FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

May 14, 2012

DECISION

Appearances:              Alicia Truman, Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Respondent.

Before:                        Judge Manning

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Consolidation Coal Company (“Consolidation”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing held in Salt Lake City, Utah. In lieu of filing post-hearing briefs, the parties presented closing arguments at the hearing. Consolidation operates the Emery Mine, a large underground coal mine, in Emery County, Utah. This case involves one 104(a) citation issued at the Emery Mine (“the mine”) on April 14, 2010.

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

            Inspector James Pruitt has been employed by MSHA for over four years. Prior to joining MSHA, Pruitt worked in the mining industry for a number years, during which he held various positions, including general laborer, equipment operator, fire boss, and safety director.

            On April 14, 2010 Inspector Pruitt issued Citation No. 8460813 under section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 75.220(a)(1). The citation alleges the following:

The operator failed to comply with the approved roof control plan by providing roof supports on 5 foot by 5 foot centers. An area of roof was unsupported for 9 feet 10 inches by 8 feet 5 inches in the #7 cross cut between entries #2 to #3 in the 2nd Right section (MMU 001-0). The roof bolt was missing from the pattern. A small rib cutter was present along the rib line in the cross cut and also in the #2 entry leading to the cross cut, requiring additional support measures to be taken. This standard was cited 18 times in two years at this mine.

(Ex. G-2). Pruitt determined that a fatal injury was reasonably likely to occur, that the violation was of a significant and substantial (“S&S”) nature, that one person would be affected, and that the violation was the result of high negligence on the part of the operator. The Secretary specially assessed this violation pursuant to 30 C.F.R. § 100.5 and has proposed a penalty of $41,000.

            A.        Summary of Relevant Testimony

            Inspector James Pruitt testified that he was at the Emery Mine on April 14, 2010, to conduct an E02 spot inspection pursuant to Section 103(i) of the Mine Act. (Tr. 24). He reviewed the examination books and the uniform mine file. (Tr. 24, 50). There was no mention of a missing roof bolt in the examination books. (Tr. 50). He had previously spent six months at the mine conducting E01quarterly inspections, during which he became familiar with the historical data and conditions at the mine. (Tr. 23, 25). Lester Jorgensen, the mine superintendent, and Randy Crane, the miners’ representative, traveled with Pruitt during his April 14, 2010 inspection. (Tr. 25).

            According to Pruitt, the inspection party traveled to the Second Right Section and, when they arrived, the continuous miner was actively mining on right hand side of the section. (Tr. 26, 83). Pruitt began his imminent danger run on the right hand side of the section, and worked his way toward the left hand side of the section via the last open crosscut. (Tr. 30). At that particular time, the mine had been developed just inby Crosscut No. 7, which was the last open crosscut. (Tr. 27). While traveling between Entry Nos. 2 and 3 via Crosscut No. 7, Pruitt stopped in an intersection to take an air reading and, while there, Pruitt noticed a roof bolt missing. (Tr. 28, 30). The crosscut was 19 feet wide and required at least 4 rows of bolts to cover the span from one rib to the other. (Tr. 62-63; Sec’y Ex. 3 p. 3). He agreed that there were roughly 30 bolts in the crosscut and probably a couple of thousand bolts in the immediate area inby the loading point. (Tr. 80-81). He explained that, while he was not focused on the roof at the time, he noticed the condition because it was obvious to him that a bolt was missing from the pattern. (Tr. 30-31, 89). Pruitt explained that the mine’s roof control plan requires that bolts be installed in the roof in no more than five foot centers. (Tr. 28). Pruitt, using a tape measure, determined that the missing bolt resulted in an area between bolts that measured 8 foot 5 inches by 9 foot 10 inches. (Tr. 29-30, 90-91; Sec’y Ex. 5). On cross-examination, Pruitt agreed that the other bolts in the entry were spaced closer than what was required by the plan and that the decreased spacing helped with support. (Tr. 91-92). Moreover, he did not observe any problems with other bolts in the immediate area. (Tr. 97). He tested the roof around the hole and agreed that it was not sagging or drummy. (Tr. 78).

            Pruitt testified that, after noticing the missing bolt, he informed the operator that he was going to issue a citation. (Tr. 33). He then began an examination of the area with the hope that he would be able to determine whether the bolt was missing entirely or had broken off. (Tr. 33-34). Pruitt agreed that bolts and plates can be damaged or broken if they are hit by shuttle car canopies or the head of the continuous miner. (Tr. 80). Pruitt explained that he believed the area under the hole was safe enough at that particular time. (Tr. 79). The inspector sounded the roof, walked under the hole, took off his hard hat, shined his cap-light up into the hole, and stuck his walking stick in the hole in an effort to determine if there was anything inside the hole. He was unable to determine whether the bolt was missing or had broken. (Tr. 34, 77-79). After inspecting the hole, the citation was terminated by installing a jack in the area of the missing bolt. (Tr. 59, 77-78). It was his understanding that the jack would eventually be replaced by a roof bolt so that travel through the crosscut would not be impeded. (Tr. 59).

            Pruitt explained that, due to previous roof control problems in this section of the mine, the roof bolters had been installing 8 foot torque tension bolts and wire mesh on the roof. (Tr. 31, 35). He described the bolts as consisting of two parts and a resin component that is designed to cement the layers of roof together to form a beam across the entries. (Tr. 76, 78). With regard to the mesh, he stated that the mesh did not overlap and there were continuous gaps of between five and ten feet. (Tr. 31, 73). Pruitt was adamant that there was no mesh supporting the roof in the area of the missing bolt. (Tr. 31, 73, 99). He explained that, had there been mesh, it would have obscured his view of the hole, which it did not, and when he probed the hole with his walking stick he would have noticed the mesh if it had been there. He did not note or depict the mesh in his inspection notes, which he would have done had there been mesh in the area, and he had just spent six months in the mine conducting E01 inspections during which he observed how mesh was installed throughout the sections. (Tr. 31-32, 73-74). According to Pruitt, mesh is only capable of controlling the immediate roof. (Tr. 72, 74-75).

            Pruitt marked the likelihood of an injury as “reasonably likely” based on a number of factors. (Tr. 35-36). First, Crosscut No. 7 was the last open crosscut, and would have been used by a number of individuals (i.e., continuous miner operators and their helpers, shuttle car operators, scoop operators, roof bolters, examiners, and miners installing ventilation controls). (Tr. 36). Many of the individuals would have been traveling on foot, while others would have been in equipment with canopies. (Tr. 37, 82). As a result, the level of exposure was high. (Tr. 36). On cross-examination, he acknowledged that examiners on foot would only be in the area for the short time it takes to walk through and look at the crosscut, and that once a more inby crosscut was developed, the new crosscut would become the principal travelway for those mining at the face and Crosscut No. 7 would be used much less frequently. (Tr. 82-83). Second, according to Pruitt, there was a cutter along the rib line in the crosscut. (Tr. 35-36). Pruitt explained that a cutter is a large crack or separation of the roof from the rib where they meet. (Tr. 37-38). A cutter is an indication of some type of settling or deterioration of the roof. (Tr. 37-38). This particular cutter was on the adjacent rib line closest to the area of the missing bolt and was approximately seven feet away. (Tr. 38). Pruitt testified that the cutter was approximately 20 to 25 feet long, and went along the rib and then turned out into the entry. (Tr. 38). He documented his observation with a drawing in his inspection notes. (Tr. 39-39; Sec’y Ex. 3 p. 9). Pruitt acknowledged that he did not require the mine to install timbers or jacks along the cutter in the crosscut. (Tr. 79-80). Third, there was a second, larger cutter nearby in Entry No. 2 along the rib line that was coming to the intersection. (Tr. 36). The mine had installed timbers near that cutter. (Tr. 39-40, 76). He expressed concern because the two cutters were “working toward each other.” (Tr. 40). More specifically, he was concerned that a “channel zone” and cantilever effect may be created. (Tr. 40).

            Fourth, there had been a previous roof fall, approximately two to three feet thick, nearby in Entry No. 2, between Crosscut Nos. 6 and 7, i.e., just outby the second cutter. (Tr. 39-40, 64, 75). That roof fall occurred before the freshly cut area had been bolted. (Tr. 40, 75). According to Pruitt, the roof fall in Entry No. 2 was an indication of the potential for the roof to fall in the area of the missing bolt. (Tr. 42). Fifth, this mine has a history of roof problems and falls. (Tr. 43). When looked at together, the various conditions in the area indicated a deteriorated roof, and he was concerned about it getting worse. (Tr. 40-41). Further, assuming continued mining without correcting the condition, the roof would continue to deteriorate. (Tr. 44).

            Pruitt explained that roof bolts help to create a beam across the expanse of the roof. (Tr. 41). By failing to place one bolt pursuant to the plan, the entire beam across the expanse was compromised. (Tr. 41). A missing bolt gives a starting point for deterioration of the roof to begin. (Tr. 42). Pruitt did concede that, in the subject area, he did not see any other signs of weight being placed on the bolts that were in place or any sagging of the roof. (Tr. 44). However, he explained that failing to follow just one element of a roof control plan can cause a catastrophic failure. (Tr. 45).

            Pruitt determined that any injury sustained was reasonably likely to be fatal. (Tr. 45-46). Given the two to three feet that had fallen out of the roof in Entry No. 2, he believed that a fall in the subject area would be substantial enough to cause a fatal injury. (Tr. 45-46). Moreover, there was a significant level of exposure of miners walking through the area and the rib cutters indicated the “potential” for a “massive separation of rock that could come down.” (Tr. 46). Pruitt found that only one person would be exposed to this condition. (Tr. 46-47).

            Pruitt marked the alleged violation as S&S. Consistent with his earlier testimony, he believed that it was reasonably likely that an injury would occur and that the injury would be serious. (Tr. 47). He testified that his S&S finding would not change even if there were mesh over the hole. (Tr. 47). Mesh only controls the immediate roof and is not able to prevent a fall of much weight from causing an injury. (Tr. 48). His primary concern was the two rib cutters that were working their way toward each other. (Tr. 47). As the cutters continue to work toward each other they would create a complete separation at the intersection, which in turn would cause a cantilevering effect, thereby making the area even more dangerous. (Tr. 48). According to Pruitt, the missing bolt could be causing the cutters since there was nothing there to properly tie the roof together. (Tr. 48). Further, while a missing bolt is dangerous enough, a broken bolt would have signaled to him that there were already stresses in the area that caused the bolt to break. (Tr. 101)

            Pruitt determined that the alleged violation was a result of Consolidation’s high negligence. (Tr. 48-49). He testified that he had previously issued citations to the mine for violations of the same standard and the mine had a history of roof falls. (Tr. 48-49, 88; Sec’y Exs. 7 and 9). He agreed that he did not look at each specific fall in the history and the mine had been taking steps to address its roof fall problems. (Tr. 93-94). Nevertheless, roof falls are the “second greatest killer out there” and this mine’s number of falls placed it on notice that it had a roof control problem. (Tr. 56). In January of 2010, Pruitt issued a citation for a similar condition where there were missing and damaged roof bolt plates and loose rib bolt plates. (Tr. 53; Sec’y Ex. 90). When he issued the January citation, he discussed with management the need to be more observant about roof conditions. (Tr. 49, 54). Further, in February of 2010 he issued a citation for 12 to 13 missing roof bolts in an area of the mine. (Tr. 52; Sec’y Ex. 7). At the time he issued the February citation he told Dave Turner, a maintenance man at the mine, that further conditions of this nature would warrant increased enforcement. (Tr. 49, 54, 55, 88; Sec’y Ex. 6 p. 6). Moreover, the mine had been issued 18 citations for violations of the roof control plan and he is aware of other MSHA inspectors and specialists that had discussed roof control issues with mine management. (Tr. 51, 55-56; Sec’y Ex. 8).

            Pruitt explained that the area in question was frequently examined by mine personnel and the condition had existed for at least longer than one shift and could have been present for close to a week. (Tr. 49-51). However, he could not be sure when the area had been mined and bolted. (Tr. 106). An examiner would have traveled across all twelve of the faces through the last open crosscut while looking at the roof, checking for methane, and looking for any other hazards. (Tr. 81-82). Pruitt believed that three preshift exams and two onshift exams would have been conducted. (Tr. 49-50). Moreover, the condition was obvious. (Tr. 49). Pruitt was not looking for roof bolt violations at the time, yet he noticed this one when he stopped to take an air reading in the crosscut. Id. He testified that he did not see anything in the area around the missing bolt that lead him to believe that a bolt had been knocked, damaged, or hit by a piece of equipment. (Tr. 50). Pruitt testified that the cutters and the roof fall near the subject area indicated that the area should have been watched more closely for continued roof deterioration. (Tr. 51).

            Sidney Hansen also testified on behalf of the Secretary. Hansen is a licensed professional engineer in Colorado and is currently the MSHA roof control supervisor for District 9. (Tr. 109-111). Hansen has been with MSHA since 1986 and has worked in technical support on both ventilation and ground control, as well as in enforcement. (Tr. 110). Prior to joining MSHA, Hansen worked in the mining industry at multiple mines. (Tr. 111). Hansen has a bachelor’s degree in mine engineering from Colorado School of Mines.

            Hansen personally inspected the Emery Mine in the past and has been involved in reviewing the mine’s roof control plans. (Tr. 113-114). He explained that, based on the mine’s history, the mine has had issues with unintentional roof falls. (Tr. 114). He referenced 15 reportable roof falls in the 5 years prior to the issuance of the subject citation. (Tr. 114, 131). Most of those falls occurred due to a bed separation above the anchorage point, but Hansen could not recall whether any injuries resulted. (Tr. 131). Further, he testified that, while a majority of injuries suffered as a result of roof falls are sustained by roof bolters, the majority of reportable roof falls do not involve any injuries. (Tr. 144). Hansen explained that the mine had previously experienced severe roof control problems that necessitated a complete revision of the roof control plan before the mine could move forward. (Tr. 129). Nevertheless, he agreed that the mine does not lead MSHA District 9 in reportable roof falls and that there are other mines with higher rates of falls. (Tr. 131-135). Moreover, the mine began operating under a revised roof control plan in November of 2009. (Tr. 133). The new plan required, at a minimum, that the mine use 5 foot bolts. (Tr. 132). Hansen did not personally witness the condition that is the subject of this case, nor has he ever been to Crosscut No. 7, and all of the information he relied upon in his review of the matter is based upon the inspector’s notes and his discussions with the inspector. (Tr. 114, 129).

            According to Hansen, roof bolts help to bind the layers of strata together, thereby making them stronger than the individual layers and helping prevent horizontal movement. (Tr. 119, 135). Each bolt is expected to hold a load. (Tr. 118). When a bolt is missing, the surrounding bolts have to take the suspended weight that the missing bolt would have taken. (Tr. 119). A missing bolt hampers beam building and can cause the remaining bolts to shear and break. (Tr. 119). Assuming equal distribution of the load, the surrounding bolts would experience a 25 percent increase in load. (Tr. 115). The impact of such an increase could be that the surrounding bolts would fail or fall out of the strata they are anchored into. (Tr. 115-116). The force exerted by the plates on the roof radiates outward from the plate into the roof in a conical shape. (Tr. 120, 137). The closer bolts are spaced together, the more overlap of the “zones of influence” of the bolts and, hence, the more strength of the roof. (Tr. 137) Hansen testified that, if a bolt had failed during installation, the mine would have known about it immediately. (Tr. 144).

            Hansen opined that the nearby fall of roof was evidence that the roof in the area had trouble supporting itself. (Tr. 116, 127). Although the eight-foot bolts were used to compensate for that condition, the longer bolts do not lessen the impact of a missing bolt. (Tr. 116, 127, 134). The bolts are designed to work as a system, and a missing bolt requires the surrounding bolts to take more load than the system is designed to handle. (Tr. 116).

            Hansen testified that he was made aware that there was cutter in the crosscut near the missing bolt. (Tr. 120). According to him, when rectangular openings are cut into stratified deposits, the corners of the cut will develop shear stress. (Tr. 120-122). If there are weak layers in the rock then a cutter can occur where the rib line meets the roof. (Tr. 120-121). As the cutter propagates upward it may or may not go above the bolt horizon, i.e., the extent of the anchor. Id. Cutters can vary in appearance, severity, and depth. (Tr. 128). A separation in the roof bed may occur. (Tr. 122). When a separation in the roof bed occurs above the bolt horizon, the bolts may not show any signs of taking too much of a load, yet there could still be a fall. (Tr. 120-123, 126). Roof cutters are an indication that the installed roof support system may be inadequate because the roof is in a state of degradation. (Tr. 121). Given enough time, a cutter could continue to develop higher and cause a fall. (Tr. 121). Hansen explained that a cantilevering roof occurs when only one side of the roof is connected, but the other is not. (Tr. 122; Ex. G-12). In that case, the suspension of the roof is dependent on the bolts to carry the load and the strength of the cantilevered beam. (Tr. 123-124). Hansen stated that, even if the cutter had been on the opposite side of the crosscut, he would not change his opinion regarding the impact of the cutter. (Tr. 124). Moreover, the fact that there was another cutter in the area was evidence that there was a broader problem that was not localized at just the missing bolt. (Tr. 125).

            Hansen testified that sounding the roof only tells whether there is a problem with the immediate slab and that a massive failure higher up in the roof would not render hollow sounds. (Tr. 126). Hansen agreed that it would be difficult to determine if there was separation in the roof layers in the subject area. (Tr. 141). He also stated that the presence of mesh, while a positive measure, would not prevent a roof fall involving a bed separation above the bolt horizon. (Tr. 126, 134). Mesh only controls the immediate skin of the roof. (Tr. 126).

            Joseph Lester Jorgensen testified for Consolidation. Jorgensen is currently the general mine foreman at Emery Mine and is in charge of all underground activities. (Tr. 152). Jorgensen has extensive mining experience and has held various other positions, including section foreman, operation superintendent, shift foreman, section foreman, construction foreman, roof bolter, faceman, fire boss, and shuttle car operator. (Tr. 153).

            Jorgensen testified that, prior to April 14, 2010, the mine had made an effort to improve roof control. (Tr. 155). He acknowledged that the mine had been having problems with loose roof bolt plates and plates damaged by machinery. (Tr. 155). Management conducted several safety meetings and spoke with the roof bolters and the bosses about how to prevent such conditions. (Tr. 155, 171). The mine switched to longer, eight-foot, “combination bolts” in Entry Nos. 2 and 3. (Tr. 155-156, 158, 161). The bolts, which are produced by a leading manufacturer of roof bolts, consist of a “resin top” with a coupler, and a “torque bottom.” (Tr. 156; Consol Ex. 6). The bolts are installed by drilling a hole, placing resin in the hole, placing the top part of the bolt into the hole and allowing the resin to set up, attaching the bottom of the bolt via the coupler, and torqueing the bolt to put tension on the mine roof. (Tr. 156-157, 175). Jorgensen agreed that using the longer bolts does not take away from the responsibility of the mine to keep a close eye on the bolts once they are installed. (Tr. 176).

            Jorgensen testified that he and Randy Crane, the mine’s union representative, traveled with Inspector Pruitt on April 14, 2010. (Tr. 158, 160). When they arrived at the section, Pruitt began his inspection at the No. 13 face, i.e., the right side of the section which was being actively mined at the time, and then worked his way across the section, via Crosscut No. 7, to the No. 2 face. (Tr. 159, 167). As they passed through Crosscut No. 7 from Entry No. 3 to Entry No. 2, the inspector did not comment about the missing roof bolt. (Tr. 159). It was only after coming out of the No. 2 face and back to the No. 3 face that the inspector noticed the bolt missing from Crosscut No. 7 and pointed it out Jorgensen. (Tr. 160). According to Jorgensen, the inspector took off his hard hat, walked under the hole, and shined his light up in the hole in an attempt to see if part of a bolt still remained in the hole. (Tr. 163, 173). Neither Jorgensen nor the inspector were able to see anything. (Tr. 163). In addition, they attempted to stick something in the hole to see if they could feel anything, but they still could not tell if part of a bolt remained in the hole. (Tr. 165). Jorgensen did not feel that there was a risk of anything falling and injuring someone while they were standing under the hole. (Tr. 163, 165-166). The roof in the area was fully meshed and the mesh, which is put up under the plates, was tied into the bolts on both sides of the hole. (Tr. 163-164). Moreover, Jorgensen testified that the entirety of Crosscut No. 7 was fully meshed, including quite a bit of overlap, and there were no gaps. (Tr. 160). The mesh is made up of heavy gauge wire formed into three or four inch squares. (Tr. 175). The roof bolters are trained to overlap the mesh. (Tr. 161). Mesh supports small to medium size pieces of roof that would otherwise fall from between the bolts and potentially hit miners or machinery. (Tr. 161, 169, 176).

            Jorgensen testified that there were no other missing bolts in the area, nor were there problems with any of the bolts that were in the roof. (Tr. 161). He explained that, if there were too much weight on the bolts, the plates would have started to “mushroom” and show signs of stress. (Tr. 161). He opined that the one missing bolt was not an obvious condition. (Tr. 162). Moreover, the roof around the bolt hole was “flat, smooth, hard” and had “[n]o fractures whatsoever.” (Tr. 163). 

            Jorgensen acknowledged that there was a small rib fracture on the outby rib in the crosscut, but the fracture did not cut up into the top. (Tr. 162-163). The fracture, which he did not think qualified as a cutter, was not affected by the missing bolt since it was on the opposite side of the crosscut. (Tr. 166). If the crack line had gotten worse and gone higher up into the top, then the mine would have placed timbers to support the area. (Tr. 166). The inspector did not require that timbers be put under the alleged cutter in the crosscut. (Tr. 167). Jorgensen conceded that the crack in the crosscut was a warning sign and that the mine should keep a close eye on such cracks to make sure nothing serious is going on. (Tr. 180-181). According to Jorgensen, cutters can change over time and if one becomes worse, then that is when the mine should take action. (Tr. 184). He agreed that there was a cutter with timber support in Entry No. 2 around the corner from the crosscut and that it was a sign that the mine needed to keep an eye on the roof in the area. (Tr. 181). He further agreed that there was bad roof in this section of the mine, but the bad roof was outby the subject area and not in Crosscut No. 7 between Entry Nos. 2 and 3. (Tr. 182). Jorgensen was not aware of a roof fall in Entry No. 2. (Tr. 181). According to Jorgensen, there was nothing wrong with the inby rib in Crosscut No. 7. (Tr. 162). He saw nothing in the area that indicated that the roof was reasonably likely to fail. (Tr. 167, 169). He admitted that the mine did have a history of unintentional roof falls and there have been instances where there were no signs of the bolts taking weight before a fall. (Tr. 177-178).

            Jorgensen testified that the mine would have continued using Crosscut No. 7 to travel between Entry Nos. 2 and 3 until Crosscut No. 7 was no longer the last open crosscut, i.e., when Crosscut No. 8 was developed. (Tr. 167). Once Crosscut No. 8 was developed, Crosscut No. 7 would probably be used as a buggy road, or not at all. (Tr. 167). The blocks in the mine are 55 feet wide by 105 feet long. (Tr. 168). Entry No. 2 had already been mined approximately 40 feet beyond Crosscut No. 7, so it was likely that the miners would have to go back to that face via Crosscut No. 7 two more times before the mine would be able to develop Crosscut No. 8. (Tr. 168). According to Jorgensen, the shuttle cars in the section have canopies that are designed to protect the operators from roof problems. (Tr. 168).

            Jorgensen testified that it was never determined if a bolt had broken or never been installed in the bolt hole. (Tr. 179-180). Jorgensen was present when the citation was terminated by installing a jack under the bolt hole. (Tr. 164-165). After the day in question, and at the direction of the safety director, Jorgensen prepared notes regarding what happened the day the citation was issued. (Tr. 172, 178; Consol Ex. 2). Jorgensen’s notes depict a small crack on the outby rib and no cutter on the inby rib. (Tr. 173). At the time he wrote his notes, there was not a controversy about the mesh, so he did not depict it in his drawing. (Tr. 174).

            Randy Crane also testified for Consolidation. Crane is currently an examiner at the mine and has worked there off and on since 1978, but estimates that he has 16 years of mining experience at the mine. (Tr. 187-188). On the day of the subject inspection, Crane traveled with the inspection party as the union representative. (Tr. 189). Crane testified that the missing bolt was located in the middle of Crosscut No. 7 in the second row of bolts from the left rib as he traveled from Entry No. 2 to Entry No. 3. (Tr. 196-197). According to Crane, the crosscut was fully meshed. (Tr. 191). Crane, as a fire boss who is trained to look for such conditions, was not sure why he missed the condition the first time he walked through the crosscut, but testified that it could have been the rock dust in the area or the fact that the area had not been cleaned at that point. (Tr. 192, 202

            Crane explained that, in safety meetings over the prior six months, the mine had been placing special emphasis on preventing damaged, missing, and improperly installed roof bolts. (Tr. 192-193, 202). A number of the roof bolters at the mine were new, so the mine was constantly addressing this issue. (Tr. 193). He agreed that if the mine had correctly conducted its examinations, then an examiner would have noticed a missing bolt. (Tr. 202). However, there are other conditions besides the roof that an examiner needs to look for and he might fail to see a single missing bolt. (Tr. 203-204).

            Crane testified that, after noticing the missing bolt, Inspector Pruitt walked over to the hole, took off his hard hat, and shined his light up the hole. (Tr. 194). There was a discussion among the party members about a cutter in the area. (Tr. 195). Crane’s recollection was that the cutter was roughly 12 feet long along the rib and went around the corner into the entry and that there were at least three rows of bolts between the cutter and the missing bolt. (Tr. 195). The area was beginning to flake apart at the corners, but the break was very thin. (Tr. 196). Crane did not believe that the cutter created a danger since he barely noticed it. Id. Moreover, he did not think that the missing bolt made it reasonably likely that the roof would fall. (Tr. 196).

            Crane testified that the roof in the subject area “appeared to be sound.” (Tr. 193). He is aware of situations where a bolt has lost its grip and fallen out of the hole and onto the ground, but that was not the case here. (Tr. 193). No bolt was on the ground. (Tr. 193). Given that the crosscut had not be cleaned, he does not believe that it was traveled after it was bolted, which may have only been a short time before they arrived. (Tr. 205).

            Brett Newby also testified for Consolidation. Newby has worked on and off at the mine since 1976. (Tr. 206). Newby was the outby foreman at the mine in April of 2010, but at times would fill in for section bosses on days that they could not be there. (Tr. 206). On April 14, 2010, he was the acting production foreman at the mine. (Tr. 207). After learning of the missing bolt and citation, he traveled to the area. Id. Newby did not have his sounding stick, so he sounded the roof with a shovel and determined that the roof was solid. (Tr. 208). Newby and a general laborer installed the jack to terminate the citation. (Tr. 207). There was mesh in the area of the hole. (Tr. 208). A small cutter that was just beginning to flake was located on the outby rib. (Tr. 209). There were no signs that the roof in the crosscut was going to fail, i.e., there were no damaged, hanging, or sagging plates that would indicate they were taking too much weight and there was no popping, cracking or crumbling that would signal a problem. (Tr. 210). He explained that an examiner is looking for hazards like bad roof, but is also looking for gasses and watching for ventilation problems. (Tr. 210-211). Newby acknowledged that roof falls can be unpredictable and that conditions can quickly change if the mine is not addressing them. (Tr. 212). He further agreed that, if he were in an active area of a mine where there were possible indications of roof control problems, he would examine the area and, if he saw a cutter, he would give the area a closer look. (Tr. 213).

            Finally Scott Malmgren testified for Consolidation. Malmgren has worked at the mine for approximately seven years and is currently a safety supervisor, but has 22 years of mining experience at other mines. (Tr. 214-215). Malmgren was not in the subject section of the mine on April 14, 2010. (Tr. 225). On November 15, 2010, i.e., well after the citation was issued, Malmgren went back to the subject area and took photos of Crosscut No. 7 between Entry Nos. 2 and 3. (Tr. 215; Consol Ex. 8). The photos do not show the entire crosscut. (Tr. 225). He looked for an empty bolt hole, but was unable to find one and he does not know if the pictures captured the cited location. (Tr. 215, 225). He explained that it was possible that the plate on the new bolt covered the hole. (Tr. 216). There was mesh in the crosscut and the bolts in the area were on the outside of the mesh, which meant that the mesh was put up before the bolts. (Tr. 216-217). He noted that there was one area where the bolts were under the mesh, but that was where the mesh had to go in a different direction, so it was necessary for those who installed the mesh to pin it. (Tr. 218). There were no gaps in the mesh and it was overlapped in areas. (Tr. 217). Malmgren testified generally that the absence of one bolt will have little effect on an area. (Tr. 224). Further, he stated that the mine had conducted safety meetings prior to April 14, 2010, during which the issue of damaged and loose bolts was addressed. (Tr. 218-220; Consol Ex. 9).

            B.        Summary of the Parties’ Arguments

                        1.         Secretary of Labor

            The Secretary argues that Consolidation violated section 75.220(a)(1) when it failed to comply with its approved roof control plan. Specifically, the Secretary asserts that a missing roof bolt resulted in an area of unsupported roof which “greatly exceed[ed]” that which was permitted by the mine’s approved roof control plan. (Tr. 227). Roof control plans specify the minimum requirements necessary. (Tr. 228). If a mine fails to install proper support specified by its approved roof control plan, then “the roof is inadequately supported and the safety of all miners [is] . . . put in jeopardy.” (Tr. 228). The Secretary asserts that Consolidation does not dispute that a bolt was missing and that it was not in compliance with its roof control plan. (Tr. 227).

            Next, the Secretary argues that the violation was of a S&S nature. (Tr. 227). First, the missing bolt resulted in non-compliance with the mine’s approved roof control plan and, in turn, was a violation of the cited mandatory standard. (Tr. 228). Second, this violation “contributed to the discrete safety hazard of a roof fall.” (Tr. 229). Third, based upon the following factors, an injury was reasonably likely to occur: (1) while only one bolt was missing, that one missing bolt disrupted the entire pattern designed for the subject area; (2) many miners would have been exposed to the hazard while traveling in shuttle cars and on foot in the subject area since it was the last open crosscut at the time the citation was issued; (3) conditions in the area, namely a roof cutter in the same crosscut as the missing bolt, a second cutter in the No. 2 Entry, and the prior occurrence of a roof fall in Entry No. 2 before the area had been bolted, led the inspector to believe that the roof was already deteriorating due to the strain of the weight of the unsupported section of roof ; and (4) this mine has “an extensive history of roof falls,” and, while those falls may have been in other areas of the mine and occurred some time ago, the existence of those falls can impact the S&S finding in this case. (Tr. 229-232). Moreover, while no injuries have occurred as a result of roof falls at this mine, that fact is not determinative as to whether a fall in the future is reasonably likely to cause an injury. (Tr. 232-233). Fourth, there was a reasonable likelihood that any injury sustained would be fatal. (Tr. 234). Roof falls are one of the most serious hazards in underground coal mining and historically have been a leading cause of fatal accidents. (Tr. 234-235).

            The Secretary asserts that the mine exhibited high negligence given that it “should have known of the violation” and the fact that there were no mitigating circumstances. (Tr. 235). Specifically, the Secretary argues that the use of longer bolts than what were required by the plan does not amount to a mitigating circumstance in a situation where there was no bolt installed. (Tr. 235). The condition was very obvious. (Tr. 235). The area in question was “very active” at the time and was subject to “multiple examinations per day.” (Tr. 235). Moreover, warning signs in the area, such as the cutter in the same crosscut and the cutter in Entry No. 2, were an indication that the mine needed to closely monitor the roof. (Tr. 236). Despite the obvious nature of the condition, and the warning signs in the area, the Respondent “still managed to completely miss the missing bolt.” (Tr. 236).

            This mine was on notice that it needed to pay closer attention to roof-related issues. (Tr. 236). During the two years prior to this violation, the mine had received eighteen citations under the cited standard, three of which were issued in the three months prior to the subject citation. (Tr. 236). The most recent of those eighteen citations was issued in February of 2010 by the same inspector who issued the subject citation. (Tr. 236). When he issued the prior violation he gave mine personnel explicit notice that any further issues would amount to aggravated conduct. (Tr. 237). A different inspector issued a second citation for violation of the same standard in February of 2010, and, in the body of the citation, stated that the operator had been placed on notice. (Tr. 237). Finally, this mine’s history of roof falls, which includes falls in other sections of the mine, placed this mine on notice that greater efforts were required for compliance. (Tr. 238)

                        2.         Consolidation

            Consolidation argues that it is unclear whether a bolt was ever put in the drill hole that the inspector observed. (Tr. 240). A bolt could have been put in the hole and fallen out, or been damaged and had part of the bolt fall out while part of it remained in the hole. (Tr. 240). Nevertheless, it conceded that the missing bolt violated its roof control plan.

            Consolidation argues that the citation was “overwritten and overassessed.” (Tr. 240). Consolidation points to a citation issued by a roof control specialist just two months prior on February 2, 2010, which also involved a single bolt, but was found to be non-S&S. (Tr. 240). The Commission has made clear that establishing that an injury could happen does not satisfy the third element of the S&S test. (Tr. 245). Here, the roof in the subject area was sound and the cutter in the crosscut, which was so minor that the inspector required nothing to be done about it, was on the outby rib away from the missing bolt. ( Tr. 245). Moreover, the inspector himself thought the area directly underneath the hole to be safe enough to stand under without a hard hat on. (Tr. 247). Further, any exposure of miners in the area to the condition would be limited to the very brief time it takes to pass through. (Tr. 248). Furthermore, assuming continued mining operations, the subject area in Crosscut No. 7 would see little, if any, traffic once the next crosscut was developed. (Tr. 248).

            With regard to the negligence designation, Consolidation argues that it was improperly assessed by the inspector as “high”. (Tr. 241). There were a number of mitigating circumstances, including: (1) this was only one bolt out of thousands in the mine; (2) at least a number of people thought the cited condition was not obvious, including the inspector who initially walked by the condition and did not notice it; (3) the mine was using longer roof bolts than what were required by the roof plan; and (4) the mine was using mesh, which provided additional roof support, in the area. (Tr. 241). Further, while the history of violations shows 18 violations over the previous 15 months, given that this is the 5^th most frequently cited standard, there is no way to do a comparison as to whether the history is excessive or not. (Tr. 244). In addition, an examiner is required to look for a wide range of hazards and must also take air readings.

            The Secretary’s argument that the mine was “on notice “ is flawed. First, it is not clear what “on notice” means or how many citations are necessary before a mine is on notice. (Tr. 241). Second, the Secretary cannot expect that providing notice to a maintenance worker at the mine amounts to putting the mine on notice. (Tr. 242). One of the times the Secretary alleges notice to have been given involved a non-S&S citation where, after the issuance, the mine held safety meetings during which the issue was addressed with the mine personnel. (Tr. 242-243). Consolidation argues that MSHA cannot put the mine on notice about things that do not rise to the level of S&S because it “wastes the resources of this industry, focusing on things that are not significant and substantial.” (Tr. 244). Further, while this mine may have a history of roof falls, it is “certainly not the leading roof fall mine in the district.” (Tr. 245).

            Finally, Consolidation argues that the proposed specially assessed penalty is “egregious” and has no basis. (Tr. 250). The violation was not found to be unwarrantable. (Tr. 250). If MSHA’s own formula is applied to the violation as written, which Consolidation does not agree with, then the total penalty is only $12,000. (Tr. 251) 

            C.        Discussion and Analysis

                        1.         The Violation

            Consolidation does not dispute the fact of violation. The missing roof bolt clearly violated the mine’s approved roof control plan and, in turn, amounted to a violation of section 75.220(a)(1), which requires that “[e]ach mine operator . . . 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.” 30 C.F.R. § 75.220(a)(1). I find that a violation did occur. There are a number of factual disputes, as discussed below, that will need to be resolved in analyzing the gravity of the violation and Consolidation’s negligence.

                        2.         Significant and Substantial and Gravity

            A violation is significant and substantial (“S&S”) if the 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)(1). There must be “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). Under the National Gypsum definition, “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 violations; (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. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-104 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (De. 1987) (approving Mathies criteria).

            In order to meet the requirements of the third, and most difficult to establish, element of the Mathias formula, the Commission has provided the following guidance:

We have explained further that the third element of the Mathias formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc. 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining CO., Inc., 6 FMSHRC 1573- 1574 (July 1984).

This evaluation is made in consideration of the length of time that the condition in violation existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S depends upon the surrounding circumstances of the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            I find that a preponderance of the evidence establishes the following facts. The No. 7 crosscut had been created a short time before Inspector Pruitt arrived. This finding is established by the testimony of Crane and the fact that the crosscut had not yet been cleaned up. I find that, when the crosscut was roof-bolted, mesh was installed at the same time, which covered most if not all of the area. Although Inspector Pruitt did not notice the mesh, the other witnesses testified that the mesh was present. He could have noticed the missing roof bolt with the mesh present. In addition, the photograph shows that the wire mesh was installed under the roof bolts and plates. (Ex. R-8). Nevertheless, it is possible that there was a gap in the mesh at the location of the hole. Although wire mesh will protect miners if a small amount of material from the roof falls, it will not hold up large slabs of coal or rock. As a consequence, the mesh would not have protected miners from the type of roof failure of concern to Inspector Pruitt. He was concerned about the presence of the two cutters that were “working toward each other.” (Tr. 40). The inspector believed that a large area of the roof could fall without warning. It is unlikely that mesh would protect miners in the event of such a large roof fall.

            Inspector Pruitt’s testimony painted a picture of a possible catastrophic failure of the roof. As detailed above, he testified that the roof could fall at any time, injuring or killing a miner in the area, given the history of roof falls, a recent roof fall nearby, the two cutters, and the missing roof bolt. Yet, he walked under the roof where the bolt was missing, removed his hard hat, shined his cap light into the hole, and then stuck his walking stick into the hole. He took these actions before the roof jack was installed. He testified that he needed to determine if a bolt had never been installed or whether an installed bolt had broken or fallen out, yet he said that his findings on gravity and negligence were not dependent on such a determination.

            I find that the Secretary established the first two elements of the Mathies S&S test as well as the fourth element. The violation created a discrete safety hazard and, if there were an injury caused by a roof fall, the injury would be of a reasonably serious nature or would be fatal. As is typical, the close question is whether there existed a reasonable likelihood that the hazard contributed to by the violation would have resulted in an injury.

            A number of facts must be considered when determining whether the Secretary established the third S&S element. First, the evaluation is made taking into consideration the length of time that the condition existed prior to the issuance of the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005). It is not required that the Secretary establish that it was more probable than not that an injury would have occurred as a result of the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 2009). In addition, an inspector’s opinion that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., 52 F3d. 133, 125-36 (7^th Cir. 1995).

            I find that the Secretary established the third element of the Mathies S&S test. I find that the condition had not existed for long. I cannot determine whether a roof bolt was never installed or whether it was broken off by a piece of equipment, although it is noteworthy that a broken roof bolt was not found on the floor and the area had not been completely cleaned up from the development of the crosscut. The evidence shows that the No. 7 Crosscut would not have been used for travel much longer, assuming continued normal mining operations. I credit the testimony of Inspector Pruitt as to the conditions he observed, including the location and condition of the two cutters. I also credit his testimony as to the likelihood of a major roof fall in the crosscut. Although the inspector’s actions in walking under the unsupported roof is troublesome, the “fact that a miner may not be directly exposed to a safety hazard at the precise moment that an inspector issues a citation is not determinative of whether a reasonable likelihood for injury existed.” Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986). Conditions in the area could have quickly deteriorated later that day with the result that a major roof fall was reasonably likely. Roof falls are a major cause of fatal accidents in underground coal mines. The Commission has stated that mine roofs are inherently dangerous and that even a good roof can fall without warning. Consolidation Coal Co., 6 FMSHRC 34, 37 (Jan 1984). In this case, given the factors relied upon by Inspector Pruitt, discussed above, including the presence of two cutters, the recent incident in which the roof fell before bolts were installed, and the history of roof falls at the mine, I find that the violation contributed to a hazard that was reasonably likely to result in a serious injury or a fatality. The violation was serious.

                        3.         Negligence

            I find that the Secretary did not establish that Consolidation was highly negligent and I find that its negligence was moderate instead. Although MSHA inspectors had warned Consolidation’s miners and management that it needed to more closely watch the roof, one missing bolt out of hundreds in the area was relatively easy to miss. Consolidation had installed supplemental roof support at the larger cutter and it is clear that the cutter in Crosscut No. 7 had just started to develop. Inspector Pruitt did not require Consolidation to add additional roof support at this cutter. Consolidation was using longer roof bolts than was required by the mine’s roof control plan in recognition that it needed to take additional measures to secure the mine roof. Consolidation also installed wire mesh in the area, which provided additional roof support. The fact that it had received about 15 citations for violations of section 75.220(a)(1) over the previous 15 months does not support a finding of high negligence, especially when 12 of these were designated as non-S&S by MSHA. (Ex. G-1). Other than the single missing roof bolt, there is no evidence that Consolidation was not taking reasonable and sufficient measures to control the roof in the area.

II. APPROPRIATE CIVIL PENALTY

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. The Emery Mine is a large mine and Consolidation Coal Company is a large mine operator. The Emery Mine had a history of about 282 paid violations in the 15 months prior to April14, 2010, of which 44 were designated as S&S. Consolidation did not assert that the penalty proposed by the Secretary would have an adverse effect on its ability to continue in business. Consolidation abated the cited condition in good faith. The gravity and negligence findings are set forth above.

            The citation was specially assessed by the Secretary under 30 C.F.R. § 100.5. Taking into consideration the six penalty criteria set forth in the Mine Act, discussed above, including the reduction in the level of negligence, I find that a penalty of $18,000 is appropriate.

III. ORDER

            For the reasons set forth above, the citation is MODIFIED as set forth in this decision. Consolidation Coal Company is ORDERED TO PAY the Secretary of Labor the sum of $18,000.00 within 40 days of the date of this decision.

                                                                        /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Alicia Truman, U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, Colorado 80202

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

RWM