Secretary of Labor v. Prospect Mining and Development Company, Inc.

Plain-English summary

MSHA cited Prospect Mining's Carbon Hill Mine in two separate dockets, and Judge Thomas P. McCarthy heard both together under simplified proceedings. The first citation alleged that the last row of roof support bolts was not marked with a visible warning as 30 C.F.R. § 75.208 requires. The judge found the violation and agreed it was significant and substantial, because the standard imposes strict liability and the missing reflector exposed miners to an unsupported-roof hazard. He nonetheless cut negligence from moderate to none, since the reflector appears to have gone missing during mining and the operator had no reason to know in the ten minutes before the inspector saw it. The second citation charged that a scoop battery charger went at least eight weeks without the required weekly electrical examination under 30 C.F.R. § 75.512-2. The judge affirmed that citation as written, including its significant and substantial and high-negligence designations, calling weekly examinations basic. Total penalties came to $1,169, made up of $362 on the roof-support citation and $807 on the examination citation.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 75.208 and 75.512-2
• Outcome: Citation No. 8530836 was modified to reduce negligence from moderate to none, Citation No. 8531669 was affirmed as written, and $1,169 in total penalties was assessed.
• Key point: A strict-liability standard can be violated without any operator fault, so a violation and its S&S designation can stand while negligence drops to none.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

PROSPECT
MINING AND DEVELOPMENT COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2016-0089

A.C.
No. 01-03389-396647

Docket
No. SE 2016-0103

A.C.
No. 01-03389-398986

Mine:
Carbon Hill Mine

DECISION AND
ORDER

Appearances:               C.
Renita Hollins, Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee
for Petitioner

J.D.
Terry, Prospect Mining & Development Company, Inc., Jasper, Alabama for Respondent

Before:                        Judge
McCarthy

I.
STATEMENT OF THE CASE

These
cases are before me upon Petitions for Assessment of a Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d). Docket No. SE 2016-0089 involves one section 104(a) citation charging
Respondent, Prospect Mining and Development Company, Inc. (“Respondent”), with
an alleged violation of 30 C.F.R. § 75.208. Docket No. SE 2016-0103 involves
one section 104(a) citation charging Respondent with an alleged violation of 30
C.F.R. § 75.512-2.

A
hearing was held in Birmingham, Alabama on November 2, 2016. During the
hearing, the parties offered testimony and documentary evidence. [1]
Pursuant to the Commission’s procedural rules governing simplified proceedings,
the parties presented closing arguments in lieu of submitting post-hearing briefs.
29 C.F.R. § 2700.108(e). The issues presented are whether Respondent violated
the cited standards, and if so, whether the S&S, gravity, and negligence designations
were appropriate, and what civil penalties should be assessed. For the reasons
discussed below, I modify Citation No. 8530836 to reduce the
level of negligence from “moderate” to “no” negligence. I assess a penalty of $362.
I affirm Citation No. 8531669, as written, and assess a penalty of $807.

II. PRINCIPLES
OF LAW

A. Gravity and Significant and
Substantial (S&S)

The Mine Act
describes an S&S violation as one “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d)(1). By contrast, the gravity of a
violation “is often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co. , 18 FMSHRC 1541, 1549 (Sept. 1996).
  The gravity component of the penalty assessment is not
synonymous with finding that a violation is S&S, but may be based on the
same evidence. The gravity inquiry is concerned with the effects of a hazard,
while the S&S analysis focuses on the reasonable likelihood of serious
injury. See Consolidation Coal Co. , 18 FMSHRC at 1550 (explaining that
“the focus of the [gravity inquiry] is not necessarily on the reasonable
likelihood of serious injury… but rather on the effect of the hazard if it
occurs”). Alternatively, a violation is S&S if, “based on
the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co ., 3 FMSHRC
822, 825 (Apr. 1981).

To establish an
S&S violation, the Secretary must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard–that is, a measure of
danger to safety–contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.  Mathies
Coal Co. , 6 FMSHRC 1, 3­-4. (Jan. 1984). [2] The S&S determination
should be made assuming “continued normal mining operations.” U.S.
Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
This evaluation is also made in consideration of the length of time that the
violative condition existed prior to the citation and the time it would have
existed if normal mining operations had continued, without any assumptions
regarding abatement. Elk Run Coal Co. , 27 FMSHRC 899, 905 (Dec.
2005);  U.S. Steel Mining Co., Inc. , 6 FMSHRC 1573, 1574
(July 1984). [3]

Once the fact of
the violation has been established, step two of the Mathies analysis
focuses on “the extent to which the violation contributes to a particular
hazard.” The Commission has recently clarified that this step is “primarily
concerned with likelihood of the occurrence of the hazard against which a
mandatory safety standard is directed.” Newtown Energy, Inc. , 38 FMSHRC ­­­2033,
2037 (Aug.2016) ( citing Knox Creek Coal Corp. , 811 F.3d at 163). Step
two of the Mathies test involves a two-part analysis: 1) identification of
the hazard created by the violation of the safety standard; and 2) “a
determination of whether, based on the particular facts surrounding the
violation, there exists a reasonable likelihood of occurrence of the hazard
against which the mandatory safety standard is directed.” Newtown Energy, 38 FMSHRC
at 2038.

The third step
of the Mathies analysis is “primarily concerned with gravity,” and
whether the hazard identified in step two “would be reasonably likely to result
in injury.” Id . at 2037 (internal citations omitted). The third
step’s inquiry is whether the hazard, assuming it occurred, would likely result
in serious injury.   Knox Creek , 811 F.3d at 161-65. The question
in applying the third step of Mathies “is not whether it is likely that
the hazard . . . would have occurred[,]” but “whether, if the
hazard occurred (regardless of likelihood), it was reasonably likely that a
reasonably serious injury would result.” Peabody Midwest Mining, LLC v. Fed.
Mine Safety & Health Rev. Comm’n , 762 F.3d 611, 616 (7th Cir. 2014). The
Secretary “need not prove a reasonable likelihood that the violation itself
will cause injury.” Cumberland Coal Res., LP , 33 FMSHRC 2357, 2365 (Oct.
2011) ( citing Musser Engineering, Inc. , 32 FMSHRC 1257, 1281 (Oct. 2010)).
Further, “the absence of an injury-producing event when a cited practice has
occurred does not preclude a determination of S&S.”  Musser
Engineering, Inc., 32 FMSHRC at 1281 (citing  Elk Run Coal Co. ,
27 FMSHRC at 906); Blue Bayou Sand & Gravel, Inc. , 18  FMSHRC 853 ,
857 (June 1996).

For violations that contribute to the
hazard of an ignition, fire, or explosion, the Commission has held that the
third Mathies element is satisfied when a “confluence of factors” is
present that could have triggered an ignition, fire, or explosion, under
continued normal mining operations. [4]
Zeigler Coal Co. , 15 FMSHRC 949, 953 (June 1993); Texasgulf ,
10 FMSHRC 498, 501 (Apr. 1988); see, e.g. , Paramont Coal Co.
Va., LLC , 37 FMSHRC 981, 984 (May 2015). In particular, “the confluence of
factors analysis requires consideration of the particular circumstances in the
mine, including the possible ignition sources, the presence of methane, and the
type of equipment in the area.” Excel Mining, LLC, 37 FMSHRC 459, 465
(Mar. 2015).

The fourth Mathies
factor requires the Secretary to show a reasonable likelihood that the injury
in question will be of a reasonably serious nature. Mathies , 6 FMSHRC at

3. As a practical matter, the last two Mathies ’ factors are often
   combined in a single showing. Id . Consistent with this
   approach, MSHA inspectors determine whether a violation meets the criteria for
   S&S by the likelihood of injury and the expected severity of injury, which
   correspond to the third and fourth Mathies factors. [5]

B. Negligence

Negligence is
not defined in the Mine Act. The Commission has found that “[e]ach mandatory
standard thus carries with it an accompanying duty of care to avoid violations
of the standard, and an operator’s failure to satisfy the appropriate duty can
lead to a finding of negligence if a violation of the standard occurred.” A.H.
Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). In
determining whether an operator meets its duty of care under the cited
standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation. See generally U.S. Steel Corp. , 6 FMSHRC 1908, 1910
(Aug. 1984); see also Jim Walter Res., Inc. , 36 FMSHRC
1972, 1975-77 (Aug. 2014) (requiring Secretary to show that operator failed to
take specific action required by standard violated); Spartan Mining , 30
FMSHRC 669, 708 (Aug. 2008)(negligence inquiry circumscribed by scope of duties
imposed by regulation violated). In this regard, the gravamen of high
negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody Mining , 37 FMSHRC 1687, 1701 (Aug. 2015) ( citing
Topper Coal Co. , 20 FMSHRC 344, 350 (Apr. 1998)). Commission judges
are not required to apply the level-of-negligence definitions in Part 100
penalty regulations and may evaluate negligence from the starting point
of a traditional negligence analysis rather than from the Part 100 definitions.
Brody Mining , 37 FMSHRC at 1701; accord Mach Mining , 809 F.3d at
1263-64. Thus, in making a negligence determination, a Commission judge is not
limited to an evaluation of allegedly mitigating circumstances, but may
consider the totality of the circumstances holistically. Under such an
analysis, an operator is negligent if it fails to meet the requisite high
standard of care under the Mine Act. Brody Mining , 37 FMSHRC at 1701.

C.
Penalty Criteria

An Administrative Law Judge has the independent
authority to assess all penalties. 30 U.S.C. § 820(i). In so doing, he or
she must consider six statutory criteria set forth in section 110(i), and the
deterrent purpose of the Mine Act. The six statutory criteria are: 1) the
operator’s history of previous violations; 2) the appropriateness of the penalty
to the size of the business; 3) the operator’s negligence; 4) the operator’s
ability to stay in business; 5) the gravity of the violation; and 6) any
good-faith compliance after notice of the violation. See e.g ., Douglas
R. Rushford Trucking , 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. §
820(i). Equal weight need not be given to each criteria. Spartan Mining ,
30 FMSHRC at 723.

Commission
Judges are neither bound by the Secretary’s proposed assessment nor by his Part
100 regulations governing the penalty proposal process. American Coal Co. ,
38 FMSHRC 1987, 1993-94 (Aug. 2016) ( citing Sellersburg Stone Co.
v. FMSHRC , 736 F.2d 1147, 1150-51 (7th Cir. 1984); Mach
Mining, LLC , 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) (MSHA Part 100
regulations are not in any way binding in Commission proceedings)). The Judge
must provide an explanation for a substantial divergence between the
Secretary’s proposed penalty and the Judge’s assessed penalty. Sellersburg
Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983). The Commission reviews a
Judge’s civil penalty assessment under an abuse of discretion standard.   Douglas
R. Rushford Trucking , 22 FMSHRC 598, 601 (May 2000) (citation omitted).  

My
independent penalty assessment for each citation at issue is set forth herein.  

III. FINDINGS OF
FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.
Stipulations of Fact and Law

The
parties have stipulated to the following:

1. Jurisdiction exists because the
   Respondent was an operator of a mine as defined in section 3(d) of the Mine
   Act, 30 U.S.C. § 802(d), and the products of the subject mine entered into the
   stream of commerce or the operations or products thereof affected commerce
   within the meaning and scope of section 4 of the Mine Act, 30 U.S.C.
   § 803.

2. The Administrative Law Judge has
   jurisdiction over these proceedings, pursuant to section 105 of the Mine Act.

3. Prospect Mining and Development
   Company, Inc., Mine ID 01-03389, is subject to the Federal Mine Safety and
   Health Act of 1977, as amended.

4. Prospect Mining and Development
   Company, Inc. is an “operator” as defined in section 3(d) of the Mine Act.

5. Prospect Mining and Development
   Company, Inc., [sic] operations affect interstate commerce.

6. Prospect Mining and Development
   Company, Inc., worked 89,576 hours in 2014 and produced 84,876 tons of coal in
   2014.

7. Prospect Mining and Development
   Company, Inc., worked 106,644 hours in 2015 and produced 84,876 tons of coal in
   2015.

8. Citations at issue in this proceeding
   were served by certified mine inspections acting in their official capacity as
   authorized representatives of the Secretary of Labor during the time of the
   inspection and when the citations was [sic] issued.

9. Prospect Mining and Development
   Company, Inc., demonstrated good faith in abating the cited conditions.

10. The assessed penalty for each docket
    will not affect the operator’s ability to remain in business.

P.
Ex. 1.

B.
Docket No. SE 2016-0089 (Citation No. 8530836)

Citation No. 8530836 was issued on
September 22, 2015 by MSHA inspector, Sheila Dawkins, who was conducting
respirable dust surveys at Respondent’s Carbon Hill Mine. Tr. 34. Dawkins
arrived at the mine on September 22 at 6:30 a.m., and after inspecting the
mine’s record books, traveled underground to conduct an imminent danger run and
take respirable dust samples. Tr. 51; P. Ex. 3, at 12­-7. She did not issue any
citations during her record book inspection, her imminent danger run, or her
respirable dust surveys. P. Ex. 3, at 12-7.

Around 12:45 p.m., Dawkins and Bobby
Meadows, the mine superintendent, were watching the continuous miner mine a
25-foot section of coal in the No. 6 entry. Tr. 35. They were standing “back a
little distance” from the continuous miner, because the size of the continuous
miner and the four foot height of the coal seam made standing close to the
continuous miner hazardous. [6]
Tr. 35-37. They were also unable to see past the continuous miner into the No.
6 entryway at that time. Tr. 38. As the continuous miner finished loading
the shuttle car and moved out of the No. 6 entry, Dawkins saw that the final
row of roof support bolts was not marked by a visible warning (usually a bright
red or pink reflector), as required under 30 C.F.R. § 75.208. Tr.
35-36. Dawkins brought the alleged violation to Meadows’ attention, and they
both searched the area for a fallen reflector, but could not find anything in
the vicinity of the entry. Tr. 36, 39, 58-59.

Dawkins then issued Citation
No. 8530368, alleging a violation of 30 C.F.R. § 75.208, [7]
based on the following condition:

A readily visible warning
or physical barrier was not installed to impede travel beyond permanent support
in the #6 entry on the 2-15 section. Twenty-five feet had been mined out of the
entry.

P. Ex. 2. The Secretary alleges the violation is S&S,
reasonably likely to cause fatal injuries to one person, and the result of
Respondent’s moderate negligence. The Secretary proposes a penalty of $807.

After failing to find the
reflector in the vicinity of the No. 6 entry, Meadows had someone install a new
reflector. Tr. 36. While waiting about ten minutes for the installation of the
new reflector, Dawkins remained in the No. 6 entry to ensure that no miners
traveled underneath the unmarked, unsupported roof. Tr. 64-65.

1. The Violation in
   Citation No. 8530836 was S&S.

The Secretary requests that I affirm
Citation No. 8530836, as written, and assess the Secretary’s proposed penalty
of $807. Tr. 22-25. The Respondent challenges the Secretary’s allegations
regarding the fact of the violation, the S&S designation, the negligence
designation, and the proposed penalty. Tr. 16.

In Commission proceedings,
the Secretary must prove his allegations by a preponderance of the evidence. RAG
Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d ,
272 F.3d 590 (D.C. Cir. 2001). The Commission has explained that “[t]he burden
of showing something by a “preponderance of the evidence,” the most common
standard in the civil law, simply requires the trier of fact “to believe that
the existence of a fact is more probable than its nonexistence.”” Id. (citing
In re: Contests of Respirable Dust Sample Alteration Citations , 17 FMSHRC
1819, 1838 (Nov. 1995), aff'd sub nom. Secretary of Labor v. Keystone
Coal Mining Corp. , 151 F.3d 1096 (D.C. Cir. 1998), quoting Concrete Pipe
& Prod. of California, Inc. v. Construction Laborers Pension Trust for
Southern California , 508 U.S. 602, 622 (1993)).

In applying the Commission’s Mathies
factors, I must first determine whether the conditions cited by Dawkins in
Citation No. 8530836 constitute a violation of 30 C.F.R. § 75.208.
Section 75.208 provides that, “[e]xcept during the installation of
roof supports, the end of permanent roof support shall be posted with a readily
visible warning, or a physical barrier shall be installed to impede travel
beyond permanent support.” 30 C.F.R. § 75.208.  Dawkins
testified that prior to issuing Citation No. 8530836 at 12:45 p.m., she had
inspected all the working faces of Carbon Hill Mine. Tr. 22, 25. On cross
examination, Dawkins admitted that it was “more than likely” that the required
reflector was in place at the No. 6 entry at the time of her initial
inspection, and that it could have been knocked down by the continuous miner or
by someone else coming into contact with it. Tr. 52, 61, 64.

Regardless of when the
reflector was knocked down or otherwise removed from the last row of roof
support bolts, Dawkins’ unrebutted testimony indicates that the reflector was
not in place when the continuous miner finished mining in the No. 6 entry. Tr. 35-36.
 While section 75.208 does permit the absence of a visible warning or physical
barrier during the installation of roof support, Respondent has not argued (and
the record does not reflect) that roof support was being installed when Dawkins
issued Citation No. 8530836. I therefore find a violation under the strict
liability principles contemplated by the Mine Act.

I next identify the hazard in the first
part of step two of the clarified Mathies test.   Newtown Energy, 38
FMSHRC at 2038. As the Commission explained, “a clear description of the
hazard at issue places the analysis of the violation’s potential harm in
context, by requiring a determination of the relative likelihood that the
violation will have a meaningful, adverse effect on conditions miners will
encounter during normal mining operations.” Id. Under
Mathies , the hazard contributed to by the violation is defined “in terms
of the prospective danger the cited safety standard is intended to prevent,”
and therefore “the starting poi nt for determining the hazard is the
actual cited section [of the Code of Federal Regulations].” Id . The
clear purpose of section 75.208 is to prevent miners from traveling under
unsupported roof. I therefore define the hazard contributed to by the violation
as miners
traveling under unsupported roof. Tr. 41-42.

Having determined that the
lack of a visible warning reflector presents a hazard to miners, I now consider
whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the
[standard] is directed.” Newton Energy , 38 FMSHRC at 2037. In the
context of Citation No. 8530836, I must determine whether the lack of a visible
reflector or physical barrier is reasonably likely to lead to miners traveling
underneath the unsupported roof. I note that, under Commission precedent, “[t]he
question of whether a violation is S&S must be resolved on the basis of the
conditions as they existed at the time of the violation and as they might have
existed under continued normal mining operations.” Manalapan Mining Co. ,
18 FMSHRC 1375, 1382 (Aug. 1996) (Comm’rs Holden and Riley, plurality) ( citing
Eastern Associated Coal Corp. , 13 FMSHRC 178, 183 (Feb. 1991); U.S.
Steel Mining Co ., 7 FMRHC 1125, 1130 (Aug. 1985). I also consider
conditions on a mine-wide basis. Id . ( citing Cyprus Plateau Mining
Corp. , 16 FMSHRC 1610, 1614 (Aug. 1994)).

I find that the Secretary has shown that
miners were reasonably likely to travel underneath the unsupported roof in the
No. 6 entry. Respondent argues that because Dawkins stood in the No. 6 entry
for the ten minute duration between the issuance of Citation No. 8530836 and
its abatement, there is no likelihood that miners would have traveled
underneath the unsupported roof. Tr. 64-65. However, the S&S inquiry must
consider “the violative conditions as they existed both prior to and at the
time of the violation and as they would have existed had normal mining
operations continued .” Mach Mining, LLC v. Sec’y of Labor , 809 F.3d
1259, 1267 (D.C. Cir. 2016) (emphasis added and internal citations omitted). While
Dawkins’ presence in the No. 6 entry undoubtedly prevented miners from exposure
to any roof fall hazard in the particular facts of this case, “normal mining
operations” do not include an inspector warning miners to stay away from
potentially hazardous conditions. See Jim Walter Resources, Inc. , 28 FMSHRC 579,
604 (2006) (“The Commission, in determining whether a violation is S&S,
considers circumstances assuming that normal mining operations continue without
the intervention of an inspector.”) ( citing U.S. Steel Mining Co. ,
7 FMSHRC at 1130). I therefore reject Respondent’s argument that Dawkins’
presence in the No. 6 entry reduced the likelihood that miners would travel
underneath the unsupported roof during continuous normal mining operations.

Dawkins testified that under normal
mining operations, the next stage in the mining process (after the continuous
miner left the No. 6 entry) was the installation of permanent roof support in
the mined-out area. After installing the permanent roof bolts, the roof bolter
would normally have hung the required reflector on the last row of roof bolts,
and the scoop operator would then enter the No. 6 entry to clean up loose coal,
rock dust, and advance the ventilation curtain. Tr. 40, 56. Had Dawkins not
remained in the No. 6 entry, the roof bolter might very well have traveled
underneath the unsupported roof while installing the permanent roof support. Furthermore,
Meadows or another supervisor may have done so when checking the cut. When the
violative condition underlying Citation No. 8530836 is viewed under the
circumstances as they would have existed under normal mining operations, I find
that the Secretary has met his burden of proof to show that miners were
reasonably likely to travel underneath the unsupported roof in the No. 6 entry. [8]

I now turn to the third and fourth Mathies
steps, i.e., whether the hazard identified in step two (miners traveling
underneath unsupported roof), would be reasonably likely to result in an injury
of a reasonably serious nature. Dawkins’ testimony at hearing indicated that
she was concerned that miners traveling underneath the unsupported roof in the
No. 6 entry could be injured or killed by a roof fall. Tr. 42. Despite Dawkins’
testimony regarding the likelihood that a roof fall would fatally injure a
miner, she gave no testimony regarding the likelihood of a roof fall occurring
in the No. 6 entry. The Secretary offered no evidence or testimony regarding
the roof conditions or history of roof falls at Respondent’s Carbon Hill Mine. Nor
did the inspector offer general testimony (based on her personal knowledge and
experience in the mining industry) regarding the likelihood of roof falls. However,
the Commission has recognized the serious safety concerns posed by roof falls,
and “has taken note of the fact that mine roofs are inherently dangerous
and that even good roof can fall without warning.” Consolidation Coal
Company , 6 FMSHRC 34, 37 (Jan. 1984); see also See Halfway,
Inc. , 8 FMSHRC 8, 13 (Jan. 1986) (“Our decisions have stressed the
fact that roof falls remain the leading cause of death in underground coal
mines.”); Black Beauty Coal Co. , 33 FMSHRC 1482, 1496
(June 2011) (ALJ) (upholding the Secretary’s S&S designation based in part on
the fact that newly cut, unsupported roofs are likely to fall).   As Dawkins
testified:

If you go inby
[the last row of permanent roof support] and the roof falls, it’s very clear
that you’re not going to make it with the extent that it was 25 feet of unsupported
top . . . . And if that top falls, you’re going to be
crushed and [suffer] internal injuries, broken bones. There’s a good
possibility that you’re not going to make it if the top falls on you and you go
inby this area that’s not supported.

Tr.
41-42.  I
therefore find that there exists a reasonable likelihood that miners traveling
underneath the freshly-cut, unsupported roof would be seriously injured if not
killed by a roof fall.

In conclusion, I have found that the
violation of section 75.208 occurred as alleged by the Secretary, satisfying
the first prong of the Mathies test. I have found that the hazard
created by the violation was reasonably likely to result in a reasonably
serious injury. Newtown Energy , 38 FMSHRC at 2038.  I therefore find
that the violation of section 75.208 in Citation No. 8530836 was S&S, and
reasonably likely to result in fatal injuries to one person.

2. The Violative Condition in Citation
   No. 8530836 was Not Caused by Respondent’s Negligence.

In determining whether an
operator meets its duty of care under the cited standard, the Commission
considers what actions would have been taken under the same or similar
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See
generally U.S. Steel Corp. , 6 FMSHRC at 1910. The Secretary alleges
that the missing reflector was the result of Respondent’s moderate negligence,
and Dawkins testified that “management should have known that this condition
existed. . . .[I]t’s important that management informs their
people as well as the supervisor that at all times a visible warning sign
should be hung on the last row of permanent support.” Tr. 44.  Dawkins also
testified that Meadows offered no mitigating circumstances regarding the
violation. Id . However, under the Commission’s traditional negligence
standard as outlined above, I find that the violative condition did not result
from Respondent’s negligence. See Brody Mining, LLC , 37 FMSHRC 1687,
1702 (Aug. 2015) (“[Commission] judges may evaluate negligence from the
starting point of a traditional negligence analysis.”)

As noted above, Dawkins admitted on
cross-examination that the required reflector was “more than likely” in place
at the No. 6 entry at the time of her initial inspection, and that it could
have been knocked down by the continuous miner or by someone else coming into
contact with it. Tr. 52, 61, 64.  Dawkins also admitted that it was “reasonably
likely” that, after being knocked down, the reflector had been “sent down the
conveyor chain and loaded onto a shuttle car.” Tr. 60.  Moreover, Dawkins
testified that the continuous miner blocked her view of the No. 6 entry while
she was observing the mining process, and it was only after the miner moved out
of the No. 6 entry area that she was able to see into the entry itself and
notice the missing reflector. Tr. 38.

Since Dawkins admitted
that the reflector was likely in place before the continuous miner began
cutting in the No 6 entry, and she was only able to view the entry and note
that missing reflector after the continuous miner left the area, I cannot
conclude that the operator knew or should have known that the reflector was
missing prior to the time when the continuous miner left the area. In other
words, the Secretary produced no evidence that an agent of management knew or
should have known of the violation prior to the time that the inspector first
observed it after the continuous miner operator pulled out of the entry.  The Secretary
thus failed to show any breach of duty on the part of management.   See Leeco,
Inc. , 38 FMSHRC 1634, 1637-38 (July 2016) (finding no negligence where
the Secretary failed to introduce evidence demonstrating what actions a
reasonably prudent operator would have taken). I also find that Meadows’ prompt
action of calling someone to replace the missing reflector after Dawkins first drew
his attention to the violation was consistent with the actions that a reasonably
prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation would have taken in similar circumstances.
See generally U.S. Steel Corp. , 6 FMSHRC at 1910. I therefore
find that the Secretary failed to establish that the violative condition in
Citation No. 8530836 was the result of Respondent’s negligence.

3. Penalty Assessment

The Secretary proposed a penalty of $807
for Citation No. 8530836. The parties stipulated that Respondent’s miners worked
89,576 hours and produced 84,876 tons of coal in 2014, and worked 106,644 hours
and produced 84,876 tons of coal in 2015. P. Ex. 1, Stips. 6-7.  Accordingly, I
find that Respondent is a medium-sized mine. See 30 C.F.R. § 100.3,
Table I. The parties have stipulated that “[t]he assessed penalty for each
docket will not affect the operator’s ability to remain in business.” P. Ex. 1,
Stip. 10. The parties stipulated that Respondent demonstrated good faith in
abating the cited conditions. P. Ex. 1, Stip. 9. Section 75.208 was cited in
one citation out of the 52 violations that Respondent received at Carbon Hill
Mine in the 15 months preceding the issuance of Citation No. 8530836. I have
affirmed the Secretary’s S&S designation, and modified Citation No. 8530836
to reduce the level of negligence from “moderate” to “no negligence.” Based
upon my consideration of the section 110(i) penalty criteria and the deterrent
purposes of the Act, I assess a penalty of $362.

C.
Docket No SE 23016-0103, Citation No. 8531669

Citation No. 8531669 was issued on October 26, 2016
by MSHA inspector Darryl Allen as part of his regular E01 inspection of the
Carbon Hill Mine. Tr. 73-74. Allen began his inspection by checking the
pre-shift, on-shift, belt, and electrical record books. Tr. 75. During his
subsequent underground inspection, Allen found what he thought was an alleged
violation on the scoop charger. Tr. 75. [9]
He returned above ground to review the electrical record books to determine
whether the alleged violation had been recorded, and he discovered that the
record books did not contain any record of the scoop charger. Tr. 79. Based on
the lack of records related to the scoop charger, Allen concluded that the electrician
conducting the required weekly electrical examinations had not included the scoop
charger in his examinations. Tr. 79, 81-82.

Allen issued Citation No. 8531669, alleging a
violation of 30 C.F.R. § 75.512, [10]
based on the following practice:

Record of weekly
electrical examinations can not [sic] be provided for the Co. No. 1 outby scoop
charger located at the South Main track cross cut 16. (Exide brand, Serial No.
CL110645) The scoop charger has been in service for an undetermined length of
time of at least 2 months. The scoop charger is observed in unsafe operating
condition at the time of inspection. If this condition is allowed to continue
to exist under normal mining conditions, it is reasonably likely that miners
will receive injuries of a serious nature as a result of undetected and
uncorrected hazardous conditions of various types.

P. Ex. 5. The
Secretary alleges that the violation is S&S, reasonably likely to cause
injuries resulting in lost work days or restricted duty for one miner, and the
result of Respondent’s high negligence. Id . Allen terminated the
citation on October 28, 2015, when he returned to the mine and was informed by
a certified electrician that the scoop charger had been examined, and the
examination had been recorded in the weekly electrical examination record book.
Tr. 128.

1. The Violation in
Citation No. 8531669 was S&S.

The
Secretary requests that I affirm Citation No. 8531669, as written, and assess
the proposed penalty of $807. Respondent argues that the pre-shift examinations
done on the scoop charger indicate that it was in safe operating condition for
the two-month duration of the violation, and that gravity and negligence should
be modified accordingly. Tr. 173, 200.  

I
begin with the fact of the violation. Section 75.512-2 requires that electrical
examinations be conducted at least weekly. 30 C.F.R. § 75.512-2. Allen’s
unrebutted testimony indicates that Respondent was unable to produce electrical
examination records for the scoop charger. Tr. 79, 81-82. Although Meadows
assisted Allen in searching through Carbon Hill Mine’s examination record
books, they could find no record indicating that an electrical examination had
been conducted on the scoop charger. Tr. 80, 87. I therefore find the violation
occurred as alleged by the Secretary.

I next identify
the hazard in the first part of Mathies ’ second step. Section 75.512-2
specifies the frequency with which the electrical examinations required under
section 75.512 must be performed. Regular
examinations for the purpose of detecting and correcting hazards are “of
fundamental importance in assuring a safe working environment underground.” Enlow
Fork Mining Co. , 19 FMSHRC 5, 15 (Jan. 1997) (quoting   Buck Creek Coal Co. ,   17  FMSHRC 8 , 15 (Jan. 1995)). In the context of electrical
equipment, inspector Allen testified that the failure to conduct regular
inspections could result in the failure to correct hazardous conditions that
could expose miners to fire hazards as a result of possible ignitions or
electrocution (including electrical burns). Tr. 84-86. I find that Respondent’s
violation of section 75.512-2 contributed to the safety hazards of a mine fire or
electrocution. Id .

I
now consider whether, “based on the particular facts surrounding the violation,
there exists a reasonable likelihood of the occurrence of the hazard[s] against
which [section 75.512-2] is directed.” Newtown Energy , 38 FMSHRC at
2037. At hearing, the Secretary elicited testimony from Allen on two specific
types of hazards, an electrocution and a mine fire.  While Allen gave specific
testimony on how any number of component failures on the scoop charger
itself might cause ignitions or electrical fires, Allen gave no testimony
regarding the likelihood of any such component failures. For example,
Allen testified that

it’s reasonably
likely that any type of failure, whether it be at the power center and, say, on
the charger cable, on the charger itself, it would possibly produce a ground
that would put power on the frame of the machine. There’s just a multitude of
things that can happen . . . .

Tr. 84-85. Allen
also testified that if the scoop charger is not properly maintained,

it has the
capability of starting a fire. It’s a 480-volt piece of equipment with a long
cable that can be damaged at any time. That combined with a failure of the
breaker or something else that is, you know, common mine history. A failure of
electrical equipment has resulted in mine fire.

Tr. 85-86. The
Secretary cannot merely allege that a violation could contribute to a
hazard resulting in injury; the Secretary must present evidence that a
violation is reasonably likely to contribute to a hazard resulting in an
injury. See Wolf Run Mining Co. , 32 FMSHRC 1669, 1678 (Dec.
2010) (“We note that in past cases we have not agreed that it is sufficient
that a violation “could” result in an injury.”) (citing Peabody Coal Co. ,
17 FMSHRC 26, 29 (Jan. 1995) (affirming ALJ’s decision that the
Secretary failed to meet his burden of proof under the third prong of Mathies
where the inspector testified that miners “could” be exposed to respirable
dust, pneumoconiosis “could” result, and methane ignitions “can” result)). [11]

The Commission
has held that when evaluating violations that may contribute to fire hazards,
the adjudicator must evaluate the “confluence of factors” inside the mine that
might trigger an ignition, fire, or explosion under normal mining conditions.   Ziegler
Coal Co. , 15 FMSHRC at 943. These factors include possible ignition
sources, methane levels, and the type of equipment in the area. Excel
Mining, LLC , 37 FMSHRC at 465 (Mar. 2015).  The Commission has also
recognized that fires and explosions are reasonably likely to occur when the
“fire triangle” of oxygen, a fuel source, and an ignition source is present. See
U.S. Steel Mining Co. , 27 FMSHRC 435, 449 (May 2005) (“The hazard in this
case involves the danger posed when the three ingredients needed to sustain a
fire or explosion—sufficient oxygen, fuel, and an ignition source—come into
close proximity.”) ( citing Alabama By-Products , 25 FMSHRC
227, 229-30 (Apr. 2003) (relying on inspector testimony that “a fire or
explosion can occur when you have the right mixture of fuel, heat, and oxygen”).
Beyond Allen’s general statement that a component failure on the scoop charger
could cause the charger itself to catch on fire, the Secretary did not
introduce any specific evidence or testimony regarding the particular
circumstances surrounding the equipment, or in the Carbon Hill Mine generally, that
could contribute to a mine fire hazard. Allen gave no testimony regarding the
possible causes of component failure or how likely a component failure might be
to occur on the scoop charger. Nor did the Secretary present evidence regarding
accumulations, float coal dust, or methane within the mine that might satisfy
the oxygen and fuel components of the fire triangle. I therefore find that the
Secretary has not shown, by a preponderance of the evidence, that Respondent’s
failure to conduct weekly examination of the scoop charger contributes to the
reasonable likelihood of a mine fire or ignition. Newtown Energy ,
38 FMSHRC at 2037.  

Allen
also testified that Respondent’s violation could contribute to the hazard of
electrocution. The roof at Carbon Hill Mine is composed of shale, and commonly
falls in thin layers between the roof bolts. Tr. 86. Allen testified that the
thin, sharp shale pieces can cause nicks in electrical cables. Id . If a
piece of shale falls and nicks the scoop charger cable, any miner who touches
the cable would be exposed to electrocution or an arc burn. Tr. 85, 87. Since
Respondent was not conducting weekly examinations of the scoop charger and its
electrical components, including the charger’s cable, miners would have been
unaware of any potentially hazardous condition resulting from cable damage
caused by fallen shale. Tr. 84-87. Although Respondent argues that the required
pre-shift examinations would have identified and immediately corrected any
hazardous conditions associated with the scoop charger before miners were
exposed to them, Respondent submitted no evidence at hearing (either as
exhibits or in the form of witness testimony) from which I can conclude that
the scoop charger was, in fact, included in routine pre-shift examinations. Given
Allen’s testimony that falling shale is “common” at the Carbon Hill Mine, I
find that the Secretary has shown, by a preponderance of the evidence, that
Respondent’s failure to conduct weekly electrical examinations on the scoop
charger contributed to the reasonable likelihood that miners would be exposed
to the hazards of electrocution or an arc burn. Tr. 86.

I
also find that the electrocution or arc burn hazards presented by the lack of
scoop charger examinations are reasonably likely to result in an injury of a
serious nature, thereby satisfying the third and fourth Mathies factors.
Congress and the Commission have recognized that the shock hazards resulting
from damaged cables pose a significant danger to miners. S. Rep. No.
91-411, at 71 (1969) , reprinted in Senate Subcomm. On Labor, Comm. On
Human Res., Part I, Legislative History of the
Federal Coal Mine Health and Safety Act of 1969 , at 197 (1975); see also
Spartan Mining, 30 FMSHRC at 707-08 (finding that the failure to protect
cables from damage contributed to an electrocution hazard that was reasonably
likely to result in an injury of a reasonably serious nature).

In conclusion, I find the violation of section
75.512-2 occurred as alleged by the Secretary in Citation No. 8531669. I
further find that such violation was S&S and reasonably likely to result in
an injury of a reasonably serious nature to one miner.

2. The Violation in Citation
   No. 8531699 was the Result of Respondent’s High Negligence.

Allen designated Citation No. 8531669 as
resulting from Respondent’s high negligence. Allen testified that “weekly
examinations are as basic as it gets.” Allen had “no doubt” that Respondent
knew (and certainly should have known) that weekly examinations were required
to be conducted on the scoop charger. Tr. 87. Although Meadows assisted Allen
in searching through the record books to locate the weekly electrical examination
records, Meadows never told Allen that the examinations had been conducted, but
were just not recorded. Tr. 88. Respondent provided no evidence that Respondent
had been conducting weekly electrical examinations on the scoop charger. The
scoop charger was in service for at least eight weeks without being examined by
a certified examiner. P. Ex. 5. Accordingly, I affirm the Secretary’s high
negligence designation. P. Ex. 5, Tr. 89.

3. Penalty Assessment

The Secretary proposed a penalty of $807
for Citation No. 8531669. The parties stipulated that Respondent’s miners
worked 89,576 hours and produced 84,876 tons of coal in 2014, and worked
106,644 hours and produced 84,876 tons of coal in 2015. P. Ex. 1, Stips. 6-7.  Accordingly,
I find that Respondent is a medium-sized mine. 30 C.F.R. § 100.3, Table I. The
parties have stipulated that “[t]he assessed penalty for each docket will not
affect the operator’s ability to remain in business.”  P. Ex. 1, Stip. 10. The
parties stipulated that Respondent demonstrated good faith in abating the cited
conditions. P. Ex. 1, Stip. 9. Section 75.512-2 was not cited in any of the 52
citations issued at Respondent’s Carbon Hill Mine in the 15 months preceding the
issuance of Citation No. 8531669. I have affirmed the Secretary’s gravity and
negligence designations. Based upon my consideration of the section 110(i)
penalty criteria and the deterrent purposes of the Act, I assess a penalty of
$807.

IV.
ORDER

For the reasons set forth above,

Citation No. 8530836 is MODIFIED to reduce the
level of negligence from “moderate” to “no negligence,” and

Citation
No. 8531669 is AFFIRMED , as written.

Respondent,
Prospect Mining and Development Company, Inc., is ORDERED to pay a total
civil penalty of $1,169 within thirty days of the date of this Decision and
Order. [12]

/s/ Thomas P.
McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

C.
Renita Hollins, Office of the Solicitor, U.S. Department of Labor, 211 7th
Avenue North, Suite 420, Nashville, TN 37219

J.D.
Terry, Prospect Mining and Development Company, Inc., 218 Highway 195, Jasper,
AL 35503

/ccc

[1] In this
decision, “Tr. #” refers to the hearing transcript, and “P. Ex. #” refers to
the Petitioner’s exhibits. P. Exs. 1-7 were received into evidence at the
hearing.

[2] The Secretary,
mine operators, and the federal appellate courts have accepted the Mathies test
as authoritative. See Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d
148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform adoption of Mathies
test and parties’ recognition of authority of the test); Mach Mining,
LLC v. Sec’y of Labor , 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies
criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin. ,
52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).

[3] See also
Black Beauty Coal Co. , 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub
nom. Peabody Midwest Mining, LLC v. FMSHRC , 762 F.3d 611 (7 th  Cir. 2014);
Rushton Mining Co. , 11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek ,
811 F.3d at 165-66 (upholding Commission’s rejection of “snapshot” approach to
evaluating S&S for accumulations violation); Mach Mining , 809 F.3d
at 1267-68 (discussing the operative timeframe for violations in the context of
S&S analyses).

[4] I note that
under the clarified Mathies test, the determination of whether a
particular safety hazard is reasonably likely to occur has shifted from the
third step to the second step. The third Mathies step now assumes the
existence of the hazard. Newtown Energy , 38 FMSHRC at 2037; Knox
Creek , 811 F.3d at 161-65.

[5] Per training,
MSHA inspectors do not designate a violation as S&S unless item 10.A on the
citation form is marked “reasonably likely,” “highly likely,” or “occurred,”
and item 10.B is marked “lost workdays or restricted duty,” “permanently
disabling,” or “fatal.” See MSHA, Program
Policy Manual , Vol. I, § 104 (2003).

[6] Dawkins
testified that the continuous miner is eighteen feet wide and thirty or forty
feet long. Tr. 35.

[7] 30 C.F.R. § 75.208
provides that, “ [e]xcept during the installation of roof supports, the end of
permanent roof support shall be posted with a readily visible warning, or a
physical barrier shall be installed to impede travel beyond permanent support.”

[8] Section 75.208
states that “[e]xcept during the installation of roof supports, the end of
permanent roof support shall be posted with a readily visible warning, or a
physical barrier shall be installed to impede travel beyond permanent support.”
While it might be argued that the regulation provides a blanket exception in
the case of roof support installation, I decline to adopt an interpretation of
the regulation that exposes miners to the significant hazard of traveling
underneath unsupported roof.  

[9] Although Allen
issued a citation regarding the allegedly hazardous condition on the scoop
charger, the citation was later vacated after Allen spoke with an MSHA
electrical specialist and determined that the condition was not a violation. Tr.
83-84.

[10]
30 C.F.R.
§ 75.512-2 provides that “[t]he examinations and tests required by § 75.512
shall be made at least weekly. Permissible equipment shall be examined to see
that it is in permissible condition.”

[11]
I note
that under the clarified Mathies test, the determination of whether a
particular safety hazard is reasonably likely to occur has shifted from the
third step to the second step. The third Mathies step now assumes the
existence of the hazard. Newtown Energy , 38 FMSHRC at 2037; Knox
Creek , 811 F.3d at 161-65.

[12] Payment should
be sent to: Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.