FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Black Beauty operates several large underground coal mines in southern Illinois and southern Indiana. A total of eleven section 104(a) citations and four 104(d)(2) orders of withdrawal were adjudicated at the hearing The Secretary proposed a total penalty of $316,216.00 for these citations and orders. Three additional citations settled at the hearing.

I. BASIC LEGAL PRINCIPLES

A. Significant and Substantial

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

It is the third element of the S&S criteria that is the most difficult to apply. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).

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

B. Negligence and Unwarrantable failure

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

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

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

II. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

A. Docket No. LAKE 2009-304, Air Quality #1 Mine

1. Order No. 6669341

On August 19, 2008, at 9:00 a.m. MSHA Inspector Anthony M. DiLorenzo issued Order No. 6669341 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.400 of the Secretary’s safety standards. Order No. 6675150 states:

Combustible material in the form of loose coal, coal fines, and coal dust have been allowed to accumulate on the 2 Main East Belt tail located between crosscut 43 and crosscut 44 on the intake brattice line side. One pile measuring 5 feet in length by 18 inches in width by 8 inches in depth was observed under the tailpiece and another pile measuring 5 feet in length by 2.5 feet in width by 10 inches in depth was observed with evidence showing the belt was rubbing in this pile for approximately 4 feet in length. The operator, Jason Nelson (Section Foreman), showed more than ordinary negligence by allowing the belt to run under this known condition until the arrival of MSHA to the area. This violation is an unwarrantable failure to comply with a mandatory standard.

(Ex. G-1). Inspector DiLorenzo determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that the violation was S&S, the operator’s negligence was high, and that ten persons would be affected.

Section 75.400 of the Secretary’s regulations requires that “[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.” 30 C.F.R. § 75.400. The Secretary proposed a penalty of $41,574 for this alleged violation.

a. Background Summary of Testimony

Inspector DiLorenzo testified that the order was issued in an active section of the mine. (Tr. 15). He used a tape measure to determine the size of the accumulations. (Tr. 16). He observed more than ten people inby the cited area. DiLorenzo’s concern was that a fire could start and miners would be overcome by smoke inhalation. (Tr. 17). The combustible material was in contact with the moving belt. He testified that the belt continuously running on top of the accumulations would create frictional heat. (Tr. 19). He determined that the belt was running along four feet of one of the piles. There was no fire suppression system in the area. (Tr. 21).

The section foreman and section mechanic were standing close to these accumulations working on a remote switch when the inspector arrived. After the belt was shut down, the section foreman advised Inspector DiLorenzo that “he had been having problems with this remote line and the belt training and that he was going to clean that side [of the tail piece] afterwards.” (Tr. 22). The travelway side of the tail piece had already been cleaned. DiLorenzo testified that he did not “believe that just cleaning half of the accumulations and then allowing the belt to run knowing that there’s accumulations in contact with the belt” amounts to reasonable care. He marked the negligence as “high.” In addition, it is the inspector’s belief that Black Beauty was not adequately maintaining its belt lines because it had received many citations alleging violations of section 75.400 along belts. DiLorenzo testified that MSHA inspectors had advised Black Beauty that it needed to take greater “efforts to get a handle on the situation along their belt lines.” (Tr. 23). He further testified that the Air Quality #1 Mine has about 17 miles of belts and an insufficient number of people to maintain them. (Tr. 24, 27). The belt that was rubbing against the accumulations had several splices that were in need of repair, which increased the hazard. He admitted, however, that Black Beauty vulcanizes the splices in its belts. (Tr. 39).

Production coal was not loaded onto the belt during the previous shift but it is possible that scoops could have dumped coal onto the belt during cleanup on that shift. (Tr. 34). Inspector DiLorenzo testified that it is possible the accumulation he cited could have been created in 20 minutes or it could have been present during the previous shift. (Tr. 43).

Jason Nelson was the section foreman on the day of the inspection. (Tr. 48). Mr. Nelson testified that when he arrived underground that morning he performed his typical safety checks during his onshift examination. When he checked the tail piece he noticed that coal had been spilling at that location. He did not believe that these accumulations were in contact with the belt. (Tr. 54). He testified that he started shoveling the accumulated coal. (Tr. 51). There had been problems with the belt that morning. It would surge and then slow down. The section mechanic believed that there was a problem with the remote switch for the belt. (Tr. 52). The remote line functions as a stop-and-start switch for the belt. The section mechanic shut down the belt to work on the switch. (Tr. 55). Nelson had not completed shoveling the area when the inspector arrived but he would have completely cleaned up the accumulations in about ten minutes. (Tr. 57). Nelson testified that the section mechanic was in the area to repair the remote line and that he, Nelson, was present to shovel up the coal accumulations. Nelson said he was not involved in shutting down the belt and the belt would have been shut down by the mechanic even if the inspector had not arrived. (Tr. 56). Nelson further testified that smoke from a fire at the tail would have traveled out the return and not to the working section.

Nelson testified that he arrived on the section at about 7:30 a.m. and that he discovered accumulation at about 8:30 a.m. (Tr. 60). The belt had been started at the end of the previous shift. He had been shoveling for about ten minutes when the inspector arrived. He stated that he did not observe the belt running in accumulations. (Tr. 61).

Joseph H. Robinson was the senior electrician and mechanic at the time the order was issued. He stated that when he arrived on the section on August 19, he noticed that the belt was surging. (Tr. 66). He called his supervisor, Jason Nelson, to come over to look at the belt. Robinson testified that Nelson noticed there were accumulations at the tail. As a consequence, Nelson started shoveling up the accumulations and Robinson started troubleshooting. Id. Robinson testified that he discovered there was a short in the twist lock plug and told Nelson. Robinson testified that he walked to the breaker to shut down the belt and left to find a replacement for the plug. (Tr. 67). He had to walk outby the area to shut down and lock out the power to the belt. Nelson was still shoveling when he returned. At this point, Robinson observed Inspector DiLorenzo and he said, “Federal is here.” (Tr. 70, 73-74). Robinson testified that he said this, not to warn Nelson of the presence of an MSHA inspector, but to warn him that there was an extra person on the section. Robinson testified that he did not shut the belt down because an MSHA inspector was present. (Tr. 71). Robinson agreed that there was a coal accumulation at the tail. (Tr. 72).

b. Summary of the Parties’ Arguments

The Secretary argues that the evidence establishes that, when Nelson became aware an MSHA inspector was present, he ordered that the belt be shut down. The belt was being shut down as he walked up to the tail piece and he did not observe anyone shoveling. Given these facts and assuming continued mining operations, it was reasonably likely that a fire would have started that could cause burns and smoke inhalation. DiLorenzo observed places where the belt had been running in the accumulations. Nelson had allowed the belt to continue running even though it was in contact with the accumulations. This mine had a history of accumulation violations and MSHA inspectors had previously discussed this issue with mine management.

The Secretary maintains that the conditions created a serious fire hazard. The rotating conveyor belt supplied a frictional heat source for the coal and coal dust and a fire would have started if the condition had been allowed to continue. This was especially true in this instance because the belt contained several splices in need of repair. The Secretary states that the credible evidence establishes an S&S violation of section 75.400. She also argues that the evidence establishes that the violation was an unwarrantable failure because the accumulation was obvious and the section foreman was aware of its existence. Nelson cleared the travelway side of the belt but he failed to clear the intake side. By clearing only one side of the belt, Nelson allowed the belt to continue running and rubbing in the accumulation. In addition, past discussions with MSHA about accumulation problems serve to put an operator on heightened awareness that it needed to improve its compliance with section 75.400.

Black Beauty argues that the violation was not S&S. The particular facts of this case do not support a finding that there existed a reasonable likelihood that the hazard contributed to by the violation would have resulted in an injury or illness of a reasonably serious nature. Black Beauty maintains that there was no ignition source. Inspector DiLorenzo did not observe the belt running in the accumulations; he merely believed that the belt “had been rubbing in the accumulations.” (Tr. 21). His testimony should not be credited on this issue. In addition, the violation was not extensive. The inspector agreed that the accumulations could have developed very quickly and that Nelson had shoveled up the accumulations on one side of the belt. Finally, assuming continued normal mining operations, the material would have been cleaned up within minutes.

Black Beauty also argues that the violation was not the result of its unwarrantable failure to comply with the safety standard. The order was issued because the inspector believed that Nelson would have allowed the condition to continue if he had not arrived. The evidence establishes, however, that the belt was shut down by Robinson so that he could repair the remote line and that Nelson was in the process of removing the accumulations. Thus, the evidence establishes that Black Beauty was actively in the process of removing the hazard.

c. Discussion and Analysis

I find that the Secretary established a violation of section 75.400. As Black Beauty concedes, the accumulation violated that standard. I find that the Secretary did not establish that the violation was S&S, however. I agree with the Secretary that she is not required to establish that it is more probable than not that an injury will result from a violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). Reviewing the particular facts surrounding the violation in this instance in the context of continued mining operations, I find that an injury was unlikely. I credit the testimony of Jason Nelson and Joseph Robinson. Nelson credibly testified that he had been cleaning up the accumulations. Robinson, the mechanic, shut down the belt to troubleshoot the surging problem. I find that the evidence establishes that, if the inspector had not arrived, the belt would have been repaired and the accumulations cleaned up in a very short period of time. Given that the belt was shut down, no hazard was present. I do not credit the evidence that Nelson ordered the belt be shut down when he became aware that the inspector was on the section. The gravity was moderate.

I also find that the violation was not the result of Black Beauty’s unwarrantable failure to comply with the safety standard. The accumulations had been present for a short period of time; the operator was in the process of abating the violation when the inspector arrived; and the violation did not present a high degree of danger. The violation was rather obvious and extensive, but given that clean up had commenced, I find that Black Beauty’s conduct did not rise to the level of aggravated conduct. The operator’s negligence was moderate. A penalty of $8,000 is appropriate.

2. Order No. 6681297

On November 20, 2008, MSHA Inspector Philip Douglas Herndon issued Order No. 6681297 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.402 of the Secretary’s safety standards. The order alleges:

The MMU-001 was not properly rockdusted within 40 feet from the faces of #3, #4, #7, and #8 including cross cuts #4 to #5, #3 to #4. The unrockdusted areas have existed for a minimum of 12 to 16 hours prior to the issuance of this order and have existed while production continued through these areas by evidence of the existing mine cycle. This violation is the result of the operator’s unwarrantable failure to comply with a mandatory standard and demonstrates more than ordinary negligence.

(Ex. G-10). The inspector found that an injury or illness was unlikely to occur but that any injury would result in lost workdays or restricted duty, that the violation was not S&S, that ten people would be affected, and that the violation was a result of high negligence on the part of the operator. Section 75.402 provides, in part, that all underground areas of a coal mine “shall be rock dusted to within 40 feet of all working faces. . . .” The Secretary has proposed a civil penalty in the amount of $4,000.

a. Background Summary of Testimony

Inspector Herndon has been an inspector for MSHA for approximately four years. Prior to that he worked in coal mines starting in 1982. Herndon was familiar with the Air Quality #1 Mine, because it was one of the mines where he had worked and because he had visited it “on a regular basis” as an inspector. (Tr. 77) Herndon described Air Quality as a large, gassy room and pillar mine. (Tr. 77-78). Pursuant to a regular E01 spot inspection of Mechanized Mining Unit Number 1 (“MMU-001”), Herndon issued seven citations or orders on November 20, 2008 in that unit. (Tr. 79). Citation No. 6681297 was issued because the area was not rockdusted to within 40 feet of the working face. (Tr. 80).

Herndon determined that faces 3, 4, 7, and 8 and crosscuts 4 to 5 and 3 to 4 were not rockdusted and there was zero incombustible content material in the area. (Tr. 80-81). Herndon designated this order as not S&S because, at the time, he did not find an ignition source. (Tr. 81). Herndon still found this to be an unwarrantable failure because a large area was not rockdusted, mining activities would be continuing in the area, and the violative condition was completely overlooked and unreported by the supervisors and examiners on MMU- 001. (Tr. 82; Ex. G-16). Calling the violation “very extensive and extremely obvious,” Herndon designated it as high negligence, finding no mitigating circumstance for the lack of attention paid to the problem (Tr. 84-85). The manager of the mine apologized to Herndon for the violations, offering no excuse. (Tr. 85-86). Herndon required that the areas be rock dusted and that mine personnel be retrained to make sure they understood their responsibilities. (Tr. 86).

Kimberly Jean Orr, an outby utility worker, testified that her job involved accompanying inspectors once or twice a week. (Tr. 92-93). Orr has approximately seven years of mining experience, including rockdusting experience. (Tr. 92). After explaining the distinction between hand dusting and machine dusting, Orr testified that it is common to hand dust and then subsequently machine dust an area. (Tr. 93-95). Orr testified that she accompanied Herndon on his inspection and that Toby Heiden was the section foreman at that time. (Tr. 95). Orr testified that the entries were lightly hand dusted, and likely had been partly washed of their dust by the “head spray” of the continuous mining machine. (Tr. 96-99). Orr testified that the “curtain had been rolled up so they could bring the sling duster in to dust.” (Tr. 97). Orr testified that the amount of rock dust that was on the rib at the time would not be noticeable to an average person unless they were standing close. (Tr. 100).

b. Summary of the Parties’ Arguments

The Secretary argues that the areas were never rock dusted, and even if they were hand dusted, it was inadequate because the surfaces were black, instead of the white of a properly rock dusted surface. (Sec’y Br. 13-14). The Secretary further argues that the extent of the violations constituted an unwarrantable failure because all of the inspected areas were either overlooked or ignored by mine supervision. (Sec’y Br. 14). In support of this argument, the Secretary points to a mine examiner’s date, time, and initials on the black surface of the ribs, indicating that although an agent of the mine witnessed the black, undusted surfaces, no measures were taken to abate the condition. (Sec’y Br. 14).

Black Beauty argues that the order should be vacated because no violation of standard 75.402 occurred. (BB Br. 8). Black Beauty supports its argument by the light coating of dust that Orr testified about. (BB Br. 8). Black Beauty argues that it was in the process of complying with the standard because the crew was preparing to machine dust prior to the mining of any coal and that Inspector Herndon was mistaken. (BB Br. 9).

Black Beauty also argues that the unwarrantable failure finding is inappropriate, even if a violation is found. (BB Br. 9). As additional support, Black Beauty refers to the machine dusting that was about to occur, based on Orr’s testimony that the curtain had been rolled up in preparation for machine dusting and the low degree of danger due to the lack of an ignition source. (BB Br. 10).

c. Discussion and Analysis

The order is affirmed as written. I credit the testimony of Inspector Herndon and find that the cited area was not properly rock dusted to within 40 feet of the working faces as described in the order. I find that any hand dusting that may have occurred was insufficient to provide any protection at the time of the inspection. I credit the testimony of Inspector Herndon that the cited areas were black in color and that the incombustibility content was very low. I also find that the violation was the result of Black Beauty’s unwarrantable failure to comply with the safety standard. The violation had existed for a considerable length of time, the violation existed over a large area and was very obvious, and the operator knew that the condition existed. Preshift examiners had to have been aware of the condition and, indeed, one mine examiner’s date, time and initials were written on a black undusted surface. Black Beauty may well have undertaken some initial steps to rock dust in the cited areas, but its actions were insufficient to correct the obvious conditions in a timely manner. Black Beauty’s failure to rock dust in these areas demonstrated aggravated conduct constituting more than ordinary negligence. I find that its negligence was high but that the gravity was low. A penalty of $5,000 is appropriate.

3. Order No. 6681046

On September 11, 2008, MSHA Inspector Glenn E. Fishback issued Order No. 6681046 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. The order alleges, in part:

Obvious and extensive accumulations of combustible materials in the form of loose coal, coal fines, and float coal dust were allowed to accumulate along the energized 2 Main East conveyor belt entry. The accumulations of combustible materials were allowed to accumulate from the 2 Main East header inby to the #48 x-cut.

(Ex. G-17). The order includes further details as to the amount of accumulations between each crosscut. The inspector found that an injury was potentially fatal, though unlikely to occur, and that the violation was not S&S. The inspector further found that the violation was the result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $23,825.

a. Background Summary of Testimony

Inspector Glenn Fishback was recently promoted to an MSHA roof control specialist for District 8. (Tr. 103). Before his promotion, Fishback was a regular coal mine inspector. (Tr. 103). He has worked for MSHA for a total of three and a half years. (Tr. 104). Before joining MSHA, he worked in the mining industry for twenty-eight years. (Tr. 104). Fishback is familiar with the mine because he has inspected it numerous times. (Tr. 105). Fishback described the mine as a gassy room and pillar mine, subject to spot inspection every five days. (Tr. 105-6).

Inspector Fishback issued the order because of the amount of accumulations of loose coal, coal fines, and float coal dust found on the Main East conveyor belt, in violation of MSHA standard 75.400. (Tr. 108-9). The accumulations began at the belt header, the dumping point from the drive to crosscut 48. (Tr. 110). The crosscuts were on 70-foot centers at the time. (Tr. 110). Fishback estimated the total length of the area to be 3500 feet, describing this as atypical, with a “catastrophic” number of accumulations. (Tr. 112).

Inspector Fishback testified that the belt line was running and miners were dumping coal on it at the time of inspection. (Tr. 114). Fishback explained that the hazard posed by the accumulations was an explosion, a fire, or smoke inhalation from a fire, any of which can be potentially fatal. (Tr. 116-17). Fishback testified that the accumulations were up to the level of the conveyor belt in some places, two feet or so off the ground. (Tr. 117). Fishback, despite designating the situation as not S&S, marked it for “high negligence” given that “some examiner should have noticed these conditions,” and as an “unwarrantable failure” because “the operator should have known it existed” due to the record books, the length of the condition’s existence, and how “obvious and extensive” the condition was. (Tr. 118-19). To Fishback, this demonstrated a “total disregard” for maintenance and inadequate examinations. (Tr. 121). Finally, Fishback testified that the removal of the accumulations took a “significant effort.” (122-23). On cross-examination, Fishback testified that, along the 3500 foot conveyor belt, he was unable to find an ignition source. (Tr. 123).

Travis Kyffin, belt maintenance and examiner at the Air Quality #1 Mine, was a full time examiner at the time of the inspection. (Tr. 140). His duties included conducting onshift and preshift examinations of belt lines. (Tr. 141). Kyffin testified that the third shift was typically a maintenance shift, and a belt line would not be walked by an examiner during that shift. (Tr. 142). Kyffin testified as to the difference between a hazardous and a nonhazardous condition, and provided examples of each. (Tr. 143). Kyffin testified that on September 10, 2008, he was working the second shift. (Tr. 144). During this shift, he examined the 2 Main East belt line and recorded “[p]ressings from the drive at crosscut 11 and spill on the return side from 48 to 49,” which was recorded as cleaned. (Tr. 146). Kyffin testified that, because the third shift was a maintenance shift, his onshift examination on September 10 would have been the last time an examiner walked that belt line before day shift on September 11. (Tr. 146-47).

On cross-examination, Kyffin testified that he was using a golf cart for the inspection and that this did not inhibit his ability to inspect the belt line. (Tr. 150-51). Kyffin testified that he did not see anything he would classify as a hazard or as a violation during his most recent inspection. (Tr. 153).

Gary Campbell, Mine Superintendent at Air Quality in September of 2008, testified that on September 11, 2008, he received a phone call stating that the 2 Main East belt had been shut down pursuant to a (d)(2) order. (Tr. 155). Campbell went underground and walked the 10 to 12 crosscuts by himself, but was unable to find anything that he thought would “deem a belt being shut down.” (Tr. 157-58).

Campbell testified that he then called Ron Madlem, then Safety Manager at Air Quality, to accompany him for further inspection of the belt line. (Tr. 160-61). Campbell testified that he did not see anything that warranted a 104(d) order. (Tr. 164). During the joint inspection with Madlem, Campbell encountered Tom Culberson, the dayshift mine examiner, doing his belt line examination. (Tr. 165). When Culberson asked him what he should write, Campbell testified that he told Culberson to “write what you see.” (Tr. 166). Madlem left for a previously scheduled meeting at MSHA’s offices and Campbell went to find Fishback to “see what we had to do to . . . get this belt line back running.” (Tr. 166).

Upon questioning Fishback and Mary Jo Bishop, the MSHA Assistant District Manager for District 8, Campbell was told to clean up four areas. (Tr. 167). After relaying this information to Terry Courtney and being assured that people were working on them, Campbell walked the belt line with Bishop and Fishback for about 15 crosscuts or so before going to check on the progression of the cleanup. (Tr. 169). Campbell testified that he then was instructed by Fishback that there were four more spots to clean up, which he again passed on to Courtney. (Tr. 172).

Campbell testified that he then asked Bishop and Fishback whether he could run the belt while rock dusting was going on. (Tr. 174). Campbell testified that his request was refused and that Bishop said, “No, you can’t. It will make it hard for the D to stick.” (Tr. 174-75). Campbell estimated that to rock dust the entire belt line and adjacent crosscuts would take approximately fifteen hours. (Tr. 176).

Before returning to the surface, Campbell checked to make sure people were cleaning the specified areas, which Campbell testified “they were just finishing up.” (Tr. 176-77). Upon returning to the surface, Fishback and Bishop issued Campbell the order, which he testified identified additional crosscut numbers that were not “brought up underground.” (Tr. 178). Campbell disputed MSHA’s claim that any potential fire would affect ten miners, testifying that the regulator at the end of the tail piece and the block curtain in the roadway would prevent most smoke from flooding the section, assuming a fire ever got to that point despite the other safety mechanisms in place. (Tr. 179-82). Campbell testified that Fishback never returned to look at the areas he had specified needed to be cleaned. (Tr. 189).

Ronald Madlem confirmed that he received a call from Campbell and accompanied Campbell on a joint inspection of the belt line. (Tr. 199). Madlem testified to encountering Culbertson when he and Campbell were walking. (Tr. 202). Madlem testified that he was surprised when he saw a copy of Order No. 6681046, because the conditions described did not reflect what he observed when he walked the belt line. (Tr. 204).

On cross-examination, Madlem testified that just by looking, a person could tell the difference between a piece of rock and a piece of coal. (Tr. 207). Madlem also testified that Fishback had a habit of issuing additional orders before the work on the first order was done; “the list seemed to expand as time went on and that’s why things took so long.” (Tr. 209).

Thomas R. Culbertson testified that he made an onshift examination of the 2 Main East belt on September 11, 2008. (Tr. 212). Culbertson testified that the belt was shut down because of the order when he began his examination. (Tr. 213). He examined the belt and found it to be “in good condition,” without any hazards. (Tr. 214). Culbertson encountered Madlem and Campbell, and then, after being told to write down “whatever you see,” continued his examination. (Tr. 214). Culbertson confirmed listing two hazards pertaining to bolting. (Tr. 216). Culbertson testified that he did not see anything that would constitute a hazard in violation of an MSHA safety standard. (Tr. 218-221).

b. Summary of Parties’ Arguments

The Secretary argues that the evidence unambiguously supports Fishback’s determination of a highly negligent unwarrantable failure regarding a condition that could cause death. They argue that (1) the coal accumulations were dangerous and potentially fatal; (2) Black Beauty’s failure to clean up the coal accumulations was highly negligent; and (3) Black Beauty’s failure to clean up the accumulations was an unwarrantable failure.

The danger presented by the coal accumulations is premised on the possibility of a death-causing fire or explosion. Additionally, “smoke inhalation could cause a fatal injury.” (Sec’y Br. 17). The Secretary’s allegation of high negligence is argued based on the “obviousness of the accumulations” and the notice given to Black Beauty of prior violations of the same safety standard. (Sec’y Br. 17). The Secretary argues that the company was unable to offer evidence that would rebut or mitigate its failures. (Sec’y Br. 17).

The Secretary argues that the extent of the condition means that the accumulations likely built up over more time than just the previous shift, as Black Beauty alleges as a defense. (Sec’y Br. 18). Finally, referring to Fishback’s separate citation of Black Beauty for inadequate examination records, the Secretary argues that Black Beauty cannot “use this very failure as its primary defense to challenge whether accumulations existed at all.” (Sec’y Br. 19). Black Beauty contested the inadequate examination records in a hearing on the merits before Judge Feldman, whose decision was pending at the time the present case was briefed. (Sec’y Br. 18).

Black Beauty argues that the unwarrantable failure and high negligence findings are inappropriate because those designations were based on several false premises. (BB Br. 12). In support of its argument, Black Beauty asserts that “Fishback’s opinion that the cited condition was extensive is not credible” and “was exaggerated and the product of an overzealous effort to establish the propriety of a 104(d) order that was disputed by Black Beauty and recognized as questionable by another MSHA official.” (BB Br. 12).

The other MSHA official to whom Black Beauty refers is Mary Jo Bishop, who, according to Campbell’s testimony, commented that allowing the belt line to be turned back on after the areas were cleaned but before rockdusting, “would make it hard for the [104(d) order] to stick.” (BB Br. 12-13). Black Beauty argues that this meant that she believed the order was suspect. (BB Br. 12).

Black Beauty argues that Fishback’s belief that the beltline had been traveled in its entirety by an examiner on the preceding midnight shift was erroneous because that shift was a maintenance shift so no onshift examination of the belt was required. (BB Br. 13). Black Beauty also contends that Inspector Fishback incorrectly assumed that the accumulations had been present for a lengthy period of time. (BB Br. 14). Black Beauty calls Fishback’s position that the conditions he observed existed for at least a week “entirely speculative, unfounded, and contradicted by the evidence,” pointing to the detection and correction of accumulations on the 2 Main East beltline on nine separate occasions during the week preceding the Order. Id. Black Beauty relies on the “substantial coal production” which occurred between the most recent examination of the whole belt line and the issuance of the Order. (BB Br. 14). Black Beauty argues that “Campbell’s account of the facts should be credited over Inspector Fishback’s as [Campbell’s] testimony was corroborated by Mr. Madlem and Mr. Culbertson,” whereas Ms. Bishop did not testify to corroborate Mr. Fishback’s account. (BB Br. 13).

c. Discussion and Analysis

I find that the preponderance of the evidence establishes the following facts. The most recent examination of the beltline occurred during the onshift examination for the afternoon shift on September 10, which occurred at about 6:30 p.m. that evening. (Tr. 146). The examiner observed what he called pressings from the drive to crosscut 11 and a spill at crosscuts 48-49. (Tr. 146; Ex. G-22). Coal had been produced on the afternoon shift until about 1:00 a.m. (Tr. 182; Ex. R-21). Coal production did not resume again until September 11 at about 7:00 a.m. (Tr. 183; Ex. G-21). When Campbell and Madlem walked the belt line shortly after Inspector Fishback had shut it down, they only observed material at crosscuts 27-28, some spillage at crosscuts 24-25, some spillage at crosscuts 15-17, and a rib roll at crosscut 27. (Tr. 200-01). None of the material they observed was in contact with the belt or any roller or structure. (Tr. 116). They testified that the beltline was white in color, with some grey areas, which indicated to them that the area was adequately rockdusted. (Tr. 158, 164, 201).

At that point, Inspector Fishback indentified four areas that he believed needed to be cleaned. (Tr. 167-68). After these areas were cleaned, Inspector Fishback walked the beltline a second time. Campbell met with the inspector and he identified four additional areas that he believed needed to be cleaned. Those areas were then cleaned by Black Beauty. When Campbell asked the inspector if the belt could be restarted, he was advised that the belt could not be restarted. When the order was reduced to writing numerous additional areas were required to be cleaned that had not been previously identified.

I find that the Secretary established a violation of section 75.400, but that the violation was not the result of Black Beauty’s unwarrantable failure to comply with the safety standard. The beltline had not been examined in its entirety by Black Beauty since about 6:30 p.m. on Saturday, September 10. Coal was produced for the remainder of the afternoon shift on September 10. Inspector Fishback erroneously believed that the beltline had been examined during the shift before his inspection. The previous shift was a maintenance shift, however, and MSHA’s safety standard requires such examinations only during shifts in which coal is produced.[1] As a consequence, the inspector’s belief that Black Beauty’s onshift examiner had observed the same conditions that he observed is erroneous. I do not credit the inspector’s opinion that the conditions he observed had existed for at least a week because this opinion is not supported by the evidence. He simply had no knowledge of the condition of the beltline during the immediately preceding days and conditions could have changed significantly. Black Beauty’s records show that accumulations found during the most recent onshift examination had been cleaned up. (Tr. 146; Ex. G-22).

I find that the Secretary did not establish that the accumulations existed for a significant length of time. The record shows that Black Beauty cleaned up accumulations that existed following the previous onshift examination. It cannot be determined how long the conditions existed, but it is doubtful that all of them were created since the previous onshift examination. The accumulations did not present a high degree of danger. The gravity of the violation was serious but it was not S&S. Inspector Fishback traveled the beltline several times and added areas that he believed needed cleaning with each trip. Whether the violation was obvious is in dispute. I find that the violation was obvious and extensive at the time of the MSHA inspection but it must be remembered that Black Beauty had not completed the onshift examination for that shift. Black Beauty has a significant history of violations of section 75.400. Such a history should put an operator on notice that greater efforts are necessary to comply with the safety standard. It is not clear how many of these previous violations involved accumulations along beltlines, but there can be no dispute that MSHA had been putting greater emphasis on eliminating accumulations along beltlines at underground coal mines since the fire at the Aracoma Alma Mine in January 2006.

I find that it was not established that the violation was the result of Black Beauty’s unwarrantable failure to comply with section 75.400. The company did not show indifference or reckless disregard toward the need to reduce and eliminate accumulations of combustible materials. Its preshift and onshift examinations conducted along its belts and at the header and drive motors may not have been sufficiently thorough to discover and remove all accumulations. I find that Black Beauty’s negligence was moderate. Because the violation was serious and extensive, a penalty of $10,000 is appropriate.

B. Docket No. LAKE 2009-305 and -304, Air Quality #1 Mine

1. Citation Nos. 6682240, 6682241, 6682242, and Order No. 6682243

On Monday, December 8, 2008, Inspector Glenn E. Fishback issued Citation Nos. 6682240 and 6682242 under section 104(a) of the Mine Act for alleged violations of section 75.400 of the Secretary’s safety standards and Citation No. 6682241 for an alleged violation of section 75.202(a) of the standards. Fishback also issued Order No. 6682243 under section 104(d)(2) of the Act for an alleged violation of 75.362(b) of the safety standards. The citations and order were issued between 1:00 a.m. and 6:00 a.m. on Monday morning.

Citation No. 6682240 alleges that:

Obvious and extensive accumulations of combustible materials in the form of loose coal, coal fines, and float coal dust (Black in color and dry) were allowed to accumulate on the energized Wheatland slope conveyor belt tail located in entry #5 crosscut #1. The accumulations measured approximately 2 feet in width by 2 feet in depth and 8 feet in length and the belt was observed running in these accumulations. Directly above this area a second area measuring approximately 4 feet in length by 8 inches wide by 5 inches in depth was observed with the belt running in it. The main structure frame work had float coal dust measuring approximately 2 inches to 3 inches in depth for an approximant distance of 38 feet on all of the frame work.

(Ex. G-23). The inspector found that an injury was highly likely to occur and result in lost workdays or restricted duty, that the violation was S&S, that ten people would be affected, and that the violation was the result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $63,000.

Citation No. 6682241 alleges that:

A loose coal rib gapped away from the solid pillar 4 to 5 inches measuring approximately 36 feet long, 4 feet in height, and 4 inches to 16 inches in thickness was observed along the 2 Main West belt between crosscut number 63 and crosscut number 64. This rib was located on the travelway side of the belt. This area is routinely traveled by mine examiners 3 shifts per day 6 days a week.

(Ex. G-24). The inspector found that an injury or illness was reasonably likely to occur and could reasonably be expected to be permanently disabling, that the violation was S&S, that one person would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.202(a) of the Secretary’s regulations requires that “[t]he roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). The Secretary proposed a civil penalty in the amount of $12,248.

Citation No. 6682242 alleges that:

Combustible materials in the form of loose coal and coal float dust were allowed to accumulate along and under the energized 1st Main North Conveyor belt from crosscut number 1 to crosscut number 3. The accumulations measured approximately 3 inches to 2 1/2 feet in depth by 6 1/2 feet in width, and 160 feet in length. This area is traveled 3 shifts per day 6 days per week.

(Ex. G-30). The inspector found that an injury or illness was reasonably likely to occur and could reasonably be expected to result in lost workdays or restricted duty, that the violation was S&S, that ten people would be affected, and that the violation was the result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $34,652.

Order No. 6682243 (LAKE 2009-304) alleges that:

An inadequate onshift examination was conducted for the 8:30 PM to 11:30 PM examination on 12/07/2008 for the second shift production. Citation numbers 6682240, 6682241, and 6682242 were issued under this 104(d)(2) order. Obvious and extensive accumulations of combustible material in the form of loose coal, coal fines and float coal dust (Dry and black in color) and the conveyor belt running in this material were observed by MSHA on this date. The examination record for the 8:30 PM to 11:30 PM examination of these affected areas in the citation listed showed no hazards listed. This violation is an unwarrantable failure to comply with a mandatory standard. Management will have a meeting with all mine examiners to terminate this 104(d)(2) order.

(Ex. G-34). The inspector found that an injury or illness was reasonably likely to occur and could reasonably be expected to be fatal, that the violation was S&S, that ten people would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.362(b) of the Secretary’s regulations requires that “[d]uring each shift that coal is produced, a certified person shall examine for hazardous conditions along each belt conveyor haulageway where a belt conveyor is operated. This examination may be conducted at the same time as the preshift examination of belt conveyors and belt conveyor haulageways, if the examination is conducted within 3 hours before the oncoming shift.” 30 C.F.R. § 75.362(b). The Secretary has proposed a civil penalty in the amount of $53,858.

a. Background Summary of Testimony

On December 8, 2008, Inspector Fishback was conducting an inspection of Air Quality #1 Mine. (Tr. 223). As a result of this inspection, Fishback issued Citation No. 6682240, a 104(a) citation for an accumulation of combustible materials in the form of loose coal fines on the Wheatland slope tailpiece. (Tr. 223). Fishback testified that the Wheatland slope conveyor belt carried the majority of coal out of the mine, that it was elevated about 2 or 2 1/2 feet off of the mine floor, and that it was the last belt coal traveled on when coming out of the mine. (Tr. 224). Fishback described the accumulations as being approximately 2 feet in width by 2 feet in depth and 8 feet in length, and that the belt was observed running in these accumulations. (Tr. 225). In other words, the belt was “energized.” (Tr. 225).

Fishback observed two ignition sources where the conveyor belt was rubbing the tail piece and on the structure of the framework. (Tr. 227). Fishback testified that the accumulations were black, meaning that no rock dust was present and making ignition more likely to occur. (Tr. 227). Fishback then went on to explain his modification of the initial “highly likely” designation to “reasonably likely” and the change from “lost work days” to “fatal” based on the accumulations and the ignition sources. (Tr. 228). He explained his “high negligence” designation on the basis of the amount of accumulations and the estimated number of shifts the accumulations took to develop. (Tr. 229). Fishback testified that his S&S classification of the alleged violation was because, “if there was an injury, it would be of a reasonably serious nature.” (Tr. 230).

Fishback testified that other potential ignition sources, such as the area’s electrical equipment and the tail roller turning in the accumulations, could also start a fire. (Tr. 231-32). Fishback testified that the accumulations should have been obvious to Black Beauty’s examiners. (Tr. 233).

Fishback issued Citation No. 6682241, a 104(a) order when he discovered that a loose rib had gapped from a solid pillar 4 to 5 inches, measuring 36 feet long, 4 feet in height, and 3 to 16 inches in thickness. (Tr. 233-34). Fishback testified that Section 75.202(a) requires the mine to substantially support, if not correct, the roof and ribs where men work or travel. (Tr. 234).

Fishback testified that he believed permanently disabling injuries were reasonably likely, given that the alleged violation was on the travelway side of the belt where the belt examiner walks every shift. (Tr. 234). Fishback testified that part of the reason he determined it was an S&S violation was because, when the condition was abated, the loose rib was pulled down by a pry bar with very little effort. (Tr. 236-37).

Fishback issued Citation No. 6682242, a 104(a) citation for accumulations of combustible material along the energized First Main North conveyor belt from crosscut 1 to crosscut 3. (Tr. 237). Fishback testified that he designated the violation as S&S due to the mine’s history of violations and the fact that they were already on notice for violations of 75.400. (Tr. 238). Fishback testified to the presence of additional potential ignition sources in the area, including the electrical cables going to the drive motors and the drive motors themselves. (Tr. 238). Fishback testified that the drive area has a fire suppression system, but that it only covered about 60 feet of the area, leaving about 100 feet of the 160-foot area without any fire protection. (Tr. 240).

Fishback issued Order No. 6682243, a 104(d)(2) order for an alleged violation of 75.362(b). Fishback testified that the purpose of the onshift exam is to provide information to the mine operator and to MSHA on the conditions of the coal mine in its entirety. (Tr. 252). Inspector Fishback testified that the area at issue in Citation No. 6682240 was required to be examined onshift because it was a running conveyor belt. (Tr. 252-53). Fishback testified that there would be three shifts in a 24-hour period at the mine and that each shift is required to have an onshift examination. (Tr. 253). Fishback next testified that the area cited in Citation No. 6682241 was also required to be examined onshift three times a day because the belt line there was also running. (Tr. 254). The area involved in Citation No. 6682242 was also required to be examined onshift three times a day. (Tr. 254).

Fishback testified that, although there was an exam conducted at the right time, there were no violations or hazards listed in the examination book, despite the accumulations that had developed as described in Citation No. 6682240. (Tr. 255-56). The examination book, under “Actions Taken or Remarks” said “needs cleaned,” signifying that the examiner had found accumulations that needed to be cleaned. (Tr. 256-57). Fishback testified that this entry was not sufficient to meet the requirements of an onshift exam because the comment should have been listed under “Hazardous Condition,” in the exam book. Accumulations are hazards that need to be listed as such and taken care of immediately. (Tr. 257-58). Similarly, there was no recording of a loose rib in the examination book, in violation of the requirement to conduct a proper onshift examination. (Tr. 259). Finally, Fishback testified in regard to Citation No. 6682242 that the onshift book did not describe the extensiveness of the violation. (Tr. 262).

Fishback determined that the violation of section 75.362(b) was the result of Black Beauty’s high negligence because of the history of past accumulation violations at the mine, and an unwarrantable failure of management to comply because management signs off on the onshift examination reports, and is responsible for ensuring the accuracy of the reports. (Tr. 265-67).

On cross-examination, Fishback testified that only accumulation violations that constitute hazards need to be put in the onshift exam record. (Tr. 270). Fishback testified that he did not know the ignition temperature of coal at the mine. (Tr. 276-77). Fishback testified that, on a given onshift examination, the belt examiner only travels one direction, and that sometimes a rib may be gapped only on one side. (Tr. 283).

On redirect examination, Fishback testified that, with continued mining, the belt could have started rubbing the accumulations at any point. (Tr. 294). Mine examiners should be over-inclusive rather than under-inclusive in terms of what violations and hazards they record in their onshift exam books in order to protect the health and safety of miners. (Tr. 296). Fishback testified that a fire suppression system would not have stopped a potential ignition with respect to Citation No. 6682240 and that there was “a substantial amount” of the area addressed in Citation No. 6682241 that would not have been under the fire suppression system. (Tr. 297-99). Inspector Fishback testified that there is a separate fire suppression system at each belt head. (Tr. 303). He also testified that there was no methane gas detected during his December 8, 2008, inspection. (Tr. 304).

Randall L. Hammond is the supervisor of safety compliance at the mine. (Tr. 307). The job requires Hammond to maintain and review safety and production records. (Tr. 307). Hammond has about 28 years of experience in the mining industry. (Tr. 308). He was previously the Director of the Indiana Bureau of Mines and holds a Bachelor of Science degree in Mining Engineering Technology. (Tr. 308). Hammond testified that, during the 12-hour weekend shifts, it is typical to use only the South side, not the Wheatland side, “because there were less belts that had to be run, and that would save on power.” (Tr. 312). Hammond testified that the citations and orders at issue all refer to areas on the Wheatland side, which would have been idle during the weekend shifts. (Tr. 313). According to computerized records, 1,542 tons of coal went out the South portal, and zero tons went out the Wheatland side up through midnight on December 7, 2008. (Tr. 315). No coal went out the Wheatland side. (Tr. 316).

Based on the clock-in times of Brian L. Nord and Eugene Merrimon III, Hammond testified that these two miners conducted a preshift examination rather than onshift examinations on December 7, 2008. (Tr. 320). Hammond also testified that a belt in contact with accumulated material is less obvious when the belt is not running, such as during a preshift examination conducted during a maintenance shift. (Tr. 321).

On cross-examination, Hammond testified that he was not at the mine on December 7 or 8, 2008. (Tr. 322). Hammond testified that, if an examiner sees a spill of sufficient quantity on the beltline, he is required to mark it down in the examination book. (Tr. 325). In reviewing the belt and roadway exam books, Hammond confirmed that there was no evidence that the Wheatland Slope was cleaned, although it was marked as “needs cleaned.” (Tr. 326-27).

On redirect examination, Hammond testified that the “needs cleaned” entry in the exam book on December 7 was a carryover from the December 6 examination, simply a copy of what was previously written. (Tr. 331). On recross examination, Hammond testified that there was no record of the Wheatland Slope being cleaned for at least three shifts. (Tr. 333).

Terrance Kiefer, an examiner at the mine, testified that, at the beginning of an onshift examination, he and his examination partner would examine different belts. (Tr. 336-37). A full onshift examination would take about three and a half to four hours. (Tr. 337). After the onshift exam was complete, the examiners would preshift other areas of the mine in advance of an oncoming shift. (Tr. 337). On December 6, 2008, Gary Ball was Kiefer’s fellow examiner. (Tr. 338). The records for December 6 indicate an onshift examination was conducted but no preshift examination. (Tr. 337). Kiefer inspected parts of the 1 Main North and 2 Main West Slopes and Ball inspected the Wheatland Slope and the rest of the Main West Slope. (Tr. 339). On cross-examination, Kiefer testified that, if he or another examiner discovered a hazard that required some attention, they would have to correct the hazard and enter it as a hazard in the preshift report. (Tr. 341-42).

Chad Barras, Midwest Safety Director for Peabody Energy, the parent company of Black Beauty Coal, was next to testify. (Tr. 342-43). Prior to working for Peabody, Barras worked for MSHA as a ventilation engineer, whose job included reviewing mine plans and inspecting mines for proper ventilation systems. (Tr. 343). Barras testified that in December of 2008, the belt lines at the mine were equipped with fire detection systems, including carbon monoxide (“CO”) sensors, spaced 1,000 feet apart. (Tr. 345). These CO sensors set off surface alarms at 10 parts per million (“ppm”) pursuant to what was then a new regulation. (Tr. 345). Barras testified that 10 ppm was an extremely low concentration of CO relative to what would cause a fire or an explosion. (Tr. 346).

Barras also testified that he knew of no instance where float coal dust led to an explosion without the presence of methane. (Tr. 347-48). In addition to the fire detection system, there was also a fire suppression system at the Mine. (Tr. 348). Miners are also required to carry personal CO detectors that alarm at 50 ppm. (Tr. 349). There are caches of self-contained self rescuers (“SCSR’s”) located along the belts at the Mine. (Tr. 349). A SCSR is a self-contained apparatus that, upon being breathed into, scrubs out the CO from a miner’s exhaled breath, maintains the oxygen, and adds a supplemental amount of oxygen to keep the miner breathing the normal 20 to 21 percent of oxygen. (Tr. 349-50).

Barras testified that miners are trained to put on the SCSRs when their personal CO detectors reach 50 ppm. (Tr. 350). Barras testified that the ignition temperature of coal at the mine is approximately 880 degrees Fahrenheit, and that the “reject” coal, about 60 percent of the coal mined, would have an even higher ignition temperature because it is about 65 percent rock. (Tr. 351-52). Barras was unsurprised by the findings of an MSHA study that said from 1980-2005, there were 63 reportable mine fires along belt lines, none of which resulted in fatalities or reportable lost-time injuries. (Tr. 355; Ex. R-35 p. 6). Barras reported that the CO systems are extremely accurate and sensitive. (Tr. 355). The 2006 Aracoma Alma Mine fire, which resulted in two fatalities was, in Barras’s opinion, attributable to the anomalous removal of ventilation controls and the ignoring of alarms. (Tr. 356-57).

Barras testified that additional safety measures were put into place subsequent to the Aracoma disaster as mandated by the 2006 Miner Act, including more SCSR’s, rescue chambers, and lifelines in both primary and secondary escapeways. (Tr. 357-58). Barras disagreed with the assertion in Citation Nos. 6682240, 6682242, and Order No. 6682243, that ten persons would be affected because “we don’t have ten people over that way” during normal mining operations. (Tr. 362-63). On cross-examination, Barras confirmed that the mine was on a five-day spot inspection due to its high methane levels. (Tr. 366). On redirect examination, Barras explained that preventive safety actions are taken when methane levels reach a low threshold, long before they reach dangerous levels. (Tr. 373-74).

b. Summary of the Parties’ Arguments

Citation No. 6682240

The Secretary argues that the violation was S&S. (Sec’y Br. 20). The Secretary points to Fishback’s testimony of two ignition sources: the belt rubbing the tail piece and the structure of the framework at two different locations. (Sec’y Br. 20). The Secretary also argues that the potential for a fire was exacerbated by the apparent lack of rock dust and the practice of running the belt lines during the maintenance shift. (Sec’y Br. 20). The Secretary also points to Fishback’s analysis that the fire suppression system would be inadequate to stop a fire because the location of the potential fire would be a “substantial distance from the main fire suppression system.” (Sec’y Br. 20).

The Secretary compares the conditions at the mine to those that caused the Aracoma Mine fire in June of 2006. (Sec’y Br. 21). The Secretary argues that given the extensive accumulations, the presence of ignition sources, the amount of time the condition was allowed to exist, and the significant quantities of methane at the Mine, the Court should find that the violation was S&S. (Sec’y Br. 21).

The Secretary also argues that the violation showed high negligence by Black Beauty because it “knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” (Sec’y Br. 22). This assertion is based on Fishback’s testimony that it would have taken several shifts for the amount of accumulations present to accumulate. (Sec’y Br. 22).

Black Beauty stipulates to the finding of a violation, but contests the finding that the violation was S&S. (BB Br. 18). Black Beauty argues that, assuming normal mining operations, a fire would be prevented before its inception through a combination the CO monitoring systems, the fire brigade, and the presence of a temperature-sensitive fire suppression system. (BB Br. 18). Black Beauty analogizes the facts to those in Mach Mining LLC 33 FMSHRC 763 (March 2011) (ALJ), where “this Administrative Law Judge rejected the S&S designation for an accumulations violation on a slope belt when similar systems were present.” (BB Br. 18).

Black Beauty argues against a finding of high negligence, asserting that, contrary to Fishback’s conclusion, the Wheatland Slope was not running during the preshift examination. (BB Br. 19).[2] Black Beauty also argues that the accumulation was small when compared with the 48-inch width of the belt, and therefore not extensive. (BB Br. 19).

Citation No. 6682241

The Secretary argues that the violation was S&S and the result of high negligence on the part of Black Beauty. (Sec’y Br. 23). The Secretary bases this argument on the potential of a loose rib to cause permanently disabling injuries, the likelihood of injury, and the number of people in danger of injury. (Sec’y Br. 23).

The Secretary’s high negligence designation was the result of Black Beauty being on notice due to its previous loose rib and roof issues for which it had received citations. (Sec’y Br. 23). The Secretary further argues that the rib gap widened over time and could have fallen at any time, given how loose it was. (Sec’y Br. 23).

Black Beauty stipulates to the fact of a violation. (Sec’y Br. 22). However, Black Beauty contests the findings of S&S and high negligence. (BB Br. 20). Black Beauty argues against the S&S designation on the basis that there was not a reasonable likelihood that the hazard would result in an injury, given the low volume of people passing through the area. (BB Br. 20). In support of its argument that a high negligence finding was inappropriate, Black Beauty asserts that MSHA did not meet its burden of establishing that it was “more likely than not” that the observed condition existed at the time of the examination. (BB Br. 21). Black Beauty also argues that, because Fishback was not present at the time of the examination, his belief that the condition existed at that time was speculative and thus insufficient to support an unwarrantable failure finding. (BB Br. 21).

Citation No. 6682242

The Secretary argues that the S&S designation was justified by the mine’s history and the fact that the mine had already been put on notice for its extensive history of violations of section 75.400. (Sec’y Br. 24). The Secretary also argues that the mine has a history of belts becoming misaligned, which would become a potential ignition source. The Secretary cites Buck Creek Coal, 52 F.3d 133, 136 (7^th Cir. 1995) and Amax Coal Company, 19 FMSHRC 846, 850 (May 1997) in refutation of Black Beauty’s argument that the fire suppression system at the mine would make a fire less likely. (Sec’y Br. 25). The Secretary points to over 200 accumulation violations cited at the mine in the fifteen months before this inspection in support of its high negligence designation. (Sec’y Br. 25).

Black Beauty stipulated to the violation but did not agree to stipulate as to the gravity or negligence designations. (Sec’y Br. 24). Black Beauty argues the S&S designation was inappropriate because Fishback’s nonspecific reference to past conditions “is entitled to no weight because he did not . . . explain why such instances would be relevant to the condition he observed” the day of the inspection. (BB Br. 22). Additionally, Black Beauty argues that, because the Secretary did not present evidence that an actual ignition source was present, the S&S finding should be deleted. (BB Br. 23).

Black Beauty argues that the high negligence determination should also be deleted. (BB Br. 24). Black Beauty argues that the condition did not pose an immediate hazard at the time it was found and, in the course of normal operations, it would likely have been corrected during the midnight shift. (BB Br. 24). Black Beauty also argues that the Secretary’s “passing and non-specific reference to past history of section 75.400 violations” cannot be used to support a high negligence finding. Id.

Order No. 6682243

The Secretary argues that the violation was S&S, demonstrated high negligence and a lack of reasonable care, and was an unwarrantable failure. (Sec’y Br. 28-29). The Secretary argues that section 75.362(b) required the mine examiner to list the conditions set forth in Citation Nos. 6682240, 6682241, 6682242 as hazardous conditions in the onshift examination book. The operator’s failure to discover these hazards and correct and record them created a serious S&S violation. The Secretary also relied on the mine’s history of improper belt maintenance and cleaning, the amount of the accumulations, and the amount of time it must have taken for the accumulations and the loose rib to develop. (Sec’y Br. 28). The Secretary also noted Fishback’s statement concerning a lack of managerial follow-up when designating the citation S&S. (Sec’y Br. 28).

The Secretary argues that Black Beauty was highly negligent because of its awareness of the continual problem of loose ribs and roof issues, as well as management’s prior meetings about past violations with MSHA personnel and company management personnel. (Sec’y Br. 29). The same argument is made with respect to the accumulation violations. The Secretary argues that Black Beauty displayed a lack of reasonable care and showed “unwarrantable failure” because of the obviousness of the conditions, the mine’s prior notice of numerous accumulation citations, the potentially fatal consequences of the underlying accumulations, and the abject failure of the mine to identify the conditions in the examination reports. (Sec’y Br. 29).

In response, Black Beauty argues that the order should be vacated because no onshift examination of the Wheatland belt line occurred between 8:30 and 11:30 p.m. (BB Br. 17). Black Beauty argues that the onshift examination cannot be inadequate where no onshift examination even occurred and was not required. (BB Br. 18).

c. Discussion and Analysis

Citation No. 6682240

I find that the Secretary established that the violation was S&S. I reach this conclusion for several reasons. The accumulations were black in color and extensive around the belt tail. The combustible material was dry and consisted of loose coal, coal fines, and float coal dust. A similar condition existed further up the beltline and the belt was running in these accumulations. The structural framework was covered with float coal dust that was several inches deep. Although Black Beauty had a CO monitoring system in place, such a system would not always detect a rapidly building fire quickly enough to prevent a fire from spreading and injuring miners. In addition, the evidence establishes that the entire area was not adequately protected by the fire suppression system.[3]

I find that it was reasonably likely that the hazard contributed to by the violation would have resulted in an injury of a reasonably serious nature. In reaching this decision, I have relied on the Commission’s decision in AMAX Coal Co., 19 FMSHRC 846, 850 (May 1997). In that case the Commission was not persuaded by the operator’s argument that the presence of fire detection systems, self-contained rescuers, and firefighting equipment minimized the risk of injury to miners from a fire. See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7^th Cir. 1995). Only a few miners would have been affected by this violation.

I find that the negligence of Black beauty was moderate. Inspector Fishback erroneously believed that the Wheatland Slope belt was running at the time of the applicable preshift examination that occurred between 8:30 and 11:30 p.m. in advance of the oncoming maintenance shift. The evidence demonstrates that the belt was idle at that time.[4] In addition, if there had been contact between accumulations and the belt, it would not have been obvious because the belt was not running. A penalty of $30,000 is appropriate for this violation.

Citation No. 6682241

I find that that it was not established that the violation of section 74.202(a) was S&S or the result of Black Beauty’s high negligence. The facts show that it was not reasonably likely that the violation would have contributed to an accident in which there was an injury, assuming continued mining operations. A measure of danger to safety was contributed to by the failure to properly support or take down the loose rib. An injury to a miner struck by the rib falling would most likely be reasonably serious. Therefore, the primary issue in the S&S analysis is whether the violation was reasonably likely to result in an injury-causing event. The likelihood of an injury-producing event must be evaluated by considering the likelihood of two specific events occurring simultaneously, material falling from the loose rib and the presence of a miner directly beside it. See Freedom Energy Mining Co., 32 FMSHRC 1809, 1821 (Dec. 2010) (ALJ). Although the loose rib was sizable, it was in an area that was not frequently traveled. Although it was possible that the loose rib would fall at some point, it is also possible that an examiner would have pulled it down before it deteriorated much further. In addition, the likelihood that it would fall at the exact moment when an examiner was in the area was remote at best.

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). Inspector Fishback certainly qualifies as an experienced MSHA inspector. However, while it is possible that a miner could have been injured as a result of the violation, I find that the Secretary has failed to prove that it was reasonably likely that an injury-causing event would occur. The violation was serious.

I also find that the company’s negligence was moderate. The inspector presumed that the same conditions existed at the time of the preshift examination. In fact, he had no knowledge whether the condition existed at that time. The Secretary did not establish that it was more likely than not that the condition observed by Inspector Fishback existed at the time of the Black Beauty’s prior examination. See Enlow Fork Mining Co., 19 FMSHRC 5, 13 n. 10 (Jan 1997). Indeed, he testified that a rib can “gap quickly.” (Tr. 283). The Secretary also relies on the fact that the mine had been issued numerous citations for violations of section 75.202 for “roof and rib issues.” (Tr. 236). The condition was not extensive and did not pose a high degree of danger. Although the Secretary’s arguments have some merit, I find that, taken as a whole, Black Beauty’s negligence was moderate. A penalty of $11,000 is appropriate.

Citation No. 6682242

I find that the Secretary did not establish that the violation was S&S. Clearly, there was a violation of section 75.400 which created a measure of danger to safety. In addition, if a fire were to start one or more miners could suffer smoke inhalation injuries. I find, however, that the Secretary did not establish that there existed a reasonable likelihood that the hazard contributed to by the violation would have resulted in an event in which there was an injury. The accumulations were not in contact with the belt and there were no ignition sources present. Although it was certainly possible that a belt could become misaligned and rub against the support structure, there was no showing that such an event was reasonably likely to occur before the accumulations were cleaned up. I credit Black Beauty’s evidence that the belt had not been running over the weekend. There was also no showing that the electrical equipment in the area was a likely ignition source.

The evidence establishes that the accumulations extended for a distance of 160 feet but the fire suppression system did not extend that entire distance. Although I have considered this fact, it is not determinative of the S&S issue. The likelihood of a fire in the unprotected area was not significant, as discussed above. The violation was serious.

To support her high negligence allegation, the Secretary relies primarily on previous violations of section 75.400. For example, Inspector Fishback testified about a huge accumulation on September 11, 2008, in which combustible materials were present for a distance of 3,500 feet along a belt entry where the belt was running. In addition, the Belt & Roadway Inspection Report for the shift that ended at 3:30 p.m. the day before the citation was issued states that the “stationary roller on take up needs cleaned.” (Tr. 241; Ex. G-33, p. 3). The Secretary relies on this report to prove management’s knowledge of the condition.

I find that this violation was the result of Black Beauty’s moderate negligence. The evidence shows that the 1 Main North belt was idle during the 8:30 to 11:30 p.m. preshift examination. The following shift, when the citation was issued, was a maintenance shift so an onshift examination had not been conducted. The above-referenced notation in the Belt & Roadway Inspection Report does not support a finding of high negligence in this situation because the accumulation mentioned in that report could well have been cleaned up before production resumed. The condition listed did not present a significant hazard at that time. I recognize that this mine received a high number of citations alleging violations of section 75.400 along belt lines. After the Aracoma fire in 2006, MSHA began to more rigorously enforce section 75.400 along belt entries in underground coal mines and most underground coal mines were issued many citations as a result. Basing a high negligence finding on such a history is not warranted in this instance. I find that a penalty of 15,000 is appropriate for this violation.

Order No. 6682243

Order No. 6682243 is vacated. All of the beltlines cited by Inspector Fishback were on the Wheatland side of the mine. These belts were the Wheatland Slope Belt, No. 2 Main West Belt, and the 1 Main North belt. The order alleges that Black Beauty’s onshift examination of these belts was inadequate. The evidence shows that on Sunday, December 7 a small production crew was using only the South Side belts, with the result that the Wheatland belts were idle during this time and no onshift examinations were made along these belts. Although preshift examinations were made in advance of the maintenance shift that started at 11:00 p.m. on December 7, such exams only cover the drives, tails, and heads of such belts.

Section 75.362(b) requires onshift examinations during production shifts along belts that are being operated. The belts in question were idle because a partial production crew was using the South Side belts. I credit the evidence presented by Black Beauty that belts that are not being used are idled to save on electricity costs. As a consequence, no onshift examination occurred on December 7. Inspector Fishback erroneously believed that the mine was in full production the afternoon of Sunday, December 7 and that an onshift examination of the Wheatland belts occurred during the shift. The examination that occurred during this period was a preshift examination for the oncoming midnight maintenance shift and not an onshift examination. Government Exhibit 27, which the inspector used to support Order No. 6682243, is actually a preshift examination report rather than an onshift report. (Tr. 319-21). As stated above, the inspector started his inspection shortly after the start of the midnight maintenance shift. Because I find that no onshift examination occurred on December 7 in the cited areas and that such an examination was not required by section 75.362(b), the order is VACATED.

2. Citation No. 6682067

On November 29, 2008 Inspector Danny L. Franklin issued Citation No. 6682067 under section 104(a) of the Mine Act for an alleged violation of 75.202(b) of the Secretary’s safety standards. The citation alleges:

By evidence of equipment tire tracks, person or persons have traveled through an area of unsupported mine roof measuring approximately 10 by 11 feet. The area was very obviously dangered off prior to the tracks being made in the rock dust and on the rock, which has fallen from the roof, by evidence of the rock dust on the danger flagging. This condition existed between number 4 and 5 entries of the 2 Main East entries, two crosscuts inby spad number 35574, crosscut number 65. Training must be conducted and safety meetings on the hazards of unsupported mine roof. Documentation must be presented in order for this citation to be terminated.

(Ex. G-42). The inspector found that a fatal injury was reasonably likely to occur, that the violation was S&S, that one person would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.202(b) provides, in part, that “[n]o person shall work or travel under unsupported roof. . . . The Secretary has proposed a civil penalty in the amount of $13,268.

a. Background Summary of Testimony

On November 29, 2009, Inspector Franklin was conducting an inspection of Air Quality #1 Mine accompanied by Gary Campbell. (Tr. 424). Franklin has worked for MSHA for four years. (Tr. 376). Before that, he worked in underground mines starting in 1973. (Tr. 376). Franklin testified that rock had fallen from the roof onto the floor, that red danger ribbons were hanging off the affected area, and that the two middlemost of the four grouted roof bolts were damaged. (Tr. 425). Franklin testified that he saw fresh tire tracks in the area that looked like they belonged to the vehicle that carries the mine examiners. (Tr. 426). Franklin based his designations of S&S and fatal on his belief that rock had already fallen and this condition demonstrated a lack of adequate support that might result in a second roof fall that could result in crushing injuries. (Tr. 427). Franklin testified that the violation was reasonably likely because the condition was a violation of a mandatory standard and there were no other markers, other than the red flags, to indicate the danger to miners. (Tr. 429). Franklin expressed concern about the adequacy of the mine’s safety training. (Tr. 430).

Gary Campbell, mine superintendant, testified that the area was not active, but rather was a return area that was infrequently traveled. (Tr. 439-40). Campbell testified that not going under an unsupported roof was a “golden rule” at the mine, and to violate it would be punishable by termination from employment. (Tr. 444). Campbell testified that he thought a mine examiner had driven through the area, seen the rock on the ground, and was concerned about avoiding having the “moon buggy” get stuck and missed the hanging flags when looking down at the rock. (Tr. 444-45). Mr. Campbell also testified that it was common for mine examiners to use discarded ribbon to flag danger areas and that fact may offer an explanation for why the ribbon was covered with rock dust. (Tr. 445-46).

b. Summary of the Parties’ Arguments

The Secretary argues that the citation should be affirmed as written. (Sec’y Br. 33-34). The Secretary argues that the tracks of a mine examiner’s vehicle show that an examiner drove beneath the unsupported roof. (Sec’y Br. 34). The Secretary argues that such “conscious disregard for an obvious safety violation” is evidence of Black Beauty’s high negligence. (Sec’y Br. 34). Finally, the Secretary argues that, given that the roof had already fallen, it was reasonably likely to fall again and cause an injury. (Sec’y Br. 34).

Black Beauty argues that the S&S finding is inappropriate and should be deleted because there was a low level of exposure to the hazard given the speed with which an individual examiner would be traveling through the area. (BB Br. 29). Black Beauty argues that a confluence of an actual roof fall and a person being at the location at the time of the fall was not reasonably likely to occur. (BB Br. 29). Finally, Black Beauty argues that the high negligence finding is excessive and should be reduced because, even assuming an individual traveled through the area with the flagging present, this would have been an “anomalous isolated incident, not reflective of defective training or indifference on the part of management.” (BB Br. 30).

c. Discussion and Analysis

There are many similarities between facts presented in this citation and the facts in the loose rib citation discussed above (No. 6682241). For similar reasons, I find that the present violation is not S&S. It was highly unlikely that this violation would contribute to a situation in which there was an injury. The loose roof was in a remote, infrequently traveled area of the mine. The violation was serious.

I find that the violation was the result of Black Beauty’s high negligence, however. The violation was obvious and at least one examiner had driven right by it. The condition was marked with danger ribbons, but this warning had been ignored. The examiner, who was an agent of the operator, was indifferent to the danger posed by the condition. A penalty of $12,000 is appropriate for this violation.

3. Citation No. 6682048

On November 17, 2008 Inspector Franklin issued Citation No. 6682048 under section 104(a) of the Mine Act for an alleged violation of 75.370(a)(1) of the Secretary’s safety standards. The citation alleges:

The company’s Approved Ventilation Plan was not being followed on the 4 Main North travelway for 4,000 feet. This road is the alternate escapeway and is traveled regularly by miners working on 3 different working sections. The travelway is dry and has visible dust suspended in the air when mantrips, personal vehicles and other mobile equipment travel this roadway. The approved Ventilation Plan requires that haulage roads be watered or a wetting agent applied to control respirable dust.

(Ex. G-38). The inspector found that an injury was reasonably likely to occur and result in permanent disability, that the violation was S&S, that ten people would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.370(a)(1) provides, in part, that the mine “operator shall develop and follow a ventilation plan approved by the [MSHA] district manager.” The Secretary has proposed a civil penalty in the amount of $37,416.

a. Background Summary of Testimony

On November 17, 2008, Inspector Franklin was conducting a spot inspection of Air Quality #1 Mine. (Tr. 378). Franklin was accompanied by Todd Armstrong, an outby utility employee with the mine, and Franklin informed then-superintendent Gary Campbell of his reason for being at the mine. (Tr. 378). Franklin testified that the 4 Main North travelway, the area for which he issued this citation, was an active working section of the mine. (Tr. 379). Inspector Franklin explained that the Mine’s ventilation control plan calls for the application of water, calcium chloride, or other chemicals to outby travelways to abate respirable dust. (Tr. 380).

Franklin testified that the violation was apparent by the thick dust in the air. (Tr. 381). Franklin estimated that the condition had existed for about eight hours. (Tr. 382). Franklin explained that the danger presented by the suspended dust was the development of black lung. (Tr. 383). Inspector Franklin justified his S&S determination because it was a violation of the mandatory standard, an illness was reasonably likely to occur, and such illness was likely to be of a serious nature. (Tr. 382). Franklin classified the citation as high negligence because he felt it was obvious and extensive. (Tr. 384).

On cross-examination, Franklin testified that, although there was no specific benchmark measurement for a dangerous amount of dust, it was obvious that abatement procedures were necessary in this instance. (Tr. 386). Franklin testified that he did not know whether the dust he observed was coal dust, rock dust or road dust. (Tr. 388).

Todd Armstrong had eight years total coal mining experience. (Tr. 395). Armstrong testified that he traveled the 4 Main North travelway in a fourteen-man mantrip with Franklin. (Tr. 395-96). Armstrong testified that when he was asked by Franklin to stop the mantrip several times, he did not observe any visible dust. (Tr. 397). Armstrong testified that Franklin picked up dust or dirt to test it for dryness during two of these stops. (Tr. 399-400). Armstrong testified that, upon Franklin expressing his opinion that the dust was too dry and would need to be watered, Armstrong contacted Eric Carter, the assistant mine manager. (Tr. 402-3). Armstrong testified that Carter said he would take care of it. (Tr. 403). Armstrong testified that travelways are usually watered once a day and must be neither too wet nor too dry. (Tr. 404). Armstrong disagreed with the inspector that the travelway was too dry. (Tr. 404-5).

Eric Carter testified that, as part of his job, he coordinates outby work, including watering roadways. (Tr. 415). Carter confirmed receiving the call from Armstrong saying that Franklin wanted the travelway watered, but never indicated whether there was going to be a citation. (Tr. 412-13). Carter testified that preshift examiners would note when a road needed to be watered. (Tr. 416). Upon reviewing the preshift examination for that day, Carter testified that it gave no indication that the 4 Main North needed watering. (Tr. 417).

b. Summary of the Parties’ Arguments

The Secretary argues that the citation is “straightforward—the approved ventilation plan requires that the mine apply water to control ‘dust’ and the mine failed to do so.” (Sec’y Br. 31; Ex. G-40 p. 7). The Secretary argues that Franklin’s observations concerning the amount of visible dust are virtually undisputed because Black Beauty failed to offer credible testimony to the contrary, and Black Beauty relies solely on unsubstantiated oral denials of the condition by its miners. (Sec’y Br. 31).

The Secretary argues that the finding of high negligence should be upheld because management knew or should have known about the dry and dusty condition of the travelway given that multiple employees, including three foremen, passed through the area not long before Franklin. (Sec’y Br. 31). Finally, the Secretary argues that the S&S designation should be upheld because any amount of coal dust may be damaging to a miner’s lungs to some degree and inspectors must err on the side of caution. (Sec’y Br. 31-32).

Black Beauty first argues that the citation should be vacated because no violation occurred. (BB Br. 26). In support of this argument, Black Beauty points out that the ventilation plan does not contain a specific requirement relating to dust along travelways and the plan does not provide any benchmark amount of dust that must be controlled or an increment of time for when water needs to be applied. (BB Br. 26). Black Beauty argues that it complied with the requirement by regularly watering the travelway and that the travelway was not dusty at the time of inspection. (BB Br. 26-27).

Black Beauty argues that, if a violation is found, the S&S designation is inappropriate. (BB Br. 27). Black Beauty argues that Franklin offers no evidence to substantiate his opinion that the amount of dust he found was damaging. (BB Br. 27). Black Beauty argues that even if there were excessive dust, the short period of exposure would be insufficient to give rise to black lung disease. (BB Br. 27-28). Finally, Black Beauty argues that the dust Franklin purported to observe did not constitute “respirable dust” under the statutory definition. (BB Br. 28).

c. Discussion and Analysis

I find that the Secretary established a violation of section 75.370(a)(1). Under a section entitled “Dust Control Provisions” is a subsection entitled “Methods Employed Outby the Working Sections.” (Ex. G-40 pp 6-7). The subsection under that heading, entitled “Additional Dust Control Measures Used and Maintained,” the plan provides for “calcium chloride, water, or other suitable chemical treatment.” Id. at 7. Although this provision of the ventilation plan is rather cryptic, it is clear that dust in the outby areas of the mine is required to be controlled by the use of chemicals or water. Roadways would be included within the common meaning of an outby area. The inspector determined that, given the amount of dust he observed, the cited roadway had not been treated sufficiently to control the dust. I credit the inspector’s testimony that the roadway was dry and dusty and that it should have been watered more frequently.

I find that the Secretary did not establish that the violation was S&S. Black Beauty waters the roadways daily. Although this was insufficient on November 17, there was no showing that the roadways are consistently dry and dusty or that miners are subjected to dusty conditions on a regular basis. There is also no showing that this dust was respirable dust, as opposed to nuisance dust. Although it is probably unhealthy to be exposed to such dust on daily basis, there was no showing that this type of exposure was a common occurrence at the time. It was not reasonably likely that the hazard contributed to by this violation would result in an injury or illness. The violation was not very serious.

I find that there was no justification for the high negligence determination of the inspector. Although management employees may have passed through the area, the evidence reveals that the dust only became obvious when the inspector ordered the vehicle to be stopped so he could observe the conditions. The violation was not particularly noticeable or serious. Black Beauty’s negligence was moderate. A penalty of $5,000 is appropriate for this violation.

C. Docket No. LAKE 2009-698, Gateway Mine

1. Citation Nos. 8415648 and 8415650

On June 19, 2009, Inspector Robert Lee Bretzman issued Citation Nos. 8415648 and 8415650 under section 104(a) of the Mine Act for alleged violations of section 75.517 of the Secretary’s safety standards. Citation No. 8415648 alleges:

The trailing cable supplying 480 Volts to the Lee Norse Roof Bolter, company number 412 was not insulated adequately and fully protected. Two separate places in the cable were damaged; one of the damaged cables had inner conductors that were also damaged. These damaged places were repaired with vinyl plastic tape covering the outer jacket. Both repairs were not made properly.

(Ex. G-57). The inspector found that a fatal injury was reasonably likely to occur, that the violation was S&S, that one person would be affected, and that it was the result of moderate negligence on the part of the operator. Section 75.517 provides that “[p]ower wires and cables

. . . shall be insulated adequately and fully protected.” 30 C.F.R. § 75.517. The Secretary proposed a civil penalty in the amount of $6,458.

Citation No. 8415650 alleges:

The trailing cable supplying 480 volts to the Lee Norse Roof Bolter, located on Unit #3, was not adequately protected. Four splices or repairs were inspected; all four splices had vinyl (plastic) electrical tape applied on the inner layer of the repair.

(Ex. G-58). The inspector found that this violation posed the possibility of fatal injury, though he designated it as unlikely to occur and not S&S. The inspector believed the violation to be the result of moderate negligence on the part of the operator. The Secretary proposed a civil penalty in the amount of $1,304.

a. Background Summary of Testimony

Inspector Bretzman has over 30 years of general mine experience, has various educational qualifications relating to mine safety, and has inspected the Gateway Mine at least six times. (Tr. 493-94). On June 19, 2009, Bretzman was accompanied by Inspector Kenneth Benedict and Mr. Kevin Thome, maintenance supervisor, on his regular inspection of Unit 3. (Tr. 495-97). Bretzman testified that the cable at issue in Citation No. 8415648 was improperly repaired through the use of vinyl plastic tape at two locations. (Tr. 497). After the repaired areas were opened up, the inspector discovered that the outer jacket was damaged at both locations and the inner insulated conductors were also damaged at one of these locations. Bretzman explained that the operator should have first removed the outer jacket of the cable before applying any tape and followed the instructions on the cable splice kit. (Tr. 499-500; Ex. G-61). Simply covering a damaged area with vinyl tape is not sufficient. Black Beauty did not remove any of the outer jacket or follow any of the instructions that came with the cable splice kit. (Tr. 501). Although the tape provided insulation value, it would not seal up the damaged area sufficiently to keep water out. (Tr. 502).

He designated the violation as S&S because the tape used by the operator would not have properly sealed the cable, resulting in a potentially fatal electrocution hazard if the cable were pulled through wet conditions and water were to get into the area where the inner conductors were damaged. (Tr. 502-03). He testified that the water could carry the current to the surface of the cable and that such accidents have occurred at mines. Because of the high amperage, a miner could be fatally injured if he were to receive such an electric shock. The cable was not wet at the time of his inspection. Bretzman explained his designation of moderate negligence by testifying that he believed that the mechanics who repaired the cable did not understand the hazard. (Tr. 505). He admitted that the mining industry has been repairing damaged trailing cables with vinyl tape for years. (Tr. 515).

Inspector Bretzman testified that he returned to the same roof bolter later the same day and examined the trailing cable for a second time. (Tr. 507). He asked the operator to cut open an existing splice in the cable and discovered that there was a layer of vinyl tape under the rubber tape. (Tr. 508). There were four areas where splices were improperly completed in that manner. Inspector Bretzman testified that the mechanics improperly wrapped vinyl tape around the insulated inner conductors. He said that mechanics often do that in case they ever need to cut open the splice to see if there is an electrical fault in the splice. (Tr. 511). The inspector said that it was improper because, by putting vinyl directly on the insulated power conductors, a proper water-proof seal may not be created. Id. The splices were not wet.

On cross-examination, Bretzman testified that he frequently orders mine operators to cut open trailing cable splices so he can examine them if he sees something that he does not believe is correct. (Tr. 520). He admitted that the instructions for the cable splice kit permit a layer of vinyl tape to be installed against the inner conductors. (Tr. 523). He further stated, however, that the purpose of placing vinyl tape on the insulated inner conductors is to get them to “lay in there nice and neat so you can [apply the rubber tape] nice and neat.” (Tr. 527). His concern was that the mechanic wrapped the vinyl tape up on the tapered ends of the outer jacket. (Tr. 527, 529-30).

The Secretary also called Michael Tite, another coal mine inspector, to testify about these citations. Inspector Tite was not present when the citations were issued and he did not see the cited conditions. He corroborated Inspector Bretzman’s testimony by testifying that, in order to correctly make a repair to a damaged cable jacket, the mechanic should remove the entire jacket around the damaged area, taper the ends of the jacket and then follow the taping instructions set forth in the cable splice kit. (Tr. 569). He testified that just wrapping some tape around the damaged area does not meet the safety standard. He relied on section 11.0 of the cable splice kit instructions in giving his testimony. (Tr. 570; Ex. 61 p. 13). These instructions state, under the heading “Repairing Damaged Cable Jacket,” “11.1 Remove damaged cable jacket and taper jacket approximately 1” (25mm)”. (Ex. 61 p. 13). The instructions go on to describe the other steps necessary to complete the repair.

Inspector Tite testified that simply covering the damaged area with vinyl tape does not sufficiently “vulcanize the [tape] to the outer jacket and will not exclude moisture . . . .” (Tr. 570). He stated that if moisture gets into the damaged area, a miner holding the cable would very likely receive an electric shock, which could be fatal. The circuit breaker for the roof bolter is designed to protect the cable and not people, so a person could receive a lethal shock even though the roof bolter is protected by a breaker. (Tr. 572). He admitted that, if the roof bolter were grounded and the grounding system were working perfectly, a miner would not receive a fatal injury. (Tr. 578). But, if there were many splices in a cable or other less than perfect conditions exist, the grounding system might not adequately protect a miner.

With respect to Citation No. 8415650, Inspector Tite testified that Black Beauty should not have applied vinyl tape as the first layer of tape when splicing the trailing cable. Inspector Tite relied, in part, on a video tape played by the Secretary at the hearing. The video showed rubber splicing tape being applied rather than vinyl tape as the first layer in the splice. He admitted that the instruction allow a “small amount” of vinyl tape to be used to “bind” the insulated power conductors together in section 10.1. (Tr. 574, 584; Ex. G-61 p. 12).

The company called Kevin Thome, maintenance supervisor at the mine, as its first witness. (Tr. 588-89). Thome has approximately 33 years of mining experience. (Tr. 589). Thome was present for the issuance of both citations. (Tr. 590-91). He testified that when the inspector removed the tape from the cable a small cut was visible that was about the size of the end of his little finger. (Tr. 595). The inner conductors were not visible. Inspector Bretzman, ordered that about three inches of the outer jacket be removed around each of the damaged areas. In one location, the insulation around an inner conductor was damaged. This damage would not have been visible without removing the outer jacket. (Tr. 597). Thome testified that a prudent electrician would not use vinyl tape to repair a cable if the insulation on one of the inner conductors were damaged. Id. Thome stated that the person repairing a cable is trained on proper procedure but is also allowed a certain amount of discretion in determining when a cable is sufficiently damaged that it needs more than a layer of vinyl tape. (Tr. 607). Prior to the present citation, the Gateway Mine had never received a citation for using vinyl tape when repairing a damaged outer jacket on a trailing cable. (Tr. 606). The area where this roof bolter is used is never wet or muddy. With respect to Citation No. 8415650, Thome testified that it was normal practice to apply vinyl plastic tape to the insulated conductors when splicing a trailing cable. (Tr. 599).

Gary Wilhelm, maintenance manager at the mine, has about 25 years experience working at underground coal mines. (Tr. 482). He testified that one of his duties was to choose which maintenance products should be used at the mine, including splicing kits. (Tr. 612). Wilhelm was also in charge of implementing cable jacket repair techniques. He chose the splicing kit manufactured by 3M because it is reliable and easy to obtain. (Tr. 613). The vinyl tape that is used at the mine is 3M Temflex 1700 Vinyl Electrical Tape that is included in the cable splice kit and is also purchased separately. (Ex. R-60). This tape is rated at 600 volts. Wilhelm testified that Temflex tape is moisture and water resistant when applied in half laps and it binds well to the outer jacket of the cables. (Tr. 615-16; Ex. R-60).

Wilhelm testified that the miners who handle cables are required to wear gloves which provide protection from electrical hazards. (Tr. 617-18). Also, some boots that the miners wear provide similar protection. (Tr. 618). Wilhelm testified that the power center for the cables include a ground-fault circuit interrupter (“GFCI”). (Tr. 620-21, 642). If the grounding system in the cables stops functioning, the breaker is automatically tripped. It is designed to protect people and not just the cable. (Tr. 622). Wilhelm also testified that cables are inspected for damage on a weekly basis. (Tr. 654). He believed that it was not reasonably likely that the conditions cited by Inspector Bretzman would result in any sort of injury. (Tr. 623). With respect to Citation No. 8415650, Wilhelm testified that, when he showed the inspector the splice kit instructions that permitted the use of vinyl tape when constructing a splice, the inspector replied that he did not believe the instructions were correct. (Tr. 624). He testified that he believes, based on conversations with 3M representatives, that the Temflex should be applied as “strain relief between the internal leads and the external jacket.” (Tr. 626-27).

Wilhelm testified that the instructions in the splice repair kits recommended the use of Temflex tape when splicing a cable. (Tr. 625-26). Wilhelm said that the 3M kits were MSHA-approved, and that he was not aware of any MSHA guidance rescinding that approval. (Tr. 627-28). Black Beauty played a 3M video which showed the use of vinyl tape inside a splice for strain relief. (Tr. 629; Ex. R-63).

b. Summary of the Parties’ Arguments

The Secretary argues that Citation No. 8415648 should be upheld because the observed damage to the cable and the failure to properly repair and adequately insulate this damage violates section 75.517 of the safety standards. (Sec’y Br. 39). The Secretary argues that the inspector’s determinations on gravity and S&S should be affirmed because the inspector testified that miners have been shocked in similar circumstances and that the mine should have known to properly repair the cable. (Sec’y Br. 39).

With respect to Citation No. 8415650, the Secretary argues that it is clear that the operator applied the wrong tape as the inner layer of the splice, which violates the safety standard. She maintains that the citation should be affirmed as written by the inspector.

Black Beauty argues that Citation 8415650 should be vacated because no violation of section 75.517 occurred, given that the cable splice kit was approved by MSHA and the miners followed its directions. (BB Br. 39, 41, 43). In the alternate, Black Beauty argues that the citation should be vacated for lack of notice, arguing that a safety standard cannot be what the Secretary meant “but did not adequately express.” (Sec’y Br. 43). Black Beauty argues that the inspector’s decision to cite the use of Temflex tape for the cable repair in Citation No. 8415648 “amounts to nothing more than enforcement of his personal preferences,” not MSHA standards. (BB Br. 44). Black Beauty argues that, if a violation is found, the S&S finding should be deleted and the negligence finding should be modified to “none” because the inspector assumed conditions of wetness and damage to the Temflex tape, neither of which were present on the date of inspection. (BB Br. 44).

c. Discussion and Analysis

Citation No. 8415648

The safety standard at issue is broadly worded to cover a wide range of circumstances. It simply states that “[p]ower wires and cables . . . shall be insulated adequately and fully protected.” The Secretary’s Program Policy Manual (“PPM”) is instructive. It first requires that “damaged insulation on insulated power wires and cables (including trailing cables) and damaged jackets on power cables (including trailing cables) be repaired.” (Ex. R-73; V MSHA U.S. Dept. of Labor, Program Policy Manual, Part 75 at 66). There is no dispute that Black Beauty repaired the trailing cable where it was cut. The issue is whether it was adequately repaired. The PPM goes on to state:

Tapes or other materials that are used to form the outer jacket of approved permanent splices may be used to replace damaged areas of outer jackets of trailing cables. Outer jackets shall be replaced in such manner so as to prevent moisture from entering the cable.

Id.

The evidence establishes that the tape Temflex tape used by Black Beauty is water resistant, provides excellent mechanical protection, and is rated for up to 600 volts when it is applied in a half-lapped manner. (Tr. 616, Ex. R-60). This tape is authorized by MSHA to be used when splicing cables as part of the splice kit. Mr. Wilhelm credibly testified that the tape is used for all types of cable repairs and is also used when splicing two trailing cables. Indeed, Inspector Bretzman acknowledged that the electrical tape used by Black Beauty can be part of the top layer of an electrical splice. (Tr. 518). There is no question that the vinyl tape used was properly applied in half lap layers and that it covered the damaged area in the cable completely. The tape had not been damaged since it had been applied. Kevin Thome removed the vinyl tape from the trailing cable at the inspector’s request. At one location there was only a small cut in the outer jacket and the insulated inner conductors were not exposed.

The cable splicing kit instructions recommend that a damaged cable jacket be cut away when a cable jacket has sustained significant damage and that the splicing kit be used to repair the damage. (Ex. G-61 p. 13). In addition, Mr. Thome testified that a prudent electrician would not use vinyl tape to repair a cable if the insulation on one of the inner conductors is damaged. (Tr. 597). The 3M splice kit used by Black Beauty has been approved by MSHA. (Tr. 521, 627). The instructions were included in the splice kit. Black Beauty uses an easy-to-apply rule when repairing damaged cable jackets. If the damage appears to be superficial, such as a nick, it carefully wraps the area with Temflex vinyl tape. If the damage is such that the inner insulated conductors may have been damaged, then the damaged area of the cable jacket is removed and repaired as set forth in the cable splice kit’s instructions. Given the language of the safety standard, the guidance in the PPM, and the instructions that came with the cable splice kit, I find that such an approach is reasonable and that it does not violate the safety standard if it is followed.[5] As discussed with respect to the next citation, vinyl tape is one of the types of tape that is “used to form the outer jacket of approved permanent splices.” (PPM at 66).

Black Beauty should err on the side of caution, however. When the cited cable was cut open for inspection, the damage in one of the two areas cited by the inspector included damage to the insulation on an inner conductor. In such an instance, I find that simply using vinyl electrical tape to cover the area does not “adequately and fully protect” the area from further mechanical damage and from an electric shock hazard. Although the vinyl tape is moisture-resistant, it does not provide as good a seal as the original jacket or an area where a full splice has been installed. Additional stress on the cable and exposure to moisture can create a situation which creates an electric shock hazard. On this basis, I find that the Secretary established a violation of the safety standard.

I find that the violation was S&S. I credit the testimony of Black Beauty’s witnesses as to the dry conditions in the area where the roof bolter operated and as to the GFCI system that is part of the roof bolter. If the grounding system is not working, the circuit breaker will trip, greatly reducing shock hazard. Nevertheless, given that the damaged inner conductor was hidden and unknown to Black Beauty, the hazardous condition would not have been corrected until the trailing cable was replaced. I find that, given the stress that is put on a trailing cable as it is moved and reeled on and off the roof bolter, it was reasonably likely, assuming continued mining operations, that the hazard contributed to by the violation would result in an injury of a reasonably serious nature. The gravity was serious.

I also find that Black Beauty’s negligence was low. It has been repairing minor damage to trailing cables by using vinyl electrical tape for years without receiving a citation or even a comment from MSHA to indicate that such a procedure might not always meet the requirements of the safety standard. In this instance, the damage to the insulation on the inner conductor was hidden and would not necessarily have been expected with such a minor cut in the cable jacket. Black Beauty must more carefully examine damaged areas on cable jackets to make sure that insulation on inner conductors has not been damaged before it simply uses vinyl electrical tape to make repairs. A penalty of $4,000 is appropriate.

Citation No. 8415650

Inspector Bretzman instructed Mr. Thome to cut open four splices on the trailing cable on the same roof bolter involved in the previous citation. The splices were neither wet nor damaged when the inspector ordered that they be cut open. In addition, once they were cut open there was no sign of water or other damage to the insulated internal conductors. The inspector issued the citation because vinyl electrical tape had been used inside the splice. Mr. Wilhelm, at a meeting on the surface after the citation was issued, tried to convince the inspector that the instructions for the approved 3M splice kit provides for the use of vinyl tape inside the splice. Indeed, the instructions for the 3M Mining Cable Splice Kit 3100 specifically provide for the use of Temflex Vinyl Electrical Tape to bind and secure the underlying insulated conductors when splicing two cables. (Ex. R-61). Vinyl tape is apparently applied to provide strain relief between the insulated internal conductors and the external jacket. After the vinyl tape is applied, the outer jacket is constructed using rubber splicing tape and heavy duty mining tape. Id. Inspector Bretzman’s only concern with the splices he examined was the fact that the operator applied vinyl electrical tape as the first layer in making the splice. It became apparent during Inspector Bretzman’s testimony that, if the vinyl tape had not covered part of the tapered ends of the cable jackets that were being spliced together, he would not have issued the citation. He believed that only a small amount of vinyl tape should have been used and that it should not have extended out onto the tapered ends of the cable jackets at each end.

The evidence demonstrates that the method and materials used by Black Beauty to splice trailing cable did not violate the safety standard. Accordingly, this citation is vacated. Nothing in the safety standard, the 3M cable splice kit instructions, or the PPM can be interpreted to conclude that the splices the inspector examined failed to meet the requirements of section 75.517. The vinyl tape was present to provide strain relief and it was completely covered by the rubber splicing tape and heavy duty mining tape, as described in the cable splice kit instructions. (Ex. G-61, p. 12). There was no showing that the splices constructed by Black Beauty did not completely seal the area inside the splice from moisture. The citation is VACATED.

2. Citations Nos. 8414855 and 8414858

On June 17 and 19 respectively, Inspector Kenneth Benedict issued Citation Nos. 8414855 and 8414858 under section 104(a) of the Mine Act. Citation No. 8414855 was issued for a violation of 75.604 of the Secretary’s safety standards and alleges:

The 480 volt AC trailing cable supplying power to the #403 roof bolter located on Unit #3 has 3 permanent splices that are not effectively insulated and sealed so as to exclude moisture. The 3 splices have areas where the insulation has been worn off exposing the inner leads. These splices are close to the bolter and would be sliding on a guide assembly on the bolter that is damaged allowing the cable to slide on the frame of the bolter.

(Ex. G-62). The inspector found that this violation was reasonably likely to result in fatal injury, was S&S, would affect one person, and was the result of moderate negligence on the part of the operator. The Secretary proposed a civil penalty in the amount of $4,689. Section 75.604 provides:

When permanent splices in trailing cables are made, they shall be:
(a) Mechanically strong with adequate electrical conductivity and flexibility;
(b) Effectively insulated and sealed so as to exclude moisture; and
(c) Vulcanized or otherwise treated with suitable materials to provide flame-resistant qualities and good bonding to the outer jacket.
(d) Made using splice kits accepted or approved by MSHA as flame resistant.

30 C.F.R. § 75.604.

Citation No. 8414858 was issued for an alleged violation of section 75.503 of the Secretary’s safety standards and alleges:

The company #412 roof bolter located on Unit #3 is not being maintained in a permissible condition. (1) There are three bolts that hold the cable reel cage in place that are coming in contact with the 480 volt AC trailing cable. (2) There is an upright bar that the cable wraps around that is not insulated. When tested by a qualified electrician with an ohm meter the bolts and the bar show continuity with the frame of the machine. (3) The cable guide that the cable passes through at the reel compartment has an insulated roller missing allowing the cable to come in contact with the frame of the machine.

(Ex. G-65). The inspector found that this violation was reasonably likely to result in a fatal injury, was S&S, and would affect one person. The inspector believed the violation to be the result of moderate negligence on the part of the operator. Section 75.503 provides that the “operator of each coal mine shall maintain in permissible condition all electric face equipment required . . . to be permissible which is taken into or used inby the last open crosscut of any such mine.” 30 C.F.R. § 75.503. The Secretary proposed a civil penalty in the amount of $9,634.

a. Background Summary of Testimony

MSHA Inspector Benedict has close to 39 years mining experience and worked at the Gateway Mine for a few years, under a different operator, before working for MSHA. (Tr. 538). Benedict explained the issuance of Citation No. 8414855 as stemming from his observation that the cables “had quite a bit of abuse” that had exposed the “inner leads . . . damaging the outer jacket of insulation.” (Tr. 540). This exposure, he testified, allows moisture to get into the taped area, presenting the hazard of electrocution. (Tr. 540-41). The copper wire in these inner leads was not exposed. (Tr. 557). The damaged areas were close to the reel for the cable on the roof bolter. He issued another citation for a permissibility violation on the same roof bolter. (Tr. 542; Ex. G-77). Benedict testified that Black Beauty’s only safety mechanism was the “breakers that are supposed to kick when the cables come in contact with the . . . ground,” but that if a miner was any closer to the exposed cable than the breaker, the miner would be electrocuted.” (Tr. 544).

Inspector Benedict next explained why he issued Citation No. 8414858. (Tr. 546). He found three bolts in the cable reel that were not insulated and a bar on the cable reel that was not insulated. This citation was issued on the same roof bolter that Inspector Bretzman cited for improper repairs to a trailing cable, Citation No. 8415648, discussed above. The damaged areas on the trailing cable were close to the reel and he believed that if there were a fault, the current could flow to the frame of the roof bolter and electrocute someone. (Tr. 549). Benedict testified that an Ohmmeter reading showed that there was continuity between three uninsulated bolts and the frame of the roof bolter, which meant that “any bare cable” that touched the bolts would energize the frame of the machine, electrocuting anyone who touched it. (Tr. 548-49). It is not uncommon for a circuit breaker to fail. (Tr. 550).

Inspector Tite testified that the conditions described in the two citations were reasonably likely to cause a fatal injury. (Tr. 574-75). He agreed with Inspector Benedict’s S&S determinations. (Tr. 576-78). He admitted that three events would have to occur simultaneously: a portion of the bare copper wire would need to be exposed, the bare wire would need to come in contact with the reel, and a miner would need to be touching the roof bolter. (Tr. 575). He testified that it was reasonably likely that these three events would occur at the same time. (Tr. 585).

Mr. Thome testified that there was no methane present in the areas where the roof bolters were operating. (Tr. 600). He also testified that all employees are required to wear gloves, which provides some protection from electric shock. (Tr. 601). In addition, the cable closest to the reel is not handled by miners as frequently as the middle section of the cable.

Mr. Wilhelm testified that everyone wears gloves in the mine; it is company policy. He further testified as to the GFCI circuits that protect the trailing cables on roof bolters. (Tr. 634). These GFCI are specifically designed to protect people working with the roof bolters and the associated trailing cables. (Tr. 635). It checks the continuity of the grounding system.

b. Summary of the Parties’ Arguments

The Secretary argues that Citation No. 8414858 should be upheld because the exposed bolts and bar on the cable reel could have made contact with the improper cable splices and repairs and electrocuted a roof bolter operator. (Sec’y Br. 39-40). The Secretary argues that Citation No. 8414855 should be similarly upheld because the damaged trailing cable could come in contact with the uninsulated parts on the reel and energize the roof bolter, which would reasonably likely cause a fatal shock to a miner operating the roof bolter. (Sec’y Br. 43).

Black Beauty stipulates to the fact of violation for Citation Nos. 8414855 and 8414858, but contests the findings of injury, gravity, severity, and S&S. (Tr. 553). Black Beauty argues that the Secretary failed to establish the reasonable likelihood of fatal injury in Citation No. 8414855, given that the inner conductors were not damaged, the area was dry, and the cited splices were unlikely to be handled by miners. (BB Br. 49). Based on these conditions, and on its assertion that the violation identified by Citation No. 8414858 would have been discovered on the next permissibility examination of the equipment, Black Beauty argues that the a fatal accident was not reasonably likely to occur. (BB Br. 50).

c. Discussion and Analysis

Citation No. 8415655

Black Beauty is only contesting the inspector’s gravity and S&S determinations. As stated above, Black Beauty argues that the Secretary failed to establish the reasonable likelihood of a fatal injury given that the inner conductors were not damaged, the area was dry, and the cited splices were unlikely to be handled by miners. The evidence establishes that the insulated inner conductors were dry and were not damaged in any way. It is also clear that miners would rarely handle the cable because it is supported by hangers and the cited portions of the cable were close to the roof bolter. In addition, the circuit was equipped with GFCI protection, which will quickly trip the power in the event of any imbalance in the power.

I find that the violation was serious and that a fatal injury was possible, but that the violation was not S&S. The Secretary did not establish the third element of the Mathies S&S test. Redundancy in electrical circuit protection is required in all electrical installations. In this case, the inner conductors were insulated, the area was dry, and the circuit was equipped with GFCI protection. There was no evidence that this ground fault protection system was not functioning properly. Such circuits are specifically designed to protect people from electric shock hazards. While it was possible that someone could receive a shock or even a fatal injury from the conditions described in the citation, such an event was not very likely. A penalty of $4,000 is appropriate.

Citation No. 8415658

The roof bolting machine at issue in this citation is the same one as cited by Inspector Bretzman in Citation Nos. 8415648 and 8415650, discussed above. Although I vacated Citation No. 8415650, I determined that Black Beauty violated section 75.517 in Citation No. 8415648. All three of these citations were issued on the same day.

Black Beauty is only contesting the inspector’s gravity and S&S determinations. The Secretary argues that the three exposed bolts on the cable reel could have easily come into contact with the improperly made splices and improperly made repairs on trailing cable. I find that the Secretary established the S&S nature of this citation. As stated above, one of the repairs made with Temflex tape was to an area on the trailing cable where the inner insulated conductors had been damaged. As discussed above, Black Beauty was not aware that one of the inner conductors had been damaged and it was not likely that such damage would have been discovered before the trailing cable was replaced. Citation No. 8415658 adds one more element to the S&S equation. I find that, given the stress put on a trailing cable as it is moved and reeled on and off the roof bolter, it was reasonably likely, assuming continued mining operations, that the hazard contributed by the violation would result in an injury of a reasonably serious nature.

I find that Black Beauty’s negligence was moderate. A penalty of $10,000 is appropriate.

3. Citation No. 8414334

On July 8, 2009, Inspector Bobby F. Jones issued Citation No. 8414334 under section 104(a) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. The citation alleges:

When inspected the Unit #2—No. 5 belt was observed with accumulations of coal and float coal dust from the No. 5 belt drive located at 96 x-cut to the 130 x-cut. These accumulations ranged from 2 inches to 24 inches in depth and 2 inches to 2 feet in width at numerous locations along both sides.

(Ex. G-68). The inspector found that an injury of lost workdays or restricted duty was possible, though unlikely to occur, that the violation was not S&S, that 18 people could be affected, and that the violation was the result of moderate negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $4,329.

a. Background Summary of Testimony

Inspector Jones has worked for MSHA for four years. (Tr. 657). Before that, he worked in the mining industry for 28 years. (Tr. 657). Jones issued the citation for accumulations of coal and float coal dust of varying depths along the belt line, which Jones testified could result in a mine fire. (Tr. 660). He determined that 18 miners would be affected by the violation. He described the unit as a “fishtail” unit with nine miners on each side. Id. The mine brings the ventilation up an entry and it is split to supply air to two faces. In such a configuration, the left and right side have their own ventilation so “they can run two units on one belt.” (Tr. 661). He analogized the hazard to a house fire. if there were ten people in the house at the time, they would all be affected by the fire. He determined that 18 people would be affected because the miners from both sides would tend to gather at the regulator. (Tr. 665). The mantrips and SCSR’s are at that location.

Bruce Waldman, Safety Manager at the mine, has 33 years of experience working at underground mines, and has been a safety manager for the past 10 years. (Tr. 474). He testified that the CO sensors are monitored “24/7” by a security guard. (Tr. 669). Waldman testified that the people who check the CO monitors are also equipped with monitors that detect methane, oxygen, and CO. (Tr. 671). There was no methane in the area at the time the citation was issued. Waldman testified that the miners are aware of the location of the primary escapeway and they would meet at that location. (Tr. 676-77). On the date the citation was issued, the feeder was at crosscut 157. (Tr. 679). The belt is ventilated with neutral air, which is directed by check curtains and stoppings to the return. (Tr. 680-81; Ex. R-70, p. 13). This configuration prevents any contaminants in the belt air, including smoke, from entering the working sections. Belt air does not ventilate the face. Due to the air pressure and the fact that the isolation curtains were fully intact, it would be impossible for smoke from the belt entry to travel up into where the miners were working. (Tr. 682). Waldman disagreed that 18 people would be affected because check curtains would keep air that passed over the cited area away from both working units. Id.. At most, the examiner and another miner in the neutral air would be affected. Id. He admitted that if the intake stopping lines went out, the smoke could get into the working section. (Tr. 687).

b. Summary of the Parties’ Arguments

The Secretary argues that, because the escape map is kept at the work bench where belt air flows, all miners would have to come into contact with the smoke on their way to the escape map. (Sec’y Br. 45). The Secretary argues that both nine-miner crews would be affected by exposure to smoke if a fire were to occur. (Sec’y Br. 45).

Black Beauty argues that only one person, an examiner, would be affected if a fire were to occur, not 18 miners. (BB Br. 37). In support of this argument, Black Beauty points to the location of the miners and quotes from an MSHA Handbook, which instructs inspectors to “enter the . . . number of persons who could or would be affected if the anticipated event occurred.” (BB Br. 36).

c. Discussion and Analysis

Based on the evidence, I find that only one or two miners would have been affected by the cited conditions in the event of smoke or fire. I credit the evidence presented by Mr. Waldman on this issue. The No. 5 belt leads to Unit No. 2, which includes two different mining crews of nine miners each. There was no methane in the area. The cited belt is ventilated with neutral air which exhausts to the secondary escapeway. The evidence establishes that the miners gather near the power center in the intake air. Although in a worst case scenario all of the miners could be affected, it was not particularly likely. In all other respects the citation is affirmed. A penalty if $4,000 is appropriate.

D. Docket No. LAKE 2009-608, Gateway Mine

1. Citation No. 4269996

On June 1, 2009, Inspector James Dean Rusher issued Citation No. 4269996 under section 104(a) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. The citation alleges:

There is an accumulation of combustible material in the form of spilled hydraulic oil that is mixed with loose coal fines and coal dust. This material was found on both the left and right boom, front of the main frame and hydraulic pump compartment in depths up to about 1/4" to 3/8". This machine was energized and in use in the No. 3 unit, in the No. 9 entry at tag No. 84+00, MMU 002-0.

(Ex. G-54). The machine cited was the No. 403 roof bolter. (Tr. 455, 484). The inspector found that an injury was reasonably likely to occur, resulting in lost workdays or restricted duty, that a violation was S&S, that two people would be affected, and that the violation was the result of moderate negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $5,961.

a. Background Summary of Testimony

Inspector Rusher has been with MSHA for 33 years, the majority of which he worked as an inspector. (Tr. 450). Prior to MSHA, Rusher worked in the mining industry for 12 to 13 years. (Tr. 450).

Inspector Rusher testified that he marked the violation as reasonably likely because the hydraulic oil mixed with coal dust and coal fines would be even more combustible than oil in isolation because coal will burn at a lower temperature. (Tr. 457-58). Rusher testified that there were several ignition sources in the area, including spontaneous combustion due to heat and lack of air movement, the friction of the bearings from the pump motors, electrical conduits, and sparks flying from the drill holes of the auger installation. (Tr. 458). Rusher then related both his firsthand experience of a spark causing an ignition in a similar situation and reports of similar accidents resulting from such conditions. (Tr. 459-60). Rusher stated that an accident would likely result in lost work days or restricted duty because the miners could have been burned and would have inhaled smoke. (Tr. 461-62). Rusher designated moderate negligence because the other equipment “was reasonably clean.” (Tr. 464).

Bruce Waldman accompanied Rusher on his June 1, 2009 inspection of Unit 3. (Tr. 476). Based on his review of the onshift examination report, Waldman testified that no methane was found in the active section where Unit 3 was mining. (Tr. 479; Ex. R-58). No permissibility citations were issued. (Tr. 481). The equipment was warm, but not hot.

Gary Wilhelm, maintenance manager at the mine, testified that he had never seen the surface temperature of the roof bolter higher than 100 to 150 degrees Fahrenheit. (Tr. 485). The hydraulic oil used at the mine has a flashpoint of 392 degrees Fahrenheit. (Tr. 485-86; Ex. R-53). A running motor on the roof bolter would not be an ignition source. The roof bolter is equipped with a fire suppression system. (Tr. 488). Welding would not be performed on the roof bolter until it was moved to an outby area and it was cleaned of oil. Id.

b. Summary of the Parties’ Arguments

The Secretary argues that the accumulations were obvious and substantial. (Sec’y Br. 36). Given that the roof bolter machine was operating when Rusher discovered the condition, management placed an obviously dangerous piece of equipment into active use. (Sec’y Br. 36). Numerous ignition sources contribute to the Secretary’s argument that the violation could result in an ignition causing serious injury. (Sec’y Br. 36).

Black Beauty stipulates to the fact of violation, the number of persons affected, and the negligence designation. (Tr. 655). Black Beauty argues that, because the S&S finding is “not supported by the facts,” it should be deleted. (BB Br. 32). Black Beauty argues that the absence of methane, and the presence of a fire suppression system and a methane monitor show that the occurrence of an injury was unlikely. (BB Br. 32-33). Finally, Black Beauty argues that Rusher’s “vague recollection” of an occasion of a fire and his “speculative ignition sources” fail to establish any condition that would cause a reasonable possibility of ignition. (BB Br. 33).

c. Discussion and Analysis

I find that the Secretary did not establish that this violation was S&S. I credit the testimony of Mr. Waldman and Mr. Wilhelm on this issue. It was unlikely that any welding would occur, at least not until the roof bolter was cleaned. I find that there were no ignition sources that were reasonably likely to create a fire or smoke. Heat from the engine was unlikely to ignite the hydraulic oil, even with the presence of coal dust on the roof bolter. See, generally, Highland Mining Co., 30 FMSHRC 1097, 1100 (Nov. 2008) (ALJ). The third element of the Mathies S&S test was not established. It was not reasonably likely that the hazard contributed to by the violation would have resulted in an event in which there was an injury. The violation was only moderately serious. A penalty of $5,000 is appropriate.

III. SETTLED CITATIONS

A number of the citations at issue in these cases settled, either prior to the hearing or at the conclusion of the hearing. By order dated January 25, 2011, I approved the settlement of Citation No. 6678961 in Docket No. LAKE 2009-598, Citation Nos. 4269991, 4269992, 42269993, 4269995, and 4270000 in Docket No. 2009-608, and Citation Nos. 8414856 and 6675880 in Docket No. LAKE 2009-698. The settlement amount of $35,392 was ordered to be paid for those citations.

At the hearing, the parties agreed to settle three additional citations. The parties agreed to reduce the proposed penalty for Citation No. 6678958 in Docket No. LAKE 2009-598 from $2,901 to $2,176 and modify the citation to delete the S&S designation. The parties agreed to reduce the proposed penalty for Citation No. 6678965 in Docket No. LAKE 2009-684 from $1,203 to $902 and modify the citation to delete that S&S designation. The parties agreed to reduce the proposed penalty for Citation No. 8415654 in Docket No. LAKE 2009-698 from $7,578 to $7,199 and reduce the gravity from fatal to permanently disabling. The total amended penalty for these settled citations is $10,277. I have considered the representations and documentation submitted and I conclude that this proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Act.

IV. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are not disputed. (Ex. G-71). At all pertinent times, Black Beauty Coal Company was a large mine operator and the controlling company, Peabody Energy Corporation, was also a large operator. The violations were abated in good faith. The penalties assessed in this decision will not have an adverse effect on Black Beauty’s ability to continue in business. (Joint Stip. ¶ 12). The gravity and negligence findings are set forth above.

IV. ORDER

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

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

LAKE 2009-304

6669341 75.400 $8,000.00

6681297 75.402 5,000.00

6681046 75.400 10,000.00

6682243 75.362(b) Vacated

LAKE 2009-305

6482240 75.400 30,000.00 .

6682241 75.202(a) 11,000.00

6682242 75.400 15,000.00

6682048 75.370(a)(1) 5,000.00

6682067 75.202(b) 12,000.00

LAKE 2009-608

4269996 75.400 5,000.00

LAKE 2009-698

8415648 75.517 4,000.00

8415650 75.517 Vacated

8414855 75.604 4,000.00

8414858 75.503 10,000.00

8414334 75.400 4,000.00

SUBTOTAL 123,000.00

CITATIONS SETTLED AT HEARING $10,277.00

TOTAL PENALTY $133,277.00

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or VACATED as set forth above. Black Beauty Coal Company is ORDERED TO PAY the Secretary of Labor the sum of $133,277.00 within 40 days of the date of this decision.¹ The contest proceeding is DISMISSED.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Matthew M. Linton, Esq. and Nadia A. Hafeez , Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)

Arthur M Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA 15222 (Certified Mail)

Dana M. Svendsen, Esq., Jackson Kelly, 1099 18^th Street, Suite 2150, Denver, CO 80202-1958 (First Class Mail)

RWM

[1] Inspector Fishback issued Order No. 6681047 alleging a violation of section 75.362(b) for the failure of Black Beauty to perform an adequate examination during the previous shift. Judge Jerold Feldman vacated that order “because Black Beauty was not required . . . to conduct an on-shift examination of the belt haulage way during the September 11, 2008, midnight maintenance shift.” Black Beauty Coal Co., 34 FMSHRC ____, slip op. at 9, No. LAKE 2009-72 (Feb. 10, 2012) (petition for discretionary review granted March 21, 2012).

[2] In its brief, Black Beauty argued that this citation, as well as other section 104(a) citations at issue in these cases, should not be characterized as an unwarrantable failure. As the Secretary did not allege an unwarrantable failure, I have considered its arguments when considering the high negligence allegation.

[3] The present case is factually distinguishable from Mach Mining. In that case, I found that the accumulations were wet, the cited area was near the surface, and the air traveling through the cited area was flowing in an outby direction. I also found that the conditions had existed for a short period of time.

[4] The Air Quality #1 Mine is a slope mine. The coal seam is close enough to the surface that men and materials enter the mine down a sloped entry from the surface. Similarly, the mined coal exits the mine on conveyor belts that travel up the slope. At this mine, there are two slope entries that are used to transport coal out of the mine: the Wheatland Slope and the South Slope. The credible evidence demonstrates that the South Slope was operating over the relevant weekend and that the Wheatland Slope was idle. I credit the evidence presented by Black Beauty on this issue.

[5] If the Secretary believes that the type of electrical tape used by Black Beauty should not be used to repair nicks or cuts in trailing cables, she must engage in rulemaking to reflect such a change or, at a minimum, amend her PPM to state that vinyl electrical tape cannot be used to repair nicks and small cuts in electric cables.

¹ Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

Appearances:	Matthew M. Linton, Esq, and Nadia A. Hafeez, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner; Arthur M. Wolfson, Esq., and Dana M. Svendsen Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, and Denver, Colorado, for Respondent.
Before:	Judge Manning