Secretary of Labor v. Sally Ann Coal Company, Inc.

Plain-English summary

MSHA issued orders involving newly hired experienced-miner training, roof-bolt spacing, a fractured boom-hole roof, a missing preshift examination, and weekly seal examinations at Sally Ann Coal's No. 2 Mine. Judge Janet G. Harner affirmed high-negligence S&S findings for the failure to train eight experienced miners, irregular roof-bolt spacing across five entries, miners working in an unexamined intake, and unverifiable seal examinations after a foreman erased dates, times, and initials. She also affirmed an S&S roof hazard at a fractured boom hole but found that the operator had taken mitigating steps by adding bolts and scoping the roof. That order was modified from section 104(d) and high negligence to a section 104(a), low-negligence citation with a $1,500 penalty. The five litigated violations resulted in $32,017 in penalties, while seven other violations had previously been resolved by partial settlement.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 48.6(b), 75.211(c), 75.220(a)(1), 75.360(a)(1), and 75.364(a)
• Outcome: Four orders were affirmed, one was modified to a low-negligence section 104(a) citation, and litigated penalties totaled $32,017.
• Key point: Partial corrective efforts can reduce negligence and defeat unwarrantable failure even when the underlying roof hazard remains S&S.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

SALLY
ANN COAL COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. WEVA 2011-1028

A.C.
No. 46-06843-244332

Docket
No. WEVA 2012-481

A.C.
No. 46-06843-272825-01

Docket
No. WEVA 2012-559

A.C.
No. 46-06843-275658-01

Mine:
No. 2 Mine

DECISION

Appearances:               Michele
A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado, for the Secretary

James F. Bowman, Litigation
Representative, Midway, West Virginia, for Respondent.

Before:                                    Judge
Harner

These
cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against Sally Ann Coal Company, Inc. (“Sally Ann” or
“Respondent”) at its No. 2 Mine, pursuant to Sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the
“Act”). These cases included three separate dockets containing twelve
violations assessed at $38,126.00. On December 9, 2013, I issued a Decision
Approving Partial Settlement resolving seven of the eight violations in Docket
No. WEVA 2011-1028. The parties presented testimony and documentary evidence
for the remaining five violations at a hearing held in Charleston, West
Virginia on November 14 and15, 2013. Both parties filed post-hearing briefs
which have been duly considered.

STIPULATIONS[1]

1.      Sally Ann Coal
Company, Inc., (“Sally Ann”) at all times relevant to these proceedings,
engaged in mining activities and operations at the No. 2 Mine in McDowell County,
WV.

2.      Sally Ann’s
mining operations affect interstate commerce.

3.      Sally Ann is
subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §§ et. seq. (the “Mine Act”).

4.      Sally Ann is an
“operator” as defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at the Mine
where the contested citations in these proceedings were issued.

5.      The
Administrative Law Judge has jurisdiction over these proceedings pursuant to
§105 of the Act.

6.      The individuals
whose signatures appear in Block 22 of the contested citations at issue in
these proceedings were at the times the citations were issued authorized
representatives of the United States of America’s Secretary of Labor, assigned
to MSHA, and were acting in their official capacities when issuing the
citations at issue in these proceedings.

7.      The citations at
issue in these proceedings were properly served upon Sally Ann as required by
the Mine Act.

8.      The citations at
issue in these proceedings may be admitted into evidence for the purpose of establishing
their issuance but not for the truthfulness or relevancy of any statements
asserted therein.

9.      The certified
copy of the MSHA Assessed Violations History reflects the history of the
citation issuances at the Mine for 15 months prior to the date of the citations
at issue and may be admitted into evidence without objection by Sally Ann.

10.  Sally Ann
demonstrated good faith in abating the violations.

11.  Sally Ann may be
considered a medium size mine operator for the purposes of 30 U.S.C. §820(i).

12.  The assessed
penalties will not affect the ability of Respondent to remain in business.

13.  All of the
miners in Order No. 8098519 were “experienced” miners. Tr. 96-97.[2]

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The findings of
fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
I have taken into consideration the interests of the witnesses, or lack
thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each
witness, I have also relied on his or her demeanor. Any failure to provide
detail as to each witness’s testimony is not to be deemed a failure on my part
to have fully considered it. The fact that some evidence is not discussed does
not indicate that it was not considered. See Craig v. Apfel, 212 F.3d
433, 436 (8th Cir. 2000) (administrative law judge is not required
to discuss all evidence and failure to cite specific evidence does not mean it
was not considered).

I. BASIC LEGAL
PRINCIPLES

A.    Significant and
Substantial

The Orders in dispute and discussed
below have been designated by the Secretary as significant and substantial and
unwarrantable failures to comply with mandatory safety standards. A significant
and substantial (“S&S”) violation is described in section 104(d)(1) of the
Act as a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if,
based upon the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981).         

The Commission has explained that:

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

Mathies
Coal Co.,
6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc.,
9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

The
difficulty with finding a violation S&S normally comes with the third
element of the Mathies formula. In U.S. Steel Mining Co., Inc., 7
FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance: We
have explained further that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S.
Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of section 104(d)(1), it is
the contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574-75 (July 1984). The Secretary “need not prove a reasonable
likelihood that the violation itself will cause injury.” Cumberland Coal
Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser
Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).

This evaluation is made in consideration
of the length of time that the violative condition existed prior to the
citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S.
Steel Mining Co., Inc.,

6
FMSHRC at 1574. The question of whether a particular violation is S&S must
be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).

B.     Negligence and
Unwarrantable Failure

Negligence “is conduct, either by
commission or omission, which falls below a standard of care established under
the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required to be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” Id.
MSHA considers mitigating circumstances which may include, but are not limited
to, actions taken by the operator to prevent or correct hazardous conditions or
practices. Id. Low negligence exists when “[t]he operator knew or should
have known of the violative condition or practice, but there are considerable
mitigating circumstances.” Id. Moderate negligence is when “[t]he
operator knew or should have known of the violative condition or practice, but
there are mitigating circumstances.” Id. High negligence exists when “[t]he
operator knew or should have known of the violative condition or practice, and
there are no mitigating circumstances.” Id. See also Brody
Mining, LLC, 33 FMSHRC 1329 (2011) (ALJ). Finally, the operator is guilty
of reckless disregard where it “displayed conduct which exhibits the absence of
the slightest degree of care.” 30 C.F.R. § 100.3(d).

The
Commission has defined an unwarrantable failure as aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC
1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as
“reckless disregard”, “intentional misconduct”, “indifference”, or a “serious
lack of reasonable care”. Emery Mining Corp., 9 FMSHRC at 2003; see also
Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995).

The
Commission has recognized that whether conduct is “aggravated” in the context
of unwarrantable failure is determined by considering all the facts and
circumstances of each case to determine if any aggravating factors exist, or if
any mitigating circumstances exist. Aggravating factors include the length of
time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator's efforts in abating the violative
condition, whether the violation was obvious or posed a high degree of danger,
and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar
violations are relevant to an unwarrantable failure determination to the extent
that they serve to put an operator on notice that greater efforts are necessary
for compliance with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261
(Aug. 1992).

The
Commission has made clear that it is necessary for a judge to consider all
relevant factors, rather than relying on one to the exclusion of others. Windsor
Coal Co., 21 FMSHRC at 1001; San Juan Coal Co., 29 FMSHRC
125, 129-36 (Mar. 2007) (remanding unwarrantable determination for further analysis
and findings when judge failed to analyze all factors). While an administrative
law judge may determine, in his or her discretion, that some factors are not
relevant, or may determine that some factors are much less important than other
factors under the circumstances, all of the factors must be taken into
consideration and at least noted by the judge. IO Coal Company, 31
FMSHRC 1346, 1351(Dec. 2009).

I
rely on the state of the law as discussed herein in considering each issue
addressed below and whether the Orders which are alleged to be S&S and
unwarrantable failure to meet the above noted criteria.

II. DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

A.    WEVA 2011-1028 –
Order No. 8098519

On December 1,
2010, Inspector Bransom Williams (“Williams”) wrote Order No. 8098519 (Exhibit
GX-2) citing a 104(g)(1) violation of 30 C.F.R. § 48.6(b) stating:

Eight miners[3]
working in the mine have not received experienced miner training prior to
beginning work duties inside the mine. The operator is hereby ordered to
withdraw the eight miners from the mine until they have received the required
training. The Federal Mine Safety and Health Act of 1977 declares that an
untrained miner is a hazard to himself and to others.

The Order was
designated as S&S and highly likely to cause injuries that could reasonably
be expected to be fatal for eight miners. Id. The inspector designated
the operator’s negligence as high, and a penalty of $14,743.00 was assessed. Id.
The Order was terminated the next day and the miners were allowed to return to
work when they all received the required experienced miner training. Id.

The
order was issued pursuant to section 104(g)(1) of the Mine Act, which states
that an inspector who finds “a miner who has not received the requisite safety
training … shall issue an order under this section which declares such miner to
be a hazard to himself and to others, and requiring that such miner be
immediately withdrawn from … the mine, and be prohibited from entering such
mine until … such miner has received the training required by … the Act.”      30
U.S.C. § 814.

30
C.F.R. §48.6 entitled “Experienced miner training” applies, in pertinent part,
to experienced miners newly employed by the operator. Section (b) states: “Experienced
miners must complete the training prescribed in this section before
beginning work duties….” (emphasis supplied). The section continues by
specifying in some detail all the areas that must be covered in this training. In
brief, the training must include: (1) Introduction to work environment; (2)
Mandatory health and safety standards; (3) Authority and responsibility of
supervisors and miners’ representatives; (4) Entering and leaving the mine and
communications; (5) Mine map, escapeways, emergency evacuation and barricading;
(6) Roof or ground control and ventilation plans; (7) Hazard recognition; (8)
Prevention of accidents; (9) Emergency medical problems; (10) Health; (11)
Health and safety aspects of the tasks to which the experienced miner is
assigned; (12) Self-rescue and respiratory devices, including hands-on
training; and (13) Such other courses required by the District Manager based on
circumstances and conditions at the mine.

At
the time of the hearing, Inspector Williams has approximately sixteen years of
experience in the mining industry, where he began as a mechanic in 1998. Tr.

15. He began working for MSHA as an underground inspector in 2007. Tr. 15-16. On
    December 1, 2010, Williams was at Respondent’s No. 2 Mine for a general
    inspection. Tr. 16. As part of this inspection, he regularly inspects training
    records. Tr. 18. The day prior, Williams had issued a citation after witnessing
    a miner exit the mine without a multi-gas detector. Tr. 34.  This further
    prompted Williams to check the training records at the Mine. According to
    Respondent’s records, Mine Foreman Charley Allen (“Allen”) had conducted the
    training for the eight newly hired, but experienced miners. Tr. 17-18; Exhibit
    GX-2.

When
he was inspecting the training records, Williams did not know that Allen was
not a certified instructor; however, when he contacted Educational Field
Services, he was informed of this fact. Tr. 18, 35. Williams wrote Order No.
8098519 for a violation of 30 C.F.R. § 48.6(b) because he knew from previous
contact that the miners in question were experienced rather than new to the
industry. Tr. 16, 20; Exhibit GX-2. However, given that the miners were newly
hired at this mine, his concern was whether the miners had received training in
all the various areas required by the standard, as the amount of information is
quite broad in scope. According to Williams, the training covers, inter alia,
methane issues, the location of self-contained self-rescuers (“SCSRs”),[4]
the location of escapeways, roof condition issues and information about
ventilation controls. Tr. 21-23. In addition, he was concerned that the records
reflected that the training that had been provided was conducted in a single
day, which he asserted would be “impossible.” Tr. 19-20. Williams testified
that, when Allen was questioned, he admitted that he did not follow the
approved training plan; rather, he only “went over hazards…at the mine”. Tr.

21. Finally, Williams testified that if the required newly hired experienced
    training was conducted and the MSHA form completed correctly, only Section 2 of
    the form would be completed and there would be no writing in Section 5 of the
    form. Tr. 68.

Williams
designated the Order as S&S and highly likely to result in fatal injuries
to eight miners. Tr. 24-25. He testified that the Act states that an untrained
miner is a hazard to himself as well as other miners. Tr. 24. If a fire were
caused by methane gas, miners could suffer from smoke inhalation. Tr. 24. In
the past, Williams testified that untrained miners have gotten lost because
they did not know where the escapeways were located. Tr. 24, 59. Further, they
have been injured because they did not know where SCSR caches were located or
how to operate them. Tr. 24, 60. Williams found that the operator was highly
negligent because it did not follow its required training plan even though certified
trainers were available. Tr. 27. In fact, one such trainer, a mine foreman, worked
at the mine adjacent to the No. 2 Mine. Tr. 27. Williams further stated that
Allen’s belief that he was a certified instructor was not a mitigating factor
because Allen should have known that he was not a certified trainer. Tr. 62.

At
the time of the hearing, Charles Allen, Sr., has more than thirty-seven years
in the mining industry, thirty-five years of which has been spent in
underground coal mines. Tr. 88. During this time, he has held various jobs and
has been a certified foreman since 1982. Tr. 88. At the time of the violation,
he was the mine foreman; however, he resigned his position a few days before
the hearing. Tr. 88-89. As mine foreman, his duties included examining the
areas prior to the start of the shift and assisting in production. Tr. 89. Respondent
operates another mine in very close proximity to the instant mine, and Mine
Superintendent Ratliff oversaw both of these mines and had more authority than
Allen. Tr. 90-91.

Allen
testified that he realized that newly employed, experienced miner training had
not been completed for the eight miners listed in the instant citation after
the citation had been issued for the multi-gas detector on the previous day. Tr.

100. At that point, he made the decision to train the men “the best [he] could”
     by instructing the miners on rescuers, lifelines, rescue chambers, intakes,
     primary escapeways, secondary escapeways, returns and the general layout of the
     mine. Tr. 100-101. Compared to other mines in the area, he stated that the
     ventilation plan, roof control plan and rescue procedures were basically
     similar; and, they were adopted from the plans developed by the former owner of
     the Mine. Tr. 97-99. Allen did admit that although similar, the location of
     SCSR caches and escapeways would obviously vary depending upon the mine. Tr.
     126-127. He also acknowledged that conditions in a mine can vary greatly
     depending upon the mining progression, the weather conditions, the particular
     miners working the shift, the materials being used and the equipment being
     used. Tr. 129. Although he testified that he did not know of any methane ever
     being found, there was a section of the mine that was sealed off and the air
     and gases could only be measured at the seals. Tr. 123, 136.

Allen
also testified that because he had not yet been certified, he was confused as
to the procedure for filling out the training forms. Tr. 101-102, 107. (Allen
subsequently became certified in March 2011. Tr. 92.) Although Allen had only
given task training, he also checked the box for experienced miner training
because the miners were experienced. Tr. 101. Allen maintained throughout his
testimony that he believed that he was doing the right thing. Tr. 102. At the time,
he testified that he did not know that the instructor had to be certified to
conduct the eight hour refresher training. Tr. 103. James Rose (“Rose”) was the
miner who was cited for not carrying a multi-gas detector. Tr. 79-80. He opined
that Allen’s training was probably the best that he had ever received because
of Allen’s strict adherence to safety standards. Tr. 87.

Although
there were eight newly employed, experienced miners at the Mine, Allen
testified that on November 30, he trained the four day shift miners and that the
night shift mine foreman, Woodrow Williamson (“Williamson”), who was a
certified instructor, trained the other four night shift miners. Tr. 38-39, 104-105.
However, Allen confirmed that there were roughly ten miners working on each
shift. Tr. 125-126. Allen stated that he had completed the 5000-23 form[5]
before, but it had only been for task and equipment training. Tr. 109.

Respondent
submitted various training records for the eight employees into evidence. However,
none of these records demonstrate that Respondent fulfilled its obligation to
train newly hired experienced miners. It is evident from looking at most of these
exhibits, namely Exhibit RX-1 (James Rose), Exhibit RX-3 (Charles Allen, Jr.) Exhibit
RX-5 (Jesse Milam), Exhibit RX-6 (Earl Click), Exhibit RX-7 (Ricky Sizemore), Exhibit
RX-9 (Carl Johnson) and Exhibit RX-10 (Garnie Estep), that the training all
occurred on November 30, 2010, and that the training given on that date only concerned
mine gases and the use of multi-gas detectors.[6]
This training was given as a result of the citation written on that date when
miner Rose was observed exiting the mine without a multi-gas detector. Respondent
also introduced into evidence three additional training forms for Rose (Exhibit
RX-2), Allen Jr. (Exhibit RX-4) and Turner (Exhibit RX-8) to show that these
miners received training. However these forms show that the miners received
training in specific tasks on June 15, 2010 (Rose and Allen Jr) and on February
24, 2010 (Turner). And for two of the three miners this training was given by
Allen Sr. who was not a certified instructor at the time and the record for
Turner is training at another mine. Tr. 44. The record does not reflect any
further training received by the eight named miners nor does it reflect when
the eight miners were hired. Needless to say, Respondent has not demonstrated,
either by documentation or by testimony, that the eight named miners ever
received the newly employed, experienced miner training required by 30 C.F.R.
§48.6(b).

I
find that there has very clearly been a violation of 30 C.F.R. §48.6(b). To be
in compliance, Respondent must be able to provide training forms showing that
each of the newly employed, experienced miners received the required training. Not
only could these not be provided, but the documentation provided totally fails
to demonstrate the type of training required by30 C.F.R. §48.6(b). The training
that was given was either in response to a citation issued for a miner not
having a multi-gas detector on November 30, 2010, or for specific tasks. Further,
most training was undertaken by an individual who was not an MSHA certified
trainer. Allen stated at hearing that while he knew that he was not certified,
he believed that he was doing the right thing and since the incident has become
certified.

I
also find that this violation was S&S in nature. A violation of a mandatory
standard has clearly been established. Having untrained miners in a particular
mine, regardless of their experience in other mines, is a safety hazard to the
untrained miners as well as those miners working with them. This significantly
contributes to numerous hazardous situations that could be created by the
untrained miners. None of these men had ever been previously employed at the Respondent’s
Mine. As no two mines are exactly alike, each must have its own emergency
plans, roof and rib control plans and ventilation plans, among a variety of
other things which each miner working within the mine must have knowledge of. Over
the course of time, the absence of training could lead to injury or death to
each of the miners working with the one or few who remains untrained. In light
of this, I find that Order No. 8098519 is S&S. See e.g. Boart Longyear
Company, 35 FMSHRC 3680, 3699-3700 (Oct. 2013) (ALJ Barbour); Lehigh
Southwest Cement, 33 FMSHRC 3229, 3243 (Dec. 2011) (ALJ Paez); Cannelton
Industries, Incorporated, 24 FMSHRC 840, 853(Aug. 2002) (ALJ Barbour). Section
2(a) of the Mine Act states that “the first priority and concern of all in the
coal…industry must be the health and safety of its most precious resource – the
miner.” To not properly train miners, whether new or experienced, clearly runs
afoul of this basic principle.

Respondent
contends that the gravity should be reduced to a non S & S violation. By
requiring an untrained miner to be immediately withdrawn on grounds that the
miner constitutes “a hazard to himself and to others,” section 104(g) of the
Act essentially defines the failure to properly train a miner as a significant
and substantial violation; the untrained miner constitutes a hazard
sufficiently likely to contribute to a serious injury to himself or others as
to require his immediate removal. Boart Longyear, 35 FMSHRC at 3699-3700.
I find that Respondent’s argument that the involved miners were experienced in
mining hazards from working at other similar mines in the same area to be ungrounded
and fallacious since every mine has its own specific conditions of which miners
must be aware. The best way to ensure that accidents resulting from
insufficient training do not occur is to ensure that all new hires receive the
MSHA-required training. Accordingly, the S&S designation for the Order is
affirmed.

I
further agree with the Secretary that this violation was the result of
Respondent’s high negligence. Allen admitted at hearing that he was not
certified at the time of the violation, and in fact, was confused as to what
was required. Instead of finding out what was required or calling in Williamson
to ensure that the training was properly conducted, Allen had the men sign
their forms and continue working. Further, there is absolutely no evidence that
the eight affected miners ever received the required newly employed,
experienced miner training contemplated by 30 C.F.R. §48.6(b). As such, I find
that no mitigating circumstances exist and affirm the Secretary’s high
negligence designation. In light of the foregoing, Order No. 8098519 and the assessed
penalty of $14,743.00 are AFFIRMED.  

B.     WEVA 2012-481

1.      Order No. 8136396

On
October 12, 2011, Inspector Matilda Collins (“Collins”) wrote Order No. 8136396
(Exhibit GX-4) citing a Section 104(d)(2) violation of 30 C.F.R. §75.220(a)
stating:

The operator is failing to follow the
approved roof control plan. As specified on page 7 paragraph 4 the lengthwise
spacing shall not exceed 4 feet. The following entries have not been support [sic]
adequately: entry #4 – 1 cut; entry #5 – 2 cuts; entry #6 – 2 cuts; entry #7 –
2 cuts and entry #8 – 2 cuts, all exceeds the lengthwise bolt spacing of 4 feet
in distance.

This is an unwarrantable failure to
comply with a mandatory standard. The operator or his agent engaged in
aggravating conduct constituting more than ordinary negligence by not
recognizing the hazard of the roof supports not being installed according to
the approved roof control plan.

This
Order was designated as S&S and reasonably likely to result in fatal
injuries to eight miners. Id. The inspector designated the operator’s
negligence as high, and a penalty of $7,774.00 was assessed. Id. The
Order was terminated on October 14, 2011 when affected area was spot bolted. Id.

30
C.F.R. §75.220(a) entitled “Roof control plan” states, in pertinent part, “Each
mine operator shall develop and follow a roof control plan, approved by the
District Manager, that is suitable to the prevailing geological conditions, and
the mining system to be used at the mine.” 30 C.F.R. §75.220(a)(1).

Collins
graduated from Virginia Polytechnic Institute and State University in 1980 with
a degree in Mining Engineering. Tr. 143. She worked at a mine owned by her
father where she roof bolted and assisted with plan submissions. Tr. 144-145. After
twenty years out of the industry, she began working for MSHA in 2008 as a coal
mine inspector. Tr. 146. She is currently the supervisor of Roof Control and
Impalements. Tr. 147.

On
October 12, 2011, Collins was at the Mine for an E01 regular inspection. Tr.

147. While conducting a danger run, she noticed that the roof bolts were
     irregularly spaced without a pattern. Tr. 149. According to Respondent’s roof
     control plan, roof bolts were to be inserted in a pattern of five feet wide and
     four feet deep. Tr. 149,151; Exhibit GX-12. While she and Section Boss Josh
     Collis did not measure every single bolt in the entries, they found several
     bolts that were not only inserted without a pattern but also exceeded the
     maximum spacing in the roof control plan. Tr. 189-191. Her notes taken at the
     time of the inspection, at Exhibit GX-5, indicate that the bolt spacing was
     five feet by five feet (instead of the plan required four feet by five feet) in
     entries 4 and 5. Her notes also reflect problems in entries 6, 7 and 8, where
     instead of the required four foot spacing, the spacing was 52-60 inches. This
     irregular pattern existed in Entries 4-8. Tr. 152-153. The pattern was so
     irregular that Collins could not determine the number of rows that existed. Tr.
     205.

Inspector
Collins explained that the purpose of roof bolting in a sandstone top[7]
was to form a beam that distributes the weight of the roof onto the pillars,
preventing collapse. Tr. 157-158. Stress and water could cause the roof to
collapse, and the irregular pattern could contribute to this by creating an
insufficient beam. Tr. 158. If the roof collapsed on the miners working below,
Collins testified that it would be fatal considering that a cubic foot of
sandstone weighs approximately 165 pounds. Tr. 163. She believed that all eight
miners working at the face would be affected because the crews often congregate
to receive instructions. Tr. 159. She designated Order No. 8136396 as high
negligence because she believed it was extensive and had lasted for about nine
cuts, which constituted more than one shift. Tr. 159, 222. Collins testified
that the obvious lack of pattern should have been noticed during a preshift or
onshift examination. Tr. 159-160. The Order was terminated by spot bolting to
bring the spacing into compliance. Tr. 164.

Respondent
presented two witnesses to testify about this Order: Jeff Bennett and Charles Allen
Sr. It did not call Josh Collis, the evening shift section foreman who
accompanied the inspector, or offer any reason why he was not presented.

Jeff
Bennett (“Bennett”) has been a miner for more than six years and testified for
Respondent at the hearing. Tr. 265. After the issuance of the Order on the
evening shift, Bennett was assigned on the following day shift to measure the
bolts indicated. Tr. 272. He admitted that there were a few bolts beyond the
required measurements, but not many according to the method he used for
measuring. Tr. 273. He assumed a grid and measured distances according to this
artificial line, rather than measuring on an angle. Tr. 273, 285. This is how
he was trained to measure by Respondent. Tr. 286. He testified that the bolts
along the rib line were “pretty straight” but “the ones that were wide –
longwise was mainly in the middle.” Tr. 274. He further admitted that the first
row of bolts in front of the face should be straight, and a pattern should be
discernable even if misaligned. Tr. 291-292.

Allen
testified that he conducted the preshift and onshift examinations after the
bolting was complete. Tr. 304. While he did not measure every single bolt, the
bolts that were measured were within the range of compliance. Tr. 306. He
further explained that fully grouted resin bolts are used in the Mine. Tr. 307.
The bolts bond layers of the strata together. Tr. 211. If cracks exist, the resin
seeps in, fills them, and keeps everything bonded. Tr. 211, 307-308. If glue
does not seep out of the bolt hole, it indicates that the resin has seeped into
a crack. Tr. 309. In those situations, Allen testified that a test hole will be
drilled adjacent to the original hole to investigate the top. Tr. 309.

As
noted above Respondent did not call Josh Collis, the foreman who accompanied
the inspector and helped her measure the distances between the irregularly
spaced bolts. It is well established that if a witness has knowledge of a
material issue and is within a party’s control, an inference may be drawn that
the witness’ testimony would have been adverse to the party failing to call
him. 75B Am Jur 2d § 1315; Wilson v. Merrell Dow Pharmaceuticals, Inc.,
893 F.2d 1149, 1150 (10th Cir. 1990). The Commission has long
approved of its judges utilizing this rule. Eagle Energy, Inc., 23
FMSHRC 1107, 1120 (2001). In the instant case, the Respondent failed to call
the witness who made the measurements with the inspector and who therefore was
in the best position to support or contradict the inspector’s testimony,
despite that witness being in the Respondent’s control. Consequently I draw the
inference that if Collis had testified, his testimony would have been unfavorable
to Respondent and would have supported inspector Collins’ testimony that the
roof bolts were not in the pattern or spacing required by the roof control
plan.

I
find that Respondent violated 30 C.F.R. § 75.220(a) when it failed to bolt
within four feet of the last bolt as contemplated and approved in its roof
control plan. Collins credibly testified that most of the bolts that she and
Collis measured were beyond the requirement, some by as much as 12 inches. Respondent
essentially argues that a violation did not exist according to its own
measurements. The inherent flaw in its method, however, is that it measured to
where the bolt should be, not to where it was. If this were an accepted method
of measurement, it would create the absurd result of operators essentially
bolting anywhere and measuring to where the bolt should be to maintain
compliance. It is also significant that no witness testified that the bolting met
the pattern established by the roof control plan.

I
further conclude that the violation is S&S. Although Collins and Bennett
did not see any adverse roof or rib conditions at that time, such conditions
could reasonably occur over the course of continued mining as weight was
insufficiently distributed over long distances. This is especially the case
where the deficient spacing of the bolts -- leaving longer bolt spacing than
required by the roof control plan -- is in the middle of the entry and not
along the ribs, as testified to by Respondent witness Bennett. Tr. 274. At
hearing, the testimony established that some areas of the mine do have roof
problems. Tr. 260. The irregular bolting contributes to the hazard of a roof
collapse. Given that this is a working section of the mine, it is reasonably
likely that miners would be in the area. Collins testified that the miners also
congregate in the entries to receive directions for the day. If a portion of
the roof were to collapse, miners could suffer fatal injuries from being
crushed or struck by falling rock. Based on the evidence and testimony at
hearing, I affirm the Secretary’s S&S designation.

I
further find that the violation was the result of Respondent’s high negligence.
Based on Collins’ testimony that she immediately noticed it, the violation was
obvious. Further, it existed in five entries. Although Respondent offers
evidence that a single-headed roof bolter makes it difficult to produce
straight lines, its roof control plan was specifically created with the use of
a single headed bolter in mind. Tr. 258. Moreover, the entries cited in the
Order were the only entries affected by the unusual bolt pattern. Clearly,
Respondent did not have trouble following the roof control plan in other areas
of the mine. In light of the foregoing, Order No. 8136396 and its assessed
penalty of $7,774.00 are AFFIRMED.

2.      Order No.
8136397

Also
on October 12, 2011, Collins wrote Order No. 8136397 (Exhibit GX-6) citing a
Section 104(d)(2) violation of 30 C.F.R. §75.211(c) stating:

The operator has created a hazardous
condition when the boom hole was put in for the belt drive. The operator failed
to recognize the hazardous roof condition and correct the condition before
persons were assigned to work in this area. The boom hole which is located in
the adjacent intersection from spad #637 in #6 entry has a transition of up to
36 inches, consisting of fractured sandstone with open spaces of up to 2 inches
between the layers. The operator used 42 inch resin bolts to hold the top. This
left only 6 inches to be installed in the solid roof.

This is an unwarrantable failure to
comply with a mandatory standard. The operator or this agent engaged in
aggravating conduct constituting more than ordinary negligence by not
recognizing the hazards of transition areas where persons work or travel.

The
Order was designated as S&S and reasonably likely to result in fatal
injuries to six miners. Id. The inspector designated the operator’s
negligence as high, and a penalty of $5,645.00 was assessed. Id. The
Order was terminated on October 14, 2012, when the area was rebolted with 72
inch super bolts. Id.

30
C.F.R. §75.211(c) entitled “Roof testing and scaling” provides:

When a hazardous roof, face, or rib
condition is detected, the condition shall be corrected before there is any
other work or travel in the affected area. If the affected area is left
unattended, each entrance to the area shall be posted with a readily visible
warning, or a physical barrier shall be installed to impede travel into the
area.

A
boom hole in a mine is a hole shot out with explosives to create a hole in the
roof, which provides more room for an operator to install a new belt line. Tr.

166. It is dome shaped at the top where it has been blasted out and is square
     at the bottom where it intersects the roof. Tr. 172. When Collins arrived at
     the location of the boom hole in question, she testified that a crew of five
     men[8]
     was working under it, and that one side of the hole had multiple fractures in
     the brow[9],
     the largest of which was approximately two inches wide and at least two inches
     deep. Tr. 167-168, 178. She further testified that the brow was separating from
     the permanent roof in one approach. Tr. 167-168, 238. It was supported by 42
     inch roof bolts, but Collins was concerned that the existence of the rock only
     allowed for about six inches of the bolt to be inserted into the permanent
     roof. Tr. 171; Exhibit GX-6. Although Respondent had scoped[10]
     the area around the crack, it could not view the specific location and that was
     what concerned Collins. Tr. 246. In the end, Collins was not convinced that the
     roof was adequately supported. Tr. 248-249. In her opinion, she believed that
     the only effective way to secure the area was to install six to eight foot
     super bolts through the cracks or fractures in the rock so that the rock would
     be better attached to the roof. Tr. 176.

Collins’
concern was that if the rock fell, miners could be crushed. Tr. 174, 255. Further,
she feared that the loose rock would make equipment operators nervous,
resulting in other accidents. Tr. 174, 257. In her opinion, any of these
scenarios could result in a fatality. Tr. 174. The danger did not end with the
belt installation either. Tr. 180. Belt men would have to maintain it, and
miners would have to clean around it directly under the brow. Tr. 180, 238-239.
Collins felt sure that the brow would eventually fall, and the water that
existed in the mine would exacerbate the separation. Tr. 181. She believed that
Respondent knew about the condition because additional roof bolts has been
inserted and, in her opinion, loose top would be the only reason to do this. Tr.
173-174, 237.

Bennett
testified for Respondent and stated that he helped bolt the boom hole about two
weeks before the citation was written and at that time of the citation was
being trained by Respondent as an underground mine foreman. Tr. 265, 267, 282. Bennett
testified that timbers are set prior to blasting. Tr. 267-268. After blasting,
the timbers are removed and the roof is bolted prior to cleaning. Tr. 267-268. After
cleaning, extra bolts are set. Tr. 267. According to Bennett, a few sixty inch
bolts were used, and he did notice at least one crack in the roof, but he could
not judge how big the crack was.[11]
Tr. 268-269, 281. Further, because some rock was hanging that could not be
scaled, he inserted extra bolts in the area of the crack. Tr. 283. All of the
bolts used in all four entrances around the boom hole were fully grouted, resin
glue bolts. Tr. 269. The glue could be seen in the gaps of the brow. Tr. 270. Bennett
testified that he believed the boom hole was in good condition when work was
finished on it and at the time of the citation two weeks later. He stressed that
eight foot super bolts were only inserted to abate the Order. Tr. 282, 287-288,
290, 325. He was assisted by scoop operator James Rose, who largely confirmed
all of Bennett’s observations. Tr. 297-299.

I
find that the condition violated 30 C.F.R. § 75.211(c). After blasting the boom
hole, a large rock was left hanging from the roof. Instead of finding a way to
scale it, Respondent instead put up extra roof bolts. According to the
regulation, Respondent either should have corrected the condition prior to
allowing miners to work in the area or barricaded the area and posted warning
signs to prevent access to the area. Because Respondent’s attempt at putting up
roof bolts did not fully correct the condition and allowed miners to work under
the roof, I find that a violation existed.

Moreover,
I find that the violation was S&S. As noted, Respondent did not fully
comply with the cited regulation. Inspector Collins credibly testified that on
one approach to the boom hole she observed that the brow was separating from
the roof and she also observed multiple fractures in the brow, the largest of
which was two inches wide and at least two inches deep. Respondent witness
Bennett was uncertain as to large the crack was. These cracks or separations
from the roof contributed to the hazard of a rock fall, which would be reasonably
like to cause a serious if not fatal injury to any employees working under the
boom hole. This is an area where miners work for extended periods of time
performing cleaning and maintenance tasks. There is also water in the mine
which could exacerbate the possibility of a roof collapse. The boom hole area
should have been bolted with the longer super bolts to assure that the brow or
area around the boom hole was stable and did not show visible cracks or
separations.

Although
the Secretary asserts that the Respondent’s negligence is high, I find that its
negligence is low. Thus, the record reveals that Respondent inserted additional
bolts immediately after blasting to ensure that the rock separating from the
roof did occur. Bennett testified that a few sixty inch bolts were used, but
most of the bolts were forty-two inches. He also testified that extra bolts
were used because to insure that the area was safe. Respondent also “scoped”
the area to see if it could determine the extent of the crack or separation. Collins
also testified that Respondent would only have inserted extra bolts if loose
top existed. Respondent realized that the rock could not be scaled down by the
measures it took, so it took some additional steps in an effort to prevent
injury. Therefore, I find that there are mitigating circumstances and reduce
the negligence to low. I also find that the violation was not an unwarrantable
failure under Section 104(d) of the Act as Respondent’s conduct was not
“aggravated” or reckless. Respondent did recognize the hazard and took steps to
remedy the danger. Although the inspector believed that further steps (longer
super bolts) were necessary to abate the violation, the record shows that
Respondent did act.

Based
on the above, Order No. 8136397 is MODIFIED from a 104(d) order to a
104(a) S&S, low negligence citation. I assess a penalty of $1,500.00 for
this violation.   

3.      WEVA 2012-559

1.      Order No.
8143332

On
September 26, 2012, Inspector John Stone (“Stone”) wrote Order No. 8143332
(Exhibit GX-8) citing a Section 104(d)(2) violation of 30 C.F.R. §75.360(a)(1)
stating:

A preshift exam was not performed in the
intake airway were [sic] miners were working at the mine. Miners were
found rock dusting and operating equipment from the section (life chamber
location four breaks outby the LOCC) to the surface in this airway. These
miners were not certified and the certified foreman at the mine had not
traveled this area. The [sic] is an unwarrantable failure to comply with a
mandatory standard.

Standard 75.36(a)(1) was cited 1 time in
two years at mine 4606843 (1 to the operator, 0 to a contractor).

The
Order was designated as S&S and reasonably likely to result in permanently
disabling injuries to three miners. Id. The inspector designated the
operator’s negligence as high, and a penalty of $4,000.00 was assessed. Id.
The Order was terminated the next day when all members of management were
instructed on the importance of conducting examinations where miners would be
working. Id.

30
C.F.R. §75.360(a)(1) entitled “Preshift examination at fixed intervals”
provides:

Except as provided in paragraph (a)(2)
of this section, a certified person designated by the operator must make a
preshift examination within 3 hours preceding the beginning of any 8-hour interval
during which any person is scheduled to work underground. No person other than
certified examiners may enter or remain in any underground area unless a
preshift examination has been completed for the established 8-hour interval. The
operator must establish 8-hour intervals of time subject to the required
preshift examinations.

Inspector
Stone has worked in the mining industry for more than thirty years and has done
various jobs in underground mines and cleaning plants throughout that time. Tr.

333. He began with MSHA in March 2007, and his current position is a CMI, or
     electrical specialist, as well as a collateral Conference Litigation
     Representative. Tr. 334. He was at the Mine on September 26, 2011, for a
     regular E01 inspection. Tr. 334-335. While entering the Mine with Foreman Mike
     Turner, Stone noticed a scoop operator exiting the intake. Tr. 335, 337. Stone
     did not recall seeing anything in the preshift examination book concerning the
     intake, so he asked foreman Allen about the situation and Allen admitted that a
     preshift examination had not been conducted in the intake. Tr. 335-336, 390,
     492, Exhibit 9. Stone observed other miners rock dusting in the intake. Tr.
334. One of the miners from the intake explained to Stone that they were
     directed to continue doing what had been started either that day or a few days
     prior, and there was rock dust located in the intake, not at the belt line. Tr.
     338, 379. Therefore, Stone concluded that management knew that the men would be
     in that location. Tr. 338.

Stone
testified that the purpose of a preshift examination is to check an area of a
mine for hazards, proper air quality and quantity, and proper air flow anywhere
that miners travel or are scheduled to work. Tr. 339, 367, 371. If miners need
to work outside of the initial area, a supplemental exam can be conducted. Tr.

369. In the absence of the examinations, miners could be exposed “to all sorts
     of different hazards.” Tr. 340. Therefore, Stone presumed that the three miners
     in the intake at the time of issuance would be exposed to permanently disabling
     injuries. Tr. 340, 342. He further designated the Order as a violation of
     Section 104(d) of the Act and high negligence because there were no mitigating
     circumstances. Tr. 343. Stone believed that management, specifically Allen,
     knew what work was being done in the intake and knew that the miners would
     continue rock dusting once they finished their work at the belt. Tr. 390-391.

Allen
testified that one miner usually works on the belt, but three had been assigned
on this particular day because Allen was concerned that Respondent would be
cited for accumulations if one miner got behind on the work. Tr. 484-485. If
the miners had been needed on a different section, Allen stated that he would
have conducted a supplemental examination. Tr. 487. However, he testified that
the miners proceeded to the intake without management’s knowledge, and he was
not aware that there was rock dust in the intake. Tr. 489, 494, 515-516. Further,
the scoop should have come out of the mine through the secondary escapeway
rather than the intake. Tr. 489. Because a violation was issued, Allen talked
to the men “harshly” concerning their behavior. Tr. 494-495.

I
find that Respondent violated 30 C.F.R. § 75.360(a)(1) by allowing miners to
work in an area of the mine where no preshift examination had been conducted. Stone
found three miners working and the scoop operator exiting the intake, which
Respondent admits had not been examined prior to the start of the shift. It
argues that the men were not scheduled to work in the area and took it upon
themselves to enter the intake to rock dust. However, Stone credibly testified
that the miners’ instructions were to continue the work that they had been
doing in the prior days. This would have included rock dusting the intake. Further,
it is telling that no rock dust was located at the belt. When the men were
finished cleaning the belt, they would have logically progressed to an area of
the Mine where they were previously working and contained the materials that
were needed. If Respondent wanted the men to clean the belt and wait for
further instruction, it should have made this clear. In light of this, I find
that Respondent violated 30 C.F.R. § 75.360(a)(1) when it did not conduct a
preshift examination in the intake.  

I
further find that the violation was S&S. The requirement of a preshift
examination “is of fundamental importance in assuring a safe working
environment underground.” Buck Creek Coal, 17 FMSHRC 8, 15 (Jan. 1995). Preshift
examinations are intended to “prevent hazardous conditions from developing.”  Enlow
Fork Mining Company, 19 FMSHRC 5, 15 (Jan. 1997). Failing to conduct the
preshift examination contributes to an assortment of hazards ranging from the
reasonable likelihood of minor injuries to death. In its brief, Respondent
argues that the intake is not a normal working area and, therefore, is not
required to be examined daily if work is not scheduled; rather, it is subject
to a weekly examination. RPHB, page 14. This exacerbates the violation in that
it increases the likelihood that the intake had not been examined for several
shifts. The miners working on that day could have walked into any number of
hazards. This could have reasonably led to the serious injury or death of any
of the three miners working there.

Finally,
I find that the violation was the result of Respondent’s high negligence. Respondent
argues that no miners were scheduled to work in the intake and, therefore,
management had no knowledge that they would take matters into their own hands
and work in an unexamined area of the mine. However, I find that Respondent did
schedule miners to work in the intake. The miners’ instructions were to
“continue what work they had started either the day or couple shifts before in
the intake airway.” Tr. 338. The miners continued to tell Stone that they were
to rock dust and clean the belt and finish rock dusting the intake. Tr. 338. Regardless
of whether Respondent specifically meant for the workers to work in the intake,
it gave them directions in such a way as to suggest that this was part of their
tasks. Moreover, Respondent supplied the necessary materials in the intake, not
on the belt. That rock dust was not to arrive until later in the day. Tr.
515-516. While Allen testified that he was unaware that there was rock dust in
the intake, I find this unlikely because work was being conducted in the
intake, at the very least, a few days prior. Given the evidence and testimony
at hearing, I find that Respondent knew the miners would eventually progress to
the intake and, nonetheless failed to conduct a preshift examination. I affirm
the Secretary’s high negligence designation. In light of all of the foregoing,
Order No. 8143332 and its assessed penalty of $4,000.00 are AFFIRMED.                

2.      Order No.
8143333[12]

Also
on September 26, 2012, Inspector Stone wrote Order No. 8143333 (Exhibit GX-10) citing
a Section 104(d)(2) violation of 30 C.F.R. §75.364(a) stating:

There was no weekly exam performed at
the #1 and #2 seals located in the return airway at the mine. When these two
seals were checked there were no dates, times or initials on the date board at
these locations to indicate that an exam had been performed in the last 7 days.
These two seals (out of nine in this set) were examined with the weekly
examiner. Upon arriving at the seal locations the examiner was instructed by
the authorized representative not to remove DTI’s[13]
before inspection. The examiner removed DTI’s on the date board placed at these
two seals before it could be determined that a weekly examination had been
performed. No other DTI’s were found and evidence indicated than [sic]
no weekly exam was performed. This is an unwarrantable failure to comply with a
mandatory standard.

This
Order was designated S&S and reasonably likely to result in permanently
disabling injuries to one miner. Id. The inspector designated the
operator’s negligence as high, and a penalty of $4,000.00 was assessed. Id.
The Order was terminated the same day when an examination was performed and
DTIs were placed on the date boards. Id. Management was further placed
on notice that increased enforcement would result for future violations. Id.

30
C.F.R. §75.364(a) entitled “Weekly examination,” and subtitled “Worked-out
areas,” states:

At least every 7
days, a certified person shall examine unsealed worked-out areas where no
pillars have been recovered by traveling to the area of deepest penetration;
measuring methane and oxygen concentrations and air quantities and making tests
to determine if the area is moving in the proper direction in the area. The
locations of measurement points where tests and measurements will be performed
shall be in included in the mine ventilation plan and shall be adequate in
number and location to assure ventilation and air quality in the area. Air
quantity measurements shall also be made where the air enters and leaves the
worked-out area. An alternative method of evaluating the ventilation in the
area may be approved in the ventilation plan.

During the same
regular inspection, Stone and foreman Mike Turner traveled to two seals, which
were remotely located from the others and were the most outby seals at the Mine.[14]
Tr. 343. The purpose of these two seals was to seal the newer section of the
Mine from an older, worked-out section. Tr. 345. These two seals were accessed
by crawling several hundred feet in muddy wet conditions to the seals; crawling
was necessary as the top of the Mine at that point is only 26-28 inches with
bad roof making access difficult. Tr. 347, Exhibit GX-11. As they approached
the first seal, Turner, who was ahead of Stone, used his glove and hand to wipe
the DTIs off the chalk board located near the seal before Stone could read it. Tr.
344, 355. At that point, Stone told Turner that the DTIs needed to be confirmed
and when they got to the second seal, Turner should not remove the dates.[15]
Tr. 344, 358, Exhibit GX-11. However, when they arrived at the second seal,
Turner again erased the DTIs. Tr. 344.  In Stone’s opinion, Turner’s erasures were
done to conceal evidence that the seals had not been examined in the last seven
days as required by the regulation. Tr. 344, Exhibit GX-11.

Stone
designated the Order as reasonably likely because the seals were constructed
from Omega blocks, similar to foam insulation.[16]
Tr. 353. Although operators will often add strength to the seals using plaster,
they can be penetrated by a pen or screwdriver. Tr. 353-354. Because dangerous
gases accumulate behind the seals, Stone was concerned that these gases would
migrate into the working section if the seal was damaged. Tr. 360. This could
lead to an ignition or explosion, or it could expose miners to low oxygen
levels. Tr. 360-361. Because the area is only subject to a weekly examination,
the only miner affected would be the examiner. Tr. 361.

Stone
designated Respondent’s negligence as high because Turner erased the second DTI
board after being instructed not to erase the DTIs as the dates needed to be
confirmed. Tr. 344, 358. Turner never asked Stone to repeat or clarify what had
been said. Tr. 359. He further testified that Turner was behaving in a nervous
manner, and the area itself did not appear to be well traveled. Tr. 344, 350. Although
the path was well worn, there was nothing to suggest that the requirement was
actually being met, such as fresh boot or knee pad marks in the return. Tr.
350-351. Although the examinations were recorded in the books, Stone discounted
them based on Turner’s conduct and because there was no other evidence that the
examination had, in fact, been conducted. Tr. 451-452, 456; Exhibits. RX-13-15.

To
defend this Order, Respondent presented the testimony of foreman Allen and miner
Bennett. Mr. Turner did not testify. Bennett testified that on September 14 and
21 he accompanied foreman Allen to examine the #1 and #2 seals as part of his
training as a foreman. Tr. 477, 479, 481. Bennett stated that he observed Allen
putting the date, time and his initials on the date board and that Allen
instructed him on how to examine seals. Tr. 478. He said further that Allen
told him it was a felony to sign the examination forms if the examination had
not been performed. Tr. 479, 482. Finally, he testified that he did not pay any
attention to the DTIs that were on the date board. Tr. 480-481.

In
his testimony, Allen confirmed that he and foreman trainee Bennett had gone to
the #1 and #2 seals on September 14 and 21 to examine the seals and that he
recorded the DTIs on those dates. Tr.499-504. Allen testified that after the
Order was written, he asked Mike Turner why he erased the DTIs. Turner’s only
reply was “he couldn’t hear good.” Tr. 510-511. On cross-examination, Allen
stated that during his deposition about the Order, when he questioned Turner,
Turner admitted erasing the DTIs and that Stone had told him not to erase the
date board. Allen also admitted that during the deposition he did not say
anything about Turner’s poor hearing. Tr. 523.

I
find that Respondent violated 30 C.F.R. § 75.364(a) as set forth in the Order
inasmuch as Respondent could not establish it examined Seals #1 and #2. This
was because foreman Turner erased the DTIs on the date board before the
inspector could verify their presence, despite being admonished by the
inspector in a timely manner to not erase the DTIs at the second seal. I do not
credit Allen’s assertion that Turner told him he did not hear well or was hard
of hearing.[17]
Further, Allen testified that Turner admitted to erasing the boards and had no
further explanation for doing so. Tr. 511, 523. It is also significant that
Respondent failed to call Turner as a witness since he was the person charged
with erasing the DTIs. As with Josh Collis, noted about, I draw an adverse
inference that had Turner been called to testify his testimony would have been
unfavorable to Respondent. Since Turner was a certified examiner and foreman,
he should have known that failing to keep records at the seals was a violation.
Further, I agree with Stone’s credible testimony that there would have been no
reason to erase the boards unless Respondent was attempting to hide the fact
that the examinations had not been conducted. Turner’s unexplained conduct
certainly supports this conclusion. Likewise, Turner’s nervous behavior and
failure to ask for clarification are telling and support Stone’s testimony. Respondent
argues that regardless of the erasure of the DTI boards, the examination books
clearly show that the seals were examined daily and, therefore, weekly. Allen
and Bennett testified that they had, in fact, examined the seals on September
14 and 21, 2011 and put the DTIs on the date board. Tr. 477-478, 480-481.[18]
If this were the case, it begs the question of why Turner would erase the
boards. Further, the examination book records (Respondent Exhibits 13, 14 and
15) are only a record of the examination, and do not establish by themselves
that the examination was in fact conducted. In light of all the facts and
evidence, I find that Respondent violated 30 C.F.R. § 75.364(a).  

I
also find that this violation is S&S. Respondent’s conduct here, through
its agent Turner, prevented the inspector from determining if the required
examinations of Seals #1 and #2 had been completed. If there was not compliance
with the regulation, this would have contributed to the likelihood of a serious
injury. Because the seals are constructed of Omega blocks, they are more easily
damaged or penetrated over time. Although MSHA does not so require, the State
of West Virginia has labeled them high risk and requires them to be examined
daily. This is particularly important because the worked-out areas behind the
seals can contain dangerous gases, as well as low quality air. Any damage to
the seals contributes to the hazard of noxious or flammable gases entering the
working section. If this were to occur, at the very least, the examiner risks
serious injury or death resulting from an ignition, an explosion or breathing
poor quality air. As such, I conclude that the violation is S&S.

I
further find that the violation was the result of Respondent’s high negligence.
Stone testified that the area was quiet, Turner was crawling in close proximity
to him and Stone speaks loudly due to some loss of hearing. Tr. 357-358. Therefore,
I conclude that Turner heard Stone and deleted the DTIs in direct defiance of
the instructions that he had been given. In this regard, Stone’s testimony that
he instructed Turner not to erase the second date board is uncontradicted, and
therefore fully supported by the record. Moreover, Turner was a certified
foreman who should have known the examination requirements. Because Respondent
cannot present any mitigating evidence, I affirm the Secretary’s high negligence
designation. Based on the foregoing, Order No. 8143333 is AFFIRMED and a
$4,000.00 penalty is assessed.[19]

III. THE
APPROPRIATE CIVIL PENALTIES

It
is well established that Section 110(i) of the Act grants to the Commission and
its judges the authority to assess all civil penalties provided under the Act. 30
U.S.C. § 820(i). It further directs that:

[i]n assessing civil monetary penalties,
the Commission shall consider the operator’s history of previous violations,
the appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.

30
U.S.C. § 820(i).

The Secretary submitted the operator’s
history of past violations with no objection from Respondent. Exhibit GX-1. There
is no dispute concerning the appropriateness of the penalty to the size of the
business. Further, the parties have stipulated to the fact that the penalties
as assessed will not affect Respondent’s ability to continue in business and
Respondent’s good faith in abating the violations. As stated above, the gravity
for each violation except Order No. 8136397 was affirmed as issued. Therefore,
a reduction in penalty was warranted for the reduction in gravity as to that
Order. The same logic applies to the reduction in Respondent’s negligence in Order
No. 8136397. Based on the six civil penalty factors, I find that a total
penalty of $32,017.00 is warranted as follows:

Order No.
8098519 -- $14,743.00

Order No.
8136396 -- $7,774.00

Citation No. 8136397
-- $1,500.00

Order No.
8143332 -- $4,000.00

Order No.
8143333 --- $4,000.00

IV. ORDER

It
is ORDERED that Order Nos.8098519, 8136396, 8143332 and 8143333 are AFFIRMED.
It is further ORDERED that Order No. 8136397 is MODIFIED from a
104(d) order to a 104(a) citation, and that the operator’s negligence be
reduced from high to low. Respondent is ORDERED to pay the Secretary of
Labor the sum of $32.017.00 within 30 days of the date of this Decision.[20]
Upon receipt of payment, this case is hereby DISMISSED.

/s/ Janet G.
Harner

Janet
G. Harner

Administrative
Law Judge

Distribution:

Michele
A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, Cesar E.
Chavez Memorial Building, 1244 Speer Blvd., Denver, CO 80204

James
F. Bowman, Litigation Representative, Sally Ann Coal Company, Inc., P.O. Box
99, Midway, WV 25878

[1] Except for
Stipulation 13, the Stipulations consist of the stipulations contained in the
parties pre-hearing statements submitted prior to the hearing. Their substance
is not at issue in this proceeding.

[2] Hereinafter,
the Secretary’s exhibits will be designated as GX followed by a number; and
Respondent’s exhibits will be designated as RX followed by a number. Pages of
the official hearing transcript are designated “Tr.” followed by the
appropriate page reference(s). Respondent’s Post-Hearing Brief is designated as
RPHB followed by the page number.

[3] The eight
miners were Carl Johnson, Rick Sizemore, Earl Click, Charles Allen Jr., James
Rose, Jesse Milam, Garnie Estep and Mike Turner.

[4]
SCSRs provide oxygen for miners in the event that escape is necessary. Tr.
22-23.

[5] This is the
MSHA form filled out when training is complete.

[6] Allen Sr.
signed the MSHA training forms for Rose, Allen Jr., Milam and Click while
Williamson signed the forms for Sizemore, Johnson and Estep.

[7] When compared
to other forms of top, sandstone is considered to be good top. Tr. 211.

[8] Collins admitted
that although she listed six miners as being affected, all six of them could
not fit in the boom hole at the same time. Tr. 257.

[9] There is some
dispute as to whether this was actually a brow. Allen testified that it was
not; rather, it was simply a rock that could not be scaled down. Tr. 318. Therefore,
the miners bolted it. Tr. 317-318. For the purpose of this decision, the distinction
is not important.

[10] A scope is
entered into a hole so that any cracks or abnormalities in the layers of the
roof can be viewed on a TV monitor. Tr. 247. The scope showed that there were
two hairline cracks. Tr. 247-248.

[11] Bennett
testified that when a crack is hit, the roof bolt will “jump” when being
pushed. Tr. 269. If, by contrast, the top is only soft, the roof bolt will move
more quickly than it does in regular top. Tr. 269.

[12] On November 12,
2013, I granted the Secretary’s Motion to amend this Order and to plead in the alternative
on the basis that the facts also support a violation of mandatory standard 30
C.F.R. §75.364(g), which provides that “The person making the weekly
examination shall certify by initials , date, and the time that the examination
was made.”

[13] DTI’s refers to
dates, time and initials. This information provides inspectors with a history
of operator examinations.

[14] Stone testified
that the other seals were inspected without issue. Tr. 346.

[15] Stone testified
that he believes he told Turner twice not to remove the DTIs. Tr. 344, 358.

[16] The State of
West Virginia considers these seals to be high risk and requires operators to
inspect them daily. Tr. 350. Although Stone was unclear of the exact
circumstances, he testified that this is required due to an explosion in a
worked-out area in which the Omega seals did not hold. Tr. 354, 497, 501.

[17] In this regard
I note that the hard of hearing “defense” was not raised during the Secretary’s
deposition of Allen.

[18] Respondent
apparently argues that there was no violation here since foreman Allen had
correctly examined the two seals on September 21, so that the next weekly
examination was not due until September 28. This argument fails as the
violation here is the concealment by erasure of all DTIs on the date of
inspection (September 26).

[19] As noted, the
Secretary alleged an additional and/or alternative violation of 30 C.F.R. §
73.364(g) with respect to Turner’s actions in erasing the DTIs on the date
board. Although the argument is made in the Secretary’s post-hearing brief that
this was an additional violation, the Secretary does not urge any additional
remedial relief. It would appear from the evidence adduced at the hearing would
support a violation of § 73.364(g) apart from the violation of §73.364(a) found
herein. However, inasmuch as no additional remedy is sought and the violation
is essentially encompassed within the violation in the original Order, I
decline to make a specific finding in this regard.

[20] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390