FMSHRC ALJ Decision

DECISION

These cases are before me on petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Big Ridge, Inc. (“Big Ridge”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing held in Evansville, Indiana, and filed post-hearing briefs.

Big Ridge operates a large underground coal mine in Saline County, Illinois. The cases involve six section 104(a) citations and four 104(d)(2) orders of withdrawal. The Secretary proposed a total penalty of $116,912 for the citations and orders that were adjudicated.

I. BASIC LEGAL PRINCIPLES

A. Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and substantial nature (“S&S”). An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that is the most difficult to apply. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC __, slip op. at 9, No. PENN 2008-189 (Oct. 5, 2011).

The S&S nature of a violation and the gravity of a violation are not synonymous. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). The Commission has emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1573, 1575 (July 1984). With respect to citations or orders alleging an accumulation of combustible materials, the question is whether there was a confluence of factors that made an injury-producing fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors that have been considered include the extent of the accumulation, possible ignition sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-503.

B.Negligence and Unwarrantable failure

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:

Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

30 C.F.R. § 100.3(d) (2011). The Commission has defined an unwarrantable failure as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d. 133, 136 (7th Cir. 1995). 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, such as 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, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

II. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

A. Docket No. LAKE 2009-325

1. Order Nos. 6675150 and 6675151

On October 28, 2008, MSHA Inspector Larry Morris issued Order Nos. 6675150 and 6675151 under section 104(d)(2) of the Mine Act, alleging violations of section 75.400 and section 75.360(a)(1) of the Secretary’s safety standards. Order No. 6675150 states:

An accumulation of combustible materials, in the form of float coal dust (black in color), coal fines and loose coal, is present at the operating slope tail pulley. The accumulations are in contact with the rotating belt and tail pulley for a distance of approximately 10 feet. The belt was removed from service by management when notified by MSHA. The accumulations range from a layer of float coal dust to 16 inches in depth of coal fines and loose coal by approximately 9 feet in width by 20 feet in length. This mine has been issued 8 previous violations for this standard in the last thirteen days. This violation is an unwarrantable failure to comply with a mandatory standard.

(Ex. GX-1). Order No. 6675151 states:

An inadequate pre-shift examination was made on the midnight shift on October 28, 2008 on the slope tail piece. Accumulations of combustible materials are in contact with the conveyor belt and tail pulley outby for approximately 10 feet on the East side of the belt. The hazardous condition was noticeable to even the most casual observer. There is no record of any hazards recorded in the examiner’s pre-shift record book for this shift on this date. This order is issued in reference to Order #6675150 issued on 10/28/2008. This violation is an unwarrantable failure to comply with a mandatory standard.

(Ex. GX-2). Inspector Morris determined on both orders that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that both violations were S&S, the operator’s negligence was high, and that eight persons would be affected.

Section 75.400 of the Secretary’s regulations requires that “[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.” 30 C.F.R. § 75.400. Section 75.360(a)(1) requires that a “certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground.” 30 C.F.R. § 75.360(a)(1). The Secretary proposed penalties of $27,959 and $10,705, respectively.

2. Background Summary of Testimony

Inspector Morris has worked for MSHA since January 2007 and is currently a coal mine inspector and accident investigator. (Tr. 1:16). Morris has inspected the Willow Lake Portal on more then 100 occasions since October 2008. (Tr. 1:19). Prior to joining MSHA, Morris worked in the mining industry since 1974. (Tr. 1:17).

On October 28, 2008, Morris was at the mine to perform a required inspection. (Tr. 1:20). During the inspection Morris was accompanied by Bill Shover, who works in the outby areas of the mine and is a safety steward. (Tr. 1:95-96). Morris testified that he started his inspection “at the top of the slope belt and walked it underground.” At the tail piece, accumulations were present underneath the belt and visible from the west side of the belt. (Tr. 1:24). At the time Morris arrived the belt was running and the east side of the belt was running in coal for approximately ten feet around the tail pulley. (Tr. 1:24). Morris further testified that accumulations measured approximately nine feet in width, twelve feet long, and sixteen-inches deep. (Tr. 1:24, 1:31). The accumulations consisted of combustible material, coal fines, loose coal, and float coal dust. (Tr. 1:30). The floor of the mine at this location was made of concrete. Some of the accumulations were wet under the surface due to the slope being washed down and water sprays at the belt transfer. (Tr. 1:70-72). Morris testified that the accumulations can dry out and burn in the right conditions. (Tr. 1:32). The slope belt tail, referenced in the order, was in an area with two transfer points from inby belts carrying coal from the mine’s working sections. (Tr. 1:33-34). One belt, the 4-A, is on the east and handles two production sections and the other belt, the north, handles the mine’s other three production sections. (Tr. 1:33). Morris stated that it took approximately one hour and forty-five minutes for eleven miners to abate the condition. (Tr. 1: 43-44).

Morris determined that the accumulation violation was S&S due to the likelihood of a fire if the accumulations were left in the cited condition. (Tr. 1:35). He reasoned that if the bearings on each side of the tail pulley failed, metal would be in contact with metal, producing frictional heat and igniting the grease and in turn the coal surrounding the bearings. (Tr. 1:35). The slope belt is located in the primary entrance to the mine so that a fire and smoke would affect numerous workers. (Tr. 1:35-36). The main injuries that could occur from this hazard, Morris stated, are respiratory problems from breathing in smoke and getting lost within the mine. (Tr. 1:39-40). Morris further determined that the violations would affect eight workers and could potentially result in lost workdays and restricted duties. (Tr. 1:40). The CO monitors located in the violation area, Morris noted, would not limit the exposure to the hazardous condition because CO monitors often fail and the response by miners can be slow due to complacency. (Tr. 1:42).

Morris further determined that the accumulation violation was an unwarrantable failure because eight previous violations had been issued for the same standard within thirteen days of Order No. 6675150. (Tr. 1:44). These eight preceding violations where all issued by Morris and seven of them concerned accumulations along conveyor belts. (Tr. 1:48-49). Six of these seven violations were S&S because the belt was running and in contact with the accumulations. (Tr. 1:49). Fifteen section 75.400 citations were issued in the mine between October 1 and October 28. (Tr. 1:50). Additionally, Morris stated that the accumulations should have been obvious to an examiner and had existed for some time. (Tr. 1:45-47). Monte Applin, a mine examiner, was in the area at around 5:35 a.m. for the preshift and initialed the date board without referencing any accumulations. (Tr. 1:46). Morris deduced that the accumulations had existed since the belt was shut down during the previous midnight shift. (Tr. 1:47). Morris noted that the mine has three shifts: morning and afternoon production shifts, and a midnight maintenance shift. (Tr. 1:37). Morris explained that by the time the morning shift performed all the required checks, no coal would have been produced and transported along the belts from the end of the afternoon shift to the time of his inspection the next morning. (Tr. 1:47).

Morris determined that the violation was a result of the operator’s high degree of negligence because the operator had been put on notice that it was not consistently complying with section 75.400. (Tr. 1:50). Morris had discussions with the operator after writing his previous eight violations. (Tr. 1:50). Additionally, Morris stated that conditions along the belts were widely ignored. (Tr. 1:50).

Inspector Morris also issued an order for an inadequate preshift examination on the midnight shift on October 28, 2008, based on the same conditions discussed in the accumulations violation above. (Tr. 1:52). Morris testified that the midnight shift examiner typically examined the transfer areas while the examiners on the other shifts usually only walked the west side of the belt, which is why he cited the midnight shift for the violation. (Tr. 1:53-54). In the preshift examination book Applin wrote, “The top entry slope, no methane, 20.9 percent oxygen, no hazardous conditions found” on October 28, 2008 at 5:35 a.m. (Tr. 1:54; Ex. GX-5). In the entry for the dayshift Charlie Hayers, the examiner, wrote “Slope tail dirty” before Morris issued the order. (Tr. 1:55; Ex. GX-5). Morris reasoned that a violation of the examination standard occurred because Applin failed to observe an obvious hazard. (Tr. 1:57). Morris designated the examination violation as S&S because the violation matched the other order and the hazardous condition was allowed to remain unabated. (Tr. 1:57). Morris additionally explained that he designated the examination violation as an unwarrantable failure because the examiner is an agent of the operator and the accumulations were obvious. (Tr. 1:58-59). Morris opined that the examiner should have seen the accumulations, shut the conveyor belt off, and notified the operator. (Tr. 1:59).

On cross-examination, Morris testified that as far as he knew the CO sensors on the belt line were working on October 28, 2008. (Tr. 1:67). In addition, MSHA’s standards require that false alarms be treated the same as actual alarms. (Tr. 1:66). Finally, Morris agreed that when the examination books have comments about certain conditions, corrective action is usually undertaken. (Tr. 1:84-85). Morris testified that on October 29, 2008, the day after the orders were issued, Applin spoke with him about recording a note in his personal journal about accumulations on the belt line. (Tr. 1:86-87).

Shover, the safety steward, testified that the slope tail was running in the accumulations, including dry float coal dust, when he arrived with Morris on October 28, 2008. (Tr. 1:96-97). He also recalled the conversation between Morris and Applin in which Applin pulled out his notebook and told Morris that the hazard in question was in his notes; he just forgot to log it in the exam book. (Tr. 1:98). On cross-examination, Shover stated that he stayed at the slope belt while ten to eleven workers spent between an hour and an hour and a half abating the order. (Tr. 1:98-99).

Applin, the examiner, has more than 30 years of experience with five years as an examiner. (Tr. 1:101). He testified that during preshift inspection, at the end of the midnight shift, he walked by the slope tail and looked for any hazards or accumulations. (Tr. 103-104). Applin stated that he saw the accumulations and went over to two “red hat” miners in the area and told them to clean the slope tail. (Tr. 1:106). Because he assumed that the miners had cleaned the accumulations, Applin did not reference the accumulations in the exam book. (Tr. 1:108). Applin further testified that the accumulations by the tail were mostly wet and he did not see any float coal dust. (Tr. 1:109). He did not consider the accumulations to be a hazard because the accumulations were not touching the belt or rollers. (Tr. 1:107). Applin stated that he did not record the accumulations because he considered accumulations to present a hazard only when the belt is rubbing against them. (Tr. 1:112).

Terry Butler, the belt manager, testified that he accompanied Morris during inspection of the slope tail. (Tr. 1:117). Butler did not walk down the slope with Morris and Shover, but met them at the slope tail. (Tr. 1:117). Butler testified that the accumulations were small and that one had to get down on hands and knees to see the coal that was touching the belt. (Tr. 1:118). Additionally, there was a windrow of coal up the east side of the belt approximately six to eight inches deep and ten feet long. (Tr. 1:118). Butler noted that the accumulations were not obvious and there was no float coal dust at the slope tail. (Tr. 1:119-20). Furthermore, during the termination of the order, Butler testified that eleven workers could not be working at the location at the same time. (Tr. 1:122). On cross-examination Butler clarified the written statement he made regarding October 28, 2008. (Ex. GX-43). Within the written statement Butler references four inches of float dust “on the framing and under the tail.” (Ex. GX-43). Butler testified that he was referencing the belt line on the 4A belt and not the slope tail. (Tr. 1:129-130).

3. Summary of the Parties’ Arguments

The Secretary argues that Morris established that the operator violated both sections 75.400 and 75.360(a)(1). Section 75.400 was violated due to the presence of float coal dust, a combustible material, within an active working belt area, observed by Morris and further confirmed by both Butler and Shover. (Sec’y Br. 4-5). Section 75.360(a)(1) was violated due to the volume of accumulations on the belt line present early in the morning shift. (Sec’y Br. 5). The Secretary relies on the testimony that the belt in question was started on October 28, 2008, around 6:00 a.m. and only residual coal from the prior days’ afternoon shift was on the belt. (Sec’y Br. 5). Morris observed the condition at 7:50 a.m.; thus, the belt was running for less then two hours. (Sec’y Br. 5). The morning production shift starts at 6:30 a.m., and there is an additional time lag for coal to reach the area after the morning shift starts production. (Sec’y Br. 5). The Secretary reasons that the volume of accumulations was so significant that it took around one hour and 45 minutes to clear and this volume could not have been produced solely from the morning shift. (Sec’y Br. 5). Therefore, the accumulations were present for at least one shift and the examiner failed to recognize and record the condition. (Sec’y Br. 5).

The Secretary further argues that the S&S designation on both violations should be affirmed because the cited condition exposed miners to the potential for serious injuries. The accumulations created a fire hazard along a belt line in a common travelway. (Sec’y Br. 6-7). The Secretary contends that the fire hazard existed regardless of the CO monitors referenced by the operators. (Sec’y Br. 7-8). The Secretary also argues that the violation was properly characterized as an unwarrantable failure because the condition was obvious, existed for a significant time, the examiner knew about the condition, and the operator was on notice for an ongoing accumulations problem. Applin, the examiner, observed the accumulations and should have recorded any maintenance request in the book. (Sec’y Br. 10). Inspector Morris had been having ongoing discussions with management about accumulation problems and the operator had been issued numerous section 75.400 violations. (Sec’y Br. 11). The Secretary states that both past discussions and multiple violations serve to put an operator on notice of a recurring safety problem. (Sec’y Br. 12).

Big Ridge argues that no violation of section 75.360(a)(1) occurred but does not contest the occurrence of the violation of section 75.400. Regarding section 75.360(a)(1), Big Ridge contends that at the time of Applin’s examination no hazard existed because the belt was not in contact with any accumulations. (Big Ridge Br. 8-9). At the time of the inspection the contact between the accumulations and the belt was only one square foot. (Big Ridge Br. 9). Thus, the hazardous condition was not in existence for a substantial period of time. (Big Ridge Br. 9).

Big Ridge further argues that the S&S designation was improper for both orders. An injury-causing event was not reasonably likely to occur. (Big Ridge Br. 3). The accumulations were very wet and less likely to ignite; additionally, the inspector confused the presence of float coal dust on the 4A belt with the conditions in the slope tail area. (Big Ridge Br. 3). Methane was also not detected in the area. (Big Ridge Br. 4). Big Ridge further relies on its fire detection systems: CO sensors coupled with fire suppression equipment on the belt line would provide early warning and prevent ignition. (Big Ridge Br. 4). Moreover, Big Ridge relies on Terry Bentley, the MSHA Chief of Health and Safety, and his report on belt entry fires, which states that between 1980 and 2005 there were only 63 reportable fires and no fatalities or lost time (“Bentley Report”). (Big Ridge Br. 5; Ex. R-7). Therefore, the hazardous condition is unlikely to result in any serious injury. Specifically for the violation of section 75.360(a)(1), the S&S designation must be based on the failure to report, not necessarily on the presence of the condition itself. (Big Ridge Br. 9).

Big Ridge also contests the unwarrantable failure designation for both orders. Big Ridge argues that management had no knowledge of a hazard; Applin did not observe accumulations in contact with the belt line. (Big Ridge Br. 7.) Furthermore, the accumulations were limited in scope and not obvious. (Big Ridge Br. 7). Butler testified that the belts were carrying coal during the inspection and the condition was likely created by spillage on the current shift. (Big Ridge Br. 7). The point of contact between the accumulations and belt line was small and could easily be missed by an examiner. (Big Ridge Br. 8).

4. Discussion and Analysis

a. Order No. 6675150

Big Ridge did not contest the violation of section 75.400, but it contends that the Secretary did not establish that the violation was S&S. I agree. The Secretary established the first two elements of the Mathies test but did not prove that it was reasonably likely that the hazard contributed to by the violation would result in an injury. The accumulations were mostly wet. There were no ignition sources in the area that were likely to ignite the coal or cause it to smolder. The belt rubbing in the coal accumulations was not a likely ignition source. There was no evidence that the belt was misaligned, that it was rubbing against the metal supports for the conveyor system, or that any other ignition sources or methane were present. The inspector testified that if the bearings on the tail pulley were to fail, metal would rub against metal and that grinding action could create heat and ignite the grease in the bearings which would ignite the coal. (Tr. 1:35). Such a chain of events, although possible, is unlikely given the facts in this case. There was no showing that the belt was running during the previous maintenance shift. Assuming continuing mining operations, the accumulations would have been cleaned up during the normal mining cycle before an S&S hazard was created. Finally, although the presence of CO detectors and a fire suppression system does not eliminate the hazard, it reduces the likelihood of serious injuries. The violation was serious, however, because if a fire were to break out, a serious injury could result.

Big Ridge also contends that the Secretary did not establish that the violation was the result of its unwarrantable failure. I find that the violation was the result of Big Ridge’s unwarrantable failure to comply with the safety standard. The evidence establishes that the violation had existed since the end of the previous production shift. The violation was confined to a small area, but it was in a location where the operator should expect accumulations to develop. All of the coal produced at the mine exits the mine via the slope belt. Several belts dumped onto the slope belt in the area where the order was issued. Consequently, the operator should give special attention to this area to make sure that accumulations are promptly cleaned. I find that Big Ridge had been placed on notice that greater efforts were necessary to comply with section 75.400 throughout the mine and especially along coal-carrying conveyor belts at the mine. Mr. Applin testified that he told some red-hat miners to clean up the accumulations and that he wrote down the conditions he observed in his notepad, but he did not write anything in the preshift examination books. Thus, he was aware that accumulations existed in the cited area. He believed that he was not required to record coal accumulations if the belt was not rubbing in them or, presumably, if there were no other ignition sources present. I do not credit the testimony about the red-hat miners and instead find that Big Ridge made no effort to clean up the accumulations. The accumulations were not readily obvious, but given their location, it was incumbent on the operator to take special care to look for accumulations in the cited area. Big Ridge’s conduct amounted to a serious lack of reasonable care. The negligence was high. A penalty of $15,000.00 is appropriate for this violation.

b. Order No. 6675151

Big Ridge contends that the Secretary did not establish a violation of section 75.360(a)(1). I find that a hazardous condition was present at the time of Applin’s preshift examination and that he failed to recognize this hazard or record the hazard in the preshift records. As stated above, preshift and onshift examiners have a duty to carefully examine the cited area because it is subject to spillage and accumulations. The examiner must take a moment to thoroughly observe the conditions around the slope tail pulley in order to discharge his obligation to conduct a thorough preshift examination. A cursory walk-though is not sufficient given the likelihood that accumulations will develop in that location. As discussed above, I found that the accumulations created a serious safety hazard but that they were not S&S. The obligations set forth in section 75.360 to examine for and record hazardous conditions are not limited to those hazardous conditions that are S&S. Enlow Fork Mining Co., 19 FMSHRC 5, 14-15 (Jan. 1997).

I also find that this violation was S&S. The preshift examination requirement “is of fundamental importance in assuring a safe working environment underground.” Buck Creek, 17 FMSHRC at 15. The preshift examination is intended to “prevent hazardous conditions from developing.” Enlow Fork, 19 FMSHRC at 15 (emphasis added). Thus, even though Applin did not consider the accumulation amount to be hazardous at the time of his examination, it was clear that it would not take much more added coal to create a very serious hazard. Thus, the failure to recognize and record the hazard presented a reasonable likelihood that the hazard contributed to by this violation would result in an event in which there was a serious injury.

Whether this violation was a result of Big Ridge’s unwarrantable failure is a closer question. As the preshift examiner, Mr. Applin was an agent of Big Ridge and his failure to report the coal accumulation is imputed to Respondent. Rochester and Pittsburgh Coal Co., 13 FMSHRC 195-96 (Feb. 1991). Applin was an experienced examiner. He did not recklessly or intentionally disregard his responsibilities and he was not indifferent to any hazards present. Although Applin believed that the conditions did not present a significant hazard because the coal was damp and the belt was running in only a small section of the accumulations, the operator had been warned a number of times that it was not doing enough to remove accumulations. Both these past warnings and multiple violations of section 75.400 during the weeks leading up to October 28 put the operator on notice that it needed to conduct more thorough preshift examinations in areas where accumulations were likely to develop. The failure of Big Ridge to take steps to retrain its examiners to better identify hazardous accumulations demonstrates a serious lack of reasonable care. Consequently, I find that the Secretary established that this violation was a result of the operator’s unwarrantable failure to comply with the safety standard. A penalty of $20,000.00 is appropriate for this violation.

B.Docket No. LAKE 2009-706

1. Citation No. 8417452

On July 20, 2009, Inspector Morris issued Citation No. 8417452 under section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.400 as follows:

An accumulation of combustible materials, in the form of coal fines and loose coal, is present on the 4F operating conveyor belt at the belt drive. The accumulations are located on both motor trays and under the belt drive and range from 1 to 16 inches in depth by 2-4 feet in width by 1-5 feet in length and are against the motors.

(Ex. GX-38). The inspector determined that an injury was reasonably likely and that lost workdays or restricted duty would be expected if an injury occurred. He further determined that the violation was S&S, the operator’s negligence was high, and two persons would be affected. The Secretary proposed a penalty of $16,867.

2. Background Summary of Testimony

Inspector Morris testified that during his regular inspection on July 20, 2009, he observed accumulations of “combustible materials surrounding the drive motor” on the 4F conveyor belt. (Tr. 1:133-34). The 4F belt’s drive motors are located on “trays” under the belt. In front of the drive rollers, there are scrapers present to keep accumulations off the motor. (Tr. 1:134). Morris found “coal fines and loose coal on both motor trays and under the belt drive.” (Tr. 1:135). Morris measured the accumulations located against the motors to be approximately one to sixteen inches deep, two to four feet wide, and one to five feet in length. (Tr. 1:135). Morris testified that the accumulations were combustible and likely formed because the scrapers were not properly aligned against the belt. (Tr. 1:135).

Morris designated the citation to be S&S because the accumulations were surrounding the motors and close to the couplers, which provide a frictional heat source that could produce an ignition. (Tr. 1:136-37). The resulting fire hazard, Morris reasoned, could produce injuries that produce lost work days or restrict duties because of breathing problems from smoke inhalation or injuries from restricted visibility. (Tr. 1:138). Morris testified that CO monitors and a fire suppression system were located in the area, but he does not take those into consideration because the hazardous condition still exists and safety measures do not always work properly. (Tr. 1:138-39). Morris further states that he personally believes that the most likely place to have a fire in a coal mine is the conveyer belt; he has worked with belts and has been involved with a belt fire before. (Tr. 1:139-40). The violation was also designated as high negligence because Morris had previously met with the management about accumulations on the conveyer belts. (Tr. 1:140-41). Additionally, Big Ridge’s history of section 75.400 violations factored into Morris’s determination. (Tr. 1:142). Big Ridge shut down the belt and cleaned the area; Morris terminated the citation two hours later on the same day. (Tr. 1:143). Morris estimated that the accumulations had existed for more than three shifts based on his mining experience and the volume of accumulations present. (Tr. 1:143).

On cross-examination Morris testified that he did not take any temperature readings of the belt drive components and the CO sensors were working as far as he knew. (Tr. 1:146-47). Morris also confirmed that the belt fire he had experience with occurred before CO sensors and fire suppression systems were required. (Tr. 1:149). Morris agreed that Big Ridge had fewer section 75.400 violations prior to Citation No. 8417452 than in previous time intervals but he did not feel that this should be a mitigating circumstance in this case. (Tr. 1:150-51). On redirect examination, however, Morris testified that in the first quarter of 2009, twenty-nine section 75.400 violations were issued and in the second quarter ninety-seven section 75.400 violations were issued to the operator. (Tr. 1:153-54; Ex. GX-18).

Bob Clarida, the safety supervisor, testified that he accompanied Morris during the inspection on July 20, 2009. (Tr. 1:162). Clarida described the accumulations as “corn flakes,” which are made up of a mixture of fire clay and coal dust. (Tr. 1:162). The accumulations were tested and were determined to be 40% combustible. (Tr. 1:163). Clarida further testified that he did not believe that the accumulations would be reasonably likely to catch on fire because the running temperature of the motors is typically around 120 degrees and the ignition temperature of coal is 881 degrees. (Tr. 1:163-64). On cross-examination, Clarida testified that regarding the numbers he referenced above, the testing had been done a “few years back” and that he never actually examined any of the results. (Tr. 1:165-66).

Todd Grounds, the compliance manager of the Mine, testified as to the operator’s programs in place to address section 75.400 violations. (Tr. 1:170). In late January or early February of 2009 a program was put in place to inspect the belt lines above and beyond the regular examination. The program required that both the walkway side and the back side of the belt would be inspected. (Tr. 1:170-71). Additionally, in February of 2009 the operators assigned two additional mechanics to fix hydraulic leaks. (Tr. 1:171). Grounds testified to the positive results of the programs, where May and June of 2009 showed a significant decrease in the number of section 75.400 violations. (Tr. 1:172-73; Ex. R-29).

3. Summary of Parties’ Arguments

The Secretary argues that Big Ridge violated section 75.400 when it allowed accumulations of combustible materials around the belt drive motor. (Sec’y Br. 13). The Secretary contends that the violation was properly designated S&S because the accumulations were getting close to an ignition source, which posed a fire hazard. The rotating coupler produces frictional heat and, when material is packed around the motor, a fire hazard results. (Sec’y Br. 13). Smoke from a fire would cause smoke inhalation or injuries from reduced visibility. (Sec’y Br. 14). The Secretary further argues that the presence of fire protection measures does not control whether a safety hazard was present. (Sec’y Br. 14). The Secretary also argues that the violation resulted from Big Ridge’s high negligence. Big Ridge was on notice of the accumulations problem because of the previous citations and conversations Morris had with management. (Sec’y Br. 15). Additionally, the Secretary contends that the accumulations had existed for a least three shifts. (Sec’y Br. 15).

Big Ridge does not challenge the violation of section 75.400, but does contest the S&S and high negligence designations. Regarding the S&S designation, Big Ridge argues that the third element of the Mathies test was not established; there was no likelihood of an injury-causing event. (Big Ridge Br. 10). Big Ridge relies on Clarida’s testimony that the accumulations were mostly non-combustible and the heat generated from the belt drive was not sufficient to ignite coal. (Big Ridge Br. 10). Further, Big Ridge notes that the Bentley report demonstrates that there have been few reportable injuries caused by belt fires in the coal mining industry. (Big Ridge Br. 11-12). Therefore, a belt fire causing an injury is “highly unlikely,” and lost time or reduced work is not likely to occur. (Big Ridge Br. 11-12).

4. Discussion and Analysis

The Secretary established a violation of section 75.400. As with Order No. 6675150, above, I find that the Secretary did not establish that the violation was S&S. The third element of the Mathies test was not met in this instance. The accumulations were less that 50% combustible; the temperature of the motor was not great enough to ignite the accumulations; it was unlikely that any heat generated by the belt drive would ignite the accumulations; and the CO monitors would have alerted miners if any of the material started smoldering. The risk of an injury from this violation was remote. There was no evidence that the belt motor, the belt, or any other piece of equipment was functioning improperly such that it might become an ignition source. Of course, it was possible that the accumulations could start to smoke, but such an event was not likely taking into consideration continued normal mining operations. I credit the testimony of Bob Clarida on this issue. The gravity of the violation was serious.

I find that Big Ridge’s negligence was greater than moderate. I credit the testimony of Inspector Morris that the accumulations had been present for a lengthy period of time. I do not doubt that the mine had been doing a better job of examining its belt lines for accumulations starting in early 2009 or that it reduced the number of citations it has been issued for violations of section 75.400. Nevertheless, the fact that this accumulation had been present for some time demonstrates that Big Ridge’s preshift examinations still needed improvement. The negligence was high. A penalty of $10,000.00 is appropriate.

C. Docket No. LAKE 2009-326

1. Citation Nos. 6678829 and 6678835

On September 4, 2008 and September 9, 2008, MSHA Inspector Danny Ramsey issued Citation Nos. 6678829 and 6678835. Both citations were issued under section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.1722(b). Citation No. 6678829 states as follows:

The tail roller guard, located on the Unit-5 (5C) conveyer tail piece, was not extended a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley. An opening in the guard measuring approximately 5 to 8 inches in width and 24 inches in length was observed exposing the moving tail pulley.

(Ex. GX-9). Citation No. 6678835 states as follows:

The tail pulley guard, located on the Unit-2 2 (B) conveyor tail piece, was not extended a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley. An opening measuring approximately 3 to 4 inches in width and 24 inches in length was observed exposing the moving pulley.

(Ex. GX-11). On both citations, the inspector determined that an injury was reasonably likely to occur and that the injury would be permanently disabling. He further determined that the violations are both S&S, with Citation No. 6678829 being high negligence and Citation No. 6678835 being moderately negligent. Section 75.1722(b), entitled “Mechanical equipment guards” provides that “[g]uards at conveyor-drive, conveyor-head, and conveyor-tail pulleys shall extend a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley.” 30 C.F.R. § 75.1722(b). The Secretary proposes a penalty of $1,795 and $5,961 respectively.

2. Background Summary of Testimony

a. Citation No. 6678829

Inspector Ramsey testified that on September 4, 2008, he was at the mine and traveled with Bob Clarida, the company representative, and Zach Gibbons, the miner’s representative. (Tr. 1:192). During the inspection, Ramsey observed an opening on the guarding for the Unit 5 conveyor tail piece. (Tr. 1:179). The opening exposed the moving tail pulley, and was measured to be five to eight inches in width and 24 inches in length, about two-thirds the height of the entire machine. (Tr. 1:179, 184). The guard was made of “belting” and was located “at the end of the conveyor belt where the section feeder . . . unloads onto it.” (Tr. 1:179). Ramsey testified that the guarding standard helps prevent miners from reaching behind the guard and exposing themselves to moving mechanical parts, specifically from becoming caught between the belt and the pulley. (Tr. 1:180-81, 182). Miners typically have to reach behind the guards to clean, service, grease, and maintain the tail rollers. (Tr. 1:181-82). The distance between the guard and the moving tail roller was about ten inches. (Tr. 1:182). Ramsey observed debris and wire around the shaft of the tail pulley that was “easily” seen from the opening. (Tr. 1:185). The feeder car on the machine did not provide any protection because the opening was still accessible. (Tr. 1:186).

Ramsey testified that the violation was reasonably likely to cause an injury because the machine was going to have to be cleaned out and people sometimes do not make “smart” choices when working around moving parts. (Tr. 1:187). The violation was likely to result in a permanently disabling injury. (Tr. 1:187). Ramsey determined this from both MSHA guidelines and personal experience; he knew two people who had been injured from reaching into moving machinery. (Tr. 1:188-89). One individual reached into a drive and his arm was pulled off resulting in a fatality, and the other individual had an injury that exposed bone in his arm. (Tr. 1:188-89). Ramsey reasoned that in this particular case a worker would lose function of a limb if caught in a pinch point of the machinery. (Tr. 1:189). Only one worker would be affected because only one can reach within the guard at a time. (Tr. 1:189).

Ramsey further determined that the violation was S&S due to the seriousness of the potential injury, the frequency of people within the area, and the likelihood of occurrence. (Tr. 1:190). Ramsey also determined the violation was due to moderate negligence on behalf of the operator. (Tr. 1:190). The condition was obvious, but Ramsey could not determine how long the condition existed or who knew of the condition. (Tr. 1:190-91). The onshift paperwork did not reference the cited condition at the Unit 5 conveyor tail piece. (Tr. 1:191). Repairing the guard, closing the opening, and securing it with tie wire abated the citation. (Tr. 1:193).

On cross-examination, Ramsey testified that section 75.1722(b) specifically references guarding the point where the belt and roller meet, the pinch point. (Tr. 1:201). The feeder will overlap with the tail piece and bolt onto the machine’s frame. (Tr. 1:202). With the feeder on the belt, one would have to crouch and reach in about 20 inches to get to the pinch point. (Tr. 1:207-08). Further, Ramsey testified that most workers would have no reason to reach under the guard; greasers have a hose that extends out of the guard and they have no reason to reach underneath the belt; shovelers use long handled shovels affording them protection; and examiners do not stick their hands under the belt. (Tr. 1:209-10).

Clarida, the safety supervisor, testified that a feeder would make it harder to access the pinch point. (Tr. 1:222). The feeder overhangs the guard by around 24 to 30 inches. Thus, to get a hand in the pinch point, one would have to lie down against the machine; one would not come into contact with the pinch point by merely walking by or working around the area. (Tr. 1:223-24).

b. Citation No. 6678835

Inspector Ramsey testified that on September 9, 2008, he issued another citation for a violation of section 75.1722(b). (Tr. 1:194; Ex. GX-11). The violation was on the Unit 2, 2B conveyor tail piece, and Ramsey measured its opening to be three to four inches in width, 24 inches in length, and exposing the moving tail pulley. (Tr. 1:194). The machine was similar to the machine in the citation above but without the feeder car. (Tr. 1:194). The guarding was made out of belt material, and the gap in the guards was 16 inches away from moving parts. (Tr. 1:194-95). Ramsey reasoned that the belt material used for the guards could easily have been made wider for access. (Tr. 1:196). Miners are around the 2-B tail piece at least once a shift because the mine examiner checks the area, and cleaning as well as maintenance has to be performed. (Tr. 1:195).

Ramsey determined that the violation was reasonably likely to occur because the moving pulley was exposed. (Tr. 1:196-97). Ramsey had issued another citation for accumulations around the tail piece and within the opening; therefore, someone had to be in the area to clean. (Tr. 1:197). The violation was also determined to likely result in a permanent or disabling injury and would affect one person for the same reasons as Citation No. 6678829, above. (Tr. 1:198).

Ramsey further determined that the violation was S&S because, if left unabated, a serious injury would result. (Tr. 1:198). Ramsey determined that the operator displayed a high level of negligence because the operator knew or should have known about the violation and there were no mitigating circumstances. (Tr. 1:198). After Ramsey issued Citation No. 6678829, above, on September 4, 2008, he stated that he gave Clarida a verbal notification that he would raise the level of negligence in the next citation he issued for a violation of the guarding standard. (Tr. 1:198).

Clarida testified that the setup of the tail piece is similar to the citation above, but no feeder was located on the belt line. (Tr. 1:226). He believes that any potential injury would not result in a permanent and disabling injury, and that one would have to deliberately stick a hand in the opening for an injury. (Tr. 1:227). Clarida states that he believed Ramsey did speak with him about the guarding violations but could not remember for sure. (Tr. 1:228).

3. Summary of Parties’ Arguments

The Secretary argues that Big Ridge violated section 75.1722(b) as set forth in both citations because a gap was allowed in the unsecured guarding on the Unit 5C and 2B tail pieces, respectively. The regulation requires that a guard be present to prevent reaching behind and becoming caught. (Sec’y Br. 17). A sufficient distance for moving parts would be approximately 30 inches or the length of a man’s arm. (Sec’y Br. 17). The Secretary contends that Citation No. 6678829 was properly designated S&S and moderately negligent. The S&S designation was proper because an injury was reasonably likely to occur because miners frequently traveled in the area, and clean up would have to be done in the near future in the area as well. (Sec’y Br. 17). A moderate negligent designation is also appropriate because the condition was obvious and the area is examined once a shift. (Sec’y Br. 18). The Secretary rejects Big Ridge’s argument that section 75.1722(b) only requires guards against the pinch point between the belt and tail pulley and guards only need to protect miners from accidental contact. (Sec’y Br. 18-19). The language and intent of the regulation focuses on a miner deliberately reaching through an inadequate guard and is not limited to just one particular pinch point. (Sec’y Br. 18-19). The Secretary also contends that Citation No. 6678835 was properly designated S&S and moderately negligent. The S&S designation was proper because it was reasonably likely that an injury world occur because accumulations had to be cleaned up around the tail piece. (Sec’y Br. 19-20). The designation of high negligence by the operator is also appropriate because Ramsey had previously given notice to Big Ridge about guard violations. (Sec’y Br. 20).

Big Ridge first argues that no violations of section 75.1722(b) occurred. The guards in place were sufficient to prevent contact where the belt and pulley meet. (Big Ridge Br. 15). The guard in Citation No. 6678829 did not permit access to the pinch point located 20 inches from the guard, and the pinch point was further protected by the feeder. (Big Ridge Br. 16). Citation No. 6678835 was similar in that the guard did not permit access to the pinch point and one would have to lie on the ground to access the area. (Big Ridge Br. 16). A miner could not slip or trip and be placed in a position to contact the pinch point. (Big Ridge Br. 17). If both guarding violations did occur, Big Ridge argues that both should not be designated S&S. The S&S designation is improper because there was no likelihood of an injury-causing event, the third element of the Mathies test. (Big Ridge Br. 17). An injury is unlikely because of the location of the pinch point and the presence of the guard. (Big Ridge Br. 17). Anyone performing work on the belt line was required to lock out and tag out the line, and travel by the belt would not cause contact with the pinch point. (Big Ridge Br. 18). Furthermore, Big Ridge contests the high negligence designation on Citation No. 6678829, because no conversation between Ramsey and Clarida ever took place regarding guarding violations on September 4, 2008. (Big Ridge Br. 18). If the conversation did occur, mitigating circumstances were still present because the guards present prevented all but deliberate conduct. (Big Ridge Br. 19).

4. Discussion and Analysis

Section 75.1722 is a very important safety standard. It requires that moving machine parts be guarded to prevent miners from becoming entangled in these moving parts and sustaining severe injuries. Unguarded or inadequately guarded moving machine parts present a significant hazard to miners. This safety standard is essential because miners, in conducting their day-to-day activities, should not be exposed to the hazards presented by moving machine parts. As the Commission stated in Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), guarding standards should be interpreted to take into consideration a “reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.” “Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions. . . .” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983).

Nevertheless, I am bound by the terms of the safety standard that is cited. In this case, the inspector cited section 75.1722(b) which provides that “[g]uards at conveyor . . . pulleys shall extend a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley.” (emphasis added). This standard was drafted narrowly to protect a miner from reaching behind a guard and getting caught between a belt and a pulley. It does not cover the hazards related to other moving machine parts, such as gears, sprockets, chains, flywheels, or similar moving machine parts. Consequently, the issue is whether the two conditions cited by Inspector Ramsey presented a hazard of getting caught between the belt and the pulley.

With respect to the first citation, Inspector Ramsey testified that it was possible to reach underneath the belt guarding and come in contact with the pulley. (Tr. 1:186). The point where the belt rolls onto the pulley was about four to six inches above the ground. (Tr. 1:202). Someone would have to reach in to contact the pulley and that person would have to be crouching. (Tr. 1:206). The inspector estimated that it was about 20 inches from the bottom of the guard to the subject pinch point. (Tr. 1:207). There was also a gap between the pieces of belting that were being used as a guard. (Tr. 1:208).

With respect to the second citation, Inspector Ramsey testified that it was about 16 inches between the guard and the pulley. (Tr. 1:195). As with the previous citation, because the guard was made of hanging pieces of belting, a miner could push them aside. (Tr. 1:196). There were accumulations behind the guarding. (Tr. 1:197).

I find that the Secretary established a violation in both instances. The belting used as guarding was not secured in such a way to prevent a miner from coming into contact with the pinch point between the pulley and the belt. Miners were in the area once a day to perform examinations and to perform routine maintenance. Based on the testimony of Inspector Ramsey, I find that there was a “reasonable possibility of contact and injury” with the pinch point between the belt and the pulley. The guarding material was somewhat flexible and there were gaps in the guarding with the result that a miner’s hand or clothing could get caught in the subject pinch point.

I find that the violations were not S&S, however. The two pinch points were very low to the ground and were a considerable distance behind the existing guards. Although an injury was possible as a result of the cited conditions, it was not reasonably likely that anyone would be in a position to become entangled in the cited pinch points. As a consequence, it was not reasonably likely that the hazards contributed to by the violations would result in an event in which there was an injury. A person would have to be very low to the ground and reach up under the existing guards. Even then, it would not be very likely they would be injured at the pinch points because they were 20 inches or so beyond the guard. The gravity of the citations was low.

I find that the negligence for Citation No. 6678829 was low. Given the position of the pulley and presence of the feeder, it was not readily obvious that additional guarding was required under the safety standard. The negligence for Citation No. 6678835 is moderate. I credit the testimony that Inspector Ramsey discussed the need to provide more substantial guards at tail pulleys. A penalty of $1,000.00 is appropriate for Citation No. 6678829 and a penalty of $4,000.00 is appropriate for Citation No. 6678835.

D. Docket No. LAKE 2009-435 and LAKE 2009-436

1. Order No. 6683115 and Citation Nos. 6683116 and 6683117

On February 23, 2009, Inspector Scott Lee issued one order and two citations. The citations and order were issued at the same location along the slope belt. Order No. 6683115 was issued under section 104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.362(b) as follows:

An inadequate exam was performed on the slope belt on the 2nd shift on 2/23/2009. A frozen bottom roller acting like a scraper approximately 30 ft. outby the slopes tail piece was observed with accumulations of combustible material in the form of coal fines underneath it. The fines were approximately 6ft. in width, 5ft. in length and 25 inches in height, (touching the bottom belt) and were packed around the roller on its inby side. The onshift examiner had just walked this belt approximately 45 mins. prior to this inspector observing this condition. Based upon this inspector’s experience this condition had been present for at least one shift. After the cited roller was removed a flat spot 47 inches in length and 2 inches wide was measured on the roller, another indication that the condition had existed for some time prior to the examination. To abate the order all examiners will have to be retrained on how to examine a belt line properly.

(Ex. GX-13). The inspector determined that an injury was reasonably likely to occur and that the injury could be expected to result in lost workdays or restricted duty. He further determined that the violation was S&S, the company’s negligence was high, and three persons were affected. Section 75.362(b), entitled “On-shift examination,” provides in part that “[d]uring each shift that coal is produced, a certified person shall examine for hazardous conditions along each belt conveyor haulageway where a belt conveyor is operated.” 30 C.F.R. § 75.362(b). The Secretary proposes a penalty of $6,624.

Citation No. 6683116 was issued under section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. 75.1725(a) as follows:

A frozen bottom roller was observed approximately 30 ft. outby the slope belt’s tail piece. Accumulations of coal fines were packed around it on its inby side. This condition should have been observed by the on shift examiner during his examination approximately 45 minutes prior.

(Ex. GX-14). The inspector determined that an injury was reasonably likely to occur and that the injury could be expected to result in lost workdays or restricted duty. He further determined that the violation was S&S, the company’s negligence was high, and three persons were affected. Section 75.1725(a), entitled “Machinery and equipment; operation and maintenance” provides that “[m]obile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.” 30 C.F.R. § 75.1725(a). The Secretary proposes a penalty of $9,634.

Citation No. 6683117 was issued under section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. 75.400 as follows:

Accumulations of combustible material in the form of coal fines was allowed to accumulate and make contact with a bottom frozen roller. The accumulations measured approximately 6ft. in width, 5ft. in length and 25 inches in height. This condition was observed approximately 30 ft. outby the slope belt tail piece.

(Ex. GX-15). The inspector determined that an injury was reasonably likely to occur and that the injury could be expected to result in lost workdays or restricted duty. He further determined that the violation was S&S, the company’s negligence was high, and three persons were affected. The Secretary proposes a penalty of $18,271.

a. Background Summary of Testimony

Inspector Lee testified that on February 23, 2009, he was inspecting the slope belt of the mine. (Tr. 1:238, 240) Lee has worked as an MSHA inspector for eleven years and has over 35 years of experience in the mining industry. (Tr. 1:235). The location of the violation on the slope belt was approximately 30 to 40 feet outby the location Inspector Morris cited in Order No. 6675150. (Tr. 1:240). Lee had decided to spot check this area because he had issued an order in the area a few weeks prior and to double-check the examiners who preshifted the slope belt thirty minutes earlier. (Tr. 1:240-41). Walking the belt line Lee saw accumulations under a roller from 30 to 40 feet away. (Tr. 1:241). The accumulations were touching the bottom of the belt and measured 25 inches in depth. (Tr. 1:241-42). Accumulations were observed on both sides of the roller with more on the outby side because the frozen roller was acting as a scraper on the return side of the belt. (Tr. 2:4-5). Lee testified that he observed the belt running and the roller not turning with the accumulations packed around the roller. (Tr. 1:242-43). Lee measured the accumulations to be approximately five feet in length and five feet in width, confined in the area around the roller. (Tr. :244-45, 247). The accumulations consisted of moist coal fines that had the potential to dry out. (Tr. :247). Inspector Lee issued one order and two citations based on the conditions he observed. (Tr. 1:246-47). Lee further testified that, based on his experience, the accumulations had been present for at least one shift because of the volume present. (Tr. 1:248). Lee reasoned that an examination on the belt line was performed around 45 minutes before his inspection at 3:45 p.m., and the next examination would not have been performed until six o’clock the next morning. (Tr. 1:249-50, 2:9).

Regarding Order No. 6683115, the inadequate exam violation, Lee testified that he designated it as S&S because there was an ignition source present. (Tr. 1:251). Lee reasoned that the “frozen” roller created a heat source that could ignite the coal fines and start a fire. (Tr. 1:251, 1:255). The roller was warm to the touch, but the exact temperature was not measured. (Tr. 1:251). Lee described the roller as flat on one side where the belt had been rubbing and was measured to be two inches wide and 47 inches long. (Tr. 1:251-52; Ex GX-16). The slope belt is along a main travel road, where smoke from a fire would affect anyone on the travel road. (Tr. 1:257). According to Lee, the hazard would be reasonably likely to occur because no one would be in the area to observe a fire. (Tr. 1:257-58). Lee further stated that the above characterization also applied to his designation of Citation No. 6683116, the machinery violation, and Citation No. 6683117, the accumulations violation, as S&S. (Tr. 2:10).

Lee further testified that he designated the violation in Order No. 6683115 as an unwarrantable failure because the condition was obvious. (Tr. 2:10). Lee did not have to kneel down to see the accumulations and the slope belt is the primary hazard area within the travel way. (Tr. 2:11). A few weeks beforehand, Lee issued an order for a similar issue: accumulations had built up around bottom rollers on the same slope belt and an exam was performed 40 minutes prior. (Tr. 2:12). The operator had been made aware of problems with examinations by MSHA; three or four inadequate exam violations had previously been issued. (Tr. 2:12-13). Lee determined, based on his experience, that the accumulations had existed for a period of time because of the amount compacted around the roller. (Tr. 2:13). In Lee’s opinion, the accumulations existed when the examiner examined the slope belt 45 minutes prior to Lee’s inspection. (Tr. 2:14). Lee further designated the order as high negligence because there were no mitigating circumstances; the examiner did not deal with the accumulations properly. (Tr. 2:16). The order was abated after the examiners were given additional training concerning reporting hazardous conditions. (Tr. 2:21).

Lee testified that he issued Citation No. 663116, the machinery violation, because the roller was not turning, which was evident by the flat spot on the roller. (Tr. 2:14). When the roller was taken out, the bearings were still working. (Tr. 2:14). Lee testified that when the accumulations became packed around the roller, the roller could no longer turn. (Tr. 2:14). Lee also designated this violation as high negligence for the same reasons as the inadequate exam violation above. (Tr. 2:17). Lee prepared the closeout report for the mine in March 2009, and section 75.400 violations had increased from the previous quarter. (Tr. 2:20). The belt was shut down and the roller was removed to abate this citation. (Tr. 2:22).

Inspector Lee issued Citation No. 6683117 because combustible material had accumulated around the slope belt. (Tr. 2:17). The violation was determined to be high negligence because approximately 60 section 75.400 violations had been issued since the first of the year. (Tr. 2:18-19; GX-17). The accumulations were shoveled and removed from the mine to abate this violation. (Tr. 2:22).

On cross-examination, Lee admitted that some of the citations issued in January 2009 had been vacated by a judge. (Tr. 2:23-24). Additionally, the closeout report only references categories of violations and not specific section violations. (Tr. 2:24). CO sensors were also located on the slope belt. (Tr. 2:33). Lee testified that he was traveling with Mike Cummins, the union representative, and Cliff Kanady, the safety manager, while performing his inspection. (Tr. 2:37).

Kanady testified that he has 40 years of mining experience and traveled with Inspector Lee in February 2009. (Tr. 2:43-44). Kanady did not notice any violations on the belt line until Lee showed him the frozen roller. (Tr. 2:45). The accumulations were not noticeable until Kanady “stooped over a certain amount;” the accumulations were on the outby side but not against the belt. (Tr. 2:46). Kanady testified that he considered the belt line to be clean and the walkway to be clear. (Tr. 2:47; Ex. R-5). On cross-examination, Kanady testified that he thought the roller looked new because it was still painted. (Tr. 2:51, 53).

Ronnie Hughes, mine manager, testified that he went to the cited area shortly after the order and citations were issued. (Tr. 2:57). The belt mechanic and Cummins were changing out the roller, with accumulations on the inby side. (Tr. 2:58). Hughes took photographs of the area during this time. (Tr. 2:59; E. R-6). Photograph 6A shows the flat spot on the roller, with paint still on the roller. (Tr. 2:59-60; Ex. R-6A). Hughes reasoned that the roller had never turned and did not know when the roller was installed, but during the midnight shift the belts are not running and the maintenance crew changes out rollers. (Tr. 2:60). Photograph 6B shows the roller still in the hangers from the outby side, with the belt on the right side. (Tr. 2:61). Photograph 6C is from the same perspective as 6B, with Hughes testifying that he was on his knees, bent over at the waist taking the photograph. (Tr. 2:62). Photograph 6D shows the roller from the inby side with accumulations shown. (Tr. 2:63). Photograph 6E is taken from the same perspective as 6D. (Tr. 2:63). According to Hughes, the accumulations were wet and damp. (Tr. 2:63). Photograph 6F shows Cummins helping the belt mechanic change the roller, with the top belt in view. (Tr. 2:64). Hughes states that the bearings were free on the roller after removal, but the accumulations were not packed around the bearings. (Tr. 2:65-66). At the time Hughes arrived at the violations to take photographs, he did not observe anybody shoveling in the area. (Tr. 2:68).

On cross-examination, Hughes testified that the bottom belt was around 24 inches from the ground. (Tr. 2:69). Hughes agreed that it was easier to see under the belt from a distance due to the slope of the floor. (Tr. 2:70). Hughes stated that the accumulations were “shaped like a pyramid with the bottom approximately four [feet] across and the point touching the roller and the belt.” (Tr. 2:70). He could not tell if any accumulations had already been removed by the time he arrived. (Tr. 2:71).

Scott Lawrence, the section foreman in February 2009, testified that he accompanied Hughes underground to the cited area. (Tr. 2:78). Lawrence stated that he could not see any accumulations until he got down on his knees to look underneath the belt. (Tr. 2:79). When he and Hughes arrived, miners were in the area working to raise the belt off the roller in order to change out the frozen roller. (Tr. 2:79-80). Lawrence testified that he believed the roller froze within a shift or half a shift because a flat spot does not take long to develop. (Tr. 2:81). The roller still had paint on it, suggesting that the roller never turned because paint would be gone in about an hour of use. (Tr. 2:82). The accumulations consisted of coal fines that were wet and damp. (Tr. 2:82). On cross-examination, Lawrence agreed that it was possible that accumulations could have caused the roller to freeze, but in this case the accumulations were not compacted even though accumulations were attached to the roller. (Tr. 2:85-86).

Dennis Morris, the mine examiner in February 2009, testified that he onshifted the slope belt on February 23, 2009, around 3:00 p.m. (Tr. 2:90, 92, 96). Morris stated that he would walk the west side of the belt and every 60 to 80 feet he would get down on his knees and look under the belt. (Tr. 2:91). During the examination Lawrence noted, “carbon flakes and fines under belt, top to bottom” in the record book. (Tr. 2:93; R-2). Lawrence stated that he did not observe the condition that Inspector Lee wrote up. (Tr. 2:93).

Charlie Hyers, mine examiner, testified that around 7:00 a.m. on February 23, 2009, he was on the day shift and examined the slope belt. (Tr. 2:103). Hyers remembers the roller in question because it was brand new and bright red, and it was turning at the time of his examination. (Tr. 2:104). Hayes also stated that it is not uncommon for a roller to stop turning on a belt and a flat spot would not take long to form because of the thickness of the slope belt. (Tr. 2:105).

Chad Barras, the Midwest regional safety director for Peabody Energy, testified that he is familiar with the above violation types from the training he received while he was a ventilation inspector for MSHA. (Tr. 2:115). As part of Barras’s current job with Peabody, he reviews MSHA and industry reports as well as reports from the mines in his region. (Tr. 2:114-15). Barras stated that he is familiar with the Bentley Report regarding the MSHA study on belt fire injuries. (Tr. 2:116; Ex. R-7). In the Bentley Report, from 1980 to 2005 there were no fatalities and no lost time from belt fires. (Tr. 2:117-18). The mine had fire protection systems located along the belt line consisting of CO systems, fire suppression systems, and belt slip detection systems that cannot be turned back on remotely. (Tr. 2:118-19). Barras also testified that the ignition temperature of processed coal at the mine is 880 degrees Fahrenheit and unprocessed coal or wet coal would raise the ignition temperature. (Tr. 2:119-20). Peabody has tested samples of “corn flakes” along the belt line in mines that it operates. When this material was tested at the Willow Lake Mine, it was 40% combustible. (Tr. 2:121). Additionally, Barras has used heat guns to determine operating temperatures of mining equipment. (Tr. 2:121). Belt rollers were measured to typically operate around 80 degrees Fahrenheit, with data showing a maximum temperature around 180 degrees Fahrenheit. (Tr. 2: 122). Barras testified that he believes Inspector Lee’s determination that each violation was reasonably likely to result in an injury is not correct. (Tr. 2:122). The accumulations were wet, the machine temperatures could not have been around 800 degrees Fahrenheit and fire protection systems were in place along the belt line. (Tr. 2:123-24). On cross-examination, Barras testified that on one occasion the mine had been cited for a fire suppression violation when the water within had been turned off. (Tr. 2:129-30). After the Bentley Report was issued in 2005, a belt fire occurred where two miners got lost in a belt fire and died. (Tr. 131).

b. Summary of Parties’ Arguments

The Secretary argues that the evidence established that sections 75.362(b), 75.1725(a), and 75.400 were violated. Coal accumulations were clearly visible to Inspector Lee and these accumulations had existed for more then a shift because the coal was packed around the belt roller. (Sec’y Br. 21-22). The belt roller was not in a safe condition because the roller was “frozen,” causing more accumulations and frictional heat. (Sec’y Br. 22). An examiner had also walked the belt line with the conditions present but did not take any action. (Sec’y Br. 22). All three violations are S&S because two ignition sources were present: (1) frictional heat between the belt and the frozen roller, and (2) frictional heat between the accumulations against the belt. (Sec’y Br. 23). The frozen roller had been “flattened” on one side from the belt line and was warm to the touch. Additionally, the accumulations were pressing against the running belt. These conditions would have continued to exist for a significant period of time because no one was working in the area and the next examiner would not have walked by until the next day. (Sec’y Br. 24). A fire was reasonably likely to occur due to these conditions. (Sec’y Br. 24). The examiner’s failure to record the hazardous condition exposed miners to injuries from a belt fire. (Sec’y Br. 24).

The inadequate examination violation was properly designated as an unwarrantable failure and the accumulations and equipment violations designated as high negligence because the condition was “extensive, obvious, posed a high degree of danger, existed long enough for miners to be exposed to the danger, and the mine had been placed on notice.” (Sec’y Br. 25). Lee walked the belt line no more than 45 minutes after the examiner and the conditions likely existed when the examiner had been there because of the volume of accumulations. The belt roller also had a flat spot on it, indicating that the roller had been frozen for some time. The condition was obvious because Lee observed the accumulations from 30 to 40 feet away. The operator had been on notice to more quickly remove accumulations on the slope tail belt due to previous citations and verbal communications by MSHA inspectors.

Big Ridge contends first that no violation for section 75.362(b) occurred because no hazardous condition existed for an examiner to report. (Big Ridge Br. 21). Morris, the operator’s examiner, did not observe any contact between accumulations and the belt or observe any frozen rollers. Coal flakes were noted for further action in the record, but generally the operator’s examiners performed an adequate exam by walking the entire belt line, stopping every 60 to 80 feet to look under the belt line with a cap light. Next, Big Ridge contends that the finding of an unwarrantable failure was inappropriate. (Big Ridge Br. 23). The condition was not obvious or extensive. The accumulations did not reach into the walkway and were only five feet wide and two feet high. Also, during the examination, the frozen roller, painted red, was not observed. The condition did not present a high degree of danger because the accumulations were wet, the roller was not hot, and the belt line had a working fire suppression system. Therefore, no aggravated conduct was present by the operator.

The designation of all three violations as S&S is also contested by Big Ridge because an injury-causing event was unlikely to occur. (Big Ridge Br. 25). The accumulations were neither extensive nor dry, making ignition difficult. The accumulations were mostly comprised of non-combustible material and no methane was present. If a fire were to occur, the presence of fire detection and suppression systems would reduce the spread of a fire and the likelihood of an injury. Big Ridge finally contests the high negligence designations of the accumulation violation and the equipment violation. (Big Ridge Br. 26). The section 75.400 violation was small in size, not obvious, and underneath the belt. The walkway within the area of the violation was narrow, four feet wide, and was not well lit. Finally, it was unclear when the conditions developed.

c. Discussion and Analysis

For the following reasons, I affirm Order No. 6683115 in all respects. Big Ridge violated section 75.362(b) because the on-shift examination was clearly inadequate. I credit the testimony of Inspector Lee as to the conditions he found. Based on the evidence presented at the hearing, I find that these conditions were a “hazardous condition,” as that term is used in the safety standard. This standard specifically directs mine operators to examine each belt conveyor haulageway and this particular belt haulageway is used to transport all of the coal out of the mine. I further find that these conditions were obvious and should have been discovered by the on-shift examiner. Inspector Lee saw the accumulations from a distance of about 40 feet. This examiner passed through the area about 45 minutes prior to the time Inspector Lee observed the condition. I find that the credible evidence demonstrates that the conditions had not changed significantly in those 45 minutes.

Conducting adequate pre-shift and on-shift examinations is crucial to maintain a safe environment in underground coal mines. On that basis I find that the violation was serious and S&S. Failure to perform adequate workplace examinations creates a measure of danger to safety that is reasonably likely to contribute to a hazard that will result in an injury of a reasonably serious nature. In this instance, coal fines were present that were 25 inches high in some places and were packed around the frozen roller. This condition created a significant safety hazard that should have been noted by the examiner and addressed by the operator. As stated above, I credit the testimony of the inspector as to the conditions he observed.

I also find that Big Ridge was highly negligent and that the violation was the result of its unwarrantable failure to comply with the safety standard. Inspector Lee had issued an order for a similar condition in the same general area along the slope belt a few weeks earlier. In addition, as discussed above, Inspector Morris issued an order for a violation of section 75.360(a)(1) along the slope belt on October 28, 2008. The operator had been placed on notice that its examiners need to perform examinations that are more thorough and comprehensive. The violation was obvious and it had existed for at least a shift. Big Ridge exhibited a serious lack of reasonable care with respect to this violation. A penalty of $20,000.00 is appropriate.

With respect to Citation No. 6683116 alleging a violation of section 75.1725(a), I find that the Secretary established a serious violation. It is clear that a roller was frozen about 30 feet outby the tail piece for the slope belt. Because it was frozen, it acted as a scraper and coal fines accumulated around the roller and also fell to the floor under the roller. It was this frozen roller that created the accumulation. I find that the condition had existed for some time because the belt had worn down the metal on the roller to the extent that there was a two-inch wide flat spot on the roller that extended almost the width of the belt. The remainder of the roller was still covered with paint. In all likelihood the roller had never turned or, if it turned at all, it did so for a very short period of time. I conclude that this equipment had not been maintained in a safe operating condition and it was not removed from service.

I find that the operator’s negligence was moderate. The evidence establishes that the cited condition was due to unusual circumstances. Given that the roller was still covered in paint, it is more than likely that it failed long before one would expect and the roller may not have ever functioned properly. When tested after it was removed from service, the bearings worked and the roller turned. Although examiners are expected to look for defective rollers, I hold that the failure of the operator to replace or repair this roller did not amount to high negligence.

With respect to Citation No. 6683117 alleging a violation of section 75.400, I find that the Secretary established the violation and that Big Ridge’s negligence was high. As stated above, a competent on-shift examination should have discovered this violation and the accumulations should have been removed. The conditions were rather obvious.

Whether Citation Nos. 6683116 and 6683117 were S&S is a closer question. The temperature at which the coal at this mine will ignite is rather high. I credit the testimony of Mr. Barras on this issue. Although the frozen roller was warm, it was unlikely that it would have gotten hot enough to ignite the coal fines, assuming continued mining operations. In addition, a high percentage of the accumulations were incombustible. Mr. Barras credibly testified that the combustible content of material that sticks to rollers at the mine is about 40%. (Tr. 120-21). The CO monitoring system and fire suppression system would activate in the event the accumulations started to smolder. I find that these two violations were not S&S. It was not reasonably likely that the hazard contributed to by the violations would result in an injury. It was unlikely that anyone would suffer a serious injury as a result of the violations, assuming continued mining operations. The violations were serious, however, because, in the event a fire started and all of the fire suppression systems failed, one or more miners could suffer from smoke inhalation.

A penalty of $8,000 is appropriate for Citation No. 6683116 and a penalty of $12,000.00 is appropriate for Citation No. 6683117.

2. Order No. 6683119

On February 26, 2009, Inspector Lee issued Order No. 6683119 under section 104(d)(2) of the Mine Act, alleging a violation of 30 C.F.R. § 75.360(a)(1) as follows:

An inadequate exam was made of the main north intake/primary escape way for the south side of the mine. One roof bolt had fell out of the roof exposing an area 8 ft. in width by 9½ ft. in length. This area was immediately adjacent to the lifeline. It was evident by at least one set tire tracks from the examiner’s ride on top of the fallen rock, (which resulted from the missing roof bolt) that this condition had existed for at least one shift. Other tire tracks in the cited area indicated that the examiners had been driving around this exposed area of unsafe roof for some length of time. There was no record of this hazardous condition in the mine record books.

(Ex. GX-21). The inspector determined that an injury was highly likely to occur and that the injury would be permanently disabling. He further determined that the violation was S&S, the company’s negligence was high, and one person was affected. The Secretary proposes a penalty of $17,301.

a. Background Summary of Testimony

Inspector Lee testified that on February 26, 2009, at 8:15 in the morning he issued Order No. 6683119 because he observed a roof bolt on the ground with fallen rock around in a travel area of the mine. (Tr. 2:136-37). He observed tire tracks on the ground change from the original pathway to avoid the debris on the ground. (Tr. 2:137). Additionally, there were tire tracks on top of the debris showing someone had driven over the top of the rocks. (Tr. 2:137). Some of the tracks went around these rocks. From this evidence Lee determined that the condition had existed for some time and an examiner would have been through the area with the condition present. (Tr. 2:138). The area in question is in the main north intake primary escapeway, 74 crosscut. (Tr. 2:139, 141). Lee described the condition as a 36 to 48 inch long roof bolt lying on the ground with about an eight to nine foot diameter area of rock, six to eight inches deep that fell from the roof. (Tr. 2:139-40). The roof bolt was a grouted type bolt. (Tr. 2:140). Lee testified that he did not see any flagging in the area and no tire tracks from heavy machinery were around. (Tr. 2:142, 145). Lee stated that an examiner would typically need to flag the condition and record it. (Tr. 2:144). This particular area did not see a lot of traffic, Lee noted. (Tr. 2:144). Also, the area was preshifted by examiners every shift because it was part of the route to get to the seals. (Tr. 2:146-47). Lee testified that he issued the order under the wrong standard, and the standard should have been under section 360(a)(1). (Tr. 2:151). Section 360(a)(1) requires that examinations occur in any location where miners are going to travel or work. (Tr. 2:152). The roof bolt was required as part of the Mine’s roof control plan. (Tr. 2:154).

Lee further testified that he determined that the condition was highly likely to result in an injury because the hazard was not properly dealt with, though the area has no known history of roof falls. (Tr. 2:155). The injury was designated as potentially permanently disabling because of the potential for large pieces of falling rock. (Tr. 2:156). The violation was designated as S&S because the roof system was weakened by the removal of a roof bolt and a lifeline is adjacent to the condition. (Tr. 2:156). The operator’s negligence was determined to be high because of previous inadequate exam violations in the quarter. (Tr. 2:157). Lee himself had written three to four inadequate exam violations within the quarter. (Tr. 2:160). Lee testified that every time that he had issued an inadequate exam violation he spoke with the operators. (Tr. 2:157). To abate the order mine management retrained the examiners on recognizing hazards. (Tr. 2:158). The violation was characterized as an unwarrantable failure because the condition was obvious and the operator knew it was having troubles with examinations. (Tr. 2:162). When Lee looked at the preshift paperwork, there were no notes regarding the fallen roof bolt. (Tr. 2:162). Lee spoke with Bart Schiff about the order and discussed the problems of inadequate exams. (Tr. 2:168). On cross-examination, Lee testified that the violation area was not a travelway but an intake and workers would typically not be in the area. (Tr. 2:171). Additionally, the area is not an active working section of the mine. (Tr. 2:178). The violations Lee relied on had not become final, and some subsequently had been vacated. (Tr. 2:179:80).

Schiff, the mine safety manager, testified that he had accompanied Inspector Lee on February 26, 2009. (Tr. 2:191). He was not with Lee when the condition was first encountered, but observed a roof bolt “sheared off” and lying on the ground with the plate and some rock. (Tr. 2:192-93). The roof bolt on the ground was not the entire roof bolt. (Tr. 2:193). The escapeway area at the time was not part of the two officially designated escapeways out of the working section. (Tr. 2:194). Schiff testified that he could not determine when the condition occurred. (Tr. 2:197). On cross-examination, Schiff stated that heavy machinery had not been in the area for a year or two, but did not think that any equipment sheared the bolt. (Tr. 2:198-99). He thought that the roof bolt might have been damaged during installation. (Tr. 2:200).

Kevin Rice, the mine examiner, testified that he had been an examiner for four to five years. (Tr. 2:206). On February 25 and 26, he was performing the preshift examinations in the area in question. (Tr. 2:209-10). Rice stated that on February 25, no roof bolt had fallen within the area, and then on the next day two timbers supported the roof and a roof bolt was on the ground. (Tr. 2:210). Rice wrote up a statement for Lee after he found out that an order was issued, because he had not personally spoken with Lee. (Tr. 2:213; Ex. R-10). On cross-examination, Rice testified that he had been driving around fallen rock in the intake because it is customary to leave rock on the ground when scaling down loose rock in between pins. (Tr. 2:215-16).

b. Summary of Parties’ Arguments

The Secretary argues that the examiner failed to record the unsupported roof in the north intake and thus violated section 75.360(a)(1). (Sec’y Br. 29). A roof bolt was lying on the ground with rocks around it, and tire tracks where located around and over the debris. This indicates that examiners had traveled through the area and knew about the hazardous condition. The violation was properly designated as S&S and highly likely because the missing roof support exposed miners to falling rocks. The violation was also the result of an unwarrantable failure because the condition was obvious, had existed for more than two examinations, and the operator was on notice for the quality of examinations.

Big Ridge contends that no violation existed because the roof bolt fell between the time Inspector Lee arrived and Rice’s prior examination and thus the condition had not been present during Rice’s exam. (Big Ridge Br. 29). It argues that the presence of tire tracks does not help establish the violation. Rice credibly testified that some material had previously fallen from the roof between roof bolts so these tracks are unrelated to the alleged violative condition.

c. Discussion and Analysis

There is no dispute that a roof bolt had fallen out at the location cited by Inspector Lee. What is not clear is when the bolt fell and what caused it to fall. The cited area, although required to be examined, was not a travelway or a designated escapeway. Mr. Schiff’s testimony that the bolt had not been properly installed is the most logical explanation. Only part of the bolt fell out. Heavy equipment had not been in the area for several years so it had not been recently damaged.

I find that the Secretary did not establish a violation because it is not at all clear when the roof bolt fell. Although Inspector Lee testified that there were tire tracks over fallen rock, Rice credibly testified that loose rock had been scaled down between pins in this area. (Tr. 2:215). Examiners may have driven over or around such loose rock. Rice testified that he only records roof conditions under these circumstances if he finds loose roof bolts, bolts that have fallen, or if so much material has fallen that it creates a hazard. He said that the cited roof bolt had not fallen at the time of his examination on February 25. (Tr. 2:210; Ex. R-10).

The Secretary bears the burden of establishing a violation of her safety standard. In this instance, I find that it is not clear when the roof bolt fell. There is conflicting evidence on this point. Rice was an experienced examiner and his testimony was credible. Given that the roof had been crumbling in that area, the presence of rock on the floor of the mine with tire tracks over and around the rocks does not establish when the bolt had fallen. The inspector’s analysis of the conditions was based almost entirely on his interpretation of the tire tracks. He assumed that the rock had fallen at the same time as the roof bolt. (Tr. 137). Based on the record, I find that his conclusions were speculative. Order No. 6683119 is hereby VACATED.

3. Citation No. 6683100

On February 9, 2009, Inspector Lee issued Citation No. 6683100 under section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.1103 as follows:

When the fire suppression system was tested at the belt drive and take-up area it would not give a warning to the belt monitor located on the surface. This condition was observed on the 4C belt. It was immediately taken out of service.

Ex. GX-26. The inspector determined that an injury was reasonably likely to occur and that the injury would be expected to include lost workdays or restricted duty. He further determined that the violation was S&S, the company’s negligence was moderate, and three persons were affected. Section 75.1103, entitled “Automatic fire warning devices” provides that “[d]evices shall be installed on all such belts which will give a warning automatically when a fire occurs on or near such belt.” 30 C.F.R. § 75.1103. The Secretary proposes a penalty of $1,795.

a. Background Summary of Testimony

Inspector Lee testified that he issued Citation No. 6683100 on February 9, 2009, at 6:20 p.m. because the fire suppression system did not produce a warning on the surface when tested. (Tr. 2:221-22). The fire suppression system was located on the 4C belt line and the warning indicates that there could be a fire at a specific location. (Tr. 2:222-23). The main purpose of the fire suppression system is to give early warnings to the operator in order to better control fires and reduce injuries. (Tr. 2:223-24). Lee testified that he was with Kanady and Greg Fort during his inspection of the fire suppression system. (Tr. 2:225). To check the fire suppression system, a test valve turns on water simulating what the system would do in the case of an actual fire. (Tr. 2:227, 233). Lee stated that Fort was the one who performed this task. (Tr. 2:233). When the test valve is on, the system will notify the belt monitor, located on the surface, that the belt line fire suppression system is working. (Tr. 2:229). The system has a five-second delay between when the valve is turned on to when the warning is received. (Tr. 2:228). According to Lee, the belt monitor, after noticing the warning, should alert the mine manager of the situation. (Tr. 2:230). Lee checks to see if the belt line stops and also waits for a call on the mine phone for the belt monitor on the surface to inform him of the warning. (Tr. 2:230-31). During the test, the belt line shut down as designed, but Lee never received a call from the monitor about there being a warning relayed above. (Tr. 2:233). Lee had another worker call up to the monitor to ask if a warning had been received on the 4C line, but no warnings had been received. (Tr. 2:235-36). Before Lee issued the violation, he tested the fire suppression system one more time, with the same result. (Tr. 2:237).

Lee further testified that he designated the violation as reasonably likely to result in injury because the warning is a significant part of the fire suppression system. (Tr. 2:239-40). Stopping the belt line and spraying water are not always sufficient to stop a fire within the mine. (Tr. 2:240). When the warning system is not working properly the early detection of a fire is lost, thereby increasing the possibility of injuries. (Tr. 2:241). Lee testified that lost work days or restricted duties could occur because of smoke inhalation from the fire. (Tr. 2:241). The violation was determined to be S&S because the smoke from a fire could cause a serious injury. (Tr. 2:244). The negligence was moderate because the operator might not have known that the system was not functioning properly. (Tr. 2:245). Three days prior, the system check showed that it was working properly. (Tr. 2:245). Lee determined that the additional presence of a CO monitoring system in the area had no effect on the violation because it is not very reliable. (Tr. 2:247). Lee abated the citation three days later when the test of the system showed a warning alarm was being received by the monitor above. (Tr. 2:250).

On cross-examination Lee testified that he did not write down in his notes that he tested the fire suppression system twice on February 9, 2009. (Tr. 2:251-52). Lee agreed that, under section 75.1103(4)(a), the belt must be equipped with automatic fire sensors and warning devices and that, under section 75.1101(10), carbon monoxide monitors or point heat sensors are required. (Tr. 2:256). Lee also stated that he did not have any data showing that CO systems were not reliable. (Tr. 2:259).

Fort, the Union representative, accompanied Inspector Lee during the testing of the 4C belt line fire suppression system. (Tr. 2:261). Fort testified that the system was tested twice and each time the monitor received no warnings. (Tr. 2:262-63). Furthermore, Fort stated that during this time frame at the mine, the CO system was having “a lot of trouble” and had many false readings, but none around the belt drive. (Tr. 2:265-66). On cross-examination, Fort testified that Inspector Lee turned the water valve on to test the fire suppression system. (Tr. 2:268). During the test, the belt shut down and the underground alarms went off. (Tr. 2:269).

Kanady testified that he did not recall testing the fire suppression system more than once or who actually opened the valves for the test. (Tr. 2:270-71). An underground alarm did go off by the belt line, however. (Tr. 2:271).

Butler, the belt foreman, testified that after the citation was issued the fire suppression system was tested again and the entire system worked fine. (Tr. 2:273-74). He opined that Lee did not let the water run long enough for the system to work. (Tr. 2:274). On cross-examination Butler stated that he did not personally re-test the fire suppression system and noted that all the belts in the mine were on the five-second delay. (Tr. 2:277, 279).

Jeff Klope, the electrical foreman, testified that there is a three-second delay in the local system and then a seven-to ten-second further delay on the network to scan the system. (Tr. 2:283). The delay could be up to thirteen seconds, but also could be less. (Tr. 2:284). MSHA requires that CO sensors be calibrated and checked. (Tr. 2:286). In February of 2009, Klope testified that the CO system in the mine was not experiencing any problems. (Tr. 2:287).

b. Summary of Parties’ Arguments

The Secretary argues that the operator violated section 75.1103 because the fire suppression system failed to send a warning to the belt monitor on the surface. (Sec’y Br. 32). Lee had tested several belt lines that day, all with the five-second delay, and the 4C line was the only one that did not send a signal to the surface. Lee let the water run for a sufficient time in order to bypass the delay. The violation was properly designated as S&S because the warning alarm failure will reduce the response time in a fire. (Sec’y Br. 33). The Secretary contends that in this instance the S&S designation should be evaluated while assuming the existence of an emergency because warning systems are designed to protect in the case of an emergency.

Big Ridge first argues that no violation existed because the wrong standard was cited and no violation existed. (Big Ridge Br. 30). Section 75.1103 only applies to point heat sensors or CO monitoring devices. Along the belt line, the fire warning device was the CO system. Section 75.1103(10) addresses the fire suppression system and does not require a warning alarm be sent to the surface. Big Ridge contests the performance of the test arguing that Lee or Fort did not let the system run for longer than five seconds. If a violation did exist Big Ridge also contests the designation of S&S. (Big Ridge Br. 33). The CO system on the belt line would produce a warning of a fire, and was functioning at the time of the test. A belt shut down would draw a response because it would halt production inby. Therefore, there would be no delay in response time if a fire had occurred.

c. Discussion and Analysis

The cited safety standard requires that devices be installed at belts that will give a warning automatically when a fire occurs. This section does not require fire suppression systems. As a consequence, whether the water-based fire suppression system was working is not covered by the safety standard. Assuming that the water-based fire suppression system was the only warning device installed at the cited location, it did provide a visual and audible warning when tested by the inspector. More importantly, Big Ridge had installed a CO monitoring system that would give a warning if a fire were detected. Although Fort testified that it would sometimes give false readings, there was no evidence that the CO monitoring system was not functioning properly at the time of the inspection.

Section 75.1103-1 provides that fire sensing systems installed on belt conveyors must “provide both audible and visual signals that permit rapid location of the fire.” 30 C.F.R. § 75.1103-1. The system cited in this instance did give audible and visual signals and miners underground would normally be able to determine where the system had been activated. Of course, if a signal had been received by the belt monitor on the surface, the precise location of a potential fire would have been immediately known. Nevertheless, I credit the evidence presented that Big Ridge uses the CO monitoring system as its fire detection system, which also notifies personnel on the surface when a fire has been detected.

Section 75.1101-10 is the safety standard that more closely fits the fire suppression system in use at the Willow Lake Portal. It provides that each water sprinkler system shall be equipped with a device designed to stop the belt drive in the event of a rise in temperature and requires that “each such warning device shall be capable of giving both an audible and visual warning when a fire occurs.” 30 C.F.R. § 75.1101-10. This standard clearly applies to the fire suppression system cited by the inspector and there is no indication that this standard was violated.

I find that a violation of section 75.1103 was not established. Citation No. 6683100 is VACATED.

III. SETTLED CITATIONS

The parties presented a settlement offer at the hearing for those citations that were not adjudicated at the hearing. The proposed settlement is as follows:

Citation/Order	Modification to Citation	Proposed Penalty	Amended Penalty
Lake 2009-326
6679522	Modify to 1 Affected	$9,634	$6,458
6674555	Modify to Non S&S	$1,944	$392
6674640		$1,304	$1,044
6683615	Modify to 3 Affected	$2,473	$807
9942532		$1,944	$1,944
6678792		$1,944	$1,944
6678795		$1,944	$1,944
6678796	Modify to Permanently Disabling; Partial Penalty Reduction	$3,996	$2,400
6679920		$3,405	$3,405
6679921		$1,657	$1,657
9942536	Modify to Moderate Negligence	$8,893	$2,678
LAKE 2009-436
6683974		$1,026	$923
7572890	Modify to Non S&S	$3,405	$688
6683095	Modify to 8 Affected	$9,634	$6,996
6682840		$12,248	$9,799
6683975		$2,748	$2,102
6683977		$2,473	$2,102
6683979		$2,473	$2,102
6683980		$2,473	$2,102
6683983		$2,678	$2,276
6683985		$2,473	$2,102
6683098	Modify to 3 Affected	$1,111	$363
6683987	Modify to Moderate Negligence	$2,901	$874
6683099	Modify to 3 Affected	$1,304	$426
6683101	Modify to Non S&S	$5,080	$1,026
6683991	Modify to Moderate Negligence	$2,901	$874
6683992	Modify to Reasonably Likely	$12,248	$5,503
6683993		$5,503	$5,503
6683994		$3,689	$3,136
6683104	Modify to Non S&S	$1,530	$309
6683995		$3,143	$2,892
6683105	Modify to Moderate Negligence	$3,143	$947
7572894	Modify to Non S&S	$3,996	$807
6683108		$3,143	$2,892
6683110	Modify to Non S&S	$5,080	$1,026
6683114		$4,689	$3,752
8414006		$3,143	$2,829
6680506		$1,795	$1,795
6683120		$11,306	$10,175
8414008		$3,143	$2,829
8414010		$5,080	$4,064
8414011		$6,458	$5,167
8414012	Modify to Non S&S	$8,893	$1,796
6680675	Modify to Moderate Negligence	$1,530	$461
LAKE 2009-705
6682989		$17,301	$17,301
8417664		$5,645	$4,516
LAKE 2009-706
6682990	Modify to 8 Affected	$48,472	$37,416
8417432		$2,901	$2,611
8417434	Modify to Non S&S	$1,657	$335
8417436	Modify to 4 Affected	$27,259	$19,793
8417437	Modify to 4 Affected	$2,473	$1,795
6682993	Modify to Permanently Disabling; Partial Penalty Reduction	$3,996	$2,400
8417438	Modify to Non S&S	$1,657	$335
8417439	Modify to Non S&S	$2,106	$426
8417440	Modify to Moderate Negligence	$14,373	$4,329
6682996	Modify to Permanently Disabling; Partial Penalty Reduction	$3,996	$2,400
84177441	Modify to Non S&S	$2,473	$500
8417442		$5,961	$5,961
8417443	Modify to Non S&S, Moderate Negligence	$6,458	$392
8417444		$2,106	$2,106
8417445		$3,996	$3,597
6682999	Modify to Moderate Negligence	$10,437	$3,144
8417446	Modify to Moderate Negligence	$5,080	$1,530
8417447		$3,405	$3,065
8417451		$1,412	$1,271
84177455		$15,570	$12,456
8417456	Modify to Non S&S, Moderate Negligence	$4,689	$285
8417458	Modify to Non S&S	$1,795	$362
8418003	Modify to Non S&S, Moderate Negligence	$6,458	$392
8418004		$2,282	$2,054
8417680	Modify to Non S&S	$5,503	$1,111
Total Settlement Amount: $247,194

I have considered the representations and documentation submitted and I conclude that the proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Act.

III. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are not disputed. (Ex. GX-41). At all pertinent times, Big Ridge, Inc., was a large mine operator. The violations were abated in good faith. The penalties assessed in this decision will not have an adverse effect on Big Ridge’s ability to continue in business. The gravity and negligence findings are set forth above.

IV. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

Citation/Order No. 30 C.F.R. § Penalty

LAKE 2009-325

6675150 75.400 $15,000.00

6675151 75.360(a)(1) 20,000.00

LAKE 2009-326

6678829 75.1722(b) 1,000.00

6678835 75.1722(b) 4,000.00

LAKE 2009-435

6683115 75.362(b) 20,000.00

6683119 75.360(a)(1) VACATED

LAKE 2009-436

6683100 75.1103 VACATED

6683116 75.1725(a) 8,000.00

6683117 75.400 12,000.00

LAKE 2009-706

8417452 75.400 10,000.00

SUBTOTAL $90,000.00

SETTLED CITATIONS 247,194.00

TOTAL PENALTY $337,194.00

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or VACATED as set forth above. Big Ridge, Inc., is ORDERED TO PAY the Secretary of Labor the sum of $337,194.00 within 40 days of the date of this decision.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Tyler P. McLeod, Esq. and Francesca Cheroutes , Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)

R. Henry Moore, Esq., and Jason Webb, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA 15222 (Certified Mail)

RWM

SECRETARY OF LABOR,	:	CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH	:
ADMINISTRATION (MSHA),	:	Docket No. LAKE 2009-325
Petitioner,	:	A.C. No. 11-03054-175456-01
	:
	:	Docket No. LAKE 2009-326
	:	A.C. No. 11-03054-175456-02
	:
	:	Docket No. LAKE 2009-435
v.	:	A.C. No. 11-03054-180530-01
	:
	:	Docket No. LAKE 2009-436
	:	A.C. No. 11-03054-180530-02
	:
	:	Docket No. LAKE 2009-705
BIG RIDGE, INC.,	:	A.C. No. 11-03054-195111-01
Respondent.	:
	:	Docket No. LAKE 2009-706
	:	A.C. No. 11-03054-195111-02
	:
	:	Willow Lake Portal

Appearances:	Tyler P. McLeod, Esq,, and Francesca Cheroutes, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner; R. Henry Moore, Esq., and Jason Webb, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for Respondent.
Before:	Judge Manning