FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

June 1, 2012

DECISION

Appearances:  LaTasha T. Thomas, Esq., U.S. Department of Labor, Nashville, TN, on behalf of  the Secretary of Labor

                        R Henry Moore, Esq., Jackson Kelly, PLLC, on behalf of Oak Grove Resources,  LLC

Before:            Judge Rae

            These cases are before me on three notices of contest filed by Oak Grove Resources, LLP (“Oak Grove” or “Respondent”) against the Secretary of Labor (“Secretary”) and a petition for assessment of penalties filed by the Secretary against Oak Grove, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 75.801 et seq., the “Act”. The parties resolved two assessed orders leaving these three to be decided by me. An order for partial settlement was issued by me on March 2, 2012. A hearing was held on January 24, 2012 in Birmingham, Alabama at which evidence was presented. Post-hearing briefs were submitted by both sides and have been considered in issuing this decision.

             The parties entered into the following joint stipulations of fact:

1.   On May 21, 2009, Oak Grove Resources, LLC was an operator as defined in §3(d) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §802.(d).

2.   The facility is a “mine” as that terms is defined in Section 3(h) of the Mine Act, 30 U.S.C. §802(h).

3.   Oak Grove Mine, an underground bituminous coal mine, is subject to the jurisdiction of the Mine Act.

4.   An authorized representative of the Secretary served copies of the orders at issue in this proceeding on the Respondent.

5.   Respondent timely contested the orders.

6.   Respondent 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 regarding this case.

7.   The proposed penalties will not affect the Respondent’s ability to remain in business.

FINDINGS OF FACT

              Oak Grove is a large underground bituminous coal producer. Mining is done by the longwall retreat method whereby mining is done in an outby direction in the working panel. At the time these three orders were issued, mining in the Old 10 East panel had been completed in October 2005 and had begun in the New 10 East panel adjacent to the old panel. (Tr. 116; Ex. R-3.) The two panels were separated by a 60-foot barrier of coal with a series of entries and crosscuts on either side of the barrier. The purpose of the barrier was to isolate the mined out area from the new district of longwall panels. The barrier also supported the weight of the roof and reduced the pressure from building in the Old 10 East area as the New 10 East was mined. (Tr. 116-17.) As mining retreated outby in the new panel, more weight was placed on the barrier and the roof of the Old 10 East section, causing conditions in the old area to deteriorate. (Tr. 96.)

            A pump is located at crosscut 45 on the Old 10 East side of the coal barrier which aids in ventilation and prevents a buildup of methane in the area. (Tr. 11.) Under the approved ventilation plan, Oak Grove was required to examine the pump every 24 hours. Examination of the entire Old 10 East entry was also required once every seven days. (Tr. 31.) It is the condition of the roof and ribs from crosscut 37 to crosscut 47 that is at issue in this case.

The Secretary’s Evidence

            Rodney Williams had been an MSHA certified inspector for over two years at the time he conducted an EO1 inspection of Oak Grove in May 2009. (Tr. 19.) His prior mining experience of 30+ years began in 1974 and included positions as a driller, shot foreman, roof bolter, fireboss, mine examiner and rescue team member. (Tr. 18-21.)

            On May 19, 2009, MSHA inspector Williams was accompanied by a miner on his inspection of the Old 10 East No. 1 entry and pump located at crosscut 45.The miner was one of the certified examiners who performed the pre-shift examinations of these areas on a regular basis. (Tr. 31-32.) Williams and the miner started at the East Bleeder section that ran behind longwall panel #36 and went to a cut-through in the Old 10 East isolated intake. (See mine map Ex. R-3.) The miner indicated that they were following the route that he normally took to access the pump at crosscut 45. (Tr. 74.) The miner traveled one or two crosscuts to crosscut 47 where Williams observed that the prop setters had taken weight, the ribs had rolled out and the miner was about to proceed through “very, very serious bad roof and rib conditions.” (Tr. 32, 35.) He told the miner to stop and not travel any further. The miner responded by saying “well, I’m glad to hear that.” (Tr. 32-33.) Williams asked the examiner if there was another route he could take to access the pump; the examiner responded that he thought he could do so through the outby side up through the No. 1 isolated intake area. (Tr. 33- 35; mine map Ex. R-3.) Williams could not recall if he instructed the miner to put a danger flag in the area at that time but felt it unlikely that anyone else would pass through there again as the area was only accessed by the examiner. Williams was not aware at that time that people were using this route on a daily basis to check the pump. (Tr. 33.) Williams did not issue any citations or orders on the 19th but instructed the examiner to stay out of the area until the he could examine the entire No 1 isolated intake entry. (Tr. 35-36.)

            On May 21, 2009, MSHA Inspector Williams, accompanied by several other MSHA inspectors as well as mine representatives, traveled up the isolated intake in the Old 10 East panel from outby in an attempt to make the entire entry. They started at crosscut 1 and traveled as far as crosscut 37 when he observed areas where roof bolt plates had popped off and bolts were broken, deep cracks in the roof were evident, areas where the bottom had heaved up from the stress of the roof pushing down on the pillars of coal, and ribs had sloughed at the corners. Oak Grove had installed additional roof support in the area in the form of pumpable cribs and prop setters but Williams determined that the supports were insufficient to support the weight of the roof and that the area inby crosscut 37 was too dangerous to be traveled. (Tr. 24-27.) He ordered the area be dangered off at that time. (Tr. 25.) Williams testified that there could have been some area between crosscut 37 and 45 where the roof was safe but based upon what he had seen on the 19th and 21st, he felt it was not possible to make that determination because the conditions were unsafe from either direction approaching that area. (Tr. 36.) He also stated that an examiner traveling to the pump from any direction would have had to travel under unsafe roof. (Tr. 85.)

            When back on the surface, Williams met with members of management to discuss his findings. He was told that they were aware of the poor condition of the roof in the isolated intake and had ceased conducting their weekly examination of the area two weeks prior to this inspection and changed the firebosses’ examination route, notating it in their examination book. (Tr. 41, 43-47; Ex. R-2.)

            Williams testified that the Preshift-Mine Examination Report indicates that on May 17, 18 and 21 and 22, the pump at crosscut 45 had been examined by several different individuals under the cited roof conditions before it was corrected on June 1, 2009. (Tr. 42-46, Ex. S-3.) The hazardous condition of the roof, however, was not notated in the company examination and hazards book as it should have been. (Tr. 47.)

            Based upon the conditions that he found and the information provided by the Respondent that the intake entry had not been examined in two weeks, Williams issued 104(d)(2) orders for failure to protect against roof and rib falls under 30 C.F.R. §75.202(a); failure to conduct weekly examinations of an intake air course under 30 C.F.R. §75.364(b) (1); and, failure to post a danger sign in a hazardous area pursuant to 30 C.F.R. §75.363(a). (Exs. S-1 – S-3.) Each of these orders was designated as significant and substantial (S&S) and an unwarrantable failure to comply with a mandatory standard.

Oak Grove’s Evidence

            In addition to making the argument that the violation for allowing miners to travel under unsupported roof is inconsistent with an order alleging a failure to examine the entry, Oak Grove contends that miners neither traveled nor worked under unsupported roof conditions and therefore the first order should not have been issued. They contend the cited area from crosscut 37 to 47 included the span between crosscuts 37 and 45 which was only traveled by examiners prior to May 2009 after which time they were told not to enter this area. (Tr. 69, 75.) The examination route had been changed and noted in the record books to prevent entry into the unsafe area outby the pump in the isolated entry. (Tr. 138-39; 155; Ex. R-2, p. 55.) They assert that the only area actually in controversy, therefore, is between crosscuts 45 and 47, which they allege was perfectly safe. They point out that Williams did not travel between these crosscuts on May 21st when he issued this order but had been there on May 19th and had not issued any orders or citations at that time. (Tr. 69, 75.) Oak Grove asserts that the route taken by Williams on the 19th, through the Old 10 East intake was not proven by the Secretary to be the route normally used by the examiners to access the pump. They assert, instead that the route normally taken by the examiners was a safe one through the longwall headgate above the coal barrier to the A or B cut-through into the Old 10 East entry and then to the right to the crosscut 45pump(as depicted on Ex. R-3 mine map points A and B cut-through areas). It is their position that the area from the pump to crosscut 47 was safe for travel and should not have been cited under C.F.R. §75.202(a). They admit to technical violations of the other two orders. (See Oak Grove’s post-hearing “Brief.”)

             Gary Shortt, an employee of Oak Grove with 40 years of mining experience and a mine engineering degree, testified that he traveled to the pump on May 8, 2009 by the B cut-through outby route from crosscut 46 to 45 and found the roof to be safe. The roof at the pump was heavily cribbed. He then walked outby a couple more crosscuts to crosscut 43 and observed the roof was still holding but was deteriorating. (Tr. 124-25.) He stated that he could not be sure but he felt the examiners would take the same route he did. (Tr. 126.) Marion Conners, Oak Grove’s fireboss/certified examiner, told Shortton May 8, 2009 that he had walked as far as the 44 crosscut and felt uncomfortable with the conditions in 44 and 45. (Tr. 126, 129.) Thereafter, Shortt spoke with the engineering department and told them he wanted to submit a plan to MSHA requesting evaluation points from which to perform the required examination of the No. 1 entry because the firebosses were starting to feel uncomfortable traveling the intake. (Tr. 127.) He was told that the company had the authority from a previous meeting with MSHA to examine the entry from both ends rather than travel its entirety. (Id.)

            Shortt had a discussion with Williams on the 21st immediately after Williams issued his imminent danger order. He told Williams that he had suspicions that the area was “going to get bad” based upon the deterioration he saw on the 8th. (Tr. 130.) Shortt accompanied the general manager, Paul Hafera, and the vice president, Doug Williams, and several others to the pump area in order to determine what was needed to terminate the order. He felt as though the conditions at the pump were the same as he had observed them on the 8th. Outby the pump, however, the area had deteriorated to the point that it was futile to attempt to support it. They concentrated instead on the area between the pump and crosscut 47 by adding 25 additional cribs. (Tr. 131-133.) Shortt testified that this area was already so heavily cribbed, one could hardly walk through it. (Tr. 133.) It was still safe in his opinion, however, to travel through the bleeders to the cut-through and over one crosscut to the pump (from 46 to 45). (Tr. 134.)

            John “Rusty” Hedrick, III, testified on behalf of Oak Grove as the former manager of safety and current superintendent of the mine. Hedrick was involved in the post-inspection discussions with Williams regarding when the Old 10 East entry had been last examined and what the roof conditions were. He recalled that at the time of the inspection the company was making the isolated entry from either end due to poor roof conditions. (Tr. 93.) He was with Williams when he made the inspection on the 21st of the area around crosscut 35 and 37 as he walked down the Old 10 East entry. As he approached 37, he saw the roof had broken up as the longwall retreated in the 11 East panel. (Tr. 96.) The area by 37 had supplemental roof support in the form of pumpable cribs, tri-timbers and pilasters which he described as significantly more than usually found in other longwall tailgates or headgates. The area was dangered off at William’s direction at that time. (Tr. 97-99.) Hedrick had not been in the area for some time prior to the inspection, but stated that he was not surprised to hear that the area around pump 45 was bad and was dangered off even with the additional support due to the retreat of the adjacent longwall mining and the geological conditions. (Tr. 93, 107-08; 110-12.) He was aware that certified examiners traveled the area in question. (Tr. 108.)

            James Richardson is Oak Grove’s mining engineer who has over 30 years in the field. He testified that in May 14, 2009, he had a conversation with Rex Hartzel, Oak Grove’s general mine foreman, in which they discussed the fact “that the area in Old 10 East around 45 crosscut pump and before you get there, the examiners were not able to make that area completely through…” (Tr. 138.) They discussed changing the firebosses’ route and made the change in the “Old Works Fireboss Examinations & Hazards” book. (Tr. 138-40.) Following the issuance of the orders by Williams, Oak Grove submitted a plan to MSHA to postpone inspecting the pump for seven days. (Tr. 141-42; R-5.) Thereafter a plan was submitted proposing the Old 10 East be evaluated from vantage points at either end rather than traveling the entire No. 1 entry. (Tr. 142-42; R-6.) Richardson testified that in his opinion, Oak Grove could not have asked for permission to change the examination route earlier because MSHA requires an area to actually become hazardous before they will consider such an amendment. (Tr. 144.)

            Rex Hartzel testified that he has over 37 years of mining experience to include longwall shear operator, roof bolter, and foreman and rescue team member. (Tr. 146-47.) In May 2009, a fireboss came to him to report that the roof conditions in the area of crosscuts 43 and 44 had deteriorated to the point that he no longer felt it safe to travel that area. (Tr. 148.) He discussed changing the book to note the route that was being taken to access the pump at 45 through the New 10 East to the cut-through inby the Old 10 East and around to 45 on the daily examinations and outby crosscut 37 in Old 10 East on the weekly examinations. (Tr. 149.) Hartzel was with Williams on the 21st and felt that when Williams ordered the area at 37 dangered off, it was still possible to travel further inby safely. (Tr. 150.) He also went underground after the inspection and traveled to the pump and inby from there and felt the roof was in good condition. The middleman, or layer under the coal seam, had already fallen out leaving the main roof in good condition. Additionally, there were several extra cribs and props making the area secure. (Tr. 151-52.) Hartzel confirmed that certified persons still examined the pump even after the fireboss’ route was changed by he and Richardson. Had there been any mechanical issues, an electrician would also be sent in, he confirmed. (Tr. 155-58.)

            General Manager Paul Hafera testified that he went underground after the orders were issued to examine the New 10 East and the inby end of the Old 10 East from crosscut 47 to 44 and through the No. 1 entry up to crosscut 37. (Tr. 166-67.) He described the roof as broken in many places from 47 to 44. He also noticed a distinct change at crosscut 35 where the roof was soft. (Tr. 167.) He could see in from 37 to about 41 which he felt was easily travelable with a lot of supplemental roof supports in both the inby and outby areas. (Tr. 167-68.) In fact, from 47 to 41, the area was “saturated” with timbers, pumpable cribs and pilasters to the point where it was difficult to walk in a straight line. He did not see any supplemental support failure which formed the basis of his opinion that the area was safe. (Tr. 168.) Hafera denied any knowledge of a fireboss voicing a concern over the roof conditions in the entry near the pump. (Tr. 174.)

LEGAL PRINCIPLES

Significant and Substantial (S&S)

            Each of the three orders issued by Williams has been designated as S&S.

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

            It is the third element of the S&S criteria that is the source of most controversies regarding S&S findings. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 FMSHRC at 1130.

            The S&S nature of a violation and the gravity of a violation are not synonymous. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).

Unwarrantable Failure

             Each of the orders involved herein has been designated as an unwarrantable failure.

            In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to determining whether a violation was the result of an unwarrantable failure:

            The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).

            Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB, 20 FMSHRC 203, 225 (Mar. 1998).

CONCLUSIONS OF FACT AND LAW

Order No. 7697684

The narrative portion of this order reads as follows:

            The travelway in the No. 1 entry of the Old 10 East isolated intake is not being supported or otherwise controlled to protect persons from hazards related to falls of roof or ribs. Prop setters have been installed in this entry and additional support has been provided in the form of pumpable cribs. These measures have failed to maintain the stability of the roof in the areas from cross-cut (sic) No. 37 to crosscut No. 47, a distance of approximately 1500 feet. There are many areas of broken and falling roof, as well as broken roof bolts, throughout the cited area. Cracks and fissures are running deep into the mine roof. Based on interviews with Management, this condition has been known to exist for approximately 2 weeks.

            This entry is used by supervisors and certified examiners in making the pump at cross-cut  (sic) No. 45 as recorded in the daily examination book. The pump is required to be  examined daily according to the mine’s approved ventilation plan. The entire entry is required to be made on a weekly basis. This violation is an unwarrantable failure to comply with a mandatory standard. This violation is subject to review as a flagrant violation.

(Ex. S-1.)

            Based upon the facts as set forth above, Williams designated this section 104(d)(2) order as highly likely to result in a fatal accident affecting one person and the result of reckless disregard for the safety of miners, S&S and an unwarrantable failure to comply with a safety standard. (Ex. G-1.) The proposed penalty is $56,900.00. The violation was abated by the installation of 25 additional pumped cribs from crosscuts 45 to 47. (Ex. S-1.)

            The mandatory standard provides that “[t]he roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. §75.364(b).

            While Oak Grove alleges that no persons traveled between crosscut 37 and 45, there is evidence that the examiners were traveling through portions of that area under unsafe roof as discussed above. Specifically, fireboss Marion Connors reported to Shortt that he had been traveling under roof conditions he felt were unsafe in vicinity of crosscuts 44 and 45. Shortt himself testified that he observed the mine roof between crosscuts 45 and 43 had deteriorated when he was in the section in early May. He believed the examiners did not travel in that area but he admitted that he could not be sure what route the examiners used. Hedrick testified that when he accompanied Williams on the inspection, he saw broken sections of the roof at crosscut 35 and 37. He was not surprised as geological conditions and retreat mining caused additional stress on the roof at crosscut 45 as well. Richardson stated that he knew the area around the pump and the crosscuts just outby were not passable based upon reports made to him by the examiners. Hartzel had been told by a fireboss in early May that the area between crosscut 43 and 44 was too dangerous to travel through. He also confirmed that the pump was still being examined after the firebosses’ route was changed and that, had there been mechanical issues, an electrician would have been sent into the area as well. The fireboss’ book, which Shortt testified reflected the change in the route, indicates this change was not actually made until May 19. The examination route on the 12th included all of the East bleeders. (Tr. 138- 140; Ex. R-2 pp. 39 and 55.) The examination book, Ex. S-4, indicates the pump at crosscut 45 was examined several times between May 17th and May 22nd. While miners may not have been traveling the entire entry, the evidence conclusively refutes the Respondent’s argument that no one was in the entry between crosscut 45and outby that area.  

            Oak Grove’s second argument that the area outby crosscut 45 to crosscut 47 was not unsafe also fails. The miner who accompanied Williams on the 19th told Williams that the route they were taking was the one he used to make the required examinations. He traveled in from the bleeders through crosscuts 46 and 47 heading towards the pump at 45. When Williams told him it was unsafe to continue along this route and danger it off, the miner was relieved to hear it. In order to terminate the order, Oak Grove installed an additional 25 pumpable cribs between crosscuts 45 and 47, a distance of some 30 feet. General Manager Hafera viewed the area himself immediately after the order was issued and observed that the roof was broken in many places between crosscuts 47 and 44. This was in an area that he had described as already so “saturated” with timbers, cribs and other means of supplemental support that walking through it in a straight line was impossible.

            Had the supplemental support already in place in the Old 10 East entry been sufficient, one would not expect to find the roof in the poor condition Williams observed. Furthermore, installation of an additional 25 pumpable cribs in an expanse of only 30 feet would not have been necessary if the area was as safe as the Respondent claims. Williams testified that regardless of the route the examiner took to inspect the pump, he would have had to travel under dangerous roof conditions.

            I find William’s testimony to be credible that miners were traveling and working under unsupported roof exposed to the danger of a roof fall while making examinations in areas between crosscuts 37 and 47 of the Old 10 East No. 1 entry in violation of this mandatory standard.

S&S

            Oak Grove makes the same argument it did in contest of the violation as it does in refuting the S&S designation. That is that persons did not travel or work between crosscuts 37 and 45 and that the area outby crosscut 45 was not unsafe. For the same reasons as discussed above, this argument is not persuasive.

            Williams testified that based upon the very dangerous roof conditions he found in the No. 1 entry on the 19th and 21st, it was his opinion that it was reasonably likely that the hazard posed by the improperly supported roof and ribs would cause a roof fall if the condition went uncorrected. Throughout the areas Williams inspected, he found places of fallen and broken roof, ribs that had rolled out, and broken bolts and plates as well as heaving from unsupported pressure on the roof. (Tr. 27-28.) Based upon his experience, once the roof is compromised in the manner he observed, pieces of coal the size of a car can fall without notice.

            Obviously, the firebosses/examiners at Oak Grove also felt the conditions posed such likelihood when they reported to management that they no longer felt comfortable making the examinations just two weeks before Williams made his inspection. Also indicative of how likely a roof fall was, was Oak Grove’s own conclusion following the inspection that the entry outby crosscut 45 was not salvageable and that the area from 45 to 47 required an additional 25 pumpable cribs to provide adequate support to the roof in an area that was already congested with supplemental supports.

            It is reasonably likely that a roof fall would result in a reasonably serious injury to the examiner - the one person who Williams felt would be the victim of such an event. (Tr. 30.) Roof falls are notorious in the mining industry for resulting in extremely serious injuries, often death, when they occur in a working area of the mine.

            I accept Inspector Williams’ assessment of this violation as S&S and of very high gravity.

Negligence/Unwarrantable Failure

            The order was assessed as reckless disregard for the safety of the miners and an unwarrantable failure to comply with the mandatory standard. Although Oak Grove knew of the conditions of the roof and had spent considerable sums installing supplemental support, their examiners were still being sent into an unsafe mine on a daily basis to make their examinations. (Tr. 122-26, 130.) Connors and Hedrick were just two certified persons who told management that they were uncomfortable traveling their examination route. Hedrick testified that they were aware of the geological conditions in that area of the mine and that with the retreat mining being done in the adjacent panel, it was no surprise that the area needed to be dangered off. Shortt, Hartzel, Hafera and Richardson were all aware of the deteriorating conditions in this entry but none had gone into the entry after May 8 to monitor the conditions. They claimed that they could not obtain an amendment to their ventilation plan from MSHA in advance of the issuance of the orders unless they could prove it was not possible to travel the entry. However, not a single one of them had even made the effort to present the more recent information at hand to MSHA in an attempt to establish the necessity for the amendment. In fact, their last contact with MSHA was seven months earlier in October 2008 when they reported that the barrier between the two panel districts was not providing adequate roof support. (Tr. 117-20.) It was only after Williams cited them, did they submit the change which was immediately approved. Oak Grove’s assertions are self-serving and untenable and clearly demonstrate a reckless disregard for the safety of their miners.

            In addressing the individual factors discussed in Consolidation Coal Co., I find the following:

            The conditions at Oak Grove existed for at least two weeks before management took steps to change the examiner’s route to the pump. (Tr. 31.) However, even with the change in the route, the examiner was still exposed to hazardous roof conditions from crosscut 45 to 47 when entering from the alternate route. It was not until Williams issued this order, that the roof above the pump and outby to crosscut 47 was supplemented with additional cribs. Thus, the violation existed for a period of time that unreasonably exposed miners to serious bodily injury.

            The condition was obvious and posed a high degree of danger to the miners. As previously discussed, management was well aware of the deteriorating condition of the roof and was informed by the firebosses that it had worsened. Williams found the condition of the roof to be open and obvious to a casual observer. (Tr. 39.) The timbers and prop setters were evidencing signs of failure and there were visible cracks and fissures and sloughing in the roof and ribs. (Tr. 24-27.) A roof fall in an area of a mine that is being worked or traveled would be reasonably likely to, and often does, cause fatal injuries. (Tr. 29, 50.)

            Oak Grove was on notice that greater efforts at compliance were necessary. Oak Grove has received 16 citations for violation of this same mandatory standard within the past two years preceding the issuance of this order. (Ex. G-8.) Furthermore, they had been involved in discussions with MSHA in October 2008 during which they admitted they were aware that their supplemental roof support was failing and were compelled to install additional supports. They were also apprised of the continuing degradation of the roof by their own examiners at least several weeks before this inspection and failed to inspect the area themselves and take appropriate action.

            Oak Grove had knowledge of the existence of the violation for at least two weeks prior to the inspection, by its own admission. (Tr. 31.) They further knew of the continued deterioration of the roof and lack of support thereof from the reports of Conners and Hedrick.

            Oak Grove installed 25 pumpable cribs between the pump and the cut-through at crosscut 47. In addition, they submitted a change to the ventilation plan to MSHA, as discussed above. However, they made no attempt to do either before they were forced to with the issuance of the 104(d) order.

            Based upon all of the above factors, I find this assessment of an unwarrantable failure and reckless negligence to be supported by the evidence.

Order No. 7697685

            The order alleges that Oak Grove had not made the required examination of the entry in its entirety for approximately two weeks. Williams characterized this 104(d)(2) violation as reasonably likely to result in a fatality affecting one person, S&S, the result of high negligence and an unwarrantable failure to comply with the standard. (Ex. G-2.) The proposed penalty is $27,900.00.

            The mandatory standard requires state that:

                        At least every 7 days, an examination for hazardous conditions at the following  locations shall be made by a certified person designated by the operator: (1) In at  least one entry of each intake air curse, in its entirety, so that the entire air course is traveled.

30 C.F.R. §75.364(b)(1).

            This order was issued upon the admission by the Respondent that the Old 10 East No. 1 entry had not been examined in its entirety due to the poor roof conditions in the isolated intake. (Tr. 24, 48.) Oak Grove admits to this violation.

            The Secretary has established that Oak Grove did violate this mandatory standard.

S&S

            The isolated intake area that was to be examined on a weekly basis was part of an intake airway that did not ventilate any active area of the mine. Williams testified that the purpose of the weekly examination was to detect changing conditions which would pose a hazard such as a roof fall or an explosion from a methane buildup. (Tr. 49-50.) In his opinion, it was reasonably likely that conditions “could occur” that would be reasonably likely to result in death. (Tr. 51.)

            Air readings were being taken by Oak Grove during the period in which they stopped making the examination of the entire entry, from evaluation points. These readings registered safe concentrations of gases and volumes of air. (Ex. S-4; Tr. 154.) Likewise, MSHA took readings during their inspection and did not detect any increased levels of methane or decreased airflow or levels of oxygen. (Tr. 77- 78.) Moreover, in order to terminate the order Oak Grove submitted a plan to MSHA which eliminated the requirement to examine this entry between crosscuts 37 and 45 which was readily approved. All of these factors indicate to me it was not necessary to examine this entire entry for ventilation or any other purposes.

            The area from crosscut 44 to 47 was being examined on a daily basis when checking the pump. Regardless of the fact that management did not sufficiently heed the examiners voiced concerns regarding the roof conditions in the area, it was being examined for both roof conditions and ventilation requirements. The failure to examine the remainder of the entry where no one was working or traveling during the cited time period in no way posed a likelihood of injury to a miner. If anything, Oak Grove’s actions did reduce the exposure of miners to some of the risk by not traveling the entire entry.

            I do not find this violation was properly designated as S&S.

Negligence/Unwarrantable Failure

            The Secretary contends that this order is properly evaluated at high negligence and as an unwarrantable failure to comply with the standard for the same reasons she asserts it is S&S. The Secretary asserts that the hazardous conditions of the roof in this entry were extensive. Not sending miners into the area between crosscuts 37 and 47 constituted aggravated conduct. (See Secretary’s Post-Hearing Brief at 17.) I am in agreement with the Respondent’s position that the Secretary’s stance is antithetical to the purpose of the Act. The area surrounding the pump was already being examined daily. The decision by Oak Grove, albeit without permission from MSHA, to suspend the weekly examination of the remaining portions of the entry was by no means reckless or negligent. It was specifically intended to provide some measure of safety to the examiners; however, the effort was not sufficient with respect to the pump area as discussed above regarding Order No. 7697684.

            I find this order was not properly designated as an unwarrantable failure to comply with the standard and was the result of moderate negligence.

Order No. 7697686

            This order alleges that:

                        Hazardous conditions in the form of dangerous roof and ribs were found in the No. 1 entry of the Old 10 East isolated intake in the area around crosscut No. 37.  These conditions had not been posted with a conspicuous danger sign to prevent entry or corrected as required. They had not been recorded in the fireboss book. This area is required to be traveled by supervisors or certified examiners on a daily basis. This violation is an unwarrantable failure to comply with a    mandatory standard and is subject to review as a flagrant violation.

(Ex. S-3.)

            The mandatory standard requires:

                        Any hazardous condition found by the mine foreman or equivalent mine official,  assistant mine foreman or equivalent mine official, or other certified persons designated by the operator for the purposes of conducting examinations under this subpart D, shall be posted with a conspicuous danger sign where anyone entering the areas would pass.

30 C.F.R. 75.363(a).

            Williams designated the alleged violation as reasonably likely to result in a fatal accident affecting one person, S&S, the result of high negligence and an unwarrantable failure to comply with the cited standard. (Ex. G-3.) The Secretary has proposed a penalty of $27,900.

            Williams testified that while traveling inby, the area around crosscut 37 was found to be hazardous causing him to order the area be flagged off with danger warnings. The condition was known to exist for two weeks. (Tr. 56, 59.) Oak Grove concedes a technical violation of this standard.

S&S

            Williams assessed the violation as S&S because he observed very dangerous roof conditions inby crosscut 37 which posed a reasonable likelihood of a reasonably serious injury to an examiner resulting from a roof fall. (Tr. 57-58.) He likewise testified that on the 19th he observed similar conditions outby crosscut 45 to 47.

            Respondent contends that the S&S designation is inappropriate because the only persons who would travel the area are the certified examiners who had been directed not to travel the area and therefore there was no exposure to miners.

            The analysis of this order is similar to that set forth above in the discussion of Order No. 7697684. The evidence establishes that while the area between crosscuts 37 and 47had not been accessed once the firebosses’ route was changed, examiners were still traveling crosscuts 44 to 47 to access the pump. Members of management testified that they felt this inby area was safe for travel; however, there is ample evidence to demonstrate that this area was extremely hazardous and should have been flagged as a danger zone to prevent the examiners’ entry. For the same reasons as set forth above, I find the Secretary has established this violation was S&S and of very serious gravity.

Negligence/Unwarrantable Failure

            This violation was deemed the result of high negligence and an unwarrantable failure for the same reasons as was Order No. 7697684. (Tr. 58-60.) In addition, Williams testified that Oak Grove had been previously cited for violations of this standard putting them on notice of the necessity for greater compliance. (Tr. 59.)

            Based upon the same analysis of the negligence and unwarrantable failure discussed above, I find this violation is also appropriately designated as high negligence and an unwarrantable failure. Although the fireboss’ book had been changed to reflect the examiners were no longer traveling the entire entry, they were still traveling through the last four crosscuts on a daily basis. This area had been known to management as having deteriorated roof conditions for at least two weeks. They had discussed the failure of the barrier in supporting the roof as early as October 2008, and were aware of the firebosses informing them of further deterioration. The condition was extensive and obvious and posed a very high degree of danger to the examiners. They failed to contact MSHA with this newer information in an attempt to change the ventilation plan and failed to install the necessary number of supplemental supports to make the area safe and put up no danger signs to keep the examiners out of it.

            This order was properly designated an unwarrantable failure and resulting from high negligence.

PENALTIES

            Under Section 110(i) of the Act, the Commission and its judges must consider the following factors in assessing a civil penalty: the history of the violations, the negligence of the operator in committing the violation, the size of the operator, the gravity of the violation, whether the violation was abated in good faith and whether the penalties would affect the operator’s ability to continue in business. The parties have stipulated that the mine is a large mine and that the proposed penalties would not affect the operator’s ability to continue in business. There is no evidence that the conditions were abated in good faith or that the mine has a significant history of violations. (Ex. S-8.) The findings with regard to the gravity and negligence involved in each citation are set forth above. I find that the penalties proposed by the Secretary for Order Nos. 7697684 and 7697686 appropriate. I assess a penalty for Order No. 7697685 of $1000.00.

ORDER

            Order Nos. 7697684 and 7697686 are affirmed as written with the penalties proposed by the Secretary. Order No. 7697685 has been modified to moderate negligence, non-significant and substantial and not an unwarrantable failure with a penalty of $1,000.00. It is hereby ORDERED that Respondent pay penalties on the citations adjudicated herein in the amount of $85,800.00 within 30 days of this order.

                                                                                    /s/ Priscilla M. Rae

                                                                                    Priscilla M. Rae

                                                                                    Administrative Law Judge

Distribution:

LaTasha T. Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue North, Suite 420, Nashville, TN 37219

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Ave, Suite 1340, Pittsburgh, PA 15222