Secretary of Labor v. Peabody Southeast Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Peabody after an unplanned roof fall and deteriorating supports affected the tailgate of the Shoal Creek Mine's J-2 longwall. The inspector observed crushed pumpable supports, fractured roof, and a roof fall blocking the tailgate, while examinations, air readings, and installation of additional support still required miners to work or travel in the affected area. Peabody argued that the roof conditions were expected in longwall mining and that its egress and action plans controlled exposure. The Judge found that the roof was not adequately supported or otherwise controlled for the work and travel that remained necessary. He affirmed the significant and substantial citation with moderate negligence and assessed the proposed $2,561 penalty. Seventeen other citations in the docket had been settled before the hearing.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.202(a)
• Outcome: Citation No. 9705670 was affirmed as issued, with a $2,561 penalty.
• Key point: Egress procedures and an action plan do not eliminate a roof-control violation when required examinations and support work still expose miners to deteriorating roof conditions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner,
v.
PEABODY SOUTHEAST MINING, LLC, Respondent. |
|
|
CIVIL PENALTY PROCEEDING
Docket No. SE 2023-0174 A.C. No. 01-02901-569908
Mine: Shoal Creek Mine
|

DECISION
AND ORDER

Appearances:

Thomas J. Motzny, Esq., United States Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219

Arthur M. Wolfson, Esq., Fisher & Phillips LLP, 6 PPG Place, Suite 830, Pittsburgh, Pennsylvania 15222

Before: Judge John Kent Lewis

INTRODUCTION

This
case is before me on a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against Peabody Southeast Mining, LLC (“Respondent”),
pursuant to the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30
U.S.C. § 801, et seq. This docket originally contained 18 citations, 17
of which were settled prior to hearing.1
The single citation at issue,

I held a virtual Hearing on Zoom for Government for the remaining citation on February 25, 2025, during which the parties presented testimony and documentary evidence. Witnesses were sequestered during the hearing. MSHA Inspector John Yarko (“Inspector Yarko”) testified for the Secretary; Longwall Face Boss Daniel Piper (“Piper”) and Safety Supervisor Paul Moore (“Moore”), both of Respondent’s Shoal Creek Mine, testified for Respondent.

After carefully considering the testimony and evidence
presented, as well as the parties’ post-hearing briefs and arguments, I AFFIRM
Citation No. 9705670 as issued and order Respondent to pay the assessed
penalty of $2,561.00.

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

Findings of fact are based on the
record as a whole and my careful observation of the witnesses as they
testified. In resolving any conflicts in testimony, I have considered the
interests of the witnesses or lack thereof, as well as the consistencies and
inconsistencies in each witness’ testimony and between the testimony of the
witnesses. In evaluating the testimony of each witness, I have also relied on
the witness’ demeanor. Any failure to provide detail in this Decision and Order
as to any witness’ testimony does not mean I did not fully consider that
testimony; similarly, any failure to discuss certain evidence does not indicate
that such evidence was not considered. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000).

A. Joint Stipulations

At the Hearing, the parties agreed
to the following stipulations as contained in the Secretary’s Prehearing
Statement dated Feb. 18, 2025:

1. At
   all relevant times, Respondent was the operator of the Shoal Creek Mine, Mine
   Identification No. 01-[02901], within the meaning of the Federal Mine Safety
   and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”),
   specifically § 802(d).[2]

2. At all relevant times, Shoal Creek Mine was a “coal or other mine” within the meaning of the Mine Act, specifically § 802(h).

3. At all relevant times, the products of the Shoal Creek Mine entered commerce, or the operations or products of the Shoal Creek Mine affected commerce, within the meaning of the Mine Act, specifically §§ 802(b) and 803.

4. Respondent
   is subject to the jurisdiction of the Mine Act, 30 U.S.C. § 801 et seq.

5. Citation
   9705670, identified in the Petition for
   Assessment of Civil Penalty, as well as any modifications thereto, were
   properly served by a duly authorized representative of the Secretary of Labor,
   the Mine Safety and Health Administration, upon an agent of the Respondent on
   the date and place stated therein.

6. The
   proposed penalty of $2,561.00 for Citation No. 9705670,
   if paid as prayed for in the Petition for Assessment of Civil Penalty, will not
   affect Respondent’s ability to remain in business.

7. The presiding Administrative Law Judge has the authority to hear this case and issue a decision.

8. Respondent operates Shoal Creek Mine, Mine ID 01-02901.

9. Employees at Respondent’s Shoal Creek Mine worked more than 1.1 million hours in 2022.

Jt. Ex. 1 (bolding, and select capitalization, italics, and section symbols added).

B. Summary of Hearing Testimony[3]

1. Inspector Yarko

a. Direct Examination of Inspector Yarko: Background

Inspector
Yarko, employed by MSHA since October of 2015, Tr. 13:19 – 14:1, is an MSHA
“roof control/ground control specialist.” Tr. 14:3-4.4 In that
role, his duties include reviewing and analyzing roof control plans for
underground coal mines and ground control plans for surface mines, conducting
6-month roof evaluation reviews, and conducting E01, E02, spot and methane
inspections, and accident inspections. Tr. 14:7-17. Before becoming an MSHA
inspector, he worked in the mining industry, Tr. 15:10-12, 18:2-7, serving on a
“belt crew, instructing, advancing, and maintaining” underground conveyor
belts, performing various roof bolting tasks, and eventually becoming a
full-time continuous miner operator. Tr. 15:13 – 16:8.

Inspector
Yarko described the Shoal Creek Mine (“Mine”), which he had inspected numerous times,
as a room & pillar longwall mine. Tr. 18:10 – 19:3. The Mine operated a
longwall identified as “the J-2,”6
which had a headgate serving as the main entrance through which the crew
entered, and a tailgate serving as an airflow return and as an additional
escape route from the longwall face. Tr. 19:16-21, 20:17-18. The height of the
Mine roof varied but was on average 8 to 9 feet high. Tr. 20:8-11.

Inspector
Yarko conducted an E08 noninjury accident inspection at the Mine on Dec. 13,
2022, under Event No. 6920805 for the “possibility of a roof fall on the J-2
longwall,” Tr. 20:15-18, and he identified Sec. Ex. 4 as his inspection notes
from that day. Tr. 20:19 – 21:12; 23:11-15; Sec. Ex. 4. He returned the next
day, Dec. 14, 2022, and upon arrival, issued two citations (Citation No.
9705669 and the contested citation, Citation No. 9705670) under
Event No. 9620805. Tr. 21:17-21; 34:11-19; Sec. Ex. 2. He then
conducted an E01 inspection under a new event number (Event No. 6916737). Tr.
22:3-22; Sec. Ex. 2. Inspector Yarko identified Sec. Ex. 2 as his inspection
notes from Dec. 14, 2022, Tr. 23:11-15,7
and explained the difference in coding contained thereon: “the E08 [on Dec. 13,
2022] was due to issuance of the roof fall on the tailgate [of the J-2
longwall], and then I switched over to an E01 [on Dec. 14, 2022] to conduct
normal inspections for the E01 event . . . open at the mine for that quarter.”
Tr. 22:18-22. Thus, he issued

b. Direct Examination of Inspector Yarko: E08 Inspection

On Dec. 13,
2022, Inspector Yarko arrived at the Mine at 7:45 AM and informed Moore he
would conduct an E08 inspection. Tr. 24:1-4, 33:5-7. Inspector Yarko travelled
with Moore and a miners’ representative on the J-1 gate road, which was also tailgate
Entry No.1 for the J-2 longwall. Tr. 24:5-12. Inspector Yarko issued Order No.
9705667 under Section 103(k) of the Mine Act for the roof fall he observed on
the J-1 gate road/J-2 tailgate at Entry No. 1, Crosscut 41 to 42 ½. Tr. at
25:2-14, 17-18; Sec. Ex. 4, at 14; Sec. Ex. 3.8 That order provided:

An unplanned roof fall has occurred at this mine in the J-1 gate road Entry #1, Crosscut #41-42.5 and the J-2 Longwall Section MMU 017. This area is at the active J-2 longwall tailgate and face where coal is being extracted. This order is being issued, under Section 103(k) [of the Mine Act], to assure the safety of all persons at this operation. This order is also being issued to prevent the destruction of evidence which would assist in investigating the cause or causes of the accident. It prohibits all activity in the affected area, until MSHA has determined that it is safe to resume normal operations. The order applies to all persons engaged in the recovery operation. The operator is required to submit and receive approval for an action plan to restore the area.

Sec. Ex. 3 (hereinafter the “103(k) Order”).

After issuing the 103(k) Order, Inspector Yarko travelled to the headgate of the J-2 and walked the estimated 1000-foot length of the J-2 longwall face from the headgate to the tailgate, taking air readings along the way. Tr. 26:9-17. He also examined the roof fall he had just observed on the J-1 gate road/J-2 tailgate from the perspective of the J-2 longwall face, noting fall that extended along the face. Tr. 27:1-10; Sec. Ex. 4, at 21. He testified that, looking toward the tailgate from the J-2 longwall face, he could “see material that ha[d] fallen towards the face area of the shields.” Tr. 28:14-20. In his inspection notes, he drew a diagram depicting the fall he observed extending from Shield 176 (i.e., the shield immediately adjacent to the tailgate) to Shield 166 along the face and made a handwritten note indicating “[f]all of face from T.G. [tailgate] to Sheild 145.” Tr. 27:4-6, 29:5-10, Sec. Ex. 4, at 21.

Inspector
Yarko returned to the surface and inspected the J-2 On-Shift Examination record
book. Tr. 29:13 – 30:8; Sec. Ex. 11 (On-Shift Examiner’s Reports, dated Dec. 7,
2022 – Dec. 14, 2022). He issued Citation No. 9705668 because those records did
“not show a hazardous condition record for the section tailgate egress plan.”
Tr. 30:16 – 31:2 (further explaining “the record book showed that the
[tailgate] section is [on] egress, but there is no hazardous condition in the
records [identifying] the reason . . . why” the tailgate section was on
egress); see also Sec. Ex. 4, at 23-28(1).[9]

Inspector
Yarko then reviewed the Action Plan which the Mine had submitted to correct the
hazard identified by the 103(k) Order and modified the 103(k) Order to allow
implementation of the Action Plan which aimed to provide “[a]dditional support
of the roof.” Tr. 31:18 – 32:15, Sec. Ex. 4, at 28(2); Sec. Ex. 7 (Cover Letter
and Action Plan J1 E1 XC 41-42.5, dated Dec. 13, 2022).10 The
Action Plan, which contained a 1-page textual description and a 1-page map of
the pertinent area, had two phases:

Phase 1

1. Props and/or timbers (8’’ x 8’’ or 6’’ by 6”) will be installed as shown on the attached map working from outby and supporting the way inby.

2. Pre-shift examinations of the J-1 #1 Entry, approximately two (2) crosscuts outby the longwall face, will be required until a t-split examination can be made from the J-2 Longwall face.

3. Once the twelve (12) – 8” x 8” or twenty-four (24) – 6” x 6” props and/or timbers have been installed, checked by MSHA, and a pre-shift examination performed in the J-1 #1 Entry, production may resume on the J-2 Longwall.

Phase 2

1. Pumpable cribs will be installed as shown on the attached map to a minimum of XC 41.

2. Additional supports will be installed in the intersection of XC 41 as shown on the attached map.

3. Once the t-split examinations can be made from the J-2 Longwall face normal operations will resume.

Sec. Ex. 7, at 2.11
The Action Plan’s 1-page map depicted both existing and proposed additional
pumpable cribs (with already compromised pumpable cribs marked by an X), as
well as existing and proposed props or timbers (with already compromised props
marked by an X). Sec. Ex. 7, at 3. All of the supports (existing, compromised,
and proposed) were clustered in the area of Entry No. 1, Crosscut 42 to 42½
with existing and proposed pumpable cribs also shown extending outby to
Crosscut 41 and beyond.

After concluding the E08 inspection, Inspector Yarko held a post-inspection conference with Moore and the miner’s representative, informing them of the 103(k) Order and the two citations he had issued that day. Tr. 32:18 – 33:1; Sec. Ex. 4, at 29. He also gathered comments, including Moore’s comment that Moore did “not agree with this 103(k) Order referring to the roof fall” and “didn’t agree that it [i.e., the condition prompting the order] was a roof fall.” Tr. 33:14-20, Sec. Ex. 4, at 29.

c. Direct Examination of Inspector Yarko: Two Additional Citations Issued, Plus the Switch to E01

Inspector
Yarko returned to the Mine the next day (i.e., Dec. 14, 2022), and upon
arrival, issued two citations under the Event Number associated with the prior
day’s E08 inspection: Citation No. 9705670 under 30 C.F.R. § 75.202(a)
and Citation No. 9705669 under 30 C.F.R. § 50.10(d) for the Mine’s failure
to contact MSHA within 15 minutes of the unplanned roof fall.12 Tr.
34:1-19; Sec. Ex. 2, first set, 2-13.

The roof, face, and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face, or ribs and coal or rock bursts. A roof fall is present at the J-2 Longwall Section MMU 017 and J-1 gate road Entry #1, Crosscut # 42½. The section has the[ir] egress plan active and an action plan is in place.

Standard 75.202(a) was cited 79 times in two years at mine 0102901 (79 to the operator, 0 to a contractor).

Sec. Ex. 1; Tr.
40:8-14.13
In his inspection notes for Dec. 14, 2022, first set, documenting the issuance
of

Inspector
Yarko’s Page 9 drawing contained circles representing “pumpable cans or cribs”
(also known as “J-cans”) which he explained provided “additional roof supports
for the tailgate.” Tr. 36:5-10; 36:13-18 (further describing a pumpable can as
“like a nylon film bag” extended “from the floor to the roof” and filled “with
a pumpable material . . . to make it solid for the roof support.”), Sec. Ex. 12
(four photos of pumpable cans); Tr. 36:19 – 37:6 (identifying the photos).14
Referring to his Page 9 drawing, Inspector Yarko testified:

four [pumpable] cans near the
[roof] fall were crushed out or beginning to fail. They were starting to
fail and being crushed by the weight of the fall, along with it appears to be
one crushed and split eight-by-eight prop or wooden timber [depicted on the
drawing by “the box with an X in it.”]

Tr. 37:20 – 38:4 (emphasis
added), 38:5-8. While he agreed it would be typical to use pumpable cans in the
tailgate, Tr. 38:9-12, Inspector Yarko explained that the crushing of a pumpable
can indicated “failure of the roof[.]” Tr. 39:11-14. See also Tr.
39:15-21 (“the cans are showing failure due to the stress of the roof falling .
. . they’re not holding up the roof as intended.”) Inby the crushed cans,
Inspector Yarko observed “a failure of the roof and [a] blocking [of] the
tailgate.” Tr. 42:20-21. See also Tr. 43:2-5 (testifying he observed
“[f]ractures in lamination in the roof allowing separation. And the roof
support not holding and maintaining the roof. There’s failures in the roof.”)

d. Direct Examination of
Inspector Yarko: Citation No. 9705670

Inspector
Yarko issued Citation No. 9705670 under Section 75.202(a) “[d]ue to the
cans that are set in place to protect the roof from falling, the failure of
those and blocking the tailgate from egress.” Tr. 41:4-16 (emphasis
added). He designated the gravity as “reasonably likely” because he deemed it
“reasonably likely that the roof failure[,] . . . if persons were back there
conducting normal work such as air readings or examinations, that an accident
were to occur . . . of falling material from the roof.” Tr. 41:17 – 42:14; Sec.
Ex. 1. He designated the injury as “lost workdays or restricted duty” because
he anticipated injuries from a roof fall to be “[a]t the minimum, lost workday,
restricted duty due to falling material” and “bumps, bruises, scrapes, broken
bones, if not . . . permanent or fatal injuries.” Tr. 42:9-14. He designated
the violation as “significant and substantial” based on:

the reasonable likelihood of the injury – persons are back there working and conducting examinations, air readings, proper installing of additional supports, whatever normal mining conditions or what operator tasks would have been – that it was reasonably likely that lost workdays, at a minimum, were to occur from the failure of the roof and falling material.

Tr. 43:6-18; Sec. Ex.

1. He designated the negligence as “moderate” because “the operator did at the
   time comply with the roof control plan by setting and installing cans along
   with the original roof support[,] a primary support for roof bolts. . . . It
   was supported before the failure happened per plan.” Tr. 43:19 – 44:9, Sec. Ex.
   1 (Citation No. 9705670 providing “The section has th[eir] egress plan
   active and an action plan is in place.”)

Inspector
Yarko designated the number of persons affected as 07 and testified the number
would include “persons on the longwall . . . the shearer operators, shield
pullers, additional labor, cleaning, maintenance, foreman, and also . . .
whoever the operator designates to conduct the air reading on the tailgate side
and examine.” Tr. 44:10-20; Sec. Ex. 1. He explained a miner could be in that
area of tailgate Entry No. 1 to conduct a weekly examination “due to it being a
return air course” and because “you would have to conduct a T-split air reading
off of the longwall as part of an air reading for pre-shift/on shift.” Tr.
45:1-7. He described a T-split reading as an “air reading in the tailgate to
ensure that the air coming from the longwall goes back into the bleeder and
also goes back into Entry [No.] 2 to provide air sweeping into the bleeder,”
Tr. 45:16-19, and said such an air reading would need to be taken “[t]ypically
once or twice a shift, depending on how pre-shifts are set up, or as needed,
due to ventilation changes or just to double-check” for “low air anywhere else
along the longwall.” Tr. 45:20 – 46:4, 4-6 (“Minimum two . . . It just varies
per situation.”). See also Sec. Ex. 7, at 2 (Phase 1, No. 2, referring
to “Pre-shift examinations of the J-1 #1 Entry”).

The
termination date for Citation No. 9705670 was identified as Dec.14,
2022, 0900, i.e., the same day as issuance. Sec. Ex. 1.

e. Direct Examination of Inspector Yarko: Egress

Tailgate Entry No. 1 of the J-2 longwall was on egress on Dec. 13 and Dec. 14, 2022, when Inspector Yarko conducted his inspections. He described “egress” as a term used in roof control plans which “typically means that the passage of escape is blocked and unsafe through the tailgate” such that miners can “only leave the longwall area face through the headgate.” Tr. 47:1-5. He identified Sec. Ex. 10 as the Mine’s approved Roof Control Plan, and Section 9.7 therein as related to “egress.” Tr. 48:5-15. That section provided:

9.7 Longwall
Egress Procedures

1. When a ground failure prevents travel out of the tailgate side of the section, miners will be:

a) Notified that the tailgate is blocked and the egress plan will remain in effect until the tailgate is cleared.

b) Re-instructed in escapeway and escape procedures.

c) Re-instructed in the use and availability of self-contained self-rescuer devices (SCSR), located along the face, at the tailgate and headgate areas.

d) Re-instructed in the use of the two-way communication systems located along the panline from the headgate to the tailgate drive and from the headgate to the communication office on the surface.

e) Nobody will be down wind of the shearer while it is cutting.

f) A mantrip or other means of mechanical transportation will be provided at the long wall section.

g) Additionally, the air entering the longwall section will be monitored and evaluated. A supervisor or a qualified person designated by the supervisor will monitor the air entering the longwall section with a hand held CO detector or monitored with low level CO sensors spaced every 1,000 feet.

Sec. Ex. 10, at 15. Inspector Yarko
testified that when the tailgate was on egress, air readings of the T-split
would still need to be taken to ensure “proper air flow and directional air
flow.” Tr. 49:12-17. He did not know how long the tailgate had been on egress
but recalled issuing a citation in October 2022 “due to loose roof bolts not
secured to the roof on the tailgate.” Tr. 50:7-12. See also Tr. 50:13-17
(“[T]hey did not have anything in their exam books about being on the egress,
so I issued a citation on that, putting them on egress due to the loose roof
bolts being over the tailgate, not supporting or controlling the roof in that
aspect.”) Asked how a mine could exit egress, Inspector Yarko testified:

. . . typically, in longwall, you would advance forward and continue mining while monitoring that tailgate, or I suppose on a long term, you could rehabilitate the area and clean it up and rebolt it and go through that extensive process. But typically, you would just mine through that area to get the fall behind you and the gob behind the shield line.

Tr. 51:3-13.

f. Direct Examination of Inspector Yarko: Post-Citation Events

As
documented in Inspector Yarko’s inspection notes, Citation No. 9705670
was terminated on Dec. 14, 2022, at 9:20 a.m. because the Mine had “completed
phase 1 of the action plan submitted on 12-13-2022 to support the roof fall at
the J-2 Longwall Section MMU 017 and J-1 gateroad, Ent. 1 XC 42.” Sec. Ex. 2,
second set, at 4.

Inspector
Yarko returned to the area of Entry No. 1, Crosscuts 41-42 ½ numerous times
after issuing Citation No. 9705670. Tr. 52:9-12.15 At the
Hearing, he testified using a map of area upon which he had made additional
handwritten notes during inspections conducted on Jan. 6 and Jan. 30,
2023. Sec. Ex. 14 (diagram bearing handwritten dates Jan. 6, 2023 & Jan.
30, 2023, labelled “J-1 E1 XC 41-42.5 Additional Floor to Roof Supports”).
Using that map, he testified that the roof had subsequently fallen on tailgate
Entry No. 2 as well as along the Crosscuts between tailgate Entries Nos. 1 and
2.

Inspector Yarko testified that Sec. Ex. 9 (Action Plan Update, dated Feb. 3, 2023), consisting of a transmittal letter from Respondent to MSHA, a 1-page “Action Plan Update” and a 1-page map labelled “J-1 E1 XC 41-42.5 Additional Floor to Roof Supports,” contained an Update to the original Action Plan that had been submitted on Dec. 13, 2022, in response to the 103(k) Order. Tr. 59:20 – 60:1. He read from the “Action Plan Update” proposed by the Mine:

1. A Physical Barrier will be installed in the J-1 #1 Entry as close as practicable to the outby corner of the Crosscut 42 intersection.

2. Pre-shift and on-shift examinations of the J-1 #1 Entry, with records of these examinations recorded in a book on the surface, will be made to the Physical Barrier outby the Crosscut 42 intersection and approximately two (2) crosscuts outby the longwall face, until a t-split examination can be made from the J-2 Longwall face.

Sec. Ex. 9, at 2; Tr.
60:9-20.18
Inspector Yarko explained that the proposed physical barrier would be the
“evaluation point,” Tr. 60:21, and confirmed the Action Plan Update dated Feb.
3, 2023, related to conditions he had observed during his inspections on

g. Cross-Examination of Inspector Yarko

On cross-examination, Inspector
Yarko confirmed he had never worked at a longwall mine prior to becoming an
MSHA inspector. Tr. 67:17-19. He also confirmed that an out-of-district
inspector with the initials “RT” inspected the Mine on Dec. 11, 2022 (i.e., two
days before Inspector Yarko’s E08 inspection) and had produced typewritten
inspection notes. Tr. 69:1 – 70:12, R-I.19 Inspector Yarko
acknowledged that these inspection notes stated “Reviewed pre shift J2 longwall
NVO,” and defined “NVO” as “No violations observed.” Tr. 71:14-22. He also
agreed these notes stated: “Traveled the face of the longwall to the tailgate.
The tail gate has been under egress since October 25

The Mine had previously operated a longwall known as “the J-1,” but Inspector Yarko had never seen it operate. Tr. 73:9 –74:1. He acknowledged the Mine’s two longwalls must have operated simultaneously at some point because he knew the Mine’s Roof Control Plan dictated “a distance they had to stay apart;” he also knew the J-1 had “finished up.” Tr. 74:2 – 75:5.

Inspector Yarko agreed the tailgate is not part of the longwall face, at least “not until the longwall shearer cuts through the block of coal into the tailgate,” and that the T-split is not on the longwall face. Tr. 75:6-19. He also confirmed that upon reviewing the Pre-Shift Examinations from the J-2 longwall on Dec. 13, 2022, he issued a citation because those exams “didn’t list a hazardous condition in the record book for the egress.” Tr. 75:20 – 77:11.

Vis-à-vis the drawing Inspector Yarko had made in his inspection notes from Dec. 13, 2022, depicting fall on the shields, Sec. Ex. 4 at 21, he testified shields do provide “roof support for the longwall due to the longwall doesn’t put up roof bolts or primary supports like a continuous miner section.” Tr. 78:3-21. He also agreed that shields provide roof support for miners “from the shield to the pan line or to the shearer” as they work and walk along the face provided there are no gaps and the shields are not off-angle. Tr. 79:1-10. He agreed there are no roof bolts in the roof of a longwall face and that the expectation in longwall mining is that the roof will fall “behind the shields.” Tr. 79:11-21 (twice stressing that the expectation is for roof to fall “behind the shields.”)

Inspector
Yarko confirmed he had performed other accident investigations in his career
and agreed 30 C.F.R. § 50.2 defines “accident” and includes a provision
pertinent to roof falls. Tr. 80:4-11.20
He acknowledged “anchorage zone” refers to roof bolts (“that’s a part of this,
yes”), but also refers to other criteria for a roof fall including “impairs
ventilation” or “impedes travel [passage].” Tr. at 80:15 – 81:3. Inspector
Yarko also agreed that egress made it so that miners could not get off the face
of the J-2 longwall into the tailgate and that MSHA had approved a Roof Control
Plan for the Mine containing an egress provision to account for times when the
tailgate was impassable. Tr. 81:4-21; Sec. Ex. 10 (containing § 9.7 (Longwall
Egress Procedures)).

Inspector Yarko acknowledged he had written by the drawing contained on page 21 of his inspection notes from Dec. 13, 2022: “Fall of face from T.G. [tailgate] to Shield #145. Roof/face [is] glued from approximately Sheild 120 to T.G. (#176)” and explained that “glued” meant the Mine had “put an adhesive compound into the roof . . . to bond the roof together; to glue it, essentially.” Tr. 82:11-19; Sec Ex. 4, at 21. He agreed gluing would be a relatively common occurrence in longwall mining “if you have failures of the roof” or “for preventative measures,” Tr. 82:20 – 83:6, and testified the time required to glue “[d]epends on the surface area of the roof you’re trying to glue and how big the voids are and how wide it is.” Tr. 83:11-15.

Inspector Yarko agreed pumpable cans may be placed in an area adjacent to where longwall mining is occurring because such cans are “designed to help hold the roof up,” including when it is giving way. Tr. 84:6-20 (clarifying “I suppose you could say that, yes” vis-à-vis Respondent counsel’s use of the phrase “giving way”).

Inspector
Yarko reiterated that he did not know what the conditions were to activate egress
because such was not identified in the Mine’s examination book. Tr. 85:11-13. He
also acknowledged designating negligence on Citation No. 9705670 as
moderate because he considered egress to be a mitigating circumstance
and identified it as such in his inspection notes. Tr. 85:1 – 86:5; Sec. Ex. 4,
first set, at 13; see also Sec. Ex. 1.

Inspector
Yarko terminated Citation No. 9705670 soon after issuing it on Dec. 14,
2022, at 9:20 AM, acknowledging the termination in his inspection notes. Tr.
87:1-11; R-J(3), at 4; see also Sec. Ex. 2, first set, at 1, 4 (“Action
taken: The operator has completed phase 1 of the [A]ction [P]lan submitted on
12-13-2022 to support the roof fall at the J-2 Longwall Section MMU 017and J-I
gate road, Ent. 1, XC 42”).

Finally, Inspector Yarko confirmed that, during his inspection on Dec. 13, 2022, after inspecting tailgate Entry No. 1, he exited the tailgate, entered and went up the headgate, entered the J-2 longwall face from the headgate and walked the length of the face. Tr. at 87:20 – 88:5. He could not “get to the tailgate itself” from the face because “it was blocked.” Tr. 88:6-10.

h. Redirect, Recross, and Further Redirect of Inspector Yarko

Inspector
Yarko confirmed on redirect examination that he returned to the area underlying
Citation No. 9705670 to conduct inspections on Jan. 6 and Jan. 30, 2023,
and knew that, in the interim, the J-2 longwall face had advanced not at all or
“very little.” Tr. 89:8-13; Sec. Ex. 14. He assumed the failure to advance was
“due to the failure of the roof,” Tr. 89:14-21, and testified it was unusual
for a longwall not to advance. Tr. 90:3-8. He explained a mine would want to
keep a longwall moving “[s]o the failure of the roof remains behind the shields
as it’s intended to in any longwall mine” and opined that leaving a longwall
idle creates risk because “you’re allowing the roof to continue to be unstable
and fall where the shields and the miners are working[.]” Tr. 90:10 – 91:2.
Asked if a roof fall would impact surrounding roof, he testified that when roof
falls are occurring in adjacent areas, the roof “typically deteriorates due to
the pressures.” Tr. 91:5 – 92:11.21
Inspector Yarko also explained that had normal mining been occurring, the Mine
could have lifted egress by “getting through the area that [triggered] egress . . .
and having that [area] back behind the shields, by continuing to mine, [by]
hopefully getting away from that bad area[,] getting in front of it. Opening up
that tailgate to support the roof, [and provide] safe access.” Tr. 92:20 –
91:3. Asked to examine Sec. Ex. 11 (On-Shift Examiner’s Reports from Dec. 7-14,
2022), Inspector Yarko testified he understood “TG under egress” and “mining
through” to mean the Mine was “trying to mine through that fall area. . . .
trying to advance the longwall.” Tr. 93:20 – 94:8.

On
recross examination, Inspector Yarko acknowledged Citation No. 9705670 was
terminated “[d]ue to Phase 1 [of the initial Action Plan] being implemented”
weeks before he conducted subsequent inspections on Jan. 6, 2023, and Jan. 30,
2023, and added callouts and notes to the map contained in Sec. Ex. 14. Tr.
94:20 – 95:8, 96:2-5. He also acknowledged Citation No. 9705670 referred
to Entry No. 1, Crosscut 42½ (as opposed to Entry No. 2, Crosscut 41, see
supra n. 21, about which he had testified on direct examination). Tr.
95:9 – 96:1.

On
further redirect examination, Inspector Yarko testified that during inspections
on Jan. 6, 2023, and Jan. 30, 2023, the Mine was still having an issue
with control of the roof in the area underlying Citation No. 9705670.
Tr. 100:12-16.

2. Longwall Face Boss Piper

a. Direct Examination of Piper

Piper,
who holds Alabama Mine Foreman papers and has worked in the mining industry for
16 years, was responsible at the Mine for “mining operations on the longwall[,]
taking ventilation readings and preshifting.” Tr. 107:17 – 108:2, 10-14. At the
time of the hearing, he had held the Longwall Face Boss position for 3 years,
including in December 2022. Tr. 108:3-9.[22]

Piper described the Mine’s longwall as a “thousand-foot coal block” mined by working outby which he characterized as “modern-day retreat mining.” Tr. 108:20 – 109:1. He explained a longwall is developed by having “two miner sections” (i.e., a headgate and a tailgate) that “drive units” with “the thousand foot coal block between them.” Tr. 109:2-11. Using R-E(1), he identified the J-2 longwall as having three headgate entries (depicted at the top) and three tailgate entries (depicted at the bottom), with tailgate Entry No. 1 located closest to the J-2 longwall face. Tr. 109:12 – 110:11. Piper labelled the mined-out area as “gob . . . behind the shield line,” Tr. 110:15-22, and testified that as a longwall advances “the roof and the gob come down behind . . . to keep ventilation on the face.” Tr. 111:21 – 112:2. He also testified that headgate Entry No. 3 and tailgate Entry No. 1 “will come down as well, as you mine the coal block out.” Tr. 112:8-15.

Asked if there are any particular measures for roof support taken in the entries that border a longwall, Piper testified “[t]he only time that you would have any extra measures is if your top comes past the shield line, and then you would go under what would be an egress plan.” Tr. 112:18 – 113:2. Asked if there are measures for roof support placed in the tailgate entry as a longwall is being developed, Piper identified the roof control plan, bolting pattern, and “added support which is pumpable cribs.” Tr. 113:3-9. He described a pumpable crib as “a round cylinder, concrete filled,” placed “on ten-foot centers, double rope,” Tr. 113:11-13, and testified they are made special for entries bordering a longwall and are designed to have a weight rating, meaning they are “supposed to help keep the weight distributed out from in front of you,” allowing “the area to support more loaded weight.” Tr. 113:14 – 114:3.

Piper testified the
Mine was operating two longwalls (the J-1 and the J-2) in the fall of 2022, situated
such that the J-1 headgate entries served as the J-2 tailgate entries. Tr.
114:4 – 116:2; R-E(1).23
He testified an egress plan is activated if conditions stop travel out of the
tailgate entry and characterized such conditions as common in longwall mining
because “your weight can shift, and your geological top conditions can actually
. . . outrun your shield line.” Tr. 116:5-17. He explained egress would be
implemented by a pre-shift examiner or face boss making a report which
identified the tailgate as on egress, thereby triggering added measures,
including notification to the crew, provision of an emergency ride, and
additional CO readings. Tr. 117:2-8; 118:4-12.

Piper testified that, during a pre-shift exam, air readings measuring the “velocity of air coming down the face” would be taken at the headgate, midface and tailgate, and the “work area from the headgate to the tailgate” would be examined. Tr. 118:15 – 119:9. He explained “[y]our normal area for an air reading at the tailgate is not more than a hundred foot from the last shield and not less than 50 foot from the last shield” as per the Mine’s ventilation plan. Tr. 119:10-22. Piper testified that because these air readings would be taken on the face, there is no reason to go into the tailgate for purposes of the pre-shift exam under normal conditions; thus, when the tailgate is on egress, the required pre-shift exam readings can still be taken. Tr. 120:9-19.

Piper testified tailgate Entry No. 1 was put on egress on Oct. 25, 2022, second shift, according to R-A(1), and was never taken off. Tr. 121:1 – 122:22. He identified R-E(2) (XC 42 – 42 ½ diagram) as depicting the “top [having] come down into the tailgate entry,” and identified such as the condition which triggered egress. Tr. 123:13 – 124:3. He further testified R-E(2) depicted the J-2 longwall face situated at “Crosscut 42 and a half, 42 and a quarter,” and explained the face never made it past Crosscut 42 on its way outby. Tr. 124:4 – 125:1.

Piper testified that once both longwalls were no longer mining, examinations of tailgate Entry No. 1 were performed weekly by an examiner travelling tailgate Entry No. 1 to Crosscut 42 where a date board sat in the intersection of Entry No. 1 and Crosscut 42. Tr. 125:2-18. The examiner, who recorded his presence on the date board, was not required to travel further inby. Tr. 125:19 – 126:3. Piper testified that when the J-2 longwall was on egress no one from the longwall crew would be in the tailgate Entry No. 1 because “[i]t’s under egress. You’re unable to make it there.” Tr. 126:4-10.

Piper, who worked on the J-2
longwall in the days before Inspector Yarko issued the 103(k) Order on Dec. 13,
2022, testified roof conditions had not changed in the time leading up to the
order. Tr. 126:11-20. Examining production reports contained in R-G for Dec. 12,
2022, and Dec. 13, 2022 (owl and day shifts), Piper testified the tailgate end
of the J-2 longwall face had not advanced. Tr. 127:12 – 130:8; R-G.[24]

b. Cross-examination of Piper

On
cross-examination, Piper testified the J-2 longwall did not stop producing
coal, although it did encounter a “delay” or a “slow down” due to
“geological conditions that hindered [the Mine] from producing.” Tr. 132:19 –
133:6, 134:2-6. He further testified such conditions were encountered in
October 2022 and never resolved, although the Mine tried “to mine through”
them. Tr. 133:7 – 134:1, 18-19; see also Tr. at 134:20 – 135:3 (Piper
testifying the condition had not been mined through and normal production on
the J-2 never resumed).

Asked to identify what initially placed tailgate Entry No. 1 on egress, Piper testified “[t]he top conditions at the tailgate,” which he described as “[t]he top came down past your shield line, making it where you’re unable to make it into the tailgate entry.” Tr. 135:7-14. Piper opined such an occurrence was not unusual in longwall mining and that it was not generally unusual for such conditions to prevent resumption of production. Tr. 135:15-21. He also testified that, in his 16-year career, what happened on the J-2 longwall was the only time he had ever witnessed such conditions causing production to cease and never resume. Tr. 135:22 – 136:19.

Piper identified pre-shift examiner
Gary Miles as having placed tailgate Entry No.1 on egress in October 2022. Tr.
136:20 – 137:5. Asked to identify the longest time he had ever seen a longwall
section on egress, Piper identified the Mine’s J-2 and testified that,
typically, egress lasts “[a] couple shifts.” Tr. 137:13-21. Asked to examine
Sec. Ex. 11 (On-Shift Examiner’s Reports from Dec. 7 – 14, 2022), which reports
he had signed, Piper acknowledged “HS” (for Violation of Mandatory Health and
Safety Standard) was checked next to “TG under Egress” and testified he should
have checked “HC” (for Hazardous Condition) instead. Tr. 138:3 – 140:7.25
Asked to identify what the hazardous condition would have been, Piper stated,
“Your tailgate is under egress” and explained “[o]n a longwall . . . if your
tailgate is blocked, there’s only one way in and one way out” (i.e., through
the headgate). Tr. 140:8-22.

Presented with R-E(1), Piper agreed tailgate Entry No. 1 served as a return air course, Tr. 141:18 – 142:5, and testified a return air course must be examined weekly in its entirety. Tr. 142:6-11. He explained that, assuming no issue with roof control on the longwall face, a weekly examiner would travel up tailgate Entry No. 1 to Crosscut 42, stopping before the face line which was halted at approximately Crosscut 42½. Tr. 142:12 – 143:10 (“They would travel to 42 because your face line being at 42 and a half, you wouldn’t – you’re not going to continue on into the gob.”). He identified the distance between Crosscut 42 and 42½ as “less than a hundred foot.” Tr. 143:19-22.

Piper testified that when Citation
No. 9705670 was issued, the tailgate was inaccessible from the J-2 longwall
face, and that methane readings of the tailgate were taken from the last shield
(i.e., Sheild 176). Tr. 144:9 – 145:3. He testified that if miners were travelling
to the area between Crosscuts 41 and 42 to install additional supports, that area
would need to be pre-shifted or on-shifted, Tr. 145:4-16, and said he knew of
the Action Plan developed in response to the 103(k) Order, but not what it
required. Tr. 145:17 – 146:3. Piper had been involved in implementing the
Action Plan, explaining at Crosscut “41, travelling outby [to Crosscuts 40, 39,
38], we set two timbers against every stopping.” Tr. 146:6-17.

Asked to identify conditions in
tailgate Entry No. 2, Piper testified: “You had your T-split at [Crosscut] 42,
and Entry [No.] 2 is the area not traveled from that point on[,]” meaning from
“42 inby.” Tr. 149:10-16. Piper did not recall roof conditions in Entry No. 2,
Crosscut 42 outby. Tr. 149:17-19.26
He agreed it would be important to keep the roof stable in tailgate Entry No. 1
so it could function as a return air course. Tr. 149:21 – 150:2.

c. Redirect and Recross of Piper

On redirect examination, Piper testified he did not believe placing the tailgate on egress constituted a violation of any kind, egress had been implemented consistent with the approved Roof Control Plan, and he had helped set timbers in tailgate Entry No. 1 in response to the 103(k) Order. Tr. 150:12 – 151:1. He identified the T-split as located at Entry No. 1, Crosscut 42, and described the T-split as “a point that your air leaves the face,” explaining “in this situation, your return air split [with] [s]ome of it [going to Entry No.] 2 and the rest of it travel[ling] outby.” Tr. 151:2-10. According to Piper, a person taking a weekly air course reading would not need to go inby the T-split, and that was why a date board had been placed at the intersection of Entry No. 1 and Crosscut 42. Tr. 151:11-16.

On recross examination, and referring to R-E(1), Piper confirmed the T-split was located at the intersection of Entry No. 1 and Crosscut 42, explaining the “T-split would be an open crosscut where . . . [t]he stopping was knocked out.” Tr. 152:10 – 153:8; 153:11-17 (confirming that, as shown on R-E(1), Crosscuts 41, 40, 39 and 38 had stoppings depicted by a dark bar parallel to Entry No. 1). Piper testified the T-split, under the Mine’s ventilation plan, was examined weekly and that such was the same as the weekly air course reading. Tr. 154:11-21.

3. Safety Supervisor Moore

a. Direct Examination of Moore

Moore, with
18½ years of experience in the mining industry, serves as the Mine’s Safety
Supervisor and, in that role, he escorts MSHA inspectors on Mine property, and assists
with training, the work force, “tasks” and “whatever comes up.” Tr. 156:15 –
157:7. Moore accompanied MSHA Inspector Tom Tulinowski at the Mine on an
inspection conducted on Sunday, Dec. 11, 2022.27 Tr. 157:8-20; 163:7-9.
Specifically, he accompanied Inspector Tulinowski to investigate a complaint on
the J-2 longwall face, and they were able to reach the tail drive on the face,

Moore took
his own notes during Inspector Tulinowski’s inspection, identified as R-F,29
and explained that “Phone In: Bad top at L/W T/G” in his notes meant there had
been a “phone in complaint on the E04, bad top on the longwall and the
tailgate, and bad top at the tailgate.” Tr. 160:11-22; R-F. Moore
confirmed Inspector Tulinowski had found that complaint to be negative, Tr.
161:1-4, and further identified R-I as describing inspection activity
consistent with what Moore also recalled and recorded. Tr. 162:2 – 163:1;

Two days later, on Dec. 13, 2022, Moore accompanied Inspector Yarko on his E08 inspection, during which they travelled down tailgate Entry No. 1, investigated “that area,” exited the tailgate, and then travelled to and down the J-2 longwall face. Tr. 163:10-22. Moore testified he and Inspector Yarko travelled tailgate Entry No. 1 to “[r]ight in about 42 crosscut,” and observed the pumpable cribs placed in that area. Tr. 164:1-10. Asked to identify the condition of those pumpable cribs, Moore testified: “Some cribs were taking weight, as they’re designed to do. Some of the ones back towards the tailgate where the weight had shifted were starting to yield . . . They’ll mushroom out and let you know they are taking weight.” Tr. 164:11-20. Asked if the pumpable cribs were still providing support, Moore testified: “Somewhat, yes.” Tr. 164:21-22. He identified the pumpable cribs that had mushroomed as located “right inby [the] 42 area . . . [r]ight at the 42 crosscut area,” Tr. 165:1-8, identified a distance of about 15 feet between Crosscut 42 and the halted J-2 longwall face, and said the “gob pile” was located another 5 feet beyond that. Tr. 165:9-16. Moore testified no one would ever go to where the gob pile was because “[t]hat’s where we were mining through.” Tr. 165:17-20.

After leaving tailgate Entry No. 1 and entering the J-2 longwall face from the headgate, Moore and Inspector Yarko walked the length of the face, stopping at the “tail drive area” because they could not access the tailgate. Tr. 165:21 – 166:8. Moore testified conditions had not changed as between his journey to that same area on the face on Dec. 11, 2022, with Inspector Tulinowski, and with Inspector Yarko two days later. Tr. 166:12-16. Moore testified he had expressed his disagreement with the 103(k) Order issued on Dec. 13, 2022, telling Inspector Yarko:

we were following our [roof control] plan that was approved. Under our egress, whenever our tailgate gets a disturbance blocked, we mine through it. And we were following our plan. And I did not agree that a fall had occurred at all . . . [b]ecause it’s normal mining practice. It falls in the sequence of mining. Whenever the weight transfer stops, it all catches with you. You have to continuously mine.

Tr. 167:3-14; 15-17 (Q:
“An[d] is that what you were observing in the . . . Entry No. 1 tailgate
entry? A: Yes, sir.”) (emphasis added).

b. Cross-examination of Moore

On cross-examination, Moore agreed the area between the J-2 longwall face and tailgate Entry No. 1 was impassable and explained such was because material “[f]rom a normal mining condition” had fallen into tailgate Entry No. 1 from the roof. Tr. 170:16 – 171:2. He agreed the roof in Entry No. 1 is normally supported and that material from the roof is not supposed to fall on and block the tailgate. Tr. 171:5-11. He testified the material which had fallen had come from tailgate Entry No. 1, more specifically “from the shield line. It could have come from the shield line back,” and that it had come from the roof. Tr. 171:20 – 172:8. Asked how high the material was when viewed from the face, Moore testified “[n]ine feet,” extending from the floor to the roof. Tr. 172:12-19.

Moore confirmed he and Inspector Tulinowski did not travel in tailgate Entry No. 1 on Dec. 11, 2022; rather, they only went down the J-2 longwall face to view the tailgate from that vantage point. Tr. 173:21 – 174:9. Moore did, however, travel in tailgate Entry No. 1 with Inspector Yarko on Dec. 13, 2022, to “in and around Crosscut 42,” until they could go no farther due to the “same material” Moore identified as having made the tailgate impassable. Tr. 174:10-21. He testified this area (i.e., “in and around Crosscut 42”) should be examined weekly, by an exam which included rip pins, gas, and ventilation hazards. Tr. 174:22 – 175:6. He also agreed Entry No. 1 was a return air course and that, while an examiner would never travel beyond the face, an inspector would be expected to weekly travel the entirety of Entry No. 1 to the face. Tr. 175:7 – 176:8.

Asked to
examine Sec. Ex. 2, set 1, page 9 (i.e., Inspector Yarko’s Page 9 drawing),
Moore agreed the four cans located just inby Crosscut 42 (depicted in the Page
9 drawing as “crushed out” by an X) were “starting to mushroom.” Tr. 177:10 – 178:12.30
He also agreed there would have been cans inby those four cans and that it
would be fair to say those cans had “either crushed off completely, or material
had fallen all around them such that [Moore] could not view them.” Tr. 178:17 –
179:4. Moore testified that, under normal mining conditions, one

After describing a timber as a “six-by-six wood” put in place “to hold up a slab of rock that’s . . . leaking down or in place of a rib pan that’s missing” or doubled up “for a . . . roof pin that is out,” Moore acknowledged one of the props in the area off to the side of Crosscut 42 was “taking a little weight,” and showing splinters. Tr. 180:18 – 181:11. He further described the roof in that area: “It actually looked like just a chunk of the ribs. It was the corner brow was what that was supporting, and it looked like that’s what was leaning on it.” Tr. 181:16-19. Moore recalled observing “just sloughage” on the rib in terms of taking weight. Tr. 181:20-22.

c. Redirect of Moore

On redirect
examination, Moore testified he was a certified examiner but had never
performed a weekly examination in tailgate Entry No. 1. Tr. 182:8-12. He
testified there are “date boards in multiple locations” in tailgate Entry No.
1, and believed the furthest one inby was “right around [Crosscut] 42[.]” Tr.
182:13-21. He identified a T-split as where the brattice is knocked out between
Entries Nos. 1 and 2, confirmed he did not know where the T-split was in the
tailgate at the time Citation No. 9705670 was issued, and
testified an examiner performing the weekly air course reading would not need
to go beyond the T-split to the face. Tr. 183:3-21. On Dec. 13, 2022, when he
accompanied Inspector Yarko, Moore recalled walking inby from Crosscut 42
“probably five, seven feet.” Tr. 183:22 – 184:3.

4. Rebuttal
   Witness - Inspector Yarko Recalled

Recalled
on rebuttal and asked how far inby he travelled with Moore on tailgate Entry
No. 1 on Dec. 13, 2022, Inspector Yarko testified: “I think we stopped right
after [the] first set of damaged cans. I wouldn’t have gone past that. It’s no
different than any loose or damaged roof fall or hanging rock or anything. You
don’t put yourself in a position and expose yourself to hazards. Therefore, we
stop before that.” Tr. 186:18 – 187:4.[31]

BASIC
CONTENTIONS OF THE PARTIES

The
Secretary requests Citation No. 9705670 be affirmed, contending the
Secretary has proven (1) a violation of Section 75.202(a), (2) that violation
was “significant and substantial” and (3) that Respondent exhibited “moderate”
negligence. The Secretary, contending the assessed penalty of $2,561.00 is
appropriate, seeks a penalty of at least that amount.

Respondent
argues no violation of Section 75.202(a) occurred because (1) the Mine was
complying with the egress plan contained in its MSHA-approved Roof Control Plan
with respect to the cited area when Citation No. 9705670 was issued, (2)
the Mine’s compliance with 30 C.F.R.
§ 75.215(b) (a specific standard) demonstrates compliance with Section
75.202(a) (a general standard), and (3) no work or travel occurred in the cited
area (which Respondent characterizes as including only tailgate Entry
No. 1, Crosscut 42½). Alternatively, if a violation is found, Respondent
contends the “significant and substantial” designation, the “reasonably likely”
designation, and the “moderate” negligence designation are each inappropriate,
and thus, the assessed penalty should be reduced.

ANALYSIS

To
prevail, the Secretary must prove the violation by a preponderance of credible,
relevant evidence. In re Contests of Respirable Dust Sample Alteration Citations,
17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1106-07 (D.C. Cir. 1998). This
burden of proof requires the Secretary to demonstrate that “the existence of a
fact is more probable than its nonexistence.” RAG Cumberland Res. Corp.,
22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marks
omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).

A. The
Secretary Has Proven a Violation of Section 75.202(a)

Citation
No. 9705670 was
written as a violation of Section 75.202(a), which provides: “The roof, face
and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face,
or ribs and coal or rock bursts.”

Mine roofs,
including those in entries which border a longwall face, are inherently
dangerous, and roof falls have been the leading cause of death in underground
mines for years. Consolidation Coal Co., 6 FMSHRC 34, 37 (Jan. 1984); Big
Laurel Mining Corp., 37 FMSHRC 2001, 2014 n.13 (Sept. 2015) (ALJ) (“MSHA
and the Commission have repeatedly recognized that roof falls rank among the
most serious dangers in the mining industry”). See also Elk Run Coal Co., Inc.,
27 FMSHRC 899, 904 (Dec. 2005) (“The requirement for each underground coal mine
to develop a roof control plan is a fundamental directive of the Mine Act and
its predecessor . . . The intent of [30 U.S.C. § 862(a)] was to afford
comprehensive protection against roof collapse[,] the leading cause of injuries
and death in underground coal mines.”) (internal quotation omitted).

1.
The
Applicable Analysis

In Jim
Walter Res., Inc., 37 FMSHRC 493, 495 (March 2015), the Commission held
that, where a roof fall has occurred, the Secretary, in order to establish a violation
of Section 75.202(a), must prove: (1) the roof or ribs were not supported to
protect persons from hazards related to roof falls, and (2) the insufficiently
supported roof or ribs were located in an area where persons work or travel.
Where a roof fall has not yet occurred, the Commission uses the following test
to assess an alleged Section 75.202(a) violation:

the adequacy of particular roof support or other control must be measured against the test of whether the support or control is what a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have provided in order to meet the protection intended by the standard.

Harlan Cumberland
Coal Co., 20
FMSHRC 1275, 1277 (Dec. 1998) (citing Canon Coal Co., 9 FMSHRC 667,
668 (April 1987) (as cited in Helen Mining Co., 10 FMSHRC 1672, 1675
(Dec. 1988)).[32]

Here, the
Secretary contends two sets of conditions existed on Dec. 13, 2022, which support
the issuance of Citation No. 9705670 under Section 75.202(a): (1) “the
roof fall itself” as observed by Inspector Yarko at tailgate Entry No. 1,
Crosscut 42½ for which he issued both the 103(k) Order on Dec. 13, 2022, and Citation
No. 9705670 on Dec. 14, 2022, and (2) “the continuing deteriorating
conditions” on tailgate Entry No. 1. Sec. Br. at 8. For this second condition,
I understand the Secretary to be referring to Inspector Yarko’s concern when issuing
Citation No. 9705670 that the roof in and around the specific area of
the roof fall was deteriorating, i.e., tailgate Entry No. 1, Crosscut 42 to 42½
near where the roof fall had already blocked Entry No. 1 from the J-2 longwall
face as well as fall along the face extending from Sheild 145 to Sheild 176 at
the tailgate. See Sec. Ex. 2, first set, at 9 (Inspector Yarko’s Page 9
drawing); Sec. Ex. 4, at 14 (similar drawing to Inspector Yarko’s Page 9
drawing), 21 (drawing depicting fall along the J-2 longwall face).

On this
record, I agree with the Secretary that these two conditions converged to
prompt the issuance of Citation No. 9705670 under Section
75.202(a). See Tr. 41:12-16 (Inspector Yarko identifying both conditions
when explaining why he issued a citation under Section 75.202(a): “Due to the
cans that are set in place to protect the roof from falling, the failure of
those and blocking the tailgate from egress.”) (emphasis added). The
roof fall already present at Entry No 1, Crosscut 42 ½ (which was also the
condition prompting egress), coupled with Inspector Yarko’s observation of
comprised pumpable cans and a compromised prop located in the area of Entry No.
1, Crosscut 42 to 42½, suggested to him—as an MSHA roof control/ground control
specialist—that the roof had already failed in one area and was exhibiting
signs portending future failure in the surrounding area. Tr. at 37:21 – 38:4-8
(Inspector Yarko referring to his Page 9 drawing and testifying “four
[pumpable] cans near the fall were crushed out or beginning to fail. They were
starting to fail and being crushed by the weight of the fall, along with it
appears to be one crushed and split eight-by-eight prop or wooden timber
[depicted on Inspector Yarko’s Page 9 drawing by “the box with an X in it”]
near Crosscut 42); 28:17-20, 29:5-10 (Inspector Yarko testifying to fall along
the longwall face); Sec. Ex. 4, at 21 (identifying material falling towards the
face area of the shields from Sheild 166 to Sheild 176 (i.e., the shield
closest to tailgate Entry No.1) along the longwall face); 91:5 – 92:11 (Inspector
Yarko explaining that roof falls have an effect on surrounding roof which
“typically deteriorates due to the pressures”).

Despite
the effort of Respondent’s witnesses to avoid characterizing the material that
had already fallen from the roof and blocked the tailgate at Entry No. 1,
Crosscut 42½ as a “roof fall,” I find that what Inspector Yarko observed at
that location is appropriately characterized as a roof fall based on his credible
testimony, see e.g., Tr. at 25:6-18; 32:9-12; 41:14-16, Sec. Ex. 4, at
14, 21; Sec. Ex. 2, first set, at 8-9, Section 103(k) of the Mine Act, and 30
C.F.R. § 50.2(h)(8) (defining “accident” as an “unplanned roof . . .
fall in active workings that impairs ventilation or impedes passage”).33 I also find,
based on Inspector Yarko’s credible testimony and documented observation of
compromised pumpable cribs, a compromised prop, and material that had fallen
onto Shields 145-176 along the face, that the roof in the surrounding area was
exhibiting signs of continuing deteriorating conditions.

To the
extent Respondent seeks to characterize the material which had fallen from the
roof and blocked Entry No. 1, Crosscut 42 ½ as material expected to fall due to
“weight transfer” in the normal course of longwall mining, I reject that
characterization here as the record belies any effort to portray the roof fall observed
by Inspector Yarko as planned or expected. Respondent’s own witnesses
testified: (1) the roof in tailgate Entry No. 1 is normally supported and is
not supposed to fall and block the tailgate creating the “hazardous condition” of
preventing miners from being able to exit the longwall face into tailgate Entry
No. 1, Tr. 171:5-11, 172:12-19 (Moore, cross-examination); Tr. 139:20 – 140:22 (Piper,
cross-examination); and (2) failure of the J-2 longwall to advance after the
roof fall triggered egress, despite persistent efforts to “mine through,” was, at
the very least, out-of-the ordinary. Tr. 133:7-12, 18-21, 134:18-19; 134:20 –
135:3; 135:7 – 137:21; 135:22 – 136:19 (Piper, cross-examination).[34]See also Tr. 89:14-21, 90:3-6-8, 90:12 – 91:2 (Inspector Yarko
explaining it was unusual for a longwall not to advance, and leaving a longwall
idle creates risk because “you’re allowing the roof to continue to be unstable
and fall where . . . miners are working.”). A roof control plan, by providing
for egress, does not thereby prevent material which has fallen from the roof
of a tailgate entry from being characterized as a “roof fall” and cited as, or
in conjunction with other conditions indicating continuing deterioration of the
roof, a violation of Section 75.202(a).

Here,
where the occurred roof fall did not injure anyone and where the inspector
observed other conditions in the surrounding area that suggested continuing deterioration
of the roof, in order to continue my assessment of the alleged Section
75.202(a) violation, I next address whether the roof was “supported or
otherwise controlled to protect persons from hazards related to falls of the
roof, face or ribs,” under Jim Walter and Harlan Cumberland,
respectively.

2.
Roof Not
Supported or Otherwise Controlled under Section 75.202(a)

Tailgate
Entry No. 1 was indisputably on egress when Citation No. 9705670 was
issued. See e.g., Sec. Ex. 1; Sec. Ex. 2, first set, at 8, 13;
Tr. 30:16 – 31:2. As such, I will address Respondent’s two arguments related to
the impact of egress on the Section 75.202(a) analysis before assessing whether
the roof was “supported or otherwise controlled” under that section.

Respondent
contends no violation of Section 75.202(a) occurred here for two interrelated
reasons: (1) because at the time Citation No. 9705670 was issued, the
Mine was complying with the egress plan contained in its MSHA-approved Roof
Control Plan for the discrete location identified on the citation (i.e.,
tailgate Entry No. 1, Crosscut 42½); and (2) because the Mine was complying
with 30 C.F.R. § 75.215(b) (pertinent to “[t]he procedures that will be followed”
when the tailgate is on egress), it was perforce complying with Section
75.202(a). Resp’s Br. at 10-12. I reject both arguments and begin with the
second one first.

Section 75.215(b), entitled “Longwall mining systems,” provides:

For each longwall mining section, the roof control plan shall specify—

(a) The methods that will be used to maintain a safe travelway out of the section through the tailgate side of the longwall; and

(b)
The procedures that will be followed if a ground failure prevents travel
out of the section through the tailgate side of the longwall.

(emphasis added). See
also 30 C.F.R. § 75.222(g)(2) (identifying what a roof control plan must
address when “a ground failure prevents travel out of the section through the
tailgate side of the longwall section”). Here, the Mine’s Roof Control Plan does
contain procedures consistent with Section 75.215(b). Such is the egress plan
which was active when Inspector Yarko inspected the Mine on Dec. 13, 2022, and Dec.
14, 2022; he acknowledged the egress on Citation No. 9705670 as
well as in his related inspection notes. Sec. Ex. 1 (“The section has the[ir]
egress plan active and an action plan is in place”); Sec. Ex. 2, first set, at
8, 13; see also Sec. Ex. 10, at 15, § 9.7 (“Longwall Egress
Procedures”).

The
inclusion of such procedures in a roof control plan (which is what Section
75.215(b) requires) does not mean, however, that an operator is perforce
“support[ing] or otherwise control[ing]” the roof within the meaning of Section
75.202(a). Part 75, Subpart C (Roof Support) of Title 30, C.F.R., “sets forth
requirements for controlling the roof, face, and ribs . . . in
underground coal mines,” § 75.200 (“Scope”), and critically, Section 75.202(a)
contains the overarching mandate: “The roof, face and ribs of areas where
persons work or travel shall be supported or otherwise controlled to
protect persons” from related hazards.” (emphasis added). Every subsequent
section contained in Subpart C aims to achieve that overarching mandate, and
roof control plans, under Sections 75.220-223, partake of the same aim. But compliance
with the sections in Subpart C or with a roof control plan approved thereunder
does not necessarily mean that what Section 75.202(a) requires is being
achieved in every instance wherein those sections are, or that plan is, being
followed. Other sections contained in Subpart C make that clear. See § 75.220(a)
(“Additional measures shall be taken to protect persons if unusual hazards are
encountered”), § 75.223(a)(1) (“Revisions of the roof control plan shall
be proposed by the operator [w]hen conditions indicate that the plan is not
suitable for controlling the roof . . .”), § 75.223(a)(2) (“Revisions of
the roof control plan shall be proposed by the operator [w]hen accident and
injury experience at the mine indicates the plan is inadequate”). See also
So. Ohio Coal Co., 10 FMSHRC 138, 140-41 (Feb. 1988) (compliance with an
approved roof control plan does not preclude liability for failure to comply
with a generally applicable regulation requiring adequate roof support). Thus,
what Section 75.202(a) requires is related to, but also necessarily separate
from, what Section 75.215(b) requires.

Respondent
cites Twentymile Coal Co., 32 FMSHRC 628 (June 17, 2010) (ALJ), in
support of its Section 75.215(b) argument, Resp. Br. at 12-13, but that case
cannot be read to embrace the generic proposition that “the specific governs
the general” such that compliance with Section 75.215(b) necessarily demonstrates
compliance with Section 75.202(a). Rather, Twentymile reinforces the
need to understand what each standard requires in context when assessing
whether satisfaction of one can be used to demonstrate satisfaction of the
other.35
Moreover, the roof fall which triggered egress—and served as one of the two converged
conditions prompting issuance of

Respondent’s
other contention—that Section 75.202(a) was not violated because, at the time Citation
No. 9705670 was issued, the Mine was complying with its egress plan for the
discrete location identified on the citation (i.e., Entry No. 1, Crosscut 42
½)—contains several moving parts. First, to the extent Respondent contends that
following its egress plan necessarily demonstrates compliance with Section
75.202(a), I reject that argument. Even assuming an egress plan, as well as
Section 75.215(b) and 75.222(g)(2) upon which it would be based, are all premised
on a recognition that the process of longwall mining may cause material to fall
and prevent travel at the tailgate, such does not mean that Section 75.202(a)
has no role to play where a roof fall and/or continuing deteriorating
conditions in the area of a roof fall suggest the roof is not being “supported
or otherwise controlled” to protect persons who work and travel in the area
from hazards related to roof falls.36
Again, other sections contained in Subpart C, including §§ 75.220(a),
75.223(a)(1), and 75.223(a)(2), make that clear. And again, because the roof
fall that triggered egress obviously occurred

Second,
Respondent argues that when a mine is following egress because the process of
longwall mining has created conditions requiring the imposition of egress,37 a reasonably
prudent person familiar with the mining industry and the protective purpose of
Section 75.202(a) would conclude that the mine is complying with Section
75.202(a). Respondent further contends that, here, a representative reasonably
prudent person familiar with the mining industry, i.e., Inspector Tulinowski,
reached that very conclusion when he inspected the Mine on Dec. 11, 2022,
observed “the top around the tailgate is down which does not allow entry into
the tailgate entry,” observed that “[t]he operator is following the roof
control plan when it comes to Egress” and concluded “NVO” (no violation
observed). Resp. Br. at 11; Tr. 71:21 – 72:13; R-I. Respondent, referencing
testimony that roof conditions were the same two days later when Inspector
Yarko conducted his E08 inspection, and that the J-2 longwall had not moved in
the interim, see Tr. at 127:17 – 130:8 (Piper), 166:12-16 (Moore),
argues: “[i]f no violation existed on [Dec.] 11, no violation existed on [Dec.]
13 for the same condition.” Resp.’s Br. at 11. I reject this argument as well.

“An
individual inspector’s decision not to issue a citation (or failure to notice a
violation) does not create a binding interpretation on behalf of the
Secretary.” Canyon Fuel Company, LLC, 39 FMSHRC 1578, 1585 n. 9 (Aug.
2017) (opinion of Commissioners Jordan & Cohen in 2:2 decision) (further
noting “District Manager Riley should be commended for recognizing the
potential danger to miners” which MSHA inspectors had overlooked for years).
Inspector Tulinowski did not testify at the hearing. While his inspection notes
were produced by the Secretary and admitted into evidence, Tr. 169:14-15;
170:2-7; R-I, and while Moore’s recollection of Inspector Tulinowski’s activity
during the Dec. 11, 2022, inspection corroborated the activity recorded
therein, see Tr. at 157:10 – 163:9; R-I; R-F, the record contains no
testimony about the reasoning behind Inspector Tulinowski’s “NVO” conclusion or
what he thought about what he observed on Dec. 11, 2022, but for the 4 terse
lines contained in his inspection notes (which Counsel for the Secretary obviously
could not cross-examine). It is hard to give these unamplified inspection
notes, much, if any, probative weight.

More
critically, however, Inspector Tulinowski did not travel in tailgate
Entry No. 1 beneath the roof at Crosscut 42-42 ½ on Dec. 11, 2022; he only
travelled down the J-2 longwall face, observing the fallen material at the
tailgate from that vantage point. Tr. 173:21 – 174:9 (Moore,
cross-examination); R-I; R-E(2). Inspector Yarko, on the other hand, travelled
up tailgate Entry No. 1 to approximately Crosscut 42 ½, observing “an unplanned
roof fall” which prompted him to issue a 103(k) Order. Sec. Ex. 3. In his notes
from Dec. 13, 2022, documenting issuance of that order, he drew a diagram of
the fall observed from his vantage point beneath the roof in Entry No.
1, which drawing also depicted four crushed pumpable cribs and a “prop split”
indicating to Inspector Yarko that the roof in Entry No. 1 was compromised in
the area near the roof fall; he then reproduced that diagram with slight
variation in his notes from Dec. 14, 2022, documenting issuance of Citation
No. 9705670. See Sec. Ex. 4, at 14 (diagram); Sec. Ex. 2, first set,
at 9 (Inspector Yarko’s Page 9 drawing); Tr. at 35:1-5, 36:5-10; 37:16 – 39:21
(Inspector Yarko testifying, inter alia, vis-à-vis his diagram in Sec.
Ex. 2, first set, at 9, that “the cans are showing failure due to the stress of
the roof falling . . . they’re not holding up the roof as intended”); 41:12-16,
42:15-21 (explaining the conditions he observed in tailgate Entry No. 1 on Dec.
13, 2022, violated Section 75.202(a) due to the roof fall combined with the failed
and failing pumpable cans).[38]See also Tr. 135:7-14 (Piper, on cross-examination, describing the
conditions that put the tailgate on egress as “top conditions at the
tailgate”); id. at 170:20 – 172:18 (Moore, on cross-examination, testifying
the tailgate was impassable because material from the roof had fallen into
Entry No. 1, the roof of the tailgate is normally supported, and he had no way
of knowing, when he accompanied Inspector Tulinowski down the face of the J-2
longwall, whether the roof in the tailgate was compromised because he “couldn’t
go under there to see it” due to the material which had fallen from the roof
and completely blocked his view); 178:11 – 179:4 (Moore, on
cross-examnionation, testifying the four pumpable cans (shown as closest to the
roof fall on Inspector Yarko’s Page 9 drawing) were “starting to mushroom” and
that it was fair to say cans inby had already been crushed).

Inspector
Tulinowski did not observe the roof fall from inside tailgate Entry No. 1, nor
did he observe the compromised pumpable cans and prop beneath the roof in Entry
No. 1, at Crosscut 42-42½. Thus, even if the conditions existing on Dec. 11,
2022, and Dec. 13, 2022, were the same in that the tailgate was on
egress and the J-2 longwall had not advanced, Inspector Tulinowski’s notes do
not undermine Inspector Yarko’s conclusion that what he observed from
his vantage point inside Entry No. 1 (and later from the face of the J-2
longwall) was a roof fall coupled with signs of continuing deteriorating
conditions in the surrounding roof. Thus, I have considered Inspector
Tulinowski’s inspection notes from Dec. 11, 2022, as contained in R-I, and have
given them little probative weight in my assessment of Section 75.202(a).

I turn
now to whether the roof was “supported or otherwise controlled to protect
persons” from hazards related to falls of the roof under Jim Walter and Harlan
Cumberland, respectively.

As to
the roof fall which had already occurred at Entry No 1, Crosscut 42½, which did
not injure anyone, I find the Secretary has proven that the roof was
unsupported or otherwise uncontrolled. Here, as all three witnesses testified,
material had fallen from the roof, blocking tailgate Entry No. 1. Tr. 25:6-9,
17-18, 41:14-16 (Inspector Yarko); 123:17-19 (Piper identifying R-E(1)),
135:7-14 (Piper, cross-examination); Tr. 171:5 – 172:8 (Moore,
cross-examination). The fallen material extended from the floor to the roof,
approximately 9 ft. in height. Tr. 172:9-19 (Moore, cross-examination). While
the fall of material from the mine roof was not of the same magnitude as that
which had occurred in Jim Walter, 37 FMSHRC at 494, or in Big Laurel
Mining, 37 FMSHRC at 2003 (involving citations for multiple failures), it
was not insignificant; it blocked the tailgate (thereby creating a hazardous
condition) and the Mine was apparently unable to “mine through” it. Thus, I
find that the roof at tailgate Entry No. 1, Crosscut 42½ was not supported or
otherwise controlled under the second prong of the Jim Walter test for a
roof fall that has already occurred.

As to the continuing deteriorating
conditions observed by Inspector Yarko in the surrounding area, i.e., Entry No.
1, Crosscut 42-42½ and from Sheilds 145 to 176 along the face, I find the
Secretary has proven that the roof was unsupported or otherwise uncontrolled. When
Inspector Yarko travelled tailgate Entry No.1 to approximately Crosscut 42, he observed
the roof fall, plus “four [pumpable] cans near the [roof] fall” that were “crushed
out or beginning to fail” as well as “one crushed and split eight-by-eight prop
or wooden timber” near the top corner of Crosscut 42. Tr. 37:20 – 38:4, 5-8; see
also Sec. Ex. 2, first set at 9 (Inspector Yarko’s Page 9 drawing). Additionally,
when Inspector Yarko travelled down the longwall face, he observed fall extending
from Shield 145 to Sheild 176, the shield immediately adjacent to the tailgate.
Tr. 28:17-20, 29:5-10; Sec. Ex. 4, at 21 (Inspector Yarko’s drawing of fall on
the shields). See also Tr. 82:11 – 83:15 (Inspector Yarko, on
cross-examination, acknowledging his drawing of fall on the shields also noted
“Roof/face glued from approximately Sheild 120 to T.G. (#176)” and testifying that
gluing would be a relatively common occurrence in longwall mining “if you have
failures of the roof” or “for preventative measures”). Notably, Respondent’s
witness Moore did not deny the existence of concerning signs of deteriorating
roof in the area; rather, he sought to give those signs a more benign characterization.
See Tr. 164:11-22 (Moore testifying “Some cribs were taking weight, as
they’re designed to do. Some of the ones back towards the tailgate where the
weight had shifted were starting to yield . . . They’ll mushroom out and let
you know they are taking weight.”); 165:1-8 (Moore identifying the pumpable
cribs that had mushroomed as “right inby [the] 42 area . . . [r]ight at the 42 crosscut
area”). When asked if the pumpable can were still providing roof support, Moore
testified “Somewhat, yes,” Tr. 164:21-22 —a rather lukewarm response. On this
record, I credit the characterization embraced by Inspector Yarko: that the
crushing of the pumpable cans indicates “”failure of the roof . . .
[t]hat the cans are showing failure due to the stress of the roof falling . . .
they’re not holding up the roof as intended.” Tr. 39:11-21.

I
further find that a reasonably prudent person familiar with the mining industry
(including the use of pumpable cans in the tailgate entries of a longwall) and
the protective purposes of Section 75.202(a) would have: (1) upon observing a
roof fall extending 9 ft. from the floor to the roof and blocking the tailgate
at Entry No. 1, Crosscut 42½, sought to observe and assess roof conditions on
both sides of that fall from the vantage points achieved by Inspector Yarko,
i.e., from in the tailgate Entry No. 1, Crosscut 42-42½, and from the
tailgate end of the longwall, and (2) from these two vantage points, (a) recognized
the objective signs of continuing deteriorating conditions as documented in the
diagrams produced by Inspector Yarko in his inspection notes, and (b) sought to
provide additional support for the roof. See Sec. Ex. 4, at 14, 21; Sec.
Ex. 2, first set, at 9 (Inspector Yarko’s Page 9 drawing). Also relevant is the
fact that the tailgate had been placed on egress weeks beforehand and that efforts
to “mine through” were not meeting with success. While Respondent appears to
have glued portions of the roof/face along the longwall, Sec. Ex. 4, at 21, I find
that, on this record, a reasonably prudent person would have taken further
steps to support or control the roof so as to meet the standard of protection
intended by Section 75.202(a).

Thus, I
find the Secretary has proven, under both Jim Walter and Harlan Cumberland,
that the roof was not “supported or otherwise controlled” within the meaning of
Section 75.202(a).

3.
Areas Where Persons Work or Travel
under Section 75.202(a)

Next, I
address whether “persons work[ed] or travel[ed]” in the area of unsupported
and/or uncontrolled roof as required by Section 75.202(a). The Secretary
contends this requirement is “easily met” in this case, Sec. Br. at 9, whereas
Respondent contends “no work or travel occurred” in the area and thus the
Secretary cannot prove a Section 75.202(a) violation. Resp. Br. at 13.[39]

The text
of Section 75.202(a) plainly requires that persons must “work or travel” in the
area where the roof, face, or ribs are unsupported or otherwise uncontrolled
for the standard to be violated. The Commission has interpreted “work or travel”
in Section 75.202(a) “to be circumstance specific[,]” Jim Walter, 37
FMSHRC at 495, and in Cyprus Empire Corp., 12 FMSHRC 911, 917-918 (May
1990), the Commission reversed a violation of Section 75.202(a) where the
record contained “no evidence that at any time during the existence of the
dangerous roof conditions, other than during the attempt to install additional
roof support, any miner worked or traveled in the cited area.” The Commission
has also deemed it sufficient for one person to “work or travel” only once in the
area of unsupported roof for the “work or travel” requirement to be met. Faith
Coal Co., 19 FMSHRC 1357, 1359 (Aug. 1997) (affirming Section 75.202(a)
violation where mine operator admitted he crawled through the relevant area one
time).

As
explained above, Citation No. 9705670 is premised on two conditions which
converged: (1) “the roof fall itself” at Entry No. 1, Crosscut 42½, and (2)
“the continuing deteriorating conditions” in and around the area of the roof
fall (i.e., tailgate Entry No. 1, Crosscut 42 to 42 ½ as well as fall on the face
from Sheild 145-176). Thus, it is necessary to assess “work or travel” in the specific
area of the roof fall as well as in the area of continued deteriorating
conditions.

At the Hearing,
Inspector Yarko identified “persons on the longwall,” including “shearer
operators, shield pullers, cleaning, maintenance, foreman” as persons who may
be in the affected area. Tr. 44:15-18. While Inspector Yarko was uncertain
exactly when the roof fall had occurred and when tailgate Entry No. 1 was placed
on egress, Respondent’s witnesses testified the fallen material at Entry No. 1,
Crosscut 42½—now characterized as the roof fall—was the condition that triggered
egress in October 2022. Tr. 133:1– 134:8 (Piper, cross-examination); 174:10-21
(Moore, cross-examination). At that time, the J-2 longwall was operating, so tailgate
Entry No. 1 would have been accessible and serving as an escapeway, Tr.
19:18-21 (Inspector Yarko); Tr. 140:15-20 (Piper, cross-examination), and as a return
air course requiring (at a minimum) a weekly exam under 30 C.F.R. §
75.364(b)(2).[40]See Tr. 45:3-4 (Inspector Yarko); 142:3-8 (Piper, cross-examination);
175:2, 7-9 (Moore, cross-examination). This exam requires that the return air
course be travelled “in its entirety.” § 75.364(b)(2); Tr. 142:9-11 (Piper,
cross-examination, acknowledging such); 175:10 – 176:8 (Moore,
cross-examination, acknowledging such and testifying an examiner would be
expected to go “up to the face in the No. 1 [E]ntry” but never past the face
into the gob, and agreeing such was his understanding of “entirety”); see
also Tr. 149:21 – 150:2 (Piper, cross-examination, acknowledging it would
be important to keep the roof in Entry No. 1 stable so it could serve as a
return air course); Tr. 179:16-17 (Moore, cross-examination, acknowledging “[u]nder
normal mining circumstances, yes, you should be able to pass through the
tailgate”). Thus, I find that miners, including, at a minimum, members of the
longwall crew and the weekly air course examiner, would be working or traveling
in, and/or required by their job duties to work or travel in, the area of the occurred
roof fall at tailgate No. 1, Crosscut 42 ½ when the roof fall occurred (which,
again, was before the tailgate was placed on egress).41

At the Hearing,
the parties offered a good deal of testimony aimed at identifying who might be working
or travelling in the cited area after the tailgate was placed on egress
due to the roof fall and more specifically, where exactly those persons would be
travelling to in relation to Crosscut 42- 42½. Inspector Yarko testified that “whoever
the operator designates to conduct the air reading on the tailgate side and [to
conduct] examin[ations],” Tr. 44:18-20, could be in Entry No. 1 near the area
of the roof fall and he identified the pertinent examinations as including:

· “a weekly examination due to [tailgate Entry No. 1 serving as] a return air course” Tr. at 45:3-4, and

·
“a T-split air
reading off of the longwall as part of an air reading for preshift/on shift” examinations.
Tr. 45:5-7.[42]

See also Tr. at 42:1-2 (Inspector Yarko
testifying “if persons were back there conducting normal work such as air
readings or examinations”); 43:12-16 (explaining he marked the citation as
“significant and substantial” due to the reasonable likelihood of injury to
“persons . . .
back there working and conducting examinations, air readings, proper installing
of additional supports,” and other operator-assigned tasks). Respondent argues
that neither of these examinations would take an examiner to Crosscut 42 and
a ½, because (1) for a preshift examination, while an examiner is required
to take air readings along the face at the headgate, midface and tailgate, the
examiner would not enter the tailgate to take the required reading at the
tailgate because such readings are taken “not more than 100 feet nor less that
50 feet from the last shield per the [M]ine’s approved ventilation plan,” and (2)
a weekly air course examiner would travel only to Crosscut 42—the location of
the T-split and a date board—and not beyond. Resp. Br. at 14.

It is a
nonstarter to argue that neither of the examinations identified by Inspector
Yarko would take an examiner to Crosscut 42 and a ½ when that
area was already physically blocked by the roof fall. As explained above, I have
rejected Respondent’s effort to limit the cited area to only tailgate
Entry No. 1, Crosscut 42½ where the roof fall had already occurred to block
access to the tailgate from the J-2 longwall face.

As for
the T-split examinations, including how often they would occur,43 and where they
would occur,44
I acknowledge the existence of conflicting testimony as between Inspector Yarko
on the one hand and Piper on the other. I see no need to resolve whether a
T-split reading would occur more often than weekly, or whether a T-split
reading can be taken from the face without entering tailgate Entry No. 1
because, even if I assume that neither a preshift or onshift examiner would be under
the area of continued deteriorating conditions in Entry No. 1 to take air
readings, the record fully supports that a weekly air course examiner—whether
travelling to the T-split or simply to a date board at the intersection of
Entry No. 1 and Crosscut 42—would be under that area.

Respondent’s witnesses testified there was a date board located at Crosscut 42 beyond which the weekly air course examiner would not go. Tr. 125:9 – 126:3 (Piper); Tr. 142:12 – 143:20 (Piper testifying on cross-examination “42 and a half is your face line, so 42 is where you would stop”); 182:13-21 (Moore testifying on redirect examination, “I’m pretty sure there’s [a date board] right around 42 . . . but I can’t tell you that for absolute certain”). They also testified that the T-split was located at Crosscut 42, at which a T-split air reading would be taken at least once a week. Tr. 151:5 (Piper identifying on redirect examination the T-split at Crosscut 42); 154:11-21 (Piper testifying on re-cross examination that the T-split is to be examined weekly); Tr. 183:10-21 (Moore testifying on redirect examination that the weekly T-split examiner need not go beyond Crosscut 42).

As for
the distance between Crosscut 42 and Crosscut 42½, Piper testified it was “less
than a hundred foot,” Tr. 143:19-22, and Moore testified “between 42 crosscut
where the edge of that crosscut is to where the tailgate was, you’re probably
talking 15 feet” with an additional 5 feet to what Moore referred to as “the
gob pile” which the Mine was trying to “mine through.” Tr. 165:12-20. In that
space, Inspector Yarko had observed two sets of two pumpable cans and a prop which
had already been compromised indicating failure of the roof. Sec. Ex. 4, at 14;
Sec. Ex. 2, first set, at 9 (Inspector Yarko’s Page 9 drawing), Tr. 39:11-14, 39:15-21
(“the cans are showing failure due to the stress of the roof falling . . .
they’re not holding up the roof as intended”). He also testified, and I
specifically credit his testimony, that when
roof falls are occurring in adjacent areas, the roof “typically deteriorates
due to the pressures.” Tr. 91:5 – 92:11. See also Tr. 66:3-7 (Inspector
Yarko testifying that, prior to issuance of the Action Plan Update on Feb. 3,
2023, with its physical barrier set up just outby Crosscut 42, miners would have
had to travel into the area of Crosscut 42 to conduct air readings and perform examinations).

Thus, I
find that an air course examiner who stopped at the date board located at
Crosscut 42 and/or stopped at Crosscut 42 as the location of the T-split, would
be a person working or travelling in the cited area at the time Citation No.
9705670 was issued for purposes of Section 75.202(a).45 Contra Cyprus
Empire, 12 FMSHRC at 912 (reversing a finding that Section 75.202(a) had
been violated because the Secretary failed to prove that “while the area was
dangered-off, the job duties of any miners required them to enter the affected
area”).

For all of the reasons explained above, I find the Secretary has proven a violation of Section 75.202(a) by a preponderance of the evidence.

B. “Significant and Substantial”

Section
104(d) of the Mine Act identifies a “significant and substantial” (“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). Under Commission case law, a violation is
properly designated S & S if, “based upon 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.” Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (quoting Cement Div., Nat'l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981)). The four steps required to support an
S & S designation are:

(1) the underlying violation of a mandatory safety standard; (2) the violation was reasonably likely to cause the occurrence of the discrete safety hazard against which the standard is directed; (3) the occurrence of that hazard would be reasonably likely to cause an injury; and (4) there would be a reasonable likelihood that the injury in question would be of a reasonably serious nature.

Peabody Midwest
Mining, LLC, 42
FMSHRC 379, 383 (June 2020) (integrating the refinement of the second Mathies
step set forth in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug.
2016)).46

The Secretary bears the burden of proving a violation is S &
S by a preponderance of credible evidence, Consolidated Coal Co., 39
FMSHRC 1737, 1742 (Sep. 2017), and an
S & S determination must be based on the assumed continuation of normal
mining operations. Consol Pennsylvania Coal Co., 43 FMSHRC 145, 148
(Apr. 2021) (“A determination of [S & S] must be based on the facts
existing at the time of issuance and assuming continued normal mining
operations, absent any assumption of abatement or inference that the violative
condition will cease.”) (citing U.S. Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984)). For the following reasons, I find the test for S & S as set
forth in Peabody Midwest to be met, and thus conclude Citation No.
9705670 was properly designated S & S.

1.
Step
1:

As discussed above, the Secretary has proven a violation of Section 75.202(a), which is a mandatory safety standard. Thus, Step 1 of the test for S & S is met.

2.
Step
2:
Reasonable likelihood of the occurrence of the discrete hazard

Step 2
requires a two-step process: (1) determine the specific hazard the standard is
aimed at preventing; and (2) determine whether a reasonable likelihood exists
that the hazard against which the mandatory standard is directed will occur. Newtown
Energy, 38 FMSHRC at 2037. A finding at Step 2 must be based on “the
particular facts surrounding the violation.” Northshore Mining Co., 38
FMSHRC 753, 757 (Apr. 2016). The Secretary need not prove a reasonable
likelihood that the violation itself will cause injury, but rather that there
is a reasonable likelihood that the hazard contributed to by the violation will
cause an injury. Musser Eng’g., Inc., 32 FMSHRC 1257, 1280-1281 (Oct.
2010).

The specific hazard which Section 75.202(a) aims to prevent is the hazard of a roof fall as well as the increased danger thereof. Here, where a roof fall has already occurred, that which has already occurred is necessarily also reasonably likely to occur. Additionally, I find that the continuing deteriorating conditions documented by Inspector Yarko in his inspections notes and testimony further support that a roof fall as well as the increased danger of a roof fall in tailgate Entry No. 1, Crosscut 42-41½ as well as along the tailgate side of the longwall face, was reasonably likely to occur. Thus, Step 2 of the test for S & S is met.

3.
Step
3:
Occurrence of the hazard reasonably likely to result in an injury

For
Step 3, I assume the occurrence of the hazard (not the violation) and determine
whether, based on the facts surrounding the violation, that hazard is
reasonably likely to cause an injury. Newtown Energy, Inc., 38 FMSHRC at
2037. The evaluation
of reasonable likelihood at Step 3 is made on the further assumption of “continued
normal mining operations,” Texasgulf Inc., 10 FMSHRC 498, 500 (Apr.
1988) (citing U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574), and an inspector’s judgment
is an important factor in determining whether there is “a reasonable likelihood
that the hazard contributed to will result in an injury.” Harlan Cumberland,
20 FMSHRC at 1278-79 (citing Mathies, 6 FMSHRC at 5).

As the Commission
has repeatedly recognized, mine roofs are inherently dangerous and the Commission’s
case law documents that roof falls have killed and seriously injured countless
miners. See e.g., The Doe Run Co., 42 FMSHRC 521, 521 (Aug. 2020)
(involving fatality); Jim Walter, 37 FMSHRC at 493 (same). Inspector
Yarko testified that the hazard contributed to here—i.e., failure of the roof
and falling material—would be reasonably likely to cause injury, and I credit
his judgment as an inspector and MSHA roof control/ground control specialist. Thus,
the occurrence of the hazard is reasonably likely to result in an injury, and
Step 3 of the test for S & S is met.

Respondent
contends the S & S designation (as well as the “reasonably likely”
designation, see infra) was based on a mistaken premise, i.e.,
that persons would be exposed to and potentially injured by the hazard at which
Section 75.202(a) is aimed, i.e., a roof fall. In making this argument,
Respondent is essentially re-offering its argument that no persons “work[ed] or
travel[led]” under the area of unsupported roof as required by Section
75.202(a). More specifically, Respondent argues: (1) due to egress, no one from
the longwall face could access tailgate Entry No. 1 at the time Citation No.
9705670 was issued; (2) a preshift examiner need not enter the tailgate to
take air readings because, under normal circumstances or due to egress, those
readings would be taken from the longwall face per the Mine’s ventilation plan;
and (3) an examiner examining the return air course need not travel tailgate
Entry No. 1 beyond the T-split located at Crosscut 42. Resp. Br. at 18-19.47 I reject Respondent’s argument that
“there was no exposure” to the hazard such that the occurrence of the hazard would
not be reasonably likely to result in an injury for purpose of Step 3 of the
test for S & S, having already concluded in Section A.3, supra, that
“work or travel” did occur in the cited area.

4.
Step
4:
Reasonable likelihood the injury would be reasonably serious

For Step
4, the Secretary must prove a reasonable likelihood that the potential injury
would be of a “reasonably serious nature.” Peabody Midwest, 42 FMSHRC at

383. As previously noted, the Commission has repeatedly recognized that mine
     roofs are inherently dangerous and Commission case law readily documents that roof
     falls have killed and seriously injured countless miners. See e.g., Doe Run,
     42 FMSHRC at 521 (involving fatality); Jim Walter, 37 FMSHRC at 493
     (same); LJ’s Coal Co., 14 FMSHRC 1225, 1229 (Aug. 1992) (reversing ALJ’s
     determination that violation of Section 75.220 was not S & S where record
     supported that the injury resulting from a roof fall would be of a reasonably
     serious nature). Additionally, Inspector Yarko testified that injuries from a
     roof fall can include “[b]umps, bruises, scrapes, broken bones, if not . . .
     permanent or fatal injuries,” Tr. 42:11-14, and this testimony was controverted
     by Respondent. Thus, the injury caused by a roof fall is very likely to be of a
     “reasonably serious nature,” and Step 4 of the test for S & S is also met.

Thus, I affirm the S & S designation.

C. Injury “Reasonably Likely”

Inspector
Yarko designated gravity on Citation No. 9705670 as “reasonably
likely” to cause lost workdays or restricted duty. Sec. Ex. 1. He testified “[i]t’s
reasonably likely” that, if the roof failed and persons were “back there
conducting normal work such as air readings or examinations” there would be, at
a minimum, the injury of lost workdays or restricted duty. Tr. 41:17 – 42:8. See
also Tr. 42:9-14 (Inspector Yarko identifying the type of injuries from
exposure to a roof fall); id. at 45:11-18. Inspector Yarko testified
that the hazard contributed to here—i.e., failure of the roof and falling
material—would be reasonably likely to cause injury, and I credited his
judgment as an inspector and MSHA roof control/ground control specialist for
purposes of Step 3 of the test for S & S, Analysis Section B.3 supra.
I do here as well for the designation on Citation No. 9705670 that
injury was “reasonably likely” to occur.

Respondent contends the “reasonably
likely” designation was based on the same mistaken premise identified above,
i.e., that persons would be exposed to and potentially injured by the hazard at
which Section 75.202(a) is aimed. In making this argument, Respondent is
essentially re-offering its argument that no persons “work[ed] or travel[led]”
under the area of unsupported roof as required by Section 75.202(a). Resp. Br.
at 18-19; see also Analysis Section B.3, supra (identifying
Respondent’s more specific reasons in support of this argument). I reject
Respondent’s argument that “there was no exposure” to the hazard such that the
occurrence of the hazard would not be reasonably likely to result in an injury,
having already concluded in Section A.3, supra, that “work or travel”
did occur in the cited area.

Thus, I affirm the “reasonably likely” designation.

D. Negligence

Respondent contends the designation
of “moderate” negligence on Citation No. 9705670 was inappropriate, and argues
the appropriate designation was “none” because the Mine was complying “at all
times” with its approved Roof Control Plan.” Resp. Br. at 19-20. More
specifically, Respondent argues (1) the Mine complied with its Roof Control
Plan “in installing the original roof support as it developed the tailgate
entries” and in implementing its egress plan, id. at 20, and (2) Inspector
Yarko acknowledged both of these facts at the Hearing. Id. at 20 (citing
Tr. 44, 85-86, Sec. Ex. 2, at 13).48
Counsel for the Secretary presents no argument specific to the negligence
designation in his post-hearing brief.

Negligence
is “conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm. . . . A mine operator is required to be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30
C.F.R. §100.3(d). According to the Secretary’s Part 100 Penalty Table,
negligence is considered by MSHA to be moderate when the “operator knew or
should have known of the violative condition or practice, but there are
mitigating circumstances.” 30 C.F.R. § 100.3(d), Table X. Commission
judges are not required to apply the definitions of Part 100, may evaluate
negligence from the starting point of a traditional negligence analysis, are
not limited to an evaluation of allegedly mitigating circumstances, and may
consider “the totality of the circumstances holistically.” Brody Mining, LLC,
37 FMSHRC 1687, 1701-1702 (Aug. 2015).

Respondent
correctly points out that Inspector Yarko testified the Mine had complied with
its Roof Control Plan when it installed the original roof support in tailgate
Entry No. 1; he also testified repeatedly that the tailgate was on egress when
he inspected the Mine on Dec. 13 and 14, 2022. E.g., Tr. at 30:21 –
31:2; 46:11-14. Inspector Yarko took these items into consideration as mitigating
circumstances for the Section 75.202(a) violation. See Sec. Ex. 1; Sec.
Ex. 2, first set, at 13; Tr. 44:2-6 (“I marked it moderate negligence due to
the fact that the operator did at the time comply with the roof control plan by
setting and installing cans along with the original roof support”). See Liggett
Mining, LLC, 36 FMSHRC 15, 20, 29-30 (Jan. 2014) (ALJ) (sustaining moderate
negligence finding for Section 75.202(a) violation where inspector considered operator’s
compliance with approved roof control plan as a mitigating circumstance).

But
again, as explained above, neither compliance with a roof control plan nor
egress (which again, was triggered by the roof fall that already occurred at Entry
No. 1, Crosscut 42½ before Citation No. 9705670 was written), precludes a
Section 75.202(a) violation. And here, I have also found, under Harlan
Cumberland, that a reasonably prudent person familiar with the mining
industry (including the use of pumpable cans in the tailgate entries of a
longwall mine) and the protective purposes of Section 75.202(a) would have: (1)
upon observing a roof fall extending 9 ft. from the floor to the roof and blocking
the tailgate at Entry No. 1, Crosscut 42½, sought to observe and assess roof conditions
on both sides of that fall from the vantage points achieved by Inspector Yarko,
i.e., from in the tailgate Entry No. 1, Crosscut 42-42½, and from the
tailgate end of the longwall face, and (2) from these two vantage points (a) recognized
the objective signs of continuing deteriorating conditions as documented in the
diagrams produced by Inspector Yarko in his inspection notes, and (b) sought to
provide additional support for the roof before being required to do so by the
103(k) Order. See Sec. Ex. 4, at 14, 21; Sec. Ex. 2, first set, at 9 (Inspector
Yarko’s Page 9 drawing).

Thus, I affirm the moderate negligence designation as appropriate under the totality of the circumstances viewed holistically.

E. Penalty

The Secretary proposed a regular penalty of $2,561.00 for Citation
No. 9705670 and now submits that this penalty is appropriate, asking me to
assess a penalty of “at least” $2,561.00.” Sec. Br. at 14-15. Assuming a violation
of Section 75.202(a) is found, Respondent asks that the penalty be reduced in
conjunction with the non-S & S and lower likelihood of injury and
negligence designations Respondent advocates. As explained above, I have
sustained the S & S, “reasonably likely,” and “moderate” negligence
designations as appropriate on this record.

Section 110(i) of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). In assessing civil monetary penalties, an ALJ shall consider the six statutory penalty criteria:

[T]he operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

Id. See also Sellersburg Stone, Co.,
5 FMSHRC 287, 292-293 (Mar. 1983) (directing Commission judges to make findings
of fact on the statutory penalty criteria), aff’d, 736 F.2d 1147 (7th
Cir 1984). Once factual findings on the statutory criteria have been made, a
judge’s penalty assessment for a particular violation is an exercise of
discretion, bounded by proper consideration of the statutory criteria and the
Mine Act’s deterrent purposes. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000). In exercising discretion to determine the amount of
a penalty, an ALJ is not bound by the penalty proposed by the Secretary. See
e.g., Hidden Splendor Res., 36 FMSHRC 3099, 3101 (Dec. 2014).

In Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997), the Commission held all
six of the statutory criteria in Section 110(i) should be considered in a de
novo penalty assessment, but not necessarily assigned equal weight. In Musser
Engineering, Inc., 32 FMSHRC at 1289, the Commission explained that,
generally, the magnitude of the gravity of the violation and the degree of
operator negligence are important factors, especially for more serious
violations for which substantial penalties may be imposed. A civil penalty must
be “of an amount which is sufficient to make it more economical for an operator
to comply with the [Mine] Act’s requirements than it is to pay the penalties
assessed and continue to operator while not in compliance.” S. Rep. No. 95-181,
95th Cong., 1st Sess. at 41 (1977).

According
to the Assessed Violation History Report (date range Sept. 14, 2021 – Dec. 13,
2022), contained in Sec. Ex. 15, the Mine has been issued 808 citations, 260 of
which were designated S & S. Id. at 19. The Report documents that
69 of those 808 citations alleged violation of Section 75.202(a). Id. at
2-3. See also Sec. Ex. 1 (Citation No. 9705670, noting Section
75.202(a) “cited 79 times in two years” to the operator). According to Exhibit
A to the Secretary’s Petition for Assessment of Civil Penalty, Respondent’s “Controller
Tonnage” was 134,149,006 tons for 2021, and the “Mine’s Tonnage” was 117,126
tons for 2021. See also Sec. Br. at 14. Peabody is thus a large operator
and the parties have stipulated the proposed penalty will not affect its ability
to stay in business. Jt. Ex. 1, ¶ 6. I have determined that Respondent
exhibited “moderate” negligence (as mitigating circumstances were present and
accounted for) and that a serious injury was reasonably likely to occur. See
Analysis Sections B, C & D, supra. I note also that Citation No.
9705670 was terminated soon after it was issued on Dec. 14, 2022, after the
Mine completed phase 1 of the Action Plan submitted in response to the 103(k)
Order, see Sec. Ex., second set, at 4, and that the Mine received a 10%
reduction for good faith abatement. See Exhibit A, S. Pet.

On this
record, having considered the six statutory penalty criteria and the Mine Act’s
deterrent purposes, I see no reason to deviate from the Secretary’s proposed
penalty, and thus I find the proposed penalty of [$2,561.00]to be appropriate.

ORDER

In
accordance with the foregoing, I AFFIRM Citation No. 9705670 and ORDER
Respondent to pay a penalty of $2,561.00 within
30 days of this order.49

/s/
John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Thomas J. Motzny, Esq., United States Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219, [email protected]

Arthur Wolfson, Esq., Fisher & Phillips LLP, 6 PPG Place, Suite 830, Pittsburgh, Pennsylvania 15222, [email protected]

Attachments:

Attachment A: Sec. Ex. 7 (Cover Letter and Action Plan J1 E1 XC 41-42.5, dated Dec. 13, 2022)

Attachment B: R-E(1) (longwall diagram)

1 See Amended Decision
Approving Partial Settlement (Oct. 18, 2024).

2 The Secretary’s original Prehearing Statement
contained an incorrect Mine Identification No. for Shoal Creek Mine in ¶1, and
a correct Mine Identification No. in ¶8. Both are now correct.

3 References to the Hearing Transcript are designated
as “Tr.” followed by page number: line number. References to Joint Exhibits are
designated by “Jt. Ex.” followed by a number. References to the Secretary’s
Exhibits are designated as “Sec. Ex.” followed by a number. References to
Respondent’s Exhibits are designated as “R” followed by a letter and sometimes
a numbered subdivision. References to the post-hearing briefs are designated
“Sec. Br.” and “Resp. Br.” as appropriate.

The following
Exhibits were admitted at the Hearing: J Ex.-1 (Stipulations); Sec. Ex. 1 (Citation
No. 9705670); Sec. Ex. 2 (two sets of inspection notes from Inspector Yarko
dated Dec. 14, 2022); Sec. Ex. 3 (103(k) Order ((Order No. 9705667 and -01));
Sec. Ex. 4 (inspection notes from Inspector Yarko dated Dec. 13, 2022); Sec.
Ex. 7 (Cover Letter and Action Plan J1 E1 XC 41-42.5, dated Dec. 13, 2022);
Sec. Ex. 8 (MSHA Approval Letter for Action Plan Update, dated Feb. 3, 2023); Sec.
Ex. 9 (Action Plan Update, dated Feb. 3, 2022); Sec. Ex. 10 (Shoal Creek
Mine – Roof Control Plan); Sec. Ex. 11 (On-Shift Examiner’s Reports, dated Dec. 7-14,
2022); Sec. Ex. 12 (four photos of pumpable cans); Sec. Ex. 14 (diagram,
bearing handwritten dates Jan. 6, 2023 and Jan. 30, 2023); Sec. Ex. 15
(Assessed Violations History Report); R-A(1) (Preshift Examiner’s Reports,
dated Oct. 25, 2022); R-E(1) (longwall diagram); R-E(2) (XC 42 -42 ½ diagram);
R-F (notes from Safety Supervisor Moore, dated Dec. 11, 2022); R-G (production
reports, dated Dec. 12-14, 2022); R-I (inspection notes initialed “RT,” dated
Dec. 11, 2022); R-J(3) (inspection notes from Inspector Yarko dated Dec.
14, 2022). See also infra n. 7 (explaining the two sets of inspection
notes contained in Sec. Ex. 2).

[4] Inspector Yarko joined MSHA in October 2015 as a trainee, attended the MSHA Academy, was subsequently transferred to Litchfield, Illinois as a mine inspector and in 2022, moved to Birmingham, Alabama, after which he assumed his current role as a roof control/ground control specialist in August of 2022. Tr. 14:5-6, 14:18 – 15:9.

5 Inspector Yarko had worked for Freeman United, MaRyan
Shay, and Prairie State Generating Company. Tr. 18:2-7.

6 As explained infra, the Mine had also operated
a longwall known as the “J-1.” See e.g., Tr. 73:21 – 75:5.

7 Sec. Ex. 2 contains two separately numbered sets of
inspection notes dated Dec. 14, 2022. The first set (MSHA-016 to MSHA-020)
contains 14 numbered pages, bears Event No. 6920805, documents the issuance
of Citation No. 9705669 and Citation No. 9705670, and notes on page 14,
“Changed from the E08 Event to E01 Event, hand delivered these citations to the
mine operator today when I arrived at the mine for E01 inspection.” Sec. Ex. 2,
first set, page 14. The second set (MSHA-022 to MSHA-027) contains 16 numbered
pages, bears Event No. 6916737, documents the termination of Citation
No. 9705670 and Citation No. 9705669, the extension of Citation No.
9632675, and the issuance of Citation No. 9705671. Sec. Ex. 2, second set.

8 Section 103(k) of the Mine Act, 30 U.S.C. § 813(k)
provides:

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.

While Order No. 9705667 is not at issue, it provides important context for the contested citation. I note also that Inspector Yarko’s inspection notes from Dec. 13, 2022, document the issuance and termination of Citation No. 9705666 (involving a loose rib), also written during the E08 inspection at the Mine. Sec. Ex. 4, at pages 5-10.

9 Respondent did not contest Citation No. 9705668. Egress
is discussed in detail infra, Section B.1.e. I also note that Inspector
Yarko’s inspection notes from Dec. 13, 2022, contained two pages identified as
page 28. I use 28(1) and 28(2) to distinguish between them.

10 “Crosscut” and “XC” for Crosscut are used
interchangeably by Inspector Yarko and the Mine in pertinent exhibits.

11 A copy of Sec. Ex. 7 is attached to this Decision and
Order as Attachment A.

12 Citation No. 9705669, which was
settled as part of this docket, see Amended Decision Approving Partial
Settlement (Oct. 18, 2024), provided in pertinent part: “The operator has
neglected to inform MSHA of notification for an unplanned roof fall at the J-2
Longwall Section MMU 017 Tailgate/Face and the J-1 gate road Entry # 1,
Crosscut #42½.” Petition for Assessment of Civil Penalty, at 86.

13 Section 15 (Area or Equipment) was left blank on Citation
No. 9705670.

14 See also Tr. 83:18 – 84:2 (Inspector Yarko
explaining on cross-examination that he considers pumpable cans and pumpable
cribs to be the same thing).

15 Respondent’s counsel characterizes
Inspector Yarko’s testimony related to inspections conducted after Dec.
14, 2022 (i.e., the day Citation No. 9705670 was issued and terminated)
as irrelevant. Resp. Br. at 13 n.12. I deem the following testimony relevant
for the limited and specific purpose of providing context for my assessment of
“work or travel” as required by Section 75.202(a) at the time Citation No.
9705670 was issued. I also note that, in admitting Sec. Ex. 8 (MSHA
Approval Letter for Action Plan Update, dated Feb. 3, 2023), Sec. Ex. 9 (Action
Plan Update, dated Feb. 3, 2023) and Sec. Ex. 14 (diagram, bearing handwritten
dates, Jan. 6, 2023 and Jan. 30, 2023 and containing Inspector Yarko’s
handwritten callouts), I overruled the objection of Respondent’s counsel that
these exhibits were irrelevant as involving events occurring after Citation No. 9705670 was issued and terminated.
I deem these exhibits relevant for the same limited and specific
purpose of providing context for my assessment of “work or travel” at the time Citation
No. 9705670 was issued. See infra. Analysis, Section A.3.

16 The map contained in Sec. Ex. 14 depicted only Crosscuts
41 and 42 in full between Entry No. 1 and Entry No. 2, with yellow
highlighting (depicting fallen roof) extending beyond Crosscuts 41 and 42 both
inby and outby along Entry No. 2.

17 As Inspector Yarko explained, he took the same map
“back to check after [the Mine] had put additional supports in,” Tr. 53:19-22,
differentiating between his observations on Jan. 6, 2023, and Jan. 30, 2023, by
using two different colors, blue and red. See Tr. 53:10 – 54:2

18 The Action Plan Update also provided:

3. A breaker row of a minimum of three (3) cribs and/or pumpable cribs and two (2) rows of three (3) timbers or props will be installed in the J-1 #1 Entry as close as practicable to the Crosscut 42 intersection. After these are installed, a new Physical Barrier will be made at the outby edge of the breaker row.

Sec. Ex. 9, at 2. On the map attached to Sec. Ex. 9, I understand the callout for “existing Physical Barrier” to refer to the barrier referenced in No. 2 of the Action Plan Update and in Inspector Yarko’s testimony; I understand the callout for “proposed Physical Barrier” to refer to the “New Physical Barrier” to be placed at the “outby edge of the breaker row” referenced in No. 3 of the Action Plan Update. In other words, the plan was to move the evaluation point further outby the continuing deteriorating roof in tailgate Entry No. 1.

19 Inspector Yarko also acknowledged these inspection notes
bore Supervisor Initials (“TC”) and date “12-20-22.” Tr. 70:13-15. He
identified Thomas Chatham as the then-field office supervisor and agreed it
would be common for a field office supervisor to review inspection notes. Tr.
at 70:18 – 71:10. See also infra n. 25.

20 The specific provision implicated by this line of
questioning provides:

An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage[.]

30 C.F.R. § 50.2(h)(8).

21 As part of this testimony, Inspector Yarko explained the
shaded areas on the diagram contained in Sec. Ex. 14 represented roof fall on Crosscuts
41 and 42 in Entry No. 2 heading toward Entry No. 1 and explained that the stopping
between Entries Nos. 1 and 2 at Crosscut 41 was also crushing, indicating
failure of the roof along Crosscut 41 as it headed toward Entry No. 1. Tr.
91:10 –92:6; Sec. Ex. 14.

22 Thus, the events pertinent to Citation No. 9705670
would have occurred when Piper was newly in this position.

23 A copy of R-E(1) is attached to this Decision and
Order, as Attachment B.

24 Piper explained he knew this because the starting and
finishing footage numbers for the J-2 longwall at tailgate Entry No. 1 were the
same, i.e., 6325 for all four shifts. Tr. 128:2-14; R-G.

25 Piper acknowledged most of the On-Shift Examiner’s
Reports in Sec. Ex. 11, bearing dates from Dec. 7 –14, 2022, showed HS (and not
HC) checked and testified there had been no discussion as to how to fill out
these reports, “other than [the tailgate] needing to be on egress.” Tr.
141:1-12.

26 Due to placement of the J-1 and the J-2 longwalls,
the J-2 tailgate Entry No. 3 was gob from the J-1. See R-E(1), Tr.
148:8-14.

27 During cross-examination, Respondent’s counsel had
Inspector Yarko read from the inspection notes of “R.T.” dated Dec. 11, 2022,
and offered as R-I. Tr. 69:14 – 72:13, see also supra Section B.1.g. Counsel
for the Secretary objected to the admission of R-I at that point, noting the
lack of testimony offered as to who had created the notes. Tr. 96:22-16.
Respondent’s counsel, after identifying R-I as a document produced by the
Secretary in discovery, promised to have the company escort from Dec. 11, 2022,
offer testimony placing the notes in context. Tr. 97:19 – 98:21 (“I don’t have
the inspector testifying, but I do have the company escort testifying.”) As
Moore escorted Inspector Tulinowski, the implication is that R-I contains
Inspector Tulinowski’s notes. After Moore’s testimony, I admitted Exhibit R-I
over the Secretary’s continued objection, Tr. 168:10 – 169:4, subject to my
assessment of its probative weight. Tr. 170:2-4. See also infra Analysis
Section A.2.

28 Moore identified the tail drive as located “one or
two shields in from the gob plate.” Tr. 158:11-14. .

29 Moore took his own notes to identify the date,
inspection type, inspector, escort, inspection progression, whether citations
were issued, and “any compliance issues that needed to be addressed.” Tr.
160:4-10. His notes identify another complaint investigated by Inspector
Tulinoski on Dec. 11, 2022—described as shields “[n]ot having markings on them
to prevent people from venturing underneath them”— which complaint was
determined to be positive, but did not implicate the tailgate. Tr. 161:5-22.

30 Secretary’s counsel referred to Sec’s Ex. 2, page
number 18; that page, hand-marked as Page No. 9 in Inspector Yarko’s inspection
notes, is also labelled MSHA-018. See Tr. 177:12-13; 186:15-17; Sec. Ex.
2, set 1, page 9. The referenced drawing is contained on page 9.

31 Due to audio interference
experienced by the court reporter, the question was re-asked (and slightly re-posed
as “how far down Entry No. 1” did Inspector Yarko recall travelling with Moore.
Tr. 187:5-22. Inspector Yarko testified:

I would have stopped short of the first set of damaged cans that we came upon or that prop. . . . And those cans being mushroomed or crushed, hindered in any way, what I would consider damage or faulty roof support, supplemental or primary. And so you would not go past that. I would stay in a good supported area.

Tr. 187:5 – 188:14.

32 In Jim Walter, the Commission rejected that
the occurrence of a roof fall establishes a per se violation of Section
75.202(a) and instead used the two-part test set forth therein to assess the
alleged Section 75.202(a) violation in a situation where the roof fall had fatally
injured a miner. 37 FMSHRC at 494, 495. See also Peabody Gateway North
Mining, LLC, 46 FMSHRC 1076, 1095 (Dec. 30, 2024) (ALJ) (applying
the Jim Walter two-part test where an occurred roof fall injured a
miner); Canyon Fuel Company, LLC, 45 FMSHRC 328, 341 (May 23, 2023)
(ALJ) (applying the Jim Walter two-part test where an occurred rib burst
injured a miner), DFR (granted June 30, 2023). Commissioner Cohen, concurring
separately in Jim Walter, observed that the Commission’s disposition effectively
overruled Canon Coal, Co., 9 FMSHRC 667 (April 1987), a case in which
the Commission had used a reasonably prudent person standard to assess an
alleged violation of Section 75.200, the predecessor to Section 75.202(a). 37
FMSHRC 498 (Commissioner Cohen, concurring). Commissioner Cohen also observed
that the Commission had relied on Canon Coal in Harlan Cumberland,
wherein the Commission used a reasonably prudent person standard to assess an
alleged Section 75.202(a) violation where a roof fall had not yet occurred. Id.
He then opined that use of the two-part test in Jim Walter— wherein a
miner had been fatally injured by an occurred roof fall—did “not disturb Harlan
Cumberland” in a situation where a roof fall had not yet occurred. The continued
validity of using a reasonable person standard after Jim Walter has been
briefed in the Canyon Fuel case (WEST 2021-0188, et. al), presently
before the Commission. No one was injured by the occurred roof fall implicated
in the case now before me.

33 Section 103(k) of the Mine Act also refers to
“accident” and the Commission has held that “accident” for purposes of Section
103(k) is not limited to the definitions set forth in 30 C.F.R. § 50.2(h).
Revelation Energy, LLC, 35 FMSHRC 3333, 3338 (Nov. 2013).

34 I recognize Piper testified that headgate Entry No. 3
and tailgate Entry No. 1 are expected to “come down” as the coal block is mined
out. See Tr. 112:3-15. I credit that testimony but note other portions
of his testimony, especially when coupled with Inspector Yarko’s testimony,
suggest that the normal expectations in longwall mining were not necessarily in
play here due to the roof fall that had already occurred and the Mine’s
inability to “mine through” the condition that had prompted egress and failure
to resume normal production on the J-2 longwall.

35 In Twentymile, the ALJ determined “the
particular lifeline present in the alternate escapeway” at the mine, which
served to satisfy Section 75.380(d)(7) (requiring an escapeway to be provided
with “a continuous, durable directional lifeline or equivalent device”),
simultaneously served to ensure the escapeway was “[c]learly marked to show the
route and direction of travel to the surface” as required by Section
75.380(d)(2). 32 FMSHRC at 638 (emphasis added). The ALJ vacated a citation
issued under Section 75.380(d)(2) for red reflectors in the alternative
escapeway which were “completely covered with dust and could not be seen,” id.
at 636, where the operator argued that the escapeway was still “clearly
marked to show the route and direction of travel to the surface” via the
lifeline. The ALJ reasoned: “I see no reason why a lifeline should per se
be incapable of satisfying [Section 75.380(d)(2)]. To say that something is
incapable of satisfying one standard because it satisfies another standard defies
logic and finds no support within Commission case law.” Id. at 640. He
then identified three reasons why “a lifeline, in many situations, may provide
an even better means of ‘clearly marking’ the escapeway than reflectors hung
from the roof,” and concluded “[a]ll of these factors, combined with [the
issuing inspector’s] testimony that the miners at this mine are well trained
and that the operator had effective escapeway policies, lead me to believe that
the lifeline clearly marked the route and direction of travel to the surface,
thereby satisfying [Section 75.380(d)(2)] in spite of the fact that the roof
reflectors may not have done so.” Id. at 641.

36 I recognize egress is relevant also to Section
75.202(a)’s requirement that persons “work or travel” in the area of
unsupported roof and address that issue infra in Analysis Section A.3.

37 In this situation, while the process of longwall
mining did create the condition which triggered egress, acknowledging that does
not necessarily mean that the roof fall which occurred and blocked the tailgate
at Crosscut 42½ where the J-2 had come to rest, was a normal or expected
condition in longwall mining. Again, I note the record before me belies that
characterization.

38 Respondent suggests Inspector Yarko “concluded that a
violation existed before inspecting the area.” Resp’s Br. at 11, n. 10. While
the record does not identify exactly what brought Inspector Yarko to the Mine
on Dec. 13, 2022, to conduct the E08 inspection, he testified: “I do believe it
was a possibility of a roof fall on the J-2 longwall tailgate.” Tr. 20:15-18. See
also id. at 22:18-19; R-F (documenting Inspector Tulinowki’s inspection
on Dec. 11, 2022, had been in response to a phoned in report of bad top at the
J-2 longwall tailgate). I reject Respondent’s suggestion of pre-judgement as unsupported
and note that, whatever prompted the E08 inspection, the record fully supports
Inspector Yarko’s discovery of an unplanned roof fall blocking access to
tailgate Entry No. 1 from the J-2 longwall face.

39 Respondent offers a particularly crabbed
interpretation of “area” for purposes of “work or travel” under Section
75.202(a), arguing it encompasses only Entry No. 1, Crosscut 42½. Resp’ s Br.
at 13. I reject that interpretation. That area was already physically blocked
by the roof fall at Entry No. 1, Crosscut 42½ and here, as explained above, Citation
No. 9705670 was premised on two conditions, only one of which was
the roof fall itself. That said, I do recognize that egress necessarily impacted
“work or travel” in the area of “continued deteriorating conditions” and address
that impact below.

40 Section 75.364(b)(2) provides:

At least every 7 days, an examination for hazardous
conditions and violations of the mandatory health or safety standards
referenced in paragraph (b)(8) of this section shall be made by a certified
person designated by the operator at the following locations . . . (2) In at
least one entry of each return air course, in its entirety, so that the
entire air course is travelled.

(emphasis added).

[41] I acknowledge Piper’s testimony
that when the tailgate was on egress, no one from the longwall crew would be in
the tailgate because they could not get there physically from the longwall
face, Tr. 126:4-10, and note Inspector Yarko’s understanding that, at the time
he inspected the Mine on Dec. 13 and Dec. 14, 2022, members of the longwall
crew could not enter the tailgate from the longwall face due to egress. See
e.g., Tr. 46:11-14; 47:1-5.

42 Inspector Yarko explained a T-split reading as an air
reading taken in tailgate Entry No. 1 “to ensure that the air coming from the
longwall goes back into the bleeder and also goes back into [tailgate] Entry
[No.] 2 to provide air sweeping into the bleeder.” Tr. 45:15-19. See also
151:6-10 (Piper, explaining the T-split as “a point [at which] your air leaves
the face” and splits, with “some of it” travelling into Entry No. 2, and “the
rest of it travell[ing] outby”). The parties appear to agree the T-split was
located at Crosscut 42. See Sec. Br. at 7 n.5; Resp. Br. at 14; see
also Tr. 153:6-17 (Piper, explaining the T-split as “an open crosscut
where [the stopping] was knocked out” and identifying Crosscuts 38, 39, 40 and
41 as depicted on R-E(1) as crosscuts parallel to tailgate Entry No. 1 where
stoppings were still in place); 154:6-10 (Piper confirming the T-split is the
crosscut that does not have stopping (i.e., Crosscut 42 as depicted on R-E(1))
because “that’s the point that your intake air would become mixed with the face
air”); Tr. 183:3-4 (Moore, on redirect examination, identifying the T-split as
where the brattice is knocked out between Entries Nos. 1 & 2).

43 Inspector Yarko’s testimony appears to conflict with
Piper’s testimony as to how often a T-split reading would be taken. Inspector
Yarko testified a T-split reading would be taken as part of preshift and
on-shift examinations, Tr. 45:5 – 46:4, and thus would be conducted at least
once or twice per shift as well as on an as-needed basis “due to ventilation
changes or just to double-check if [there is] low air anywhere else along the
longwall.” Tr. 45:20 – 46:6. Piper testified that per the Mine’s ventilation
plan, the T-split would be examined weekly; he also testified that such would
be the same as the “weekly air course” reading. Tr. 154:11-21. I note the
Action Plan, Sec. Ex. 7, at 2, seems to assume preshift examinations include a
T-split reading. See also Sec. Ex. 9, at 2 (Action Plan Update, from
Feb. 3, 2023) (same).

44 Inspector Yarko’s testimony also appears to conflict
with Piper’s testimony as to where air readings for purposes of a preshift
examination would occur. Inspector Yarko testified that T-split readings—which
he testified were required for preshift and on-shift examinations—would still
need to be taken while tailgate Entry No. 1 was on egress “to make sure there’s
proper air flow and directional air flow,” Tr. 49:12-17, and explained that, to
take a T-split reading during egress, the examiner would have to travel up
tailgate Entry No. 1 because the tailgate was inaccessible from the longwall
face. Tr. 46:11-19. Piper testifying that for pre-shift examinations, air
readings measuring the velocity of air coming down the face would be taken on
the face at the headgate, mid-face and tailgate, and there was no reason to
enter the tailgate to take any of those readings or, in normal operations, to
conduct a preshift examination. Tr. 118:15 – 119:9, 119:10 – 120:19. See
also Tr. 176:9-17 (Moore acknowledging on cross-examination that he did not
know where methane readings for shift examinations are taken).

45 Explaining why he designated the
violation as “significant and substantial,” Inspector Yarko also identified
“persons . . . back there . . . installing . . . additional support.” Tr.
43:6-14. Miners installing additional support would also be working or
travelling in the cited area, and Piper acknowledged that if miners were going
into the area between Crosscut 41 and 42 to install additional supports, that
area would need to be preshifted and/or onshifted, Tr. at 145:11-16, thereby
placing at least one other person (if not more), in or very near the cited area
to fulfill job duties.

46 The Secretary argues the Newtown/Peabody
reformulation is inconsistent with the Mine Act’s definition of S & S,
stressing that Section 104(d)(1) is satisfied if the violation could
contribute to the hazard, not whether it is reasonably likely to contribute. Sec.
Br. at 12. I need not reach this argument to conclude that the test for S &
S is met here.

47 Realistically Respondent’s argument is aimed at all
four steps of the test for S & S. I have opted to address it in relation to
Step 3 because only those persons exposed to the hazard because they “work or
travel” in the area under the unsupported/uncontrolled roof are reasonably
likely to be injured by it.

48 Specifically, Inspector Yarko testified, “I marked it
as moderate negligence [because] the operator did at the time comply with the
roof control plan by setting and installing cans along with the original . . .
primary support [of] roof bolts.” Tr. 44:2-6. During cross-examination of
Inspector Yarko, the following exchange occurred:

Q: You mentioned on direct when talking about the negligence designation . . . [that] you considered it a mitigating circumstance that [the Mine] had been complying with the roof control plan when [it] developed this tailgate entry, correct?

A: Correct. That’s why it’s moderate.

Q: But [the Mine was] also complying with [its] roof control plan when [it] enacted the egress plan after the condition presented itself, right?

A: I don’t know what the conditions were to activate egress. It was not in the examination book.

Q: Well, I’m going to show you . . . [Sec. Ex. 2] which are your notes from [Dec. 14, 2022]. . . . you list it as ‘mitigating circumstances; section was put on egress,’ correct?

A: Yes.

Q: So [the Mine was] following [its] egress plan at the time?

A: Correct. Yeah. The roof control plan. Yes.

Tr. 85:1 – 86:5, See
also Sec. Ex. 2, first set, at 13 (identifying “Section was put on egress”
as a mitigating circumstance).

49 Please pay penalties electronically at Pay.Gov, a
service of the U.S. Department of the Treasury, at
https://www.pay.gov/public/form/start/67564508. Alternatively, send payment
(check or money order) to: U.S. Department of Treasury, Mine Safety and Health
Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include
Docket and A.C. Numbers.