FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

(202) 434-9900/Tel (202) 434-9949/Fax

April 30, 2013

DECISION

Appearances:  Cheryl E. Carroll, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington, Virginia, for the Petitioner.

                        Cameron S. Bell, Esq., PENN, STUART & ESKRIDGE, Abingdon, Virginia, for

                        the Respondent.

Before:            Judge Koutras

Statement of the Proceedings

            These consolidated civil penalty and contest 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 two Section 104(a) citations served on the Respondent on April 5, 2010, for alleged violations of mandatory safety standards 30 C.F.R. §§ 75.400, and 75.1731(b). Also at issue are two contested Section 104(b) orders issued for the alleged failure by the Respondent to timely abate the cited conditions.

            A hearing was held in Abingdon, Virginia, on March 27-28, 2012, 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.

            The parties stipulated in relevant part to the following (Ex. ALJ-1):

1.The Respondent's mine is covered by the Mine Act, and the Secretary has jurisdiction in these proceedings.

            2.    The Citations/Orders were duly served on the Respondent by the inspector on the dates indicated.

            3.    The Respondent is a large mine operator and the mine is considered a large mine for purposes of 30 U.S.C. § 820(I).

            4.    The maximum civil penalties that can be assessed for the violations will not adversely affect the Respondent's ability to remain in business.

            5.    The Respondent's history of violations for the 15 months preceding the issuance of the aforesaid violations is accurately reflected in Exhibit B attached to the stipulations.

            6.    The information contained in Exhibit A, attached to the Secretary's civil penalty petition, accurately reflects the Respondent's production tonnage and the production of Mine #35.

The Alleged Violations

            Section 104(a) non - S&S Citation No.8166773, issued at 11:30 a.m., on April 5, 2010, alleges a violation of 30 C.F.R. § 75.400, and states as follows (Ex. P-l):

            Float coal dust (black in color) has accumulated along the offside and in

            adjacent crosscuts along the No. 3 belt conveyor starting at the belt drive and

            extended in by to the tail piece. In addition, float coal dust has accumulated

            at spot locations on the travelway side starting at crosscut #82 and extending

            to the tail piece. Float coal dust and coal fines had accumulated between the

            two new constructed regulators along the No. 3 belt conveyor near stopping No.

            82. No methane was detected.

            The time for abatement was scheduled for 9:00 a.m., April 6, 2010. The Section 104(b), Withdrawal Order No. 8166778, applying to “the belt aircourse entry containing the No. 3 belt conveyors", was issued at 10:20 a.m., April 7, 2010, and it states as follows (Ex. P-5):

No apparent effort was made to eliminate the accumulation of float coal dust

            along the offside in the adjacent crosscuts along the No. 3 belt conveyor. When

            examined, float coal dust, black in color, was observed along the off side and in

            the adjacent crosscuts along the belt conveyor. The belt air course containing the

            No. 3 belt conveyor is hereby ordered withdrawn from service until the float coal

            dust is eliminated in the area and a MSHA inspector can examine the area.

            The Order was terminated on April 7, 2010 at 2232 hours, and the justification states, “The coal fines has (sic) been removed and a coat of rock dust has been applied to the affected area".

            Section 104(a) "S&S" Citation No. 8166774, issued at 11:30 a.m., on April 5, 2010, alleges a violation of 30 C.F.R. § 75.1731(b), and states as follows (Ex. P-3):

The No. 3 belt conveyor was not properly aligned and the belt was rubbing

against several belt roller hangers. A total of 14 bottom roller hangers were

            observed where the belt was rubbing and creating heat from friction. Two of

            the hangers were hot to the touch and the atmosphere in the area had a strong

            odor from the rubbing belt. This condition was located at crosscut 84 and

             extended outby between Crosscut 82 and 81. Float dust was present in the

             area and was cited in Citation #8166773.

            The time for abatement was scheduled for 6:00 p.m., April 5, 2010. The Section 104(b), withdrawal Order No. 8166777, applying to the No. 3 belt conveyor, was issued at 10:00 a.m., April 7, 2010, and it states as follows (Ex. P-4):

            No apparent effort was made to properly align the No. 3 conveyer belt. When

            examined, the belt continued to run back and forth and rub against various

bottom roller hangers. Several hangers were warm and hot to the touch from

            heat created by friction from the rubbing of the conveyor belt against the

            hangers. The No. 3 conveyor belt is ordered withdrawn from service until

            the conveyor belt is properly aligned and a MSHA inspector can observed

            the alignment.

            The Order was terminated on April 7, 2010, at 2220 hours, and the justification states "The No. 3 belt conveyor has been realigned, adjustments were made to several bottom belt hangers from crosscut #34 to crosscut #80,

Pretrial Motions

            The Respondent filed a Motion In Limine on March 21, 2012, a week before the hearing, based on information that Inspector Robinette placed a telephone call to the mine asking questions regarding the location of the #3 belt, without the knowledge or approval of counsel for the parties.

            The Respondent asserted that the inspector's contact with a mine operator, represented by counsel, about a pending matter, was improper and that any testimony he may offer as an "expert", including his opinions with respect to the reasonably likelihood of injury and “significant and substantial” finding associated with Citation Nos. 8166774 and 8166773, issued by Inspector Bobby Hall, should be excluded. Further, Respondent requested the exclusion of any information gained in the telephone conversation.

            The Secretary filed an opposition to the motion and stated that Mr. Robinette's telephone contact with the Respondent's mine was of his own volition and without the knowledge of the Secretary. Counsel for the Secretary stated that the call was made to learn the exact location of the belt drive, and that no testimony will be elicited about the substance of the call, and that the Secretary's hearing diagram will not contain information regarding the exact location of the belt drive. Counsel stated that the call was a “minor incident" and caused no harm or prejudice to the Respondent.

            The Secretary opposed the exclusion of the inspector's testimony regarding the "S&S" issues associated with the citations and stated that the inspectors were qualified to apply the

“S&S” elements enunciated by the Commission in Mathies Coal Company. 6 FMSHRC 1 (January 1984, and Cement Div.- Nat'l Gypsum Co.,3 FMSHRC 822, 825 (Apr. 1981).

            The Secretary took the position that she does not need to establish that a mine fire or explosion was reasonably likely to occur at the time the cited conditions were observed by the inspectors in order to prevail on the “S&S" issue.

Motion to Amend Citations

            On March 20, 2012, one week before the hearing, the Secretary filed a Motion to Amend Citation No. 8166773, to reflect modifications to Block 10(A) from unlikely to reasonably likely; Block 10(B) from lost workdays or restricted duty to fatal; and Block 10(c) to significant and substantial (S&S). The original citation, as issued by the inspector, designated the violation as non -S&S, moderate negligence, and lost workdays or restricted duty.

            In support of the proposed amendments, the Secretary stated that “after depositions in this case, it became clear that the facts support the proposed amended S&S designation for

Citation No. 8166773". The Secretary explained that the inspector designated the citation as

non-S&S because he found no heat source in the affected area, as recorded in his notes. However, in Citation No. 8166774, issued after No. 8166773, the inspector noted numerous heat sources that rendered the float coal dust cited in No. 8166773, an S&S violation, including the misaligned belt causing the belt to rub the roller hangers, and his notes that two wooden regulators over the No. 3 belt were in contact with the belt, causing frictional heat.

            The Secretary argued that the facts are sufficient to establish the violation as S&S under the Mathies Coal Co., supra, criteria. Similarly, the Secretary argued that the proposed amendment of Citation No. 8166774, from lost workdays as restricted duty to fatal, is supportable because the violation contributes to the same discrete safety hazard as Citation No. 8166773, namely, a mine fire or explosion, and would be of a reasonably serious nature, including death.

            The Secretary states that the proposed amendments are acceptable pursuant to Rule 15, Federal Rules of Civil Procedure, Fed. R. Civ. P. 15 (a), and comply with the Commission's decisions in Secretary of Labor v. Wyoming Fuel Company. 14 FMSHRC 1282 (1992), and Cyprus Empire Com. 12 FMSHRC 911, 916 (1990).

            The Secretary concluded that the proposed amendments would not result in any legal prejudice to the Respondent in that the amended citations will be based on the same facts initially alleged in those citations, and accompanying inspector's notes, as well as a relation Citation No. 8166775. Although S&S Citation 8166775 is not a part of these proceedings and has become a final order of the Commission, the Secretary noted that the two regulators cited in Citation No. 8166775, were the same regulators where float coal dust accumulations were observed by the inspector in Citation No. 8166773.

            Finally, the Secretary moved to amend the pleadings to propose higher penalties for Citation Nos. 8166773 and 8166774, based on the proposed modifications of the citations. The Secretary conceded that any final decision in this regard is dependent on the evidence presented at the hearing and that penalty assessments are made de novo by the presiding judge taking into account the civil penalty criteria found in Section 110(1) of the Mine Act.

            The Respondent filed an opposition to the motion to amend on March 20, 2012, and pointed out that the Secretary's request to increase the gravity and associated penalties comes almost two years after the citations were issued and one week before the hearing, and if granted would increase the initial proposed penalties by almost four-hundred percent (400%).

            The Respondent stated that the Secretary offered no explanation for the late proposed amendments other than "after depositions it became clear” that MSHA thought the enforcement should have been greater than was written, and that amendments should not be granted at any point in the litigation based on a mere assertion of no prejudice.

            The Respondent argued that leave to amend is properly denied when a party knows facts at the inception of the litigation and delays pleading the facts or claims based upon those facts, citing Wright, Miller, et al., 6 Federal Practice and Procedure 1488. as follows: "(b)y failing to introduce the matter contained in the proposed amendment at as early a stage in the litigation as possible, the pleader has demonstrated bad faith in not apprising the opponent of its true position in the action."

            Citing Gray v. St. Martin's Press. Inc., 221 F.3d 243, 253 (1^st Cir. 2000), the Respondent concluded that where the facts upon which the amendment is based have been known since the outset of the litigation and amendment is sought following discovery and close to trial, the amendment is properly denied. The Respondent further cited cases where an amendment was denied where the complaint had been filed two years previously and the proposed amendment could have been asserted at any time, Continental Bank. N.A. v. Meyer. 10 F. 3d 1293,1298 (7th Cir. 1993; and First Nat'l Bank v. Master Auto Service Corp., 693 F. 2d 308, 314 (4th Cir. 1982), where an amendment filed 19 days prior to trial based upon information the party had previously known or had access to was denied.

            The Respondent argued all of the facts relied on by the Secretary seeking the amendments were known by the experienced inspectors, and the Secretary cites the language of the citations themselves in support of her motion, and has offered no explanation for the delay or the proposed amount at the eleventh hour of these proceedings.

            The Respondent maintains that it will be prejudiced by the amendment to Citation 8166773 to S&S in that the Secretary now claims that the inspector relied upon conditions cited in a citation that is not the subject of this litigation, namely, Citation No. 8166775, issued by the inspector four hours after he issued Citations 8166773 and 8166774.

            In addition to being a new issue in this case, the Respondent concludes that the Secretary's argument begs the question of how the inspector could rely upon a condition in the citations at issue here (8166773 and 8166774) based upon a condition that he discovered four hours later when he wrote Citation No. 8166775. The Respondent concludes that these issues would require additional discovery and therefore would be prejudiced if the amendments are allowed. The Respondent concludes that the increase in the number of people affected and the severity of the injury were not investigated during discovery in this matter, and will prejudice its defense.

            The Respondent stated that when it did not accept the citations and orders and expressed its intention to proceed to hearing, the Secretary moved to amend to increase the penalties by almost $20,000 or 400% from what was written at the mine almost two years ago. Respondent points out that the Secretary's own argument shows that the amendment is not to serve the purposes of the Mine Act to protect miners (for citations and orders that have been abated for years and constitute the only B orders that this mine had ever received). Instead, purportedly based upon the identical facts that the inspector knew in 2010, two years later and a week before the hearing, MSHA suddenly has decided that both citations are S&S, fatal, and would affect nine people.

            The Respondent further notes that the inspectors involved in this matter are the head of the ventilation section and an inspector who had decades of mining experience. They are not new inspectors who might not have realized the gravity of a situation they perceived. Under the

circumstances, the Respondent asserts that the timing and the basis for this proposed amendment show that the true purpose of this amendment is to punish it for exercising its rights to contest these citations and orders, and to chill its challenge to the inspectors' citations and orders.

Bench Rulings

            Upon convening the hearing, the witnesses were sequestered and the parties presented oral arguments In Camera, and on the record, regarding the Respondent's Motion In Limine, (Tr. 10-19), and the Secretary's motion to amend the citations (Tr. 19-55). I have considered the written and oral arguments submitted by the parties with respect to my rulings on these issues.

            With respect to the Secretary's Motion In Limine, and Inspector Robinette's telephone contact with the Respondent's mine, the Secretary stated that he did so only to determine the location of the No. 3 belt drive in order to prepare a diagram in that the location could not be determined from a mine map and no other information relevant to the case was obtained (Tr. 11).

            Although the Respondent believed the Secretary would introduce the inspector as an expert witness, counsel for the Secretary stated that she would not offer the inspector as an expert, but only as a fact witness based on what he observed during the inspection and his years of experience in coal mining (Tr. 13). Under the circumstances, the Respondent's motion was DENIED. The inspector was not offered or accepted as expert and testified with respect to the conditions he observed during the inspections, including his opinions and conclusions with respect to those conditions.

            With regard to the Secretary's motion to amend the two citations, counsel confirmed that inspector Hall issued three citations in sequence on April 5, 2010, after he observed the conditions. The two contested citations reflect that they were issued at 11:30 a.m. A third citation that is not part of these proceedings reflects that it was issued at 3:00 p.m. as a Section 104(a) S&S Citation No. 8166775, citing a violation of 30 C.F.R. § 75.1731(a), for allowing materials that may contribute to a factional heating hazard to be in a belt conveyor entry (Tr. 22-24). The citation states as follows (Ex. P-12):

            Material in the form of wooden boards was observed on the sides and across

            the top on the belt conveyor at two locations on the No. 3 belt conveyor

            which contributed to a frictional heating hazard. This material had been used in

            the construction of ventilation controls located between crosscuts 82 and 81 in

            an attempt to reduce the air flow along the belt air course. The conveyor belt was

            not aligned properly and was rubbing the wood materials and the atmosphere

            smelled of an odor of smoldering wood. Float coal dust and coal fines were

             present in this area. The alignment and float coal dust were cited in Citations

            #8166774 and #8166773 respectively.

            The parties agreed that the actual issuance of the citations were made hours after the inspector initially observed the conditions and recorded them in his notes (Tr. 21-22). The Secretary's counsel confirmed that notwithstanding the fact that the inspector observed float coal

dust and the belt rubbing, the belt continued to run and was not shut down. Counsel stated that while the inspectors did not believe those conditions posed a fire danger, the conditions were significant and substantial in the context of continued mining operations and that "the two hot rollers would get even hotter, more rollers could get hot as well, and then that could escalate into something. But they did not think that the conditions immediately posed a fire danger" (Tr. 23).

            I take note of the fact that in the course of her arguments, counsel referred to "hot belt rollers" (Tr. 23). However, the conditions described in Citation No. 8166774, refer to roller hangers, and not the rollers. With regard the terms "wooden baffles" and “wooden regulators" referred to by the parties (Tr. 22-24), I find that the terms regulator and baffle are used interchangeably, and refer to an opening constructed in the belt system to regulate the flow of air while ventilating the mine.

            The Secretary's counsel stated that the "wooden baffles" observed by the inspectors were considered a heat source because they were "smoking very badly". However, they were immediately removed and the remaining rubbing belt itself did not pose any imminent danger (Tr. 23-24). The "baffles" referred to by the parties were the subject of Citation No. 8166775, and those cited conditions were observed well after the inspector's observations and issuance of the two contested citations. In this regard, I take note of the fact that the inspector did not use the term "baffle" or "regulator" in Citation No. 8166775. He described the materials cited as "wooden boards used in the construction of the ventilation controls".

            The parties agreed that the "new constructed regulators" referred to by the inspector in Citation No. 8166773, were the aforementioned wooden materials (Tr. 25). When asked to explain why the inspector did not include the materials used to construct those regulators, i.e., cinder block, or steel, counsel stated that the inspector's contemporary notes taken on April 5, 2010 (Ex. P-6), "clearly identified that the regulators were wooden" (Tr. 26). I have reviewed the notes and find that in reference to Citation No. 8166773, the inspector simply refers to "2 new constructed regulators near stopping #82", with no description of how it was constructed or the materials used (Ex. P-6, at 5).

            The inspector's notes related to Citation No. 8166775, do not refer to any "regulator" or "baffle", and describe "material in the form of wooden boards on the sides and across the top of the No. 3 belt at two locations". The inspector notes that the material was used in an attempt to reduce the belt air and that the belt was not properly aligned and rubbing the material "causing a smell or odor of smoldering wood" (Ex. P-6, at 7).

            The Secretary's counsel stated that written discovery was completed in these cases in August, 2011, and that depositions were taken on February 23, 2012 (Tr. 27). During a bench colloquy explaining the delay in seeking to amend the citation, counsel stated as follows at

(Tr. 35-36):

THE COURT: But what bothers me in these cases is two years later here we are

            with all this stuff that probably should have - let me ask you a question. The

            inspector goes in, and when he was writing the citations, did it ever dawn on

            him that wait a minute, here I am issuing a dust violation, where are the ignition

            sources?

MS. CARROLL: I think it should have dawned on him. I think he - in his notes

            he saw the dust first and then saw the heat sources and he should have

            recognized that those are in the same locations and he should have gone back

            at the time and modified the citation or his notes so that later, in a few hours

            when he typing the citation, that it accurately reflected the conditions.

I mean, the Secretary hasn't explained that. One of the reasons why I didn't

            move to make these amendments months ago was I was proceeding in this

            case with Supervisor Robinette because Inspector Bobby Hass had been retired.

            I had not contacted him at all about the case.

He was retired and I had another eyewitness to all of the citations and orders

            in this case. So my discovery, the verification is only signed by Lloyd Robinette.

            It contains only information I gleaned from him.

And, at (Tr. 36-37):

THE COURT: You have a supervisor inspector, one cut above the regular

            inspector, right? Did it ever dawn on him to seek an amendment, not

            immediately but at least six months later, a year later?

MS. CARROLL: No. He doesn't -I have spoken to him about that He says he

            does not instruct his inspectors what paper to write. He reviews their paper to

            ensure that whatever they've cited in their notes at least supports the minimum,

            but he doesn't make it a habit of telling them you need to make that stronger, you

            need to change this, you need to change that. They are the ones who saw it.

THE COURT: Well, they both observed the conditions.

            MS. CARROLL: Well, sure.

            The Secretary's counsel conceded that no written amended citations were issued, and took the position that the Respondent's counsel deposed the inspectors who discussed why they believed the facts as they saw them supported S&S findings for both citations. Counsel pointed out that the Respondent's counsel had an opportunity to inquire about any expected injuries but did not inquire further (Tr. 39-40). The depositions were not offered and are not a part of the record.

            Counsel further argued the proposed amendment does not prejudice the Respondent and is not based on new facts relied on by Inspector Hall when he issued the citations, and that the S&S designations are supportable by facts documented by the inspector in his notes (Tr. 50-51).

            Upon conclusion of oral arguments, the Secretary's motion to amend Citation No. 8166773 from non - S&S to S&S, was DENIED (Tr. 54). The motion to amend both citations to allege an increased gravity level of “fatal” was granted based on my conclusion that it was not a substantive change.

            The denial of the motion to amend was based on my bench findings that the Secretary had more than ample time prior to the hearing to amend the citation, but did not do so. I found that the passage of time, two years from the issuance of the citations, and the "eleventh hour" filing of the motion, a week before the hearing, constituted prejudicial surprise and untimely notice, and a lack of basic fairness. I further found that the untimely motion adversely effected and prejudiced the Respondent's right to timely contest the substantially increased Part 100 civil penalty assessments proposed by the Secretary (Tr. 53-55).

            I take note of the fact that although Citation No. 8166774, reflects that nine (9) persons were allegedly affected, Citation No. 8166773, reflects that one (1) person was affected, and the Secretary's motion to amend did not include any proposed change.

            Although Mr. Robinette testified that according to both inspectors notes, nine (9) miners were working inby the area (Tr. 212), my review of Inspector Hall's notes for April 5, 2010, as well as Mr. Robinette's notes (Ex. P-6 and P-7), do not reflect the number of miners in the area cited. Under the circumstances, I find that the number of people affected as one (1), on the face of the citation, stands as issued.

            The record reflects that Inspector Hall modified Citation No. 8166775 the next day to reflect a violation of 30 C.F.R.§ 1731(c), rather than 30 C.F.R. § 1800(c). Since the cited condition was relied on by the inspector constituted facts that he believed were crucial to his belated S&S awakening with respect to Citation No. 8166773, he had more than ample time to amend that citation, but did not do so. I agree with the Respondent's argument that those facts could have been asserted at any time during the past two years, and that the failure to do so presented new issues advanced two years after-the-fact.

            I agree with the Respondent's assertion that the S&S issue associated with the Secretary's proposed amendment begs the question as to how the inspector could rely on the conditions described in the two citations in issue in the proceedings, based on a condition he discovered four hours later with respect to Citation No. 8166775, that is not part of these proceedings.

            Inspector Robinette confirmed that he was with Inspector Hall when he issued the two citations, but did not review mem before they were issued. However, he testified that he does review citations issued by inspectors who he supervised "to visualize by the condition cited in the citation itself what he has seen, and what hazards may be involved and the importance of what he is saying", and will discuss any concerns that he may have with the inspector (Tr. 207-209). Inspector Hall, however, testified that Mr. Robinette reviewed and approved Citations 8166773 and 8166774, at the time he issued them (Tr. 159).

            Mr. Robinette testified that he does not agree with Mr. Hall's initial determination that the conditions described in Citation 8166773 were unlikely to cause any injury. He was of the opinion that the conditions would contribute to a discreet ignition safety hazard that should not have been issued as non - S&S. He confirmed that this conclusion is based on the conditions described in Citations 8166774 and 8166775, and his experience that continued and uncorrected belt rubbing against hot hangers in the presence of float coal dust would cause something more serious, including a fatal injury (Tr. 209-211).

            On cross-examination, Mr. Robinette confirmed that as part of the MSHA conference reference report dated April 14, 2010, at page SEC000027, he stated that he traveled with the inspector (Hall) on the day the citations were issued and that he "fully concurred" with the inspector's evaluation of the conditions (Ex. P-l1). He explained that he agreed with the non - S&S citation and that his "fully concur" comment means that he "at least" agreed with the citation (Tr. 134-135). He further commented that "if I were evaluating the citations, I would have evaluated them differently" (Tr. 236). I find Mr. Robinette's explanations concerning Mr. Hall's citation are contradictory and raise new credibility issues regarding the after-the-fact S&S evaluations made by the inspectors.

            Inspector Hall's non - S&S Citation No. 8166773, included a gravity finding that an injury was "unlikely". He confirmed that he made the non - S&S finding on the fact that he detected no methane or a heat source that would cause the cited float coal dust to catch fire, and detected no suspended float coal dust or any exposed wires (Tr. 144-147). He conceded that Citation No. 8166774 does not reflect that the belt was rubbing any wood, and confirmed the belt was fire resistant and retardant (Tr. 141,145).

            Inspector Hall testified that he observed the conditions and issued the citation at 11:30 am., and that he did not include any statement that there was a heat source from wood rubbing on the belt because that was not happening at that time. The heat source that he supplied to his evaluation occurred four hours later when he observed the two baffles that prompted him to issue Citation No. 8166775 (Tr. 157).

            Inspector Hall further testified that the float coal dust he observed was on the off-side of the belt and that the travelway was on the opposite side, and he observed no foot prints because it was not probable that anyone would be there (Tr. 73-75). His testimony contradicts the speculative testimony of Inspector Robinette that anyone walking in the area could place float coal dust in suspension (Tr. 256).

            Inspector Robinette believed that float coal dust placed in suspension could cause a fire or explosion, and stated that a non-vulcanized belt splice, and the fact that the mine was on a spot inspection cycle and was "liberating the usual methane" would be potential heat sources (Tr. 210-212). However, Inspector Hall found no methane, and his citations do not mention any defective belt splices.

            Although Inspector Robinette considered the float coal dust as his "issue and big concern", and believed that suspended coal dust can be ignited by rubbing belt hangers, and that a piece of railing rock dust, or anyone walking in the area could place the dust in suspension (Tr. 255-156), he confirmed that the citations, orders, and his citation conference notes do not mention the possibility of railing rock dust, float coal dust in suspension, or any coal accumulations turning in any belt rollers (Tr. 257-258). Although several references to "hot rollers” were made in the course of the hearing, the citations do not include rollers. I find that a belt hanger is not synonymous with a belt roller.

            Both of the inspectors confirmed they observed the two baffles while on their way out of the underground area to return to the surface, and they confirmed that mine Foreman Cantrell immediately destroyed the wooden baffle materials by knocking them out with a sledge hammer to abate and terminate Citation No. 8166775. The citation reflects that the violation was abated and the citation was terminated within 30 minutes, and the record reflects that the new baffles were constructed with cement blocks and a wooden frame.

            I find that although the belt may have continued to operate after the inspectors returned to the surface, the cited wooden baffle materials that were the source of the heat relied on by the inspectors to support their belated S&S opinions were eliminated and no longer existed. I find this undermines their assumptions that any continued mining operations would exacerbate the assumed hazard. Under the circumstances, I reject the belated attempt to retroactively resurrect the perceived hazard to support an S&S violation.

            On the facts of this case, and based on all of the aforementioned findings, and assuming that I were to grant the motion to amend Citation No. 8166773 to S&S, I would nonetheless conclude that in the absence of any ignition source at the time the inspector observed the conditions and in the context of continued mining operations, the cited float coal conditions did not expose anyone to any discrete hazard and did not present a reasonably likelihood or contribution to an injury of a reasonably serious nature. Accordingly, my bench ruling denying the motion IS AFFIRMED

The Secretary’s Trial Testimony

            Retired MSHA Inspector, Bobby Hall issued Citation No. 8166773 and he confirmed that he worked in the ventilation department before retiring on November 23, 2010. His prior experience included work as a mine foreman and fire and belt examiner. He was at the mine on April 5, 2010, to conduct ventilation inspection, and to follow-up on previously issued citations. He was accompanied by his supervisor Lloyd Robinette who was observing his job performance (Tr. 57-60).

            Mr. Hall identified Citation No. 8166773, citing a violation of Section 75.400 (Ex. P-2), and explained that the float coal dust was present continuously on the ribs along the entire entry, on the upper ribs, somewhat on the ground walkway, in the crosscuts, and on the belt structure at spot locations. He confirmed these observations reflected the conditions on the offside of the belt as stated in the citation. He stated the area was black and there were no footprints because the travelway was on the other side and it was not probable that anyone would be there (Tr. 72-75).

            Mr. Hall further described the float coal dust areas he observed as noted in diagram Exhibit P-l, as noted in the citation, namely the adjacent crosscuts, spot locations and the floor and belt structions, including float coal dust and fines between two newly constructed regulators used to reduce the air flow going to the section. The regulators would be constructed with block, some wood, and rubber belt to restrict the air (Tr. 77-79).

            Mr. Hall identified a copy of an additional citation, No. 8166775, he issued on April 5, citing an alleged violation of 30 C.F.R. § 75.1731(c), for the presence of wooden boards on the No. 3 belt allegedly contributing to a frictional heating hazard (Ex. P-l2). Mr. Hall confirmed that he issued the citation the same day as the float coal dust Citation No. 8166773, because it was creating a heat source. However, when he issued that citation he found no heat source and determined that it was a non-S&S citation. He later found a heat source when he observed the belt rubbing the structure as it was running through the baffles and wood that he cited and confirmed that he observed the baffle situation after the float coal violation (Tr. 84-85).

            Mr. Hall stated that the wooden boards cited in Citation No. 8166775 were related to the two newly constructed regulations referred to in Citation No. 8166773, and they were at the same location as the float coal dust (Tr. 85). He confirmed that the baffles were initially constructed entirely of wood that was removed to abate the citation, and the newly constructed regulations were block with a wooden frame (Tr. 86).

            Mr. Hall confirmed that Citation No. 8166773 was issued as a non - S&S citation, but that in view of the cited float coal conditions, and "after further review", he "could have, and should have" determined it was S&S "when I found the smoldering and the smoke and the heat" (described in that citation as an atmosphere smelled of an oder (sic) of smoldering wood) (Ex. P-12;Tr. 88).

            Mr. Hall stated that his mitigating moderate negligence finding was based on his belief that the Respondent "should have known some degree of the condition", and that he had not at that moment in time established a heat source. He believed the float coal conditions existed for more than one shift based on his experience and the extent of the conditions (Tr. 91). In view of the extent of the float coal dust, he would have been surprised if anyone told him the entire belt had been rock dusted the day before. He confirmed that he fixed an abatement time at 9:00 a.m., April 6^th, believed it was reasonable, and there was no complaint or any request for an extension (Tr. 91-93).

            Mr. Hall stated he issued Citation No. 8166774 for an alleged violation of Section 75.1731(b), (Ex. P-3), because the conveyer belt was not properly maintained and was rubbing against 14 bottom stand hangers, but not on a consecutive row. Referring to a diagram of the belt (Ex. P-l), he confirmed that the 14 hangers were generally located between the No. 81 and 84 crosscuts, and he saw them rubbing because the belt "was just out of line" (Tr. 94).

            Mr. Hall stated that he touched two of the hangers and they were "hot to the touch" (Tr. 95). He also smelled a "strong odor like wood burning" from the rubbing belt, and observed float coal dust where the belt was rubbing "on the offside, the ribs, the crosscuts and spot locations on the travelway side" (Tr. 96).

            Mr. Hall confirmed he based his "S&S" finding on the fact that the belt was out of alignment and was making contact with the wood and belt structure, producing a heat and smoke smell, and the possibility of a fire (Tr. 96). He believed this would be reasonably likely to occur and that miners walking towards the mine face would be exposed to the hazards of smoke, fire, heat, and air contamination. He further believed the hazards would affect a miner's ability to escape by becoming disoriented or losing direction (Tr. 98).

            Mr. Hall confirmed the negligence level as "moderate" because the Respondent had reason to know to a certain degree that the condition existed and was extensive because examiners are in the area on a daily basis. However, he did not issue a violation for any inadequate pre-shift examination because he reviewed the mine books and only remembered a "needs dusting" entry (Tr. 99).

            Mr. Hall believed that the 6:00 p.m. abatement time was reasonable and that no one complained or requested more time (Tr. 100). He confirmed that he extended the time for the violation that prompted his visit to the mine, and he explained the circumstances related to that citation that is not an issue in the instant case. He confirmed that he extended the abatement time related to that citation because an effort was made to correct it, and he extended it two times because the fan was eventually changed. Although he could have issued a Section 104(b) order, he did not do so because of the effort made to correct the condition (Tr. 103-105).

            Mr. Hall stated he and Mr. Robinette returned to the mine to abate the instant citation on April 7, 2010, and he identified his notes made that day (Ex. P-8). He stated he observed the No. 3 belt that day, and they walked the belt line from the tail piece back down to the drive, and the cited float coal accumulations were not totally cleaned up, and the belt had not been properly aligned, and the previous hazardous conditions were still present (Tr. 106-107). He confirmed his notes relating to his orders state that "no effort" was made to correct the float coal dust and alignment citations (Ex. P-8, at 7-8).

            Mr. Hall confirmed that he issued Order No. 8166777 on April 7, 2010, (Ex. P-4). He stated that the belt was misaligned and rubbing the belt hangers "at about the same location

that I had previously issued”, and that it was "pretty well equally misaligned". He counted 10 hangers but could not recall that day whether he touched any of them. However, his notes reflect they were "warm hot to the touch" (Ex. P-8, at 8), (Tr. 109).

            Mr. Hall stated the belt condition on April 7^th was a violation of Section 75.1731 (b), and that it was in the same condition he observed on April 5, and no evidence of any attempts to abate the violation, or any evidence that any splice had been changed. He confirmed that he "eyeballed" the belt from the travelway and the belt was running and that he placed his hand on the belt structure to determine whether it was warm or hot (Tr. 111).

            Mr. Hall could not recall whether anyone informed him that a belt splice was changed. Although he could not recall seeing any evidence that any belt rollers had been added or replaced prior to issuing the order, he stated it was mentioned "after the fact" (Tr. 112). He further could not recall that anyone informed him prior to issuing his order that belt cradles were removed (Tr. 113). He explained the process for properly aligning a belt (Tr. 113-114).

            Mr. Hall stated that his notes reflect that he informed mine management (Jeff Cantrell) that he could not extend the abatement times for the two preceding citations because the violations would be "specially assessed", and MSHA policy required him to notify management that he would do so (Tr. 115-117), and that he did in fact notify the foreman (Tr. 115-118).

            Mr. Hall confirmed that he issued Order No. 8166778 on April 7, 2010, and that the cited black float coal condition was the same as what it was on April 5, and the belt line "was black all the way down through there" in the adjacent crosscuts and he saw no evidence of attempts to abate the underlying citation (Tr. 119). In response to whether he observed any newly applied rock dust, he responded as follows (Tr. 120): “The offside and adjacent crosscut, it looked the same as I originally issued the paper. The right - the walkway side, they could have -I don't know. They may have improved, but it was a question as well.”

            Mr. Hall stated that he walked the belt before terminating the orders and walked from the tail piece to the tail piece at the boom at the very end of the belt and past the drive. Someone was with him but could not recall who it was and does not recall walking alone (Tr. 125). He recalled speaking with mine foreman Jeff Cantrell underground after walking the belt line after issuing the orders and “red tagging” the belt. He stated that Mr. Cantrell informed him that “he didn't go back and look but he took their word for it, he didn't check on it himself but he took their word” (Tr. 126). Mr. Hall stated that before he issued the order Mr. Cantrell did not inform him about any efforts to correct the conditions, but did discuss it with him after the order was issued, and the area looked the same as when he issued the citations (Tr. 126-127).

            Mr. Hall stated that he found no justifications for further extending the terminations of the order. He confirmed that there are no methane or float coal suspension in the air issues related to the citations and orders in these proceedings and that he took methane readings and detected none (Tr. 130).

            On cross-examination, Mr. Hall stated that since the violations were issued two years ago, he has difficulty remembering some of the specifics without reviewing his notes. He confirmed there was a separate roadway entry adjacent to the belt entry, and that he stopped at the baffles located between crosscuts 81 and 82. He could not recall any baffles at crosscuts 77 and 78, or 76 and 77, (Tr. 131-134). He confirmed that he initially observed float coal dust and the belt rubbing on some hangers at the baffle location. He observed the hot belt hangers somewhere between breaks 81 and 84 according to his notes, and rubbing at 14 hangers, two of which were hot. He could not specifically state the location of the hangers, and explained they were consecutive, but at different locations at crosscuts 82 and 84 (Tr. 136-138).

            Mr. Hall stated the hot hangers were “warm to the touch”, but he was not burned. He did not determine any hanger temperatures, and agreed that it would take 140 degrees to start a belt fire. He did not know how much friction was generated by the intermittent rubbing against the hangers. The belt was fire resistant and retardant. Although he believed that a belt fire can start “at the right temperature”, he did not know what that might be (Tr. 141). He confirmed the “discreet safety hazard” would be the belt catching fire or the float coal dust that needs an ignition source to start a fire. He detected no methane, suspended float coal dust, or any exposed wires (Tr. 144).

            Mr. Hall stated that when he issued the two citations, the heat sources that he had in mind for a belt fire were the belt rubbing the hangers and the float coal dust in proximity to the two hangers that were hot to the touch. Although he also referred to “wood”, he conceded that any wood being rubbed is not mentioned in the belt alignment Citation No. 8166774 (Tr. 145). However, he was concerned that a belt contacting a hanger would cause enough heat to catch the belt on fire, and that a belt may catch float dust on fire (Tr. 147).

            Mr. Hall confirmed that when he issued Citation No. 8166773, as a non - S&S violation he did so because no methane was detected and he found no heat source that would cause a float coal dust fire (Tr. 147). He now believed that with the presence of enough heat a belt could catch the wood part on fire, if a spark was present to ignite the coal (Tr. 148). He stated that when he observed the belt related to Citation No. 8166774, he determined that it was not likely that a belt fire would occur, but nonetheless believed “if it was to continue”, it was reasonably likely “it very well could” (Tr. 148).

            With regard to the float coal dust violation, Mr. Hall stated there was no way to measure float coal dust other than by hand similar to “soot”. He did not measure the rock dust and did not know the required temperature to ignite float coal dust. He did not measure the float coal dust, and he estimated that it was probably on the rib three to four feet from the two hot belt hangers, on the floor, and occasionally on the belt structure (Tr. 150-152).

            Mr. Hall confirmed he observed the float coal dust at 11:30 a.m., when he observed the belt rubbing the hangers at the location of the baffles. He then traveled to the face, but he could not recall coming back when he issued Citation No. 8166775, at 3:00 p.m., for the belt rubbing wood, four hours after he issued the prior citations (Tr. 157). He stated that foreman Cantrell knocked the baffles out with a sledge hammer to terminate that condition (Tr. 158). He

confirmed that his supervisor Mr. Robinette reviewed and approved the citations he issued, and that the time to abate the belt citation was 6:00 p.m., on April 5th and the time to abate the dust violation was 9:00 a.m., April 6^th. He did not return to the mine that day (Tr. 160).

            Mr. Hall confirmed that he would have no reason to disagree with any miner testimony that the belt was running correctly by April 5^th, 6:00 p.m., and that the belt was properly dusted by April 6^th, at 9:00 am., because he wasn't there. Due to the extent of the coal dust, he could not state yes or no why it would be black (Tr. 160-161). He stated he returned to the mine on

April 7^th, as expected, and he confirmed his statement that no apparent effort was made to properly align the belt or to eliminate the float coal dust as stated in his orders, was based on what he saw when he made those determinations (Tr. 163).

            Mr. Hall stated that while underground on April 5th, an area of the belt was raised and that when he returned it was no longer raised. He could not state whether the lowering was an effort to correct the citation (Tr. 164). However, he agreed that on April 5th, the belt ran along a certain elevation, and then came up and then back down, and when he returned on April 7^th, that was not the case (Tr. 165). He recalled that the “high” belt place was inby the cited belt alignment area, and in order to “train” the belt “you would have to go outby” (Tr. 165). He did not know whether the entire belt had to be trained after it was lowered.

            Mr. Hall stated there was float coal dust from the belt drive to the tail piece when he returned on April 7^th, and it appeared to be identical as it appeared on April 5th. He confirmed that foreman Cantrell informed him about the work that had been done when he returned on April 7^th, to terminate the order. He stated that he does not look at work orders unless they are given to him. He could not remember whether he or inspector Robinette gave Mr. Cantrell the closure tag, but stated “I thought I hung it up” (Tr. 170). He stated that he informed Mr. Cantrell that the conditions had not been abated and that Mr. Cantrell informed him “I didn't go back and look. I took their word for it” (Tr. 170). Mr. Hall stated he then told Mr. Cantrell that he was going to issue the B order to close the belt down because the cited conditions had not changed (Tr. 171).

            Mr. Hall stated that when he was at the belt drive with Mr. Cantrell he could not recall asking him for the location where he issued the belt rubbing citations. He denied that he asked for the location because the belt had been lowered and he did not recognize the area when he returned and that he was confused. He stated “I had that pin-pointed and pretty much knew where it was at” (Tr. 172).

            Mr. Hall believed that any confusion related to where the belt had been lowered and it was difficult to determine where it had previously been up, and that it was not necessarily where the cited 14 belt hangers were located. He could not identify the break area location of the raised belt (Tr. 173). He confirmed that when he returned on April 7^th to abate and terminate order No. 8166778, it states “The coal fines has been removed and a coat of rock dust has been applied to the affected area” (Tr. 173).

            Mr. Hall confirmed that belt Order No. 816777 termination states that the belt was realigned and adjustments were made at several bottom belt hangers from crosscuts 34 - 80. However, he believed that it is a “misprint of the numbers,, and I wrote it down wrong” (Tr. 174). He did not believe it would indicate that the corrections were made at those crosscuts and that he wrote it down correctly because “I would go back where I originally issued the citation” (Tr. 173-174). He also commented that he wrote down the wrong time for the rock dust termination order, and it should have been 20:32, and not 10:30.

            Mr. Hall confirmed that his notes relating to the abatement of the belt alignment violation reflects that the corrections were made from crosscut 34 to 80, as stated in the abatement order, indicating they started at 34 and went to 80. He stated that “It's either I wrote it down wrong or that's where I started from” (Tr. 176; Ex. S-10, at 4). He further stated as follows (Tr. 176):

            Q. Well, why did you write that down?

A. Maybe sometimes you just write something down wrong or you get sidetracked

            or you get interrupted or whatever the case may be. The termination is more -

            is more important as the violation itself.

Q. And the import for the orders are that the condition existed in the same

            location that the citation was issued, right?

            A. Yes.

            Lloyd Robinette, MSHA supervisory ventilator safety specialist, testified that in April, 2010, Inspector Hall was assigned to his group on a temporary 90-day assignment to help out. Mr. Robinette discussed his mining experience with various coal companies, the Commonwealth of Virginia, and MSHA, since graduating from Virginia Polytech Institute and State University as a mining engineer in 1972. He has Virginia mine and surface mine foreman's certifications and is a certified MSHA inspector (Tr. 191-193). He confirmed that he accompanied Mr. Hall to the mine on April 5, 2010, as part of his field review of Mr. Hall's performance as an inspector temporarily assigned to his group. Mr. Hall was there for a six-month ventilation plan review and to check on a previously issued ventilation citation (Tr. 194-198).

            Mr. Robinette reviewed the condition or practice described in Citation No. 8166773, and confirmed it accurately describes the locations and extent of the float coal dust that he observed. He confirmed that he has never measured float coal with a ruler because it settles on top of previously rock dusted surfaces in layers that vary in thickness (Tr. 204). He could not recall observing any foot prints in the float coal dust. He believed there would be more accumulations along the offside of a belt than across the travelway because the travelway is rock dusted when the entry is rock dusted. The offside in the adjacent crosscuts takes “a little bit more time and effort” and these areas are frequently missed. It is easier to see float coal accumulations on the offside by walking, but it is difficult to see those areas when riding because the belt conveyor impairs vision across and under the belt and adjacent crosscuts (Tr. 206).

            Mr. Robinette believed the ignition sources concerned the belt misalignment violation. He observed the hot hangers and float coal and believed this heat source could have caused a fire or fatal explosion if the float coal were placed in suspension. He also believed that non-vulcanized belt splices would also have been a heat source (Tr. 210-212). He confirmed that the mine was on a spot inspection cycle and was liberating the usual methane. He believed nine miners were working in the area and he explained the available escapeways. The secondary escapeway belt air course would provide the quickest mine exit and if there were smoke in that area, the miners would be exposed to it (Tr. 213).

            Mr. Robinette agreed that the condition or practice stated in Citation No. 8166774, accurately describes the location and extent of the misaligned and rubbing belt that he observed on April 5, 2010, and he did not instruct Mr. Hall regarding his gravity and negligence determinations (Tr. 216). He confirmed that he touched several belt hangers and they were hot. He also smelled the odor of belt rubbing and observed float coal dust near and on the belt structure, but not on the hangers (Tr. 216). He agreed with Mr. Hall's S&S finding and believed the belt hazards were the same as those related to Citation No. 8166773. He also believed the abatement time was reasonable and that no one complained or asked for an extension (Tr. 217).

            Mr. Robinette stated the float coal dust was still present at the No. 3 belt line on April 7^th and presented the same hazard that existed on April 5th. He stated that he was informed that the mine ran coal on both days. The belt condition on April 7^th surprised him because he did not expect that the two citations still existed and were not terminated. He confirmed that Order No. 8166777, accurately reflected the location and extent of the misaligned and rubbing belt he saw on April 7^th. He observed the belt rubbing “at various locations” along the belt line, particularly in the areas that were warm and hot to the touch, from the day the citation was issued, particularly between crosscuts 84 and 82 (Tr. 221).

            With regard to the statement “no apparent effort” was made to abate the condition as stated in the order, Mr. Robinette stated “I can't say no apparent effort I don't know if any effort had been made”. However, he saw no evidence that an effort had been made (Tr. 221).

He believed the belt was more misaligned on April 7^th, at more locations, and that “some of them were still heating up”, particularly at crosscut 84 and 82, the same area where he observed the belt rubbing on April 5th (Tr. 221). He did not believe the condition could have reoccurred to that extent in that short period of time (Tr. 221). 

            Mr. Robinette confirmed that after he and Mr. Hall observed the existence of the same conditions, they discussed it with Jeff Cantrell and he appeared to be surprised. He stated that he asked Mr. Cantrell if he had seen that the cited conditions were corrected, Mr. Cantrell stated “No. I took word (sic) for it” and that “he acted as disgusted about it and surprised as I was” (Tr. 223). He confirmed that Mr. Cantrell did not walk the belt with him while underground.

            Mr. Robinette confirmed the issuance of the float coal dust Order No. 8166778, and he agreed to the accuracy of the described condition or practice, except for the statement “no apparent effort” had been made to eliminate the condition. He confirmed that he did not know “how much effort was put forth, but there wasn't enough effort in my opinion to warrant from what I saw that day to warrant an extension of the citation” (Tr. 224). When asked if he saw any effort or attempts to clean up the float dust, he stated “there was apparently no effort—and appeared to be little effort to take care of the coal dust underneath the belt, on the offside of the belt, as well as in the adjacent crosscuts” (Tr. 225).

            Mr. Robinette further believed that if any rock dust had been applied it was in the travelway, but there were “still places along the travelway in my opinion deserved more rock dust” (Tr. 225). He did not believe the float coal under the offside of the belt and adjacent crosscuts could have accumulated during the two production shifts. It did not appear that eight pallets of rock dust had been applied in the entry before he got there (Tr. 225).

            On cross-examination, Mr. Robinette agreed that Inspector Hall's citations and orders “were at least warranted”, and that is what he meant by “fully concurred” when he submitted his conference statement. He confirmed that he reviewed all citations through his office as the ventilation supervisor for all underground mines in Virginia (Tr. 234-235). In response to a question if he was responsible for the Secretary's motion to amend Mr. Hall's dust citations to S&S and both citations to fatal, he replied that he would have evaluated them differently. He agreed that at the end of April 2010, after being underground and reviewing the actions, he fully concurred and did not seek to change them at that time (Tr. 236).

            Mr. Robinette confirmed that he assisted in the creation of Exhibit P-l, a diagram of the No. 3 belt, the crosscuts, the travelway, the #4 entry belt line, and the alleged locations of the float coal dust, the wood baffles, and the misaligned belt. The information for the diagram came from the citations and it is not to scale (Tr. 239). He did not know how close the baffles were, but they were in between the same two crosscuts 81 and 82. He stated he and Mr. Hall traveled the entire length of the No. 3 belt and the travelway slope belt in a personnel carrier with Bobby Tilley (Tr.241).

            Mr. Robinette confirmed that his notes, at page 8, and his conference statement do not mention the belt rubbing on wood. He could not recall how long it took him to walk the entire belt, or whether Mr. Tilley walked the entire belt with him. He did not know the distance from the tail piece to the belt drive or the number of crosscuts because the office mine map is inaccurate with respect to the location of the belt drives and he had questions about the map (Tr. 243).

            Mr. Robinette stated that on his way out of the mine, he observed the belt rubbing on wood and Jeff Cantrell knocked them out with a sledgehammer. He then went to the surface and did not return to the mine until April 7^th, and did not know what work was done before that time (Tr. 244). He confirmed he was aware of the documents and arguments advanced by the

Respondent at the conference to which he responded, and also was aware of the Respondent's work orders. He still believed that when he traveled the belt on April 7^th, the offside of the belt and the adjacent crosscuts “were just as bad as on the 5th” (Tr. 245).

            Mr. Robinette believed it was not a good habit or safe to rock dust with miners working nearby, but did not know what may have occurred in this case. He stated it was absolutely acceptable to rock dust on a non-production shift. He confirmed he was at the mine at 5:30 am on April 7^th - and rode underground to the face with the crew and went past the baffles (Tr 247-248). He could not state whether the hot belt hangers on April 7^th were the exact same hangers he observed on April 5th. He explained that the belt hangers on April 7^th were along the No 3 belt flight in close proximity of the hot belt rollers he observed on April 5th (Tr. 248).

            Mr. Robinette further stated that the rollers that were warm and hot to the touch were along the belt flight. He explained that a belt comprised of a tail section and a drive, or a head roller, is considered a “flight” and if there are rock dust belt alignment issues, it is along the flight, not a specific roller or hanger place or crosscut. He confirmed that Citation No. 8166774 specifically cited the location as break 81 to 84, “but it was the No. 3 belt flight” that was cited (Tr. 249).

            Mr. Robinette confirmed that if the belt were rubbing structures at break 84 on April 5, and was rubbing at break 81 on April 7^th, it would not necessarily justify a 104(b) order. He stated it was not necessary to cite the same hangers because the alignment of the belt flight was cited and not the hangers. He was of the opinion that the belt misalignment was not corrected when he returned on April 7^th (Tr. 250). He recalled that the belt had one Flexco splice that was replaced, but knew of no other metal splices, and did not know the exact length of belt (Tr. 254).

            Mr. Robinette confirmed his opinion that the belt citation was significant and substantial because two of the fourteen hangers were hot to the touch and several were warm. He stated “I didn't say the belt would catch on fire. Float coal dust was my issue and my big concern” (Tr. 255). He stated that suspended float coal dust can be ignited by the rubbing belt hangers, and if this continued unabated it could increase the hanger temperature. If a rock or a piece of rock-dust fell there is a likelihood of a fire or explosion. Anyone walking in the area could place float coal dust in suspension. He stated the belt was running continuously on two of the hot hangers but he did not recall how long he observed the belt (Tr. 256).

            Mr. Robinette confirmed that the citations, orders, and his conference notes do not mention the possibility of falling rock dust, or float coal dust in suspension (Tr. 257). He further confirmed no one observed any coal spillage that could accumulate where the belt roller turns on the bearing, and that would be a more serious condition (Tr. 258). He stated that the extent of the float coal dust he observed when he returned “was more than the normal”. In the event eight pallets of rock dust were applied, it would have been put down the number 3 entry travelway and the adjacent crosscuts toward the entry and not the off-side of the belt and the adjacent crosscuts (Tr. 260).

            Mr. Robinette believed that if rock dust was applied to the No. 3 travelway, it would have still been there when he returned. When asked if he found no rock dust still present at that location, he responded as follows at (Tr. 261):

            THE COURT: And you're saying it wasn't?

THE WITNESS: I'm saying that the float coal dust was still untouched on the

            offside of the belt and in the adjacent crosscuts. Some rock dust could have been

            to the travelway where the belt examiner travels in adjacent crosscuts connecting

            the number 3 belt.

THE COURT: But was the travelway completely - when you went back, were

            the travelways still completely covered with coal dust?

THE WITNESS: No, sir. The travelway wasn't the main issue to begin with. It

            was underneath the belt, the offside of the belt and adjacent crosscuts where the

            gray is on the map there.

            Mr. Robinette clarified the off-side belt area that had not been rockdusted, and it was described as the area alongside the belt in the No. 4 entry immediately adjacent to the belt. He stated that area is not as wide as the No. 3 travelway and cannot accommodate a larger mantrip and it is not normally walked (Tr. 263).

The Respondent’s Trial Testimony

            David L. Goode, formerly employed by the Respondent, testified he was a certified mine foreman and electrician. He stated that he worked the evening shift from 2:30 to 1:00 a.m., on April 5, 2010. He confirmed that he performed a belt examination that evening and identified Exhibit R-1 as a copy of the belt examination report for the stacker, slope, and belt numbers one through five (Tr. 167-268). Mr. Goode explained his shift notations on the report, including “No. 3 belt, nothing found”, “No. 4 belt, it needs rock dusting from tail piece to drive”. He confirmed that the notation “No. 3, belt has been dusted” was made by someone else (Tr. 268).

            Mr. Goode confirmed that he found some areas on other belts that needed to be corrected on April 5, but found nothing on the No. 3 belt that needed correcting. He stated that another notation indicating that the No. 3 belt was dusted appears on the upper portion of the report which covered the day shift (Tr. 270). Mr. Goode stated that he has conducted belt examinations from eight to ten years and knows what float coal dust looks like. If he had seen it on April 5, he would have reported it (Tr. 271).

            Mr. Goode identified the second page of Exhibit R-1, as his belt examination report for the 4:00 p.m. shift that he conducted on April 6, 2010, and he explained his notations, including two bad belt cradles on the No. 1 belt that he removed from service (Tr. 272). He confirmed he conducted his examination from 8:00 p.m. to 9:50 p.m. He stated that the No. 3 belt did not need dusting and the belt was not misaligned and was not rubbing at any location (Tr. 273).

            Mr. Goode identified belt cradles as the “bowed” top roller shown at page two of Exhibit P-l and confirmed that he replaced the No. 3 cradle (roller) on the belt off-side because it was split and could cut into the belt if it continued in that condition. He confirmed that this condition had nothing to do with any belt misalignment. He also confirmed that the No. 3 belt was not misaligned on April 5^th or April 6^th, and did not need rock dusting on his shift (Tr. 274).

            Mr. Goode explained a misaligned belt condition and confirmed that if it were actually rubbing and up on a hanger, it could cause a fire. He stated that a properly aligned belt should run “dead center” on the cradle when the belt is loaded or not loaded with coal. If he observed a belt rubbing a hanger, he would shut the belt down and replace the hanger (Tr. 275).

            Mr. Goode confirmed that a belt can move back and forth without being completely misaligned and this can be addressed by '”training” the belt by using a hammer or sledgehammer, while wearing safety glasses, and knocking the cradles one way or the other. If this were done, it would affect the way the belt will run at different locations. It would be preferable to “train” the belt in sequence, starting at one end of the belt to the other (Tr. 276).

            Mr. Goode identified Exhibit R-2 as a copy of a statement he prepared and signed explaining that he observed two top belt cradles on the No. 3 belt on April 6, 2010, and that he removed them and observed the belt with and without coal, and that he trained and traveled the belt for two breaks to make sure coal stayed in the center of the belt and the belt in the center of the cradle. Mr. Goode further noted no belt rubbing during the duration of his belt examination and the work he performed. He confirmed that he prepared his statement because a fire occurred shortly thereafter that destroyed the mine office building and his book and notations were lost

(Tr. 277).

            On cross-examination, Mr. Goode stated that he left his employment with the Respondent because of black lung. He stated that as a certified belt examiner, he usually checked the belt when he starts his normal work day shift, and a second time three hours before the next oncoming shift He confirmed that the belt examination report for the belts, (Ex. R-l) on the first page, reflects that he inspected the belts for the evening shift at 4:00 p.m., on April 5^th, as well as April 6^th, and that the reports reflect two belt examinations as combined on shift and pre-shift examinations (Tr. 280-286).

            Mr. Goode confirmed that on April 6^th, he removed and replaced two belt cradle rollers at two different locations approximately ten breaks apart because they were split. He shut the belt down to make those corrections and checked the belt for approximately one hour, but did not walk it and remained in the general areas where each correction was made (Tr. 287-288).

            Mr. Goode stated that the belt was not misaligned at the time he made the cradle roller corrections and he simply removed the cradles and the belt was still in line. He confirmed his deposition statements confirming that the cradles were at “break 36, and around break 43 to 45", and that “the belt wasn't rubbing with or without pulling on it but I wanted to make sure that the

belt was dead center of the cradle” (Tr. 289). Mr. Goode further confirmed his statement that the belt “may have been offset just a little bit but they still weren't rubbing”, and that “it may have been offset about an inch at this location and maybe some other locations” (Tr. 289).

            Mr. Goode stated that after he changed the belt cradle, he examined the belt, starting at the head rollers to the location of the cradle, and stayed in that general area checking the belt after it was corrected. He then proceeded to the second cradle location down the belt, made the correction, and continued down the belt (Tr. 292-293).

            Mr. Goode confirmed that when he conducted his two No. 3 belt examinations on

April 6^th, he walked around the head drives and tail piece to make sure the guards were on, and he rode the rest of the belt and did not walk it. He did not take the temperature of the belt and has never done so at that mine (Tr. 293-294). He confirmed that on April 5th, he drove the entire No. 3 belt, and it was aligned, and that on April 6^th he observed the entire belt two times and it was properly aligned (Tr. 294). He also confirmed that the belt was properly rock dusted during that same time frame (294-295).

            Tim Amburgy, roof bolter on the “hoot owl” shift, 11:00 p.m., Sunday, through 7:00 a.m., Thursday, testified that the No. 3 belt is normally dusted on Sunday because all of the belts are not in operation that day. When he arrived at work the evening of April 5, 2010, foreman Elliot Plaster and shift foreman Mark Van Dyke, informed him about the work that would be done. He identified a work order dated April 6^th, for work to be performed on the April 5th “hoot owl shift” (Tr. 299-300; Ex. R-3).

            Mr. Amburgy stated that the work order included dropping the belt down at the #84 line brattice, cleaning up block and trash, and dusting the No. 3 belt “from the tail piece to drive, make sure you get off side good. 8 pallets dust”. He confirmed that he participated in that work, described how the belt was lowered, and that it was checked and operated over several breaks to insure it was centered, and that it was “running good” (Tr. 303).

            Mr. Amburgy explained that the No. 3 belt line was rock dusted on April 5th, using a track dusting machine that throws out the dust over and under the belt and through the breaks. Dusting started at the No. 3 belt tail piece and ended at the No. 3 head. He explained that he stopped after three breaks and looked under the belt to make sure it was dusted as noted in the work order. He stated that the belt “didn't look bad when I started, but it looked really good when I got done with it” (Tr. 303-304).

            Mr. Amburgy stated that he made a splice on the No. 3 belt the following evening of April 6^th,to replace an older type splice and not because of any belt misalignment. He checked the belt after he completed the splice and it was running correctly (Tr. 305). He confirmed that additional belt dusting was done by hand by other crew members but he did not participate in that work. He stated that the belt area where he made the splice two breaks, outby break #84, at break #82 was rock dusted “and still looked good to me” on the evening of April 6^th (Tr. 306. He confirmed that he signed a statement that confirmed the work that he testified to, and that no one made him sign, and that it is accurate (Tr. 307; Ex. R-4).

            On cross-examination, Mr. Amburgy confirmed that he rock dusted on the evening owl shift of April 5th and into April 6^th, pursuant to the work order. Although dusting the belts occurs on Sundays, it may be done as needed on other days. He also confirmed the splice work he performed, at break #82, and stated that a flexco splice is metal and would be touching a belt hanger if the belt were rubbing against it (Tr. 309).

            Mr. Amburgy confirmed that he did not write out his prior statement and signed it after he was asked if it reflected the work that he had done (Tr. 313). He confirmed that he signed the statement after the orders were issued and was unsure of the date (Tr. 316). He further confirmed that he performed the work required by the work order and that he applied eight pallets of dust on the section. He stated that each sack of rock dust weighs 50 pounds and he believed that each pallet contains two tons of rock dust. He guessed that the work order note ordering him to re-rock dust the belt because the inspector did not return to check it, indicated the inspector did not return the next day (Tr. 321).

            Robert Tilley, chief electrician, testified that on April 5, 2010, he went underground with Inspectors Hall and Robinette by means of a four-man diesel ride. Referring to Exhibit P-l, he explained they were in the No. 3 travelway entry because the diesel would not fit in the belt line. They stopped at the baffles because Inspector Robinette wanted to look at the baffles and he was with the inspectors the entire time. The inspectors did not walk to the No. 3 belt drive and that as far as he knew they did not walk to the belt tailpiece, which he estimated was 2,000 feet or better from where they stopped at the baffles. They then proceeded to the face where he “handed off the inspectors to Jeff and Mac” and that was the end of his involvement (Tr. 322-324).

            On cross-examination, Mr. Tilley confirmed that he rode with the inspectors to the location of the cinder block baffles where they walked around the area, and he was with them the entire time. He stated that he and the inspectors walked up and down four or five breaks inby toward the belt tail piece, and they did not walk to the belt drive (Tr. 325).

            In response to bench inquiries, Mr. Tilley stated that he was with the inspectors for an hour and a half at the baffles area and not the entire time they were in the section when he handed them off. He could not confirm whether they walked down to the tail piece and the other end of the belt after he left them (Tr. 328-329).

            Mac Sluss, weekend general mine foreman since 1980, stated that he met the inspectors at the face of the section tail piece on April 5, 2010, while they were there to check on a ventilation problem. They proceeded to the No. 3 belt line and stopped at the baffle or brattice location. Inspector Robinette commented that he smelled smoke and Mr. Sluss confirmed that he too smelled smoke. The belt had been rubbing on a wooden board across the baffle and Mr. Cantrell informed the inspector that he would remove the brattice (Tr. 329-332). Mr. Sluss stated that he and Inspector Hall walked the belt from the baffle area for three to four breaks and found the belt rubbing on two bottom belt hangers. Mr. Sluss checked them with a thermometer that recorded a temperature of 74 and 75 degrees, and Mr. Hall did not comment (Tr. 332-334).

            Mr. Sluss stated that he only observed the two hangers, and Mr. Hall informed him that he had observed 12 hangers that had rubbed the belt and cut into the hangers at some time. Mr. Sluss stated that the two hangers he observed showed rust and were “darkish and gray” in color and not shiny. He informed Mr. Hall that hangers used at other belt structures are used again if they are handy and that may account for the fact that the used hangers may have rubbed on metal. Mr. Sluss stated that he and Mr. Hall did not walk the entire Number 3 belt line and they left the area and returned to the surface after the baffles were taken out (Tr. 334-335).

            Mr. Sluss stated he returned to work the next day on April 6^th, even though it was not his normal work day, and informed Mr. Cantrell that he would check the belt to insure that the citations were abated. He traveled the belt for two hours with Dave Barrett, and they replaced four bottom belt rollers where the belt had sagged when it was lowered the prior evening (Tr. 336). He stated that he and Mr. Barrett walked the belt line for an hour from break 81 to break 52, and while the belt “walked back and forth” they observed that it was not rubbing on either side. They also walked to the tail piece, and he walked the back side, and Mr. Barrett walked the travelway side, and did not observe the belt rubbing anywhere. They proceeded to the break and observed the belt for two hours and while it was “still walking back and forth”, it was not rubbing at any place. They left the area and proceeded to the surface (Tr. 337).

            Mr. Sluss confirmed that he observed the rock dust on April 6, 2010, and it was “grayish and blackish”, the usual colors of the dust used. He measured it with a tape measure and it was “four to five inches deep in that area”, but did not describe the area. He confirmed that he signed two statements describing the work that was done (Tr. 338). He confirmed that Exhibit 12-5, notes the temperature of the belt hangers he observed with Mr. Hall. The second page reflects the work that was performed on the belt rollers with Mr. Barrett. He confirmed that he was not at work on April 7^th, when the inspectors returned because it was his day off (Tr. 339-140).

            On cross-examination, Mr. Sluss stated that Mr. Hall told him that he had touched a hanger and that it was hot, but he did not see him do so. Mr. Sluss confirmed that he did not touch any of the rollers and confirmed that the temperatures were 74 to 75.5 degrees. The belt continued to run while he was with Mr. Hall and coal was produced during that day and evening shift, but he did not know if any belt rubbing continued after that time (Tr. 344-345).

            Mr. Sluss stated that the belt rollers that were installed on the April 6^th day shift were installed because the belt was sagging and not because it was off center, and the fact that it was cited the next day for being misaligned was a coincidence. He observed a flexco metal belt splice on April 6^th , that was causing the belt to “walk”, a condition that occurs when the belt is not centered. The splice was not changed because of any damage (Tr. 347-348).

            Mr. Sluss further explained that a “walking belt” or a belt running “a little side-to-side” could be caused by a roller “build up or a crooked splice”, and that a misaligned belt would possibly rub the hangers if it were not centered. If he had observed the belt rubbing on hangers,

he would have noted it, he would have shut the belt off, and straightened the roller and trained it. He did not believe the cited belt conditions were abated when he arrived at work on April 6^th, but the conditions were corrected before the inspectors arrived (Tr. 357).

            Mr. Sluss stated that a misaligned belt could destroy a belt and result in down time, and that he was concerned about safety as chairman of the mine safety committee. He stated that he was on the section with the inspectors on Monday, April 5^th, and did not believe there was any difference in the belt conditions on that day and the next day. He stated that his Sunday crew on April 4^th, applied eight tons of rock dust to all of the belts (Tr. 362).

             With regard to the cited float coal dust condition, Mr. Sluss confirmed that he observed float coal dust at the baffle or stopping and that he dragged or blew off “a trace of black coal dust or what I call coal fines” (Tr. 362). He observed no float coal dust at the other locations noted in the citation because he was only at the area between belt breaks 77 to 81, on the day he was with the inspectors (Tr. 363).

            Dave Barrett, roof bolter for eleven years, stated that he was with Mr. Sluss observing the belt on April 6^th, and confirmed that they installed four bottom belt rollers, and the belt was running aligned and not rubbing on any hangers. He stated that the rock dust “looked good”, and that when he was there the next day on April 7^th, he observed the No. 3 belt from the drive to the tail piece and that “it still looked good like it did on the 6th” (Tr. 369-370).

            On cross-examination, Mr. Barrett stated that the belt was misaligned on April 6^th, when the additional rollers were added at breaks 81 to 84, the areas cited by the inspector. He explained that the rollers were added to provide more belt support, but that the belt was not rubbing. He stated that the belt was not “especially” off-centered before the rollers were added (Tr. 371).

            Mr. Barrett confirmed that he was deposed on February 24, 2012, and stated that the belt “was a little off center” but was not rubbing on the hangers. He further stated he “probably” looked at the belt splice on April 6^th and that one splice was different from the others and that “it was causing the belt to ride a little, so I think we had to make that splice that night” (Tr. 373).

            Mark Van Dyke, Respondent's evening shift foreman from 3:00 p.m. to 1:30 a.m., has been employed with the Respondent for twenty years, and he confirmed that when he arrived at the mine on April 5, 2010, the citations had already been issued. He identified Respondent's Exhibit R-3, as work orders he issued for work to be performed on the owl shift which started that day. The work order was for dusting the No.3 belt to abate the violation (TR 379-380).

            Mr. Van Dyke stated that he observed parts of the belt when he arrived at work, but not the full belt. He confirmed that at the area where the baffles had been he observed “some float dust, but did not believe it warranted a violation because “it really wasn't that much, but there was some, there's no definition, and it's just a judgment call on the float dust both ways I guess”

(Tr. 380). Mr. Van Dyke confirmed that he looked at and rode the belt the next day on April 6^th, from the tail piece to the head roller, otherwise known as “the boom” at break #34. He stated the belt “looked real good” and the alignment “was fine” when he checked it, and the orders had been issued prior to his arrival at that time. He confirmed the day-shift crew was in the process of bringing in dust and dusting, when he arrived there, and his evening shift finished the dusting and he “guessed” that inspector Hall was called to come back to abate the orders, and the belt was down during this time but was turned on when he came back (Tr. 381-382).

            He stated that he and inspector Hall traveled the belt from the head roller to the tail roller after he came back to abate, and he agreed that some of the belt rollers were adjusted between breaks 34 to 80, “but not very many” because the belt had been off and it was dried out and had an “extreme amount of dust on it from the dusting”, and it took a few minutes to clear it off. He explained that the belt usually has water at all times to keep float coal down and it runs differently when it is wet and needed to be cleared off just to run properly. He confirmed that he and the inspector rode half of the belt but mostly walked it (Tr. 383).

            On cross examination, Mr. Van Dyke stated that when he observed the belt on April 5^th, after the citations were issued it “may have been” misaligned and rubbing in a few places, and commented “I really don't remember exactly,” and “it probably was” (Tr. 383). He confirmed that when he was deposed on February 23, he stated that the belt was misaligned or rubbing “in a few places” (Tr. 384). He did not ride or walk the No. 3 belt tail piece to the drive on the evening shift of April 5^th, but did ride the complete belt the next shift on April 6^th, when Jeff Cantrell asked him to check it, but did not walk it. He checked the off-side of the belt from his ride, and that it was possible that his vision could be blocked in some places because of the way the belt hangs. He could see over the top of the belt, but not under it, and did not get off the ride at any time to look at the off side (Tr. 385-386).

            Mr. Van Dyke stated that the rock dusting on April 6^th, “looked good and was white”, and some training rollers were installed on April 7^th, after the 104(b) orders were issued, but “not necessarily” because the belt was misaligned, and that it may have been “a preventive thing”. He further stated the belt was running when he arrived and had no way of knowing if it was misaligned. However, he stated that “in a way it was, we had trouble with it, or we have had a violation, and was going to make sure that we didn't have any more trouble”. He could not recall where the rollers were installed (Tr. 387-388).

            Mr. Van Dyke recalled his deposition when he stated the belt was misaligned when he observed it on April 7^th, and that it was off for several hours and had dried off (Tr. 389). The rock dusting to abate the order dried out the belt and contributed to the belt rubbing when the inspectors returned (Tr. 389,392).

            Jeffrey Cantrell, Respondent's general mine foreman for eight years and a forty-two year mine employee, referred to a mine map and explained the extent of the No. 3 belt line and the relevant belt locations (Ex. R-5 and R-6; Tr. 395-398). He further described breaks and

headings, and stated that the distance from the belt drive to the tail piece was 2,400 feet, and that the distance from the belt drive to the boom was an additional 2,400 feet, for a total belt distance of 4,800 feet, with the belt drive at the mid-point (Tr. 399-400).

            Mr. Cantrell stated that as he and the inspectors were walking outby the face they stopped at a baffle where there was a smell of wood, and they observed that the belt was rubbing a baffle. One baffle was between the 77-78 break and one at the 76-77 break. The baffle was constructed of cinder block, plaster, plaster coated wood frame, and flame-resistant belt. He knocked out the baffle with a sledge hammer and the citation for that condition was abated. They then went to the mantrip and drove the haul road to the surface. He stated that after stopping at the baffle, the inspectors did not walk all of the way to the tailpiece, but did not know whether they went to the drive (Tr. 403-405).

            Mr. Cantrell did not believe the float dust citation should have been issued because it was not at the cited location but “probably float dust at the baffle”. He could not recall seeing any there because the belt person may have cleaned and dusted as an “ongoing thing”. He confirmed that he observed no belt rubbing on hangers and did not believe that it was reasonably likely that any injury would occur because in his 32 years in the mines he has observed hangers cut in two or other structural damage but never considered it was a fire hazard. He agreed that such a condition could damage a belt or belt structure, resulting in metal to metal sparks, but that a belt rubbing a hangar would not result in heat or sparking (Tr. 406-407).

            Mr. Cantrell stated that the belt was aligned on April 5^th, prior to the 6:00 p.m. abatement time, and that the dust citation that needed to be terminated at 9:00 am., April 6^th, was dusted on Sunday by the hoot owl shift from the tail piece to the drive, and he described the work orders for this work, and confirmed that he traveled the areas on the day shift on April 6^th, and the area “looked good” (Tr. 409-411).

            Mr. Cantrell stated that when he observed the belt on April 6^th, he believed that everything had been done to terminate the citations and expected the inspectors to return to abate the citations, but they did not return that day (Tr. 412). He explained the work that was done on the evening of April 6^th, including installing belt hangers to prepare for belt movements. He also ordered a splice to be made for the no. 3 belt to make it compatible with all the other splices and not because of any belt misalignment or belt rubbing. He confirmed that all of the work was done to address the citations, as well as normal maintenance work, and that all of the existing 6 belts were treated the same way (Tr. 413-414).

            Mr. Cantrell stated that he returned to his normal shift on April 7^th, at 5:30 a.m., and that the inspectors were there dressed and ready to go underground. He had earlier spoken to Dave Barrett and sent him to check the areas in advance of the inspection because they came to check it and he wanted to insure that the conditions had been taken care of, and Mr. Barrett informed him that “it looked good” (Tr. 415). Mr. Cantrell stated that inspectors went underground ahead of him because he was not dressed and that he sent one of his field bosses, Jeff Messer, to go with the inspectors. Mr. Cantrell then dressed and caught up with the inspectors in 30 or 40 minutes and they returned to the previously cited areas to abate the citations, namely the area of the belt rubbing, and the dusting citation (Tr. 416).

            Mr. Cantrell stated that after catching up with the inspectors, Inspector Robinette was going down the belt and inspector Hall was near break 78, where the baffle that was removed was initially located, and that he asked him for the location of the belt rubbing citation. Mr. Cantrell stated he informed Mr. Hall that “you done passed it up about seven breaks”, at break 80. Mr. Cantrell stated that he realized that the cited belt had been lowered after the citation was issued in order to level it and that Inspector Hall may not have realized where he was at, and stated “Okay”, and they then proceeded to walk to the number 3 belt drive and when they arrived

he was issued a closure order on the belt by inspector Robinette (Tr. 417).

            Mr. Cantrell reiterated that when he met up with the inspectors, they had already walked past the section where they had issued the citations, and that Inspector Hall had asked him for the location of the citation that he had issued two days earlier concerning the rubbing belt. Mr. Cantrell concluded that Inspector Hall walked by the belt and it looked okay to him, “because if it was rubbing, he would have knowed it to me”. Mr. Cantrell stated after informing Inspector Hall that he had passed the section where the citations had been written, Mr. Hall did not turn around and walk back (Tr. 418).

            Mr. Cantrell stated that he was not informed that an order was going to be issued before Inspector Robinette handed it to him and commented “You didn't do anything to your belts”. Mr. Cantrell responded “Bull Crap. We did a lot of work to the belt”. He then shut the belt down and production ceased, and he informed his boss that an order was issued on the belt. He denied that he informed the inspector that he had not looked at the belts, or that he merely relied on what people had told him what had been done. Mr. Cantrell stated that he looked at the belt several times but not on April 7^th (Tr. 420).

            On cross-examination, Mr. Cantrell stated that walking with inspectors is part of his job as a mine foreman and that he takes the termination of citations seriously. He confirmed that on April 5^th, when the inspectors first arrived, he did not travel underground with them because he was already at the face and did not know they were there until they arrived at the face. He stated that when the inspectors returned on April 7^th, at 5:30 a.m., to terminate two citations, he had not been underground since the day shift of April 6^th, which ended at 4:00 p.m., or the evening and owl shifts that day or on April 7^th , before the inspectors arrived.

            Mr. Cantrell stated that the mine was rock dusted on Sunday, April 4^th, and that it was still there on April 5^th, and that what the inspectors claim they observed was “their opinion”. He also believed that Mr. Van Dyke's testimony that the belt did need dusting when he worked the evening shift on April 5^th was “his opinion”. Mr. Cantrell stated that he had no notes to corroborate his detailed testimony where he walked underground on April 5^th and 7^th, “Because all my notes are gone”, and that his testimony of where he walked two years ago is based on his memory (Tr. 428).

            Mr. Cantrell confirmed that he did not tell the inspectors that he had not been underground on the morning of April 7^th, when the orders were issued, or since the day shift on the day before, and did not tell them about all of the abatement efforts that were made at the time the order was issued. He also confirmed that he did not tell them about the belt splice that was made, the four additional rollers that were added to the belt, or that two top cradles had been removed. He explained that he was under an order and saw no point in arguing with the inspectors. He confirmed that he did not ask for an extension and believed that they should have asked him before issuing an order, and that he said nothing further (Tr. 436-441).

            Mr. Cantrell stated that the inspectors were at the mine initially on April 5^th, to follow-up on a prior citation issued on the mine belt and ventilation system. They checked the baffles that day and extended the citation abatement time and did not issue an order (Tr. 442). Mr. Cantrell stated that the belt air citation was corrected the same day by the inspectors, and he believed the inspectors issued the order as an excuse to shut the belt down to address the ventilation problem (Tr. 446). He agreed and admitted that float coal dust was at the baffle on April 5^th, and that it would probably support a citation (Tr. 447).

            Mr. Cantrell explained the process for making a flexco metal splice, but did not believe the splice would necessarily “be rubbing a belt hanger if the belt was rubbing the hanger. He confirmed that he often took the temperature of belt rollers or hangers, which ranged from 70 to 80 degrees at normal belt speed, and from 140 to 150 degrees with speed reducers and bearings. He did not believe that a “hot” roller or hanger would pose an “S&S” hazard, but a roller that breaks down resulting in metal-to-metal sparks that causes it to glow would be (Tr. 456-460).

            Mr. Cantrell stated that when he observed the belt on the evening of April 5^th, as stated in his deposition of February 24, he agreed that it needed some training or adjustment but the belt dusting was “Okay”. He confirmed that the belt always needs to be trained to keep it in alignment, and that on April 5^th, it was “walking from side-to-side” but was not rubbing. He considered this to be routine belt maintenance (Tr. 462-467).

Findings and Conclusions

The Section 104(a) Citations

            The Respondent argues that Citation No. 8166773 should not have been issued and that the Secretary has not established a violation of Section 75.400, by a preponderance of the credible evidence. In support of its argument, the Respondent asserts that the evidence establishes that on April 4^th, before the citation was issued, the #3 belt was rock dusted with a machine while the belt was not operating, and that when the inspectors arrived at the mine on April 5^th, only two to three cuts had been taken, and that the amount of coal could not account for the amount of float coal dust the inspectors claim they saw along the #3 belt.

            The Respondent further disputes any suggestions that the cited float coal dust accumulations existed along the entire length of the #3 belt from the belt drive to the belt tailpiece based on the testimony of Mr. Tilley who was with the inspectors during their inspection on the section.

            Mr. Tilley testified that although he was with the inspectors on April 5^th, for an hour and a half, he was not with them while they were on the section the entire time and could not confirm whether they walked to the belt tailpiece and the other end of the belt after he left them (Tr. 325, 328-329).

            The Respondent relies on the testimony of Mr. Cantrell and Mr. Sluss who testified that at the time the inspectors viewed the belts at the baffle area, rock dust was not needed. Respondent cites the testimony of Mr. Cantrell that the citation should not have been issued on April 5^th, based on his visit and review of the area after the citation was issued and found the area “did not look like it needed to be rock dusted” (Tr. 406, 409).

            The Respondent also cites the testimony of Mr. Goode who states that when he “made the belt” on the evening of April 5^th, he believed the rock dust was appropriate. Also cited is the testimony of Mr. Van Dyke, who confirmed that while the area around the baffles might have needed some rock dusting, the condition was not so severe to warrant a citation.

            I take note of the fact that when Mr. Van Dyke arrived at the evening shift on April 5^th, the citation had already been issued (Tr. 379-380). He testified that he observed some float coal dust, but did not believe that a violation was warranted because “it really wasn't that much, but there was some, there's no definition, and it's just a judgement call on the float dust both ways I guess (Tr. 380).

            Mr. Sluss testified that he was with the inspectors on April 5^th, and that he observed float coal dust that day at the baffles and that he “dragged or blew it off and that it was “a trace of black coal dust or what I call the coal fines” (Tr. 362). He did not see any coal dust at the other cited locations because that day he was only present at the baffle between breaks 77 to 81 (Tr. 361-361). Mr. Sluss further testified that when he returned the next day, April 6^th, he observed rock dust that was “grayish and blackish” in color, that he claimed was the “usual colors of the dust used (Tr. 338).

            I take note of the fact that when Mr. Cantrell was asked by the Court to further clarify his earlier testimony that float coal dust existed “to some extent”, he confirmed that he was referring

to the existence of float coal dust at the baffle area, and admitted that the condition existed at that location that was not taken care of and that it would probably support the citation (Tr. 447).

            After careful consideration of the Respondent's arguments and reliance on the testimony of its witnesses regarding the existence of the cited coal dust, I reject the Respondent's assertion that it establishes that no accumulations of float coal dust existed at the time the citation was issued on April 5, 2010, and that the alleged violation should be vacated.

            I conclude and find that the credible testimony of Inspector Hall, including his notes made at the time of the inspection (Ex. P-6, at 6), as well as the testimony of the Respondent's witnesses, support a violation of Section 75.400 requiring accumulations of float coal dust to be cleaned up and not permitted to accumulate.

            With regard to the extent of the cited float coal dust accumulations, the first sentence of the citation states that float coal dust, black in color, accumulated along the off-side and in the adjacent crosscuts along the No. 3 belt conveyor from the belt drive to the tail piece. That entire area is shown in the diagram of the belt (Ex. P-l), and the float coal dust is shaded in a gray color that gives the impression that the float coal dust was present along the entire length of the belt. The Secretary's counsel described the area in question as the travelway side of the belt, and stated that the float coal dust was at “spot locations”, and that the area from crosscut 82 to the tail piece depicted in gray color also reflected float coal dust in “spot locations” (Tr. 69).

            The remaining float coal dust area described in the citation, and shown on the diagram, was at the two newly constructed regulators (baffles) near belt stopping No. 82. Although the “spot locations” are not otherwise described in any detail, I find that the presence of float coal dust accumulations noted by Inspector Hall at the adjacent crosscuts, and at the baffles in the areas of Stopping 82, has been established by his credible testimony that is consistent with his notes made at the time he issued the citation on May 5, 2010 (Ex. P-6).

            Based on all of the aforementioned findings and conclusions, I conclude and find that the Secretary has established a violation of the cited Section 75.400, by a preponderance of the credible evidence adduced in this case and the violation IS AFFIRMED. Further, based on my earlier findings and conclusions denying the Secretary's motion to amend the citation to S&S, I AFFIRM Citation No. 8166773, April 5, 2010, as a non - S&S violation of Section 75.400.

            With respect to Citation No. 8166774, citing Section 75.1731(b), for failure to properly align the No. 3 belt to prevent it from rubbing against the structure or components, the Respondent argues that the citation is inaccurate. In support of its argument, the Respondent relies on the testimony of Mr. Sluss who stated that he observed the belt rubbing against two hangers on April 5^th, and that Inspector Hall's contention that 12-14 were rubbing is not accurate.

            The Respondent asserts that Mr. Hall relied on belt hanger marks that were the result of prior rubbing, and that this was refuted by Mr. Sluss who testified that the hangers were dull and rusty, and did not show signs of recent rubbing and were likely from the belt structure when it was in some other location.

            The Respondent argues that while the two hangers may have been a technical violation, no injury could be expected to the nine people listed as affected. The Respondent asserts that the inspectors had no basis to conclude that a fire would have been reasonably likely, or whether the

belt was even capable of catching the belt or float coal dust on fire. Under these circumstances, the Respondent maintains that the citation should not have been designated S&S or affecting nine people, or specially assessed.

            Inspector Hall's notes state that the misaligned belt caused it to rub against 14 belt hangers that he observed. His notes reflect his belief that the rubbing created heat from friction, but only two hangers were hot to the touch, and he noted that one hanger was at cross-cut #84, and the other one was at cross-cut #81. Referring to the belt diagram, Exhibit P-l, Mr. Hall testified that he observed the 14 bottom belt hangers rubbing the belt in the general area between cross-cut #81 and #84, but he could not state the specific hanger location, and indicated they were not in a consecutive row (Tr. 94,136).

            Mr. Goode testified that a properly aligned belt should run “dead center” on the belt cradle regardless of whether the belt is loaded or unloaded. He believed that a “misaligned” belt is one that is actually up on the hanger that could rub it and cause a fire (Tr. 274-275). He also believed that a belt can move back and forth without being completely misaligned and this may be corrected by “training” the belt by striking the cradles with a hammer or sledgehammer (Tr. 276).

            Mr. Sluss confirmed that he was with the inspectors on April 5^th, at the #3 belt baffle location and that Inspector Robinette commented that he smelled belt smoke where the belt had been rubbing on a wooden board across the baffle and that he too smelled smoke. He stated that he and Inspector Hall walked from the baffle for three or four breaks and they observed the belt rubbing on two bottom belt hangers (Tr. 332).

            Mr. Sluss stated that he and Inspector Hall looked down the belt line “and you could see there was something like I think Bobby said 12 hangers that at some time or another the (sic) had rubbed them and they had cut into the hangers”, but that he (Sluss) only observed two hangers that were rubbing the belt (Tr. 334-335).

            Mr. Sluss testified that after returning to work the next day on April 6^th, the belt “walked

back and forth”, but was not rubbing, and that he and Mr. Barrett performed some corrective work, and after observing the belt for two hours, it was still “walking back and forth”, but was not rubbing at any place and they left the area and proceeded to the surface (Tr. 366-337). Mr. Barrett testified that the belt was misaligned on April 6^th, when additional belt rollers were added to the belt at breaks 81 and 84, the areas cited by the inspector, but the belt was not rubbing (Tr. 391).

            Mr. Sluss confirmed that a “walking belt” condition occurs when the belt is not centered (Tr. 347). He believed that a belt running “a little side-to-side” could be caused by a roller build up or a crooked splice, and that a misaligned belt would possibly rub the hangers if not centered (Tr. 357). He further believed that a misaligned belt could destroy a belt and result in down time, and would be a safety concern (Tr. 360).

            Mr. Van Dyke testified that when he observed the belt on April 5^th, after the citation was issued, it may have been misaligned and rubbing in a few places, and while he could not exactly remember, he stated that “it was probably” misaligned. He confirmed that when he was deposed he stated that the belt was misaligned or rubbing “in a few places” (Tr. 383-384). He also recalled stating that on April 7^th, when he observed the belt it was misaligned “a little” and that “we did some training” to abate the order because the belt had not been running for several hours and had dried out and had rock dust on it (Tr. 388-389).

            Mr. Cantrell confirmed that when he observed the belt on the evening of April 5^th, as stated when he was deposed, he agreed that it needed some training or adjustment, and that a belt always needs to be trained to keep it in alignment, and that on April 5^th, the belt was “walking from side-to-side” but was not rubbing, and he considered this to be routine belt maintenance (Tr. 462-467).

            I conclude and find that the Respondent's reliance on the aforementioned testimony of its witnesses speaks more to the hazards associated with a misaligned belt rubbing a belt hanger, and is relevant to the S&S gravity determinations made by Inspector Hall, rather than the initial issue concerning whether or not the cited belt was properly aligned to prevent the moving belt from rubbing against the belt structure or components as requested by Section 75.1731(b).

            I conclude and find that the credible testimony of the inspectors, and in particular Inspector Hall's testimony that is consistent with his notes made on April 5, 2010, (Ex. P-6), and in part by the Respondent's witnesses, establishes that the No. 3 belt was not properly aligned to prevent the belt from rubbing against at least two hot belt hangers at cross-cuts #81 and #84, as well as other rollers that he observed. Accordingly, I conclude and find that the Secretary has established a violation of Section 75.1731(b), by a preponderance of the evidence adduced in this case, and the violation IS AFFIRMED.

Significant and Substantial Issues

            A significant and substantial (S&S) violation is described in Section 104(d)(l) of the 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).

The Commission has explained that

In order to establish that a violation of a mandatory safety standard is

            significant and substantial under National Gypsum, the Secretary of Labor

            must prove: (1) the underlying violation of a mandatory safety standard; (2)

            a discrete safety hazard-that is, a measure of danger to safety-contributed to

            by the violation; (3) a reasonable likelihood that the hazard contributed to will

            result in an injury; and (4) a reasonable likelihood that the injury in question

            will be of a reasonably serious nature.

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. Secretary, 861 F.2d 99, 103-04 (5^th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            In US. 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.” US. Steel

            Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized

            that, in accordance with the language of section 104(d)(l), 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, 1574-75 (July 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. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            In support of the inspector's S&S determination for Citation No. 8166774, the Secretary cites several ALJ decisions concluding that a belt rubbing the structure or component parts produces frictional heat and constitutes a potential hazardous ignition source. Citing the S&S criteria in Cement Div., Nat'l Gypsum Co. and Mathies Coal Co., the Secretary argues that the failure by the Respondent to ensure that the belt was in proper alignment and not rubbing on the belt structure or components contributed to a discrete safety hazard of ignition on the belt or a belt fire, given the presence of an ignition source. The asserted heat source was the misaligned belt rubbing bottom roller hangers, creating frictional heating and causing two of the hangers to be hot to the touch in the same area that Inspector Hall cited float coal dust in Citation No. 8166773.

            The Secretary asserts that it is not necessary to prove that a belt fire or ignition was reasonably likely to occur at the mine on the day the citation was issued, and that the fact that Inspector Hall could not testify as to how long it would take for the two hot rollers he observed would get hot enough to ignite the belt or the nearby float coal dust, as claimed by the Respondent, does not affect the S&S finding by Inspector Hall. The Secretary further states that the fact that the inspector did not measure exact temperature of the hot rollers does not affect his S&S finding since the belt examiner Goode testified that in the eight to ten years of doing belt examinations, he admitted that he has never taken the temperature of a belt at the mine

(Tr. 293-294).

            Incorporating the arguments associated with dust Citation No. 8166773, the Secretary argues that the inspectors believed it was reasonably likely that the hazard contributed to-a belt fire or ignition on the belt-would result in an injury to miners because the rubbing of the 14 bottom hangers constituted a frictional source of heat which would be reasonably likely to result in injury if those conditions continued unabated. Assuming normal continued mining operations, the Secretary concludes that the belt continuing to rub the bottom hangers would have resulted in increased friction and caused the temperature at those points of contact to increase over time and were likely to cause a fire or ignition given the quantity and extent of the belt float coal dust.

            The Secretary asserts that the inspectors confirmed that the entry housing the No. 3 belt line shared the same air as the secondary escapeway which ran parallel to the belt line in the next entry. The Secretary states that this added an additional concern because a belt fire would affect the secondary escapeway which was the normal and quickest route of escape for miners working inby because it was the main travelway that could be traveled by mantrip (Tr. 90, 213, 252).

            The Secretary further cites Inspector Robinette's testimony that on April 5^th, the mine was using exhaust ventilation, which pulls the air from the belt line toward the working section where nine miners work, and if an ignition occurred on the No. 3 belt line, the smoke from the ignition would go to the working section where the miners were working. The last concern advanced by the Secretary adding to the risk of ignition was the fact that the mine was on a 15-day 103(I) spot inspection on April 5^th, for liberating methane in excess of 200,000 cubic feet in a 24-hour period. Under all of these circumstances, the Secretary concludes that the evidence establishes that a confluence of factors was present on April 5^th that made a fire, ignition, or explosion reasonably likely and supports the S&S determination by Inspector Hall.

            With regard to the last prong of Mathies, the Secretary states that the evidence establishes that the injury caused by a belt fire or ignition would be of a reasonably serious nature, including death, in that the miners working inby would be expected to suffer smoke inhalation or death if they were unable to escape the mine in time. Given that nine miners were working inby the No. 3 belt line at the time of citation, it is likely that as many as nine miners would suffer smoke inhalation or be unable to escape the mine if overcome with smoke during a belt fire or ignition

.

            Inspector Hall described the discreet safety hazard as the “coal dust or the float dust” catching fire from an ignition heat source, and he was concerned with the possibility that the belt, coal dust, or the mine would catch fire (Tr. 144-145).

            Inspector Hall identified the ignition heat sources as the belt hangers that he stated were rubbing the belt, and in particular two of the hangers that were “hot to the touch”, and “the wood” (Tr. 144). His “wood” reference related to a subsequent citation, that is not part of the case, that he issued because the misaligned belt was rubbing two ventilation baffles that he believed contributed to a frictional heating hazard (Ex. P-12).

            I find that the affirmance of the violation of mandatory safety standard 30 C.F.R. § 75.1731 (b), establishes the first Mathies prong. With respect to the second prong requiring a discreet safety hazard, Inspector Hall confirmed that he based his S&S finding on the fact that the misaligned belt was causing the belt to rub against the cited belt hangers, a condition that he believed resulted in a frictional heat source from at least two rubbing belt hangers that could ignite the coal dust or float coal dust and possibly catch the belt on fire. I agree that a misaligned belt rubbing against belt hangers in the presence of a heat source presents a potential discreet safety hazard of a belt ignition fire. Accordingly, I conclude and find that the second Mathies prong has been established.

            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 the possibility of a belt fire, and in the event it occurred, the possibility that the miners would be at risk due to the exposure of smoke, fire, heat, and air contamination that would impede their escape from the mine.

            The Secretary's reliance on the wooden baffle materials as a source of ignition contributing to the inspector's S&S finding is not well taken. The evidence establishes that those materials were removed by Mr. Cantrell and the Secretary's counsel confirmed that the baffles were “taken down immediately, so that heat source was taken down and dispensed with, which just left the belt rubbing, and they did not feel that itself was an imminent danger” (Tr. 23-24).

            I take note of the fact that when the inspectors initially observed the cited float coal conditions and the belt rubbing the hangers, they took no action to shut the belt down and it continued to run coal. They continued their inspection for several hours before returning to the area later in the afternoon when then they issued the citation (Tr. 21-22).

            The Secretary's explanation for not stopping the belt was based on the inspectors belief that the conditions did not immediately pose a fire danger, and that any S&S assessment would have to be considered in the context of continued mining operations (Tr. 23). I find the explanation to be contradictory in that normal mining operations were allowed to continue in spite of their observations that the belt was creating friction and heat by rubbing several belt hangers, two of which were hot to the touch, in an area of accumulated float coal dust.

            Inspector Robinette confirmed that his opinion that the citation was S&S was based on the fact that two of the 14 belt hangers were hot to the touch and the rest were warm. When asked to explain the belt catching fire, he responded “I didn't say the belt would catch on fire. Float coal dust was my issue and my big concern”. When asked to further explain what would catch the float dust on fire, he responded,“[s]uspended float coal dust” (Tr. 255). He further stated that if a piece of rock dust should fall, with suspended float coal dust in the area, “there is a likelihood of a fire or explosion” (Tr. 255-256). I find Mr. Robinette's testimony regarding float coal in suspension is unsupported speculation and not credible, given the fact that he and Inspector Hall observed no float coal in suspension.

            I further find Inspector Robinette's testimony that in the absence of any falling rock dust “I guess something else would have to suspend float coal dust, maybe some walking or traveling the area” (Tr. 256), is likewise speculative. Indeed, he could not recall if he observed any foot prints on the float coal dust (Tr. 205). In this regard, Inspector Hall observed no foot prints on the ground at the offside walkway, and confirmed that no one would probably be there (Tr. 73-75).

            Mr. Robinette conceded that none of the citations, orders, or his inspection and CLR conference notes mention the possibility of falling rock dust or suspended float coal dust (Tr. 256-257). He further confirmed the absence of any evidence of coal spillage, or accumulations, or the backup of coal in the belt rollers, or any float coal accumulations turning in the rollers (Tr. 257-258).

            Inspector Robinette believed nine miners were exposed to hazards, and there were two escapeways provided, namely the intake air course escapeway and the secondary escapeway. He confirmed that the normal and quickest escape route would have been the secondary escapeway to the belt air course. However, in the event the course was contaminated with smoke, the miners would be exposed to smoke in the secondary escapeway (Tr. 212-213).

            I take note of the fact that the inspectors went to the mine on April 5, 2010, to follow up on a previously issued citation. Inspector Robinette's notes reflect that he and Mr. Hall were there to terminate a ventilation violation due that day, and they were at the face working on that problem before discovering the cited conditions in this case on their way to the surface.

            Inspector Robinette explained that the mine had an exhaust fan that pulled air out of the return air course and up the intake air course to the belt air course. He stated the Respondent was in violation because it could not prevent the air from the belt air course from entering the working section, and if the belt air course was contaminated with smoke it could end up on the working section (Tr. 214). Except for the brief testimony of the inspectors regarding the escapeways, I find absolutely no references in their notes or the CLR conference reflecting any potential escapeway hazards associated with the cited conditions in this case.

            With respect to the ventilation violation alluded to by Inspector Robinette, no further relevant testimony or evidence was forthcoming with respect to that matter. However, I take note of the fact that Inspector Hall's notes of April 5, 2010, state in part that “[t]he operator has developed a plan to change exhausting fan system to a blowing fan system. The belt air entering the 001 mm has been significantly reduced. More time is granted for further efforts to eliminate the belt air from entering the mm...” (Ex. P-6, at 8). It would appear to me that the violation and problem that concerned Mr. Robinette was being addressed on April 5, 2010, and presented no hazards requiring immediate attention.

            Inspector Hall confirmed that his methane readings did not detect the presence of any methane, and he observed no float coal dust in suspension, or any exposed wires (Tr. 130,144). He confirmed that his notes do not reflect the presence of any smoke, and I find that the only mentioned an “odor of smoldering wood, and not smoke” (Tr. 188-189). He confirmed that the float coal dust on the mine floor was ''probably on the rib from three to four feet” from the two hot hangers, and “occasionally on the structure” (Tr. 151-152).

            Inspector Hall confirmed that the belt was fire resistant and fire retardant, and that it is designed to extinguish a belt fire at a certain temperature after a direct flame is applied, but he did not know the temperature required to start a fire (Tr. 141-142). However, he agreed that it would take more than a temperature of 140 degrees Fahrenheit to ignite a belt fire, and confirmed that he did not take the temperature of any belt hangers (Tr. 140-141).

            Mine Foreman Sluss testified credibly that he measured the two belt hangers that he and Inspector Hall observed were rubbing the belt, and they measured 74 and 75 degrees on his digital thermometer (Tr. 332). Mr. Sluss confirmed that from that vantage point he and Inspector Hall looked down the moving belt line and that Mr. Hall commented that “at some time or another the belt had rubbed them and cut into the hangers” (Tr. 334).

            Inspector Hall testified that the belt hangers were located at different places and not consecutively in a row. When asked it the belt was actively rubbing any of the hangers as he observed it, he replied, “[y]es”. When asked how many were rubbing, he stated “fourteen”. When asked if all 14 hangers were touching the belt, he responded, “[n]o”. He confirmed he saw damaged hangers and evidence they had been rubbed at some point (Tr. 139-140).

            I find that Inspector Hall's testimony that he observed all 14 belt hangers being rubbed by the belt, while at the same time confirming that none of the hangers were touching the belt is inconsistent and contradictory. I find credible the testimony of mine Foreman Sluss who stated that while they were observing two of the hangers, Mr. Hall commented that the belt had rubbed the hangers “at some time or another”. Based on the conflicting testimony of Inspector Hall, and the confirmation of his comments by Mr. Sluss, I conclude and find that it is just as likely as not that what Mr. Hall observed when he looked down the running belt line was evidence of past belt rubbings and not the belt actually and actively rubbing the remaining belt hangers.

            In addition to all of the aforementioned circumstances, the credible evidence in this case establishes the following prevailing conditions; (1) the absence of any methane; (2) the absence of any float coal dust in suspension; (3) no exposed electrical wires; (4) no float coal dust turning

or backed up in any of the belt rollers; (5) a fire resistant and retardant belt line; and (6) the absence of any rock dust or foot prints on the float coal dust accumulations that would indicate the presence of anyone in the area.

            After careful consideration of all of the arguments and evidence presented with respect to this violation, I cannot conclude that the third and fourth prongs required by the Mathies test have been established by a preponderance of the credible evidence. Based on all of the foregoing findings and conclusions, and in the context of continued mining operations, I conclude and find it unlikely and improbable that the two belt hangers observed by the inspector, as well as the remaining hangers that evidenced past rubbing by the belt were viable heat sources that would contribute to, or result in a belt fire, or an injury of a reasonably serious nature. Further, I find no credible evidence of any confluence of factors could have come together to produce any ignition, combustion, fire, or other injury producing hazards described by the inspector. Accordingly, his significant and substantial (S&S) violation finding IS MODIFIED to non-significant and substantial (non - S&S).

The Section 104(b) Orders

            In order to establish the validity of a Section 104(b) Order, the Secretary has the burden of proving by a preponderance of the evidence the existence of the initial underlying citation, including a reasonable time for abatement; the expiration of the abatement time; the failure to abate the cited violative conditions; and that the abatement time should not be extended. Clinchfield Coal Co. v. UMWA, 11 FMSHRC 2120,2135 (November, 1989).

            The Respondent may rebut a prima facie case of validity by the Secretary by establishing that the alleged violative conditions described in the citation were abated within the abatement time fixed in the citation, but had recurred. Mid-Continent Resources. Inc., 11 FMSHRC 505, 509 (April, 1989).

            The Secretary's position is that in order to terminate a Section 104(b) Order, the conditions cited in the underlying citation must be totally corrected and abated. However, if an operator has made an effort to abate the conditions, an inspector has the discretion to extend the time for abatement (Tr. 481-482). Inspector Hall confirmed his understanding that a Section 104(b) order should be issued when an operator fails to abate or make any kind of effort to totally abate the violation (Tr. 128).

            The Respondent's contests of the Section 104(b) Orders are based on its assertion that the violations alleged in the underlying citations did not exist, had been abated and that the orders were issued for different conditions than those initially cited. The Respondent does not contend that the initial abatement times were unreasonable, that the cited conditions recurred, or that the inspector should have extended the time for the abatements.

            Based on my findings and conclusions affirming the cited violations, including the existence of the cited conditions on April 5^th, when the inspectors observed the conditions and issued the citations, I reject the Respondent's assertion that Mr. Cantrell’s visit underground that same day after the inspectors left, and his belief that the belt appeared properly rock dusted and aligned and was not rubbing, is uncontradicted evidence that the conditions were abated at that point in time. The Respondent points out that the inspectors did not return to the mine until

April 7^th, two days after the citations were issued, and therefore did not, and could not, testify that the Respondent failed to correct the conditions prior to the termination times.

            Relying on the testimony of its witnesses, and including the contemporaneous work orders documenting what the Respondent believes were significant efforts to insure the timely abatement of the cited conditions, the Respondent argues that during the two days prior to the return of the inspectors, steps were taken to dust the belt and to make sure the belt ran properly trained.

            The Respondent states that tons of dust was applied in a careful manner, including the offside, the belt was lowered, trained, watched, inspected, dusted again, and observed by numerous employees. Sluss came to work on his normal day off to see that the cited conditions did not exist. Barrett worked on the belt. Cantrell observed the belt. Amburgy and the owl shift worked on the belt both nights. Goode inspected the belts and changed out top cradles, and a belt splice was replaced. The Respondent concludes that all of these efforts contradicts the vague testimony of the inspector about the condition of the belt.

            With regard to Order No. 8166777, the Respondent disputes the credibility of the inspectors who testified that when they returned on April 7^th, the belt alignment and rubbing conditions appeared to be the same as they appeared on April 5^th, and that no effort was made to correct the conditions. The Respondent asserts that the inspectors made no effort to show that on April 7^th, the belt was actually rubbing at the same locations they claimed was rubbing on

April 5^th. The Respondent states that Inspector Hall was confused about the location of the belt that prompted the issuance of the underlying citation.

            In support of its assertion that Inspector Hall was confused about the belt rubbing location, the Respondent cites Mr. Cantrell's testimony that when the inspectors returned on April 7^th, to abate the citation, Inspector Hall asked him for the location of the area where the belt had been raised and then lowered, and that he informed Mr. Hall that he had passed by the area by several breaks while walking by the area (Tr. 416-417).

            The Respondent further argues that Inspector Hall's confusion continued when he abated the order and identified the belt location where the belt corrections (realignment, adjustments to several bottom belt rollers) were made in the area from crosscuts #34 to #80, and not the areas between breaks 81-84, as described in his underlying citation.

            The Secretary relies on the testimony of the inspectors that the originally cited belt misalignment and rubbing conditions located between crosscuts 81 and 84, were not abated on April 7^th, and still existed at the same location that was cited on April 5^th, and were not a recurrence (Tr. 108-109; 221). With respect to Inspector Hall's “confusion” regarding the area where the original belt condition was cited, the Secretary asserts that Mr. Hall asked Mr. Cantrell about the location of the area where the belt had been previously raised up, but was not confused as to the location of the originally cited area (Tr. 172).

            The Secretary states that even if Inspector Hall was confused underground, there is no suggestion that Inspector Robinette was similarly confused, and that they both walked down the No. 3 belt from the tailpiece to the drive on April 7^th (Tr. 172, 219, 417). The Secretary further states that the inspector's contemporaneous notes, and Mr. Robinette's notes from the CLR conference, written approximately three weeks after the order was issued, are consistent with their testimony.

            With regard to Order No. 8166778, the Respondent argues that it undertook major efforts to dust the belt, and that tons of dust were applied in a careful manner, including the off-side, and was dusted again and observed by its employees. The Respondent further cites the rock dusting work orders and instruction to the hoot owl crew and the testimony of the crew who dusted the belt on April 6^th and 7^th (Ex. R-l).

            I take note of an April 6^th work order notation that states “Dust #3 belt from tail piece to drive, make sure you get the offside good. 8 pallets dust”. An April 7^th notation states, “[r]e-dust #3 belt where you dusted last night. It looks good but inspectors didn't come and check it”.

            The Secretary argues that when the inspectors returned to abate the order on April 7^th, they found the originally cited condition had not been abated. Instead, Inspector Hall observed float dust accumulations along the offside of the belt and in the crosscuts adjacent to the offside, one of the same areas he previously cited (Tr. 119-120, 161, 225).

            The Secretary cites the testimony of Inspector Robinette that based on his 40 years of mining experience, the conditions cited on April 5^th, could not have recurred to the same extent as what he saw on April 7^th, if the condition had been fully abated before they returned because not enough time had passed to allow recurrence to worsen (Tr. 225). Further, the Secretary states that it is undisputed that the inspectors walked the length of the No. 3 belt from the drive to the tailpiece together on April 7^th (Tr. 172, 219), and that this was confirmed by Mr. Cantrell (Tr. 417).

            Inspector Hall testified that he was called by the Respondent on April 7^th, to return to the mine to abate the citations and that he arrived at approximately 6:05 p.m. He stated that the work was still ongoing to correct one or both of the orders and he was informed that “a few more minutes” was needed to complete the abatements, and that he terminated both orders at approximately 10:20 to 10:30 p.m. (Tr. 123-124).

            The abatement time for Citation No.8166773, was April 6, 2010, at 9:00 a.m. However, the inspector did not return until the April 7^th day shift at 5:30 a.m. Inspector Hall's notes reflect that “no apparent effort was made to eliminate the accumulations of float coal dust along the No. 3 belt along the offside and adjacent x-cuts” (Ex. P-8, at 8). Inspector Robinette's day shift notes of April 7^th, state “traveled to secondary escapeway to #3 belt T.P., walked belt air course. Float coal dust present in x cuts and on ribs, B order issued, traveled to surface” (Ex. P-9, at 8).

            Inspector Hall testified that after he issued the Section 104(b) order on April 7^th, Mine Superintendent Darrell Holbrook telephoned his office and stated that the mine was ready for inspection at 6:00 p.m. (Tr. 123). Mr. Hall's notes reflect that he arrived at the mine at 6:05 p.m., and Mr. Holbrook informed him that the cited conditions would be ready for examination at 6:00 p.m. (Ex. P-10, at 2).

            Inspector Hall testified that Mr. Holbrook informed him that he needed “a few more minutes to complete it”, and Mr. Hall concluded that work was still taking place to abate one or both of the orders “that he needed more time on”, and that he subsequently terminated the order at 10:20 p.m. (Tr. 124). (Note: Mr. Holbrook did not testify in this case.)

            Inspector Hall testified that on April 7^th, he walked the belt from the tail piece to the drive and that the float coal dust accumulations had not been totally cleaned up (Tr. 106). When asked if he observed any newly applied rock dust, Mr. Hall responded “The right - the walking side, they could have -1 don't know. They may have improved, but it was a question as well” (Tr. 120).

            Inspector Robinette testified “there appeared to be little effort to take care of the coal dust underneath the belt, on the offside of the belt, as well as in the adjacent crosscuts”. He further believed if any rock dust had been applied it was in the travelway, but “there were still places deserved more rock dust” (Tr. 225).

            Inspector Robinette further confirmed that some rock dust could have been in the travelway where the belt examiner travels in crosscuts connecting the belt. When asked if the travelway was completely covered with coal dust, Mr. Robinette responded “no, sir. The travelway was not the main issue. It was underneath the belt, the offside of the belt and adjacent crosscuts” (Tr. 261).

            The April 5^th citation issued by Inspector Hall, describes float coal accumulations at three locations, namely (1) the offside on an adjacent crosscuts from the belt drive to the tailpiece; (2) spot locations on the travelway at crosscut #82 extending to the tailpiece; and (3) between two newly constructed regulators near stopping #82. Inspector Hall's notes reflect that the Order was based on his observations that “no apparent effort” was made to clean up the float coal accumulations along the belt offside and adjacent crosscuts, one of the three locations described in the citation. There are no notations regarding the other two locations.

.

            I disagree with Inspector Hall's conclusion that “no apparent effort” was made by the Respondent to address the cited float coal accumulations. He testified that the walkway side of the belt could have been rock dusted and may have improved the conditions, and Mr. Robinette testified that the travelway was not completely covered with coal dust and that some rock dust may have been applied at that location.

            I find that the credible testimony of the Respondent's witnesses Amburgy, Sluss, and Van Dyke concerning the rock dusting work they performed on April 5^th- 6^th, reflects some effort by the Respondent on those two days to correct and abate the cited conditions. However, I find no evidence that any of these individuals observed the conditions when the inspectors returned on April 7^th to abate the conditions, and I am not convinced that the rock dusting work that they performed completely or totally abated the initial conditions cited by the inspectors prior to their return on April 7^th.

            Mr. Cantrell testified that he was underground at the face when the inspectors arrived on April 5^th, and that when they arrived on April 7^th, he had not previously been underground since the day shift on April 6^th (Tr. 423-425). He confirmed that he was at the mine when the inspectors returned on April 7^th, but since he was not dressed, he sent Mr. Barrett and field boss Jeff Messer to the section to meet the inspectors. He confirmed that when he traveled to the section to meet the inspectors, they had already passed the area where the citations were issued (Tr. 414-418). (Mr. Messer did not testify.)

            When asked if the belt conditions on April 7^th, were in the same poor conditions as the inspectors claimed they were on April 5^th, Mr. Cantrell responded, “[n]o” (Tr. 420). He then stated “I went and looked at it several times. I didn't look at it on the day of the 7th, no” (Tr. 420). Although it would appear that Mr. Cantrell may have observed the underground conditions of the No. 3 belt on April 5^th, when the citation was issued, based on his own testimony, he did not observe them after the day shift on April 6^th, or on April 7^th. Under the circumstances, I have given little persuasive weight to his conclusions that the cited float coal accumulations did not exist, or were totally abated before, or on, April 7^th when the inspectors returned.

            Mr. Cantrell confirmed that he understood the difference for a Section 104(b) Order, and that even though work had taken place to correct the cited float coal dust conditions, if they were not fully abated an order would be issued (Tr. 421). He further confirmed that he did not argue that more time should have been given for abatement because of his belief the citation, as well as the order, should not have been issued, and there was no point in arguing with the inspectors (Tr. 422,438).

            After careful consideration of all of the testimony and evidence adduced with respect to this citation, and taking into consideration my finding that the Respondent made an effort to timely abate the cited float coal conditions, I nonetheless conclude and find that the credible testimony and observations by the inspectors with respect to those conditions, as well as the ongoing abatement work that was still taking place after Inspector Hall was summoned to the mine to abate the conditions, establishes that they were not timely and completely corrected and abated and that any extension of time was not warranted. Accordingly, the Section 104(b) Order No. 8166778, IS AFFIRMED.

            Inspector Robinette testified that Order No. 8166777 accurately reflected his observations of the belt rubbing ''at various locations” on April 7, 2010, particularly at the areas between crosscuts 84 and 82 that were warm and hot to the touch “ from the day the citation was issued” (Tr. 221). He stated that on April 7^th, the belt was still misaligned at more locations, and some were still heating up. He did not believe the conditions could have reoccurred to that extent since April 5^th. He could not confirm Inspector Hall's comment that “no apparent effort” was made to abate these conditions and had no knowledge whether any effort had been made in that regard (Tr. 221).

            Inspector Robinette's notes for April 7^th, reflect brief notations stating “Belt hangers still being rubbed by conveyor belt, order issued (B). Float coal dust present in x cuts and ribs (B) order issued. No further details regarding locations are recorded (Ex. P-9).

            The Secretary's argument that Inspector Robinette's inspection and conference comments provide credible evidence confirming his observations that the cited belt conditions had not changed between April 5^th and 7^th, must be considered in context. I find that his notes simply confirm his testimony that he concurred with Inspector Hall's observations. I further find that Inspector Robinette's inspection and conference notes do not include any meaningful or credible explanations related to the actual conditions he observed on April 7^th, including the locations where they were observed.

            Inspector Robinette agreed that in the event the belt was rubbing at break #84 on April 5^th, and he found it rubbing at break #81 on April 7^th, it would not necessarily justify a Section 104(b) Order. He stated that it was not necessary to cite the same belt hangers because the citation related to the alignment of a “belt flight” and not the hangers. I find this contradictory and not credible.

            Inspector Robinette could not confirm that the hot belt hangers on April 7^th, were the same as those he observed on April 5^th. He further explained that a “belt flight” consists of a tail section and a head roller drive, not any specific roller, hanger, or crosscut. Although the citation cited the location of the condition as breaks 81 to 84, he believed it was the no. 3 belt flight that was cited (Tr. 249). I find that the citation issued by Inspector Hall speaks for itself, and find nothing in the conditions described as a violation, as well as his supportive testimony, do not reference any “belt flight”.

            I find credible Mr. Cantrell's testimony, that when he walked the belt with Inspector Hall on April 7^th, Inspector Hall asked him for the location of the belt area where it was rubbing the hanger and that he informed the inspector that he had already walked past the area by seven breaks (Tr. 416-417). I further find that Inspector Robinette's telephone contact with mine management prior to the hearing requesting information about the cited rubbing belt area supports a reasonable inference that he was unable to document the location, and made the inquiry in preparation for his hearing appearance with Inspector Hall.

             Inspector Hall testified that on April 7^th, the belt was running and he “eyeballed” it and counted 10 hangers rubbing the belt, and confirmed they were hot by placing his hand on the belt structure (Tr. 111). He stated that the hangers were located “at about the same location” described in his citation, and realized “right off the bat” that the cited condition was not abated (Tr. 109).

            Inspector Hall's April 7^th, day shift notes state that when he examined the belt it was still rubbing bottom roller hangers “at several locations along the belt” (Ex. P-8). However, the locations of the hangers are not noted, and the notes do not include any comments that the conditions were the same, or at the same locations previously cited on April 5^th. Inspector Hall's April 7^th, evening shift notes state that he traveled down the roadway to the No. 3 belt drive “down x-cut from x-cut 34-80, several bottom hangers were adjusted and belt realigned terminated 104-b order 2220" (Ex. P-10).

            Inspector Hall testified that with the passage of time over the last two years he had some difficulty in remembering some of the specifics of the violations without reviewing his notes (Tr. 132). He confirmed that his abatement Order #816777 clearly describes the location of the corrective abatement work as the area from crosscuts #34 to #80, and not crosscuts #81 to #84, as described in his underlying citation

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            Inspector Hall explained that the abatement area described in his order “was apparently a misprint of the numbers, or I wrote down wrong”, or it indicated the starting point of his re-inspection (Tr. 174). However, the notes that he relied on to refresh his recollection confirm the same location described in the April 7^th, abatement and termination order.

            Given the fact that the abatement orders, as well as the citations, are clearly typed, I seriously doubt the crosscut numbers in question were misprints. Further, I find the inspector's suggestion that the crosscuts may have been his “starting point” is not credible, and I conclude and find that the noted corrective work adjusting the bottom belt hangers and belt realignment that prompted the abatement and termination of the order occurred at crosscut areas #34 to #80, and not at crosscuts #81 and #82.

            I conclude and find that in order to establish the validity of a Section 104(b) Order for the alleged failure to timely abate the cited violative conditions, the burden of proof lies with the Secretary to establish by a preponderance of the credible evidence that the conditions and locations as described in the initial underlying Section 104(a) Citation, were not corrected or abated on or before the time fixed for abatement, and that they were the same conditions as those described in the citation.

             Based on the foregoing circumstances and findings, I conclude and find that the evidence adduced and relied on by the Secretary does not establish that the conditions observed by the inspectors in support of Inspector Hall's order of April 7^th does not establish that the belt

conditions they observed that day were the same conditions they observed on April 5^th when Inspector Hall issued the initial citation, or that the Respondent failed to correct and abate those conditions. Accordingly, Section 104(b), Order No. 8166777, April 7, 2010, 30 C.F.R. § 75.1731(b), IS VACATED.

History of Prior Violations

            The parties stipulated to the Respondent's history of prior assessed violations for the 15 months preceding the citations and orders issued in these proceedings (Ex. ALJ-1; Ex. P-15). The record reflects the issuance of 82 Section 104(a) citations, 60 of which are non - S&S, with minimum penalty assessments, and no Section 104(b) or (d) orders of any kind. With the exception of four cases in which hearings were requested, the Respondent paid in full the assessed penalty assessments for all of the remaining violations, all of which were assessed with a notation of “no excess history”.

            I conclude and find that for an operation of its size, and taken in context, the Respondent has a good compliance record that does not support any additional increases in the penalty assessments made in this case. Indeed, the Secretary's counsel agreed that this was the case and that the Respondent's violations history is not egregious (Tr. 474-476).

Good Faith Compliance

            Although the Respondent's failure to timely abate the cited conditions prompted the issuance of the orders, I nonetheless recognize the corrective work that began after the citation was issued on April 5^th, and continuing on April 6^th, until the inspectors returned on April 7^th, when abatement efforts were ongoing but not completed.

Gravity

            Based on my non - S&S findings, I conclude and find that the violations were not serious and were unlikely to result in serious hazards or injuries.

Negligence

            Inspector Hall's citations reflect that the violations were the result of moderate negligence, and he confirmed at hearing that this was the case (Tr. 99). I agree and affirm those designations as my findings.

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

            The parties stipulated that the Respondent is a large mine operator and that the penalties assessed for the violations will not adversely affect its ability to remain in business (Ex. ALJ-1).

ORDER

            In view of the foregoing findings and conclusions in these proceedings, IT IS ORDERED AS FOLLOWS:

            (1) Section 104(a) non - S&S Citation No. 8166773, April 5, 2010, 30 C.F.R. § 75.400, IS AFFIRMED. The Respondent shall pay a civil penalty of $1,400.00.

            (2) Section 104(a), S&S Citation No. 8166774, April 5, 2010, 30 C.F.R. § 75.1731(b),

IS MODIFIED to a non- S&S violation, and IS AFFIRMED. The Respondent shall pay a civil penalty of $600.00.

            (3) Section 104(b) Withdrawal Order No. 8166778, April 7, 2010, 30 C.F.R. § 75.400,

IS AFFIRMED.

            (4) Section 104(b) withdrawal Order No. 8166777, April 7, 2010, 30 C.F.R. § 75.1731(b), IS VACATED.

            The Respondent is ORDERED to pay a total civil penalty assessment of $2,000.00, in satisfaction of the aforesaid violations issued in this matter. 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.

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                                                                        /s/ George A. Koutras

                                                                        George A. Koutras

                                                                        Administrative Law Judge

Distribution:

Cheryl E. Carroll, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209

Cameron S. Bell, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212