 104(d)(2) Order No. 8520666, which alleges an
inadequate pre-shift examination in violation of 30 C.F.R.         § 75.360(a)(1).[9]
Order No. 8520666 provides:

The operator failed to make an adequate
examination of the Main North 3 belt entry. Accumulations of float coal dust
and hard packed coal was allowed to exist for an approximate distance of 2100
feet from the tail piece outby to Crosscut 27. This belt line is examined 3
times each day. 5 different examiners have traveled this belt line in the past
9 shifts. Due to the extensive amount of accumulations in the cited area it is
obvious to the casual observer this condition has existed for an extended
period of time. Due to 5 examiners traveling through the cited area and the
extent of the accumulations this constitutes more than ordinary negligence and
is a failure to comply with a mandatory health and safety standard. Standard
75.360(a)(1) was cited 1 time in two years at mine 0100851 (1 to the operator,
0 to a contractor). This violation is an unwarrantable failure to comply with a
mandatory standard.

Gov. Ex. 2. Getter characterized the cited violation as
S&S and attributable to “high” negligence constituting an unwarrantable
failure. The Secretary has proposed a $52,500.00 penalty for Order No. 8520666.
Order No. 8520666 was timely abated on October 4, 2012. It is noteworthy that
the Secretary did not proffer a copy of the relevant pre-shift examination
notations in support of Order No. 8520666.

Oak Grove management personnel Taft and Miller both
opined that the extent of the accumulations in the Main North 3 belt entry, as
they existed during Getter’s October 3 inspection, could have been noted as
remarks by pre-shift examiners, but they did not warrant notations as hazards. Tr.
142, 189-90, 208. Nevertheless, they testified that the mine’s pre-shift
examination logs demonstrate that accumulations in the Main North 3 belt line
had, in fact, been cleaned twice during the operative nine shifts from
September 30 to October 3, 2012. Tr. 213-14.

ii.     
Fact of Violation

Section 75.360(a)(1) requires a
certified person to conduct a pre-shift examination, for the purpose of identifying
any hazardous conditions, in the three hours preceding the start of a shift in
areas where persons are scheduled to work or travel. See Cumberland Coal
Res., LP, 32 FMSHRC 442, 446 (May 2010); RAG Cumberland Res., LP,
26 FMSHRC 639, 651, 653 (Aug. 2004); Enlow Fork Mining Co., 19
FMSHRC at 14. In determining whether a violation of section 75.360(a)(1) has
occurred, the proper inquiry is whether the subject pre-shift examination was
adequately performed, as evidenced by appropriate notations and actions
documented in the mine’s examination book. See, e.g.,
RAG Cumberland Resources LP, 26 FMSHRC at 647 (holding that although
mandatory standards may not explicitly require adequate or effective measures
by mine operators, such a requirement is implicit in the standard’s underlying
purpose), aff’d 171 Fed. Appx. 852 (D.C. Cir. 2005). It is noteworthy that the Secretary did not
proffer the relevant examination book notations to support his assertion that
inadequate pre-shift examinations had occurred.

Obviously,
pre-shift and on-shift examinations must be adequate, rather than
perfunctory. However, not every violation
detected during an MSHA mine inspection gives rise to a companion violation of
section 75.360(a)(1) simply because the cited
violation was not noted in a pre-shift examination book. In
resolving the adequacy of examinations, it is helpful to apply the Commission’s
reasonably prudent person test: namely, whether “a reasonably prudent person,
familiar with the mining industry and the protective purposes of [section
75.360(a)(1)]” would have a reasonable basis to believe that the subject pre-shift
examinations were sufficiently thorough. See Canon Coal Co., 9 FMSHRC
667, 668 (Apr. 1987).

Unlike the Secretary, Oak Grove
proffered the relevant examination book notations. Turning to the relevant
entries in the examination book, despite Getter’s testimony and belief that
there were no relevant notations, there is documentation of several efforts to
clean accumulations in the Main North 3 belt entry during the shifts proceeding
Getter’s inspection. Specifically, the mine’s examination books demonstrate
that accumulations along the Main North 3 belt line were flagged as hazards during
the September 30 evening shift, the October 1 day shift, and the October 2
evening shift. Resp. Ex. 1. These three identified accumulations hazards were
noted in Oak Grove’s examination book as cleaned during the shifts following
their notation. Id.

As previously noted, the Secretary
has the burden of proof with respect to the alleged pre-shift examination
violation. Despite Getter’s testimony to the contrary, the above entries
demonstrate that accumulations in the Main North 3 belt entry were not ignored
in the shifts preceding the issuance of Order No. 8520664.

Given the relevant examination
notations, as well as Getter’s inability to specifically describe the nature
and extent of the cited accumulations claimed to be overlooked by examiners, the
record evidence fails to demonstrate that the subject pre-shift examinations
were perfunctory or otherwise inadequate. Consequently, Order No. 8520666 shall
be vacated. 

d.      Citation
No. 8520665 in Docket No. SE 2013-352 (Main North 3 Belt Maintenance)

i.     
Findings of Fact

An overcast is an enclosed airway
structure that separates intake air from return air in the same entry,
permitting intake and return air currents to pass by one another. As a general
matter, overcasts in belt entries require belt lines to be elevated to pass
over the overcast structure. During the course of Inspector Getter’s October 3,
2012, inspection of the Main North 3 belt line, he observed evidence of the
elevated portion of the belt line rubbing the roof as it passed over the
overcast.

Although it was unclear whether the
belt was rubbing the roof at the time of the inspection, Getter testified that the
fact that the belt was rubbing the roof was evidenced by a “smooth finish” and
a “sheen” on the metal roof channel straps, Decatur plates, and roof bolt heads,
as if they were being polished by the belt. Tr. 77. Despite the rubbing, Getter
did not observe any damage to the belt itself. Tr. 88; see Tr. 126. Getter
explained that the contact between the belt line and the roof was intermittent.
Specifically, Getter testified:

The belt was contacting the roof
sporadically as it was loaded or unloaded, so to speak . . . . So whenever the
belt was loaded, it was not contacting the roof. But after the whatever was
loaded into the belt line went through and the belt was clear, it would
physically raise up and contact the roof.

Tr. 72.

Below where the belt was rubbing,
Getter testified that the word “drop” had been written on the belt structure,
along with an arrow pointing upward to the area of contact between the belt and
the roof. Tr. 87. While Getter could not determine when this notation had been
written, he concluded that someone had detected the need for a belt adjustment,
but failed to ensure that the adjustment was made. Tr. 87, 91.

As a result of his observations,
Getter issued 104(a) Citation No. 8520665, which alleges a violation of 30
C.F.R. § 75.1725(a).[10]
Citation No. 8520665 states:

The operator failed to maintain the
Main North 3 belt line in safe operating condition. Approximately 50 feet outby
the first over cast outby the tail piece the elevated belt was contacting the
roof, roof bolt heads, decatur plates and roof channels. The belt had been
contacting the roof for an extended period of time. This was evident due to the
roof being worn and the roof bolt heads, decatur plates, and roof channels
being worn and having a polished appearance. Standard 75.1725(a) was cited 17
times in two years at mine 0100851 (17 to the operator, 0 to a contractor).

Gov. Ex. 4.

Getter testified that the rubbing
belt, as well as the metal splices in the belt, created the potential for
frictional heat and sparks when contacting the metal roof channel straps, Decatur
plates, and roof bolt heads. Tr. 76-77. Getter opined that float coal dust on
the floor, ribs, and belt structure could be ignited by the heat and potential
sparks caused by this rubbing. Tr. 76-77. However, there was a significant
separation between any frictional heat and sparks caused by the rubbing belt and
the accumulations that concerned Getter. In this regard, the coal accumulations
on the mine floor and any coal fines on the belt structure were located approximately
15 feet below, and two to three feet below, the area of rubbing, respectively.[11]
Tr. 82-83. Although Getter conceded at hearing that the belt was made of flame
resistant materials, and that there was no float coal dust located on the roof
itself, Getter believed that the heat and sparks caused by contact between the
belt and the roof could ignite the accumulations on the floor and belt
structure. Tr. 76-78, 88, 90. In such an event, a fire or explosion could
result, causing “permanently disabling” injuries to the 35 miners working at the
14 East entry, the Zero Gate entry, and the longwall. Tr. 88-90. Consequently,
Getter designated Citation No. 8520665 as S&S in nature.

In view of the fact that the condition
had not been corrected despite the “drop” notation at the site of the contact,
Getter attributed the violative condition to “high” negligence. Tr. 87. Citation
No. 8520665 was abated about five hours after its issuance, after the belt
structure was lowered and a patch of non-abrasive fire retardant Teflon
material was affixed to the roof. Gov. Ex. 4; Tr. 102. The Secretary has
proposed a $12,248.00 civil penalty for Citation No. 8520665.

Although Oak Grove Safety Director Taft,
who accompanied Getter during the inspection, and foreman Miller testified that
they did not observe the belt rubbing the roof at the time of the inspection, both
Taft and Miller conceded that there was evidence of frictional contact between
the belt and the roof. Tr. 127, 177. Despite its apparent relevance, Taft disputed
the significance of the “drop” notation, asserting rather that notations, such
as “lower,” were written elsewhere on the belt structure for various reasons. Tr.

129. With respect to the likelihood of ignition, Miller testified that he does
     not believe that methane accumulations in roof pockets presented a source of
     fuel for ignition. Tr. 176-77.

ii.     
Fact of the Violation

Section 75.1725(a) requires that belt
line systems must be maintained in safe operating condition. The Commission has
held that the standard for determining whether machinery or equipment is in an
unsafe operating condition is “whether a reasonably prudent person familiar
with the factual circumstances surrounding the allegedly hazardous condition,
including any facts peculiar to the mining industry, would recognize a hazard
warranting corrective action within the purview of the applicable regulation.” Alabama
By-Products Corp., 4 FMSHRC 2128, 2129-30 (Dec. 1982). With respect to
frictional heat, the Commission has held that a belt rubbing or
cutting into the belt structure, along with combustible accumulations
and possible ignition sources, constituted a hazard in violation
of section 75.1725(a). Martinka Coal Co., 15 FMSHRC 2452, 2456
(Dec. 1993); Jim Walter Resources, 18 FMSHRC 804, 817 (May 1996);
Alabama By-Products, 4 FMSHRC at 2130-31.

Consequently, it is well-settled
that a source of ignition caused by frictional heat and sparking in the
presence of oxygen and sources of fuel in an underground mine poses a
significant hazard. Unlike at the mine face where there is also potential
frictional heat and sparking, along belt lines there are no methane monitors to
guard against pockets of methane that may accumulate in the irregularities of a
mine roof. As such, a reasonably prudent person must conclude that a belt generating
frictional heat and sparking at the mine roof, in proximity to potential pockets
of methane, constitutes an impermissible unsafe operating condition. In view of
the undisputed evidence of frictional contact between the belt and roof, the
Secretary has demonstrated the fact of the violation of section 75.1725(a).

iii.     
S&S

The Secretary has demonstrated that
the first, second, and fourth elements of Mathies are satisfied in that
the cited unsafe condition posed a discrete safety hazard, i.e. a fire or
explosion, that was capable of causing injury of a reasonably serious nature. The
focus of the S&S analysis now shifts to the third element of Mathies,
which requires the Secretary to demonstrate that it is reasonably likely that
the hazard contributed to by the cited belt malfunction will result in a fire
or explosion, causing serious or fatal burn-related or smoke inhalation
injuries. See Bellefonte, 20 FMSHRC at 1254-55. Resolution of whether a
violation of a mandatory standard is S&S in nature must be made assuming
the cited condition remains unabated during the course of continued normal
mining operations. U.S. Steel Mining Co., 1 FMSHRC at 1130.

As an initial matter, I do not find the
potential for frictional heat and sparking as a source of ignition reasonably
likely to result in combustion of the cited coal fines and float coal dust
accumulations that are located from two to 15 feet from the source of the
friction. However, it is reasonably likely, given continued mining operations, that
the subject frictional heat and sparking caused by the cited condition will
ignite pockets of methane in the mine roof, resulting in reasonably serious
fire or smoke-related injuries. Consequently, the S&S designation in
Citation No. 8520665 shall be affirmed.

iv.     
Civil Penalty

As previously noted, the Secretary
has proposed a $12,248.00 civil penalty for Citation No. 8520665. It is not
contended that this penalty is disproportionate to the size of the business, or
that it would impede its ability to remain in business. While the cited
condition was abated in a timely manner, the evidence supports the Secretary’s
contention that the condition was attributable to a “high” degree of
negligence. The “high” negligence designation is justified by the location of
the notation “drop” directly under the area where the belt was contacting the
roof. This notation demonstrates that Oak Grove allowed the condition to exist
despite its recognition of the ignition hazard. Mid-Continent Res., Inc.,
6 FMSHRC 1132, 1138 (May 1984).

The dearth of mitigating factors
does not warrant reducing the civil penalty proposed by the Secretary. Consequently,
a civil penalty of $12,248.00 shall be imposed for Citation No. 8520665.

e.       Order
No. 4694424 in Docket No. SE 2013-399 (Slope Belt Accumulations)

i.     
Findings of Fact

On September 25, 2012, while
conducting a quarterly inspection of the Oak Grove Mine, MSHA Inspector Steve
Womack inspected the mine’s slope belt, while accompanied by MSHA supervisor Brandon
Russell and Oak Grove company representative William Wilson. Tr. 260-61. The
slope belt is the last belt carrying coal out of the Oak Grove Mine. Tr. 263. It
is located in a sloped 16 foot diameter tunnel that connects the surface to the
underground coal seam.   Tr. 263. The slope belt is suspended above the tunnel
floor, as high as five or six feet off the ground, by roof chains. Tr. 399. The
slope belt runs from the head drive unit on the surface to the tailpiece at the
tunnel’s deepest point, 3,500 feet below. Tr. 263. The tunnel is angled at approximately
12-16 degrees. Tr. 263. At the 3,500 foot mark there is an exit crossover that
allows miners on the slope to cross over into an adjacent entry. Tr. 368-69.

At the base of the slope belt is
the dump bunker, a pit that collects all of the coal arriving on belts
throughout the mine. Tr. 357-58. The miner assigned to work at the dump bunker
controls vibrating feeders at the bottom of the pit that periodically releases
quantities of coal into a chute that ultimately deposits the coal onto the
slope belt to be carried to the mine surface.  Tr. 356-58. Personnel at the
dump bunker can speed up or slow down the dumping process to regulate the
amount of coal being deposited onto the slope belt. Tr. 357-58. The slope belt
is the exclusive method of moving coal to the surface of the Oak Grove Mine. Tr.
263.

Womack, Russell, and Wilson began their
inspection at the surface, descending down the slope tunnel on a walkway that
runs along the right side of the slope belt when traveling in an inby direction.
Tr. 264, 267. Womack testified that the first 200 feet of the belt line were
unremarkable. Tr. 269. Beginning at the 200 foot mark, however, Womack
testified to periodic

“deep” and “massive spillage” on the tunnel floor, and seven
inches of “dried” and “anthill-type” accumulations on the metal belt structure.
Tr. 270-73. Along this stretch, Womack observed “a couple feet of accumulation”
on the tunnel floor beneath the belt. Tr. 272-73. These accumulations were
spilling out from under the belt, causing accumulations of approximately nine
inches of coal deposits alongside the adjacent walkway. Tr. 272-73.

Wilson disputes Womack’s reported
observation of accumulations of “a couple feet” located beneath the belt beginning
at the 200 foot mark. Although Womack believed the accumulations were
significant, Wilson characterized the accumulations beginning at the 200 foot
mark as “small accumulations.” Tr. 359. Wilson quantified these accumulations
as varying from eight to 24 inches deep. Resp. Ex. 5. Wilson characterized the
accumulations as “[not] continuous” and “staggered.” Tr. 385. Having disputed
the depth of these accumulations reportedly observed by Womack, Wilson
testified that none of these accumulations were in contact with turning
rollers. Tr. 360-61.

Sensitive to Womack’s concerns
about the accumulations beginning at the 200 foot mark, Wilson used his radio
to call for men to be assigned to the slope belt to start the cleanup process. Tr.
351, 377. Typically, the slope belt is initially cleaned by removing any
accumulations in proximity to the dump bunker. Tr. 354. After accumulations are
removed from the dump bunker, the accumulations along and under the slope belt are
removed by washing the slope belt tunnel with a powerful water hose located at
the surface. Tr. 355. Accumulations that are washed from the surface down to
the 3,500 foot mark accumulate in a wash hole where they are collected to be
re-deposited onto the belt. Tr. 367-68.

As Womack, Russell, and Wilson
descended the slope tunnel, at the 2,340 foot mark, Womack reportedly observed
that the bottom belt was running in the accumulations and a bottom roller was
turning in the coal fines. Tr. 290. At this location, there were two bottom
rollers missing, causing the belt to sag and run in the accumulations below. Gov.
Ex. 6; Tr. 290.

Wilson’s testimony supports
Womack’s contention that there were excessive accumulations around the 2,340
foot mark. However, Wilson opined that these accumulations were caused by a
broken belt line support chain, which caused the belt line to sag. Tr. 359-60. Wilson
asserts that it is possible that these accumulations built up instantaneously
when the chain broke. Tr. 363. Wilson testified that he did not believe that
Womack observed the broken chain during the course of the inspection, although
it is difficult to comprehend how Wilson knew what Womack did or did not see. Tr.
380-81. Nevertheless, it is significant that on cross-examination Oak Grove did
not seek an acknowledgment from Womack as to whether the belt line support
chain was, in fact, broken.

Wilson also testified that at the
2,340 foot mark there was a pipe lodged beneath the belt line, causing
otherwise normal spillage to accumulate more quickly. Tr. 360-61. Wilson
conceded that, here, one roller was turning in accumulations. Tr. 359; Resp.
Ex. 5. While it is unclear when use of powerful hoses at the surface to clean
the slope belt began, Wilson opined that the accumulations at the 2,340 foot
mark were likely exacerbated by the washing process that he called for earlier
in the inspection. Tr. 363. However, Wilson’s opinion is belied by his
testimony that he saw no evidence of coal and water running down the slope
until he was at the 2,600 foot mark. Tr. 366, 379. Thus, the evidence reflects
that the accumulations at the 2,340 foot mark were not the result of, or
exacerbated by, the cleaning process. Wilson opined that the accumulations at
the site of the alleged broken belt line support chain were quite extensive,
estimating that they totaled approximated 20 tons. Tr. 370.

Inby from the 3,200 foot mark to
the 3,500 foot mark, Womack also observed accumulations as much as 24 inches in
depth, and “up to 47 inches” near the tailpiece. Gov. Ex. 6. Womack estimated
that the extent of the cited accumulations along the entire slope belt line
totaled approximately 4,200 tons. Tr. 280.

From the 3,200 foot mark to the
3,500 foot mark, Wilson acknowledged that “7 inches to 12 inches, even perhaps
some places [as much as] 24 inches,” of accumulations were present. Tr. 398-99.
Wilson, however, asserts that the accumulations near the tailpiece were clearly
the result of the washing process that was initiated during the inspection. Tr.
371-72.

Furthermore, from the buildup at
the 2,340 foot mark to the 3,400 foot mark, Wilson testified that he observed
no accumulations in contact with rollers. Tr. 367. Thus, although the
accumulations under the belt may have been as deep as 47 inches in places along
the entirety of the belt line, both Womack and Wilson agree that, with the
exception of the extensive accumulations at the 2,340 foot mark, there were no
other accumulations touching rollers. Obviously, accumulations of 24 inches would
ordinarily contact rollers. However, here, the cited accumulations were
separated from the slope belt, which was suspended as high as five or six feet
off the ground by roof chains. Tr. 399.

As a result of his observations,
Womack issued 104(d)(2) Order No. 4694424. Order No. 4694424 alleges a
violation of 30 C.F.R. § 75.400. Order No. 4694424 states:

From the 200 ft. marker of the Slope
Belt continuing to the 3000 ft. marker, and again from 3200 to the 3500 ft.
marker, run of mine spillage has been allowed to accumulate beneath the bottom
belt from the walkway to the offside rib. The depth ranges up to 24 inches and
near the tailpiece up to 47 inches. The spillage is dry to damp with sporadic
areas which are wet. Dried coal spillage averaging 7 inches in height is
present on nearly all top idlers metal framework. From 2340 to 2440 the bottom
belt is running in the spillage and a bottom roller is turning in the coal
fines. 2 bottom rollers are missing at this location. This is an unwarrantable failure
to comply with a mandatory health & safety standard constituting more than
ordinary negligence.

Gov. Ex. 6. Womack designated the cited conditions as
S&S, asserting that they could “reasonably likely” result in a “lost
workdays or restricted duty” injury to four miners. Womack attributed the conditions
to a “high” degree of negligence and an unwarrantable failure to comply with
section 75.400 of the Secretary’s mandatory standards. The Secretary has
proposed a $32,800.00 civil penalty in satisfaction of Order No. 4694424.

Order No. 4694424, which was issued
on September 24, 2012, was abated at 4:00 a.m. on September 27 after Oak Grove
contacted MSHA to advise that it had finished cleaning the slope belt. Tr. 296.
Womack opined that Oak Grove was working on cleaning these accumulations during
the entire two day abatement period, as the order shutting down the slope belt
effectively shut down the entire Oak Grove Mine. As Womack explained, “[t]he
slope belt shuts down, nothing moves. You can’t mine coal on any of the
sections because you have no way of transporting it.” Tr. 296-97. The abatement
states:

The combustible accumulations of loose
coal have been removed from the slope belt. The loose coal has been washed to
the sump at the bottom of the slope, loaded on the belt, and removed from the
mine.

Gov. Ex. 6.

With respect to the S&S designation,
Womack testified that the roller turning in accumulations, as well as the belt
dragging in accumulations, caused frictional heat that created a potential
ignition source for accumulations of coal fines and float coal dust. Tr. 282-85.
The potential for smoke caused by smoldering or ignited coal in the slope
tunnel is of particular concern because there are only two avenues of escape
for personnel in proximity to the slope belt—traveling the slope tunnel to the surface
or using a crossover located at the 3,500 foot mark. Tr. 285-86. In addition,
the accumulations presented tripping hazards inherent in using the steep slope
walkway as an escapeway. Tr. 285-86.

Womack asserted that the subject smoke
inhalation and tripping hazards will result in at least “lost workdays or
restricted duty” injuries when viewed in the context of continued mining
operations. Tr. 289. Womack further asserted that the cited hazard would
“reasonably likely” affect four miners—the four miners he encountered working
the slope during his inspection.  Tr. 293. Although Womack was concerned that
the cited accumulations constituted a fire hazard, Womack believed that the accumulations
along the slope belt did not present a propagation hazard as they are “a couple
of miles” from any working faces. Tr. 300-01.

Womack attributed the cited conditions to a
“high” degree of negligence evidencing an unwarrantable failure. Womack’s
findings predominantly are based on the extensiveness of the accumulations and
the protracted length of time the coal dust and coal fines were permitted to
accumulate. Tr. 294-95. Womack believed that the cited accumulations existed
for a considerable period of time, estimating that the dried anthill-type coal
fines that accumulated on the belt structure existed for three days. Tr. 294. Womack
testified that this type of coal fine accumulation can only occur over a period
of time. Tr. 323-24. During that time, Womack believes that between 9 and 12
examinations had taken place. Tr. 325. Womack elaborated:

The examiner[s] no way could not have
seen the extensive amount of material. Even absent what was under the belt, the
dried material on top, I mean, on every roller. You just don’t miss that. It’s
just even an untrained miner is going to, you know, going to question that. You
know, how long it had been there, management, I mean, certainly they—they have
to have knowledge of this. . . .

Tr. 295.

ii.     
Fact of the Violation

As previously noted, section 75.400
requires that coal dust “shall be cleaned up and not be permitted to
accumulate” where miners are usually required to work or travel. Thus,
consideration of whether a 75.400 violation has occurred requires an analysis
of both the quantity and the duration of the cited conditions. As a threshold
matter, it is noteworthy that Oak Grove does not contest the fact of the
violation in Order No. 4694424 in its post hearing brief. Order No. 4694424
addresses two types of accumulations: the extensive accumulations at the 2,340
foot mark that were in contact with the suspended belt line and its turning
roller, characterized by Oak Grove witness Wilson as totaling as much as 20
tons of coal material; and extensive coal dust and coal fine accumulations on
or under the slope belt throughout a significant portion of the 3,500 foot tunnel
floor, which were not in contact with moving belt components.

I am mindful that the use of a
high-pressure hose to clean the slope entry from the surface, which began
during Womack’s inspection, may have concentrated greater accumulations at the
lower portions of the slope belt and at the tailpiece. However, notwithstanding
Oak Grove’s apparent admission of the fact of the violation, it cannot be
reasonably argued that the cited accumulations, either the 20 tons of
accumulations at the 2,340 foot mark alone, or along the entire belt slope in
amounts totaling 4,200 tons, do not constitute impermissible accumulations of combustible
material in violation of section 75.400.

iii.     
S&S

In evaluating the propriety of an
S&S designation, the Secretary has demonstrated that the first, second, and
fourth elements of Mathies are satisfied in that the cited accumulations
constituted a violation that posed a discrete safety hazard, i.e. a fire and
resultant smoke, that was capable of causing injury of a reasonably serious
nature. In this regard, I credit the Secretary’s assertion that smoke presents
a significant hazard when present in the slope tunnel, as miners working in the
vicinity of the slope may rely on the slope belt tunnel as a means of escape to
the surface.

Thus, the S&S analysis shifts
to the third dispositive element of Mathies that requires consideration
of whether it is reasonably likely that the hazard contributed to by the cited
accumulations will result in a fire or explosion, causing serious or fatal
burn-related or smoke inhalation injuries. Bellefonte, 20 FMSHRC at
1254-55. The likelihood of such injury must be
viewed in the context of continued exposure to the hazard posed by the
violation assuming the violation continued unabated in the face of normal
mining operations. Southern Oil
Coal Co., 13 FMSHRC 912,
916-17 (June 1991); Halfway, Inc., 8 FMSHRC at
12; U.S. Steel Mining
Co., 1 FMSHRC at 1130.

While
it is true that a substantial portion of the cited accumulations were located
on the tunnel floor, far removed from any source of frictional heat caused by
the suspended turning belt or its rollers, the uncontroverted evidence reflects
that the accumulations at the 2,340 foot mark were in contact with the moving
suspended conveyor belt and a turning roller. It is clear that it is reasonably
likely that combustible coal accumulations in contact with the potential
frictional heat caused by this condition, if left unabated, will contribute to
a fire that will result in injuries of a reasonably serious nature. Consequently,
the Secretary has demonstrated, by a preponderance of the evidence, that the
cited accumulations were properly designated as S&S.

iv.     
Unwarrantable Failure

The cited accumulations in Order No.
4694424 were attributed to a “high” degree of negligence that evidences an
unwarrantable failure to comply with section 75.400. As previously noted, an
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC at 2001. The Commission has
identified the indicia of an unwarrantable failure: the length of time a
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 was obvious, whether the violation posed a high degree of danger,
and the operator’s knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC at 1350-51.

The evidence reflects that the
accumulations at the 2,340 foot mark, which were several feet in depth and
encompassing the suspended belt and a turning roller, were extensive, obvious,
and hazardous given the accumulation’s proximity to potential frictional heat. To
counter its apparent failure to address these extensive accumulations, Oak
Grove relies on its assertion that the significant accumulations at the 2,340
foot mark in the slope tunnel occurred immediately prior to Inspector Womack’s
inspection, as a consequence of a recently-broken belt support chain and a pipe
that had become lodged below the belt. Although Womack did not testify that he
observed either the alleged broken chain or lodged pipe, Oak Grove shall be
given the benefit of the doubt that the chain was in fact broken, and that the
pipe was indeed lodged below the belt line.

Not surprisingly, however, this is
not the first time where I have encountered a mine operator’s claim that the
subject violation occurred only moments before the inspector arrived at the
working place. Of course, such unsubstantiated, self-serving claims should be
given little weight. In fact, the defects relied upon by Oak Grove as
justification for the accumulations at the 2,340 foot mark are implicating,
rather than exonerating, factors. The Commission
has long recognized that “the substantial evidence standard may be met by
reasonable inferences drawn from indirect evidence.” McCoy Elkhorn Coal Corp. 36 FMSHRC 1987,
1999 (Aug. 2014) (citing Mid-Continent Res., Inc., 6 FMSHRC
1132, 1138 (May 1984)). Here, the inference sought by Oak Grove—namely, that
the extensive accumulations were caused by a broken chain and lodged pipe that occurred
immediately prior to Womack’s arrival at the slope tunnel — is speculative and
self-serving, and cannot be drawn from any indirect evidence. Rather, the
reasonable inference is that the cited conditions at the 2,340 foot mark existed
for a significant period of time during which coal accumulated in the slope
tunnel despite the slope belt being manned by Oak Grove personnel.

With
respect to the totality of the accumulations cited in Order No. 4694424, the extensiveness of the accumulations provides the
inescapable conclusion that they were allowed to accumulate over a significant
period of time. In this regard, Wilson conceded that the accumulations removed
from the 2,340 foot mark totaled approximately 20 tons. Additionally, Womack testified
that a total of 4,200 tons of materials had accumulated along the length of the
3,500 feet of slope belt tunnel.

The
extensiveness of the total cited accumulations is further evidenced by the fact
that it took Oak Grove two days to abate the order. In this regard, the
two-day abatement is significant in that shutting down the slope belt meant
halting production across the entire Oak Grove Mine. Thus, the record amply
supports that the accumulations existed for a significant period of time and
that they were obvious due to their extensive nature.

Oak Grove was also on notice that
greater efforts were necessary for controlling coal accumulations at its Oak
Grove Mine facility. In this regard, MSHA’s records reflect that Oak Grove was
cited 34 times for violating section 75.400 during the two years preceding the
issuance of Order No. 4694424. Gov. Ex. 1. Finally, as discussed above, the
cited accumulations were hazardous in that they could contribute to serious
burn or smoke inhalation-related injuries to personnel working in proximity to
the slope belt.

In sum, the Secretary has
demonstrated that the subject accumulations were extensive, obvious, hazardous
in nature, and existed for a significant period of time. Thus, the Secretary
has demonstrated the necessary criteria to support the alleged high degree of
negligence necessary for the unwarrantable failure designation in Order No.
4694424.

v.     
Civil Penalty

The Secretary has proposed a
penalty of $32,800.00 for Order No. 4694424. As previously noted, it has not
been contended that the Secretary’s proposed penalty will adversely affect Oak
Grove’s ability to remain in business. The subject accumulations are
attributable to a high degree of negligence. The hazard contributed to by the
violation is serious in gravity. Finally, Oak Grove’s history of section 75.400
is an aggravating, rather than mitigating, factor.

Consequently, a civil penalty of
$32,800.00, as proposed by the Secretary, shall be imposed for the cited coal
accumulations in Order No. 4694424.

f.       Order
No. 4694426 in Docket No. SE 2013-399 (Slope Belt Examination)

i.     
Findings of Fact

After observing the conditions
cited in Order No. 4694424, Inspector Womack returned to the surface to inspect
Oak Grove’s examination books. The relevant examination records, which were
proffered by Oak Grove rather than the Secretary, reflect that notations of accumulations
along the slope belt were made during the three shifts preceding Womack’s
inspection. For example, the pre-shift examination for the September 24, 2012,
evening shift includes a “remark” that the slope belt should be cleaned from
the 2,360 foot mark to the wash hole. Resp. Ex. 6. Additionally, the pre-shift
examination for the September 25, owl shift, the shift immediately preceding
Womack’s inspection, notes two accumulation hazards along the slope: namely,
from the 100 foot mark to the 400 foot mark; and from the 2,280 foot mark to
the 2,520 foot mark. Resp. Ex. 6. The former notation was acknowledged by Womack
in Order No. 4694426. However, Womack testified that he “missed” the latter
notation when inspecting the examination book. Tr. 328.

As a result of his review of the
examination book, Womack issued 104(d)(1) Order No. 4694426, alleging a
violation of 30 C.F.R. § 75.363(b).[12]
Order No. 4694426 provides:

Adequate examinations are not being
conducted and recorded on the Slope Belt at this mine. Inspections of the
Slope Belt revealed missing & defective rollers, plus coal spillage from
200 ft to the tailpiece, approx 3300 ft up to 47 inches in depth and dried
accumulations of coal fines on belt structure averaging 7 inches in height
throughout the 3300 feet of area. Pre-shift record for 09/24/2012 and owl shift
and evening shift do not list these hazards. Day shift on 09/25/2012 only lists
spillage from 100 ft to 400 ft mark. These conditions are obvious to even the
most casual observer. This is an unwarrantable failure to comply with a
mandatory health and safety standard, constituting more than ordinary
negligence.

Gov. Ex. 7 (emphasis added). Womack characterized the cited
violation as S&S and attributable to “high” negligence constituting an
unwarrantable failure. The Secretary has proposed a $15,900.00 penalty for
Order No. 4694426. Order No. 4694426 was timely abated on September 25, 2012.

ii.     
Fact of the Violation

As a threshold matter, there is a
substantive distinction between the cited mandatory section in 75.363(b), which
requires that examination books shall be maintained for the purpose of
recording hazardous conditions found by mine examiners, and the mandatory
standard requiring adequate pre-shift examinations in section 75.360(a)(1). See
supra, n.9. It is irrefutable that Oak Grove maintained a pre-shift
examination record book, given the examination book entries noted above. Consequently,
at the hearing, I expressed my concern that the Secretary was alleging a
violation of section 75.363(b) that requires that pre-shift examination records
be kept, rather than section 75.360(a)(1) that requires that pre-shift
examinations be adequately performed. Specifically:

Judge:              Why
did you issue this 75.363(b) versus 75.360(a)[(1)]?

Womack:         Well,
[363(b)] is the record of that examination. I feel very strongly that, you
know, a mine examiner is the first—it’s the utmost defense that the miners have
before they go into the mine. That examiner looks at an area where people are
going to work and travel. If he doesn’t do his job, then you’ve got miners that
are going into this area unaware. So if he failed to put that record down and
notify the people that we have a problem here, then he’s—he’s not only failed
at his job, he’s putting people in a hazardous situation.

Judge:              No,
I understand, but I don’t know that it makes any difference, but wouldn’t it
have been more appropriate based on this citation for you to believe that
he—that you could have cited an inadequate pre-shift?

Womack:         Yes,
I think I could have.

Judge:              Is
there a substantive distinction between this, the failure to record under
section 75.363(b), versus an inadequate pre-shift examination under
75.360(a)(1)?

Womack:         No,
sir. I—

Judge:              Basically
the same thing?

Womack:         I
could have went actually either way.

Judge:              They’re
basically the same thing; there’s no reason why you chose one over the other,
is what I’m saying.

Womack:         No,
sir, not other than, you know, just this 363(b) mentions the records.

Judge:              Okay.

Womack:         To
me, the record is the important thing here. Getting those hazards listed in the
record so that action can be taken.

Tr. 302-03.

Womack asserts, in essence, that
the mandatory standards in sections 75.360(a)(1) and 75.363(b) are duplicative
and indistinguishable. However, these mandatory standards are not duplicative
in that they impose distinctly different duties on mine operators. Sumpter
v. Sec’y of Labor, 763 F.3d 1292, 1301 (11th Cir. 2014) (holding that “citations and
orders are not duplicative as long as the standards impose separate and
distinct duties”). Contrary to Womack’s opinion,
which addresses a question of law, these mandatory standards impose different obligations—to
maintain an examination record book, and to perform adequate examinations, as
evidenced by notations in the examination record book. In this regard, the
failure to effectively note a hazardous condition in an existing pre-shift
examination book after an examination occurs is a reflection on the adequacy of
the examination, not whether the examination record book is, in fact, being
maintained.

Despite my expression of concern
that section 75.360(a)(1), rather than section 75.363(b), is the appropriate
mandatory standard in question, to date, the Secretary has not, at trial or in
his post-hearing brief, sought to modify or otherwise argue in the alternative
that a violation of section 75.360(a)(1) is in issue. Make no mistake, I would
have unhesitatingly granted the Secretary’s motion to amend Order No. 4694426
to include an alleged violation of section 75.360(a)(1), as undoubtedly Oak
Grove would not have been prejudiced thereby. However, it is not the role of a
Commission judge to be an eraser on the Secretary’s pencil. Consequently, having
failed to assert a violation of the relevant mandatory standard in section
75.360(a)(1), Order No. 4694426 must be vacated.

ORDER

In view of the above, IT IS ORDERED that
Citation No. 8520665 and Order No. 4694424 ARE AFFIRMED. Accordingly, IT
IS ORDERED that Oak Grove Resources, LLC shall pay a penalty of $12,248.00
in satisfaction of Citation No. 8520665 and $32,800.00 in satisfaction of Order
No. 4694424.

IT IS FURTHER ORDERED that Order
No. 8520664 IS MODIFIED from a section 104(d)(2) order to a section
104(a) citation, thus deleting the unwarrantable failure designation. IT IS
FURTHER ORDERED that the 104(a) Citation No. 8520664 IS MODIFIED
from an S&S to a non-S&S citation. Accordingly, IT IS ORDERED that
Oak Grove Resources, LLC shall pay a civil penalty of $5,200.00 in satisfaction
of Citation No. 8520664.

IT IS FURTHER ORDERED that Order
Nos. 8520666 and 4694426 ARE VACATED.

IT IS FURTHER ORDERED that
consistent with the parties’ settlement terms, Oak Grove Resources, LLC SHALL
PAY a total civil penalty of $54,188.00 in satisfaction of Citation Nos.
8524989, 8524999, 8524490, 8524979, 8524982, 8524987, 8524991, 8524993,
8524994, 8524995, 8524996, 7684600, 8524499, 8524500, 8526401, 8524983 and
8524491 in Docket No. SE 2013-352, and Order Nos. 8524255 and 8524258 in Docket
No. SE 2013-301.

In view of the above, IT IS ORDERED that Oak
Grove Resources, LLC pay, within 40 days of the date of this Decision, a
total civil penalty of $104,436.00, consisting of a total civil
penalty of $50,248.00 for the five citations and orders adjudicated in this
proceeding, in addition to $54,188.00 for the 19 settled citations and orders.[13]

IT IS FURTHER ORDERED that upon timely
receipt of the total $104,436.00 payment, the civil penalty proceedings in Docket
Nos. SE 2013-301, SE 2013-352, SE 2013-368, and SE 2013-399 ARE DISMISSED.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:
(Electronic and Certified Mail)

Thomas
A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

Jennifer
Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618
Church Street, Suite 230, Nashville, TN 37219

R.
Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401
Liberty Avenue, Pittsburgh, PA 15222

/acp

[1] 30 C.F.R. §
75.400 provides:

Coal
dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered and electric equipment
therein.

[2] This notation of 92 section 75.400 violations in the
two year period prior to the issuance Order No. 8520664 cannot be reconciled
with the Assessed Violation History Report that reflects 34 section 75.400
violations during the relevant time period. See Gov. Ex. 1

[3] This criterion that predicate violations must also
meet the requirements for a flagrant violation was included at the suggestion
of the Secretary. 36 FMSHRC at 1789 n.13. However, I believe a history of
relevant violations can provide a basis for a “repeated” designation, for a
violation otherwise properly designated as flagrant, regardless of whether the
previous violations satisfy the statutory definition of flagrant.

[4] There may be exceptional cases where the depth of
prohibited coal dust accumulations and their contact with multiple turning
rollers causes demonstrable suspension of coal dust that could be construed as
reasonably expected to be the proximate cause of propagation and resultant
serious bodily injury or death, thus satisfying the statutory definition of
flagrant.

[5] It is clear that the term “proximately” must be read
into the statutory phrase “reasonably expected to cause” that refers to
situations where serious death or bodily injury has not yet occurred. I
recognize that the Secretary has been persistently vague on this point. To
conclude otherwise — that violations that can reasonably be expected to contribute
to, or are a secondary cause of, serious bodily injury or death, could be properly
designated as flagrant — would blur the distinction between flagrant and routine
S&S violations.

[6] I am cognizant that the Commission has held that past
violative conduct may be considered in determining whether to cite a condition
as a repeated flagrant violation. Wolf Run Mining Co., 35 FMSHRC
536, 541 (Mar. 2013). Of course, a history of violations may be an aggravating
factor that is always relevant in determining the amount of the enhanced
civil penalty that should be assessed pursuant to section 110(b)(2). See
also 30 U.S.C. § 820(i). However, the Commission has not determined that a
history of violations can serve as a basis for elevating a violation, not
otherwise flagrant, to a repeated flagrant status. See Order Deleting
Flagrant Designation, 37 FMSHRC at 1313 n.4.

[7] Order No. 8520664 also refers to nondescript float
coal dust “on the roof, ribs, footwall, and belt structure.” The Secretary did
not provide any testimony at the hearing regarding the nature and extent of
accumulations on the roof, ribs, and footwall.

[8] The lack of detail in Getter’s testimony regarding the
accumulations he cited in Order No. 8520664 is in stark contrast to the
detailed description provided by Inspector Womack regarding the accumulations
he cited in Order No. 4694424, discussed hereinafter.

[9]
Section 75.360(a)(1) states:

Except as provided in paragraph (a)(2)
of this section, a certified person designated by the operator must make a pre-shift
examination within 3 hours preceding the beginning of any 8-hour interval
during which any person is scheduled to work or travel underground. No person
other than certified examiners may enter or remain in any underground area
unless a pre-shift examination has been completed for the established 8-hour
interval. The operator must establish 8-hour intervals of time subject to the
required pre-shift examinations.

[10]
30 C.F.R. § 75.1725(a) provides: “Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.”

[11]
It is noteworthy that I do not consider, nor has
the Secretary argued, that the belt maintenance defect at issue in Citation No.
8520665 was a local ignition source for the purposes of the accumulations cited
in Order No. 8520664. As discussed hereinafter, the hazard contributed to by
this belt maintenance defect condition was not related to float coal dust
accumulations, but rather methane pockets that may have accumulated near the
roof.

[12]
30 C.F.R. § 75.363(b) states:

A
record shall be made of any hazardous condition and any violation of the nine
mandatory health or safety standards found by the mine examiner. This record
shall be kept in a book maintained for this purpose on the surface at the mine.
The record shall be made by the completion of the shift on which the hazardous
condition or violation of the nine mandatory health or safety standards is
found and shall include the nature and location of the hazardous condition or
violation and the corrective action taken. This record shall not be required
for shifts when no hazardous conditions or violations of the nine mandatory
health or safety standards are found.

[13] Payment should be sent to the Mine Safety and Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390. Please include the Docket No. and A.C. No. noted in the
above caption on the check.