FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9950

May 3, 2012

DECISION

Appearances:              Brian D. Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee for Petitioner

Jeffrey K. Phillips, Esq., Steptoe & Johnson, Lexington, Kentucky for Respondent

Before:                        Susan L. Biro, Chief Administrative Law Judge, U.S. EPA

            On January 26, 2009, the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), filed a Petition For Assessment of Civil Penalty (“Petition”) against Ohio County Coal Company (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act”), as amended, 30 U.S.C. §§ 815 and 820. By Order of Robert J. Lesnick, Chief Administrative Law Judge of the Federal Mine Safety and Health Review Commission, dated December 1, 2010, the case was assigned to the undersigned for adjudication.

            The Petition alleges twenty violations. However, on or about July 29, 2011, the parties filed a Joint Motion to Approve Partial Settlement, specifically their amicable resolution of 17 of the 20 alleged violations. The Joint Motion was granted and the Partial Settlement approved by Order dated January 4, 2012.

            The three remaining alleged violations are those identified by citations numbers 8489154, 8489163 and 8489493, for which the Secretary seeks penalties totaling $2,214.00. Citation 8489154 alleges a violation of 30 C.F.R. § 75.220(a) pertaining to roof control plans, specifically unsupported top with a loose roof bolt and fallen draw rock. Citation 8489163 alleges a violation of 30 C.F.R. § 75.211(d) pertaining to roof testing and scaling, specifically the lack of a pry bar on a roof bolting machine. Citation 8489493 alleges a violation of 30 C.F.R. § 75.604(b) pertaining to permanent splicing of cables, specifically a ground monitor wire protruding from a splice of trailing cable attached to a roof bolter machine and which failed to make the cable “effectively insulated and sealed so as to exclude moisture.” Respondent disputes both liability and the penalty assessed for Citation 8489163 (the pry bar). Respondent acknowledges liability but disputes the penalty amount for Citation 8489154 (the loose roof bolt) and Citation 8489493 (the cable splice).

            A hearing was held on the three disputed violations in Evansville, Indiana on July 27, 2011. The Secretary introduced the testimony of two witnesses at hearing: Jeffery Winders and Anthony Fazzolare. The Respondent offered evidence from four witnesses: Walter Wood, Robert Bosch, Wyatt Oates and Dennis Travis. Seven exhibits offered by the Secretary (nos. 11, 16, 18, 26, 27, 29, and 30) and two exhibits offered by the Respondent (nos. 1 and 2) were admitted into evidence. The Secretary and Respondent filed their Post-Hearing Briefs on September 23, 2011 and October 11, 2011, respectively (hereinafter cited as Secretary’s (“S’s”) Brief and Respondent’s (“R’s”) Brief). With the latter filing, the record closed.

            Burden of Proof

            “The Mine Act imposes on the Secretary, in a civil penalty proceeding, the burden of proving the violation alleged by a preponderance of the evidence.” Consolidation Coal Co., 11 FMSHRC 966, 973 (June 1989), citing Kenny Richards, 3 FMSHRC 8, 12 n.7 (January 1981).

I. Stipulations

            Before the hearing, the parties filed the following stipulations:

1. Ohio County Coal Company, LLC is subject to the Federal Mine Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 801 et seq.

2. Ohio County Coal Company, LLC has an affect upon interstate commerce within the meaning of the Federal Mine Safety and Health Act of 1977.

3. Ohio County Coal Company, LLC is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and the presiding Administrative Law Judge has the authority to hear this case and issue a decision.

4. Ohio County Coal Company, LLC operates the Freedom Mine, I.D. No. 15-17587.

5. The Freedom Mine produced 1,357,111 tons of coal in 2007, and had 386,263 hours worked in 2007.

6. A reasonable penalty will not affect Ohio County Coal Company, LLC’s ability to remain in business.

II. Citation 8489154 – Loose Roof Bolt

            Citation 8489154 alleges a safety violation of 30 C.F.R. § 75.220(a) pertaining to roof control plans, specifically an unsupported top with a loose roof bolt and fallen draw rock at XC 137 on the number 7 supply road in the Freedom Mine at 8.45 a.m. on September 4, 2008. Secretary’s (“S’s”) Ex. 11. For this citation, the Secretary proposes assessment of a penalty in the amount of $634.00. Id.

A. Regulatory Provisions

            Rule 30 C.F.R. § 75.220(a), entitled “Roof control plan,” states as follows:

(1) Each mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.

(2) The proposed roof control plan and any revisions to the plan shall be submitted, in writing, to the District Manager. When revisions to a roof control plan are proposed, only the revised pages need to be submitted unless otherwise specified by the District Manager.

30 C.F.R. § 75.220(a).

B. Summary of Evidence

            At the hearing, the Secretary offered the testimony of MSHA Inspector Anthony Fazzolare in support of the occurrence of the violation and assessment of the proposed penalty. Inspector Fazzolare testified that he conducted an inspection at Respondent’s Freedom Mine on September 4, 2008. Tr. 59. During the inspection, he observed a loose roof bolt, where draw rock had fallen down, on the No. 7 supply road. Tr. 62. The mine was required to have a roof control plan and a standard roof control plan would require the bolt to be replaced, Mr. Fazzolare stated. Tr. 62. Thus, he issued a citation for violation of the roof control plan, per 30 C.F.R. § 75.220(a). Tr. 59, S’s Ex. 11.

            Additionally, Inspector Fazzolare opined that the violation was “significant and substantial” due to the reasonable likelihood that falling rock could hurt someone and cause lost work days or restricted duty. Tr. 74, S’s Ex. 11. He stated he marked the violation as “reasonably likely to cause an injury,” due to the amount of draw rock in the area. Tr. 71. In addition, he noted that the roof bolt plate was hanging loose and thus could not control or support the draw rock. Id. Inspector Fazzolare determined that two persons could be affected, as that is the number of miners typically riding in a mantrip. Id. He characterized the degree of negligence as “moderate,” reasoning that since this was on a main haul road, all the miners would pass by and must have noticed the loose bolt, but this was mitigated because it was still early in the shift so that “[t]hey may not have got word on top yet.” Tr. 73-74.

            In regard to this violation set forth in Citation 8489154, Respondent has indicated that it “does not dispute that the condition constitutes a violation of Section 220(a) because the roof control plan does require loose roof bolts to be replaced, and one bolt was loose.” R’s Brief at 13. However, Respondent disputes the amount of the penalty.

            In regard to the penalty, Respondent first argues against the credibility of Inspector Fazzolare. In support thereof, Respondent points to the inspector’s admitted lack of specific memory of these events at the time of hearing and his need to rely on his contemporaneous notes (Tr. 105-106) in regard thereto. Further, Respondent points out the fact that the inspector has no photos nor drawings of the cited area (Tr. 83), and there appeared to be discrepancies regarding the timing of events surrounding issuance of this citation such that, Respondent asserts, Mr. Fazzolare either spent an insufficient amount of time to accurately assess the situation or was inaccurate in recording the various times surrounding this event. R’s Brief at 10, citing Tr. 81-83, 91-94.

            However, Respondent’s primary challenge to the proposed penalty amount focuses on the location of the loose roof bolt, depicted in Respondent’s (“R’s”) Exhibit 1. In particular, the loose bolt was in the row of bolts closest to, and approximately three feet from, the left rib when facing inby. Tr. 72. Draw rock had fallen to the floor there. R’s Ex. 1; Tr. 68, 94. The fallen draw rock was located almost exclusively between the loose bolt and the mine rib or wall. R’s Ex. 1; Tr. 94-95. The loose bolt was otherwise surrounded by rows of four or five bolts approximately 4.5 feet apart, and all the other bolts in this 20 foot wide passageway (the “Number 7 Supply Road”) were intact and secure. Tr. 60, 68, 83-84, 95, 110. The citation document itself states that “unsupported top in this area measured 9.4 feet by 8 feet.” S’s Ex. 11. The inspector’s direct testimony clarified “[t]hat’s 9.4 feet going inby, and outby from rib to the next good bolt, 8 feet.” Tr. 77. On cross examination, Inspector Fazzolare opined that “three fourths the distance” of the road width was safe for travel (Tr. 95), apparently based on the fact that three of the four roof bolts going across the road were intact.

            During this inspection, Inspector Fazzolare was accompanied by Respondent’s Mine Foreman Wyatt Oates, with 40 years of mining experience, including working on roof support. Tr. 171-173. Mr. Oates testified for Respondent that he specifically remembered these events “[p]retty well,” that he visually inspected the roof then, and in his opinion, the rest of the roof top looked secure and did not pose any danger of coming down. Tr. 172-173. Mr. Oates stated that he disagreed with characterizing this single loose pin as “significant and substantial,” since the roof there was “not a real scaly area,” only one rock had fallen loose, and the condition was easily rectified by replacing the bolt. Tr. 174. The testimony of Inspector Fazzolare directly supports the credibility of Witness Oates, as Mr. Fazzolare stated of Foreman Oates, “I trusted his word. He never lied to me in the past,” and Mr. Fazzolare said he had no reason to believe Mr. Oates would lie. Tr. 96.

            Respondent disputes that this citation was “significant and substantial” because the condition was not reasonably likely to cause a serious injury. Respondent’s primary argument here is that, because the compromised area with the loose roof bolt and fallen draw rock next to the wall or rib constituted only a minor fraction of the width of the roadway, miners passing by could easily avoid that portion of the passageway. This easy avoidance alone means that serious injury was unlikely, Respondent asserts. R’s Brief at 14. Further, the coal seam or mine roof at this location was 48 to 52 inches high, “so any piece of draw rock was not going to fall very far, nor cause significant personal damage.” R’s Brief at 14; Tr. 71. Additionally, Respondent points out, the inspector indicated a lower level of concern, because he did not order miners to stay out of the Number 7 Supply Road until the condition was abated. R’s Brief at 11 and 13; Tr.184-185. Furthermore, Respondent brought out, on cross examination of Inspector Fazzolare, by reference to MSHA’s Assessed Violation History Report for Respondent’s Freedom Mine for the preceding two years, that of six prior section 75.220(a) roof control citations issued to the Freedom Mine, none were designated significant and substantial. S’s Ex. 30; Tr. 97-98.

            Respondent argues that the negligence level for this citation should be rated “low,” rather than “moderate.” The central focus of the parties’ arguments concerns estimation of the amount of time that the errant condition existed. The inspector estimated this time based on rock dust he observed on the bolt plate. Tr. 67, 89-90. He reasoned that it amounted to “[a]t least one shift rock dust.” Id. Both Mr. Oates and Respondent’s employee Dennis Travis testified that the dust could have accumulated on the bolt plate prior to the fall of the draw rock, because the roof surface is uneven so that even when a bolt is tight against the roof, “they’re not sealed completely.” Tr. 190-195. Furthermore, the mine employs a very high pressure dusting machine that forces dust everywhere, including into small cracks and crevices. Id.

            Respondent further asserts that an estimate of the amount of time the roof bolt was loose can be based on the timing of other known events. A pre-shift examination was conducted between 4:00 am and 7:00 am and no roof hazards were reported. Tr. 88-89 and 185. At approximately 7:20 am, 30 miners traveled through the area to start their work shift and none of them reported this loose bolt or fallen draw rock. Tr. 73 and 184. Thus, Respondent asserts the cited condition did not exist for very long before the citation was issued at 8:45 am. R’s Brief at 11-12.

C. Findings of Fact

            Based on the testimony of the witnesses, including evaluation of their credibility upon personal observations at the hearing, and on the exhibits introduced into evidence, the undersigned makes the following findings of fact:

-- On September 4, 2008, at 8:45 am, on the No. 7 supply road, there was a loose roof bolt, closest to the left rib when facing inby, with fallen draw rock beneath it.

-- The existence of the loose roof bolt was not in accordance with the mine’s approved roof control plan.

-- Such condition likely existed for less than one full shift, and probably less than two hours.

-- The remainder of the surrounding roof was secured by tight roof bolts, was not in a condition that required scaling, and provided adequate room of approximately 12 to 18 feet for safe passage of the miners.

-- By 2:00 pm, the time set in the citation by the inspector to terminate the condition, Respondent had replaced the loose roof bolt without the need for scaling to remove any further loose draw rock.

D. Conclusions of Law

            1. Liability 

            The undersigned finds that Respondent, as admitted, is subject to and liable for violating 30 C.F.R. § 75.220(a) by having a loose roof bolt, inconsistent with its approved roof control plan.

            2. Penalty

            To find liability and impose penalties, an actual injury need not have occurred. The MSHA code requires precautionary measures to prevent, or reduce the likelihood of, potential injuries. In assessing civil monetary penalties, section 110(i) of the Federal Mine Safety and Health Act requires the Commission and its judges to consider the following factors:

1. the operator’s history of previous violations,

2. the appropriateness of the penalty relative to the size of the operator’s business,

3. whether the operator was negligent,

4. the effect of the penalty on the operator’s ability to continue in business,

5. the gravity of the violation, and

6. the operator’s good faith efforts to achieve compliance after notification of a violation.

30 U.S.C. § 820(i). Furthermore, analysis of each of those statutory factors must be presented in the judge’s findings of facts and conclusions of law. 29 C.F.R. § 2700.30(a); Sellersburg Stone Co., 5 FMSHRC 287, 290-294 (Mar. 1983); Cantera Green, 22 FMSHRC 616, 620-621 (May 2000).

Gravity of Violation; Significant and Substantial (“S&S”)

            General Standards

            The Secretary’s penalty assessment rule at 30 C.F.R. Part 100 (which is not binding on the Commission and its judges, Id.) divides analysis of a violation’s “gravity” into three components: (1) the likelihood of occurrence of the event against which the standard is directed, (2) the severity of the illness or injury if that event occurs, and (3) the number of persons potentially affected. 30 C.F.R. § 100.3(e). Additionally, sections 104(d) and (e) of the Act describe a “violation of any mandatory health and safety standard . . . [that] while the conditions created by such a violation do not cause imminent danger, such violation is of such a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d). These violations are often referred to as “S&S.” That statutory language was first interpreted by the Commission in the seminal case of Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 1981):

a violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard 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.

National Gypsum Co., 3 FMSHRC at 825. In turn, “hazard” (undefined by the Act) was construed to “denote a measure of danger to safety or health.” 3 FMSHRC at 827. The Commission subsequently elaborated on this standard in Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984):

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. As a practical matter, the last two elements will often be combined in a single showing.

6 FMSHRC at 3-4.

            Parties’ Arguments

            The Secretary cites a couple cases in support of her position that this particular violation was significant and substantial: Knox Creek Coal Corp., 2010 WL 5619977 (Dec. 2010) and Cross Mountain Coal, 16 FMSHRC 1857 (Aug. 1994). S’s Brief at 14. While it is true that certain violations were held to be significant and substantial in those cited cases, the undersigned agrees with Respondent that the facts of those cases are quite different, and more hazardous, than in the instant case. R’s Brief at 14-15. The decision in the Knox Creek Coal case indicates that the bolt head and plate were completely missing, at least potentially compromising the structural integrity of the “‘beam’ created in the roof’s upper strata” such that “it was reasonably likely [parts of] the upper strata of the roof would have given way and fallen on miners working or traveling below.” 2010 WL 5619977. That was a far riskier situation than the one described in the instant Freedom Mine. The same can be said of the facts in Cross Mountain Coal. Although that case involved violations of the mine’s roof control plan and thus 30 C.F.R. § 75.220(a), it did not involve a loose roof bolt. Rather, the mine operator removed multiple roof support pillars without installing required wooden support posts, despite encountering draw rock. 16 FMSHRC 1857, 1885. “[I]t is common knowledge that pillar removal is one of the most dangerous operations in mining.” Id. at 1884.

            Further, while the testimony of Inspector Fazzolare that rock falling from the mine roof can seriously injure a miner is certainly credible, Respondent has presented a number of valid reasons why it was unlikely that draw rock would fall on miners in this instance. Those reasons include that there was only one loose roof bolt, which was closest to the wall, with draw rock laying beneath it, and otherwise there was plenty of room for miners to travel past the location of the loose bolt under roof that was well supported by plenty of secure neighboring bolts and was not particularly scaly. Further, that all six prior such citations at this mine in the preceding two years were non-S&S tends to indicate that, as Respondent puts it, “the overall integrity of the mine’s roof was intact and that a single loose bolt would not be likely to cause injury.” R’s Brief at 15. Therefore, based upon the evidence of record, the undersigned thus concludes that this particular violation was not “significant and substantial.”

            Although the extent to which Respondent’s mine roof was unsupported was relatively minor and the undersigned concludes that this violation is not S&S, due to the high likelihood of avoidance of injury, that does not mean the gravity is nil. Proper support of underground mine roof is obviously important. If draw rock were to fall from the roof onto a miner, the potential injury could be serious. Further, as proffered by Inspector Fazzalore, if injury were to occur, it is reasonable that two miners riding on a single mantrip could be injured. Thus, the undersigned considers the gravity of this violation to be “moderate.”

Degree of Negligence

            The Secretary contends that this violation involves a “moderate” degree of negligence. On one hand, Inspector Fazzolare asserted that the operator knew or should have known of the condition, because it was located on a main supply road. On the other hand, he noted that he issued this citation early in the shift, so the problem may not have been communicated to the surface at that time. Tr. 73-74. Respondent argues for a “low” negligence assessment. A substantial amount of testimony on both sides focused on the accumulation of dust on the roof bolt plate (an unquantified amount) in attempting to estimate how long the condition may have existed. Upon consideration of all the evidence presented, testimonial and documentary, the undersigned finds the Secretary’s evidence rather speculative and Respondent’s more persuasive. Thus, the degree of negligence shall be lowered from “moderate” to “low.”

Other Penalty Factors

            Having addressed gravity and negligence, we turn to the other penalty factors enumerated in section 110(i) of the Act. Respondent stipulated that a reasonable penalty will not affect the operator’s ability to continue in business. Based on that stipulation, and the stipulation regarding the tonnage of coal produced by this mine, the assessed penalty is appropriate relative to the size of the operator’s business. The penalty assessment form attached to the Secretary’s Petition (Form 1000-179) indicates that this operator had relatively few previous violations of this type in the preceding 15 months. That penalty assessment form also indicates that, consistent with section 110(i) of the Act and 30 C.F.R. § 100.3(f), the Secretary awarded Respondent the standard 10% reduction for Respondent’s good faith abatement of the violation within the time set by the inspector in the citation.

Penalty Amount

            Having reduced the degree of negligence and the likelihood of injury occurrence, and thus found this violation non-S&S, the undersigned finds the appropriate penalty to be assessed for this violation is $101.

III. Citation 8489163 – Missing Pry Bar

            Citation 8489163 alleges a safety violation of 30 C.F.R. § 75.211(d) pertaining to roof testing and scaling, specifically the lack of a pry bar on Fletcher Roof Bolter, No. 11, located in MMU 002-0 in Freedom Mine at 12:10 p.m. on September 8, 2008. S’s Ex. 18. For this citation, the Secretary proposes a penalty of $634.00.

A. Regulatory Provisions

            Rule 30 C.F.R. § 75.211(d), entitled “Roof testing and scaling,” states as follows:

A bar for taking down loose material shall be available in the working place or on all face equipment except haulage equipment. Bars provided for taking down loose material shall be of a length and design that will allow the removal of loose material from a position that will not expose the person performing this work to injury from falling material.

30 C.F.R. § 75.211(d). In addition, Rule 30 C.F.R. §75.2 defines “working place” as “the area of a coal mine inby the last open crosscut.”

B. Summary of Evidence

            The Secretary’s witness on this citation was again MSHA Inspector Anthony Fazzolare, who conducted an E01 inspection of the Freedom Mine on September 8, 2008. Tr. 108. At hearing, Mr. Fazzolare testified that during the inspection he observed that the No. 11 Fletcher Roof Bolter did not have a pry bar with which to scale draw rock from the roof. Tr. 109. Respondent does not dispute this fact. Inspector Fazzolare also testified that he observed fallen rock on the mine floor, estimating the area of that fallen rock to be 20 feet by 20 feet, which is the entire width of the entry. Tr. 109-10. The inspector stated he observed that the roof bolter operators were getting ready to bolt the mine roof where draw rock was present. Tr. 132. He was concerned, he said, about the risk of draw rock falling from the roof onto workers in the area, if the ceiling of the mine had not first been properly scaled with a pry bar to safely remove loose roof rock. Tr. 132. Given that some rock had already fallen, the inspector felt that a pry bar was needed “right then at that specific time.” Tr. 116.

            Respondent offered the testimony of Wyatt Oates, the mine foreman, who accompanied Inspector Fazzolare during this inspection. Mr. Oates testified that the roof bolter machine was in the No. 6 entry when Inspector Fazzolare asked the operator of the roof bolter machine to see the pry bar assigned to that machine. Tr. 175. The operator looked on the machine, but could not find the pry bar, then realized he had left it behind in the No. 8 entry, where moments before it had been used to pry up the lid of the roof bolter machine. Tr. 175-176. The operator then retrieved the pry bar in approximately “three or four minutes” from an estimated distance of approximately 100 to 150 feet away. Tr. 176-177. On cross examination, Mr. Fazzolare acknowledged that “[a] pry bar was available within five minutes after I issued the citation.” Tr. 127. The citation document itself states that the violation occurred at 12:10 pm and was abated at 12:15 pm. S’s Ex. 16; see also, Tr. 112 and 114.

            Additionally, Respondent offered testimony by Mr. Oates that there were also five other pry bars nearby: one on another roof bolter machine in the same section, one each on two continuous minor machines in the same section (one approximately 100-150 feet away), and two more in “the shack” approximately 250-300 feet away. Tr. 176-177.

C. Findings of Fact

            Based on the testimony and exhibits introduced into evidence at hearing, the undersigned makes the following findings of fact:

-- There was no pry bar on the cited roof bolter machine.

-- A pry bar was obtained and brought to the roof bolter machine within five minutes of issuance of the citation.

-- Five other pry bars where also located within 500 feet of the roof bolter machine.

-- The Secretary has failed to prove by a preponderance of the evidence that a pry bar was not “available in the working place” as alleged in this citation. In particular, the Secretary did not persuasively establish the parameters of the “working place” in which the roof bolter machine was sited and that no pry bars were located within such parameters. Moreover, the preponderance of evidence which was adduced at hearing, including the fact that five pry bars were nearby and a pry bar was obtained and brought to the site within 5 minutes, suggests that, in fact, a pry bar was most likely in the “working place,” .

D. Conclusions of Law

            1. Liability 

            Respondent’s Post-Hearing Brief asserts that this citation should be vacated and cites two prior cases directly on point in which this type of alleged violation was dismissed: Jim Walter Resources, Inc., 31 FMSHRC 1208 (Oct. 2009) (ALJ) and Basin Resources Inc., 19 FMSHRC 1035 (June 1997) (ALJ).

            Like the instant case at bar, Jim Walter Resources also involved a citation for violation of 30 CFR § 75.211(d). In that case, it was a continuous miner machine that lacked a pry bar. In analyzing the regulatory provision, the judge emphasized the disjunctive “or” in the rule and noted that “to establish a violation, the Secretary must establish that a bar was neither available in the working place, nor on all face equipment.” Id. (emphasis in original). He further emphasized that the rule requires a pry bar to be “available in” rather than “located in” the working place. Id. Given that (as in the current case) a pry bar was retrieved within five minutes, the judge held that Respondent was in compliance with the regulatory requirement and he dismissed the citation.

            Similarly, Basin Resources involved a citation for violation of 30 CFR § 75.211(d), and in that case, a bar was obtained in about ten minutes. In dismissing this citation, the judge applied reasoning quite similar to that in Jim Walter Resources, stating:

The safety standard provides that a scaling bar must be made available in the working place. It does not require that the bar be in any particular location within the working place.

19 FMSHRC at 1042 (emphasis added).

            The undersigned can see some validity to the Secretary’s argument that “available in the workplace” does not mean “available near the workplace.” However, the Secretary has proffered no prior rulings which adopted that interpretation of this regulation. Therefore, consistent with the two prior cases cited by Respondent, the undersigned finds that Respondent did not violate the cited regulation. At least one pry bar (and possibly five others in the vicinity) was “available in the working place.” Accordingly, citation 8489163 is hereby Dismissed.

IV. Citation 8489493 – Improper Electrical Cable Splice

            Citation 8489493 alleges a safety violation of 30 C.F.R. § 75.604(b) pertaining to permanent splicing of cables, specifically that on September 5, 2008 at 11:22 a.m. a ground monitor wire was seen protruding from a splice of trailing cable attached to the #402 roof bolter machine and thus the cable, allegedly, was not “effectively insulated and sealed so as to exclude moisture.” S’s Ex. 16. For this citation, the Secretary proposes a penalty of $946.00.

A. Regulatory Provision

Rule 30 C.F.R. § 75.604(b), entitled “Permanent splicing of trailing cables,” states

as follows:

When permanent splices in trailing cables are made, they shall be ... [e]ffectively insulated and sealed so as to exclude moisture.

30 C.F.R. § 75.604(b).

B. Summary of Evidence

            The Secretary’s only witness on this violation was MSHA Inspector Jeffrey Winders, who conducted an “E01" inspection of the Freedom Mine on September 5, 2008. Tr. 14. At the time Mr. Winders issued this citation, he had been an MSHA inspector for 13 months. Tr. 26-27. Mr. Winders is not an electrician and has never held any electrical certifications. Tr. 27-28. However, Mr. Winders had attended a two week electrical training class at the MSHA training academy. Tr. 28.

            Mr. Winders testified that the roof bolting machine was in operation when the citation was issued. Tr. 53. He observed that an improper splice on the trailing power cable was quite visible, as the main cable was black and the protruding ground wire was yellow. Tr. 18. The splice was found on the mine floor about 30 feet behind the roof bolter machine. Tr. 18. The roof bolter machine uses 480 volts. Tr. 15.

            The structure of this cable was described as follows: The cable has a hard outer jacket and soft inner insulation. Tr. 15. The outer jacket is a hard, protective rubber from 1/8" to 1/4" thick. Tr. 52. The inner insulation is merely soft rubber intended to separate and prevent contact among the electrical conductors. It is not particularly protective and can be damaged more easily than the outer jacket. Tr. 16, 52.

            According to Inspector Winders, there are many ways in which a splice can undergo damage as it rubs on the ground, the reel, the bolter machine, other equipment, or falling rock. Tr. 19-20. Electricity could be unintentionally transferred from a damaged splice if contacted by a miner directly handling the cable, or if the splice contacted the metal frame of the roof bolting machine or through contact on the cable reel, thereby causing harmful electric shock. Tr. 22.

            Mr. Winders testified that water is used in this mine to allay dust on the continuous miner machine and on the mine floor, and the roof bolter machine follows immediately behind the continuous miner machine. Tr. 19. He further testified, on cross and redirect examination, that “water [is] used in the mining process,” for example, the roof bolter machines are typically washed with water, and that due to the use of water on both types of machines, it is not unusual for the mine floor to be wet or muddy. Tr. 28, 41-42. However, Mr. Winders did acknowledge during cross examination that his citation did not indicate the contemporaneous presence of any water or mud. Tr. 28-29.

            As Respondent emphasizes, Inspector Winders acknowledged in his testimony that the particular wire protruding from the splice was a ground check wire that did not carry any live electric current, and all the wires that did carry live electric current were properly insulated and undamaged. Tr. 35, 37 and 50; R’s Brief at 3.

            Respondent presented the testimony of Walter H. Wood, the company’s Maintenance Director. Mr. Wood holds electrical worker certifications in Kentucky and Illinois, requiring at least one year of experience working with electrical equipment and passage of State Board exams. Tr. 137. He has maintained his electrical certification since he was 19 years old and has worked in coal mine maintenance for 32 years. Id.

            Mr. Wood testified that, as the Maintenance Director, he probably purchased the roof bolter machine and specified the cable for it. Tr. 138. During his testimony at the hearing, Mr. Wood drew a diagram of a cross-section of this cable, which became Respondent’s Exhibit 2. This cable is a Number 2 AmeriCable, rated for 2,000 volts, and had a conductor GGC certification. Tr. 138. Mr. Wood explained that the protruding ground check wire was actually “not used at all,” i.e., served no useful purpose on this particular cable, because the Freedom Mine employs a wireless ground check system that uses radio frequency signals instead. Tr. 144–146. Mr. Wood testified that, therefore, this ground check wire is “disconnected at each end. It’s what we call spared off. It’s just dead-ended. And when we make a splice, a lot of times we don’t even put it back together because it’s of no value.” Tr. 145.

            This cable system was further described by Mr. Wood. This protruding ground check wire had the same protective insulation, rated for 2,000 volts, as did the current carrying wires. Tr. 145-146. Further, Mr. Wood explained that the cable system was designed so that a leak of electricity would return to a ground wire in order to prevent injury, and the electricity would not flow though the ground check wire. Tr. 147-148. Importantly, the overall electric cable system has “a circuit breaker that has multiple protection devices,” including “first and foremost, ... this tone-type [radio frequency] ground check monitor” and also “a ground fault, or what we call an imbalanced phase protection.” Tr. 146-147. If this “intricate system,” which is tested weekly for proper function, senses any electrical imbalance which indicates a leak of electricity, it will automatically “be tripped” to “[s]hut the power” “so that the cable is no longer energized.” Tr. 146-147. In other words, it completely stops the flow of all electric current in order to prevent injury. On cross examination, Mr. Wood did acknowledge that less than one quarter amp can be fatal and that the cited cable is rated for 800 amps. Tr. 152.

            Mr. Robert Bosch is the Operations Manager at the Freedom Underground Mine. Tr. 156. At the time of the inspection, he was the Mine Manager and accompanied Inspector Winders. Tr. 157-158. Mr. Bosch, testified that the ground wire protruded from the cable splice by only ½ inch. Tr. 159-160. Mr. Bosch testified that this cable was 400 to 500 feet long, and the location of the cited splice was usually wound on its reel on the back of the roof bolter machine roof, unless the cable was fully extended and unwound. Tr. 159. The cable was generally kept dry, because the elevated reel helps keep the cable off the ground. Id.; Tr. 39. Additionally, Inspector Winders testified that the reel is covered and the mine is not a naturally wet mine. Tr. 29 and 39. However, Mr. Bosch acknowledged on cross examination that water is introduced into the mine environment from spraying it on the continuous miner machines, which are followed by the roof bolter machines, and from directly washing the roof bolting machines themselves. Tr. 165-166.

             Upon questioning by Respondent, Inspector Winders acknowledged that no bare wires were exposed, no insulation was torn off the energized conductors, and no energized conductors were visible through the splice. Tr. 37. However, his concern was not for the ground wire per se, but rather that the splice was not effectively insulated and could worsen under normal operating conditions. Tr. 40, 45-48. He stated “I believe that under normal mining operations, this condition would only worsen as it’s drug [sic] on the hostile mine floor, pulled on and off the reel, hung twisted, bent.” Tr. 46.

C. Findings of Fact

            Based on the testimony and exhibits introduced into evidence at hearing, the undersigned makes the following findings of fact:

-- An improper splice existed on the trailing power cable of the roof bolter machine.

-- The protruding wire never carried electricity and was never even intended by the mine operator to do so, nor to be functional in any way.

-- The mine operator employed a sophisticated electrical safety system, including a wireless radio frequency ground check system, designed to interrupt the flow of electricity upon the detection of any electrical leaks.

-- The reel housing the spliced power cable was covered and the splice was at the end of the cable nearest the reel, making the splice less likely to be exposed to water or be contacted by miners.

-- Although conditions at the time the citation was issued -- including specifically the lack of live current in the protruding wire and the lack of moisture in the immediate area of the splice -- were not then particularly risky, over time under continued normal mining operations those conditions could reasonably worsen -- the protrusion could contribute to abrasion and deterioration of the cable’s physical integrity and could be located in the presence of moisture, for example, from machine cleaning, such that the admittedly improper splice did in fact create an increased risk of electrical injury to the miners.

-- Although the mine was not naturally wet, normal mine processes, including washing the machines, could realistically introduce significant moisture in the vicinity of the splice.

-- The admittedly improper splice created and increased risk of significant injury.

D. Conclusions of Law

            1. Liability

            The undersigned finds that, as admitted, Respondent is liable for violating 30 C.F.R. § 75.604(b), in that a ground monitor wire was protruding from a splice of trailing cable for a roof bolter machine and thus the cable was not “effectively insulated and sealed so as to exclude moisture.” On cross examination, Respondent’s witness, Mr. Wood, admitted that it is not normal for a wire to be sticking out of a splice and that, if he had seen something like that, he would consider it a damaged splice that needed repair. Tr. 155. In fact, in its Post-Hearing Brief, “Respondent acknowledges that 30 C.F.R. § 75.604(b) was violated.” R’s Brief at 5. However, Respondent argues for a lower penalty.

            2. Penalty

            As noted above, the Mine Act lists the following factors that must be considered when assessing civil penalties:

the operator’s history of previous violations, . . . the size of the business . . ., whether the operator was negligent, . . . the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

FMSHA §110(i), 30 U.S.C. § 820(i).

Gravity of Violation; Significant and Substantial (S&S)

            General Standards

            The standards for finding an S&S violation were discussed above in regards to Citation 8489154. To reiterate, sections 104(d) and (e) of the Act describe a “violation of any mandatory health and safety standard . . . [that] while the conditions created by such a violation do not cause imminent danger, such violation is of such a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.”

            Under National Gypsum Co., 3 FMSHRC 822, a violation is significant and substantial if “there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” 3 FMSHRC at 825. Subsequently, the Commission enumerated a four part test:

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. As a practical matter, the last two elements will often be combined in a single showing.

Mathies Coal Co., 6 FMSHRC 1, 3-4.

            Parties’ Arguments

            In their Post-Hearing Briefs, the parties argue about the relevance of Mr. Wood’s testimony describing the cable structure. In the undersigned’s view, there is some merit to both positions. On Respondent’s side, in the condition in which the cable existed at the time the citation was issued, there was a very low risk that the faulty cable would inappropriately transfer electricity in a way that might harm miners. However, as argued by the Secretary, through the normal wear and tear that transpires in the harsh conditions of an underground coal mine, the faulty splice could reasonably increase the chances of a harmful electrical shock to miners. Respondent further argues, based on Mr. Wood’s testimony that “[e]ven if the Court were to accept that during normal mining conditions damage to a conductor would occur, the circuit breaker would shut off power to the roof bolter, thereby making it not reasonably likely that a miner would suffer an injury resulting from this damaged splice.” R’s Brief at 7.

            The Secretary cites U.S. Steel Mining Co., Inc., for the proposition that determinations of whether a violation is significant and substantial are made in the context of “continued normal mining operations.” 6 FMSHRC 1573, 1574 (July 1984). The facts there were similar to those here: a gash in the outer jacket of a 480 volt trailing cable exposed a ground wire, but there was no visible damage to the inner insulated conductors. Id. The Commission found that a damaged outer jacket “weakened the overall system of protective insulation and increased the risk of danger to the internal layer of insulation on the power wires” and that “a trailing cable is subject to ‘extraordinary abuse’ in the harsh environment of a coal mine.” Id. The Commission noted that, despite the presence of a ground fault system, electrical shock of some degree could still occur. 6 FMSHRC at 1575. The Commission upheld the ALJ’s determination that the violation was significant and substantial. Id.

            The Secretary also refers to Harlan Cumberland Coal Co., in which the Commission upheld S&S determinations for two violations of § 75.604(b), rejecting the operator’s arguments that lack of exposed leads negated a reasonable likelihood of injury. 20 FMSHRC 1275, 1285 (Dec. 1998). Further, in Webster County Coal, the ALJ upheld an S&S assessment for a damaged splice on a trailing cable. 31 FMSHRC 219 (Feb. 2009)(ALJ).

            Respondent counters by asserting the distinction that, unlike this case, in U.S. Steel Mining and Harlan Cumberland Coal, the cable was lying in water. 6 FMSHRC at 1574; 20 FMSHRC at 1287. Respondent likens its violation to that in Lone Mountain Processing, 29 FMSHRC 557 (June 2007) (ALJ). In Lone Mountain, Judge Weisberger held a violation of §75.604(b) was not S&S, reasoning that there was insufficient evidence a serious injury would develop during normal mining conditions. R’s Brief at 7.

            Findings

            The U.S. Steel case is instructive and provides significant relevant guidance here. In that case, the Commission rejected two closely connected arguments that are also relevant to the instant case: (1) that a gash in the outer jacket of the trailing cable does not present a risk, because the inner layer of insulation on each power wire will prevent any electrical shock to miners, and (2) that evaluation of the risk “should be limited solely to consideration of the condition as it exists at the precise moment of inspection.” 6 FMSHRC at 1574. Based on the interpretive language in National Gypsum Co., 3 FMSHRC 822, 825 -- interpreting the statutory “significant and substantial” standard to mean a “reasonably likelihood that the hazard contributed to will result in an injury ... of a reasonably serious nature” -- the Commission affirmed the ALJ’s ruling that the S&S determination must consider “continued normal mining operations.” 6 FMSHRC at 1574. The Commission recognized, as the judge had written, that “a trailing cable is subject to ‘extraordinary abuse’ in the harsh environment of a coal mine.” Id. The Commission also found justified the judge’s finding that “both the outer and inner layers of insulation provided important protection against electrical shock,” in light of testimony by both parties’ witnesses that “damage to the outer layer of insulation weakened protection afforded by the inner layer.” 6 FMSHRC at 1575. Lastly, the Commission also noted that the future introduction of water into the vicinity of this cited splice is “an example of how conditions could develop in the mining environment which could cause an improperly protected cable to become more hazardous.” 6 FMSHRC at 1574, n.3. In sum, as the factual circumstances of these two cases are quite similar, the undersigned finds that the Commission’s decision in U.S. Steel strongly supports the Secretary’s contention here that this citation can appropriately be sustained as S&S. See also, Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1285 (Dec. 1998)(citing to US Steel in rejecting argument that exposed electrical wires must be visible to support S&S finding); Excel Mining, LLC, 31 FMSHRC 473 (April 2009)(ALJ)(following US Steel and Harlan in finding three inch gash on outer jacket of roof bolter trailing cable constituted S&S violation of 30 C.F.R. § 75.517 despite intact insulation on inner wires); Webster County Coal, LLC, 31 FMSHRC 219, 235 (Feb. 2009)(ALJ)(sustaining S&S finding because “during continued normal mining operations the cables would likely sustain further wear and ... the splices would likely deteriorate”); ABM Coal Co., Inc., 16 FMSHRC 2345, 2352 (Nov. 1994) (ALJ)(held unsealed splice violating 30 C.F.R. § 75.604(b) was S&S because “water was present in the mine from the coal seam, from the water spray system on the continuous miner, from the dust suppression system on continuous hauling system and from water sprayed to wet the roadways down”).

              Respondent’s Brief argues that the facts of this case are like those in Lone Mountain Processing, 29 FMSHRC 557 (June 2007)(ALJ) and similarly warrant rejecting an S&S finding. R’s Brief at 7. In Lone Mountain Processing, Judge Weisberger based his decision on the contemporaneous absence of pinholes, exposed wires, or protruding wires and the absence of evidence indicating a reasonable likelihood that those defects would develop during continued normal mining operations. 29 FMSHRC at 559. Similarly, in Oak Grove Resources, LLC., 29 FMSHRC 1089 (Nov. 2007)(ALJ), Judge Melick held that a citation involving 30 C.F.R. § 75.604(b) was not S&S, because, at the time the citation was issued, the inspector did not indicate any bare wire was exposed and the operator’s safety supervisor who accompanied the inspector testified there was none. 29 FMSHRC at 1092. The undersigned notes that, in Judge Melick’s subsequent decision in Webster County Coal, supra, he referred to both Oak Grove Resources and Lone Mountain Processing as “factually distinguishable” (without elaboration) and thus rejected respondent’s reference to those cases. 31 FMSHRC at 235. While the factual distinctions were not explained, the undersigned notes that in both Oak Grove Resources and Lone Mountain Processing the Secretary did not introduce any evidence showing that an increased hazard could reasonably arise through continued normal mining operations. Such is not the case here.

            Respondent’s Brief contains the assertion that, even if normal mining operations were to significantly degrade the integrity of this splice and cable, the circuit breaker system would terminate the flow of electricity, thereby rendering injury unlikely. R’s Brief at 7. While this assertion appears logical, in the undersigned’s view, it was not adequately supported by the evidence. Firstly, Mr. Wood did not specify how quickly the electricity would be terminated, whether it would be instantaneous, and to exactly what extent it would succeed in preventing all electrical injuries of the type contemplated here. Secondly, he noted that the sophisticated system employed by this mine requires weekly testing; while this appears laudatory, it also indicates the potential for failure. Thirdly, Mr. Wood then went on to mention other allegedly mitigating factors, one of which was that “all our men, our standard operating procedure is to wear gloves at all times . . . . I have been taught that there’s never been a fatality, electrical - electrocution with a person wearing gloves.” Tr. 149. Again, while the efforts at safety are to be complimented, the routine use of gloves to guard against electrical injuries, particularly electrocution, indicates to the undersigned that the mine’s circuit breaker system alone is not viewed by the mine operator and Mr. Wood as providing full-proof protection. This conclusion is further buttressed by similar precedential S&S findings, despite mine operators asserting the presence of circuit breakers, in other such cases. Webster County Coal, LLC, 31 FMSHRC 219, 235 (Feb. 2009)(ALJ)(the inspector testified that the circuit breaker would not necessarily protect against the risk of electrocution); Beech Fork Processiing, Inc., 16 FMSHRC 1346, 1354 (June 1994)(ALJ) (violation of 30 C.F.R. § 75.517 held S&S despite presence of circuit breaker). Thus, based on the above described law and evidence, the undersigned concludes that the S&S determination is appropriate for this citation.

            On the citation form, Inspector Winders indicated that two persons were potentially affected and the injury could be “permanently disabling.” At the hearing, he stated that this is because there were two roof bolter operators present. Tr. 24. Respondent argues that “only one miner would be handling the cable at any given time” and “[i]n the event that one miner were to suffer an electrical shock by grabbing the cable, it is not reasonable to think that a second miner would also grab the cable and suffer the same injury.” R’s Brief at 8. Respondent also argues that the cited safety standard, 30 C.F.R. § 75.604(b), by its terms, deals only with exclusion of moisture, so “[a]ny opinions offered by Inspector Winders about potential dangers presented by a damaged splice touching the cable reel on the roof bolter (Tr. 22 and 46) are baseless and irrelevant.” R’s Brief at 4, n.2. However, in the context and spirit of these preventative safety requirements, the undersigned finds more persuasive the Secretary’s assertion that “[i]t is reasonably likely that these two miners could come into contact with the damaged cable or that the damaged cable could energize their roof bolter” machine. S’s Brief at 9; see also Tr. 22 and 46. The existence of water or moisture in the presence of the improperly sealed splice could significantly and substantially contribute to the harmful flow of electricity to the miners directly from the cable or indirectly via the roof bolter machine.

Degree of Negligence

            Based on the numerous afore-mentioned mitigating circumstances asserted by Respondent’s counsel -- including the lack of bare or energized wires, the various safety measures employed by the mine operator, and the relatively inconspicious location of the splice on the reel end of the cable -- the undersigned determines it appropriate to reduce the assigned negligence level from “moderate” to “low.”

Other Penalty Factors

            Again, after assessing gravity and negligence, we turn now to the other penalty factors enumerated in section 110(i) of the Act. Respondent stipulated that a reasonable penalty will not affect the operator’s ability to continue in business. Based on that stipulation, and the stipulation regarding the tonnage of coal produced by this mine, the assessed penalty is appropriate relative to the size of the operator’s business. The penalty assessment form attached to the Secretary’s Petition (Form 1000-179) indicates that this operator had very few previous violations of this type in the preceding 15 months. That penalty assessment form also indicates that, consistent with section 110(i) of the Act and 30 C.F.R. § 100.3(f), the Secretary awarded Respondent the standard 10% reduction for good faith abatement of the violation within the time set by the inspector in the citation.

Penalty Amount

            Having sustained this violation as S&S, but reduced the degree of negligence to “low,” the undersigned thus reduces the proposed penalty of $946 and assesses a penalty of $392 for this violation.

ORDER

            THEREFORE, it is hereby ORDERED as follows:

1. Citation number 8489154 is reduced to non-S&S and low negligence. Respondent shall pay a penalty of $101.

2. Citation number 8489163 is DISMISSED.

3. Citation number 8489493 is sustained as S&S, but the negligence level is reduced to low. Respondent shall pay a penalty of $392.

4. Respondent is hereby ORDERED to pay the afore-stated penalty amounts within thirty (30) days of the date of this Order. Upon receipt of payment, these citations are DISMISSED.

            SO ORDERED.

                                                                                    /s/ Susan L. Biro                                                                                        

                                                                                    Susan L. Biro

                                                                                    Chief Administrative Law Judge

                                                                                    U.S. Environmental Protection Agency

Distribution:

Brian D. Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219-2456

Jeffrey K. Phillips, Esq., 1010 Monarch Street, Suite 250, P.O. Box 910810, Lexington, KY 40591-0810