FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412) 920-2682

FAX: (412) 928-8689

February 27, 2012

DECISION

STATEMENT OF THE CASE

            This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This matter concerns an alleged violation of the mandatory safety standard 30 C.F.R. § 75.360(b)(3). Order No. 8007970 was served on Respondent on July 27, 2010. This alleged violation was found to be significant and substantial in nature, as well as an unwarrantable failure to comply with a mandatory safety standard. Respondent was assessed a penalty of $60,000.00. A hearing was held in Pittsburgh, Pennsylvania on November 9, 2011, and the parties participated fully therein. They later submitted post-hearing briefs.

            Order No. 8007967 was also contained in this docket. It was disposed of in a Decision Approving Partial Settlement issued by the undersigned on October 18, 2011.

STIPULATIONS AT HEARING

            The parties stipulated to the following facts at hearing:

            1.         Emerald is an “operator” as defined by § 3(d) of the Federal Mine Safety and  Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. § 803(d), at the coal mine at which the Order at issue in this proceeding was issued.

            2.         Operations of Emerald at the coal mine at which the Order was issued in this proceeding are subject to the jurisdiction of the Mine Act.

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

4.         The individual whose signature appears in Block 22 of the Order at issue in this  proceeding was acting in the official capacity and as an authorized representative of the Secretary of Labor when the Order was issued.

            5.         A true copy of the Order at issue in this proceeding was served on Emerald as required by the Mine Act.

            6.         Emerald demonstrated good faith in the abatement of the Order.

            7.         The penalty that has been proposed will not affect Emerald’s ability to continue in business.

            8.         The parties stipulate to the authenticity of their exhibits, but not to the relevance or truth of the matters asserted therein.

            9.         Emerald utilizes in the working section at issue what is known as a “full face miner.” It mines the full width of the working face that is 16 feet wide.

            10.       Such full face miner is equipped with an integral bolter. As the miner advances,  two roof bolts are installed. With such bolts, a steel channel or strap is installed.  The strap is held in place by the roof bolts.

SUMMARY OF THE TESTIMONY

            Robert W. Newhouse (“Newhouse”) is a Supervisory Coal Mine Safety and Health Inspector with approximately forty-three years of experience in the mining industry. Tr. 19, 21. After several years as a miner, he became an inspector for the Mine Safety and Health Administration (“MSHA”) in 1977 and was promoted to supervisor in 1985. Tr. 20, 21. He explained that, although he is the supervisor, he accompanies inspectors on inspections approximately forty times a year. Tr. 19, 20. Moreover, he stated that he has been in Respondent’s Emerald No. 1 Mine (the “Mine”) “many, many times” and is generally familiar with the requirements of Respondent’s roof control plan. Tr. 21.

            On the day in question, Newhouse accompanied MSHA inspector Shannon Boring (“Boring”) to Respondent’s Emerald No. 1 Mine to observe all of his inspections actions in order to ensure that Boring was conducting inspections correctly and enforcing the law correctly. Tr. 29, 30. Newhouse also wanted to get a general idea of the condition of the mine. Tr. 30. When they arrived on the C-3 Section, they walked down the No. 2 Entry where Newhouse observed the deteriorated roof condition on the right hand side. Tr. 32. Newhouse testified that the straps had been hit with equipment, they were bent forward and they were twisted and pushed about ten inches from their original location. Tr. 35, 36. In clarifying the importance of the straps, Newhouse explained that Respondent uses a full-face miner with integral bolter mounted on it. Tr. 22. It cuts the full face, sixteen feet wide and proper height, in a straight direction without shifting. Tr. 22, 23. The machine is large enough that it leaves just enough room for personnel to walk up to operate the bolters. Tr. 23. The straps are installed to provide some measure of protection from roof falls until the miner is pulled from the entry and the center bolts are installed. Tr. 26-28.

            The roof above the area of straps was cracked and there was loose rock that both needed to be taken down and sitting on the straps that measured approximately twenty inches by twenty inches. Tr. 36, 37. Newhouse stated that putting this type of pressure on the straps resulted in tremendous pressure on the on the bolts and anchorage. Tr. 37. Due to the fact that the area had been mined on the previous day’s afternoon shift, the inspectors surmised that this was when the straps were hit. Tr. 39, 40.

            Boring issued Order No. 8007970 (“Order”), which stated:

The preshift examination conducted on July 27, 2010, for the 08:01 A.M. shift in the C-3 Section (MMU 033-0) was not adequate. The hazard that is depicted in Order #8007969 was not recorded in the preshift exam record book located on the surface. This exposes miners entering the section to unknown hazards, which constitutes more than ordinary negligence. The violation is an unwarrantable failure of an operator to comply with a mandatory standard. This order will not be terminated until mine management reviews the requirements of 30 CFR 75.360 with all certified persons at this mine.

            Boring designated the Order as highly likely to result in a fatal injury. Ex. GX-4. Newhouse agreed with this designation because the area involved was eight to eight and a half feet with rocks approximately twenty inches by twenty inches in size. Tr. 58. Whether the rock is four inches or six inches thick, it was Newhouse’s opinion that it could cause serious or fatal injuries. Tr. 58. He testified that he further agreed with Boring’s designation of high negligence because the examinations are critical to safety, several safety meetings and discussions had been conducted with Respondent and Respondent itself had issued various publications and safety talks to educate its employees. Tr. 59; Ex. GX-4, GX-6, GX-7. Newhouse testified that the Order was written in light of the fact that the condition was obvious and Respondent was already on the D-series and was designated for special assessment due to its history of roof falls, rock falls hitting miners, extensive violations of the roof control plan and miners walking under unsupported roof. Tr. 59, 60. This Order was abated when the requirements of 30 C.F.R.

§ 75.360 were reviewed with all certified persons at this mine. Tr. 46; Ex. GX-4.

            Newhouse estimated that, depending upon when the straps were hit, six preshift and onshift examinations may have been conducted prior to the inspection. Tr. 49. He testified that 30 C.F.R. § 75.360 generally requires that examinations be made for hazardous conditions, and any hazardous condition found must be corrected or dangered-off and notified in the record book on the surface. Tr. 52. However, during onshift examinations, hazards must be noted in the record book whether they are corrected or dangered-off. Tr. 53. The purpose of the examinations is to detect and record the hazards so that anyone entering the mine will be aware that the hazard exists. Tr. 52. He further stated that the condition first cited in Order No. 8007969 was not noted until it was corrected while the inspectors were present. Tr. 56.

            In response to MSHA’s Rules to Live By Program, Newhouse testified that Respondent prepared a safety talk to present to its employees in which it acknowledged both minor and serious accidents had occurred and that several violations had been issued to the mine. Tr. 62, 63. Although, under cross-examination, it was shown that violations of 30 C.F.R. § 75.202(a), such as that found in Order No. 8007696, are the fourth most cited nationwide and no violations of 30 C.F.R. § 75.360(b)(3), at issue here, had been issued to the mine in the previous fifteen months. Tr. 82; Ex. GX-9. To illustrate the seriousness of deteriorated roof conditions in the Emerald No. 1 Mine, Newhouse relayed a terrible, but survived, incident that occurred in September 2009, in which the foreman on the C-3 Section had walked back to observe mining activities when a large rock fell out from between the strap and drove his face onto a steel rod, which entered his lower jaw and exited near his eye socket. Tr. 75. The foreman did survive this injury. Tr. 75. It was revealed under cross-examination, however, that prior to the July 2010 inspection, the most recent injury was a broken nose that was suffered in January 2010. Tr. 81.

            As previously discussed, Shannon Boring is a Coal Mine Safety and Health Inspector. Tr. 29, 97. Boring has about four and a half years of experience with MSHA and previously had worked for CONSOL as a roof bolter for several years. Tr. 97-99. He testified that, upon entering the area, he noticed the bent straps, but he decided to look at it later because, although he identified it as an obvious hazard, he did not feel that there was any imminent danger. Tr. 101, 126. Instead, he continued forward to get the last opening reading. Tr. 101. In describing the straps, he explained that they were “bent ahead,” and there was unconsolidated rock, slips and cracks that were “gapped open” a little bit. Tr. 102. He also stated that he remembered a linear that went across the entry. Tr. 102. His notes indicated that the unsupported area was approximately nine feet by eleven feet. Tr. 111.

            In describing the damage to the straps, Boring testified that there were some nicks and one of the straps was nearly torn in half on the left-hand side. Tr. 104. It appeared to him that it had happened when the miners had started to turn the crosscut and the union representative, Justin Drew (“Drew”) agreed with this estimate. Tr. 105. Boring stated that Drew told him that he had started the turnout on the previous day shift and he had not hit any straps. Tr. 105. From this, Boring concluded that the straps had been hit during the afternoon shift. Tr. 105. However, when he reviewed the preshift examination books for July 25, 2010, and July 26, 2010, there was no record of any hazards or dangers present. Tr. 106.

            Boring argues that the roof condition was a hazard because it was deteriorated, cracked and loose rocks were hanging. Tr. 106, 107. He explained that the roof bolters pried some of the loose rock down before beginning to work and, when they installed the center roof bolt, the roof raised slightly. Tr. 107, 108. This indicated to Boring that the immediate roof was fractured. Tr. 108. In light of these observations, he issued Order No. 8007970 stating that the preshift examination was inadequate and exposed the miners to the unknown dangers of the roof condition that was present. Tr. 109. He explained that the standard requires that any hazards must be written down in the books and, at the very least, the midnight shift preshift examination for the day shift was inadequate, but it is possible that the afternoon preshift examination for the midnight shift may have been as well. Tr. 109. He later admitted, however, that he could not be certain precisely when the straps were hit or whether the condition of the roof had changed between the day shifts on July 26, 2010 and July 27, 2010. Tr. 118.

            On cross-examination, Boring acknowledged that pulling down unsecured rock is part of the duties as a roof bolter and the straps had, in fact, prevented the loose rock that was laying on them from falling to the ground. Tr. 113, 114. Although he stated that he considers the area to be unsupported until bolted, he further admitted that when mining with an integral bolter, the center area normally is not bolted until later. Tr. 117, 118. He stated that he believed that the center bolting was to be done during the day shift on July 27, 2010, but further questioning revealed that he was assuming this because the bolter was present. Tr. 124, 125. No one in the mine informed him whether this was the case. Tr. 125.

            James Matthew Hindman (“Hindman”) is MSHA’s Roof Control Supervisor for District 2 and he has held this position for four years. Tr. 130, 131. Prior to this position, he spent five years as an MSHA inspector and has a collective thirty-nine years of experience in various positions in the mining industry. Tr. 132. The responsibilities of his current position include reviewing all of the roof control plans and roof control addendums for the underground coal mines. Tr. 131. He supervises seven specialists who perform roof control inspections, six of which focus solely on roof control issues. Tr. 131. He stated that he began learning about roof control issues from the very first day in the mine because, not only is it the number one killer in a mine, but he also ran a roof bolter for approximately three years. Tr. 133. Over time, he developed a specialty in roof control issues and has testified in several hearings. Tr. 133.

            Because Hindman had a hand in approving the Mine’s roof control plan, he is generally familiar with its requirements. Tr. 133, 134. He explained that Respondent’s roof control plan requires that it, at a minimum, place a strap and two bolts for every five feet that the miners advance. Tr. 134. If roof conditions become poor, extra measures can be taken, such as shortening the strap spacing, using supplemental supports, etc. Tr. 134. He testified that any damage to a strap creates a wider space between it and the other straps, which could allow larger pieces of rock to fall between them. Tr. 136. He further stated that damage reduces their effectiveness because they should be as tight against the roof in order to prevent movement in the roof; although, he acknowledged that the strap is almost never in contact with the roof all the way across because the roof is not perfectly flat. Tr. 136, 147. Another concern is that damage to the strap could also cause bolts to lose their torque, allowing the roof to sag. Tr. 136, 137. He opined that, while the straps need to have been replaced, it would have been easy to back the miner out and put in a few bolts to adequately support the area. Tr. 142, 143.

                        Hindman further opined that the mine’s roof was generally in poor condition for several reasons. Tr. 138. The first was a statement made in Respondent’s opening statement expressing the fact that it was bolting on three-foot centers, well above the minimum plan of five-foot centers. Tr. 138, 139. He testified that this is normally done when the roof is broken or cracks or breaks exist. Tr. 139. The second was mirrored statements made in the testimony of Newhouse and Boring. Tr. 139. Both testified that the temporary roof support actually raised the roof up. Tr. 139. This indicated to him that the roof was fractured and voids existed above the visible roof. Tr. 139. The final reason was testimony that the drill jumped while drilling the holes for the roof bolts. Tr. 107, 108, 139. This also suggested to Hindman that there were voids or breaks above the roof, but he also testified that it could have occurred from differences in the strata. Tr. 139, 155. Hindman stated that the Emerald No. 1 Mine has as much of a history of

roof problems as any other mine, but it does have a personnel problem. Tr. 140. Specifically, it has a problem with miners walking under unsupported roof, which has caused injuries in the past. Tr. 140. However, he acknowledged under cross-examination that mine management had held meetings to express to the miners that this behavior would not be tolerated. Tr. 154.

            In response to the state of the straps at issue in Order No. 8007696, Hindman expressed his concern that the straps being pushed forward a foot or two is much more dangerous than a nick in a strap. Tr. 145. The straps are very strong, but pushing them exposes loose roof. Tr. 145, 146. If miners were working in the area, he opined that there was a reasonable likelihood that a large piece of rock could fall and break the neck of or kill a miner. Tr. 146, 147. Previous testimony described the straps as having been bent into a “V” shape, and Hindman stated that this condition should have been obvious to a preshift examiner. Tr. 36, 146. However, he did generally admit that the condition of the roof would be evaluated at the time of the exam, and there is room for potential disagreement between people as to whether a hazard exists or not. Tr. 156.

            As a final matter, Hindman was questioned about the use of eight or nine roof bolts to abate the condition. Tr. 158. He testified that this would be a lot of bolts and would tend to indicate to him that the roof was broken up. Tr. 158. However, he also admitted that, when a citation is issued, operators will sometime install more bolts than necessary in order to satisfy the inspector. Tr. 159. Hindman himself had no knowledge of where the bolts were installed nor could either Newhouse or Boring describe where they had been installed to explain the necessity of them. Tr. 159, 160.

            John Bonham Hayhurst II (“Hayhurst”) worked in various positions at the Mine from 2003 until August 2009, when he left for other employment opportunities. Tr. 161-163. His positions included faceman, bolter, miner operator, face boss and a coordinator. Tr. 161-162. He was certified by Pennsylvania and received his mine foreman papers while working for Respondent. Tr. 163. On July 27, 2010, Hayhurst had worked the midnight shift as a bolter. Tr. 164. He testified that, during that shift, he had center bolted the No. 2 entry and had made it “[j]ust almost to the Crosscut 2 to 1. Tr. 164, 165. The bolter was left in the No. 2 entry with the expectation that the next shift would finish center bolting and rib pin. Tr. 165.

            Hayhurst testified that he had conducted the pre-shift examination in preparation for the day shift , which consisted of checking the faces, the air in the last open crosscut return, the presence of methane, power centers, and chargers. Tr. 165; Ex. GX-5. He further stated that he checked the roof conditions and noticed that the two straps in question had been damaged and bent in the center, although not “tremendously.” Tr. 166. Generally, Hayhurst testified that if a strap is hit and cut in two, it is replaced. Tr. 166. If it is hit and not cut in to, the crew typically

moves on. Tr. 166. In his opinion, he did not notice any loose rock, slips or cracks that presented a hazard, nor did he believe that the damage to the straps themselves presented a hazard. Tr. 167. He also stated that he did not see any material on the straps when he conducted his examination. Tr. 167. In determining whether a hazard exists, Hayhurst mostly relies on his experience as a miner and stated that the determination is quite often a judgment call. Tr. 168, 169. Given his knowledge and experience in the industry, he did not believe that the area in question was a hazardous area during his on-shift and pre-shift examinations. Tr. 171.

            In describing the conditions of the roof and straps, Hayhurst testified that the outside bolts were tight. Tr. 169. He stated that twisted or dislodged bolts can be determined by the existence of gaps between the bolt and the roof. Tr. 169. He recollected that the straps were spaced on approximately two and half foot centers because the top was slate rather than sandstone, and although management was not necessarily worried about the condition of the roof, it prefers to error on the side of safety due to the unpredictable nature of a slate roof. Tr. 169, 170, 179. On cross examination, however, Hayhurst admitted the possibility that, even though the bolts appeared to be tight and solid, a bolt could lose torque even though it was not visibly dislodged. Tr. 174, 175. He further admitted that a significantly bent, but not broken, strap can prevent a hazard if the roof above it is bad. Tr. 174.

            Justin Michael Drew (“Drew”) is a mine examiner at Respondent’s Mine, where he has worked for nearly six years. Tr. 180, 181. Prior to working his position as mine examiner, he also worked as a faceman, bolter, miner operator and fire boss. Tr. 181. Collectively, he has approximately ten years of experience in the mining industry and, like Hayhurst, has his assistant foreman papers certified by Pennsylvania. Tr. 181, 182. In his position as mine examiner, he conducts pre-shift examinations to ensure that the mine is safe for the oncoming shift. Tr. 181. He is also a member of the United Mine Workers. Tr. 181.

            The day prior to the inspection, Drew was operating the continuous miner and recalled finishing up the 2 Straight and getting ready to make the turn from 2 to 1. Tr. 183. While making the turn and after putting two straps up, the temporary roof support that is on the miner went down and the miner had to be backed up so that it could be changed. Tr. 184. Although Drew did not know that he had hit the straps, he was later informed by miner operator at a meeting that the operator had noticed a nick in a strap when conducting the pre-operational examination of the continuous miner following Drew’s shift. Tr. 184. While Drew stated that it is common practice to replace a “completely” damaged or ripped out strap, he testified that he would not have replaced the strap that he allegedly hit. Tr. 184, 185.

            The day of Boring’s inspection, Drew accompanied them as a representative of the union. Tr. 186. Contrary to Boring’s testimony that he traveled down the edge of the canvas on the left-hand side of entry when examining the face, Drew testified that they walked straight down the middle of the entry and, therefore, under the two damaged straps. Tr. 119, 186, 187. He noted that Newhouse called Boring back to look at the straps which Drew described as bent in a slight “V” that was displaced approximately six to eight inches. Tr. 187, 188. He did recall the presence of some rock outby the damaged straps that was pulled down, although he could not remember exactly who had actually pulled it down, how it was done or how hard of a job it was to remove. Tr. 189, 190.

            After the rock was removed, Drew testified that he examined the bolts and determined that they were undamaged. Tr. 190. He admittedly did not test the bolts though, even though he admitted to cracks in the roof in the area that the straps were damaged. Tr. 198. As Newhouse and Boring testified, Drew also observed the roof lift when the temporary roof support was placed against it while the straps were being bolted. Tr. 190. However, he stated that this is a typical occurrence. Tr. 190. Although he did not recall witnessing the jumping of the drill in this particular occurrence, he testified that it is not unusual for the steel to jump in the bolt drilling process due to cracks or gaps in the roof. Tr. 190, 191.

            Howard Campbell Springer, Jr., (“Springer”) is an assistant shift foreman at the Mine where he has worked for five years and is certified in Pennsylvania to be an assistant mine foreman. Tr. 200, 202. His responsibilities include checking on people in the mine, checking on equipment and generally helping run the shift. Tr. 200, 201. Prior to his current position, he had approximately thirteen and a half years of experience, including ten spent as a surveyor. Tr. 201. His entire eighteen and half years in the mining industry have included some responsibility to evaluate roof conditions, whether through his normal duties or through pre-shift or on-shift examinations. Tr. 202.

            On the day of the inspection, Springer testified that he was supervising his crew as they advanced the belt and the power in the C-3 section of the mine when he encountered Inspectors Newhouse and Boring in the No. 3 entry. Tr. 203, 204. He observed the damaged straps, but stated that they were intact and, in his opinion, they did not constitute a hazard. Tr. 204-206. He testified that in the course of mining, it is common practice to replace straps that are damaged badly enough and move on from the ones that are not. Tr. 205. He recalled that the straps were not replaced; rather, bolts were simply installed beside them. Tr. 206. Contrary to the testimony of Newhouse, Boring and Drew, Springer stated that he did not see the roof lift or the steel jump during the drilling and bolting process. Tr. 206. Also contrary to other testimony, he stated that the roof was not sagging in any way and the rock that was removed took considerable effort to pull down. Tr. 208, 209.

            Springer had conducted the on-shift examination in that particular area on the day of the inspection. Tr. 207. He stated that nothing was recorded in the on-shift examination book because he did not see anything that he deemed to be a hazard. Tr. 207. On cross-examination, he admitted, however, that although he takes annual refresher training courses that also cover roof control, he has never taken any formal classes on roof control. Tr. 212, 217. He testified that Newhouse instructed him to record the bent straps in the on-shift examination book, which Springer did even though he stated that he disagreed that a hazard existed and was told to write it down by State Inspector Bill Gardner. Tr. 207, 208, 214, 215. His objections, although noted in the examination records, were not voiced during the inspection for fear that questioning Newhouse could lead to harsher penalties. Tr. 208, 216; Ex. GX-5.

            Keith A. Mills (“Mills”) has been a shift foreman at the Mine for four years. Tr. 220. He has approximately thirty years of experience between mines in Pennsylvania and Illinois and he has also held positions as section foreman, assistant shift manager and production coordinator. Tr. 220, 221. He is currently certified in Pennsylvania, but has conducted pre-shift and on-shift examinations in both states. Tr. 221, 222.

            Although not present when Newhouse and Boring were conducting their initial examination, Mills testified to being present when the problem with the straps was being discussed, but before the bolting process had begun. Tr. 222. He observed the straps and acknowledged that they were, in fact bent; however, he did not believe that the condition was either abnormal or constituted a hazard that had to be recorded in the examination books. Tr. 223. Like Springer, Mills testified that he did not observe the roof in the No. 3 entry to be sagging. Tr. 224. He stated that, in his opinion, the roof in the Wabash Mine in Illinois was considerably worse than that in the Emerald No.1 Mine. Tr. 225.

            On cross-examination, Mills disagreed that the straps were bent into a “V” shape, but agreed that they were bent. Tr. 226. He further stated that, although he did not believe that the straps were twisted, they were not lying flat and was flexion in the strap that was more severe at the end. Tr. 226, 227. He further agreed that cracks in the roof and rock resting on the straps would not be abnormal and that when bolters are concerned about the condition of the roof, they often place straps and bolts much closer than the five foot maximum. Tr. 227, 228.

            Gary Bochna (“Bochna”) is the Safety Rep at the Mine where he has worked in the Safety Department since 1980. Tr. 229. His current position requires him to take dust samples, accompany federal inspectors and other unspecified, safety-related jobs. Tr. 229. Prior to his work in the Safety Department, Bochna was a mine examiner for a very short period of time. Tr. 230.

            Bochna testified that he observed the nicked straps as well as the material that was being held by them. Tr. 232, 233. He stated that miners used a slate bar to bring down the loose material and it did not require substantial effort. Tr. 233. He testified that, if he had been conducting the pre-shift examination, he does not believe that he would have recorded the cited condition as a hazard. Tr. 234. He did, however, admit that some serious injuries have occurred in this mine due to roof falls. Tr. 236, 237.

            Norman David Moore (“Moore”) has worked at the Mine for almost ten years and is currently an electrician. Tr. 238. Prior to this assignment, he was a mechanic and a roof bolter. Tr. 238, 239. Further, Moore holds a position on the Safety Committee for the miner’s union in which he investigates accidents, accident reports and citations, accompanies inspectors through the mine and represents miners in safety disputes with the company. Tr. 239, 240.

            Moore testified that, after seeing the Order at issue here, he spoke with several miners on the morning and afternoon shifts and looked at the bent straps himself. Tr. 240. He agreed with many of the men that the condition, as it existed on July 27, 2010, was not a hazard. Tr. 241, 244. He further stated that the men felt as if the number and spacing of the bolts suggested by the inspector were overkill for the condition. Tr. 243. He did not, however, see the condition in its original state, only after the rock had been scaled down and the roof had been bolted. Tr. 245. Rather, he had discussed the condition with Dwayne Reckard, the miner operator who had nicked the straps during the afternoon shift and believed that they did not constitute a hazard. Tr. 240,248. He also admitted that, when safety is concerned, there really is no overkill. Tr. 247.

            William B. Shifko (“Shifko”) has worked at the Mine since 1977 and his current position is Manager of Compliance, which he has held since 1992 except for a two year span as Safety Manager. Tr. 250, 251. In his position, he maintains records, informs others of alarming trends both in the mine and elsewhere, educates miners on full compliance with the regulations, occasionally accompanies inspectors and often prepares the facts for litigation, when needed. Tr. 250, 251. Shifko has held his foreman papers since 1979 and testified that he had likely conducted thousands of pre-shift and on-shift examinations prior to his current position. Tr. 252.

            Shifko prepared the safety talks based on MSHA’s “Rules to Live By” program that were given to Respondent’s employees on April 5, 2010 and April 12, 2010. Tr. 253. During these safety talks, Shifko covered all of the regulations that were addressed by the program for both the underground and surface mines. Tr. 254. He explained that a lot of new miners were hired in 2009 and that there had been problems in the Mine with someone walked under supported roof. Tr. 254. Because of this, he felt compelled to educate and train them in order to prevent injuries. Tr. 254. Although the talks addressed the fact that “far too many accidents” had occurred, Shifko stated that, in his opinion, one accident was too many and he takes any injury personally. Tr. 254, 255.

            Shifko testified that the last major injury occurred in 2009. Tr. 255. He did, however, state that there had been accidents that he considered to be minor, in which a miner was injured but not severely and the injury did not result in the loss of any work time. Tr. 256. He stated that these accidents were common in any underground mine and certainly were not exclusive to Respondent’s Mine. Tr. 256. Given this testimony, Shifko maintained that he would not have considered the nicked straps a hazard. Tr. 268. He did state, however, that if the straps were severed, he would likely rethink that answer. Tr. 268.

LAW AND REGULATIONS

            30 C.F.R. § 75.360(b) states that “the person conducting the preshift examination shall examine for hazardous conditions, test for methane and oxygen, and determine if the air is moving in its proper direction at the following locations.” Subpart (3) continues “[w]orking sections and areas where mechanized mining equipment is being installed or removed, if anyone is scheduled to work on the sections or in the area during the oncoming shift. The scope of the examination shall include the working places, approaches to worked-out areas and ventilation controls on these sections and in these areas, and the examination shall include tests of the roof, face and rib conditions on these sections and in these areas.” 30 C.F.R. § 75.360(b)(3)(emphasis added).

            1A violation is properly designated as significant and substantial “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822,825 (Apr. 1981). The Commission later clarified 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 show: (1) an underlying violation of a mandatory safety standard; (2) a discrete safety hazard contributed by the violation; (3) a reasonable likelihood that the hazard contributed to will result in injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature (the “Mathies” Test). Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). 

            A finding of an “unwarrantable failure to comply with a mandatory safety standard” suggests more than ordinary negligence. Emery Mining Corporation, 9 FMSHRC 1997, 2000 (1987). It is aggravated conduct that is “characterized by such reckless disregard, intentional misconduct, indifference or serious lack of reasonable care.” Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001). Some aggravating factors include: the length of time the violation existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts were necessary for compliance, the operator’s efforts in abating the violative condition, the obviousness of the violation, involvement of a supervisor in the conduct and the operator’s knowledge of the violation. Consolidation Coal Co. 22 FMSHRC 340, 353 (Mar. 2000). All of the relevant facts and circumstances must be considered when determining whether the actor’s conducted is aggravated, or whether the level of negligence should be mitigated. Id.

ISSUES AT HEARING

            The significant issues at hearing were whether Respondent’s failure to record the condition noted in Order No. 8007969 resulted in an inadequate preshift examination that was both significant and substantial in nature and an unwarrantable failure to comply with a mandatory safety standard.

CONTENTIONS OF THE PARTIES

            The Secretary contends that the condition of the straps with rock lying on top of them constituted an obvious hazard that was highly likely to result in a fatal injury. As such, Respondent should have noticed it during its pre-shift examination and recorded it in its pre-shift examination book in order to warn miners entering the mine for the immediate shift that a hazardous condition existed. She finally argues that Respondent’s knowledge of the condition and failure to record it was an unwarrantable failure to comply with a mandatory safety standard. In consideration of these arguments, the Secretary contends that Order No. 8007970 should be affirmed as written.

            Respondent argues that the nicked straps were not an obvious hazardous condition that must be recorded in the pre-shift examination book; rather, although it admits that reasonable minds may differ, it argues that this condition was based on a valid judgment call made by the pre-shift examiner. Following this argument, Respondent contends that there is no violation of 30 C.F.R. § 75.360(b)(3), let alone a significant and substantial violation that is an unwarrantable failure to comply with a mandatory standard. Based on the foregoing, Respondent argues that Order No. 8007970 should be vacated.

ANALYSIS AND CONCLUSIONS

            The Commission has determined that pre-shift examinations are fundamental in assuring a safe work environment for the miners. Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 1997); Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). In Big Ridge, Judge Miller noted that “[t]he preshift examination is intended to prevent hazardous conditions from developing … [t]he preshift examiner must look for all conditions that present a hazard.” 2011 WL 1621389 (Mar. 2011)(FMSHRC). The determination of whether the preshift examination was adequate is based on whether a reasonably prudent person, familiar with the mining industry and the protective purpose of the safety standard herein, would have recognized this hazard needed to be recorded in the preshift examination book. Utah Power & Light Co., 12 FMSHRC 965, 968 (May 1990) aff’d 951 F.2d 292 (10^th Cir. 1991); Consolidation Coal Co., 33 FMSHRC 283, 290 (2011)(ALJ); Big Ridge, 2011 WL 1621389 (Mar. 2011)(FMSHRC).

            The undersigned finds that the pre-shift examination was inadequate and the violation is significant and substantial in nature. In pertinent part, the requirements of 30 C.F.R. § 75.360(b)(3) state that a pre-shift examination must include tests of the roof conditions in an area where work is scheduled to be done. Here, the straps at issue were severely bent, arguably into a “V” shape. Tr. 35, 36, 102, 187, 188, 226, 227. Drew and Dwayne Reckard, through the testimony of Mills, acknowledged that these straps had been nicked at least a day prior to the Order at issue having been written. Tr. 184, 240. Although it is common place to ignore straps which have been simply nicked or lightly damaged, these straps were severely damaged, bent at least six inches and as much as ten inches forward and twisted, leaving deteriorating roof relatively unsupported. Tr. 35-37, 102, 106, 107, 187-189, 226, 227. The ALJ gives credence to the Secretary’s witnesses, above cited, as to the nature and extent of the roof damage. See also Tr. 146. The undersigned finds that, even without the fallen roof lying on the straps at the time of the pre-shift examination, the reasonably prudent person familiar with the mining industry, the nature of the roof conditions at the mine and the protective purpose of the safety standard would have recognized that this must be recorded in the examination book.

            The existence of this violation contributes to the likelihood of a roof fall. Because the center roof bolts cannot be installed until the full-face miner has been removed from the cut, the straps are inserted as a temporary security measure until the center bolts can be installed. If these bolts are severely bent or severed, they are incapable of performing this function. As the bolts are typically installed on a five foot center, a strap that is bent as much as five inches in the center leaves a significant area between itself and the previous strap. This, in turn, leaves a larger area that is unsupported until the roof bolts are installed. The combination of a larger area of unsupported roof and a strap damaged to the point of those described here could significantly increase the likelihood that a roof fall would occur. However, the undersigned does not agree that this is highly likely to result in an accident. The condition had existed for at approximately twenty-four hours in which mining continued and, later, an inspection began. Although the material on the straps was loose, inspector Boring stated he did not believe that he was in any imminent danger due to the condition. In fact, he continued down to the face before being called back by Newhouse. Also, though it did not take abnormal effort, the material still had to be pulled down by other miners. Under these circumstances, it is not highly likely that someone would have been injured as a result of the condition. For the foregoing reasons, the undersigned finds that a roof fall was reasonably likely to occur.

            The undersigned also finds that a roof fall is reasonably likely to cause an injury or illness and that this injury could be fatal in nature. If the roof were to fall while the miner was still in operation, it endangers, at the very least, the continuous miner operator as well as those miners who are operating the integral bolter as the machine moves through the cut. If the roof were to fall after the continuous miner has been removed, it endangers the lives of the roof bolters as well as anyone moving through the area. The size of the fallen roof was measured at approximately twenty inches by twenty inches. Tr. 58. Regardless of the thickness of this material, a miner hit by it could at the very least suffer a painful bruise, contusion or gash and, at the very most, it could cost him his life. Respondent had a history of injuries due to roof falls at the mine to attest to this fact. Based on the foregoing, the undersigned finds that the violation at issue is significant and substantial in nature.

            However, the undersigned does not find that this violation constitutes an unwarrantable failure to comply with a mandatory safety standard. By its definition, an unwarrantable failure suggests more than ordinary negligence. All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353 (Mar. 2000). A judge may also determine, in his discretion, that some factors are not relevant or may determine that some factors are much less important than other factors under the circumstances. IO Coal Company, 31 FMSHRC 1346, 1351 (Dec. 2009). In determining whether Respondent’s conduct was aggravated in the context of unwarrantable failure in this case, the undersigned finds that significant evidentiary questions remained unresolved as to when the straps at issue were bent and when the associated roof sections were damaged. In this case, the relevant aggravating factors of length of time that the violation existed and the operator’s knowledge/notice of such are critical factors.

            The Secretary cannot pinpoint with any accuracy how long the condition as cited existed. While there is testimony stating that the straps had been bent early the day before, there is no evidence in the record to suggest when the material fell onto the straps. This condition could have occurred simultaneously as the straps being hit or moments prior to the inspectors entering the mine. Without more evidence, there is simply not enough to imply aggravated conduct or greater than ordinary negligence on the part of Respondent. Further, given, inter alia, the admission of Secretary’s own witness, Robert Newhouse, that he could not determine at what time the violative condition had actually occurred, I decline to speculate regarding such in reaching a finding of unwarrantable failure. Tr. 90.

            Moreover, Hayhurst conducted his examination, observed the nicks straps and made a judgment call based on this observation. While all of the Secretary’s witnesses opined that this was the wrong judgment call, there was much discussion that reasonable minds could possibly differ on the issue. While the hazard seems obvious to the undersigned, he is aware that the conditions of a courtroom and an underground mine are materially different and, therefore, affords the examiner’s judgment some deference in the matter.

            In summary, the undersigned finds that while Respondent did check the conditions of the roof on July 27, 2010, this examination was inadequate to ensure a safe working environment for miners. Although the facts are sufficient for a finding that the violation was reasonably likely to result in a fatal injury to a miner, there is not enough evidence in the record to show that the condition was highly likely to result in an accident. Further, while I find sufficient proof that Respondent’s actions were negligent in nature, I do not find persuasive proof of conduct so aggravated in nature so as to constitute unwarrantable failure to comply with a mandatory safety standard.

ORDER

            In light of the foregoing, it is hereby ORDERED that Order No. 8007970 be MODIFIED from a 104(d)(2) order to a 104(a), reasonably likely, moderate negligence citation. Due to these modifications, it is further ORDERED that Respondent PAY the Secretary of Labor the sum of $9,100.00 within thirty (30) days of the date of this decision. Upon receipt of payment, this case is DISMISSED.

                                                                                    /s/ John Kent Lewis

                                                                                    John Kent Lewis

                                                                                    Administrative Law Judge

Distribution: (Certified Mail)

Jennifer K. Welsh, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222

/kmb