FMSHRC ALJ Decision

Appearances: Robert E. Motsenbocker, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee, for the Petitioner

Robert Huston Beatty, Jr., Esq., Dinsmore and Shohl, Morgantown, West Virginia, for the Respondent

These civil penalty proceedings pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802, et seq. (2000), hereinafter the “Mine Act,” concern three Section 104(a) significant and substantial (S&S) citations served on the respondent on February 28, 2010, and March 2, 2010, and one Section 104(a) non-S&S citation served on the respondent on February 25, 2010. A hearing was held on September 8, 2011, in Abingdon, Virginia, and the parties appeared and participated fully therein. The parties filed post-hearing briefs, and I have considered their arguments in the course of this decision.

Section 104(a) S&S Citation No. 8171200, March 2, 2010, 30 C.F.R. § 75.512, states as follows (Ex. P-5):

The cathead provided for the Stamler Feeder Co. No. 1 was not being maintained to assure safe operating conditions. The cathead was not latched down to prevent the cathead from being accidentally pulled out under a load. The cable from the cathead extended 3.5 feet into the travelway along the section power center. This creates a tripping hazard that could pull the cathead out while energized. Miners travel this area to the circuit breaker for the feeder and other circuit breakers at the section power center.

Section 104(a) S&S Citation No. 8171201, March 2, 2010, 30 C.F.R. § 75.512, states as follows (Ex. P-6):

The cathead provided for the Cogar Feeder Co. No. 2 was not being maintained to assure safe operating conditions. The cathead was not latched down to prevent the cathead from being accidentally pulled out under a load. The cable from the cathead extended 3 feet into the travelway along the section power center. This creates a tripping hazard that could pull the cathead out while energized. Miners travel this area to the circuit breaker for the feeder and other circuit breakers at the section power center.

Section 104(a) S&S Citation No. 8171198, February 28, 2010, 30 C.F.R. § 75.503, states as follows (Ex. P-8):

The 482 S&S scoop Co. No. 2 being used on the 002 MMU was not being maintained in permissible condition. The receptacle on the batteries had the insulator missing from the brass connector on the inside of the receptacle. This condition exposes miners to the hazards of electrical shock or burns when plugging the batteries up for use or for charging.

Section 104(a) non-S&S Citation No. 8167700, March 25, 2010, 30 C.F.R. § 75.360(a)(l), states as follows (Ex. P-23):

On 02-25-2010 the roadways and travelways where employees were scheduled to work and travel had not been completely examined, by a certified pre-shift examiner, within the established 8 hour interval. The evening shift interval established at this mine is between 20:00 and 23:00 each day the employees normally work. The scheduled pre-shift examination for this shift was not completed until 00:35 the following day (02-26-2010). The evening shift employees were brought outside through the intake entry following the evening shift examiner. He made an examination of the area for them, even though it was after the established 8 hour interval. The owl shift employees were held outside until all the required examinations where they work or travel had been completed.

MSHA Inspector William Ratliff testified that he has served as an inspector for four years and eight months and has a respirable dust sampling certificate that enables him to sample dust and conduct regular mine inspections. He identified the Section 104(a) Citation No. 8171200 that he issued on March 2, 2010, and explained his MSHA training at the mine academy and his 24 years in underground mining as a shop foreman, mine foreman, and weekly examiner (Tr. 6-10; Ex. 5).

Mr. Ratliff identified Exhibits 6 and 7, as his notes relate to the citation, as well as a subsequent citation issued during his inspections on the evening and midnight shifts. He stated that the respondent’s representative, Randy Sutherland traveled with him during his inspection (Tr. 11-16).

Mr. Ratliff stated that he issued the citation after finding that the cathead, which is an electrical plug used to power the Stamler Feeder used to crush coal and feed it onto a conveyor belt, was not latched to prevent it from inadvertently or accidentally coming out under a load. He explained that the cathead is the male part, similar to a plug that plugs into a receptacle, which is the female part (Tr. 16-17).

Mr. Ratliff stated that the cathead latch consisted of thin metal that was worn and “was not catching the way it should.” He confirmed that Mr. Sutherland observed the condition and voiced no objection. Mr. Ratliff believed that the condition would reasonably likely cause an injury because the unlatched cathead could cause the cable that extended into the travelway to be pulled out to the side while under load if someone tripped over it, and anyone pulling on the cable to the side could cause the cathead to rock out of the receptacle and expose the person pulling the cathead from the receptacle to severe burns or shock from an electrical arc (Tr. 19-21).

Based on the aforesaid findings, Mr. Ratliff determined that the violation was S&S and that the condition of the latch was a violation of Section 75.512, which requires electrical equipment to be maintained in a safe operating condition. He believed that one person traveling alongside the cathead could possibly trip and be exposed to the hazard. He confirmed that the violation was terminated in 15 minutes after the latch was repaired by bending it so that it could latch down the cathead (Tr. 23-26, Ex. 5).

Mr. Ratliff testified that he issued a second Section 104(a) citation, Citation No. 8171201, on the same day after finding the cathead on the Cogar Feeder number 2 that was in close proximity to the first cited cathead location. It was not latched down and could be pulled out sideways under a load. He stated that the latch condition was identical to the other cited cathead and the latch was not engaged because it was worn (Tr. 27-29; Ex. 6).

Mr. Ratliff stated that the cathead power cable was located three feet into the same travelway as the prior violation and that a miner walking down the travelway would be exposed to the same severe hazardous injuries that were reasonably likely to occur by tripping over the cable. He confirmed that one person traveling along the power center would be exposed to injury (Tr. 29-31).

Mr. Ratliff determined that the violation was a result of moderate negligence because the catheads are plugged in by the section electrician who observes them at that time as well as during his weekly inspections. He confirmed that his notes reflect that the conditions of both cited catheads existed for less than one day. The violation was terminated after the latch was bent, so that it would catch the lip on the cathead, similar to the first citation (Tr. 31-35; Ex. 7).

Mr. Ratliff stated that electricians and equipment operators, resetting circuit breakers, would be using the travelways, but conceded that the majority of the circuit breakers on the power box are on the opposite side of the area where the catheads are plugged in (Tr. 96-97).

On cross-examination, Mr. Ratliff stated that he has eleven years of experience as an underground mechanic, and is a State of Virginia certified maintenance foreman. He confirmed that none of his previous 24 years of mining experience was as a maintenance person, and that he is not a certified electrician, and is not certified to work on catheads, power cables, or to do other electrical work (Tr. 37-39).

Mr. Ratliff stated that his statement that Mr. Sutherland did not object to his findings is not reflected in his inspector’s notes, and that his findings that the latches on both cited catheads contained “thin metal and were worn” are not in his notes. He agreed that the conditions of the latches contributed to the failure of the latches to latch. He indicated that this is an important factor in upholding the citations; however, he did not record the conditions in his notes (Tr. 44, 49).

Mr. Ratliff believed that the latch on the bottom of the receptacle was the only method to prevent the cathead from coming out of the receptacle. Referring to the cathead photograph, he identified a steel bar going through the top of the receptacle box latch below the black square portions of the photograph. He agreed that in order to plug the cathead into the receptacle it has to first fit under the steel bar that he believed is used for leverage in order to allow the device at the top of the cathead to go under, and wraparound, and snap down on the bottom of the cathead. Mr. Ratliff did not believe that the steel bar in the receptacle would prevent it from being pulled out and the unsecured latch would not prevent the cathead from being pulled out. He explained that the steel bar “is used for leverage to pull the latch down to latch.” He further stated, that “the latch is what actually holds the cathead in place” (Tr. 52-54, 57).

Mr. Ratliff stated that the latches on both cited catheads were repaired by bending the metal so that the catheads could be latched as stated in the citations, but was not reflected in his notes. He confirmed that the latches needed to be replaced (Tr. 60-62). With respect to the Stamler Cathead, his notes reflect that injury would be likely due to the condition of the latch and not a tripping hazard (Tr. 67).

Mr. Ratliff stated that there was a 3 ½ foot travelway between the Stamler Cathead power center and the mine rib, and a 3 foot travelway between the Cogar Cathead area and the rib. He agreed that the widest travelway would more likely be used by miners, but he did not know whether the travelways on the other side of the two he described would be wider or narrower. He confirmed that an electrician would normally be the only person using the travelways where the catheads were located (Tr. 69-71).

Mr. Ratliff could not recall the seam height during his inspection, but confirmed that they could not stand up and had to wear knee pads, and he spent most of his time “duck walking” and could not walk normally. The travelways would be alongside the power center and he did not issue any citation for obstruction of the travelway because there was no obstruction, but someone could trip over the cables. Although car operators checking their circuit breakers could use the travelways, they could also use the back side of the power center to the receptacles and would not have to pass the area where the catheads were located (Tr. 73-77).

Randy Sutherland, testified that he is a certified first class mine foreman and was a certified electrician when the citations were issued by inspector Ratliff, and since 2005 has served as an outby foreman performing maintenance of the belt lines, preshifting, and changing rollers. When he served as a certified electrician he had occasion to plug and unplug catheads similar to the one cited in this case. During belt maintenance, he de-energized the belt power systems that contain plugged-in catheads, and moved and locked them periodically (Tr. 100-103).

Mr. Sutherland confirmed that he traveled with Mr. Ratliff during his regular inspection and that he was served with both citations at 3:10 and 3:15, on the owl shift. He stated that he was familiar with the cited catheads and has plugged and unplugged them when there is a power move as the section is advancing. The Cogar Feeder was the only feeder that was in use on the production belt line at that time. The Stamler Feeder was a spare one that was available if something happened to the cogar (Tr. 105-107).

Mr. Sutherland stated that the Stamler Feeder was located on the left side of the power box looking inby toward the working faces, and it was “powered up.” He explained that there are more power breakers where the majority of the catheads plug in on the right side where they are located in order to provide wider travelways, and that there was approximately six feet of walking space between the power center and coal rib on the right side where most of the miners travel. He confirmed that both of the catheads were plugged into the left side of the power box, and the cables from the power box to the feeders were lying on the ground at the left rib location going inby, looking toward the face (Tr. 108-112).

Mr. Sutherland explained and demonstrated that after de-energizing the Stamler Feeder Cathead, Mr. Ratliff “just lifted it up, and that’s the only way it will come out.” He confirmed that Mr. Ratliff made no attempt to grab the cathead without lifting it up and pulling it to the right and to the left. He stated that based on his experience with the catheads, one could not have been moved to the right or to the left without being lifted first and disconnected, and he has never seen one disconnected to the right or left without first being lifted up. After it is lifted up, it can be moved right or left (Tr. 116-117).

Mr. Sutherland stated that an electrician would be the only one on the left side of the power box where the cathead cables are plugged for trouble shooting any feeder or continuous miner problems that are powered at that location. No other equipment was plugged in at that time, and the shuttle cars are plugged in at the opposite right side of the catheads in question (Tr. 119).

Mr. Sutherland stated that the section seam height was 44 inches and no one was able to walk straight up. He stated that he used kneepads and that he and Mr. Ratliff crawled and “duck walked” while bent over, and that the miners around these power centers got around by similar methods. An electrician who came into the feeder areas to plug in or unplug the catheads would have to crawl into the space in order to do so (Tr. 121).

Mr. Sutherland believed that in the event the lower cathead latch was unlatched it would not come out and be disconnected if it was hit from the left or right, because of a latch at the top that is secured by a steel bar demonstrated in photographic Exhibits R-10 and R-l 1 (Tr. 121-122).

Mr. Sutherland stated that both of the catheads were not latched down before Mr. Ratliff cited them and he could not recall anyone making any adjustments to the latches. He stated that he re-energized the breakers after Mr. Ratliff checked them and latched both of the catheads with the bottom latches, and he never used any channel locks to bend either of the latches. He stated that electrician, Mike Clevenger was present while he set the breakers, pushed the latches and closed them, and neither he nor Mr. Clevenger made any adjustments to the bottom latches in any manner. He further stated that the citations were abated when he latched both catheads down (Tr. 122-126).

On cross-examination, Mr. Sutherland stated that the purpose of a latching system is to prevent the cathead from being pulled out, and he did not believe there was any danger in pulling a cathead out under a load because it cannot cause an arc and he has never seen this happen (Tr. 131).

In response to bench questions, Mr. Sutherland stated that it would be stupid for anyone to pull out an energized cathead, and that if it were not latched, anyone could inadvertently pull it out without first de-energizing it. However, he explained that the cathead monitoring system will de-energize it if anyone pulled it out, and that if anyone tripped over a cable and it came out, the cathead would be disconnected and de-energized (Tr. 131-132).

Eddie Taylor, maintenance superintendent at the time Citations 8171200 and 8177206 were issued, testified that the cathead and receptacle used for courtroom demonstration were the same type as the one on the feeder box and he explained the circuits, ground monitors, and the cathead connection procedures (Tr. 138-142).

Mr. Taylor stated that the term “cathead” is a slang term for a male receptacle plug (Tr. 139). Utilizing the demonstration cathead, he stated that it has two latching mechanism devices consisting of a solid steel bar at the top, and a latching device at the bottom and he demonstrated how they operate to secure the cathead after the plugs and receptacle are mated. He explained that the cathead has to be raised up and slid under the top bar and then pushed down and engaged into the bottom spring loaded latch that was cited by the inspector (Tr. 143-144).

Mr. Taylor stated that one purpose of the top steel bar is to provide leverage to facilitate the mating of the receptacle plugs, and that a second purpose is to “make the latching mechanism at the bottom work properly” (Tr. 145). He stated that the bottom latch alone would not sufficiently latch the receptacle without the top bar, and that the bottom latch “first locks it in place where it cannot move” (Tr. 145).

Mr. Taylor explained that the first step for unplugging the cathead is to de-energize the power and release the bottom latch by pulling it up to clear the bottom ground monitor pins, which are unplugged as the receptacle is raised. As it is raised, the ground monitor pins are pulled out and the receptacle power is de-energized (Tr. 146-147).

Mr. Taylor did not believe it was possible to unplug the cathead from the receptacle by kicking the power cable lying on the ground as long as the steel bar is securely in place by the meshing of the lugs and latches that hold it tightly in place. In the event the cable plug was to “kick out,” the ground monitor would de-energize the power. He confirmed that the ground monitoring system is inspected by an electrical inspector weekly pursuant to Virginia state law and monthly by MSHA (Tr. 149-150).

MSHA Inspector William Ratliff testified that he issued Citation No. 8171198, for a violation of mandatory safety standard Section 75.503, after finding that the insulator of the scoop battery receptacle was missing. The insulator is located on the inside of the receptacle and is intended to prevent the positive and negative parts of the battery from touching and causing “extreme arc and fire.” The cited standard requires equipment to be maintained in a permissible condition (Ex. P-8; Tr. 157-159).

Mr. Ratliff stated that electrician David Smith and section foreman Terry Stiltner traveled with him and after pointing out the missing insulator to Mr. Smith, he did not disagree. Mr. Ratliff believed the missing insulator presented an electrical shock or burn hazard, and he stated this in his notes (Ex. P-9). He also believed it was reasonably likely that this would occur if anyone unplugging the battery came in contact with the negative and positive conductors without an insulator (Tr. 159-161).

Mr. Ratliff believed the cited condition would have existed for at least one week because it takes an extended period of time to damage an insulator, and a weekly examination would have detected the condition because once the battery plugs are removed from the receptacle anyone could observe the insulator inside the receptacle. He confirmed that the citation was terminated after the receptacle was replaced (Tr. 164).

On cross-examination, Mr. Ratliff stated that his notes reflected that the missing insulator was located at the left side of the scoop operator’s position, and he identified photograph Exhibit R-13, as the same type of receptacle that he cited and pointed out the location of the missing insulator (Tr. 165-169).

Mr. Ratliff stated that the insulator “had been damaged to the point that it was missing.” When asked to explain the type of damage, he replied, “I did not see an insulator.” He confirmed he never performed any electrical work on a scoop battery insulator, receptacle, or plugs (Tr. 170-171).

Mr. Ratliff confirmed that his experience as a mechanic did not include performing any electrical work and that his belief that an insulator prevents the negative and positive portions of the insulator from coming together is based on his mechanical experience. Although his notes reflect that the insulator was missing and damaged, he assumed that it was missing because it may be damaged (Tr. 171-173). Referring to photographic Exhibit R-13, of the receptacle, Mr. Ratliff identified the negative as the outer portion, or far ring surrounding the insulator, and the positive as the smaller inside ring (Tr. 174).

Mr. Ratliff stated that his notes reflect that the cited condition existed for more than one day, and he based his conclusion on his experience as a scoop operator. His notes do not reflect that he reviewed the permissibility records. Also, he did not know when the last scoop permissibility examination was conducted. He confirmed that he terminated the citation four days after he issued it during his next inspection (Tr. 182-184). He stated that the scoop receptacle was removed and replaced and he was not present when this was done. He confirmed that when he inspected the scoop, it was parked and the power circuit breaker was taken out by the scoop operator (Tr. 188-189).

Electrician David Smith testified that citation No. 8171198 was served on him by Inspector Ratliff. He stated that Mr. Ratliff informed him that the insulator for the 482 scoop battery receptacle was missing from the brass connector inside the receptacle. The scoop was used on the day shift, but it was idle and parked with the pump motor shut off when it was inspected. However, the scoop was energized because the breaker was on (Tr. 199-201).

Mr. Smith confirmed that he was familiar with the scoop receptacle insulator and that after Mr. Ratliff informed him he would conduct a scoop permissibility inspection, he decided to take company electricians, Eugene Keene and Earl Steel, with them. After the catheads were disconnected, Mr. Ratliff looked into the scoop battery receptacle area with his flash light and informed him that the insulator was broken (Tr. 203-204).

Mr. Smith stated that he instructed Mr. Keene to replace the receptacle and to bring the one cited by Mr. Ratliff to the surface. Mr. Smith identified Exhibit R-13, as a photograph of the cited receptacle that was removed from the scoop and he confirmed that the receptacle used for demonstration purposes at the hearing was the same one shown in the photograph. He identified it because of its damaged dust covered bell cap (Tr. 208-209).

Mr. Smith identified a statement signed by Mr. Keene and Mr. Steele on February 28, 2010, stating that the receptacle that they removed from the cited scoop, after a replacement was installed, did not have a missing insulator (Ex. R-l 5). Mr. Smith stated that he prepared the statement because the insulator was not broken or missing and he intended to contest the violation. After viewing photographic Exhibit R-l 3, petitioner’s counsel agreed that the insulator was not missing (Tr. 210-216).

Eddie Taylor testified that he was the Paw-Paw mine maintenance superintendent when Citation No. 8171198 was issued. He was familiar with the cited 482 scoop and has performed work on battery receptacles. He identified photographic Exhibit R-l4, as a mating plug for the scoop receptacle and he explained the orientation of the plugs, their functions, and the connection process (Tr. 221-226).

Referring to the photographic exhibit and the inside of the receptacle, Mr. Taylor identified three circular rings. He stated that the outer ring is the positive plate, the inside ring is the negative potential, and the “brownish area” between the two as the insulator between the positive and negative potentials (Tr. 226). He stated that Mr. Ratliff’s identification of the insulator outer ring as the negative polarity is erroneous. He explained that the inner ring is the negative, the outer ring is the positive, and that the insulator protects the two polarities from coming together (Tr. 228-229).

Mr. Taylor stated that the insulator is held in place by a resin compound that provides additional insulation and that it cannot be removed intact unless it was damaged. Based on his electrician and maintenance experience, he has never seen any insulator plugs come completely out or missing. Although he was not present when the cited receptacle was removed, it was his opinion that the receptacle, he examined at the hearing, was permissible and serviceable (Tr. 231-232).

On cross-examination, Mr. Taylor stated that an insulator is intended to prevent the scoop from shorting out in the event of an arc if the negative and positive polarities came together. He confirmed that the receptacle has no identifying part or serial number associated with any particular scoop (Tr. 233-234).

On re-direct examination, Mr. Taylor stated that he was aware of arcing caused by poorly connected receptacle plugs, but was unaware of a broken insulator creating an arc. He observed no evidence of any arcing on the receptacle in question, and if the insulator was missing, it would be highly unlikely that the male and female plugs could create enough of an arc to create a burn hazard (Tr. 236).

MSHA Inspector Donald Hale testified that he has 29 years of mining experience and has served as an inspector for four years. He confirmed that he issued Citation No. 8167700 on February 25, 2010, after arriving at the mine and reviewing the mine record books on the surface and finding no record entry that the required preshift examination for Mr. Prater’s section had been called out or recorded in the books (Tr. 240-245).

Mr. Hale stated that the preshift inspection should have been made between 8:00 p.m. and 11:00 p.m., three hours before the scheduled shift. The surface crew informed him that the inspection had not been called out and needed to be reported before 11:00 p.m., before the incoming owl shift was prepared to go underground. Mr. Hale stated that the surface person, responsible for receiving and recording the called out inspection, confirmed that it had not been done (Tr. 147-249).

Mr. Hale stated that the owl shift had not gone underground and that part of the second shift worked more than eight hours and was still underground. Mr. Hale explained that since the preshift for that crew had to be done before the end of their shift, and because they worked one hour over the eight-hour interval at 11:00 p.m., that the shift had to be preshifted. He stated that he held the incoming owl shift on the surface until all of the required examinations were completed (Tr. 250).

Mr. Hale stated that the violation was not significant or substantial because the failure to conduct and record the pre-shift inspection was unlikely to cause an injury or illness. He determined that the violation was the result of high negligence because Mr. Prater knew that the preshift inspection had to be made and he failed to do so. Mr. Hale stated that he terminated the violation the following day after the second shift and owl shift examiners completed their required pre-shift examinations (Tr. 250-251).

Mr. Hale stated that he discussed the matter with Mr. Prater after he came to the surface on February 25, 2011, and informed him that he would issue a violation and serve it on him at that time. Mr. Hale stated that Mr. Prater informed him that he did not have time to conduct the preshift examination, stated “you caught me,” and offered no other excuses. Mr. Hale stated that 15 miners were underground even though the pre-shift inspection had not been made (Tr. 252-254).

On cross-examination, Mr. Hale discussed his note taking procedures, but failed to explain why he prevented the owl shift from going underground, and keeping them on the surface until the required inspections were made. Also, he failed to reference discussions with mine management regarding prior citations. (Tr. 256-261).

Mr. Hale confirmed that Mr. Prater conducted a preshift examination on his section. He explained that Mr. Prater was also obligated and required to conduct a preshift examination of the areas on his section where miners work or travel and that he was responsible to preshift the area from the mine face area all the way to the surface because he was the foreman in charge (Tr. 261-263).

Mr. Hale confirmed that it was standard mine practice to have someone preshift the outby areas, but it was different in this case because no one was available to inspect the outby areas and Mr. Prater should have been aware of this. He conceded that Mr. Prater may not have been aware that no one else was available (Tr. 264).

Mr. Hale explained that if Mr. Prater completed his preshift examination, the remaining areas to preshift would be the travelway and the belt lines, areas normally done by someone in an outby area. He confirmed that Mr. Prater conducted his examination as he was bringing his men off the section and he believed that his examination was complete and adequate and he did not cite him for an inadequate preshift examination (Tr. 265).

David Jackson testified that he is a certified mine foreman and served as the third shift crew boss on the evening the citation was issued. He stated that he arrived at the mine at approximately 10:30 p.m., to prepare to go underground. He informed his crew at the time that they could not go underground because the outby areas had not been completed (Tr. 305).

Mr. Jackson stated that shortly after 11:00 p.m. he observed Mr. Prater coming to the surface, but did not speak to him and had no conversations with him prior to that time. Mr. Jackson confirmed that he completed his preshift examination at 12:30 a.m., and called it out to outside person Sam Campton. The area he examined was safe and clear, and the area examined by Mr. Ramsey was also reported (Tr. 309-312).

Citations 8171200 and 8171201, relate to two catheads (plugs) that were unlatched in violation of 30 C.F.R. § 75.512. The cited regulatory standard states as follows:

All electric equipment shall be frequently examined, tested, and properly maintained by a qualified person to assure safe operating conditions. When a potentially dangerous condition is found on electric equipment, such equipment shall be removed from service until such condition is corrected. A record of such examinations shall be kept and made available to an authorized representative of the Secretary and to the miners in such mine.

The petitioner argues that the cited Stamler Feeder Cathead was not latched to prevent it from coming apart while under a load because the latch was worn. With respect to the Cogar Feeder Cathead, the petitioner asserts that it was not latched down and could be decoupled sideways while energized because the latch was worn and bent and would not catch on the cathead.

The respondent concedes that the two cited unlatched equipment catheads violated Section 75.512. Under the circumstances, the violations ARE AFFIRMED. However, the respondent denies that the cited conditions were S&S.

An S&S violation is described in Section 104(d)(1) of the Mine Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 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 that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard that is, a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); See also, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y, 861 F.2d 99, 103-104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(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., Inc., 6 FMSHRC 1866, 1868 (August 1984); US Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-1575 (Jury 1984).

This evaluation is made in terms of “continued normal mining operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial must be based on the particular facts surrounding the violation. Texasguff, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

The respondent concedes that the bottom latches on both cited catheads were not fully latched down and secured. I conclude and find they were not properly maintained as required by Section 75212, and the fact of violation satisfies the first prong of the Mathies test.

With respect to the second Mathies prong requiring a discrete safety hazard contributed to by the violation, I conclude and find that the unexpected pulling out of a cable cathead under load while it is energized and not fully and securely latched down by the latching mechanisms, intended for that purpose by a person tripping over the cable, presented a discrete electrical safety hazard. I also find that the cited conditions existed for one day in one case, and less then one day in the other case, and that both violations were abated and terminated within 15 minutes in each case.

The third and fourth Mathies prongs require a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury, and a reasonable likelihood that the injury will be of a reasonably serious nature. The focus of the inspector’s concern was that someone on the travelway would trip over the cathead cable causing it to disconnect from the power receptacle under load and exposing someone in the proximity of the cathead power source to electrical shock or burn hazards. He issued no tripping hazard citation.

The inspector testified that the catheads extended 3 feet and 3 ½ feet into the travelway (Tr. 69). Although he could not recall the height of the coal seam, I credit the testimony of Mr. Sutherland, that it was approximately 44 inches. They both confirmed that no one could walk the area standing erect, and the inspector confirmed that he spent most of his time bent over and “duck walking” (Tr. 72-73). Mr. Sutherland testified credibly that he had to crawl and use knee pads in that area and that an electrician would be crawling on his hands and knees to access the cathead circuit breakers (Tr. 120-121).

Given the low coal seam height where the cable catheads were located, and the credible testimony establishing that anyone in the travelway would be crawling or “duck walking”, I conclude and find that it was highly unlikely and improbable that anyone in that position would trip over the cable with such force as someone walking upright and in full stride, so as to disconnect a rather large and heavy cathead, as demonstrated in the court room, from its power receptacle and contribute to any hazard exposure.

The inspector’s citations reflect that one person would be exposed to the hazard, and he identified that person as the one tripping over the cable (Tr. 20-21, 24). He confirmed that anyone would have to be near, or next to, the catheads when they disconnected, and that anyone three feet away who may trip and disconnect the cable would not be exposed to any hazard (Tr. 79).

There is a dispute as to whether or not the completely unlatched cathead latches would readily result in a disconnection if they were dislodged side-to-side by anyone tripping over the cable. The inspector, who is not an electrician, believed that the correct procedure to disconnect the cathead after it is de-energized, is to lift it straight up, rather than down, so that the circuit breaker monitor lead can come out (Tr. 51).

Mine foreman electrician Sutherland and maintenance superintendent Taylor believed that the catheads were secured at the top by a steel bar holding the top latch in place (Tr. 121-122). They believed the catheads had to be lifted upward in order to disconnect them and de-energize the circuits. Mr. Sutherland testified that after de-energizing the cathead, the inspector had to first lift it up and out, and made no attempt to move it from right to left, and Mr. Sutherland has never, in his experience, observed a cathead disconnected to the right or left without first lifting it up (Tr. 116-117).

I credit the testimony of Mr. Taylor and Mr. Sutherland that in order for a heavy cathead that is latched only at the top with a steel bar that holds it securely in place to be disconnected, it must be pulled directly out and upward, similar to the procedure described by the inspector when he disconnected the cathead after he de-energized it by lifting it up, and apparently made no attempt to freely move it from side-to-side, with the unlatched bottom latch to confirm that it could be done. On the facts of this case, and based on my findings and conclusions concerning the prevailing conditions, I conclude and find that it was highly unlikely the catheads could have been readily dislodged from side to side by anyone tripping over a cable.

With regard to the likelihood of any serious injury exposure, the inspector agreed that a disconnected de-energized cable and cathead lying on the ground would be inert and not energized under load, and would not present an electrical hazard to anyone (Tr. 22, 79). Although the cable may present a tripping hazard, he did not issue any tripping citation.

The inspector speculated that anyone “could be close, could be a distance” to the cathead power source (Tr. 97). Although he testified that electricians or equipment operators resetting circuit breakers would be in the area, he conceded that the cathead feeder circuits were located at an opposite side area and that an electrician would be the only likely person there, and he did not know how close anyone would be to the cathead power source if anyone were to trip over the cable (Tr. 96-97).

I find no credible evidence establishing that anyone was close to or would have been close to the cathead power sources and exposed to any injury in the unlikely event the catheads were unexpectedly disconnected by the unlikely tripping event. I find it unlikely that the one person who would be at the cable in the travelway, and who may have caused the cathead disconnections, would at the same time be the person exposed to any hazard or injury.

After careful consideration of all of the arguments and evidence presented in this case, I cannot conclude that the third and fourth prongs required by the Mathies test have been established by a preponderance of the credible evidence. In view of the prevailing conditions when the inspector observed the unlatched catheads and in the context of continuing mining operations, I find it highly unlikely and improbable that the partially unlatched catheads would have contributed to, or resulted in, any injury of a reasonably serious nature. I find no credible evidence of the presence of any confluence of factors that could have come together and resulted in any serious injuries. Accordingly, the significant and substantial (S&S) violations ARE MODIFIED to non-significant and substantial (Non-S&S) violations.

The inspector determined that both citations were the result of moderate negligence because an electrician was the person who plugged and unplugged the catheads when they worked on them and he was responsible for inspecting them on a weekly basis (Tr. 32-33).

The inspector confirmed that the unlatched condition on both catheads had existed for one day or less, but nonetheless believed that the electrician should have known about the conditions (Tr. 33). Although he could not recall when the last weekly examination was done or how long the conditions had existed unnoticed, given the condition of the latches, I find it improbable that they occurred right before the inspector issued the violations. Accordingly, in the absence of any considerable mitigating circumstances warranting the reduction of the inspector’s negligence determinations from moderate to low, I agree with his determinations that the respondent knew or should have known about the violative conditions and his moderate negligence findings ARE AFFIRMED.

This citation concerns an alleged violation of mandatory permissibility safety standard 30 C.F.R. § 75.503, which states as follows:

The operator of each coal mine shall maintain in permissible condition all electric face equipment required by Sections 75.500, 75.501, 75.504 to be permissible which is taken into or used inby the last open crosscut of any such mine.

The petitioner argues that the citation is supportable because the inspector discovered a missing insulator inside the cited scoop battery receptacle which would allow the battery plug to contact the power lead (contact between positive and negative terminals), creating a hazard of extreme arcing resulting in shock or burn injuries.

The respondent maintains that the conditions cited by the inspector in support of the citation did not exist, and that the petitioner has failed to prove a violation. Respondent asserts that the cited battery receptacle was in permissible condition, and assuming that a violation is established, Respondent concludes that it was not S&S.

The respondent relies on the fact that three electricians, David Smith, Eugene Keene, and Earl Steele, observed the receptacle and its insulator at the time it was cited by the inspector and concluded that the insulator was intact and not missing. Mr. Smith felt strongly that the insulation was not missing and instructed Mr. Keene and Mr. Steele to replace the receptacle in order to terminate the violation and to retain the cited one and bring it to his office.

A photograph of the cited receptacle that was removed and given to Mr. Smith (Ex. R-13), as well as the actual receptacle, was produced at the hearing and was authenticated by Mr. Smith (Tr. 208-211). A February 28, 2010, statement signed by Mr. Keene and Mr. Steele and given to Mr. Smith confirming that the cited receptacle they removed and brought to the surface was the one they replaced for the inspector and that the insulator was not missing was received in evidence over the hearsay objection of petitioner’s counsel (Tr. 211). I re-affirm my bench ruling accepting the statement as relevant evidence, noting that hearsay is acceptable pursuant to the Commission’s rules. Further, I take note of the fact that after viewing the photograph of the cited receptacle, Petitioner’s counsel agreed that the insulator was not missing (Tr. 216).

The respondent asserts that the inspector’s testimony should be viewed by considering his lack of experience with electrical components reflected by his misidentification of the location of the insulator’s positive and negative components, and by reversing the actual polarity during his explanatory testimony concerning the function of the insulator (Tr. 175, 224-228).

The inspector’s citation, on its face, states that the receptacle insulator was missing. His inspection notes, in relative part, states that the insulator was missing and damaged (Ex. G-9 at 5-6). The inspector testified that the insulator was “damaged to the point that it was missing”, that he “did not see an insulator”, and in explaining his contradictory notes that the insulator was missing and damaged, he stated that he assumed that it was missing because it may be damaged (Tr. 171-173). He confirmed that he did not review the permissibility records, did not know when the last permissibility examination was conducted and conceded that he never performed any electrical work on a scoop battery receptacle or insulator (Tr. 170-171).

After careful consideration of all of the testimony and evidence adduced with respect to this citation, I conclude and find that the petitioner has failed to establish by a preponderance of the credible evidence that the cited scoop was not maintained in permissible condition in violation of Section 75.503, because of the alleged missing battery receptacle insulator.

I conclude and find that the inspector’s testimony in support of his contention that the insulator was missing to be contradictory, particularly in light of his equivocal testimony that it was either damaged or may have been damaged, and his contradictory notes that it was missing as well as damaged. I find no credible evidence to support either conclusion regarding the condition of the insulator.

I find that the inspector’s lack of electrical expertise, as demonstrated by his mistaken identification and explanation of the critical components of the insulator, is less than credible than the testimony of maintenance superintendent, Eddie Taylor, whose testimony regarding the correct insulator polarity and electrical expertise, and his observation and conclusion that the receptacle he observed at the hearing was permissible and serviceable (Tr. 231-232).

I am further persuaded by the consistent and credible testimony of Mr. Smith regarding the condition of the insulator and his credible efforts in securing the chain of custody with respect to the cited receptacle to support what he believed was an invalid citation, as well as the petitioner’s counsel’s agreement during the hearing that the receptacle insulator was not missing.

During his cross-examination of Mr. Eddie Taylor, Petitioner’s counsel inferred that the lack of any insulator identification markings cannot establish any direct connection with any particular scoop (Tr. 233). Mr. Taylor agreed, and explained that an insulator usually has a part number, but is not serialized, and he can actually examine it (Tr. 233-234). Counsel did not pursue the question further.

I conclude and find that the absence of any insulator identification markings does not ipso facto rebut the respondent’s credible evidence that the receptacle cited by the inspector, with the insulator intact, was the same one produced at the hearing.

Based on all of the aforementioned findings and conclusions, Citation No. 8171198, IS VACATED, and the proposed civil penalty assessment IS DENIED.

Citation No. 8167700, concerns the failure of the section foreman to conduct the required preshift examination as required by 30 C.F.R. § 75.360(a)(l), which requires that it be made within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground.

In addition to their post-hearing briefs, counsels for the parties presented oral arguments on the record with respect to this citation (Tr. 280-301). Respondent conceded that the failure of section foreman, Danny Prater to complete the required preshift examination until an hour and thirty-five minutes after it was required to be completed, constituted a violation of 30 C.F.R. § 75.360(a)(l). See also, (Resp’t Post-hearing Br. at 29).

The focus of the respondent’s contest is on the inspector’s “high” negligence finding and his failure to consider any mitigating circumstances. In support of its request to reduce the negligence level of the non-S&S citation from high to low, Respondent cites the language found in the petitioner’s civil penalty assessment criteria found at 30 C.F.R. § 100.3, Table X, where the justification for a high negligence finding is based on the fact that “the operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances” (emphasis supplied). Respondent further relies on the language found at 30 C.F.R. § 100.3(d), which states that mitigating circumstances “may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.”

Respondent asserts that the most important circumstance in this case is crew chief David Jackson’s decision to order his men not to go underground and to remain on the surface until he completed his preshift examination, and that he did so in order to protect his crew from any possible hazardous conditions. Respondent concludes that Mr. Jackson’s action serves as a mitigating circumstance justifying a reduced negligence finding.

Respondent further points out that section foreman, Prater completed his preshift examination on the way out of the mine in order to ensure safe passage for his crew while returning to the surface, while at the same time, Mr. Jackson and his electrician were heading into the mine to examine the remaining areas. Since mine personnel were made aware of a possible violation and worked promptly to fix the problem, Respondent concludes that these actions should also be considered a mitigating circumstance (Tr. 288-297; Resp’t Post-hearing Br. at 29).

The petitioner acknowledges the fact that the respondent has conceded the fact of a violation which resulted from section foreman Prater’s failure to timely complete his preshift examination, and that the inspector’s examination of the mine records establishes that the required preshift was not completed and reported as required.

Petitioner’s counsel argued that while it is true that Mr. Jackson’s crew was on the surface preparing to go underground and were prevented from doing so, foreman Prater’s 15-man crew was still underground and exposed to an area that had not been preshifted. Counsel agreed that even though Mr. Prater conducted an examination as he traveled to the surface, the fact remains that his crew worked for approximately two hours beyond 11:00 p.m., without being preshifted (Tr. 283-286).

Petitioner’s counsel further argued that Mr. Prater’s efforts to protect his crew by conducting an examination on his way out of the mine to the surface, in advance of his crew coming out, is totally unconnected to the fact that the violation was issued for his failure to preshift the section when that citation was issued (Tr. 299-300).

The inspector believed that a mitigating circumstance for the failure of Mr. Prater to conduct his examination ‘‘would be a reasonable excuse for not doing so” when the violation actually occurred. He did not believe the actions by Mr. Prater and Mr. Jackson mitigated the violation because the circumstances prompting the issuance of the violation concerned Mr. Prater’s crew that was still underground when the required preshift examination was in fact not made (Tr. 301).

I take note of the inspector’s credible and unrebutted testimony that when he discussed the matter with Mr. Prater after he exited the mine, Mr. Prater admitted that he did not complete his examination and stated “I have not had time to get it completed,” and that “you caught me,” and that no further excuses were offered (Tr. 252-253).

After careful consideration of the arguments advanced by the parties, I conclude and find the petitioner has the better part of the argument and the respondent’s position is rejected. The respondent’s reliance on the petitioner’s civil penalty assessment formula and guidelines, found in Part 100, of Title 30, Code of Federal Regulations, proposing recommended penalty assessments do not control a judge’s discretion after hearing a case de novo, and rendering a decision on the merits.

I accept the petitioner’s arguments that the mitigating circumstances suggested by the respondent are not related to the violative conditions that prevailed at the time of the initial inspection that prompted the inspector to issue the citation. I reject the respondent’s arguments that the actions of Mr. Jackson and Mr. Prater, after-the-fact with respect to their efforts to insure the safety of the miners preparing to enter and leave the mine, are acceptable and reasonable mitigating circumstances warranting a lower negligence finding.

The fact remains that 15 members of Mr. Prater’s crew were still underground when the initial preshift examination was not completed and Mr. Prater’s actions, after-the-fact, to complete the examination on his way out of the mine, well after the time that it should have been completed, were expected or required, and should not excuse or reward him for his failure to complete the required preshift, particularly in view of his admissions that he had no time to complete the examination. With regard to Mr. Jackson, while one can expect nothing less from a responsible crew chief, I cannot conclude that it mitigates the negligence of the foreman responsible for the initial violative condition.

Based on the foregoing, the citation IS AFFIRMED. Further, the respondent’s request to lower the negligence IS DENIED, and the high negligence determination by the inspector IS AFFIRMED. The inspector’s non-S&S determination, which is not contested, IS AFFIRMED.

The petitioner presented no additional information regarding the respondent’s history of prior violations other than Exhibit A attached to its petition for assessment of civil penalties which reflects seven prior citations of 30 C.F.R. § 75.512, and no prior violations of 30 C.F.R. 30 § 75.360(a)(l). However, no further information was presented with respect to the violations, and I cannot conclude that the respondent’s violation history warrants any additional increases in the penalties that are assessed for the violations that have been affirmed.

The parties stipulated that the respondent timely contested the violations, and I conclude and find that it abated the cited conditions in good faith.

Citations Nos. 8171200, 817201, and 8167700, have been affirmed as non-S&S citations, and I consider them to be non-serious violations.

Based on the aforesaid findings and conclusions, Citation Nos. 8172200 and 8171201, were the result of moderate negligence by the respondent (Docket No. VA 2010-367). Citation No. 8167700 was the result of high negligence by the respondent (Docket No. VA-2010-368).

Size of Business and Effect of Civil Penalty Assessments on the Respondent’s Ability to Remain in Business

Based on the stipulated mine production of approximately 187,780 tons of coal in 2009, and 185,016 tons in 2010, I conclude and find that the respondent is a small operator. The parties stipulated that payment of the proposed civil penalty assessments will not adversely affect the respondent’s ability to remain in business.

The parties filed a motion for approval of a proposed settlement of the following two remaining Section 104(a) S&S violations and one non-S&S violation in this docket.

Citation No.	30 C.F.R. Section	Assessment	Settlement
8171430	75.1103-1(b)	$745.00	$334.00
8171205	75.410(a)(1)	$3,405.00	$460.00
8171206	75.1606(a)	$3,405.00	$460.00
		Total Settlement $1,254.00

The parties filed a motion for approval of a proposed settlement of the following five remaining Section 104(a) S&S violations and one non-S&S violation in this docket.

Citation No.	30 C.F.R. Section	Assessment	Settlement
8167694	77.205	$1,203.00	$540.00
8167696	75.1103-1(b)	$634.00	$285.00
8167697	75.220(a)(1)	$1,412.00	$634.00
8167698	75.400	$1,530.00	$687.00
8173815	77.410(a)(1)	$362.00	$300.00
8173818	77.410(a)(1)	$807.00	$362.00
		Total Settlement $2,808.00

In support of the proposed settlements and amended civil penalty assessments, the petitioner recognizes there are legitimate factual and legal disputes with respect to the level of negligence and the severity of injuries associated with the alleged violations. The petitioner concludes that the settlement compromises are consistent with her enforcement responsibility, are in the public interest, and will further the intent and purpose of the Mine Act.

Upon consideration of the motions and supporting representations presented by the parties, I conclude and find that the petitioner has reviewed and considered the factual evidence surrounding the alleged violations, and has advanced reasonable mitigating circumstances in support of the proposed settlements, including the six statutory civil penalty criteria set forth in Section 110(i) of the Mine Act. Accordingly, I conclude and find that the proposed settlements are reasonable and in the public interest. The motions ARE GRANTED, and the settlements ARE APPROVED.

It is ORDERED that Citation No. 8171430, be MODIFIED to reduce the degree of negligence from moderate to low; that Citation Nos. 8171205 and 8171206 be MODIFIED to reduce the degree of negligence from moderate to low, and reduce the severity of injury from fatal to lost workdays/restricted duty. The respondent is ORDERED to pay a civil penalty assessment of $1,254.00, for these violations within thirty (30) days of the date of this decision (Docket No. VA 2010-367).

It is ORDERED that Citation Nos. 8167694, 8167696, 8167697, 8167698, and 8173818, be MODIFIED to reduce the degree of negligence from moderate to low. The respondent is ORDERED to pay a civil penalty assessment of $2,808.00, for these violations within thirty (30) days of the date of this decision (Docket No. VA 2010-368).

It is ORDERED that Citation Nos. 8172200 and 8171201, are AFFIRMED and MODIFIED to Section 104(a) non-S&S moderate negligence violations. The respondent is ORDERED to pay a civil penalty assessment of $500.00 for each violation ($1,000.00 total) within 30 days of the date of this decision (Docket No. VA 2010-367).

It is ORDERED that Section 104(a) S&S Citation No. 8171198, February 28, 2010, 30 C.F.R. § 75.503, is VACATED, and the proposed civil penalty assessment is DENIED (Docket No. VA 2010-367).

It is ORDERED that Citation No. 8167700 be AFFIRMED as issued as a Section 104(a) non-S&S high negligence violation. The respondent is ORDERED to pay a civil penalty assessment of $2,106.00 for this violation within 30 days of the date of this decision (Docket No. VA 2010-368).

The respondent is ORDERED to pay a total civil penalty assessment of $7,168.00, in satisfaction of all of the aforesaid violations issued in these matters. Payment shall be made within thirty (30) days of the date of this decision, and remitted by check made payable to U.S. Department of Labor/MSHA, P.O. Box 790390, St. Louis, MO 63179-0390. Upon receipt of payment, these matters are DISMISSED.

Robert R. Beatty, Jr., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, West Virginia, 26501

Brian D. Mauk, Trial Attorney, U. S. Department of Labor, Office of Solicitor, 211 7th Avenue North, Suite 420, Nashville, Tennessee 37219