Banner Blue Coal Company

Plain-English summary

MSHA cited dust-collection systems on two roof bolters after finding dust behind their filters. Judge George A. Koutras held that dust behind a filter showed the systems were not maintained in operating condition, and he rejected the company's claim that the inspector's method of checking behind the filters was an unannounced enforcement change. He removed both S&S designations because the inspector did not credibly establish that hazardous silica dust was airborne, that operators were exposed for a prolonged period, or that serious lung disease was reasonably likely. Moderate negligence was affirmed for both violations. The Judge also approved settlement of a scoop-brake citation by reducing the expected injury severity and penalty. He assessed total penalties of $1,884.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 72.630(b) and 75.1725(a)
• Outcome: Two dust-collector violations were affirmed as non-S&S with penalties of $750 and $500, and the brake citation was settled for $634.
• Key point: Dust found behind a filter can establish an operating-condition violation, but S&S requires credible proof that hazardous dust exposure was reasonably likely to cause serious illness.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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�SEQ CHAPTER \h \r 1 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON , D.C. � 20001

(202) 434-9950

June 4, 2012
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SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

BANNER BLUE COAL COMPANY

Respondent 

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CIVIL PENALTY PROCEEDINGS

Docket No. VA 2010-288

A.C. No. 44-06685-210987

PAW
PAW MINE

Docket
No. VA 2010-289

A.C. No. 44-07046-210990

LOCUST
THICKET

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DECISION

Appearances:�� Robert E. Motsenbocker, Esq., U.S. Department
of Labor, Office of the Solicitor, Nashville, Tennessee, for the Petitioner

Robert
Huston Beatty, Jr., Esq., Dinsmore and Shohl, Morgantown , West Virginia ,
for the Respondent

Before:
���������� Judge Koutras

�����������������������������������������������

STATEMENT OF THE CASE

These
civil penalty proceedings pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 802, et seq. (2000), hereinafter the �Mine Act,� concern two
Section 104(a) significant and substantial (S&S) citations served on the
respondent on December 8, and 9, 2009, alleging violations of mandatory health
standard 30 C.F.R. � 72.630(a). A hearing was held on September 7, 2011, in Abingdon , VA ,
and the parties appeared and participated fully therein. The parties filed
post-hearing briefs, and I have considered their arguments in the course of
this decision.

The Alleged Violations

Docket No. VA 2010-288

Section
104(a) S&S Citation No. 8170287, December 9, 2009, 30 C.F.R. � 72.630(b),
states as follows (Ex. P-l):

The
No. 1 Fletcher Dual Head Roof Bolter (Serial No. 90114) used in the face area
of the 002 MMU, the dust collection system was not
maintained in permissible operating condition. The filters were allowing dust
to get into the clean air that is returned out through the blower motor and in
to the mine air. This dust contains silica and is a known cause of lung
problems in mining. The dust would be spread across the left half of the
working section, exposing bolter crew and miner and shuttle cars operating in
the LOCC.

Docket No. VA 2010-289

Section
104(a) S&S Citation No. 8170285, December 8, 2009, 30 C.F.R. � 630(b),
states as follows (Ex. P-3):

The
dust collection system on the DBT Dual Head Roof Bolter (Serial No. 62-862R)
used in the face area of the 001 MMU, was not maintained in permissible
operating condition. The filter in the operators side dust box, had dust
collecting behind the filter in the exhaust air for the system, thus this allows
the dust to travel through the blower and in to the mine air, where personnel
are exposed to the dust.

MSHA
Inspector Johnny Asbury testified about his mining experience and training,
and confirmed that he issued Citation No. 8170287 on December 9, 2009, and
confirmed the notes that he made that day (Tr. 7-19; Exs. P-l, P-2). He
explained that the cited roof bolter dust collection system was not maintained
in permissible condition because he observed dust coming out through the
machine mufflers when it was started and placed in operation. He opened the
dust collector box that housed the dust filter and observed a �dent place on
the side� of the filter that had been �bent in pretty hard� (Tr. 7-23).

Mr.
Asbury stated that he observed that a rubber bushing used to seal the top of
the filter with a metal wing nut was missing, allowing dust to escape (Tr. 24).
He removed the filter, placed his finger in the area behind the filter, and
pulled out approximately one-inch of dust out of the ridges where it by-passed
the filter and accumulated. If the bolter was operating the dust that he found
behind the filter would pass through the mufflers and into the air breathed by
the miners (Tr. 25). He confirmed that Mine Superintendent, David Smith
accompanied him and did not disagree with his observations. Mr. Asbury believed
that someone �banged the filter pretty bad� while cleaning it and that it had
been changed the day before (Tr. 26-27).

Mr.
Asbury explained that the violation was a health violation and that an illness
was reasonably likely to occur because silica dust is heavy and sticks to the
lungs, and given the amount of dust blowing out of the muffler, the roof bolter
and pinner would be breathing in the dust as it passed over them and would
likely be permanently disabling because once it is breathed into the lungs it
results in a disabling condition (Tr. 29). He agreed that while a one time
exposure would not cause injury, the condition cumulatively would contribute to
a lung disease. He based his S&S finding on the fact that it would be more
likely than not that someone would be exposed to the dust (Tr. 32). Mr. Asbury
stated that he based his moderate negligence finding on the fact that the
foreman should have found the condition when he conducted his dust parameters
inspection but may not have seen the accumulated dust behind the filter and the
condition was abated in fifteen minutes by replacing the filter (Tr. 35-36).

On
cross examination, Mr. Asbury confirmed that his inspection field notes are
used �to jog his memory� and are an important part of what he includes in a
citation. After reviewing his notes, he confirmed that they do not reflect that
he pulled one-inch of dust from the area behind the filter. If there was
one-eighth of an inch of dust, it would not create dust through the muffler and
may not have been seen by the foreman (Tr. 44). He also confirmed that his
notes do not reflect that he observed visible dust in the air coming out of the
muffler and commented that �there�s a lot of times you just have to put key
notes where you remember those.� However, in response to a bench question, he
stated that the notation on the citation, that �silica was being dumped into
the fresh air�, referred to the dust coming from the exhaust (Tr. 45-48).

Mr.
Asbury stated that the dust systems are washed out routinely during the
pre-shift examinations and he observed that the filter was dented enough to
damage the paper inside the filter. He conceded that his notes do not reflect
any filter damage and that it should have been recorded (Tr. 52). He identified
a photocopy of a filter that represents the type he cited (Ex. R-2). He stated
that the filter is incased with a wire mesh screen that protects the inside
filtering system and it was this screen that was damaged and pushed in. He made
no notation that the filter inside the cardboard was damaged and although he
believed that the inside and outside filter screen mesh was smashed together,
he made no note of this (Tr. 54-57). He conceded that his belief that the dust
was escaping through the end of the filter with the metal wing nut and missing
bushing is not included in his notes and that it should have been noted (Tr.
59-61).

Mr.
Asbury confirmed that the cited condition was limited to the operator�s side of
the roof bolter. He checked the permissibility of the bolter, and the drill
head suction, dust hoses, and door seals to make sure that they were all in
compliance (Tr. 65). He confirmed that he did not sample the dust to determine
whether it was harmful (Tr. 75-75). Mr. Asbury stated that his S&S finding
of permanently disabling, due to silica exposure and �history of dust
violations� related to all dust violations, including Section 75.400 and
72.630, were factors in that determination (Tr. 79-80).

Mr.
Asbury stated that the discrete hazard in support of his S&S finding was
lung disease that would reasonably likely result in a reasonably serious
injury. He agreed that one dust exposure would not automatically support an
�S&S� finding. However, he considered the amount of time that the bolting
machine was operated constituted long term exposure (Tr. 82-83). Mr. Asbury
confirmed that he was not present at the beginning of the shift when roof
bolting began and that work was taking place at the second row of roof bolts in
the entry. He observed the work for two or three minutes before issuing the
violation and did not know how long the roof bolter had been operated prior to
his arrival (Tr. 84, 87, 90-91).

Mr.
Asbury explained on redirect, that the roof bolting machine was not in
permissible operating condition because visible dust was reaching the fresh air
through the filter wing nut with a missing bushing. Mr. Smith shut the machine
down, washed the area with a hose from the miner machine, installed a new wing,
put it back in operation, and the violation was terminated (Tr. 88-89).

In
response to bench questions, Mr. Asbury stated that the escaping dust would
pass over the top of the bolter operators who are at the front of the machine
and out of the rear exhaust (Tr. 93). He confirmed that he could not visibly
distinguish silica dust from other dust. He determined it was not coal dust
coming out of the exhaust because he could see it was white in color. He is not
required to perform any dust tests, and was taught to rely on his observations
that the dust �was going to cause some kind of exposure to support a violation�
(Tr. 95). He confirmed that replacing the filter wing nut with a new one that
provided a proper seal rendered the machine permissible (Tr. 97).

MSHA
Inspector Johnny Asbury confirmed that he issued citation number 8170285,
on December 8, 2009, after he observed dust coming through the DBT roof bolting
machine exhaust. Superintendent, Todd Belcher was with him and they were trying
to determine the source of the dust by opening one of the machine dust boxes
(Ex. P-3, Tr. 100-101).

Referring
to his notes, (Ex. G-4), Mr. Asbury stated that they found a hole in the wire
mesh, on the side of a filter that was bent and not sealed, allowing dust to
accumulate behind the filter. He stated that the filter had been replaced
earlier and confirmed that management had a policy of changing filters each
week (Tr. 103-107).

Mr.
Asbury stated that the hole in the filter allowed dust to pass through it and
posed a health hazard because the dust is returned to the fresh air through the
bolter blower motor and out through the exhaust. He stated that Mr. Belcher
corrected the condition by removing the filter from the box and replacing it
after washing it and the condition was abated in twenty minutes. He stated that
Mr. Belcher found that the accumulated dust behind the filter was caused by the
hole in the filter and that they both put their fingers behind the filter area
and �it was all full with dust� (Tr. 108).

Mr.
Asbury stated that the cited standard, 30 C.F.R. � 72.630(b) requires the roof
bolter dust collection system to be maintained in a permissible operating
condition, and he determined that it was not (Tr. 109). He confirmed that he
did not sample the dust and that the cited condition was likely to cause injury
or illness to miners, namely pneumoconiosis, black lung, and exposure to silica
dust (Tr. 110).

Mr.
Asbury stated that the condition would result in lost work days or restricted
duty, as opposed to permanent and disabling, because there was enough air
ventilation that could �clear the dust out a little quicker� than the previous
violation he issued. He believed that the section foreman who was responsible
for performing the dust parameters should have observed the dust coming out of
the exhaust as soon as the machine was in operation. Although he believed that
the foreman had three to four hours after lunch to observe the condition, he
determined that the violation was the result of moderate negligence because of
the increased amount of ventilation air and the fact that the foreman may have
been occupied with a broken belt situation (Tr. 112-113).

Mr.
Asbury stated that when he issues dust violations he considers problems other
than silica, such as emphysema and lung and heart conditions. He noted only
silica in his notes because it causes silicosis and remains in the lungs while
coal dust can be coughed up while white heavy dust will not and that his father
died from exposure to silica. He estimated from the amount of dust he found
that the condition existed for more than one cut or at least 45 minutes to an
hour. He confirmed that he has never studied or received any medical training
concerning the effects of silicosis on the lungs (Tr. 150-154).

On
cross-examination, Mr. Asbury confirmed that he issued both of the
citations on December 8 and 9, 2009, at two different mines. He was not the
regular inspector assigned to these mines and he was functioning as a roof
control specialist. He did not believe this was unusual and that he regularly
scheduled his own inspections and that greater emphasis had been placed by MSHA
on Virginia and Kentucky mines where there was exposure to black lung and
silica cases (Tr. 116-117).

Mr.
Asbury stated that he observed visual dust in the air behind the roof bolter
located in the number four entry behind the continuous miner, which was in the
number five entry. He believed the roof bolter was approximately forty-feet
(two-cuts), inby the last open cross-cut in the entry where he observed it, but
there was nothing in his notes to confirm this location, nor did his notes
reflect which entry it was located in (Tr. 120-121).

Mr.
Asbury stated that he uses �key words� in his notes at the time he observes a
condition, but admits that he misses a lot of issues. He explained that as he
reads his notes �it puts me back into the mine area and puts my mind back in
the same day I was there�, and that his testimony concerning dust suspended in
the air is based on what he remembered after reading through his notes rather
then what he recorded when he issued the citation (Tr. 125-126).

Mr.
Asbury stated that he was not required to take any dust samples to support the
violation because he was citing the dust that was in the system that was not
maintained in permissible operating condition and not what was in the dust. He
was not required to sample the dust to substantiate his S&S finding because
the presence of visible dust in the air is enough to establish that finding
(Tr. 129).

Mr.
Asbury confirmed that the violation was terminated after the dust collection
box was cleaned out and washed and his notes do not reflect that the filter was
changed (Tr. 132). He further confirmed that his notes do not reflect that the
filter had a hole through the mesh and through to the cardboard. He believed
the hole was one-half inch, but he did not measure it, and it appears that it
was hit by �a rolled steel punch, about the size of a roof pole� at the top of
the filter (Tr. 134).

Mr.
Asbury suggested that Mr. Belcher also saw the hole while they were trying to
determine the source of the dust. He stated that he did not record that Mr.
Belcher also found the hole, and that he spoke to the bolters about the hole in
the filter and they informed him that the filters are changed weekly. He
confirmed that the respondent changed the filters weekly irrespective of their
condition (Tr. 137).

Mr.
Asbury confirmed the absence of any evidence that any airborne dust was
actually being ingested by the bolter operators and he had no reason to believe
that the air ventilating the roof bolt entry was out of compliance because he
observed air movement that was pushing any dust through the line curtain as
required by the ventilation air blowing system (Tr. 137). Mr.
Asbury stated that the section foreman is responsible for performing the
permissibility examination before production starts and there is no distinction
when there is a �hot seat� change or between shifts. He based his moderate
negligence finding on the fact that the foreman probably made the examination
but may not have seen the condition and he took the foreman�s word that he made
the examination (Tr. 141).

Mr.
Asbury was not present when the shift started and had no evidence that the
cited conditions existed at that time. He confirmed that he had no way of
determining whether the dust he observed in the atmosphere was silica dust,
rock dust, or coal dust (Tr. 144). His determination that the condition was
reasonably likely to result in a reasonably serious injury was based �on a lot
of other conditions� that he did not record. He also considered several prior
dust citations, but did not produce them and conceded that he only reviewed a
computer list of dust citations that may have related to violations other than Section
72.630(b), and did not review those cited conditions (Tr. 145-147).

David
Smith, Superintendent of Locust Thicket Mine, testified that he had 38
years of underground mining experience, and is a certified mine foreman,
electrician, and holds shop foreman, dust sampling, and advanced first aid
cards. He had three years of experience operating a Fletcher dual head roof
bolter. He was the superintendent of the Paw Paw Mine on December 12, 2009, and
traveled with Inspector Asbury during his inspection that day (Tr. 157-163).

Mr.
Smith stated that the roof bolter was parked in the number three entry and the
back of the bolter was sticking out of the intersection in the area of the last
open crosscut where roof bolting was taking place and two complete rows of
bolts had been installed. The bolting machine was in operation and Mr. Asbury
told him he wanted to check it. As they approached the machine, Mr. Asbury said
nothing about visible dust in the air, at the rear of the bolter, and Mr. Smith
observed no visible dust (Tr. 163-166).

Mr.
Smith stated that he shut the bolter down so that Mr. Asbury could inspect it,
denied that he shut it down because it was emitting visible dust through the
muffler, and Mr. Asbury did not tell him he was shutting it down for that
reason. He stated that Mr. Asbury checked the vacuum on the drill pot head,
looked at the dust hoses, and stated that he wanted to check the dust boxes.
The bolter operators and Mr. Smith did not notice any visible dust in the air
when it was started, and confirmed that Mr. Asbury did not find any problem
with the drill heads, vacuum, or hoses (Tr. 167-169).

Mr.
Smith stated that Mr. Asbury checked the operator side of the bolter and after
the operator took his dust filters out, Mr. Asbury placed his finger behind the
filter area and �got a little film on it� and told him there was dust behind
the filters that needed to be washed out. Mr. Smith stated that he did not
check the area with his finger and that Mr. Asbury was not wearing gloves and
had �a light film of dust� on his finger and did not measure the dust or take
any sample (Tr. 171).

Mr.
Smith stated that the two stacked filters were removed for inspection. He
examined the outer area of the first filter where the wire mesh circles the
paper inside the filter and observed no damage, dents, or crushing of any kind.
He then examined the second filter and found no damage, dings, dents, or
smashing (Tr. 174). He stated that the dust behind the filters was washed out
with a gallon jug of water that was kept on the bolter. The dust boxes were
then closed, and when the drill was started, the water was flushed through the
muffler, and the entire inspection took five minutes. The filter was put back
and roof bolting continued. The same two cited filters were put back and were
not replaced, and he observed nothing that was done to seal the filter.

Mr.
Smith stated that all purchased Donaldson brand filters include a plastic wing
nut that is taped to every filter, and that he did not see any metal wing nut described
by Mr. Asbury. He stated that each filter is changed out as a regular procedure
on the first day of the work week without limitation (Tr. 178). He observed no
dust at the rear or over the bolter, or at the face area where bolting was
taking place, and he received no complaints of any airborne dust emissions from
the bolter operators (Tr. 188).

Mr.
Smith did not recall whether Mr. Asbury asked him if he disagreed with the
violation, he confirmed that he did disagree, and commented to Mr. Asbury after
the first filter was removed that �I didn�t think that was a violation for that
little old bit of film and dust being behind the filter� (Tr. 182).

Mr.
Smith stated that production had started before the violation was issued and
that Foreman, Joe Waynick would have conducted a permissibility examination of
the dust collection system prior to activating the section. Mr. Smith verified
that the examination took place when he checked the board at the power center
and that Mr. Asbury made no inquiry about this. Mr. Smith stated that such an
examination does not include the removal of the filters from the dust boxes and
he was not aware of any MSHA regulation that required that this be done (Tr.
183 -185).

On
cross-examination, Mr. Smith stated that if he observed roof bolters
emitting dust as a result of a damaged filter, he would promptly take
corrective action because the dust causes danger to health. He did not know
whether a single exposure was dangerous, but if he observed it, he would shut
the machine down because of the following contention: �I don�t want to breathe
anymore then I have to because it hurts in the long run and gives you black
lung� (Tr. 186-188).

Mr.
Smith agreed that a roof bolter dust collection system is covered by mandatory
Section 72.630(b). A filter with a hole in it is not considered to be in
operational condition. If he were to find that dust was getting on the inside
or clear air side of the filter, he would wash it out and replace it if it had
a hole in it. He confirmed that a filter would be in properly operating
condition if it was not blowing dust out of the muffler (Tr. 191-192).

Mr.
Smith agreed that he had testified without the benefit of notes to the
inspection which occurred two years ago, and that he filled out an accountability
form for every violation, and did so in this case, and remembered what
transpired without notes. He confirmed that he would only remove a filter if he
believed there was a vacuum problem or he saw dust coming out of the filter,
and he agreed that if he saw dust coming out of the muffler, the prudent thing
for the inspector to do would be to look for the source of the dust (Tr. 193).

Mr.
Smith clarified the examination by the foreman and stated it was a dust
parameter examination and not a permissibility examination that does not
include removing the filter. A dust parameter examination includes a proper
vacuum on the pinner head, the dust collection hoses, and a machine check for
any blowing dust out of the machine bottom. There is no MSHA regulation
requiring the removal of the filters during a parameter check. He agreed that
if a roof bolter is emitting dust, removing the filter to determine the source
is acceptable (Tr. 195-196). Mr. Smith reiterated that he saw no dust coming
out of the muffler and that he only observed �a film of dust� and saw no dust
behind the filter area after it was removed (Tr. 202).

Willy
Todd Belcher, Paw Paw Mine maintenance foreman, testified that he had 24
years of underground mining experience as a foreman, electrician, and
maintenance worker.� His experience
included work with dust collection systems and DBT dual head roof bolters. He
confirmed that he was the Locust Thicket mine superintendent when the citation
was issued and traveled with Inspector Asbury during his inspection (Tr.
204-207).

Mr.
Belcher stated that the roof bolter machine was backed into the intersection of
the number five entry and no bolting was taking place. He and Mr. Asbury
approached the machine from the operator�s side, and after checking the drill
top vacuum the machine was started. Mr. Belcher observed no airborne dust and
did not recall whether Mr. Asbury told him that he observed visible dust when
the machine was started. The dust boxes were then removed and Mr. Asbury did
not go to the back of the machine to check the mufflers until after checking
the dust boxes (Tr. 213-214).

Mr.
Belcher stated that after the filters were removed he observed �a small film of
dust on the back side of the dust box where the filter sits.� The dust box tray
was not removed and there was no dust in the boxes. Mr. Belcher stated that
after the bolter operator removed the filter wing nut to pull out the filter,
he held it and that �it looked fine� (Tr. 216-217). Mr. Belcher denied that he
told Mr. Asbury that he would shut the machine down to correct the condition
because the section was down for an unrelated problem. He observed no hole in
the filter and denied that Mr. Asbury informed him that the filter needed to be
changed because of the hole and he could not recall that the filter was changed
(Tr. 219).

Mr.
Belcher stated that Mr. Asbury took no dust measurements or samples and that
�he more or less stuck his finger back in there, like my wife would do to wipe
dust, and got some on his finger� (Tr. 219). Mr. Asbury then advised him that
he would issue the citation as an S&S violation because of the dust behind
the filter, and Mr. Belcher voiced his objection because there was no dust in
the air, the bolter was not operating and was parked in the intersection with
fresh air (Tr. 220). He stated that the dust boxes were cleaned out after each
cut and that mine policy required the changing of the filters on the first
shift of each week, and more often if necessary (Tr. 221).

Mr.
Belcher stated that he received no dust complaints from the bolter operators,
and disagreed with the violation �because it just had a small film behind it,
and no dust was in the air or on the muffler�. He believed there was a change
in MSHA�s dust enforcement and that �years ago unless it was dusting heavily
you never seen a violation like this�. He explained that during his maintenance
experience he has never observed an inspector remove a filter and reach behind
the area with his hand to remove dust film (232-233).

On
cross-examination, Mr. Belcher confirmed that he has traveled with many
inspectors and usually does not take notes but does discuss the violation with
the inspector. He has traveled with Mr. Asbury 20 or 30 times, and considered
him to be honest and thorough, and had no reason to believe that he lied during
his testimony about what he observed. He could not recall whether Mr. Asbury
told him that there was a hole in the filter, but he indicated that he would
have remembered it.� He also believed
that Mr. Asbury would have recorded the hole and the filter changes, but only
�recorded exactly what we done, cleaned it down and washed it down� Tr.
226-229). He agreed that any prolonged exposure to dust would be a health
problem (Tr. 231).

Eddie
Taylor testified that he was a certified maintenance foreman and
electrician and confirmed that he was familiar with citations 8170287 and
8170285 issued at the Paw Paw and Locust Thicket mines, and he was the
maintenance superintendent at both mines when they were issued. He confirmed that
he was familiar with the Fletcher and DBT roof bolters and he explained the
differences in the two dust collection systems and explained the functions of
the dust boxes, filters, and other components of the system, including the
filter area of the dust box (Tr. 249-260; Exs. R-5 - R-7). He stated that the
dust collection systems on both bolters are functionally the same (Tr. 249-261;
Exs. R-5 - R-7).

Mr.
Taylor confirmed that it is possible that a dust collection system could be
operational but not permissible. He explained that permissibility encompasses
the dust hoses, clamps, and associated parts from the drill pot to the blower,
and if a clamp were missing the machine would not be permissible but would be
operational (Tr. 261).

Mr.
Taylor stated that the two contested citations were emailed to him and he
reviewed them after they were issued but never discussed them with anyone at
the two mines at that time. However, he subsequently visited the Paw Paw mine
to speak to superintendent, David Smith and maintenance chief, Donald Giffey
about Citation No. 8170287. Mr. Smith told him there was no dust blowing in the
atmosphere and the only dust found was behind the filter. He also spoke with
Todd Belcher at the Locust Thicket mine who informed him that there was no dust
in the air and that Inspector Asbury showed him dust on his finger which had
accumulated behind the filter area (Tr. 263-264).

Mr.
Taylor stated that over the prior two years MSHA has changed the way it is
enforcing and issuing Section 72.630(b) citations for the dust collection
systems. He explained that in the past, if a clamp was missing or the dust hose
was not exactly one that was approved, it was not an issue as long as the dust
system was maintained in fairly reasonable condition. Further, the dust boxes
were not inspected �that carefully�, and if it passed the vacuum test and the
system �Visually looked okay� it was considered a good system at that time (Tr.
266-267).

Mr.
Taylor did not believe that the presence of dust in the area behind the filters
established that dust was being emitted into the atmosphere because dust can
accumulate in that area and the system will not pick it up because it is lodged
or stuck, and any dust film or residue would not be emitted into the air. He stated
that there was no way to check the area beyond the filter dust box where it
exited the rear of the bolter to determine the presence of any collected dust
and he did not believe it was possible for the dust collection system to be 100
percent efficient because of operational filter sealing variables (Tr.
268-270).

Mr.
Taylor stated that Mr. Smith and Mr. Belcher never informed him that Inspector
Asbury mentioned any filter hole or damage or missing washer behind a wing nut
(Tr. 276). He confirmed the standard operational procedures requiring weekly
roof bolter filter changes at the beginning of the day and owl shifts, and six
additional spare filters, and records are required to show the date of the
filter changes. Dust boxes are required to be cleaned and dust is �tapped out�
of the filters after each working place is bolted. He agreed that it was
possible to strike a filter hard enough to damage the screening, but had never
observed anyone doing this. He was not aware of any dust emission complaints from
the roof bolter operators (Tr. 277-283).

On
cross-examination, Mr. Taylor stated that if there was a half inch of very
fine dust accumulation behind the machine filter area, and the machine was
started, it could be emitted out through the blower, but if it was wet
compacted dust, it may not move out if the half-inch dry dust moved out into
the air through the exhaust manifold. It would be possible that what remained
behind the filter would be a thin film of dust, and some of the dust would
reach the atmosphere. If there were two-inches of dust, it would be more
probable than possible, and if four inches of dust, with a remaining thin film,
the rest would have been emitted (Tr. 289-290).

Discussion, findings, and conclusions

Both
Citation Nos. 8170185 and 8170287, issued in Docket Nos. VA 2010-288 and VA
2010-289, allege violations of 30 C.F.R. � 72.630(b) and relate to virtually
identical alleged conditions on two different models of roof bolters. The cited
regulatory standard states as follows:

(b)
Dust collectors. Dust collectors shall be maintained in permissible and
operating condition. Dust collectors approved under Part 33-Dust Collectors for
Use in Connection with Rock Drilling in Coal Mines of this title or under
Bureau of Mines Schedule 25B are permissible dust collectors for the purpose of
this section.

The
petitioner�s post-hearing brief only addresses Citation No. 8170285, and not
Citation No. 8170287. However, given the similarity of the alleged conditions,
I have considered the petitioner�s arguments and have applied them to both
citations.

The
petitioner argues that the violations are supportable because the inspector
discovered a hole in a filter which allowed dust to bypass and collect behind
the filter and contaminate the clean air in the work area. That alleged
condition relates to Citation No. 8170285 for the DBT bolter. The two
citations, on their face, do not specify or describe the alleged defective
filter conditions that were described by the inspector at the hearing.

The
respondent argues that both of the cited bolters were in permissible condition
as required by Section 72.630(b), and that the petitioner�s allegations that
the bolter dust collection systems were defective or damaged were refuted by
the testimony of its employees.

With
regard to the cited DBT bolter dust collection system, the respondent asserts
that the testimony of the inspector, that the filters were dented, was likely
the result of efforts to clean the filters by tapping dust out of them.� This testimony is refuted by employee,
Belcher�s testimony that the filters were not damaged in any way, and employee,
Taylor �s
testimony that he has never seen anyone �tap� the dust out of the filters with
such force as to collapse the steel filter mesh.

The
respondent points out that none of the alleged filter defects or damages
testified to by the inspector are recorded in his inspection notes, including
his testimony that when the filter was pulled out he saw damaged and pushed in
metal screening.

With
regard to the inspector�s testimony that a metal wing nut on the side of the
Fletcher roof bolter filter was missing its bushing (rubber washer), respondent
again points out that the inspector�s notes do not mention any missing bushing
wing nuts, and that employee, Smith definitively testified that the filter had
the requisite wing nut.

The
respondent argues that the inspector could not prove his assumption that the
missing bushing was allowing dust to enter the dust collection box without
passing through the filter, and that the majority of the dust located behind
the filter was coming from the area of the missing wing nut, and that his
conclusion was based solely upon the amount of dust he allegedly visually
observed in the area.

The
respondent points out that the inspector made no mention of any of the
aforementioned information in his notes, admitted that he should have done so,
and conceded that even if the damage existed, it would not affect the
structural integrity of the seal. Under all of these circumstances, the respondent
concludes that the dust collection system was permissible.

The
respondent maintains that the petitioner has not proved that the cited dust
collection systems on the two cited roof bolters were not in �operating�
condition based on the inspector�s testimony that the presence of dust in the
mine atmosphere was indicative of the inoperable condition of the dust
collection system. Conceding that there is some Commission authority supporting
the petitioner�s assertion that the presence of dust on the clean side of a
machine is indicative of the fact that a filter was being bypassed, respondent
believes the facts in the instant case are distinguishable.

The
respondent points out that the inspector said nothing about dust in the air
when he approached the bolter, and that his notes do not reflect the presence
of visible dust in the atmosphere. Respondent further relies on the testimony
of Smith and Belcher that they observed no airborne visual dust in the DBT and
Fletcher area, and that they considered both bolters to be in operational
condition.

The
respondent maintains that even assuming the truth of the presence of dust in
the atmosphere, the inspector nonetheless conceded that due to the mine blowing
ventilation, as well as the downwind location of the bolter, it was possible
that the bolter was generating dust while installing roof bolts creating �a
little blow back�. Respondent relies on the testimony of maintenance
superintendent, Eddie Taylor, who has 33 years of mining experience. Mr. Taylor
testified that it was possible for a dust collection system to be operational,
and yet not permissible.

Respondent
further relies on Mr. Taylor�s testimony that the purpose of the dust
collection system is to collect the dust emitted when drilling the roof and depositing
it into the dust collection box; and, the purpose of the filters is to catch
the dust before it exits into the blower system. Mr. Taylor testified that a
small film of dust behind the filters does not necessarily mean that dust was
emitted into the atmosphere because it can accumulate in that area and not be
picked up because it is a film residue or lodged or stuck. Respondent concludes
that the testimony of Mr. Belcher, Mr. Taylor, and the inspector reflects that
the dust collection systems are not 100% efficient.

The
respondent takes serious issue with the numerous discrepancies between the
inspector�s hearing testimony and what he recorded, and what was significantly
omitted from his notes, particularly in light of his acknowledgment that his notes
are a very important part of what he includes in his citations. As an example
of significant omissions, the respondent cites the inspector�s testimony, that
he pulled one inch of dust from behind the Fletcher bolter, but did not mention
this in his notes. Respondent points to the admission by the inspector that
one-inch of dust should have been recorded to support his testimony of visible
dust in the area, particularly in light of his testimony that 1/8 inch dust
would only be blowing through the drill muffler.

Finally,
the respondent cites the testimony of Mr. Belcher and Mr. Smith that MSHA had
not previously used the inspection method of running a finger in the area
behind the filter to detect any dust, and that the instant inspections
constituted a change in enforcement. Respondent cites Mr. Belcher�s testimony
that he has never previously observed an inspector wipe his finger to check a
film of dust and that �years ago unless it was dusting heavily you never see a
violation like this�, and Mr. Taylor�s testimony that in the past, �dust boxes
were just looked at and not inspected carefully�, and �if the system vacuum was
operational and usually looked okay, it was a good system at that time.�

The
respondent maintains that the dust inspection �finger method� used by the
inspector is a MSHA enforcement change adopted without fair due process notice
to the respondent. Respondent maintains that Section 72.360 is clear and
unambiguous, and while the regulatory text has not changed, MSHA has changed
its interpretation without issuing any policy guidelines, or informational
letters or bulletins to provide the regulated community notice of the change.
Respondent concludes that a reasonably prudent person would not expect an
enforcement change, particularly since it is unreasonable to test the area
behind a filter and use the results as an indicator of compliance with Section
72.630(b).

I
conclude and find that the collector box filters are an important and integral
part of the dust collector system. The purpose of a filter is to absorb and
isolate any dust before it exits into the machine blower system.
Notwithstanding the disputed testimony of the inspector attributing the source
of the dust behind the filter areas to damaged filters, the fact remains that dust
was found in those areas.

I
further conclude and find that even though a small amount of dust that has
bypassed a collector box filter and accumulates behind it may not immediately
result in an emission into the mine atmosphere, it poses a potential for doing
so, and adversely contributes to the operational effectiveness of the dust
collector system. Accordingly, I conclude and find that the bolter dust
collection systems were not maintained in operational condition as required by
Section 72.630(b). The violations ARE
AFFIRMED.

The
respondent�s arguments that the inspector�s �finger method� for detecting the
dust found behind the collection box filter area constituted an enforcement
change without due process notice are not well taken. The fact that Mr. Belcher
and Mr. Smith never previously observed that method being used is irrelevant.
In this case, Inspector Asbury met with Mr. Belcher and Mr. Smith, were
attempting to locate the source of the dust, and the boxes were opened and the
filters were removed as part of that process. I take note of Mr. Smith�s
testimony that he would remove a filter for inspection if he observed dust
coming out of a bolter muffler, and agreed that it would be a prudent thing for
an inspector to look in to the filter area to determine whether it was the
source of the dust (Tr. 193).

�I conclude and find that the inspection
process used by the inspector in an attempt to locate the dust that he believed
was being emitted from the bolter exhaust systems was reasonable in the circumstances
and was not the result of any enforcement changes. I cannot conclude that
increased enforcement scrutiny or focus on potential health hazards constitutes
an unreasonable change in MSHA�s interpretation of Section 72.360, or its
application to Section 72.360(b). Accordingly, the respondent�s arguments ARE REJECTED.

Significant and Substantial Issues

A
significant and substantial (�S&S�) violation is described in Section
104(d)(1) of the Act as a violation �of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard.� A violation is properly designated S&S �if based upon
the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.� Cement
Div., Nat�l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

The
Commission has explained that:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) a discrete safety hazard-that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133,135 (7th Cir. 1995); Austin Power.
Inc. v. Sec�y, 861 F.2d 99, 103-04 (5th Cir. 1988), aff�g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria).

In
U.S. Steel Mining Co., Inc., 7 FMSHRC
1125, 1129 (Aug. 1985), the Commission provided additional guidance:

We
have explained further that the third element of the Mathies formula �requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which
there is an injury.� U.S. Steel Mining
Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(l), it is the contribution of a
violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., Inc.,
6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (Jury 1984).

This
evaluation is made in terms of �continued normal mining operations.� U.S. Steel Mining Co., Inc., 6 FMSHRC at
1574. The question of whether a particular violation is

significant
and substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007 (Dec. 1987).

Inspector
Asbury cited the Fletcher roof bolter after he removed a filter from the dust
collection box and stuck his finger behind the filter area and pulled out what
he believed to be approximately one-inch of dust. He confirmed that he did not
measure the dust and that his notes do not reflect that he pulled out that
amount of dust.

Mine
superintendent, David Smith, who was with the inspector, confirmed that he
observed the inspector reach in the area behind the filter, wipe it down, and
�got a little bit of light film� of dust on his finger (Tr. 170-171). He stated
that he informed the inspector that he did not believe there was a violation
�for that little old bit of film and dust behind the filter� (Tr. 202). He
further confirmed that the dust in the area behind the filter concerned the
inspector because he believed it would get out in the atmosphere through the
muffler (Tr. 196, 199-200).

Inspector
Asbury cited the DBT bolter after the dust collection box was opened and the filter
was removed so that he could inspect the area behind it. He placed his finger
into that space behind the filter and found an accumulation of dust, but did
not measure it. His notes reflect the presence of dust behind the filter. He
confirmed that the bolter was operating when he initially arrived at the area
and that he observed �quite a bit of dust� coming out of the rear exhaust
system muffler (Tr. 114-115). His notes include a brief reference that �silica
was being dumped into the fresh air� (Ex. P-2 at 11).

Maintenance
foreman, Todd Belcher, who was with the inspector, confirmed the presence of
dust behind the filter area after it was removed. Mr. Belcher described the
dust as a small film behind it that he observed on the inspector�s finger (Tr.
219, 232). He also stated that the condition �might be a violation, but not
S&S (Tr. 220).

Inspector
Asbury�s determinations that the roof bolter dust collection system, which in
this case is comprised of the dust collector boxes, including its component
parts, and filters, were not maintained in permissible condition, or in a
permissible operating condition, in violation of Section 72.630(b), is based on
his asserted observations of dust being emitted from the rear of the bolter
machine into the atmosphere clear air.

The
respondent maintains that both bolters were in permissible condition pursuant
to Section 72.630(b), and that the petitioner has not proved that the bolter
dust collection systems were not in operating condition. The regulation
requires dust collectors to be maintained in permissible and operating
condition.

The
respondent does not dispute the presence of dust found by the inspector upon
his examination of the areas behind the collector box filters. Its dispute
focuses on the absence of any credible testimony or evidence establishing the
presence of dust being emitted into the atmosphere from the cited bolters.

I
find merit in the respondent�s arguments regarding the inspector�s failure to
document his observations of airborne dust and damaged filters, and the absence
of any references to these alleged conditions in his notes. However, I accept
as credible the inspector�s testimony regarding the presence of dust that he
found behind the filter areas, and take note of the fact that respondent�s
witnesses, Smith and Belcher, disputed the amount of dust, but not its
existence.

With
regard to the DBT bolter Citation No. 8170185, the petitioner argues that the
inspector determined �quite a bit of dust� was blown out of the muffler �pretty
quickly,� bypassing the filter right over the top of two men operating the roof
bolter, who �were breathing every bit of it� (Tr. 114-115). The petitioner
asserts that there was a reasonable likelihood the dust contained silica, which
is a leading cause of lung conditions (Ex. G-4 at 9), at the time the inspector
issued the citation, and he engaged in a discussion with the miners about black
lung and the importance of good dust control (Ex.G-4 at 8-10).

The
petitioner concludes that the Mathies
test is met because a discrete safety hazard violated a mandatory health
standard and made it reasonably likely that a reasonably serious injury would
result. Petitioner further argues that because a single exposure of respirable
silica dust can �contribute to� the illness of silicosis, it is considered
significant and substantial; that is, the petitioner is not required to prove
that the subject exposure alone will cause the illness, citing Genwal Resources Inc., 27 FMSHRC 580
(Aug. 2005) (ALJ Manning).

The
respondent argues that the petitioner has failed to establish that the two
citations were significant and substantial. With regard to the Fletcher bolter,
Citation No. 8170287, the respondent asserts that although the inspector
believed that the exposure to dust in the air, that he claimed he observed,
will result in injury to the lungs over a long period of time, he conceded that
one exposure cannot automatically support an S&S finding, and that he only
observed the condition for two or three minutes, and had no knowledge with
regard to the length of time that the exposure lasted.

With
regard to the DBT bolter Citation No. 817085, the respondent argues that
although the inspector based his S&S finding on his alleged observation of
dust in the atmosphere, as well as the dust behind the filter, he took no dust
sample. Further, although the inspector also based his S&S determination on
previous dust citations, no evidence was provided regarding those citations.
The respondent points out that Section 72.630(b) does not involve a violation
of a respirable dust standard, and as such, there is no presumption of S&S,
and that any determination in this regard must be made on the controlling four Mathies factors.

The
respondent asserts that the petitioner has not established that the cited
bolter conditions violated Section 72.630(b). With regard to the existence of
any discrete safety hazard, which the inspector described as exposure to silica
dust which could lead to lung disease, the respondent concludes that since
there is no conclusive evidence of silica dust in the mine atmosphere, there is
no clear evidence that a safety hazard existed.

Regarding
the third Mathies prong, the
respondent argues that there was no reasonable likelihood that the alleged
hazard would result in an injury because there is no clear and undisputed
evidence that dust was present in the mine atmosphere and that the S&S
standard is based on what is reasonably likely to occur, not what �could� or
�might� occur. The respondent further argues that there is no clear evidence
regarding the content of the alleged dust and that the inspector was unable to
distinguish silica dust from other dust, and did not take dust samples to
determine its contents. The respondent recognizes that sampling is not required
to establish a violation of Section 72.630(b), and maintains that the absence
of sampling leaves open the question of the contents of the alleged dust.

The
affirmance of the violations establishes the first Mathies, prong. With respect to the second prong requiring a
discrete safety hazard, contributed to by the violation, the thrust of the
petitioner�s case is that exposure to silica dust during the drilling process
exposes miners to the illness of silicosis, a serious health condition. I agree
that exposure to silica dust may present a discrete safety hazard and measure
of danger to safety contributed to by the violation, pursuant to the second Mathies prong. The third Mathies prong requires proof
establishing a reasonable likelihood that the hazard contributed to will result
in an injury as stated in Cumberland Coal
Resources LP, 33 FMSHRC 2357 (Oct. 2011).

The
contested citations are based on a single dust filter that the inspector
believed was the source of the dust he observed in a ridged area behind the filters.
The inspector concluded that the dust contained silica, ranging in amounts of
one-inch or less in one instance, and a �thin film� in the other. He believed
the dust visible was airborne silica dust in the atmosphere that exposed the
bolter operators to a reasonably likely risk of contracting serious lung
diseases, including silicosis.

The
citations were issued over 2 � years prior to the hearing, and I am troubled by
the inspector�s failure to include any information, as part of his inspection
notes, documenting the condition of the filters, or his visual observations
regarding dust circulating in the air. Although I have affirmed the violations
based on the existence of the dust observed by the inspector behind the
filters, which is not disputed by the respondent, the failure of the inspector
to include notations of his alleged visual observations of airborne silica dust
over the bolting machines and the operators, which is critical evidence, raises
credibility doubts and concerns that he acknowledged when he agreed that he
should have included his claimed observations in his notes (Tr. 45).

The
inspector testified that he based his S&S determination in support of
Citation No. 8170187 (Fletcher bolter), on his belief that the amount of dust
he found behind the filter area contained silica and the respondent�s history
of all dust citations, including Section 72.630, as well as Section 75.400 (Tr.
79-80). His inspection notes reflect that he made that determination at 10:14
a.m., when he issued the citation, and the reason noted is �due to amount of
dust and history on violations on dust� (Ex. P-2 at 9). The inspector believed
that a discrete hazard associated with his S&S determination was lung
disease, but agreed that a single silica dust exposure would not cause an
injury or support an S&S finding. However, he believed that cumulative
exposure that �happens over a long period of time� would contribute to an
injury, and that �seeing it right there, the dust was in the air, and it was a
violation of law� (Tr. 30-31).

The
inspector confirmed that he could not distinguish silica dust from any other
dust, but believed the dust he observed was white, while coal dust is black. He
agreed that rock dust is also white, but did not believe it could get into the
system while drilling was taking place (Tr. 84). He further stated that he was
trained to conclude that his visual observation of dust ��was going to cause
some kind of exposure� to support a violation (Tr. 95, 97). However, he agreed
that a single dust exposure would not cause injury, and that a single dust
exposure will not support an S&S finding (Tr. 32, 82-83).

The
inspector believed that his S&S finding based on his visible observation of
dust in the air is supportable because his citation was based on the presence
of dust in the collector system that rendered it less than permissible and
operational. He explained that he cited the presence of dust in the system and
not the content of the dust (Tr. 128).� I
find this to be contradictory and incredible since the focus of his S&S
determination is based on the alleged silica content of the dust.

The
inspector confirmed that his notes regarding dust exiting the roof bolter do
not indicate that it was suspended or circulating in the atmosphere (Tr.
45-48). He explained that he placed his finger into the muffler and found �dust
caked on the inside that had been washed out through the suction system�, and
he concluded that the dust stuck to the muffler. He conceded that none of these
conditions are recorded in his notes (Tr. 49-50). I find the inspector�s
testimony regarding dust exiting the bolter muffler to be contradictory and not
credible to support his alleged visual observation or airborne dust in the
atmosphere circulating over the bolter operator�s position. I note his
agreement that it was possible that when the bolter was started �it would have
had a little moisture in it and it may have thrown it out right at the start�
(Tr. 34).

I
credit the testimony of respondent�s witness David Smith that he observed no
visible dust in the air as he and the inspector approached the bolter that was
parked and operating and that he shut it down so that the inspector could
inspect it and that the inspector did not tell him that he had observed visible
dust in the air, and found no problems with the bolter drill heads, vacuum, or
hoses. I also credit Mr. Smith�s testimony that the filter was washed out and
bolting resumed (Tr. 167-171).

Although
the inspector believed that the passage of time from the start of the shift
until he arrived at the bolter location was a long term dust exposure, he
admitted that he was not present at the start of the shift, had no idea how
long the bolter was operated, and that he only observed it for two or three
minutes (Tr. 84, 87). In spite of this, he still believed the cited dust
condition had existed from the beginning of the shift when the section foreman
performed his dust parameters, and he based his conclusion in this regard on
his statement that he could determine how long the condition existed �due to
the amount of dust in the air� (Tr. 32-33).

I
reject the inspector�s reliance on the respondent�s history of prior dust
violations that he relied on in part for his S&S determination. No
evidence, other than the prior history, reflected in Exhibit A to the
petitioner�s penalty assessment petition and copies of the asserted prior
citations were produced, and no further information was advanced or introduced
by the petitioner regarding the circumstances of those prior violations.

The
burden of proof lies with the petitioner to present credible evidence
establishing the inspector�s assertions that he observed visible airborne
silica dust in the atmosphere at the time he issued the citations. Undocumented
assumptions and speculations as to what may have

occurred
2 � year ago, that I find lack credibility, are insufficient to establish the
inspector�s S&S determinations with respect to the contested violation.

I
find no credible evidence to support a conclusion that the small amount of dust
of an inch or less observed by the inspector was in fact silica dust. Nor do I
find any credible evidence that any dust that may have been expelled through
the bolter muffler was airborne and circulating over the bolter and bolter
operator�s position, or was likely to be expelled and circulated in the air if
normal mining operations were to continue, particularly in view of the
inspector�s agreement that the dust collection systems are routinely washed out
during the pre-shift examinations, and his confirmation that the bolter
permissibility requirements for the bolter drill head suction, dust hoses, and
door seals were all functional and in compliance (Tr. 52, 65).

After
careful consideration of all of the arguments and credible evidence in this
case, I conclude and find that the third and fourth prongs required by the Mathies tests have not been established
by a preponderance of the credible evidence. In the absence of any credible
evidence establishing that the dust observed by the inspector was silica dust,
the absence of any credible evidence to support the inspector�s asserted visual
observation of silica dust in the air over the bolter or bolter operator�s
position, which I find not credible, and the absence of any credible evidence
that the bolter operator�s were exposed to any dust over a prolonged period of
time, I cannot conclude that it was reasonably likely the dust observed by the
inspector behind the filter of the Fletcher roof bolter would contribute to a
serious lung disease or injury of a reasonably serious nature. Accordingly, the
inspector�s S&S determination IS
MODIFIED to a non-S&S violation.

The
inspector�s S&S determination with respect to the DBT roof bolter (Citation
No. 8170285), is based on the amount of dust he found behind the filter area,
and the respondent�s prior history of dust violations. This is confirmed by his
notation made at the time he recorded his observations that states �made
S&S due to the amount of dust and previous issued citations�, with a
reference to a discussion with the miners concerning black lung and dust
controls (Tr. 144; Ex. P-4 at 8, 10).

The
inspector�s notes confirm that the section was down when he checked the vacuum
on both bolter heads and found that the dust box on the operator�s side �had
dust behind the filter and clean air return�, and that he issued the citation
�for not maintaining dust system in permissible operating condition� (Ex. 4 at
7-8). However, his notes do not include any information with respect to the
�amount of dust� that he observed visible dust circulating in the atmosphere
over the bolter or bolter operators.

The
inspector conceded that he did not measure the dust, even though he could have
readily done so. Although he was not required to measure the dust, since the
�amount of dust� was part of his S&S determination made 2 l/2 years ago
when he issued the citation, which he later described during the hearing as �a
lot of dust�, with no further elaboration, his failure to document this
condition, raises credibility doubts that do not rebut the respondent�s
credible testimony that the amount of dust observed by the inspector was no
more than a �thin film�.

I
credit the testimony of Willy Belcher who testified that when he and the
inspector approached the bolter, it was parked in an intersection in fresh air
and was not bolting. He further testified credibly that after the inspector
checked the bolter vacuum, the bolter was started and the box was removed, but
the dust tray was not. Mr. Belcher stated he observed a small dust film in the
back side of the dust box where the filter was located (Tr. 216-217). I take
note of the inspector�s agreement that when the bolter starts to install a roof
bolt, the drilling action creates dust that creates �a little bit of blow back�
before the suction is activated, and that the resulting dust may not
necessarily be blown back into the clean air system (Tr. 123).

I
find Mr. Belcher�s testimony that he observed no visible air circulating in the
atmosphere over the bolters to be credible. I also credit his testimony that
the inspector stuck his finger behind the filter and that there was a thin film
of dust on his finger and that he voiced his objection to his S&S
determination because the bolter was parked and was not operating and there was
no visible dust in the atmosphere (Tr. 219-220).

Although
the inspector testified that the bolter operators were breathing in �every bit
of the dust�, he conceded there was no evidence that the dust was being
ingested by the operators (Tr. 137). In view of the fact that the section was
down and the bolter was not in operation, I cannot conclude that his
observations are credible. Further, I take note of his confirmation that any
air pushed through the bolter exhaust under pressure would dissipate �real
fast�, and that with the �right amount of ventilating air, the dust is gone and
you do not see it� (Tr. 138).

The
inspector further confirmed that he had no reason to believe that the
ventilation, where the bolter was parked, was out of compliance. He confirmed that
the required amount of air that was present is designed to move out any harmful
dust, and that any dust that he may have observed was moving out through the
line curtain, and that he had no way to determine whether the dust he claimed
he observed in the atmosphere was silica dust, rock dust, or coal dust (Tr.
144).

With
respect to the amount of dust that may have existed behind the filter in
question, which the inspector conceded was not measured, but nonetheless
described by him as �a lot of dust�, I take note of the cross-examination of
foreman, Eddie Taylor who responded to several hypothetical questions
suggesting that any remaining dust accumulations, other than a thin film
residue, ranging from one-half to four inches, would indicate that some of the
dust may at some time have been expelled through the bolter exhaust as visible
airborne dust.

Mr.
Taylor�s responses suggested several possibilities and probabilities, including
whether or not it was �very fine�, �dry�, or �wet compacted� dust, that could
have previously been emitted into the atmosphere before the inspector observed
the conditions that prompted the issuance of the citation (Tr. 288-291). While
it may be possible that a small amount of residue of dust behind the filter may
be an indication that dust was emitted in the atmosphere at some time prior
than the time the inspector issued the citation, it may also be possible that
it was coursed out of the area by the effective air ventilation as described by
the inspector.

I
take particular notice of the inspector�s testimony that he was not required to
sample or test the dust to establish that it was hazardous silica dust because
he did rely on the content of the dust to support his S&S determination.
(Tr. 128). I find this contradicts and undermines his testimony that he based
his S&S finding on his belief that the dust he observed contained silica.

The
petitioner�s arguments that it is reasonably likely that the dust observed by
the inspector behind the filter in the bolter dust box contained silica is
based on his assumption at the time he discovered it, and his discussions with
the bolter operators concerning the hazards of black lung and the importance of
controlling dust. The burden of proof is on the petitioner to establish
credible evidence to establish the presence of any visible airborne hazardous
dust in the atmosphere to support an S&S determination at the time the
inspector observed those conditions and issued the citation, and not on
speculative after-the-fact assumptions that may have been present prior to that
time.

With
regard to the duration of dust exposure, the inspector speculated that it was
possibly 45 minutes, or one cut, based on his assumption that the foreman
should have observed the dust when he conducted his permissibility inspection.
He conceded that he had no knowledge when this was done and that he was not
present (Tr. 153). I find no credible evidence to support any conclusion that
the bolter operators were exposed to any hazardous dust conditions over any
prolonged or extended period of time, and I reject any credible inference that
there were.

I
reject the inspector�s reliance on the respondent�s history of violations as
part of his S&S determination. Aside from its relevance, no information was
forthcoming with respect to the facts and circumstances related to these
alleged violation other than a review of a computer generated list that may
have included violations of dust standards other than Section 72.630(b). The
inspector confirmed that these alleged violations are not listed in the mine
file (Tr. 145-147).

With
regard to my bench comments that the only �repeat violations� of Section
72.630(b), reflected by Exhibit A to the petitioner�s initial petition for
assessment of civil penalties filed in this case reflect two alleged violations
of Section 72.630(b), that are a matter of record before me, the parties
confirmed that there are no stipulations regarding prior violations. Further,
the petitioner�s post-hearing arguments do not address prior history, and it
was not offered or admitted as part of the record.

Based
on the foregoing findings and conclusions, including my credibility findings
regarding the absence of any credible evidence to support the inspector�s
asserted observations of visual hazardous silica dust circulating over the DBT
roof bolters, and the absence of any credible evidence of dust exposure over a
prolonged period of time, and particularly in view of the small residue of dust
that I find was behind the filter, I conclude and find that the third and
fourth prongs of the Mathies tests
have not been established. I conclude and find that under these circumstances,
it was not reasonably likely that the aforementioned conditions would
contribute to a serious lung disease or injury of a reasonably serious nature.
Accordingly, the inspector�s S&S determination IS MODIFIED to a non-S&S violation.����

History of Prior Violations

The
petitioner presented no additional information regarding the respondent�s
history of violations other then Exhibit A attached to its petition for
assessment of civil penalties which reflects no repeat violations of 30 C.F.R.
� 72.630(b), in (Docket No. VA 2010-289), and 8 violations (Docket No.
VA-2010-288). In the absence of any further evidence with respect to the respondent�s
compliance record, I cannot conclude that additional increases in the penalty
assessments for the violations are supportable.

Good Faith Compliance

I
conclude and find that the violations were timely abated and corrected in good
faith by the respondent �����������������������������������������������������������������������

Gravity

I
conclude and find that the violations that have been modified to non-S&S,
as well as the settled violations, are non-serious.

Negligence

Citation
No. 8170287

The
inspector based his moderate negligence finding on the amount of air he claimed
he observed in the air. However, he stated that it was difficult to determine
the negligence level because it was possible that when the foreman began his
dust parameters check before any mining started, the bolter may have expelled
some dust and the foreman may have not seen it or overlooked it (Tr. 33-34). He
determined these mitigating circumstances supported his moderate, rather than
high, negligence finding. I find the inspector�s moderate negligence to be
reasonable and supportable, and it is AFFIRMED.

Citation
No. 8170285

The
inspector based his moderate negligence finding on the possibility that the
condition existed for 45 minutes, and on his assumption that the foreman should
have observed it when he conducted his dust parameters. He confirmed that he
considered the fact that the section was down and that there was a problem with
the belt that may have called the foreman away and he did not see the
condition, and the increased amount of air, as mitigating circumstances that
prompted him to determine that the negligence was moderate and not high (Tr.
112-113, 141). Under the circumstances, I find the inspector�s moderate
negligence to be reasonable and supportable, and it is AFFIRMED.

I
have considered the respondent�s arguments that its standard operating
procedures and practices with respect to its dust collection system, and the
maintenance and changing of filters, are mitigating circumstances that support
low rather than moderate levels of negligence with respect to both citations. Although
these are commendable efforts to insure compliance, I would expect nothing less
from any responsible mine operator, and can conclude that they are
extraordinary mitigating factors.

Size of Business and Effect of Civil
Penalty Assessments on the Respondent�s Ability to Remain in Business

The
parties stipulated that the Locust Thicket Mine had a year 2009 coal production
of approximately 187,780 tons, and 185,016 tons in 2010. The Paw Paw Mine
produced 176,834 tons in 2009, and 222,757 tons in 2010. I conclude and find
that for the purposes of these proceedings, the respondent is a relatively
small to medium mine operator. The parties further stipulated that the proposed
penalties will not affect its ability to remain in business.

Proposed Settlement of Remaining
Violation

Docket
No. VA 2010-288

The
parties filed a motion for approval of a proposed settlement of the following
Section 104(a) S&S violation.

Citation
No.���

30
C.F.R. Section

Assessment

Settlement

8169268

75.1725(a)

$1,412.00

$634.00

The
contested issue, with respect to this violation, is the level of gravity
determination by the inspector that a permanently disabling injury affecting
one person was reasonably likely to occur as a result of an alleged scoop
service brake defect.

The
respondent asserts that a permanently disabling injury was not reasonably
likely as a result of the cited condition, and requests a reduction of the
severity of injury from permanently disabling to lost workdays or restricted
duty and a reduction of the penalty.

The
petitioner recognizes the existence of a legitimate factual and legal dispute
in this matter and believes that a settlement compromise of the gravity of the
violation is consistent with her enforcement responsibility under the Mine Act.
Accordingly, the petitioner agrees to the requested gravity modification and
reduction of penalty.

I
have considered the representations and documentation submitted by the parties,
and conclude that the proffered settlement is appropriate under the criteria in
Section 110(I) of the Mine Act. Accordingly, I conclude and find that the
proposed settlement is reasonable and in the public interest. The motion IS GRANTED, and the settlement IS APPROVED.

It
is ORDERED that Citation No. 8169628
be modified to reduce the injury to be reasonably expected from Permanently
Disabling to Lost Workdays/Restricted Duty, and that the respondent pay a
penalty amount of $634 within thirty (30) days after the date of the decision
(Docket No. VA 2010-288).

It
is ORDERED that Citation No. 8170287
is modified to a non-S&S violation. The respondent is ORDERED to pay a civil penalty assessment of $750 for the violation
within 30 days of the date of this decision (Docket No. VA 2010-288).

It
is ORDERED that Citation No.
8170285, is modified to a non-S&S violation, and the respondent is ORDERED to pay a civil penalty
assessment of $500 for the violation within 30 days of the date of this
decision (Docket No. VA 2010-289).

The
respondent is ORDERED to pay a total
civil penalty assessment of $1,884, in satisfaction of all of the aforesaid
violations issued in these matters. Payment shall be made within thirty (30)
days of the date of this decision, and remitted by check made payable to U.S.
Department of Labor/MSHA, P.O. Box 790390, St Louis, MO 63179-0390. Upon
receipt of payment, these matters are DISMISSED.

�����������������������������������������������������������

�����������������������������������������������

����������������������������������������������������������� /s/
George A. Koutras�

George
A. Koutras

Administrative
Law Judge

Distribution:

Robert
R. Beatty, Jr., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310 , Morgantown ,
West Virginia , 26501

Brian
D. Mauk, Trial Attorney, U. S. Department of Labor, Office of Solicitor, 211
7th Avenue North, Suite 420, Nashville, Tennessee 37219