Secretary of Labor v. Rock n Roll Coal Company, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Rock N Roll Coal operates the underground Mine No. 7 in West Virginia. MSHA inspector Morgan issued six citations and orders across two 2015 inspections. They covered a missing directional cone on the secondary escapeway lifeline, a carbon monoxide monitor placed about 250 feet from its required location at the belt loading point, missing training certifications for the miners who sampled the mine seals, hazardous roof conditions at the seals that the examiner had not recorded, and a mine tracking system whose readers had not worked since June 4 without manual tracking or the required notice to MSHA. Judge Thomas P. McCarthy issued a bench decision at hearing affirming everything as written and confirmed it in this written decision. He upheld the significant and substantial designations under the Mathies test, upheld the unwarrantable failure and high negligence findings, and accepted the special assessment of $17,300 on the tracking system order after weighing the section 110(i) criteria himself. Total penalties came to $29,613, due within thirty days.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.380(d)(7); 30 C.F.R. § 75.351(e)(1)(i); 30 C.F.R. § 75.338(a); 30 C.F.R. § 75.362(d); 30 C.F.R. § 75.364(h); section 316(b) of the Mine Act
• Outcome: Citations 9061132, 9061479, 9061120, and 9061131 and Orders 9061133 and 9061162 were all affirmed as written, with total civil penalties of $29,613.
• Key point: An examiner who records that seals are "ok at time of exam" while hazardous roof conditions exist has not conducted the examination the standard requires, and a tracking system left broken for days without manual backup or MSHA notice supports a specially assessed unwarrantable failure penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

ROCK
N ROLL COAL COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2015-0889

A.C.
No. 46-09093-384746

Docket
No. WEVA 2015-0890

A.C.
No. 46-09093-384746

Docket
No. WEVA 2016-0084

A.C.
No. 46-09093-394900

Mine:
Mine No. 7

DECISION AND
ORDER

Appearances:               Brian
Krier, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner

Thomas
McLoughlin, Tri-State Geologic & Mining Services, LLC, Norton, Virginia for
Respondent

Before:                        Judge
McCarthy

I. STATEMENT OF
THE CASE

These
consolidated cases are before me upon Petitions for the Assessment of Civil Penalty
under section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(d) (“the Mine Act”). Docket No. WEVA 2015-0889
involves one 104(d)(1) citation and one 104(d)(1) order charging Respondent,
Rock N Roll Coal, Inc. (“Respondent”), with unwarrantable failures to comply
with the Secretary of Labor’s (“the Secretary’s”) mandatory safety standards. Docket
No. WEVA 2016-0890 involves three 104(a) citations alleging violations of the
Secretary’s mandatory standards. Docket No. WEVA 2016-0084 involves one
specially-assessed 104(d)(1) order charging Respondent with an unwarrantable
failure to comply with a mandatory safety safety standard.

A hearing was held in Bluefield, West
Virginia on June 7-8, 2016. During the hearing, the parties offered testimony
and documentary evidence. [1]
 Witnesses were sequestered. Prior to hearing, I granted the Secretary’s Motion
to Amend the Petition to include the narrative findings for the special
assessment proposed for Order No. 9061162 in Docket No. WEVA 2016-0084. Tr.
I-8. At the hearing, after oral arguments, I issued a bench decision affirming
all of the citations and orders, as written, and assessing the penalties, as
proposed, essentially for the reasons set forth by the Secretary in closing
argument. Tr. II-229-45. Having carefully reviewed the record, I affirm my
bench decision, as set forth below.

II. PRINCIPLES
OF LAW

A. Gravity and Significant and
Substantial (S&S)

The Mine Act
describes an S&S violation as one “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d)(1). By contrast, the gravity of a
violation “is often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co. , 18 FMSHRC 1541, 1549 (Sept. 1996).
  The gravity component of the penalty assessment is not
synonymous with finding that a violation is S&S, but may be based on the
same evidence. The gravity inquiry is concerned with the effects of a hazard,
while the S&S analysis focuses on the reasonable likelihood of serious
injury. See Consolidation Coal Co. , 18 FMSHRC at 1550 (explaining that
“the focus of the [gravity inquiry] is not necessarily on the reasonable
likelihood of serious injury… but rather on the effect of the hazard if it
occurs”). Alternatively, a violation is S&S if, “based on
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.” Cement Div., Nat’l Gypsum Co ., 3 FMSHRC
822, 825 (Apr. 1981).

To establish an
S&S violation, the Secretary must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard–that is, a measure of
danger to safety–contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.  Mathies
Coal Co. , 6 FMSHRC 1, 3­-4. (Jan. 1984). [2] The S&S determination
should be made assuming “continued normal mining operations.” U.S.
Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
This evaluation is also made in consideration of the length of time that the
violative condition existed prior to the citation and the time it would have
existed if normal mining operations had continued, without any assumptions
regarding abatement. Elk Run Coal Co. , 27 FMSHRC 899, 905 (Dec.
2005);  U.S. Steel Mining Co., Inc. , 6 FMSHRC 1573, 1574
(July 1984). [3]

Once the fact of
the violation has been established, step two of the Mathies analysis
focuses on “the extent to which the violation contributes to a particular
hazard.” The Commission has recently clarified that this step is “primarily
concerned with likelihood of the occurrence of the hazard against which a
mandatory safety standard is directed.” Newtown Energy, Inc. , 38 FMSHRC ­­­2033,
2037 (Aug.2016) ( citing Knox Creek Coal Corp. , 811 F.3d at 163). Step
two of the Mathies test involves a two-part analysis: 1) identification
of the hazard created by the violation of the safety standard; and 2) “a
determination of whether, based on the particular facts surrounding the
violation, there exists a reasonable likelihood of occurrence of the hazard
against which the mandatory safety standard is directed.” Newtown Energy, 38 FMSHRC
at 2038.

The third step
of the Mathies analysis is “primarily concerned with gravity,” and
whether the hazard identified in step two “would be reasonably likely to result
in injury.” Id . at 2037 (internal citations omitted). The third
step’s inquiry is whether the hazard, assuming it occurred, would likely result
in serious injury.   Knox Creek , 811 F.3d at 161-65. The question
in applying the third step of Mathies “is not whether it is likely that
the hazard . . . would have occurred[,]” but “whether, if the
hazard occurred (regardless of likelihood), it was reasonably likely that a
reasonably serious injury would result.” Peabody Midwest Mining, LLC v. Fed.
Mine Safety & Health Rev. Comm’n , 762 F.3d 611, 616 (7th Cir. 2014). The
Secretary “need not prove a reasonable likelihood that the violation itself
will cause injury.” Cumberland Coal Res., LP , 33 FMSHRC 2357, 2365 (Oct.
2011) ( citing Musser Engineering, Inc. , 32 FMSHRC 1257, 1281 (Oct. 2010)).
Further, “the absence of an injury-producing event when a cited practice has
occurred does not preclude a determination of S&S.”  Musser
Engineering, Inc., 32 FMSHRC at 1281 (citing  Elk Run Coal Co. ,
27 FMSHRC at 906); Blue Bayou Sand & Gravel, Inc. , 18  FMSHRC 853 ,
857 (June 1996).

The fourth Mathies
factor requires the Secretary to show a reasonable likelihood that the injury
in question will be of a reasonably serious nature. Mathies , 6 FMSHRC at

3. As a practical matter, the last two Mathies ’ factors are often
   combined in a single showing. Id . Consistent with this
   approach, MSHA inspectors determine whether a violation meets the criteria for
   S&S by the likelihood of injury and the expected severity of injury, which
   correspond to the third and fourth Mathies factors. [4]

B. Negligence

Negligence is
not defined in the Mine Act. The Commission has found that “[e]ach mandatory
standard thus carries with it an accompanying duty of care to avoid violations
of the standard, and an operator’s failure to satisfy the appropriate duty can
lead to a finding of negligence if a violation of the standard occurred.” A.H.
Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). In
determining whether an operator meets its duty of care under the cited
standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation. See generally U.S. Steel Corp. , 6 FMSHRC 1908, 1910
(Aug. 1984); see also Jim Walter Res., Inc. , 36 FMSHRC
1972, 1975-77 (Aug. 2014) (requiring Secretary to show that operator failed to
take specific action required by standard violated); Spartan Mining , 30
FMSHRC at 708 (negligence inquiry circumscribed by scope of duties imposed by
regulation violated). In this regard, the gravamen of high negligence is “an
aggravated lack of care that is more than ordinary negligence.” Brody Mining ,
37 FMSHRC 1687, 1701 (Aug. 2015) ( citing Topper Coal Co. , 20 FMSHRC
344, 350 (Apr. 1998)).

Commission
judges are not required to apply the level-of-negligence definitions in Part
100 penalty regulations and may evaluate negligence from the starting
point of a traditional negligence analysis rather than from the Part 100
definitions. Brody Mining , 37 FMSHRC at 1701; accord Mach Mining ,
809 F.3d at 1263-64. Thus, in making a negligence determination, a Commission
judge is not limited to an evaluation of allegedly mitigating circumstances,
but may consider the totality of the circumstances holistically. Under such an
analysis, an operator is negligent if it fails to meet the requisite high
standard of care under the Mine Act. Brody Mining , 37 FMSHRC at 1701.

C.
Unwarrantable Failure

The unwarrantable failure terminology is
taken from Section 104(d) of the Act, 30 U.S.C. § 814(d). The
Commission has defined an unwarrantable failure as aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp. , 9 FMSHRC
1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct
as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious
lack of reasonable care.” Emery Mining Corp. , 9 FMSHRC at 2003; see
also Buck Creek Coal, 52 F.3d at 136.

Whether conduct is “aggravated” in the
context of an unwarrantable failure analysis is determined by looking at all
the facts and circumstances of each case to see if any aggravating factors. The
Commission examines seven aggravating factors, which include the length of time
that the violation has existed, the extent of the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for
compliance with the standard, the operator's efforts in abating the violative
condition, whether the violation is obvious, whether the violation poses a high
degree of danger, and the operator's knowledge of the existence of the
violation. See, e.g. , Manalapan Mining Co. , 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co. , 31 FMSHRC
1346, 1350-51 (2009); Consolidation Coal Co. , 22 FMSHRC 340, 353 (Mar.
2000). The Commission and its judges must take into account all of the factors,
but may determine, when exercising discretion, that some factors are not
relevant, or are much more or less important than other factors under the
circumstances. IO Coal Co. , 31 FMSHRC at 1351; Excel Mining, LLC , 497 F. App'x
78, 79 (D.C. Cir. 2013); Consolidation Coal Co. , 23 FMSHRC 588,
593 (2001).

D. Penalty Criteria

Under
the Mine Act’s bifurcated penalty assessment process, the Secretary initially
proposes a penalty. 30 U.S.C. § 815(a). The operator has the right to challenge
the Secretary’s proposed penalty assessment. Id . This contest results in
a penalty proceeding before the Commission. There is no requirement in the Mine
Act mandating that the Secretary explain the basis for his proposed penalty
when he makes the discretionary decision to specially assess a penalty. 30
C.F.R. § 100.5.

An Administrative Law Judge has the independent
authority to assess all penalties. 30 U.S.C. § 820(i). In so doing, he or
she must consider six statutory criteria set forth in Section 110(i), and the
deterrent purpose of the Mine Act. The six statutory criteria are: 1) the
operator’s history of previous violations; 2) the appropriateness of the penalty
to the size of the business; 3) the operator’s negligence; 4) the operator’s
ability to stay in business; 5) the gravity of the violation; and 6) any
good-faith compliance after notice of the violation. See e.g ., Douglas
R. Rushford Trucking , 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. §
820(i). Equal weight need not be given to each criteria Spartan Mining ,
30 FMSHRC at 723.

Commission
Judges are neither bound by the Secretary’s proposed assessment nor by his Part
100 regulations governing the penalty proposal process. American Coal Co. ,
38 FMSHRC 1987, 1993-94 (Aug. 2016) ( citing Sellersburg Stone Co.
v. FMSHRC , 736 F.2d 1147, 1150-51 (7th Cir. 1984); Mach
Mining, LLC , 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) (MSHA Part 100
regulations are not in any way binding in Commission proceedings)). The Judge
must provide an explanation for a substantial divergence between the
Secretary’s proposed penalty and the Judge’s assessed penalty. Sellersburg
Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983). The Commission reviews a
Judge’s civil penalty assessment under an abuse of discretion standard.   Douglas
R. Rushford Trucking , 22 FMSHRC 598, 601 (May 2000) (citation omitted).  

My
independent penalty assessment for each citation or order at issue is set forth
herein.  

III. FINDINGS OF
FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.
Stipulations of Fact and Law

The
parties have stipulated to the following:

1. Respondent
   was an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d),
   at the mine at which the citations and order at issue in this proceeding were
   issued.

2. Operations
   of the Respondent at the mine at which the citation and orders were issued are
   subject to the jurisdiction of the Mine Act.

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

4. The
   individuals whose names appear in Block 22 of the citations and orders were
   acting in their official capacities and as authorized representatives of the Secretary
   of Labor when the citations were issued.

5. True,
   authentic copies of the citations and orders were served on the Respondent or
   its agent as required by the Mine Act.

6. The proposed
   penalty for the citations and order at issue in this proceeding will not affect
   Respondent’s ability to stay in business.

7. The citations
   and order contained in Exhibit “A” attached to the Secretary’s Petitions are
   authentic copies with all appropriate modifications or abatements, if any.

8. MSHA’s Data
   Retrieval System publicly available at http:www.msha.gov/drs/drshome.htm,
   accurately sets forth:

a.        The size of
Respondent in production tons or hours worked per years;

b.       The size, in
production tons or hours worked per year, of the mine;

c.        The total number
of assessed violations for the time period listed; and

d.       The total number
of inspection days for the time period listed therein.

9. Exhibit “A” of
   the Secretary’s Petitions for the Assessment of Civil Penalty accurately sets
   forth:

a.        The size of
Respondent in production tons or hours worked per years;

b.       The size, in
production tons or hours worked per year, of the mine;

c.        The total number
of assessed violations for the time period listed; and

d.       The total number
of inspection days for the time period listed therein.

10. Fact of
    violation is established for each violation in each of the above-captioned
    dockets.

11. With
    respect to Citation No. 9061132, the distance between the #5 seal and the first
    row of bolts closest to the seal was 13 feet, 6 inches on the date the citation
    was issued.

12. With respect to
    Citation No. 9061132, the distance between the #3 seal and the first row of
    bolts closest to the seal was approximately 8 feet on the date the citation was
    issued.

13. With respect to
    Citation No. 9061132 and Order No. 9061133, Chauncy Easterling was an agent of
    the operator on the date the citation and order were issued.

14. With respect to
    Citation No. 9051132 and Order No. 9061133, Chauncy Easterling conducted a
    weekly examination of the #1 to #7 seals on April 19, 2015.

15. With
    respect to Citation No. 9061479, the lifeline in the secondary escapeway of the

8 mains section had only one cone leading to the branch line leading to the

refuge alternative at the time the citation was issued.

16. With
    respect to Citation No. 9061120, the closest CO monitor to the section load
    point was located five crosscuts outby the load point at the time the citation
    was issued.

17. With respect to
    Citation No. 9061120, the section was mining coal at the time the citation was
    issued.

18. With respect to
    Citation No. 9061131, the operator could not produce training records for any
    of the certified persons who conduct exams of the mine seal at the time the
    citation was issued.

19. The
    Certified Assessed Violation History Report (P. Ex. 1) is an authentic copy and
    may be admitted as a certified business record of the Mine Safety and Health
    Administration.

Jt. Ex. 1. The
following stipulations were admitted into the record at hearing:

20. With
    respect to Order No. 9061133, none of the roof conditions the inspector
    described in Section 8 “Condition or Practice” of Citation No. 9061132 and the
    corresponding inspection notes were listed or otherwise described in the most
    recent weekly examination records that covered the #1 to #7 seals in the right
    return on the date the order was issued. P. Ex. 22 at 12; Tr. I-27.

21. The
    weekly examination records for the mine seals that Inspector Daniel Morgan
    reviewed prior to going underground as part of his E01 inspection of the mine
    on April 30, 2015 did not list any hazards, violations, or unsafe conditions in
    the areas of the #1 to #7 seals. P. Ex. 22 at 12; Tr. I-28.

B.
The April 14, 2015 Inspection

On April 14, 2015, MSHA
Inspector Herman Morgan arrived at Rock N Roll Coal’s Mine No. 7 at 6:30 a.m.
to conduct a regular E01 inspection. [5]
Tr. I-86, 89. Morgan was accompanied by MSHA trainee Shawn Tichnell. Tr. I-92. Prior
to April 2015, Mine No. 7, a slope mine, had been idle, and had been actively
producing coal for only about six weeks. Tr. I-85. The mine had one active
continuous mining section, and used a mobile bridge hauling system to transport
coal out of the mine. Tr. I-75. The mine had a low-ceiling with an average
height of 40 inches.  Respondent employed about 12 miners on the working
section, and two on the surface named Josh and Caleb Cline, the owner’s sons. Tr.
I-104, 80.

After a pre-inspection conference, Morgan reviewed the
weekly exam books. He noticed that the weekly exam records did not contain exam
records of several of the measuring points (“MPs”) in the left return airway. Tr.
I-94, 96. Morgan consulted with Chauncy Easterling, the fire boss and weekly
examiner. Morgan asked whether Easterling had performed the weekly examinations
at the left return airway MPs. Easterling told Morgan that he had completed the
examinations, but had forgotten to record the results. Tr. I-97.

Easterling and Morgan then used a permissible vehicle
to travel to the left return airway. Easterling pointed out the dates, times,
and initials (“DTI”) board and showed Morgan a notebook, which indicated that
Easterling had examined the required MPs during his prior weekly examination. Tr.
I-97-98. [6]        

1. Lifeline
   Violation, Citation No. 9061479

After traveling
the left return airway, Morgan and Easterling returned to the surface, and then
took a different permissible vehicle down the secondary escapeway toward the
working section. Tr. I-99. Morgan saw that the lifeline was missing one of the
two directional cones that indicate a branch line juncture. Morgan issued
Citation No. 9061479 alleging a violation of 30 C.F.R. § 75.380(d)(7), [7]
based on the following condition:

The operator
failed to securely attach 2 consecutive cones, to signify a branch line leading
to the outby refuge alternative, located in the secondary escapeway. When
checked, the secondary escapeway life line was observed having only one cone
leading to the refuge alternative. In the event of a mine emergency, the proper
markings would not be found on the secondary escapeway life line to properly
signal the proper escapeways.

P. Ex. 2. Morgan
designated the citation as S&S, reasonably likely to result in fatal
injuries to eight people, and the result of Respondent’s moderate negligence. Id .
The Secretary proposed a penalty of $4,689.

a.
The Violation in Citation No. 9061479 was S&S

Respondent stipulated to the fact of the
violation. Stip. Fact No. 10, Jt. Ex. 1. Accordingly,
the missing directional cone on the lifeline constitutes a violation of 30 C.F.R. § 75.380(d).
P. Ex. 2.

I next identify the hazard in the first
part of step two of the clarified Mathies test.   Newtown Energy, 38
FMSHRC at 2038. As the Commission explained, “a clear description of the
hazard at issue places the analysis of the violation’s potential harm in
context, by requiring a determination of the relative likelihood that the violation
will have a meaningful, adverse effect on conditions miners will encounter
during normal mining operations.”   Id. Under Mathies ,
the hazard contributed to by the violation is defined “in terms of the
prospective danger the cited safety standard is intended to prevent,” and
therefore “the starting poi nt for determining the hazard is the actual
cited section [of the Code of Federal Regulations].” Id.

Section 75.380(d)(7)(vii) requires the
installation of two, consecutive, tapered cones on the lifeline to indicate an
upcoming branch line juncture. This two-cone marking requirement indicates to
miners,who are following the lifeline, that eight to twelve inches ahead, there
is a branch juncture, which will lead them to either a refuge alternative (“RAs”)
or a cache of self-contained self-rescue devices (“SCSRs”). Tr. I-105, 107-109. [8]
 I find that the hazard contributed to by the missing cone is that miners
following the lifeline during an emergency evacuation might fail to recognize
the branch line junction and thereby bypass potentially life-saving equipment. Tr.
I-112.

Having determined that the
missing lifeline cone presents a hazard to evacuating miners, I now consider
whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the
[standard] is directed,” i.e., whether, in an emergency situation, the missing
come is reasonably likely to cause miners exiting through the escapeway to
bypass the branch line junction. [9]
Newton Energy , 38 FMSHRC at 2037.

I find that there is a reasonable
likelihood that miners using the lifeline to evacuate during an emergency could
bypass potentially life-saving equipment due to the missing branch line
identification cone. Lifelines are used in all types of mine emergencies,
including smoke incidents, fires, and water inundations. Tr. I-108. As Morgan
testified,

We get down to
42 inches high, the smoke is more compressed now so I’m probably going to have
to belly-crawl, maybe and get under [the smoke] if I can get under it then.
Now, I can’t do that because to reach the lifeline I’m going to have to be on
my knees crawling. If the markings aren’t right on that lifeline, I’m liable to
miss a very important lifesaving device that is installed in that mine to save
my life.

Tr.
I-112, 114. I credit Morgan’s testimony that even miners familiar with the
locations of rescue equipment could become confused or panic during an
emergency, and bypass the branch junction without the aid of the cone to alert
them to the location of such equipment. Tr. I-113-14.

I
also find that the hazard presented by the missing cone is reasonably likely to
result in an injury of a reasonably serious nature, thereby satisfying the
third and fourth Mathies factors. See
Mathies , 6 FMSHRC at 4. In an
emergency situation, the particularly low seam height in Mine No. 7 would
require miners to crawl as they follow the lifeline, slowing their evacuation.  Tr.
I-112; 115. [10]
I credit Morgan’s testimony that the low seam height and the missing branch
line cone could lead to a fatality if an evacuating miner inadvertently
bypassed lifesaving equipment:

[I]n
an emergency situation, minutes make all the difference. A marking missing off
a lifeline could cost you minutes, could cause your SCSR to run out of power. I
mean, it might make you hesitate just long enough to where you don’t reach the
next SCSR cachet. You know, if it stops you for two minutes, that might be the
two minutes that you fall short of reaching the next available rescue option.

Tr.
I-115.

Although Morgan credibly testified that
he believed a fatality was likely to result from miners bypassing lifesaving
equipment in the event of an emergency, smoke inhalation and burns also
constitute serious injuries for purposes of the Mathies analysis. Amax
Coal , 19 FMSHRC 846, 847 (May 1997) (upholding judge’s finding of
S&S based on evidence of smoke inhalation and burns that would result in serious
injuries).
In
addition, Morgan testified that mine rescue teams traveling into the mine rely
on the proper placement of lifeline cones to navigate underground during
emergency situations, and the missing cones could delay or confuse the team’s
rescue efforts, making it more likely that miners would suffer from serious and
potentially fatal injuries due to a delay in rescue efforts . Tr. I-113.  

I conclude that the lack of one
of two required branch cones on the lifeline was reasonably likely to
contribute to the hazard of miners bypassing life-saving equipment when
attempting to escape the mine via the lifeline during an emergency, which was
reasonably likely to result in an injury of a reasonably serious nature. Mathies ,
6 FMSHRC at 3-4. I therefore affirm the Secretary’s S&S designation for
Citation No. 9061479.

b.
Citation No. 9061479 was the Result of Respondent’s High Negligence

In determining whether an operator meets
its duty of care under the cited standard, the Commission considers what
actions would have been taken under the same or similar circumstances by a
reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation. See generally U.S.
Steel Corp. , 6 FMSHRC at 1910. Morgan testified that he designated
Citation No. 9061470 as moderate negligence because the missing cone should
have been noticed and replaced during the pre-shift examination. Tr. I-116-17. Pre-shift
examinations are required where miners are expected to work or travel during a
shift, including RAs.  Tr. I-116. Since miners typically travel the secondary
travel way to access the working section, the lifeline should have been
included during the pre-shift examination. Tr. I-117. Morgan did not observe
the missing cone lying on the ground in proximity to the branch line, and
concluded that the cone had not “just fallen off” and had likely “been missing
for awhile.” Tr. I- 116.  Morgan testified that Easterling offered no
mitigating circumstances or explanation. Tr. I-117. In these circumstances, I
affirm the Secretary’s moderate negligence designation for Citation No.
9061470.

c. Penalty Assessment

The Secretary proposed a penalty of $4,689 for this
violation after considering the six penalty criteria. 30 C.F.R. Pt. 100; see
Ex. A, Petition for the Assessment of Civil Penalties, Docket No. WEVA
2015-0890.  The parties have stipulated that Respondent produced 598 tons of
coal in 2015, and that Respondent had a total of 20 violations in the 15 months
preceding the issuance of Citation No. 9061479. Stip. Fact. No. 9, Jt. Ex. 1;
Ex. A, Petition for the Assessment of Civil Penalties , Docket No. WEVA
2015-0890. The parties have also stipulated that the proposed penalty will not
affect Respondent’s ability to remain in business. Stip Fact. No. 6, Jt. Ex. 1.
I have affirmed the Secretary’s gravity and negligence designations.  Respondent
demonstrated good faith in abating the violation. See Ex. A, Petition
for the Assessment of Civil Penalties , Docket No. WEVA 2015-0890
(reflecting 10% discount for good faith abatement). Based upon my consideration
of the Section 110(i) penalty criteria and the deterrent purposes of the Act, I assess a
penalty of $4,689.   

2.
CO Monitor Violation, Citation No. 9061120

After issuing Citation No. 9061479, Morgan and
Easterling continued down the secondary escapeway toward the working face and
approached the belt’s section loading point. Morgan observed that the section
loading point of the secondary escapeway’s main belt was missing a carbon
monoxide (“CO”) monitor in violation of 30 C.F.R. § 75.351(e)(1)(i). [11]
Based on that observation, Morgan issued Citation No. 9061120, alleging the
following condition:

The operator
failed to provide a CO monitor at a required location. When observed the CO
Monitor located at the section loading point was located 250’ outby the section
loading point. The last CO monitor located on the company #5 beltline was five
breaks outby the section loading point. There was no CO monitor coverage
anywhere inby this point on the beltline. The violation is an unwarrantable
failure to comply with a mandatory standard.

After issuing the citation, Morgan then
traveled outby the section loading point to determine the location of the
nearest CO monitor, and discovered it about 250’ away from the required
location, lying with the sensors face down on a wooden spool. He did not
observe anyone else in the belt line area. Morgan later decided to modify
Citation No. 9061120 from a 104(d)(1) order to a 104(a) citation, based on
the following conditions:

After further
review, the citation will be dropped from a D-1 citation S&S, to a 104-a
citation non-S&S due to the following reasons. After further thought the
affected area was found to have 1. No CH4 was found in the area. 2. The
beltline airstream travels outby and not toward the section. 3. No other
hazards such as stuck rollers, belt rubs, or accumulations were found in the
area.

The Secretary alleges that the violation
was non-S&S, unlikely to cause permanently disabling injuries to eight
persons, and the result of Respondent’s high negligence. P. Ex. 3. The
Secretary proposed a penalty of $1,412.

a. The Gravity of Citation No. 9061120
was Properly Designated as Unlikely to  Cause Permanently Disabling Injuries to
Eight Miners

Respondent stipulated to the fact of the violation. Stip.
Fact No. 10, Jt. Ex. 1. I next identify the discrete safety hazard contributed
to by the violation. Mathies , 6 FMSHRC at 3-4. Mines generate CO in
a number of ways, i.e., through fires, belt rubs, coal accumulations, and
electrical equipment. Tr. I-128. CO monitors detect carbon monoxide and provide
early warning of smoke and fire inside the mine. Tr. I-127.  Morgan testified that
the CO monitors installed at required places in the mine form a continuous line
to the surface, where the system terminal is usually located in the mine
office. Tr. I-128. When a monitor detects carbon monoxide, the terminal in the
mine office sounds an alarm. Tr. I-129. The person in the office responsible
for monitoring the system then notifies the underground miners that a monitor
at a particular location has been triggered, and an underground miner investigates
the CO sensor at that location to determine the source of carbon monoxide. Tr.
I-139.  

I find that the hazard presented by the misplaced CO
monitor is that miners would not receive an early warning alarm regarding the
potential for a smoke or fire incident near the secondary escapeway belt
tailpiece. Tr. I-133. Morgan testified that the section loading point is
particularly prone to accumulations, spillage, and belt alignment problems,
which augment the likelihood of smoke inhalation and an actual ignition
incident due to the delayed warning, although Morgan found no belt rubs, bad
rollers, or accumulations in the area. Tr. I-129-30; P. Ex. 4 at 15.

While Morgan
recognized that the violation contributed to a hazard that could cause permanently
disabling injuries to eight miners as a result of potential smoke inhalation
and burns from a smoke or fire incident, he found that such injuries would be
unlikely to occur. The miners were working inby the section loading point,
while the air on the secondary escapeway flows outby the belt line, thus
carrying any potential smoke towards the mine exit, rather than towards the
working section. Tr. I-135. Morgan also recognized that the primary escapeway
was an available route of evacuation in the event of a smoke or ignition
incident in the secondary escapeway. Further, Morgan determined that injuries
would be unlikely because of the firefighting equipment located at the section
loading point, and the miners’ training in firefighting techniques and participation
in quarterly firefighting training drills. Tr. I-136. Finally, Morgan
determined that all eight miners working the section would have assigned tasks
during a firefighting incident and the designated hazard would affect eight
miners. Tr. I-137.

The Commission has concluded that its administrative
law judges may not make sua sponte S&S determinations that usurp the
Secretary’s enforcement authority.   Mechanicsville Concrete , 18 FMSHRC
877, 879-80 (June 1996). Accordingly, I affirm the Secretary’s gravity and
non-S&S designations.  

b. Citation No. 9061120 was the Result
of Respondent’s High Negligence

Morgan found that the violation in Citation No.
9061162 was the result of Respondent’s high negligence because Respondent offered
no mitigating circumstances.  Tr. I-139.

Ralph Steele, Respondent’s chief electrician, admitted
that mine management had been aware of the misplaced monitor for at least a
week while the section was actively mining, but that Respondent did not fix the
problem because it did not have adequate cable to place the monitor closer to
the section loading point. Tr. I-139, 141; II-220-21. The violation was abated
that same day, when Steele installed new cable from one of the mine owner’s
other mines, and moved the misplaced CO monitor to the section loading point. Tr.
II-216. Based on Respondent’s admitted knowledge of the violation and the fact
that Respondent could have immediately corrected the violation by obtaining
cable from a sister mine, I find that Respondent’s actions were not consistent
with what a reasonably prudent operator would have done under the circumstances,
that is, immediately correct the condition.  I therefore affirm the high
negligence designation for Citation No. 9061162.

c.
Penalty Assessment

The Secretary proposed a penalty of $1,412 for this
violation. The parties have stipulated that Respondent produced 598 tons of
coal in 2015, and that Respondent had a total of 20 violations in the 15 months
preceding the issuance of Citation No. 9061120. Stip. Fact. No. 9, Jt. Ex. 1;
Ex. A, Petition for the Assessment of Civil Penalties , Docket No. WEVA
2015-0890. The parties have also stipulated that the proposed penalty will not
affect Respondent’s ability to remain in business. Stip Fact. No. 6, Jt. Ex. 1.
I have affirmed the Secretary’s gravity and negligence designations.  Respondent
demonstrated good faith in abating the violation. See Ex. A, Petition
for the Assessment of Civil Penalties , Docket No. WEVA 2015-0890
(reflecting 10% discount for good faith abatement). Based upon my consideration
of the Section 110(i) penalty criteria and the deterrent purposes of the Act, I assess a
penalty of $1,412.   

C.
The April 30, 2015 Inspection

On April 30, 2015, Morgan arrived at the
mine at 7:45 a.m. to continue his E01 inspection. Tr. I-151-52. He reviewed the
examination record books in the mine office and found that examinations had not
been recorded for some MPs and mine seals. Tr. I-153.  Morgan was concerned
that the examinations for seal No. 8 had never been recorded in the exam books.
Tr. I-168. [12]
Morgan discussed the lack of seal No. 8 exam records with Easterling, who
indicated that seal No. 8 had “[fallen] through the cracks, [and] nobody had
remembered to go examine it.” Tr. I-168.

After that discussion, Morgan and
Easterling traveled to the No. 8 seal. They had difficulty locating the seal
monitor tube because it was covered by leaves. Tr. I-169. Morgan
instructed Easterling to conduct a regular seal exam. According to Morgan’s
testimony, Easterling showed “no knowledge of being able to use the pump.” Tr.
I-169. Morgan testified that Easterling “turned [the pump] on, but [Easterling]
waved it in front of the tube like a spotter . . . he
didn’t, actually, hook it up to the tube and try to pump it at that time.” Tr.
I-169. [13]
Morgan then halted Easterling’s examination and gave Easterling on-the-spot
training on how to properly conduct seal examinations. Tr. I-174; 225.

After witnessing Easterling’s inability
to properly conduct a seal examination, Morgan returned to the mine office and
asked mine foreman Ricky McGuire whether anyone at the mine was certified to
conduct seal examinations. Tr. I-175. McGuire indicated that he had received
seal examination training when MSHA originally approved the use of Omega block
seals back in 2006, but McGuire could not produce training certificates for
anyone at the mine. Tr. I-170, II-106. After further questioning, Morgan
determined that McGuire knew how to conduct proper seal examinations, and
allowed McGuire to train other miners in proper seal examination procedures. Tr.
I-170.

1.
Failure to Provide Certified Training Records for Persons Conducting Mine Seal Sampling,
Citation No. 9061131

Based on Easterling’s demonstrated lack
of knowledge regarding proper seal examinations, Morgan issued Citation No.
9061131, alleging a violation of 30 C.F.R. § 75.338(a) due to
the following practice:

The operator
failed to provide certification that the persons conducting seal sampling/exams
has been trained in proper methods for taking samples or the use of sampling
equipment. When asked to produce the training records for the examiners at this
mine the operator could not produce records for any of the certified people who
conducts [sic] exams on the seals. [14]

P.
Ex. 5. The Secretary alleges that the citation was non-S&S, unlikely to cause
fatal injuries to fourteen miners, and the result of Respondent’s moderate
negligence. Id . The Secretary proposed a penalty of $807.

a. The Gravity of Citation No. 9061131
was Properly Designated as Unlikely to Cause Fatal Injuries to Fourteen Miners 

The parties stipulated to the fact of
the violation and agreed that Respondent could not produce certified training
records for anyone who had been conducting mine seal examinations at the time the
citation was issued. Stip. Fact Nos. 10, 18; Jt. Ex. 1; P. Ex. 5.

Respondent’s failure to provide certified
training records for seal examiners presents the possibility that the miner(s)
conducting the seal exams did not have the requisite knowledge of sampling
methods and the use of sampling equipment that is required to conduct adequate
seal examinations. By failing to provide records to ensure that a properly trained
and certified miner was examining the seals, Respondent created a risk that an
uncertified miner was conducting seal examinations which contributed to the
hazard that problems with the seals would not be detected and addressed.  When
Morgan requested Easterling to demonstrate a proper seal examination on seal
No. 8, Easterling was unable to do so. Tr. I-169. Although McGuire later
demonstrated to Morgan that he knew how to conduct a proper seal examination, the
record establishes that it was Easterling, not McGuire, who conducted the
weekly examinations of the seals in the No. 5 entry.  Tr. I-170

Morgan credibly testified that failure
to properly inspect the seals could lead to seal failures in the form of
explosions, flooding, or black damp. Tr. I-172-73. Morgan also determined that
the low ceiling height in Mine No. 7 would slow miners’ evacuation in the event
of an emergency, increasing the likelihood that a seal failure would cause a
fatality.  Morgan testified that a flood would drown miners caught underground
in the event of a seal failure. Tr. I-178-79. In addition, the No. 5 entry
where the seals were located is but one entry away from the No. 4 entry used by
miners to enter and exit the mine on a daily basis, making it more likely that
any explosion or flood resulting from a seal failure would affect all fourteen
miners working the section. Tr. I-179. I find that the failure to provide
records that a certified examiner was conducting seal sampling contributed to
the hazard of potential seal failures. While in the first instance, I might
find that the record supports an S&S designation for Citation No. 9061131, as
noted above, the Commission’s administrative law judges do not have authority
to designate violations S&S where the Secretary has not made such an
allegation. Mechanicsville Concrete , 18 FMSHRC at 879-80 (June 1996). In
these circumstances, I affirm the Secretary’s gravity designation for Citation
No. 9061131. 

b. Citation No. 9061131 was the Result
of Respondent’s Moderate Negligence

Considering the totality of
circumstances, I find that Citation No. 9061131 was the result of Respondent’s moderate
negligence. Although McGuire demonstrated that he knew how to properly conduct
seal exams, and testified that he received training on proper seal examination
procedures from an MSHA inspector-at-large immediately after the installation
of the mine seals, McGuire never filled out a training certification form,
although he continued inspecting the seals for 11 years without training
certification. Tr. II-107. Easterling demonstrated during Morgan’s inspection
that he did not know how to properly examine mine seals. Tr. I-169-70; II-106. Moreover,
Easterling had been conducting the examinations since the mine had reopened six
weeks before Morgan’s E01 inspection began, and McGuire had been signing off on
Easterling’s seal inspections. P. Ex. 9. A reasonable operator familiar with
the industry would have established that its examiners had the proper
certifications in order to complete their assigned tasks. McGuire in fact
admitted that he knew that underground miners must be “task-trained” and that
the mine is required to produce training records at the request of MSHA
inspectors. Tr. II-110. I therefore affirm the Secretary’s moderate
negligence designation for Citation No. 9061131.

c. Penalty Assessment

The Secretary proposed a penalty of $807 for this
violation after considering the six penalty criteria. The parties have
stipulated that Respondent produced 598 tons of coal in 2015. Respondent had a
total of 20 violations in the 15 months preceding the issuance of Citation No. 9061131.
Stip. Fact. No. 9, Jt. Ex. 1; Ex. A, Petition for the Assessment of Civil
Penalties , Docket No. WEVA 2015-0890. The parties also stipulated that the
proposed penalty will not affect Respondent’s ability to remain in business. Stip
Fact. No. 6, Jt. Ex. 1. I have affirmed the Secretary’s gravity and negligence
designations. I find that Respondent demonstrated good faith in abating the
violation. See Ex. A, Petition for the Assessment of Civil Penalties ,
Docket No. WEVA 2015-0890 (reflecting 10% discount for good faith abatement). Based
upon my consideration of the Section 110(i) penalty criteria and the deterrent
purposes of the Act, I
assess a penalty of $807.  

2. Hazardous Roof Conditions
   Violation, Citation No. 9061132

Morgan and Easterling went into the mine
to inspect the underground seals, located in the crosscuts near the right
return air course at the No. 5 entry. Tr. I-176; P. Ex. 19. The crosscuts were
on average twenty feet wide and the seals were set back from the roadway at
distances of between four and thirteen-and-a-half feet. Tr. I-179-80; see
also P. Ex. 17 at 2. The mine height in the area was between 48 and 50
inches. Tr. I-180.

As they advanced down the return, Morgan
noticed hazardous conditions involving roof support cribs that were installed in
2005 to support the mine roof in front of seals Nos. 1 through 7. Tr. I-176. The
cribs blocks were eight-inch-by-eight-inch blocks of solid wood stacked two by
two in alternating directions to form a square. The blocks were stacked as
close as possible to the mine roof, with wooden, wedge-shaped half-headers
inserted between the blocks and the roof to tighten the entire structure
against the roof surface. Tr. I-184, II-95. Although Morgan did not actually
enter any of the crosscuts to measure the spacing between the cribs due to the
conditions, the roof control plan required that the cribs be installed at
four-foot by four-foot intervals. P. Ex. 17 at 4, 6.

Morgan estimated that the seal entries
contained about 50 cribs. Tr. I-185. Morgan estimated that sixty to seventy
percent of the cribs were ineffective, and described them as “deteriorated,”
“rotting,” or “falling over.” He specifically noted that some of the cribs had
shrunken or collapsed and fallen away from the roof, while some of the standing
cribs were no longer flush against the mine roof. Tr. I-176, 181, 185-86. He
also observed that a large section of roof, twelve feet long, four feet wide,
and three or four inches thick, had fallen and was crushing the cribs inside
the No. 5 seal entry. Tr. I-182, 188. Morgan did not observe any roof bolts in
the sections of roof between the roadway and the seals, and he concluded that
roof bolts had not been in use when those areas of the mine were sealed off. Tr.
I-181, 187.

Easterling attempted to access one of
the seals to demonstrate to Morgan that he could conduct a seal exam and to
draw Morgan’s attention to the dates, times and initials (“DTIs”) boards for
prior exams conducted at each seal, but Morgan prevented Easterling from
traveling underneath the hazardous roof conditions in between the roadway and
the seals. Tr. I-177, 183. Although Morgan stayed in the roadway as he observed
the seals and the surrounding roof conditions in the crosscuts, he was able to
see the DTI boards for some of the seals. Morgan specifically asked Easterling
whether he had traveled under the hazardous unsupported roof conditions to
conduct his seal exams, and Easterling answered in the affirmative. Tr. 183. Morgan
also asked Easterling how long the conditions had existed, and Easterling replied
that the conditions had been that way since Easterling started working at the
mine about six weeks earlier. Tr. I-196.

Based on his observations of the
deteriorated roof cribs and unsupported roof in the seal crosscuts, Morgan issued
Citation No. 9061132 under section 104(d)(1) of the Mine Act. The citation
alleged a violation of 30 C.F.R. § 75.364(d) for failure to
immediately correct the hazardous roof conditions, as follows:

The operator
failed to correct hazardous conditions encountered during a weekly examination
immediately. The #1-#7 50 PSI seals located in the right return was [sic] found
to have areas that was not roof bolted when mined and the cribs that were built
in the area to supplement the roof control were allowed to deteriorate to the
condition of rotting and falling out, being crushed out, and not providing any
support for the mine roof. The examiner was crawling between these cribs to
conduct his exam and was not correcting the condition or recording it in the exam
book. At seal #5 the distance from the first row of installed roof bolts to the
seal was measured to be 13’ 6”. The cribs in this area was [sic] rotted and on
they [sic] inby end the mine roof had fallen on top of the cribs crushing them
down approximately 8”.  This violation is an unwarrantable failure to comply
with a mandatory standard. [15]

P. Ex. 6. Morgan
designated the violation as S&S, reasonably likely to contribute to a
hazard that would cause fatal injuries to fourteen miners, and the result of
Respondent’s high negligence. As noted, Morgan also designated the alleged
violation as an unwarrantable failure to comply with the Secretary’s mandatory
safety standard. Id . The Secretary proposed a penalty of $3,405.

a.
The Violation in Citation No. 9061132 was S&S

Respondent stipulated to the fact of the
violation. Stip. Fact. No 10; Jt. Ex. 1.

I turn next to the first part of step
two of the Mathies test as clarified in Newtown Energy , i.e., identifying
the discrete safety hazard that was contributed to by the failure to
immediately correct the adverse roof conditions. Mathies , 6 FMSHRC at 6;
Newtown Energy, Inc. , 38 FMSHRC at 2037. I find that the hazard
presented by the failure to immediately correct the hazardous roof conditions
was another roof fall. [16]

Having identified the hazard, I now turn
to “a determination of whether, based on the particular facts surrounding the
violation, there exists a reasonable likelihood of the occurrence of the [roof
fall] hazard.” Id. Although Morgan did not approach the cribs due to the
unsupported roof, he estimated that 30-35 out of the 50 cribs that he observed
were hazardous. Tr. I-185. McGuire testified that 26 cribs were installed in
the seal area to abate Citation No. 9061132. Tr. II-92. Some cribs had partially
collapsed or fallen over, some were rotted, and others were no longer in
contact with the roof to provide support. Tr. I-181. The roof inside the
crosscuts housing the seals had not been roof bolted. Id . The parties
stipulated that the distance between the No. 3 seal and the first row of roof
bolt closest to the seal was approximately eight feet. Stip. Fact No. 12; Jt.
Ex. 1. The parties also stipulated that the distance between the No. 5 seal and
the first row of roof bolts closest to the seal was thirteen feet and six
inches. Stip. Fact No. 11; Jt. Ex. 1.

In addition, Morgan observed that a
large section of roof, a rock measuring twelve feet long, four feet wide, and
three or four inches thick, had fallen and was crushing the cribs inside the
No. 5 entry. Tr. I-182, 188. Morgan determined that the hazardous conditions
would have been obvious even to a miner trainee with little to no experience,
much less to an experienced underground miner. Tr. I-181-82. Easterling told
Morgan that the condition had lasted for six weeks, i.e., ever since the mine
had reopened and Easterling had begun conducting the seal examinations. Tr.
I-196.

Based on the particular facts surrounding
the violation, I find that the Secretary established a reasonable likelihood that
a roof fall would occur.

The third step in the Mathies
analysis requires a determination of whether the hazard identified in the
second step, a roof fall, was reasonably likely to cause injury. See Knox
Creek , 811 F.3d at 161-65. Easterling was regularly traveling underneath
the unsupported roof near the seals in the No. 5 entry, and a large section of
roof had already fallen on the deteriorated cribs. Tr. I-182-83, 188. I find
that the Secretary established a reasonable likelihood that an injury would
result from a roof fall in the No. 5 entry.

Regarding the fourth Mathies factor,
I find that the Secretary established a reasonable likelihood that any injury
resulting from a roof fall would be of a reasonably serious nature. Morgan
designated the injury likely to occur as fatal, and I affirm that designation. As
demonstrated by the size of the roof fall that had already occurred in the No.
5 seal entry, and by the damage to the crib on which it had landed, any roof
fall would be reasonably likely to result in a fatality. Tr. I-183-84,

188. Furthermore, the Commission has long acknowledged that roof falls are a
     leading cause of death in underground coal mines. See Halfway, Inc. , 8
     FMSHRC 8, 13 (Jan. 1986) (“Our decisions have stressed the fact that roof falls
     remain the leading cause of death in underground coal mines.”).

Based on the foregoing, I
find that the violation of 30 C.F.R. § 75.362(d) in Citation No. 9061132
was S&S and reasonably likely to contribute to a roof fall hazard that
would cause fatal injuries to one miner.

b. Citation No. 9061132 was the Result of
Respondent’s High Negligence

Morgan designated Citation No. 9061132
as the result of Respondent’s high negligence because examiner Easterling, an
agent of the operator, had personal knowledge of the hazardous conditions for
about six weeks and took no action to correct them. Tr. I-200. Morgan credibly
testified that the conditions he observed were so obvious that even an
inexperienced miner would have known not to enter the area. Tr. I-182. Morgan
also asked Easterling whether he had taken any steps to correct the hazardous
conditions, and Easterling told Morgan that he was “one man responsible for all
of the outby area and [he] was working on it when [he] can get to it.” Tr.
I-195. Easterling also told Morgan that he had not made any efforts to correct
the hazardous conditions in the No. 5 entry because he had been working in the
other return air course. Morgan observed no evidence indicating that corrective
action had been taken. Tr. I-194.  I find that Respondent failed to take any
corrective action to abate an extremely dangerous roof fall hazard for six
weeks, and that such actions constitute high negligence because a reasonably
prudent operator would have acted immediately to correct the hazard.

c. Citation No.
9061132 was an Unwarrantable Failure to Comply with 30 C.F.R. § 75.364(d)

Whether conduct is “aggravated” in the
context of an unwarrantable failure analysis is determined by looking at all
the facts and circumstances of each case to see if any aggravating factors
exist.  The Commission specifically considers seven aggravating factors: the
length of time that the violation has existed; the extensiveness of the violation;
the duration of the violation; whether the operator has been placed on notice
that greater efforts are necessary for compliance with the standard; the
operator's efforts in abating the violative condition; whether the violation is
obvious; whether the violation posed a high degree of danger; and the operator's
knowledge of the existence of the violation. See, e.g. , Manalapan
Mining Co. , 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co. ,
31 FMSHRC 1346, 1350-51 (2009); Consolidation Coal Co. , 22 FMSHRC 340,
353 (Mar. 2000).

i. The Extent of
the Violative Condition

The extent of a
violative condition is an important element in the unwarrantable failure
analysis. IO Coal Co., 31 FMSHRC at 1351-52.  This factor considers the
scope or magnitude of the violation. See Eastern Associated Coal
Corp., 32 FMSHRC 1189, 1195 (Oct. 2010), citing Peabody Coal Co. ,
14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc. , 10 FMSHRC 705,
708 (June 1988). Extensiveness often concerns the degree of the violation and
is a question of fact regarding the material increase in the degree of risk
posed to miners as a result of the violation. Eastern Associated Coal, 32
FMSHRC at 1195.  In some situations, extensiveness depends on the number of
people affected by the violation. See Watkins Eng'rs & Constructors,
24 FMSHRC 669, 681 (July 2002).

Morgan
estimated that 30-35 out of the 50 roof cribs that he observed in the No. 5
entry had deteriorated to the point that they were not providing roof support
in the seal area. Tr. I-176, 181, 185-86. None of the area around the seals,
including the roof between the roadway and the crosscuts in which the seal were
located, had been roof bolted. Tr. I-181, 87. I find that the hazardous roof
conditions at issue in Citation No. 9061132 were extensive, and this factor
supports a finding of unwarrantable failure.

ii. The Duration
of the Violation

The duration of the
violative condition is a necessary consideration in the unwarrantable failure
analysis. See, e.g., Windsor Coal Co. , 21 FMSHRC 997, 1001-04 (Sept. 1999)
(remanding for consideration of duration evidence regarding cited conditions).  The
duration or length of time that the violation exists is particularly critical,
because the longer a violative condition or practice exists, the more likely
miners will be injured. Coal River Mining, LLC, 32 FMSHRC 82, 92 (Feb.
2010); see also Buck Creek Coal, 53 F. 3d at 136 (7th Cir. 1995)
(violation that lasted more than one shift was properly designated as
unwarrantable failure); Consol Coal Co. , 23 FMSHRC 588, 594 (June 2001)
(violation was unwarrantable failure where the violation existed over several
shifts).

The violation in Order No. 9061162
lasted at least six weeks, since the mine had reopened after an idle period. Tr.
I-196. I find that the duration of the violation weighs in favor of an
unwarrantable failure finding.

iii. Whether Respondent was Placed on
Notice that Greater Efforts were Necessary for Compliance with 30 C.F.R. §
75.362(d)

The Commission
has stated that repeated, similar violations are relevant to an unwarrantable
failure determination to the extent that they serve to put an operator on
notice that greater efforts are necessary for compliance with the cited standard.
IO Coal , 31 FMSHRC at 1353-55; Amax Coal Co. , 19 FMSHRC 846, 851
(May 1997); see also Consolidation Coal Co. , 23FMSHRC 588, 595
(June 2001). The purpose of evaluating the number of past violations is to
determine the degree to which those violations have “engendered in the operator
a heightened awareness of a serious . . . problem.” San Juan Coal Co. ,
29 FMSHRC 125, 131 (Mar. 2007), citing Mid-Continent Res., Inc .,
16 FMSHRC 1226, 1232 (June 1994). The Commission has also recognized that “past
discussions with MSHA” about a problem “serve to put an operator on heightened
scrutiny that it must increase its efforts to comply with the standard.” San
Juan Coal , 29 FMSHRC at 131, citing Consolidation Coal , 23
FMSHRC at 595.

The Secretary failed to establish that
the Respondent was placed on notice that greater efforts were necessary to
comply with 30 C.F.R. § 75.362(d).  There is no prior violation of this
standard in Mine No. 7’s Assessed Violation History Report.  P. Ex. 1. Moreover,
Mine No. 7 had only recently re-opened, and Morgan was conducting the first E01
inspection since the re-opening. In these circumstances, I find that the
operator was not placed on notice that greater efforts were necessary for
compliance with 30 C.F.R. § 75.362(d). Accordingly, this factor weighs against
a finding of unwarrantable failure.

iv. Respondent’s
Knowledge of the Existence of the Violation

The Commission has held that knowledge
is established by showing “the failure of an operator to abate a violation
[that] he knew or should have known existed.” Emery Mining Corp .,
9 FMSHRC 1997, 2002-03 (Dec. 1987); see also Senate Subcommittee on
Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at
1602 (1975). In the absence of past violations, an operator’s knowledge may be
established “where an operator reasonably should have known of a violative
condition.” IO Coal Company, Inc. 31 FMSHRC at 1356-57; Drummond Co.,
Inc., 13 FMSHRC 1362, 1367-68 (Sept. 1991), quoting Eastern Assoc. Coal
Corp., 13 FMSHRC 178, 187 (Feb. 1991).  Further, the Commission has held
that the extent of the involvement of supervisory personnel in a violation
should be taken into account in determining whether an unwarrantable failure
occurred, because supervisors are held to a higher standard of care. Lopke
Quarries, Inc. , 23 FMSHRC 705, 711 (July 2001); REB
Enters., Inc. , 20 FMSHRC 203, 225 (Mar. 1998).  A section
foreman is held to a “demanding standard of care in safety matters.” Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987) ( quoting Wilmot
Mining Co., 9 FMSHRC 684, 688 (April 1987)). A mine superintendent is also
held to a heightened standard of care. S&H Mining, Inc., 17 FMSHRC
1918, 1923 (Nov. 1995) (heightened standard of care required of section foreman
and mine superintendent).

As noted above, Morgan asked Easterling
how long the adverse roof conditions had exited, and Easterling told Morgan
that the conditions had existed ever since he had begun working at the mine six
weeks earlier. Tr. I-196. Morgan also asked Easterling whether he had taken any
steps to correct the hazardous conditions, and Easterling told Morgan that he
was “one man responsible for all of the outby area and [he] was working on it
when [he] can get to it.” Tr. I-195. Easterling also told Morgan that he
had been working in the other return air course, and had not made any efforts
to correct the hazardous conditions in the No. 5 entry. Morgan observed no
evidence indicating that corrective action had been taken. Tr. I-194. Although
Easterling was not a section foreman, he was the designated examiner at Mine
No. 7, and the designated agent responsible for examining and maintaining all
of the area outby the working section. Tr. I-91, 195. Accordingly, his
knowledge of the violative conditions is imputable to Respondent.  Indeed, the
parties have stipulated that Easterling was an agent of Rock N Roll for the
purposes of Citation No. 9061132. Stip. Fact. No. 13,
Jt. Ex. 1. I find that the Respondent had knowledge of the violation a nd
demonstrated indifference or a serious lack of reasonable care by allowing the
violation to continue unaddressed for six weeks. I find that this factor
strongly weighs in favor of find an unwarrantable failure.

v. Whether the
Violation was Obvious

Morgan credibly testified that the
hazardous conditions were obvious, and even a newly trained miner with no
underground experience would have recognized the danger. Tr. I-181-82. Respondent
offered no probative evidence to the contrary. I find that the obviousness of
the violation weighs in favor of an unwarrantable failure finding.

vi. Whether the
Violation Posed a High Degree of Danger

A high degree of danger posed by a
violation may also support an unwarrantable failure finding. See e.g.,
BethEnergy Mines, Inc. , 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland
Coals , 10 FMSHRC 705, 709 (June 1988). The degree of danger is a relevant
factor, but not a threshold requirement for determining whether a violation is
unwarrantable. Manalapan Mining Company, Inc. , 35 FMSHRC 289, 294
(2013), citing Windsor Coal Co. , 21 FMSHRC 997, 1001 (Sept. 1999)
(Commission recognizes a number of factors relevant to determining whether a
violation is the result of an operator's unwarrantable failure). The factor of
dangerousness may be so severe that, by itself, it warrants a finding of
unwarrantable failure, but the converse is not true, i.e., that the absence of
danger precludes a finding of unwarrantable failure. Manalapan, 35 FMSHRC
at 294. Further, a violation may be aggravated and unwarrantable based on
“common knowledge that certain equipment, such as power lines, are hazardous
and that precautions are required.”   Warren Steen
Constr., Inc. , 14 FMSHRC 1125, 1129
(July 1992). For purposes of evaluating whether violative conditions pose a
high degree of danger, it may be appropriate to consider the same facts already
considered as part of the gravity evaluation in an S&S analysis. See San
Juan Coal , 29 FMSHRC at 125, 132-33 (remand for failure to apply
S&S findings to danger factor in unwarrantable failure analysis).

I find that the violation posed a high
degree of danger. A section of roof in the No. 5 seal area had already
separated from the mine roof and was crushing the crib underneath.  Easterling
was regularly traveling under the crushed crib to inspect the seals. Tr. I-182,
188, 199. As Morgan testified, a rock that large falling on someone would
likely result in a fatality. Tr. I-199. Accordingly, I find that the violation
posed a high degree of danger and this factor weighs in favor of finding an
unwarrantable failure.

vii.
Respondent’s Efforts to Abate the Violative Condition

An operator’s efforts to abate a
violation are relevant to an unwarrantable failure determination. Thus, where
an operator has been placed on notice of a problem, the level of priority that
the operator places on abatement of the problem is relevant. IO Coal , supra ,
31 FMSHRC at 1356, citing Enlow Fork Mining , 19 FMSHRC at 17.
The focus is on abatement efforts made prior to issuance of the citation or
order. Id. An operator’s efforts to abate a violation before a citation
or order issues, even during an inspection, may be a mitigating factor in an
unwarrantable failure analysis. Utah Power & Light Co. , 11 FMSHRC
1926, 1934 (Oct. 1989). Here, although Respondent was not on notice regarding
the violation, Easterling admitted that he made no effort to abate or mitigate
the obviously hazardous roof conditions. Tr. I-181-82, 195. I find that this
factor tips in favor of an unwarrantable failure finding.

Having considered all the relevant factors, I find that the extent of the violation, the duration of the
violation, the operator’s knowledge of the violation, the obviousness of the
violation, the failure to abate the obvious violation, and the high degree of
danger posed by the violation, all weigh in favor of finding an unwarrantable
failure. I therefore find that Citation No. 9061132 was the result of
Respondent’s unwarrantable failure to comply with 30 C.F.R. § 75.3643(d).

d. Penalty Assessment

The Secretary proposed a penalty of $3,405 for this
violation.  The parties stipulated that Respondent produced 598 tons of coal in
2015, and that Respondent had a total of 20 violations in the 15 months
preceding the issuance of Citation No. 9061132. Stip. Fact. No. 9, Jt. Ex. 1;
Ex. A, Petition for the Assessment of Civil Penalties , Docket No. WEVA
2015-0889. The parties e also stipulated that the proposed penalty will not
affect Respondent’s ability to remain in business. Stip Fact. No. 6, Jt. Ex. 1.
I have affirmed the Secretary’s gravity and negligence designations, and note
that Respondent demonstrated good faith in abating the violation. See Ex.
A, Petition for the Assessment of Civil Penalties , Docket No. WEVA
2015-0889 (reflecting 10% discount for good faith abatement). Based upon my
consideration of the Section 110(i) penalty criteria and the deterrent purposes
of the Act, I
assess a penalty of $3,405. 

3. Recordkeeping
   Violation, Order No. 9061133

After inspecting the right return, Morgan returned
to the mine office with Easterling, where Morgan again reviewed the seal examination
records that had been conducted by Easterling the day before, on April 29,
2015. Tr. I-209. Easterling’s entry for the April 29 examination of the Nos. 1
through 7 seals includes the notation “Seal- 1-7 ok at time of exam.” The
notations for March 26, April 2, and April 22, 2015 also state that seals Nos.
1 through 7 were “ok at time of exam.” The notation for April 9 states “none
observed” underneath the heading “Examination of pillar falls, seals, idle
workings, abandoned areas.”  The April 15 notation under the same heading reads
“none,” although the right-return examination entry for April 29 noted “loosse
rock” [sic]. P. Ex. 9. Each of the examinations was countersigned by McGuire. None
of the seal examination entries referenced the hazardous roof conditions that
Morgan observed during his inspection of the right return. See id .

Based
on his observations underground in the right return and his review of the seal
inspection records, Morgan issued Order No. 9061133 under section 104(d)(1) of
the Mine Act, alleging a violation of 30 C.F.R. § 75.364(h), as
follows:

The operator
failed to conduct a proper examination of return air courses that pass by seals
for hazardous conditions and record these conditions in the record book. The
examiner was at #1-#7 seals in the right return on 4/29/2015 and did not list
any hazardous conditions in the exam book. When the examiner and myself
traveled to this area on 4/30/2015 the area was found to have large areas of
unsupported roof, and insufficient supplemental roof control installed. The
cribs built in the area were rooted, [sic] falling, loose and crushing out. The
examiner is required to crawl between these cribs and no mention of the
conditions was recorded in the exam book. One area at the #5 seal was measured
to be 13’6” from the roof bolts installed in the roadway to the seal. The mine
roof has fallen on the cribs located at the inby end of this seal. A large
rock, more than 12’ long, 4’ wide, and 3” thick has fallen on these cribs. This
violation is an unwarrantable failure to comply with a mandatory standard. [17]

Morgan
designated the violation as non-S&S, unlikely to contribute to a hazard
that would cause fatal injuries to one miner, and the result of Respondent’s
high negligence and unwarrantable failure. P. Ex. 7. The Secretary
proposed a penalty of $2,000.

a. Order No.
9061133 was Unlikely to Result in a Fatal Injury to One Miner

Recording hazardous conditions
discovered in examinations is crucial to the health and safety of miners.   Mach
Mining, LLC, 39 FMSHRC__, Docket No. LAKE 2014-0746, slip op. at 23 (Sept. 23,
2016) (ALJ) ( citing American Coal Co. , 34 FMSHRC 2058, 2082 (Aug.
2012) (ALJ) (when evaluating the gravity of recordkeeping violations, the
Commission must determine whether the failure to record contributed to a hazard
that could cause an injury)).  Having determined that
the hazardous roof conditions cited in Citation No. 9061132 were reasonably
likely to cause fatal injuries to one miner, I now turn to whether the failure
to record those same hazardous conditions under Order No. 9061133 was likely to
contribute to an injury.

As noted above, although the roof
conditions Morgan observed in the No. 5 entry (and cited in Citation No.
9061132) were reasonably likely to result in a serious injury, I affirm
Morgan’s gravity designation that the failure to record those violations was
unlikely to result in a fatality for one miner. Morgan testified that
Easterling’s failure to record the hazardous roof conditions was unlikely to
affect other miners working under normal, continuous mining operations. The No.
5 entry was not regularly traveled by miners, and Easterling was, in fact, the
only miner who regularly traveled in the No 5 entry to conduct seal exams. Tr. I-216.
 While in the first instance, I might find that the record supports an S&S
designation for Order No.9061133, as noted above, the Commission’s
administrative law judges do not have authority to designate violations S&S
where the Secretary has not made such an allegation. Mechanicsville Concrete ,
18 FMSHRC at 879-80 (June 1996). In these circumstances, I affirm the
Secretary’s gravity designation for Citation No. 9061133. 

b.
Order No. 9031133 was the Result of Respondent’s High Negligence

Morgan designated Order No 9061133 as
high negligence because Easterling, Respondent’s examiner and agent, had direct
knowledge of the hazardous conditions, knew that the conditions needed to be
corrected, and still failed to either record the conditions or take action to
correct them. Tr. I-216. A reasonably prudent operator would have recorded and
corrected the hazardous roof conditions immediately. Accordingly, I affirm
Morgan’s negligence designation and find that Order No. 9061133 resulted from
Respondent’s high negligence.  

c. Order No. 9061133 was an
Unwarrantable Failure to Comply with 30 C.F.R. § 75.364(h)

Based
on the aggravating facts and circumstances surrounding Respondent’s failure to
record the hazardous roof conditions in the No. 5 entry, I find that the
violation was an unwarrantable failure to comply with the Secretary’s mandatory
safety standard. Morgan testified that 30 to 35 out of 50 roof support cribs
were not providing roof support in the seal area. McGuire testified that 26
cribs were installed in the seal area over the next two days in order to abate
Citation No. 9061132.  Tr. II-92; 100-101.  Thus, the hazardous roof conditions
that Easterling failed to record were both obvious and extensive. See Mach
Mining, LLC , 35 FMSHRC 2937, 2942 (Sept. 2013) (relying on ALJ’s
determinations regarding the extent and obviousness of the underlying hazardous
conditions for a citation alleging an unwarrantable failure to comply with § 75.364(h)).
 Easterling had also been conducting the seal examinations since the mine’s
reopening, and he admitted to Morgan that the hazardous roof conditions in the
No. 5 entry had existed for as long as he had been conducting the examinations.
Despite Easterling’s direct knowledge of the hazardous conditions, none of the
recorded seal examinations noted the obviously hazardous roof conditions, thus
establishing that the failure to record continued for at least the six weeks
since the mine reopened.  P. Ex. 9; Stip. Fact. Nos. 20, 21; P. Ex. 22 at

12. Thus, examiner Easterling, the responsible agent of the Respondent, knew
    that Respondent had not been recording or correcting the obviously hazardous
    roof conditions for six weeks.  Moreover, the underlying hazardous conditions
    that were not recorded posed a high degree of danger, as evidenced by both the
    large section of roof that had already fallen in the No. 5 seal crosscut and
    Morgan’s testimony that the majority of roof falls are fatal. Tr. I-215. Cf. ,
    Mach Mining , 35 FMSHRC at 2942 (failure to record hazardous conditions
    that posed a high degree of danger would frustrate the purpose of § 75.354(h)
    and supports an unwarrantable failure finding).  As noted above, Easterling’s
    failure to record the hazardous roof conditions contributed to the likelihood
    that miners traveling in the No. 5 entry would be exposed to a roof fall hazard.
    I therefore find that the failure-to-record violation was obvious, extensive, posed
    a high degree of danger, and was of long duration. In addition, Easterling, as
    examiner and agent of the operator, had knowledge that he was not recording the
    hazardous roof conditions and had failed to make any attempt to abate them.  Although
    the violation history and recent reopening of the mine support a finding that
    the Secretary failed to establish that the operator was on notice that greater efforts
    were necessary to comply with 30 C.F.R. § 75.364(h), the remaining factors strongly
    weigh in favor of an unwarrantable favor determination and outweigh any
    contrary analysis. I therefore affirm the Secretary’s unwarrantable failure designation.

c. Penalty Assessment

The Secretary proposed a penalty
of $2,000 for this violation. The parties stipulated that Respondent produced
598 tons of coal in 2015, and that Respondent had a total of 20 violations in
the 15 months preceding the issuance of Citation No. 9061133. Stip. Fact. No.
9, Jt. Ex. 1; Ex. A, Petition for the Assessment of Civil Penalties ,
Docket No. WEVA 2015-0889. The parties also stipulated that the proposed
penalty will not affect Respondent’s ability to remain in business. Stip Fact.
No. 6; Jt. Ex. 1. I have affirmed the Secretary’s gravity and negligence
designations. I find that the violation was abated by the installation of additional
roof support cribs over the two days subsequent to the issuance of Citation No.
9061133. Tr. II-100-01. Based upon my consideration of the Section 110(i)
penalty criteria and the deterrent purposes of the Act, I assess a penalty
of $2,000. 

C.
The June 15, 2015 Inspection: The Tracking System Violation, Order No. 9061162

On June 15, 2015, Morgan arrived at Mine
No. 7 at 10:05 a.m. to continue his E01 inspection. Tr. I-227-28.  McGuire
informed Morgan that he had discovered a roof fall in the mine earlier that
morning and production had been shut down. Tr. I-228; see also P.
Ex. 29 at 1. Morgan immediately required McGuire to contact MSHA to report the
fall, and McGuire did so. Tr. I-232; see also P. Ex. 29 at 1.

The roof fall occurred in the No. 1 entry
of the left air course return. The fallen roof section was about twenty feet
long, twenty feet wide, and 34 feet high. P. Ex. 29 at 1.

Shortly after McGuire notified MSHA of
the reportable fall, one of MSHA’s roof control specialists called the mine to
issue a verbal 103(j) order. [18]
Thereafter, Morgan spoke with the MSHA representative, and modified the 103(j)
order to a 103(k) order. [19]

While Morgan was in the mine office, he
noticed that the interface terminal display for the electronic underground
tracking system indicated that approximately fifty percent of the tag readers
were out of service. Tr. I-249, 252; P. Ex. 15 at 28; see also P. Ex. 16
at B-1. The tracking system interface terminal,
installed in the mine office, displays a mine map showing the corresponding
locations of the tag readers and any miners in the immediate area of a reader. Tr. I-243-44,

252. The indicator lights on the display are green when the tag readers
     are working properly and gray when the tag readers are out of service. Tr.
     II-174. The lights flash red when miners activate an emergency button on their
     individual identifying tags. Tr. II-174.

The tracking system consists of
underground radio frequency identification tag readers placed at intervals
within the mine. Tr. I-242-43; see also P. Ex.
16 at B-1. Although Morgan did not count the precise number of tag readers at
Mine No. 7, he testified that a mine of that size would likely have three
readers on the working section inby the section loading point, where miners must
be tracked within 200 feet, and two to three tag readers outby the section
loading point, where miners are required to be tracked within 2,000 feet. Tr.
I-248-49; P. Ex. 16 at B-1.  Miners wear identifying tags that are scanned by
each tag reader as they travel throughout the mine. A tracking system interface
terminal installed in the mine office displays a mine map showing the
corresponding locations of the tag readers and any miners in the immediate area
of a reader. Tr. I-243-44, 252. The data gathered by the tag readers
should be accessible at any time to determine the current location of any miner
wearing a tag. The system also stores the tracking data history for each miner
for the past two weeks. Tr. I-243-44; P. Ex. 16 at B-2.

After Morgan noticed the gray tag
readers on the interface terminal, he asked Caleb Cline, the tracking system
operator, if there was a problem with the tracking system. Cline replied that a
problem with the electronic tracking system had started the night before. Tr. I-243.
Morgan then asked if Cline was keeping a manual log, as required by the ERP in
the event of a tracking system failure. Tr. I-243; P. Ex. 16. [20]
In response, Cline showed Morgan the manual log that he had begun that morning,
which contained the following single entry: “Ricky McGuire and section crew
traveled underground.” Tr. I-243; P. Ex. 15 at 17. Morgan informed Cline that
his log was inadequate because it did not contain specific notations indicating
the names of the underground miners, the precise time they entered the mine,
when they arrived at the working sections, when they left the section, where
they were going, and what time they returned to the section. Tr. I-243, 250,

256. Cline’s manual log also did not contain any entries that reflected
     McGuire’s entry into or exit from the mine when he traveled underground to
     conduct work related to the roof fall that had occurred that morning. Tr. I-243,
     251; see also P. Ex. 15 at 14-15.

Morgan asked Cline to pull up several
days’ worth of system tracking logs for section foreman Jason Darnell . For the prior ten days, from June 5 through June 15, the
system indicated that Darnell’s tag had been picked up only by a single outby
tag reader at the No. 4 belt, as he entered the mine at the beginning of his
shift and exited the mine at the end of his shift. Consequently, Morgan
determined that all but one of the tracking system’s underground tag readers,
including all of the readers on the working section, had not been functioning
since June 4, 2015. Tr. I-244-45; P. Ex. 15 at 19. The last section tag reader
to record Darnell on the section was at 1:30 p.m. on June 4, 2015. P. Ex. 15 at
20.

In an effort to double check
the system’s failure, Morgan asked Cline to pull the system’s logs for Marty
Davis, the continuous miner operator, who would have been traveling from the
surface to the working face each day. Tr. I-246. Davis’ log, like Darnell’s,
showed only the same No. 4 belt reader entries. Tr. I-247; P. Ex. 15 at

20. Morgan
    asked Cline to print out the tracking system history, but Cline was unable to
    do so because the printer was out of paper. Tr.   I-264. [21]

Morgan also inspected the tracking
system examination records for Ralph Steele, the chief electrician, who
conducted an exam on June 10, 2015, and purportedly found no problems with the
system. When Morgan reviewed the electronic tracking records for June 10, 2015,
he discovered that only the single outby tag reader at the No. 4 belt had
recorded any data. Tr. I-256-58; see also P. Ex. 14. Morgan then spoke
with Steele, who told Morgan that he conducted his examination of the tracking
system by riding by the underground tag readers and ensuring that their power
lights were on. Steele’s examination procedures did not include checking the
interface terminal display in the mine office. Tr. I-258; P. Ex. 15 at 22; see
also Ex. P-16 at B-3.

After Morgan’s review of the tracking
system examination records, Cline and Steele told Morgan that they had worked
on the tracking system several times during the preceding week. P. Ex. 15 at

23. Cline had worked on the terminal interface computer in the office. Tr.
    II-176. Steele had worked underground with the individual components, such as
    the tag readers. Tr. II-185. In addition, two
    different contractors also performed work on the tracking system. Tr. II-184,

Morgan required Cline to update the
manual tracking log by radioing into the mine to determine the location of each
miner underground. Tr. I-249. Morgan also required Cline to call in the
tracking system outage to MSHA, as required by the ERP. P. Ex. 29 at 2.

Morgan then issued 104(d)(1) Order No.
9061162 alleging a violation of section 316(b) of the Mine Act for failure to
follow the MSHA-approved ERP for Mine No. 7. The Order alleges:

The operator has
failed to follow the approved ERP [emergency response plan] plan for the
tracking system. When checked the tracking system had not been operating
properly. The readers located in the outby areas and on the section were not
working. None of the readers had been reading on the section since 6/4/2015. The
operated failed to manually track the miners while underground and failed to
report it to the MSHA hotline in the required time. Page # B-3 of the approved
plan under the Maintenance header states: #1, Tracking systems will be
maintained in a functional manner when miners are underground. To continue
mining operations, the mine will establish and follow a procedure to provide
tracking (written log) during system or component failures in the event that an
accident occurs before the failure can be corrected. #2, If the tracking system
or a component fails, appropriate corrective actions will begin immediately and
continue until it is repaired, and the back-up tracking system will be
initiated immediately in the affected area. #3, The MSHA hotline will be
notified of system failures that extend longer than 12 consecutive hours. A
system failure is not a failure of one individual node or reader but is when an
entire entry or section is without tracking. This violation is an unwarrantable
failure to comply with a mandatory standard.

P. Ex. 14.

Later that same day, Morgan
modified the Order to include the following:

The electrician
that conducted and recorded the exam of the tracking system on 6-10-2015
recorded that the system was working and no problems found. When the history
for 6-10-2015 was checked the system was not working as recorded. No readers
were working on the section and numerous readers were not working outby.

P. Ex. 14.

The Secretary alleges that the violation was
S&S, reasonably likely to contribute to a hazard that would result in fatal
injuries to eight miners, and the result of Respondent’s high negligence and unwarrantable
failure. Id . The Secretary has proposed a specially-assessed penalty of
$17,300.

Morgan based his unwarrantable failure designation
in part on citations issued earlier in his E01 inspection. Tr. I-278. For
example, Citation No. 9061125, issued on April 22, 2015, alleged that all three
section readers were not functioning and that Respondent had failed to initiate
manual tracking of underground miners. The violation was designated as S&S
and the result of Respondent’s moderate negligence. Citation No. 9061125 was
abated when the tracking system’s functionality was restored. P. Ex. 26. The
citation was contested and assigned to Docket No. WEVA 2015-0888. I issued a Decision
Approving Settlement disposing of that citation on March 31, 2016.  In
addition, Citation No. 9061128, which issued on April 23, 2015, alleged that Respondent
failed to notify MSHA when the tracking system had gone down for more than 12
hours. The citation was abated when Respondent notified MSHA of the system
failure and began tracking miners with a manual log. P. Ex. 27. Per MSHA’s
records, Respondent did not contest Citation No. 9061128. See Mine
Safety and Health Administration, Mine Data Retrieval System , http://arlweb.msha.gov/drs/drshome.htm
(last accessed Oct. 21, 2016).

1.
The Violation in Order No 9061162 was S&S

Respondent stipulated to the fact of the
violation. Stip. Fact No. 10, Jt. Ex. 1.

I next identify the discrete safety
hazard contributed to by the violation. Newtown Energy, 38 FMSHRC at
2037. Without a functioning tracking system or an accurate manual log, miners
could not be located underground in the event of an emergency or accident. Tr. I-266.
Based on Morgan’s review of Cline’s inadequate manual log, which was required
under Respondent’s ERP, I find that this hazard was more than just reasonably likely
to occur; the hazard did occur on June 15, 2015, when Cline failed to record McGuire’s
additional trip into the mine to perform work related to the roof fall that
morning. Respondent, therefore, had no reliable record documenting the identity
or location of miners working underground. Tr. I-243, 251.

The hazard of not being able to locate
miners underground in the event of an emergency is reasonably likely to result
in a serious injury. In the event of an emergency, lack of information
regarding the location of the miners underground will impede rescue efforts. Tr. I-266-67.
Minutes can make the difference between life or death in a mine emergency
rescue effort. Morgan credibly testified that lack of tracking would put every
miner underground at risk during an emergency. Tr. I-271.  I therefore find
that Order No. 9061162 was appropriately designated as S&S because the
violation contributed to an inability to track miners during an emergency, such
as a fire, explosion, or water inundation, which is reasonably likely to result
in fatal injuries for the eight miners working underground.

2. Order No. 9061162 was the Result of Respondent’s
   High Negligence

Considering the totality of
circumstances regarding the tracking system failure, I find that Order No.
9061162 was the result of Respondent’s high negligence. Although Steele
indicated in his June 10 examination records that the tracking system was
properly functioning, both Steele and Cline told Morgan on June 15 that they
were aware of the system failure and had been working on the system for about a
week. P. Ex. 30; P. Ex. 15 at 23. Despite the work that Steele and Cline had
performed, the system was still not functioning properly at the time of
Morgan’s inspection, and the tracking system’s electronic records indicated
that the system had been out for eleven days. Tr. I-244-45; P. Ex. 15 at

19. Respondent continued active mining operations during this period. A
    reasonably prudent operator with knowledge that the tracking system could not
    accurately track miners underground should not have continued active mining
    operations until the system was fixed or an accurate manual log was maintained.
    I therefore affirm the Secretary’s high negligence designation for Order No.
    9061162.

20. Order No. 9061162 was an
    Unwarrantable Failure to Comply with Section 316(b) of the Act

Unwarrantable failure designations, like
S&S designations, may only be applied to alleged violations of the
Secretary’s mandatory health and safety standards. See 30 U.S.C. §   814(d)(1); see
also Wolf Run Mining Co. v. Fed. Mine Safety & Health Rev. Comm’n ,
659 F.3d 1197 (D.C. Cir. 2011).   Wolf Run addressed the
issue of whether a violation of a safeguard promulgated under Section 314(b) of
the Mine Act was a violation of the Secretary’s mandatory safety standards, and
consequently eligible for designation as S&S. The D.C. Circuit, relying on
a plain language review of the Mine Act’s statutory text, noted that the Act
defines “mandatory health or safety standards” as “the interim mandatory health
or safety standards established by titles II and III of this Act, and standards
promulgated pursuant to title I of this Act.” 30 U.S.C. § 802(l).  The court
determined that since Section 314(b) was an interim mandatory health and safety
standard established by Title III, it fell squarely within the Act’s plain
language definition of a mandatory health and safety standard. Wolf Run ,
659 F.3d at 1232-33.

Like Section 314(b), Section 316(b) was
also promulgated pursuant to title III, and is likewise an interim mandatory
health and safety standard. Section 316(b), which requires each mine to follow
an approved ERP, therefore also falls clearly within the Act’s definition of
“mandatory health and safety standards.” Alleged violations of Section 316(b) may
thus properly be designated as unwarrantable failures. See 30 U.S.C.
§316(b).

Based on the aggravating facts and
circumstances surrounding Respondent’s failure to comply with its MSHA-approved
ERP, I find that the violation is an unwarrantable failure to comply with
Section 316(b) of the Act. The ERP requires Respondent to report tracking
system failures that exist for longer than 12 hours. Morgan determined that the
failure leading to the issuance of Order No. 9061162 lasted for a duration of 11
days. Tr. I-244-45. In addition, the failure was extensive, as the unrebutted
record evidence indicates that all of the section tags readers, and all but one
of the outby tag readers, were not working during that outage. Tr. I-244-45.

I find that Citations Nos. 9061125 and
9061128, issued less than a month prior to Order No. 9061162, put Respondent on
notice that greater efforts were necessary in order to comply with the ERP. P.
Ex. 26, 27. Both of those citations directly involved violations of the same
provisions of the ERP at issue in Order No. 9061162. Morgan issued Citation No.
9061125 for Respondent’s failure to manually track miners during a system
failure of the tag readers on the working section. Similarly, Citation No.
9061128 was issued for Respondent’s failure to notify MSHA of a tracking system
failure lasting more than 12 hours, and it was abated when Respondent notified
MSHA of the failure and began keeping a manual log of the underground movements
of miners.  I therefore find that the particular violations in Citation Nos.
9061125 and 9061128 put Respondent on notice that greater efforts were
necessary to comply with the ERP.

I also find that Respondent had
knowledge of the violation and demonstrated high negligence and a serious lack
of care for the safety of its underground miners should an emergency occur
underground while the violation was left unabated. Both Steele, Respondent’s
chief electrician, and Cline, one of the owner’s sons, knew that the tracking
system had not been functioning properly, as indicated by their attempts to
resolve the problem in the week prior to the issuance of Order No. 9061162. P.
Ex. 15 at 23. The 11-day duration of the violation, combined with Respondent’s inadequate
efforts to manually track the miners underground, indicates that despite
Respondent’s knowledge of the violation, Respondent failed to take adequate
steps to fix the tracking system so that miners could be located in the event
of an emergency. Tr. I-244-45.  In fact, examination records indicated
that the tracking system and its components were functioning properly, while in
actuality, they were not. I find that the failure to record the problems with
the tracking system and its components was a deliberate omission that would mislead
miners and MSHA.

The violation appeared to be obvious,
even to the inspector. The system’s terminal interface was equipped with lights
that change to gray to indicate problems with individual underground tag
readers. It was these gray lights that Morgan noticed shortly after arriving in
the mine office on June 15, 2015. Tr. I-249, 252, II-174. In addition, had
Cline chosen to check the electronic system log, it would have been immediately
apparent that the system had not been working for the past 11 days.

The tracking system failure posed a high
degree of danger. As noted above, lack of information regarding the location of
the miners underground would impede rescue efforts during an emergency where
minutes can mean the difference between life or death. Tr. I-266-67, 270, 272.

Based on the above analysis of the
aggravating facts and circumstances surrounding Respondent’s failure to comply
with its ERP, I affirm the unwarrantable failure designation for Order No.
9061162.

d. Penalty Assessment

The Secretary proposed a specially
assessed penalty of $17,300 for Order No. 9061162. In its recent American
Coal decision, the Commission majority (Commissioners Young, Cohen and
Althen) observed that

[f]or either
regular or special assessments, the Secretary’s proposal is not a baseline from
which the Judge’s consideration of the appropriate penalty must start. The
Judge’s assessment is made independently, and, regardless of the Secretary’s
proposal, the Judge must support the assessment based on the penalty criteria
and the record.

38 FMSHRC 1987, 1995
(Aug. 2016). In American Coal , MSHA issued a special assessment without
explaining the basis in its Narrative Findings. Id. at 1996. The majority
noted that the Secretary bears the burden of “providing evidence sufficient in
the Judge’s discretionary opinion to support the proposed assessment under the
penalty criteria.” Id . at 1993. “When a violation is specially assessed,
that obligation may be considerable.” Id . While the Secretary may
provide an explanatory narrative to support the special assessment sought, Judges
must “be attentive to the rationale and facts and circumstances supporting the
decision to seek a special assessment, so that the ultimate assessed penalty
conforms to the Judge’s findings and conclusions.” Id .  

I consider the specially assessed penalty of $17,300
as a proposal. Because the Secretary has proposed a penalty substantially
higher than would have been proposed under the regular assessment system, I
look to the record to determine whether the Secretary introduced evidence to
support an elevated assessment under the Secretary’s regulations. I then assess
the penalty independently based on the record evidence of Section 110(i)
criteria and the deterrent purposes of the Act.

According to the Secretary’s narrative findings for
the special assessment of Order No. 9061162, the operator’s unwarrantable
failure to comply with the Secretary’s mandatory health and safety standards,
combined with the operator’s high negligence, indicate “the need for greater
deterrence than the regular assessment can provide.” Narrative Findings for a
Special Assessment, Petition for the Assessment of Civil Penalties ,
Docket No. WEVA 2016-0084. The gravity of the violation was “serious” because
“at least eight underground miners were not being tracked.” Id . The
narrative findings also note that the violation resulted from the operator’s
high negligence, and indicate that Respondent’s practice of failing to comply
with the ERP “could be the result of intentional conduct on the part of
management:”

[M]anagement was
aware of the requirements to maintain fully functional communication and
tracking systems where miners are underground. The operator knew that the
system was inoperative but failed to track the employees manually. The obvious
tracking system failure existed for an extended period of time. Examination
records indicated that the tracking system was functioning properly, while in
actuality, it was not. Management failed to ensure a safe work place was
provided to the miners.  

Id .

I have affirmed the Secretary’s gravity and negligence
findings, and find that the Secretary’s special assessment rationale, as
contained in the narrative findings, is consistent with record and the evidence
introduced at hearing. In addition, I have affirmed that the violation in Order
No. 9061162 was the result of Respondent’s unwarrantable failure to comply with
Section 316(b). Although the examination records indicated no issues with the
tracking system, both Cline and Steele knew that system components were not, in
fact, properly functioning, and I have found that the failure to record the
problems with the tracking system and its components was a deliberate omission
that would mislead MSHA and miners actively working underground. The parties
have stipulated that Respondent produced 598 tons of coal in 2015.  Although Respondent
had a total of only 10 violations in the 15 months preceding the issuance of Order
No. 9061162, see Stip. Fact. No. 9, Jt. Ex. 1; Ex. A, Petition for
the Assessment of Civil Penalties , Docket No. WEVA 2016-0084, two of those
violations involved the same standard, indicating that Respondent was not
getting the message that it needed to comply with the tracking system
provisions of its ERP.  Specifically, Citations Nos. 9061125 and 9061128,
issued less than a month prior to Order No. 9061162, put Respondent on notice
that greater efforts were necessary in order to comply with the ERP. P. Exs.
26, 27. Both of those citations directly involved violations of the same
provisions of the ERP at issue in Order No. 9061162. Morgan issued Citation No.
9061125 for Respondent’s failure to manually track miners during a system
failure of the tag readers on the working section. Similarly, Citation No.
9061128 was issued for Respondent’s failure to notify MSHA of a tracking system
failure lasting more than 12 hours.  The parties stipulated that the proposed,
specially assessed penalty will not affect Respondent’s ability to remain in
business. Stip. Fact. No. 6, Jt. Ex. 1. According to MSHA’s Mine Data Retrieval
System, Order No. 9061162 has not been terminated and is still in effect. MSHA
Mine Data Retrieval System, http://arlweb.msha.gov/drs/ASP/MineAction.asp (last accessed
Nov. 17, 2016); see also Stip. Fact No. 8, Jt. Ex. 1. Based upon my
consideration of the Section 110(i) penalty criteria and the
deterrent purposes of the Act, I assess a penalty of $17,300. 

IV. ORDER

For
the reasons set forth above,

Citation
No. 9061132 is AFFIRMED , as written;

Order
No. 9061133 is AFFIRMED , as written;

Citation
No. 9061479 is AFFIRMED , as written;

Citation
No. 9061120 is AFFIRMED , as written;

Citation
No. 9061131 is AFFIRMED , as written; and

Order
No. 9061162 is AFFIRMED , as written.

Respondent,
Rock N Roll, is ORDERED to pay a total civil penalty of $29,613 within
thirty days of the date of this Decision and Order. [22]

/s/ Thomas P.
McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Thomas
F. McLoughlin, Tri-State Geologic & Mining Service, LLC, 741 Park Avenue
NE, Norton, VA 24273

Brian
P. Krier, 170 S. Independence Mall West, Suite 630E, Philadelphia, PA 19106

/ccc

[1] In this
decision, “Tr. I-#” and “Tr. II-# refer to the first and second volumes of the
hearing transcript, respectively; “Jt. Ex. #” refers to joint exhibits; “P. Ex.

” refers to the Petitioner’s exhibits; and “R. Ex. #” refers to the

Respondent’s exhibits. Jt. Ex. 1, P. Exs. 1-30, and R. Exs. 2 and 3 were received
into evidence. 

[2] The Secretary,
mine operators, and the federal appellate courts have accepted the Mathies test
as authoritative. See Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d
148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform adoption of Mathies
test and parties’ recognition of authority of the test); Mach Mining, LLC
v. Sec’y of Labor , 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies
criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin. ,
52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria).

[3] See also
Black Beauty Coal Co. , 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub
nom. Peabody Midwest Mining, LLC v. FMSHRC , 762 F.3d 611 (7 th  Cir. 2014);
Rushton Mining Co. , 11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek ,
811 F.3d at 165-66 (upholding Commission’s rejection of “snapshot” approach to
evaluating S&S for accumulations violation); Mach Mining , 809 F.3d
at 1267-68 (discussing the operative timeframe for violations in the context of
S&S analyses).

[4] Per training,
MSHA inspectors do not designate a violation as S&S unless item 10.A on the
citation form is marked “reasonably likely,” “highly likely,” or “occurred,”
and item 10.B is marked “lost workdays or restricted duty,” “permanently
disabling,” or “fatal.” See MSHA, Program
Policy Manual , Vol. I, § 104 (2003).

[5]
Morgan had been employed with the Mine Safety and Health Administration
(“MSHA”) as a coal mine and accident inspector for four years. Tr. I-56. Before
joining MSHA, he worked for sixteen years in both underground and surface coal
mines, and received his West Virginia mine foreman certification in 2008. Tr. 61-62.

[6] Morgan
issued Citation No. 9061477 under 30 C.F.R. §75.364(h) for Easterling’s failure
to record the results of his left return airway exam. MSHA records indicate
that the proposed assessment for that citation has been paid in full and the
citation has been closed. See P. Ex. 4 at 6-7; see also Mine
Safety and Health Administration,
Mine Data Retrieval System , http://arlweb.msha.gov/drs/drshome.htm
(last accessed Oct. 21, 2016).

[7]
30 C.F.R.
§ 75.380(d)(7)(vii) provides:

Each escapeway
shall be . . . [p]rovided with a continuous, durable
directional lifeline or equivalent device that shall be . . . [e]quipped
with two securely attached cones, installed consecutively with the tapered
section pointing inby, to signify an attached branch line is immediately ahead.

[8] Branch lines lead to either RAs or caches of SCSRs. Tr. I-107. RAs
are marked by spirals, while caches of SCSRs are indicated by four cones, which
are placed wide end to wide end and then narrow end to narrow end. These
indicators are installed on the actual branch of the lifeline leading to the RA
or SCSRs, rather than on the main lifeline as in the case of branch line
junction cones. Tr. I-105, 107-08, 119.

[9] In
the context of escapeway violations, the Commission’s administrative law judges
“routinely assume[] the occurrence of the contemplated emergency in evaluating
the significant and substantial nature of violations that only come into play
in the event of an emergency.” Cumberland Coal Res., LP v. Fed. Mine Safety
& Health Rev. Comm’n , 717 F.3d 1020, 1027 (D.C. Cir. 2013), aff’g
sub nom . Cumberland Coal Res., LP , 33 FMSHRC 2357 (Oct. 2011)
(internal citations omitted). This is appropriate because “evacuation standards
are different from other mine safety standards. They are intended to apply
meaningfully only when an emergency actually occurs.” Cumberland Coal Res.
LP , 33 FMSHRC at 2367.

[10] MSHA
acknowledges that “the height of the travelway affects the speed of travel” in
underground coal mines, and recognizes a direct
relationship between the height of the travelway and the speed at which miners
can travel. See MSHA, Program Policy
Manual , Vol. V, § 75.1714-2, Self-Rescue Devices; Use and
Locations Requirements (2003). According to MSHA’s calculation, miners
traveling the secondary escapeway in Mine No. 7 would only be able to travel
between roughly 120 and 140 feet per minute. Id .

[11] 30 C.F.R. §
75.351(e)(1)(i) provides that:

In addition to
the requirements of paragraph (d) of this section, any [atmospheric monitoring
system] used to monitor air belt courses under 75.350(b) must have approved
sensors to monitor for carbon monoxide at the following locations: (i) At or
near the working section belt tailpiece in the air stream ventilating the belt
entry. In longwall mining systems the sensor must be located upwind in the belt
entry at a distance no greater than 150 feet from the mixing point where intake
air is mixed with the belt air at or near the tailpiece.

[12]
Morgan issued Citation No. 9061134 alleging a violation of the approved
ventilation plan for the failure to examine the No. 8 seal. P. Ex. 8 at 7-10. MSHA’s
records indicate the proposed assessment has been paid in full and the citation
is closed. See Mine Safety and Health Administration, Mine Data
Retrieval System , http://arlweb.msha.gov/drs/drshome.htm (last
accessed Oct. 21, 2016).

[13] Mr. McLoughlin,
the Respondent’s representative, informed the undersigned that Respondent was
unable to locate Easterling to call him as a witness. Tr. I-174.

[14] 30 C.F.R. §
75.338(a) provides:

Certified
persons conducting sampling shall be trained in the use of appropriate sampling
equipment, procedures, location of sampling points, frequency of sampling, size
and condition of the sealed area, and the use of continuous monitoring systems
if applicable before they conduct sampling, and annually thereafter. The mine
operator shall certify the date of training provided to certified persons and
retain each certification for two years.

[15] 30 C.F.R. §
75.364(d) provides:

[H]azardous
conditions shall be corrected immediately. If the condition creates an imminent
danger, everyone except those persons referred to in section 104(c) of the Act
shall be withdrawn from the area affected to a safe area until the hazardous
condition is corrected. Any violation of the nine mandatory health or safety
standards found during a weekly examination shall be corrected.

[16] In addition to
actually observing a section of fallen roof in the No. 5 seal entry, Morgan
testified that Mine No. 7 had a history of roof falls, and there had been at
least four roof falls previously. Tr. I-182, 188, 204. Two roof falls occurred
while Morgan was at the mine conducting his E01 inspection, although they
occurred on June 9 and July 15, 2015, after the issuance of Citation No.
9061132. Tr. I-204-05. On June 9, a roof fall occurred in the left return about
ten breaks off the working section. On July 15, a section of roof on the
working section fell and struck a piece of equipment.   Id . 

[17] 30 C.F.R. §
75.364(h) provides:

At the
completion of any shift during which a portion of a weekly examination is
conducted, a record of the results of each weekly examination, including a
record of hazardous conditions and violations of the nine mandatory health or
safety standards found during each examination and their locations, the
corrective action taken, and the results and location of air and methane
measurements, shall be made. The results of methane tests shall be recorded as
the percentage of methane measured by the examiner. The record shall be made by
the person making the examination or a person designated by the operator. If
made by a person other than the examiner, the examiner shall verify the record
by initials and date by or at the end of the shift for which the examination
was made. The record shall be countersigned by the mine foreman or equivalent
mine official by the end of the mine foreman's or equivalent mine official's
next regularly scheduled working shift. The records required by this section
shall be made in a secure book that is not susceptible to alteration or
electronically in a computer system so as to be secure and not susceptible to
alteration.

[18]
Section 103(j) of the Mine Act allows the Secretary’s authorized
representatives, in the event of an accident “where rescue and recovery work is
necessary,” to “take whatever action [they] deem[] appropriate . . . [to]
supervise and direct the rescue and recovery activities.”
30 U.S.C. § 813(j).

[19]
Section 103(k) allows the Secretary’s authorized representatives who are physically
present at coal mines to issue “such orders as [they] deem[] appropriate to
insure the safety of any person” in the event of an accident. 30 U.S.C. §
813(k).  

[20] Mine No. 7’s ERP
provides, in relevant part:

Tracking systems
will be maintained in a functional manner when miners are underground. To
continue mining operations, the mine will establish and follow a procedure to
provide tracking (written log) during system or component failures in
the event that an accident occurs before the failure can be corrected.

. . .

The
infrastructure will be examined to verify on a weekly basis that the electronic
tracking system is maintained in proper operating condition. A record of the
examination will be kept and made available to an authorized representative of
the Secretary and miners.

. . .

If the tracking
system or a component of the system fails, appropriate corrective actions will
begin immediately and continue until it is repaired, and the back-up tracking
system will be instituted immediately in the affected area. Tracking system
failures or component system failures will be recorded in a record book for
MSHA’s inspection along with other examinations conducted.  The record book
will, at minimum, identify the date and time of system failure, the date and
time the system was restored to full operational capacity, the nature of the
failure, the extent of the system affected by the failure, and the manner in
which the failure was corrected.

The MSHA Hotline
will be notified of system failures that extend longer than 12 consecutive
hours. A system failure is not a failure of one individual node or reader but
is when an entire entry or section is without tracking.

P.
Ex. 16 at B-3 (emphasis in original). In addition, the ERP requires that the
mine maintain a printer that “can be immediately connected to the tracking
system to provide a printed record of the location of all miners underground in
the event of an emergency.” P. Ex. 16 at B-1.  

[21] McGuire
testified that he had printed out the electronic tracking log that Morgan had
requested from Cline, but that he declined to turn over the tracking logs to
Morgan without proof that the Secretary’s regulations required operators to
produce records to authorized representatives, upon demand. Tr. II-163-65. At
the time of the hearing, Respondent was unable to produce copies of the
electronic tracking logs. Tr. I-36, II-202. Accordingly, I decline to credit
McGuire’s testimony. I also note that Section 103(h) of the Mine Act provides
that “every operator of a coal or other mine shall establish and maintain such
records, make such reports, and provide such information, as the Secretary or
the Secretary of Health, Education, and Welfare, may reasonably require from
time to time to enable him to perform his functions under the Act.” 30 U.S.C.
§ 813(h).  

[22] 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.