FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue N.W. Suite 520 N

Washington, DC 20004-1710

Telephone No.: 202-434-9933

February 5, 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

            Three citations remain at issue in these Dockets. From Docket No. KENT 2010 1491, is Citation No. 8499247. Highland concedes there was a violation but challenges the significant and substantial allegation and that it was specially assessed. From Docket No. KENT 2010 1492, and Citation No. 8498458, Highland also concedes that violation, but challenges the high negligence designation. After testimony was received, by the parties’ agreement, the third Citation, No. 8501024, for which the violation was conceded, the Court determined it was not S&S and the parties then left the penalty determination for the Court to resolve.

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).

Docket No. KENT 2010 1491

Citation No. 8499247

            MSHA Inspector Jimmy Dev Owens issued Citation No. 8499247. Highland concedes the standard was violated. Inspector Owens has been an MSHA Inspector for about five years and he has about 11 years of coal mining experience. Tr. 15. He identified GX P 1 and P 2, as pertaining to this Citation, which was issued May 15, 2010. Tr. 17. At that time, Owens, while traveling the supply road, “observed . . . exposed gaps in the . . . coal ribs.” Tr. 18. These loose ribs were on the supply road, the first main west supply road, which road is heavily traveled. Tr. 21, 63. Noting that there are four different locations, or coal ribs, in this general area, he observed loose ribs on both sides of the supply road. Tr. 20. The supply road width is approximately 19 to 20 feet. Tr. 21. Regarding the rib problem, he described the “first rib [as] gapped from the pillar 4 inches for a distance of 11 feet. It measured 2 to 4 inches in thickness at a height of 5 foot, and it was undercut . . . approximately 3 f[ee]t.” Tr. 21. The supply road also served as a secondary escapeway. Owens stated that, because he requested that the loose material be pulled down, he observed the rib fall and that it fell out into the travelway, blocking it. Tr. 23. Thus, the fall occurred when it did because the inspector required the mine to scale the rib, making it fall, in order to abate the cited condition. Tr. 24. As noted, Owens saw four loose ribs in this area. The second one was an “exposed [ ] gap between the loose rib and pillar approximately 3 inches for a distance of 7 feet . . . measur[ing] approximately 1 to 14 inches in thickness at a height of 5 f[ee]t . . . [and] [t]his was on the other side of the supply road.” Tr. 24. Thus, the first one was on the left hand side, while the other one was on the right hand side. Owens took measurements there too. In this instance, once the ribs had been scaled, he took the measurements. As mentioned, Owens saw a total of four such areas. The others were located at the third and fourth rib and, given his direction of travel at the time, he described these as “ramp up” areas, with one on the left-hand side entry and the other on the right-hand side, and they were across from each other. The conditions were essentially the same as for the first two areas he described. In all four instances, the Inspector took measurements. Tr. 26.

            The Inspector confirmed that when he arrived at the site and observed the loose ribs, they had not, at that point, fallen down. His concern was that, at some point, the ribs would fall. This could happen all at once or piece meal. Rubber tired mobile equipment does travel on this route. Tr. 33-34. He observed a four inch gap which went from the bottom of the mine floor to the top, located through the rib horizontally. Tr. 36. Owens explained that the four inch gap, as it was separated from the pillar, would fall, eventually. And while four inches doesn’t sound like much to a non-miner, Owens considered it to be a significant gap. Tr. 36. Based upon his experience, the Inspector expressed that, if viewed during a pre-shift exam, one could not ignore it. Thus, it is something that needs to be attended to right away. Tr. 37. To abate the violation, the loose rib was scaled down. Tr. 38. Owens was there when that scaling was done and, upon seeing it, expressed that the amount of material which was scaled was consistent with his weight estimates. While he had not done math calculations then, just observing it, he concluded that he was viewing a lot of weight. Tr. 38. The Court finds the Inspector credible on these details and concurs with his conclusions about the hazard they presented.

            In citing 30 C.F.R. § 75.202(a) , a provision requiring that the roof and ribs be controlled to protect miners, Owens confirmed that the loose ribs he observed presented a hazard. Tr. 39. For gravity, the inspector marked it as “reasonably likely,” because it was a “heavily traveled area in the mine.” Tr. 40. There was at least one unit inby that location, and possibly two. Even with one unit, this meant the area would be traveled with supply men and rock dusters, belt mechanics and others. Thus, there would be from 8 to 12 miners traveling through the area. They would be traveling on rubber tired equipment. He also marked that an injury would reasonably be expected to result in lost work days or restricted duty, as crushing injuries and broken bones could result. Even a fatality was possible. Tr. 42. From his experience, Owens knew that loose ribs falling have caused injuries, though such an event has not occurred at Highland. Tr. 42. He also marked the violation as “high negligence” because the operator had been put on notice about the issue, and because the pre-shift examiner should have seen the problem. Further, because it was in a supply road, various foremen should have observed it. Thus, because the condition was obvious, capable of being seen frequently during the course of a shift, as well as during the three daily preshifts, the Inspector found no mitigating circumstances. Tr. 43. However, Owens couldn’t state how long the condition had existed with any precision but he opined that it would have been for a shift, at a minimum. This estimate was also based on the extent of what he observed: four ribs in one general area, with each loose rib within 20 feet of another. The extent of the gaps also informed his opinion. Tr. 45. However, he admitted that he did not know how long it takes for such a gap to develop. Tr. 45. Owens also confirmed that, while the area had been rock dusted, the gaps in the ribs did not have rock dust on them. That is, there was no rock dust between the rib and pillar. Tr. 47.

            To abate the problem, the mine used a battery scoop to scale the ribs and this took about 35 minutes to accomplish abating all four loose ribs areas. Tr. 48, 83. The scoop’s bucket had a depth of about 6 feet and a 10 to 12 foot width. Tr. 84. More important, the amount of material that came down was “enough to block travel.” Tr. 84, 94. In fact, they could not continue to the section until it was cleaned up. Tr. 94. Also, Owens made it clear that the four loose ribs were “easily” observed and that the condition had existed for a minimum of 8 hours. Tr. 91, 95. As Counsel for the Respondent noted though, that estimate was not in his notes and that ordinarily he includes such information. Tr. 101. This did not cause the Court to conclude that the Inspector’s testimony was suspect. While the mine’s preshift notes did not reflect finding the problem, that begs the question, as it does not demonstrate the conditions just arose. Inspector Owens did request that the violation be specially assessed, because of his finding that the conditions were so close together, that is, there were four problems in the general 70 foot area and because he considered it to be a heavily traveled area, which is preshifted every working shift. Further, he factored into his analysis that roof and rib-related problems are a leading cause of injuries to miners. Tr. 99.

            While the Inspector marked the problem as “high negligence,” he did not list it as an “unwarrantable failure.” Tr. 49. Further impacting his evaluation, the Inspector noted that the standard had been cited 62 times in the past 2 years at this mine. Tr. 49. Inspector Owens’ supervisor informed him about the mine’s notice with this problem. This type of violation had been listed by MSHA as one of the more serious safety issues, as it was included within the Agency’s “rules to live by list.” Tr. 51. As he believed that the condition was obvious, Owens concluded that the preshift exam had not been adequate on the day he cited the violation.

            The outby preshift book would be the book in which the conditions the Inspector observed would have been recorded. Owens did not examine that book before he went underground, but he did later, when he returned to the surface. Tr. 64. When he did so, that book contained no indication of the problem which had been observed by the inspector. Tr. 64. Because Owens agreed that he did not know how long the condition had existed, no conclusion could be drawn about the absence of any notation of the loose ribs in the preshift book. Tr. 65. However, he noted the condition at 7:24 a.m., and the shift started at 7:00 a.m. That meant the preshift would have been done 3 hours before the shift’s start, that is, between 4 and 7 a.m. Tr. 86. Had the rib “rolled,” i.e. fallen, Owens believed it would likely have fallen as a single piece. Tr. 88.

            Owens did not agree to the suggestion that the respirable dust tests he was there to conduct were the real reason he stopped in the area where he cited the loose ribs. Instead, he stopped his travels in the golf cart, because of the rib conditions he observed. Tr. 67. In fact, though the Inspector then did take an air quality reading at crosscut 92, he had first observed the rib issue and decided that, since they were already stopped, he might as well do an air quality reading there. Tr. 67-68. In an attempt to show that the condition could not have been present for an inordinate period of time, Inspector Owens agreed, as presented by Respondent’s counsel , that despite the area being well-traveled, no one else had noted the condition. Tr. 69. Despite that concession, for the reasons expressed in his earlier testimony, he listed the condition as “high negligence.” Tr. 70.

            As he stated earlier, in at least one area, the rib, where it had been pulled down, was 5 feet from the mine floor. This was where there was a 3 foot undercut. Tr. 72. The Inspector’s notes did not express how long the condition had existed. Tr. 82. Owens also stated that, for those using the travelway, typically they will travel in the middle of it. Regarding the absence of rock dust in the cited rib area, Owens agreed that he had no idea if they had rock dusted that day, nor how often the area is rock dusted. Tr. 89.

            Michael Menser was called as a witness for this matter by the Respondent. At the time of the hearing Menser was employed by Highland Coal. Tr. 103. His mining experience covers about 7 years and he has worked for various coal mine companies during that period. He is not a part of management and is a union miner. Tr. 105. He is experienced with rib and roof issues. Shown Ex. P-1, he stated that he recalled the events surrounding the citation reflected in that exhibit. Highland is a union mine and he elected to go with Inspector Owens on that day. His role in attending with the Inspector is to represent the union. Tr. 106. Menser recalled that the Inspector was there that day to run a dust evaluation on the number 3 unit. Tr. 107. While on their way to do that, Owens had Menser stop their transport vehicle so that he could inspect some ribs. Tr. 107. Upon Owens’ further examination of the ribs he noted some cracks in them. Although a pry bar is typically sufficient to pull down loose ribs, that attempt failed, as the pry bar “wouldn’t budge” the loose rib. Tr. 109. Normally, from Menser’s perspective, that means that the rib is not ready to come down and for that reason he did not view the condition as a hazard. Tr. 109.

            Asked if he knew what the term “S&S” meant, Menser stated it involved “[c]ircumstances which would make it more serious of a citation because more people were involved. I think.” Tr. 110-111. Though he recalled that the Inspector cited 4 locations with the rib issue, he stated that they were only able to pull down the rib with a pry bar for one of them. Tr. 111. Thus, Menser believed that only one rib was involved and that it took a scoop to bring it down. Tr. 112. On cross-examination, Menser agreed that he is not a certified mine examiner, nor does he have foreman’s papers. Tr. 114. Menser stated that there were many ribs like the one in issue at the mine and that he previously had tried to pull on ribs like that “in that general area.” He was unsure if that was the same rib that was pulled down, per the citation. Tr. 115. He then acknowledged the rib issue “[c]ould be a hazard, yes. Any crack in the rib could be a hazard.” Tr. 115. (italics added). Further, Menser could only speak to one of the four ribs described by Owens. He explained that he “spoke to the gentleman that afternoon and he said he did get [the rib Menser saw] taken care of. He didn’t specify he took care of all of them.” Tr. 117 (italics added). Despite his different take on the condition from the inspector’s, Menser stated he was not surprised that a violation was cited. His only surprise was that it was also “S&S” and high negligence. Tr. 122. In the Court’s view, given the tenor of his testimony, one would have expected that he did not think there was any violation. Despite his disagreement with the S&S designation, Mr. Menser admitted that he did not know the legal definition of that term and when asked what “high negligence” meant, he responded, “No. I mean. . . . I know that . . . [there] has to be mitigating circumstances.” Tr. 124.

            Accordingly, there is a conflict to resolve, as Mr. Menser stated he was with Inspector Owens for the entirety of the inspection and yet their recountings were quite different. Among other conflicts, Menser stated that neither was present when the scoop knocked down the rib. Tr. 121.

The Parties’ Contentions

            As noted, the Respondent concedes that the standard was violated, but takes issue with the Inspector’s S&S finding that it was “highly negligent,” and that the matter was specially assessed. R’s Br. at 3. For the S&S issue, Respondent asserts that the Secretary failed to prove that the condition “was reasonably likely to cause a reasonably serious injury to any miner.” Respondent maintains that the rib was not reasonably likely to fall. Id. It points to the absence of rock dust seepage behind the “allegedly” loose rock. Without such rock dust seepage, Respondent submits the “rocks were not actually that loose,” and the “alleged gaps” had not been present for long. Id. at 4. It adds that pry bars were unsuccessful in removing the “allegedly loose rock in all four areas,” and that it took a scoop to finish the task for one rib. Nor, Respondent contends, was there any genuine likelihood of injury occurring because miners traveled the area in vehicles traveling the center of the 20 foot travelway. Respondent also believes that, to establish the S&S nature, the Inspector should have presented calculations to show how the loose material would have fallen out into the middle of the travelway. R’s Br. at 6. As to the last assertion, the Court would comment that no calculations were needed, as the Inspector saw that the roadway was blocked when the loose rib was taken down.

            As to the “high negligence” designation, Respondent challenges the Inspector’s contention that the condition existed for at least 8 hours and therefore should have been discovered. It notes that the Inspector, while opining that the conditions had lasted for at least 8 hours, could not state whether a gap could occur in a moment’s time or gradually. To this, Respondent adds that there is no claim that Highland failed to perform its preshift exam and it was not cited for an inadequate exam either. The absence of rock dust behind the scaled rock, Highland submits, supports the position that the gaps had not existed for much time.

            The Secretary supports its S&S designation on the basis that the area was heavily traveled, that it presented a serious hazard to the miners passing that area and that any injuries would be serious, and include harm ranging from crushing injuries up to fatalities. In terms of the negligence involved, the Secretary maintains that, given the mine’s history of violations of this standard, that it had been put on notice about rib issues, and the Inspector’s opinion that the rib issue cited here had existed for at least a shift, a high negligence finding is justified. The Secretary seeks a civil penalty in the amount of $12,500.00 for this admitted violation.

Discussion

            In resolving conflicts in the testimony, among other factors, the detail provided by Inspector Owens over the circumstances of his discovery of this admitted violation, and the conditions he noted, leads the Court to ascribe greater credence to his recounting. The Inspector’s S&S determination is affirmed. The first two elements of Mathies are not in dispute, as the Respondent concedes the violation and the parties agree that the discrete hazard is a rib fall. Given the amount of coal associated with each of the four cited loose rib areas, impacting both sides of the roadway, there can be no doubt that a serious injury would be the result if miners were traveling there at the moment a rib fell. That leaves only the third element, the reasonable likelihood that an injury would result, for further comment. In concluding that the third element was established, the Court relies, in part, upon the Inspector’s view of that. This includes the obvious and significant gaps associated with the loose ribs and that the gap ran from the floor to the mine top. The fact that the area is a heavily traveled supply road also supports this conclusion, as does the Inspector’s seeing the extent of the material that filled the roadway when brought down. Nor can MSHA’s experience with rib and roof falls, this mine’s own experience with those problems, and the fact the agency elevated it to a “rules to live by” status, be ignored. While Respondent has noted that, among the some 62 citations for this standard, some number may have dealt with face or roof issues does not mean that it is anything other than appropriate to group those hazards together along with rib control, as the cited standard does, given that they all involve ground falls, from one direction or another.

            The “high negligence” designation is also appropriate, as the Court finds that the condition was obvious and detected by the Inspector while traveling to another location in the mine to address a different and distinct issue. That not just one, but four areas, were found supports this conclusion as well. As the Inspector testified and the Court finds as fact, Highland was on notice about this issue and the condition should have been noted by the preshift examiner. Foremen, too, should have noted the hazard, just as the Inspector did. The idea that the four problematic ribs, within 20 feet of one another, could have just developed is not a reasonable conclusion, and the Court declines to make it. The condition, at a minimum, existed for a shift. Given the above, and in consideration of the statutory criteria, the Court imposes a civil penalty of $12,500.00.

Docket No. KENT 2010 1492

 Citation No. 8498458

            The Respondent’s dispute with this citation pertains to the high negligence designation and listing the number of people affected as four. Tr. 1077.

            MSHA Inspector Tim Gardner testified regarding this matter. Inspector Gardner began working in coal mines in 1979, began working for MSHA in March 2007, and presently is a roof control specialist. Tr. 1074 -76. He has a Kentucky mine foreman’s certificate as well. The Inspector advised that his experience had included working as a belt examiner. His experience also includes working as a mine foreman. Tr. 1094-1095. He also acted as the company representative accompanying the MSHA inspector during an inspection. Tr. 1096.

            On June 8, 2010, Inspector Gardner issued the Citation in issue, No. 8498458. P 40 and P 41. Tr. 1077. The citation, which was issued during the day shift, cited 30 C.F.R. Section 75.400, which section prohibits the accumulations of combustible material. Tr. 1085. Inspector Gardner was at the mine that day because there had been a roof fall there a week or so earlier and he had been there investigating that event. The mine was in the process of supporting the roof at that location. When he was outby the 4A head drive, at crosscut 2 and 3, there was a ventilation control, that is an air lock, to control the ventilation around the head drive. He also described it as a ventilation curtain, which was a heavy curtain on a wood frame around the belt. Tr. 1079. It was then that he observed a coal pile, by which he meant accumulations of combustible material, consisting of loose coal, and coal fines, on the back side of the belt. The Inspector measured the accumulations, finding them to range from 4 to 16 inches in depth and 2 to 5 feet wide, coming away from the belt, and 16 feet in length, running parallel with the belt line. Tr. 1079. He concluded that when the belt traveled under the curtain, and when it was heavily loaded, that it was getting the coal suspended, or as he described it, it was “sort of rolling, and pieces would roll off on to the ground or the mine floor.” Tr. 1079-80. Thus, the curtain itself was knocking some of the coal off the belt. Tr. 1079. The Inspector observed coal coming through that area and it was being dragged and would start rolling and from that it would roll off the belt and on to the back side of the belt. Tr. 1080.

            No surprise, the Inspector considered the condition to be a safety hazard because the coal, being a fuel, can catch fire. This can occur because, eventually, as the coal builds up in the belt, it would start to dragging through it and rollers could start turning in it as well. If the rollers started burning in it, there would be an ignition source and a fire would start. Tr. 1081. The Inspector marked the gravity as unlikely and non S&S, because he found an absence of ignition sources. Tr. 1082.

            However, he marked the citation as high negligence. His reasoning was that he talked to the belt examiner, which examiner had just made the belt. When Inspector Gardner asked the examiner if had seen the problem, the examiner told him that he had indeed. Tr. 1082. The examiner explained that it was the first time he had examined that belt and that he had the accumulation pile in his notes and that it was his intention to put that finding in the record book, when he got outside, and that the condition needed to be corrected. However, Gardner added that, as there was not a then-present ignition source, the examiner did not need to stop the belt right then and clean it up. Tr. 1082. The negligence was that Inspector Gardner had checked the books before he went underground and did not see any such notation about the problem listed in the other shifts. Yet, seeing the condition he observed, the Inspector concluded that the problem had been ongoing for some 3 or 4, or even as many as 5, shifts prior. The Inspector noted he observed coal dragging off the belt at a rate of some 2 to 3 pieces a minute. The sizes of coal dropping off were about 2 to 3 inches or less. Tr. 1085. Supporting that observation, as noted, he found the pile to run some 16 feet in length, and ranging 4 to 16 inches of depth. Tr. 1083. The Inspector added that his mining experience informed him that, with what he observed, the condition had lasted that long. Therefore, he concluded that other examiners had walked by that area and took no action to correct the condition. Tr. 1084.

            The Inspector wrote that lost workdays or restricted duty would be the expected injury or illness and that four persons would be affected due to carbon monoxide, smoke inhalation, and burns. The “four persons affected” number was based on the working section having ten persons working. Tr. 1087. Further, there are miners traveling up and down the travelways outby. He noted that when a fire gets started, it spreads quickly and it presents the potential to affect everyone in the immediate area and inby. Tr. 1088. Also, there is a travelway, or supply road, adjacent to the cited belt and those areas share common air. Tr. 1088.

            Mr. Randy Duncan was traveling with the Inspector when the condition was found and the Inspector informed him that it was a violation. Tr. 1089. The Inspector’s computer program alerted him that this standard had been cited 241 times at the mine in the past two years. Tr. 1090. That number does not mean that management should have been aware of those conditions on each of those 241 occasions. Tr. 1090. In this instance, the Inspector’s conclusion about the mine’s awareness was based on the conditions he observed, seeing the coal roll off, and then forming his opinion about how long that problem had existed. Tr. 1091. Not only had the area been preshifted, and therefore with several prior opportunities to see it, but also it had been on-shifted too. Tr. 1091. Belts are required to be on-shifted during coal producing shifts and those occur twice a day. Tr. 1091. As noted, the Court adopts the Inspector’s conclusions about the time period the condition had existed.

            The Inspector defined “high negligence” as the circumstance where no mitigating circumstances were present. Tr. 1107. His high negligence marking was based on the length of time the condition had existed. Tr. 1111. Here, had the pile been simply a little one, he would have considered that to have been a mitigating circumstance. Tr. 1107. The Inspector did not necessarily adopt that the mine simply cleaned the accumulations as a best practice, as he noted that the curtain was creating the problem, and his focus was upon the accumulations. Once the accumulations were removed, the citation was terminated. Tr. 1110. When asked if the accumulation was on the outby side, going toward the surface or the inby side, the Inspector informed that it was on the outby side. Tr. 1111. The four miners that the Inspector listed as potentially affected were on the outby side too. Tr. 1112. The Inspector advised that his reference to 10 miners related to the presence of that number of miners working on the Number 4 working section, that is, inby the location cited. Also, the belt examiner, mine foremen, and maintenance people are using that travelway consistently. Tr. 1113. Because no one could state precisely which miners would be at that location when a problem arose, it was impossible to identify the exact four persons at a given time. Therefore, it could be maintenance people, or if a fire started, it could be the miners arriving to put out the fire. Other scenarios could develop too. For example, the air courses could fill up rapidly from smoke. Thus, there was the potential for all those on the section to be affected. Tr. 1114. Accordingly, the Inspector’s listing of “four individuals affected” was a reasonable estimate of the number. Tr. 1114. The troublesome curtain, which the Inspector likened to an air lock, was not likely there as a required air lock under the mine’s ventilation plan because it was so close to the head drive. Tr. 1118. The Inspector agreed that the section he cited also appears as a statutory provision at 30 U.S.C. Section 864 and that it provides essentially the same requirements as the standard he cited. Tr. 1118.

            As mentioned, Randy Duncan was present when the violation was observed, and he agreed that the accumulation was present. Tr. 1120. He advised that the problem was due to the belt running out of line and that he and Steve Collier, the union representative, who also was with them, then lined up the top rollers to stop the spilling. Tr. 1121. Mr. Duncan maintained to the Inspector that they what they were viewing was spillage, not accumulations but his chief disagreement was the Inspector’s characterizing the condition as “high negligence.” Tr. 1122.

            Mr. Duncan stated that he has significant experience with belts and that belts can spill very quickly and it can become “pretty intense very quickly.” Tr. 1123. It can develop in a matter of as little as five minutes. Duncan stated that the coal was coming off the belt “pretty good,” therefore implying that it developed very fast, and not over several shifts as the Inspector had concluded. Tr. 1126. Duncan agreed that there was a curtain present, but he denied that it was an air lock. Tr. 1126. It is noted that the Inspector also doubted that it was an air lock. In any event, Mr. Duncan did not believe that the curtain was causing the spillage at all. Rather, he attributed the problem to an alignment issue and stated that once the alignment was done, the spillage ceased. Tr. 1126- 1127. No change was made to the curtain either. Duncan also believed that the accumulation had occurred that morning; that it was a fresh spill which happened sometime between 8:00 a.m. and when he arrived at the site. Tr. 1128. He added that if it had been present for a longer time, the mine’s belt walkers would have noted it in their books. Tr. 1128.

            As mentioned, Mr. Duncan took issue with the high negligence designation listed in the Citation. He based this view on the absence of anything in the belt book to alert the mine of the issue and therefore he contended that Highland had no notice of the problem. In support of that assertion, he noted that the belt walker is a union person. Tr. 1129-1130. Duncan then reconsidered his initial view - his acceptance that there was a violation - expressing at the hearing that no violation should have been cited at all, as a mine is to be afforded some time to deal with a recent accumulation before being cited for the condition. Tr. 1132. The Court observes that premise relies upon a finding that the accumulation was in fact very recent, a conclusion the Court declines to adopt here.

            It is also noted that, in terms of how long it took to clean up the problem, Mr. Duncan agreed that it took two men to do it, but he couldn’t illuminate as to how long it took to do that task, as he did not observe the clean-up process. Given his perspective that the condition was not a hazard, when asked if it was necessary to have it recorded in the books, he provided a non-answer, stating only that he doesn’t tell people what to include in the books. Tr. 1139. However, he then admitted that he would have put the matter in the books, if he had been the belt examiner, even though he did not consider it to be a hazard. Tr. 1139.

The Parties Contentions

            As noted, the Respondent’s objection to this Citation is that it was listed as high negligence. It believes that there was only low or no negligence involved. To be high negligence, the Secretary must show the Respondent knew or should have known of the problem and that there was no mitigation. Respondent asserts that the Inspector’s high negligence designation rested upon the grounds that it existed for two or more shifts and that the mine’s examiners either missed the conditions or failed to note it in the books. As to the time the condition existed, Respondent points to its witness’ testimony that it was present for less than 2 hours. R’s Br. at 9. It also asserts that the Inspector had “limited belt inspection experience.” Id. In support of its contention that the coal was spilling off the belt in a fast and furious manner, Respondent further submits that the Inspector was inconsistent in his testimony regarding the rate at which coal pieces were being knocked off the belt. In contrast, its witness could tell that the spillage was fresh and new and therefore was not present two hours earlier. R’s Br. at 10-11. Last, Highland submits that only one person was affected, the belt walker.

            The Secretary notes that the Inspector’s experience includes 20 years in coal mining before joining MSHA. Addressing the Respondent’s contentions concerning the level of negligence and the number of miners affected, it notes that although the Inspector spoke of a high rate of spillage per minute, that high rate occurred only when the belt was heavily loaded. Thus, he concluded that the amount of spillage he observed would not have developed in a flash, but would have taken time to build up. As to Highland’s witness’ assertion that the coal spillage was “fresh,” the Secretary agrees that the top most layer would be fresh but that is not indicative that it would be fresh some 8 to 16 inches below that. Sec. Br. at 62. In terms of the number of miners affected, the Inspector considered that four of the ten employees who worked on that unit would be impacted. Finally, as for the Inspector’s negligence finding, he concluded there were no mitigating circumstances present, a determination based upon his view that the accumulations would have taken some 3 to 5 shifts to create what he found. The Secretary seeks a penalty of $1,795.00 for this citation.

The subject of high negligence

            The Commission has noted that “ ‘Highly negligent’ conduct involves more than ordinary negligence and would appear, on its face, to suggest an unwarrantable failure. Thus, if an operator has acted in a highly negligent manner with respect to a violation, that suggests an aggravated lack of care that is more than ordinary negligence.” Eagle Energy, Inc. 23 FMSHRC 829, at * 839, 2001 WL 1003313, and Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991) . It is noteworthy that the Commission has also discussed the importance of preshift and on-shift examinations and that the failure to conduct adequate inspections, can be the result of high negligence. Quinland, 10 FMSHRC 705, 708-09 (June 1988), Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010-11 (Dec. 1987), Black Beauty Coal, 33 FMSHRC 1482, 2011 WL 3794320, (June 2011, Judge Miller), Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991). Conditions which are obvious and extensive, fit the high negligence designation. Mountain Edge Mining, 33 FMSHRC 1272, 2011 WL 2745786 (May 2011, Judge Moran).

Discussion

            Having considered the testimony for this Citation, as described above, the Court concludes that the high negligence designation was appropriate and that the number affected was reasonably listed as four. Inspector Gardner provided detailed, and credible, testimony on these issues and the Court concludes that the accumulations he witnessed did not develop shortly before he arrived, but rather had been present for several prior shifts. His personal observations of the problem confirmed his estimation. Further, there was no dispute over the amount of the accumulations so found, nor that it took two miners to clean up the problem. It is also troublesome that Highland’s apparent view is that matters such don’t amount to a “big deal” unless they continue to exist for two or three weeks. Remarks such as that may explain that the mine had been cited some 241 times in the past when this instance was cited. Upon consideration of the statutory criteria, a civil penalty of $1.795.00 is appropriately imposed here.

Citation no. 8501024

            Inspector Paul Hargrove testified regarding this matter. Tr. 996. He issued Citation No. 8501024, on July 12, 2010, for a violation of 30 C.F.R. §75.512. Tr. 996. That standard provides: “All electric equipment shall be frequently examined, tested, and properly maintained by a qualified person to assure safe operating conditions. When a potentially dangerous condition is found on electric equipment, such equipment shall be removed from service until such condition is corrected. A record of such examinations shall be kept and made available to an authorized representative of the Secretary and to the miners in such mine. ”

            With the Inspector at that time were section foreman Jim Gass and miners’ representative Bernie Alvey. Tr. 996-997. The Inspector, when at the mine’s golf cart charging station, noticed a light bulb missing from a string of 110 volt light circuits. With no bulb, nor plastic outer guard for one of the light sockets in the string of lights, the inner copper part of that socket was exposed. Tr. 999. The hazard is indistinguishable from a typical home’s table lamp, if it were plugged in and no bulb was in the socket. One sticking a hand in such a socket would receive a shock.

            As a large number of miners travel in this area (40 to 50, the Inspector estimated) and as they may be carrying hand tools when doing so, and because they park their mobile equipment in the area of the exposed light socket too, Hargrove cited the condition. Tr. 1000. The socket was located 6 feet 2 inches above the mine floor. The entry at that location is 20 feet wide and bulb-less socket was near the center of that entry. Upon questioning by the Court, Hargrove agreed that one would have to have one’s hand or a tool go right up into the socket for the hazard to occur, as the outer part of the socket does not present a shock risk. Tr. 1003. However, Hargrove stated that, as 110 volts are involved, which is the same voltage in a house, if one were to make such contact, an electrocution would result. Tr. 1003. In terms of the Inspector’s S&S finding, he conceded that, short of intentional conduct, directly inserting a hand into the socket, the only other way an electrocution can occur would be if a miner’s tool comes into contact with the socket. Tr. 1007. Hargrove conceded that he knew of no instance where a miner has walked by such an open socket, had a tool make contact with the inner portion of that socket and then die from a shock. Tr. 1010. However, because of the area’s high traffic and because it was, low enough for contact to occur, he marked it as S&S. Tr. 1014.

            Hargrove marked the violation as “moderate negligence,” in effect giving the operator a break, because of the contention that miners had been stealing bulbs and taking them home. Tr. 1012- 1013. Thus, Hargrove considered this to be a mitigating circumstance. Tr. 1013. The condition was abated by installing a bulb in the socket. Tr. 1017. The Inspector would have marked the negligence as low, only if the circuit had been deenergized. Tr. 1018. Think of the table lamp analogy with the lamp unplugged.

            At that point, the Respondent having acknowledged that its concern with this citation was the S&S designation, the Court announced the violation was not S&S. Tr. 1019. The Court stated that while there was a likelihood of electrocution, there was no “reasonable likelihood” of that occurrence Tr. 1021. At hearing, the Court determined that the matter, assessed at $873.00, was not S&S and it was agreed to leave it to the Court to impose the penalty. Upon consideration of the statutory criteria, the Court imposes a penalty of $100.00 for this violation.

Conclusion

Docket No. KENT 2010 1491

Citation No. 8499247, an admitted violation, was S&S and the negligence associated was high. A civil penalty of $12,500.00 is imposed.

Docket No. KENT 2010 1492

Citation No. 8498458, an admitted violation, is found to have the negligence associated as high. The number of miners affected was four. A civil penalty of $1,795.00 is imposed.

Citation No. 8501024, an admitted violation, was not S&S. A civil penalty of $100.00 is imposed.

ORDER

            Within 40 days of the date of this decision, Highland Mining IS ORDERED to pay a civil penalty in the total amount of $14,395.00 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