Secretary of Labor v. Red River Coal Company, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

The consolidated cases involved coal-dust accumulations, an on-shift examination, an unsafe elevated walkway, accident reporting, alteration of an accident scene, and three settled conditions at Red River Coal's No. 1 Prep Plant. Judge Jerold Feldman affirmed the accident-reporting order, the walkway order, and the accident-scene citation. He modified five other orders from section 104(d)(2) orders to section 104(a) citations, removing their unwarrantable-failure designations, and also changed one coal-dust citation to non-S&S. The judge assessed $21,600 for the eight adjudicated matters and approved a $5,000 settlement for three additional orders. Red River was ordered to pay $26,600 in total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.10, 50.12, 77.202, 77.205(a), 77.1713(a), 77.1713(c), 77.200, and 77.1103(d)
• Outcome: Three matters were affirmed, five orders were modified to remove unwarrantable failure, three orders were settled, and total penalties were $26,600.
• Key point: Serious or obvious conditions supported several violations, but the record did not justify unwarrantable-failure treatment for five of the contested orders.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

February 21, 2017

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

RED RIVER COAL COMPANY, INC.,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. VA 2014-236

A.C. No. 44-06199-345299-01

Docket No. VA 2014-237

A.C. No. 44-06199-345299-02

Docket No. VA 2014-239

A.C. No. 44-06199-346250

Mine: No. 1 Prep Plant

DECISION

Appearances:   C.
Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville,
Tennessee, on behalf of the Petitioner;

William
J. Sturgill, Esq., Sturgill Law Office, P.C., Wise, Virginia,

on behalf of the Respondent.

Before:                        Judge Feldman

These consolidated civil penalty proceedings are
before me based on petitions for assessment of civil penalties filed by the
Secretary of Labor (“Secretary”) under section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended (“the Mine Act”), 30 U.S.C.      §
815(d), against the Respondent, Red River Coal Company, Inc. (“Red River”). A
hearing was held on June 16 through June 17, 2016, in Pikeville, Kentucky.

These consolidated dockets concern,
in part, three orders in Docket No. VA 2014-237, all of which have now settled.
The parties’ settlement terms with respect to Docket No. VA 2014-237 that
impose a total civil penalty of $5,000.00 shall be approved herein. Adjudicated
in this matter are the citations and orders at issue in Docket Nos. VA 2014-236
and VA 2014-239. In disposing of these matters, the parties’ post-hearing
briefs, filed on September 30 and October 3, 2016, have been considered.

I.                   
Violations at Issue

The single 104(d)(2) order at issue
in Docket No. VA 2014-236, and the six 104(d)(2) orders and one 104(a) citation
at issue in Docket No. VA 2014-239, have been adjudicated in this proceeding. The
seven contested orders that are attributable to unwarrantable failures consist
of four orders alleging impermissible coal dust accumulations in Red River’s
loadout facilities, one order concerning an allegedly inadequate on-shift
examination, one order alleging the failure

to provide a safe means of access along an elevated walkway,
and one order alleging Red River’s failure to report the occurrence of an
accident. The remaining 104(a) citation concerns Red River’s alleged alteration
of an accident scene.

In satisfaction of these eight contested orders
and citations, the Secretary proposes a total civil penalty of $63,200.00. As a
result of this adjudication, two orders and one citation shall be affirmed, and
five orders shall be modified from section 104(d)(2) orders to section 104(a)
citations, thus removing the unwarrantable failure charges. Given these
modifications, a total civil penalty of $21,600.00 shall be assessed for the
eight orders and citations adjudicated in this proceeding.

II.                
Evidentiary Framework

The issues to be resolved are
whether the cited violations in fact occurred, whether or not the cited
conditions were properly designated as significant and substantial (“S&S”)
and/or attributable to unwarrantable failures, and the appropriate civil
penalties to be assessed. The criteria for resolving these issues are as
follows:

a.       Fact
of the Violation

To find a violation of a mandatory
standard, the Secretary has the burden of proving each element of a citation by
the preponderance of the evidence, based on direct evidence or adequate
circumstantial evidence. See Garden Creek Pocahontas Co. , 11 FMSHRC
2148, 2152-53 (Nov. 1989) (citations omitted). The Commission has noted that
the burden of showing something by a preponderance of the evidence standard
requires the trier of fact to believe that the existence of a fact is more
probable than its nonexistence. Rag Cumberland Res. Corp. , 22 FMSHRC
1066, 1070 (Sept. 2000) (citations omitted).

b.       S&S

The Mine Act describes an S&S violation
as one “of such nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard.” 30
U.S.C. § 814(d)(1). A violation is properly designated as S&S in nature if,
based on the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to by the violation will
result in an injury or an illness of a reasonably serious nature. Cement Div.,
Nat’l Gypsum , 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co. ,       
 6 FMSHRC 1 (Jan. 1984), the Commission explained:

In order to establish that a violation
of a mandatory safety standard is [S&S] under National Gypsum , the
Secretary of Labor must prove:

(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to [by the violation] will result in an injury; and
 (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Id. at 3-4; see also Austin Powder Inc. v.
Sec’y of Labor , 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC
2015, 2021 (Dec. 1987) (approving Mathies criteria).

Once the fact of a violation has
been established under step one of Mathies , the second Mathies  step
addresses the extent to which the violation contributes to a particular hazard.
In a change to the Commission’s long-standing interpretation of the Mathies criteria,
the Commission has recently opined that the second step analysis is “primarily
concerned with likelihood of the

occurrence of the hazard against which a mandatory safety
standard is directed.” Newtown 

Energy, Inc. , 38 FMSHRC 2033, 2037 (Aug.2016) ( citing
Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148, 163 (4th Cir. 2016)).
Thus, step two of the  Mathies  test now involves a two-part
analysis: first, identification of the hazard created by the subject violation
of the safety standard; and second, “a determination of whether, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood of occurrence of the hazard against which the mandatory safety
standard is directed.” Newtown Energy,  38 FMSHRC at 2038. Consideration
must be given to both the time frame that a violative condition existed prior
to the issuance of a citation, and the time that it would have existed if
normal mining operations had continued. 

Bellefonte Lime Co. , 20 FMSHRC 1250 (Nov.
1998);  Halfway, Inc. , 8 FMSHRC 8, 12 (Jan. 1986).

Under the Commission’s analysis in Newtown
Energy , when evaluating the third  Mathies  criterion, the analysis
assumes that the hazard identified in step two has been realized, and then
considers whether the hazard would be reasonably likely to result in injury,
again in the context of “continued normal mining operations.” Newtown Energy , 38
FMSHRC at 2038 ( citing Knox Creek Coal Corp. , 811 F.3d at 161-62);  Peabody
Midwest Mining , LLC , 762 F.3d 611, 616 (7th Cir. 2014);  Buck
Creek Coal , 52 F.3d 133 at 135;  U.S. Steel Mining Co. , 6 FMSHRC
1573, 1574 (July 1984)). In sum, while the methodology for analyzing S&S under
the long-standing Mathies criteria has been modified by Newtown
Energy , the Commission acknowledged that “the ultimate inquiry has not
changed.” Id. at 2038, n.8.

c.        Unwarrantable
Failure

As a general proposition, an unwarrantable   failure   is
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corp. , 9 FMSHRC 1997, 2001 (1987). An unwarrantable failure 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 133, 136 (7th Cir. 1995)   (approving
the Commission’s   unwarrantable   failure   test).
Whether conduct is “aggravated” in the context of  an 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 whether the operator knew or should have known of the existence of
the violation. 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 a mine operator’s conduct is aggravated or if mitigating circumstances exist. Id.

d.       Civil
Penalty Criteria

The Commission outlined the
parameters of its responsibility for assessing civil penalties in  Douglas
R. Rushford Trucking , 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the
Commission’s authority to assess civil penalties de novo for violations
of the Mine Act are well established. Section 110(i) of the Mine Act delegates
to the Commission “authority to assess all civil penalties provided in [the]
Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§
2700.28 and 2700.44. The Act requires that, “[i]n assessing civil
monetary penalties, the Commission [ALJ] shall consider” six statutory penalty
criteria:

[1] the operator’s history of previous
violations, [2] the appropriateness of such penalty to the size of the business
of the operator charged, [3] whether the operator was negligent, [4] the effect
of the operator’s ability to continue in business, [5] the gravity of the
violations, and [6] the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The
Commission has noted that the de novo consideration of the appropriate
civil penalties to be assessed does not require “that equal weight must be
assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co. ,
19 FMSHRC 1495, 1503 (Sept. 1997).

In keeping with this statutory
requirement, the Commission has held that “findings of fact on the statutory
penalty criteria must be made” by its judges. Sellersburg Stone Co. , 5
FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been
made, a judge’s penalty assessment for a particular violation is an exercise of
discretion, which is bounded by proper consideration for the statutory criteria
and the deterrent purposes of the Mine Act. Id. at 294;  Cantera
Green , 22 FMSHRC 616, 620 (May 2000).

III.             
Description of Loadout Facilities

The No. 1 Prep Plant is a coal
preparation and distribution facility in Wise County, Virginia, owned and
operated by Red River. The No. 1 Prep Plant is subject to the provisions of 30
C.F.R. Part 77 of the Secretary’s mandatory safety standards, which govern
surface coal mines. As a general matter, the coal that is processed at the No.
1 Prep Plant is extracted from local surface mines and hauled to the plant via
haulage trucks. Tr. at 67. [1]
After the coal is processed, it is discharged via chutes from the prep plant
into freight trains passing below the facility. Tr. at 68-69, 74-75.

Central to this proceeding is a
train that was loaded on September 16, 2013, one day prior to the issuance of
the subject violations. The next train was scheduled to be loaded on September

20. Tr. 314; Resp. Br. at 2, 15-16. Processed coal is loaded onto
    freight trains through a distribution building that is fed by two underground conveyor
    belt tunnels. Tr. at 68-69, 74-75. Three of the four alleged accumulation
    violations occurred in these two conveyor belt tunnels and a narrow vent pipe,
    and the fourth allegedly occurred in the distribution building.

Specifically, various grades of processed
coal are stockpiled on the surface and fed through a series of chutes onto two
underground loadout conveyor belts. These underground conveyor belts are
located in a “top loadout tunnel” and a “bottom loadout tunnel.” Tr. at 74-75. These
tunnels are designed to convey and transfer coal through an L-shaped system of belts.
See, e.g. , Gov. Ex. 18; Tr. at 74-75. Coal deposited onto the top
loadout tunnel belt is transferred onto the perpendicular bottom loadout tunnel
belt. Id. Coal can also be fed directly onto the bottom loadout belt. Id.
The bottom loadout tunnel belt conveys the coal uphill, from underground
onto the surface, above a state highway, and into the loadout distribution
building. Id. ; Tr. at 84.

The loadout distribution building is
an eight story facility located above the train tracks from which freight
trains are loaded with processed coal. Tr. 119. The loadout distribution building
is comprised primarily of a surge bin, a weigh bin, and associated equipment. Tr.
303-04. Coal is fed into the distribution building’s surge bin from the bottom
loadout tunnel belt, then into the weigh bin where it is measured and
distributed via chutes as trains pass slowly on the tracks situated below. Id.
In the interim period between the arrival of trains, the loadout facilities
are idle; no miners, with the exception of the miner tasked with cleaning and
maintenance, are assigned to work there. Tr. at 314-15, 320; Tr.2 at 69-70.

Miners enter and exit the loadout
tunnels at the mouth of the bottom loadout tunnel where the belt exits from
underground to the surface. Tr. at 70, 96. If the mouth of the bottom loadout
tunnel became inaccessible in an emergency, pursuant to 30 C.F.R § 77.213, an
exhaust vent pipe located at the far end of the top loadout tunnel can serve as
an escapeway. [2]
Id. This vent pipe is 36 inches in diameter. Id. Air courses through
the two loadout tunnels and vent pipe from the mouth of the bottom loadout
tunnel by means of a ventilation fan located at the mouth of the vent pipe. Tr.
at 80. Thus, during loadout operations, the ventilation system causes coal dust
to be blown from the mouth of the bottom loadout tunnel, through the bottom
belt tunnel into the top belt tunnel, ultimately exiting through the exhaust
vent pipe.

IV.             
Disposition of Violations at Issue

a.       Order
No. 8202324 (Ventilation Pipe Accumulations)

i.      
Findings of Fact

On September 17, 2013, Mine Safety
and Health Administration (“MSHA”) Inspectors Stonewall Eldridge and Scott
Beverly conducted an E16 spot inspection of the No. 1 Prep Plant loadout
facilities. Tr. at 62. Eldridge and Beverly began their inspection by crawling
down the 36 inch diameter exhaust vent pipe (in the opposite direction of
airflow design) for the purpose of accessing the top loadout tunnel. Tr. at 70,
173-74. Eldridge and Beverly testified that they observed a coating of dry
black coal dust accumulated on the vent pipe’s inner surface. Tr. at 89, 96,
105, 173-74. Eldridge described these accumulations as “a thick coating” such
that “when you run your finger through it, you can see where it pulls the coal
away, and you can see the coal on each side of it, on the side of the mark that
you make with your finger.” Id. The act of crawling through the tunnel
caused the black coating of coal dust to become suspended in the air. Tr. at 93.
Eldridge also observed similar accumulations in an adjacent 24 inch diameter
vent pipe that is used solely for ventilation purposes. Tr. at 96-97.

Based on the inspectors’
observations, Eldridge issued 104(d)(2) Order No. 8202324, which alleges impermissible
coal dust accumulations in surface installations in violation of section 77.202. [3]
Specifically, Order No. 8202324 provides:

The 36 inch diameter loadout tunnel
escapeway has accumulations of coal dust in dangerous amounts inside. A thick
coating of coal dust has accumulated all around the inside of the escapeway. A
separate 24 inch diameter ventilation pipe, which connects to the 36 inch
escapeway on one end and to the loadout tunnel also has a heavy coating of coal
dust inside. The ventilation fan for the draw off tunnel pulls air through the
escapeway so a coal dust explosion inside the tunnel would suspend the coal
dust inside the escapeway intensifying the explosion.  The foreman is required
to travel this area at least once each working shift and the condition was
obvious. The foreman engaged in aggravated conduct constituting more than
ordinary negligence by allowing the condition to exist. This is a [sic]
violation is an unwarrantable failure to comply with a mandatory standard.

Gov. Ex. 1. Eldridge was concerned that the cited coal dust
created an explosion and fire hazard. Tr. at 100. Consequently, Eldridge
characterized the cited violation as S&S and attributable to “high”
negligence constituting an unwarrantable failure. The Secretary has proposed a
$9,100.00 civil penalty for Order No. 8202324. The record reflects that the
accumulations were reported as abated on September 19, 2013, by washing the
cited accumulations in the pipe with a hose. Gov. Ex. 1; Tr. at 187.

ii.      
Fact of the Violation

Section 77.202, the cited mandatory
standard, requires that an operator of a surface facility should not allow the
existence or accumulation of coal dust in dangerous amounts.    30 C.F.R. §
77.202. Unlike the primary escapeway requirements in 30 C.F.R. § 75.380 that
require intake air to be used in escapeways in underground mines, the vent pipe
escapeway at the surface loadout facility is ventilated with what, in essence, is
return air. See Tr. at 70. In this regard, the loadout facility is
designed to direct the suspended coal dust, which is generated by the dumping
of as much as 100,000 tons of coal through chutes and onto beltlines in the
loadout tunnels, into the escapeway vent pipe. Id. ; Tr. at 41, 74-75. Yes,
indeed, there is gambling in the casino. Yet the Secretary seeks to hold Red
River liable for vent pipe accumulations that the loadout facility is designed
to create.

Nevertheless, while I have
reservations about the propriety of citing Red River for such accumulations,
Red River has acknowledged that section 77.202, the cited mandatory safety
standard, obligates it to clean these unavoidable accumulations following each
train loading activity. See Tr. at 319. Here, it is undisputed that Red
River failed to timely clean the cited accumulations following the train
loading on September 16, 2013, as the coal dust that accumulated during that load
was still present during the September 17 inspection. In this regard, although
the next train was due to arrive on September 20, the cited accumulations must
be viewed in the context of their continued existence during the course of
future loading operations. When Red River failed to expeditiously clean the
subject accumulations, it did so at its own risk. Having concluded that section
77.202 is applicable to the cited accumulations, the Secretary has demonstrated
the fact that Red River “allowed” coal dust accumulations in the exhaust vent
pipe in violation of the cited mandatory standard.

iii.      
S&S

In view of the above, the
requirement of the first step of Mathies to identify an underlying
violation of section 77.202 has been satisfied. Under the Commission’s Newtown
Energy modification of step two of the Mathies criteria, the focus
shifts to analyzing the “likelihood of the occurrence of the hazard” against
which section 77.202 is directed. Newtown Energy , 38 FMSHRC at
2038. Here, as there are no ignition sources in the cited vent pipe, the
relevant hazard is the propagation of a fire or explosion that begins in the
loadout tunnels. Based on the design of the airflow, any explosion that occurs
in one of tunnels will be funneled toward the vent pipe where the cited
accumulations were located. Should such an explosion occur, the cited coal dust
accumulations are reasonably likely to further propagate the explosion.

Turning to Mathies steps
three and four, however, the focus shifts to whether such propagation is
reasonably likely to result in a reasonably serious injury. Id. It is
highly unlikely, if not impossible, that the cited condition will contribute to
injury to miners working in the tunnels for, given the direction of
airflow and the lack of ignition sources in the vent pipe, the accumulations in
the vent pipe cannot propagate an explosion that will be directed into
the loadout tunnels. Thus, the cited condition cannot properly be designated as
S&S with respect to the propagation hazard as it relates to the loadout
tunnels.

However, regarding the issue of the
propagation hazard posed to miners using the vent pipe as an escapeway ,
it is readily apparent that any propagation hazard in the escapeway is illusory,
as the full force of any explosion in the loadout tunnels, where there are
potential sources of ignition, would be directed into, and magnified by, the 36
inch vent pipe. In this regard, Order No. 8202324 states: “The ventilation fan
for the draw off tunnel pulls air through the escapeway so a coal dust
explosion inside the tunnel would suspend the coal dust inside the escapeway intensifying
the explosion .” Gov. Ex. 1 (emphasis added). Thus, propagation confined
within the exhaust vent pipe does not create a discrete hazard to miners, as
this hazard cannot be disassociated from the hazardous effects created by the
force of an explosion originating in the loadout tunnels. Simply put, the risk
of injury to miners in the vent pipe from an explosion exists regardless of the
presence of the cited accumulations. Thus, the cited condition cannot be
properly designated as S&S with respect to the propagation hazard as it
relates to the accumulations in the vent pipe.

iv.      
Unwarrantable Failure

As previously noted, the classic
hallmark of an unwarrantable failure is conduct characterized by “indifference,”
a “serious lack of reasonable care,” “reckless disregard,” or “intentional
misconduct.” Emery Mining , 9
FMSHRC at 2001. As the loadout tunnel system
is designed to deposit accumulations in the vent pipe, it is significant that
MSHA does not assert that the loadout tunnel design is impermissible. Consequently,
there is no basis for concluding that the occurrence of the cited accumulations
is attributable to more than ordinary negligence. With respect to the issue of
duration, the fact that the accumulations, cited on September 17, 2013, were located
in a loadout facility that would remain idle until September 20, during which
time the accumulations could have been cleaned, is a mitigating factor. Thus, the
unwarrantable failure designation shall be deleted and Order No. 8202324
shall be modified to a 104(a) citation, as the evidence reflects that the cited
condition was attributable to no more than a “low” degree of negligence.

v.      
Civil Penalty

The Secretary proposes a $9,100.00
civil penalty for Order No. 8202324, which has been modified to a 104(a)
citation in this proceeding. I view the reduction in negligence and gravity,
the problematical ventilation design that made the cited accumulations
unavoidable, and the idle nature of the loadout facility, as overriding
mitigating circumstances. Consequently, applying the penalty criteria in
section 110(i), a civil penalty of $100.00 shall be assessed for Citation
No. 8202324.

b.       Order
Nos. 8202325, 8202326 and 8202327 (Loadout Tunnels and Distribution Building Accumulations)

i.      
Findings of Fact

These orders allege that Red River violated
30 C.F.R. § 77.202, for allowing dangerous amounts of coal dust to accumulate in
the top loadout tunnel, bottom loadout tunnel, and the loadout distribution
building, following the loading of a freight train on September 16, 2013. The
cited accumulations were observed by MSHA Inspectors Eldridge and Beverly the
following day, on September 17. Red River asserts that the loadout facilities were
scheduled to remain idle until September 20, when the next freight train was anticipated
to arrive. Tr. 314; Resp. Br. at 2, 15-16.

After exiting the vent pipe on September
17, 2013, Inspectors Eldridge and Beverly inspected the top loadout tunnel
beltline. Tr. at 123. Eldridge observed accumulations of black coal dust on the
backside of the belt structure and on the floor beneath the belt. Tr. at 123-24.
Eldridge testified that these accumulations measured three inches in depth
along the beltline, and one inch deep around the guards at the tail drive
roller. Tr. at 124. Eldridge further testified that there was evidence that the
tail roller shaft had been turning in the loose coal during the September 16
loading operation, creating frictional heat and a potential ignition source. Tr.
at 125-29, 131. Red River Prep Plant Foreman Randy Morgan, who observed the subject
conditions shortly after the issuance of the orders, conceded that the
accumulations along the top and bottom loadout tunnel beltlines were the result
of spillage from the belt. Tr.2 at 58. As a result of the inspectors’
observations, Eldridge issued 104(d)(2) Order No. 8202325, alleging
impermissible coal dust accumulations in surface installations in violation of
section 77.202. Specifically, Order No. 8202325 provides:

The top clean coal loadout reclaim
tunnel has accumulations of coal dust, in dangerous amounts, on the backside of
the belt structure and on the floor underneath the belt. The coal underneath
the belt and on the backside measures up to 3 inches deep. The coal dust
measures up to 1 inch deep around the guards at the tail drive roller and on
the belt structure. The tail drive roller shaft is turning in the loose coal,
which creates an ignition source. This area is required to be traveled
during the required on shift examination at least once during each working
shift . The belt and tunnel are idle at this time but were used on 9-16-2013
and are available for use at any time. The foreman has engaged in aggravated
conduct constituting more than ordinary negligence by allowing the coal
accumulations to exist. This violation is an unwarrantable failure to comply
with a mandatory standard. Standard 77.202 was cited 1 time in two years
at mine 4406199 (1 to the operator, 0 to the contractor). This violation is an
unwarrantable failure to comply with a mandatory standard.

Gov. Ex. 2 (emphasis added). Eldridge characterized the
cited violation as S&S. Despite the fact that the loadout tunnels would
remain idle for several shifts, and a lack of a significant history of relevant
violations, Eldridge characterized the cited condition as attributable to
“high” negligence constituting an unwarrantable failure. The Secretary has
proposed a $9,100.00 civil penalty for Order No. 8202325. The violation was
abated on September 19, 2013, after the accumulations were washed down the
tunnel into a sump pump that is located at the junction between the top and
bottom loadout tunnels. Gov. Ex. 2; Tr. at 187.

Continuing their inspection along
the bottom loadout tunnel, Eldridge observed 14 inches of coal accumulations
around the tail roller, near the transfer point between the top and

bottom loadout tunnel beltlines. Tr. at 133. Morgan (Prep
Plant Foreman) and Red River Maintenance Supervisor Allen Wingler testified
that coal accumulations near the transfer point and adjacent sump pump are
generally wet from accumulations of groundwater and water from recently-washed
coal. Tr. at 309-11. Eldridge further observed two inches of coal dust
accumulations on the roller guards and belt structure along the beltline. Tr. at

133. At the tail roller, Eldridge testified that there was evidence that the
     belt itself was running in the accumulations, presenting a risk of frictional
     heat and an ignition source. Tr. at 133-35. Based on these observations, Eldridge
     issued 104(d)(2) Order No. 8202326, alleging impermissible coal dust
     accumulations in surface installations in violation of section 77.202. Specifically,
     Order No. 8202326 provides:

The bottom clean coal loadout reclaim
tunnel has accumulations of coal dust, in dangerous amounts, present. Coal dust
measuring up to 14 inches deep is all around the tail roller of the tunnel
belt. The belt has been running in the loose coal, which creates an ignition
source. The guards and belt structure have a thick coating of dust measuring up
to two inches deep. This area is required to be traveled at least once each
working shift by a certified foreman doing the required on shift examination. The
foreman engaged in aggravated conduct constituting more than ordinary
negligence by allowing this obvious condition to exist. This is an
unwarrantable failure to comply with a mandatory standard. Standard 77.202 was
cited two times in two years at mine 4406199 (2 to the operator, 0 to a
contractor). This violation is an unwarrantable failure to comply with a
mandatory standard.

Gov. Ex. 3. Eldridge characterized the violation as S&S.
Once again, despite the mitigating circumstances noted above, Eldridge
characterized the cited condition as attributable to “high” negligence
constituting an unwarrantable failure. The Secretary has proposed a $9,100.00
civil penalty for Order No. 8202326. The violation was abated on September 19,
2013, after the accumulations were washed down the tunnel into the sump pump
located at the junction between the top and bottom loadout tunnels. Gov. Ex. 2;
Tr. at 187.

After inspecting the loadout
tunnels, Eldridge and Beverly proceeded to the loadout distribution building. Tr.
at 147. As previously noted, the loadout distribution building is an eight
story facility situated above the railroad track where freight cars are loaded
with processed coal. Tr. at 119. Eldridge and Beverly inspected the
distribution building from the roof down, first identifying “a thick coating of
coal dust” on the belts, wall structures, floors, and all equipment throughout
the building. Tr. at 147-55. Eldridge testified to dry coal dust accumulations,
as much as four inches deep, on electrical equipment such as conduits and
connections, wiring, control boxes, motors, hydraulics, heaters, air
compressors, and welders, including accumulations within the motor control
center. Id.  

Thus, Eldridge issued 104(d)(2)
Order No. 8202327, alleging impermissible coal dust accumulations in surface
installations in violation of section 77.202. Specifically, Order No. 8202327
provides:

The loadout building has accumulations
of coal dust, in dangerous amounts, present. The walls, floors, electrical conduit
and all the equipment on all floors, including the 2 nd floor MCC
room, have a thick coating of coal dust present, measuring up to 4 ½ inches
deep in areas. The loadout building is idle at this time but was used on
9-16-2013 and is available for use if needed. The foreman is required to do an
on shift examination of this building at least once each working shift. The
foreman has engaged in aggravated conduct constituting more than ordinary
negligence by allowing the accumulations to exist. This violation is an
unwarrantable failure to comply with a mandatory standard. Standard 77.202 was
cited 3 times in two years at mine 4406199 (3 to the operator, 0 to a
contractor).

Gov. Ex. 4. Eldridge characterized the violation as S&S.
Despite mitigating circumstances previously discussed, Eldridge characterized
the cited condition as attributable to “high” negligence constituting an
unwarrantable failure. The Secretary has proposed a $9,100.00 civil penalty for
Order No. 8202327. On September 19, 2013, the accumulations were abated by
pressure washing, vacuuming, and hand wiping away the coal dust. Gov. Ex. 4.  

ii.      
Fact of the Violations

Inspectors Eldridge and Beverly
speculate that all of the cited accumulations likely built up over “several
train loads.” Tr. at 104, 112, 162, 182. In contrast, Red River employees
Wingler, Morgan, and Boyd testified that the cited accumulations in the
escapeway exhaust vent pipe, the two loadout tunnels, and the distribution
building, were solely the by-product of the September 16 train loading. Tr.2 at
47, 55-57, 60, 84-85. To support this assertion, Red River estimates that the
total tonnage of coal loaded on September 16 was between 60,000 and 100,000
tons. Tr. at 41. Moreover, Morgan testified that he had been in the loadout facilities
prior to the September 16 train loading and that the facilities were clean. Tr.2
at 63.

Thus,
Red River asserts that the cited accumulations in the vent pipe, the loadout
tunnels, and the distribution building, occurred as a result of normal loadout operations
when the facilities were last utilized on September 16, one day before the
subject inspection. Tr.2 at 44, 47, 55-57, 84-85. The next loading operation
was scheduled to occur four days later, on September 20. Tr. 314; Resp. Br.
at 2, 15-16. When trains are not being loaded, the loadout facilities are idle
and unstaffed, with the exception of the miner who is assigned to clean and
maintain the facilities in between train loads. Tr. at 314-15, 320; Tr.2 at
69-70. While idle, the only energized equipment in the loadout facilities is a permissible
sump pump at the junction of the top and bottom loadout tunnels, the
ventilation fan, and lights illuminating the distribution building. Tr. at
335-337. Contrary to the Secretary’s assertion, Red River argues that this
energized equipment does not present a likely source of ignition. Tr. at 194,
335-337. Consequently, Red River asserts that the cited coal accumulations were
not hazardous when the facilities were idle. Tr. at 320, 335-337.

Notwithstanding the question of
whether the cited accumulations were hazardous while the loadout facilities
were idle, Red River maintains that the residual accumulations that occurred
during the September 16 train loading would have been cleaned during the
morning shift immediately following the loading operations (in this case, the
morning of September 17). Tr. at 319; Tr.2 at 51, 61, 90. Thus, Red River
contends that the cited accumulations would normally have been cleaned prior to
the late afternoon inspection by Eldridge and Beverly. Tr. at 319; Tr.2 at 61,

90. However, cleaning was reportedly delayed as Dwayne Caroll, the miner in
    charge of cleaning the loadout facilities, called in sick on September 17. Tr.
    at 318-19; Tr.2 at 61. Red River argues that a miner would have been assigned
    to clean the loadout facilities in place of Caroll had the facilities been
    scheduled to operate sooner than September 20, the date of the next scheduled
    loading operation. Tr. at 315, 320, 342; Tr.2 at 69-70.

In addressing the issue of
liability, the question is whether the Secretary is alleging that Red River
allowed the accumulations to occur, or alleging that Red River failed to timely
clean the subject accumulations. The record, when viewed in its entirety,
clearly reflects that significant accumulations in the loadout tunnels and
distribution building are a normal by-product of loading trains with as much as
60,000 to 100,000 tons of coal. Consequently, it is unreasonable to expect that
significant coal can be prevented from accumulating during the train loading
process. See Tr. at 153. One must question the propriety of requiring
miners to be present in the loadout tunnels for the purpose of monitoring
conditions during loading, exposing them to dust inhalation and explosion or propagation
hazards.

Significantly, Inspector Beverly
testified:

. . . [T]here was a lot of float coal
dust. There was just too much float coal dust. It was just everywhere, and it
hadn’t been cleaned . It hadn’t been — it hadn’t been addressed, so — and it
shouldn’t have been allowed to accumulate like that. It should’ve been taken
care of. And it was black, most of it.  

Tr. 181 (emphasis added). Thus, it is obvious that the
Secretary premises Red River’s liability on its alleged failure to timely clean
the cited accumulations, as the cited conditions are an inevitable by-product
of the loading process.

With regard to timeliness, Red River relies on
the alleged absence to due illness of Caroll, the miner regularly tasked with
cleaning the loadout facilities on the morning shift of September 17. The
purported absence of Caroll is not a mitigating, or otherwise relevant,
circumstance. Mine operators are responsible for providing substitute personnel
to ensure the safety of ongoing mining operations.

We now turn to whether the cited
accumulations can be properly characterized as “dangerous” accumulations prohibited
by section 77.202. The Commission has recognized that the degree of hazard
posed by a cited condition must be evaluated as if the condition were permitted
to exist unabated. See S&H Mining , 15 FMSHRC 956, 957 (June 1993); Knox
Creek Coal Corp. , 36 FMSHRC 1128, 1140-41 (May 2014) (holding that
consideration of accumulations violations cannot take into consideration future
planned abatement efforts). Thus, while the fact that cited accumulations were
observed during a period when the loadout facilities were idle may mitigate the
degree of negligence, it does not obviate the fact of the cited violations. As
previously stated, when Red River failed to immediately clean the subject
accumulations during the morning shift on September 17, it did so at its own
risk. Red River’s self-serving assertion that these accumulations would have
been cleaned prior to the next train loading on September 20 is insufficient to
shelter it from liability.

Having assumed the cited
accumulations would continue to exist until the next train was loaded on
September 20, heat generated by defects in running conveyor belt systems at
that time, and the potential arcing of energized electrical systems, were ever-present
sources of ignition. The presence of the cited accumulations in proximity of
these potential ignition sources created a fire or explosion hazard. Consequently,
the Secretary has satisfied his burden of demonstrating the fact that the cited
accumulations in the loadout tunnels and distribution building constituted “dangerous”
conditions in violation of section 77.202.

1. Duplicity
   of Violations

Having determined that the
violations cited in Order Nos. 8202325, 8202326 and 8202327 occurred, we now
address Red River’s assertion that these orders are duplicative and should be
combined into a single violation. Resp. Br. at 19-20. Section 110(a) of
the Mine Act provides that “[e]ach occurrence of a violation of a mandatory
health or safety standard may constitute a separate offense.” 30 U.S.C. §
820(a). In asserting that these orders are duplicative, Red River relies on the
fact that the loadout tunnels “are [both] interconnected and the ventilation
system for the tunnels all have one fan that pulls air throughout the whole
system and blows air toward the transfer point.” Resp. Br. at 19.

At hearing,
Inspector Eldridge explained that he issued separate orders for the two tunnels
as the conveyor belts therein “can be run independently of each other.” Tr. at 114-15,

120. Eldridge testified that he did not issue eight different citations for
     each of the eight floors of the loadout distribution building where he found
     accumulations of coal dust, as the entire building “runs in unison” and
     “functions like one piece of equipment.” Tr. at 119.

The Commission has held that “citations
or orders are not duplicative as long as the standards allegedly violated
impose separate and distinct duties.” Kentucky Fuel Corp. , 38 FMSHRC
1614 (July 2016), citing Western Fuels-Utah, Inc. , 19 FMSHRC 994, 1003
(June 1997).  Separate citations for similar conditions are justified as such
citations serve the purpose of guiding and motivating discrete abatement
efforts needed to eliminate discrete hazards.    Port Costa Materials, Inc. ,
15 FMSHRC 1516, 1519-20 (July 1994) (ALJ). Each conveyor belt, from head pulley
to tail pulley, presents discrete safety hazards with regard accumulations in
proximity to potential sources of ignition created by misaligned belts or
defective rollers. Operators are obliged to ensure that each “separate and
distinct” conveyor belt is operating safely. As discussed below, while similarity
of violations may be a relevant consideration regarding a multiplier effect
relevant to the civil penalty to be imposed, such similarity is not a bar to
the issuance of multiple citations. Consequently, the fact of the accumulation
violations in the loadout tunnels and distribution building shall be affirmed.

iii.      
S&S

On first blush, the idle nature of
the loadout facilities would appear to be a mitigating circumstance with regard
to the issue of S&S. However, Red River’s self-serving assurances that the
cited accumulations would have been cleaned prior to the scheduled September 20
train loading operation are not dispositive, as violative conditions must be
presumed to have remained unabated during the course of continued mining
operations. See Knox Creek , 36 FMSHRC at 1140-41.

Applying the Commission’s S&S
criteria, step one of Mathies is satisfied as the Secretary has
demonstrated violations of section 77.202. Turning to Mathies step two,
as modified by the Commission’s recent holding in Newtown Energy , the record
reflects that the hazard contemplated by section 77.202 is a potential fire or
explosion. The record further reflects that it is reasonably likely that the
cited accumulations will be a fuel or propagation source that will reasonably
likely cause or contribute to a fire or explosion. Regarding Mathies steps
three and four, in the event of a fire or explosion in the loadout tunnels or
distribution building, it is reasonably likely to result in reasonably serious,
if not fatal, injuries to miners who may be working in the loadout facilities. Consequently,
the cited accumulation conditions in the loadout tunnels and distribution
building are properly designated as S&S.

iv.      
Unwarrantable Failures

In determining whether violations
are attributable to more than ordinary negligence justifying unwarrantable
failure designations, the Commission looks to such factors as whether the
violation posed a high degree of danger, the length of time a violation has
existed, and the operator’s knowledge of the existence of a violation. IO
Coal Co.,   31 FMSHRC at
1350-51. Significantly, the Commission has expressed that all relevant facts
and circumstances of each case must be considered to determine if a mine
operator’s conduct is aggravated, or if mitigating circumstances are present. Consolidation
Coal Co. , 22 FMSHRC at 353.

With respect to mitigating circumstances,
the orders acknowledge that the top and bottom loadout tunnel conveyor belts,
as well as the loadout building, were idle at the time the cited accumulations
were observed by the MSHA inspectors. Regarding the hazard posed to mine
examiners, despite the fact that the orders specified that the loadout tunnels
and distribution building require an examiner to travel these areas at least
once during each working shift , the operative daily inspection
provisions of section 77.1713(a) only require inspections in each active
working area . Compare Gov. Exs. 2, 3, 4, with 30 C.F.R. §
77.1713(a).

Thus, examiners were not required
to be in the loadout facilities each shift during the interim period between
September 16 and September 20, when the facilities were scheduled to be idle. Upon
entering the loadout area to conduct an inspection, the cited accumulations do
not pose a fire or propagation hazard to mine examiners during the interim idle
period. As such, the Secretary has failed to demonstrate that the cited
accumulations posed a high degree of danger. [4]
 Moreover, Red River’s failure to identify the cited accumulations during a
period when the loadout facilities were idle and examinations were not required
is not an aggravating factor.

Although the cited accumulations
were obvious, the specific facts of this case reflect that, as noted, the
accumulations were not in an active area when observed on September 17, 2013. Thus,
the obviousness of the conditions is likewise not an aggravating factor. Nor is
the continued existence of the accumulations in an idle area of the mine an
aggravating consideration with respect to duration. Finally, the cited orders
reflect that there is no history of relevant violations.

In apparent recognition that the
unusual circumstances in this case present significant mitigating factors, the
Secretary seeks to elevate the seriousness of the violations by asserting that
the cited accumulations were the result of “several train loads,” in addition
to the accumulations that occurred on September 16. Tr. 24-25, 104, 112-13, 162,
182-84. It is axiomatic that the Secretary bears the burden of proving every
element of a violation. Garden Creek Pocahontas Co. , 11 FMSHRC at
2152-53. Given the fact that chutes were repeatedly utilized to load the train
with as much as 100,000 tons of coal on September 16, the Secretary’s assertion
is based on speculation that falls far short of satisfying the Secretary’s
burden of proof. See Tr. at 41. Thus, the Secretary has failed to adequately
demonstrate that the cited accumulations had been present for more than one
day.

Consequently, the Secretary has
failed to establish that the cited accumulations are attributable to more than
ordinary negligence. Accordingly, Order Nos. 8202325, 8202326 and 8202327 shall
be modified to section 104(a) citations to reflect that the cited conditions
were not attributable to unwarrantable failures.  

v.      
Civil Penalties

While it has not been contended
that the proposed penalties are inappropriate to the size of Red River’s
business, or that they would otherwise interfere with its ability to continue
in business, there are significant mitigating factors. For example, the absence
of any significant history of relevant recent violations is a mitigating
consideration. Moreover, the negligence attributable to Red River’s conduct has
been reduced from aggravated to no more than “moderate” negligence given the
idle status of the loadout facilities. This idle condition is an additional
mitigating factor with respect to the gravity of the violations. Red River
demonstrated good faith in rapidly achieving compliance after the orders were
issued. Finally, the interrelated nature of the violations results in a
multiplier effect that is an additional factor warranting a reduction in each
civil penalty.

In view of these considerable
mitigating circumstances brought about by the rather unusual circumstances of
this case, a civil penalty of $1,400.00 each shall be issued for Citation Nos.
8202325, 8202326 and 8202327, resulting in a total civil penalty of $4,200.00
for these three citations.

c.        Order
No. 8207981 (Walkway)

i.            
Findings of Fact

On September 17, 2013, MSHA
Inspector Larkin Clevinger inspected the area surrounding the strip coal
sampler building at the prep plant. Tr.2 at 99. Along the backside of the sampler
building, Clevinger inspected a walkway that was constructed with a combination
of metal grating, concrete, and dirt. Tr.2 at 100; Gov. Ex. 8, p. 29-34. The
walkway was elevated above a steep loose coal slope that culminated in an
approximately 40 foot drop to the ground below. Tr.2 at 115. To prevent
injuries from a fall, a handrail was installed extending the full length of the
walkway. Gov. Ex. 8, p. 29-34. The walkway provides exterior access for
cleaning and maintenance of a ring gate chute. Tr.2 at 100. This chute is used
to discharge extraneous coal from the sample building. Id. As an
alternative to using the walkway, personnel could access the ring gate chute
area from inside the sampler building via a door located at the end of the
walkway. Id.

Clevinger observed two areas of
significant erosion along this elevated walkway that were located at junctions
of metal grating and dirt. Id. The first hole was triangular, measuring
approximately 13 inches, by 20 inches, by 28 inches. Id. The second hole
was also triangular, measuring approximately 12 inches, by 48 inches, by 30
inches. Tr.2 at 100. At the hearing, the Secretary proffered photographic
evidence of the conditions observed by Clevinger. See Gov. Ex. 8, p. 29-34.

Based on his observations,
Clevinger issued 104(d)(2) Order No. 8207981, alleging a violation of 30 C.F.R.
§ 77.205(a). This mandatory standard provides that a “[s]afe means of access
shall be provided and maintained to all working places.” Order No. 8207981
provides:

A safe means of access was not provided
for the walkway behind the L2 Strip Coal Sampler Building. Two areas had eroded
on each end of the metal walkway creating holes where workers could easily
fall. The first area was triangular in shape and 13 inches by 20 inches by 28
inches. The second area was triangular in shape and measured 12 inches by 48
inches by 30 inches. These areas have occurred over time due to rain/runoff. These
areas were obvious and easily seen. Workers are required to travel this area
for cleaning and maintenance. The highwall at this walkway consisted of an
approximate slope of 30 percent for 15 feet then a vertical drop of
approximately 40 feet to the stockpile below. A handrail was provided for this
walkway. The mine operator has engaged in aggravated conduct constituting more
than ordinary negligence. This violation is an unwarrantable failure to comply
with a mandatory standard. Standard 77.205(a) was cited 9 times in two years at
mine 4406199 (6 to the operator, 3 to a contractor).

Gov. Ex. 7.

Clevinger testified that he was not
concerned about the structural integrity of the walkway, but rather the
possibility that a miner utilizing the walkway could fall through one of the eroded
holes. Tr.2 at 104. In such event, the miner could suffer serious injuries to
his extremities, or fatal injuries by sliding down the slope and falling 40
feet to the ground below. Tr.2 at 111. In support of the high negligence and
unwarrantable failure designations, Clevinger believed that the holes resulted
from erosion over a significant period of time, and that previous on-shift
examinations clearly had repeatedly overlooked the conditions despite their obviousness.
Tr.2 at 117, 128. Clevinger estimated that approximately three to six people
traversed this walkway daily. Tr.2 at 129.

Clevinger characterized the cited
violation as S&S and attributable to “high” negligence constituting an
unwarrantable failure. Red River does not dispute the fact of the violation or
the S&S designation. Resp. Br. at 21. However, as discussed below,
Red River disputes that the cited condition was attributable to an
unwarrantable failure. The Secretary has proposed a $9,100.00 penalty for Order
No. 8207981. Order No. 8207981 was timely abated on September 19, 2013, by
taking the necessary remedial actions to alleviate the hazard. Gov. Ex. 7;
Resp. Ex. 10-14.

ii.            
Unwarrantable Failure

In support of the unwarrantable
failure designation, Clevinger attributed this violation to a “high” degree of
negligence based on the obviousness and hazardous nature of the cited
conditions. Tr.2 at 117, 128. In disputing this negligence designation, Red
River argues that the walkway was not an active working area since it is only
used periodically for maintenance purposes, and that the ring gate chute was
accessible by miners without using the subject walkway. Resp. Br. at 23.

As previously noted, an
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp. , 9 FMSHRC at 2001. The Commission has
identified the indicia of an unwarrantable failure: 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 whether the operator knew or should have known of the existence of the
violation. See IO Coal Co.,   31 FMSHRC at 1350-51. Significantly,
it is not necessary to find that all factors are relevant or deserving of equal
weight in order to determine that a violation is unwarrantable. Id. ; Eastern
Assoc. Coal Corp. , 32 FMSHRC 1189 (Oct. 2010).

The photographic evidence depicts a
handrail that delineates the perimeter of the walkway. Gov. Ex. 8, p. 29-34. The
fall hazard posed to miners is evidenced by Red River’s installation of this
handrail, as required by 30 C.F.R. § 77.205(e). Significantly, the two large
holes that concerned Clevinger were located at the base of the handrail that
defines the area where miners would likely work or travel. Id. These two
holes were obvious, in that they were large and posed a significant drop-off hazard.
With respect to duration, the photographs reflect that the erosion undoubtedly
occurred over a significant period of time. Id. Additionally, Red
River’s argument that the cited walkway was not frequently utilized does not
diminish the risk posed to miners who periodically used the walkway during the
course of continued mining operations.

As noted, the propriety of an
unwarrantable failure designation must be viewed in the context of the
circumstances surrounding the violation. The indicia applied in unwarrantable
failure determinations are not necessarily given equal weight. Here, the
obviousness and extended duration of the cited condition, given its hazardous
nature, adequately supports that the cited walkway defects were attributable to
a “high” degree of negligence. Consequently, the unwarrantable failure
designation in Order No. 8207981 shall be affirmed.

iii.            
Civil Penalty

Applying the criteria in section
110(i) of the Mine Act, I view the history of violations to be neither an
aggravating nor mitigating circumstance. Given the high degree of negligence
and gravity associated with the cited condition, the Secretary’s proposed
civil penalty of $9,100.00 shall be assessed for Order No. 8207981.

d.       Order
No. 8189011 (On-Shift Examination)

i.            
Fact of the Violation

MSHA’s September 17, 2013,
inspection of Red River’s No. 1 Prep Plant resulted in the issuance of a total
of approximately 22 citations and orders, none of which were noted in the
relevant on-shift examination books. Consequently, MSHA Inspector Herbert
Skeens issued Order No. 8189011, which alleges a violation of the on-shift
examination provisions of       30 C.F.R. § 77.1713(a). This mandatory standard
provides:

At least once during each working
shift, or more often if necessary for safety, each active working area and
each active surface installation shall be examined by a certified person
designated by the operator to conduct such examinations for hazardous
conditions and any hazardous conditions noted during such examinations shall be
reported to the operator and shall be corrected by the operator.

30 C.F.R. § 77.1713(a) (emphasis added). Skeens
characterized the cited failure to conduct adequate on-shift examinations as
S&S and attributable to “high” negligence constituting an unwarrantable
failure. The Secretary has proposed a $10,700.00 civil penalty for Order No. 8189011.

Of the 22 citations and orders relied on by
Skeens to support the allegedly inadequate on-shift examination violation, only
five have been adjudicated in this proceeding. Namely: the four accumulation
violations in the loadout facilities (Citation Nos. 8202324, 8202325, 8202326
and 8202327) and the defective walkway violation (Order No. 8207981).

With respect to the Secretary’s
assertion that the failure to note the loadout accumulations in the September
17 on-shift examination book evidences a violation of section 77.1713(a), we
must focus on the operative terms in the cited provision. By its terms, section
77.1713(a) only requires an on-shift examination in active workings or active
surface installations. Black Castle Mining Co. , 36 FMSHRC 323, 325 (Feb.
2014). It is undisputed that the loadout facilities were idle on September 17. Tr.
at 95. Further, the Secretary does not dispute that loadout operations were not
scheduled to resume until September 20. Tr. at 314; Resp. Br. at 2,
15-16. Consequently, consistent with the provisions of section 77.1713(a), Red
River was not required to perform an on-shift examination of the loadout
facilities as alleged by the Secretary. Thus, Red River’s failure to note the
conditions in the on-shift examination book during a shift in which the loadout
facilities were scheduled to remain idle is not a proper consideration in
determining whether an on-shift examination was adequate. [5]

Turning to the defective walkway violation cited
in Order No. 8207981 and adjudicated in this matter, as previously discussed, it
is apparent that the cited erosion in the walkway posed a significant hazard,
and was both obvious and significant in duration. However, the issue is whether
the on-shift examination was adequate. For not every failure to note a
violative condition in an on-shift examination book evidences, in and of
itself, an inadequate on-shift examination. In this regard, the unnoted
hazardous walkway, located in an area not heavily travelled, alone, does not evidence
sufficient malfeasance to support a finding that the on-shift examination was
inadequate.

In addition to the defective walkway, the
Secretary relies on an additional 17 citations and orders issued during the course
of the September 17 inspection that were not adjudicated in this proceeding. All
17 of these citations or orders have either been settled or vacated by the
Secretary. (The disposition and agreed upon civil penalties are noted below.) Specifically,
Order No. 8189011 identifies:

• Citation No. 8199079: Spillage on the 2 nd floor of the refuse
  bin. (Settled; $162)

• Citation No. 8199080: Exposed drive shafts on unit 15 transfer conveyor
  belt. (Settled; $243)

• Citation No. 8199081: Exposed slip switch drive shaft and roller on unit
  32 conveyor belt. (Settled; $243)

• Citation No. 8199082: Dry grass within 11 inches of the top lube and
  diesel storage tanks. (Settled; $100)

• Citation No. 8199084: No illumination in the refuse bin headhouse. (Settled;
  $100)

• Citation No. 8199085: Oil accumulations on the refuse bin gate hydraulic
  pump. (Settled; $100)

• 104(d)(2) Order No. 8189007: Shrubs against electrical equipment in the
  raw coal dump area. (Settled; $2,900)

• 104(d)(2) Order No. 8189008: Weeds, leaves, and other combustible
  material against or around the bulk diesel storage tank in the raw coal dump
  area. (Settlement approved in this proceeding; $1,200)

• 104(d)(2) Order No. 8189009: Portable fire extinguisher in the raw coal
  area not examined within 6 months. (Settled; $2,400)

• 104(d)(2) Order No. 8189010: Portable fire extinguisher in the raw coal
  area not examined within 6 months. (Vacated)

• Citation No. 8207976: The catch screen under the #17 clean coal conveyor
  does not extend over the roadway below. (Settled; $100)

• Citation No. 8207977: The catch screen under the #32 refuse conveyor
  does not extend over the roadway below. (Settled; $162)

• Citation No. 8207978: A ladder located on the top floor of the refuse
  bin adjacent to the prep plant was not maintained in good condition. (Settled;
  $162)

• Citation No. 8207979: A Rhino 375 step ladder on the 3 rd
  floor of the prep plant was not maintained in good condition. (Settled; $162)

• 104(d)(2) Order No. 8207980: Two guards on the L2 sample feed conveyor
  were not secured in place. (Settled; $2,800)

• Citation No. 8207982: The guard for the drive shaft/barrel shaft on the

342 pump located on the bottom floor of the prep plant is not adequate.

(Settled; $162)

• 104(d)(2) Order No. 8202323: The 36 inch diameter escapeway for the
  clean coal tunnel is not maintained in good repair. (Settlement approved in
  this proceeding; $2,000)

Gov. Ex. 9.  

By way of summary of the above, of
these 17 cited conditions, one citation was vacated and eight of the remaining
16 citations were designated as non-S&S. Resp. Br. at 25-26. The
agreed-upon civil penalty for eleven of the 16 citations ranged from $100.00 to
$243.00. Id. The civil penalty for the remaining five citations ranged
from $1,200.00 to $2,900.00. Id.

Thus, while not the subject of this proceeding,
it is apparent that twelve of the 17 additional citations relied upon by the
Secretary were either vacated or assessed a nominal penalty. Consequently, the
failure to note these twelve conditions in the relevant on-shift examination
books, in addition to the unnoted defective walkway condition, is not
sufficient to warrant the conclusion that Red River’s September 17 on-shift
examinations were inadequate.

Having addressed the immaterial loadout
accumulation violations and the citations that were vacated or settled with
nominal penalties, the operative question is whether the remaining five
conditions, three of which are designated as non-S&S, for which the
Secretary agreed to penalties ranging from $1,200.00 to $2,900.00, in addition
to the unnoted obvious defective walkway violation, constitute an inadequate
examination under section 77.1713(a). Although I have misgivings regarding the
lack of evidence presented concerning the circumstances surrounding these five
conditions, Red River has agreed to pay the moderate civil penalties agreed
upon by the parties. Consequently, although the evidence does not reflect that
the relevant on-shift examinations were perfunctory, I will give the Secretary
the benefit of the doubt that these five unnoted violative conditions, in
conjunction with the unnoted defective walkway condition, constitute an
inadequate examination. As such, the Secretary has demonstrated a violation of
section 77.1713(a). [6]

ii.            
S&S

Turning to the issue of S&S, the
Secretary has established a violation of section 77.1713(a). The second element
of the Commission’s recent Newtown Energy modification to the Mathies
criteria requires, first, identification of the hazard contemplated by section
77.1713(a), and second, an analysis of whether, based on the particular facts
of the case, it is reasonably likely that this hazard will occur. In the
context of an inadequate examination violation, these considerations are
synonymous; for by definition, the hazard contemplated by section 77.1713(a)
that hazardous conditions will continue to go unaddressed, cannot be
disassociated from the likelihood of the hazard occurring. In other words, if
there is a failure to note hazardous conditions in violation of section
77.1713(a), the hazard has occurred. In this regard, the Commission has
recognized the indispensable role of pre-shift and on-shift examinations,
describing them as “fundamental in assuring a safe work environment for the
miners.” Enlow Fork Mining Co. , 19 FMSHRC 5, 15 (Jan. 1997); Buck
Creek Coal Co. , 17 FMSHRC 8, 15 (Jan. 1995). [7]
Given the unsafe working environment created by inadequate  on-shift
examinations, it is reasonably likely that the hazard posed to miners will
result in a reasonably serious injury. Consequently, the evidence adequately
reflects that the cited violation of section 77.1713(a) is properly designated
at S&S.

iii.            
Unwarrantable Failure

An unwarrantable failure is
characterized by more than ordinary negligence, evidenced by a serious lack of
reasonable care. Here, the Secretary has relied, in significant part, on the
fact that Red River failed to note in the on-shift examination book the four
accumulation conditions in the loadout facilities. However, the Secretary was
not required to note these conditions in the on-shift examination book, as the
loadout facilities were not active working areas or active surface
installations.

Notwithstanding the accumulation
conditions in the loadout facilities, the unwarrantable failure designations originally
in Citation Nos. 8189008 and 8202323, also relied upon by the Secretary as
evidence of an inadequate examination, were deleted pursuant to the parties’
settlement terms, which have been approved of in this proceeding. The only
remaining condition attributable to an unwarrantable failure is the unsafe
walkway condition cited in Order No. 8207981.

The defective walkway, in addition
to the other non-loadout facility citations relied upon by the Secretary, are
insufficient to demonstrate that the on-shift examinations were attributable to
more than moderate negligence. In this regard, the majority of the remaining
unaddressed conditions were either vacated or attributable to low degrees of
negligence and gravity by virtue of the imposition of nominal civil penalties. Consequently,
the Secretary has failed to demonstrate that Red River engaged in more than
ordinary negligence, thus requiring modification of 104(d)(2) Order No. 8189011
to a 104(a) citation, reflecting that the cited violation was not attributable
to an unwarrantable failure.

iv.            
Civil Penalty

The Secretary has proposed a civil
penalty of $10,700.00. However, in support of the inadequate on-shift
examination violation, the Secretary’s civil penalty proposal was based, inter
alia , on one citation that was vacated, two citations wherein the Secretary
has agreed to delete the unwarrantable failure designations, and four cited loadout
facility conditions for which an on-shift examination was not required by
section 77.1713(a). In the final analysis, the on-shift examination violation it
is attributable to no more than a “moderate” degree of negligence. As such, the
subject violation is significantly less egregious than alleged by the
Secretary. Consequently, a civil penalty of $1,200.00 shall be assessed for
Citation No. 8189011.

e.        Order
No. 8199116 (Accident Reporting Violation)

i.      
Findings of Fact

During the evening shift on
November 1, 2013, miners Wayne Powers and Rick Boyd were performing repairs to
a magnetic separator machine at the Red River No. 1 Prep Plant. Tr.2 at 211. As
part of these repairs, Boyd removed the bolts from the drive shaft end cap in
preparation for cutting the bearing off the magnetic separator drive shaft with
an acetylene torch in an effort to access the inside of the separator drum. Tr.2
at 211-13. As Boyd cut through the bearing, the pressurized end cap became a
projectile that ricocheted off a water pipe and struck Powers in the head. Tr. at

213. The end cap was described as an approximately 50 pound metal disc that is 30
     inches in diameter. Tr.2 at 214-15; Gov. Ex. 14, p. 31. When Powers was struck,
     he was standing about six to eight feet from the magnetic separator machine. Tr.2
     at 217.

Immediately following the incident,
Red River maintenance shop foreman Billy Mays, a certified EMT, was called to
the scene. Tr.2 at 239. Mays performed an assessment of Powers’ condition by checking
his vital signs and evaluating the extent of his injuries. Tr.2 at 241. Mays applied
a dressing to a laceration on Powers’ forehead. Id. The laceration
resulted in a “minor blood loss.” Tr.2 at 248. However, Mays concluded that the
injuries to Powers’ face required immediate surgery. Id . Mays further concluded
that there was no evidence of internal bleeding. Tr.2 at 242. While Mays
testified that Powers never lost consciousness, hospital records do report “an
apparent loss of consciousness.” Compare Tr.2 at 240, with Gov.
Ex. 16, p. 2.  

Following Mays’ evaluation of
Powers’ condition, Mays telephoned Red River Safety Director Eddie Clapp, who
was not present at the mine site, to convey that he did not believe Powers’
injuries were “immediately reportable” under 30 C.F.R. § 50.10(b), [8]
as Powers’ vital signs were stable. Tr.2 at 255-56. Nevertheless, as a result
of Mays’ concern about potential facial fractures, Powers was transported via
Medivac helicopter to a trauma center in Kingsport, Tennessee. Tr.2 at 249. Mays
opined that facial fractures can often lead to a permanent loss of sight if not
immediately addressed. Id.

Powers was hospitalized for five
days. Gov. Ex. 16, p. 2. He was diagnosed as having suffered “subtle”
subarachnoid hemorrhaging and multiple facial fractures. Id. Following
surgery to repair his nasal cavity, Powers was discharged on November 6, 2013. Id.
Powers subsequently missed approximately three months of work and returned
to work under six months of restricted activity due to ongoing vertigo. Tr.2 at
259.

On November 8, 2013, the Norton,
Virginia, MSHA field office was notified that an accident had occurred at the
Red River facility the previous week. Tr.2 at 210. Shortly thereafter, MSHA
Inspector Thomas Bower was immediately dispatched to the Red River No. 1 Prep
Plant to investigate the circumstances of Powers’ accident. Id. Bower
determined that Red River had failed to report the November 1 accident to MSHA.
After interviewing Mays and Clapp, Bower issued 104(d)(2) Order No. 8199116,
which alleges a failure to report an accident to MSHA within 15 minutes, in
violation of 30 C.F.R.§ 50.10.

Specifically, Order No. 8199116
provides:

The Operator shall immediately contact
MSHA at once without delay and within 15 minutes at the toll free number
1-800-746-1553 once the operator knows or should know that
an accident has occurred involving an injury of an individual at
the mine which has a reasonable potential to cause death. The miner
received blunt force injuries to the face and forehead at this Preparation
Plant on 11/01/2013 at approximately 10:45 p.m. The miner was struck in the
face and forehead by an end cap off of a magnetic separator. The miner was standing
in the area of the Magnetic Separator while a bearing was being cut off in
order to remove the End Cap in order to make repairs. The miner was
Med-Flighted via helicopter to Holson Valley Medical Center in Kingsport, TN
for treatment. The Mine Operator has engaged in aggravated conduct constituting
more than ordinary negligence by not reporting this accident which had a
reasonable potential to cause death. This violation is an unwarrantable failure
to comply with a mandatory standard.

Gov. Ex. 12. Bower characterized the cited violation as
non-S&S and attributable to “high” negligence constituting an unwarrantable
failure. The Secretary has proposed a $5,000.00 civil penalty Order No. 8199116,
the statutory minimum for violations of section 50.10. See 30 U.S.C. §
110(a)(2). Red River reported the accident following the issuance of the order,
thus abating the violation.

ii.      
Fact of the Violation

Section 50.10 requires an operator
to “immediately contact MSHA at once without delay and within 15 minutes … once
the operator knows or should know that an accident has occurred involving … an
injury … which has a reasonable potential to cause death.” 30 C.F.R. §
50.10(b). Prompt reporting is essential to the purpose of the reporting
requirement in section 50.10, and requires a prompt determination as to whether
an accident has occurred. Consolidation Coal Co. , 11 FMSHRC 1935, 1938
(Oct. 1989). Given the demands in section 50.10 for a prompt determination that
an injury has “the reasonable potential to cause death,” the Commission has held
that “readily available information, such as the nature of the accident, is
highly relevant in determining whether an injury is reportable, while
permitting operators to wait for a medical or clinical opinion would ‘frustrate
the immediate reporting of near fatal accidents.’” Signal Peak Energy ,
37 FMSHRC 470, 476 (Mar. 2015) (quoting  Cougar Coal Co. , 25 FMSHRC
513, 520-21 (Sept. 2003)). The Commission declined to further define the
operative term “reasonable potential to cause death” in Signal Peak , apparently
concluding that a common sense approach was adequate.

As discussed below, in situations
as in the current case where rescue efforts are not a concern, the timely
reporting requirement in section 50.10 acts as a condition precedent to
preservation of an accident scene. Preservation of an accident scene “facilitate[s]
MSHA’s ability to investigate and remedy the cause of the accident” to ensure that
similar accidents to not occur. Id. at 480. Thus, the Commission has unequivocally
held that operators “must resolve any reasonable doubt in favor of
notification.” Id. at 477.

During the operative 15 minutes,
Powers’ condition was evaluated by Red River’s on-site EMT, Mays, who reported
the victim’s vital signs as stable. Tr.2 at 241. Red River nevertheless
acknowledged the potential severity of the blunt force trauma Powers sustained
to the head and face by arranging for Powers to be transported to a local
trauma center by helicopter. Tr.2 at 249. While Mays expressed concern that
Powers’ facial fractures potentially jeopardized his eyesight if not
immediately treated, Mays did not believe that his injuries were potentially
fatal. Tr.2 at 241, 249.

It is undisputed that Powers
sustained a severe blow to the head when he was struck by the bearing cap — essentially
a 50 pound projectile. Blunt force trauma to the head, even in circumstances
where a miner demonstrates stable vital signs and minimal blood loss, must be
considered potentially fatal. For it is common knowledge that potential swelling
or bleeding in the cranial cavity poses a significant risk of death. Notably,
the preamble to the final rule for section 50.10 includes concussions
and major upper body blunt force trauma as types of injuries that must be
immediately reported. 71 Fed. Reg. 71,430, 71,434 (Dec. 8, 2006). Accordingly,
Red River’s failure to timely report the November 1, 2013, accident within      15
minutes, constitutes a violation of section 50.10.

iii.      
S&S

The Secretary has designated the
failure to timely report Powers’ accident cited in Order No. 8199116 as
non-S&S. As an initial matter, the Commission, consistent with a remand
from the D.C. Circuit Court of Appeals, had determined that, unlike violations
of mandatory safety standards, Part 50 reporting requirements were regulations
not subject to S&S designations. Cyprus Emerald Res. Corp. , 22
FMSHRC 285 (Mar. 2000), on remand from , Cyprus Emerald Res. Corp. ,
195 F.3d 42, 44 (D.C. Cir. 1999). The requirements in section 50.10 were
subsequently modified by rulemaking in 2006, elevating the status of reporting
requirements to mandatory standards. Signal Peak , 37 FMSHRC at 479
(citations omitted). Consequently, the Commission has determined that S&S
designations for violations of section 50.10 are now applicable. Id.

It is clear, absent extraordinary
circumstances not present here, that the failure to report potentially fatal
accidents constitutes an S&S violation, as it precludes MSHA’s
investigatory role. Id. at 479-81. Thus, I would ordinarily be inclined
to modify Order No. 8199116 to reflect that Red River’s failure to report
Powers’ accident was S&S in nature. However, I am precluded from doing so. See
Mechanicsville Concrete Inc. t/a Materials Delivery , 18 FMSHRC 877 (June
1996) (holding that an ALJ lacks the authority to charge an operator
with violations and is thus precluded from raising a designation from non-S&S
to S&S on his own initiative). Consequently, the Secretary’s non-S&S
designation of the reporting violation shall be affirmed.

iv.      
Unwarrantable Failure

Inspector Bower concluded that Red
River’s failure to timely report the accident to MSHA was an unwarrantable
failure to comply with section 50.10. As a general proposition, an unwarrantable   failure   is
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corp. , 9 FMSHRC 1997, 2001 (1987). The focus of this analysis is on
whether a reasonably prudent person familiar with the purpose of the reporting
requirements of section 50.10 should have concluded that immediate notification
was necessary.

Section 50.10 requires a mine
operator to notify MSHA within 15 minutes of an accident that has a reasonable
potential to cause death. While it is true that Mays was an EMT, the decision
whether or not to immediately notify MSHA cannot be made within a matter of
minutes after a serious accident “upon the basis of clinical or hyper-technical
opinions as to a miner’s chance of survival.” Cougar Coal Co. , 25 FMSHRC
513, 521 (Sept. 2003). This is particularly true in this instance where Red
River knew that Powers had sustained blunt force trauma to the head, resulting
in serious facial injuries. I do not doubt the sincerity of Mays’ initial
conclusions that Powers’ injuries were survivable. However, hasty conclusions that
minimize the degree of severity of head injuries, without the benefit of an MRI,
x-ray, or other diagnostic studies, constitute an abuse of discretion.

Clapp credibly testified that given
the benefit of hindsight, he regretted his reliance on the information provided
to him via telephone by Mays regarding Powers’ condition and the circumstances
of the accident. Tr.2 at 260-61. However, in the final analysis, Clapp’s
misplaced reliance on this information interfered with any meaningful MSHA investigation
aimed at preventing the reoccurrence of a similar accident. Thus, Clapp’s
misplaced reliance cannot be considered a mitigating factor. Consequently, the
reporting violation is attributable to “high” negligence, which supports the
unwarrantable failure designation.

v.      
Civil Penalty

The Secretary proposes the
statutory minimum of $5,000.00, provided in 30 U.S.C.     § 110(a)(2) for
violations of section 50.10. Clapp’s reliance on Mays’ medical opinion as a
certified EMT is understandable and is a mitigating factor that precludes
increasing the civil penalty in excess of the statutory minimum. Consequently, a
civil penalty of $5,000.00 shall be imposed for Order No. 8199116.

f.        Citation
No. 8199117 (Preservation of Accident Scene)

i.      
Findings of Fact

During his November 6, 2013,
inspection, it was clear to Bower that Red River had resumed mining activities
following Powers’ November 1, 2013, accident, which prevented MSHA from
exercising its investigative authority. Tr.2 at 231. Consequently, Bower issued
104(a) Citation No. 8199117, alleging a violation of 30 C.F.R. § 50.12. [9]
Specifically, Citation No. 8199117 provides:

The mine operator failed to report the
accident that occurred at this Facility on 11/01/2013 at approximately 10:45
p.m. A miner received blunt force injuries to the face and forehead. The Mine
Operator repaired the Magnetic Separator that was involved with the accident
and put it back into service. This action altered the accident site and
prevented an accident investigation to begin promptly.

Gov. Ex. 13. Bower characterized the cited violation as
non-S&S. Although Bower characterized Red River’s degree of negligence as
“high,” he did not attribute the violation to an unwarrantable failure. The
Secretary has proposed a $2,000.00 civil penalty for Citation No. 8199117. This
violation was abated by Red River on November 11, 2013, by providing relevant personnel
with refresher training on sections 50.10 and 50.12

ii.      
Fact of Violation and Negligence

As discussed above, the November 1 incident
at issue is properly characterized as an “accident” under Part 50. See 30
C.F.R. § 50.2(h)(2). Section 50.12 prohibits operators from altering an
accident site until all investigations pertaining to the accident are completed
by MSHA. 30 C.F.R. § 50.12.

Red River’s failure to timely
report the subject accident precluded MSHA’s investigation. In its defense, Red
River argues that section 50.12 is inapplicable because it presupposes that a
report has been made and that MSHA has designated the area as an accident
scene. Resp. Br. at 28. Thus, in an attempt to place the proverbial cart
before the horse, Red River posits that no violation of section 50.12 occurred as
no “accident scene” was established by MSHA. Id.

However, the Commission has held
that “it is the  occurrence  of an accident that is the
condition precedent to the application of section 50.12, not the  reporting  of
one.” Black Beauty Coal Co. , 37 FMSHRC 687, 690 (Apr. 2015) (emphasis in
original). As such, despite Red River’s failure to report the accident, it is the
accident that prohibited Red River from resuming normal mining operations at
the scene prior to the initiation of MSHA’s relevant investigation. Consequently,
it is clear that Red River’s disturbance of the accident scene constituted a
violation of section 50.12, as well as an interference with MSHA’s
investigative responsibility. Such conduct is reflective of a “high” degree of
negligence, as asserted by the Secretary.

iii.      
S&S

As previously noted, I lack the
authority to disturb the Secretary’s non-S&S designation. See Mechanicsville
Concrete , 18 FMSHRC 877.

iv.      
Civil Penalty.

The Secretary proposes a $2,000.00
civil penalty. Although I have affirmed the Secretary’s characterization of Red
River’s conduct as “high” negligence, it is significant that the Secretary has
not attributed the violation to an unwarrantable failure. As discussed above,
although not exculpatory, Clapp’s failure to ensure the integrity of the
accident scene was based on his reliance, albeit misplaced, on a certified EMT.
I view this as a mitigating circumstance. However, this mitigation does not
provide an adequate basis for reducing the Secretary’s proposed $2,000.00 civil
penalty. Consequently, a civil penalty of $2,000.00 shall be imposed for
Citation No. 8199117.

V.                
Settlement of Docket No. VA 2014-237

Prior to the hearing, the parties
advised that the three orders at issue in Docket No. VA 2014-237 had settled. The
record at the hearing was left open for the parties to submit their written
settlement terms, which were filed on October 13, 2016.

Regarding the three settled orders
in Docket No. VA 2014-237, the parties’ settlement terms include reducing the
total civil penalty from $12,000.00 to $5,000.00. Specifically, the settlement
terms provide for modifying Order No. 8199078, which cites an alleged failure
to perform an adequate on-shift examination in violation of 30 C.F.R. §
77.1713(c), from a 104(d)(2) order to a 104(a) citation, thus removing the
unwarrantable failure designation, with a corresponding penalty reduction from
$4,000.00 to $1,800.00. In support of this modification and penalty reduction,
the Respondent represents that while the day-shift foreman failed to record the
results of the subject on-shift examination, the examination did occur and the
results of the examination were verbally presented to the shift foreman.

Regarding Order No. 8202323, which
cites a violation of 30 C.F.R. § 77.200 that requires all mine structures to be
maintained in good repair to prevent injuries to miners, the parties agree to
modify the violation from a 104(d)(2) order to a 104(d)(1) citation, with a
corresponding penalty reduction from $4,000.00 to $2,000.00. In support of this
modification and penalty reduction, the Respondent represents that the cited
rusted and sharp edges on an escapeway tunnel were not severe enough to have
caused lacerations or bruises to someone crawling through the tunnel. Furthermore,
the Secretary represents that the underlying 104(d)(1) order that supported
this 104(d)(2) order was modified to a 104(a) citation in a separate
proceeding.

Additionally, regarding Order No.
8189008, which cites dry weeds, leaves, and underbrush in close proximity to a
fuel storage tank in violation of 30 C.F.R. § 77.1103(d), the parties agree to
modify the violation from a 104(d)(2) order to a 104(a) citation, thus removing
the unwarrantable failure designation, and to reduce the degree of negligence
attributable to the cited condition from “high” to “moderate,” with a
corresponding penalty reduction from $4,000.00 to $1,200.00. In support of
these modifications and penalty reduction, the Respondent represents that the
cited fuel tank was storing diesel fuel, rather than gasoline, and thus
presented less of a combustion hazard.

I have considered the
representations submitted in this matter and I conclude that the proffered
settlement agreement is appropriate under the criteria set forth in section
110(i) of the Mine Act. The settlement terms reduce the total civil penalty from
$12,000.00 to $5,000.00 for the three settled orders in Docket No. VA 2014-237,
two of which have been modified to section 104(a) citations.

ORDER

In view of the above, with respect
to Docket No. VA 2014-236, IT IS ORDERED that Order No. 8199116
(accident report) IS AFFIRMED . Accordingly, IT IS ORDERED that
Red River Coal Co., Inc. SHALL PAY a penalty of $5,000.00 in
satisfaction of Order No. 8199116, the single order at issue in Docket No. VA
2014-236.

With respect to Docket No. VA
2014-239, IT IS FURTHER ORDERED that Order No. 8207981 (walkway) and Citation
No. 8199117 (accident scene) ARE AFFIRMED . Accordingly, IT IS ORDERED
that Red River Coal Co., Inc. SHALL PAY a penalty of $9,100.00 in
satisfaction of Order No. 8207981 and $2,000.00 in satisfaction of Citation No.
8199117.

With respect to Docket No. VA
2014-239, IT IS FURTHER ORDERED that Order Nos. 8189011 (on-shift examination),
8202324 (vent pipe), 8202325 (top loadout tunnel), 8202326 (bottom loadout
tunnel), and 8202327 (distribution building) ARE MODIFIED from section
104(d)(2) orders to section 104(a) citations, thus deleting the unwarrantable
failure designations. IT IS FURTHER ORDERED that Citation No. 8202324 IS
MODIFIED to non-S&S. Accordingly, IT IS FURTHER ORDERED that Red
River Coal Co., Inc. SHALL PAY a penalty of $1,400.00 each in
satisfaction of Citation Nos. 8202325, 8202326, and 8202327, $1,200.00 in
satisfaction of Citation No. 8189011, and $100.00 in satisfaction of Citation
No. 8202324. In sum, IT IS ORDERED that Red River Coal Co., Inc. SHALL
PAY a total civil penalty of $16,600.00 in satisfaction of the seven
citations and orders in Docket No. VA 2014-239.

With respect to Docket No. VA
2014-237, IT IS FURTHER ORDERED that consistent with the parties’
settlement terms approved of in this Decision, Red River Coal Co., Inc. SHALL
PAY a total civil penalty of $5,000.00 in satisfaction of Order Nos.
8199078, 8202323, and 8189008.

In view of the above, IT IS ORDERED that Red
River Coal Co., Inc., pay, within 40 days of the date of this Decision, a
total civil penalty of $26,600.00 , consisting of a total civil
penalty of $21,600.00 for the eight citations and orders adjudicated in this
proceeding, in addition to $5,000.00 for the three settled orders. [10]

IT IS FURTHER ORDERED that upon timely
receipt of the total $26,600.00 payment, the civil penalty proceedings in
Docket Nos. VA 2014-236, VA 2014-237, and VA 2014-239 ARE DISMISSED .

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:
(Electronic and Certified Mail)

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

William
J. Sturgill, Esq., Sturgill Law Office, P.C., 944 Norton Road, P.O. Box 3458,
Wise, VA 24293

/acp

[1] As used herein, citation “Tr.” refers to the June 16,
2016, hearing transcript. Citation “Tr.2” refers to the June 17, 2016, hearing
transcript.

[2] Section 77.213 provides, in pertinent part, that an
escapeway of not less than 30 inches in diameter must be provided when a tunnel
is closed at one end. 30 C.F.R. § 77.213.

[3] 30 C.F.R. § 77.202 provides: “Coal dust in the air
of, or in, or on the surfaces of, structures, enclosures, or other facilities
shall not be allowed to exist or accumulate in dangerous amounts.”

[4] With respect to the distribution building, Inspector Beverly’s
testimony that accumulations on non-sealed electrical equipment are dangerous, is
belied by the fact that ordinary electrical equipment is not required to be
sealed and dust proof even though combustible coal dust routinely accumulates
in the loadout distribution building during regular loading operations. Tr. at 197-98.
The electrical equipment in the distribution building that was required to be
sealed to prevent the entry of coal dust was properly sealed. Tr. at 334. Thus,
the degree of danger posed by the cited accumulations in the distribution
building during a period when trains are being loaded is not an aggravating
factor.

[5] The Secretary asserts that an on-shift examination of
the loadout facilities was performed by miner Steve Gillam on September 17,
which transformed the area into a working place. Tr. at 138-40. At that time,
Gillam made a note of his loadout examination in the prep plant book, but did
not identify the accumulation conditions in the loadout facilities. Id. The
Secretary did not proffer this examination book as evidence. Red River asserts
that Gillam’s examination concerned the strip dump above the loadout tunnels,
rather than the loadout facilities themselves. Tr.2 at 71-73; Resp. Br.
at 16. Section 77.1713(a) only required Red River to conduct an on-shift
examination prior to the anticipated activation of the loadout facilities on
September 20. Thus, an examiner’s unnecessary on-shift examination in an idle
area of the mine that is not anticipated to be activated for several days does
not transform this area, otherwise idle, to an active working place. Significantly,
accumulations that are permitted to remain in the idle areas of the
self-contained loadout facilities do not pose a propagation hazard to other active
areas of this surface mine site.

[6] While I have given the Secretary the benefit of the
doubt with respect to the fact of the violation, I am not unmindful that the
Secretary has failed to proffer the relevant on-shift examination books to
demonstrate the sufficiency, or lack thereof, of the subject examinations.

[7] Although Enlow Fork and Buck Creek concerned
pre-shift examinations, the same considerations with regard to ensuring a safe
working environment also apply to on-shift examinations.

[8] 30 C.F.R. § 50.10 provides, in pertinent part:

The operator shall
immediately contact MSHA at once without delay and within 15 minutes at the
toll-free number, 1-800-746-1553, once the operator knows or should know
that an accident has occurred involving: (a) A death of an
individual at the mine; (b) An injury of an individual at
the mine which has a reasonable potential to cause death ….

[9] 30 C.F.R. § 50.12 provides:

Unless
granted permission by a MSHA District Manager, no operator may alter
an accident site or
an accident related area until completion of all
investigations pertaining to the accident except to the extent
necessary to rescue or recover an individual, prevent or eliminate an imminent
danger, or prevent destruction of mining equipment.

[10] Payment should be sent to the Mine Safety and Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390. Please include the Docket No. and A.C. No. noted in the
above caption on the check.