FMSHRC ALJ decision Docket WEVA 2013-1180, WEVA 2014-375, WEVA 2014-376 Decided April 4, 2014 Modified Judge William S. Steele

Secretary of Labor v. Elk Run Coal Company

Secretary of Labor v. Elk Run Coal Company (FMSHRC WEVA 2013-1180, et al.): Four roof-control violations affirmed with $172,944 penalty

Apply this to your situation

This order from 2014 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.

Final ALJ decision under the Mine Act's 40-day rule

This administrative law judge decision became a final decision of the Commission because no Commissioner directed review within 40 days, under 30 U.S.C. § 823(d)(1). It is binding on the parties but is not Commission precedent. The full text below is from the official FMSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the Commission's own document.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited four roof-control and examination violations in the primary escapeway at Elk Run Coal Company's Roundbottom Powellton Deep Mine. The conditions included an overwide entry with excessive roof-bolt spacing, loose draw rock above the lifeline, improperly installed wire mesh loaded with rock, and an inadequate weekly examination that failed to record the hazards. Judge William S. Steele affirmed every violation as significant and substantial. He reduced negligence from high to moderate for the first two citations because the evidence showed mitigating circumstances, but upheld high negligence and unwarrantable-failure findings for the defective mesh and examination violations. The proposed penalties were reduced from $197,386 to a total of $172,944.

Decision snapshot

Cited standards: 30 C.F.R. §§ 75.202(a) and 75.364(b)(1)
Outcome: Four violations were affirmed as modified, with total civil penalties of $172,944.
Key point: Longstanding roof hazards and defective mesh in a primary escapeway supported S&S findings, while mitigation reduced negligence and penalties for two of the four violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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: 412-920-8689

April 4, 2014

SECRETARY
OF LABOR

ï¿½ï¿½MINE
SAFETY AND HEALTHï¿½ï¿½ï¿½

ï¿½ï¿½ADMINISTRATION
(MSHA),

ELK
RUN COAL COMPANY

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2013-1180

A.C.
No. 46-09163-327526-01

Docket
No. WEVA 2014-375

A.C.
No. 46-09163-338106-01

Docket
No. WEVA 2014-376

A.C.
No. 46-09163-338106-02

Mine:
Roundbottom Powellton Deep Mine

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½

DECISION AND
ORDER

Appearances:ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ Pollyanna
E.F. Hampton, Esq., U.S Department of Labor, Office of the Solicitor, Arlington,
VA for the Secretary

Eric L. Silkwood Esq., Hardy Pence PLLC,
Charleston, WV for Respondent

STATEMENT
OF THE CASE

These cases are before the undersigned
Administrative Law Judge on Petitions for Assessment of Civil Penalty filed by
the Secretary of Labor against Respondent, Elk Run Coal Company (ï¿½Respondentï¿½
or ï¿½Elk Runï¿½) pursuant to Section 104 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. ï¿½ 815(d). A hearing was held in Charleston, West Virginia on
January 9 and 10, 2014. The parties subsequently submitted post-hearing briefs.

PROCEDURAL
HISTORY

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ On
April 18, 2013, MSHA inspector Jack Dempsey conducted an inspection of Roundbottom
Powellton Deep Mine (ï¿½Powellton Mineï¿½) and issued several citations. ï¿½Respondent
contested many of these issuances, four of which (three citations and an order)
were placed in three civil penalty dockets (WEVA 2013-1180, WEVA 2014-375, and WEVA
2014-376).[1] The total assessed
penalty for the three citations and orders was $197,386.00. On January 9 and
10, 2014 a hearing was held on these remaining citations.

STIPULATIONS

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The parties have
entered into several stipulations, admitted as Partiesï¿½ Joint Exhibit 1.[2]
Those stipulations include the following:

1. This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge pursuant to
Sections 105 and 113 of the Federal Mine Safety and health Act of 1977 (ï¿½the
Actï¿½).

2. Roundbottom
Powellton Deep Mine, located in Boone County, West Virginia, is where the
citations and orders at issue in this matter were issued.

3. Roundbottom
Powellton Deep Mine was operated by Elk Run on April 18, 2013.

4. Rounbottom
Powellton Deep Mine is a mine as that term is defined in section 802(h) of the
Act.

5. Elk
Run was an ï¿½operatorï¿½ as defined in Section 3(d) of the Act at the coal mine at
which the citations and order at issue in this proceeding were issued.

6. Elk
Run is considered a large mine operator and Roundbottom Powellton Deep Mine is
considered a large mine for purposes of 30 U.S.C. 820(i)

7. The
products of the mine at which the citation and order at issue in this matter
were issued entered commerce, or the operator or products therefore affected
commerce, within the meaning and scope of Section 4 of the Act.

8. Operations
of Elk Run at the coal or other mine at which the citations and orders at issue
in this proceeding were issued are subject to the jurisdiction of the Act.

9. The
penalty which has been assessed for these violation pursuant to 30 U.S.C. ï¿½ 820
will not affect the ability of Elk Run to remain in business.

10. The individual or
individuals whose signatures appear in Block 22 of the citations and orders at
issue in this matter were acting in their official capacity and as an
authorized representative for the Secretary of Labor when the citations and
order were issued.

11. None of the exhibits the
parties intend to offer into evidence and that were exchanged prior to hearing
will be subject to objection as to authenticity. This stipulation does not mean
that either party stipulates to the truth of any allegation in the exhibits but
merely to their authenticity.

12. True copies of the citations
and order at issue in this matter, with any and all modification and
abatements, were served on Elk Run or its agent as required by the Act.

13. The citation and order at
issue in this matter, along with any and all modifications and abatements, were
issued on the dates stated therein and were issued by a duly authorized
representative of the Department of Labor, MSHA.

14. The citations and order at
issue in this matter contained in Exhibit A attached hereto are authentic copes
of the citations and order at issue in this matter, including any and all
modifications and abatements.

15. The information contained in
Exhibit A attached to the Secretaryï¿½s Petition for Assessment of Civil Penalty
regarding the mine tonnage of Elk Run accurately reflects tonnage production at
Roundbottom Powellton Deep Mine.

16. The citations at issue in
this matter were timely abated.

17. The citations and order at
issue in his matter, along with any and all modifications and abatements, may
be admitted into evidence, without objection, although Respondent may dispute
specific allegations contained within the citations and order.

18. The approved roof control
plan in effect on April 18, 2013 required entries to be a maximum of 20 feet
wide in the area at issue in Citation No. 8154925.

19. The approved roof control
plan in effect on April 18, 2013 required spacing between roof bolts to be a
maximum of 60 inches in the area at issue in Citation No. 8154925.

20. The mesh screening panels at
issue in Order No. 8154928 measured five feet by twelve feet and were provided
to Elk Run by Jennmar.

Joint
Exhibit 1 (see also Transcript I, at 8).[3]

Citation
No. 8154925

I.
ISSUES

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ With
respect to Citation No. 8154925, the issues to be determined are whether
Respondentï¿½s alleged violation of the Act on April 18, 2013 was significant and
substantial (ï¿½S&Sï¿½), whether it was reasonably likely to result in fatal
injury to 14 miners, whether it was the result of high negligence, and the
appropriate penalty for the violation.

II.
SUMMARY
OF TESTIMONY

MSHA Inspector Jack Dempsey conducted an
inspection of Roundbottom on April 18, 2013.[4] (Tr. I, 20). He was
accompanied by Safety Representative Terry Peterson.[5]
(Tr. II, 30-31, 35, 60). Dempsey had already been inspecting the mine for two
weeks.[6] (Tr. I, 115). Dempsey
began inspecting Roundbottom when he was in training. (Tr. I, 20). However, the
April 2013 quarter was his first assignment there. (Tr. I, 114). When Dempsey
arrived at the mine he informed the operator, reviewed the books and mine maps,
considered possible hazards, and reviewed plans where he will travel that day.[7]
(Tr. I, 19, 21, 119). He would look at the roof, ribs, bolt spacing, entry
widths, and the general condition. (Tr. I, 19). He also tried to coordinate
with the safety representative to ensure they were able to get as much done as
possible in the least amount of time. (Tr. I, 20-21, 119, 121). The mine had
three active sections and two portals. (Tr. I, 115). Another inspector, Andy
Sparks, was also inspecting the mine and had entered the mine that day from
another portal. (Tr. I, 115-116).

Dempsey and Peterson entered the mine
from the portal but did not make it to the working section.[8]
(Tr. I, 26, 29, 31). During an inspection, the inspector must travel each air
course in its entirety and using a ride expedites the process.[9]
(Tr. I, 25). However, vehicles cannot fit in some overcasts, so in those areas
the inspector must walk. (Tr. I, 25).

From the portal, they traveled in the
entry toward a set of double doors. (Tr. I, 26, II, 30-31). No citations or
hazards were observed on the way to the doors. (Tr. II, 36). These doors led to
the primary escapeway. (Tr. I, 26, 122, II, 31). This was the first day Dempsey
inspected the primary escapeway. (Tr. I, 116). The primary escapeway is the
main exit from the mine for miners in the event of a disaster.[10]
(Tr. I, 30). In case of smoke or fire, the primary escapeway contained a
lifeline with directional cones leading to the surface and SCSRs. (Tr. I, 30). This
area should be clear of hazards as minersï¿½ lives depend on it. (Tr. I, 30).

The four instant violations were issued
in this escapeway. (Tr. I, 24, 31). Citation No. 8154925 was issued between the
No. 23 and No. 24 crosscuts.[11] (Tr. I, 33-34, 43). The
first condition cited was an entry that was 23 1/2 feet wide for a distance of
8 feet. (Tr. I, 34, 124, 130-131, II, 31, 36-37, 60). According to the roof
plan the entry should have been no more than twenty feet wide. (Tr. I, 35, 39).
The area had been timbered with 6-inch posts on the right side facing outby,
spaced 4 or 5 feet apart. (Tr. I, 34-36, 131, 156 II, 36). The 23 1/2- foot
width was measured from the rib on the left to the timbers, meaning the area
was wide even with the timbers. (Tr. I, 35, 37-38, 131, 135 II, 31). The
timbers stretched the entire block but the wide area was in the center. (Tr. I,
37). There was 3 to 4 feet of open space between the timbers and the rib,
meaning the original cut in 2008 was 27-28 feet wide. (Tr. I, 36, 124, 262, II,
7). Dempsey hoped the timbers were placed when the area was cut, but he was not
sure. (Tr. I, 124-125). The block of coal where this wide area was located was
probably sixty feet square. (Tr. I, 122-123).

Generally, roof control plans determine
the width of entries.[12] (Tr. I, 204). Acccording
to that plan, Respondent was permitted to mine some belt entries and slopes 22
feet wide, but not this entry. (Tr. I, 125, 151-152, II, 113). Dempsey did not
recall any mine where entries were wider than 25 feet. (Tr. I, 152). He never
required an operator to add a shelter hole in a track entry or slope. (Tr. I,
152). Some safeguards allow such shelter to be 5 feet in excess of the track
entry.[13] (Tr. I, 153-154). Phillip
Saunders testified that some mines have 3 ï¿½ foot wide, six foot deep shelter
holes.[14] (Tr. II, 112-113). He
stated that small areas where the roof exceeds the plan are permitted. (Tr. II,
113).

Peterson and Saunders testified that the
timbers were placed in this area to narrow the wide entry so it would comply
with the roof control plan. (Tr. II, 36, 70). They also noted that if an area
is timbered, the examiner would assume it was the proper width. (Tr. II, 37, 113-114).

Dempsey believed the condition, several
extra feet of width in the entry, would be obvious. (Tr. I, 137). This was
because there were additional bolts and timbers in this area. (Tr. I, 38, 129,
137, II 60). There was not simply an additional row of bolts; instead each row
of bolts in this particular area had an additional bolt. (Tr. I, 127-128). There
should have been four bolts in each row, but there were five to six. (Tr. I,
38-39, 129). The extra bolts and timbers were installed during development,
therefore the operator knew about the condition. (Tr. I, 127-128, 137, II, 70).
However, even after the timber was added, the entry was still too wide and
obvious. (Tr. I, 137-138).

Harding never noticed the condition
before and did not think it was obvious. (Tr. I, 266, II, 19). He learned from
the citation that there was an 8-foot area that was too wide. (Tr. I, 266). He knew
timbers indicated a wide entry, but he did not set any additional timbers. (Tr.
II, 12).

The hazards associated with the cited
condition would include roof fall resulting in fatal accident. (Tr. I, 39). The
cited standard is one of the ï¿½rules to live byï¿½ that is a root cause of fatal
injuries. (Tr. I, 40). There was also danger of total collapse. (Tr. I, 39).
However, the additional bolts and the timbers provided additional beam support
for the entry. (Tr. I, 132).

Dempsey was not sure how long this
condition had existed. (Tr. II, 47). He believed it had been some time because
the timber had begun to decay. (Tr. I, 37, 47). Further, moss had grown on the
timbers. (Tr. I, 37, 47). The timbers had not recently been placed. (Tr. I,
48). The area was developed in 2008 or 2009. (Tr. I, 36, 124, 139).

The second condition cited in this area
was one bolt spaced 70 (rather than the required 60) inches from another bolt.[15]
(Tr. I, 34, 39-40, 126, 268). In a 60-foot entry, 26-27 feet wide; Dempsey
would expect bolts every four feet, with no more than five feet between rows. (Tr.
I, 126-127, 129). This condition could be fixed by setting a timber. (Tr. I,
266-267).

The condition was somewhat obvious. (Tr.
I, 40). Dempsey noticed it because he was alerted by the wide entry and was
measuring. (Tr. I, 40). Examiners were trained to look for this kind of
condition, so it was obvious. (Tr. I, 40). Examiners and inspectors had missed
this condition since the area was developed. (Tr. I, 140).

Only one set of bolts was found over-spaced.
(Tr. I, 268). Harding testified that one over-spaced bolt would be difficult to
see. (Tr. I, 267, II, 19). There were roughly 1,200 bolts between this area and
the location of the final citation issued. (Tr. I, 267-268).

The hazards associated with the bolt
spacing would include being crushed by a roof fall. (Tr. I, 41). A fatal roof
fall injury occurred at Kingston Resources No. 1 when the bolt spacing was just
inches off. (Tr. I, 41-42). Dempsey conceded that one bolt spaced 10 inches too
wide did not, by itself, make an accident likely. (Tr. I, 134-135). However, it
might lead to an injury based on geological conditions. (Tr. I, 135). Here, the
top appeared solid without skin issues, straps, or pie pans at the time of the
citation. (Tr. I, 135). The pillars were stable. (Tr. I, 135). ï¿½

This condition had existed since the
area was bolted, as bolts were set during the mining cycle. (Tr. I, 48). It had
been years since mining occurred in this area. (Tr. I, 48). Other than this one
area, there were no other problems with bolt spacing. (Tr. I, 133).

The final condition in this area was
loose draw rock. (Tr. I, 34, 29-30, 128, II, 38, 60). Draw rock is generally
slate that breaks loose from the roof. (Tr. I, 133, II, 40, 83). Most of the
roof is solid sandstone. (Tr. II, 39). Different kinds of stone do not stick
together well, so if there is a layer of shale ï¿½skinï¿½ a few inches deep below
the sandstone, then draw rock develops. (Tr. I, 133, II, 38-9, 82-83). It is
caused by temperature, barometric pressure, seasonal change in the mine, drying
conditions, and the velocity of intake air. (Tr. I, 236, 261, II, 38, 40-41). Draw
rock occurs all the time and can change daily or from entry to entry. (Tr. II,
40-41). This mine had draw rock everywhere. (Tr. I, 133). Areas under a stream
or hollow, as the cited area was, can produce draw rock quickly. (Tr. I, 265,
II, 83-85). When draw rock is found it must be scaled (pulled down) or dangered
off and supported. (Tr. I, 236-237, II, 39).

The citation did not state whether one
location or many needed scaling. (Tr. I, 128). It also did not say where this
spot was in relation to the other conditions. (Tr. I, 128). ï¿½Harding testified
that this condition was not present during his examination. ï¿½(Tr. II, 19).

The condition was obvious; there was
draw rock on the bottom and some draw rock on the top that needed to be scaled.
(Tr. I, 34, 39, 42). Dempsey and Peterson would not proceed past the condition.
(Tr. I, 34). They stopped and scaled, measured, and evaluated. (Tr. I, 34). The
number of bolts in the area indicated roof control problems. (Tr. I, 34). The
mine had a history of draw rock issues in intakes and returns. (Tr. I, 42). However,
other than this area, there was only minor sloughage during the inspection. (Tr.
I, 130).

The hazard associated with draw rock is
that it can fall and pull down the lifeline or break the lifeline, which can constitute
a hazard when smoke is present. (Tr. II, 115). It can also be at tripping
hazard, which would be important in an emergency escapeway. (Tr. I, 248-249, II,
115). Finally, the draw rock itself can be a striking hazard. (Tr. I, 42, II,
116).

With respect to all three conditions, miners
would work or travel in the area. (Tr. I, 43). An examiner would travel this
air course weekly. (Tr. I, 43). The last examination occurred a day before the
citation. (Tr. I, 44). The area would also have to be available in case of an
emergency. (Tr. I, 43-44). Further, quarterly evacuation drills were conducted
at the mine for all three shifts. (Tr. I, 43, 242-243). The drills alternated
escapeways, so miners would evacuate this area twice a year. (Tr. I, 43, 154,
242). A lifeline went directly through this area, though Dempsey could not
recall where. (Tr. I, 44-46). He did not believe it ran under the draw rock. (Tr.
I, 47). In Dempseyï¿½s experience, when miners evacuate they walk side by side. (Tr.
I, 46). On April 15, 2013, 14 men, including a supervisor, participated in a
fire drill here. (Tr. I, 45). On April 16, 2013, 12 men, including a
supervisor, did so. (Tr. I, 44). Therefore examiners and drill participants
were exposed to the cited conditions. (Tr. II, 45-46). However, the fact that
the fire drill occurred two days before this citation was a coincidence. (Tr.
I, 154). The citation would not have been issued in the same manner if the
drill had not just occurred. (Tr. I, 154).

Harding testified that other than the
weekly exam, no one would be in the cited area for two months or more. (Tr. I,
242-243). He did not believe miners normally worked or traveled in this area,
it was not a ï¿½main track.ï¿½ (Tr. I, 243). He also testified that during fire
drills he would hold onto the lifeline. (Tr. II, 15-16). However, in his
deposition testimony (GX-10) he conceded that he did not hold onto lifelines
during fire drills. (Tr. II, 17). Saunders
testified that goal of a fire drill was to make a life-like simulation. (Tr.
II, 109-111).

This condition was marked S&S
because it violated a safety standard, the violation contributed to a hazard,
and there was a reasonable likelihood that the hazard would cause injury. (Tr.
I, 51-52). There was exposure to the condition from miners traveling in the area
regularly. (Tr. I, 52). The injury would be significant, perhaps fatal crushing
injuries. (Tr. I, 52).

Dempsey believed an injury would be
reasonably likely, assuming continued mining operations. (Tr. I, 52). The entry
was wide, there were widely spaced bolts, the pillar size was reduced and there
was draw rock in the area that could result in a roof collapse. (Tr. I, 52,
151). Wide entries cause the beam to stretch over a wider area. (Tr. I, 151). However,
Dempsey did not do any analysis to determine whether the pillars could hold the
roof. (Tr. I, 151). A wide entry is automatically a hazard. (Tr. I, 151). The
likelihood is not based on odds, instead it is based on the fact that it is
known that fatal roof falls in the mining industry are caused by wide entries
and therefore the ï¿½reasonably likelyï¿½ finding was appropriate. (Tr. I, 155-156,
200-201). Also, coal is 80 pounds per cubic foot and rock is 120 pound per
cubic foot, so it would not take a large roof fall to weigh hundreds of pounds.
(Tr. I, 52-53).

The cited condition would affect 14
persons because the drill record showed that 14 miners were exposed to a total
collapse of the entry during an escapeway drill. (Tr. I, 53, 155-156).

This citation was marked for high negligence;
however Dempsey struggled with the negligence determination. ï¿½(Tr. I, 53, 142, 145).
At first, he believed Respondent displayed moderate negligence because there
was an attempt made to correct the condition and because it was not overly
obvious. (Tr. I, 53, 55, 143-144). Dempseyï¿½s notes show that, ï¿½some efforts
were made by timbering but found that effort was improperly performed. (Tr. I,
144). This was based on the examination Jesse Harding conducted the day before.[16]
(Tr. I, 49, 54-55, 119-120, 259-260, II, 7-8). That record stated that the top
was scaled, a wide bolt found, a rib to bolt was wide, timbers were set, areas dangered
off, and the lifeline was repaired in several places. (Tr. I, 49, I, 232-233). Dempsey
also noted that he did not deem the condition ï¿½high or reckless.ï¿½ (Tr. I, 144).

However, he then reconsidered his
negligence determination and no longer believed there were mitigating
circumstances. (Tr. I, 144-145, 56-57). Dempsey did not see any indication that
the correction noted by Harding actually occurred. ï¿½(Tr. I, 51,53, 57, 148). The
record did not indicate where scaling occurred, where the lifeline was worked
on, where new timbers were set, the width of the entry, or if the wide bolts
were corrected. (Tr. I, 50-51, 53). Also, Dempsey did not know where timbers
were dangered off. (Tr. I, 50). There was an incomplete effort to repair, but
only a full repair would be sufficient. (Tr. I, 57, 145, 148). The partial
repair indicated that there was awareness of the cited condition. (Tr. I, 57). The
use of timbers in other areas of the mine did not mitigate the lack of effort
here. (Tr. I, 57, 149). At hearing, Harding could not recall which areas were
scaled. (Tr. I, 264).

Dempsey also considered the mindset of
an examiner and realized he should be looking for things that were not overly
obvious. (Tr. I, 55-56, 142, 145). ï¿½Harding was trained and should have been
alert. (Tr. I, 55, 142). Further, management knew the condition existed as extra
bolts and timbers were added. (Tr. I, 56). The condition had existed for some
time (though Dempsey could not verify the time). (Tr. I, 142).

In addition, Dempsey felt Respondentï¿½s
history of roof falls should have provided warning that roof control problems
occurred at this mine. (Tr. I, 202-203). Respondent should have had heightened
awareness to the dangers posed by the cited conditions. (Tr. I, 203). Respondent
was lucky no roof falls had occurred here, it was a matter of time. (Tr. I,
203).

The fact that there was an inadequate
examination did not effect the high negligence designation. (Tr. I, 154). However, Dempsey conceded that if the condition had
existed since 2008 and this area was a primary escapeway since that time, then
the high negligence finding would be undercut. (Tr. I, 142-143). Harding
testified that this area had been the primary escapeway since 2008 because the
location allowed miners to walk in fresh air. (Tr. I, 262, II, 11-12). Dempsey
also conceded that a wide entryis not per se high negligence. (Tr. I,
149).

Dempsey also noted that Peterson did not
offer any mitigating circumstances at issuance. (Tr. I, 57). ï¿½To mitigate the
condition without correcting it, Respondent could have hung danger tags, noted
the condition in the exam book, or made marks for new timbers. (Tr. I, 150). The
danger tags would inform miners that the condition existed. (Tr. I, 150). The
tags could have been placed where the area was wide and where the bolts were
misplaced. (Tr. I, 150).

The condition was abated when the draw
rock was pulled down and the timbers were reset between the left rib and the
right timber line. (Tr. I, 57-58). No timbers were moved, two or three were
added where the entry and bolts were too wide. (Tr. I, 54, 156-157). The
abatement occurred between the issuance and noon on April 23. (Tr. I, 58).

III.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The findings of fact are based on the
record as a whole and the Administrative Law Judgeï¿½s careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
the Administrative Law Judge has taken into consideration the interests of the
witnesses, or lack thereof, and consistencies, or inconsistencies, in each
witnessï¿½s testimony and between the testimonies of the witnesses. In evaluating
the testimony of each witness, the Administrative Law Judge has also relied on
his demeanor. Any failure to provide detail as to each witnessï¿½s testimony is
not to be deemed a failure on the Administrative Law Judgeï¿½s 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).

1. The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That 30
C.F.R. ï¿½75.202(a) Was Violated.

On April 18, 2013, Inspector Dempsey
issued a 104(a) Citation, No. 8154925, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The Operator has failed to properly
support the primary escapeway to the #1 working Section. Between #23 and #24
xcuts adjacent to #9 beltline the following conditions exist: 1) Entry is 23.5ï¿½
wide for a distance of 8ï¿½, 20 Bolt pattern measures 70ï¿½ between bolts in one
spot at this location, 3) Loose draw rock is present that needs scaled.

Standard 75.202(a) was cited 73 times in
the two years at mine 4609163 (73 to operator, 0 to contractor).

(GX-1).

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The
cited standard, 30 C.F.R. ï¿½ 75.202(a) (ï¿½Protection
from falls of roof, face and ribsï¿½), provides the following:

(a) The roof, face
and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.

30
C.F.R. ï¿½ 75.202(a).

The Secretary presented credible
evidence that Respondent violated the cited standard, as described in the
citation. (Tr. I, 34, 29-30, 39-40,124, 126, 128, 130-131, 268, II, 36-38, 60).
In its brief, Respondent acknowledges the existence of the violation. (Respondentï¿½s
Post-Hearing Brief at 19). In light of this fact, and the evidence
presented, the Administrative Law Judge finds that this citation was valid. ï¿½

2. The Violation
Was Reasonably Likely to Result in a Fatal Injury And Was Significant And Substantial
In Nature

Inspector Dempsey marked the gravity of
the cited danger in Citation No. 8154925 as ï¿½Reasonably Likelyï¿½ to result in ï¿½Fatalï¿½
injury to 14 persons. (GX-1). These determinations are supported by a
preponderance of the evidence.

The Mine Act requires that ï¿½gravity of
the violationï¿½ be considered in assessing a penalty. 30 U.S.C. ï¿½820. The
Secretary has promulgated a three-factor inquiry to determine the gravity of a
citation for purposes of determining the penalty. Those factors are:

[T]he likelihood of the occurrence of
the event against which a standard is directed; the severity of the illness or
injury if the event has occurred or was to occur; and the number of persons
potentially affected if the event has occurred or were to occur.

30
C.F.R. ï¿½ 100.3(e).

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The
event against which the instant standard, 30 C.F.R. ï¿½ 75.202(a) is stated
directly in the language of the rule. Specifically, the standard is designed to
protect miners from the ï¿½hazards related to falls of the roof, face or ribs and
coal or rock bursts.ï¿½ Those hazards include crushing injury from rock fall or
roof collapse, disorientation during an emergency from the severing of a
lifeline, or tripping injury from fallen rock. (Tr. I, 39-42, 248-249, II,
115-116). Inspector Dempsey credibly testified that the cited conditions (the
wide entry, the improperly spaced bolt, and the draw rock) made these hazards
reasonably likely. Specifically, Dempsey testified that miners worked and
traveled in this area regularly. (Tr. I, 43-44, 52). Those working in the area
would include the examiner and also miners from the section using the escapeway
during a fire drill or actual emergency. (Tr. I, 43, 242-243). In fact, Dempsey
testified that these conditions occurred near the lifeline, the area where
miners would be most likely to move. (Tr. I, 44-46). Therefore, the undersigned
finds that miners were reasonably likely to be exposed to the cited condition.

Dempsey also credibly testified that
this exposure would be reasonably likely to result in injuries to no fewer than
14 miners. He testified that the cited condition could have caused rock falls
or roof collapse to harm miners during a fire drill or actual emergency. (Tr. I, 53, 155-156). Dempsey
testified that that fatal roof falls in the mining industry are known to be caused
by wide entries and therefore the ï¿½reasonably likelyï¿½ finding was appropriate. (Tr.
I, 155-156, 200-201). Also, he noted that coal is 80 pounds per cubic foot and
rock is 120 pound per cubic foot, so even a small roof fall could weigh hundreds
of pounds, increasing the chances of a fatality. (Tr. I, 52-53). With respect
to the person affected, the evidence shows that as many as 14 miners
participated in fire drills or would actually be working on the section in the
event of an emergency. (Tr. I, 45, 53, 155-156). Dempsey credibly testified
that in the event of a roof fall or collapse, all of these miners would be
affected. (Tr. I, 53, 155-156). Therefore, the Administrative Law Judge finds
that the preponderance of the evidence supports the Secretaryï¿½s gravity
designations.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ Respondent
argued that this citation (as well as Citation No. 8154927 and Order No.
8154928) should not have been marked as affecting 14 persons. This argument is not
supported by the evidence.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ Respondent
argued that the cited entry was an escapeway, rather than a regular travelway
for the section crew, and that only one miner (the examiner) would regularly be
in this area. (Respondentï¿½s Post-Hearing Brief at 31). The uncontested
testimony supports a finding that up to 14 miners would be in this area no
fewer than twice a year, during fire drills. (Tr. I, 43, 45, 154, 242). More
importantly, this area would always be available to miners in the event of an
emergency. The area must be available for use every day because at any given
time an event might occur that would require its use.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The
Administrative Law Judge finds this situation to be analogous to the situation
in Cumberland Coal Resources, LP, 33 FMSHRC 2357 (2011). In that case,
the Commission held that with respect to emergency standards, when a violation
is issued, ï¿½presumably no emergency exists at the momentï¿½if an emergency does
occur, it is imperative that the requirements of the evacuation standard be met
at that time.ï¿½ Id. at 2367. While it is true (as Respondent notes) that
the cited standard was not an ï¿½emergency standard,ï¿½ those standards are
meaningless if the escapeway entry is not safe. Miners cannot use a lifeline or
breathe through an SCSR if those items (or the miners) are trapped under a
collapsed roof. Furthermore, this entry would not have been set aside or
inspected if not for the fact that it was to be used in an emergency.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ Respondent
also argued that, even if this violation is considered in light of the
emergency standards, that all 14 miners would not be affected because a roof
fall would not harm everyone. (Respondentï¿½s Post-Hearing Brief at
32-33). It argued that the testimony of the inspector to the contrary was ï¿½pure
speculation.ï¿½ (Id.). The undersigned found the Inspectorï¿½s testimony to
be credible. ï¿½In the event of a massive roof fall or entry collapse, all of the
miners would be affected and injured by the fall. Further, if the fall occurred
during an emergency miners could be trapped in treacherous conditions without
the ability to escape. Therefore, the cited condition affected 14 miners.

Respondent also offered several
arguments asserting that an injury was unlikely. However, as Respondent
discussed those arguments in relation to the S&S designation, they will be
discussed infra.

Well-settled Commission precedent sets
forth the standard used to determine if a violation is S&S. A violation is
S&S ï¿½if, based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.ï¿½ Cement Div., National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission later clarified
this standard, explaining:

In 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 ï¿½ that is, a measure
of danger to safety ï¿½ 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).

With respect to the first element, the
underlying violation of a mandatory safety standard, it has already been
established that Respondent violated 30 C.F.R. ï¿½ 75.202(a).

With respect to the second element of Mathies,
a discrete safety hazard ï¿½ that is a measure of danger to safety ï¿½ contributed
to by the violation ï¿½ Inspector Dempsey credibly testified that the violation contributed
to the safety hazard of a miner be crushed or struck in a roof fall or collapse.
(Tr. I, 51-52). The inspector testified that each of the individual conditions
at issue here would contribute to some hazard.

Specifically, the wide entry increased the
chances of roof fall and added to the danger of a total collapse. (Tr. I,
39-40, 52, 151). The condition contributed to this danger because wide entries
cause the support ï¿½beamï¿½ of the roof to stretch over a wider area, creating
additional stress. (Tr. I, 151). Therefore, a wide entry is automatically a
hazard. (Tr. I, 151). See United Mine Workers of America v. Dole, 870
F.2d 62, 559 (D.C. Cir. 1989)(Holding that roof falls pose one of the most
serious hazards in the mining industry); see also Consolidation Coal Co.,
6 FMSHRC 34, 37 (Jan. 1984), Eastover Mining Co., 4 FMSHRC 1207, 1211 n.
8 (Jul. 1982), and Halfway Incorporated, 8 FMSHRC 8, 13 (Jan. 1986)
(noting the inherently dangerous nature of mine roofs). Dempsey also noted that
this condition was one of the ï¿½rules to live byï¿½ that has been found by MSHA to
be the root cause of fatal injuries. (Tr. I, 40). The wide bolt also
contributed to crushing injury from roof fall. (Tr. I, 41). Dempsey noted a
fatal roof fall injury occurred at Kingston Resources No. 1 when a bolt was
spaced just inches off the approved roof plan. (Tr. I, 41-42). Finally, the
draw rock contributed to the hazard of tripping or severing the lifeline, which
could cause fatal injury in an emergency. (Tr. I, 248-249, II, 115). The draw
rock was also evidence that rock was falling from the top, creating a striking
hazard. (Tr. I, 42, II, 116). In addition to these individual hazards, the
cumulative effect of the conditions heightened the contribution. (Tr. 52, 151).
In light of these facts, the Administrative Law Judge finds that the cited
condition contributed to a discrete safety hazard.

Respondent argued that this condition
did not contribute to a safety hazard. However, this argument was not
compelling. Specifically, Respondent asserted that the cited conditions did not
contribute to a hazard because, despite their existence for seven years, the
entry showed no signs of instability. (Respondentï¿½s Post-Hearing Brief at
21). Respondent noted the fact that the area was lined with properly spaced
roof support timbers and roof bolts to ensure stability. (Id.). Further,
it noted that the cited conditions were in the center of the entry, rather than
at the intersection, where stress is the greatest. (Id. at 21-22). It
argued that these supplemental measures withstood roof stresses for numerous
years without incident and therefore did not contribute to a hazard. (Id.)

The fact that a roof fall had not
occurred in this area does not mean that the condition did not contribute to
the hazard of a roof fall. See, e.g. Rushton Mining Company, 9 FMSHRC
800, 810 (Apr. 1987)(ALJ Broderick) (ï¿½The
fact that an injury did not occur here is hardly evidence that the violative practice
did not contribute to a hazard likely to result in injury.ï¿½) As
discussed supra, Inspector Dempsey credibly testified as to the ways
that the cited conditions made a roof fall more likely. While these conditions
did not guarantee that a roof fall would happen, they contributed to the
possibility of that hazard. Further, the Administrative Law Judge is not as
sanguine about the conditions in the cited area as Respondent. In addition to
the wide entry and wide bolt, draw rock was found uncontrolled in this area. (Tr.
34, 29-30, 128, II, 38, 60). Perhaps more importantly, several months after the
citation was issued, a rock fall occurred in this same entry. Further, as
discussed with respect to the number of persons affected, this entry would be
used in the event of an emergency. It is reasonable to believe in such a
situation that usual or extreme pressure would be placed on this area,
exacerbating the hazard. The Administrative Law Judge finds this to be
persuasive evidence that the cited entry was less stable than indicated by
Respondent.

Furthermore, the existence of the roof
control plan attests to the fact that the cited conditions contributed to a
hazard. Inspector Dempsey credibly testified regarding the procedure by which
operators, and MSHA, determine the maximum width of entries and the spacing of
bolts. (Tr. I, 153-154, 204-205). There is no question that the operator
exceeded these limits. (Tr. 34, 124, 130-131, II, 31, 26-37, 60, JX-1). Presumably,
if it were safe for entries in Roundbottom to be 23 ï¿½ feet wide or for bolts to
be spaced 70-inches apart, the plan created by the Respondent and approved by
MSHA would reflect those distances. That the plan dictates entries of 20 feet
and bolts spaced at 60-inches indicates that the cited conditions are inherently
unsafe and would contribute to the hazard of a roof collapse or fall. Therefore,
the second prong of Mathies is met.

The third element of the Mathies
test ï¿½ a reasonable likelihood that the hazard contributed to will result in an
injury ï¿½ was also met. The preponderance of the evidence establishes that the
hazard contributed to in this matter would be reasonably likely to result in
injury.

The Commission clarified the third
element of the Mathies test in Musser Engineering, Inc., and PBS Coal
Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (ï¿½PBSï¿½) (affirming an S&S
violation for using an inaccurate mine map). The Commission held that the ï¿½test
under the third element is whether there is a reasonable likelihood that the
hazard contributed to by the violation, i.e., [in that case] the danger of
breakthrough and resulting inundation, will cause injury.ï¿½ Id. at 1281. Importantly,
it clarified that the ï¿½Secretary need not prove a reasonable likelihood that
the violation itself will cause injury.ï¿½ Id. The Commission concluded
that the Secretary had presented sufficient evidence that miners who broke
through into a flooded adjacent mine would face numerous dangers of injury. Id.
The Commission also emphasized the well-established precedent that ï¿½the absence
of an injury-producing event when a cited practice has occurred does not
preclude a determination of S&S.ï¿½ Id. (citing Elk Run Coal Co.,
27 FMSHRC 899, 906 (Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18
FMSHRC 853, 857 (June 1996).

If the hazard contributed here were
realized, specifically if a roof fall or total roof collapse were to occur, an
injury would be reasonably likely. If the roof fell, miners could be struck by
extremely heavy falling material and could even be crushed. (Tr. I, 39-42, 248-249,
II, 115-116). As miners worked or traveled in this area (both examiners and
miners evacuating in a drill or emergency) there was exposure to the hazard. (Tr.
I, 43-44, 52, 155-156). There is no question that miners being struck or
crushed by rock would be injured.

Respondent also argued that the hazard
contributed to created no likelihood of an injury. ï¿½However, this argument was
not compelling. Specifically, Respondent asserted that the cited conditions
created no likelihood of injury because the condition had existed for a long
time and was stable. (Respondentï¿½s Post-Hearing Brief at 21). It noted
that under continued normal mining operations that the ribs and roof were
competent and that there was no evidence or stress or that the hazard would
contribute to an event that would lead to an injury. (Id. at 22).

As noted supra, the
Administrative Law Judge found that the cited condition would contribute to a
roof fall. As further noted, there is no question that a roof fall would be
reasonably likely to result in an injury. The issue at this stage of the
inquiry is whether the hazard contributed to by the violation, in this case a roof
fall, would result in injury. The third element presupposes that the roof fall
is realized and asks whether an injury would be expected to result. See PBS
Coals at 1280-81 see also United Taconite, LLC, 2014 WL 1010076, *12 (Feb. 2014)(ALJ
Lewis)(explaining that the third element of Mathies presupposes the
hazard is realized). Respondentï¿½s argument does not aid the
Administrative Law Judge in determining whether a roof fall or collapse would,
or would not, result in an injury.

Under Mathies, the fourth and
final element that the Secretary must establish is that there was a ï¿½reasonable
likelihood that the injury in question will be of a reasonably serious nature.ï¿½
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573,
1574 (July 1984). It cannot be credibly argued that an injury caused by a roof
fall or mine collapse would be anything other than serious. In fact, a fatal
injury is the most likely result.

As a result of these factors, the undersigned
finds that the Secretary proved the violation was S&S by a preponderance of
the evidence.

3. Respondentï¿½s
Conduct Did Not Display ï¿½Highï¿½ Negligence.

In the citation at issue, Inspector Dempsey
found that the operatorï¿½s conduct was highly negligent in character. (GX-1).

Standard 30 C.F.R. ï¿½ 100.3(d) provides the
following:

(d) Negligence.
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.
Under the Mine Act, an operator is held to a high standard of care. 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. The failure to exercise a
high standard of care constitutes negligence. The negligence criterion assigns
penalty points based on the degree to which the operator failed to exercise a
high standard of care. When applying this criterion, 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.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ In
30 C.F.R. ï¿½ 103(d), Table X, the category of high negligence is described
thusly: ï¿½The operator knew or should have known of the violative condition or
practice and there are no mitigating circumstances.ï¿½ Conversely, moderate
negligence is shown when ï¿½[t]he operator knew or should have known of the
violative condition or practice, but there are some mitigating circumstances.ï¿½ Low
negligence is served for situations where there are ï¿½considerableï¿½ mitigating
circumstances.

The Administrative Law Judge finds that
while Respondent should have known about the violation, there were mitigating
factors. With respect to knowledge, well-settled Commission precedent
recognizes that the negligence of an operatorï¿½s agent is imputed to the
operator for penalty assessments and unwarrantable failure determinations. See
Whayne Supply Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194-197 (Feb. 1991); and Southern
Ohio Coal Co., 4 FMSHRC 1459, 1463-1464 (Aug. 1982). An agent is defined as
someone with responsibilities normally delegated to management personnel, has
responsibilities that are crucial to the mineï¿½s operations, and exercises
managerial responsibilities at the time of the negligent conduct. Martin
Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000) see also 30
U.S.C. ï¿½ 802(e) (an agent is ï¿½any person charged with responsibility for the
operation of all or part of aï¿½mine or the supervision of the miners in
aï¿½mine.ï¿½).

With respect to the instant violation, the
evidence shows that Respondent had some knowledge of at least one of the cited
conditions, the wide entry. Specifically, evidence shows Respondent was aware
of the fact that the entry was wide at development, because it had put in timbers
and extra bolts. (Tr. I, 36, 124-125, 262, II, 7). For some reason, in placing
the timbers Respondent only narrowed the entry to about 23 feet, rather than
the required 20 feet. (Tr. 36, 124, 262, II, 7). However, that does not change
the fact that Respondent, at one time, knew the condition existed. Perhaps more
importantly, Respondent should have known the condition was present. The wide
entry and the widely spaced bolt had existed for around 7 years. This area was
inspected weekly by Respondentï¿½s agent and had been inspected by Harding just
the day before the instant citation. (Tr. I, 43-44, 49). Harding and the other,
previous examiners were tasked with finding just the types of conditions found
here. (Tr. I, 55-56, 142, 145). Therefore, Respondent should have known about
the cited condition.

Inspector Dempsey noted that one of the reasons he
found the cited conditions to be the result of high negligence was that the
cited conditions were obvious. However, he also noted that he struggled with
this determination and that he initially did not believe the condition was
obvious. (Tr. I, 53, 55, 143-144). The Administrative Law Judge finds that the
Inspectorï¿½s initial determination was better supported by the evidence. The
cited condition occurred in a relatively small area, an eight-foot area in the
center of an entry. (Tr. I, 34, 124, 130-131, II, 31, 26-37, 60). Further, the
earlier, incomplete attempts to correct the condition (setting timbers, adding
additional bolts) probably masked the fact the condition persisted. (Tr. I, 144,
II, 37, 113-114). Perhaps most importantly, this area had been the primary
escapeway since it was developed in 2008. (Tr. I, 262, II, 11-12). That means
that the condition was inspected weekly by examiners and quarterly by MSHA
inspectors. No examiner had ever noticed these conditions and no inspector had
ever cited it. See Virginia Drilling Company, LLC, 2013 WL 1856608 (Mar.
2013) (holding that the fact that Respondent had not been cited in the past
could be a mitigating circumstance). Even inspector Dempsey stated that if the
area had always been the primary escapeway, his determination regarding the
obviousness of the condition and Respondentï¿½s negligence would be undermined. (Tr.
I, 142-143). As a result, the evidence supports a finding that the condition
was less than obvious.

Furthermore, evidence suggests that Respondent made
some efforts to correct the cited condition. Respondent had installed
additional bolts and had installed a row of timbers in the area to provide
support and narrow the entry. (Tr. I, 144, II, 37, 113-114). While these
repairs were incomplete, they showed that Respondent had made some effort to
control the condition. An operatorï¿½s reasonable attempts, even if not totally
adequate, to correct or prevent a violative condition constitute a mitigating
factor with respect to negligence. Hidden Splendor, 2012 WL 7659707
(Dec. 2013)(ALJ Manning). ï¿½

In light of these mitigating circumstances,
Respondentï¿½s actions are best characterized as showing ï¿½Moderateï¿½ rather than
ï¿½Highï¿½ negligence.

The Secretary argued that there were no mitigating
circumstances in this case. However, this argument was not compelling. ï¿½The
Secretary noted improper efforts to correct a condition did not constitute a
mitigating circumstance. (Secretaryï¿½s Post-Hearing Brief at 28 citing
Peabody Coal, 14 FMSHRC 1258, 1261-64 (Aug. 1992) and Jim Walter
Resources, Inc., 19 FMSHRC 480, 489 (Mar. 1997)).ï¿½

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ As
noted supra, the Administrative Law Judge found that Respondent efforts to
correct the cited condition mitigated Respondentï¿½s negligence. Respondent had
seen that it developed the condition too wide and made some effort to eliminate
the hazard. However, even if this were not a mitigating circumstance, the
evidence would still support a finding of moderate negligence. The Secretaryï¿½s
own witness, Inspector Dempsey, testified that if this area was a primary
escapeway since 2008 that the condition was not obvious and the high negligence
designation was undermined. As it was shown at hearing that the area had been
an escapeway, all of the witnesses at hearing agreed that there was at least
one mitigating circumstance. A high negligence designation is inappropriate
where there are any mitigating circumstances. Therefore, a finding of moderate
negligence is warranted.

4.
Penalty

Under the assessment regulations
described in 30 CFR ï¿½100, the Secretary proposed a penalty of $63,000.00 for
Citation No. 8154925. A recent Commission decision, Sec. v. Performance Coal
Co., (Docket No. WEVA 2008-1825 (8/2/2013) reaffirmed that neither the ALJ
nor the Commission is bound by the Secretaryï¿½ proposed penalties. (see also
30 U.S.C. ï¿½820(i) and 29 C.F.R. ï¿½2700.30(b)). However, the Commission in Performance
Coal also held that, although there is no presumption of validity given to
the Secretaryï¿½s proposed assessments, substantial deviation from the
Secretaryï¿½s proposed assessments must be adequately explained using ï¿½110(i)
criteria. (Id. at p. 2). (see also Cantina Green, 22 FMSHRC 616,
620-621 (May 2000)). The ALJ finds that a substantial deviation from the
Secretaryï¿½s proposed assessment is warranted herein and will evaluate the
factors contained in 30 U.S.C. ï¿½820(i) to explain that deviation. Those factors
are as follows:

(1) The Operatorï¿½s history of previous
violations ï¿½ The evidence shows that Respondent had an extensive history of
ï¿½75.202(a) violations.[17] (GX-1)(GX-9).

(2) The appropriateness of the penalty
compared to the size of the Operatorï¿½s business ï¿½ The parties have stipulated
that Respondent is a large operator and Powellton is a large mine. (JX-1).

(3) Whether the Operator was negligent ï¿½
As previously shown, the operator exhibited moderate negligence, rather than
the high negligence cited by the Secretary.

(4) The effect on the Operatorï¿½s ability
to remain in business ï¿½ The parties have stipulated that the Orders at issue
here would not affect Respondentï¿½s ability to remain in business. (JX-1)

(5) The gravity of the violation ï¿½ As
previously shown, this violation was reasonably likely to result in fatal
injuries to 14 persons. ï¿½

(6) The demonstrated good-faith of the
person charged in attempting to achieve rapid compliance after notification of
a violation ï¿½ The parties stipulated that the condition was abated rapidly and
in good faith. (JX-1)

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ In
light of the Administrative Law Judgeï¿½s decision to modify the negligence from
ï¿½Highï¿½ to ï¿½Moderateï¿½ and to eliminate the unwarrantable failure designation, a
reduction in the assessed penalty is appropriate. Therefore, Respondent is
hereby ORDERED to pay a civil penalty in the amount of $45,000.00 with
respect to this violation.

Citation
No. 8154926

I.
ISSUE

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ With
respect to Citation No. 8154926, the issues to be determined are whether
Respondentï¿½s alleged violation of the Act on April 18, 2013 was the result of high
negligence, and the appropriate penalty for the violation.

II.
SUMMARY
OF TESTIMONY

The next Citation, No. 8154926 (GX-2),
was issued 15 feet inby the No. 18 crosscut in the primary escapeway, around
six crosscuts from the previous citation. (Tr. I, 58-59, 64-65, 70). There, Dempsey
saw a piece of draw rock measuring 7.5 feet long, 2 feet wide, and 4 inches
thick had gapped down over the lifeline. (Tr. I, 59, II, 41-42, 61). Peterson
believed it was two to four inches thick. (Tr. II, 41). The dimensions cited
were taken after it was pulled down, so it may have been longer or shorter. (Tr.
II, 42).

The only thing preventing the rock from
falling was a 1-inch thick, 6-inch wide fly board that was oriented across the
entry and sagging under the weight of the rock. (Tr. I, 59-61, II, 42, 61). About
ï¿½ of the rock was lying on the fly board. (Tr. II, 43). The 7 ï¿½ foot portion of
the draw rock ran the same direction as the fly board. (Tr. I, 159). The draw
rock extended over both sides of the board for a total of 18 inches to 2 feet. (Tr.
I, 61-63, 159, II, 61).

Dempsey did not believe the board was
supporting the draw rock because it was not intended to hold up heavy items or
support rock; it was used to hang ventilation curtains. (Tr. I, 60, 63,
158-160). However, at that time it was keeping the rock from falling. (Tr. I,
159, 162). Peterson believed that the board was supporting the rock. (Tr. II,
43). He had to break the board to get the rock to fall. (Tr. II, 42). Harding
testified that if he had encountered the condition during his examination he
would have tried to pull it with a slate bar or dangered it off. (Tr. I, 260). He
also would have moved the lifeline. (Tr. I, 260).

The fly board was bolted to the roof. (Tr.
I, 63). ï¿½Dempsey did not recall any part of the draw rock being bolted. (Tr. I,
161). Peterson testified that one bolt was through the draw rock attaching it
to the top. (Tr. II, 41-43, 61). The bolt had a little bit of the rock. (Tr.
II, 43).

Dempsey did not issue any other
citations regarding the top or bolting. (Tr. I, 161-162).

Dempsey felt the cited condition was
obvious and that a casual observer would see it. (Tr. I, 60, 259-260). Harding
was not sure where the fly board was located. (Tr. I, 260).

The hazard associated with the cited
condition was crushing injury from rock fall if the board broke or the rock
tilted. (Tr. I, 60). Dempsey believed that despite the board, these hazards
could have happened at any time. (Tr. I, 63). Rock is 120 pounds per cubic
inch. (Tr. I, 63-64). Here the draw rock was 5 cubic feet or roughly 600
pounds. (Tr. I, 64).

Dempsey believed that it would take some
time for the draw rock to separate from the roof and lay down gently on the
board in a way that prevented a fall. (Tr. I, 66-68). Dempsey estimated the
cited condition had existed before the last exam based on the way the rock was
laid on the board, visual observation, and experience. (Tr. I, 66, 69, 162). ï¿½If
it had occurred all at once during the last shift it would have fallen to the
side. (Tr. I, 68). Dempsey believed it had occurred more than 2 weeks earlier
and would have been present during the escapeway drill. (Tr. I, 166-167). Harding
testified that he did not see the rock during his examination. (Tr. I, 259). It
could have developed from one day to the next. (Tr. I, 260-261). Peterson saw
dust on the rock and concluded the rock was on the fly board for awhile. (Tr.
I, II, 43-44).

Miners were exposed because the drills
and examinations passed through this area. (Tr. I, 65-66). Also, Dempsey
believed the lifeline passed directly under the draw rock. (Tr. I, 66). Peterson
believed the rock was to the side of the lifeline. (Tr. I, 41).

The cited condition was S&S because
there was a violation of a mandatory safety standard, there was a hazard
contributed to by this violation (a draw rock falling on an individual), and a
reasonable likelihood of significant injury. (Tr. I, 68).

The cited condition was reasonably
likely to cause crushing injuries, which can be fatal. (Tr. I, 68-69). Eventually,
the sagging rock would gap onto the board, cause the board to sag, and then
break through or roll to the side. (Tr. I, 160-161). The rock had not yet
reached the floor, but this did not make a fall unlikely. (Tr. I, 205-206). Only
one person would have been injured if this particular rock fell, even if 14
miners were walking through the area. (Tr. I, 69).

The citation was marked as ï¿½highï¿½
negligence because the area was examined by an agent of Respondent and the
examiner should have a heightened awareness as a result of the roof falls in
the intake entries and this area. (Tr. I, 69, 162, 164-165). Further the condition
was obvious, extensive, and existed at the last examination. (Tr. I, 69, 166). Dempsey
believed Harding should have sounded the roof and observed the gap. (Tr. I,
163). While he recognized that an examiner may miss a hazard without
automatically being highly negligent, there is no ï¿½human errorï¿½ allowance for
one citation. (Tr. I, 165-166). There were no mitigating circumstances and
Peterson did not mention any. (Tr. I, 69-70).

Abatement took ten minutes and involved
Peterson pulling down the rock (Tr. I, 71).

III.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1. The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That ï¿½ 75.202(a)
Was Violated.

On April 18, 2013, Inspector Dempsey
issued a 104(a) Citation, No. 8154926, to Respondent. Section 8 of that Citation,
Condition or Practice, reads as follows:

The mine operator has failed to
protected miners from loose draw rock in the primary escapeway for the #1
working section. 15ï¿½ inby the #18 xcut adjacent to #9 beltline a section of
draw rock measuring 7.5ï¿½ long and 2ï¿½ wide and 4ï¿½ in thickness is gapped down
immediately over the primary escapeway lifeline. The only thing holding up this
draw rock is 1ï¿½ fly board which is sagging under the weght of the rock.

Standard 75.202(a) was cited 74 times in
the two years at mine 4609163 (74 to operator, 0 to contractor).

(GX-2).

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The
cited standard was, again, 30 C.F.R. ï¿½ 75.202(a).

The Secretary presented credible
evidence that Respondent violated the cited standard, as described in the
citation. (Tr. I, 59, II, 41-42, 61). In its brief, Respondent did not contest
the validity of the violation. (Respondentï¿½s Post-Hearing Brief at 22-23).
In light of this fact, and the evidence presented, the Administrative Law Judge
finds that this citation was valid. ï¿½

2. The Violation
Was Reasonably Likely to Result in a Fatal Injury to One Miner And Was
Significant And Substantial In Nature

The Secretary presented credible
evidence to support a finding that the cited condition was reasonably likely to
result in fatal injury to a miner. (Tr. I, 68-69). Further, the Secretary
supported the contention that the violation was S&S. (Tr. I, 68).

ï¿½

In its brief, Respondent did not argue
against the inspectorï¿½s gravity and S&S designations in Citation No.
8154926. The Administrative Law Judge finds that Respondent conceded that it
violated the standard. In light of this fact, and the evidence presented, the
Administrative Law Judge finds that the preponderance of the evidence supports
the Secretaryï¿½s gravity and S&S designations. ï¿½

3. Respondentï¿½s
Conduct Did Not Display ï¿½Highï¿½ Negligence

Respondent knew or should have known
about the cited condition. There is no question that a piece of draw rock
measuring 7.5 feet by 2 feet, by 2-4 inches was hanging directly over the
lifeline. (Tr. I, 59, II, 41-42, 61). Further, there is no question that at the
time of the inspection, the condition was obvious. (Tr. I, 60, 259-60). Inspector
Dempsey credibly testified that the cited condition was only supported by a fly
board. (Tr. I, 59-61, II, 42, 61). He also credibly testified that the
condition would have developed over time, perhaps over the course of two weeks.
(Tr. I, 66-68, 166-167). Respondentï¿½s agents, namely the airway examiners, were
in this area as the condition developed. (Tr. I, 65-66). As a result, Respondent
should have been aware that the condition was present and should have corrected
it. Therefore, Respondent was negligent.

While the Administrative Law Judge affirms the
inspectorï¿½s finding that Respondent was negligent, the evidence does not
support a finding that this negligence was high; there were mitigating
circumstances. Specifically, Harding credibly testified that the condition was
not obvious the day before during the airway examination. (Tr. I, 259). An
Administrative Law Judge has a duty, if possible, to resolve conflicts in the
testimony without determining that a witness committed perjury. See The
American Coal Company, 2013 WL
6529525, FN 29 (Sept. 2013)(ALJ Lewis). The most likely explanation is that the condition
existed for roughly two weeks, the draw rock slowly separating from the roof
and then settling onto the fly board. However, the condition did not become
obvious until April 18, when the slab of rock gapped fully away from the top
and settled where it was discovered by the Inspector. This explanation would
conform both Dempseyï¿½s and Hardingï¿½s observations. It would also accord with
Hardingï¿½s testimony that he did not see the condition on April 17 and would
also follow Dempseyï¿½s testimony that the condition occurred gradually.

Therefore, the Administrative Law Judge finds that the
condition, while present, was not obvious during the April 17, 2013
examination. Therefore, a finding of high negligence is not appropriate. A
finding of moderate negligence is best supported by the evidence.

4.
Penalty

The ALJ finds that a substantial
deviation from the Secretaryï¿½s proposed assessment of $21,422.00 is warranted
herein and will evaluate the factors contained in 30 U.S.C. ï¿½ 820(i) to explain
that deviation. Those factors are as follows:

(1) The Operatorï¿½s history of previous
violations ï¿½ As discussed previously, Respondent had a long history of these
types of conditions.

(2) The appropriateness of the penalty
compared to the size of the Operatorï¿½s business ï¿½ As discussed previously,
Respondent is a large operator and Roundbottom is a large mine.

(3) Whether the Operator was negligent ï¿½
As previously shown, the operator exhibited moderate negligence, rather than
the high negligence cited by the Secretary.

(5) The gravity of the violation ï¿½ As
previously shown, this violation was reasonably likely to result in fatal
injuries to one person. ï¿½

Order
No. 8154928

I.
ISSUE

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ With
respect to Order No. 8154928, the issues to be determined are whether
Respondentï¿½s alleged violation of the Act on April 18, 2013 was significant and
substantial (ï¿½S&Sï¿½), whether it was reasonably likely to result in fatal
injury to 14 miners, whether it was the result of high negligence and an
unwarrantable failure, and the appropriate penalty for the violation.

II.
SUMMARY
OF TESTIMONY

Dempsey reviewed Order No. 8154928
(GX-4). (Tr. I, 71). The cited condition was outby the overcast near the No. 8
head in the escapeway.[18] (Tr. I, 72). This
condition was found ten crosscuts from the condition observed in Citation No.
8154926. (Tr. I, 93).

Before the Order was issued, Respondent
had identified draw rock issues in this area. (Tr. I, 167-168). The order was
issued because the operator failed to protect miners in the escapeway from draw
rock. (Tr. I, 71-72). Specifically, wire mesh designed to control the draw rock
was bowed, sagging, and separated under the weight of a large amount of rock
and was failing to protect miners. (Tr. I, 72, 74-75, 80-81, 92, II, 45, 61).

Mesh is commonly used in mines to
control draw rock and bolt it to the roof. (Tr. I, 80, 246). The mesh was
inadequate because it was not pressing against the roof, the parts of the mesh
did not overlap, and the installation used substitute material, like tie wires.
(Tr. I, 174, 178). Together, these conditions create a greater hazard. (Tr. I,
174-175). This particular mesh installation would not hold much more rock and
it was already failing. (Tr. I, 184). The mesh was separating because it was
loaded with rock. (Tr. I, 185, II, 45, 54). There was lots of draw rock of
various sizes, some of which had fallen to the bottom. (Tr. I, 73, 80, 177, II,
45). As more rock collected, more wires would break and the structure would
fail. (Tr. I, 185). It could have failed at any time. (Tr. I, 176-178). Petersonï¿½s
first thought upon seeing the mesh was that some corrective action needed to be
taken. (Tr. II, 61-62).

Respondentï¿½s witnesses believed the draw
rock was controlled by the mesh and that miners passing under the mesh would be
protected. (Tr. II, 46, 50, 62, 100-101). Saunders testified that it was time
to change the mesh because the material had recently fallen, but the mesh was still
protecting miners. (Tr. II, 106-107). They conceded the center of the entry was
impassable. (Tr. II, 46).

If an operator has trouble with draw
rock, wire mesh installation is a good method of control. (Tr. I, 102, 168). Mesh
is put up to control localized draw rock, not to support main top. (Tr. II,
95). There are several ways to properly
install mesh. (Tr. I, 82, 206-207). Operators have set up beams, installed
false roofs with roof cribs, sealed the roof, and rebolted roofs. (Tr. I, 102, 206).
Every manufacturer of mesh will provide the product with an installation
manual. (Tr. I, 183-184). However, if a different method of installation provided
the same level of protection as the manufacturerï¿½s method, it is proper. (Tr.
I, 184). Most of the time, mesh is installed by the roof bolter during the
cycle. (Tr. I, 82, II, 14-15, 47, 96). If it is installed off the cycle, a
machine can be brought in and the mesh can be hung with push plates.[19]
(Tr. I, 82-83, II, 47, 95). The mesh should have an overlap of one square of
mesh, or four inches. (Tr. I, 83, 77, 184). Peterson testified that if the push
plates could not be installed, the mesh was to be overlapped and tied together.
(Tr. II, 47).

Dempsey would not say that he would
prefer that this area be scaled rather than meshed; that was not his role as
inspector. (Tr. I, 175, 182). As long as the hazard is removed any method was
fine. (Tr. I, 175-176).

Dempsey did not believe the mesh in the
cited location was properly installed. (Tr. I, 91, 93, 99). However, he
conceded that in some areas of the mine, mesh was installed properly. (Tr. I,
102). On the other hand, Peterson testified he was not sure if the mesh was
properly installed, while his deposition testimony stated that it was improper.
(Tr. II, 66-67). ï¿½

An open seam in between mesh panels was
held together with a clevis. (Tr. I, 74, II, 67, 102). ï¿½Dempsey testified that
clevises were not appropriate for connecting panels because it allows the mesh
to sag and add additional draw rock and weight. (Tr. I, 89-90). Further, the
edges of this seam did not overlap, there was a gap. (Tr. I, 75-76, 79, 83). Lack
of overlap is improper installation because it does not support the draw rock. (Tr.
I, 83-84, II, 15). There was some overlap in other areas, but not at the seam. (Tr.
I, 77). There was no push plate near the seam. (Tr. I, 76). Saunders testified
a clevis was used because a plate could not be used. (Tr. II, 102).

Clevises are generally used for light
duty lifting work and are not rated for the load placed on it here. (Tr. I, 85,
II, 103). Dempsey did not know how much weight these clevises could hold but
they were small compared to the screen. (Tr. I, 169). They are used to lift
something very small from an anchoring point. (Tr. I, 85).

Clevises were not included by the mesh
manufacturer for installation. (Tr. I, 85). Saunders had been to seminars about
the correct way to use mesh to control draw rock and read material on proper
installation. (Tr. II, 116). However, he testified that mines do not
necessarily follow the manufacturer guidelines. (Tr. II, 107). ï¿½The cited
location would be difficult to reach with a roof bolter, so the clevis would be
easier. (Tr. II, 107-108). He stated that while using clevises was not the best
installation method but it serviced the purpose. (Tr. II, 106). However, he
conceded that the use of clevises was not recommended by the manufacturer. (Tr.
II, 117).

With respect to loads, there are
barrel-type and screw-type clevises and they range in strength from 3/4 of a
ton to 4 or 5 tons. (Tr. II, 103). A document provided by Respondent showed
that a 3/4-inch clevis could hold a vertical load of 4 3/4 tons. (Tr. I, 179). However,
the cited clevises were less than 3/4-inch so the load limits are irrelevant. (Tr.
I, 179, 207). Dempsey believed that it was a 1/4 inch or 3/16 inch clevis as
measured from the diameter of the pin. (Tr. I, 170-171). Harding had not
measured the clevises, but had looked at them before and saw the stamp for
their size, though not at this time. (Tr. II, 13-14). Peterson did not measure
the clevises but he had used them before and they were 1/4-inch. (Tr. II,
67-68).

Regardless of the size, a clevis can
lift the greatest load when vertical. (Tr. I, 86). Changing the angle of the
hoist requires a load reduction. (Tr. I, 86, 103-104). The clevis here was on
its side, meaning that the load would have to be reduced from the
manufacturerï¿½s direct vertical load. (Tr. I, 86-87, 179). Respondentï¿½s document
listing the vertical load at 4 3/4 tons for a 3/4-inch clevis did not include
the side loading application limits. (Tr. I, 179-180, 207-208). Peterson
testified that he had seen a document that included the lateral load, but he
did not recall the amount at hearing. (Tr. II, 68). Saunders testified that the
strength of the clevis is six times the working load and that when the
application is lateral there is a loss of 50 percent of capacity. (Tr. II,
104). He testified that this would still be several tons of strength. (Tr. II,
104). The cited clevises had a capacity of around 6,000 pounds, maybe slightly
less. (Tr. II, 105). Harding did not know the
lateral load for the clevises. (Tr. II, 14).

In addition, Saunders testified the mesh
itself was between 1/8 and 1/4 inch of steel. (Tr. II, 105). The strength of
the carbon steel the mesh is made of is 65,000 PSI. (Tr. II, 105-106). Each
strand of steel would hold around 1,000 pounds, so the clevis was stronger. (Tr.
II, 106).

Dempsey testified that each clevis is
designed with a different strength of steel and construction can change the
load it can hold. (Tr. I, 180). Peterson did not know what the clevises were
made of. (Tr. II, 67).

In another spot, a clevis was not even
suspended or anchored; it was just being used as a ï¿½glorifiedï¿½ tie wire. (Tr.
I, 88-89). When a clevis is used, it is anchored to something and then a load
is suspended from it. (Tr. I, 88). The clevis had no ï¿½load limitï¿½ when not
anchored because it was used improperly. (Tr. I, 89).

There were no other locations in the
mine where the mesh was connected with clevises. (Tr. I, 82, 169). There was no
evidence that clevises were broken. (Tr. I, 171). Dempsey
did not count the clevises in this area. (Tr. I, 169).

In several places the open seams in the
mesh were secured with tie wire, which would not support the load. (Tr. I, 72,
76-78, 90, 172-173, II, 62). In these locations there was no overlap or bearing
plate. (Tr. I, 76, II, 62). The seam opened because the installation could not
hold the rock. (Tr. I, 90). Rock fell down the seam onto the bottom. (Tr. I,
78-79, 80, 173). Draw rock falling through the seam would be no different than
if it fell from the ceiling. (Tr. I, 173). Dempsey observed mesh in other
locations at the same mine but none were connected with tie wire and none had
non-overlapping seams. (Tr. I, 81-82).

Harding and Peterson conceded that
panels were held together with tie wire, even during the examination. (Tr. II,
13, 54). Peterson testified that it was proper to use tie wires to prevent a
gap given the amount of rock present. (Tr. II, 64, 66). Peterson reviewed his
sworn, signed deposition testimony on page 69, line 15 (GX-11). (Tr. II, 63). In
that testimony, Peterson stated that a particular tie wire was not doing its
job because the weight of the rock had crushed it. (Tr. II, 63-64). He also
stated that it was improper installation to have the seams. (Tr. II, 64).

In another area, the mesh was tied to a
roof bolt plate with a tie wire rather than rebolts. (Tr. I, 78, II, 53-54,
62). Dempsey did not recall if he saw tie wires on plates in other places. (Tr.
I, 81). There were no other locations in the mine (or in other mines) where the
mesh panels were connected to the roof with tie wires. (Tr. I, 82, 90-91). At
first, Harding testified that he did not see tie wires attached to the top, but
later conceded that mesh was connected to the top during his examination. (Tr. II,
13)(GX-6, p. 4). Peterson testified that this installation was used because the
roof boltï¿½s thread had broken and therefore would not accept a plate. (Tr. II,
53-54).

Tie wire is generally used to hold roof
bolts in place and hold other materials together, like gluts or wedges. (Tr. I,
84, II, 65). Tie wire was not supplied by the mesh manufacturer for
installation. (Tr. I, 84, II, 65). Manufacturers provide information about
proper installation because they have liability. (Tr. I, 84-85). The tie wire
here was old, a little rusty, and broken apart. (Tr. I, 84). The mesh itself
had some rust on the surface. (Tr. I, 91). Peterson testified that the purpose
of tie wire is to support areas where mesh overlaps and no push plate can be
installed. (Tr. II, 52-53). The ties keep the edges from rolling back where
they could hit someone in the face. (Tr. II, 53).

If the clevises and tie wires were used
as they were here, but the seams had not burst, there would still be a
violation. (Tr. I, 98-99). The installation ensured that the roof would fail. (Tr.
I, 99). This was like having an unsupported roof; the rock was uncontrolled. (Tr.
I, 99). Saunders conceded that this was not proper installation and that
clevises and tie wires were not supposed to be used. (Tr. II, 117).

Rather than clevises or tie wires, push
plates should have been placed where they would support the screen and hold it
against the roof. (Tr. I, 183). These kinds of plates are installed over the
bolts that had extended threads. (Tr. I, 183). In fact, some bearing plates
were present in the cited area. (Tr. I, 77, 82, 172). Peterson and Saunders
testified that there were seven or eight push plates in the cited mesh. (Tr.
II, 48, 90, 96). Neither Dempsey nor Harding was sure of the number. (Tr. I,
169, 189, 258). However, there were no push plates in the center of the entry. (Tr.
I, 171-172, II, 49). Respondentï¿½s witnesses testified that there was no plate
because the threads on the end of the bolt had broken off. (Tr. I, 254, II
102). Peterson did not recall seeing push
plates directly over the lifeline but believed that the area was supported. (Tr.
II, 48). Saunders believed most of the plates were along the life line. ï¿½(Tr. II,
90). However, he arrived at the overcast after they cut down the mesh. (Tr. II,
89-90, 94).

Harding and Saunders testified that the
push plates were rated for 6,000 pounds (Dempsey was not sure). (Tr. I, 171,
252, II, 95-96). Dempsey did not see any evidence that any push plates had
loosened, failed, or stopped performing. (Tr. I, 171). But, because of the
cited condition, he could not get near the push plates to observe closely. (Tr.
I, 171-172). Peterson did not see any plates that were stressed or
over-weighed. (Tr. II, 56-57).

In addition to using the proper materials,
the mesh was supposed to be installed tight to the roof to prevent the air from
cutting more draw rock. (Tr. I, 174, 178). Here Dempsey believed the mesh was
not tight, allowing more rock to fall and add unsupportable weight to the mesh.
(Tr. I, 174, 178). However, Respondentï¿½s witnesses testified that the mesh above
the lifeline was still tight to the roof and that only the area opposite the
lifeline was loose. (Tr. I, 254-255, 258, II, 45-46, 100). ï¿½

Dempsey did not know how much rock was
in the mesh. (Tr. I, 179-180). According to Peterson, when they cut the mesh
down, the loose rock was about four feet in diameter, most of it small. (Tr.
II, 55). Based on that measurement, Dempsey determined there was 1,507 pounds
of rock. (Tr. I, 208-210). Peterson testified that the amount of rock in the
mesh would be enough to fill a wheel barrow or a little bit more. (Tr. II, 55).
He believed it weighed 300 rather than 1,500 pounds. (Tr. II, 55-56). He was
not concerned that the amount of rock would cause a failure of the mesh. (Tr.
II, 57-58). The wire mesh is not designed to hold up the mound, it is just to
collect the loose material that falls off to prevent it from reaching the
bottom. (Tr. II, 57-58).

Dempsey believed the hazard associated
with this condition was falling draw rock. (Tr. I, 92). If the condition were
allowed to continue, other portions of the roof would deteriorate, fall, and
break through the seams in the mesh. (Tr. I, 92). Ultimately the entry where
miners work and travel would fail. (Tr. I, 92). He did not believe that the
fact that the rock was caught and suspended indicated that miners were
protected from falling rock. (Tr. I, 181). In fact, the mesh made the area more
dangerous as it was gathering rocks. (Tr. I, 92, 168). The screen was being
loaded with more stone every day and all the weight would fall at once when the
mesh failed. (Tr. I, 168, 182). ï¿½Further, if the mesh were gone, individual
rocks could be spotted and pulled down; the gob of rocks prevented observation
and understanding of the roof. ï¿½(Tr. I, 181-182). However, Dempsey conceded
that without the mesh, each piece of rock would have fallen to the floor and
could have hit a mine (if not scaled). (Tr. I, 168-169).

Peterson testified that the only hazard
was where the mesh had separated because someone could walk into it. (Tr. II,
58). If Peterson had been the airway examiner he would have recommended that
someone tighten the gap. (Tr. II, 58). He would have also recommended cutting
the mesh and letting some rock fall out and then resetting. (Tr. II, 58-59).

According to Dempsey, the cited
condition existed for ï¿½quite a whileï¿½ because of the deterioration that had
taken place. (Tr. I, 94, 187). The metal had oxidized and time would be needed
for the cited rock to accumulate. (Tr. I, 94). The condition had existed since
the mesh was installed, which was more than a week ago and probably before
November 2012. (Tr. I, 95, 245-247). It was possible that there was a time when
pieces falling did not weigh enough to separate the seam. (Tr. I, 181). It
would be hard to tell when the different pieces of rock had fallen. (Tr. I,
180-181).

The day before the instant citation,
Harding traveled from the surface to the section. (Tr. I, 188-189). At the time
of issuance, Harding stated that, ï¿½it was not like that yesterday.ï¿½ (Tr. I,
178, 187, 251). Dempsey replied that he found it hard to believe that the
sagging mesh had not been present the day before. (Tr. I, 187-189). Harding
testified that on April 17th the wire mesh was not sagging and that
there was maybe 50 pounds of rock in the mesh. (Tr. I, 244-245, 247-248, 253,
II 12, 18). Further, the mesh was not separated from the seam and there was no
draw rock under the lifeline or mesh. (Tr. I, 248-249, 253). He believed the rock
was controlled. (Tr. I, 248). On the day of the citation, Harding and Peterson
believed most of the rock in the mesh was fresh. (Tr. I, 255-256, II, 51, 55). Old
rocks that are exposed to the air appear lighter, dry, and dusty while fresh
rocks are dark and wet. (Tr. I, 255-256, II, 51-52, 86-87). The rock here was
dark gray and wet. (Tr. II, 52, 100-101). The cited material would have struck
Harding in the nose and neck, meaning it would be hard for an examiner to walk
under it. (Tr. I, 188-189, 245). If he had seen this condition, he testified
that he would have remedied it but it was not present. (Tr. I, 245, 249, 254).

This condition was in the primary
escapeway where the fire drill occurred. (Tr. I, 93). There must be six feet of
travel area to accommodate a lifeline, in case a disabled miner would need to
be transported to the surface on a stretcher. (Tr. I, 94). The lifelines passed
directly under the mesh panels. (Tr. I, 77, 94). If the condition of the mesh
existed on the 15th or 16th, Dempsey would have expected
one of the men to report the condition. (Tr. I, 186). However, Dempsey did not
recall talking to any of the miners. (Tr. I, 187). Further, a weekly examiner
would have traveled in this area on the 17th. (Tr. I, 93-94).

The citation was marked S&S because
there was a violation of a mandatory safety standard, the violation contributed
to the hazard of draw rock, and there was a reasonable likelihood that this
hazard would result in a substantial injury to a miner. (Tr. I, 95).

This citation was marked ï¿½fatalï¿½ because
draw rock can crush a person. (Tr. I, 96). The mesh had not yet completely
failed, but this did not make a fall unlikely. (Tr. I, 206). Also, the 14
miners in the fire drill would be affected as they all could have been killed.
(Tr. I, 96, 182).

The condition was cited for ï¿½highï¿½
negligence because it should have been observed and repaired long before the
inspection. (Tr. I, 96). Someone recognized that there was a problem, but the mesh
was installed incorrectly. (Tr. I, 96-97). Respondent also knew that the mesh
was held together with tie wire. (Tr. I, 96). Further, this area was examined
and supervisors passed through. (Tr. I, 96). Dempsey did not believe there were
any mitigation circumstances because the installation was improper, it was set
up to hurt people rather than help. (Tr. I, 97). Further, when a supervisor
directs a miner to do work, he is required to examine the work and ensure that
it is done correctly and protects health and safety. (Tr. I, 99).

Dempsey did not see any mitigation and
Respondent did not bring any up. (Tr. I, 97). In fact, Dempsey stated that
Peterson agreed with the citation. (Tr. I, 100-101). The mesh was not a
mitigating factor because it made matters worse rather than better. (Tr. I,
183).

Dempsey believed this conduct was an
unwarrantable failure. (Tr. I, 72). A UWF can be intentional or be the result
of indifference. (Tr. I, 97). The cited condition was obvious, extensive, had existed
for a while, and it had been examined by Respondentï¿½s agent. (Tr. I, 97-98). The
cited condition was plainly visible as it hung down below the edge of the
overcast. (Tr. I, 72-73). The rock was hanging and suspended from the mesh. (Tr.
I, 73). Any observer (trained or not) should have seen this condition. (Tr. I,
91). Dempsey described the situation as a ï¿½bombï¿½ that would fall on someone and
he did not want to walk under it. (Tr. I, 91-92, 98).

As a result of this condition, a D-Order
was issued, pulling the miners outby the 9-head. (Tr. I, 249-250). The order
was issued at 11:00 and was terminated at 1:10. (Tr. I, 101). It took 15 miners
to make the repairs. (Tr. I, 101). The condition was abated when Respondent
took down the wire mesh, cleaned the draw rock, and set two rows of roof jacks
in the area. (Tr. I, 101, 251, II, 69). Respondent cut off the mesh at the
corner with a grinder, let the rocks fall, raked them off the mesh, and threw
everything away. (Tr. I, 257, II, 49). Peterson testified that if there had
been a lot of rock they would not have used a grinder because it would have
been hazardous. (Tr. II, 59). Dempsey did not observe or direct the repairs.
(Tr. I, 101-102, 179). ï¿½

III.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1. The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That ï¿½ 75.202(a)
Was Violated.

On April 18, 2013 Inspector Dempsey
issued a 104(d)(1) Order, No. 8154928, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The operator has failed to protect
miners who travel the intake/primary escapeway from the fall of roof material
(draw rock). The primary escapeway is deemed unsafe to travel in the area
immediately outby the overcast near #8 head. Wire mesh has been used to control
draw rock. This wire mesh is bowed and separated under the applied load. Several
points were secured w/simple tired wire which will not support the applied
load. The operator has engaged in aggravated conduct constituting more than
ordinary negligence. The violation is an unwarrantable failure to comply with a
mandatory standard.

Standard 75.202(a) was cited 75 times in
the two years at mine 4609163 (75 to operator, 0 to contractor). The violation
is an unwarrantable failure to comply with a mandatory standard.

(GX-4).

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The
cited standard was, again, 30 C.F.R. ï¿½ 75.202(a).

The Secretary presented credible
evidence that Respondent violated the cited standard, as described in the
citation. (Tr. I, 71-75, 80-81, 92, II, 45, 61). In its brief, Respondent did
not contest the validity of this Order. (Respondentï¿½s Post-Hearing Brief
at 24-26). In light of this fact, and the evidence presented, the
Administrative Law Judge finds that this citation was valid. ï¿½

2. The Violation
Was Significant And Substantial In Nature And Reasonably Likely to Result in
Fatal Injuries to 14 Persons

Inspector Dempsey marked the gravity of
the cited danger in Order No. 8154928 ï¿½Reasonably Likelyï¿½ to result in ï¿½Fatalï¿½
injury to 14 person. (GX-9). These determinations are supported by a
preponderance of the evidence.

The event against which the instant
standard, 30 C.F.R. ï¿½ 75.202(a), was directed, as stated in the standard, are ï¿½hazards
related to falls of the roof, face or ribs and coal or rock bursts.ï¿½ Those
hazards include being struck by falling rock as well as walking into the mesh
used to control the draw rock. (Tr. I, 92, II, 58). In the instant location,
Inspector Dempsey credibly testified that the wire mesh was improperly
installed, creating the possibility that the rocks collected therein would fall
on miners. (Tr. I, 72, 74-75, 80-81, 92, 184, II, 45, 61). The mesh was
improperly installed because it used devices other than those provided by the
manufacturer, namely tie wires and clevises. (Tr. I, 72, 74, 76-78, 90, 172-713
II, 62, 67, 102). Tie wire was also used, instead of the recommended push
plates, to attach the mesh to the top. (Tr. I, 78, II, 53-54, 62). Also, the
pieces of mesh were not overlapped, as is best practice. (Tr. I, 75-76, 79,
81-84, II, 15). Finally, the installation did not keep the mesh close tight to
the roof as required. (Tr. I, 174, 178). As a result, rock filled the mesh,
caused it to bow out and then split. (Tr. I, 185, II, 45, 54). This allowed
some rock to fall and created the likelihood that the entire mesh structure
would fall. (Tr. I, 185). As discussed supra, rock falls are inherently
dangerous. Therefore, a preponderance of the evidence supports the Inspectorï¿½s
finding that a fatal injury was reasonably likely.

For the same reasons as discussed with
respect to Citation No. 8154925 supra, this was an area miners worked
and traveled, especially during fire drills or emergencies. Therefore, a
preponderance of the evidence supports the Inspectorï¿½s finding that 14 miners
would be affected in the event of a massive roof fall.

Respondent provided several arguments
asserting that an accident was unlikely. As Respondent addressed those
arguments as they related to the S&S designation, they will be discussed infra.

Order No. 8154928 was marked by
Inspector Dempsey as S&S. (GX-4). It has already been established that the
first element of the Mathies S&S analysis, the underlying violation
of a mandatory safety standard, has been established with respect to this order.
As discussed supra, Respondent violated 30 C.F.R. ï¿½ 75.202(a).

The second element of Mathies, a
discrete safety hazard ï¿½ that is a measure of danger to safety ï¿½ contributed to
by the violation, is also met. The preponderance of the evidence shows that the
cited condition, an improperly installed wire mesh, contributed to the hazard
of a roof fall. The wire mesh suspended several pieces of rock above the
escapeway floor and, upon failure, would have allowed hundreds of pounds of
rocks to fall. (Tr. I, 185, 208-210, II, 55-56). The evidence suggests that
there were several safer ways to control draw rock in the area. Inspector
Dempsey credibly testified that, if installed correctly, the mesh would have
prevented a rock fall. (Tr. I, 102, 168). Further, there were several other
methods of roof control that would have made a roof fall very unlikely. (Tr. I,
175-176). Therefore, the improperly installed mesh made a roof fall more likely
and contributed to a hazard.

Respondent argued that this condition
did not contribute to any hazard. However, this argument is not persuasive. Respondent
argued that the mesh did not contribute to a safety hazard, but was installed
to prevent and remedy a safety hazard related to falling material and tripping
hazards. (Respondentï¿½s Post-Hearing Brief at 26). It argued that the
mesh prevented material from falling to the ground. (Id.). There is no
question that properly installed mesh will prevent a hazard, rather than
contribute to one. (Tr. I, 102, 168). However, Inspector Dempsey credibly
testified that the condition of the cited mesh actually increased danger. Rather
than allowing Respondent to see and then scale draw rock (as it would if there
was no mesh), the mesh obscured visibility. (Tr. I, 92, 168, 182). And rather
than hold the rock (as it would if the mesh were improperly installed), the
mesh created a ï¿½time bombï¿½ that would eventually go off when the weight of the
mesh proved too great to hold. (Tr. I, 91, 92, 98). Therefore, it is possible
that the condition was less safe than if Respondent had completely ignored the
area. Rather than smaller pieces of rock falling occasionally (still a
considerable hazard), the mesh created the probability of a large collapse.
Therefore, the Administrative Law Judge finds that the second prong of Mathies
is met.

The third element of the Mathies
test ï¿½ a reasonable likelihood that the hazard contributed to will result in an
injury ï¿½ is also met. In the event of a split or collapse in the mesh, there is
no question that a massive rock fall would occur. All the witnesses agree that
there was rock in the mesh and that it posed a danger. (Tr. I, 72, 74-75,
80-81, 92, II, 45, 61). I credit the testimony of Inspector Dempsey that over
1,500 pounds of material was caught in the mesh. (Tr. I, 185, 208-210). Further,
more might have collected in the mesh before the ultimate failure. For the
reasons discussed supra, I find that miners were exposed to this
condition. As a result, I find that in the event that the mesh failed, injuries
would be reasonably likely.

Respondent argued that this condition
did not contribute to any hazard. However, this argument is not persuasive. Respondent
cited to Judge Zielinskiï¿½s decision in Ohio County Coal Co., for the
proposition that in order to find an injury causing event was likely, both the
likelihood of both a miner being in the area and a roof fall occurring at the
same time must be considered. 31 FMSHRC 1486, 1491 (2009)(ALJ Zielinksi). Judge
Zielinskiï¿½s decision was issued before the Commission clarified the Mathies
test in Musser Engineering, Inc., and PBS Coal Inc., supra. The issue is
no longer whether there could simultaneously be a roof fall and a miner in the
area. Instead, the roof fall is presumed to happen and the question is whether
anyone was exposed. For the reasons discussed supra, the Administrative
Law Judge found that miners regularly worked and traveled in this area,
including miners on regular fire drills or in an emergency. Therefore, there
was exposure and, if there was a roof fall, injuries would be reasonably
likely.

The fourth element - a reasonable
likelihood that the injury in question will be of a reasonably serious nature ï¿½
is also met. As discussed with respect to Citation No. 8154925, injuries
resulting from a rock fall would be serious. Therefore, the cited condition was
S&S.

3. Respondentï¿½s
Conduct Displayed ï¿½Highï¿½ Negligence And Was The Result Of An Unwarrantable
Failure To Comply With the Standard.

In the citation at issue, Inspector Dempsey
found that the operatorï¿½s conduct was highly negligent in character. (GX-4). The
preponderance of the evidence supports this finding.

With respect to knowledge, the evidence
shows that Respondent knew, or should have known, about the cited condition. Inspector
Dempsey credibly testified that the wire mesh had been improperly constructed
since it was first installed. (Tr. I, 91, 93, 99). The evidence is not clear on
when the mesh was installed, but it was at least several months before the
instant citations. (Tr. I, 95, 245-247). Therefore, Respondentï¿½s examiners had
been traveling through the area weekly and should have noticed that the
installation was inadequate and taken steps to correct the problem.

Further, there were no mitigating
circumstances. Inspector Dempsey testified that he did not see any mitigating
factors and that Respondent did not offer any at issuance. (Tr. I, 97). According
to Dempsey, Peterson agreed with the issuance of the order. (Tr. I, 100-101). The
Administrative Law Judge finds that Respondent should have known about the
cited condition and did nothing that would constitute a mitigating factor of
that negligence.

Respondent presented several putative
mitigating factors with respect to this order. However, none of those arguments
were compelling.

First, Respondent argued that the area
had been previously identified as being susceptible to draw rock and it had
installed steel mesh to alleviate the hazard. (Respondentï¿½s Post-Hearing
Brief at 25). Further, Respondent argued that the mesh was achieving the
goal of preventing draw rock from falling to the ground. (Id. at 26). While
identifying areas that experience draw rock is positive, Respondentï¿½s actions
here were not a mitigating circumstance. Inspector Dempsey testified that the
mesh actually made conditions in the area worse and therefore, was not a
mitigating circumstance. (Tr. I, 183). As discussed supra, the inspector
credibly testified that the nature of the installation made the condition a
ï¿½time bombï¿½ rather than a protective measure. (Tr. I, 191). Therefore, the
installation of the mesh was not a mitigating factor.

Next, Respondent argued that it did not
know and had no way to know that the condition was present. It argued that the
mesh panels had been in place for a year and that no one (including MSHA
inspectors) indicated that the installation method was hazardous. (Respondentï¿½s
Post-Hearing Brief at 25). I credit the testimony of Inspector Dempsey who
stated that cited condition was obvious. (Tr. I, 97-98). Unlike with respect to
Citation No. 8154925, Inspector Dempsey did not qualify his determination of
obviousness based on how often the area was examined. I find that the
condition, mesh panels installed directly over the head of the examiner that
were loose from the top and held together with tie wires and clevises would
have been obvious. This is not a mitigating circumstance.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½

Next, Respondent argued that the mesh
over the lifeline was secured to the roof with push plates (which were rated to
hold 6,000 pounds each). (Respondentï¿½s Post-Hearing Brief at 25). The
Administrative Law Judge does not believe the evidence would support such a
finding. The only witness who stated that there were push plates life line was
Saunders. (Tr. II, 90). However, Saunders arrived at the overcast after the
mesh had been cut down. (Tr. II, 89-90, 94). He did not see the condition as it
appeared when the order was issued. Further, Peterson, Respondentï¿½s only
witness who was at the overcast when the order was issued, testified that he
did not recall seeing push plates over the lifeline. (Tr. II, 48). The
Administrative Law Judge credits this testimony, as well as the testimony of
Inspector Dempsey who stated that the cited mesh was not supporting the top. (Tr.
I, 71-75, 80-81, 92, II, 45, 61). This is not a mitigating circumstance.

Next, Respondent argued that push plates
were used on all roof bolts that would accept them and that clevises were used
when they would not. (Respondentï¿½s Post-Hearing Brief at 25). It also
noted that these clevises were designed to hold nearly the same weight as the
push plates. (Id.). ï¿½The exact number of push plates used was unclear. Peterson
and Saunders testified that there was seven or eight. (Tr. II, 48, 90, 96). Neither
Dempsey nor Harding was sure. (Tr. I, 169, 189, 258). It is uncontested that
there were no plates in the center of the entry. (Tr. I, 171-172, II, 49). Further,
it is unclear how many clevises were used and how much weight they could hold. However,
the Administrative Law Judge is certain that the clevises did not hold as much
weight as the push plates. The statistics used by Respondent to prove the
strength of the clevises all dealt with larger clevises being used properly as
hoisting devices. (Tr. I, 179-180, II, 67-68). The clevises used here were much
smaller and were being used as clamps or tie wires. (Tr. I, 88-89, II, 67-68). While
it is unclear how much the clevises could hold, it was clearly less than
proposed by Respondent.

Regardless of the number of plates or
the strength of the clevises, it was clear from the result support was
insufficient. In essence, the proof is in the pudding. Respondentï¿½s
installation had failed to control the draw rock. Even Peterson stated, upon
seeing the mesh when the order was issued, that something needed to be done. (Tr.
I, 100-101, II 61-62). If the clevises and the push plates had been sufficient
to control the roof, the mesh would not have been leaking rock and been on the
verge of collapse. This is not a mitigating circumstance.

Next, Respondent argued that the tie
wire was used for ï¿½cosmetic purposesï¿½ to keep the ends of the mesh panel from
rolling down or becoming a hazard to walk into. (Respondentï¿½s Post-Hearing
Brief at 25). The Administrative Law Judge credits the testimony of
Inspector Dempsey that there was at least one seam on the mesh that was held
together by tie wire. (Tr. 72, 76-78, 90, 172-173, II, 62). The photographic
evidence supports this testimony. (GX-6, photographs 2, 3, & 5). Far from
being cosmetic, this installation using materials not provided by the
manufacturer was one of the reasons the roof conditions were so hazardous. This
is not a mitigating circumstance.

Finally, Respondent argued that most of
the rock was fresh and the seam and split apart since the previous examination.
(Respondentï¿½s Post-Hearing Brief at 26). The Administrative Law Judge
credits the testimony of Inspector Dempsey that the rock had been present for
some time. (Tr. I, 187-189). However, even if that were not the case, this
would still not constitute a mitigating circumstance. The roof was not
controlled because the mesh was improperly installed. Even before the rock
began to collect in the mesh, the panels were held together with tie wires and
clevises in a way that prevented the mesh from maintaining its position close
to the top. When the rock fell, it made this improper installation more
obvious, but the rock itself was not the cited condition. The rock was the result
of the improper installation, the danger that the mesh should have prevented. This
condition would have been a violation even if no rock had fallen. Even if the
rock had fallen just five minutes before the order was issued, the improper
installation had occurred months earlier. Therefore, this is not a mitigating
circumstance.

In light of the foregoing, the Administrative
Law Judge affirms the inspectorï¿½s finding of ï¿½high negligence.ï¿½

The Commission has recognized the close
relationship between a finding of unwarrantable failure and a finding of high
negligence. San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007) (remanded
because a finding of high negligence without a corresponding finding of
unwarrantable failure was ï¿½seemingly at odds.ï¿½) see also Consolidation Coal
Company, 22 FMSHRC 340, 353 (2000) (holding that if there is mitigation, an
unwarrantable failure finding is inappropriate). Emery Mining Corp.,
defines an unwarrantable failure, as ï¿½aggravated conduct constituting more than
ordinary negligence.ï¿½ Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec.
1987). Such conduct may be characterized as reckless disregard, intentional
misconduct, indifference, or serious lack of reasonable care. Id. at
2004; see also Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995). The
Commission formulated a six factor test to determine aggravating conduct. ï¿½IO
Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec. 2009). While each factor
does not need to be present in order to find unwarrantable failure, all six
factors must be considered. The Administrative Law Judge will consider each of
those factors in turn:

1. Extent Of The Violative
Condition

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ This particular
condition was a large piece of mesh, around 240 square feet, that was
improperly installed. It covered the entire width of the entry. Therefore, it
was extensive.

2. The Length of
Time of the Violation Existed

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ While the exact
date of the installation is not clear from the record, there is no question
that it was there for several months. (Tr. I, 95, 245-247). Inspector Dempsey
credibly testified that the mesh was rusty, indicating that installation was
not recent. (Tr. I, 91). Therefore, the cited condition had existed for quite a
while.

3. Whether the
violation is obvious or poses a high degree of danger

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The violation at
issue here was obvious and posed a considerable danger. As discussed supra,
this condition was reasonably likely to result in fatal injuries to 14 miners. I
credit the testimony of the inspector that the condition was obvious and should
have been observed by a trained or untrained observer. (Tr. I, 91-92).

4. Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The evidence
suggests that Respondent had problems with roof falls in this mine. (Tr. I, 42,
202-203). In fact, several months after these citations were issued a roof fall
occurred in the cited entry. (Tr. I, 107). Further, Respondent had an extensive
history of ï¿½ 75.202(a) violations. Therefore, Respondent had meaningful notice
that roof conditions were a serious problem in the mine. Respondent should have
taken action to correct this condition.

5. The operatorï¿½s
efforts in abating the violative condition

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The parties
stipulated that the condition was abated quickly and in good faith. (JX-1).

6. Operatorï¿½s
knowledge of the existence of the violation

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ ï¿½It
is well-settled that an operatorï¿½s knowledge may be established, and a finding
of unwarrantable failure supported, where an operator reasonably should have
known of a violative condition.ï¿½ IO Coal Co., 31 FMSHRC at 1356-1357 (citing
Emery, 9 FMSHRC at 2002-2004). A supervisorï¿½s knowledge and involvement is
an important factor in an unwarrantable failure determination. See Lopke
Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB
Enterprises, Inc., 20 FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor
v. Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984). As discussed above, the
preponderance of the evidence shows that Respondent should have known of the
condition. Harding, and other examiners, traveled through this area and
actively searched for violative conditions. These examiners should have seen
the condition and corrected it.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ In
light of the size of the violation, the length of time it had, the obviousness
and high degree of danger posed by the condition, the notice Respondent
received regarding the need to control the top, Respondentï¿½s knowledge of the
cited condition, and the fact that Respondentï¿½s actions are best characterized
as ï¿½highï¿½ negligence, the Administrative Law Judge finds that this violation
was an unwarrantable failure on the part of the operator.

4.
Penalty

In light of the fact that the
Administrative Law Judge has affirmed the Secretaryï¿½s citation as issued, it is
appropriate to affirm the assessed penalty as issued. Therefore, Respondent is
hereby ORDERED to pay a civil penalty in the amount of $70,000.00 with
respect to this violation.

Citation
No. 8154927

I.
ISSUE

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ With
respect to Citation No. 8154927, the issues to be determined are whether Respondentï¿½s
alleged actions on April 18, 2013 were a violation of ï¿½75.364(a)(1) and, if so,
whether that violation was significant and substantial (ï¿½S&Sï¿½), whether it
was reasonably likely to result in fatal injuries to 14 miners, whether it was
the result of high negligence and an unwarrantable failure, and the appropriate
penalty for the violation.

II.
SUMMARY
OF TESTIMONY

Citation No. 8154927 (GX-3) was issued
because Respondent failed to conduct an adequate weekly examination of the
intake/primary escapeway. (Tr. I, 102-103, 268). Specifically, between the No.
26 crosscut to the overcast near the No. 8 belt, three obvious and extensive
conditions were found. (Tr. I, 103, 190). There was only about 1,200 feet, from
the first citation to the order. (Tr. I, 190). However, Dempsey already
considered that this have been an inadequate examination after the second
condition.[20] (Tr. I, 195).

Weekly examinations are conducted to
ensure that hazardous conditions are identified and corrected. (Tr. I, 104). Examiners
must look for the standards in the examination books as well as roof and rib
conditions. (Tr. I, 104-106, 134, 219-220, II, 79). Examiners must be familiar
with the roof control plan. (Tr. I, 106). Examiners must have experience and
training to identify hazards like wide entries, draw rock, rib sloughage,
damaged bolts, and rib rolls, rib sloughage, and bottom pressure. (Tr. I, 106, 134,
219-220, II, 24, 79-80). An examiner should sound the top, take measurements,
check the lifeline (including tripping hazards), check the SCSR caches, refuge
chambers, examine stoppings, check ventilation control, and spend additional
time on suspicious areas. (Tr. I, 134, 219-220, II, 79-81). With the lifeline,
he would look for cones (facing the proper direction and properly spaced),
proper connections, proper location, reflector spacing, balls for the mandoor
signs, and the signs themselves so miners can use the lifeline if there is no
visibility. (Tr. I, 220, II 79-80). Examiners focus on things that changed from
the previous week. (Tr. II, 114). However, it is possible for some conditions
to be missed on an examination and for that examination to be adequate. (Tr. I,
196, II, 113).

When an examiner sees a condition, he
should immediately report it and correct it. (Tr. I, 106, 227, II, 81). If a
condition cannot be corrected, it should be dangered off. (Tr. I, 106, II 28,
81). To danger an area off, a marker board or danger tape is hung at eye level
around the hazard. (Tr. I, 237). If there is a lifeline in the area, it is
moved to where conditions are safe. (Tr. I, 237-238). Then he would let
management know about the condition so it could be corrected. (Tr. II, 28). There
is no situation where an examiner must identify a hazard but is not required to
correct the condition. (Tr. I, 106). If no hazard is found, that is also
entered in the book. (Tr. I, 227). As a result, all weekly examinations are
recorded. (Tr. I, 227).

At the mine, it was Petersonï¿½s job to
follow-up on recorded hazards and to double check airway examinations. (Tr. II,
28-29). In order to double check airway examinations, Saunders would look at
footprints on the bottom. (Tr. II, 81). Footprints should zig-zag and be near
crosscuts and doors. (Tr. II, 82). He would know someone was making corrections
if he saw re-bolts, draw rock pilled down, rib sloughage removed, material
moved from under the life line, new signage and new timbers. (Tr. II, 81-82). In
short, he would look at everything that the examiner would inspect and then
check the book to see if it matched. (Tr. II, 82).

At the time of the instant citations,
there were five day examiners. (Tr. I, 225). All of the examiners were
qualified to examine airways. (Tr. I, 226). Work was divided between these examiners
with each airway assigned on a specific day. (Tr. I, 225-226). Harding had
inspected the primary escapeway on April 17. (Tr. I, 226, II, 11).

Harding testified that when preparing to
make an examination, he would review the books for the prior examination and
discuss it with management. (Tr. I, 238, II, 8). He did this to determine if
there were any changes in conditions or to look at anything that was added. (Tr.
I, 238). The previous weekï¿½s information allowed him to make a more detailed
exam. (Tr. I, 239). Sometimes things on prior examinations would alert him to
hazards. (Tr. I, 238-239). He knew that there were draw rock issues at the
time. (Tr. II, 8).

On the day of the examination, Harding
traveled 2.5 miles from the portal through the primary escapeway at issue. (Tr.
I, 240, II, 8). He walked from the portal inby to the double doors. (Tr. I, 39,
II, 8). Some of the exam would be walked, but the rest would be on a ride. (Tr.
I, 241). The area where the citations were issued was walked. (Tr. I, 233-234, 241-242).

Harding traveled to all of the areas
where conditions were cited in Citation Nos. 8154925, 8154926, and 8154928. (Tr.
II, 8-9). All of his notes were in the record for the week ending April 20,
2013. (Tr. II, 9-10). He examined the seals, refuge chamber, and caches. (Tr.
II, 9). Harding carried a ï¿½pry barï¿½ to sound the top and pull down draw rock. (Tr.
I, 233-234). When sounding the top, he listened for a drumming or hollow sound.
(Tr. I, 234). A hollow sound meant an area needs to be scaled. (Tr. I, 234,
236). Harding also examined the roof for damaged bolts. (Tr. I, 234-235). As he
inspected the escapeway, he moved in a zig-zag pattern looking at the lifeline,
roof, and ribs near the lifeline. (Tr. I, 235-236). He also looked at the
ventilation controls at each crosscut. (Tr. I, 236). When inspecting mesh,
Harding checked to make sure that nothing was lying in the mesh that could
cause leaks of a fall. (Tr. I, 257). At the area with the timbers, Harding
checked to see if the timbers were tight, if any had fallen, and made sure
there was no draw rock. (Tr. I, 261-263). He also looked for signs of stress
and cracks in the roof and ribs and for sloughage. (Tr. I, 263-264).

ï¿½

An examination of the primary escapeway
would take 1.5 to 2.5 hours. (Tr. I, 240-241, II, 9). Harding was given a much
time as necessary to complete it. (Tr. I, 270). Some days it takes substantially
longer than others due to conditions discovered. (Tr. I, 270). Harding had the
necessary resources to remedy any condition observed or, at least, to danger it
off. (Tr. I, 270-271). Harding took examinations, including the examination on
the 17th, very seriously because in case of an emergency, he is
responsible for the safety of every man in the mine. (Tr. I, 270).

On the 17th, Harding had no
concerns about men using the area during a fire drill, the lifeline was intact.
(Tr. I, 256-257, 270). Further, before a fire drill, the foreman would make a
supplemental examination of the entire area the miners would travel. (Tr. II,
111). The foreman would look for conditions that could affect miners during a
fire drill. (Tr. II, 111). An extra examination might also be done if a crew
were going to work in the area. (Tr. II, 112). Dempsey would not expect an
extra exam before a fire drill. (Tr. I, 167).

Dempsey stated that the number of
conditions that Harding failed to find that made this examination inadequate.[21]
(Tr. I, 191). Citation No. 8154925, Citation No. 8154926, and Order No. 8154928
were not included in the examination record. (Tr. I, 108-109). Any casual
observer could have seen a majority of the problems, and a trained examiner
should have seen the rest. (Tr. I, 109). However, Dempsey conceded that no
citations were issued for lifelines, ventilation controls, cones on safety
lines, or mandoors in the 1,200 feet between the first citation and the order.
(Tr. I, 193-194). Also, the roof bolt spacing was in the single area. (Tr. I,
194).

Harding reviewed his examination record.
(Tr. II, 10). That record did not show that the entry was wide as cited in
Citation No. 8154925. (Tr. II, 10-11). It also did not show that the bolts were
widely spaced or that there was draw rock in the area. (Tr. II, 11). The record
also did not show that there was draw rock on the fly board as cited in
Citation No. 8154926. (Tr. II, 11). Finally, the record did not note the mesh
panels cited in Citation No. 8154928. (Tr. II, 11).

After the citation, Saunders walked the
rest of the escapeway, from the mesh to the portal, to determine if there were
any other causes for concern. (Tr. II, 90-91). He looked for water
accumulations, dust, foot prints, and date boards. (Tr. II, 92). Some date
boards were signed more than required by law. (Tr. I, II, 92-93). He saw old
and new timbers, footprints zigging and zagging, and good signage. (Tr. II,
93). The lifeline indicators were good, there were several rebolts, fallen rock
was thrown away from the lifeline or the lifeline itself was moved to avoid
hazards, and the dusting was good. (Tr. II, 93). No other citations were
issued. (Tr. II, 93). Saunders believed that the walkway had been very
adequately examined. (Tr. II, 94). It looked like there was good examinations
with good follow up. (Tr. II, 94).

Dempsey believed all of these conditions
existed at the time of the examination on the 17th. (Tr. I, 109). However, he
could not say for sure what day Harding examined the cited escapeway because Respondent
varied areas. (Tr. I, 195-196). His analysis of the time was based on his
mining and MSHA experience and mine conditions. (Tr. I, 110).

The wire mesh condition had existed for
a considerable time. (Tr. I, 109). Harding failed to find the improperly
installed mesh and accumulated draw rock, creating a ï¿½time bomb.ï¿½ (Tr. I, 191).
Dempsey had no doubt the condition existed when Harding was in the area. (Tr.
I, 197). Harding testified he did not observe this condition. (Tr. I, 269-270).
Had he seen it he would have corrected it. (Tr. I, 270). He did not believe the
condition existed the previous day. (Tr. I, 244-245, 247-248, II, 12, 18). Further,
Harding and Peterson believed most of the rock in the mesh was fresh. (Tr. I,
255-256, II, 51, 55). Finally, the cited material would have struck Harding in
the nose and neck, meaning it would be hard for an examiner to walk under it. (Tr.
I, 188-189, 245).

The draw rock on the fly board eased
down over time. (Tr. I, 109). Dempsey believed that condition was present at
Hardingï¿½s exam. (Tr. I, 195). Harding should have sounded the roof and pulled
down the rock here. (Tr. I, 109-110, 191). Haring testified that he did not
observe this condition and that it was not present. (Tr. I, 259, 269, II, 18). It
could have developed from one day to the next. (Tr. I, 260-261). Peterson saw
dust on the rock and concluded the rock was on the fly board for a while. (Tr.
I, II, 43-44). Harding would have dangered it
off and fixed it if it had been present. (Tr. I, 269).

The wide entry, improperly spaced bolts,
and draw rock had ï¿½without a shadow of a doubt,ï¿½ existed when the exam was
made; the bolts and entry had existed for years. (Tr. I, 110, 191, 195,197). However,
it is possible for draw rock to occur in the hours after an examination. (Tr.
I, 191-192). The amount of time it takes for draw rock to become apparent
varies; it is hard to make generalizations. (Tr. I, 192-193). Dempsey believed
this draw rock had been in the cited location since the day before because it
gapped down and had fallen. (Tr. I, 192). Harding testified that he did not
observe or ignore this condition. (Tr. I, 268-269). Harding was looking for
many things and this could cause a condition to be overlooked. (Tr. I, 269).

All of the conditions that led to the
issuance of this citation occurred in the primary escapeway.[22]
(Tr. I, 106-107). The lifeline traveled through each of the areas. (Tr. I,
107). Dempsey testified that miners work and travel there. (Tr. I, 110). Harding
did not believe miners normally worked or traveled in this area, it was not a
ï¿½main track.ï¿½ (Tr. I, 243).

The citation was marked S&S because
there was a violation of a standard that contributed to a hazard. (Tr. I,
110-111). The intent of the examination is to correct conditions and this was
not done. (Tr. I, 111). There was a reasonable likelihood of a significant
injury. (Tr. I, 111).

The citation was marked as ï¿½fatalï¿½
because rock falls could cause crushing injuries. (Tr. I, 111). Also, the 14
miners in the fire drill would be affected. (Tr. I, 111).

The citation was marked as ï¿½highï¿½
negligence because the conditions were obvious, extensive, examined by an agent
and supervisor, and there was a degree of risk to the miners. (Tr. I, 111-112).
Dempsey believed there were no mitigating circumstances. (Tr. I, 112). Dempsey
could not recall a situation where an examiner missed something and he did not
feel there was high negligence. (Tr. I, 196).

This condition was an unwarrantable
failure, or aggravated conduct. (Tr. I, 112, 197-198). The standard was similar
to what Dempsey looked for in high negligence. (Tr. I, 112). It was inexcusable
to allow the conditions to exist in an escapeway that miners depend of for
their lives in an emergency. (Tr. I, 112). The condition was obvious,
extensive, had existed for a long time, and should have been caught. (Tr. I,
198). Dempsey maintained that the wide entry was open and obvious even though his
notes stated it was not overly obvious. (Tr. I, 914). ï¿½The
area with the wide entry condition would have had 280 weekly examinations since
development. (Tr. I, 198). The obviousness is not undercut because this may not
always have been the primary intake. (Tr. I, 198-199). Even if it was always
the primary intake, Dempsey believed the condition was easy to spot. (Tr. I,
199).

Dempsey conceded that before the instant
inspection, he had no reason to question the adequacy of examinations at Powellton.
(Tr. I, 117). The previous inspector at the mine did not express any concern
over this issue. (Tr. I, 117-118). Dempsey does not recall any earlier roof
control citations, S&S, or ï¿½highï¿½ negligence citations. (Tr. I, 118).

Dempsey also conceded that some
examination was performed because he saw a signed date board. (Tr. I, 120-121) He
had no reason to question whether it was performed. (Tr. I, 120). Hardingï¿½s
notes state that he set timbers, scaled the top, and repaired a lifeline. (Tr.
I, 120-121). These are to some extent the notes Dempsey would expect, but he
wanted to see the areas correctly identified. (Tr. I, 120).

Harding testified he had been
accompanied by MSHA inspectors (Hartenstein, Dishman, and Van Dulan) during
previous examinations (Tr. I, 271). During those inspections the mesh, the wide
entry, and the wide bolt would have been present. (Tr. I, 271-272). None of
these inspectors stated that the condition of the mesh was unsafe or that it
was installed improperly. (Tr. I, 273). Further, Peterson was present for the
ï¿½close-outï¿½ conference the prior quarter with inspectors Bane and Dishman. (Tr.
II, 29). They were concerned about the roof, and corner bolts. (Tr. II, 29-30).
They went over the violations written that quarter. (Tr. II, 30). They did not
discuss specific issues with the primary escapeway or the installation of mesh.
(Tr. II, 30).

Dempsey could not say if another
inspector should have issued a citation earlier because it was possible this
entry was not formerly the primary escapeway. (Tr. I, 125, 138). He did not
know the function of this particular air course in the four or five years after
development. (Tr. I, 126, 138). If the entry was not being used, no one would
inspect it. (Tr. I, 147). It is also possible the condition was not discovered.
(Tr. I, 125). If this area was a primary escapeway since development, then it
would have been examined weekly since 2008 and inspected quarterly by MSHA
inspectors. (Tr. I, 136). If that were the case, the condition went unnoticed
by examiners and MSHA inspectors. (Tr. I, 139-140, II, 19). Dempsey would
expect his fellow inspectors to notice the condition. (Tr. I, 136, 140,
146-147). However, they were not highly negligent, an inspector sometimes
misses conditions. (Tr. I, 141). He noted that even if MSHA missed conditions
in the past, Respondent was still required to follow the law.[23]
(Tr. I, 202). Harding testified that this area had been the primary escapeway
since 2008 because the location allowed miners to walk in fresh air. (Tr. I,
262, II, 11-12).

This condition was abated when a
supplemental examination was conducted by Peterson on the primary escapeway
from the section to the surface. (Tr. I, 112, 251). It was conducted
immediately, but Dempsey did not fill out the form until he saw the examination
record. (Tr. I, 112-113). Harding was not ordered to be re-trained as part of
abatement. (Tr. I, 197).

III.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1. The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That ï¿½ 75.364(a)(1)
Was Violated.

On April 18, 2013, Inspector Dempsey
issued a 104(d)(1) Citation, Citation No. 8154927 to Respondent. Section 8 of
that Citation, Condition or Practice, reads as follows:

The Operator has failed to conduct an
adequate examination of the intake/primary escapeway for the #1 working
section. Between #26 xcut along #9 beltline to the overcast near #8 Belt head 3
obvious and extensive violations were found. These violations include, 1) a
wide entry w/excessive bolt spacing and loose draw rock, 20 unsupported broken
draw rock held up by a 1ï¿½ fly board, and 3) Wire mesh bowed down by the weight
of draw rock it is supporting @ overcast near #8 head (Portions of the wire
mesh are secured with tie wire instead of the proper plates. This violation is
an unwarrantable failure to comply with a mandatory standard.

(GX-3).

Standard 30 C.F.R. ï¿½75.364(b)(1) (ï¿½Weekly
Examinationï¿½) provides the following:

(b) Hazardous
conditions and violations of mandatory health or safety standards. At least every 7 days, an examination for hazardous
conditions and violations of the mandatory health or safety standards
referenced in paragraph (b)(8) of this section shall be made by a certified
person designated by the operator at the following locations:

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

30
C.F.R. ï¿½75.364(b)(1)

ï¿½Examinations are of ï¿½fundamental
importance in assuring a safe working environment underground.ï¿½ Buck Creek
Coal Co., Inc., 17 FMSHRC 8, 15 (1995). Examiners are required to examine
for roof conditions, rib conditions, wide entries, draw rock, sloughage,
damaged bolts, rib rolls, bottom pressure, problems with the top, issues with
the lifeline (including tripping hazards and directional symbols), SCSR caches,
refuge chambers, stoppings, ventilation controls, and suspicious areas. (Tr. I,
104-106, 134, 219-220, II, 24, 79-81). With respect to the instant citation,
there is no question that Respondentï¿½s examiner, Harding, conducted a weekly
examination the day before the three conditions at issue here were found. (Tr.
I, 226, II, 11). Therefore, the only question is whether that examination was
adequate.

The hazardous conditions cited in
Citations/Order Nos. 8154925, 8154926, and 8154928 were all located in the
primary escapeway that Harding inspected on April 17. (Tr. I, 226, II, 11). For
the reasons stated supra, all of those issuances were upheld as valid
and S&S. However, these conditions were not included in the weekly
examination record. (Tr. I, 107-109). In fact, Examiner Harding confirmed that
these conditions were no included in the record. (Tr. II, 10-11). For the
reasons already given supra, these conditions (particularly the
improperly installed mesh) were at least somewhat obvious. The Administrative
Law Judge credits the testimony of the inspector that those conditions should
have been included in the record of the weekly examination. (Tr. I, 103-104). Therefore,
the preponderance of the evidence shows Respondentï¿½s weekly examination was
inadequate.

Respondent presented several arguments
for the proposition that the examination was adequate. However, those arguments
were not supported by the record.

First, Respondent argued that the mesh
condition was not obvious because the draw rock was fresh and had not been
sagging the previous day. (Respondentï¿½s Post-Hearing Brief at 29). As
noted in the discussion of that order, Inspector Dempsey credibly testified
that the condition was obvious. (Tr. I, 97-98). Further, the issue was the
inadequate installation, not necessarily the time at which the rock fell. The
inadequate installation had been obvious since the mesh was installed. Therefore,
it should have been noted in the weekly examination.

Next, Respondent argued that the piece
of draw rock was not present the day before. (Respondentï¿½s Post-Hearing
Brief at 29). As discussed previously, Inspector Dempsey credibly testified
that the condition existed for some time before the citation was issued. (Tr. Tr.
I, 66-68). It might have been less obvious than at the time of the citation. However,
an examiner still should have known the condition was present and corrected it
or dangered it off.

Finally, Respondent argued that the wide
entry and misplaced bolt were not obvious and that other examiners, including
MSHA inspectors, did not notice this. (Respondentï¿½s Post-Hearing Brief
at 29). Respondent also notes that Inspector Dempsey was not a certified
examiner. (Id.). As noted in the discussion regarding the underlying
citation, this condition was not overly obvious. However, Inspector Dempsey,
despite his lack of examining credentials, noticed this condition (which
Respondent concedes existed). Therefore, someone with all of the proper
training should have seen the condition and noted it in the examination record.

Therefore, the Administrative Law Judge
finds that the instant citation was validly issued.

2. The Violation
Was Significant And Substantial In Nature And Reasonably Likely to Result in
Fatal Injury to 14 Miners

Inspector Dempsey marked the gravity of
the cited danger in Citation No. 8154927 ï¿½Reasonably Likelyï¿½ to result in
ï¿½Fatalï¿½ injury to 14 persons. (GX-12). These determinations are supported by a
preponderance of the evidence.

The event against which the instant
standard, 30 C.F.R. ï¿½75.364(b)(1) is contact by miners with correctable
hazards. For the reasons discussed with respect to each individual citation,
the hazards present here posed a reasonable likelihood of fatal injury to
miners. Further, for the reasons discussed with respect to Citation No.
8154925, up to 14 miners would be exposed to these hazards.

Citation No. 8154927 was also marked as
S&S. (GX-12). It has already been established that the first element of the
Mathies S&S analysis, the underlying violation of a mandatory safety
standard, has been established with respect to this citation. As discussed supra,
Respondent violated 30 C.F.R. ï¿½75.364(b)(1).

With respect to the second element of Mathies,
a discrete safety hazard ï¿½ that is a measure of danger to safety ï¿½ contributed
to by the violation, the preponderance of the evidence shows that the violation
created a tripping hazard. The Commission has
recognized examinations as ï¿½of fundamental importance in assuring a safe
working environment underground.ï¿½ Buck Creek Coal, 17 FMSHRC
at 15; see also Jim Walter Resources, Inc., 28 FMSHRC 579,
598 (Aug. 2006). Chairman Jordan and Commissioner Marks have referred to the
preshift inspection requirement as ï¿½the linchpin of Mine Act safety
protections.ï¿½ Manalapan Mining Co., Inc., 18 FMSHRC 1375, 1391 (August
1996) (Jordan and Marks, concurring and dissenting in part). MSHA requires
several layers of examinations, including on-shift, preshift, and weekly
examinations, in order to ensure miner safety. ï¿½These examinations are designed
to create a multi-layer, prophylactic approach to the identification and
correction of hazardous or unsafe conditions in the mine.ï¿½ Coal River Mining,
LLC, 34 FMSHRC 1087, 1095 (May 2012) (ALJ Andrews).

While much of the reasoning
in these cases discusses pre-shift, rather than weekly, examinations, they are
sufficiently analogous for our purposes here. The Commission has been clear
that examinations act as first line of defense with respect to hazards. Here,
the failure of Respondent to conduct an adequate examination contributed to the
minersï¿½ exposure to the hazards discussed with respect to Citations/Order Nos.
8154925, 8154926, and 8154928

The third element of the Mathies
test ï¿½ a reasonable likelihood that the hazard contributed to will result in an
injury ï¿½ is also met. In the event that any or all of the hazards at issue here
were realized, miners would be fatally crushed by falling roof material. (Tr.
I, 110-111).ï¿½

Respondent argued that there was no
evidence that an injury could result from this violation. Specifically, it
argued that the underlying conditions were not likely to result in injury for
the same reasons discussed with respect to each citation or order. Once again,
with respect to the third element of Mathies, the issue is whether
someone would be injured if there was a roof collapse in this area. As
discussed with respect to each of the underlying issuances, in that event
injuries would occur.

The fourth element - a reasonable
likelihood that the injury in question will be of a reasonably serious nature ï¿½
As noted supra, rock fall injuries are inherently severe.

3. Respondentï¿½s
Conduct Displayed ï¿½Highï¿½ Negligence And Was The Result Of An Unwarrantable
Failure To Comply With the Standard.

The instant citation was marked as ï¿½high
negligence.ï¿½ Inspector Dempsey credibly testified that this determination was
made because the three underlying conditions were obvious, extensive, and were examined
by an agent and supervisor. (Tr. I, 111-112). Therefore, Respondent knew or
should have known that the condition existed. For the reasons discussed above,
Respondent was either highly or moderately negligent with respect to all three
of the

Dempsey also credibly testified that
there were no mitigating circumstances. (Tr. I, 112). He believed that any time
an examiner missed these sorts of conditions it should be high negligence. (Tr.
I, 196). One of the underlying issuances, Order No. 8154928, was affirmed as
having no mitigating factors for the reasons discussed supra. Therefore,
the Administrative Law Judge finds that there were no mitigating circumstances
here.

Respondent argued that there were
several mitigating factors. (Respondentï¿½s Post-Hearing Brief at 28-30). This
argument was not supported by the evidence.

Respondent asserted that all of the
arguments it made with respect to validity were equally persuasive with respect
to high negligence and unwarrantable failure. Specifically, it argued that none
of the conditions (the entries, the wide bolts, the draw rock, or the
improperly installed mesh) were obvious. For the reasons set forth in the
discussion of validity, the evidence does not support this contention. There
were not mitigating factors.

The evidence presented also supported
the Secretaryï¿½s determination that Respondentï¿½s actions were an unwarrantable
failure. With respect to that determination, the Administrative Law Judge will
consider each of the IO Coal factors in turn:

1. Extent Of The
Violative Conditions

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The evidence, as
discussed at length above, shows that three reasonably likely, fatal, S&S
conditions existed in a quarter mile area of the mine. These conditions
affected the entire width of the entry in places. Therefore, the preponderance
of the evidence shows the condition was extensive.

2. The Length of
Time of the Violation Existed

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The conditions
missed by the examiner existed for widely variable amounts of time. The wide
entry and misplaced bolts had existed for years. (Tr. I, 110, 191, 195, 197). The
draw rock had existed for quite a while (though that condition might not have
been overly obvious until the day of the citation). (Tr. I, 192). Finally, the
improperly installed mesh had existed for at least several months and maybe
longer. (Tr. I, 95, 245-247). Therefore, Respondent had conducted inadequate
examinations for several years, with conditions deteriorating further over
time.

3. Whether the
violation is obvious or poses a high degree of danger

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The violation at
issue here posed a considerable danger. As discussed supra, this
condition was reasonably likely to result in fatal, injuries to 14 miners. The
inadequate examination failed to notice or correct these conditions. Further,
for the reasons discussed extensively, the conditions were obvious, especially
the mesh. Therefore, the inadequate examination should have noted these
conditions and corrected them.

4. Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ Respondent had
an extensive violation history with respect to ï¿½75.202(a). Further, it was well
known that this mine had trouble with draw rock. (Tr. I, 42). Respondent also
had history with roof falls. (Tr. I, 42, 202-203). Therefore, Respondent was on
notice that its examinations of these conditions should have been thorough and
focused on roof control.

5. The operatorï¿½s
efforts in abating the violative condition

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ The parties
stipulated that the condition was abated quickly and in good faith. (JX-1).

6. Operatorï¿½s knowledge
of the existence of the violation

ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ As
discussed at length, Respondent knew or should have known about the underlying
conditions. Therefore, it knew or should have known that its examinations were
inadequate.

4.
Penalty

ORDER

It is hereby ORDERED that
Citation/Order Nos. 8154925, 8154926, 8154927, and 8154928 are AFFIRMED
as modified herein.

Respondent is ORDERED to pay
civil penalties in the total amount of $172,944.00 within 30 days of the date
of this decision.[24]

Distribution:

Pollyanna
E.F. Hampton, Esq., U.S Department of Labor, Office of the Solicitor, 1100
Wilson Blvd, 22nd Floor West, Arlington, VA 22209

Eric
L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street, East, Suite 701, PO Box
2548, Charleston, WV 25329

/tjb

[1] WEVA 2014-376
also included four citations (Citation Nos. 8156352,
8156059, 8156062, and 8156063), that were not issued on April 18, 2014 and were
unrelated to the instant matters. On March 31, 2014 Chief Judge Lesnick severed
these four citations from WEVA 2014-376 and placed them in a new docket, WEVA
2014-749. That docket will be disposed of separately.

[2] Hereinafter the
Joint Exhibits will be referred to as ï¿½JXï¿½ followed by the number. Similarly,
the Secretaryï¿½s Exhibits will be referred as ï¿½GXï¿½ and Respondentï¿½s Exhibits
will be referred to as ï¿½RX.ï¿½

[3] Hereinafter the
transcript will be cited as ï¿½Tr.ï¿½ Followed by the page number. There are two
volumes of transcript here so, the first volume will be denoted ï¿½Tr. I,ï¿½ and
the second, ï¿½Tr. II,ï¿½

[4] At hearing Jack
Arnold Dempsey appeared and testified for the Secretary. (Tr. I,14). Dempsey
graduated from High School in 1972 and attended more than three years of
college. (Tr. I, 14-15). He started in the coal industry for Cannelton Coal in
1974. (Tr. I, 15-16). He worked at Bethlehem Steel Corporation in 1977 to
October 1992 as certified electrician. (Tr. I, 16-17). He was a certified
electrician underground, surface, and prep plants and was certified for surface
and underground mining. (Tr. I, 16, 18). He worked as a scoop operator, shuttle
car operator, roof bolter operator, continuous miner operator, ran a motor, and
acted as a general laborer. (Tr. I, 17). He also worked for a coal
transportation company. (Tr. I, 17). From March 2009 until the hearing, Dempsey
worked for MSHA as an inspector. (Tr. I, 14). He received classroom training at
the Mine Academy and on-the-job training from seasoned inspectors. (Tr. I, 18).
This training included instruction on roof control, ribs, and ventilation. (Tr.
I, 19). As an inspector, Dempsey would travel airways, conduct and examine rock
dust surveys, conduct noise surveys, examine equipment, observe work practices,
and review records. (Tr. I, 20). He was not a certified foreman and had never
conducted or assisted with an examination. (Tr. I, 114).

[5] At hearing,
Peterson was present and testified for Respondent. (Tr. II, 20). He had worked
in the industry for 37 years, starting in 1974. (Tr. II, 20-21). He had acted
as a roof bolter, run miners, run cars, and worked on longwalls. (Tr. II,
20-21). In his career, he acted as section boss, mine foreman, superintendent,
fire boss, airway examiner, and safety representative. (Tr. II, 21). Peterson
received 2 years of mine technology training from Community College. (Tr. II,
21). He was certified as a limited instructor by the government, taught classes
at Elk Run, had annual retraining, and was certified as a foreman. (Tr. II,
21-22). Training would include instruction on areas where equipment was run,
MMUs, ventilation, roof control plans, and first aid. (Tr. II, 23). He was
involved in the UBB investigation, checking airways and working areas for the
investigation team. (Tr. II, 24). In April 2013, Peterson was a safety
representative and in would travel with the MSHA inspector, double check the
work of examiners, and do paperwork. (Tr. II, 24-25, 28). When the inspector
was not present, he would look for areas out of compliance. (Tr. II, 27-28). Peterson
also worked with the anonymous complaint system, known as ï¿½Running Rightï¿½. (Tr.
II, 25). Both Peterson and Phillip Saunders testified at length regarding this
anonymous safety reporting system. (Tr. II 25-27, 77-79).

[6] Earlier,
Dempsey inspected the secondary escapeway (track entry) and found no
violations, despite looking for them. (Tr. I, 116-118, 121-122).

[7] At hearing,
Dempsey reviewed the mine map (GX-7), showing the airways traveled during the
inspection. (Tr. I, 22). A map is produced each quarter by the operator. (Tr.
I, 22). Dempsey took a copy of the map with him to keep track of areas
inspected. (Tr. I, 22). He used a color-coded legend to show different kinds of
entries and the details of the examination. (Tr. I, 22-23). On the map, the
numbers mark where citations occurred. (Tr. I, 22-23). No. 1 was Citation
8144925, No. 2 was Citation No. 8154926, and No. 3 was Order No. 8154928. (Tr.
I, 24, 42-43). The green line showed Dempseyï¿½s path that day in the escapeway. (Tr.
I, 24, 27). The pink line was the return air course. (Tr. I, 27). The blue line
was the mine track, which is usually the secondary escapeway. (Tr. I, 27-28). ï¿½The
yellow line was the secondary escapeway. (Tr. I, 28). The orange line was the
beltlines. (Tr. I, 28).

[8]
There was
a panel to the right of the portal called the McAllister Mains. (Tr. I, 29). A
roof fall had occurred in this area indicating pressure. (Tr. I, 29).

[9] The four-wheel
vehicle is a golf cart with a metal frame and no top. (Tr. I, 26). The vehicle used
on the day the instant citations were issued was nicknamed Ethel. (Tr. I, 26).

[10] Earlier,
Dempsey inspected the secondary escapeway (track entry) and found no
violations, despite looking for them. (Tr. I, 116-118, 121-122).

[11] Dempsey
reviewed Citation No. 8154925 (GX-1) and the notes he took that day (GX-5). (Tr.
I, 31-32). His notes included the weekly examination record for the week of the
citation, a record of a fire drill in the area April 15 and April 16, 2013, and
a small map. (Tr. I, 32-33).

[12] Roof control
plans are mine specific. (Tr. I, 153-154, 204). Before a roof control plan is
made, an engineering study is used to determine ground cover, the seam, and the
types of pressure applied. (Tr. I, 204). Weight is determined using a computer
program. (Tr. I, 204). The weight is used to create a safety factor. (Tr. I,
204). For example, a safety pillar of 2.0 means the pillars are capable of
supporting twice the weight that is being applied. (Tr. I, 205). In a situation
like Roundbottom where there is multiple seam mining, another computer program is
used to determine the different loads. (Tr. I, 205). Then, roughly every six
months, the roof control department or an inspector will determine if the plan
is adequate. (Tr. I, 204).

[13] Safeguards are directives
issued to a mine concerning transportation at that mine. (Tr. I, 203-204). A safeguard
allowing wider entries had not been used since the 1990ï¿½s. (Tr. I, 203).

[14]
At hearing
Phillip Saunders appeared and testified for Respondent. (Tr. II, 71). Saunders
worked at Alpha Natural Resources as a Vice President of Operational
Improvements, a job he held from July 2012. (Tr. II, 71, 73). Saunders began
working in the coal industry in 1994 for Massey Energy and worked several
engineering jobs. (Tr. II, 71-73). Saunders had a professional engineering
license in West Virginia, mine foremanï¿½s papers, and AMT card, mine rescue
certification, MSHA trainerï¿½s card, and a PE license a black hat. (Tr. II,
71-73). He had worked as section foreman, mine foreman, examiner,
superintendent, and then over to management for various projects at Massey. (Tr.
II, 72-73). Saunders was at Roundbottom on April 18 to supervise an operational
improvement team. (Tr. II, 74). They had been at the location for five weeks. (Tr.
II, 75). The goal of the team was to improve compliance, safety, and
productivity. (Tr. II, 75). During trips, Saunders liked to discuss violations,
condition changes, things at the face, and training with mine management. (Tr.
II, 75). The team observed activity at the face like loading of coal, cut
depths, dust procedures, ventilation, processes for supplying equipment
operators, bottom conditions, communications, and practices at the mine from
start of the shift to the end. (Tr. II, 76-77). They ask for 15 to 20 minutes
at the start of the shift to talk to the crews, give them updates on changes
conditions, ensure they are going over the methane dust control plan, the roof
control plans, and make sure everyone knows what the plans are. (Tr. II, 77). The
crew provides hands-on training in the face area. (Tr. II, 77).

[15] Harding
testified that torque tension bolts were used in this area (and in most of the
primary escapeway). (Tr. I, 265). The plan requires 4-foot resin bolts. (Tr. I,
265). The torque tension bolts were longer and provided more support that the
required bolts. (Tr. I, 265-266). All of the bolts in this entry would have
been installed on advance. (Tr. I, 266).

[16] Jesse Glen
Harding was present at the hearing and testified for Respondent. (Tr. I, 217). Harding
started in the mining industry in 2007 and worked for Performance Coal and
Loganï¿½s Fork on longwalls before Respondent. (Tr. I, 217). At Roundottom and
worked on the move crew, production, shuttle car, in that capacity he examined
gas levels, roof, ribs, trip hazards, roadways, and ventilation controls. (Tr.
I, 218-219). He then worked as outby foreman and did so at the time of the citations.
(Tr. I, 218, 220). In that postion, he conducted pre-shift examinations, added
mesh or support, set belt heads, checked belts, checked the track, check wide
entries, checked bolt spacing, and checked the roof and ribs. (Tr. I, 219, 224,
II, 6-7). Harding took care of any hazards outby to ensure safe work and
travel. ï¿½(Tr. I, 219, 224). If he identified a hazard he dangered it off and
recorded it in the exam book. (Tr. II, 6-7). Harding had a West Virginia
foreman, mining, gas, and dust cards and had conducted examinations since he
was an apprentice. (Tr. I, 220-221, II, 6). He received annual refresher
training, including an eight-hour class on plans, roof control, MMUs,
violations, accidents, escapeway methods, and rescuers. (Tr. I, 221-222). He
received foreman recertification every other year where law, plans, and
violations were discussed. (Tr. I, 222-223). Further, Alpha had an examiners
class that included instruction on the law and a mine simulator. (Tr. I, 223). He
received step-by-step instruction on bolts, roof, ribs, trip hazards, and lifelines.
(Tr. I, 223). The course also covered pre-shift, weekly, and supplemental
examinations. (Tr. I, 223).

[17] Following the
conclusion of the hearing, Respondent filed a ï¿½Motion to Supplement the Recordï¿½
to include evidence regarding the mineï¿½s history. Specifically, Respondent
wished to include evidence regarding Alpha Natural Resources purchase of the
Elk Run Coal Company on July 1, 2011. (Respondentï¿½s Post-Hearing Brief
at 34). Respondent argued that it had changed ownership on July 1, 2011 and
that considering evidence regarding history before that point punished Alpha
Natural Resources for the wrongs committed by the previous owner, Massey
Energy. The Secretary opposed this motion because this information was not
submitted before the hearing concluded. (Secretaryï¿½s Opposition at 1-4).
In the interest of fully addressing all of the issues at play in this case, the
Administrative Law Judge considered Respondentï¿½s proffer of evidence.

However,
that evidence did not change the ultimate determination of the operatorï¿½s
history. Most importantly, the operator in this case, Elk Run Coal Company, has
been in operation at this location since 2006. (Secretaryï¿½s Opposition
at 5). While the controller has changed, the operator has remained the same. The
relevant history is the Operatorï¿½s, not the controllerï¿½s. Therefore, Elk Runï¿½s
history is open to scrutiny; even if it had been controlled by Massey for some
of that time and even if some management changes were made along with the
change in controller. Further, the amount of time between the purchase of Elk
Run and the instant citations was 22 months and 18 days. Therefore, the vast
majority of Elk Runï¿½s history dealt with the period during which it was
controlled by Alpha Natural Resources (specifically, the period in contention
here is roughly six week). Finally, the Administrative Law Judge is not bound
by the Secretaryï¿½s proposed penalty; the assessed penalty is based on the
totality of the factors at issue, of which history is only a small part.

[18] An overcast is
an area where one air current is allowed to pass over another. (Tr. I, 72). They
are constructed of cinderblock and have a roof. (Tr. I, 72). There are usually some
beams across it and some tin. (Tr. I, 72). The top is lower here. (Tr. I, 72).

[19] Off cycle means
that an area has been mined and the machinery has been moved to another place. (Tr.
I, 83). It does not make sense to move the mining equipment back to install the
mesh, so another machine is brought in to perform the work. (Tr. I, 83).

[20] Citation No.
8154927 was issued five minutes before Order No. 8154928. (Tr. I, 104-105). After
seeing the fly board Dempsey told Peterson that if he saw another condition he
would issue a citation for an inadequate examination. (Tr. I, 104-105). Once he
saw the third condition, it did not matter which violation he issued first. (Tr.
I, 105). ï¿½Peterson did not recall Dempsey commenting about a possible inadequate
examination after the second citation. (Tr. II, 44-45).

[21] Dempsey
conceded that he was not an examiner and had never conducted an airway
examination, but as an inspector it was not his job to do a workplace
examination. (Tr. I, 202).

[22] A roof fall
occurred in this area on 8/21/2013. (Tr. I, 107, II, 69). This roof fall was
caused by bad roof. (Tr. II, 69). Efforts were taken to strengthen this area by
setting cribs, posts, and narrowing down the area. (Tr. II, 69).

[23] According to
Dempsey, Hardingï¿½s role as the examiner and agent of Respondent was to ensure
that the escapeway was safe if needed in an emergency. (Tr. I, 146). MSHA role
when conducting an inspection is to look for hazards, ensure the company is
doing adequate examines, and ensuring the safety of employees who may work or
travel in the area. (Tr. I, 146). Those roles are similar with respect to
examining the primary escapeway. (Tr. I, 146).

[24] 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

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On this page

Decision type

ALJ decision

Dockets

WEVA 2013-1180, WEVA 2014-375, WEVA 2014-376

Decided

April 4, 2014

Presiding judge

William S. Steele

Outcome

Modified

Precedential status

Final order, not precedent

Cited standards

29 C.F.R. § 2700.30(b) 30 C.F.R. § 75.202(a) 30 C.F.R. § 75.364(b)(1) 30 C.F.R. § 100.3(d) 30 C.F.R. § 100.3(e) 30 U.S.C. § 815(d) 30 U.S.C. § 820(i)

Official source

Read the official release (fmshrc.gov)

View Official PDF