FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W. , Suite 520N

Washington, DC 20004-1710

Telephone No.: 202-434-9933

January 30, 2013

    DECISION

Appearances:              Brian D. Mauk, Esq., Rachel E. Levinson, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner

                                    Jeffrey K. Phillips, Esq., Steptoe & Johnson, Lexington, Kentucky

                                    for the Respondent

Before:                       Judge Moran

Introduction.

            This docket, which originally involved 12 citations, was reduced to four disputed matters. Highland admits two of the violations, but challenges associated findings, such as the “significant and substantial” allegations. For the remaining two, it contests the fact of violation itself and, in the alternative, the findings associated with those, should the violations be affirmed. For the reasons which follow, the Court affirms each of the citations and the associate findings.

The Significant and Substantial designation.

            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 that “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 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 . . . will cause injury. . . . the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” It also observed that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. at 1281.

          Finally, the fourth element, that the injury must be a reasonably serious one, has not been difficult to apply. Another way to express this is that negligible mining mishaps, such as bumps, bruises and small cuts, do not constitute reasonably serious injuries. It’s important to appreciate that when a standard is violated, the absence of an injury producing event actually occurring does not mean that the violation was not S&S. Restated, no injury need occur for the violation to be S&S. Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005).

The inspector’s opinion in determining S&S.

            The Commission and courts have observed that the opinion of an experienced MSHA inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).

The S&S determination where health standards are involved.

             Where health standard violations are in issue, the Mathies test applies upon finding, (1) the underlying violation of a mandatory health standard; (2) a discrete health hazard--a measure of danger to health--contributed to by the violation; (3) a reasonable likelihood that the health hazard contributed to will result in an illness; and (4) a reasonable likelihood that the illness in question will be of a reasonably serious nature. Consolidation Coal Co., 8 FMSHRC 890, 897 (June 1986), aff'd 824 F.2d 1071 (D.C. Cir. 1987). The Commission elaborated: “[G]iven the nature of the health hazard at issue [i.e., respirable dust induced disease], the potentially devastating consequences for affected miners, and strong concern expressed by Congress for eliminating respiratory illnesses in miners, … if the Secretary proves an overexposure to respirable dust in violation of § 70.100(a), based upon designated occupational samples, has occurred, a presumption arises that the third element of the “significant and substantial” test - - a reasonable likelihood that the health hazard contribute or will result in an illness - - has been established.” Id. at 899.

Citation No. 8501110.

            This citation, involving an admitted violation of 30 C.F.R. § 75.1731(b), states:

“[t]he 4-C belt line was not being maintained in proper alignment. The belt was out of alignment allowing the belt to rub 6 belt frames between crosscut 42 and 43. [T]he belt frames were beginning to get warm to the touch and had started to cut into the belt frames.” Citation No. 8501110. The cited provision, entitled, “Maintenance of belt conveyors and belt conveyor entries,” provides in relevant part: “(b) Conveyor belts must be properly aligned to prevent the moving belt from rubbing against the structure or components”

            Highland admits the violation, but it disputes the S&S and moderate negligence designations, and that it affected four miners.

            MSHA Inspector Archie Coburn, the issuing inspector, stated that he issued the citation to Highland employee Tommy Witherspoon, while he was traveling through the number 4 unit, upon smelling smoke in the air and investigating its source. Shown Exhibit P 3, which reflects Citation Number 8501110, it was issued by him on August 12, 2010. Exhibit P 4, are his notes related to that Citation. The smell prompted him to travel over to the 4C belt where he saw that the belt was out of alignment and rubbing against the belt frame. Tr. 131, 141.

            Inspector Coburn noted on his citation that the belt was “rub[bing] 6 belt frames.” That is, for the belt, which is on a stand, or framing, and has top and bottom rollers, six of the belt frames had the belt out of alignment where the belt was rubbing the belt frames. Tr. 136. With the sections being 10 feet between each one, the affected area covered a distance of 60 feet. Tr. 137. Coburn found that the belt frames were beginning to become warm to the touch. He later described that it was starting to get warm, that is, warm to the touch. Tr. 182. Thus, he agreed it was not yet hot. He knew this by touching it with the back of his gloved hand. Tr. 138. Coburn added that belt was cutting into the frame. Though he did not take measurements, he observed that it had cut in a quarter to a half-inch and this was present at all six rubbing locations. Tr. 139. He estimated that the belt had been out of line for “at least 48 hours,” based on the location of the face and crosscut 43. That is, his time estimate was made upon considering the location where he found the problems as compared to where the unit’s mining had progressed to that point in time. Persons would travel the 4C belt line. For example, the belt examiner would see it twice a day and miners assigned to shoveling and cleaning that belt line would also see it. Tr. 141.

            Coburn marked the “gravity” of the violation as reasonably likely to result in an injury or illness, based upon mining continuing without the problem being corrected and then considering, if an accident were to occur, that miners would be exposed to smoke inhalation and also the possibility of a belt fire. Again, his concern was focused upon the belt continuing to rub into the frame and with that, the frame would continue to become hotter. The Court notes that this is the implicit concern addressed by the cited safety standard. Thus, the Inspector’s and the safety standard’s concern is the risk of a belt fire or belt ignition. With such rubbing, eventually shavings or, as they were also described, “ravelings” would come off the belt at the locations where it was rubbing against the frame. They would then fall to the mine floor and their heat could cause them to catch on fire. Tr. 144. The belt itself was fire retardant but not flame retardant. Tr. 144 .

            Placing this citation in context, there was some recent history with similar belt issues at this mine. Inspector Coburn, who has lengthy experience inspecting this mine, has seen a belt fire at this mine, the Highland 9. Tr. 144. In fact, Coburn saw a belt fire about 3 days prior to the citation in issue. Tr. 145. At that time he had traveled up the same belt line, about 18 crosscuts inby from the location of the citation in issue presently, where he observed smoke in the supply road, and discovered a fire in a “crossover.” The scoop operator was trying to locate the source of the fire at that same moment. Tr. 1541. Coburn located the fire underneath the bottom belt in the crossover. Tr. 147. An accumulation had built up at that location, where he found a locked-up roller and a fire. Tr. 145. In using the term “fire,” Coburn meant observing coal fines underneath the belt which were on fire, that is, burning. In fact, he found a 3 inch by 4 inch hole in the belt and he saw flames underneath the roller. Tr. 147. Analogizing the condition to a fireplace, he observed both “embers” and a “short flame.” Tr. 148. Tommy Witherspoon was also with Coburn on that earlier occasion and, at Coburn’s instruction, he went back to tell others that a fire hose was needed. Tr. 148. Forty minutes elapsed from the time of the detection of the smell and smoke to the time of extinguishing the fire. Tr. 151. Coburn’s citation for this was marked “S&S,” but not as an unwarrantable failure. Tr. 173-174. Thus, in neither the present instance, nor the instance three days’ earlier, did he mark the violations as unwarrantable failures.

            Having encountered the fire three days earlier, Coburn had a similar concern that the most recent event could also develop into the same problem. Tr. 152. He marked the citation as an injury or illness expected to result in lost work days or restricted duty because, if a fire were to occur, miners inby would be affected by the smoke off the belt line. Also, if miners were evacuating, as the secondary escapeway is only one crosscut over from the belt line, Coburn stated that they would be exposed to smoke inhalation. Tr. 152. This is because there is common air between the belt line and the escapeway. Tr. 154. Further, those arriving to deal with such a fire would also be exposed to smoke inhalation. Tr. 153. Coburn listed that four miners could be affected because some smoke would make its way to the face. This is so since not all the smoke would go to the return regulator, as that is not a completely airtight device. Therefore, in addition to those who would need to fight the fire, there would be the miner operator or pinner, and the FCT operator exposed. Coburn explained further that miners on the left side would be exposed to smoke from such a fire. Tr. 155.

            Coburn marked the violation as “moderate negligence” because the belt line is to be checked frequently, including each time the belt is moved up. The rubbing here was on the supply side road, which is the right side of the belt. Tr. 157. Although both sides of the belt are to be examined, the right side is more easily viewed because the belt examiner travels on that side. Tr. 158. When Coburn issued his citation, the belt would have last been examined on the second shift, ( 4 p.m. to 1:30 a.m.), the night before. That would mean an examination occurred at a time some 8 to 12 hours before the citation. Tr. 159. Coburn did state that it was difficult to rely upon the extent to which the belt had cut into the frame as a guide to assessing how long the belt had been rubbing, because a mine may be using old framing and the cut may have been from a prior occasion. Tr. 160. In any event, the Inspector could only note with certainty that the belt was passing through cuts in the framing. He could not assess whether the frame cuts themselves were old or new, as that would be difficult to determine. Tr. 161-162. Besides, old frame cuts or new, Coburn’s concern was the fact of the rubbing and the attendant friction and heat. Tr. 163. Coburn did consider it to be a mitigating circumstance that the mine has personnel that are to exam the belt line as a full-time duty.

            Upon cross-examination, Coburn stated that he takes his notes at the time he encounters a problem underground. These notes reflect the conditions he observes. Tr. 177. He agreed that he puts important matters in his notes. Tr. 177. However, Respondent’s Counsel pointed out that the notes do not mention that the inspector smelled the burning odor nor do the notes reflect seeing smoke. Tr. 177-178. Coburn’s explanation was that if he included everything that he observed or smelled, all his time would be spent on note taking and not on conducting his examination. Tr. 178. He added that in this instance the smoke was not of a degree that it was filling up the belt entry or the supply road with smoke. Tr. 179. If the latter were to have occurred, he would have marked it in his notes. Tr. 179-180. Further regarding his notes, Coburn did not claim to have a perfect memory, nor that his note taking was perfect. Tr. 216-217. However, even if not recorded in his notes, reading the notes will jog his memory as to other facts associated with his citations and orders. The Court finds that the Inspector was credible in these assertions.  

            Given that Coburn’s admitted concern was an ignition and his agreement that one needs oxygen, a heat source and fuel for that to happen, he was questioned about those elements. He agreed there were no accumulations present around the cited area. He could not recall the ignition temperature of loose or fine coal or coal dust. Tr. 185. Nor did he take the temperature of the belt stand. Accordingly, Coburn was not contending that there was a likely ignition at that time. However, he added that “if normal mining would have continued [with] the belt being out of alignment, the temperature would increase along with the possibility of a fire.” Tr. 185. (emphasis added). Coburn stated that the fuel source would be the belt itself, that is, the ravelings as they came off the rubbing belt. Tr. 186. He stated that they would become hot enough to start a fire upon falling on the mine floor. Tr. 186. However, he agreed that at the time of the citation there were not yet belt shavings present. Tr. 186.

            Typically, Coburn informed, the belt structure is advanced twice a shift. Tr. 190. That is a general statement, as many variables can affect advancement. In some instances the third shift may advance the belt for the day shift. Therefore, if the belt were moved on the third shift, the day shift would not become aware of any misalignment until they started work that morning, around 7 to 8 a.m. Tr. 191. The last time a belt examiner would have performed his job prior to the citation in issue would have been on the 2^nd shift on August 11^th sometime in that afternoon, between 4 p.m. to 12:00 a.m. Tr. 192. This does not tell the whole story however, as the Inspector pointed out that the belt was out of alignment at the time they installed the frames. Accordingly, its misaligned state could have been recognized at that time.

            Referring to Coburn’s prior experience with a belt fire at this mine, as discussed earlier in his testimony, the Inspector agreed that, per 30 C.F. R. § 50.2(h)(6), an “accident” includes an unplanned fire, not extinguished within 10 minutes of its discovery. Such an event requires reporting of the event to MSHA. Coburn agreed that earlier incident was not reported to MSHA, nor was Highland cited for any such failure regarding that. Tr. 195-196. However, the Inspector did not agree that the entire incident was resolved by the time he arrived at the scene of the event. He added that MSHA has encountered mine fires that have gone back against the intake air for thousands of feet. Tr. 201.

            Coburn stated that the belt’s ignition temperature would be lower if it became unraveled or had shavings coming off it. Tr. 202. As noted, the belt, being flame retardant, provides less protection than the newer, flame resistant belts. Tr. 203. The “ravelings” are cords that are within the belt. Tr. 203. Those cords are made of nylon thread. The Inspector added that he has seen belt shavings and belt ravelings catch fire. Tr. 204. Any smoke that did make it past the regulator would travel up to the three entries. Tr. 208. From there, it would continue to the last open crosscut. In terms of the approximate 20 percent that will get past the regulator, Coburn expressed that such an amount is a sufficient amount to cause concern because, with any smoke going up to the unit, there will be carbon monoxide traveling with it. Tr. 213. However, Coburn agreed that, at the time of his citation, no CO monitor had alarmed. Tr. 214.

            Thomas Witherspoon testified for the Respondent regarding on this matter. He has been working in coal mining for some 21 years. Tr. 957. He has his mine foreman papers and is familiar with the way belt exams are performed. Tr. 958. Shown Ex. P 3, Citation No. 8501110, Witherspoon stated that he remembered the event and that he was with Inspector Coburn on that day. Tr. 959. They traveled to the mouth of the unit and then were in the belt line, having traveled some 2000 feet or so before arriving at the No. 4 C belt entry. Tr. 962. Once in the belt entry, they traveled some 50 crosscuts before reaching the section. Tr. 963. Thus, Witherspoon contended that he and Inspector Coburn were traveling down the belt entry so that the Inspector could examine the 4C belt entry. Tr. 963. This examination is done by walking or using a golf cart. Tr. 963. He stated that no smell or odor caused them to use that belt entry. Tr. 964. Shown Inspector Coburn’s notes from that August 12^th event, Witherspoon agreed that the Inspector’s notes do not reflect anything about being in another entry and then going over to the 4C belt because of any smell or smoke. Tr. 965. Accordingly, Respondent disputes Inspector Coburn’s version of the events leading to the discovery of the admitted violation.

            As the two proceeded down the belt line, Witherspoon stated that the Inspector saw an area where the belt was running out of alignment and he noted that condition as well. Tr. 966. However, Witherspoon stated there was no smoke, nor smell, present. Tr. 966-967. Nor did he, Witherspoon, see any accumulations of combustible material, nor belt fraying, nor belt shavings, or coal dust or coal accumulations. Further, he stated that the area was well rock-dusted. Tr. 967.

            Witherspoon did acknowledge that the roller in issue was “a little warm, you know.” Tr. 968. Still, he expressed that one could hold it bare-handed without receiving a burn. Tr. 968. In fact, Witherspoon stated that he touched the belt framing while the belt was moving and it was not even hot at that time. Tr. 970. He did not disagree that there was a violation. Rather, his dispute was with the S&S designation. While he admitted that the framing was warm, as just noted, he reiterated that the area was well rock-dusted and there was no fuel for the “fire triangle” of fuel, oxygen and heat. Tr. 971. Mr. Witherspoon also stated that no belt examiner had yet been through the area at the time the violation was discovered. Tr. 973. Based on his familiarity with the belt examiner inspections, he figured no examiner would be there until “at least around 10:00.” Tr. 974. Witherspoon believed that the examiner would have spotted the problem. Tr. 974. Such an exam occurs once per shift. Tr. 982.

            Mr. Witherspoon also took issue with the idea that four persons would be affected, believing that only one person, the belt examiner, would be affected. Tr. 975. Witherspoon agreed that four persons would be on the left side, but that they would be towards the middle of the unit. Tr. 976. He did not believe that smoke would make its way to the unit because of the air lock and the return brattice line and intake brattice line. With those devices, air that is coming down the belt line travels to the regulator. Tr. 976-977. Nor did Mr. Witherspoon believe that the negligence should be marked as moderate for this violation. This was because the belt examiner had not been to that area yet. While the belts are started up around 6:00 a.m., coal is not dumped on them until around 8:00. Tr. 978.

            Witherspoon agreed that the 4C belt line is adjacent to the supply road and that they run parallel to one another. Tr. 979. As to whether the two have common air, Witherspoon stated “they are both moving in the same area,” a response meaning “yes.” Tr. 979. He agreed that there would be at least four people traveling in the supply road. Tr. 979. When asked if 100% of the air goes through the regulator, Witherspoon said it is supposed to work that way. Tr. 979. Thus, he contended that air will not make its way through the gap in the regulator where the coal moves along the belt, nor did he agree that the gap is about four feet wide. Tr. 980.

            Mr. Witherspoon also did admit that the frames, which are about 10 feet apart, were being rubbed in about six different locations. Tr. 982. When asked if he saw that the belt had begun to cut into the belt frames, Witherspoon responded that “I observed where the belt was rubbing into the frames is what I observed.” Tr. 982. However, noting that such frames are reused, he maintained this was occurring in an area where there had been cutting from earlier times. As he had earlier in his testimony referred to rust as an indicator that belt cutting into the frame was old, rather than new, the Court inquired whether he saw rust around the areas of belt cutting here. To that query, Witherspoon responded “I don’t recall.” Tr. 992 (emphasis added). Tr. 982. He also maintained that if the rubbing had continued, it might not necessarily grow hotter, as the belt may ease back over to its correct position. Tr. 983. As to whether he has ever seen a belt cutting into the belt framing, Witherspoon informed, “Not that I can recall.” Tr. 984 (emphasis added). He did acknowledge that he has seen a belt worn and seen shavings that fall off it where it has been rubbing. Tr. 984.

            It would be fair to state that Mr. Witherspoon had several areas of disagreement with Inspector Coburn’s recounting. For example, while he admitted that Coburn called an event which occurred three days earlier, a “belt fire,” he did not agree with that description because he never saw flames, or a fire. Tr. 987. In response to questions from the Court, Witherspoon admitted that when one comes upon a warm roller “you need to take care of it.” However, his first expression of the motivation to take care of it was that it can impact production if the belt then pulls apart. Tr. 989. In fact, apart from his concerns over the impact upon production, Witherspoon then advised, “Well, I wouldn’t have been afraid to walk off from it.” Tr. 990. In fact, if he never got around to fixing the problem that day and went home without correcting it, it “[w]ouldn’t bother me.” Tr. 991. The Court considers these responses to be informative on both the S&S and negligence issues.

Respondent’s Contentions.

            As noted, Highland concedes that the standard was violated here. However, it disputes the significant and substantial (“S&S”) designation, that four miners would be affected by it, and that the violation resulted from “moderate negligence.” R’s Br. at 3. In support of its position, Highland points out that the Inspector’s notes do not mention smelling a rubbing belt, nor observing smoke, though his testimony described those conditions. As for the Inspector’s testimony that the belt stands had half-inch cuts, the Inspector agreed that those cuts could have occurred from earlier damage, as the stands are moved and reused. Even if the cuts were new, Respondent maintains that belt and structure rubbing contacts were “well beyond where any combustible material may accumulate.” R’s Br. at 3-4. The Respondent also asserts that the Inspector’s estimate of the length of time the belt had been misaligned, 48 hours, is suspect. Respondent maintains that, as the belt is examined every production shift, and as the belt books did not note such an issue, the condition would not have been present for such an extended period, as the Inspector suggested. Further, as the temperature of the stand was only starting to become warm, the condition was likely a new development. When the Inspector found the problem, the belt examiner had not yet been to that area, but was scheduled to arrive not long after the citation was issued. R’s Br. at 6.

            Respondent also notes that the Inspector referred to the possibility that a belt fire could ensue if the condition remained uncorrected and it contends that does not satisfy the S&S standard, as that description means a fire was not “reasonably likely to occur.” R’s Br. at 8. The Inspector agreed that there were no accumulations of combustible material, such as coal or belt shavings, at the time of the Citation’s issuance. In addition, the Respondent challenges Inspector Coburn’s listing that four persons could be affected, because the citation refers to the number affected, not “the number that ‘could’, ‘may’ or ‘might’ be affected.” R’s Br. at 8. Those individuals were some 800 to 900 feet away and the air lock was between their location and the cited condition. Accordingly, Respondent maintains that the air lock would have directed any smoke from a belt event to the return.

The Secretary’s Contentions.

            The Secretary notes that the Inspector’s findings were based upon the assumption of continued normal mining operations and assuming that the condition was not corrected. The Inspector believed that a belt fire was possible, as the frame continued to heat up, and with belt shavings igniting, from the frictional heat. The Inspector’s concern was not simply anecdotal; upon observing smoke in a supply road at this mine just three days prior to this matter, he investigated further and found a belt fire.

            The Secretary also points out that there is no dispute that the belt was out of alignment and that it was rubbing the belt frame at six different locations. Just as in the previous belt rubbing condition he had observed three days prior, the belt was both out of alignment and rubbing against the belt framing. In time, that friction would create belt shavings, those shavings would accumulate and, as the shavings are combustible, at some point they would ignite. It adds that it must not be forgotten that at the time the condition was observed, the belt was running coal.

            As to the number of miners potentially affected, the Inspector did identify the four miners on the return side but he also named the miners who would be called to deal with any belt fire and miners escaping through the adjacent supply road, which also served as a secondary escapeway. Although the Secretary acknowledges that Highland’s Witherspoon testified to the absence of accumulations of combustible materials and that the area was well rockdusted and had no bad rollers, the same witness conceded that the shavings are themselves a combustion source. Further, the Secretary observes that the belt frame had already started to heat up at the time it was cited and this had developed even though coal had been running for only about an hour. Sec. Br. at 14-15. As for the contention that the regulator would whisk any smoke from a fire into the return, the Secretary notes that the Inspector advised that not all of such smoke is so directed and accordingly some smoke would find its way to the working section. Id. at 15. Further, the Inspector noted that miners escaping on the adjacent supply road and any fire fighting crew would also be affected, if there were a belt fire. In terms of negligence, it was the Inspector’s view that the problem had existed for at least 48 hours and therefore the operator should have been aware of the issue. Still, as the operator was conducting exams in the area and because he believed the mine was not ignoring the problem, he assessed the violation to be moderate.

            Based on these considerations, the Secretary’s position is that its proposed assessment of $1,304.00 is reasonable and serves as an effective deterrent, although a higher penalty could be supported. Sec. Br. at 16.

The Court’s Conclusions regarding Citation No. 8501110.

            The Court concludes that this violation was S&S and that the negligence was moderate. The Respondent has referred to the Inspector’s statement of the possibility that a belt fire could ensue if the condition remained uncorrected, and that such a statement does not satisfy the S&S standard, as that description means a fire was not “reasonably likely to occur.” R’s Br. at 8. The Court views that as an inaccurate characterization of the law and the Inspector’s expression. Given that the violation was conceded and the discrete safety hazard of a belt related fire is not disputed, it is the third Mathies element that is in issue: whether it was established that there was a reasonable likelihood that the hazard contributed to will result in an injury. The Court adopts Inspector Coburn’s recounting of the events, including the circumstances leading up to the discovery of the problem. It also takes into account, the Inspector’s view as to whether the condition was S&S. Even if it declines to find that the belt had been out of line for “at least 48 hours,” the condition was S&S. Inspector Coburn was not contending that there was a likely ignition at the time he found the violation. However, he added that “if normal mining would have continued [with] the belt being out of alignment, the temperature would increase along with the possibility of a fire.” Tr. 185. Also, as the Inspector pointed out, the belt was out of alignment at the time they installed the frames. Tr. 193. That assertion was not disputed.

            The Court finds the third element present because the condition was already warm at the time the violation was discovered and there was no certain time established when the next examiner would arrive at the location nor whether it would be noticed, or at least attended to, during that examination. Recall that Mr. Witherspoon stated that he would have had no problem with to walk off from it, even if that meant never getting around to fixing the problem that day and he went home without correcting it. As he said, it wouldn’t bother him. Therefore, the continuation of “normal mining operations” might be to continue running coal. Last, the fact that they were running coal at the time the violation was established, along with the fact that the condition was already warm when discovered, must be borne in mind. In the Court’s view, Respondent’s position comes too close to applying, in effect, an imminent danger test to sustain an S&S finding. Nor were the expressed concerns of the Inspector purely hypothetical. It was only three days prior to this citation that Inspector Coburn encountered a belt fire at this mine. Understandably, the Inspector had a similar concern that this violation could develop into the same problem.

            Accordingly, the admitted violation is found to be S&S, of moderate negligence and a civil penalty of $1,304.00 is assessed.

Citation No. 8501126.

            Inspector Coburn’s testimony also involved Citation Number 8501126, issued August 21, 2010. Tr. 221, Exhibit P-7, and Exhibit 8. The citation was issued for exceeding the permissible noise exposure level. Respondent contests the fact of violation and, alternatively, the S&S finding, the negligence determination, and the number of miners affected.

            On the date of the citation’s issuance, Coburn was doing a noise survey at the number 4 unit, as part of a diesel survey on the equipment outby. Such a survey is, as one would expect, conducted to measure the amount of noise miners are exposed to, and it is made, once a year, on a portal-to-portal basis. Tr. 223. In this instance, Coburn was surveying noise for all the personnel on the unit. A total of 7 miners were surveyed then. Upon opening the noise meters, the Inspector found that one miner, the continuous miner operator, as reflected in his dosimeter’s readings, was exposed to 149 percent that day. Tr. 225. In contrast, the maximum permitted exposure is 132 percent. Noise recorded on the noise dosimeter is calculated on a time-weighted average , meaning that the calculation is based on the exposure over the time of the whole shift. Tr. 225.

            With that finding, Coburn cited Highland for a violation of 30 C.F.R. § 62.130(a), which is entitled “Permissible exposure level,” and which provides: “(a) The mine operator must assure that no miner is exposed during any work shift to noise that exceeds the permissible exposure level. If during any work shift a miner's noise exposure exceeds the permissible exposure level, the mine operator must use all feasible engineering and administrative controls to reduce the miner's noise exposure to the permissible exposure level, and enroll the miner in a hearing conservation program that complies with § 62.150 of this part. When a mine operator uses administrative controls to reduce a miner's exposure, the mine operator must post the procedures for such controls on the mine bulletin board and provide a copy to the affected miner.”

            Even if a given miner is wearing ear protection which reduces exposure to noise, if the maximum amount is exceeded, there is still a violation. Tr. 231. Thus, in terms of whether there is a violation, the fact that a miner is wearing some noise reduction device, such as ear plugs, does not affect the determination of whether there is a violation. Tr. 232. However, wearing such plugs can impact the inspector’s finding of whether it is S&S. Tr. 232. In this instance, to abate the noise violation, Coburn required that the continuous miner operator wear ear plugs, even though he was wearing them anyway. Tr. 234. But, the mine also had to determine the source of the excessive noise and fix the equipment itself to make it compliant again. In this instance the mine learned that the defect was a loose conveyor chain on the continuous miner that was the cause of the noise problem. Tr. 234. Accordingly, once a violation occurs, the operator must determine its source and make corrective action. MSHA then returns and retests the individual. Tr. 238. In this instance the mine’s corrective action brought the noise level down to 125 percent. Tr. 239.

            Coburn stated that he marked the violation as being “reasonably likely” because, even where a miner is wearing ear plugs, the noise vibrations are still impacting him through his bone structure and hearing loss will result. Coburn also marked the violation as “permanently disabling” because the loss of hearing is permanent. Tr. 237. The Inspector had no information to allow him to determine how long the excessive noise problem had existed prior to the issuance of his citation. Tr. 240. He listed the number of miners affected as 2 because the equipment would be used on two shifts. Tr. 241.  

            Questioned about MSHA’s policy manual regarding noise violations, (Exhibit R-1, page 15 from MSHA’s Program Policy Manual, Volume III, question 3, Section 62.13) and also about the agency’s determination of whether such a violation is “S&S,” Respondent’s Counsel read into the record from that source that “if miners are overexposed to the PEL, a citation will not be S&S if [the mine operator] provide[s] miners with proper hearing protection and it is being worn.” Tr. 252-253. The Court noted that the document Respondent’s Counsel offered was dated February 12, 2012. Therefore, among other considerations in determining if a violation is S&S, it was not clear if that language was in effect at the time the citation was issued, in 2010.

            On other aspects of the cross-examination, counsel questioned why the Inspector’s dosimeter didn’t record a violation, as he was in close proximity to the miner operator. The Inspector explained that he was only taking a sound level meter reading, not a time-weighted average. Thus, his sound check was only an “instant” check. He did several such “instant” checks. Tr. 256-257. Some of those instant checks were done for the continuous miner. For example, one check recorded 100 DBA. Four such checks of the continuous miner were made on August 21, 2010 and each of those recorded results that were within acceptable parameters. Tr. 259. In terms of how long the source of the excessive noise had been continuing, Coburn did not know. It could have been a recent development or it might have been that way for two months. Tr. 266. A loose conveyor chain, the source of the excessive noise in this case, is active when cutting is occurring. Tr. 266. Coburn did not investigate whether Highland had used all feasible engineering controls to reduce the miner’s exposure to noise, but the Court notes that this is beside the point because the noise level was exceeded and the source of the noise was later determined. Tr. 269-271.

            On the issue of whether MSHA’s policy is that a violation should not be listed as “S&S” if the miner is wearing hearing protection, Coburn stated that, at least in 2003, the policy was that all hearing citations were to be cited as S&S. Tr. 273. Ultimately, Coburn stated that the decision to list a violation as “S&S” or not, is up to the issuing inspector’s discretion. Tr. 274. Coburn’s explanation for listing the violation as “S&S” was that he looks “at the overall bigger picture.” From his perspective, even though the miner operator was wearing ear plugs, he was still exposed to the continuous vibration from it. Thus, he was motivated by the long term ill effects from the noise vibration, a result which occurs whether ear plugs are being worn or not. Tr. 275. The Court commented that its evaluation of the gravity would not consider what might have happened, noise-wise, to the person operating the miner on the next shift. Tr. 278.

            Regarding the MSHA policy manual referenced by Respondent’s Counsel, and its reference that a violation should not be deemed S&S if the miner has proper hearing protection, Coburn stated that this requires protection which has been properly fitted by an audiologist or some other individual fitting. The problem is that the plugs used by the miner in this instance were not custom fitted. Tr. 283. Therefore, Coburn could not opine whether the miner in fact had proper hearing protection on that day, but only that he had hearing protection. Tr. 284. However, Coburn conceded that he could not cite any official source for his view of what “properly fitted” means. Tr. 285. Next, Coburn was asked about another document which Counsel for the Respondent retrieved from the internet. Consisting of 8 pages, and printed out by Counsel on February 9, 2012, it is entitled “Compliance guide to MSHA’s Occupational Noise Exposure Standard.” Referring to that, Counsel noted the statement at page 8 involving how MSHA will determine if all feasible controls have been implemented. However, the Court views this as immaterial to this citation as there was no claim by MSHA that such controls were not in place. This case is much simpler: the continuous miner operator was exposed to excessive noise levels because a loose chain on that machine elevated the noise to violative levels. In support of this perspective of the Court, Coburn expressed his view that if he came upon a continuous miner that was running, as this one was, with a loose chain, Highland should have tightened the chain before running coal and for that reason he believed that not all feasible engineering controls had been used. Tr. 291. The Court agrees with the Inspector’s rationale; not all feasible engineering controls were being properly utilized. A properly adjusted chain is a noise engineering control.

            Allen Rigney was called by the Respondent on this matter. Mr. Rigney has long experience as a coal miner and mainly this experience has been as a continuous miner operator. Tr. 543. Rigney is also a union member and was not part of Highland management. Tr. 543. Shown Exhibit P 7 and P 8, regarding Citation No. 8501126, Rigney recalled the instance when he wore a noise dosimeter that day. Tr. 544. Rigney’s recollection was that he attached the dosimeter on his suspenders, just below his shoulder on the right hand side. Tr. 545. He stated that he was wearing ear plugs that day and that it was his practice to regularly do so. Tr. 546. Before he begins operating his continuous miner he does “preop checks,” checking the lights, panic switches, water pressure, the screen, water sprays and the cable. Tr. 547. Those on the third shift do any needed maintenance. Tr. 547. Rigney knew what the conveyor chain is on a continuous miner and added that, if it becomes loose, maintenance people would tighten it. Tr. 548. He stated that one can see if a chain is loose or has slack in it and that he has experienced loose conveyor chains. Tr. 548. If that occurs, Rigney maintained that they shut down the miner and a mechanic would come to tighten it. Tr. 548. If the view was that it was loose enough to break it, they would shut it down immediately. Tr. 549. He also agreed that there is louder noise associated with a loose conveyor chain. Tr. 549.

            On cross-examination, Rigney stated that the ear plugs he uses are not professionally fitted. Tr. 551. Of importance, in the Court’s estimation, when Mr. Rigney was asked when he last shut down a miner because of a loose conveyor chain, he informed, “We normally don’t have to shut it down [but] if it comes to that, we do.” Tr. 552. Thus, it was clear that his decision to shut down was not about noise concerns, but rather if the chain was about to break. This is because ultimately it saves the mine production time to fix it then rather than waiting until it breaks. Tr. 553. When asked by the Court, Rigney agreed that it is not noise that will cause him to shut down the miner. Rather, it is the concern that the chain might break that causes him to act and shut it down. Tr. 554.

Respondent’s Contentions.

            Respondent notes that only one miner, continuous miner operator Allen Rigney, tested above the acceptable noise exposure level. This is true, but the point is also irrelevant to the issues to be decided. Respondent asserts that the Citation should be vacated. Referring to MSHA’s “Compliance Guide to Occupational Noise Exposure Standard,” and relying upon that document, Respondent contends that, as it was in compliance with it, MSHA assured that it would not issue citations if its requirements were followed. Specifically that Guide, in a Q & A section, advised that a mine which employed all feasible engineering controls, had enrolled affected miners in a hearing conservation plan and which provides those miners with personal hearing protectors, would not be issued a citation, even if the noise exposure exceeded the exposure limit. Respondent contends that it either met the exemption requirements or that, as to feasible controls, the government failed to show that Highland did not employ all means available.

            The Court notes that there is no dispute that the source of the excess noise arose from a loose conveyor chain on the continuous miner. However, Highland describes the Inspector’s testimony that the chain was loose before the shift started as speculation and therefore not a basis for the government to claim that feasible controls were available to reduce the noise. R’s Br. at 11. To support that argument, Highland notes that the Inspector did not cite Highland for an inadequate exam and that such an exam isn’t an “engineering control” in any event. Admitting that the loose chain could be viewed as an “administrative control,” it asserts that Inspector Coburn never stated what Highland failed to do in pre-operation exam of the continuous miner. Further, Highland points to the testimony of Allen Rigney, the miner operator, who suggested that he would have fixed a loose chain or called for maintenance, if it had been present at the shift’s start. However, as the Court’s recounting of that testimony reflects, that is not a full statement of Mr. Rigney’s testimony. In any event, the thrust of that the Respondent’s argument is that the government failed to meet its burden of proof to establish a violation. The Court does not concur. The continuous miner operator was exposed to noise above the permissible exposure level and the violation was established. Given the loose chain, not all feasible engineering controls were applied.

            Alternatively, if the citation is upheld, Respondent contends that it was not “S&S.” For this, it refers to a 1996 MSHA program policy manual, which, in a “Q & A” format, states that noise overexposure will not be considered as S&S if the miners are wearing proper hearing protection. Here, it notes that the miner operator was wearing hearing protection. Highland also challenges the Inspector’s assertion that MSHA no longer “credits” an operator where a miner is wearing hearing protection in deciding whether a noise exceedance is S&S. R’s Br. at 14-15, MSHA Noise workshop, www.msha.gov/1999noise/Enforcement, Workshops/ Longview.pdf and MSHA’s coal inspection procedures handbook, PH89-V-1(15), at 3-22 and 3-23, August 2008.

            Highland also contends that a permanently disabling injury was not likely to occur in this instance because, as the Inspector admitted, the mine’s prior noise tests showed no long term noise issues. Accordingly, Highland views the overexposure as properly characterized as a “one-time event,” attributable to the loose chain. R’s Br. at 15. Given that the miner machine is regularly maintained, the loose chain would not remain in that condition for long. When that is considered along with the Inspector’s admission that he did not know how long the problem had existed and the fact that the miner operator was wearing protection, Highland concludes that the citation should not have been deemed “permanently disabling.”

            Last, Highland asserts that the negligence should be considered “low,” and only one person, not two, would be affected. Based on the assertion that a conveyor chain will become loose periodically as part of normal wear and tear and the Respondent’s characterization of the statement of the miner operator that he will immediately turn off that machine when a conveyor chain becomes loose, Respondent submits that this condition would only have existed for a short time. Respondent also submits that the Inspector only found the excessive noise later in his inspection, suggesting that if it had been loose earlier his dosimeter results would have reflected the noise issue. R’s Br. at 16. Respondent adds further that, as the mine is vigilant in these matters, the problem would have been taken care of before the second shift miner operator began to use the machine and therefore only one person would have been affected by the noise. In the Court’s view, the testimony of Mr. Rigney suggests that would not be the case.

            From the government’s perspective it notes that the results of the noise survey in issue show that the miner operator here was exposed to 149 percent. This compares to the maximum allowable 132 percent at the 90 dBA personal exposure level. Respondent does not challenge the accuracy of the results on any theory of improper calibration. It notes that there was agreement that the source of the excess noise was the loose conveyor chain and the Inspector testified that the continuous miner would be noticeably louder and that the continuous miner operator agreed that is the case.

            The Secretary contends that the “all feasible engineering controls” provision comes into play if the noise exposure exceeds the PEL. Noting this, the Secretary emphasizes that a violation exists once a miner is exposed to noise exceeding the permissible exposure level and it is only then that the feasible controls provisions of the standard is applied. Sec. Br. at 18-19. The Secretary also asserts that although Highland provides its miners with hearing protectors, such as ear plugs, it does not require that they be worn and therefore Highland did not satisfy the “Compliance Guide to MSHA’s Occupational Noise Exposure Standards.”

            As to the S&S designation, the Secretary notes that the Inspector’s finding was based on the continued long-term effect, even when one wears ear plugs, of excessive noise and that damaging vibrations occur over the long term. Further, once damaged, hearing loss is permanent. The Secretary notes that as the loose chain was not repaired until a later date, both operators were exposed to the excessive noise levels. In fact, miner operator Rigney admitted that a loose chain will only get repaired immediately if it is about to break, not merely loose. Sec. Br. at 19, citing Tr. II at 553. The Secretary also notes that the claim such noise issues are rare must take into account that MSHA’s noise surveys only occur once a year and during a single shift. Sec. Br. at 20. The Secretary discounts that the miner operator was wearing ear plugs because they were not professionally fitted. She notes that this view is consistent with the proper respirable dust protection provision which requires a mask designed for the individual wearing it. Last, the Secretary notes that the MSHA Inspector Handbook advises that an S&S designation is a matter within an inspector’s discretion. The Court does not concur that such a finding can simply be a matter of a particular inspector’s discretion.

            Addressing the negligence, which Inspector Coburn listed as moderate, while the Secretary notes that the Inspector could not say how long the loose chain had been in that condition, it points out that the noise produced by that condition is loud and therefore quite noticeable. Based on its view of these factors, the Secretary views the proposed penalty of $1,304.00 to be appropriate.

Discussion.

            Based on the evidence of record, the Court concludes that the violation was S&S and of moderate negligence. The statutory criteria having been considered, it imposes a civil penalty of $1,304.00. An extended discussion is unnecessary. The evidence is conclusive that the noise limit was breached. Nor is there any doubt that the source of this was the loose chain, a problem which could have been rectified immediately. The Court has already commented upon the awareness of this excessive noise and the considerations which prompt action to address it. The mine acts, not out of concern of noise exceedance, but rather whether production will be interrupted. In terms of the S&S finding, the violation having been established and the discrete hazard, hearing loss, being obvious, and that such loss would clearly be a reasonably serious injury, only the third Mathies element need be discussed further. That there is a reasonable likelihood that the health hazard contributed to by the violation will result in illness, in this case, hearing loss is also present. Just as a presumption arises for dust overexposure, the same principle applies for noise overexposure. No one can state, nor demonstrate, what a particular overexposure will do to a given miner on a particular occasion. What is known, however, is that in most instances, both noise and dust overexposure work their harm over time, cumulatively. Here, the presumption was not rebutted by the Respondent.

            The Court, based on the testimony of the continuous miner operator, and the testimony of the issuing Inspector considers the mine’s negligence to have been moderate here. The condition was obvious and should have been corrected. Instead, production concerns, not excessive noise, was the determinative factor for whether action would be taken to deal with a loose chain.

Citation Nos. 8498633 and 8498634.

            These two citations, being closely related, will be discussed together. Citation No. 8498633, Ex. P 13, asserting a violation of 30 C.F.R. § 75.1731(a), involved allegations of a damaged roller which posed a fire hazard. Highland concedes the violation listed in that citation, but challenges the attendant S&S and moderate negligence assertions. Citation No. 8498634, Ex. P 15, is related to 8498633 because it cites Highland’s failure to note that damaged roller in its pre/onshift examinations. This latter citation originally alleged a violation of 30 C.F.R. § 75.360(f), but was amended at the hearing to cite 30 C.F.R. 75.360(b)(1), as the more appliable provision. Highland’s position for Citation No. 8498634 is that, even as amended, the Citation should be vacated, and if not, it should be deemed non-S&S and “unlikely.”

            For the admitted violation in Citation No. 8498633, the cited provision provides: “Maintenance of belt conveyors and belt conveyor entries. (a) Damaged rollers, or other damaged belt conveyor components, which pose a fire hazard must be immediately repaired or replaced. All other damaged rollers, or other damaged belt conveyor components, must be repaired or replaced.”

            Inspector Rodney Adamson, an MSHA electrical supervisor for District 8, Vincennes, Indiana, testified. Inspector Adamson issued Citation No. 8498633 on August 17, 2010. Tr. 317. Ex. P 14 are his notes associated with that citation. While then conducting an E01 inspection, the Inspector was at the mine on the evening of the 17^th, during the third shift.

            Upon arriving on the No. 4 unit, Adamson smelled heating associated with the conveyor belt running. As the shift continued, that smell became more pronounced, prompting him to investigate further. He found the problem at the tailpiece, where he saw that the “snub roller” was damaged to the point that the belt has cut into the snub roller, producing heat. Tr. 321. The machinery was taken out of service. Tr. 321. In Adamson’s citation he noted that the “load framing structure was warm to the touch” and he reaffirmed the smell of burning in the immediate vicinity. Tr. 323. It was actually more than “warm,” since the Inspector could not keep his gloved hand on the load framing structure, as it was too hot. Tr. 323. The roller itself was also “hot to the touch.” Tr. 323. This was hotter than the framing because it was closer to the heat source, that is, closer to where the belt was rubbing. Tr. 323. The Citation further noted that the damaged roller was “gobbed out,” meaning that there was material between the snub roller. In this instance, the material was so thick that it kept the roller from moving freely. Tr. 325. That is, the material had become wedged between the roller, preventing it from moving freely. Tr. 325.

            An additional reason for concern, the Inspector included in his citation that a “wedge board” was found lodged between the low framing and the belt. Tr. 325. He found the wedge board underneath the damaged roller and in close proximity to it. Tr. 327. It was the Inspector’s opinion that, as a means to deal with the damaged rollers, the board could serve to keep the belt off the metal framing, so that the belt would rub on the wood instead of the framing. Tr. 326. He could think of no other purpose for the board’s presence. Tr. 328. The inspector advised that use of wedge board in this manner is never consistent with good mining practices. Tr. 326. Being made of wood, the wedge board is combustible. Tr. 327.

            Reading from his citation notes at P 14, pages 14-15, the Inspector related that “the damaged snub roller or alignment roller was damaged in that the roller was froze and not rotating as designed on the most inby end of the low framing on the number 4 unit. The damaged roller presented a fire hazard and the operator removed the equipment from service immediately and began repairing and replacing the roller. . . . the roller was very hot to touch. The metal surface was warm. I smelled the smoldering and heating that had occurred. . . . I had smelt heating at the start of the shift. The section foreman walked the right side of the snake [FCT], [but] the stuck roller was on the left side of the low framing. P 14 and Tr. 329-330. The low framing is installed on the far left hand side of the belt entry. Tr. 330. The FCT arrangement means there is a lot of space on the right side of the entry. Tr. 331. In sum, the Inspector identified two problems. The roller was not maintained properly to roll, as it should, with the consequence that it could not do its function of keeping the belt aligned. In addition, the stuck roller was coming into contact with the belt, causing heating. Tr. 332. The Inspector clarified that the belt was not aligned when he first came upon the problem. Tr. 333.

            Reading further from his notes, the Inspector restated that the stuck roller was on the left side of the framing. Ex. P 14, at page 15. The section foreman told him that he did not smell anything and that he had come by the area around 10:10 p.m. The Inspector noted that the foreman should check the tailpiece thoroughly. The Inspector also learned that the foreman was unaware of the fire that occurred at the mine on the low framing the prior Monday, August 9th. Tr. 334. The Inspector expressed that the continuous miner operator would be affected by the hazard, as the ventilation there traveled inby, towards the section. He noted that this heat would not take long to generate. Also, the FCT operator would be affected, as would two roof bolt operators. The latter were on the return side of that section. Tr. 335. Thus, they were inby the tailpiece of the hazardous area. When questioned by the Inspector, he learned that the miners also were unaware of the mine’s fire on the low framing the previous week. Tr. 335. The Inspector was of the view that, as he had issued two citations in the last quarter, dealing with the fire hazard of low framing, the miners should have had increased awareness of the problem. Tr. The citation involved here pertained to the number 4 unit and the earlier fire occurred on a belt in the same unit, also involving a FCT. Tr. 336-337.

            The Court expressed that the subject violation was pretty serious in its own right, regardless of whether the prior violation was in the same section or not. Tr. 337. Thus, the fact that the same violation was cited a week earlier, in the Court’s view, is sufficient without demonstrating that it occurred in the same area. Tr. 337. In that earlier instance, there were several stuck rollers. This prior event occurred in the prior quarter’s inspection. Tr. 338.

Given that recent history, the Inspector’s larger concern was that the mine personnel were essentially ignoring checking the left side of the belt. Examining the right side only, as demonstrated by this violation, is insufficient. Tr. 341. According to the Inspector, the foreman agreed that having a DTI board placed on the left side of the belt would be a good idea, to insure that side was also being examined. Tr. 342.

            Citing 30 C.F.R 75.1731(a), and its requirement that the belt be maintained in safe operating condition, the Inspector marked the gravity as “highly likely.” Tr. 343. This assessment was based upon the Inspector’s mining experience and his awareness that a belt fire killed two miners at a Kentucky mine. That belt fire arose from frictional sources. Tr. 343. He expressed the importance of frictional sources being removed from belt travelways and belt lines. While he couldn’t predict the precise time it would take for the frictional contact source he found to start a fire, the larger point was that it needed to be addressed immediately. Tr. 343. Thus, his knowledge, including mine fires being spawned from such circumstances, were part of his gravity assessment. However, the Inspector agreed that, history and experience aside, the situation he came upon was serious in its own right. Tr. 344. He confirmed that, even without that history, he would have marked the gravity the same. Tr. 345.

            Still, the Inspector did not mark the violation as an unwarrantable failure because, as he understood it, an agent of the operator, such as a belt examiner or management personnel, has to know of the condition. Tr. 346. In this instance the person with the Inspector admitted that he hadn’t examined that side of the belt and therefor he didn’t observe the problem. Tr. 346. Somewhat at odds with that view, was the Inspector’s noting that examiners are held to a higher degree of care, as their job must be done diligently in order to observe such hazards. Tr. 346. Weighing the factors, the Inspector decided to give the foreman the benefit of the doubt, marking the negligence as moderate. Tr. 346. In the Court’s view this was more than fair on the inspector’s part.

            Continuing with his assessment, the Inspector marked that lost work days or restricted duty would result because “there was no doubt that this would indeed cause a fire” and, with people in the immediate vicinity, they would be affected by smoke inhalation and high carbon monoxide (CO) concentrations. CO can have a rapid impact; with sometimes as little as one breath bringing a person down. Tr. 347. The smell informed him that some heating had started, but the Inspector could not pinpoint the number of hours since the heating had started. Tr. 348. The belt is to be examined both pre-shift and during the shift. Tr. 349. The violation was abated by taking the belt out of service and replacing the roller. Tr. 349. In addition, the gobbed material had to be cleaned out before the roller could removed. Tr. 350.

            Upon cross-examination, the Inspector agreed that the area he cited is on the active working section. He approached that area by coming down the belt entry and the cited roller was in the belt entry. As noted earlier, while one cannot smell “heat” the Inspector was expressing that his nose alerted him to the rubber smell he detected. The exact location of a smell’s origination can be difficult to immediately ascertain. In any event, he was referring to “frictional heating” as the smell he was detecting. Tr. 353. The Inspector, understandably, could not recall his exact route of travel on that day but if he had traveled to the tailpiece, the cited area would have been about 10 to 15 feet from that. Tr. 355. He approximated, because Respondent’s Counsel inquired about it, that the furthest he could have been away from the area cited was about 90 feet, before he left the belt entry. Tr. 354-355. Again, it was his nose that first alerted him to the smell when he traveled down the belt entry and arrived on the section. Tr. 356. He estimated he was about a crosscut away when he noticed the smell. Tr. 356. He listed the violation as highly likely because the hazard was “reasonably likely” to occur and “highly likely” to cause an injury. Tr. 356.

            When he noticed the smell, the Inspector and John Rich, who was with him, were trying to figure out the source of the smell. Stuck rollers were one of possibilities he was considering as the culprit for the odor. Tr. 357-358. The Inspector confirmed that the citation was written about four hours after he was on the section.

            Returning to the citation itself, the Inspector in response to questions about the cited snub roller, agreed that there are certain rollers that are under the belt but that the roller he cited was on the side of the belt, that is, on the vertical plane of the belt. Tr. 365-366. The Inspector agreed that such snub rollers do not rotate all of the time. In fact, they will not rotate if the belt is running exactly true. Thus, such a roller, not rolling, does not by that fact alone, indicate that it is frozen or stuck. Tr 367. The Court views this as an interesting, but ultimately irrelevant fact, for the matters that are to be decided here. The Inspector also agreed that the mine was not cited for an accumulation violation. Tr. 367. However, while the Inspector did not claim that there was an accumulation of coal, in noting that the snub roller was “gobbed out,” his concern continued to be with the heat caused by the stuck roller on the belt and the attendant risk of a fire. Tr. 368.

            Admitting that one needs an ignition and fuel for a fire to develop, the Inspector advised that the belt itself is a fuel for the fire. Tr. 370. He added that simply because he did not cite the area for an accumulation of coal does not mean that coal was not present. After all, as the Inspector noted, it is a coal mine. Tr. 370. Elaborating upon the basis for his concern that the belt could be a fire source, the Inspector stated that as friction continues on a belt, slivers of belt will get shaved off of it. The belt itself will burn, as being “flame resistant” does not mean that the belt will not burn. Tr. 371. The Inspector did concede that, as the belt moves from the heat source, it will cool some. Tr. 373. However, he countered that, when a small piece of the belt separates, such a small piece is easier to ignite than a large piece of belt, much like a small piece of paper will ignite more readily than a large piece of wood. Tr. 373. This can happen as the belt cuts into the metal framing and small pieces of belt are severed from it. Tr. 373. The Inspector agreed with the Court’s suggested analogy that small pieces of belt are akin to kindling wood. Tr. 374. The Inspector agreed that his notes made no remark about frays of belt material, as he saw none. However, he added that the belt had already cut into the metal roller although no fraying of the belt was yet present. Tr. 375.

            Asked about the wedge board he found, the Inspector rejected Respondent Counsel’s suggestion that it could have been placed there after the belt was removed from service. He also rejected the idea that it came to be there inadvertently. Rather, he expressed that it was placed there. Tr. 382. While he could not tell exactly where it had been placed, it could have been in the area below the cited snub roller. Tr. 382. However, the board, which was sometimes referred to as the “cap board,” was not, when discovered by the Inspector, in direct contact with the cited snub roller. Tr. 383. In the Court’s view this distracts from the more serious fact that the board should not have been there at all and that there was no innocent or legitimate purpose offered for its purpose. The Court concludes that, on this record, the wedge board was put there as an inappropriate means to deal with the roller that had gone bad. Tr. 390.

            On redirect, the Inspector agreed that it was not simply the heat smell he detected that caused him concerns, it was the attending factors; the belt out of alignment, the damaged snub roller, the wooden wedge board, and the gobbed out material. Those factors impacted his determination that the hazard was highly likely to result in an injury. Tr. 393. Further, the entire length of the belt was rubbing on the troublesome roller. Tr. 394. That is, the belt was in continuous contact with that roller. Tr. 394. Therefore the roller itself would continue to get hotter as the belt continued to rub against it. Tr. 394. Further, the roller is fixed to the belt framing and that belt framing was found by the Inspector to also be warm. Tr. 394. Then, there was wedge board found too. Tr. 394. In terms of ignition sources for this citation, the Inspector confirmed that all of the factors were present; an ignition source, a fuel source and oxygen. Tr. 395. The gobbed up material was an ignition source, as was the wedge board and the belt itself. Tr. 395. The shavings from the belt can both fly off and fall down in the area where they are created and the wedge board is in the area underneath this, that is below the snub roller. Thus, the shavings could land on the wedge board, in the Inspector’s estimation. Tr. 396. Further, the shavings would be created in the course of continued, normal, mining operations, if the defective roller were not corrected. Tr. 396.

            In terms of the Inspector Adamson’s concerns about CO, should a fire occur, he expressed that four miners could be affected by such gas, as the belt line involved travels inby and those miners would be downwind of that area. Tr. 396. This means, of course, that if a fire occurred, the smoke would travel inby towards those miners. Tr. 397. Nor would a regulator divert all of such air with CO; some such air would make it past the regulator. Tr. 397. The Secretary seeks a $2,901.00 civil penalty for this violation.

Citation No. 8498634.

            As noted, this citation, which is related to the just discussed Citation No. 8498633, originally invoked 30 C.F.R. § 75.360(f) but, at hearing, § 75.360(b)(1) was cited in its place. That initially cited section, from § 75.360 is entitled, “Preshift examination at fixed Intervals,” and provides at subsection (a)(1) that “[e]xcept as provided in paragraph (a)(2) of this section, 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. Subsection (f) of that provision entitled “Certification,” provides “[a]t each working place examined, the person doing the preshift examination shall certify by initials, date, and the time, that the examination was made. In areas required to be examined outby a working section, the certified person shall certify by initials, date, and the time at enough locations to show that the entire area has been examined.”

            The citation is related to the stuck roller condition in that it cited Highland for an inadequate examination of that area of the belt. Tr. 400. When Inspector Adamson issued the citation, the mine’s maintenance foreman, John Rich, was with him, as was the miner’s representative, Clarence Powell. Tr. 401. Upon performing such an exam, the fact that it was done is initially noted at enough locations to show that the entire area has been examined by recording the date, and the time of the exam, along with the initials of the person doing it. In this instance, the mine’s examiner, while he did an exam of the belt, admitted to the Inspector that it was deficient in that he had not examined the left side of the belt. Tr. 402. The examiner had only traveled on the right side of the belt. Tr. 402.

Two preliminary matters: the amendment to the Citation; and a matter that is immaterial to the issues associated with the cited standard.

The Amendment

            At the hearing, the Secretary moved to amend the citation, citing in its place 30 C.F.R. § 75.360(b)(1). That subsection provides: “(b) The person conducting the preshift examination shall examine for hazardous conditions, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction at the following locations: (1) Roadways, travelways and track haulageways where persons are scheduled, prior to the beginning of the preshift examination, to work or travel during the oncoming shift.” (emphasis added). Implicit in that standard is a requirement that the examination be thorough, noting all existing, recognizable, hazardous conditions.

            In the usual arrangement, which was not the arrangement here, the belt framing for the belt structures will stay in place and this is true whether it is on a unit section or a mainline belt. Once installed, those things stay there until the mining for that area is completed. Tr. 409. That period, where things remain static, may last for a month. Tr. 410. Here, in contrast, there was the low framing that dumps on to the belt and it is closer to the section. Furthermore, the low framing is directly attached to the FCT. Thus, for this citation, the location of the belt structure is mobile, so it moves throughout the section and it makes up the belt line too. Tr. 410.

            The government then moved to amend the citation to cite a violation of section 75.360(b)(1), for an inadequate exam, instead of the previously cited provision at 75.360(f). Tr. 446. From the Secretary’s perspective regarding Citation No. 8498634, it notes that both this Citation and Citation No. 8498633 are based upon essentially the same conditions. This is not in dispute. The Secretary points out that both subpart provisions address pre-shift exam responsibilities, though it acknowleges that 75.360(f) “deals specifically with dates, times, and initials of examinations being posted,” while subsection (b)(1) “deals more generally with identifying hazardous conditions during the examination.” It notes that the first sentence of Inspector Adamson’s citation asserted that “[a]n inadequate exam was conducted on the No. 4 working unit section and areas where miners are required to work.” Sec. Br. at 28, citing Ex. P 15.

            Regarding the initially cited subsection, §75.360(f), Highland, relying on the Inspector’s statement that he was citing the area as a “working section,” contends that its employee, Mr. Branson, did examine the entire working section and that this encompassed noting dates, times and initials, including a location on the low framing, which was part of the area cited. Accordingly, with no dispute that Mr. Branson “created documentation” of his pre-shift exam, and certified such on nearby initial boards, Highland argues that it complied with the standard’s provision. Highland Br. at 23. Much as it argued in another citation heard during the same proceedings, and previously discussed in the Court’s decision in KENT 2010 1632, in which Highland took the position that if a means to direct exhaust gas was present, it mattered not if parts of it were improperly connected, Highland contends here that if the dates, times and initials are recorded, that is the end of the story, regardless of whether in so making such markings, they were consistent with recording whether problems were present. The Court rejected that strained interpretation of the exhaust standard requirement as at odds with the remedial nature of the Mine Act and it rejects that narrow reading here as well.

            As stated, the motion to amend the provision cited was granted. Absent certain findings, that is the usual result. See, Wyoming Fuel, 14 FMSHRC 1282, 1290 (Aug. 1992). Consequently, the issue of establishing whether 30 C.F.R. § 75.360(f) was violated became moot because, at hearing, the Court allowed the Secretary to argue that a different section should be applied, 75.360(b)(1). Although such amendments may refer to an entirely different safety standard, it is noted that the amended cited provision in this instance appears within the same standard, being merely a different subpart. In ruling that it was both appropriate and entirely fair for the Secretary to be able to amend the standard relied upon, the Court notes that there was no confusion at work here. Inspector Adamson’s notes described the matter as an “inadequate exam” citation, and Respondent’s own witnesses, Mr. Hawkins and Mr. Rich, described it the same way, as an inadequate exam.  

A matter that is immaterial to the cited standard

            In the course of Inspector Adamson’s testimony, and related to the original subsection cited by him, the Inspector straddled his concerns between the inadequate examination and his ideas of the remedy to prevent recurrences. It was his view that installing additional board(s) to mark date, time and initials, would prevent such problems. While the Court respects the Inspector’s good faith suggestions to ensure that both sides of a belt are examined, it also views the whole discussion of board placements and the number of boards needed as a distraction from the issue to be decided. Bearing in mind that Highland conceded that the roller was defective, admitting the violation alleged in Citation No. 8498633, the issue for Citation No. 8498634 is whether that admitted violation should have been detected if there had been an adequate exam. Therefore, while Adamson’s idea of having initial boards on the left side of the tailpiece was a plausible remedy to the problem of missing hazards on that side during a preshift, the question is whether, given Highland’s failures regarding the conditions cited in Citation Number 8498633, it ran afoul of 30 C.F.R. 75.360 (b)(1). The Court finds that it did violate the standard.

The Inadequate Examination Citation

            In a sense, forgetting that the provision cited was amended at the hearing, Respondent’s Counsel argued that the Inspector’s concern had been about dates, times and initials and that the Secretary changed the charge, upon realizing that the original basis was not sustainable. Tr. 446. Referred to Exhibit P 15, Citation No. 8498634, which the Inspector served upon Highland’s Les Hawkins, Respondent’s Counsel spent much attention upon the Inspector’s view that a board be placed in the cited area. This was the basis for its view that the actual motivation for his citation did not pertain to an inadequate exam. The Court has already expressed that this whole subject is a distraction from the central issue of whether an adequate exam was performed.

            Not to be forgotten, the Inspector confirmed that the area for which he cited the mine for the belt and rollers is part of Highland’s pre-shift examination for the section. Tr. 411. The Inspector’s understanding was that the section foreman made his pre-shift exam just hours before, on that shift. This was that same foreman who told the Inspector that he did not examine the left side of that belt. Tr. 413.

            As noted, although it is true that the Inspector was concerned about date, time and initial boards, that does not undercut the appropriateness of the amended provision cited by the Secretary as having been violated. While the Inspector listed the incorrect subsection provision at the time the citation was issued, this was understandable because he was focused upon avoiding a recurrence of an inadequate inspection. It was in that context that he expressed that installing another date, time and initial board in that area could eliminate the problem of an examiner failing to examine the left side of the belt. While unhappy about the amendment not coming about until the hearing was underway, Highland conceded that the Secretary can make such amendments to conform to the facts and it admits it suffered no prejudice from that action. Whether an additional board is present or not, the inspection responsibility involves examining both sides and here the examiner admitted to the Inspector that he did not examine both sides. The Inspector’s observations of the conditions cited in Citation No. 8498633, as augmented by his testimony and the examiner’s admission to him of his incomplete exam, all establish the violation for Citation No. 8498634. Clearly, under the amended provision cited, the violation was established.

            In trying to cast doubt upon the accuracy of the Inspector’s recounting of the events, Respondent’s Counsel had the Inspector agree that four hours elapsed from the time he first noticed the burning smell to the time when he found the violation. Tr. 427. By this admission, Counsel for Respondent was suggesting that, in truth, there was no smell that continued throughout the time that the Inspector was doing his inspection. Tr. 431. Further, the question suggested that the gravity could not have been “highly likely” because he would have continued to investigate the smell, had it continued to have been perceived. It is true, and the Inspector acknowledged, that when he first noticed the odor, he didn’t then drop everything he was doing and investigate the source. However, when he returned to that area and the odor was still present, he then found its source and the citations were then issued. Tr. 432.

            The Court addressed the issue raised by Counsel for the Respondent that the Inspector should have looked more expansively around the area where he found the problem with the roller, such as whether there was a board near the power center or some other nearby location to determine if in fact the issue had been noted after all. Tr. 434. The Inspector’s response was that his concern was that no exam was being made on the left side of the conveyor where the hazard was found. Tr. 436. The Inspector clarified that he was not contending that one would need to mark on a board for each and every roller along the conveyor. He added that one does not document the condition on the board anyway; instead they document the date, time and add their initials, all to document that they were there. Tr. 436. Hazards found are documented in the record exam book, which is located on the surface. Tr. 436. Thus, the Inspector did not contend that no exam had been done. Rather, his concern was the lack of an exam being made on the left side of the belt. Tr. 437. The Inspector’s view was that a board on the right side would not have satisfied him as to the snub roller on the left side, but really all of this is beside the point the Inspector was making because his concern was the examiner’s admission that he did not examine the left side of the belt. Tr. 438. The Court noted that two matters were being discussed. One, the only issue that mattered, was where the examiner looked and where he did not look. The other issue, a distraction in the Court’s view, was where one is required to mark and date and initial on a board about the examination having been done. Tr. 438. The latter issue was Respondent’s Counsel’s point that one could mark on a board near where the problem was to indicate that the exam had been made. Counsel may be correct, or possibly not, but this decision does not involve a determination about that issue.

            Upon further questioning, the Inspector stated that his concern was the way the exam had been conducted. He acknowledged that for most of the belt it can be examined adequately from the right side. However, when one arrives at the tailpiece, there are moving parts and equipment that need to be examined on both sides of the belt. Tr. 443. And, bringing the issue back to the real point, the Inspector cited the Respondent for an inadequate exam on the number 4 unit working section and the areas where miners are required to work. Tr. 443. Thus, the Inspector’s primary concern was not about the presence of date, time and initial boards, rather it was that an exam had not been conducted on the left side. Tr. 444. With that failure, a violation was established. Thus, even if the Inspector had seen dates, times and initials, it still would have been his position that the exam of the tailpiece had been inadequate. Tr. 448. In this regard it is noted that the citation itself it refers to an inadequate exam having been conducted. Tr. 449.

            Bryan Branson was called by the Respondent as a witness concerning these two matters. Mr. Branson has been in coal mining since 1993. He was certified as a foreman in 2001. Tr. 557. He does pre-shift and on-shift exams. At the time in issue, he was a face boss. Tr. 558. Shown the Citations in issue, Nos. 8498633 and 8498634, he identified Exhibits R 3 and R 4. R 3 records the pre-shift notes he took that night and R 4 reflects additional notes, reflecting where he made the tailpiece during his preshift. Tr. 559. On August 17, 2010, he was aware there was a MSHA inspector on his section and he met with Inspector Adamson and the Inspector began examining water sprays and making sure everything was working. Tr. 561. The Inspector then shut down the FCT, asserting they had the wrong type of sprays. Tr. 562. After that issue, Branson started his pre-shift.

            However, when asked the critical question as to whether there was any roller stuck or gobbed up at that time, the witness responded: “No, not that I’m aware of. But the roller that’s written in [the] citation is an alignment roller.” Tr. 570. It is located about knee high and if the belt is running in the center, the roller won’t turn.” Tr. 571. It was the witness’ contention that he was only a foot and a half away from the cited roller when he did his exam and that he noted no problem. Accordingly he saw no misalignment, nor any gobbing up, at least, as he said, none he was aware of and he smelled nothing either. Tr. 572. In fact, the witness stated that he walked by the area twice and detected none of the above. Nor, it should be added, did he see any wedge board.

            Accordingly, with such variant versions of the conditions, the Court must make credibility determinations. To the suggestion from Respondent’s Counsel that a roller can gob up in a short time, the witness responded that “I don’t know how you would answer that question . . . [i]t could happen any time. . .” Tr. 575. However, he repeated that it was not gobbed or frozen at 10:00 or 10:05. Tr. 575. Essentially, it was the witness’ testimony that all was well when he examined the area during his preshift and then two hours later he learned that the roller had locked up in the tailpiece and needed to be changed. Tr. 577. In fact, even after his preshift, the witness was back in the area around 11:15 or so, but noticed nothing then in terms of smell or seeing anything awry. Tr. 578. For his later walk by, the witness stated that he was simply doing that, walking by the area, as opposed to examining the area. Tr. 579. Following the Inspector’s direction that the roller needed to be changed, the witness and John Rich performed that task. Tr. 579. Branson described the roller as “warm” but he picked it up barehanded and only about 15 minutes had elapsed between the time of the shut down and his handling the roller. Tr. 580.

            Regarding the second, related, citation, No. 8498634, for an inadequate preshift exam, Branson did not agree that there was a violation. Tr. 580. Branson’s view was that he performed a thorough and complete exam. Tr. 581. Nor did he view it as “S&S,” as he did not feel there was a violation to begin with. Tr. 582. Nor did he view it as highly likely to result in an injury. In this regard he noted that the roller doesn’t turn all the time and its purpose is as a precaution to keep the belt from rubbing the tailpiece. Tr. 582.

            In response to questions from the Court, Mr. Branson affirmed that there was a damaged roller, but equivocated about it, stating, “I don’t deny that there was a possibility that [the roller] was damaged. Tr. 596. He did concede that it was replaced. Tr. 596. As to the fact that the roller was, by his account, warm, Branson stated that simply having the belt running against it will cause it to get warm. Tr. 596. In connection with this assertion, that Mr. Branson expressed that he didn’t believe the roller was actually damaged, he added that he mentioned this to the Inspector. This was surprising to for the Court to hear, as Mr. Branson did not make that claim in his direct testimony. Branson stated that he remembered the Inspector telling him that he could “smell heat” and that it was the assertion from the Inspector that prompted his challenge to the claim that the roller had a problem. Tr. 597. Branson also disputed that there was any wedge board present, adding that the Inspector did not point out any wedge board’s presence to him. Tr. 598. Although Mr. Branson said that he first learned of the wedge board matter when he arrived on the surface, he did not go back and look for one. Thus he made no further investigation about the issue. Tr. 598.

            When asked by the Court that if he assumed that he missed the defective roller and that he missed the wedge board, whether it would reflect badly upon him as certified mine foreman, the witness agreed that it would. Tr. 599. The witness added that one can’t put a wedge board in that area anyway, in that one can’t stop the roller from turning. Tr. 599. However, he conceded that, if used, a wedge board would be improper to use there. Tr. 599. The witness maintained that a wedge board is used to put a header on top of a timber, in order to hold pressure on it. Tr. 600. Thus, he maintained that a wedge board can’t wedge a roller out. Tr. 600.

            Leslie Hawkins was also called by the Respondent about both these citations. Mr. Hawkins has been working in coal mines since 1995. Tr. 911. Presently he is employed by Highland as an outby supervisor. Tr. 912. Regarding these matters, he first testified about “low framing,” which he described as “[b]asically [ ] a belt structure for the belt on an FCT unit.” Tr. 913. Hawkins stated that he has experience in doing inspections of low framing. As for noting such examinations, that is to say, marking the date, time and examiner’s initials, Hawkins stated that the “whole general area was always notated over at the power center” and not at a board right at the low framing. That is to say, marking was not done at the tailpiece. Tr. 914. Hawkins knew of no instance where MSHA inspectors criticized this marking location practice. Tr. 915. The Court would comment again that the swirl of testimony relating to the marking location issue only serves to distract from the issues at hand. Highland was not cited for an inadequate number or improper placement of such marking boards. As noted, that issue arose in the context of the Inspector’s offering a remedy to the problem of the mine missing problems which are present on the other side of a conveyor from the side being walked. While both sides do not have to be walked, both sides must be examined, and the suggestion of an additional board was simply an offering of a method to ensure that examiners would in fact examine both sides of the conveyor.

            Mr. Hawkins arrived just as they were changing the roller. Tr. 917. At that time he was also the mine’s outby foreman. Tr. 917. He observed the completion of the roller change out. He stated he did not see any wedge board Tr. 925. Mr. Hawkins described such a board as a small piece of wood, in a wedge shape, roughly 8 inches in length, which tapers from 3/4 of an inch down to a point. Tr. 918. Thus, Hawkins certainly knew of such things and that they exist in mining. Later, when outside the mine, he had a conversation with Inspector Adamson about the citation regarding the roller, with most of their conversation pertaining to the citation for the claimed inadequate examination. It bothered Hawkins that the citation was issued only two hours after his section foreman had done the mine’s examination of the area. Tr. 920. Hawkins’ position was that “a lot of things can go wrong or happen or change” in the span of two hours and he maintained that the Inspector didn’t disagree with that viewpoint. Tr. 921. Rather, as already noted several times, Hawkins stated that the Inspector’s main concern was having signage, that is, a board, for DTI’s in the location of the violation, meaning at the end of the low framing tailpiece. Tr. 922.

            Although Mr. Hawkins stated that one can walk on both sides of low framing, that is, he maintained that one can walk on the return side, as well as the travel or walk-by side, he agreed that one would normally walk the travelway on the return side of the belt. Tr. 926-927. Hawkins also stated that he has inspected the tailpiece on the number 4 unit and that he would check both sides of the belt, and check the rollers on the return side and the rollers on the intake side too. Tr. 927. However, he conceded that the intake side is harder to get to because there is the bridge and the “snake” (i.e. the “FTC”) is on that side. However, he repeated that both sides can be examined. Tr. 927. Mr. Hawkins agreed that Bryan Branson did the preshift exam on the day in issue and that he spoke with him about the matter. However, when asked if Branson mentioned his conversation with the Inspector, Hawkins offered “Not that I can remember.” Tr. 928. (emphasis added). Along that line, Hawkins agreed that if Branson admitted to the Inspector that he only walked the intake side, he would have no basis to disagree with that assertion. Tr. 929.

            Highland also called John Rich about these matters. Mr. Rich accompanied Inspector Adamson on that day. Mr. Rich stated he was a rotation blue crew maintenance foreman at that time. As to whether Rich then smelled any rubber or anything like that as they passed the air lock and moved towards the power center, he first responded, “Not that I recall.” Tr. 939. As between the Inspector, who did recall, and Mr. Rich who could not recall, the Court ascribes greater credit to the Inspector’s recollection. When Respondent’s Counsel revisited the smell issue for a fourth time, this time inquiring if the Inspector remarked about it, Rich again stated “Not that I recall.” Tr. 941. Rich did say that none of the others around the power center remarked about any smell. Tr. 942.

            Rich and the Inspector then went to the faces. Again, he detected no smell and no one mentioned the subject. Tr. 945. They then returned to the power center. From there, they went to the scoop charger and Rich recounted the route he took for that destination too, noting that there was a crossover, located in the number 5 entry, which they traveled across to arrive at the location for the scoop charger. Tr. 946. They traveled outby in the number 6 entry and then to the number 5 entry. Tr. 947. It was in the number 5 entry, where the low framing and the belt were present, that Inspector Adamson cited. Tr. 947. In traveling from the 6 to the 5 crosscut and when in the number 5 entry, Rich again stated that he smelled nothing. Tr. 947. Nor, when in the number 5 entry, did they then investigate any smell. Tr. 948. When at the scoop charger, the two spent about 30 minutes there dealing with a couple of issues. Tr. 948. They then went to the number 4 entry. The number 4 entry was one entry over from the number 5 and at that point, Rich stated that they did smell something on the return side of the tailpiece. Tr. 949. Immediately, Rich knew that it was a belt smell and they then went directly to the tailpiece. Tr. 949-950. Accordingly, Respondent’s overarching point was that this testimony demonstrates that while traveling all over the area, no smell was detected until the last point of Mr. Rich’s travel description, with the further point being that either there was no smell emanating up to that point in time or that it was very faint, as Rich did not smell anything until that time. Respondent’s other contention is that the smell just arose when Rich detected it and that they were then at the source of the problem within a minute at the most. Tr. 951. The Court considered this testimony, but ultimately this is a credibility determination. The Court finds the Inspector’s recounting to be more credible.

            Mr. Rich then described their actions upon arriving at the smell source at the low framing. This consisted of shutting the belt down and changing the roller. Tr. 950. As with other Highland testimony, Rich stated that he was touching the roller within 10 minutes of having shut down the belt and that the roller was warm only and that he was able to hold it with a gloved hand. Tr. 952. When asked if ever saw a cap wedge there, Mr. Rich responded, “Not that I recall.” Tr. 952. (italics added). The Court would note that he certainly had the opportunity to see one if it was present, as he was involved along with Bryan Branson and mechanic Phillip Blanford, in changing the roller. Yet, he could not recall about the cap wedge.

            Unlike an earlier Highland witness, Mr. Rich agreed that the roller had to be changed because its bearings had locked up. He then agreed that the roller would have continued to get hot, if it were not replaced. Tr. 954-955. He also agreed that, in the ten minutes which elapsed since the belt was shut down, the roller was still warm when he touched it with his gloved hand. Tr. 955. Rich also admitted that, if the condition had continued to exist, “we could possibly have a belt fire.” Tr. 955. In fact, he acknowledged then learning from the Inspector that the mine had a belt fire a few days earlier, yet he did not know of that until the Inspector so informed him. Tr. 956.

Penalty Criteria.

            In marking that the violation was reasonably likely to result in an injury or illness, the Inspector stated that he believed the hazard could be expected to cause an injury and that such injury would be reasonably serious. Tr. 414. He noted the source, the oxygen, the heat being present, the fuel being there and the roller continuing to be in contact with that frictional source. To that, he added that the temperature would get hotter as the belt continued to operate. Tr. 414. As for his Citation, number 8498634, the Inspector marked that violation as likely to result in lost workdays or restricted duty injuries, attributable to smoke inhalation and burns from a fire. Tr. 414. He expressed that, had a proper exam been done, the hazard would have been resolved before he found the problem. Tr. 415. For negligence, the Inspector marked his finding as “moderate,” because the examiner admitted that he didn’t examine the left side of the belt and he should have done so. Tr. 415. The mitigation was the Inspector’s conclusion that the examiner did do the pre-shift, albeit that he failed to examine the left side of the belt. Tr. 415. One could not see the stuck snub roller by merely examining the right side of the belt; one must also view the belt from the left side to see such things. Tr. 416. The condition was abated, after conversation with mine management, and their agreement to put a board on the left side of the belt. This was coupled with instructions to the examiners that they need to examine both sides of the belt in that area. Tr. 416. So, at least where the FCT unit was involved, it was a bit more difficult to examine both sides of the belt. Tr. 417. To ensure that both sides would be examined, the operator in fact had date books installed at all the low framing. Tr. 417. This citation was assessed at $1,203.00.

The Parties’ Contentions.

            The Inspector marked citation No. 8498634 as “S&S” and of “moderate negligence.” While Highland concedes the violation for No. 8498633, it argues that this matter should be vacated, that the Secretary’s alternate theory of liability, citing section 75.360(b)(1), which speaks to inadequate exams, should be denied, and failing those arguments, that the matter should be deemed “non S&S.”

            Speaking to both citations, Respondent maintains that the roller violation was not S&S, nor of moderate negligence. It questions the inspector’s account that he “smelled heat” some four hours before he found the admittedly stuck roller because he didn’t mention that smell to others when he first noticed it and because he did not set about finding the source of the smell immediately. It adds that neither Mr. Rich, who accompanied the inspector, nor Mr. Branson, who did the pre-shift of the area about two hours before the stuck roller was located, noticed any such smell. R’s Br. at 18. Similarly, addressing Inspector Adamson’s testimony that he found the tail piece of the belt to be “gobbed out” and found rock, coal, and similar material stuck between the damaged alignment roller and the belt, as well as a wooden wedge board lodged between the belt’s low framing and the belt, it notes that its witness, Mr. Branson saw none of that.

            Respondent contends that, as the sole basis for the Inspector’s S&S designation was the risk of a fire, and the evidence failed to show that a fire was reasonably likely, that designation was incorrect. It notes that while the Inspector spoke of the risk of belt fraying and that such fraying would create shavings which would serve as a kindling source for a fire, he admitted there was no fraying present or cutting of the belt when he issued the citation. Respondent also questions the suggestion that friction with the belt itself could be a likely source of fuel for a fire as the belt is fire resistant and the alignment rollers don’t run continually, as they are intended to roll when a belt is misaligned. Respondent adds that even where such friction occurs the belt will cool as it moves past the friction point. It notes that when Mr. Branson and Mr. Rich changed the roller, they advised that it was merely warm.

            As for the wooden wedge board the Inspector stated he observed, Respondent notes that it was not in direct contact with the stuck roller and as there were no belt shavings, there was no risk that such material could ignite the board. Consistent with its view, Respondent also maintains that an injury was not highly likely, especially considering that only one roller was involved, that the belt did not contact the roller continuously, and that there were no coal accumulations or other flammable materials touching the non-rotating roller.

            Respondent also believes that the violation was of “low negligence,” given that its witnesses, Mr. Branson, Mr. Hawkins and Mr. Rich, did not detect the smell that the Inspector asserted to be present. Especially considering that the inspector didn’t act to locate the smell until hours after he first stated noticing it, Respondent contends that in fact the problem did not arise until “shortly before the citation was issued,” and therefore the negligence should be deemed to be “low.” R’s Br. at 22.

            Addressing the related citation, although Highland has conceded that, in acknowledging that the Secretary can, at the time of the hearing, cite another safety standard, and that it would not suffer “undue prejudice” from that change, it argues that it met this provision as well, based upon Mr. Branson’s testimony that he found no evidence of any problem when he did his exam. R’s Br. at 25. Mr. Branson testified that there was no problem with the roller, nor any smell of rubber, nor anything “gobbed up,” when he did his exam. Highland offers that it is entirely plausible that all of the things found by Inspector Adamson could have occurred in the two hours which ensued following his pre-shift and the Inspector’s discovery of the problem. Last, Highland contends in the alternative that this citation should be viewed as “non-S&S” on the basis of the arguments it presented in the related citation, Number 8498633, and which have already been discussed above.

            From the Secretary’s viewpoint, it notes that Inspector Adamson testified that he detected a odor that “smelled like there was heating involved with the running of the belt conveyor,” and that he noticed this first when he arrived on the unit to conduct his E 01 inspection. The Inspector considered when he initially detected the smell, that it could simply be a rubber tire burning but, as he stated, later that smell grew and then he found the snub roller at the tailpiece, found that it was damaged, and that the belt had cut into that roller. Sec. Br. at 22. The problems he found included the snub roller being hot to touch and hotter than the framing and that material had accumulated in and around the roller so that it could not rotate freely. Further, the conveyor itself was out of alignment and rubbing against that snub roller. The Inspector also testified that there was no innocent explanation for the wedge board’s presence and he believed it was there to keep the belt from rubbing on the framing. Moreover, the Inspector questioned the foreman who did the belt exam and was told that he walked only on the right side, whereas the stuck roller was on the left side of the belt. Sec. Br. at 23.

            Addressing the attendant gravity, the Secretary urges that the Inspector’s designation that it was “highly likely” should be upheld based on the conditions he found and that assessment is supported by the record, even without taking into account the mine’s history of similar problems in the recent past. Significantly, the Inspector found the snub roller to be hot even though the belt had not been running continuously during the period of his inspection. As for Highland testimony that the roller was not hot, the Secretary points out that the belt had been off for several minutes, allowing time for it to cool down. Further, a belt can itself catch fire. Clearly there was a risk of a belt fire or an ignition and in this regard the Secretary notes that Highland’s John Rich conceded that if the problem had continued there was the possibility of a fire. Sec. Br. at 25. Indeed, the Secretary reminds, this mine had a recent belt fire.

            Asserting that its proposed penalty of $2,901.00 is an appropriate civil penalty for Citation No. 8498633, the Secretary concludes that the negligence was properly marked as “moderate.” This is attributable to the failure to travel along the belt’s left side, as the examiner only used the right, travelway, side. Sec. Br. at 25. By limiting his travel to one side, the examiner could not see the problem. When considered with the fact that this Inspector had issued similar belt-related problems at this mine in its previous inspection quarter and that the mine had a belt fire the week before, the Secretary urges that Highland owed elevated awareness to its belts. The Court agrees with the Secretary’s analysis both with regard to the S&S determination, the moderate negligence and the penalty it proposed.

            Finally, as did Highland, the Secretary relies upon its arguments for Citation No. 8498633 to support its contention that Citation No. 8498634 was “S&S” and that Highland’s negligence was “moderate.” It contends that its proposed penalty of $1,203.00 is appropriate.

Discussion for Citation Nos. 8498633 and 8498634.

            In large measure, the Court’s findings and comments for these two citations have already been expressed. For the admitted violation in Citation No. 8498633, the Court concludes that the matter was S&S and evinced moderate negligence. A civil penalty of $2,901. is imposed.

            For that violation, the Court notes that the roller was already more than warm when found and that the Inspector did in fact first notice the odor precipitated by the roller when he arrived at the No. 4 unit. The Court credits the Inspector’s testimony that the roller was hot to the touch, while the low framing was warm. The other conditions found by the Inspector are also credited. That is, in addition to the stuck roller, there were the aggravating attending conditions of the roller being gobbed out, the presence of the wedge board and the belt being misaligned. Applying Mathies, with the violation admitted, the second element is the discrete hazard of a belt fire. Certainly a hot roller and warm framing on the belt presented a measure of danger to safety. Considering that the preshift exam was deficient, as discussed above, there was a reasonable likelihood that an injury would result from the condition with the continuation of normal miniing operations. The Court also credits the Inspector’s opinion that the violation was S&S. Last, there can be no credible argument that, if a fire were to have developed, a reasonably serious injury could have been a consequence from that. Both from the perspective that the condition lasted too long and that the preshift exam, ignoring the left side of the belt, the Court finds that moderate negligence was involved. The mine’s recent history regarding the belt related fire and belt framing citations in the previous quarter were additional considerations for the Court.

            For the violation in Citation No. 8498634, the Court concludes that the violation was established and that it also was S&S and of moderate negligence. A civil penalty of $1,203.00 is imposed. As with the related citation, the critical problems here were that the multiple conditions found by Inspector Adamson, that is, the stuck roller and gobbed out roller, the wedge board, and the misaligned belt, were all missed during the preshift. To his credit, the person Highland assigned to examining the belt admitted to the Inspector that had not examined the left side of the belt. With the noted shortcomings, it ineluctably follows that, as the Court has found that the conditions cited in Citation No. 8498633 existed, and to be as Inspector Adamson described that matter, Highland’s preshift exam was inadequate. Preshift exams are obviously critical to mine safety. Where such exams are inadequate, as admitted here, with the examiner acknowledging to the Inspector that he examined only one side, the violation is established and it is simultaneously established that it is S&S and of moderate negligence. The Mathies elements were plainly established.

Civil Penalty Assessments.

            Citation No. 8501110, an admitted violation, was S&S and the associated negligence was moderate. A civil penalty of $1,304.00 is assessed.

            Citation No. 8501126 is upheld as a violation and it was S&S, with the associated negligence being moderate. A civil penalty of $1,304.00 is assessed.

            Citation No. 8498633, an admitted violation, was S&S and Highland’s negligence was moderate. A civil penalty of $2,901.00 is assessed.

            Citation No. 8498634 is upheld as a violation and it was S&S, with the associated negligence being moderate. A civil penalty of $1,203.00 is assessed.

ORDER

           Within 40 days of the date of this decision, Highland Mining IS ORDERED to pay a civil penalty in the total amount of $6,712.00 for the violations identified above. Upon payment of the civil penalty imposed, this proceeding is DISMISSED.

                                                                             /s/ William B. Moran

                                                                             William B. Moran

                                                                             Administrative Law Judge

Distribution (E-mail and Certified Mail)

Brian D. Mauk, Esq., Rachel E. Levinson, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219-1823.

Jeffrey K. Phillips, Esq., Steptoe & Johnson, 1010 Monarch Street, Suite 250, P.O. Box 910810, Lexington, KY 40591-0810