Secretary of Labor v. Big Laurel Mining Corporation

Read the official release (fmshrc.gov)

Plain-English summary

Big Laurel operated a room-and-pillar coal mine in Wise County, Virginia, where MSHA issued seven citations and orders after repeated roof failures and an inspection of the mine's intake, return, and escapeway entries. Judge Alan G. Paez affirmed all seven violations, including failures to support the roof, revise the roof-control plan, conduct adequate weekly examinations, and keep the primary escapeway passable. He upheld the S&S designations and found that four violations resulted from unwarrantable failure, while reducing several likelihood findings and lowering one negligence finding from high to moderate. The Judge found that Big Laurel reacted to individual roof falls but failed to address broader deteriorating conditions and repeated warning signs across the affected area. He reduced the combined proposed penalties from $305,800 to $252,304 and ordered payment within 40 days.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.223(a)(1), 75.364(b)(1), 75.364(b)(2), and 75.380(d)(1)
• Outcome: All seven violations were affirmed, several gravity or negligence findings were modified, and penalties totaling $252,304 were assessed.
• Key point: An operator's response to individual roof falls does not excuse failure to revise its roof-control approach and identify widespread hazardous conditions when repeated failures show a broader problem.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9900
/ FAX: 202-434-9949

September 1,
2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

BIG
LAUREL MINING CORPORATION,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. VA 2012-56

A.C.
No. 44-07087-269672

Docket
No. VA 2012-337

A.C.
No. 44-07087-283547

Mine:
Mine No. 2

DECISION

Appearances:   Matthew
R. Epstein, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;

Max L. Corley III, Esq., Dinsmore &
Shohl, LLP, Charleston, West Virginia, for Respondent.

Before:                        Judge
Paez

This case is
before me upon petitions for the assessment of a civil penalty filed by the
Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are three
section 104(a) citations, one section 104(d)(1) citation, and three section
104(d)(1) orders issued by the Mine Safety and Health Administration (“MSHA”)
to Big Laurel Mining Corporation (“Big Laurel” or “Respondent”) as the owner
and operator of Mine No. 2 in Wise, Virginia. To prevail, the Secretary must
prove any cited violation “by a preponderance of the credible 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).

The
parties stipulated to the following:

1. Respondent
   was an “operator” as defined in [section] 3(d) of the [Mine] Act, 30 U.S.C.
   § 802(d), at [Mine No. 2,] the [m]ine at which the [citations and orders]
   in this matter [were] issued.

2. The
   operations of Respondent at [Mine No. 2] are subject to the jurisdiction of the
   [Mine] Act.

3. [This]
   proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission, and its assigned Administrative Law Judges, pursuant to
   [s]ections 105 and 113 of the [Mine] Act.

4. The citation[s]
   and orders in this matter were properly issued and served by a duly authorized
   agent of the Secretary of Labor upon a representative of Respondent at the
   date, time and place stated therein as required by the [Mine] Act.

5. The citation[s]
   and order[s] at issue in this matter are true and authentic copies of those
   that were issued and served on the mine operator.

6.         The
proposed penalty for the subject order will not affect the mine operator’s
ability to remain in business.

7.         The
mine operator abated the alleged cited conditions in good faith.

(Joint
Ex. 1.)[1]

I.  STATEMENT OF
THE CASE

These
cases involve seven alleged violations related to roof failures in Mine No. 2 in
August 2011, and Big Laurel’s reactive strategy to address those and numerous other
roof failures in the previous eight months of the year. Together, the seven
alleged violations in two dockets carry a combined proposed penalty assessment
of $305,800.00.

Docket
No. VA 2012-56 involves two alleged violations at Mine No. 2. The first,
Citation No. 8178521, charges Big Laurel with a violation of 30 C.F.R.
§ 75.223(a)(1).[2]
The second, Citation No. 8191715, charges Big Laurel with a violation of 30 C.F.R.
§ 75.380(d)(1).[3]
The Secretary proposes a penalty of $6,996.00 for Citation No. 8178521 and
$1,304.00 for Citation No. 8191715.

Docket
No. VA 2012-337 involves five alleged violations. Citation Nos. 8178516 and
8178522, and Order No. 8178524 charge Big Laurel with violations of 30 C.F.R.
§ 75.202(a).[4]
Order Nos. 8178523 and 8178525 charge Respondent with violations of 30 C.F.R.
§ 75.364(b)(1) and (b)(2),[5]
respectively. The Secretary proposes a penalty of $52,500.00 each for Citation
No. 8178516, Order No. 8178523, and Order No. 8178525, and a penalty of
$70,000.00 each for Citation No. 8178522 and Order No. 8178524.

Chief
Administrative Law Judge Robert J. Lesnick assigned Docket Nos. VA 2012-56 and VA 2012-337 to
me, and I held a hearing in Abingdon, Virginia. The Secretary presented
testimony from MSHA inspectors Christopher Cain and Michael Hughes. Big Laurel presented
testimony from airway examiner Jesse Ring, mine general manager John
Richardson, mine superintendent Steven Moore, and former Virginia state mine
inspector Jerry Scott. The parties each filed post-hearing briefs and reply
briefs.

II.  ISSUES

For Citation No. 8178516, the Secretary asserts that
Respondent failed to fulfill the duty imposed by 30 C.F.R. § 75.202(a) by allowing
an uncontrolled roof fall to occur in 1 North Mains, exposing miners to the hazards
of a roof fall. (Sec’y Br. at 26–30.) For Citation No. 8178521, the Secretary asserts
that Big Laurel did not fulfill its duty under 30 C.F.R. § 75.223(a)(1) by
failing to revise its roof control plan for areas already mined despite
repeated roof falls in those areas. (Sec’y Br. at 57–59.) For Citation No.
8178522 and Order No. 8178524, the Secretary asserts that Big Laurel failed to
fulfill its duty under 30 C.F.R. § 75.202(a) by failing to address
deteriorating roof conditions across the intake and return entries in 4
Northeast Mains. (Sec’y Br. at 30–33, 51.) For Order Nos. 8178523 and 8178525, the
Secretary asserts that Respondent failed to fulfill its duty imposed by 30
C.F.R. § 75.364(b)(1) and 75.364(b)(2), respectively, by failing to identify
extensive hazardous conditions during the mine examiner’s weekly examination of
the intake and return airways in 4 Northeast Mains. (Sec’y Br. at 44–46, 54–55.)
Finally, for Citation No. 8191715, the Secretary asserts that Respondent failed
to fulfill its duty under 30 C.F.R. § 75.380(d)(1) by allowing a large volume
of water to accumulate in the primary escapeway in 4 Northeast Mains. (Sec’y
Br. at 60–62.)

In
response, Big Laurel asserts that it did not commit any of the alleged
violations. (Resp’t Br. at 20–23, 36–39, 43–46, 65–67, 70.) In the alternative,
Respondent challenges the Secretary’s gravity and negligence determinations for
each alleged violation, specifically the significant and substantial
(“S&S”) [6] designations, as
well as the unwarrantable failure[7] determinations for Citation No. 8178522
and Order Nos. 8178524, 8178523 and 8178525. (Resp’t Br. at 23–28, 38–40,
47–61, 67–69, 72–73.)

Accordingly,
the following issues are before me: (1) whether the Secretary has carried his
burden of proof that Respondent violated the Secretary’s mandatory health or
safety standards; (2) whether the record supports the Secretary’s assertions
regarding the gravity of the alleged violations, including the S&S
designations; (3) whether the record supports the Secretary’s assertions
regarding Big Laurel’s negligence in committing the alleged violations,
including the unwarrantable failure determinations; and (4) whether the
Secretary’s proposed penalties are appropriate.

For
the reasons that follow:

1.         Citation
No. 8178516 is AFFIRMED as written;

2.         Citation
No. 8178521 is AFFIRMED as S&S, and MODIFIED to change the
likelihood to “reasonably likely” and to reduce the level of negligence from
“high” to “moderate;”

3.
        Citation No. 8191715 is AFFIRMED as written;

4.
        Citation No. 8178522 is AFFIRMED as S&S and an unwarrantable
failure, and MODIFIED to change the likelihood to “reasonably likely;”

5.
        Order No. 8178524 is AFFIRMED as S&S and an unwarrantable
failure, and MODIFIED to change the likelihood to “reasonably likely;”

6.
        Order No. 8178523 is AFFIRMED as S&S and an unwarrantable
failure, and MODIFIED to change the likelihood to “reasonably likely;”

7.
        Order No. 8178525 is AFFIRMED as S&S and an unwarrantable
failure, and MODIFIED to change the likelihood to “reasonably likely.”

III.  FINDINGS
OF FACT

Big
Laurel’s Mine No. 2 was a room-and-pillar coal mine located in Wise County,
Virginia.[8]
(Ex. R–10 at 1.) Big Laurel developed the mine by cutting a series of entries and
perpendicular crosscuts that together form a grid if viewed from above. (Ex.
R–25; Ex. GX–14.) Between these entries and crosscuts, Big Laurel left large
pillars of coal in place for support while miners delved deeper into the coal
seam. (Tr. 95:8–16.) To develop the mine, Big Laurel excavated long sections named
Mains that provided both access for miners and fresh air to the active
production sections. (See Ex. GX–1.) The mine then created a number of
rooms branching off from these Mains. (See Ex. R–25.) For each
room, Big Laurel first advanced into the room, developing the grid of entries
and crosscuts, and then retreat-mined, removing the remaining pillars of coal
and allowing the mine roof to collapse behind the miners. (See id.) In
2011, Big Laurel was actively mining rooms off of the 4 Northeast Mains
section of Mine No. 2. (Tr. 168:16–22.) In August 2011, Big Laurel had already
retreat-mined the 1 Right, 2 Right, and 3 Right panels off of 4 Northeast
Mains, and was retreat-mining the final 4 Right panel. (Tr. 511:3–513:1;
Ex. R–25.)

In
the sections that had not been retreat-mined, the thick coal pillars left in
place supported most of the weight of the mountain. (Tr. 95:8–16.) To keep the
mine roof from collapsing in the excavated entries and crosscuts, Big Laurel
installed lines of roof bolts. (Id.) Each line of installed roof bolts
created a beam across the entry or crosscut that replaced the support lost by removing
the coal. (Tr. 27:4–10, 31:16–23.) These beams of roof bolts were the mine’s
primary roof support. (Tr. 31:16–23.) The mine also installed cable bolts and
longer roof bolts as secondary support that extended deeper into the mine roof.
(Tr. 33:1–15, 21–24.) Where these first lines of defense against gravity were
insufficient, Big Laurel installed standing support in the form of timbers,
cribs, metal jacks, and beams. (Tr. 35:18–36:12, 475:4–16.)

A.        Factors
that Can Worsen a Mine Roof

Over
time, gravity exerts pressure on a mine, deteriorating its roof and causing a
number of potentially hazardous conditions. (Tr. 34:6–11.) Indicators of
deteriorating conditions in the roof and mine ribs include draw rock, cutters,
bending or curling of roof bolt plates, loose or broken roof bolts, and cracks
in the roof. (Tr. 35:9–16, 36:24–37:2, 37:8–18.) A cutter is a serious
condition that occurs when the roof begins to separate from the pillar wall, or
rib. (Tr. 27:10–14, 36:24–37:2.) Draw rock is a more common occurrence of loose
rock that may fall if not pulled down. (Tr. 37:8–18, 138:7–13, 298:2–9.) Draw
rock can range in size from a few inches deep and long to as much as six feet
long. (Tr. 364:24–365:4.) Draw rock falls from the immediate roof, which
extends as high as the roof bolts. (Id.) In contrast, a roof fall occurs
when the rock separates from above the primary support’s anchorage point. (Tr. 365:7–10.)
Draw rock, cutters, and roof bolts showing signs of bearing excessive weight do
not necessarily suggest that a roof fall is imminent, but they can indicate a
heightened risk of a fall. (Tr. 34:8–15, 101:17–22.)

The
quality of the mine roof can vary based on a number of factors, including the composition
of the roof, the presence of small seams of coal or water in the roof, the
depth of the mine, and whether coal seams above and below the mine have been
excavated.

Sandstone
forms a strong roof, as it is a hard material that provides solid anchor points
for roof bolts and does not easily crack and fall. (Tr. 40:2–9.) Conversely,
laminate shale forms a particularly weak roof, as it consists of thin layers of
shale rock that can more easily crack and separate. (Tr. 27:14–28:5.)

Veins
of coal known as coal rider seams can also weaken the mine roof. (Tr.
37:19–38:6.) Because coal is a naturally weak and porous substance, a coal
rider seam can undermine the roof’s stability. (Tr. 37:24–38:6.) The
location of the coal rider seam in the strata above the mined coal may vary across
the mine. (Tr. 152:8–18.) Indeed, the coal rider seam may disappear
altogether in some sections. (Tr. 152:8–14.) Because coal is softer and darker
in color than shale or sandstone, a mine’s roof bolters should notice when they
drill through a coal rider seam. (Tr. 150:13–25, 151:8–12.)  Coal rider seams
can also be identified in the core hole samples taken by geologists and
engineers during planning of the mine. (Tr. 151:13–152:7, 571:17–19.) A roof
fall that contains a significant amount of black coal also may indicate the
presence of a coal rider seam. (Tr. 153:1–4.)

The
presence of water may further deteriorate a mine roof. (Tr. 58:23–25, 456:17–457:10,
463:6–13.) Water can erode parts of the roof, weakening it. (Tr. 58:23–25,
94:1–9.) Because coal is porous, coal rider seams can act like a sponge and
hold water in the mine roof. (Tr. 38:3–6.) Moisture can also create draw rock, as
rock may loosen while drying out. (Tr. 463:6–13.)

Overmining
and undermining can also adversely affect roof conditions in a mine. (Tr. 564:1–3.)
Overmining occurs when another coal seam above the mine is excavated and can
change the way pressure from the overburden dissipates down through the
mountain. (Tr. 50:21–51:18.) To minimize the impact of overmining, mines
attempt to line up the location of their entries, crosscuts, and coal pillars,
a process called “stacking the blocks.” (Tr. 51:8–14.) Aligning the coal
pillars with those above and below allows the pressure from the overburden
above the mines to go straight down through the blocks. (Tr. 51:1–18.) Conversely,
improperly aligning the blocks can direct pressure onto the roof above
excavated entries and passageways, accelerating the development of problems in
the mine roof. (Tr. 53:8–16, 354:21–355:13.)

The
depth of an underground coal mine also affects the mine’s roof conditions. Shallow
depths can exacerbate existing problems. (Tr. 111:17–21.) The amount of
ground, or cover, over a mine varies with the topography of the surface, such
as a mountain. (Tr. 111:23–112:9.) Where a mountain drops steeply into a valley
or gulch, the mine’s cover can vary sharply from one entry to the next. (Tr.
111:23–112:5.) This variance in cover can result in horizontally shifting
pressures within the mine, particularly in mines that are shallow. (Tr. 110:25–111:16.)

B.        Negative
Factors Present in Big Laurel’s Mine No. 2

Big
Laurel’s Mine No. 2 suffered from a number of these adverse roof conditions. Most
of the mine’s 4 Northeast Mains and 4 West Mains sections lacked a strong
sandstone roof and had only a weaker laminate shale roof. (Tr. 58:8–12; Ex. GX–15.)
In addition, a coal rider seam was present in much of the same area. (Tr.
38:7–12; Ex. GX–16.) Mine No. 2 was naturally wet, particularly in summer
months, when fans pumped hot, humid air into the mine where it condensed on the
cooler roof, ribs, and floor. (Tr. 139:2–10.) Further complicating matters, the
Yellow Rose mine was engaged in overmining by mining a coal seam located 40 to
60 feet above Big Laurel’s Mine No. 2. (Tr. 50:9–15, 52:2–11.) The Yellow Rose
mine failed to stack the blocks with Mine No. 2. (Tr. 53:4–16; Ex. GX–17.) Finally,
Mine No. 2 was a shallow mine, with cover of only around 350 feet near the 4
Northeast Mains section. (Tr. 603:14–20.) The 4 Northeast Mains area was
located directly underneath a steep mountain valley. (Tr. 701:4–11; Ex.
GX–14.) Taken together, a band of several inherently adverse roof conditions
covered a significant area of the mine, including the active area in 4
Northeast Mains and part of the neighboring section, 4 West Mains.

C.        Protective
Measures Required in Mine No. 2

To
ensure that underground coal mines are installing sufficient roof support, MSHA
requires that each mine submit and follow an approved roof control plan. (Tr.
143:23–144:4, 145:11–19;) see generally 30 C.F.R. §§ 75.220–75.223
(discussing roof control plans). Roof control plans generally set maximum
widths for entries and crosscuts, and minimum levels of roof support in each
cut. (Tr. 32:12–23.) Mines are allowed to exceed the minimum support
requirements by installing additional roof bolts or longer roof bolts. (Tr. 144:2–10.)
Indeed, roof control plans generally contain clauses requiring an operator to
install additional support when necessary to address adverse roof conditions. (Tr.
149:2–6, 16–20.) MSHA reviews the roof control plan during every quarterly inspection
of the mine and every six months as part of a separate roof control review by MSHA
specialists. (Tr. 135:14–19.) Where roof conditions deteriorate or a roof control
plan has proven insufficient to support the mine roof, MSHA may require the
operator to alter its roof control plan to better support the roof. (Tr.
148:10–22.) Such changes usually focus on the active mining section, not older
sections that have already been mined. (Tr. 148:10–15, 503:10–12.)

Big
Laurel’s roof control plan required the mine to install rows of five fully
grouted, five-foot-long roof bolts, as well as a cable bolt or superbolt in the
entries. (Tr. 144:14–21; Ex. GX–18.) Big Laurel consistently exceeded its roof
control plan by installing an additional bolt in each row. (Tr. 330:18–331:6,
465:21–466:8, 635:7–10.) The extra roof bolt provided additional support for
the roof and helped shield Big Laurel from potential roof control violations if
the ribs were to slough off, expanding the width of a passageway. (Tr. 330:18–331:6.)
MSHA roof control specialist Scott Beverly reviewed the mine’s roof control
plan on August 16, 2011. (Tr. 189:24–190:20; Ex. GX–22; Exs. R–11, R–16.) Beverly
and his superiors signed off on the roof control plan as adequate on August 28,
2011. (Tr. 190:11–20.) Prior to Beverly’s semi-annual plan review, MSHA
inspector Michael Hughes reviewed the roof control plan in June 2011 as part of
his normal quarterly inspection of the mine. (Tr. 269:22–270:4; Ex R–11.)

Coal
mines are required to conduct regular examinations to identify potentially
hazardous roof conditions, including a weekly examination of the mine’s intake
and return airways. (Tr. 314:16–24, 490:7–19.) The airway examiner’s duty
is to ensure that potential roof and rib hazards in the intake and return
airways are addressed before the conditions can block the airways or miners’
travelways. (Tr. 314:16–24.) In 2011, MSHA required mines to report any
unplanned rock falls on travelways and lifelines or that impede the airways. 30
C.F.R. § 50.10 (2011); (Tr. 65:4–17; 586:15–588:16; see also Ex.
R–13 (MSHA’s new policy on reportable roof falls)).

D.
       Big Laurel’s History of Roof Falls

Despite
consistently exceeding the mine’s roof control plan by using extra roof bolts,
Big Laurel experienced a number of unplanned roof falls at Mine No. 2 in 2011. (Tr.
199:8–16; Ex. R–9.) Mine No. 2 reported six roof falls to MSHA in the first
seven months of the year. (Tr. 199:8–16.) The first roof fall in 2011 took
place on January 19 in 4 Northeast Mains, approximately 1,000 feet from the
active mining section. (Tr. 160:6–22; Ex. R–9 at 1; Ex. R–24.) This fall
affected the No. 3 entry in 4 Northeast Mains, forcing the mine to move
its alternate escapeway from the No. 3 entry to the No. 2 entry. (Tr. 86:8–18; Ex.
R–25.) Then on February 8, a fall occurred in the return airway entry on 4 West
Mains, an access panel directly adjacent to 4 Northeast Mains. (Tr. 165:17–19;
Ex. R–9 at 2; Ex. R–24.) The fall on February 8 happened approximately 2,000 feet
from the January 19 fall in 4 Northeast Mains, or approximately 3,000 feet from
the active mining face. (Ex. R–9 at 2.) The 4 West Mains fall was followed one
week later on February 15 by a fall in 1 North Mains. (Tr. 167:14–18; Ex. R–9
at 3.) 1 North Mains is an older section of the mine located approximately
11,000 feet from the active mining section in 4 Northeast Mains. (Tr. 168:23–25;
Ex. R–24; Ex. R–9 at 3.) Following the February 15 fall, MSHA warned Big Laurel
to adjust its roof control plan.

MSHA
roof control specialist Chris Cain conducted the required six-month review of
the mine’s roof control plan on February 28, 2011. (Ex. R–11.) Cain found the
plan insufficient due to the three roof falls since the start of the year. (Id.)
On March 6, before Big Laurel could submit an updated roof control plan, the
roof collapsed in the 3 Right panel off 4 Northeast Mains, disrupting the
active mining section. (Tr. 171:21–172:19; Ex. R–9 at 4.) Following this fall,
MSHA required Big Laurel to use longer and stronger bolts; however, the changes
only affected the active mining section. (Tr. 174:13–175:12, 498:21–499:2.) This
fall was located approximately 1,000 feet from the first fall on January 19. (Ex.
R–25; Ex. R–9 at 4.)

The
roof falls continued through spring and summer. On April 15, the roof collapsed
again in the intake entry of the 3 Right panel of 4 Northeast Mains,
approximately 600 feet from the working mine face. (Tr. 177:25–178:4; Ex. R–9
at 5.) Then on July 5, the roof collapsed in 4 West Mains, the access area
abutting 4 Northeast Mains. (Tr. 177:25–178:4; Ex. R–9 at 6.) The July 5 fall
occurred some 3,000 feet from the working face, but only about five crosscuts
away from the previous fall in 4 West Mains on February 16. (Ex. R–9 at 6, Ex.
R–24.)

Altogether,
Big Laurel reported six roof falls to MSHA in January to July 2011, including three
roof falls in the 4 Northeast Mains section, two in the adjacent 4 West Mains
section, and one roof fall in the 1 North Mains area. (Exs. GX–21, R–22.) The
mine also received 39 violations for section 75.202(a) regarding roof control
in the two years prior to August 2011. (Tr. 204:8–11; Ex. R–10; see also
Ex. GX–19 (copies of Virginia citations issued at Mine No. 2).) In August 2009,
a miner died from a roof fall at Big Laurel’s Mine No. 2. (Tr. 61:19–20.)

IV.  PRINCIPLES
OF LAW

A.        Significant
and Substantial (S&S)

A violation
is S&S “if, based on 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). To establish a S&S violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature.” Mathies
Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); see also Buck
Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133,
135-36 (7th Cir. 1995) (affirming ALJ’s application of the Mathies criteria);
Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 104 (5th Cir. 1988)
(approving the Mathies criteria).

In providing guidance for the
application of the Mathies test, the Commission has observed that “the
reference to ‘hazard’ in the second element is simply a recognition that the
violation must be more than a mere technical violation—i.e. that the violation
present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (Aug. 1984). The Commission also has indicated that “[t]he correct inquiry
under the third element of Mathies is whether the hazard identified
under element two is reasonably likely to cause injury.” Black Beauty Coal
Co., 34 FMSHRC 1733, 1742–43 & n.13 (Aug. 2012). The Commission further
has found that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Musser Eng’g,
Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010) (citing Elk Run Coal Co.,
27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc.,
18 FMSHRC 853, 857 (June 1996)). Finally, the Commission has specified that
evaluation of the reasonable likelihood of injury should be made assuming
continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1984)).

B.        Unwarrantable
Failure

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

V.  ADDITIONAL FINDINGS
OF FACT, ANALYSIS, AND

CONCLUSIONS OF
LAW

A.
       The August 22 Roof Fall in 1 North Mains — Citation No. 8178516

On
August 22, 2011, a roof fall broke the miner tracking system in the 1 North
Mains section of Mine No. 2. (Tr. 495:5–10.) The collapsed roof also fell on
the lifeline, blocking the mine’s primary escapeway. (Tr. 24:20–25:10.) Big
Laurel called MSHA to ask whether they needed to report the fall. (Tr.
61:24–62:2.) MSHA confirmed that the roof fall was reportable, issued a
withdrawal order pulling miners from the active mining section, and assigned
roof specialist Christopher Cain to investigate the incident. (Tr. 24:20–25:10,
62:3–14.) Cain, who joined MSHA in October 2006 after eight years in the mining
industry, had worked for the roof control team nearly a year in total by August
2011. (Tr. 28:22–29:15, 131:8–17, 132:1–7.) Cain was familiar with the history
of roof falls at Mine No. 2, as he investigated several falls earlier in 2011,
including the March 6 fall that led Big Laurel to adjust its roof control plan.
(Tr. 171:23–172:1.)

At
the mine, Cain met with Alpha Resources’ assistant mine manager, John
Richardson, who was acting for mine superintendent Steven Moore on August 22. (Tr.
378:4–25.) After reviewing the mine’s examination reports, Cain, Richardson and
mine foreman Tony Dean traveled underground to investigate the roof fall in 1
North Mains. (Tr. 62:20‑63:8, 379:1–8.) There, Cain found miners already
setting timbers in Entry No. 6 to reinforce the roof support and block off the
approaches to the fall. (Tr. 63:5–16.) The fallen material was seven or eight
feet high, nearly reaching the mine roof. (Tr. 181:18–25.) Cain believed he saw
roofbolt plates around the fall curling at the edges and otherwise showing
signs of bearing excessive weight. (Tr. 63:11–16.) Cain examined the
adjacent intake entry, Entry No. 5, and found what he believed were similar
signs of deterioration in the roof, including roofbolts bearing excessive
weight. (Tr. 63:17–21.) Cain found significant amounts of moisture in both
entries. (Tr. 64:1–4.)  

Based
upon his observations, Inspector Cain issued Citation No. 8178516, alleging a
violation of 30 C.F.R. § 75.202(a):

A
roof fall has occurred in the Primary Escapeway at S.S. 2778 along the No. 1
North Mains. Upon investigation, it was found that the immediate roof was
deteriorated and weakened by moisture. Also roof bolt plates inby and outby the
fall area showed signs of weight. When examined, test holes at S.S. 2768 and
2783 (both in the primary escapeway) indicated moisture in the mine roof. The
hazard exists of a miner traveling through the affected area and being
contacted by falling roof material and receiving serious or fatal injuries. Miners
work and travel through the affected area on a regular basis.

This
mine has experienced a total of eight unintentional roof falls, six of these
occurring in the past year. Also the operator has been cited 39 times in the
past two years for failure to comply with 30 C.F.R. Part 75.202(a). The
operator is hereby being put on notice to comply with 30 C.F.R. part 75.202(a)
in all areas where miners work and travel. Failure to do so may result in an
increase in negligence when cited.

Standard
75.202(a) was cited 38 times in two years at mine 4407087 (38 to operator, 0 to
a contractor).

(Ex.
GX–2 at 1–2.) Cain
asserted that the violation affected one person and that a fatal injury was
reasonably likely. (Id.) Cain designated the violation as S&S and
characterized Big Laurel’s negligence as “moderate.” (Id.)

Mine
superintendent Steven Moore subsequently examined the roof fall later on
August 22. (Tr. 483:14–22.)

1.                 
The
Parties’ Contentions and Principles of Law

The Secretary
asserts that Big Laurel failed to fulfill the duty imposed by 30 C.F.R. § 75.202(a)
when an uncontrolled roof fall occurred in Entry No. 6 of 1 North Mains on
August 22. (Sec’y Br. at 26–28.) The Secretary also claims the mine failed to sufficiently
support the roof in surrounding areas, including adjacent Entry No. 5, where
miners were working. (Id. at 27–28.) The Secretary asserts that the
insufficiently supported roof was reasonably likely to fall on a miner, and
that any such incident could reasonably be expected to be fatal, making the
violation S&S. (Id. at 28–29.) The Secretary further asserts that
Respondent displayed moderate negligence by allowing dangerous roof conditions
to go undiscovered and unaddressed for a significant amount of time. (Id.
at 30.)

In
response, Big Laurel claims the Secretary has not demonstrated that Big Laurel
failed to support or otherwise control the mine roof in 1 North Mains. (Resp’t
Br. at 20.) Big Laurel asserts that the roof fall on its own is insufficient
evidence to find a violation of 30 C.F.R. § 75.202(a). (Id. at
20–21.) Respondent argues no indications of deterioration of the roof existed
prior to its collapse. (Resp’t Reply at 2–3.) Respondent further claims that
the alleged violation was not S&S because it did not contribute to a
hazard, and that the mine was not negligent because it was in compliance with
its roof control plan. (Id. at 23–28.)

Section
75.202(a) requires that operators support or otherwise control the roof of a
mine to protect persons from hazards related to roof falls. 30 C.F.R. §
75.202(a). Accordingly, the Secretary must show (1) that 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. See Jim Walter Res., Inc., 37 FMSHRC 493, 495 (Mar.
2015). Because section 75.202(a) is worded broadly, the Commission has held
that “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 (Apr. 1987)). The
Commission has further held that “a fatality resulting from a fall of roof
material where persons work or travel unquestionably demonstrates a violation
of section 75.202(a).” Jim Walter Res., 37 FMSHRC at 496. Regarding the
second element, the Commission has found that a single trip through an area of
the mine is sufficient to constitute work or travel through the area. Faith
Coal Co., 19 FMSHRC 1357, 1359 (Aug. 1997).

2.         Further Findings of Fact

Big
Laurel’s mine examiner, Jesse Ring, testified that he found no indications the
mine roof was weakening when he last examined the primary escapeway on August
17, five days prior to the fall. (Tr. 322:24–323:8, 328:3–16, 329:6–24.) Similarly,
assistant mine manager John Richardson asserted there was no evidence after the
August 22 fall of deteriorating roof conditions outside of the No. 6 entry,
where the fall occurred. (Tr. 381:21–382:13.) Accordingly, Big Laurel asserts
that there were no signs suggesting the need for additional roof support. (Resp’t
Br. at 20–22.)

In
contrast, Inspector Cain testified that he found roof bolts showing signs of bearing
excessive weight in Entry No. 5, to which the lifeline was being rerouted. (Tr.
63:17–21.) Cain also claimed to find signs of further deterioration of the roof
where miners were working to install supplemental roof support and isolate the
roof fall.[9]
(Tr. 66:14–67:8.) Moreover, Cain testified that the conditions he found would
not have developed suddenly, and similar conditions would have been present in
Entry No. 6 prior to the fall. (Tr. 69:23–70:10.)

The
roof fall in Entry No. 6 of 1 North Mains was large, covering an area some 25
feet long and 25 feet wide with rubble up to eight feet deep. (Tr. 68:16–19.)
This roof fall was not the mere dislodging of a small amount of draw rock, but
a failure of the beam in the roof that keeps the mountain off miners. Although
I recognize that isolated occurrences of draw rock can appear without warning
(Tr. 138:7–23, 268:1–9), a collapse of this magnitude indicates the mine roof
showed prior signs of deterioration.[10]
See Jim Walter Res., 37 FMSHRC at 496 (declining to adopt a per
se rule that all roof falls are violations of the standard, but finding
that a fatal fall of an eight-foot slab of rock unquestionably demonstrates a
violation of section 75.202(a)). Given such a large collapse, I infer that
there was a broader weakening of the mine roof, consistent with Cain’s
testimony that the roof showed signs of deterioration in neighboring entries
and crosscuts. Finally, Cain’s allegations are supported by the deposition
testimony of mine superintendent Scott Moore, who examined the affected area
several hours after Cain’s investigation. Moore stated that he found a number
of roof bolt plates taking excessive weight one crosscut away from the fall in
Entry No. 6. (Tr. 592:1–5.) Moreover, Moore said these plates were not
localized to a single line of roof bolts, but were scattered throughout the
area. (Tr. 592:18–593:17.) I find Moore’s deposition statements, read into the
record at hearing, to be credible and supportive of Cain’s testimony.[11]

Based
on the evidence before me, I find that the roof in 1 North Mains showed signs
of deterioration in Entry No. 6 and adjacent Entry No. 5 near the roof fall. I
further find that similar signs of the mine roof’s pending collapse existed
prior to the fall on August 22.

3.         Analysis and Conclusions
of Law

a.      Violation –
Citation No. 8178516

The
mine roof in 1 North Mains showed signs of deterioration both in surrounding
crosscuts and entries and at the site of the roof fall prior to its collapse. I
determine that a reasonably prudent miner seeing such signs of an impending
collapse would take additional steps to support or control the roof to protect
persons from the hazards of a roof fall. The Secretary has therefore satisfied
the first element of a violation.[12]

Big
Laurel does not dispute the Secretary’s contention that Entry No. 6 of 1 North
Mains was an area in which persons worked and traveled. Miners examined the
entry once per week and occasionally performed maintenance. (Tr. 67:1–8, 315:3–6,
316:15–24.) The entry was also used as a travelway to bring supplies in and out
of the mine. (Tr. 69:11–17.) Accordingly, I determine that Entry No. 6 of 1
North Mains was an area worked and traveled for the purposes of section
75.202(a). See Faith Coal, 19 FMSHRC at 1359. Given the evidence
before me, I conclude that Big Laurel violated 30 C.F.R. § 75.202(a).

b.         Gravity
and S&S Determination

Big Laurel’s
violation of section 75.202(a) establishes the first element of the Mathies
test for a S&S violation. The second element of the Mathies test
asks whether the violation contributed to a discrete safety hazard. Here, Cain
credibly testified that the mine’s failure to support its roof exposed miners
to falling roof material.[13]
(Tr. 63:22–64:7, 67:21–24.) I credit Cain’s testimony and determine the
Secretary has satisfied the second Mathies element.

The third and
fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. Because miners regularly
traveled the aircourse and primary escapeway in 1 North Mains, the Secretary
claims a roof fall could reasonably be expected to result in an injury. (Sec’y
Br. at 29.) As I have already noted, miners used the entry as a travelway and
escapeway through 1 North Mains, and examiners checked the area weekly. (Tr. 67:1–8, 315:3–6,
316:15–24.) Miners also were preparing to reroute the affected lifeline through
Entry No. 5, where the roof also showed signs of deterioration. (Tr. 63:9–21.) Big
Laurel has not presented evidence to counter the Secretary’s assertions
regarding likelihood.[14]
Finally, Cain credibly testified that roof falls generally tend to be fatal for
miners caught in the collapse. (Tr. 67:9–13.) Given this evidence, I
determine that a roof fall was reasonably likely to occur and cause a serious
injury, satisfying the third and fourth Mathies elements. Accordingly, Citation
No. 8178516 was appropriately designated as S&S.

c.
        Negligence

Big
Laurel also challenges the Secretary’s determination that the violative
conditions were a result of the operator’s moderate negligence. (Resp’t Br. at
25–28.) Respondent emphasizes that Jesse Ring, a mine examiner with extensive
experience, traveled the area five days prior and found no roof deterioration;
thus, the mine had no warning of an impending fall. (Id. at 26–27.) Big
Laurel also stresses that it exceeded its roof control plan throughout the
mine. (Id. at 27.) The Secretary does not challenge Big Laurel’s
contention that Ring conducted his exam. The Secretary instead argues that the
operator should have identified the developing problems prior to the fall, as
the conditions would take more than a short amount of time to develop. (Sec’y
Br. at 30.)

I
credit Cain’s testimony that the deteriorating roof conditions did not develop
suddenly, and determine that Big Laurel should have known about the poor roof
prior to August 22. In addition, the high number of reported roof falls
since the start of the year, including one in the 1 North Mains section, put
Big Laurel on notice that it needed to be more vigilant in checking for
deteriorating roof conditions. Nevertheless, the Secretary has not produced
substantial evidence suggesting how long the poor roof conditions lasted and
were visible to miners traveling through the area. In addition, the inspector’s
failure to cite Respondent for an inadequate examination suggests that the conditions
could have been overlooked in an examination five days prior to the fall. Thus,
the Secretary’s evidence shows that Big Laurel failed to identify relatively
recent conditions that were not immediately obvious to an examiner. Accordingly,
I conclude that Respondent’s negligence was moderate for Citation No. 8178516. Cf.
30 C.F.R. § 100.3(d) at Table X (suggesting “moderate negligence” where
the “operator knew or should have known of the violative condition or practice,
but there are mitigating circumstances”).

B.        The
August 31 Roof Fall and Investigation — Citation Nos. 8178521, 8191715, &
8178522 and Order Nos. 8178524, 8178523, & 8178525

Nine
days later, on August 31, mine examiner Jesse Ring and Virginia state mine
examiner Jerry Scott were conducting the weekly examination of the mine’s
airways when they came across an unplanned roof fall in the No. 6 entry of 4
Northeast Mains. (Tr. 336:7–337:2.) Despite Superintendent Moore’s protests to
the contrary, State Inspector Scott felt the roof fall needed to be reported to
MSHA. (Tr. 517:17–518:8.) Accordingly, Big Laurel reported the fall, and MSHA
again assigned Inspector Cain to investigate. (Tr. 74:10–18.)

At
the mine, Cain met with Superintendent Moore and MSHA Inspector Michael Hughes,
who was already at the mine for the regular quarterly inspection. (Tr.
282:15–25.) After reviewing the weekly examination records, Cain asked Moore
how Big Laurel planned to address the continuing roof falls. (Tr. 75:17–24.) Moore
responded that the mine planned to continue to isolate the roof falls and
install supplemental support when roof falls are encountered. (Tr. 75:24–76:6.)

Following
Moore’s response, Inspector Cain issued Citation No. 8178521, alleging a
violation of 30 C.F.R. § 75.223(a)(1):

The
operator of this mine did not propose a revision to the approved Roof Control
Plan when conditions indicate that the plan is not suitable for controlling the
roof, face, or ribs. This mine has had 7 roof falls in a one year period. Two
of these roof falls in the last 10 days. The falls are not isolated to an exact
area of the mine and have occurred in areas where miners work and travel on a
regular basis. The hazard exists that if the roof falls are allowed to continue
that a fatality will occur. This is the second issuance of this violation as a
result of the mine’s roof fall history in the past 7 months and the operator is
being put on notice that failure to be proactive in the controlling of roof,
face, and ribs at this mine may increase the negligence of any future citations
under 30 C.F.R. Part 75 Subpart C ([sections] 75.200 thru 75.223 including all
subparts).

(Ex.
GX–8 at 1.) Cain asserted that the violation affected two people and that fatal
injuries were highly likely. (Id.) Cain designated the violation as
S&S and classified the operator’s negligence as “moderate.” (Id.)

Cain,
Hughes, and Moore then traveled underground to investigate the fall. (Tr.
83:24–84:6.) Near the fall, the parties traveled through a large pool of water
located in the primary escapeway, Entry No. 5. (Tr. 252:23–253:10.) The water
stretched a length of two crosscuts. (Ex. GX–11 at 1.) Hughes did not see any
water pumps set to address the accumulation. (Tr. 304:21–305:8.)

Based
on his observations, Inspector Hughes issued Citation No. 8191715 to Big
Laurel, alleging a violation of 30 C.F.R. § 75.380(d)(1):

The
primary escapeway is not being maintained in a safe condition to always assure
passage of anyone including disabled persons. When checked, the escapeway,
starting at S.S. 3345 up to S.S. 3357 (2 breaks) contains water rib to rib and
measures up to 8 [inches] deep. The water is [murky] and not clear. The hazard
exists that a miner may fall over unknown debris in the water and become
injured. Miners travel this entry on a regular basis.

(Ex.
GX–11 at 1.) Hughes asserted that the violation affected one person and that a
permanently disabling injury was reasonably likely. (Id.) Hughes
designated the violation as a S&S and assessed Big Laurel’s negligence as
“moderate.” (Id.)

In
Entry No. 6, the parties found the fall covering an area 25 feet long by 25
feet wide with as much as nine feet of rubble, reaching to the mine roof. (Ex.
R–9 at 8.) Cain noticed a substantial amount of coal in the rock that had
fallen out of the roof. (Id.) While investigating the new fall, Cain
discovered an older fall also in Entry No. 6 just two crosscuts away. (Tr. 88:1–7.)
Big Laurel had already isolated the older fall, installed timbers to stop its
spread, and fully rock-dusted the area. (Tr. 99:22–100:2.) Although Entry No. 6
had been the mine’s primary escapeway, Big Laurel never reported the older fall
to MSHA, and mine workers and officials could not say with any specificity when
the fall occurred. (Tr. 88:8–23, 356:24–358:20.) Big Laurel shifted the primary
escapeway to Entry No. 5 around the time of the old fall. (Tr. 583:2–20.)

Cain examined
the broader area around the two falls in Entry No. 6. The party traveled parts
of entries No. 5 and 6, the intake air entries, and Entry No. 7, the return
entry that was separated by stoppings from the other entries. (Tr. 84:7–13,
109:11–20.) In the entries, Cain examined several test holes and used a
fiberoptic boroscope to better view the roof conditions. (Tr. 92:3–13.) Cain
believed he saw a coal rider seam in the test holes he examined. (Tr. 92:8–13.)
Cain also believed he saw a number of cutters and roof bolts bearing weight in
all three entries. (Tr. 109:21–110:5.)

Based
on his observations, Cain issued Citation No. 8178522, alleging a violation of
30 C.F.R. § 75.202(a):

The
primary escapeway for the 001 MMU along the 4 Northeast Mains from S.S. 3051
inby to S.S. [3560] was not being supported or otherwise controlled to protect
persons from hazards related to falling roof material. The area was supported
with 5[-foot-long] fully grouted bolts and a combination of 8[-foot-long] super
bolts and 12[-foot-long] cable bolts. This combination of roof support has been
indicated to have failed due to numerous roof falls along the 4 Northeast Mains
and other areas of the mine. The adjacent #6 entry has had two roof falls in an
area outby the 3 Right panel. The only additional support found along the
escapeway were 7 jacks and 2 posts (all located in the same intersection). When
test holes were scoped the same conditions of gray laminate shale with coal
streaks and a coal rider seam averaging 1 to 2 feet thick are present. Water is
also present in the mine roof and was also found in the other roof falls. Cutters
can be seen down the left ribline for most of the affected area and also along
the right ribline [in] some areas. Draw [r]ock is present along the primary
escapeway. A mine map presented outside by the superintendent indicates that
active mine above the 4 Northeast Mains did not stack their blocks with the
blocks that were already mined in the 4 Northeast Mains. This condition can
worsen roof and rib conditions in this mine. This mine has had seven roof falls
in a one year period and two in the last 10 days. The hazard exists of a miner
or miners traveling down the primary escapeway and being fatally injured due to
falling roof material. This entry is traveled by miners on a regular basis.

This
violation is an unwarrantable failure to comply with a mandatory standard. The
mine operator and agents of the operator engaged in aggravated conduct
constituting [] more than ordinary negligence in that:

1. An examination by an agent of the
   operator is conducted weekly through the area.

2. The condition is obvious with cutters
   going down the ribs, roof bolt plates showing signs of taking weight, and draw
   rock present in the entry.

3. Reasonable efforts were not made by
   the mine operator to correct or increase the roof support in the area. The mine
   has had to change the approved roof control plan due to roof falls occurring
   where the same combination of 5[-foot-long] fully grouted bolts with a
   combination of 12[-foot-long] cable bolts and 8[-foot-long] super bolts failed
   on the [No.] 3 Right Panel inby the affected area. (The plan changes were to
   install a combination of 6[-foot-long] fully grouted bolts and 16[-foot-long]
   cable bolts.) No additional support was found or installed in this area to
   protect miners and additional roof falls occurred in areas mined where the old
   plan was in effect and the old roof support was used.

4. This mine was put on notice to comply
   with 75.202(a) on 08/22/2011 due [to] the number of roof falls occurring where
   miners work and travel. Standard 75.202(a) was cited 29 times in two years at
   mine 4407087 (29 to the operator, 0 to a contractor).

(Ex.
GX–4 at 1–3.) Cain asserted that the violation affected two people and that
fatal injuries were highly likely. (Id. at 1.) Cain characterized Big
Laurel’s negligence as “high” and designated the violation as S&S and as
the result of the operator’s unwarrantable failure to comply with a mandatory
health or safety standard. (Id.)

Inspector
Cain then issued Order No. 8178524, alleging a violation of 30 C.F.R. § 75.202(a).
The order alleged insufficient support in “[t]he right return bleeder for [No.]
1 Right, [No.] 2 Right, and [No.] 3 Right panels along the [No.] 4 Northeast
Mains from S.S. 3052 to S.S. 3381.” (Ex. GX–6 at 1–2.) Other than the location,
the text of the order mirrored the text of Citation No. 8178522. (Id. at
1–3.) Cain similarly asserted that the violation affected two people and that
fatal injuries were highly likely. (Id. at 1.) Cain also characterized
Big Laurel’s negligence as “high” and designated the violation as S&S and
as the result of the operator’s unwarrantable failure. (Id.)

Because
Big Laurel’s Jesse Ring had completed an examination of the area earlier the same
day, Cain also issued Order No. 8178523, alleging a violation of 30 C.F.R. §
75.364(b)(1):

The
weekly examinations being conducted along the [i]ntake air course and primary
escapeway along the [No.] 4 Northeast Mains are being conducted inadequately by
the examiner. The records for the last month do not indicate the hazards found
in the form of loose ribs, draw rock, and cutters present in the mine roof. No
hazards were recorded for the [i]ntake listed in the Weekly Examination Book
for examinations conducted in the month of August. The hazard exists of a miner
being seriously or fatally injured due to one or numerous hazardous conditions
being allowed to exist with no corrective action to protect miners from them. Miners
work and travel through the area on a regular basis. This mine has a history of
roof falls occurring in the [No.] 4 Northeast Mains and other areas where the
examiner travels.  

This
violation is an unwarrantable failure to comply with a mandatory standard. The
mine operator and agents of the operator engaged in aggravated conduct
constituting [] more than ordinary negligence in that:

1. The examiner conducting the weekly
   exam of the intake air course is an agent of the operator.

2. The weekly examination record book is
   being certified by both the examiner and superintendent that a complete and
   accurate examination of the intake air course is being conducted.

3. The hazardous conditions present were
   obvious and extensive with only [an] isolated area with any type of corrective
   action (the installation of 7 jacks and 2 posts) being completed.

4. The mine has a history of roof falls
   and the hazards present indicate that a roof fall in the area can likely occur.

5. The hazards have existed for a period
   of at least two weeks or more.

(Ex.
GX–5 at 1–2.) Cain again asserted that the violation affected two people and
that fatal injuries were highly likely. (Id. at 1.) Cain similarly
characterized Big Laurel’s negligence as “high,” and designated the violation
as S&S and as the result of the operator’s unwarrantable failure. (Id.)

Cain
also issued Order No. 8178525, alleging a violation of 30 C.F.R. § 75.364(b)(2)
because “[t]he weekly examinations being conducted along the [r]ight [r]eturn
air course for the 1 Right, 2 Right, and 3 Right panels along the 4 Northeast
Mains are being conducted inadequately by the examiner.” (Ex. GX–7 at 1–2.) Other
than the location, the text of Order No. 8178525 mirrors that of Order No.
8178523. (Id.) Cain asserted the violation affected two people and that
fatal injuries were highly likely. (Id.) He characterized Big Laurel’s
negligence as “high,” and marked the violation as S&S and an unwarrantable
failure. (Id. at 1.)

Big
Laurel withdrew its miners from the active mining section as a result of these
orders and shifted some mining equipment to another part of the mine. (Tr.
549:16–21.) The mine installed substantial supplemental roof support through
the No. 5 and No. 7 entries to abate the alleged violations. (Tr. 121:9–19,
122:24–123:4, 124:3–9.) Cain eventually terminated the orders on September 12,
2011, approximately two weeks after the roof fall. (Tr. 125:2–8; Ex. GX–10.)
Big Laurel also conducted a further geological survey of this area of the mine
based on existing core hole data to better map the location of the coal rider
seam. (Tr. 240:20–241:4; see Ex. GX–16.) Big Laurel never resumed mining
from 4 Northeast Mains, but instead permanently closed and sealed the section
in late 2011. (Tr. 550:5–9.)

1. Citation No. 8178521:
   Failure to Propose Changes to the Roof Plan

For
Citation No. 8178521, the Secretary asserts that Respondent violated 30 C.F.R.
§ 75.223(a)(1) when it failed to revise the mine’s roof control plan for
areas already mined despite repeated roof falls in those areas. (Sec’y Br. at
57–59.) The Secretary further claims the violation contributed to potential
roof falls, and thus was S&S. (Id. at 59–60.) Finally, the Secretary
argues that Big Laurel was highly negligent in failing to amend its roof
control plans. (Id. at 60.) Respondent asserts that it did not violate
section 75.223(a)(1), as the mine’s roof control plan already included
provisions calling for additional support where necessary, and MSHA had
repeatedly found the plan sufficient. (Resp’t Br. at 36–38.) Respondent also
asserts that the alleged violation did not contribute to any hazard and that
the mine was not negligent because the roof control plan had passed muster with
MSHA. (Id. at 38–40.)

a.         Violation

Section
75.223(a)(1) requires operators to propose revisions to a mine’s roof control
plan when conditions in the mine indicate that the old plan is no longer
suitable to control the roof, face, ribs, or coal or rock bursts. 30 C.F.R. §
75.223(a). When MSHA adopted this standard, the agency noted that “any
condition which indicates the plan is not suitable for controlling the roof,
face, ribs, or coal or rock bursts requires that the plan be revised.” 53 Fed.
Reg. 2354, 2372 (Jan. 27, 1988). In interpreting and applying broadly worded
standards, “the appropriate test is . . . whether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard.”
Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). To prove a violation
of section 75.223(a)(1), the Secretary therefore must show (1) the existence of
adverse roof conditions at the mine, (2) that a reasonably prudent miner would
have recognized the existing roof control plan was insufficient to address
those negative conditions, and (3) the mine did not amend the roof control
plan.

The
parties do not dispute the existence of adverse roof conditions in parts of
Mine No. 2. Although much of the mine had a strong sandstone roof, the 4
Northeast Mains and 4 West Mains sections had only a laminate shale roof that
contained a coal rider seam and a source of water. (Tr. 58:8–12;
Ex. GX–15, Ex. GX–16.) Mining had occurred both above and below Mine No. 2, and
the Yellow Rose mine above it had failed to properly stack the blocks in 4
Northeast Mains and 4 West Mains. (Ex. GX–14.) These adverse conditions are
important factors in the mine’s ability to control its roof and ribs. (Tr. 353:10–355:7,
390:1–17.) Accordingly, I determine that adverse conditions affecting the mine
roof existed in 4 Northeast Mains and 4 West Mains, satisfying the first
element of a violation.

Similarly,
Respondent does not contend that it proposed modifications to the roof control
plan to address adverse conditions away from the active mining section. Although
Big Laurel adjusted its roof control plan at MSHA’s direction in March, those changes
only affected newly mined areas. (Tr. 498:7–499:2.) The Secretary therefore has
demonstrated the third element of a violation of section 75.223(a)(1).

The
only element at issue is the second: whether a reasonably prudent miner would
have recognized the mine’s existing roof control plan was insufficient to
address the adverse conditions encountered in the mine. The Secretary asserts
that the number of roof falls and the deteriorating conditions discovered in 4
Northeast Mains on August 31 demonstrated the obvious inadequacy of the roof
control plan. (Sec’y Br. at 58.) The Secretary suggests that Big Laurel’s
installation of extensive supplemental roof support in Entry Nos. 2, 3 and 4 of
4 Northeast Mains prove the operator was aware of the dangers the adverse roof
conditions posed. (Id. at 58–59.)

In
contrast, Big Laurel claims it did not violate 30 C.F.R. § 75.223(a)(1) for two
reasons. First, it asserts that the roof control plan was sufficient to address
any deteriorating roof conditions in previously mined sections because the plan
already contained provisions requiring the operator to install additional
support wherever needed. (Resp’t Br. at 37–38.) Contrary to the Secretary’s assertion,
Respondent contends that its installation of supplemental roof support through
much of 4 Northeast Mains demonstrates the adequacy of the plan. (Id.)
Second, Respondent asserts that it could not have known it needed to amend its
roof control plan because plan revisions for previously mined areas are rare. (Id.
at 37.) For support, Big Laurel points to MSHA’s approval of the roof control
plan just days ahead of the August 31 roof fall in 4 Northeast Mains. (Id.
at 38.)

Mine
No. 2 reported eight roof falls in the first eight months of 2011 and had at
least one more significant roof fall that Big Laurel neglected to report. (See
Ex. R–9 at 1–8.) Only one fall occurred at the active mining face; the
remainder occurred in previously mined areas. (Id.) Seven of those nine
falls were located in 4 Northeast Mains or the adjacent 4 West Mains, the sections
affected by the band of inherently adverse roof conditions, including a poor
laminate shale roof, a coal rider seam, overmining with unstacked blocks, and
low cover with a steep ascent.[15]
(See Ex. GX–16.) All seven of those falls occurred within approximately
2,000 feet of the first fall in 4 Northeast Mains in January 2011. (See id.)
These falls occurred despite Big Laurel’s stated policy of going beyond the
minimum required by the mine’s roof control plan. Twice Big Laurel received
explicit warnings from MSHA that its existing roof control measures were
insufficient, first in a negative six-month review of the mine’s roof control
plan in February, and then in a citation for failing to propose changes to its
plan. Even after these notices, Big Laurel only adopted changes affecting newly
mined areas. Such changes bought Big Laurel a few months’ respite from MSHA’s
scrutiny, but they did nothing to enhance miners’ safety while working or
traveling in previously mined areas, where the falls continued. Big Laurel’s
efforts to address the mine’s deteriorating roof around 4 Northeast Mains and
4 West mains proved insufficient fall after fall, on January 19, February
8, March 6, April 15, July 5, and August 31. Only the fall on March 6 occurred
on the working section.

The
Mine Act imposes an affirmative duty on mine operators to protect the health
and safety of miners. 30 U.S.C. § 801(e). Throughout 2011, Big Laurel failed to
proactively adopt measures that would ensure its workers were protected from serious,
deteriorating roof conditions in previously excavated areas. Where Big Laurel
did install significant secondary support, it did so only in response to a roof
fall, and then only in the entries critical to the continued production of coal,
such as the section’s belt entry and primary travelway.

Given
the evidence before me, I determine that a reasonably prudent miner familiar
with the protective purposes of the standard would have recognized that Big
Laurel’s existing roof control policies were insufficient to address the
adverse roof conditions affecting the mine in 4 West Mains and 4 Northeast
Mains. Big Laurel’s repeated failure to prevent roof falls demonstrates that
the existing clause allowing Respondent to install additional support as needed
was insufficient. Revisions to the roof control plan for areas away from the
face may be rare, but the repeated falls, coupled with MSHA’s prior warnings,
gave Big Laurel ample notice that its roof control plan was insufficient for certain
areas of the mine. At the very least, prudence demanded that Big Laurel
reexamine its core hole samples to identify the conditions behind the repeated roof
failures in 4 Northeast Mains and 4 West Mains, and then increase its examinations
of those areas to identify potentially hazardous conditions before they become
deadly. Big Laurel made no such efforts until forced to adopt these measures to
terminate the violation. (Ex. R–6 at 2.) The Secretary has thus proven the
second element of a violation of section 75.223(a)(1).

The
Secretary having shown all three elements of a violation of section
75.223(a)(1), I thus conclude that Respondent violated 30 C.F.R. § 75.223(a)(1).

b.         Gravity
and S&S

Big Laurel’s
violation of section 75.223(a)(1) establishes the first element of the Mathies
test for a S&S violation. For the second element, the Secretary alleges
that the obsolete roof control plan exposed miners to the hazard of roof falls.[16]
(Sec’y Br. at 59–60.) Mine No. 2 suffered on average one reported fall per
month in 2011, including two in the last 10 days of August. Better, more
frequent examinations would have discovered signs of deterioration and allowed the
mine to supplement failing roof support or cordon off hazardous areas prior to
the roof’s collapse. Accordingly, I determine that Big Laurel’s failure to
amend its roof control plan contributed to the exposure of miners to the
hazards of a roof fall, satisfying the second Mathies element.

For the third Mathies
element, the Secretary claims that the extent of the deteriorating roof
conditions, the number of falls already experienced in 4 Northeast Mains,
and the high level of danger posed by a roof fall made the hazard highly likely
to result in an injury. (Sec’y Br. at 59.) Because the adverse roof conditions
extended across the active mining area in 4 Northeast Mains, the likelihood of
an injury was greater here than in 1 North Mains. Nevertheless, a designation
of “highly likely” carries an air of imminence. See Blue Bayou Sand &
Gravel, Inc., 18 FMSHRC 853, 859 (June 1996) (considering an inspector’s
change from “reasonably likely” to “highly likely” in accord with the
inspector’s imminent danger order). Inspectors Cain and Hughes agreed that the conditions
found in 4 Northeast Mains did not suggest another roof fall to be
imminent. (Tr. 217:10–23, 226:13–227:2, 289:21–24.) The most traveled entries
of 4 Northeast Mains had already been buttressed with cribs, timbers, high
jacks, and beams. (Tr. 474:19–475:22.) Accordingly, I determine that the
Secretary has not proven that an injury was highly likely to result; rather,
the injury was reasonably likely. See discussion, supra, Part
V.A.3.b.

As already explained,
the injury from a roof fall could reasonably be expected to be fatal. See
discussion, supra, Part V.A.3.b. Thus, the Secretary has met his
burden of proving that the hazard of a roof fall was reasonably likely to cause
injuries reasonably serious in nature, satisfying Mathies’ third and
fourth elements. I therefore conclude that this violation was appropriately
designated as S&S.

c.                  
Negligence

The
Secretary contends that Respondent was highly negligent in failing to amend its
roof control plan, as the mine had abundant notice that its efforts were no
longer sufficient to control the deteriorating mine roof. (Sec’y Br. at 60.) In
its defense, Big Laurel points to MSHA’s recent review and approval of the plan
as mitigating factors. (Resp’t Br. at 39–40.)

I
share the Secretary’s concern that Big Laurel made little, if any, effort to
understand and address the numerous roof falls in Mine No. 2, particularly in
the 4 Northeast Mains and 4 West Mains areas. That said, I am also troubled by MSHA’s
apparent lack of care. MSHA approved Big Laurel’s revisions in March, despite
offering no better controls to previously mined areas. The agency then
compounded its poor oversight by approving the mine’s existing plan in the
August six-month review. These are significant oversights that improperly
suggested the mine’s current roof control program was sufficient, despite
numerous signs to the contrary. Although the Mine Act makes clear that Big
Laurel is primarily responsible for ensuring the safety of its mine, MSHA’s actions
partially mitigate the company’s negligence.[17]
See 30
U.S.C. § 801(e).

Given
these factors, I determine that Big Laurel was moderately negligent in failing
to update its roof control plan. Cf. 30 C.F.R. § 100.3(d) at Table
X (suggesting “moderate negligence” where some mitigating circumstances are
present).

2.
        Citation No. 8178522 and Order No. 8178524:
Conditions in 4 Northeast Mains

For
Citation No. 8178522 and Order No. 8178524, the Secretary alleges that
Respondent violated section 75.202(a) by allowing extensive dangerous roof
conditions to develop unchecked in Entry No. 5, the intake entry and primary
escapeway, and Entry No. 7, the return entry, of 4 Northeast Mains. (Sec’y Br.
at 30–33, 51.) The Secretary asserts that the conditions constituted S&S
violations, and that the dangerous nature of the conditions, the length of time
they existed, and their obvious nature constitute aggravating circumstances
amounting to an unwarrantable failure to comply with mandatory health or safety
standards. (Id. at 33–44, 52.) Respondent contends the mine roof was
sufficiently maintained and did not show deterioration or hazardous conditions
in either entry. (Resp’t Br. at 43–46.) Big Laurel alternatively argues the
conditions posed no hazard and the operator was not negligent. (Id. at
46–61.)

a.
        Further Findings of Fact

Respondent first
asserts that the weight of testimony at hearing shows the entries had neither extensive
cutters, nor numerous roof bolt plates taking weight, nor other adverse roof
conditions. (Resp’t Br. at 45–46.) Respondent asserts that Inspector Cain’s
findings lack all credibility. (Id. at 45.) In support, Respondent
points to the testimony of Superintendent Steve Moore, Examiner Jesse Ring, State
Inspector Jerry Scott, and MSHA’s Michael Hughes. (Id.)

Inspector
Cain stated that the left-most entries of 4 Northeast Mains suffered
deterioration early in 2011. As the mine settled, pressure shifted from Entry
Nos. 1, 2, 3, and 4 to the right side of the section to affect Entry Nos. 5, 6,
and 7. (Tr. 111:1–16.) This horizontal shift created sporadic cutters
along the left-hand side of the entries and caused draw rock to form throughout
the entries. (Tr. 28:9–15.) Cain’s contemporaneous notes, while not identifying
the specific location of the hazards discovered, corroborate his testimony. (See
Ex. GX–9.)

Again,
a major roof fall such as the one that occurred in Entry No. 6 of
4 Northeast Mains indicates a broader weakening of the mine roof in the
area. See discussion, supra, Part V.A.2. Moreover, this was the
second such roof fall in the entry, the other taking place just two crosscuts
away. (Tr. 88:2–13; Ex. GX–9 at 3.) This older fall and other signs of a
deteriorating roof led Big Laurel to shift its primary escapeway to Entry No. 5
earlier in 2011. (Tr. 653:1–11.) In addition, nearby entries had also shown
signs of deterioration. A fall in Entry No. 3 and broader deterioration
prompted Big Laurel to install cribs, timbers, and beams throughout Entry Nos.
2, 3, and 4. On the other side of the section, Big Laurel suffered two roof
falls while mining the Right panels on the other side of Entry No. 7. Finally,
the entire 4 Northeast Mains was covered by a band of inherently adverse roof
conditions that could seriously, adversely affect the stability of a mine roof.
(See Ex. GX–14; Ex. GX–15; Ex. GX–16.) This undisputed evidence supports
Cain’s testimony.

Big
Laurel’s efforts to address the violations further lend support to the
allegations. Big Laurel spent nearly two weeks installing extensive
supplemental support throughout Entry Nos. 5 and 7 to abate the
conditions. Superintendent Moore contended that the mine installed this
extensive support merely to ensure Cain would be satisfied. Cain, however, only
ordered the mine to address violations in the No. 5 and 7 entries; MSHA did not
direct the method of abatement. (Tr. 118:18–25.)

Big
Laurel urges that I disregard this evidence and focus instead on the testimony
from Moore, Hughes, Scott, and Ring. (Resp’t Br. at 45.) First, Moore testified
that the cited roof conditions were not present. (Tr. 528:10–16, 529:2–8.) As I
noted above, however, Moore’s testimony regarding the August 22 roof fall was
fraught with inconsistencies. See discussion, supra, Part V.A.2. Given
the considerable discrepancies in Moore’s testimony, I afford it very little
weight.

Inspector
Hughes stated that he also found roof control violations during the
investigation, but did not write up the conditions because they were
incorporated by Cain’s broader citation and order. (Tr. 252:15–22.) Although
Hughes was not certain the conditions Cain identified were cutters, Hughes
deferred to Cain’s assessment. (Tr. 288:2–11, 294:20–295:1.) Moreover,
Hughes admitted that he lacked the specialized training in roof control that
Cain received.[18]
(Tr. 246:19–247:5.)

State
Mine Inspector Scott testified that he did not find obvious cutters in Entry
No. 5 on August 31 or during a return visit to 4 Northeast Mains in November
2011, after Big Laurel installed supplemental support. (Tr. 664:11–665:8,
669:13–670:13; Ex. R–21.) However, Scott did find extensive amounts of draw
rock in the entry for nearly the entire length of 4 Northeast Mains. (Tr.
664:1–20.) Scott issued his own citation directing Big Laurel to clean the
entry of excessive draw rock. (Tr. 664:17–20; Ex. R–23 at 34–36.) Scott was a
seasoned inspector with nearly 38 years in underground mines, including 26 years
with Virginia’s Department of Mines, Minerals, and Energy. (Tr. 622:14–18,
625:5–15.) However, Scott’s training and experience did not include the kind of
intensive roof control training that Cain received to become a roof specialist.

Like
Scott, Mine Examiner Jesse Ring asserted that he did not find any hazards
related to the roof or ribs in the No. 5 or No. 7 entries. (Tr. 347:7–24.) Ring
further stated that he checked test holes near the fall and did not find any
cracks or other problems in the holes. (Tr. 339:9–12.) He also did not find any
roof bolt plates showing signs of taking excess weight from the nearby fall. (Tr.
339:13–19.) Ring did not record any information regarding the roof fall or the
examination of neighboring entries in his notes.

Given
the undisputed evidence before me, and recognizing the extensive training that
MSHA specialists receive, I credit Cain’s testimony over that of Ring and
Scott. Accordingly, I find that cutters, draw rock, and other indicators of a
deteriorating roof existed throughout the intake and return entries in 4 Northeast
Mains. Nevertheless, I recognize that Scott, Ring, and Hughes did not easily
identify the cutters Cain discovered along the left ribs of Entry Nos. 5 and 7.
I credit this testimony and find that some of the cited conditions were not
obvious without close inspection. Based on the testimony of Cain, Hughes, and
Scott, however, I find that the extensive accumulations of draw rock in the
entries were obvious.

b.         Violation

To
demonstrate a violation of section 75.202(a), the Secretary must show (1) that
the roof or ribs were not supported to protect persons from hazards related to
roof falls and (2) the insufficiently supported roof or rib were located in an
area where persons work or travel. I have already found that cutters and
extensive amounts of draw rock were present in Entry Nos. 5 and 7, and it
is uncontroverted that miners worked and traveled in the entries at least once
a week. The only question before me, therefore, is whether a reasonably prudent
miner would have recognized that the entries required additional support.

Signs
of a poor roof existed throughout Entry Nos. 5 and 7. Although some of the
signs were not obvious, the extensive draw rock was obvious to any miner of
reasonable prudence. More importantly, the mine had a number of roof falls—at
least eight in the eight months prior to August 31—and information showing
numerous adverse roof conditions across 4 Northeast Mains. These falls would
have prompted a reasonably prudent miner to explore the adverse conditions
affecting the roof. Miners aware that an area contains a coal rider seam and suffers
from improperly stacked blocks would be extra cautious in checking for signs of
a deteriorating roof. (Tr. 355:8–13, 390:7–17.) Therefore, I determine that a
reasonably prudent miner, prompted by regular roof falls and spurred by an explicit
warning from MSHA, would have recognized that Entry Nos. 5 and 7 required
additional support.

Given
these considerations, I conclude that in Citation No. 8178522 and
Order No. 8178524 the Secretary has satisfied the elements of a violation of
section 75.202(a) for both Entry No. 5 and Entry No. 7 of 4 Northeast Mains. Big
Laurel did not sufficiently support or control its roof in these entries to
protect persons from the hazard posed by roof falls.

c.
        Gravity & S&S

Respondent
violated section 75.202(a), satisfying the first part of the Mathies test.
As explained earlier, an insufficiently supported roof exposes miners to hazards
related to roof falls such as falling rock, satisfying the second prong of Mathies.
See discussion, supra, Part V.A.3.b. A roof fall in a primary
escapeway, travelway, intake airway, or return airway, reasonably could be
expected to cause serious or fatal injuries, thus satisfying the third and
fourth elements of the Mathies test. See discussion, supra,
Part V.B.1.b. As explained previously, the hazard was not highly likely to
cause an injury because the cited entries were lightly traveled and a new fall
was not likely in the immediate future. See id. I therefore conclude
that the Secretary has demonstrated that Citation No. 8178522 and
Order No. 8178524 were S&S, but reasonably likely rather than highly likely.

d.
        Negligence and Unwarrantable Failure

The
Secretary designated both of these violations as unwarrantable failures and
characterized Big Laurel’s negligence in each case as high. In particular, the
Secretary emphasizes that Big Laurel had notice the mine needed to better
control its roof yet did nothing to improve its compliance in an area known to
suffer from adverse conditions. (Sec’y Br. at 35–44.)

Looking
to the factors for determining aggravated conduct, three of the seven factors
favor the Secretary’s unwarrantable failure allegation.[19]
First, the violative conditions were extensive. Cutters and excessive draw rock
covered the length of Entry Nos. 5 and 7, approximately 2,000 feet. The cited
conditions took Big Laurel nearly two weeks to fully address. See Manalapan
Mining Corp., 35 FMSHRC 289, 295 (Feb. 2013) (considering the time to abate
violative conditions when assessing the extent of a violation). Second, the
extent of the conditions suggests that they existed for a significant amount of
time before they were addressed. As Inspector Cain credibly testified, such
expansive conditions could not develop in a matter of hours, but over a long
period of time. (Tr. 99:7–25.) Moreover, the mine first noticed deteriorating
roof conditions on the right side of the section in Entry No. 6 several months
prior to the August 31 investigation. (Tr. 579:1–581:3.) Third, given the
extent of the violation and the threat posed by roof falls, the conditions
posed a high degree of danger to miners.  

In
its defense, Respondent contends that it did not have notice that greater
efforts at compliance with section 75.202(a) were necessary. (Resp’t Br. at 52–56.)
Big Laurel asserts that Cain’s explicit notice was insufficiently precise to
put the mine on notice for conditions in 4 Northeast Mains. (Id. at
54–56.) Respondent further insists it was not on notice from prior citations,
as the operator had steadily reduced its violations of section 75.202(a). (Id.)
Respondent’s first argument misrepresents the nature of MSHA’s notice. In
putting Big Laurel on notice on August 22, Cain did not direct Big Laurel to
install additional support throughout the mine, but to be more vigilant in
finding deteriorating roof conditions so the conditions could be addressed or
otherwise controlled to protect miners. At the very least, this requires
informing the mine examiners to be more thorough during examinations. See IO
Coal, 31 FMSHRC at 1354 (emphasizing that mine management had a duty to
raise safety awareness of potential hazards on all mine sections, not merely
those close to prior cited hazards). Big Laurel did not take even this modest
step. Second, Big Laurel’s improving citation history belies the large number
of falls Mine No. 2 suffered in 2011. The eight prior falls in the first eight
months of the year and the adverse roof conditions placed Big Laurel on notice
that it needed to be more assiduous in supporting the roof of 4 Northeast
Mains. This notice simply reinforced Cain’s directive that the mine would be
subject to heightened penalties for future failure to comply.[20]

Next,
Big Laurel argues that it neither knew nor should have known of the violative
conditions. (Resp’t Br. at 56–58.) Respondent emphasizes that the roof fall in
Entry No. 6 took place between the weekly examinations by Examiner Ring. (Id.
at 56.) Whether Big Laurel should have discovered the fall in Entry No. 6
earlier is tangential to the issue at hand. Cain cited Big Laurel not for the
fall but for extensive deterioration of the roof in adjacent entries. Those
conditions developed over a long period of time, giving the mine ample
opportunity to find and address the problems. Given Big Laurel’s heightened
notice, the operator should have known of the broader problems in 4 Northeast
Mains.[21]

Big
Laurel also asserts that it made reasonable efforts to protect miners from roof
falls. (Resp’t Br. at 59–61.) Although Big Laurel exceeded the minimum
requirements of its roof control plan, those minimums are not relevant where
adverse roof conditions requiring additional support are present. Indeed, I
have already found that the mine’s roof control plan was inadequate. Big Laurel
failed to sufficiently protect its miners from hazardous conditions it knew
about. Although the mine rerouted its lifeline away from Entry No. 6 in 4
Northeast Mains, the operator did not close off access points to the entry as
close as two crosscuts from the older fall. Big Laurel’s examination books also
could not warn miners of the dangers of Entry No. 6 because the mine kept no
record of when hazardous conditions first appeared in the entry.[22]
In reality, Big Laurel made no notable effort to address the deteriorating mine
roof in Entry Nos. 5, 6, and 7.

Of
the seven factors in the unwarrantable failure analysis, only the obviousness of
the violation does not weigh sharply against Respondent. Even though the
extensive draw rock in the area was obvious, some of the violations were not as
obvious as Cain asserted. See discussion, supra, Part V.B.2.a. Accordingly,
this factor does not weigh either for or against a determination that Big Laurel’s
conduct constituted more than ordinary negligence.

Big
Laurel had numerous signs that the mine roof was no longer stable in 4
Northeast Mains. Despite these signs, Big Laurel’s management did not seek help
from mine engineers to better understand the cause of the mine’s repeated roof
falls. (Tr. 387:16–388:21, 504:15–22.) Indeed, Assistant Mine Manager
Richardson could not even recall whether the mine had a history of roof falls
prior to August 2011, despite seven falls occurring in as many months. (Tr.
388:16–389:5.) Moreover, Richardson admitted that the mine did not heed MSHA’s
explicit warning to do more to address roof falls because Big Laurel felt its
existing efforts were sufficient. (Tr. 386:20–387:15.) Big Laurel’s management
knew of the coal rider seam and the overmining problems at Mine No. 2, but did
not believe the conditions merited any additional attention. (Tr. 389:6–21.) Undaunted
by eight roof falls in as many months, Big Laurel pushed coal production
without any attempt to understand the reasons for the falls. Unfazed by a
direct warning from MSHA, Big Laurel pushed coal production without even
notifying its safety examiners of the need for greater vigilance. Unconcerned about
the potential for another fatal roof collapse, Big Laurel addressed the serious
safety concerns only insofar as they threatened the mine’s haulage and belt
entries, and thus the company’s bottom line. More than simply ignoring the
signs of danger, Big Laurel made some attempt to prevent MSHA from learning
about two serious roof falls within the mine. In disregarding these signs, Big
Laurel placed production ahead of worker safety. This is precisely the type of
aggravated conduct the unwarrantable failure provisions of the Mine Act are
designed to deter.

Based
on the evidence before me, I find that for Citation No. 8178522 and
Order No. 8178524 Big Laurel’s conduct in violating section 75.202(a) in Entry
No. 5 and Entry No. 7 amounted to an unwarrantable failure to comply with a
mandatory health or safety standard. For the same reasons, I also determine
that Big Laurel was highly negligent in failing to address the deteriorating
roof conditions throughout the No. 5 and No. 7 entries. Cf. 30 C.F.R.
§ 100.3(d) at Table X (suggesting “high negligence” where the “operator
knew or should have known of the violative condition or practice, and there are
no mitigating circumstances”).

3.         Orders
Nos. 8178523
and 8178525: Insufficient Examinations

For
Order Nos. 8178523 and 8178525, the Secretary asserts that Respondent did not
satisfy its duty under 30 C.F.R. § 75.364(b)(1) and 75.364(b)(2), respectively,
by failing to identify the hazardous roof conditions during the mine examiner’s
weekly examination of the intake and return airways of 4 Northeast Mains. (Sec’y
Br. at 44–46, 54–55.) As with the underlying roof control violations, the
Secretary claims these violations were S&S and that Big Laurel’s conduct
constituted high negligence and an unwarrantable failure. (Id. at 46–50,
55–56.) Respondent asserts that it did not violate sections 75.364(b)(1) or
75.364(b)(2) because its examiner conducted a sufficient examination of the
entries. (Resp’t Br. at 65–67.)

a.         Violation

To
show a violation of sections 75.364(b)(1) and 75.364(b)(2), the Secretary must
demonstrate that either no examination for hazards took place, or that the
examination took place but the examiner failed to identify hazards. Here, the
Secretary alleges that Ring’s examination on August 31 was insufficient because
he failed to notice hazardous roof conditions throughout Entry Nos. 5 and 7.

I have found
that Respondent violated section 75.202(a) by failing to support extensive
deteriorating roof conditions in Entry No. 5 and Entry No. 7. Although Examiner
Ring stated he actively pulled draw rock during his examinations, his
contemporaneous notes fail to identify any hazards. (Ex. GX–13.) Ring
performed an examination of the intake and return entries of 4 Northeast Mains
just hours prior to Cain’s investigation, yet Ring again did not identify any
safety hazard in the examination. (Id.) Ring’s sparse note-taking was
not isolated to August 31, as the mine examiner’s notes do not identify with
specificity any roof hazards going back to the start of July 2011. (Id.)
Notably, Ring never noted either the prior roof fall in Entry No. 6 or the
other hazardous conditions that Big Laurel says required the lifeline to be moved
to Entry No. 5. (Ex. GX–13; Tr. 356:24–358:22, 361:5–362:8.) Given this
evidence, I determine for Orders Nos. 8178523 and 8178525 that Ring conducted
an insufficient examination of the return and intake airways on August 31,
2011, in violation of sections 75.364(b)(1) and 75.364(b)(2), respectively.

b.         Gravity
and S&S

Applying
the Mathies test, Big Laurel’s violation satisfies the first element. The
Commission has recognized that examinations are “of fundamental importance in
assuring a safe working environment underground.” Buck Creek Coal Co.,
17 FMSHRC 8, 15 (Jan. 1995). The purpose of weekly examinations such as those
required under section 75.364(b) is “to discover and correct conditions posing
a hazard to miners” in areas not normally examined during regular preshift and
onshift examinations. Lodestar Energy, Inc., 24 FMSHRC 689, 693 (July
2002) (considering predecessor provision of section 75.360(b) in the Federal
Coal Mine Health and Safety Act of 1969) (citations omitted). Ring’s failure to
identify the deteriorating roof allowed poor roof conditions to persist and left
miners with access to the dangerous areas. Thus, Ring’s insufficient
examination contributed to the hazard of a roof fall, satisfying the second
element of the Mathies test. As explained above, the roof fall was
reasonably likely, but not highly likely, to contribute to an injury, and that
injury reasonably could be expected to be serious or fatal. See
discussion, supra, Part V.B.1.b. Accordingly, the Secretary has
satisfied the third and fourth elements of Mathies. Based on the
evidence before me, I therefore conclude that for Order Nos. 8178523 and
8178525 Respondent’s violations of section 75.364(b)(1) and section
75.364(b)(2) were S&S, and reasonably likely.

c.
        Negligence and Unwarrantable Failure

The
Secretary again asserts that Respondent’s conduct amounted to high negligence
and an unwarrantable failure. (Sec’y Br. at 48, 56.) Respondent avers that it
was not negligent because Examiner Ring discovered the roof fall on August 31
and thoroughly examined the surrounding area. (Resp’t Br. at 67–69.)

In
analyzing an inadequate examination for an unwarrantable failure determination,
many
of the aggravating factors overlap with those of the underlying violation. See
Consolidation Coal Co., 23 FMSHRC 588, 597–98 (June 2001) (remanding for
consideration of the extent, duration, and obviousness of the underlying
violative coal accumulations when assessing unwarrantable failure of an
inadequate preshift examination). However, the Commission has focused on how
long the operator’s examination had been inadequate and whether the operator
was on notice that it needed to improve its safety checks. See Va.
Slate Co., 23 FMSHRC 482, 492 (May 2001) (vacating an ALJ’s decision of no
unwarrantable failure for violating preshift requirements).

The
duration of the inadequate examination significantly overlaps with the duration
of the underlying violations. As Cain explained, the signs of a deteriorating
roof developed over a period of weeks or months. (Tr. 99:7–25.) Nevertheless,
Ring’s examination notes for months contained scant details. (Ex. GX–13.) Ring
never identified the location of any roof hazards, despite several serious roof
falls during the period. Accordingly, the duration of the violation was
substantial.

In
addition, Big Laurel was on notice that its examinations were insufficient. Cain
warned the operator on August 22 that it needed to improve its efforts at
supporting or controlling the roof. Inherent in that demand is notice that the operator
must improve its examinations to find potential hazards so they can be
addressed more quickly. Big Laurel itself knew of its inadequacy, noting that
examinations needed to improve. (See Ex. GX–27.) Despite acknowledging the
need for improved inspections, Big Laurel’s management never informed Ring that
his work needed to improve. The company therefore made no efforts to address
its insufficient examinations despite having explicit notice of its
shortcomings.

The
other factors for determining whether Big Laurel’s behavior constituted
aggravated conduct mirror those for the underlying violations. As discussed
above, the undiscovered violative conditions were extensive and the danger
posed by the unnoticed conditions high.

Finally,
the underlying violations were not entirely obvious. Accordingly, this factor
does not weigh in favor of either side.

Given
these considerations, I determine that for Orders Nos. 8178523 and
8178525 Big Laurel’s violations of sections 75.364(b)(1) and 75.364(b)(2) were
unwarrantable failures to comply with mandatory health or safety regulations. For
the same reasons, and those explained above, I also conclude that for both
violations Big Laurel was highly negligent in allowing the insufficient
examinations to continue unchecked for months.

4.
        Citation No. 8191715: The Blocked Escapeway

Section
75.380 requires that underground coal mine operators maintain a primary
escapeway in a safe condition to assure passage of anyone, including injured
miners. 30 C.F.R. § 75.380(d)(1); see Maple Creek Mining, Inc.,
27 FMSHRC 555, 556–57 (Aug. 2005). Operators must keep escapeways clear for miners
to quickly exit the mine in the event of an emergency. Mach Mining, LLC,
35 FMSHRC 2937, 2942–43 (Sep. 2013) (citing Am. Coal Co., 29 FMSHRC 941,
948, 953–54 (Dec. 2007)). Furthermore, the Commission has held that the test
with respect to the use of an escape route “is not whether miners have been
safely traversing the route under normal conditions, but rather the effect of
the condition of the route on miners’ ability to expeditiously escape a
dangerous underground environment in an emergency.” Am. Coal Co., 29
FMSHRC at 950 (citations omitted).

The
Secretary alleges that Respondent violated section 75.380(d)(1) when it allowed
a large volume of water to accumulate in the primary escapeway in
4 Northeast Mains. (Sec’y Br. at 61–62.) The Secretary further contends that
the violation was S&S because the pool of water obscured debris that
reasonably could cause miners traveling the escapeway on foot to trip and fall.
(Id. at 62–63.) MSHA initially evaluated Respondent’s negligence in this
case as moderate, but the Secretary argues in his brief that I should raise the
level of negligence based on the evidence adduced at hearing. (Id. at
63.) In contrast, Respondent claims the escapeway was maintained in a safe
condition, and thus there was no violation of the regulation. (Resp’t Br. at
70–71.) In the alternative, Big Laurel argues the violation was neither S&S
nor the result of the operator’s negligence. (Id.)

a.         Further
Findings of Fact

Big
Laurel contends that the Secretary has not met his burden of proof of showing a
violation. (Resp’t Br. at 70–71.) Respondent relies on the testimony of
Examiner Jesse Ring and State Inspector Jerry Scott, who traveled the affected
area approximately six hours before Hughes. (Id. at 70.) Although Ring
and Scott found water in Entry No. 5, it was less extensive than Inspector
Hughes noted. (Tr. 349:1–21, 694:21–695:5.) Neither Ring nor Scott felt the
water accumulation at that time made the escapeway dangerous to travel. (Tr.
339:20–24, 694:5–14.)

Although
Ring and Scott suggest the water accumulation was smaller prior to Inspector
Hughes’ arrival, they do not refute the Secretary’s evidence in support of the
citation. Scott explicitly suggested that the water could have continued to
accumulate in the primary escapeway after his inspection. (Tr. 693:10–15.) Hughes
similarly believed the water may have accumulated in the escapeway as a result
of the recent roof fall in Entry No. 6. (Tr. 255:23–256:3.) Although Big
Laurel had water pumps in 4 Northeast Mains to remove water, the pumps were not
addressing the cited accumulation. (Tr. 350:4–6, 304:21–305:8, 559:4–9.)

Given
the evidence before me, I conclude that the water continued to accumulate in
the primary escapeway after Ring and Scott left the area. By the time Hughes
arrived in the area, the water spanned the entire width of Entry No. 5 for a
distance of two crosscuts and in depths of up to eight inches.

b.         Violation

I
have determined that the water accumulation obstructed the entire escapeway for
a length of two crosscuts. Therefore, the existence of a violation hinges on
the question of whether the water made traveling the route dangerous for miners
attempting to escape an accident in the mine. Here, the water was eight inches
deep and overlaid a mine floor that was covered in draw rock. (Tr. 693:16–21.) This
amount of water could hide problems on the mine floor, causing miners to trip
and fall and slowing their escape from a mine disaster. (Tr. 253:5–16.) Although
the inspectors were able to safely travel through the water in vehicles (Tr.
558:21–559:3), they were neither on foot nor escaping from a dangerous incident
elsewhere in the mine. During an emergency evacuation, miners would likely need
to move quickly through the area to seek safe passage away from danger. Maple
Creek, 27 FMSHRC at 560 (citing 61 Fed. Reg. 9764, 9810 (Mar. 11, 1996)).

Given
the evidence before me, I conclude that such a long stretch of water eight
inches deep, combined with questionable conditions on the mine floor, would
significantly slow miners escaping from a danger at the face of the mine,
particularly miners carrying an injured colleague. Accordingly, the Secretary
has satisfied the second element of a violation of section 75.380(d)(1), and
thus shown that Big Laurel violated 30 C.F.R. § 75.380(d)(1) in Citation No. 8191715.

c.         Gravity and S&S

Big Laurel’s violation of the standard
establishes the first Mathies prong. For the second element, I credit
Hughes’ testimony that the water created a trip-and-fall hazard that would slow
miners’ escape in an emergency.[23]
(Tr. 253:11–19.) Consequently, I determine that the Secretary has satisfied his
burden of proof on the second element of the Mathies test.

With regard to the third and fourth
elements of the Mathies test, The Secretary contends that, given
emergency conditions, the bad conditions of the escapeway would be reasonably
likely to cause reasonably serious injuries. (Sec’y Br. at 62.) I have credited
Hughes’ testimony that, given a hurried escape from a mine accident, panicked
miners would be reasonably likely to trip and fall while traversing the watery
escapeway with hidden hazards. (Tr. 254:1–4.) Hughes explained that
trip-and-fall accidents could result in broken bones and twisted limbs. (Tr. 253:23–254:10.)
The Commission has consistently recognized that such injuries are of a
sufficiently serious nature to support a S&S designation. See,
e.g., S
& S Dredging Co.,
35 FMSHRC 1979, 1981 (July 2013) (overturning a Judge’s ruling that muscle
strains were insufficient to underpin a S&S designation). Based on this
testimony, I determine that the Secretary has shown that, in an emergency
situation, the accumulated water would be reasonably likely to cause a
reasonably serious injury, thus satisfying the third and fourth prongs of the Mathies
test. Based
on the evidence before me, I conclude that Citation No. 8191715 is
S&S.

d.                 
Negligence

The
Secretary next asserts that the water accumulation was the result of Big
Laurel’s high negligence. (Sec’y Br. at 63.) The Secretary argues that
Inspector Hughes was incorrect in initially assessing the violation as being
the result of moderate negligence because the mine knew of the accumulation and
did nothing to remedy the condition. (Id.) Respondent contends it was
not negligent in allowing the water to accumulate, as the mine had pumps in the
area to remove the water. (Resp’t Br. at 72–73.)

The
water largely accumulated in the hours between the discovery of the fall and
the arrival of Inspectors Hughes and Cain. See discussion supra, Part
V.B.4.a. The accumulation was smaller when Ring and Scott examined the area, so
the mine could not appreciate the extent of the problem. In addition, Big
Laurel kept pumps in the area to address similar water accumulations. (Tr. 304:21–305:2.)
Although the pumps were not in use upon Hughes’ arrival, the mine was prepared
to address the conditions.

I
determine that these factors mitigate Big Laurel’s negligence. Accordingly, I
conclude that Hughes’ initial assessment of moderate negligence for Citation
No. 8191715
is appropriate.

VI.  PENALTY

Under section 110(i) of the Mine Act,
I must consider six criteria in assessing a civil penalty: (1) the operator’s
history of previous violations; (2) the appropriateness of the penalty relative
to the size of the operator’s business; (3) the operator’s negligence; (4) the
penalty’s effect on the operator’s ability to continue in business; (5) the
violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i). The parties have stipulated that the fines will not affect the
operator’s ability to remain in business, and the operator abated the
conditions in good faith. (Joint Ex. 1.) I further note that Big Laurel was a
relatively large mine. (Tr. 631:7–11.) The Secretary proposed a combined
penalty of $305,800.00 for all seven violations.

A.        Citation No. 8178516,
August 22, 2011

I
have determined that Big Laurel violated section 75.202(a), and that the
violation was S&S and the result of the operator’s moderate negligence.

The Secretary has proposed a specially
assessed penalty of $52,500.00 for Citation No. 8178516, asserting that this
substantial penalty is necessary to deter the operator from committing future
violations of this standard. (Sec’y Br. at 63–67.) At hearing, Cain testified
that he suggested the enhanced penalties because of the mine’s lack of effort
to prevent future falls. (Tr. 103:20–104:12, 107:21–108:6.) Inspector Hughes,
however, expressed uncertainty about the need for such an enhanced penalty. (Tr.
294:7–296:21.) In
the two years prior to the violation, the mine received 38 violations under
section 75.202(a). (Ex. GX–26.) I recognize that section 75.202(a) is a widely
cited standard. (Ex. R–12.) The August 22 roof fall was the latest in a
line of serious roof falls, however, not minor violations of the standard. (See
Ex. GX–27; Ex. GX–28.) Nevertheless, this fall in 1 North Mains was nearly
two miles away from all but one of the prior falls in Mine No. 2 and did not
evidence the same adverse roof conditions found in 4 Northeast Mains. Furthermore,
Inspector Cain warned Big Laurel with Citation No. 8178516 of substantially
enhanced penalties for any subsequent violations of section 75.202(a). Given
these factors and the mitigating evidence that supported a finding of moderate
negligence, the Secretary’s proposed penalty is not appropriate. Considering
all of the facts and circumstances of this matter, I assess a penalty of $25,000.00
for this citation.

B.        Citation No. 8178521,
August 31, 2011

The Secretary has proposed a penalty of
$6,996.00 for Citation No. 8178521. I have determined that Big Laurel violated
section 75.223(a)(1) and that the violation was S&S and the result of
Respondent’s moderate negligence. Big Laurel received one prior citation for
violating 75.223(a)(1) in the two years prior to August 31, 2011. (Joint Ex.
1.) I reduced the likelihood determination from “highly likely” to “reasonably
likely” and the negligence finding from “high” to “moderate.” Given the serious
risk posed by roof falls, however, these changes do not justify a significant
reduction in the penalty. Considering all of the facts and circumstances
involved in this matter, including the parties’ admissions regarding the six
civil penalty criteria, I determine a penalty of $6,000.00 is appropriate for
this violation.

C.        Citation No. 8178522
and Order No. 8178524, August 31, 2011

The
Secretary has proposed a penalty of $70,000.00 each for Citation No. 8178522 and
Order No. 8178524. In each instance, I have upheld the violation and found it
to be S&S and the result of Respondent’s unwarrantable failure to comply
with section 75.202(a), but reduced the likelihood from “highly likely” to
“reasonably likely.” In
the two years prior to the violation, the mine received 39 violations under
section 75.202(a). (Ex. GX–26.) Big Laurel’s conduct was unjustified. Nevertheless,
given the reduced likelihood and the substantiated questions regarding the
obviousness of the cited conditions, I assess a penalty of $63,000.00 for each
violation.

D.        Order Nos. 8178523
and 8178525, August 31, 2011

The
Secretary has proposed a penalty of $52,500.00 each for Order No. 8178523 and
Order No. 8178525. In each instance, I have upheld the violation and found it
to be S&S and the result of the Respondent’s unwarrantable failure to
comply with section 75.364(b)(1) and section 75.364(b)(2), respectively, but
reduced the likelihood to “reasonably likely.” I note that Big Laurel had no
previous violations of 30 C.F.R. § 75.364(b)(1) in the two years prior to this
inspection, and two prior violations of 30 C.F.R. § 75.364(b)(2). Because I
have reduced the likelihood and found the conditions to be marginally less
obvious than the Secretary asserted, I assess a penalty of $47,000.00 for each
violation.

E.        Citation No. 8191715,
August 31, 2011

The
Secretary has proposed a penalty of $1,304.00 for Citation No. 8191715. Turning
to the six statutory penalty criteria, I have found that Big Laurel violated
section 75.380(d)(1), and that the violation was S&S and the result of Big
Laurel’s moderate negligence. Big Laurel’s violation history reveals it
received one citation for violating section 75.380(d)(1) in the two years prior
to the citation in question. Considering these factors, as well as the mine’s
large size, ability to pay the penalty, and its good faith in abating the
conditions, I determine the Secretary’s proposed penalty of $1,304.00 is
appropriate.

VII.  ORDER

In
light of the foregoing, it is hereby ORDERED that:

Citation
No. 8178516 is AFFIRMED as written;

Citation
No. 8178521 is AFFIRMED as S&S, but MODIFIED to change the
likelihood determination to “reasonably likely” and reduce the level of
negligence from “high” to “moderate;”

Citation
No. 8178522 is AFFIRMED as S&S and an unwarrantable failure, but MODIFIED
to change the likelihood determination to “reasonably likely”;

Order
No. 8178524 is AFFIRMED as S&S and an unwarrantable failure, but MODIFIED
to change the likelihood determination to “reasonably likely”;

Order
No. 8178523 is AFFIRMED as S&S and an unwarrantable failure, but MODIFIED
to change the likelihood determination to “reasonably likely”;

Order
No. 8178525 is AFFIRMED as S&S and an unwarrantable failure, but MODIFIED
to change the likelihood determination to “reasonably likely”;

Citation
No. 8191715 is AFFIRMED as written.

WHEREFORE, Big Laurel Mining
Corporation is ORDERED to pay a penalty of $252,304.00 within 40 days of
this Decision.[24]

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Matthew
R. Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis
Center, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306

Max
L. Corley III, Esq., Dinsmore & Shohl LLP, P.O. Box 11887, Charleston, WV 25339-1887

/lct

[1] In this
decision, the hearing transcript, the Secretary’s exhibits, Big Laurel’s
exhibits, and the parties’ joint exhibits are abbreviated as “Tr.,” “Ex. GX–#,”
“Ex. R–#,” and “Joint Ex. #,” respectively. I note that Exs. R–1 through R–7,
R–14, R–18, and R–19 are duplicative of the Secretary’s exhibits.  

[2] Section
75.223(a) provides, in relevant part: “Revisions of the roof control plan shall
be proposed by the operator—(1) When conditions indicate that the plan is not
suitable for controlling the roof, face, ribs, or coal or rock bursts[.]” 30
C.F.R. § 75.223(a).

[3] Section
75.380(d) provides, in relevant part: “Each escapeway shall be—
(1) Maintained in a safe condition to always assure passage of anyone,
including disabled persons[.]” 30 C.F.R. § 75.380(d).

[4] Section
75.202(a) 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.” 30
C.F.R. § 75.202(a).

[5] Section
75.364(b) was amended in 2012. See 77 Fed. Reg. 20,700, 20,705 (Apr. 6,
2012). At the time of the violations in August 2011, section 75.364(b)
provided, in relevant part, as follows:

Hazardous conditions. At least every
7 days, an examination for hazardous conditions shall be made by a certified
person designated by the operator at the following locations:

(1) In at least
one entry of each intake air course, in its entirety, so that the entire air
course is traveled.

(2) In at least
one entry of each return air course, in its entirety, so that the entire air
course is traveled.

30
C.F.R. § 75.364(b) (2011).

[6] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), which distinguishes in gravity violations that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[7] The
unwarrantable failure terminology is taken from section 104(d)(1) of the Mine
Act, 30 U.S.C. 814(d)(1), which establishes more severe sanctions for any
violation that is caused by the “unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.”

[8] Mill Branch
Coal Corporation became the operator of the mine in 2013 and renamed the mine
North Fork #6. (Tr. 298:10–22; Ex. R–10 at 1.) Revelation Energy, LLC, became
the operator in 2015 and renamed the mine D-6 North Fork. See Mine
Safety & Health Admin., Mine Data Retrieval System, http://www.msha.gov/drs/drshome.htm
(last visited Aug. 31, 2015).

[9] Respondent
contends that Cain’s testimony is inconsistent with his actions during the roof
fall investigation, as the inspector did not issue an imminent danger
withdrawal order under section 107(a) of the Mine Act, 30 U.S.C. § 817(a), to
the miners installing supplemental roof support. (Resp’t Reply at 3.) Respondent’s
argument misconstrues the law. The Mine Act defines an “imminent danger” as a
condition “which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.” 30 U.S.C.
§ 802(j) (emphasis added). Violative conditions certainly may exist but not
cross this heightened threshold of imminence. See Connoly-Pacific Co.,
36 FMSHRC 1549, 1555 (June 2014); Eastern Assoc. Coal Corp., 13 FMSHRC
178, 183 (Feb. 1991) (“the conditions created by [a S&S] violation need not
necessarily be so impending as to constitute an imminent danger”).

[10] Big Laurel
asserts that Virginia mine inspector Scott’s notes suggest the roof was
sufficiently supported because Scott did not issue a citation for the roof fall.
(Resp’t Br. at 22.) However, Scott did not arrive until two days after MSHA had
already investigated the roof fall, and Scott’s notes offer little pertinent
information. (Ex. R–20.)  

[11] Superintendent
Moore’s testimony at hearing deviated dramatically from that in his deposition.
Moore’s answers on cross-examination regarding the August 22 fall were at best
unclear and potentially obfuscatory. (See Tr. 591:5–593:18.) In other instances,
Moore contradicted his own previous testimony. (Compare Tr. 511:5–513:1
(Moore contending he told workers on the active section to be more vigilant
after the August 22 citation), with Tr. 506:6–507:13 (Moore
claiming he did not understand that Cain’s notice from August 22 extended to
the active section).) Moore similarly contradicted testimony from Big Laurel’s other
witnesses (See Tr. 368:10–18), as well as consistent statements from
inspectors Cain and Hughes. (See Tr. 522:3–13, 529:9–22, 539:17–21,
593:18–594:13, 26:2–17, 82:6–15, 251:19–252:6, 543:15–544:14, 723:14–724:8; Ex.
R–8 at 5; Ex. GX–12 at 1l; Ex. GX–9.) These problems give me significant
concerns about the accuracy of Moore’s testimony. Accordingly, I do not give
weight to any of Moore’s testimony insofar as it contradicts the testimony of
other witnesses. I do, however, give weight to Moore's contradictory deposition
statements because the statements were against Moore and Big Laurel’s
interests. See generally Fed. R. Evid. 804(b)(3)(A) (creating exception
to hearsay rules for statements against own interests).

[12] Big Laurel
contends that it could not have violated the standard because it exceeded its
roof control plan throughout the mine, including where the roof fall occurred
in 1 North Mains. (Resp’t Br. at 22–23.) However, the Commission has
consistently held that a violation of the mine’s roof control plan is not
necessary to show a violation of section 75.202(a).

[13] Respondent
contends that the roof fall did not contribute to any discrete safety hazard,
as required in the Mathies test. (Resp’t Br. at 24.) Respondent asserts that
the fall of the roof was limited to one intersection and would not expand further,
and thus posed no ongoing threat to miners. (Id.) Respondent therefore
argues that the roof fall was in fact the cure for an insufficiently supported
roof, not the hazard to be feared. Accepting this tortured logic would
effectively protect the most serious violations of section 75.202—those in
which the mine has actually suffered a roof collapse—from sanction under the
Mine Act. To the contrary, MSHA and the Commission have repeatedly recognized
that roof falls rank among the most serious dangers in the mining industry. See
Consolidation Coal Co., 6 FMSHRC 34, 37–38 (Jan. 1984); see also
Safety Standards for Roof, Fall and Rib Support, 53 Fed. Reg. 2354 (Jan. 27,
1988) (recognizing dangers of roof falls).

[14] Respondent
emphasizes that the Mathies test asks what is reasonably likely to
occur, and not merely what “could” or “might” occur. (Resp’t Br. at 25.) Although
Big Laurel points to Tilden Mining Co., 24 FMSHRC 53 (Jan. 2002) (ALJ),
for support, Respondent does not explain how that non-binding ALJ decision
supports Big Laurel’s position. Instead, Respondent echoes its prior contention
that no hazard existed and thus no injury would be reasonably likely to result.
(Resp’t Br. at 25.) It is unclear how the cited case supports Respondent’s
position, as Tilden does not address the Mathies test for S&S
violations, but rather whether the Secretary proved the fact of a violation. See
Tilden, 24 FMSHRC at 67. Moreover, decisions from Administrative Law Judges
are not binding precedent. 29 C.F.R. § 2700.69(d).

[15] At hearing, Big
Laurel’s witnesses asserted that the number of falls was within reason for a
mine the size of Mine No. 2. (Tr. 388:8–15.) This assertion amounts to a false
equivalence that ignores the clustering of roof falls in an area that suffered
from adverse conditions not prevalent throughout most of the mine.

[16] Big Laurel
again asserts that its roof control sufficiently covered already-mined areas,
and thus logically could not contribute to a hazard. (Resp’t Br. at 38–39.) However,
I already have found that the mine’s existing roof control plan as applied was
insufficient to address the set of inherently adverse roof conditions found in
4 Northeast Mains.

[17] Big Laurel
asserts that its history of installing additional support also mitigates any
alleged negligence. (Resp’t Br. at 39.) As Inspector Cain noted at hearing,
however, when a mine exceeds the minimum supports outlined in its roof control
plan and the support still proves insufficient, the baseline shifts upward to
at least the level of additional support being used. (Tr. 185:19–25.) In
addition, Big Laurel’s installation of cribs and timbers throughout the main
travelway and belt entries of 4 Northeast Mains did not result from the
company’s proactive efforts to prevent roof problems. Rather, it was in reaction
to a roof fall and other signs of deterioration. Big Laurel’s decision to adopt
extra measures to protect active coal production areas does not permit the
company to neglect to adopt similar protective measures elsewhere.

[18] Big Laurel
points to Hughes’s prior inspection notes to argue that the roof conditions
cited by Cain did not exist. (Resp’t Br. at 44, 46; Resp’t Reply at 12.) However,
I do not credit them, as Hughes admittedly lacked Cain’s expertise and his
inspection notes lacked specificity in relation to those areas cited by Cain. (Ex.
R–15; Tr. 277:17–280:16; see also Ex. R–17 (notes of MSHA Inspector
Larry Stanley from April 2011).)

[19] Respondent
challenges the extent, duration, and danger of the violation on the grounds
that the violative conditions did not exist. I have already made findings to
the contrary.

[20] Superintendent
Moore’s reaction to the discovery of another roof fall further suggests Big
Laurel understood it was subject to heightened sanctions. Rather than
immediately calling in the discovered fall to MSHA, Moore attempted to dissuade
Inspector Scott from reporting the collapse. (Tr. 612:8–13.) Such a reaction
suggests that Big Laurel’s management was far more concerned with the pecuniary
impact of calling in the fall than the serious risk it posed to miners.

[21] Respondent also
insists that it had no knowledge of the “specific existence of a coal rider
seam” in 4 Northeast Mains, and thus should not have known that the bad roof
conditions existed. (Resp’t Br. at 57.) Assistant Mine Manager Richardson,
however, admitted knowing of the coal rider seam, and examiner Jesse Ring had
seen the coal rider seam depicted on a map. (Tr. 389:6–17, 351:21–352:4.) Furthermore,
Big Laurel’s engineers held proof of the coal rider seam in core samples, with
which the company was able to produce a general map of the seam. MSHA may not
previously have demanded the core hole data from Big Laurel, but MSHA’s failure
does not excuse Big Laurel’s own willful ignorance. The Mine Act places primary
responsibility for protecting miners’ safety upon the mine operator. 30 U.S.C.
§ 801(e).

[22] Pointing to
Moore’s testimony, Respondent asserts it warned miners and enlisted the help of
engineers. I do not find Moore’s testimony credible. See discussion, supra,
Part V.A.2.

[23] Big Laurel emphasizes
that the inspectors traveled the escapeway without incident during their
investigation. (Resp’t Br. at 71) Respondent again fails to address the
conditions likely present in an emergency.

[24]
Payment should be sent to: U.S. Department of Labor, MSHA, Payment
Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket
and A.C. numbers.