Coal River Mining, LLC

Plain-English summary

Coal River Mining could not reach an evaluation point because oxygen was low, yet it allowed miners to enter the Fork Creek No. 1 Mine without completing the required weekly examination. Judge Kenneth Andrews found that none of the attempted checks included all required methane, oxygen, air-quantity, and air-direction measurements. He held the violation S&S because oxygen had fallen as low as 17.9 percent and continued conditions could expose a miner to serious or fatal oxygen-deficient air. The Judge also found high negligence and unwarrantable failure because mine officials knew the examination was incomplete, had been warned of the deadline, and did not promptly correct the water-related ventilation problem. The order and proposed $34,652 penalty were affirmed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.364(f)(2)
• Outcome: The S&S, high-negligence, unwarrantable-failure order was affirmed with a $34,652 penalty.
• Key point: Finding a hazard near an evaluation point does not complete a weekly examination, and miners cannot enter until every required measurement is taken and recorded.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER

875
GREENTREE ROAD, SUITE 290

PITTSBURGH , PA
15220

TELEPHONE: (412)
920-2682

FAX: (412) 928-8689

May 8, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner, 

v.

COAL RIVER MINING, LLC, 

Respondent. 

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CIVIL PENALTY PROCEEDING

Docket No. WEVA 2011-520

A.C. No. 46-08763-237287-01

Mine: Fork Creek No. 1

AMENDED DECISION

Appearances:�������������� F. Thomas Rubenstein, Esq.,
Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310, Morgantown, WV
for Respondent

Lucy C. Chiu, Esq., Office of the
Regional Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 22nd Floor
West, Arlington, VA for the Secretary

Before: ���������������������� Judge Andrews

STATEMENT
OF THE CASE

This civil penalty proceeding is
pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (2000) (the �Mine Act� or
�Act�).� This matter concerns Order No.
8109413 issued under Section 104(d)(1) of the Act and served on Coal River
Mining, LLC (� Coal
River � or �Respondent�)
for failure to complete an adequate weekly examination.� A hearing was held in Charleston , West Virginia ,
on October 11, 2011 at which the parties presented testimony and documentary
evidence.� After the hearing, the parties
submitted Post Hearing Briefs, Reply Briefs, and Joint Stipulations.

JOINT
STIPULATIONS

1.     
����� Coal River
Mining, LLC was and is an �operator� as defined in � 3 of the Federal Mine Safety and Health Act of 1977,
as amended (hereinafter �the Mine Act�), ������ 30
U.S.C. � 803(d), a coal or other mine at which the citation and order at issue
in this proceeding were issued.

2.     
����� Coal River
Mining, LLC is the owner of Fork Creek No. 1 mine.

3.     
����� Operations
of Coal River Mining, LLC at the Fork Creek No. 1 mine are subject to the jurisdiction of the Mine Act.

4.     
����� This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its
designated Administrative Law Judge � pursuant
to �� 105 and 113 of the Mine Act.

5.     
����� For purposes
of 30 U.S.C. � 820(i), for the year 2010, Coal River Mining, LLC, Fork Creek No. 1 Mine produced 662,319 tons
of coal, and its employees worked ���������� a
total of 439,228 hours.� Under 30 C.F.R.
� 100.3, Table I � Size of Coal Mine, a coal
mine producing 662,319 tons of coal would be assessed 12 out of a possible15 penalty points.

6.     
����� The products
of the mine at which the citation and order at issue in this proceeding were issued entered commerce, or
the operation or products thereof affected
commerce, within the meaning and scope of Section 4 of the Act.

7.     
����� Operations
of Coal River Mining, LLC at the coal mine at issue are subject to the jurisdiction of the Act.

8.     
����� Inspector
John S. Crawford was acting in his official capacity and as an authorized representative of the Secretary
of Labor when Citation No. 8109413 �� was
issued.

9.     
����� A true copy
of Citation No. 8109413 was served on Coal River Mining, LLC, or � its agent as required by the Mine Act.

10.  ����� A total proposed penalty of $34,652 in
these proceedings will not affect Coal �River
Mining, LLC�s ability to continue in business.

11.  ����� At all times relevant to these
proceedings, Coal River Mining, LLC is and was a limited liability company.

Submitted with the joint stipulations, and also of record,
is a chart listing both the Secretary�s and Respondent�s exhibits with
descriptions of the contents of each.

THE
REGULATION

����������� Pertinent
to the matter at issue here is 30 CFR � 75.364 entitled �Weekly Examinations.�� It explains that:

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 air is moving in the proper direction in the area. The locations of
measurement points where tests and measurements will be performed shall be
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 of the area may be
approved in the ventilation plan.

30 C.F.R. � 75.364(a)(1).

����������� As cited in
the original Order No. 8109413, 30 C.F.R. � 75.364(f)(2) states, �Except for
certified persons required to make examinations, no one shall enter any
underground area of the mine if a weekly examination has not been completed
within the previous 7 days.�

SUMMARY
OF THE TESTIMONY

A.
Testimony of Inspector John Crawford

Inspector John S. Crawford
(�Crawford�) has been a coal mine inspector for the Mine Safety and Health
Administration (�MSHA�) for four years. Tr. 30.�
He graduated from high school in 1972 and college in 1988, and worked in
coal mines for approximately thirty years, earning his foreman�s certification
in 1980. Tr. 30-31. As part of this mining work, Crawford has ten years of
experience conducting weekly examinations in mines. Tr. 31.

In his testimony, Crawford
explained the ventilation plan, highlighting the following requirements set
forth in the plan: (1) that at least two safe travelways are maintained to each
evaluation point; (2) that accumulations of water will be controlled so as not
to affect the bleeder evaluation system; and (3) that at least every seven days
methane, oxygen, air flow and air quantity measurements shall be taken at
bleeder evaluation points. Tr. 38-43. This testimony mirrors
the regulatory language of 30 C.F.R. � 75.364(a)(1). Crawford asserted on
cross-examination that if you do not get good air quantity readings each week,
it is difficult to develop a trend so that you can understand what is going on
in a particular panel. Tr. 158. And, the monitors carried while conducting an
examination are important because human senses are unable to detect low oxygen
or the presence of methane. Tr. 41-42.

Crawford testified that the
operator�s examination showed that air quantity went down on April 30, 2010 at
the 34B and 34C evaluation points (�EP�). Tr. 141. In addition, Crawford
explained that the weekly examination log for May 7, 2010 indicated that air
was barely flowing out of EP 34B, EP 34C, and another evaluation point labeled
A. Tr. 140. According to Crawford, if air quantity begins decreasing, there is
usually a problem, and to most inspectors, it would indicate a body of water.
Tr. 142-143.�

����������� On May 14,
2010, Crawford accompanied an examiner to the area where EP 34B and EP 34C are
located.� Tr. 58.� Before they reached the evaluation points,
the alarms worn by the examiner and him went off and they had to back up until
they received a �good reading.�� Tr. 58.� He then issued Citation No. 8109409 due to low
oxygen levels in the bleeder entries and at EP 34C.� Tr. 131; Exs. G-4-3; D.� As a courtesy, Crawford suggested the use of
more intake air and reminded Scott Brown, Larry Blackburn, Manasses Hensley,
and Gilbert Sada that the low oxygen prevented an examination of EP 34C, and
that the oxygen must be up and the weekly examination completed by midnight
that night [1] in
order to allow people into the mine. Tr. 69-73, 88, 95, 140. ��Further, Crawford explained to the miners
that if the examination could not be completed, they would not be permitted to
send people into the mine. Tr. 150.� Per
Crawford�s testimony, no one disagreed with him regarding EP 34C and each man
understood that an examination of EP 34C would be due. Tr. 72, 73, 88, 95.� Crawford left under the impression that the
low oxygen would be fixed that evening, May 14, 2010. Tr. 81, 82.

����������� Crawford
returned to the mine on May 17, 2010, to focus on dust collection, and neither
he nor the other members of the dust inspection team were warned that low
oxygen was still present. Tr. 84, 199-200.�
Although he did not necessarily recall the conversation, Crawford�s
notes revealed that Larry Blackburn informed him that someone had been to EP 34C.� Tr. 199; Ex. I.

����������� On May 18,
2010, Crawford stated, however, that the record books did not indicate an
examination of EP 34C for the week ending May 15, 2010 and, upon questioning
miners, found that none of them had examined the evaluation point.� Tr. 156, 202-203; Exs G-8; B. [2] � A conversation with Scott Brown (�Brown�)
revealed that the oxygen level was still not at or above 19.5% and that the
cause was a water impoundment [3]
blocking access to EP 34A-1, which, in turn, blocked air flow to EP 34C.� Tr. 87-91.�
Brown also indicated that the pumps were not working.� Tr. 99.�
Based on this, 104(d)(1) Order No. 8109413 was issued on May 18, 2010,
at 8:26 am by Crawford to Brown citing a violation of 30 CFR � 75.364(f)(2).� The Order states as follows:

Persons have been allowed to enter the
underground areas of this mine although the weekly examination has not been
completed within the previous 7 days.�
Low oxygen content prevented the exam of the EP 34 C area on 5/14/2010 and
the exam was due ������ before midnight on
5/15/2010.� These requirements were discussed
with the operator at the time of issuance of Citation No. 8109409 on 5/14/2010.� The operator has engaged in � aggravated conduct more than ordinary negligence
in allowing persons to enter the mine without a completed weekly examination
and was aware of the requirement.� This
exposes persons to hazards of low oxygen levels and other unfound or unreported
hazards.� Water has accumulated to the
point at EP 34 A1 that access is blocked and the examination cannot be
verified.

Exhibit G-6-4.

����������� The
inspector found that the violation was reasonably likely to result in injury
that could reasonably be expected to be fatal. �It was further designated as significant and substantial
(�S&S�), affecting all 48 persons working in the mine, and was the result
of high negligence on the part of the operator due to the fact that mine
management had disregarded plain instructions regarding the improvement of the
air quantity and the conducting of a weekly examination.� Tr. 95-97, 196-198.� Because the oxygen was still low and no
weekly examination had been conducted, Crawford evacuated the mine.� Tr. 92-93, 95-96.� The Secretary proposed a penalty of
$34,652.00.� The violation was abated
when, after four days, the decreased oxygen quantity was moved out of the panel
per a revision to the ventilation plan approved on May 20, 2010.� Tr. 136-137.�
The hazard at EP 34C remained until that time.� Tr. 136-137.

����������� On
August 11, 2010, the Order was modified to a 104(d)(1) citation.� Ex. G-6-4.

B. Testimony of Larry
Blackburn

����������� Larry
Blackburn (�Blackburn�) has been a Production Manager for three underground
mines owned by Respondent, including the Fork Creek No. 1 mine.� Tr. 210.�
Blackburn has more than thirty-eight years of experience in the mining
industry and currently has a West Virginia Foreman�s Certification.� Tr. 209.�
Blackburn testified that on May 14, 2010, four days prior to the
issuance of Order No. 8109413, he and Brown met up with Crawford as well as
Manasses Hensley (�Hensley�), who had found a low oxygen spot at one of the
bleeders at EP 34C. Tr. 211.

According to Blackburn, upon
discovering the point of low oxygen, Crawford asked Blackburn if he could add
additional ventilation to �sweep out� the low oxygen, and, in response, Blackburn went with Hensley to adjust the
regulators.� Tr. 215-216. �Blackburn further testified that he could not
say whether Crawford told him that another examination at EP 34C would be
required to be completed by midnight on that day, May 14. Tr. 217-218. �Blackburn explained that he thought the
examination that resulted in the detection of low oxygen earlier that day was
the weekly examination required in order to permit workers to re-enter the
mine. Tr. 218.� He stated that it was his
belief that another examination of 34C was not due until the following Friday,
May 21, 2010. Tr. 218.

With respect to water issues near
the area in which low oxygen was discovered, Blackburn testified that as of May
14, 2010, pumps were operating in the top end of the first bleeder, and prior
to that day, new discharge lines had been laid and a step-up transformer
purchased. Tr. 220-221.� In addition, a
new water line had been installed. Tr. 227.

Blackburn also stated in his
testimony that on May 14, he and Hensley inspected EP 34A-1, where the
above-referenced pumps were operating, as well as EP 37A, 37B, and 37C, which
were also tied to the ventilation of the grouping that included EP 34C. Tr.
228-231. Blackburn stated that he and Hensley
inspected the entire group of panels in the area related to this ventilation
system on that same day. Tr. 233.� After
May 14, the plan was to monitor the EPs and the pumps through the weekend
(which Brown did on Saturday and Blackburn did on Sunday) to ensure that the
pumps were still pumping and that the ventilation was improving, which Blackburn
claims was the case. Tr. 234.� Despite
his testimony that he checked the EPs and that the ventilation was improving, Blackburn could not recall the oxygen reading on his
Solaris spotter.� Tr. 235.� The day following his weekend visit to the
mine, on May 17, miners were permitted to enter the mine.

On cross-examination, Blackburn
explained that he did not recall the reading on that spotter because he did not
note it at the time and did not record his observations in the weekly
examination book. Tr. 247-248. �In
addition, Blackburn did not take a reading
with an anemometer at EP 34C, nor did he record an air quantity reading. Tr.

251. �Blackburn explained that he did not
     record his observations because he did not believe the examination was due for
     another week, but admitted that he �probably should have� made a note of the
     oxygen reading. Tr. 247-248.

Though Blackburn testified that he
thought EP 34C had been checked, he admitted on cross that he was not aware
that Hensley could not reach the EP due to low oxygen and instead only got as
near as fifty or seventy-five feet away. Tr. 249. �Blackburn admitted that he did not know if EP
34C was checked at any time after the incident on Friday, May 14, 2010. Tr.
252.

C. Testimony of Scott
Brown

Brown is a Superintendent at Coal
River�s Fork Creek No. 1 mine. Tr. 260. Brown graduated in 1987, received an
Associate�s Degree in Electronics, and has been working in coal mines since
1989. Tr. 261. He has held various positions within the mine and is now superintendent.
Tr. 262. Brown received his West Virginia Foreman�s Certification in 2001. Tr.
262.

Brown testified that he was
contacted on May 14, 2010, after Crawford accompanied Hensley on Hensley�s
weekly examination, during which they discovered low oxygen in the area of the
EP 34A, 34B, and 34C. �Tr. 263. �Brown was contacted because Crawford wanted to
pull out the miners in that area, which he subsequently did. �Tr. 263. �After fixing an airlock door that had been
knocked down, the miners were allowed to return to the area and to run coal in
the A section. �Tr. 264, 270. �Brown also testified that Crawford would not
let anyone go near the EP 34C because of the low oxygen. Tr. 264. �Brown went on to explain that even with the
damaged door, the air in that area was moving in the proper direction. Tr. 268.
He admitted that he never entered the area of EP 34C, but, to his knowledge,
there was still low oxygen there after the door was repaired. Tr. 270.

����������� Brown also
testified that Crawford did not inform him that an examination of EP 34C was
required by midnight on May 15, 2010. �Tr.

272. �Brown was under the impression that
     his responsibility relative to EP 34C was to take care of the low oxygen by
     adding more fresh air to the area, which was done by closing the regulator to
     put more air into the first bleeder to let it exit at the EP 34C. �Tr. 273.�
     This process began on May 14, 2010. Tr. 274.

����������� According
to Brown, the next examination at 34C was due on May 21, 2010, but he admitted
that Hensley keeps track of the weekly examination requirements in his capacity
as fire boss. �Tr. 274. �Brown explained that he did not discuss the
weekly examination of EP 34C with Hensley, but that on the evening of May 14,
Hensley shared with him the examination book, which read �could not exam due to
low oxygen� for the EP 34C. �Tr. 275-276.

Brown testified that on May 15,
2010, he returned to the mine and the area around the EP 34A, 34B, and 34C and
found that the oxygen level was improving, but had not reached 19.5%, stating
that when he neared 34C, his spotter went off. �Tr. 277-278. �However, he made no record of his
observations. �Tr. 280. �Reiterating that he did not believe the next
examination was required until the following Friday, May 21, 2010. Tr. 281.

Brown explained that on Monday, May
17, 2010, when work resumed at the mine, pre-shift and on-shift examination
were conducted and did not uncover issues with oxygen, methane, or carbon
monoxide and that the pumps at EP 34A-1 were monitored.� Tr. 283.�
Brown continued that on May 18, 2010, Crawford asked him if an
examination of EP 34C had been conducted, and when Brown said that they
couldn�t get to it but that they go near the corner, Crawford threatened that
everyone would have to be pulled out of the mine if they could not get to the
actual EP. �Tr. 287.

Brown also explained that the
withdrawal order was issued that day, May 18, 2010, at 8:26 am and that mine
foreman Gilbert Saba checked the oxygen at EP 34C at 9:02 am and verified that
it was above 19.5%.� Brown also testified
that the time elapsed between the issuance of the withdrawal order and the
verification of the oxygen level was not enough to have improved a low oxygen
condition if one had existed.� Tr.
288-289.�

D. Testimony of
Manasses Hensley

����������� Hensley is
Coal River�s Mine Examiner at the Fork Creek No. 1 Mine. Tr. 311. Hensley is a
high school graduate with thirty-eight years of coal mining experience and a
long personal history with mining. �Tr.

309. �Hensley received his West Virginia
     Foreman�s Certification in 1976 and has maintained it ever since. �Tr. 310-11. �Testifying that he traveled with MSHA Inspector
     Crawford on May 14, 2010 while making one of his weekly examinations, Hensley
     explained that it takes five days to examine the entire mine, so a particular area
     is inspected on each of the five working days. �Tr. 312. �On May 14, he was examining the area of the
     mine known as the ABCD split. Tr. 313.

����������� In
reference to the events of May 14, 2010, Hensley explained that he traveled
with Crawford up to EP 34A, and as they continued on toward EP 34C, the alarm
on one of the detectors went off at the mouth of that evaluation point. �Tr. 314-315. �Hensley testified that though the alarm went
off, he proceeded toward the checkpoint of EP 34C, during which time his oxygen
reading was 17.9%. �Tr. 316. �At that point, Crawford and Hensley withdrew
back out through the door, discovering that one of the doors had been torn out.
�Tr. 317. �Upon this discovery, Hensley stated that
Crawford told him to contact Brown and withdraw the men in the mine, which
Hensley proceeded to do. �Tr. 317-18. �Following this action, they reinstalled,
plastered and sealed the doors to make the repair. Tr. 317-18.

According to Hensley, after they
repaired the door, Crawford had to leave, but on leaving told Hensley he would
have until 12:00 am to finish the weekly examination. �Tr. 319. �Hensley testified that Crawford never
explicitly stated that they would need to re-examine EP 34C, and for this
reason Hensley took his earlier examination as the required examination. �Tr. 320. However, on cross-examination,
Hensley testified that he could not recall how close to the exact evaluation
point at 34C he was able to reach, and that he had not taken a methane or air quantity
reading near the 34C evaluation point. �Tr.
333-335.

Hensley affirmed that it is his
responsibility to keep track of the examination requirements for this mine, and
that when an inspector travels with him during his examination he consults with
them on what he writes into the log book. �Tr. 324-25. �Hensley recalled that on May 14, 2010,
Crawford told him to write for EP 34C that they could not conduct an
examination at that point. �Tr. 324-25. �Hensley testified repeatedly that despite what
he wrote in the log book, he believed his next examination of EP 34C was not
due until the following Friday, May 21, 2010. �Tr. 330.

E. Testimony of Kenny
Workman

Kenny Workman (�Workman�) is an
Outby Foreman at Coal River and has been working in mines since 1992. �Tr. 342. �Workman received his West Virginia Foreman�s
Certification in 2008, at which point he was allowed to conduct examinations. �Tr. 343. �On May 14, 2010, Workman monitored and
examined the pumps at EP 34A to ensure that water was not gaining in that area.
�Tr. 345-346. �Workman testified that on that day, May 14, he
wore waders and waded up to within fifteen or twenty feet of EP 34C to examine
the pumps. �Tr. 347-348. �Because he could tell that Hensley had not
made it that far, Workman explained that he conducted a weekly examination
while checking the pumps, but on cross-examination admitted that he did not
record air quantity readings as part of this examination. �Tr. 353, 363.

CONTENTIONS
OF THE PARTIES

����������� Respondent argues that on May
14, 2010, an examination of EP 34C was properly conducted pursuant to 30 C.F.R.
� 75.364(f)(2) because Hensley, Blackburn and
Crawford obtained the required information and properly recorded the observed
hazardous condition, low oxygen, and there is no ALJ or Commission precedent
that identification of hazardous conditions invalidates the examination.� Respondent
further contends that subsequent examinations were conducted on May 15, 2010
and May 16, 2010, and since all appropriate measures were taken by mine
personnel adjusting ventilation controls to abate the condition, it was
improper for Crawford to not provide additional time for abatement.� According to
Respondent, at worst, the Respondent�s actions constitute a minor
record-keeping violation.� Respondent also argues that the
Crawford did not direct or advise mine management that the weekly examination
of EP 34C had to be completed by midnight on May 15, 2010.� In addition, Respondent claims that Citation
No. 8109413 (the �Citation�) does not rise to the level of S&S because
there were no ventilation problems within the bleeder system and, also, due to
a lack of likely exposure to the low oxygen. Finally,
Respondent contends that due to extensive mitigating circumstances and a lack
of aggravated conduct, the citation does not constitute an unwarrantable
failure and the proposed penalty is inappropriate due to incorrectly designated
gravity and negligence.

����������� The
Secretary argues that no weekly examination at EP 34C had been conducted for
the week ending May 15, 2010, as was required under 30 C.F.R. � 75.364(f)(2),
even though Respondent was reminded to do so prior to letting anyone into the
mine by Crawford.� The Secretary contends
that persons were allowed in the mine on Saturday, Sunday, Monday and Tuesday
even though the weekly examination was not complete.� Further, the Secretary claims that
Respondent�s violation of the weekly examination requirement was properly
designated as S&S because it exposed miners to serious harm from low oxygen
levels and unreliable methane levels near the EP 34C. In addition, the
Secretary argues that failure to complete the required weekly examination is
presumptively S&S because it is a prophylactic standard designed to detect
and correct potential unknown hazards and, therefore, the Mathies test does not apply.�
The Secretary further argues that allowing post violation evidence to
rebut the S&S presumption would eviscerate the prophylactic purpose of the
weekly examination and such evidence is not determinative of the condition that
existed when the weekly examination should have been completed.� The Secretary likewise contends that
Respondent�s negligence with respect to its violation of 30 C.F.R.
�75.364(f)(2) does amount to unwarrantable failure because the violative condition
was extensive, existed for a significant length of time, posed a high degree of
danger, and the order could have been written as reckless disregard.

BRIEF OVERVIEW OF
EXAMINATION SCHEME

MSHA is taking an increasingly
proactive approach to mine health and safety by imposing examination
requirements for underground coal mines. �The examinations required by 30 CFR Part 75
are designed to protect miners from the dynamic conditions in underground coal
mines by monitoring for and correcting unsafe conditions before and during
shifts. 30 C.F. R. � 75.360; 30 C.F.R. � 75.362. �Additionally, a weekly examination is required
for less frequently accessed areas of the mine as additional protection for
miners. 30 C.F.R. � 75.364.� Without
these examinations, miners are vulnerable to potentially unsafe conditions and
may be unaware of the hazards nearby until it is too late to prevent an
accident.

The examinations required for
underground coal mines include preshift, on-shift, and weekly examinations. 30
C.F.R. �� 75.360, 75.362, 75.364.� These
examinations are designed to create a multi-layer, prophylactic approach to the
identification and correction of hazardous or unsafe conditions in the mine. See 75 FR 81165, �Examinations of Work
Areas in Underground Coal Mines for Violations of Mandatory Health or Safety
Standards,� December 27, 2010.� The
preshift examination helps to ensure that any hazardous or unsafe condition that
has manifested since the last examination can be abated before anyone enters
the mine.� Id. [4] � At least one on-shift examination must be
conducted following the preshift examination, and more may be conducted if
necessary to ensure the safety of the miners. 30 CFR � 75.362. [5]

In addition to the preshift and
on-shift examinations, a weekly examination must be conducted in the less-traveled
areas of the mine.� 30 CFR � 75.364.� The weekly examination must be conducted at
least every seven days unless no one enters any underground area. 30 CFR �
75.364(f)(2).� If at any time during a
preshift, on-shift, or weekly examination a hazardous condition is observed, a
conspicuous DANGER sign must be posted and the condition must be corrected
immediately, or everyone is to be withdrawn.�
30 CFR � 75.363(a).

The weekly examinations must also
include examination for violations of mandatory health and safety standards
that could result in hazardous conditions while, until recently, the preshift
and on-shift examinations did not. [6] It
is particularly important to note that hazardous conditions, when found, must
be corrected immediately. 30 CFR ��75.363(a),
75.364(d) (emphasis added).

����������� Weekly
examinations serve different purposes than preshift and on-shift examinations.� While the preshift and on-shift examinations
are focused on identifying and correcting conditions that are potentially
hazardous to miners in those areas of the mine most accessed, the weekly
examination supplements these examinations by requiring examiners to assess not
only hazards, but also mandatory health or safety standard violations, in areas
of the mine that are not as frequently accessed. Preshift or on-shift
examinations, then, are not an adequate substitute for the weekly examination
because they focus on different areas of the mine.

ANALYSIS
AND CONCLUSIONS

A. Validity of Citation No. 8109413

����������� In meeting the
requirements of 30 C.F.R. � 75.364, Respondent must measure and record four
criteria at each evaluation point on a weekly basis.� First, it must measure the methane
level.� Second, it must measure the level
of oxygen saturation.� Third, it must
measure the air quantity flowing at the EP and, fourth, it must test to ensure
that air is moving in the proper direction according to the ventilation
plan.� See 30 C.F.R. � 75.364.� This
four-step examination serves an important function in the protection of miners
from the buildup of hazardous conditions in less-traveled parts of the mine since
methane could accumulate in those areas and result in an explosion if not
detected and corrected.� If these
requirements are not met for each EP in the ventilation plan every seven days,
30 C.F.R. � 75.364(f)(2) prevents the entrance of miners into the mine.

����������� In
examining the facts, circumstances and issues raised at hearing, the
undersigned lends credibility to Crawford over the witnesses of
Respondent.� Although Crawford only has
four years of experience as an inspector, he has over thirty years of
experience in the mining industry, including ten years of experience conducting
weekly examinations.� Tr. 30, 31.� Further, his testimony at hearing was clear,
consistent and uncontroverted.

����������� Respondent�s
witnesses, on the other hand, were not as credible.� Each witness stuck to the same rehearsed story
about completion of the weekly examination at EP 34C even when the facts
surrounding the story completely contradicted the testimony.� First, although Brown testified that Crawford
did not advise the operator that the weekly examination had to be conducted by
midnight on May 15, 2010, Hensley specifically admitted that he was warned by
Crawford that the weekly examination had to be conducted by this time.� Tr. 272, 320.�
Second, while Blackburn , Hensley and
Workman all testified that the weekly examination was conducted, each admitted
that, during his individual examination, one or more of the four required tests had not been performed.� Tr. 251, 333-335, 363.� Finally, while Hensley states that a weekly
examination was conducted, he admitted at hearing that Crawford specifically
stated that an examination still had to be conducted.� Tr. 319, 320.�
For all of these reasons, the undersigned finds Inspector Crawford�s
testimony to be more credible.

����������� Based
on all the testimony and evidence presented at hearing, the undersigned finds
that the Secretary has shown a violation of 30 C.F.R. � 75.364(f)(2) for
failure to conduct a weekly examination at EP 34C.� Although several of Respondent�s witnesses
claim that a weekly examination was conducted, each admits that his own
examination was lacking in at least one of the requirements.� Blackburn
testified that, although the plan was to monitor the EPs, he took no anemometer
or air quantity readings and, further, did not record anything in the record
book.� Tr.� 247, 248, 251.� Brown admitted that the Hensley brought the
record book to him with the notation that EP 34C �could not be examined due to
low oxygen.�� Tr. 275, 276.� Although Hensley claimed that he had
conducted the weekly examination, he admitted that he did not know how close he
was to the actual evaluation point and that he did not take methane or air
quantity measurements.� Tr. 333-335.� Finally, Workman admitted that he did not
record air quantity readings as part of the examination.� Tr. 353, 363.�
�Moreover, Hensley admitted that
Crawford expressly stated that he was to write that the examination of EP 34C
had not been conducted.� Tr. 324-325.� From this testimony, it is incredible that the
employees could have mistakenly believed that the next weekly examination did
not have to be conducted until the following week.� Respondent�s own testimony shows that no
examiner conducted an adequate examination as required; however, it still
allowed miners to repeatedly enter the mine in violation of the
regulation.� Therefore, the Secretary has
proven a violation of 30 C.F.R. � 75.364(f)(2).

����������� Respondent
argues that the weekly examination was conducted since the hazard of low oxygen
was discovered.� It contends that no ALJ
or Commission precedent states that the identification of a hazardous condition
invalidates the examination.� Aside from
the fact that the requirements for the examination where not even met,
Respondent misses the fact that a weekly examination cannot be conducted if the
evaluation point cannot even be reached.�
In Williams Brother Coal Co.,
the operator argued that there could be no violation of the weekly examination
requirements because the area was inaccessible.�
24 FMSHRC 110, 117 (Jan. 2002)(ALJ).�
However, the ALJ upheld the citation as issued.� Id. at 117.� Although this was an ALJ bench decision, it
illustrates that inaccessibility does not excuse the requirement of a weekly
examination.� Workman was the only
witness who testified to coming within twenty feet of EP 34C and, even so, he
did not complete the requirements of the regulation, rendering his examination
invalid. �Further, the argument that
discovery of the hazard in the vicinity of EP34C satisfied the weekly
examination requirements borders on the absurd.�
The weekly examination requires completion of all four measurements at
each EP in the ventilation plan every seven days, and the discovery of a hazard
to safety cannot satisfy that requirement.�
Also, upon discovery of a safety hazard, immediate correction is
required.� In the instant case,
Respondent failed both of these responsibilities.� There does not need to be Commission
precedent to understand what was required of the operator; the governing
regulations are not ambiguous.

����������� Second,
Respondent argues that since appropriate measures were being taken in adjusting
the ventilation controls to abate the condition, it was inappropriate for the
inspector not to provide additional time for abatement.� However, Respondent had until midnight on May
15, 2010 to conduct its examination as required by the regulation, i.e. when the examination was, in fact,
due.� It would be impossible for Crawford
to provide additional time for abatement when the violation had not yet
occurred at the time he provided specific guidance to mine personnel, including
Superintendent Brown.� Further, it was
the responsibility of mine officials to request additional time if, despite
immediate and concerted efforts to correct the hazard by properly ventilating
EP34C, they found that restoration of air flow could not be accomplished by
midnight on the 15th.� The
mine did not submit such a request prior to the order, on this record.� As such, this argument cannot be accepted.

����������� Third,
Respondent contends that the Order No. 8109413 was improperly issued because
Crawford did not direct or advise mine management that the weekly examination
had to be conducted by midnight on May 15, 2010.� This argument fails for two reasons.� First, it is Respondent�s responsibility to
know the regulations and to follow them accordingly.� At the hearing, Crawford emphasized that he
advised Respondent of the need to conduct the weekly examination as a courtesy.� Tr. 73(emphasis added).� To be sure, Respondent understood that it had
to conduct a weekly examination; it just did not do so properly.� This would indicate that either the examiners
had an inherent misunderstanding of the regulation and, thus, their job, or
that Respondent had provided inadequate or even improper training in the
conduct of the weekly examination, or both.� Second, Respondent�s argument flies in the
face of its own testimony.� Both
Blackburn and Hensley specifically testified that Crawford stated that the examination
of EP 34C would have to be completed by midnight on May 14 or 15, 2010 [7] ,
but, for some unknown reason, each still believed that the next weekly
examination was not due until May 21, 2010.�
Based on all the foregoing, the undersigned finds a violation of 30
C.F.R. � 75.364(f)(2).

����������� Finally,
Respondent argues that this is, at most, a minor record-keeping violation.� The testimony and evidence contradict this
assertion.� If Respondent had, in fact,
conducted the examination and simply forgot to record it in the examination
book, this could be considered a record-keeping violation.� However, Respondent�s witnesses each
testified that, although there was some type of examination in the vicinity of
EP 34C, each was deficient in the requirements found in 30 C.F.R. �
75.364.� Therefore, this argument
fails.�

B. S&S

����������� A 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).

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).

����������� The
undersigned finds that the violation at issue is S&S in nature.� The Secretary has proven that Respondent did
not conduct a full weekly examination within the seven days mandated by the
regulation.� During this time, the oxygen
levels had become dangerously low at EP 34C, due to a water impoundment near EP
34A-1.� Tr. 87-91.� This contributed to a hazard of a miner
walking into the area, being overcome by low oxygen and suffering fatal
injuries.� The oxygen levels reached
levels as low as 17.9%, of which we are aware.�
It has been established that over exposure to oxygen deficient air could
have adverse psychological affects and can result in serious, and potentially
fatal, injuries.� See generally, McElroy Coal Company, 30 FMSHRC 45, 64-65 (Jan.
2008)(ALJ); Jim Walter Resources, 29
FMSHRC 212, 218 (Mar. 2007)(ALJ).� As
such, the undersigned finds that the four prongs of the Mathies test have been met and the violation is S&S. ���

Oak
Grove Resources, LLC., involved a nearly identical situation where the
mine�s examination records indicated that a weekly examination could not be
conducted at certain locations in the mine due to high water.� Id. ,
2012 WL 894523 (Mar. 2012)(ALJ). Despite the inability to examine the entire
mine, and thus failure to conduct an adequate weekly examination, the mine
operator permitted eighty-three miners into the underground portions of the
mine to produce coal.� Id. � The ultimate finding was that the way in
which the water accumulation impacted the ventilation within the mine, along
with the volume of methane produced in the mine each day and the inability to
access the area for examination justify the elevation of the underlying
violation to the level of S&S.� Id. � The ALJ made further note that given the
Congressional statement of the importance of this requirement, it would not be
unreasonable to view a violation of this regulation as presumptively
S&S.� Id.

����������� Respondent argues that this
violation does not rise to the level of S&S because there were no
ventilation problems within the bleeder system and, also, due to a lack of
likely exposure to the low oxygen.� This
is unpersuasive in the fact that the weekly examination is the only way for an
operator to identify a problem in a worked-out area before it spreads to other
parts of the mine.� During the week in
which the weekly examination was to be conducted, the pumps had gone down in a
particular part of the mine, allowing water to accumulate impeding ventilation
to that part of the mine affecting EP34C.�
Under normal continued mining conditions, water could continue to
accumulate, making the lack of ventilation a
much more pervasive problem by spreading to working areas of the mine or by
allowing oxygen levels to drop low enough to cause rapid serious injury to
those entering that section for even a brief period of time.� As acknowledged by MSHA, a proactive
examination scheme is the only way to prevent conditions
from becoming worse.� For these reasons,
this argument cannot be accepted.

����������� The Secretary has also argued
that, given the prophylactic nature of the examination scheme, this violation
is presumptively S&S.� The
undersigned declines to find that this is the case.� The theory of presumptive S&S violation
was first considered in Consolidation
Coal Co., 8 FMSHRC 890 (June 1986).�
The Commission recognized that the facts and circumstances presented by
the Secretary in each of these cases involving respirable dust violations would
be essentially identical and that, once the Secretary proved overexposure, it
could be presumed that the violation was S&S.� Id. at
899.� The Commission also relied heavily
on the purpose and legislative history of the Act to reach this
conclusion.� Id.
at 895-897; See also Clayton�s Calcium,
Inc., 29 FMSHRC 230 (Mar. 2007)(ALJ)(The ALJ acknowledged this heavy
reliance on the legislative history and refused to apply a presumptive S&S
standard to other dust violations).

����������� As of this time, the
Commission and its ALJs have been more reluctant to expand the presumption of
S&S to examinations.� In Manalapan Mining Company, the Commission
found that, based on the facts argued by the Secretary, the presumption of an
S&S violation would actually produce absurd results because the presumption
raises the operator�s defense of producing evidence that no hazardous
conditions existed.� Id. ,
18 FMSHRC 1375, 1381 (Aug. 1996).� The
ALJ had, in fact, found that the violation was non-S&S because no hazardous
conditions had been found.� Id. � Chairman Jordan and Commissioner Marks made a
spirited argument that the presumption of S&S was appropriate given the
fact that the preshift examination
was the linchpin of the safety protections since it prevents unwary miners from
being sent into areas containing hazardous conditions and that Congress had
emphasized its importance.� Id.
at 1390 (emphasis added). [8] � However, this is a weekly examination and,
while it is an extremely important part of the over all examination scheme, the
legislative history, until recently, did not espouse quite the same importance
as the issues of preshift examinations or respirable dust exposure.� For the foregoing reasons, the undersigned
declines to find that the violation is presumptively S&S.

�

C. Negligence and Unwarrantable Failure to Comply with a Mandatory
Standard

����������� 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 violation condition or practice, and there are
no mitigating circumstances.�� Id. � See
also Brody Mining, LLC, 2011 WL 2745785 (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).

����������� By
its definition, an unwarrantable failure suggests more than ordinary
negligence.� All of the relevant facts
and circumstances of each case must be examined to determine if an actor�s
conduct is aggravated or whether mitigating circumstances exist. �Consol,
22 FMSHRC at 353 (Mar. 2000).� A judge
may also determine, in his discretion, that some factors are not relevant or
may determine that some factors are much less important than other factors
under the circumstances.� IO Coal Company, 31 FMSHRC 1346, 1351
(Dec. 2009). �

����������� The
Commission has recognized that whether conduct is �aggravated� in the context
of unwarrantable failure is determined by considering the facts and
circumstances of each case to determine if any aggravating or 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) (�Consol�); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds,
195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34
(Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Beth Energy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of
each case must be examined to determine if an actor's conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 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 997, 1001 (Sept. 1999); 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 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 at 1351.

����������� The
undersigned finds that the negligence attributable to the operator was
correctly designated as high, as well as an unwarrantable failure to comply
with a mandatory standard.� The record
and testimony shows that Respondent knew that the oxygen levels were low at EP 34C
on May 14, 2010, when it failed to be able to conduct an appropriate weekly
examination.� Crawford warned mine
officials that the weekly examination would have to be completed or no one
would be permitted to enter the mine.�
Tr. 150.� Although its witnesses
testified that an examination was conducted, each admitted that he did not
fulfill at least one requirement of the regulation.� Moreover, the record book specifically stated
that the weekly examination could not be conducted.� Tr. 325.�
Despite this, and the fact that Respondent was aware that the oxygen
levels were still too low to reach EP 34C to conduct the weekly examination on
May 17, 2010, three days later, it still permitted miners to enter the underground
areas of the mine.� In Oak Grove Resources, LLC, the operator
allowed miners to enter the mine despite the fact that weekly examinations
could not be conducted in certain locations due to water.� Id. 2012 WL
894523 (Mar. 2012)(ALJ).� The ALJ found
an unwarrantable failure based on the fact that the operator was �on notice�
about the failure to conduct the weekly examination.� Id. � In Pine
Ridge Coal Company, LLC, the ALJ found the operator�s failure to conduct an
adequate weekly examination to be an unwarrantable failure due to the
prophylactic nature of the regulations requiring examinations.� Id. , 2012 WL
601258 (Jan. 2012)(ALJ). Based on all the relevant factors presented here and case law, Respondent�s conduct was aggravated,
resulting in an unwarrantable failure to comply with a mandatory safety
standard.

����������� The
Secretary makes the argument that, given the facts and circumstances
surrounding the violation, this Order actually could have been designated as
reckless disregard.� While the
undersigned declines to make such a finding, it should be noted that the
Secretary makes a very good argument in this respect.� During a weekly examination, 30 C.F.R. �
75.364(d) mandates that �[h]azardous conditions shall be corrected immediately.�
(emphasis added).� But the correction of
the low oxygen condition at EP34C was anything but immediate, as required by
Sections 75.363(a) and 75.364(d).�
Respondent�s immediate action was only to adjust the regulator, which did
not solve the problem, likely due to the water impoundment.� Additionally, Respondent had the entire
weekend when no work was scheduled in the mine to correct the condition.� It could have easily assigned a crew to
accelerate the pumping and de-water the affected area of the mine.� This should have been the most obvious course
of action and, while not immediate, it would have been prudent.� However, although Brown claimed to have come
into the mine on Saturday in order to monitor the problem, on Tuesday, May 18,
2010, he stated to Crawford that he believed that the problem still existed,
and, in fact, had no idea whether the problem persisted.� Respondent�s conduct does very nearly rise to
the level of reckless disregard.� But a
total absence of care is not shown.

����������� Respondent contends that due
to extensive mitigating circumstances and a lack of aggravated conduct, the
citation does not constitute an unwarrantable failure.� It sites its actions to adjust the regulator
and attempts to conduct the examination.�
The undersigned is not persuaded by these arguments.� First, Respondent was aware on May 14, 2010,
that the low oxygen levels were the result of a water impoundment near EP 34A-1
that was blocking air flow.� At best,
adjusting the regulators to pump more air through the ventilation system was a
token effort to appease the inspector.� It
was probable that, until de-water pumping could be accomplished, the air
quality was not going to improve.�
Second, as stated many times before, each miner who testified to conducting
an examination of EP 34C also admitted to omitting one or more of the four examination
requirements.� The only conclusion that
can be reached is that Respondent knew that a hazardous condition existed at EP
34C, preventing it from conducting a weekly examination that was required prior
to allowing miners into the underground areas of the mine.� Despite this, it allowed them to enter anyway
in direct violation of the clear prohibition expressed in Section 75.364(f)(2).� This is exactly the type of aggravated
conduct contemplated by an unwarrantable failure.

D. Penalty

����������� The
principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Act are
well-established.� Section 110(i) of the
Act delegates to the Commission and its judges the 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), 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.�
The Act requires, that in assessing civil monetary penalties, the
Commission [ALJ] shall consider the 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
violation, and [6] 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 undersigned has
considered all six statutory penalty criteria and finds that $34,652.00 is a
reasonable penalty for the violation at issue.�
The criteria in particular concern are the operator�s negligence, the
gravity of the violation and the demonstrated good faith in attempting to
achieve rapid compliance.� Although
Respondent had warning on May 14, 2010, that the weekly examination would need
to be conducted by midnight that night, it, instead, made a token effort to
correct the underlying issue preventing the weekly examination and had not
corrected the problem by the time the Order was issued on May 18, 2010, three
days later.� This illustrates, at least,
a lack of mitigating circumstances and, at most, an absence of care.� Further, it certainly does not evidence immediate
correction of a known safety hazard.�
Respondent ignored this hazard when it allowed miners into the underground
areas on Sunday, Monday, and Tuesday.�
This is underscored by the fact that on May 18, 2010, Brown admitted to
Crawford that he did not even know whether the hazard had been corrected and
the weekly examination completed.�
Considering the stipulation that the penalty would not affect the
operator�s ability to continue to in business and the history of violations
entered as evidence at hearing, the penalty as assessed is reasonable and is
affirmed.

ORDER

����������� It
is hereby ORDERED that Order No.
8109413 is AFFIRMED as written on
May 18, 2010.� It is further ORDERED that Coal River Mining, LLC, PAY the Secretary of Labor the sum of
$34,652.00 within 30 days of the date of this Decision. [9]

����������������������������������������������������������������������������������������������� /s/
Kenneth Andrews������ �

����������������������������������������������������������������������������������������������� Kenneth
Andrews

����������������������������������� ����������������������������������������������������������� Administrative
Law Judge

Distribution:

F. Thomas Rubenstein, Esq.,
Dinsmore & Shohl, LLP, 215 Don
Knotts Blvd., Suite 310 , Morgantown ,
WV 26501

Lucy Chiu, Esq., U.S. Dept. of
Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington , VA
22209-2247

[1] Inspector Crawford may have calculated the 7-day
period from the last inspection of EP 34C, on May 7, 2010, or was mistaken in
his testimony and the actual day and time was 12:00am on May 15, 2010.

[2] The record book states that, for the week ending May
15, 2010, EP 34C could not be examined due to low oxygen.�

[3] Crawford testified that the water was deep enough
that it prevented him from accessing EP 34A-1.�
Tr. 90-91.

[4] 30 C.F.R. � 75.360 demands that an examination for
hazardous conditions, methane and oxygen deficiencies and proper air movement
be conducted in areas of the mine where work will be conducted, equipment will
be energized, ventilation may be affected or miners will travel at least three
hours prior to the start of the shift.�
Until this examination is conducted, no one may enter the mine.

�

[5] This regulation mandates that a certified person must
conduct an on-shift examination of each section where anyone is assigned to
work during shift and where mechanized mining equipment is being installed or
removed.� The examiner must check for
hazardous conditions, methane and oxygen deficiencies and proper air movement.� Id.

[6] The new rule, passed April 6, 2012, does require
operators to examine for violations of mandatory health and safety standards
during the preshift and onshift examinations.�
75 FR 20702, April 6, 2012.� It
further requires examiners conducting weekly examinations to pay particular
attention to nine categories of violations: mine support, roof control plans,
maintenance of ventilation controls and mine
ventilations plans, accumulations of combustible materials, application of
rock dust, other safeguards � limited to travelways [�], guarding moving
machine parts and maintenance of belt conveyor components. � Id. at 20702-20703 (emphasis added).

[7] There is some dispute as to whether Crawford meant
that it was due on May 14, 2010, before midnight or by midnight on May 15, 2010.

[8] Given the revisions to the regulations and the
legislative history that has been generated in their wake, it may be more
likely that new rules would make a violation presumptively S&S.� These revisions, however, would not apply
retroactively to the instant case.�

[9] 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.