Secretary of Labor v. Mill Branch Coal Corporation

Plain-English summary

Mill Branch Coal contested four enforcement actions at its underground Osaka Mine involving damaged roof bolts, an inadequate preshift examination, a non-permissible electrical box in a return air course, and an inadequate electrical examination. Judge Alan G. Paez found all four violations S&S and attributable to high negligence. He removed the unwarrantable-failure designations from the roof-bolt and preshift violations because the Secretary did not adequately prove that the conditions were sufficiently obvious, extensive, or long-lasting to support that heightened finding. He affirmed the two electrical orders as unwarrantable failures, including the failure to identify the non-permissible box for more than a year in a methane-prone mine. The Judge reduced the proposed total penalties from $14,936 to $9,500.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1), 75.360(b)(3), 75.507, and 75.512
• Outcome: All four violations were affirmed as S&S and high negligence, two unwarrantable-failure designations were removed, and penalties totaling $9,500 were assessed.
• Key point: S&S and high negligence do not by themselves establish unwarrantable failure when the record does not adequately prove the condition's duration, obviousness, or extent.

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:
202-434-9950 / FAX: 202-434-9949

July 2, 2015

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

MILL
BRANCH COAL CORPORATION,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. VA 2013-366

A.C.
No. 44-07150-320574

Docket
No. VA 2014-240

A.C.
No. 44-07150-346197

Mine:
Osaka Mine

DECISION AND
ORDER

Appearances:   Thomas J. Motzny, Esq., U.S.
Department of Labor, Office of the Solicitor, Nashville, Tennessee, for
Petitioner;

K. Brad Oakley, Esq., Jackson
Kelly, PLLC, Lexington, Kentucky, for Respondent.

Before:                        Judge
Paez

This
case is before me upon the petitions for the assessment of civil penalty filed
by the Secretary of Labor (“Secretary”) pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (“Mine Act”). In
dispute are one section 104(d)(1) citation and three section 104(d)(1) orders
issued to Mill Branch Coal Corporation (“Mill Branch” or “Respondent”) at its Osaka
Mine. To prevail, the
Secretary must prove his charges “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 quotations omitted), aff’d,
272 F.3d 590 (D.C. Cir. 2001).

I.
 STATEMENT OF THE CASE

Chief
Administrative Law Judge Robert J. Lesnick assigned Docket Nos. VA 2013-366 and
VA 2014-240 to me in separate assignment orders, and pursuant to Commission
Procedural Rule 12, 29 C.F.R. § 2700.12, I consolidated them for
hearing with Docket Nos. VA 2013-252 and VA 2013-299. The parties informed me
that the latter two dockets settled prior to hearing, and I disposed of them in
separate decisions approving settlement. Thereafter, I held a hearing on January
6, 2015, in Abingdon, Virginia.[1]

Four alleged violations remain at issue,
all of which were issued under section 104(d)(1) of the Mine Act. First,
Citation No. 8180209 charges Mill Branch with violating its roof control plan under
30 C.F.R. § 75.220(a)(1) for failing to replace damaged roof bolts. In
connection with this citation, MSHA also alleges in Order No. 8180210 that Mill
Branch had not performed an adequate preshift examination of the area pursuant
to 30 C.F.R. § 75.360(b)(3). Next, Order No. 8180213 alleges
that Respondent violated 30 C.F.R. § 75.507 because a non-permissible
electrical box was located in a return air course.[2]
Finally, in Order No. 8180214 the Secretary alleges that Mill Branch violated
its duty under 30 C.F.R. § 75.512 to perform an adequate
electrical examination when it did not identify the non-permissible box for
over a year. The Secretary designated each of these alleged violations as
significant and substantial (“S&S”)[3]
and contends that each is the result of Respondent’s unwarrantable failure to
comply with a mandatory health or safety standard.[4]
The Secretary also argues that all four violations were the result of Respondent’s
high negligence and has proposed a total penalty of $14,936.00.

At the hearing, the Secretary presented
testimony solely from MSHA Inspector James Larry Bryant. Mill Branch presented
testimony from former Electrician Charles Fields, former Mine Foremen Jeffrey
Chad Lane, Section Foreman Matthew Gilliam, and Superintendent Hagy Barnett. The
parties each filed closing and reply briefs.

II.
 PARTIES’ ARGUMENTS AND ISSUES TO BE DECIDED

The
Secretary argues that allegations underlying the citation and each of the three
orders are valid and that his proposed penalties are appropriate. (Sec’y Reply
at 7.) Respondent contends that the violations were neither S&S nor unwarrantable.
(See Resp’t Br. at 11, 17–18, 21, 23–24, 27–28; Resp’t Reply at 3, 8–10.)
In disputing the Secretary’s allegations regarding the roof bolt violations,
Mill Branch claims Inspector Bryant misunderstood the type of roof bolts it
used, disputes the length of time these conditions existed, and argues that the
Secretary has not shown the cited conditions affected the structural integrity
of the mine roof. (See Resp’t Br. at 4–5, 10–11, 13; Resp’t Reply at 1–7.)
Further, Respondent argues it held a good faith belief that the cited
conditions did not violate its roof control plan. (See Resp’t Br. at 12–13;
Resp’t Reply at 8.) As to the Secretary’s allegations regarding the non-permissible
electrical equipment, Mill Branch points to the amount of methane, as well as
the high air velocity and long distance from the working section of the mine,
to claim that injuries were not reasonably likely. (Resp’t Br. at 23–24; Resp’t
Reply at 9.) Respondent also argues that the failure of both state and MSHA
inspectors to previously cite the condition mitigates its negligence. (Resp’t
Br. at 25–26; Resp’t Reply at 9–10.)

Accordingly,
the following issues are before me: (1) whether the Secretary has satisfied his
burden of demonstrating the length of time the cited roof bolt conditions
existed on Respondent’s working section; (2) whether, as to the roof bolting
violations, Respondent had an objectively reasonable and good faith belief that
its conduct complied with its roof control plan; (3) whether the Secretary has
satisfied his burden of demonstrating that the alleged violations were S&S;
(4) whether the Secretary has satisfied his burden of demonstrating that each
of the alleged violations constituted an unwarrantable failure to comply with a
mandatory health or safety standard; and (5) whether the Secretary’s proposed
penalties are appropriate.

For
the reasons set forth below, Citation No. 8180209 and Order No. 8180210 are AFFIRMED
as S&S and as the result of Respondent’s high negligence but MODIFIED
to remove the unwarrantable failure designations. In addition, Order Nos.
8180213 and 8180214 are AFFIRMED as written.

III.
 BACKGROUND AND STATEMENT OF FACTS

The Osaka Mine is an underground coal
mine located in Norton, Virginia. (Ex. S–2; Ex. S–4 at 1.) Mill Branch employs
large continuous mining machines with 800 foot long power cables to develop the
room-and-pillar mine. (Ex. S–2; Tr. 123:18–24, 157:23–25, 235:12–24; see,
e.g., Tr. 53:11–22.) This type of mine requires Respondent to cut long,
parallel pathways—known as entries—through the coal seam. (Tr. 218:25–219:7;
Ex. S–2; Ex. S–4 at 10–11.) As Mill Branch advances deeper into the mine, it
also cuts perpendicular pathways—known as crosscuts—that connect the entries. (Tr.
218:25–219:7; Ex. S–2; Ex. S–4 at 10–11.) However, Respondent does not remove
the square-shaped pillars of coal that remain between the entries and crosscuts
because these pillars are necessary to support the rock and dirt separating the
mine from the earth’s surface. (Tr. 38:6–39:6.) When viewed from above, the
Osaka Mine resembles a checkerboard with entries and crosscuts surrounding
pillars of coal. (Ex. S–2.)

Because the rock and dirt above an
underground coal mine places downward pressure on the mine roof (see, e.g.,
Tr. 49:20–50:5), the operator must secure the roof against cave-ins and roof
falls to protect the miners working below. See, e.g., 30 C.F.R. § 75.202(a)
(requiring operators to support or otherwise control the roof, face, and ribs
to protect persons from hazards related to falls of the roof). Deep cover
increases the amount of downward pressure on the roof and ribs, and the Osaka
Mine is located 1,500 to 2,200 feet beneath the surface. (Tr. 37:24–38:16, 39:19–41:2,
292:24–293:14; Ex. S–4 at 1.) In addition, the laminated sandstone roof at the
mine is not a solid formation of rock; instead, it contains individual layers. (Tr.
37:13–23, 48:14–49:6.) Finally, a mine roof that shows cracks or “cutters” may indicate
that it is beginning to sag under the pressure above. (Tr. 257:6–25.)

One method of supporting a mine roof
from collapse is to install metal bolts. (See, e.g., Ex. S–4 at 4, 6.) Mill
Branch employs large roof bolting machines to drill holes and to insert long
metal roof bolts into the mine’s roof along with a resin glue (or grout) to hold
the bolt in place. (See, e.g., Tr. 34:7–13, 35:11–18.) Some roof bolts
are fully grouted, meaning that the entire bolt is covered with resin glue. (Tr.
35:19–21, 188:19–189:3, 210:22–211:5, 255:3–17.) Fully grouted bolts create a
larger “beam” effect that transfers the downward force along the beam and to
the pillars of coal left behind. (Tr. 255:18–256:12, 290:13–291:24,
292:21–293:14.)

Other bolts—known as torque tension
bolts—include threads in addition to glue. (Tr. 35:9–18, 36:10–13,
135:14–16, 156:5–13.) Although tension bolts may be fully grouted when they are
installed, torque is also applied to the bolt’s nut and secures the bolt to the
roof above. (Tr. 35:9–21, 135:10–25, 188:19–189:3, 210:22–211:5, 255:3–17,
285:5–15.) In addition, torque tension bolts include a bolt plate between the
end of the nut and the roof itself. (Tr. 34:24–35:18, 156:5–13.) Unlike
normally glued bolts, the bolt plate on torque tension bolts is firm against
the roof and helps to secure loose rock within the first few inches of the roof,
also known as the “skin.” (Tr. 35:9–18, 35:22–36:7, 47:2–11, 48:2–9,
135:10–25, 214:5–15, 288:17–289:3, 293:15–295:2, 296:7–297:6.) If a torque
tension bolt is missing its head or plate, it must be replaced. (Tr. 224:5–13,
258:2–10, 259:6–13, 288:17–289:3.)

When installed correctly, approximately
one or two inches of the torque tension bolt extend beyond the surface of the
mine roof. (Tr. 36:8–18, 212:19–24.) Torque tension bolts are normally installed
with 165 to 225 pounds of torque, and the amount of torque on the bolt may be
tested after installation. (Tr. 115:18–21, 134:23–135:9, 136:3–13, 189:20–191:2,
212:25–213:11, 213:19–24; Ex. S–1 at 14; Ex. S–4 at 6.) These bolts are
sometimes installed on a 5 to 15 degree angle to accommodate mining conditions.
(Tr. 60:4–12, 225:5–20; Ex. S–4 at 4.) As a result, Mill Branch uses a special
washer on all of its bolts to compensate for angles and maintain bolt plates
tight to the roof. (Tr. 60:4–12, 150:5–17, 158:25–159:11, 189:14–19, 225:5–20,
256:13–257:2, 295:7–296:2, 297:19–298:3; Ex. S–4 at 4.)

In accordance with the Secretary’s
regulations at 30 C.F.R. § 75.220(a)(1), MSHA approved a roof
control plan applicable to the Osaka Mine on January 30, 2013 (“January 30
Plan”). (Ex. S–4.) However, the plan did not specifically define when a bolt
should be considered “damaged” or be replaced. (Tr. 114:21–115:9.) Moreover,
MSHA had not published any materials about what constituted a “damaged” roof
bolt. (Tr. 116:24–117:5.)

In addition to securing the roof against collapse from the weight
above, coal mine operators must also follow detailed ventilation plans to sweep
noxious gasses out of their mines. In particular, underground coal mining
releases methane into the mine atmosphere. Methane is an explosive gas and
ignites at certain concentrations.[5]
Accordingly, the Secretary’s safety regulations also require mine operators to
take precautions to prevent methane ignitions. (See Tr. 109:12–18.)
Mine operators must design ventilation systems to direct fresh air through an
“intake” entry to the active working face and then sweep dangerous gases away
through a “return” entry. (See Tr. 55:7–57:4.) Because the air
traveling in the return entry can contain methane, mine operators may only use permissible
equipment in those entries. (See Tr. 84:1–22, 100:23–101:2.) Permissible
equipment is specifically designed to prevent electrical sparks from escaping
into the mine atmosphere. (Tr. 84:1–22.)

Careful and consistent examination by
qualified mine personnel also helps to ensure safe conditions within an
underground coal mine. Preshift examiners may begin up to three hours before a
shift starts and must take air readings, inspect roof and rib conditions, and
identify areas for cleanup across the entire working section. (Tr. 68:5–69:5.) Similarly,
electrical examiners trace the power cable from the power center to the
electrical equipment, ensure that the cable has not been damaged, and ensure that
the attached equipment is permissible. (Tr. 90:14–25, 178:24–179:21, 281:12–15.)

IV.
 PRINCIPLES OF LAW

A.        Significant
and Substantial

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 an S&S violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature.” Mathies
Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (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, 103 (5th
Cir. 1988) (approving the Mathies criteria).

The
Commission has provided guidance to Administrative Law Judges in applying the Mathies
test. The Commission indicated that “an inspector’s judgment is an important
element” in an S&S determination. Mathies, 6 FMSHRC at 5 (citing Nat’l
Gypsum, 3 FMSHRC at 825–26); see also Buck Creek Coal, 52 F.3d at
135 (stating that ALJ did not abuse discretion in crediting opinion of
experienced inspector). The Commission has also 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) (emphasis added) (citing Nat’l Gypsum, 3 FMSHRC at
827). Moreover, the Commission clarified “the 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 n.13 (Aug. 2012). 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 Determinations

In
Emery Mining, the Commission determined that an unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. 9 FMSHRC 1997,
2001 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. at 2003–04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); 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 each case to see if any
aggravating factors exist, such as the length of time that the 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 is
obvious or poses a high degree of danger, and the operator’s knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340,
353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug.
1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest
Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co.,
16 FMSHRC 192, 195 (Feb. 1994); BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243–44 (Aug. 1992); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). The Commission’s
factors are “viewed in the context of the factual circumstances of each case,
and some factors may not be relevant to a particular factual scenario.” Consolidation
Coal Co., 22 FMSHRC at 353. All “relevant facts and circumstances of each
case must be examined to determine if an actor’s conduct is aggravated” or
whether mitigating circumstances exist. Id.

V.
 FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW ― DAMAGED BOLT
CITATION AND PRESHIFT EXAM ORDER ― MARCH 4, 2013

A.        Further
Findings of Fact

1.                 
Inspector
Bryant’s Inspection ― March 4, 2013

On March 4, 2013, Inspector Bryant
visited the Osaka Mine to collect rock dust samples from the 1 West Panel of
the mine. (Tr. 15:15–16:12.) As Bryant traveled with Foreman Johnny Mullins, he
noticed a portion of the mine roof near survey station number 2178 with draw
rock, a few damaged bolts, and a missing roof bolt. (Tr. 16:13–17:13, 18:1–9,
25:12–17, 118:9–119:15; Ex. S–1 at 7–8.) Although this area was not part of the
active working section, Bryant was concerned enough about the mine’s roof that
he decided to inspect the working section. (Tr. 16:24–17:13, 20:8–21, 24:8–26:17,
119:15–18; Ex. S–2; Ex. S–1 at 7–8.)

Bryant arrived in the active working
area at approximately 3:00 p.m., which was near the end of the day shift at
Osaka Mine.[6]
(Tr. 28:1–3.) Mill Branch was in the process of developing the 2 Southeast
Panel of the mine, which intersected at a right angle with the 1 West Panel. (Tr. 18:18–19:10;
Ex. S–2.) Looking toward the face, the 2 Southeast Panel consisted of six
entries that were numbered 1 through 6 from left to right. (Ex. S–2.) On that day,
Respondent had mined just one crosscut deep into the 2 Southeast Panel and was
in the process of developing a second crosscut between Entry No. 1, Entry No.
2, and Entry No. 3. (Ex. S–2.) Entry No. 5 was an intake entry that provided
fresh, ventilating air to the panel. (Tr. 30:12–18, 55:19–24.) As the intake
air approached the last open crosscut, it split into two air courses to
accommodate the 2 Southeast Panel’s two continuous miners. (Tr. 53:11–55:6,
55:19–56:12, 205:1–206:5.) Entry Nos. 1 and 6 served as return air entries, and
the coal feeder and conveyor belt transporting mined coal to the surface were
located in Entry No. 3. (Tr. 22:25–23:22, 29:23–30:11, 30:21–31:1, 55:7–12.) In
addition, Mill Branch had built a brattice line—an airtight partition—
separating the air courses in Entry Nos. 5 and 6 approximately two days prior
to Bryant’s inspection. (Tr. 21:7–16, 65:13–66:12, 74:9–12, 215:16–216:12; Ex.
S–2; see Ex. S–1 at 19.) At the time, Mill Branch typically completed
eight cuts in a given shift, and installed six-foot torque tension bolts that
were fully grouted. (Tr. 188:16–20, 219:14–20.) Respondent had already
installed approximately five thousand bolts on the 2 Southeast Panel. (Tr.
116:11–23, 264:24–265:5.)

Inspector
Bryant visited each of the six entries on the 2 Southeast Panel during his
inspection. Beginning in Entry No. 6, he identified a total of thirteen damaged
bolts, including: five near Survey Station No. 2153 in the intersection with
the second to last crosscut, three near the newly constructed brattice line
separating Entry Nos. 5 and 6, three near the intersection with the last open
crosscut, and two near the face. (Tr. 20:22–21:19, 27:15–19, 34:19–35:8,
41:3–42:5; see Ex. S–1 at 10–12; Ex. S–2.) One of the bolts near
Survey Station No. 2153 had been sheared off. (Tr. 20:22–21:19, 34:19–35:8,
120:8–20, 156:18–157:1; see Ex. S–1 at 10–12; Ex. S–2.) He
characterized the others as bent or damaged. (Tr. 34:19–35:8, 41:3–42:5,
121:10–123:10; see Ex. S–1 at 10–12; Ex. S–2.) Nearby Survey Station No.
2153, he also observed Foreman Gilliam’s dates, times, and initials indicating
he had examined the area at 11:14 a.m. and 1:50 p.m.[7]
(Tr. 19:6–20:4, 21:20–22:7; 27:20–28:12; 31:5–32:17, 67:3–7, 70:4–72:21,
239:4–22; Ex. S–1 at 10, 19; see also Ex. S–8.) The area near Survey
Station No. 2153 was well rock dusted. (Tr. 33:7–19, 66:14–19, 74:7–18; Ex. S–1
at 19.) Although Bryant saw footprints in the rock dust, he did not see any
equipment tracks. (Tr. 33:7–19, 66:14–19, 72:22–73:11, 158:1–15; Ex. S–1 at
19.) Bryant also observed cracks and loose rock in the mine roof. (Ex. S–1 at
12; Tr. 21:20–22:7, 25:12–17, 33:22–34:2.)

As
Bryant continued his inspection through the remaining entries, he identified
thirteen additional damaged bolts. First, he observed one bent bolt with a
damaged bolt plate in Entry No. 5 with a one-inch separation between the draw
rock above and the bolt itself.[8]
(Tr. 43:19–44:13; Ex. S–1 at 13; Ex. S–2.) He also identified four bent
bolts in Entry No. 4, as well as a broken bolt in Entry No. 3 surrounded by
loose draw rock.[9]
(Tr. 45:12–46:16, 129:18–130:6; Ex. S–1 at 14–15.) Further, he identified two
damaged bolts at the intersection between Entry No. 2 and the new crosscut Mill
Branch was driving to connect to Entry No. 1. (Tr. 52:10–15; Ex. S–1 at 17;
Ex. S–2.) These two bolts had dust and gob on the threads of the bolts. (Tr. 52:20–23;
Ex. S–1 at 17.) Finally, he observed five damaged bolts in Entry No. 1. (Tr. 57:9–58:6,
139:5–10; Ex. S–1 at 18; Ex. S–2.) One of the bolts in Entry No. 1 had been
broken and rusted.[10]
(Ex. S–1 at 18; see Tr. 57:19–20.) Two other bolts had been broken off
even with the nut, while another was loose. (Tr. 57:12–24; Ex. S–1 at 18.) On
cross-examination, Bryant admitted either he was unsure when the area had been
cut or that it was possible that the bolts in question had been damaged
after Gilliam completed his preshift examination. (Tr. 125:21–126:2,
128:8–129:6, 130:12–133:7, 138:16–24, 140:25–141:10.)

Bryant did not see any of these
conditions recorded in the preshift examination report for the evening shift on
March 4, 2013. (Tr. 67:3–17; Ex. S–9.) Based on his observations, Bryant cited
Mill Branch for two violations. First, Bryant issued Citation No. 8180209,
which generally matches his testimony on Respondent’s failure to comply with
the January 30 Plan. Bryant indicated:

The operator failed to follow his
approved Roof Control Plan on the active 001/002 working section. When checked,
in the #6 entry 1 break outby the last open crosscut in the middle of the
intersection 1 bolt had been broken off even with the mine roof and 3 other
bolts were damaged leaving an area 11 feet long x 7 feet wide of unsupported
roof. 3 bolts were damaged in the crosscut to the left of the intersection and
3 more in the entry going toward the last open crosscut. When checked, the #6
heading had 3 damaged roof bolts[.] [M]ining height in this area is 6 [feet.] 1
damaged bolt was in the #5 entry[,] 20 feet outby the last open crosscut with
loose draw rock with a 1 inch separation from the mine roof. 4 damaged bolts
were in the #4 entry outby the last open crosscut, [and] 1 damaged roof bolt
was in the #3 heading where the 3 left crosscut was turned with loose draw rock
above the bolt, mining height was 8 feet and the rock measured 22 inches long x
16 inches wide x 2 inches thick after being pulled[.] 4 smaller pieces were
pulled measuring 1 foot long x 6 inches wide x 2 inches thick[.] #2 heading had
2 damaged bolts where the 2 left crosscut was turned and the #1 heading had 5
damaged bolts with 1 bolt loose from the mine roof with a mining height of 8 ½
feet. In the #1 return entry at SS#2178 break from where they butted the mains
section off a roof bolt has been broken off leaving an area of roof 7 feet x 7
feet with 1/2 inch separation in the mine roof with rock dust visible above the
crack. All measurements were made with a standard rule[r]. These conditions
expose miners to hazards of crushing injures while traveling and working under
damaged and unsupported roof. This mine was put on notice on 2/20/13, Citation

8201859 to maintain compliance with this regulation and future non-compliance

with this standard would result in evaluations for increased enforcement. This
violation is an unwarrantable failure to comply with a mandatory standard. The
operator of this mine engaged in aggravated conduct constituting more than
ordinary negligence in that[:] #1.The condition has existed for a period of
time. #2.The condition was obvious and extensive.#3.The operator was making
exams of these areas 3 times per day.

Standard 75.220(a)(1) was cited 8 times
in two years at mine 4407150 (8 to the operator, 0 to a contractor).

(Ex.
S–3.) Bryant designated the citation as an S&S violation that was
reasonably likely to result in fatal injuries affecting one person. (Ex. S–3;
Tr. 63:9–65:1.) He also characterized Mill Branch’s level of negligence as
high. (Ex. S–3; Tr. 65:2–12, 78:11–18.)

Inspector
Bryant also issued Order No. 8180210 for failing to perform an adequate
preshift exam for the evening shift. (Tr. 69:13–18.). He noted:

The preshift examiners conducting the
examinations of the 001/002 active section did not recognize the obvious and
extensive hazards that were visible to the most casual observer. A prudent mine
examiner would have observed the hazardous conditions and taken action to
correct them. The hazard exists of miners traveling through the area without
any knowledge of a hazardous condition and being seriously injured. The mine
operator engaged in aggravated conduct constituting more than ordinary
negligence in that an adequate preshift exam was not done of the 001/002 active
section and the obvious and extensive conditions were not reported and
corrected. This violation is an unwarrantable failure to comply with a
mandatory standard.

(Ex.
S–5.) Again, Bryant marked the order as an S&S violation that was
reasonably likely to result in fatal injuries to one miner. (Ex. S–5; Tr.
76:10–77:19.) Likewise, Bryant characterized Respondent’s negligence as high. (Ex.
S–5; Tr. 77:20–78:18.) He terminated both the citation and order after his
safety talk with the miners, and Respondent replaced bolts, installed timbers as
necessary, and completed an adequate examination. (Tr. 58:8–11; Ex. S–1 at
22–23; Ex. S–3; Ex. S–5.)

At
6:30 a.m. the following day, Osaka Mine Superintendent Barnett visited the 2 Southeast
Panel to examine the bolts Inspector Bryant cited and the condition of the
roof. (Tr. 254:7–15.) In Entry No. 6, Barnett testified that he did not
see any problems with the roof conditions, but he admitted that one of those
bolts might have required replacement. (Tr. 260:19–261:9; see Tr.
267:5–15.) He also testified that he did not see any other bolts in the other
entries that needed to be replaced nor did he observe any adverse roof
conditions. (Tr. 261:21–262:11, 263:3–264:8.)

2.                 
Number
and Duration of Damaged Bolts

a.                  
Number
of Damaged Bolts

Mill Branch repeatedly disputes
Inspector Bryant’s “theory of a ‘damaged’ bolt.” (Resp’t Br. at 4; see
Resp’t Br. at 12, 16–21, Resp’t Reply at 1, 3–4, 7.) The crux of Respondent’s
argument is that Inspector Barnett misunderstood the type of bolts Mill Branch
employed on the 2 Southeast Panel. (See, e.g., Resp’t Reply at 1 (“[T]he
Secretary and his only witness rely on their mistaken belief that the Mine used
‘torque tension bolts[,]’ . . . . [t]hus, the Secretary’s analysis of what
constitutes a ‘damaged’ roof bolt is flawed and there is no evidence of damage
to the type of bolts actually used in the [m]ine.”).) Mill Branch suggests that
it did not employ “pure” torque tension bolts, but rather “bolts [that]
function as fully grouted glue bolts.” (Id.) In fact, Mill Branch claims
“the entire purpose of using fully grouted glue bolts is that the bolt head can
be hit without affecting the integrity of the roof or roof support.” (Id.
at 2.) Respondent also avers that its bolts “are first torqued to ensure they
are tight until the glue seals . . . and then the bolts function as glue
bolts.” (Id. (emphasis removed).) Mill Branch describes the fully-grouted
torque tension bolt as a belt and suspenders approach, meaning it is an added
level of safety.[11]
(Id.)

Yet Respondent’s premise—that Bryant
misunderstood the type of bolts in use in the area—is flawed. At the hearing
Bryant specifically testified that Respondent fully grouted its torque tension
bolts. (Tr. 35:9–18.) Bryant also differentiated fully grouted torque tension
bolts from normal fully grouted resin bolts, which do not have a nut on
the end. (Tr. 136:15–18.) Although Bryant acknowledged that a bolt could
be struck without losing tension on the bolt plate in a fully grouted torque
tension bolt (Tr. 115:10–17), he explained that the threads on the torque
tension bolts make them easy to bend and crack. (Tr. 136:19–25.) Because these
bolts have threads, the bolt head breaks off easily, particularly when five or
six inches of draw rock weigh on the head. (Tr. 37:9–12, 136:19–137:18.) More
importantly, he explained that when he referred to “damaged” bolts, he meant
they had either been bent over or broken. (Tr. 36:22–37:7.)

In view of the above evidence, I reject
Respondent’s argument that Inspector Bryant misunderstood the types of bolts
used on the 2 Southeast Panel or how to determine whether those bolts were
damaged. Bryant is an experienced inspector and accurately described the bolts
Mill Branch employed. Because Bryant characterized each of these bolts as bent,
broken or sheared off, missing a bolt plate, or otherwise damaged, I find that
each of the twenty-six bolts on the 2 Southeast Panel did not comply with the
January 30 Plan and required replacement.

b.                 
Duration
of Damaged Bolts

Mill Branch also disputes Inspector
Bryant’s claim that these conditions existed for a significant period of time. (Resp’t
Br. at 13–15; Resp’t Reply Br. at 6–7.) Respondent emphasizes the possibility
that each of the twenty-six bolts in question was struck after Foreman
Gilliam completed his preshift examination, and I recognize Bryant’s admission
that any of these bolts could have been damaged after Gilliam passed through
the area. But acknowledging that any individual condition may have
developed after Gilliam passed through an area does not necessarily imply that every
condition developed in that timeframe. For Respondent’s theory to be viable,
Mill Branch would have mined from 6:00 a.m. until 12:00 p.m. without damaging a
bolt, but then damaged twenty-six bolts in a pattern precisely tracing Gilliam’s
path. (See Sec’y Br. at 14.)

Given the volume of damaged bolts,
Respondent’s theory is implausible. Further, Respondent provided no unifying
theory as to how this damage, as widespread as it was, could have occurred within
the time period. As Gilliam acknowledged: “It’s not likely that, what is it,
20-some bolts are going to get damaged after I [completed my preshift
examination] . . . .” (Tr. 242:7–10.) Considering Inspector Bryant’s admission
that each condition may have arisen after Gilliam completed his examination,
I cannot determine that each condition existed before Gilliam examined
the area. Nevertheless, the number of damaged bolts and compressed timeframe
allow me to infer that these conditions did not all develop in the three hours
after Gilliam started his preshift examination.

Specifically,
the evidence also demonstrates that the five bolts located near Survey Station
No. 2153 in Entry No. 6 and the three bolts near the recently constructed
brattice line had existed for at least one shift. Although Mill Branch had
mined the face of Entry No. 6 on March 4, 2013, the face was located on the far
side of the last open crosscut from the intersection in question. (Tr.
124:15–125:13; Ex. S–2.) I recognize Bryant did not know what time the face had
been cut (Tr. 127:2–4), and I have considered Respondent’s contention that a
continuous miner may have been backed down Entry No. 6 to straighten its power
cord. (Resp’t Br. at 12; Resp’t Reply at 7.) However, it is uncontroverted that
Mill Branch completed its machine dusting during the overnight shift. (Tr.
74:12–18.) Bryant also repeatedly testified that the area near the intersection
with the second to last crosscut had been well rock dusted and that he did not
see any equipment tracks in the dust. Notwithstanding the normal mining cycle
of “cut, bolt, clean, dust,” it is unclear how or why additional dusting would
have taken place in the intersection area of Entry No. 6, meaning that the dust
in question had existed since at least the previous overnight shift. Thus, I infer
that no equipment had moved in that portion of Entry No. 6, and these
eight damaged roof bolts had existed since at least the previous shift.[12]

The
evidence also demonstrates that the rusted bolt in Entry No. 1 existed prior to
Foreman Gilliam’s preshift examination. I understand that Bryant admitted it
was possible that bolts in Entry No. 1 had been damaged after Gilliam examined
the area. (Tr. 139:1–141:10.) Yet Bryant also credibly testified—and
Respondent’s witnesses did not dispute—that bolts do not rust quickly enough
for this bolt to have been damaged on the day shift. Accordingly, I find that
this bolt had existed since at least the previous shift.

B.        Analysis
and Conclusions of Law ― Citation No. 8180209 – Roof Control Plan

1.                 
Fact
of Violation

Section
75.220(a)(1) requires operators to develop and follow an approved roof control
plan that is suitable to the prevailing geological conditions and the mining
system in place at the mine and to take additional measures to protect persons
if unusual hazards are encountered. 30 C.F.R. § 75.220(a)(1). An operator
violates section 75.220(a)(1) when it does not comply with the terms of its
roof control plan. See Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1280–82 (Dec. 1998) (explaining how the Secretary must prove violations of roof
control plans).

The January 30 Plan requires that bolt
plates be secured firmly to the roof. (Ex. S–4 at 4.) It also requires Mill
Branch to address adverse roof and rib conditions. (Id. at 2.) Finally,
it requires Mill Branch to install its roof bolts in specific patterns. (See,
e.g., id. at 25.) It is uncontroverted that the roof bolt in Entry
No. 6 that had been sheared off needed to be replaced. Moreover, I have found
as a matter of fact that the roof bolts Inspector Bryant identified in Citation
No. 8180209 constituted roof bolts that needed to be replaced. See
discussion supra Part V.A.2.a. Given my factual findings, I conclude
that the Secretary has met his burden of proving that Mill Branch violated 30
C.F.R. § 75.220(a)(1).

2.                 
S&S

Respondent’s violation of section
75.220(a)(1) establishes the first element of an S&S violation. However,
Mill Branch claims the Secretary has neither demonstrated a discrete safety
hazard nor shown that any alleged hazard was reasonably likely to result in
reasonably serious injuries. (Resp’t Br. at 10–11.) Specifically, Mill Branch
claims the Secretary has not proven that the cited conditions affected the structural
integrity of the mine.[13]
(Id. at 11.) However, the operator provides no case law supporting the
proposition that the Secretary must meet such an elevated burden. The Secretary
might not be able to demonstrate that the missing bolts affected the
“structural integrity” of the mine even with a battery of expert testimony and
geological study. But that is not the standard that Mathies requires. Instead,
it requires the Secretary to demonstrate that the damaged roof bolts in
question more likely than not contributed to a discrete safety hazard that is
reasonably likely to result in reasonably serious injury.

Respondent’s curious arguments
notwithstanding, the facts demonstrate that the conditions at issue contributed
to a discrete safety hazard. Inspector Bryant described the damaged roof bolts
as contributing to the hazard of rocks falling and striking miners working on
the section. (Tr. 63:14–23.) Bryant also explained that damaged bolts do not
provide the support that is intended under the approved plan. (Tr. 63:4–8.) In
addition, he explained that striking and loosening these torque tension bolts
would make it more likely that a roof fall would occur. (Tr. 49:6–19.) He also identified
draw rock and cracks in the roof on the 2 Southeast Panel.[14]
Finally, during Bryant’s previous inspections that quarter he identified two
roof falls in other parts of the mine, as well as many areas where bolts had
broken off under the weight of the mine roof. (Tr. 50:19–51:23.) Considering
Bryant’s credible testimony, I determine that Mathies’ second element
has been satisfied.

Likewise, this falling rock hazard was
reasonably likely to result in reasonably serious injuries. It is
uncontroverted that Respondent’s miners worked in every one of the entries in
which Bryant identified damaged roof bolts. In the course of normal mining
operations, miners would have continued to work beneath the damaged bolts on
the section. Considering Barnett’s assertion that Mill Branch selected these
type of bolts because they could be struck without requiring replacement,
additional bolts would be damaged and never addressed. Draw rock—including
large chunks like the piece pulled down from Entry No. 3—would have continued
to develop. In this context, it is reasonably likely that falling rock would
cause serious or fatal injuries. Indeed, a roof fall caused a fatality at the
Osaka Mine just a few years earlier. (Tr. 64:3–10, 149:2–150:4.) Thus, I determine
that elements three and four of the Mathies test have been satisfied.

Based on the above, the Secretary has demonstrated
each of the four elements of Mathies. I conclude that Citation No.
8180209 was appropriately designated as S&S.           

3.                 
Unwarrantable
Failure and Negligence

The Secretary charges Mill Branch with
an unwarrantable failure to comply with a mandatory health or safety standard
and contends that the operator acted with a high degree of negligence. As I
noted, the unwarrantable failure analysis is a totality of the circumstances
analysis focusing on seven different factors. See discussion supra
Part IV.B. Yet given the number of bolts Inspector Bryant cited and the
differing factual determinations I have reached, weighing Respondent’s conduct
with regard to several of these factors is akin to finding the center of a Venn
Diagram: identifying how many bolts were both damaged enough to be readily
apparent and existed long enough that Respondent’s examiner would have
had an opportunity to observe the obvious condition.

At the hearing, Bryant ably demonstrated
that he understood the types of bolts in use and the damage they might sustain,
and I have determined that all twenty-six of the cited bolts were damaged for
the purpose of finding a violation. See discussion supra Part
V.A.2.b. and Part V.B.1. In addition, I have determined that nine of the
twenty-six damaged bolts existed since at least the previous shift. See
discussion supra Part V.A.2.a–b. Nevertheless, a careful consideration
of the record reveals the varying level of detail Bryant presented about each
bolt—details that are critical to determining the obviousness of the cited
bolts, as well as their extent and Respondent’s knowledge of conditions at
issue.

For example, Bryant indicated that one
of the bolts he found near Survey Station No. 2153 in Entry No. 6 had been
“sheared off.” Similarly, the bolt in Entry No. 5 had a damaged plate, while
the shank had been broken off of the bolt in Entry No. 3. Three of the bolts in
Entry No. 1 had been broken off. These six conditions were missing parts of the
bolt itself, and they should have been apparent to a foreman carefully
examining the area.

In contrast, Inspector Bryant described
the other four bolts in the intersection of Entry No. 6 as merely “damaged” and
“bent.” When questioned about these bolts specifically, Bryant admitted he was
unsure whether they were cracked. He presented neither an indication about how
badly they had been bent, nor explained in what direction they were bent. Bryant’s
description of the three bolts he identified near the brattice line were also
brief, as were his characterizations of the three bolts near the last open
crosscut and the two bolts near the face, the four bolts he identified in Entry
No. 4, the two bolts he noted in Entry No. 2, and two of the bolts in Entry No.

1. Without at least some description beyond the conclusory terms “damaged” or
   “bent,” I cannot infer that this second group of damaged bolts would have been
   readily apparent to a foreman passing through the area.[15]

Considering Barnett’s testimony that
missing bolt heads require replacement, Mill Branch could not have held an
objectively reasonable belief that any of the six bolts with readily apparent
damage complied with its roof control plan. But given the many thousands of
bolts installed on the 2 Southeast Panel, six demonstrably damaged bolts spread
across four different entries separated by hundreds of feet is not an extensive
condition. (See Ex. S–2 (providing map scale).) Moreover, I also note
that five of these six bolts may not have been obvious. In light of the
six-foot mining height in Entry Nos. 5 and 6, I understand how a stooped-over
miner might miss an isolated bolt when he passed through the area. Moreover, it
is unclear when the conditions in Entry No. 5 and Entry No. 3 arose. See
discussion supra Part V.A.2.b. Thus, it appears only one bolt
that existed for longer than a shift—the rusted bolt in Entry No. 1—should have
also been obvious to Foreman Gilliam when he completed his preshift exam. Although
Mill Branch reasonably should have known about this bolt, overlooking one
obvious bolt for the period of one shift does not imply aggravated conduct. Instead,
duration, extent, obviousness, and knowledge all suggest that Mill Branch’s
negligence in this case was ordinary.

The three remaining unwarrantable
failure factors likewise point to ordinary negligence. As the Secretary admits,
“there was not much testimony” regarding notice to Mill Branch that greater
efforts were necessary to comply with the January 30 Plan.[16]
(Sec’y Br. at 17.) It also seems Mill Branch made no previous efforts to abate
the conditions specifically at issue, but I note that Mill Branch regularly
examined the area in previous shifts and had installed supplementary roof bolts
on the section. (Ex. R–8.) Respondent’s past examinations and supplementary
bolts are inapposite to my S&S analysis, see discussion supra
Part V.B.2, and I recognize that these conditions exposed Respondent’s miners
to serious dangers from a collapsing roof. However, these past examinations and
supplementary bolts are pertinent to my negligence analysis because it
appears Mill Branch took at least some care to protect miner safety. Those
steps proved inadequate, but Respondent’s past efforts suggest an ordinary
level of negligence rather than the purposeful misconduct, indifference,
recklessness, or serious lack of reasonable care that are the hallmarks of
unwarrantable failure.

Based on the above, I understand the
Secretary’s concerns in this case. Twenty-six roof bolts required
replacement, and nine of them required replacement since at least the previous
shift. Six bolts had sustained damage that was readily apparent. Moreover, the
damaged bolts exposed miners to serious dangers, and Mill Branch reasonably
should have known about at least one of the cited bolts. In addition, abatement
was relatively simple. From this perspective, I conclude that Respondent’s
level of negligence was high. However, I recognize that only one of the cited
bolts was both obvious and existed for more than a shift. Respondent made some
previous efforts to protect its miners. Accordingly, I conclude that the
Secretary has not met his burden of proving this violation to be the result of aggravated
conduct, and the unwarrantable failure designation is removed.

C.        Analysis
and Conclusions of Law ― Order No. 8180210 – Inadequate Preshift

1.                 
Fact
of Violation

Section 75.360(b)(3) requires that mine
operators conduct “an examination for hazardous conditions at the mine . . . .”
McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 2000 (Aug. 2014). The adequacy
of a preshift examination is based on whether a reasonably prudent person,
familiar with the mining industry and the protective purpose of the safety
standard, would have recognized that the hazard needed to be recorded in the
preshift examination book. Emerald Coal Res. LP, 34 FMSHRC 482, 495
(Feb. 2012) (ALJ) (citing Utah Power & Light Co., 12 FMSHRC 965, 968
(May 1990), aff’d 951 F.2d 292 (10th Cir. 1991).

In this case, the Secretary contends
that Foreman Gilliam performed an inadequate preshift examination when he
failed to identify twenty-six damaged roof bolts across the 2 Southeast Panel. Based
on my factual determinations above, see discussion supra Part
V.A.2.b, nine of these bolts existed for at least a shift. In addition, one of
those bolts—the rusted bolt in Entry No. 1—should have been readily apparent to
a careful examiner. Given Superintendent Barnett’s admission that bolts missing
their bolt nuts or plates need to be replaced, I determine that a reasonably
prudent miner would have recorded this bolt in his preshift examination records
so that appropriate steps would be taken to replace the bolt and protect
Respondent’s miners. I therefore conclude that the Secretary has proven a
violation of 30 C.F.R. § 75.360(b)(3).

2.                 
S&S

The Secretary claims that Order No.
8180120 was properly designated as S&S for the same reasons as Citation No.
8180209. (Sec’y Br. at 14.) Mill Branch again disputes Bryant’s
characterization of damaged bolts and notes that preshift examinations are not per
se S&S. (Resp’t Br. at 17–18; Resp’t Reply at 1–3.) Rather than
reiterate my analysis for Citation No. 8180209 in detail, I will succinctly
address each of the Mathies elements. First, Respondent’s failure to
note the damaged bolts satisfies the first element. Second, Inspector Bryant’s
testimony and the roof conditions on the 2 Southeast Panel demonstrate that
this violation contributed to a discrete safety hazard of falling rock striking
miners beneath. Thus, Mathies’ second element has been satisfied. Finally,
in continued normal mining operations Respondent’s miners would have continued
to travel in the active working section as draw rock developed and roof
conditions deteriorated. Thus, the hazard was reasonably likely to cause
injuries. When large pieces of falling rock—like the draw rock pulled down in
Entry No. 3—struck Respondent’s miners, it is reasonably likely that those
injuries would be serious. Accordingly, the Secretary has satisfied the third
and fourth elements of the Mathies test. I therefore conclude that Order
No. 8180210 was appropriately designated as S&S.

3.                 
Unwarrantable
Failure and Negligence

Neither party meaningfully
differentiates their arguments regarding unwarrantable failure and negligence,
as they apply to Order No. 8180210, from similar arguments they made regarding
Citation No. 8180209. (See Sec’y Br. at 14–19; Sec’y Reply at 1–5;
Resp’t Br. at 18–21; Resp’t Reply at 4–7.) Here, nine of the twenty-six damaged
bolts existed for at least one shift prior to Gilliam’s preshift examination, but
only one of those bolts was obvious. In light of the thousands of bolts on the
section and the relatively simple fix of installing a relatively small number
of additional bolts, the conditions underlying the preshift examination
violation were not extensive. The Secretary also introduced no evidence that
Respondent was on notice that greater efforts were necessary to comply with the
standard. I also recognize that Superintendent Barnett’s opinion regarding what
constitutes a damaged bolt is based on his conversations with the roof bolt
manufacturer. An objectively reasonable miner might therefore conclude that many
of these bolts were not damaged. Each of these factors suggests that Gilliam’s
failure to note the underlying condition in his preshift examination did not
constitute intentional misconduct, indifference, or a reckless disregard for
the safety of miners. Again, it appears Mill Branch made no previous efforts to
abate the specific conditions at issue, but I note that Respondent had
made some previous efforts examine the area and install supplemental roof
bolts.

On the other hand, the remaining
unwarrantable failure factors highlight Inspector Bryant’s serious concerns
with Respondent’s conduct. The conditions underlying this violation presented a
serious danger to miners. Although the Secretary has only proven that one bolt
was both present at the time of the preshift examination and obvious,
Gilliam should have identified the bolt. Mill Branch reasonably should have
known about the violative condition.

In
view of the above, I again conclude that Respondent’s negligence in this case
was high. However, the Secretary has not proven that Gilliam’s failure to
record these conditions constituted aggravated conduct. Accordingly, I conclude
that Order No. 8180210 was not an unwarrantable failure to comply with a
mandatory standard, and the designation is removed.

VI.
 FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW ― NON-PERMISSIBLE
EQUIPMENT ORDERS ― MARCH 15 & 19, 2013

A.        Further
Findings of Fact ― Inspector Bryant’s Inspection ― March
15, 2013

On March 15, 2013, Inspector Bryant
returned to the Osaka Mine to perform an electrical inspection of pumps, belt
lines, and carbon monoxide monitors as part of his quarterly inspection. (Tr.
79:5–80:16, 99:20–22; Ex. S–12 at 1–10.) Quarterly inspections require MSHA
inspectors to examine every piece of equipment at the mine. (Tr. 99:23–100:1.)

That day, Inspector Bryant traveled
along with Electrician Fields and Foreman Mullins. (Tr. 79:5–80:16, 170:3–7,
268:25–269:1; Ex. S–12 at 1, 10.) During the inspection, Bryant examined two
water pumps in a sump hole outside of one of the seals Mill Branch had
installed to seal off an old working area that was located approximately two
miles from the active mining area. (Tr. 80:17–23, 81:16–25, 92:3–9,
94:18–95:1, 97:7–15, 177:1–8, 180:2–10, 306:16–307:11.) Seals are built to help
maintain stable methane and oxygen levels in the mine. (Tr. 97:7–15.) Nevertheless,
seals will sometimes either outgas—pushing air from the sealed area back into
the active mine—or ingas—sucking air out of the active mine and behind the
seal. (Tr. 97:16–25.) Without proper ventilation, outgassing seals will
allow methane to accumulate into the explosive range. (Tr. 98:2–99:4.) Bryant
did not find any problems with the seals leaking at the time. (Tr. 110:20–111:4.)

One of the water pumps was a primary
pump, and the other was a backup.[17]
(Tr. 270:9–271:4.) The backup pump only operated when the water level in
the sump hole rose too high. (Tr. 270:9–18.) When Bryant inspected the
backup pump, he followed the power connection from the pump toward the power
center that provided the pumps’ electricity. (Tr. 81:16–19, 270:11–271:4.)
A power cord ran from the 13-horsepower water pump to a line starter box
attached to the left rib approximately 150 feet away and four feet off the
ground, which then connected to the power center through another power cord. (Tr.
80:19–81:8, 81:19–25, 82:6–10, 95:24–96:4, 96:10–21, 109:19–22, 177:9–178:23,
270:9–18, 281:9–11.) The line starter was gray in color and measured
approximately 1 foot by 1 foot. (Tr. 170:14–171:4, 269:17–25; Ex. R–15-A;
Ex. R–15–B.) The box enabled Mill Branch to run the connected pump
intermittently. (Tr. 82:2–5, 170:8–13, 270:9–18.) When water in the sump
hole rose too high, the pump sent a signal back to the line starter box. (Tr. 82:2–5,
94:10–17, 95:8–23, 170:8–13, 177:22–178:3.) The line starter box could then
send the power it received from the power center back to the pump. (Tr. 82:2–5,
170:8–13, 177:22–178:3.)

When Mill Branch initially installed the
line starter box, it was an acceptable piece of equipment because it was
located in a neutral air entry separated from other air courses using a
brattice line constructed of gray concrete blocks. (Tr. 82:12–23, 91:13–25,
171:5–25, 275:13–22.) However, on March 6, 2012, Mill Branch removed the
brattice line and changed the ventilation of the area to ventilate seals
approximately four crosscuts away that were outgassing methane. (Tr. 98:2–14,
101:3–9, 103:21–104:6, 272:6–274:5, 284:9–11; Ex. R–12 at 8 (March 19
Inspection Notes); Ex. R–14–A; Ex. R–14–B.) After the ventilation change, the
line starter box was now located in a return air entry. (Tr. 82:17–23, 173:4–6,
272:6–274:5; Ex. R–12 at 8 (March 19 Inspection Notes); Ex. R–14–A; Ex. R–14–B;
see Tr. 172:5–11.) The box at issue was non-permissible and thus provided
an ignition source.

Although Mill Branch replaced its other
non-permissible equipment in the area, it never replaced the line starter box
at issue for a permissible piece of equipment. (Tr. 82:17–23, 174:3–16,
278:15–279:11.) Mill Branch also did not remove roughly 100 old brattice
blocks—which were the same color as the line starter box—from the crosscut. (Tr.
82:6–14, 171:18–25, 274:23–275:9.) Several old water lines and cables were also
in the area. (See, e.g., Tr. 92:3–9.)

During his inspection, Bryant found just
0.05 percent methane at the non-permissible box, but he did not test for
methane near the seals that day. (Tr. 92:13–15, 108:9–109:9.) At the time,
approximately 50,000 to 55,000 cubic feet per minute (“C.F.M.”) of air traveled
out of the mine through the return entry. (Tr. 276:24–277:5.) Based on his
observations, Bryant issued Order No. 8180213, alleging:

The 13 HP. Flyght Pump SN#MO7-0711 being
used in the Return air course at the #17 Prescott Seal in the sump hole is not
being maintained. When checked a non[-]permissible box measuring 1[]foot x 1
foot containing a #2 line starter, overloads and fuses is being used through a
float switch to provide 440 volts of power to the pump. This condition exposes
miners to the hazards of a methane ignition by the arcing of the contactor tips
when they are energized. This mine is on a 15 day I spot inspection for
liberation of methane.

(Ex.
S–13 at 1.) Although Inspector Bryant designated the violation as S&S and
reasonably likely to result in injuries of lost workdays or restricted duty to
one miner, he initially characterized Mill Branch’s negligence as moderate and
issued Citation No. 8180213 pursuant to section 104(a) of the Mine Act. (Id.)
However, after discussing the conditions with his supervisor, on March 19,
2013, Bryant modified the citation to a section 104(d)(1) order charging
Mill Branch with an unwarrantable failure to comply with a mandatory safety
standard and increased the level of negligence to high. (Ex. S–13 at 2; Tr.
86:7–87:4, 93:7–21, 104:25–107:16, 155:5–6.) He claimed he would cite the
violation as an unwarrantable failure if he saw it today. (Tr. 154:15–155:4.) To
abate the violation, Mill Branch removed the box. (Tr. 154:1–5.)

On
March 19, Bryant also issued Order No. 8180214, alleging:

The operator failed to do an adequate
exam of the #2, 13 Horsepower Flyght pump SN#MO-0711 located in the left return
air course across from the #17 Prescott Seal. When checked[,] a
non[-]permissible line starter box was being used to control the float switch
for the pump. All electric equipment shall be frequently examined, tested, and
properly maintained by a qualified person to assure safe operating conditions. This
condition has existed since 3/6/12, a prudent examiner would have recognized
the hazardous condition and taken action to correct the condition. The mine
operator engaged in aggravated conduct constituting more than ordinary
negligence by not doing an adequate exam of the pump and allowing this obvious
and extensive condition to exist for an extended period of time. This mine is
on a 15 day I spot inspection for excessive liberations of methane. Standard
75.512 was cited 5 times in two years at mine 4407150 (5 to the operator, 0 to
a contractor). This violation is an unwarrantable failure to comply with a
mandatory standard.

(Ex.
S–14 at 1–2.) Bryant designated the order as an S&S violation that was
reasonably likely to result in injuries of lost workdays or restricted duty to
one person. (Id. at 1.) In addition, he characterized Respondent’s level
of negligence as high. (Id.)

No MSHA inspector identified the non-permissible
box in any of their quarterly or spot inspections of the Osaka Mine between
March 6, 2012, and Inspector Bryant’s quarterly inspection on March 15, 2013. (Tr.
104:7–14.) Similarly, no state inspectors identified the non-permissible box during
their roughly three or four inspections during that time period. (Tr. 276:3–13.)

B.        Conclusions
of Law ― Citation No. 8180213 – Non-Permissible Equipment

1.                 
Fact
of Violation

To prove a violation of section 75.507,
the Secretary must show that (1) non-permissible power connection points (2)
that were further away from the working face than the last open crosscut were also
located (3) in a non-intake air course. See 30 C.F.R. §
75.507; Zeigler Coal Co., 15 FMSHRC 949, 950–51 (June 1993). The Commission
has noted that “‘[t]he purpose of [section 75.507] is to prevent methane gas
explosions. In the presence of methane gas, a source of ignition, such as
arcing from power connections, can cause an explosion.” Zeigler Coal Co.,
15 FMSHRC at 951 (quoting Eastover Mining Co., 4 FMSHRC 123, 123
(Feb. 1982).)

The facts of this case are not in
dispute. Respondent’s line starter box was located in a return entry. Despite
weekly examinations of the area for approximately one year, Mill Branch did not
identify or remove the non-permissible box. (See Ex. S–15.) In fact, Electrician
Fields agreed that Order 8180213 was a violation (Tr. 172:1–4), but explained
that the concrete blocks in the area obscured the line starter box from view. (Tr.
173:2–10, 179:2–5, 181:15–22.) Given Respondent’s failure to remove and replace
the non-permissible line starter box, I conclude that the Secretary has proven
a violation of 30 C.F.R. § 75.507.

2.                 
S&S

Respondent’s
violation of 30 C.F.R. § 75.507 satisfies the first element of Mathies.
Inspector Bryant also credibly testified that the non-permissible line starter
box provided an ignition source for a methane explosion. (See Tr.
84:18–85:5.) Although the line starter box connected to the secondary pump,
this non-permissible piece of equipment provided an ignition source that would not
have otherwise been present. Regardless of its actual use, it provided a
measure of danger to safety because it made a methane ignition more likely. Thus,
Respondent’s violation contributed to a methane explosion hazard. Indeed, Mill
Branch essentially concedes this point as it made no counterargument in its
post-hearing briefs. I therefore determine that Mathies’ second element
has been satisfied.

The Secretary also argues that this
hazard is reasonably likely to result in reasonably serious injuries[18]
because sparks from the non-permissible box could ignite methane in the area. (Sec’y
Br. at 22–23.) In contrast, Mill Branch claims that the Secretary has not
proven that an injury was reasonably likely to result in reasonably serious
injuries. (Resp’t Br. at 23–24; Resp’t Reply at 9.) In particular, Respondent
notes the low level of methane Bryant found at the line starter box, his
failure to test for methane near the seals in question, the volume of air
movement at the time of the inspection, and the absence of defects on the pumps
themselves. (Resp’t Br. at 23–24; Resp’t Reply at 9.) Mill Branch also argues
that Bryant did not testify that he had any reason to expect methane levels to
rise in the future. (Resp’t Br. at 24.) Moreover, Mill Branch contends that an
injury producing event was unlikely because the non-permissible box was
approximately two miles away from the active working area of the Osaka Mine. (Resp’t
Br. at 23–24; Resp’t Reply at 9.)

Yet Respondent’s arguments
fundamentally misunderstand the pertinent timeframe for an S&S analysis
under Mathies. The Commission has long made clear that S&S
determinations are made considering the length of time the condition existed
and in the context of continued mining operations. U.S. Steel Mining Co.,
7 FMSHRC at 1130. Rather than examining a mere snapshot of conditions that
existed at the time of the inspection, the Commission instead asks whether a
reasonably serious injury is reasonably likely to occur if normal mining were
to continue. See, e.g., Knox Creek Coal Corp., 36 FMSHRC 1128,
1132 (May 2014) (indicating that a Judge erred when he took a “‘snapshot’
approach” to the S&S analysis), appeal pending, 4th Cir. 14-2313. Notwithstanding
the relatively low-level of methane Bryant measured at the line starter box and
high volume of ventilating air at the time of his inspection, it is
uncontroverted that Respondent’s examiner did not identify this non-permissible
box for over a year­—or more than fifty-two examinations. Despite
Fields’ claim that Mill Branch was “working” on cleaning up the concrete blocks
that obscured the non-permissible box (Tr. 179:7–9; see Tr. 173:4–10, 175:4–5,
179:17–19, 181:15–22), Mill Branch had not moved those blocks for more than a
year. Thus, I infer that the non-permissible box would have simply remained in
place in the return entry if Bryant had not identified it during his
inspection. In view of this extraordinary duration, the Respondent’s myopic
focus on the level of methane and airflow at the precise moment of Bryant’s
inspection is misplaced. Considering Commission precedent, the relevant time
period includes both the year the condition had already existed as well as
continued mining operations.

It is also uncontroverted that Osaka
Mine is a “gassy” mine that releases a significant volume of methane every day.
Further, Inspector Bryant credibly testified that eight to ten percent of
methane would outgas from the seals. (Tr. 98:2–14.) The seals were located just
four crosscuts away from the non-permissible box. (Tr. 98:13–14; Ex. R–14–A; Ex
R–14–B.) Over the course of a year, a disruption of ventilation would allow
methane from this significant source to accumulate in proximity to the
non-permissible line starter box. Moreover, this non-permissible box was
located in a return entry. By design, return entries carry
contaminants—including methane—out of the mine. Thus, the non-permissible box
would come into contact with any methane accumulations being swept out of the
mine. Indeed, the Commission concluded in Ziegler Coal Co. that these
are the types of exposures section 75.507 is designed to avoid. 15 FMSHRC at

951. Although the likelihood of any one of these events might vary in a short
     timeframe, it bears repeating that this violation existed for more than
     a year and would have continued in normal operations if Inspector Bryant
     had not identified the non-permissible box. In that context, it is reasonably
     likely that a methane accumulation would have been present with an active
     ignition source. Given this confluence of factors, I determine that a methane
     ignition and explosion was reasonably likely to occur.

Respondent’s reliance on the distance
from the working face to the non-permissible box is similarly misplaced. I
recognize that relatively few miners might travel in this return at any given
time; in fact, it might only be the weekly examiner. However, Mill Branch again
overlooks extreme duration of this hazardous condition. A weekly examiner
traveled the area more than fifty-two times. Although no
injury-producing event occurred, I have determined a methane ignition was
reasonably likely to occur. Considering the length of time this methane
explosion hazard existed and the continued normal operations of the mine, I
give no weight to Respondent’s past good fortune in avoiding injuries. U.S.
Steel Mining Co., 18 FMSHRC 862, 867 (June 1996) (“The fact that injury has
been avoided in the past or in connection with a particular violation may be
‘fortunate but not determinative.’” ) (quoting Ozark-Mahoning Co., 8
FMSHRC 190, 192 (Feb. 1986)). Thus, I determine that the Secretary has
demonstrated that the methane explosion hazard was reasonably likely to result
in reasonably serious injuries, and he has therefore satisfied the third and
fourth elements of Mathies.

Given the above, I therefore conclude that Order No. 8180213 was
appropriately designated as S&S.

3.                 
Unwarrantable
Failure and Negligence

The
facts of this case are not in dispute. In March 2012, Mill Branch removed a
brattice line as part of a change in ventilation. As a result, a formerly
neutral air course became a return entry. Although Mill Branch removed other
non-permissible equipment from the new return, it inadvertently failed to
remove the non-permissible line starter box that connected the power center to
a secondary pump located near a mine seal. In addition, Mill Branch did not
remove the brattice blocks—which were the same general size, shape, and color
of the non-permissible block—from the area. More than a year and more than fifty
weekly electrical examinations later, the non-permissible box and brattice
blocks remained in place. No federal or state inspector found the box until
March 2013.

Not
surprisingly, the Secretary and Mill Branch interpret those facts very
differently. In the Secretary’s post-hearing brief, he argues that each factor
pertinent to an unwarrantable failure analysis supports his determination that
Respondent’s failure to comply with 30 C.F.R. § 75.507
constituted aggravated conduct that is more than ordinary negligence.[19]
(Sec’y Br. at 24–27.) For its part, Mill Branch contends that the Secretary has
not proven Order No. 8180213 to have been an unwarrantable failure because MSHA
and state mine inspectors failed to identify the box during their inspections
of the Osaka Mine. (Resp’t Br. at 24–27; Resp’t Reply at 9–10.) According to
Mill Branch, the failure of federal and state inspectors to identify the
non-permissible box mitigates the duration of the violative condition, implies
that Respondent had no notice that additional efforts were necessary to comply
with the cited regulation, and demonstrates that the condition was not obvious.
(Resp’t Br. at 24–27; Resp’t Reply at 9–10.)

Federal
and state mine inspectors take their jobs seriously, and I have no doubt that
their previous inspections were diligent. In some sense, that diligence
suggests that the non-permissible box may not have been immediately obvious to
observers in the area. I also understand that Mill Branch removed other
non-permissible equipment from the return entry, which suggests the condition
was not extensive. Instead, the violation was limited to a single
non-permissible line starter box connected to a secondary pump. Looked at in
isolation, these facts might support a determination that Mill Branch acted
with ordinary negligence when it failed to remove the line starter box.

Nevertheless,
Mill Branch ignores its yearlong failure to satisfy its own duties under
the Mine Act. Federal and state inspectors are not charged with the primary
responsibility to maintain safe working conditions in mines. Mine operators
are. 30 U.S.C. § 801(e). Inspectors are not required to make
weekly inspections. Mine operators are. 30 C.F.R. § 75.512. Although
the federal and state mine inspectors seemingly overlooked the non-permissible
box, those inspectors had considerably fewer opportunities to
detect the violation than Mill Branch. Indeed, the extraordinary duration of the
violation in this case is egregious, and it weighs heavily in favor of
determining Respondent’s failure to be aggravated conduct constituting more
than ordinary negligence. Regardless of whether the federal and state
inspectors identified the non-permissible box, Mill Branch had a continuing
obligation to remove the box and protect its miners. It failed to do so despite
more than fifty examinations. As a result, Respondent’s failure repeatedly
exposed miners to significant mine ignition and explosion dangers.

Turning
to the remaining unwarrantable failure factors, I note that Respondent appears
to have been aware of its duty to remove the non-permissible box from the
return entry. In fact, it did remove other non-permissible equipment from the
area when it made the ventilation change. It also had more than a year to clean
up the brattice blocks in the area and identify the non-permissible box. Although
Mill Branch may not have had any notice that additional steps were necessary to
comply with 30 C.F.R. § 75.507, Respondent therefore reasonably
should have known about the violation.

Reduced
to their core, Respondent’s arguments simply confuse an explanation for an
excuse. Mill Branch believes its conduct cannot be considered aggravated when
federal and state mine inspectors also failed to identify the violative
condition. I understand that the nearby brattice blocks apparently obscured the
non-permissible box from view. If this were an isolated or relatively recent
event, I might agree with the Respondent. But here, Mill Branch glosses
over the number times of it failed to protect its miners. Thus, the reason for
Respondent’s on-going failure might be explainable, but it is not excusable as
ordinary negligence. In light of the danger the violation presented and Mill
Branch’s repeated opportunity to identify and remove the box, Respondent’s
failure to do so constitutes a serious lack of reasonable care. I therefore
conclude that Mill Branch acted with a high level of negligence when it failed
to remove the non-permissible box from the return entry for more than a year. Likewise,
I conclude that Respondent’s conduct constituted an unwarrantable failure to
comply with a mandatory health or safety standard.

C.        Conclusions
of Law ― Order No. 8180214 – Inadequate Electrical Examination

1.                 
Fact
of Violation

Section 75.512 requires mine operators
to “frequently” examine, test, and maintain all electrical equipment, remove
any equipment where a potentially dangerous condition is found, and maintain
records of those examinations. See 30 C.F.R. § 75.512. Section
75.512-2 defines “frequently” for the purposes of section 75.512 to mean “at
least weekly.” 30 C.F.R. § 75.512-2. Thus, the operator must
complete a weekly examination of its electrical equipment. See, e.g., Manalapan
Mining Co., 36 FMSHRC 53, 92–93 (Jan. 2014) (ALJ).

Respondent’s failure to perform adequate
electrical examinations is uncontroverted. Despite the concrete brattice blocks
nearby that partially obscured the line starter box, it is also uncontroverted
that a proper electrical examination would have traced the power cable between
the power center and the backup pump. A reasonably prudent miner familiar with
the protective purposes of the act would have performed a thorough examination
and identified non-permissible box. Thus, Respondent’s conduct violated
30 C.F.R. § 75.512.

2.                 
S&S

The parties see this inadequate
examination violation as linked to Respondent’s failure to remove the
non-permissible box in the first place. (Sec’y Br. at 24–27; Sec’y Reply at
5–7; Resp’t Br. at 27–28; Resp’t Reply 9–10.) Given the parties’ inclination to
treat these two violations together, I need not address their arguments in
detail. The Secretary has proven a violation and a discrete safety hazard in
satisfaction of the first two elements of the Mathies test. In addition,
he has shown that the methane ignition hazard is reasonably likely to result in
reasonably serious injuries, which satisfies the third and fourth Mathies
elements. See discussion supra Part VI.B.2. Thus, I conclude that
Order No. 8180214 is S&S.

3.                 
Unwarrantable
Failure and Negligence

The Secretary and Respondent also each
treat the unwarrantable failure designation for Order No. 8180214 in concert
with Order No. 8180213. (Sec’y Br. at 24–27; Sec’y Reply at 5–7; Resp’t Br. at
27–28; Resp’t Reply at 9.) Because the parties again view these orders as
linked, I again see little reason to discuss the matter in great detail. Given
the number of inadequate examinations Mill Branch performed, Respondent should
have known about the violative condition. This violation exposed miners to
methane ignition and explosion dangers, and the condition persisted for over a
year. Nevertheless, it appears that Respondent took no additional steps to
ensure it was performing adequate electrical examinations. On the other hand I
recognize that the Secretary presented no evidence demonstrating Mill Branch
was on notice that greater efforts were necessary to comply with
30 C.F.R. § 75.512. Moreover, it appears that MSHA and state
inspectors did not identify the non-permissible box in their own inspections. Thus,
it seems the underlying condition was neither obvious nor extensive.

Considering all of the above, I conclude
that Respondent’s negligence was appropriately designated as high. In addition,
I determine that Respondent’s failure to conduct adequate weekly examinations
for more than one year constituted aggravated conduct. Accordingly, I conclude
that the unwarrantable failure designation is valid.

VII.
 PENALTIES

Turning to the six penalty factors
specified in section 110(i) of the Mine Act, I note that Mill Branch has
stipulated that the proposed penalty would not affect its ability to remain in
business. (Joint
Ex. 1. at 2.) Moreover, nothing in the record suggests the proposed penalties
are inappropriate for the size of the mine, and I also note that Respondent
promptly abated each violation in good faith. Although I have affirmed the
Secretary’s allegations regarding S&S and Respondent’s level of high
negligence, I have modified both Citation No. 8180209 and Order No. 8180210 to
remove the unwarrantable failure designation. In addition, I have affirmed the
Secretary’s allegations of S&S, high negligence, and unwarrantable failure
for Order Nos. 8180213 and 8180214. Finally, the Secretary’s Assessed Violation
History Report lists 1 final citation within the previous fifteen months at the
Osaka Mine that involved 30 C.F.R. § 75.220(a)(1). (Ex. S–16.) That
citation was not designated as S&S. (Id.) In addition, the Secretary’s
Assessed Violation History report lists zero final citations or orders within
the previous fifteen months at the Osaka Mine involving
30 C.F.R. § 75.360(b), 30 C.F.R. § 75.507, or
30 C.F.R. § 75.512. (Id.)

I
recognize that the Secretary has proposed penalties of $3,996.00, $4,440.00, $2,000.00,
and $4,500.00, respectively, for Citation No. 8180209 and Order Nos. 8180210,
8180213, and 8180214. However, the Secretary’s proposed penalties are not binding
upon me. Given the limited history of violations at this mine in conjunction
with the other factors, I therefore determine that a penalty of $1,000.00 each is
appropriate for Citation No. 8180209 and Order 8180210. Based on the six
section 110(i) factors, and particularly the significant danger presented by a
yearlong violation, I also conclude that penalties of $2,500.00 and $5,000.00
are appropriate for Order Nos. 8180213 and 8180214.

VIII.
 ORDER

In
light of the forgoing, it is hereby ORDERED that Citation No. 8180209
and Order No. 8180210 are AFFIRMED as S&S and as the result of
Respondent’s high negligence and are MODIFIED to remove the
unwarrantable failure designation from each. By operation of law, both violations
are also MODIFIED to citations under section 104(a) of the Mine Act.

It is also ORDERED that Order
Nos. 8180213 and 8180214 are AFFIRMED as written. Because Citation No.
8180209 was the predicate section 104(d)(1) citation for both orders, Order No.
8180213 is MODIFIED to a citation under section 104(d)(1) of the Mine
Act by operation of law. Order No. 8180214 remains a section 104(d)(1) order.

FURTHERMORE, Mill Branch is ORDERED to PAY a civil
penalty of $9,500.00 within 40 days of this decision.

/s/ Alan G. Paez

Alan G. Paez

Administrative
Law Judge

Distribution:

Thomas
J. Motzny, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219-2456

K.
Brad Oakley, Esq., Jackson Kelly, PLLC, P.O. Box 2150, Lexington, KY 40588-2150

/pjv

[1] In this
decision, the hearing transcript, the Secretary’s exhibits, and Respondent’s
exhibits are abbreviated as “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively. The
parties also admitted a list of stipulations in a joint exhibit, which was
admitted as Joint Ex. 1.

[2] The inspector initially
issued Order No. 8180213 as a section 104(a) citation resulting from Mill
Branch’s high negligence, but later modified it to a section 104(d)(1) order
alleging high negligence and unwarrantable failure. See discussion infra,
Part VI.A.

[3] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.

§ 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . . mine
safety or health hazard.”

[4] 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 an “unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.”

[5] The Osaka Mine
had a poor history of methane ignitions. (Tr. 112:9–14.) In addition, MSHA was
required to provide spot inspections of Osaka Mine every 15 working days
because it liberated more than 200,000 cubic feet of methane every twenty-four
hours. (See 30 U.S.C. § 813(i); Tr. 85:1–16.) The Secretary
did not elicit testimony specifying the explosive range of methane, but I take judicial
notice that methane concentrations of 5 to 15 percent are explosive.

[6] Mill Branch
operated the Osaka Mine on three overlapping shifts. (See
Tr. 67:25–68:4, 143:7–11, 146:1–10, 187:17–19, 223:3–5; Ex. S–7; Ex. S–9.)
At the time, Mill Branch was “hot seating” its equipment, meaning that miners
stayed at their equipment until the next crew arrived to take over. (Tr.
236:23–237:8.)

[7] Because onshift
and preshift examinations require examiners to check many of the same
conditions, foremen often complete them concomitantly. (Tr. 70:9–21; Ex. S–6;
Ex. S–10; Ex. R–8; see, e.g., Tr. 238:20–240:5.) The preshift exam had
been completed between 12:05 p.m. and 2:15 p.m. (Tr. 67:3–21, 238:16–239:3; Ex.
S–9.)

[8] Foreman Chad
Lane attempted to pull the rock down and was unable to do so. (Tr. 147:14–24,
195:8–196:7, 261:10–20; see Ex. S–1 at 13.)

[9] When Respondent
replaced this bolt, Foreman Lane pulled down the rock. (Tr. 46:16–47:1,
131:10–12; Ex. S–1 at 15.) Bryant measured the largest piece, which was 22
inches long by 16 inches wide by 2 inches thick. (Tr. 46:16–47:1, 132:3–16; Ex.
S–1 at 16.) Smaller pieces measured 1 foot long by 6 inches wide by 2 inches
thick. (Ex. S–1 at 16.)

[10] Bryant
explained that he could tell the difference between a bolt that had been struck
recently and one that had not. (Tr. 43:3–6.) Freshly damaged roof bolts do not
have any rock dust above them. (Tr. 43:6–8.) Further, recently damaged bolts
will not show any rust spots; rust appears after a day. (Tr. 43:9–12.)

[11] Looking at the
January 28 Plan, no torque test is required on previously installed roof bolts.
(Ex. S–4 at 6.) Thus, Superintendent Barnett inferred that torque tension no
longer served any purpose once the glue had hardened. (Tr. 285:8–15; see
286:8–288:9.) However, testimony from Respondent’s other witnesses supports Inspector
Bryant’s theory that torque tension continued to play a role in the function of
the bolt. (Tr. 189:20–190:3, 224:5–13.) Given this testimony, it appears that
tension—and maintaining a roof bolt plate tight to the mine roof—remains
important, even after the glue in the fully grouted bolt has set. Barnett’s
inference therefore does not appear sound. To borrow Respondent’s belt and
suspenders analogy, it is simply unclear why Mill Branch would throw away its
belt once it attached its suspenders.

[12] In contrast, I
cannot make a similar finding regarding the two damaged bolts in Entry No. 2. Although
they were covered in dust and gob, Inspector Bryant admitted he did not know
when Respondent had last mined in Entry No. 2. (Tr. 138:9–19.) Unlike Entry No.
6, Bryant did not characterize the area as well rock dusted, and I therefore cannot
infer that the rock dust on the bolts had been placed there by the machine
dusting on the overnight shift.

[13] Respondent
suggests “the one potential hazard observed—the draw rock in [Entry No. 5]—was
not hazardous” because it could not be pulled down. (Resp’t Br at 11.) Yet,
this argument ignores the large piece of rock Foreman Lane did pull down
in Entry No. 3.

[14] Although Superintendent
Barnett claimed he did not see any adverse roof conditions when he examined the
2 Southeast Panel, he did not examine the section until the next day—after
Respondent had abated the conditions. Thus, I accord little weight to this
testimony.

[15] If the
Secretary had elicited testimony or presented evidence demonstrating that the
damage to these twenty bolts was as plain as the six bolts I described in the
previous paragraph, Respondent’s failure to address them might have been more
troubling. I recognize that the opinion of an experienced inspector is entitled
to significant weight, and I understand that this second set of damaged bolts may
well have been equally apparent to a section foreman. But the Secretary has the
burden of proving the facts underlying his allegations, including his
contention that these conditions were obvious and extensive.

[16] Instead, the
Secretary notes that Mill Branch was “on notice of the amount of cover they
were under and the requirements of the roof plan” and claims that the two roof
falls Inspector Bryant identified put Mill Branch “on notice that they were
mining under bad roof.” (Sec’y Br. at 17.) Yet it is unclear why the Secretary
believes this would put Mill Branch on notice that it needed to take additional
steps to replace damaged bolts. In fact, Inspector Bryant admitted on
cross-examination that he did not know whether any of the bolts had been
damaged before the roof fall. (Tr. 148:6–16.)

[17] Inspector
Bryant initially claimed that the line starter box was connected to the primary
pump. (Tr. 94:10–95:8.) In Bryant’s rebuttal testimony, he admitted that he was
unsure whether the box was connected to the primary pump or the backup pump. (Tr. 306:3–307:11.)
Accordingly, I credit Supervisor Barnett’s testimony that the line starter box
was connected to the backup pump, which had never been activated prior to March
15, 2013. (Tr. 270:19­–272:5.)

[18] The Secretary
relies on Bryant’s testimony that Order No. 8180213 would result in “lost
workday or restricted duty injuries.” (Sec’y Br. at 23.) I note that the
Secretary did not elicit any specific testimony about the types of injuries a
methane ignition would cause. Instead, he stands on Inspector Bryant’s
conclusory statement that injuries would result in lost workdays and restricted
duty. Although specific testimony would be helpful for my analysis, I reasonably
infer from the Secretary’s methane ignition theory that those injuries would be
smoke inhalation and burns. The Commission has routinely considered smoke
inhalation and burns to constitute reasonably serious injuries for the purpose
of a Mathies analysis. See, e.g., Big Ridge, Inc., 35
FMSHRC 1525, 1528–29 (June 2013) (affirming Judge’s S&S determination where
smoke inhalation and burn injuries were reasonably likely).

[19] The Secretary’s
reply brief claims that the matter before me is analogous to the facts of the
Commission’s recent decision in Excel Mining, LLC, 37 FMSHRC 459 (Mar.
2015). (Sec’y Reply at 5–7.) Given my determination in this case, I need not
engage in a point-by-point comparison of the facts.