FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

202-434-9981/tele 202-434-9949/fax

January 5, 2012

DECISION

Appearances:  Tyler McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor;

Arthur Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Big Ridge Incorporated.

Before:            Judge Zielinski

            This case is before me on a Petition for Assessment of Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition alleges that Big Ridge Incorporated is liable for five violations of the Secretary’s Mandatory Safety Standards for Underground Coal Mines, and proposes the imposition of civil penalties in the total amount of $28,506.00. A hearing was held in Evansville, Indiana, and the parties filed briefs after receipt of the transcript. The parties settled one of the violations prior to the hearing. Remaining at issue are four violations for which the Secretary has proposed penalties in the amount of $24,506.00. For the reasons that follow, I find that Big Ridge committed the violations and impose civil penalties in the total amount of $14,000.00, for the contested violations.

Findings of Fact - Conclusions of Law

            At all times relevant to these proceedings, Big Ridge operated the Willow Lake Portal Mine (“WLPM”), a large underground coal mine located in Saline County, Illinois. The mine operated five super units using the room and pillar mining process. It had miles of belts, and travel to the furthest units could take 45 to 60 minutes. WLPM was a “gassy” mine, liberating over one million cubic feet of methane in a 24-hour period, and was subject to five-day spot inspections under the Act. WLPM operated three shifts, a day shift starting around 6:30 a.m., an afternoon shift starting at approximately 3:30 p.m., and a midnight, maintenance, shift starting at approximately 11:00 p.m.

            In September 2009, Daniel Ramsey, an MSHA ventilation specialist at the time, conducted a six-month review of WLPM’s ventilation plan. The review entailed inspecting the mine, checking air readings, determining whether the approved ventilation plan was appropriate for the mining conditions, and ensuring that it was being complied with. Ramsey had over 30 years of mining experience before joining MSHA in 2003, and had inspected the WLPM numerous times. Ramsey found that Big Ridge was not complying with its approved ventilation plan and issued one of the orders at issue in this case.

            Another MSHA inspector, Larry Morris, was involved in completing a regular quarterly inspection of the mine, and issued the three remaining violations. Morris is also a highly experienced inspector, having worked in the coal industry for some 30 years, before joining MSHA in 2006. He also had inspected the WLPM numerous times.

            The respective violations are discussed below.

Order No. 8418235

            Order No. 8418235 was issued by Ramsey at 9:00 a.m., on September 11, 2009, pursuant to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.370(a)(1), which requires that mine operators develop and follow a ventilation plan approved by the MSHA District Manager. The violation was described in the “Condition and Practice” section of the Order as follows:

The approved ventilation plan was not being followed on Unit-3, MMU 013. A check curtain has been installed in the last open crosscut between #7 and #8 entries at the 106+98 footage mark, short-circuiting the ventilation through the first crosscut outby at the 106+20 footage mark between #7 and #8 entries. Only 7,371 cfm could be measured in the last open crosscut. The curtain was intentionally installed in this location and the section foremen were measuring the return air in the outby crosscut, 106+20.

A check curtain installed in the last open crosscut is not in the approved ventilation plan, also the approved ventilation plan requires the return air reading to be measured in the last open crosscut in line with the stopping line.

Ex. G-1.

            Ramsey determined that it was unlikely that the violation would result in an injury, that any injury would result in lost work days or restricted duty, that the violation was not significant and substantial (“S&S”), that eight persons were affected, that the operator’s negligence was high, and that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty in the amount of $4,099.00 was assessed for this violation.

            Big Ridge contends that there was no violation, and challenges the negligence and unwarrantable failure findings, as well as the amount of the proposed penalty.

The Violation

            Unit 3 of Big Ridge’s WLPM consisted of a “super-section,” i.e., two mechanized mining units (“MMUs”) operating on separate splits of air. MMU 013 was on the left side and MMU 003 was on the right. Eight entries were being mined, numbered from right-to-left facing inby. Ventilation air in the 013 MMU was coursed inby in the intake entries, entries #4 and #5, traveled across the faces and out the #8 return entry. Big Ridge’s approved ventilation plan specified that a “minimum of 20,000 cfm [cubic feet per minute] will be maintained in the last open cross-cut with two or three open cross-cuts.” Tr. 80-81; Ex. G-3 at 2. Diagrams of “typical face ventilation” schemes were included in the plan. An asterisk on the diagrams showed the location where the required air reading was to be taken, which was in the most inby cross-cut in the line of stoppings separating the return air course from the intake and neutral air courses. For the 013 MMU, the location was in the most inby crosscut between entries #7 and #8. Tr. 80-82; Ex. G-3 at 5, 6. The diagrams were consistent with the definition of “last open crosscut” in the Secretary’s regulations, which state: “The last open crosscut is the crosscut in the line of pillars containing the permanent stoppings that separate the intake air courses and the return air courses.” 30 C.F.R. § 75.360(c)(1).

            The layout of MMU 013 as of September 11, 2009, is depicted on a map of the section. Ex. G-4. At that time, mining was advancing only on entries #1 through #6. On September 9, 2009, the 013 MMU had holed into old works that had been mined in January of 2009, and the extensions of entries #7 and #8 had been mined months earlier to a point six crosscuts inby. At the time of the inspection on September 11, entries #4 through #6 had been advanced an additional four crosscuts, and the continuous miner was in the #6 entry. Entry #7 was separated from entry #8 by permanent stoppings, with the exception of two open crosscuts. The most inby crosscut, the last open crosscut, was designated 106+98. The next crosscut outby was designated crosscut 106+20. Crosscut 106+98 was a normal-sized crosscut. However, crosscut 106+20 had been mined to a height of 12-14 feet, to accommodate a belt. Consequently, it could not be easily closed-off with a check curtain. Ventilation air flowed across the working faces, and through a crosscut to entry #7. It then flowed inby in entry #7 and over to the #8 return entry through the two open crosscuts, restricted only by any check curtains hung in the crosscuts. No mining had been conducted in the #7 and #8 entries since the old works had been holed into on September 9. While it is not unusual to develop return entries in advance of other entries, it was unusual to hole into old “stubbed off” works. Chad Barras, safety director for the Midwest Division of Peabody Energy, Big Ridge’s parent company, testified that old mains or works were mined into only about once a year.

            Daniel Dixon was the Unit 3 midnight shift foreman who conducted the preshift examination for the oncoming day shift on September 11, 2009. He measured return air flow on the 013 MMU at 18,900 cfm, less than required under the ventilation plan. His “low air” reading was called out and recorded on the preshift examination book. Ex. G-5. He also called Thomas Myers, Jr., an assistant mine manager on the midnight shift, and reported the low air reading to him.

            Myers went to the section to investigate and correct the low air problem, so that the oncoming day shift - a production shift - could mine coal. He took an air reading and measured the flow at 20,674 cfm, sufficient to proceed with mining. Tr. 140, 148. Myers did not adjust curtains or take any other steps to increase air flow. He explained that he used a “Davis Anemometer,” which he has found gives him a “better” reading, and often produces an acceptable result where measurements made by other means showed problems. Tr. 149-50. Myers did not take his measurement in the last open crosscut. Rather he took it in the#7 entry just outby crosscut 106+20, the next-to-last open crosscut, and indicated the location by placing a green dot on a map of the section. Tr. 137-38; Ex. G-4. He believed that it was reasonable to take the reading at that location because the #7 and #8 entries were part of the old works and all of the return air that had ventilated the working faces, through entry #6, had to flow through the #7 entry at that location before it flowed through crosscuts 106+20 and 106+98 into entry #8. Tr. 138.

            Roy Shavez, the oncoming Unit 3 day-shift foreman, saw the low air notation on the preshift examination book when he reviewed it prior to the start of the shift. Tr. 164. He met Myers as he arrived on the section. Myers told him that the low air had been corrected, and discussed with him the location where air readings should be taken. Tr. 166. Shavez instructed his crew to tighten ventilation curtains and double them if necessary; he then worked on curtains himself. He took an air reading in the #7 entry, where Myers had taken his, and measured more than 20,000 cfm before he started mining. Tr. 169-70.

            When Ramsey arrived at the mine for the inspection, he reviewed the books in which results of preshift and onshift examinations were recorded. He noted that “low air” had been reported on Unit 3 during the preshift examination immediately prior to the beginning of the day shift, i.e., the measured air flow was less than the required 20,000 cfm. Tr. 96-99, 110; Ex. G-5. He traveled to the section and inspected the area of the crosscuts between entries #7 and #8, and found a check curtain hung in the last open crosscut, 106+98. The next outby crosscut, 106+20, which should have been closed off with a check curtain or a permanent stopping, was completely open. The combination of the open crosscut at 106+20 and the check curtain in 106+98 resulted in a substantially reduced flow of air in the latter. Ramsey measured the flow in crosscut 106+98 at 7,371 cfm, well below the 20,000 cfm required under the ventilation plan for active mining, which was ongoing during his inspection. Tr. 85. He concluded that there was insufficient air flowing to the faces in entries #7 and #8, and that WLPM was operating in non-compliance with its ventilation plan.

            Ramsey testified that he spoke with the day-shift foreman, Shavez, who informed him that he had taken air readings in the next-to-last open crosscut, 106+20 and, while he denied hanging the curtain in crosscut 106+98, stated that it had been hung because the roof in crosscut 106+20 was too high to hang a check curtain. Tr. 90-91. Shavez denied knowledge of the curtain in crosscut 106+98, and explained that he told Ramsey, in response to a question, that the curtain may have been hung there because crosscut 106+20 was too high. Tr. 171-75. He speculated that one of his men may have hung the curtain in crosscut 106+98 when they were trying to improve ventilation at the start of the shift and that, if he had seen it, he would have taken it down because it would reduce overall air flow. Tr. 171-73, 182-83, 189. Rodney Shires, a union representative who accompanied Ramsey, confirmed the presence of a check curtain in crosscut 106+98, and corroborated Shavez’s description of his conversation with Ramsey, i.e., he was speculating as to the reason the curtain had been hung there. Tr. 117-20; Ex. G-21.

            In order to abate the violation, a scoop was parked in crosscut 106+20 and de-energized. The crew then stood on the scoop, hung check curtains from the roof and draped curtains over the scoop. That closed off the crosscut, forcing sufficient air through crosscut 106+98. The abatement process took about 15 minutes. Tr. 103.

            Respondent argues that crosscut 106+98 was not the last open crosscut because it did not separate intake from return air. Respondent also argues that the ventilation plan diagrams, on which the location for the air reading is specified, depict “typical” mining schemes, and that mining on the 013 MMU was not typical because the unit had mined into old works. Neither argument is persuasive.

            Respondent’s first argument ignores major components of the regulatory definition. As noted below, ventilation air became return air once it passed entry #6, the last working place on the section. Respondent argues that crosscut 106+98 was not the last open crosscut because it did not separate intake from return air. However, as previously noted, section 75.360(c)(1) specifies that: “The last open crosscut is the crosscut in the line of pillars containing the permanent stoppings that separate the intake air courses and the return air courses.” (emphasis supplied). Entry # 8 was the return air course, and entries #4 through #7 were either intake or neutral air courses. The line of stoppings separating entry #8 from the other entries ran up the line of pillars between entry # 7 and entry #8, and the last open crosscut had to be in that pillar line. The fact that the air entering entry #7 was return air does not alter that conclusion.

            As to the second argument, Barras opined that the ventilation plan did not address a situation where old works were holed into because Big Ridge was not then mining in a typical situation. He further explained that at the time there was no requirement to submit new ventilation plans when old works were encountered. It was not until August 2010 that MSHA issued a Program Information Bulletin clarifying the term “air changes” and requiring the submission of plans addressing ventilation issues when holing into old works. Tr. 200. However, Barras agreed that return air measurements are typically taken in a crosscut in the line of stoppings separating the return air course from other air courses. Tr. 202-03. Myers and Shavez testified that taking the air measurement in the #7 entry just outby crosscut 106+20 was reasonable because all of the return air that had ventilated the working faces had to pass through that location. Tr. 138-39, 167. Return air is defined in the Secretary’s regulations, in part, as “air that has ventilated the last working place on any split of any working section.” 30 C.F.R.

§ 75.301. Since the face in entry #6 was the last working face, ventilation air became return air once it passed the continuous miner in entry #6. Tr. 106-07, 147, 180, 206. However, Myers and Shavez conceded that nothing in the ventilation plan sanctioned taking the air reading in the #7 entry. Tr. 146, 178-79.

            The approved ventilation plan specified that the required air reading was to be taken in the last open crosscut, in the line of stoppings separating the return entry from the other entries, i.e., in crosscut 106+98. Big Ridge did not take readings in that location; rather a check curtain had been hung there. The actual air flow in the last open crosscut, as measured by Ramsey, was 7,371, well below the required 20,000 cfm. While the ramifications of taking the measurements in the #7 entry were minimal, or non-existent, Big Ridge’s actions were not in compliance with the ventilation plan. I find that Big Ridge failed to comply with its approved ventilation plan, in violation of the standard.

Unwarrantable Failure - Negligence

            In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving Commission's unwarrantable failure test).

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 Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

            On the face of it, this is almost a classic case of unwarrantable failure. An assistant mine manager and a section foreman, both agents of Big Ridge, took critical air readings at a location that was not in conformance with the ventilation plan. Had readings been taken at the specified location they would, at least technically, not have been sufficient to allow mining, which Respondent was doing at the time. It had to have been obvious that the readings were not taken in the last open crosscut. The “speculative” response by Shavez, to the effect that the curtain in crosscut 106+98 may have been hung because the roof in crosscut 106+20 was too high to close off with a curtain, was undoubtedly accurate. Big Ridge’s foremen were almost certainly taking the return air reading in crosscut 106+20, or in entry #7, for that reason. In fact, it is highly likely that Dixon took his reading there, rather than in crosscut 106+98, because there was no means of closing crosscut 106+20 sufficiently to allow him to get anywhere close to the 18,900 cfm he measured when he conducted the preshift examination. Tr. 132.

            However, it is apparent that the mining situation became atypical when the old works were holed into on September 9. It is likely that there were initially five open crosscuts between entries #7 and #8 in the old works. Stoppings were built up to crosscut 106+20, and one should have been built in that crosscut if it could not have been effectively closed with curtains. However, it posed problems because of its height, and Big Ridge did not plan to be mining in that area much longer. In fact, mining in the area ceased on September 15, four days after the inspection. Tr. 198. Meyers and Shavez were correct in concluding that taking the measurement in entry #7 just outby crosscut 106+20 would provide an accurate measurement of the return air that had ventilated the reduced number of working faces. If crosscut 106+98 had been effectively closed with a check curtain, an accurate reading could also have been obtained in crosscut 106+20, although that too would not have been a permissible location under the ventilation plan.

            I find that when the 013 MMU holed into the old works, Big Ridge was confronted with an unusual situation, there would have been at least five open crosscuts between entries #7 and #8, and the next-to-last crosscut, 106+20, had a much greater height than the others. Rather than erect ventilation controls that would have forced the air flow through the last open crosscut, it decided to measure the return air in the #7 entry, or in the 106+20 crosscut, for the few days it would be mining in that area. While the location in the #7 entry provided an accurate measurement of the return air flow, it clearly was not in the last open crosscut, as required by the plan.

            Big Ridge argues that it acted in good faith, on an objectively reasonable belief that it was actually in compliance with the applicable law, and that its conduct cannot be considered to be the result of unwarrantable failure if it is later determined that its belief was in error. See IO Coal Co., 31 FMSHRC 1346, 1357-58 (Dec. 2009). The argument is rejected. Any belief that air readings were being taken in the last open crosscut, which was required under the plan, could not have been reasonable, and it is questionable whether those taking the readings could have believed, in good faith, that they were complying with the plan. However, I find that Big Ridge’s agents had a good faith and objectively reasonable belief that the readings accurately measured the flow of return air that had ventilated the working faces. I find Big Ridge’s negligence with respect to the violation to have been high, at least as to the technical violation of failing to take the measurements in the last open crosscut.

            An important factor in the unwarrantable failure analysis is the degree of danger posed by the violation.   IO Coal, 31 FMSHRC at 1355; Spartan Mining Co. 30 FMSHRC 699, 714-15, 722 (Aug. 2008) (damaged cable presented a condition of high danger to miners, failure to withdraw miners after mine fan went out exposed miners to obvious danger and serious hazards). Here, there was no degree of danger to miners posed by the violation because the location where the measurements were taken provided accurate readings of the volume of air ventilating the working faces, which was the intent of the ventilation plan’s requirement.

            Ramsey was concerned that most of the air was short circuiting through the 106+20 crosscut, and there was insufficient air ventilating the #7 and #8 faces. Tr. 84. The purpose of requiring 20,000 cfm of return air is to assure the dilution and removal of methane, dust and other noxious gases generated in the mining process. Most of the methane and dust is produced during active mining. Tr. 139. After the hole-through, there was no active mining in the #7 and #8 entries. They had been mined months before. The measurements taken by the foremen and Meyers assured that there was a minimum of 20,000 cfm of air flowing across the working faces, such that dust, methane and other gases were effectively disbursed. Ramsey concluded that the violation was unlikely to result in an injury because, despite the fact that the mine liberated over one million cubic feet of methane in a 24-hour period, he detected no methane in the area. No mention was made of dust or other accumulations, and there is no evidence that mining was conducted at any time when the return air flow was less than the 20,000 cfm specified in the ventilation plan. I find that the violation posed no probability of injury, and that no persons were affected.

            The violation was not extensive, Big Ridge had not been put on notice that additional compliance efforts were necessary, and pre-order effort to abate the condition is not a relevant factor here.

            On the facts of this case, I find that, while Big Ridge’s negligence in failing to comply with its ventilation plan was high, it did not rise to the level of unwarrantable failure. The absence of danger to miners is a very important consideration. While Big Ridge’s actions did not conform to the plan, they were correctly calculated to assure that the plan’s objective of 20,000 cfm of air flow across the working faces was fulfilled. Its actions cannot properly be characterized as indifference, serious lack of reasonable care, or reckless disregard for the safety of miners.

Order No. 8417559

            Order No. 8417559 was issued by inspector Morris at 11:00 a.m., on September 14, 2009, pursuant to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.400, which requires that “Coal dust, including float coal dust deposits 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. The violation was described in the “Condition and Practice” section of the Order as follows:

Combustible materials, in the form of hydraulic oil, has been allowed to accumulate in the cross cut at the surveyor’s station #97+33 where the temporary diesel fuel station for the Main West is located. Oil up to 3 inches in depth for a distance of approximately 40 feet and a width of from 1 to 3 feet is present in this cross cut. This violation is an unwarrantable failure to comply with a mandatory standard.

Ex. G-7.

            Morris determined that it was unlikely that the violation would result in an injury, that any injury would result in lost work days or restricted duty, that the violation was not S&S, that six persons were affected, that the operator’s negligence was high, and that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty in the amount of $4,810.00 was assessed for this violation.

The Violation

            Morris was conducting the latter stages of the quarterly inspection of the WLPM in mid-September 2009. On the day in question he was accompanied by miners’ and company representatives when he inspected a temporary fuel station adjacent to the Main West travelway. The station consisted of a portable car or trailer with two tanks mounted on it, one containing diesel fuel and the other containing hydraulic oil. The car/trailer was positioned in a crosscut just off the travelway. Miners using the station would pump oil or fuel from the temporary station’s tanks into cans and take it to equipment parked in the travelway.

            The crosscut extended from the south rib of the travelway approximately 50 feet to a stopping. The trailer was about nine feet wide and 20 feet long and was adjacent to the east rib of the crosscut. Morris observed a pool of hydraulic oil along the west rib of the crosscut. It ranged up to three inches deep, one-to-three feet wide and approximately 40 feet long, and extended to within five feet of the travelway rib. The pool of oil was depicted in a sketch in Morris’ notes. Tr. 16-18, 21-23; Ex. G-20.

            Morris determined that the oil was combustible material that had been allowed to accumulate in violation of the standard. He also determined that the accumulation would propagate a fire or explosion, but that it was not likely to result in an injury because there was no ignition source present. Any injury to affected persons, the six-person mining crew, would have entailed lost work days or restricted duty.

            Big Ridge challenges the unwarrantable failure designation as well as the amount of the assessed penalty.

Unwarrantable Failure

            The Secretary argues that the unwarrantable failure designation should be sustained because the condition was extensive, obvious to management and mine personnel, existed prior to the start of the shift, and the mine had a significant history of accumulations violations that should have put it on notice that greater compliance efforts were necessary. Big Ridge disputes each of the Secretary’s arguments.

            The extent of the condition

            The pool of oil was approximately 40 feet long, one to three feet wide and up to three inches deep. It ran along the west rib of the crosscut, and extended to within about five feet of the travelway’s south rib. The floor of the mine in the crosscut declined in two planes, toward the west rib and toward the stopping. Tr. 33. Consequently, the deeper and wider portions of the pool would most likely have been at the stopping end of the crosscut, some 45 feet away from the edge of the travelway. The condition was abated by applying rock dust to the pool of oil, because there was no other means to remove it. Tr. 33. Miners had to “go out and get the rock dust” and it took five men a total of 40 minutes to abate the condition. Tr. 33. It is likely that most of that time was devoted to obtaining the rock dust. Considering the size and location of the pool, and that the higher end, nearer the travelway, was most likely of minimal depth, I find that the violation was not extensive, at least to the point of being an aggravating factor in the unwarrantable failure analysis.

            Obviousness – duration – knowledge of mine management

            Morris believed that Big Ridge knew or should have known of the violation because several members of management had inspected and/or passed the fuel station while the pool was there. While he agreed that he did not know how long the pool had been there, he believed that it would have taken a considerable amount of time to accumulate that volume of oil. Tr. 23. The Secretary contends, and I agree, that the pool would have existed substantially as Morris saw it, when the preshift examination for the day shift was conducted, i.e., at least one shift. Daniel Dixon, the midnight shift foreman, conducted the preshift examination, but did not see the oil pool. Tr. 54. He did see three pallets of oil cans stored in the crosscut that would have been close to the area where the pool was depicted on Morris’ sketch. Tr. 52-53, 58-59. He was aware that Big Ridge was “transitioning” from use of cans to tanks, because citations had been issued for conditions related to the presence of cans. He directed that the pallets be removed, and they apparently had been removed prior to issuance of the order. Tr. 52-54.

            As to the presence of managers other than Dixon, shift foremen typically drove man trips into and out of the section at the shift change, and Morris had passed two mine managers exiting the mine, who would have driven past the fuel station on their way into and out of the mine.

Tr. 20-24. However, it is highly unlikely that the pool of oil would have been seen by an individual passing by in the travelway. The travelway and crosscut were not lit. Consequently, lights on mobile equipment and miners’ cap lamps provided the only illumination, and there was no light source at the stopping end of the crosscut that could have reflected off the surface of the pool. Tr. 43. Morris conceded that operators of mobile equipment using the travelway would have to focus on roadway and roof conditions, and that Big Ridge had trouble maintaining some travelways such that there was no “right-hand side going in; left-hand side coming out” travel pattern because equipment typically had to maneuver side-to-side. Tr. 47. Morris agreed that equipment operators who would have entered the crosscut to use the fuel station were “almost all” hourly employees. Tr. 33. While Morris believed that there were some salaried personnel who operated such equipment, there is no evidence that such individuals would have been at the fuel station while the pool of oil existed.

            Morris testified that he saw the pool of oil as soon as he “walked over” to the fuel station, i.e., it would have been illuminated with his cap light. Tr. 34. Notes taken by Big Ridge’s representative, who no longer worked for Big Ridge, indicated that it took Morris “20 minutes to find” the oil pool. Tr. 66; Ex. R-13. I place virtually no weight on that evidence. I find that the pool should have been seen when illuminated by the cap lamp of a miner walking into the crosscut, but not by personnel driving by the crosscut in the travelway. Dixon should have seen the pool when he conducted the preshift examination. However, his attention was apparently focused on the pallets of cans, which may have obstructed his view of the pool to some extent. He did take steps to address conditions in the crosscut, which evidences effort on the part of Big Ridge to attend to the presence of combustible materials stored in that location. I find the length of time the violation existed, obviousness, and management knowledge factors to be only slightly aggravating in the unwarrantability analysis.

            Notice of need for greater compliance efforts

            Morris had printed out a history of violations for the WLPM that showed the issuance of over 150 violations of section 75.400 from January through September 2009. Tr. 25-28; Ex. G-10. Morris had given Big Ridge verbal warnings about accumulations violations, and had increased the negligence designations on such violations to “high” because such violations had been issued on more than three or four occasions. Tr. 28-29. However, many of the violations on Morris’ listing remained in contest. Tr. 40-42. The listing addressed all section 75.400 violations, a very broad standard that included coal accumulations along belts and on mobile equipment, as well as possible accumulations of trash. Tr. 40-41. Morris did not recall, and the listing did not indicate, whether any of the previous accumulations violations involved temporary fuel stations or pools of oil. Tr. 40-42, 44-45.

            The Secretary need not prove the issuance of “violations involving the same regulation and occurring in the same area within a continuing time frame” in order to establish prior notice. IO Coal Co. Inc., 31 FMSHRC at 1354; San Juan Coal Co., 29 FMSHRC at 131. Nevertheless, the Secretary’s position would be strengthened considerably where some nexus between prior violations and the subject violation can be shown, e.g., a relevant consideration might be whether increased compliance efforts in response to the previous violations would have addressed the subject condition. I have previously held that, in order to establish that an operator had been put on notice that additional compliance efforts were needed to address a certain type of accumulation, the Secretary was required to show more than a history of prior citations for violations of that broad standard. Cumberland Coal Resources, LP, 31 FMSHRC 137, 156

(Jan. 2009) (ALJ) (unrelated finding reversed, 32 FMSHRC 442 (May 2010)). Here, as discussed infra, the accumulations violations appear to have generally involved coal fines and similar materials, a substantial number having occurred on mobile equipment. The accumulation in question, a pool of oil at a temporary fuel station, was somewhat unique and likely would not have been addressed by compliance efforts directed toward the previously cited conditions.

I find the prior notice factor here to be neutral.

            Danger to miners

            As noted previously, whether the violative condition posed a high degree of danger to miners is an important element in the unwarrantability analysis. Morris determined that the violation was unlikely to result in a lost work days or restricted duty injury, and that it was not S&S. The accumulations did not pose a high, or even a significant, degree of danger to miners.

            Conclusion

            As noted above, the length of time the violation existed, obviousness, and management knowledge factors weigh slightly in favor of a finding of unwarrantability. Pre-order abatement effort is not a relevant factor, and the extensiveness and notice of a need for greater compliance effort factors are neutral. Weighing heavily against an unwarrantability finding is the fact that the violation did not pose a high degree of danger to miners. On consideration of all relevant factors, I find that the violation was not the result of Big Ridge’s unwarrantable failure, but that its negligence was moderate.

Order No. 8417566

            Order No. 8417566 was issued by Morris at 7:35 a.m., on September 16, 2009, pursuant to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.400, which was described in the “Condition and Practice” section of the Order as follows:

The company #DT-07 diesel truck, located on the surface, has an accumulation of combustible materials, in the form of oil, oil saturated coal fines and loose coal, diesel fuel and diesel fuel saturated material on it. The accumulations range from a film of oil and diesel fuel to approximately 1 inch of oil and diesel fuel saturated coal fines, loose coal, and materials and are present in the engine and transmission compartments, the hydraulic tank and the fuel tank. This is an unwarrantable failure to comply with a mandatory standard.

Ex. G-11.

            Morris determined that it was unlikely that the violation would result in an injury, that any injury would result in lost work days or restricted duty, that the violation was not S&S, that four persons were affected, that the operator’s negligence was high, and that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty in the amount of $4,000.00 was assessed for this violation.

            Big Ridge challenges the high negligence and unwarrantable failure designations, as well as the amount of the penalty.

The Violation

            Morris was conducting the final stages of the regular quarterly inspection of the WLPM, and made a special effort to identify and inspect pieces of mobile equipment that had not yet been inspected. Tr. 208. He was accompanied by Bill Shover, a miners’ representative, and Bob Clarida, a safety and compliance officer for Big Ridge. Big Ridge kept a log of equipment that had been inspected, and knew what equipment needed to be inspected by the end of the quarter, which was two weeks away. Tr. 211. While on the surface, Morris observed a diesel truck that had yet to be inspected, a DT-07 open-type, four-man personnel transport. Miners were waiting while the vehicle was being fueled before going underground.

            Morris inspected the DT-07 and observed the conditions noted in the order. Accumulations up to one inch deep of oil, oil-saturated coal fines and loose coal, diesel fuel and material saturated with diesel fuel was on the fuel tank and in the engine and transmission compartments. He determined the depth of the accumulations by pushing a rod into them and measuring the residue with a tape measure. The accumulations on the fuel tank, most likely dust and other such material that stuck to residue of spilled diesel fuel, were apparent as the vehicle was being fueled. Morris lifted the hood of the truck, which rendered the accumulations in the engine and transmission compartments readily observable. He believed that those accumulations would have been obvious to anyone conducting a pre-operational check on the vehicle. Tr. 212. He was “certain” that the vehicle had been used in that condition because it was in use at the time, was about to be taken underground, and because personnel transports were in short supply, partially because of Big Ridge’s use of “hot seat” shift changes. Tr. 213-14.

            As Big Ridge apparently concedes, the accumulations violated the standard.

Unwarrantable failure - negligence

            Need for greater compliance efforts

            The Secretary’s strongest argument on the unwarrantable failure issue is that Big Ridge had been put on notice of a need for greater compliance and knew that this piece of equipment would be inspected before the end of the quarter, yet failed to assure that the standard was complied with. She points to the previously discussed evidence of some 172 accumulations violations having been issued between January 1 and September 16, 2009. Tr. 215; Ex. G-10. Morris reiterated his testimony that the number of accumulations violations had led to higher negligence findings, and further escalated to the issuance of orders under section 104(d) of the Act. Big Ridge again counters that violations issued under the broad accumulations standard do not establish prior notice for unwarrantable failure purposes.

            In general, I agree that mere numbers of prior citations of the broad accumulations standard may not be sufficient to establish a need for greater compliance efforts with respect to a particular accumulations violation, e.g., the pool of oil at the temporary fuel station. However, here the Secretary’s evidence went much further. Morris had been involved in all of the inspections in 2009 and was familiar with the violation history, which included specific warnings about accumulations violations on mobile equipment. Throughout the 2009 inspections there had been discussions with Rig Ridge management about accumulations violations on equipment. Tr. 15. At the close of each quarter, a closeout conference was held with Big Ridge managers to review citations issued during the quarter and discuss areas of concern. The lead MSHA inspector usually led the conference, and prepared a closeout document presenting MSHA’s findings during the quarter. The closeout document for the second quarter, January 1 through March 31, 2009, noted an increase from 29 to 97 in the number of section 75.400 violations issued in the first and second quarters. Tr. 218; Ex. G-13. The section entitled “Areas of Concern” referenced an increase of 234% in accumulations violations over the last quarter, and highlighted that “Most of these violations occurred on mobile equipment.” Ex. G-13 at 11. Item 5 in that section further addressed the problem of oil leaks and accumulations on diesel equipment. Id. The Secretary introduced copies of 17 section 75. 400 violations involving mobile equipment that had been issued to Big Ridge during the last inspection quarter, prior to Morris’s order. Ex. G-14. Clarida confirmed that Morris “had talked about seeing dirty equipment before and that we had had so many 400s written on this,” and that Morris “had mentioned it before about washing the equipment and so on.” Tr. 274, 290.

            Big Ridge protests that the bulk of the Secretary’s evidence pertains to “face” equipment which operates in an environment where coal dust and fines are more likely to be encountered, and that the evidence of a history of accumulations violations on mobile equipment should not establish prior notice with respect to surface equipment. Resp. Br. at 30-31. Big Ridge attempts to draw too fine a line between the types of mobile equipment that were subject to prior enforcement actions. There was a significant increase in accumulations violations from the first to the second quarter. Many of those violations involved mobile equipment, such that the topic of accumulations on mobile equipment became a focus of the quarterly closeout meeting, and was specifically identified as an issue that required increased attention by Respondent. While the vast majority of citations issued in the quarter, 223 out of 226, had been issued underground, the references to accumulations on mobile equipment were not restricted to face equipment and there is no indication that the discussions were so limited. A significant portion of the DT-07 truck’s operation no doubt occurred underground. The Secretary presented ample evidence that Big Ridge had been placed on notice that greater compliance efforts were necessary with respect to accumulations on mobile equipment.

            Efforts to abate conditions subject of prior notice

            Having been placed on notice of a need for greater compliance efforts, Big Ridge’s response to such notice becomes a relevant factor in the unwarrantable failure analysis. San Juan Coal, 29 FMSHRC at 134. There is virtually no evidence that Big Ridge took any steps to address the high incidence of accumulations violations on mobile equipment until after this order had been issued. It had retained a contractor to wash equipment on a weekly basis, a cleaning effort that had failed to prevent the numerous accumulations violations. Tr. 325. It was not until after the September 16 and 17 orders were entered, that it purchased a power washer and installed it in a crosscut underground, where equipment operators could stop and wash equipment as needed. Tr. 325. Also after the orders were entered, it implemented a “dripper” program, designed to repair leaks in equipment hydraulic systems that resulted in saturated deposits of coal fines and other materials. Tr. 277-78, 286. However, there is no evidence that any similar steps were taken between the second quarter closeout meeting and the time the order was entered on September 16, 2009.

            Commission precedent reflects that an operator’s effort to abate violative conditions can be relevant in two ways. An operator may be put on notice of a compliance problem in a certain area through a recent history of violations, e.g., as here, a recent history of accumulations violations on mobile equipment, and/or warnings from MSHA inspectors about such violations. IO Coal Co. Inc., 31 FMSHRC at 1353. The priority that a mine operator placed on addressing such a problem area prior to the issuance of the violation at issue is a relevant unwarrantability consideration. Id. 31 FMSHRC at 1356. San Juan Coal Co., 29 FMSHRC at 134. An operator may also have actual or constructive notice of the specific violative condition before it has been cited. IO Coal, 31 FMSHRC at 1356-57. In such cases, the operator’s efforts to abate that condition, e.g., whether the abatement effort was subordinated to other work, may support an unwarrantable failure finding. San Juan Coal, 29 FMSHRC at 134-35.

            Here, the Secretary established that Big Ridge had prior notice of a problem with accumulations on mobile equipment, and that it made no effort to abate such conditions prior to the issuance of the order.

            Extensiveness - obviousness - knowledge of the mine operator

            The violative condition was neither extensive, nor obvious. While there was some material, most likely dust or dirt, saturated in a film of spilled diesel fuel on the fuel tank, the more significant accumulations were apparent only after the hood of the engine compartment had been raised and the door to the transmission compartment had been opened. Tr. 208-09, 212-14. Those actions would normally have been taken by an equipment operator performing a pre-operational check. However, there is no mandatory standard requiring pre-operational checks of mobile equipment used in underground coal mines. Tr. 242. Consequently, unlike required preshift examinations, where the examiner is considered an agent of the operator, the observations of an hourly equipment operator conducting a pre-operational check of mobile equipment are not attributable to the mine operator. The accumulations in the engine/transmission compartment ranged up to one inch in depth. The material on the fuel tank was apparently more of a film of saturated dust. These conditions overall were not extensive, and were not obvious such that they reasonably should have been observed by management personnel. There is no evidence that the mine operator was aware of the condition prior to the issuance of the order.

            Danger to miners

            The accumulations violation did not pose a high degree of danger to miners. Morris determined that the violation was unlikely to result in an injury because there was no ignition source for the accumulations. Tr. 210. If an injury were to occur, it would have resulted in lost time or restricted duty. Morris determined that four persons were affected by the violation because there were four miners about to ride on the equipment. It appears unlikely that all four miners would have been affected if the accumulations had been ignited. There was relatively little combustible material, and any fire would most likely have been extinguished without major incident. Morris’ injury evaluation was based upon possible smoke inhalation by the miners. Tr. 255. However, he agreed that they would most likely simply have moved to the side of the vehicle upstream in the prevailing air flow, thereby avoiding that hazard. Tr. 255. I find that the violation was unlikely to result in a lost work days or restricted duty injury and that one miner was affected.

            Duration of violation

            Morris was told that the material had accumulated for two to three days. Tr. 239. Big Ridge conducted weekly checks of equipment. The DT-07 truck had last been checked on September 14, two days earlier, and no problems were noted. Tr. 275; Ex. G-18. Clarida opined that if the accumulations were present when the equipment was checked on the 14th, that they would have been noted and corrected. Tr. 275. I accept that testimony, and find that the accumulations occurred over the period, September 14 to 16, gradually building up to the degree observed by Morris. The time when the deposits would have risen to a level sufficient to qualify as unlawful accumulations is unknown, but most likely would have been relatively close in time to when the violation was issued.

            Conclusion

            Big Ridge argues that Morris based his unwarrantable determination solely on the prior notice provided by the history of violations and discussions with MSHA, and that an unwarrantable failure finding cannot be based upon one factor. Its argument is unavailing for two reasons. First, the determination of whether a violation was the result of an unwarrantable failure is not restricted to consideration of the factors relied on by the inspector, or even to those urged by the Secretary. San Juan Coal, 29 FMSHRC at 129. That determination must be based upon a consideration of all relevant evidence introduced at the hearing, and the factors identified by the Commission as being relevant to the determination. Big Ridge supported its second point by citing Windsor Coal, 21 FMSHRC 1001 and San Juan Coal, 29 FMSHRC at 129-36. However, those cases do not state that an unwarrantable failure finding may not be based upon one of the pertinent factors. Rather, like numerous other cases including IO Coal, they instruct that a Judge may not base a determination of unwarrantable failure on consideration of one factor “to the exclusion of others.” All pertinent factors must be considered, and it is possible that one factor may predominate on the facts of a particular case.

            The factors weighing in favor of a finding of unwarrantable failure are that Big Ridge was put on notice that greater compliance efforts were needed to address accumulations on mobile equipment and that it failed to implement measures to address such problems prior to the issuance of the order. Factors weighing against an unwarrantable finding are; the violative condition was not extensive; the condition had not existed for a significant length of time; the condition was not obvious; Big Ridge had no knowledge of the condition; and the condition posed relatively little danger to miners.

            On the facts of this case, I find that the violation was not the result of Big Ridge’s unwarrantable failure. While the prior notice considerations are substantial, they are outweighed by the other factors, especially Big Ridge’s lack of knowledge and the absence of any significant danger to miners. Based on Big Ridge’s unresponsiveness to notice of accumulations problems on mobile equipment, I find that its negligence was high.

Order No. 8417568 

            At 8:30 a.m. on September 17, the day after Morris issued the previous order, he issued Order No. 8417568 pursuant to section 104(d)(2) of the Act, also alleging a violation of 30 C.F.R. § 75.400. The violation was described in the “Condition and Practice” section of the Order as follows:

An accumulation of combustible materials, in the form of oil and oil saturated coal fines and other material, is present on the company #ST-04 diesel Getman tractor, located on the surface. The accumulations range from a film of oil to approximately 1/2 inch of standing oil to approximately 1 inch of saturated coal fines and other materials. The accumulations are present in the operator’s compartment, the engine compartment, transmission compartment, and on most of the outside of the tractor. There are numerous oil leaks that must be repaired to terminate this order. This is an unwarrantable failure to comply with a mandatory standard.

Ex. G-16.

            Morris determined that it was reasonably likely that the violation would result in an injury, that any injury would result in lost work days or restricted duty, that the violation was S&S, that one person was affected, that the operator’s negligence was high, and that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty in the amount of $11,597.00 was assessed for this violation.

            Big Ridge challenges the S&S and unwarrantable failure designation, as well as the amount of the penalty.

The Violation

            As noted previously, on September 17, Morris was in the process of completing the mine’s quarterly inspection, and was focusing on mobile equipment that had not yet been inspected. He was again accompanied by Clarida and Shover. While on the surface, he approached a Getman tractor, company number ST-04, and prepared to inspect it. However, he deferred the inspection for 10-15 minutes to allow the operator to tow a trash car underground, and proceeded to inspect a diesel truck and a diesel scoop, which he found to be in compliance with applicable regulations. When the tractor returned to the surface, he inspected it and found the conditions noted in the order. The inspection took about 30 minutes. When it was finished, the equipment was moved, and Morris observed a pool of oil in an area approximately three and one-half by six feet where the tractor had been parked. He believed that the oil had leaked from the tractor during the 30-minute inspection. Tr. 228-29; Ex. G-17.

            Morris was concerned that the equipment had been operated with such a significant leak, and with the accumulations that he observed. The equipment operator, Korby Kirkman, stated that the equipment was in that condition when he started his trip down the slope, and that the operator on the midnight shift had started to wash it before he got it. Ex. G-17. Morris suggested to Clarida that higher management officials come and observe the conditions. Terry Ward, general mine manager, and Ricky Phillips, the superintendent, examined the tractor, and Phillips took pictures of the conditions. Both stated that they could not defend the conditions. Tr. 237-38; Ex. G-17. Phillips stated that they had met with the midnight shift crew after the order had been entered the previous day, and instructed them to wash the equipment. Tr. 238-39. He also stated that he was going to call the miner who had operated the tractor on the midnight shift and fire him. Tr. 238.

            Morris then proceeded to the mechanics’ shop to check for records on the tractor. He noticed a notebook on a desk in the shop, on which someone had written “9-15-09 ST04 was tagged out for oil leak on hyl tank, mine manager went ahead an run it.” Tr. 233-35; Ex. G-18.

            Trevor Walker, who worked the third shift on September 17, testified that he had used the tractor to rock dust the belt line. Before using it he had performed a pre-operational check, and had no recollection of finding any problems, such as accumulations or oil leaks. Tr. 300-01. When his shift ended, he began to wash the tractor, starting with the exterior and the operator’s compartment. He noticed some oil in the cab, but not on other parts of the vehicle. Tr. 305. He did not finish washing it, because Kirkman needed the tractor, and said that he would finish washing it. Tr. 301-03. He allowed Kirkman to take the tractor, and left the miner site. About two hours after returning home, he got a call from Phillips, which surprised him. He was not fired, as Phillips had indicated to Morris, presumably because he had started to wash the equipment and released it to Walker on his promise to complete the washing. However, he received a disciplinary letter that he and a union representative signed under protest, and that was later taken out of his file. Tr. 306-08; Ex. G-22.

            Kirkman worked the day shift as an outside supply man delivering supplies to the units. He testified that when he arrived Walker was in the process of washing the tractor. He had started on the exterior, and had worked on the operator’s compartment. The floor of the compartment was wet with water, and had rock dust in it. He described the condition as “nasty.” Tr. 311-12. Kirkman told Walker that he needed the tractor to take a take a trash trailer into the mine, and that he would finish washing it when he returned. Walker left the tractor in Kirkman’s hands. Kirkman typically timed his first run into the mine to correspond with the shift change, and followed that traffic into the mine, thereby avoiding the out-bound traffic. He also deferred performing his pre-operational check until he returned to the surface. Tr. 314, 317. He had taken the tractor to the shop the day before because of an oil leak somewhere behind the firewall that was slowly dripping into the operator’s compartment. A mechanic told him to put a tag on it, which he did. Tr. 320-23. When he took the tractor from Walker on September 17, he could not tell if it was still leaking because of the water and rock dust in the cab. He also related that there was a meeting of day-shift equipment operators, at which they were told to wash equipment and have leaks fixed. However, that was after the subject order had been entered. Tr. 316.

            As Big Ridge concedes, the accumulations of oil and oil saturated coal fines and other material violated the standard.

Significant and Substantial

            The Commission recently reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC ___, ___ (October 5, 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

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

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

                                    . . . .

                                    . . . .

The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

            The fact of the violation has been established. A measure of danger to safety, a discrete safety hazard, was contributed to by allowing combustible material to accumulate on the tractor, i.e., that the accumulations could be ignited exposing miners to heat, smoke and other products of combustion. The issues in the S&S analysis are whether the hazard contributed to was reasonably likely to result in a reasonably serious injury.

            Morris testified that the oil was “all over” the piece of equipment, and that a filter on the exhaust system got “extremely hot” during operation. Tr. 230-31. In response to a question from the Secretary, he added that an injury from combustion could include burns. Tr. 232. He also described the presence of oil in the operator’s compartment as being “all over the floor of the cab,” and determined that the condition presented a slip and fall hazard that could result in abrasions or broken bones. Tr. 231-32. Morris made no mention of a combustion hazard in his field notes, wherein the only reference to potential injuries was the following: “It’s reasonably likely that this condition would cause an event resulting in L/W [lost work] days injuries related to slipping & tripping in the operator’s compartment.” Ex. G-17 at 6. He explained that he could have issued a citation or order for a violation of section 75.1725(a), which requires that mobile equipment be maintained in a safe operating condition, but that he did not like to “double dip,” and felt that his order effectively took the equipment out of service and forced correction of the leak problem. Tr. 240.

            I place little weight on Morris’ “combustion” theory, for a number of reasons. While he identified an “extremely hot” filter, and stated that combustion could cause burns, he failed to express an opinion that the violative condition, the accumulation of combustible materials, was reasonably likely to result in a burn or other serious injury as a result of combustion. He did not know the flash point of the oil or the oily accumulations. Nor did he know the temperature that the filter attained. Tr. 246. Moreover, the equipment had been operated for a sufficient period of time to have fully heated up, and no ignition or combustion had occurred. Morris was, no doubt, thinking about the combustibility of the accumulations when he issued the violation. However, he clearly did not base his S&S determination on the likelihood of a burn or other injury resulting from combustion. When he issued Order No. 8417566 the previous day, under very similar circumstances, his S&S determination was based upon potential combustion and he found that that violation was not S&S because of the absence of an ignition source. In addition, he evaluated the potential injuries resulting from any combustion to be lost work days or restricted duty due to smoke inhalation and stated that if he had thought the combustion would have resulted in burns he would have rated the injuries as permanent. Tr. 255. As noted in the discussion of Order No. 8417566, occurrence of an injury due to smoke inhalation was little more than a theory.

            The accumulations in the operator’s compartment did not present a combustion hazard, as Morris evidently concluded. I accept the testimony of Kirkman and Walker that Walker had started to wash the equipment before Kirkman took it underground. Pictures, apparently taken by Phillips, showed conditions in the operator’s compartment, which appeared to be very wet with water, rock dust, and yellow tinged deposits that Morris identified as hydraulic oil. Tr. 325-28; Ex. R-25 a-c. Judging from the appearance of the material, there was virtually no chance of an ignition in the operator’s compartment, which is most likely why Morris made his gravity evaluation based on the slip and fall potential. An ignition of deposits in the engine compartment was possible, but did not pose any significant possibility of injury. As discussed with respect to Order No. 8417566, an ignition was unlikely, and any ignition most likely would have been promptly extinguished. Miners could easily have positioned themselves to avoid inhalation of smoke and other products of combustion.

            I find that there is insufficient evidence upon which to base a finding that the hazard contributed to by this violation was reasonably likely to result in an injury producing event, or that a reasonably serious injury would have resulted. I find that the violation was not S&S.

Unwarrantable failure

            Prior notice - efforts to abate

            The discussion of these factors with respect to Order No. 8417566 applies fully to this violation, except that Big Ridge did take some action in response to that order, prior to the issuance of the subject order. While Big Ridge’s more significant remedial measures, installation of the power washer and establishment of the dripper program, were not implemented until later, a meeting was held with equipment operators on the night of September 16 at which they were instructed to wash accumulations off of mobile equipment and repair oil and other leaks. Walker had started to wash the tractor. However, Kirkman aborted that effort, and promptly drove the tractor underground because he deemed it critical to avoid outbound traffic associated with the shift change.

            Big Ridge’s communication of emphasis on the wash/repair program following issuance of the September 16 order demonstrates some responsiveness to the prior notice of extensive problems with accumulations of combustible materials on mobile equipment. However, that emphasis was not sufficient to prompt Walker to start washing the equipment early enough to complete the task prior to the end of his shift, or to prompt Kirkman to complete the task prior to taking the tractor underground. I find that the extensive prior notice, reinforced by issuance of the September 16 order, and Big Ridge’s anemic efforts to address such violations, are aggravating factors in the unwarrantable failure analysis.

            Extensiveness - Obviousness - Degree of Danger

            For the same reasons discussed with respect to Order No. 8417566, I find that the violative condition was neither extensive, nor obvious, and that it did not pose a high degree of danger to miners. Morris was about to inspect the tractor, but agreed to defer the inspection while Kirkman took the trash trailer into the mine. The fact that Morris allowed the tractor to be used suggests that the condition was not obvious or extensive.

            Big Ridge’s knowledge of the violation - efforts to abate

            Unlike with Order No. 8417566, there is convincing evidence that Big Ridge had actual or constructive knowledge of the violative condition. Walker had taken the tractor to the shop on September 15 because of excessive leaking of hydraulic oil behind the fire wall, dripping into the operator’s compartment. A mechanic in the shop told him to “put a tag on it,” i.e., take it out of service, which he did. The shop’s records indicate that, two days prior to issuance of the order, and despite the fact that the leak, or leaks, had not been repaired, a mine manager directed that the tractor by placed back in service. It apparently remained in service up to the time the order was entered.

            Big Ridge’s agent placed the equipment back in service. He knew that the condition that prompted the tractor to be brought in for service had not been addressed, and undoubtedly knew the nature of the problem when he ordered it into service. He knew, or should have known, that leaking hydraulic oil would accumulate on the equipment and saturate other potentially combustible deposits. He also knew or should have known of the excessive recent history of violations for such accumulations and MSHA’s warnings about such conditions. I find Big Ridge’s knowledge of the violative condition, and its deliberate subordination of the abatement effort to other work, to be a strongly aggravating factor in the unwarrantability analysis.

            Conclusion 

            Unlike Order No. 8417566, Big Ridge’s knowledge of the violative condition and its failure to take steps to abate it easily tips the balance of the unwarrantability analysis in the Secretary’s favor. I find that the violation was the result of Big Ridge’s unwarrantable failure to comply with the standard.

The Appropriate Civil Penalties

            Big Ridge is a large mine operator. Its history of violations for the 15-month period preceding issuance of the orders is reflected in a printout from MSHA’s computerized database which was introduced into evidence. Ex. G-19. The report indicates that Big Ridge had 782 paid violations in the subject time period and that approximately 53 of those were S&S. None of the violations was identified as exhibiting an excessive history. Neither party urges Big Ridge’s history of violations as a factor that should increase or decrease the amount of any civil penalty imposed for the subject violations. The parties stipulated that the proposed penalties would not affect Big Ridge’s ability to continue in business. Big Ridge demonstrated good faith in promptly abating the violations.

            Order No. 8418235 charged that Respondent failed to comply with its approved ventilation plan, that the violation was unlikely to result in a lost work days or restricted duty injury, that the violation was not S&S, that eight persons were affected, that the operator’s negligence was high, and that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty, in the amount of $4,099.00, was assessed for this violation. Big Ridge was found to have violated the standard. However, it was found that the violation presented no possibility of injury, that no miners were affected, and that Big Ridge’s negligence was high, but that the violation was not the result of its unwarrantable failure. Order No. 8418235 will be amended to a citation issued pursuant to section 104(a) of the Act. Considering the reduction in the level of gravity and the vacating of the unwarrantable failure charge, as well as the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $500.00.

            Order No. 8417559 alleged that Big Ridge violated the combustible accumulations standard, that the violation was unlikely to result in a lost work days or restricted duty injury, that six persons were affected, that the operator’s negligence was high, and that the violation was the result of the Big Ridge’s unwarrantable failure to comply with the mandatory standard. A civil penalty, in the amount of $4,810.00, was assessed for this violation. Big Ridge was found to have violated the standard, and that the violation was unlikely to result in a lost work days or restricted duty injury to six persons. However, the violation was not the result of Big Ridge’s unwarrantable failure or high negligence. Rather, its negligence was moderate. Order No. 8417559 will be amended to a citation issued pursuant to section 104(a) of the Act. Considering the vacating of the unwarrantable failure charge, the reduction in the level of negligence, as well as the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $1,500.00.

            Order No. 8417566 alleged that Big Ridge violated the combustible accumulations standard, that the violation was unlikely to result in a lost work days or restricted duty injury, that four persons were affected, that the operator’s negligence was high, and that the violation was the result of the Big Ridge’s unwarrantable failure to comply with the mandatory standard. A civil penalty, in the amount of $4,000.00, was assessed for this violation. Big Ridge was found to have violated the standard, and that the violation was unlikely to result in a lost work days or restricted duty injury to one person. In addition, the violation was not the result of Big Ridge’s unwarrantable failure, but its negligence was high. Order No. 8417566 will be amended to a citation issued pursuant to section 104(a) of the Act. Considering the vacating of the unwarrantable failure charge and the reduction in the number of persons affected, as well as the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $3,000.00.

            Order No. 8417568 alleged that Big Ridge violated the combustible accumulations standard, that the violation was reasonably likely to result in a lost work days or restricted duty injury, that the violation was S&S, that one person was affected, that the operator’s negligence was high, and that the violation was the result of Big Ridge’s unwarrantable failure to comply with the mandatory standard. A civil penalty, in the amount of $11,597.00 was assessed for this violation. Big Ridge was found to have violated the standard, and that the violation was the result of its high negligence and unwarrantable failure. However, it was found that the violation was unlikely to result in a lost work days or restricted duty injury to one person. Considering the reduction in the level of gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $9,000.00.

 The settled violation

            As evidenced by Joint Exhibit 2, the parties agreed to settle one of the violations at issue. It is proposed that Order No. 8417760 be modified to a citation issued pursuant to section 104(a) of the Act, at High Negligence, and that the proposed penalty be reduced from $4,000.00 to $3,200.00. I have considered the representations and evidence submitted and conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act. Accordingly, the proposed settlement is approved and Respondent will be ordered to pay a penalty of $3,200.00 for the settled violation.

ORDER

            Order No. 8417568 is AFFIRMED as modified. Order Nos. 8418235, 8417566 and 8417568 are modified to citations issued pursuant to section 104(a) of the Act, and are AFFIRMED, as modified.

            It is FURTHER ORDERED that within 45 days Respondent pay civil penalties in the total amount of $17,200.00 ($14,000.00 for the contested violations and $3,200.00 for the settled violation).

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge

Distribution (Certified Mail):

Tyler McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340,

Pittsburgh, PA 15222