FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Common Facts and Law

The parties agreed to the following stipulations at the hearing:[1]

1) The mine is a “mine” as that term is defined in section 802(h).

2) The product of the mine entered commerce within the meaning and scope of section 4 of the Mine Act, 30 U.S.C., Section 803.

3) The citations/orders at issue in this matter were issued on the date stated therein and were issued by a duly authorized representative of the Department of Labor, MSHA.

4) None of the exhibits that the parties intend to offer into evidence and that were exchanged prior to hearing will be subject to objection as to authenticity.

5) This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated administrative law judges pursuant to Section 105 and 113 of the Federal Mine Safety and Health Act of 1977(“the Act”)

6) Raw Coal Mining Company, Inc. is the owner of Sewell Mine B.

7) Raw Coal Mining Company, Inc. was an operator as defined by Section 3(d) of the Act at the coal mine at which the citations and orders at issue in this proceeding were issued.

8) Raw Coal Mining Company, Inc. is considered a large mine operator and Sewell Mine B is considered a large mine for purposes of 30 U.S.C. 820(i).

9) The products of the mine at which the citations and orders at issue in the proceeding were issued entered commerce or the operation or products thereof affected commerce within the meaning and scope of Section 4 of the Act.

10) Operations of Raw Coal Mining Company, Inc. at the coal or other mine at which the citation and orders at issue in this proceeding were issued are subject to the jurisdiction of the Act.

11) The maximum penalty which can be assessed for these violations pursuant to 30 U.S.C. 820(i) will not affect the ability of Raw Coal Mining Company, Inc. to remain in business.

12) The individual or individuals whose signatures appear in block 22 of the citations and orders that are issued in this proceeding were each acting in their official capacity and as an authorized representative for the Secretary of Labor when each citation and order was issued.

13) True copies of each of the citations and orders that are at issue in this proceeding, along with any and all modifications and abatements, were served on Raw Coal Mining Company, Inc. or its agents as required by the Act.

14) The citations contained in Exhibit A attached to the Secretary’s Prehearing Report are authentic copies of the citations and orders that are at issue in this proceeding, including any and all modifications or abatements.

15) Exhibit B attached to the Secretary’s Prehearing Report accurately sets forth the total number of assessed violations for the 24 months preceding the month of the referenced citations and orders. Such history of violations may be used to calculate penalty assessment amounts for the citations at issue.

16) The information contained in Exhibit A attached to the Secretary’s Petition for Assessment of Civil Penalty regarding the mine tonnage of Raw Coal Mining Company, Inc. accurately reflects tonnage production at Sewell Mine B.

17) Each citation and order at issue in this proceeding may be admitted into evidence without objection, although Respondent may dispute specific allegations contained with the citation or order.

18) Citation No. 8110734 should be affirmed as it was issued and the proposed penalty should be affirmed.

Sec. Post-Hearing Brief, 2-4; Tr. 6.

Applicable legal principles

All four citations and two orders discussed below have been designated as Significant and Substantial (S&S). S&S is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

As is well recognized, in order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 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 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided additional guidance: “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, 1574-75 (July 1984).

Further, “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” and “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). The Commission and courts have observed that the opinion of an experienced MSHA inspector 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., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).

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) emphasis added. By definition, negligence is:

conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

30 C.F.R. §100.3(d). The categories and definitions of the negligence criterion are as follows:

No negligence is where the operator exercised diligence and could not have known of the violative condition or practice;

Low negligence is where the operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances;

Moderate negligence is where the operator knew or should have known of the violative condition or practice, but there are mitigating circumstances;

High negligence is where the operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances; and

Reckless disregard is where the operator displayed conduct which exhibits the absence of the slightest degree of care.

30 C.F.R. §100.3(d).

One of the citations and two of the orders were designated as unwarrantable failure. The UWF terminology is taken from section 104(d)(1) of the Act, which establishes more severe sanctions for any violation that is caused by “an unwarrantable failure of [an] operator to comply with…mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).

The term “unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include 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 were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or posed 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); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 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.

The provisions of the Mine Act cited are as follows:

§104(d)(1). If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this Act. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated.

(2) If a withdrawal order with respect to any area in a coal or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under paragraph (1) until such time as an inspection of such mine discloses no similar violations. Following an inspection of such mine which discloses no similar violations, the provisions of paragraph (1) shall again be applicable to that mine.

30 U.S.C. §814(d).

104(a). If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this Act has violated this Act, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.

30 U.S.C. § 814(a).

Findings and Conclusions

1) Testimony of Eddie Bailey:

a. Background and Experience

Eddie Bailey has been an inspector with MSHA for five and a half years, and currently serves as the ventilation supervisor for District 12. Tr. 17. Prior to that, he was a ventilation supervisor in District 4 for one year. Tr. 17. Before becoming an inspector, Bailey worked as a miner for Pinnacle Mining Company in Pineville, West Virginia, for two and a half years. Tr. 17-18. During that time, he worked as a long wall production supervisor and a long wall outby supervisor. Tr. 18. As an outby production supervisor for one year, Bailey was in charge of all outby head gate maintenance, including the long wall belt. Tr. 18. In this capacity, he was responsible for belt maintenance, which included cleaning, dusting, and changing out rollers and structures. Tr. 18. He has a bachelor’s degree in mining engineering and an associate’s degree in electrical engineering technology from Bluefield State College. Tr. 17. Bailey was not a certified foreman, so he never conducted pre-shift or on-shift examinations. Tr. 86-87.

b. Sewell Mine B

There are four belts in the Sewell Mine B. Tr. 20. The No. 1 belt is a short belt that is approximately 12 cross-cuts long. Tr. 20. After a 90-degree turn, the 2 and 3 belts are in line. Tr. 20. Then, after a left-turn, the 4 belt was installed. Tr. 20. In addition to the belts, there are tracks in the entry as well. Tr. 20. Man-buses (or mantrips) travel on the track haulageway, which also serves as an escapeway. Tr. 20.

Miners work three shifts at the Sewell Mine B. Tr. 20. The day shift starts at 8:00 am; the evening shift starts at 4:00 pm; and the owl (or “hoot owl”) shift starts at midnight. Tr. 20-21. The mine only produces coal during the day and evening shift, while the owl shift serves as a maintenance shift. Tr. 21. Bailey did not know if the belts were run on the owl shift. Tr. 21.

On September 8, 2010, Bailey was inspecting the Sewell Mine B. Tr. 18. He arrived at the mine at 7:00 am, during the owl shift when the mine was not producing coal. Tr. 19. Bailey contacted Superintendent Randy Campbell to inform him that he was starting the E01 inspection. Tr. 19. Bailey then reviewed the pre-shift and on-shift examination books and the map, held a safety talk with the entire day shift, and proceeded underground. Tr. 19.

c. Citation No. 8114320

Bailey issued Citation No. 8114320 for the violation on the No. 1 belt. Tr. 23. Bailey traveled underground at approximately 8:40 am by foot inby the double doors, which are located at the drift, in order to get on a mantrip to travel inside the mine. Tr. 21. The belt was running, but Bailey was not sure if coal was being produced. Tr. 24. He was accompanied by an hourly employee, whose name he could not remember. Tr. 23. Bailey testified that after going through the double doors, but before he got to the first two crosscuts, he noticed a violation on the No. 1 belt. Tr. 22, 23. Bailey saw a large amount of coal under the belt, so he inspected further. Tr. 24. He walked the entire belt, looking at the coal accumulations and rollers. Tr. 24. He noticed that seven rollers were stuck or frozen,[2] so he put his hand on the outside of the roller in order to determine the reason why they were stuck. Tr. 24, 26-27. Bailey defined a roller that is stuck or frozen as one that is touching the belt and not rolling when it should be. Tr. 27.

Bailey went out to tell Campbell about the violation, and Campbell shut the belts down. Tr. 22, 24-25. Campbell began performing measurements and found that 31 rollers were touching coal, 24 of which were turning in coal, and seven of which were stuck. Tr. 24-25. Bailey testified that six of the rollers that he touched were warm or hot, even though the mine’s ambient temperature was approximately 60 degrees, and he remembers that at least some of these were frozen rollers. Tr. 25, 30, 122. A frozen roller cannot cause heat from the bearing, but only from the belt rubbing the metal roller. Tr. 122. Bailey estimated that these rollers were approximately 100 degrees. Tr. 123. The ignition temperature of coal varies, but Bailey estimated that the coal in the mine would likely ignite at between 600-700 degrees, but also said it could be as high as 1,000 degrees. Tr. 123.

Bailey testified that the No. 1 belt is approximately 12 crosscuts long, making it approximately 850 feet long. Tr. 25. The belt is located on the right hand side as one enters the mine, with the track on the left. Tr. 25. The belt is held up by belt stands, which has one long bottom roller that traverses the width of the belt, and a top roller that is made up of three rollers holding up the top belt. Tr. 25-26.

The rollers cited in the citation were all bottom rollers. Tr. 26. On cross-examination, Bailey testified that there were no stuck top rollers in any of the belts that he examined. Tr. 116-117. Bottom rollers wear out faster than top rollers, because they get more water and coal on them. Tr. 117. He did not consider the lack of stuck top rollers as a mitigating circumstance. Tr. 117. Furthermore, bottom rollers in high impact areas that hold the belt up are likely to deteriorate faster than normal rollers in a flat belt. Tr. 117. An example of a high impact area is the crown of the slope of a belt that travels uphill and turns downhill. Tr. 118. In the high impact area, the rollers carry more of the load, resulting in more pressure on the bearings. Tr. 118. Bailey did not witness any coal on the belts that came out over the ball of the rail. Tr. 118-119.

He determined that the rollers were stuck by viewing that they were not knocking the coal down and breaking it up, as turning rollers do when they are moving. Tr. 27. At the time, he did not see what caused the rollers to become stuck. Tr. 27. However, after, a company representative told Bailey that coal was removed and the rollers turned, he interpreted that to mean that it was likely that accumulations were causing the rollers to freeze. Tr. 27. Bailey was told by the operator that there were no bad bearings, flat rollers, or rollers that were worn through so that the peripheries of the rollers were gone. Tr. 124-125. Bailey admitted that since the No. 1 belt was not operating on the midnight shift, it was possible that water and coal fines could have caused the rollers to seize between shifts. Tr. 125.

Bailey observed accumulations of coal beneath the frozen rollers, the top layer of which was dry and touching the rollers. Tr. 27-28. He described the belt as being very close to the ground, with the coal being four to 16 inches deep. Tr. 26. In most places, the coal was built up to the belt. Tr. 26. The coal was layered, with the bottom portions being wet and the top portions close to the belt being dry. Tr. 26. Bailey believed that the frozen rollers rendered the belt unsafe to operate because they constituted a frictional heating hazard. Tr. 28. When the belt continuously runs atop frozen rollers, the rollers create friction by rubbing along the belt rather than turning with it. Tr. 28. Furthermore, coal is an abrasive substance that increases the friction. Tr. 28. Bailey testified that the frozen rollers can generate enough heat to cause an ignition of the coal they are touching. Tr. 30.

In the day shift pre-shift examination, the examiner would not be able to determine whether the rollers were frozen if the belt was not moving. Tr. 125-126. However, Bailey stated that they should have seen the coal accumulations that were causing the rollers to freeze. Tr. 125-126. An operator is not required to run the belt during a pre-shift examination, but it is required to look for frozen rollers because they constitute a hazard. Tr. 159. In order to find frozen rollers, it would be easiest to run the belt. Tr. 159. Similarly, accumulations of combustible materials, such as coal, should be recorded as a hazard in a pre-shift examination. Tr. 159-160.

Bailey asserted that Section 360 requires a pre-shift examination of the belt, because miners would be traveling the entry. Tr. 126. Bailey did not believe that the fact that the belt was not running during the midnight shift mitigated the operator’s negligence because the extensiveness of the condition indicated that previous exams had also been deficient. Tr. 127. He also stated that if all the coal had been wet, then perhaps that could have been a mitigating circumstance. Tr. 128. However, in this instance, only the coal on the floor was wet. Tr. 128.

Bailey stated that a roller turns in coal when the coal has built up to the level where it is touching the roller but the roller is not frozen. Tr. 29. The coal was dry that was surrounding the rollers turning in the coal. Tr. 29. Bailey explained that this was because the spillage off the belt is dry and most of the water was ground water. Tr. 29. Furthermore, the belt dries the top layer of coal during its process of heating and cooling. Tr. 29.

Bailey testified that the 24 rollers that were turning in the accumulation rendered the belt unsafe because they also increased the frictional heating on the coal. Tr. 29-30. With continued operations, these rollers had an increased probability that they will similarly freeze. Tr. 29-30. Bailey testified that a reasonably prudent mine operator would recognize the conditions he witnessed and would have taken immediate corrective action. Tr. 30.

The belt had been running for approximately 45 minutes when Bailey cited them. Tr. 30-31. There was not much pressure on the belts yet because there was little coal produced this early in the shift. Tr. 31. Under normal mining operations, Bailey estimated that the belt would be run for approximately 16 hours per day. Tr. 31. Bailey testified that he would expect additional heat to be generated the longer the belt ran. Tr. 31. Wet and damp coal accumulations also pose a hazard because in a heating event the coal dries out. Tr. 31-32. Additionally, in winter months there is less water in the mine, so coal dries quicker. Tr. 32.

Bailey considered this information in determining that the violation was S&S. Tr. 31. He testified that if left unabated, the conditions he witnessed would result in a frictional heating event on the belt, igniting the coal fuel, and causing a fire in the belt entry. Tr. 32. He further testified that a fire or ignition was reasonably likely to cause serious injury to miners. Tr. 32. At the time Bailey issued the citation there were 12 miners working inby on the section. Tr. 32-33. This created a danger, because in order to escape these miners would have to travel by the belt, which is an alternate escapeway with a lifeline. Tr. 33. It is also a normal haul road, so that people traveling the road could be exposed to hazards. Tr. 34. There is a further danger in that if a fire rages out of control and damages the adjacent intake stopping line, it would short-circuit the air, potentially pushing belt air to the face or cause smoke to enter the intake. Tr. 33. It was for these reasons that Bailey designated everyone inby as exposed. Tr. 33. These miners would be exposed to smoke inhalation and potential burns. Tr. 34.

Bailey testified on cross-examination that this condition could have led to lost workdays for 12 miners even though there were emergency evacuation plans, directional lifelines, additional SCSRs, a refuse chamber, and other plans to ensure safety. Tr. 128-129. This was because that entry was used for travel as well as an alternate escapeway. Tr. 128. Bailey testified that when a disaster occurs, one cannot always assume that all technologies and plans will be followed, and cited the Sago and Upper Big Branch mine disasters as examples. Tr. 129.

The air was traveling outby, and anyone on the working section could travel all the way down to the No. 1 belt without any difficulty. Tr. 130. If they were to run into smoke, then they should cross the belt and enter the intake escapeway. Tr. 130. The man doors would be approximately 300 feet away, and if one were somewhere in between the man doors, it would be approximately 150 feet to get out of the entry. Tr. 130. Bailey stated that because the mine is low and wet, crossing the No. 1 belt would be difficult. Tr. 130-131.

Bailey designated the citation as high negligence resulting from the operator’s unwarrantable failure to comply with the standard. Tr. 34. Upon receiving the citation, Campbell did not supply Bailey with any mitigating circumstances. Tr. 34-35. Bailey described the conditions that he observed as extensive because it was a relatively short belt and had 31 rollers turning in coal. Tr. 35. He described it as so “excessive and extensive” that he observed the rollers turning in coal even though he was not inspecting the belts at the time that he noticed them. Tr. 35.

Bailey testified that company employees must have been aware of the issues with the belt, including the owl shift foreman, the evening shift foreman, and two day shift foremen. Tr. 35-36. Furthermore, a pre-shift examiner would have also passed by the No. 1 belt. Tr. 36. When one rides the man-bus down the track, the No. 1 belt is a distance of six inches to three feet. Tr. 36.

Bailey estimated that this condition existed for at least two days and likely over a week. Tr. 36-37. Bailey based these estimates on his experiences as a coal miner and inspector, wherein he has been in over 20 different coal mines in the county in question. Tr. 37. It was highly unlikely that the conditions Bailey witnessed could have been produced in the 45 minutes that the belt had been running that morning. Tr. 37-38.

The violation was abated by sending nine miners for four hours to shovel and remove the accumulations. Tr. 38-39. The manpower required to clean up a belt that was 12 cross-cuts long was consistent with Bailey’s estimate that the accumulations existed for at least several days. Tr. 39.

There were three previous citations issued at the Sewell Mine B for accumulations. Tr. 39. The first citation was issued by Bailey 10 months prior to the hearing. Tr. 40. The second citation was issued by Bailey nine months prior to the hearing. Tr. 40. The most recent citation was issued by Rodney Lusk six and a half months prior to the hearing. Tr. 39-40. Bailey confirmed in the mine data retrieval system that these citations were final orders. Tr. 40. Two of the three citations were designated as S&S, and Bailey testified that these citations should have put the operator on notice that greater efforts were needed to clean and maintain the No. 1 belts. Tr. 41.

Bailey cited § 75.1725 in Citation No. 8114320 for the seven frozen rollers, but he could have also cited § 75.400 for the coal. Tr. 119-121. He consolidated these violations so as not to “double dip” or duplicate citations. Tr. 120-121. Bailey testified that he mentioned the 31 rollers because they contributed to negligence and S&S. Tr. 121. The operator was not cited for coal accumulations, however the presence of coal factors into whether the belt is safe because coal provides the fuel in a possible fire. Tr. 121, 158-159. Bailey testified on cross-examination that the seven frozen rollers, plus the additional rollers turning in the coal, plus the coal accumulation all fit under the condition that he cited. Tr. 121-122.

d. Order No. 8114323

Bailey issued Citation No. 8114323 for a violation of Section 75.1731(a) on the No. 2 belt. Tr. 42. The No. 2 belt was not running at the time that the citation was written, because the No. 1 belt had been shut off for the previous citation, which resulted in all the belts being turned off. Tr. 42. Bailey described seeing engineering ribbon hanging from the roof bolts, as well as paint on the structure where the rollers were located. Tr. 42-43. He testified that there was visible damage to five bottom rollers that were marked by paint and ribbon, but could not recall if it was flattening of the roller or a bearing issue that had “bored the roller out.” Tr. 43. He also observed accumulations, which were causing the rollers not to turn, and instead act as scrapers scraping coal off the bottom of the No. 2 belt. Tr. 43.

On cross-examination, Bailey testified that frozen rollers can become flat in a matter of hours or a matter of weeks, depending on the pressure on the belt. Tr. 110. He was certain that the rollers on the No. 1 belt were not flat, however he could not recall if any rollers on the No. 2 belt were flat. Tr. 110.

In order to abate the order, the operator replaced five rollers. Tr. 44. Bailey testified that the damaged rollers were not touching the coal accumulations beneath them, but they still posed a hazard. Tr. 44. Specifically, Bailey testified that they posed a fire hazard because of the metal on metal grinding. Tr. 44. Bailey explained that a roller has three parts: a shaft, a bearing, and a roller turning about the shaft. Tr. 44. If there is damage, and metal rubs against metal, then there is a heating event, which can lead to a spark or ember falling into the coal below. Tr. 44. In this instance, the coal below the rollers was dry. Tr. 44.

Bailey testified that damaged rollers increase the likelihood that coal will accumulate around the rollers. Tr. 44. He described how a bottom roller can knock off coal. Tr. 45. The coal is carried on the top surface of the belt and, as the belt travels over the discharge roller, the top surface of the belt becomes the bottom of the belt. Tr. 45. Small particles of coal become stuck to the belt, which the scraper on the discharge roller usually eliminates. Tr. 45. However, some coal returns and, over time, turning and stuck rollers will knock the coal off as it is going back to the tail of the belt. Tr. 45. Bailey testified that after the passage of enough time and enough coal, accumulations may result from this. Tr. 45.

The five damaged rollers were not consecutive, but rather spread throughout the belt. Tr. 46. Bailey saw the paint on the structure, just above the roller, which is a typical mining practice to identify a damaged roller. Tr. 45-46. Bailey did not see any paint on the rollers, only on the frame, and did not know how long the paint had been on the frame. Tr. 147-148. Bailey admitted on cross-examination that it was possible that the paint was being used to call attention to rollers that were making noise. Tr. 150-151. He also saw flags tied to the roof bolts adjacent to the damaged rollers, which is also a typical mining practice to identity a damaged roller. Tr. 45-46. Mines sometimes also hang ribbons from the roof to signify damaged roof bolts, bad roof, or bad rib. Tr. 46-47. However, Bailey testified that he saw none of these reasons for why ribbon was hanging. Tr. 47. Bailey believed the ribbon to also identify the damaged rollers because it was the only place he saw ribbon on the track. Tr. 148-149. Furthermore, there was one ribbon hanging from the roof bolt in each of these five locations. Tr. 149. When Bailey issued this Order to Campbell, Campbell did not dispute Bailey’s conclusion that the ribbon and paint were because of the rollers. Tr. 47. Similarly, no one else at the mine provided an alternate reason as to why the structure was painted or why the ribbon was hung. Tr. 47-48.

Upon reviewing the Program Policy Manual for Section 75.1725, Bailey agreed that it gives the inspector some discretion in whether to cite Section 1725 as an unsafe operating condition. Tr. 115. If only one roller were frozen or damaged, and it was not producing heat and there was no combustible material or fuel, Bailey stated that it would likely not affect the safe operating conditions. Tr. 115.

Bailey designated the violation as S&S because a bad roller will result in metal on metal grinding. Tr. 48. Once this occurs, the roller can get hot enough to start a fire or completely fail and fall apart. Tr. 48. This made it a reasonably likely ignition source. Tr. 48. Additionally, the rollers had deposited coal on the ground, which could serve as fuel if an ignition occurred. Tr. 48. Bailey testified that a fire or ignition was reasonably likely to cause serious injury to miners because there are miners traveling in and out all day. Tr. 48. If a fire rages out of control, it can damage the ventilation bradishes. Tr. 48. Bailey cited 12 persons affected for the same reason that he cited 12 persons affected in Citation No. 8114320. Tr. 49. He believed that these 12 miners would suffer smoke inhalation and burns. Tr. 49. Bailey designated the violation as resulting from the operator’s high negligence and unwarrantable failure to comply with the standard, and he was not presented with any mitigating circumstances. Tr. 49.

The standard for citing high negligence is whether a violation is obvious or extensive with no mitigating circumstances. Tr. 161. For high negligence, the operator either must know or should have known about the condition. Tr. 161. Here Bailey believed that the operator either knew or should have known because the rollers were identified with flagging or tape. Tr. 162.

Bailey testified that the violation had been made obvious by someone’s flagging and painting it. Tr. 49-50. Bailey estimated that the condition existed for at least one day before he issued the citation. Tr. 50-51. He based this estimation on the paint not being glossy, which indicates that it was not new, and having dirt on it, which indicates that the mantrip has driven by it several times. Tr. 51. Bailey admitted that it was possible that the frame was painted months before and the rollers had been changed since that time, but stated that it would be an unlikely coincidence for there to be paint at the only five rollers that were damaged. Tr. 148. Prior to issuing the citation, Bailey believes that at least the following employees had passed the violation: the evening shift foreman entering and exiting, the owl shift foreman entering and exiting, and the day shift foreman entering. Tr. 50.

e. Citation No. 8114321

After citing the No. 1 belt, Bailey went to the section for an imminent danger run. Tr. 52. As he went by the No. 3 belt head, Bailey flashed his light from the mantrip and noticed a large pile of coal. Tr. 52. Bailey remarked to the person with whom he was traveling, “That’s a violation. Let’s go down to the section to do an imminent danger run because the belts are down, and then come back and evaluate it after.” Tr. 22-23, 52. Bailey recorded the violation at that time, but he didn’t evaluate it by taking any measurements. Tr. 52-53.

When Bailey examined the No. 3 belt head, he found a large pile of coal, relative to the low mine, within the drive and extending the 36-foot length of the guarding. T. 54. Bailey measured the coal at between 10 to 28 inches deep, with a 4-inch margin of error, and testified that it was touching the belt. Tr. 54-55. The accumulations were inside the guarding, and Bailey measured them from outside the guarding using a tape measure. Tr. 55.

Bailey testified on cross-examination that the belt was approximately 42 inches wide and the structure was roughly the width of the belt. Tr. 137. The 28 inches of coal that Bailey saw inside the metal guards was in a pile, so there were lower areas as well. Tr. 137-138. A portion of the coal was touching the belt, but Bailey could not remember if it was the 28-inch peak or another section of the pile. Tr. 138.

Bailey testified that accumulations in the belt entry that can cause a frictional heating hazard constitute violations of Section 75.1731(c). Tr. 56. Here the accumulations were a frictional heating hazard because they reached the bottom belt. Tr. 56. Had the belt been running at the time, rather than being down because the No. 1 belt was down, the belt would have been running in the coal. Tr. 56. The belt is an abrasive surface, so that if it runs in coal it constitutes a frictional heating hazard. Tr. 56. The heat dries out the coal and could ignite the coal. Tr. 56-57.

The mine is required to have flame resistant belts, which means that the belt is self-extinguishing and won’t burn unless a direct flame is applied. Tr. 132. Bailey testified that a flame resistant belt causes no less friction than a regular belt, and can still ignite the coal beneath it. Tr. 57. Bailey described the coal here as similar in moisture content to the coal in the No. 1 belt, with the coal on the floor being wet, but dryer as it neared the belt. Tr. 57. The top layer of coal was dry. Tr. 57.

On cross-examination, Bailey could not cite to any memoranda, program policy letters, instructional letters, or other source that showed that a belt rubbing against coal can develop frictional temperatures sufficient to ignite coal. Tr. 132. As an inspector, Bailey has seen solid metal belt bottoms in tail pieces, with the belt running over the solid metal bottom each minute that the belt is running. Tr. 133. However, he did not know of any fires caused by a flame resistant belt running over metal bottoms in tail pieces. Tr. 133. In some coal mines there are mobile bridges where the belt runs over solid metal bottom, which often causes friction. Tr. 133. However, in the case of a bridge, the load is uniformly distributed. Tr. 133-134.

The operator had made no effort to clean the accumulation by the time that the condition was cited. Tr. 58. Bailey marked this violation as S&S, explaining that the specific safety hazard contributed to was a frictional heating event that would cause the fuel and coal to ignite and lead to a fire on the belt. Tr. 58. Furthermore, as more coal accumulates, there is a larger area for friction, which raises the likelihood of a frictional heating hazard. Tr. 85. Such an event would be reasonably likely to cause serious injury to miners because the belt was on an alternative escapeway. Tr. 58-59. There are miners traveling in and out daily, and they could be exposed to smoke inhalation and burns. Tr. 59. Bailey also explained that as coal starts rubbing the bottom of the belt and lifiting the bottom belt, it can un-train the belt, which leads it to spill more coal. Tr. 85. Bailey cited 12 miners as affected for the same reason that he did so in citations 8114320 and 8114323. Tr. 59.

The belt could have been running for approximately 45 minutes by the time Bailey cited it, but he does not believe that the conditions were created during that short time period. Tr. 59. He reached this conclusion because the conditions were extensive, and there was little, if any, coal run by that time in the morning. Tr. 59-60. Bailey testified that the conditions likely existed for at least two days, and probably longer. Tr. 60. Bailey marked it as moderate, rather than high, negligence because Campbell explained to him that the small holes in the guarding can make accumulations difficult to see. Tr. 60-61. When Bailey cited the No. 3 belt there was no one cleaning or working on it. Tr. 61. The violation was abated by removing the coal. Tr. 61.

f. Citation No. 8114322

After traveling the section and conducting the imminent danger run, Bailey traveled back to evaluate the violation on the No. 3 belt drive. Tr. 61-62. He exited the mantrip looking outby the belts on his left and, as he tried to travel around the mantrip, he began to struggle in the mud. Tr. 62. Bailey determined the mud he encountered was a violation of 380(b)(1). Tr. 62.

Bailey described the belt as being on his left when facing outby. Tr. 62. The track was in the center of the entry, and to the right of the outside rail was the lifeline for the alternative escapeway. Tr. 62. MSHA requires a primary and secondary escapeway, and the track haulageway is one of the escapeways in this mine. Tr. 160. The mine must maintain the entries so that miners can walk the escapeway. Tr. 160-161. The rib is approximately four to six feet from the rail. Tr. 62. The lifeline is attached to the roof bolts that are directly above the outside track rail. Tr. 62-63.

Bailey described encountering thick solid mud as he exited the mantrip. Tr. 63. There was a pump nearby, but the mud was too thick for the pump to help. Tr. 63. Bailey measured the mud at 13 inches by measuring the depth of his deepest footprint. Tr. 63-64. The mud extended from rib to belt, but the thicker mud was to the right of the rail between the rib, as one looked outby. Tr. 64. The mud extended the length of two cross-cuts, which measures approximately 130-150 feet long. Tr. 64. Bailey testified on cross-examination that though the mud in the area of the No. 3 drive was wet, there was no water running across the track. Tr. 138-139. The mud was up to the ball of the rail. Tr. 139.

Bailey testified that the mud appeared solid, and it was impossible to determine where it was shallow and where it was deep. Tr. 64. There were likely undulations and holes beneath the mud, but one could not determine their locations through the mud. Tr. 65. The mine is a low mine, approximately 48 inches high, so one must walk bent over. Tr. 65. Walking in this manner, Bailey fell into the mud several times. Tr. 65.

Bailey designated the violation S&S because if an event occurred and miners were to use this escapeway, there would be a hazard of tripping and falling down onto the rail or the ground. Tr. 65-66. In the event of an emergency, if the miners could exit using the mantrip, then the mud would have no effect on their ability to escape. Tr. 139. However, there is a possibility that the mantrip would be unavailable due to battery trouble or other issues. Tr. 139-140. Exiting by foot could result in one spraining or breaking a leg, knee, back, or wrist, as well as increased exposure to smoke. Tr. 66-76. Furthermore, it would be difficult to carry an injured miner on a stretcher in this escapeway. Tr. 66. Since the lifeline was located above the mud, it would be impossible for a miner to use the lifeline and avoid the mud. Tr. 67. Under normal circumstances, miners would be exposed to the mud during fire suppression checks, which cannot be performed from the mantrip. Tr. 66, 68, 141.

Bailey testified that under normal continued mining operations the mud would persist for the remainder of the day and evening shifts. Tr. 69. He arrived at this conclusion because there was no effort being made to remove the mud. Tr. 69. Furthermore, it was not recorded in any books that this mud constituted a hazard, which indicates that it was not a priority to abate. Tr. 69. Bailey estimated that the condition existed for at least one week prior to the citation. Tr. 69. Bailey assessed the violation at moderate negligence because the mud was not apparent from the mantrip, but rather required one to step off into it. Tr. 70. No one provided any additional mitigating circumstances. Tr. 70. Bailey cited the violation as affecting one miner, because even if there were 12 people evacuating, it would be likely that only one person would fall and be hurt. Tr. 70. The mud was abated by adding water in order to liquefy it and allow the pump to remove it. Tr. 70-71. Miners also shoveled out some of the mud, which was difficult because there is only 12 inches between the belt and the roof. Tr. 142.

g. Citation No. 8114324

Bailey found five localized piles of coal underneath the damaged rollers at the No. 2 belt, as well as accumulation within the guarding at the drive. Tr. 71. Bailey examined the coal and determined that the coal under the rollers was dry. Tr. 71. He used his tape measure to determine the height of the piles and found that the smallest pile was four inches deep and the largest was 15 inches deep. Tr. 71.

Bailey determined that this violation was S&S for the same reason stated above with regard to the fire hazards of damaged rollers. Tr. 72. He believed that the belt in this condition would continue to be used in normal mining operations, which would lead to further accumulations. Tr. 72. Bailey testified that he believed a fire ignition would be reasonably likely to cause serious injuries. Tr. 72-73. If such a fire were to occur, it would affect the miners that travel the track daily and those that use it as an alternative escapeway. Tr. 73. This could result in smoke inhalation and burns. Tr. 73. Bailey estimated that this condition existed for one or more days because the accumulations were caused by the rollers, and the rollers had been there for some time. Tr. 73. Similar to the citations above, Bailey did not think that these accumulations could have been caused during the 45 minutes that the belt was running that morning. Tr. 73. Bailey assessed the violation at moderate negligence because the accumulations were not as large, obvious, or extensive as what he discovered at the No. 1 and No. 3 belts. Tr. 74. He cited 12 miners affected for the same reason listed in the above citation. Tr. 74. No one from mine management provided any other mitigating circumstances. Tr. 74. The violation was abated by the operator removing the coal from under the belt. Tr. 74.

h. Order No. 8114325

Bailey reviewed the mine’s pre-shift and on-shift examination records before proceeding underground on September 8, and found no hazards or violations listed for the 1, 2, or 3 belts. Tr. 75. Bailey reviewed the two previous weeks of examination records and found that there had been no hazards or violations recorded on any of the belts in the two weeks prior to his inspection. Tr. 75-76.

Under MSHA regulations, pre-shift examinations are required before miners work or travel in an area that could contribute to a hazard. Tr. 76. It must be performed within 3 hours prior to the shift on which work or travel is scheduled. Tr. 76-77. In this instance, the pre-shift examination for the oncoming day shift would have to be performed between 5:00 and 8:00 am. Tr. 77. The pre-shift examiner must record hazards and locations of hazards, as well as corrective actions taken. Tr. 77. Such recordable hazards include bad roof, bad rib, accumulations on a belt, broken rails on a track, or anything else that could potentially hurt a miner. Tr. 77. Here, the operator was required to do a pre-shift examination of the belts because they were in the entry that miners were working or traveling. Tr. 77. Furthermore, the belts were in the same entry as the track haulage way. Tr. 77. Bailey stated on cross-examination that he did not know if any miners were scheduled to work on the belts. Tr. 102-103.

Bailey testified that he believes that the operator had performed inadequate pre-shift examinations previous to the day, owl, and evening shifts at the 1, 2, 3, and 4 belts. Tr. 78. The cited conditions existed at the time of the pre-shift examinations, and since they were not recorded, the examinations were inadequate. Tr. 78.

Most mines keep a pre-shift examination book, an outby or belt book for the belts, and a section book for the haulageways and roadways. Tr. 78-79. Sewell Mine B had only one book, where they kept their pre-shift and on-shift examinations. Tr. 79. They did not have a separate book for their belt examinations, but rather wrote comments about the belt below the upper section of the record in the pre-shift and on-shift book. Tr. 79. Bailey was only aware of some smaller mines that keep records in this fashion. Tr. 79-80.

Bailey reviewed the pre-shift examination for the September 8 day shift, and it stated that “1, 2, 3, and 4 belts okay … at the time of the exam.”[3] Tr. 80; RX-1, p. 2. When the citations were issued Bailey believed that the operator was regularly conducting pre-shift examinations of the belts. Tr. 81. Bailey held this belief because the belts are mentioned in the reports. Tr. 81. Furthermore, Bailey’s experience has taught him that many small mines include examinations of the belt in the pre-shift examination so that a later supplemental examination would not be needed. Tr. 81. A supplemental examination would be required if there was no pre-shift examination performed on the belt and something occurred during the shift where someone had to work on the belt. Tr. 82. In such a situation, a supplementary examination would have to be performed to show that there were no hazards prior to sending someone to work on the belt. Tr. 82.

Bailey testified on cross-examination that the evening shift examiner would have to perform a pre-shift examination for the entry because people would be traveling up the track. Tr. 106. He further stated that for the day shift there would have to be a pre-shift examination because people work or travel in the entry, even if no one would be specifically working on the belt. Tr. 106-107. In such a pre-shift examination, the examiner would have to look for any hazard in the entry, including roof rib, broken rail, accumulations along the ribs, problems with the high voltage wire running in the entry, track blockages, and other possible hazards. Tr. 107.

On cross-examination, Bailey testified that the belt was not running on the owl shift of September 8, 2010, and agreed that if no one was scheduled to work on the belts, then there would be no requirement for an on-shift examination. Tr. 103-104. Bailey said that in this instance, miners traveled on the mantrip in the belt entry, which would require a pre-shift examination. Tr. 104-105.

Bailey designated this order as S&S because the violation contributed to the specific health or safety hazard of fire in the belt entry from a frictional heating event. Tr. 82. He also marked it as high negligence and unwarrantable failure because the conditions were “absolutely obvious and extensive.” Tr. 82. Bailey testified that the violations were so obvious that he observed the violations at the No. 1 belt when he was not examining it. Tr. 83. He explained that the examiners are agents of the operator, and they either knew or should have known that the conditions existed. Tr. 82-83. Bailey testified that his rationale for marking 12 people affected was the same as for the citations above. Tr. 83-84. The violation was abated by re-training all examiners. Tr. 84.

On cross-examination, Bailey testified that he found unwarrantable failure because it was obvious and extensive, as well as because he could place an agent in the entry making an examination. Tr. 108.

In determining that the violation was the result of unwarrantable failure, Bailey wrote in the Order, “The operator has not recorded one hazard or violation on any of the belts for at least two weeks going back to 08/2010.” Tr. 88; GX-7. However, after reviewing the reports from the two weeks previous to the citation, Bailey testified that hazards on the No. 4 belt (which he did not travel to) were reported immediately, and hazards on the all the belts were reported 11 days prior to the inspection. Tr. 88, 94. In the pre-shift report for September 7, 2010, it reports that the No. 4 drive “needs cleaned.” Tr. 90; RX-1, p. 6. Bailey testified that this was proper reporting of a hazard on a pre-shift report. Tr. 90. In the on-shift report, it lists as a hazard that the No. 4 drive “needs cleaned,” and lists as an action taken, “Cleaned.” Tr. 91; RX-1, p.7. In the September 6, 2010 report, it lists as a hazard on the belt that the “Section tail roller needs cleaned.” Tr. 91; RX-1, p. 9, 10. In the on-shift report for the owl shift on September 7, 2010, it states that the “Section tail roller needs cleaned.” Tr. 92; RX-1, p.3. This refers to coal accumulation, and it is marked as “corrected” on the form. Tr. 92; RX-1, p.3. In the pre-shift report for September 3, 2010, it states that the “Tail roller needs cleaned,” as the hazard, and “reported” as the action taken. Tr. 92; RX-1, p.12. In the August 28, 2010 pre-shift report, it states that “All tail pieces needs cleaned.” Tr. 93; RX-1, p. 42. Then, on the August 28, 2010 follow-up inspection it states that “1, 2, 3, and 4 belts cleaned on the drives.” Tr. 93; RX-1, p.43. Bailey testified that if he had noticed these hazardous conditions in the book, it would not have altered his designation of negligence because the only hazard related to the 1, 2, or 3 belts was 11 days prior to his citation. Tr. 94-95. Bailey stated that the way the entries are written lead him to believe that these are not hazards that are being reported. Tr. 100. Bailey stated that most of these were on-shift examinations, rather than pre-shift examinations. Tr. 155-156.

What is recorded in an on-shift examination for the belts does not factor into pre-shift examination violations. Tr. 155. Bailey admitted to missing the one pre-shift examination record 11 days prior to the record, but stated that the other pre-shift examinations in the two weeks prior to the citation were inadequate. Tr. 155. The on-shift and pre-shift exams are separate exams, and proof that the operator worked on the belts in the on-shift exam does not indicate that adequate pre-shift exams were being performed. Tr. 155-156.

On cross-examination Bailey agreed that the reports indicated that in the several weeks prior to the citation the belt structure was changed, however he could not speak to the reason or extent of these repairs. Tr. 95-98. Similarly, in the several weeks prior to the citation, the reports indicate that there were six occasions where the belts were spot cleaned. Tr. 98-99. However, Bailey testified that these appeared to be work orders rather than hazard reports, because there was a lack of specificity to them. Tr. 100-101, 156.

With regard to mitigating circumstances, Bailey testified on cross-examination that it is the inspector’s responsibility to ask and the operator’s responsibility to tell. Tr. 101-102. Bailey usually tells the operator, “I feel this is high negligence because you knew or should have known,” and then gives the operator a chance to respond with mitigating circumstances by asking, “Are there any mitigating circumstances?” Tr. 102.

2) Testimony of James Anthony Graham:

a. Background and Experience

At the time of hearing, James Anthony Graham had worked for Raw Coal for two years and three months. Tr. 165. He had 19 years of mine experience. Tr. 166. He started working for Consolidation Coal Company, as a red cap laborer, and worked his way up to section foreman. He then went to Cleveland Cliffs before coming to Raw Coal. He has West Virginia Assistant Mine Foreman/Foreman, EMT Basic, and State of West Virginia certifications. Tr. 166. He is currently the evening shift section foreman outby, and at the time of the citation was the foreman supervisor for third shift. Tr. 165. As part of the third, or owl, shift, Graham supervised the prepping of the mine for day shift production. Tr. 165. The third shift’s main duties included cleaning, dusting, ventilating, building stoppings, cleaning up excess coal spillage in the roadways, rock dusting, and putting up ventilation fixtures. Tr. 167. Graham’s immediate supervisor is Fred Ciampanella. Tr. 191.

b. The Third Shift

The owl shift had belt work, such as belt moves and maintenance, at least once per week. Tr. 165-166. When they were assigned to work on the belt, they made slices on the belt and advanced and retreated the belt as necessary. Tr. 167. According to Graham’s directives, no one was scheduled to work on the belts on the day shift of September 8, 2010. Tr. 167-168. Graham testified that they were not required to conduct a pre-shift examination of the belts because no one was going to be assigned to work on the belts that day. Tr. 168. They also did not perform an on-shift examination because there was no coal production. Tr. 168-169. Alfred Ciampanella, the mine foreman, was responsible for assigning pre-shift and on-shift examinations. Tr. 168.

Graham was not present at the mine when Bailey conducted his September 8 inspection. Tr. 182-183. Graham conducted a pre-shift examination, but stated that he was looking at the track rather than the belts.[4] Tr. 183. During his day shift examination, Graham looked for rocks on the belt, as well as significant rips or tears. Tr. 184. Graham testified that his remarks in the examination book were only indicating that the belt should have been able to be turned on and started. Tr. 186.

Graham performs pre-shift examinations for the oncoming day-shift only if he is on notice that there will be workers on the belt in that shift. Tr. 186-187. Miners must travel each day in the track haulageway, which requires them to travel past the belts. Tr. 187.

During his September 8 pre-shift examination, Graham was not looking for accumulations on the belt, frozen rollers, or for rollers turning in accumulations. Tr. 191-192. Graham could not see frozen rollers during his pre-shift examination even if he was looking at them because the belt was not running. Tr. 203. However, he would have been able to see accumulations if he had looked for them. Tr. 203. Graham said he did not see the accumulations that Bailey viewed at the No. 1 belt because the belt is the last thing on his mind. Tr. 204.

Even if the belt is not running, Graham stated that he could see if coal was surrounding a roller. Tr. 192. Graham stated that he looks for things on the belt even though he has no legal obligation to do so, because otherwise Ciampanella would make his life difficult. Tr. 200. He stated that for safety reasons, he records additional things that he sees along the belt that might affect miners. Tr. 201. Graham testified that if he had seen a large accumulation that “would have been large enough to stick out like a sore thumb” then he would have recorded it as an accumulation that needed immediate attention. Tr. 192-193. He testified that he would not record rollers that were flagged or painted. Tr. 193. Graham was not looking for problems with the belt, other than major ones. Tr. 194. He stated that he did a visual ride-by and everything looked intact. Tr. 195.

c. Citation No. 8114320

Graham performed a pre-shift examination of the track entry because miners use the area for travel. Tr. 169. When Graham traveled the track entry out, he did not observe any accumulations at the No. 1 belt. Tr. 169. He testified that the No. 1 belt is always wet and muddy, because water is used to help control the coal dust and water is along that belt continuously. Tr. 169-170. When Graham performed his pre-shift examinations, the belt was not running and he could not determine if there were any frozen rollers or rollers turning in coal. Tr. 170.

Graham testified that there was no potential hazard from the belts turning in mud. Tr. 170. He also stated that it would not be possible for 12 miners to suffer lost time injuries from the condition cited, “unless they were like a moth drawn to the flame.” Tr. 171. He explained that the way air moves on the belt would make it so any smoke, dust, or residue would be vented outside. Tr. 171. The miners would be inby that area, and would have been notified and exited the mine down the intake escapeway which is isolated with fresh air. Tr. 171. Furthermore, the mine conducts escapeway drills when it does fire drills. Tr. 171-172.

On cross-examination, Graham testified that it is possible to see an accumulation after passing through the double doors. Tr. 180. One could see an excessive accumulation at the No. 1, 2, or 3 belts that had pushed itself out along the track from the man-bus. Tr. 181. If the accumulation were not so excessive, one would have to exit the man-bus and do a visual inspection. Tr. 181. Furthermore, while riding on the man-bus, one can clearly see the belts and any ribbon hanging from the roof. Tr. 181.

d. Citation No. 8114321

The accumulations cited in Citation No. 8114321 were located underneath the No. 3 belt head. Tr. 172. Graham testified that the drive roller is approximately 14-16 inches off the ground. Tr. 172-173. The air lock is approximately six feet high. Tr. 173. The belt conveyer is approximately 4-6 feet off the ground. Tr. 173. The No. 3 belt head has an expanded metal guard, which has a half-inch hole. Tr. 173. While riding in an area where the belt is only 40 inches high, one cannot see underneath the belt. Tr. 198. Graham stated that for these reasons it is difficult to accurately determine the amount of accumulation in the metal guard without removing the guard. Tr. 173.

The belt at the Sewell B Mine is flame resistant, which means that it only burns if something burning is in contact with it. Tr. 174. The belt rubs along solid steel tail pieces with flat steel in them for approximately 8-10 feet, which creates friction. Tr. 174. However, Graham said that the friction would only cause the belt to get warm to the touch. Tr. 174. He testified that if a smoke or fire condition were to occur, the smoke would exit towards the outside because of the air flow in the mine. Tr. 174.

e. Citation No. 8114322

When Graham conducted his pre-shift examination on the morning of September 8, 2010, he determined that the conditions at the No. 3 belt drive were as normal as any other shift. Tr. 175. He testified that there is always mud at the belt head because of the water used on the belts. Tr. 175. The lifeline was over the solid track and one would have to deviate from the lifeline to get into the mud. Tr. 175. If there was an emergency event, the miners would likely go on the track-mounted battery powered man-bus and travel the secondary escapeway to the surface. Tr. 175-176. The mud would not hinder escape using the man-bus, which Graham described as “very reliable.” Tr. 176-177. The man-buses also have voltage indicators on them, which helps monitor the battery charge. Tr. 177. Graham testified that the height of the area—a little over five feet—made it easy for a person to walk with a stretcher. Tr. 176.

f. Order No. 8114323

When Graham conducted his pre-shift examination on the morning of September 8, 2010, he determined that the conditions at the No.2 belt entry were normal. Tr. 177. The belt was not running. Tr. 177. Graham saw the paint on the structure, which he testified had been present for as long as he’s been at the mine. Tr. 177-178. With regards to ribbons hanging from roof bolts, Graham stated that they have no significance to him unless he hung them. Tr. 178. Graham hangs ribbons for a variety of reasons, including using them to mark areas he wants to revisit, and said there is no specific reason for hanging a ribbon. Tr. 178. Furthermore, he did not see the ribbons hanging during his September 8 examination. Tr. 178. Graham testified that his negligence should not have been determined to be high because he did what was required by law. Tr. 179. He testified that the only thing he could have done additionally would have been to fire boss that belt, and he had no instructions to do so. Tr. 179.

During a typical pre-shift examination, Graham examines the roof, rack, clearance, and anything that might be in the track that might pose a hazard to a bus. Tr. 179. He looks for anything that would be obvious, such as broken rails, broken bridles, tracks that are not blocked properly, bad top, and hanging cable. Tr. 179. He described certain conditions as common, including broken pieces of the belt structure, rollers that are out of the hanger, rock on the belt, and the ribs having rolled and shoved the belt towards the track. Tr. 179. Graham agreed that a damaged roller is a violation that should be recorded during a pre-shift examination of the belt. Tr. 189. Similarly a roller turning in loose dry coal is a hazard that should be recorded during a pre-shift examination of a belt. Tr. 189. Graham stated that if it were turning in wet coal, then it would not be a violation. Tr. 190.

3) Testimony of Alfred Ciampanella:

a. Background and Experience

Alfred Ciampanella has worked as the mine foreman at Raw Coal since 2009. Tr. 206. He has 40 years of mining experience, working for United States Steel, A.T. Massey, Hughes Enterprise, Base Star Mining, Raw Coal Mining, and a few smaller enterprises. Tr. 206. Ciampanella has the following certifications: West Virginia mine foreman, electrician, dust, noise, and shop foreman; MSHA instructor; and several Joy certifications for equipment repair. Tr. 207. He has been a certified foreman for 37 years and a certified electrician for 38 years. Tr. 207. In addition to working as mine foreman at Raw Coal, he has also worked as the face boss. Tr. 207.

b. The Sewell Mine B

The mine works two production shifts beginning at 8:00 am and 4:00 pm, and one down shift beginning at midnight. Tr. 207-208. The mine had no designated belt workers in September 2010. Tr. 208.

Ciampanella described the Sewell mines as damp mines. Tr. 211. Additionally, millions of gallons of water are added each day in order to saturate the belts and keep the respirable dust down and to help with heat problems. Tr. 211. This results in wet and muddy conditions in the mine. Tr. 211.

There were 12 production workers on the day shift in September 2010. Tr. 208. Ciampanella testified that the mine had purchased a new belt system, with the No. 1 belt having been purchased in 2009, so they did not feel it was necessary to have an examiner or maintenance people on the belt. Tr. 208, 253-254. He stated that pre-shift examinations of the belt were only necessary when work was regularly scheduled to be done on the belt. Tr. 208-209. On-shift examinations are required on the belt daily during production shifts. Tr. 209.

The mine did not employ any belt examiners or belt shovelers in any of the three shifts. Tr. 228. There were also no regular maintenance or clean up program for the belts. Tr. 228. Ciampanella was employed at the mine when citations were issued in 2009 for accumulations. Tr. 229; GX-2. Following these citations there was no formal maintenance program change. Tr. 229-230. The mine operates without a belt man by relying on the foreman to see problems and dispatch people during breakdowns and the hoot owl shift. Tr. 230. If something on a belt needed attention, a miner would have to be pulled off of the section to go to the belt to make repairs or the motor crew would call Campbell to do a supplementary exam. Tr. 231.

Ciampanella was one of the two section foremen on the September 8 day shift. Tr. 236-237. However there were four certified foremen on shift, including Randy Campbell, Ciampanella, Joey Proffitt, and Dennis Worthington. Tr. 237. Because the mine operated on a day shift without a belt man, it relied on one of the foremen to see any problems with the belt, recording them, and correcting them. Tr. 237.

The on-shift examination occurs any time after production is started. Tr. 233. Sometimes the on-shift exam for the day shift is performed at the same time as the pre-shift exam for the oncoming evening shift. Tr. 233. At the time of the citations, Ciampanella usually performed on-shift examinations in the latter part of the day so that it could be included in his pre-shift. Tr. 234. He estimated that he usually performed examinations between 1:00 pm and 4:00 pm. Tr. 234. A motor crew travels up and down beside the belts between 8:00 am and 1:00 pm. Tr. 234. Therefore if there was a hazard on the belt, the motor crew would be exposed to it as they traveled back and forth. Tr. 235.

During the September 8 inspection no top rollers were found to be stuck. Tr. 214. Ciampanella guessed that the reason for this is that the top rollers distribute weight better and have superior bearings to the bottom rollers. Tr. 214-215.

Mines typically use a rope frame structure for the belt structure, however here the entire mine uses a rigid metal structure. Tr. 210-211. Ciampanella described the metal structure as being superior and “trouble-free.” Tr. 211.

Ciampanella estimated that there were approximately 4,000 rollers at the mine on all the belts. Tr. 214. If there is a bad roller, usually only the roller needs to be changed. Tr. 212. However, if there is a fault in the system and the belt is rubbing the stand, the whole structure may have to be changed. Tr. 212. The roller sits in a bracket, and in order to change it one pops it out and folds a new one in. Tr. 212-213. If the roller is stuck in spillage, then it may only need to be shoveled or “pecked.” Tr. 213. If the roller is stuck due to water or other reasons, sometimes one can simply touch it and it begins moving again. Tr. 213. Ciampanella defined a damaged roller as having a variety of features including gutting, without bearing, broken hangers, split or broken diameters, and containing holes. Tr. 213.

Ciampanella was already underground preparing to mine coal when Bailey began his inspection on September 8. Tr. 237, 268. He traveled to the section on the man-bus in the track haulageway. Tr. 237-238. Ciampanella did not see any of the belt conditions that Bailey cited, however he does not make it a habit of examining the belt on the way to the section. Tr. 238. Ciampanella could not remember if the belt was running that day when he traveled past it, but testified that he is generally the one who gets it started. Tr. 239. He testified that it would have been possible to see accumulations and hanging ribbon from the man-bus, if he was looking for them. Tr. 239-240.

Ciampanella maintained that pre-shift examinations were only required where miners are scheduled to work, not travel. Tr. 241. He also testified that pre-shift examinations for stuck rollers are not required if the belts are not running. Tr. 243-244. Ciampanella testified that on September 7, 2010, he conducted a full pre-shift exam because the belts were running. Tr. 244-245; RX-1, p. 6. He personally examined the 1, 2, 3, and 4 belts for accumulations, as well as frozen or damaged rollers. Tr. 245. With regards to the belts, Ciampanella wrote in his pre-shift report “appears safe at time of exam.” Tr. 245; RX-1, p. 6. He testified that this meant that if he saw an accumulation at one of the belts he probably would have reported it. Tr. 246-247.

Ciampanella testified that the pre-shift examination for the oncoming day-shift on September 8 did not examine the belts. Tr. 247-248; RX-1, p. 2. The examination only looked at the track entry and obvious conditions on the belt. Tr. 248. The report was called out by Graham to Ciampanella, with Ciampanella writing it down. Tr. 248. The report states, “1 and 2 and 3 and 4 belts along none observed at time of exams,” which Ciampanella explained meant that the belts were safe. Tr. 248-249; RX-1, p. 2.

Ciampanella testified that 10 of the 12 days prior to the citation work was done on the belts during the day shifts. Tr. 250-251. He testified that when the records state “change structure” they are referring to changing rollers. Tr. 251. Ciampanella denied that the records indicated that there was at least one miner regularly working on the belts during the day shift, because he may have been the one to change the rollers. Tr. 252. Since he is a certified miner, he testified that he can perform the pre-shift examination as he worked. Tr. 253. However, he admitted that at least some of the work must have been performed by a non-certified miner. Tr. 253.

c. Citation No. 8114320

After Citation No. 8114320 was issued, Ciampanella went down with men to clean the condition. Tr. 215-216. Ciampanella believes that water, mud, and spillage were causing the cited rollers to stick. Tr. 216. He testified that the belts are maintained by utilizing people to work on them during breakdown procedures. Tr. 216-217. However, if they start noticing accumulations, then they will attend to them immediately. Tr. 217. Ciampanella testified that his deposition testimony that the mine often waited until the owl shift to change stuck rollers was incorrect.[5] Tr. 257. Ciampanella does not consider mud building up on the belt a hazard. Tr. 217.

Ciampanella testified that it took nine miners four hours to clean the accumulations at the No. 1 belt because the roof is low in that area. Tr. 217-218. He further explained that the shovel used holds approximately 35 pounds, and the miner has to navigate the weight over his head and onto the belt. Tr. 218. It took approximately 2-3 hours to clean the No. 1 belt. Tr. 258. The mine was under a D order and could not produce coal until the No. 1 belt was cleaned. Tr. 258. He testified that it was possible that heat from a frozen or stuck roller will dry out accumulations surrounding the roller. Tr. 258-259.

d. Citation No. 8114322

Ciampanella testified that he did not believe that the mud was where Bailey said it was because of the placement of the belt line and the sump pumps. Tr. 221. Ciampanella was not with Bailey when Citation No. 8114322 was issued. Tr. 268. He later observed the area from a man-bus. 268-269. He saw mud on each side of the track, but did not measure the mud, and admitted that it could have been 13 inches deep. Tr. 269.

e. Citation No. 8114323

Hazards in the mine are supposed to be reported to Ciampanella, the mine foreman. Tr. 224. Ciampanella testified that he did not think that anyone reported any roller to him, including the five that were cited. Tr. 224.

Ciampanella testified that he does not know who painted the belt frame or placed the ribbons on the roof.[6] Tr. 222. He testified that the use of ribbons was not a standard practice at the mine, however he stated in the deposition that it was mine policy to flag bad rollers. Tr. 222, 267-268. All the foremen and a few of the miner operators have access to paint, but no one has access to ribbon at the mine. Tr. 222-223, 266. He has no direct knowledge of anyone reporting the specific area where there was paint or ribbons. Tr. 223. However, if he saw paint or ribbon, Ciampanella said that he would stop and look at it. Tr. 224. If the belts were not running, he would get off the man-bus and try the roller by hand to see if it was stuck. Tr. 224.

f. Citation No. 8114324

Ciampanella described the No. 2 belt drive as the wettest belt drive, and said that the air goes straight to the surface. Tr. 225. When the belt comes away from the drive, it is approximately 3 feet off the ground. Tr. 225. For approximately 75-85 feet it elevates itself back to the bottom to where the bottom belt is the highest point out of the spillage. Tr. 225-226. He said that there were wet clusters of wet coal fines and mud underneath the roller, but it takes a long time for them to build up. Tr. 226. Furthermore, the mine occasionally cleans them up. Tr. 226.

g. Citation No. 8114325

Ciampanella designated Graham as the pre-shift examiner on the midnight shift. Tr. 226. Ciampanella instructed Graham to make a pre-shift examination of the mines, but did not tell him to examine the belts. Tr. 226-227. Ciampanella stated that if the belt is idle Graham does not have to concentrate on it. Tr. 227. There was no one scheduled to work on the belt at the beginning of the shift. Tr. 227.

Discussion and Analysis

h. Citation No. 8114320

Citation No. 8114320 reads as follows:

The No. 1 underground belt was not being maintained in safe operating condition. Wet, damp, and dry coal has accumulated on the belt for the entire length, 12 crosscuts, resulting in 31 rollers turning or being stuck in the coal. The coal ranged in depths from 4 to 16 inches. At least seven rollers were stuck and at least 6 were warm to the touch. The belt had been running for less than 45 minutes when the condition was observed. The operator recorded for the last week that no violations were observed on the belt. The operator engaged in aggravated conduct constituting more than ordinary negligence, in that this condition was obvious and extensive, and no action was being taken to correct the condition. This is an unwarrantable failure to comply with a mandatory standard. The operator removed the belt from service immediately. Standard 75.1725(a) was cited 1 time in two years at mine 4606265.

The citation was issued pursuant to section 104(d)(1) of the Act for a violation of 30 C.F.R. 75.1725(a). The gravity was assessed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited as Significant and Substantial with 12 persons affected, a high degree of negligence, and an unwarrantable failure.

The citation was terminated approximately five hours later after nine miners spent four hours cleaning the belt. All of the coal was removed from the belt and the rollers were freed, making the belt safe to operate.

The Secretary argues that the conditions described in Citation No. 8114320 violated 75.1725(a), which requires that machinery be maintained in safe condition or removed from service immediately. Inspector Bailey found seven stuck rollers and 24 rollers turning in dry coal accumulations, which presented a frictional heating hazard. He testified that Raw Coal was not operating the No. 1 belt in safe operating condition and that the belt had not been removed from service, thereby violating the two duties imposed by §75.1725(a).

The Secretary further argues that the conditions satisfied the four Mathies criteria for determining whether a violation is S&S: (1) the operator violated 75.1725(a), a mandatory safety standard, by operating the No. 1 belt with seven stuck rollers surrounded by coal accumulations and 24 bottom rollers turning in coal accumulations; (2) the violation contributed to the discrete safety hazard of fire and smoke in the track/belt entry resulting from frictional heating leading to an ignition of coal accumulations; (3) a fire or ignition would reasonably likely cause smoke inhalation or burns to miners working underground; and (4) that such inhalation or burns are reasonably serious in nature. The Secretary argues that the conditions were the result of high negligence and aggravated conduct and therefore support a finding of unwarrantable failure.

The Respondent argues that the frozen rollers were not a violation of the regulation because they were approximately 98-100 degrees, and auto ignition of the coal would not occur unless the coal was at 600-700 degrees. Furthermore, the Respondent argues that the rollers that were turning in coal were not a violation of Section 75.1725. In support of this position, the Respondent cites MSHA’s Policy Program Manual, which states that frozen or damaged idler rollers “could indicate” that the belt conveyor is not maintained in safe operating condition. The Respondent argues that if the piles of mud were a violation of any regulation, then they should have been cited under Section 75.400. However, in this instance, the inspector likely did not cite them under 75.400 because the coal was so wet so as to not constitute a hazard. The Respondent argues that the Secretary failed to sustain his burden of proving that Citation No. 8114320 was an S&S violation. Further, the Respondent contends that “a remote or speculative likelihood of the cited hazard contributing to an injury will not support a significant and substantial violation.” Resp. Post-Hearing Brief, 14.

The Respondent also argues that the Secretary failed to sustain her burden of proving that Citation No. 8114320 was caused by high negligence. The Respondent alleges that it conducted proper on-shift examinations for each shift that coal was mined, and that if a hazardous condition was observed it was corrected. Furthermore, pre-shift examinations were conducted on the track entry, while also looking for hazardous conditions on the belt conveyors. The Respondent argues that it had a good faith belief that it was not required to conduct pre-shift examinations during the midnight shift because the belt was not running. This, it argues should be a mitigating factor in assessing negligence. Furthermore, if the belts were not running, the examiner would be unable to determine if rollers were stuck. Furthermore, the Respondent argues that part of the basis for the inspector’s determination of high negligence was an incorrect belief that the Respondent failed to record violations in the previous week. It maintains that because the rollers were not worn flat, with only the bottom rollers stuck, one could see that the rollers had not been stuck for an extended period.

The Respondent further argues that the Secretary failed to sustain her burden of proving that Citation No. 8114320 was reasonably expected to cause lost work day injuries to 12 miners. There were 12 miners working underground, and the Respondent contends that it is unreasonable to expect all 12 miners to be injured even if the event were to occur. The Respondent argues that since the air in the belt entries was traveling away from the working sections, and escape from the mine was a short distance, most of the miners would have been able to escape without injury. Furthermore, the mine was equipped with directional life lines, additional SCSRs, a refuge chamber, and other emergency safety protections.

The Conditions Described in Citation No. 8114320 Violated 30 C.F.R. §75.1725(a)

Section 75.1725(a) of the regulations states:

(a) Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.

30 C.F.R. § 75.1725(a). The Commission has held that the standard for determining whether machinery or equipment is in an unsafe operating condition is “whether a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation.” Alabama By-Products Corp., 4 FMSHRC 2128, 2129-2130 (Dec. 1982). The Commission has interpreted §75.1725(a) as imposing two duties upon an operator: “(1) to maintain machinery and equipment in safe operating condition, and (2) to remove unsafe equipment from service. Derogation of either duty violates the regulation. The Commission requires that the unsafe equipment be removed from service immediately.” Id. (citations omitted). Accordingly, I find that the frozen rollers and rollers turning in coal constituted a violation of §75.1721(a).

In Big Ridge, Inc., Judge Manning found that frozen rollers surrounded by accumulations violated §75.1725(a). 34 FMSHRC 63, 87 (Jan. 2012) (ALJ). See also Solar Fuel Co., 9 FMSHRC 1966 (Nov. 1987) (ALJ) (finding nine frozen rollers and seven damaged rollers violated §75.1725(a)). Similarly, in Consolidation Coal Co., Judge Koutras found a violation of the frozen rollers and rollers turning in coal to constitute a violation of the regulation. 16 FMSHRC 2522, 2543-2545 (Dec. 1994) (ALJ).

Inspector Bailey issued Citation No. 8114320 for accumulations he viewed at the No. 1 belt. Tr. 23. He saw large accumulations as he was beginning his inspection, and upon further inspection he noticed that seven rollers were frozen. Tr. 22-27. Bailey and Campbell began performing measurements and found that 31 bottom rollers were touching coal, 24 of which were turning in coal and seven of which were stuck. Tr. 24-25, 26. Bailey testified that six of the rollers were warm or hot to the touch, even though the mine’s ambient temperature was approximately 60 degrees. Tr. 25, 30, 133.

The coal accumulations ranged from four to 16 inches deep, and since the belt was so close to the ground, the coal was piled up to the belt in many areas. Tr. 26. The coal was layered, with the bottom portions being wet and the top portions close to the belt being dry. Tr. 26. Bailey testified that this rendered the belt unsafe because it created a frictional heating hazard. Tr. 28, 29-30. When the belt continuously runs atop frozen rollers, the rollers create friction by rubbing along the belt rather than turning with it. Tr. 28. Furthermore, coal is an abrasive substance that increases the friction. Tr. 28. Bailey testified that the frozen rollers can generate enough heat to cause an ignition of the coal they are touching. Tr. 30.

Under these conditions a reasonably prudent person familiar with the factual circumstances would recognize this hazard and that machinery was not maintained in a safe operating condition. In Highland Mining Co., Judge Moran found that “[i]t is undeniable that a bottom roller running in coal creates the hazard of a frictional point. That is, such coal provides the fuel and the friction created by the roller provides the heat.” 33 FMSHRC 657, 685 (March 2011) (ALJ). Similarly, the Commission has held that the “danger posed in underground coal mining by a friction source that will lead to a heat buildup in an area where coal accumulations could occur is obvious. Where such dangers are present due to defects in the operating condition of equipment, that equipment cannot be considered in safe operating condition.” Alabama By-Products, 4 FMSHRC at 2131.

The violation affected 12 miners because at the time that Bailey cited the Respondent there were 12 miners working inby the belt. Tr. 33. The belt is near the drift, so miners working inby would have to travel by it either in the primary or alternate escapeway. Tr. 33. Additionally, if a fire rages out of control, it would potentially damage the adjacent intake stopping line, which would short circuit the air and push the belt air to the face or cause smoke to enter the intake. Tr. 33.

The Conditions Described in Citation No. 8114320 were Significant and Substantial

Having found that the conditions described in Citation No. 8114320 violated 30 C.F.R 75.1720(a), which is a mandatory safety standard, the first prong of the Mathies test is satisfied. The second prong requires a determination of whether the violation contributed to a discrete safety hazard. Inspector Bailey testified that the dry and wet coal would result in a frictional heating event on the belt, igniting the coal, and causing a fire in the belt entry. The Commission has similarly stated that damp or wet accumulations remain hazardous because they can dry out slowly through the passage of time or quickly from a fire elsewhere in the mine. Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985).

The third element of the Mathies test – a reasonable likelihood that the hazard contributed to will result in an injury – is usually the most litigated prong. The Commission has made it clear that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation…will cause injury.” Musser Engineering Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); see also Cumberland Coal Resources LP, 33 FMSHRC 2357, 2365-2369 (Oct. 2011). The Commission emphasized that the Secretary need not “prove a reasonably likelihood that the violation itself will cause injury…” Id. Further, the Commission reaffirmed the well-settled precedent that the absence of an injury producing event, where a cited practice occurs, does not preclude an S&S determination. Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand and Gravel, Inc.,18 FMSHRC 853, 857 (June 1996)).

The Respondent here makes a similar mistake to the Operator in Musser Engineering, by conflating “violation” with “hazard.” 32 FMSHRC at 1280-1281. Once it is established that the cited violation will contribute to a hazard, the focus shifts from the cited violation to the hazard. “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. Here the hazard is a fire and exposure to smoke. Bailey testified that a fire in the haul road was reasonably likely to lead to smoke inhalation and burns. Tr. 34. The No. 1 belt is in the track entry, so all shifts of miners enter and exit the mine traveling past this belt. Tr. 34, 234. Furthermore, a fire in the track entry could cause damage to the adjacent intake stopping line, which would short circuit the air and cause smoke to enter the intake and be circulated in the working section where 12 miners were working. Tr. 33. These potential injuries are serious in nature. Therefore, I find that that there was a reasonable likelihood that the hazard contributed to by the violation would result in serious injuries, and therefore affirm the S&S designation on the citation.

The Conditions Described in Citation No. 8114320 Were the Result of the Operator’s High Negligence and Aggravated Conducts, Making it an Unwarrantable Failure

The evidence establishes that the violation resulted from the operator’s aggravated conduct, characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2004. Graham performed the pre-shift examination of the track entry and testified that he did not observe any accumulations at the No. 1 belt. Tr. 169. At that time the belt was not running, and Graham stated that he could therefore not determine if there were any frozen rollers or rollers turning in coal. Tr. 170. However, Graham also testified that during his September 8 pre-shift examination, he was not looking for accumulations on the belt, frozen rollers, or for rollers turning in accumulations. Tr. 191-192. Graham testified that he did not see the accumulations that Bailey viewed at the No. 1 belt because the belt is the last thing on his mind. Tr. 204.

Based on his previous mining experience and his knowledge of this mine, Bailey testified that the conditions at the No. 1 belt existed for at least two days and likely over a week. Tr. 37. Bailey described the accumulations as “excessive and extensive,” noticing problematic coal accumulations at the belt almost immediately and from a distance. Tr. 22-24, 35. In all, there were 31 rollers turning in coal, all on a relatively short belt. Tr. 35. Graham testified that if left unabated, the condition could result in a frictional heating event on the belt, igniting the coal fuel and causing a fire in the belt entry. Tr. 32. The accumulations were so extensive that it took nine miners four hours to shovel and remove them. Tr. 38-39. In addition to Graham, two section foremen traveled through the double doors—the spot from which Bailey saw the accumulations—and past the four belts in the mine, all prior to Bailey’s investigation. Tr. 236-238. In spite of these individuals walking past the accumulations touching the rollers, there was no indication that corrective action was going to be taken. The mine was also on notice that greater compliance was necessary, as it had been cited 3 times in the previous 11 months for similar conditions at the No. 1 belt. See e.g. Peabody Coal Co., 14 FMSHRC 1258, 1263 (1992) (Commission held that use of past violations to show aggravated conduct is not limited to the same regulation as the one at issue). Furthermore, there was no evidence that there were any efforts to abate the condition prior to the issuance of the Citation. I have considered all six factors and find these conditions to constitute an unwarrantable failure.

i. Order No. 8114323

Order No. 8114323 reads as follows:

Five damaged bottom rollers were present on the No. 2 belt. These rollers were all painted and flagged indicating that the operator knew the condition existed. These bad rollers have scrapped coal from the bottom belt resulting in accumulation being present directly under them that would contribute to the hazard that already exists. (see Cit. # 8114324) The operator engaged in aggravated conduct constituting more than ordinary negligence in that this condition had been flagged both on the belt structure and on the mine roof with ribbon and no action was taken to correct the violation before the belt was put in service.

The Order was issued pursuant section 104(d)(1) of the Act for a violation of 30 C.F.R. 75.1731(a). The gravity was assessed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited as Significant and Substantial with 12 persons affected, a high degree of negligence, and unwarrantable failure. The Order was terminated approximately two hours later after the operator replaced five rollers.

The Secretary argues that the conditions described in Order No. 8114323 violated 75.1731(a), which requires that damaged rollers and other belt conveyor components that pose a fire hazard be repaired or replaced immediately. Inspector Bailey observed ribbon hanging from roof bolts and paint on the structure where five damaged rollers on the No. 2 belt were located. He testified that operating the belt with damaged rollers was causing coal to accumulate.

The Secretary argues that the conditions satisfied the four Mathies criteria for determining whether a violation is S&S: (1) the operator violated 75.1731(a), a mandatory safety standard, by not replacing or repairing damaged rollers; (2) the violation contributed to the discrete safety hazard of fire or smoke in the track/belt entry resulting from frictional heating leading to an ignition of coal accumulations; (3) a fire, ignition, or smoke would reasonably likely cause smoke inhalation or burns to miners working underground; and (4) that such inhalation or burns are reasonably serious in nature. The Secretary argues that the obviousness of the conditions and the operator’s lack of action show that it was the result of high negligence and aggravated conduct and therefore supports a finding of unwarrantable failure.

The Respondent does not appear to argue that the cited rollers were not damaged, or that it did not violate 75.1731(a). The Respondent argues that the Secretary failed to sustain her burden of proving that Order No. 8114323 was an S&S violation with high negligence because no facts were submitted on the actual conditions of the rollers. It argues that the violation had more to do with the paint and ribbon, rather than the actual conditions of the rollers. The Respondent contends that it was the paint and ribbon that were obvious, and not the condition of the seven stuck rollers. Because paint and ribbons were not used to flag rollers at this mine, the Respondent argues that the condition was not obvious. According to the Respondent, the paint had been present for at least three months, and did not indicate hazardous conditions.

The Conditions Described in Order No. 8114323 Violated 30 C.F.R. §75.1731(a)

Section 75.1731(a) states:

(a) Damaged rollers, or other damaged belt conveyor components, which pose a fire hazard must be immediately repaired or replaced. All other damaged rollers, or other damaged belt conveyor components, must be repaired or replaced.

Judge Paez has described the purpose of §75.1731(a) at length:

In the standard's regulatory history, the Technical Study Panel (“the Panel”) identifies the purpose of the standard as being the “[p]revention of belt fires,” because preventing such fires “is a critical element in improving miners' safety, and proper maintenance and examinations will reduce the likelihood of fires.” Safety Standards Regarding the Recommendations of the Technical Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining: Proposed Rule, 73 Fed. Reg. 35,026, 35,046 (proposed June 19, 2008) (to be codified at 30 C.F.R. 75.1731(a)) [hereinafter “Proposed Rule”]…

Conveyor belts are significant contributors to underground mine fires. Indeed, MSHA has determined that “fires in conveyor belt entries represent about 15 to 20 percent of all underground coal mine fires.” Proposed Rule at 35,028. A belt haulage system such as the one cited in this case is the mechanism by which coal is transported through the mine. Generally, a belt will be hundreds to thousands of feet long and will move along groups of rollers that form a “V” or “U” in the belt every several feet. They prevent coal from slipping off by keeping the coal in the middle of the belt. See Stillhouse Mining, LLC, 33 FMSHRC 778, 780 (Mar. 2011) (ALJ). There will also generally be single rollers spread out at wider intervals from each other. Id. These belt haulage systems can present an ignition hazard. There are thousands of rollers along the belt, and any number of them could become jammed and stop rotating fluidly or stop rotating altogether, creating friction as the belt travels over the slowed or stopped roller. See id. at 810; Ala. By-Prods. Corp., 4 FMSHRC at 2133. Stuck, malfunctioning, and damaged rollers are not uncommon. The heat generated by the friction between the belt and a defective roller heats up the roller and the belt, creating a potential ignition source. See Stillhouse, 33 MFSHRC at 810; Ala. By-Prods., 4 FMSHRC at 2133. Belt haulage systems are a major source of fires in mines. Stillhouse, 33 FMSHRC at 810. According to MSHA's recorded statistics, between 1980 and 2007, “[f]riction at the belt drive and along the belt was the ignition source for 36 percent of the 65 conveyor belt fires reported.” Proposed Rule at 35,028. The Panel identified “[b]elts rubbing stands” and “damaged rollers” as two of the indicators of increased ignition potential for examiners to look out for. Id. at 35,046.

San Juan Coal Co., 34 FMSHRC 2280, 2286-2287 (Aug. 2012) (ALJ).

Inspector Bailey saw paint on the structure and ribbon hanging from roof bolts along the No. 2 belt. Tr. 42-43. Bailey described paint and ribbons as being a typical mining practice to identify damaged rollers. Tr. 45-47. When he looked further, he saw visible damage to the five bottom rollers where there was paint and ribbons. Tr. 43. He also saw accumulations, which were causing the rollers to act as scrapers scraping coal off the bottom of the No. 2 belt. Tr. 43. In order to abate the order, the Respondent replaced the five damaged rollers. Tr. 44.

The evidence further indicates that the damaged rollers were not immediately repaired or replaced. The paint and ribbons at the five damaged rollers indicate that the Respondent was aware that they were damaged, and did not repair or replace them. In his deposition, Ciampanella stated that paint is used by a number of individuals at the mine to indicate that a roller needs to be repaired.[7] GX-A, p.33-34. Furthermore, it is highly improbable that the five non-consecutive rollers that were damaged were coincidentally also the five rollers with paint and ribbon. The violation was found to affect 12 miners for the same reasons described in Citation 8114320, above. Tr. 48-49. Accordingly, I find that the conditions described in Citation No. 8114323 constituted a violation of 30 C.F.R. 75.1731(a).

The Conditions Described in Citation No. 8114323 were Significant and Substantial

Having found that the conditions described in Citation No. 8114323 violated 30 C.F.R 75.1720(a), which is a mandatory safety standard, the first prong of the Mathies test is satisfied. The second prong requires a determination of whether the violation contributed to a discrete safety hazard. The damaged rollers on a running belt cause metal on metal grinding, which gets worse over time, resulting in the rollers getting hot and possibly igniting nearby fuel sources and causing smoke. Tr. 48. Here, there were coal accumulations under each of the five damaged roller, which would serve as a fuel source if there were an ignition. Tr. 48. The coal making contact with the damaged rollers was dry, and the coal at bottom was wet. Tr. 44. However, the presence of some wet or damp coal is not determinative of whether the conditions are S&S, because “damp coal dries in the presence of fire.” Utah Power & Light Co., 12 FMSHRC 965, 971 (May 1990). The evidence taken as a whole indicates that the violation contributed to the possibility of a fire or ignition in the track entry, which is a discrete safety hazard

With regard to the third and fourth prongs of the Mathies test, Inspector Bailey testified that a fire or ignition was reasonably likely to cause smoke inhalations or burns to miners working underground. Tr. 49. The No. 2 belt is in the track entry, so that all shifts of miners and foremen who enter and exit the mine travel past this belt. Tr. 48, 234. Furthermore, the track entry is the mine’s alternate escapeway, so that miners working inby might use it for escape in an emergency. Tr. 33. These conditions presented a reasonable likelihood that the hazard contributed to would have resulted in a serious injury.

The Conditions described in Citation No. 8114323 were the result of the Operator’s High Negligence and Aggravated Conduct, making it an Unwarrantable Failure

The evidence presented by the Secretary establishes that this violation resulted from the Respondent’s aggravated conduct, characterized as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Inspector Bailey testified that the cited conditions existed for at least one day because the paint on the structure was covered in dust and dirt, and not glossy. Tr. 50-51. Furthermore, the fact that the area with the damaged rollers was painted and had ribbons hanging indicates that the mine was aware of the conditions of the rollers and that they were obvious. Tr. 50. Several members of mine management saw the paint and ribbons, which I find were indicative of damaged rollers, and they did nothing to correct the problem. The damage to the rollers was visible to the eye and posed a significant fire hazard. Tr. 43. There was no evidence that there were any efforts to abate the condition prior to the issuance of the Citation. I have considered all six factors and find these conditions to constitute an unwarrantable failure.

j. Citation No. 8114321

Citation No. 8114321 reads as follows:

Loose coal from wet to dry was allowed to accumulate in the belt entry at the No. 3 belt head from 10 to 28 inches deep and for a distance of 36 feet. This coal was touching the bottom of the belt which allowed it to contribute to a frictional heating hazard. This condition is in the alternate escapeway and therefore has the potential to affect all miners inby this point. This belt was removed from service immediately.

The citation was issued pursuant to section 104(a) of the Act for a violation of 30 C.F.R. 75.1731(c).[8] The gravity was assessed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited as Significant and Substantial with 12 persons affected and a Moderate degree of negligence.

The Secretary argues that the conditions described in Citation No. 8114321 violated 75.1731(c), which prohibits materials in the belt conveyor entry that may contribute to a frictional heating hazard. In the alternative, the Secretary argues that the conditions violate 75.400, which requires an operator to clean coal dust, loose coal, and other combustible materials before they accumulate. In support of both theories, the Secretary notes that Inspector Bailey observed a large pile of coal at the No. 3 belt drive behind the guarding while he was riding on the man-trip towards the working section. Bailey measured the depth of the coal accumulations and determined that the top layer was dry and in contact with the bottom belt, thereby creating a frictional heating hazard.

The Secretary argues that the conditions satisfied the four Mathies criteria for determining whether a violation is S&S: (1) the operator violated either 75.400 or 75.1731(c), a mandatory safety standard, by operating the No. 3 belt while the belt was in contact with accumulations; (2) the violation contributed to the discrete safety hazard of smoke or fire in the track/belt entry resulting from frictional heating leading to an ignition of coal accumulations; (3) a fire or ignition would reasonably likely cause smoke inhalation or burns to miners working underground; and (4) that such inhalation or burns are reasonably serious in nature. The Secretary argues that the operator exhibited moderate negligence because it should have known about the accumulations.

The Respondent argues that the Secretary failed to sustain her burden of proving that Citation No. 8114321 was reasonably expected to cause lost work day injuries to 12 miners. There were 12 miners working underground, and the Respondent contends that it is unreasonable to expect all 12 miners to be injured even if the event were to occur. The Respondent argues that since the air in the belt entries was traveling away from the working sections, and escape from the mine was a short distance, most of the miners would have been able to escape without injury. Furthermore, the mine was equipped with directional life lines, additional SCSRs, a refuge chamber, and other emergency safety protections.

The Respondent argues that the Secretary failed to sustain her burden of proving that Citation No. 8114321 was an S&S violation because it contends that a flame resistant belt would not burn and the coal inside the belt guard would not burn.

The Conditions Described in Citation No. 8114321 Violated 30 C.F.R. §75.1731(c) or 30 C.F.R. §75.400

Section 75.1731(c), which concerns the maintenance of belt conveyors and belt conveyor entries, states:

Materials shall not be allowed in the belt conveyor entry where the material may contribute to a frictional heating hazard.

Section 75.400, which concerns accumulation of combustible materials, states:

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.

Bailey first noticed the large accumulations of coal at the No. 3 belt head as he was riding the mantrip on an imminent danger run. Tr. 52. When Bailey examined the No. 3 belt head, he found a large pile of coal within the drive and extending the 36-foot length of the guarding. Tr. 54. He measured the pile at between 10-28 inches, and testified that there were points where the accumulation was touching the belt. Tr. 54-55, 137-138. The top layer of the coal was dry. Tr. 57. The accumulations in the belt entry could have caused a friction heating hazard because the belt would be running in coal. Tr. 56. The belt is an abrasive surface, so that if it runs in coal it constitutes a frictional heating hazard. Tr. 56.

The mine has flame resistant belts, which means that they will not burn unless a direct flame is applied. Tr. 132, 174. The flame resistant belt causes no less friction than a regular belt and may still ignite the coal beneath it. Tr. 57, 174. The coal accumulations that Inspector Bailey observed at the No. 3 belt drive were violations of both §75.1731(c) and §75.400. However, in order not to cite the Respondent twice for the same violation, I affirm Citation No. 8114321 as originally written.

The Conditions Described in Citation No. 8114321 were Significant and Substantial and 12 Miners were Affected

Having found that the conditions described in Citation No. 8114321 violated either 30 C.F.R 75.1731(c) or §75.400, which are mandatory safety standards, the first prong of the Mathies test is satisfied. The second prong requires a determination of whether the violation contributed to a discrete safety hazard. The belt running in coal accumulations is a frictional heating hazard that can lead to fire and smoke at the belt or track entry. Tr. 58. Inspector Bailey testified that as the belt continued to run, additional coal would accumulate, which would further raise the likelihood of a frictional heating hazard. Tr. 85. Furthermore, as coal accumulates, it can lift the bottom belt, causing it to become un-trained and spill more coal. Tr. 85.

With regard to the third and fourth prongs of the Mathies test, Bailey testified that a fire or ignition was reasonably likely to cause smoke inhalations or burns to miners working underground. Tr. 59. The No. 3 belt is in the track entry, so that all shifts of miners that enter and exit the mine travel past the belt. Tr. 59. Furthermore, the track entry is the mine’s alternate escapeway, so that miners working inby may use it in the event of an emergency. Tr. 33. Bailey testified that 12 miners were affected because there were 12 miners working inby the section. Tr. 32-33, 59. In the event of an ignition or fire, all of these miners would be potentially affected by smoke, fire, and a dangerous escapeway.

The Conditions described in Citation No. 8114321 were the result of the Operator’s Moderate Negligence

Bailey determined that Citation No. 8114321 was the result of Respondent’s moderate negligence because it should have known about the coal accumulations. Though the coal had been running for approximately 45 minutes on the morning of the citation, Bailey did not believe that the extensive conditions were created during that short period. Tr. 59-60. He estimated that the conditions existed for at least two days. Tr. 60. Bailey designated the violations as resulting from moderate, rather than high, negligence because Campbell told him that the small holes in the guarding can make accumulations difficult to see. Tr. 60-61. I affirm Inspector Bailey’s analysis and find that the conditions were the result of the Respondent’s moderate negligence.

k. Citation No. 8114322

Citation No. 8114322 reads as follows:

The alternate escapeway was not maintained in a safe condition to always assure passage of anyone, including disabled persons. Thick mud was present in the escapeway at the No. 3 belt drive for a distance of at least 2 crosscuts. This mud was up to 13 inches deep and could result in a miner tripping while walking in the area.

The citation was issued pursuant to section 104(a) of the Act for a violation of 30 C.F.R. 75.380(d)(1). The gravity was assessed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited as Significant and Substantial with one person affected and a Moderate degree of negligence.

The Secretary argues that the conditions described in Citation No. 8114322 violated 75.380(d)(1), which requires escapeways to be maintained in safe conditions such that all persons are assured passage. Bailey observed thick mud stretching from the rib to the No. 3 belt, which he measured at 13 inches deep and extending the distance of two crosscuts. The track/belt entry has a lifeline because it is an alternate escapeway. Bailey testified that this alternate escapeway was unsafe because it posed a slip and fall hazard and created increased difficulty of carrying a stretcher through the area.

The Secretary argues that the conditions satisfied the four Mathies criteria for determining whether a violation is S&S: (1) the operator violated 75.380(d)(1), a mandatory safety standard, by allowing thick mud to exist in the alternate escapeway; (2) the violation contributed to the discrete safety hazard of hindering escape from the mine in the event of an emergency; (3) slipping or falling during an escape would slow a miner down, lead to increased exposure to smoke inhalation, and possibly make escape in an emergency impossible; and (4) that such inhalation is reasonably serious in nature. The Secretary argues that the operator exhibited moderate negligence because it should have known about the mud in the alternate escapeway.

The Respondent argues that the Secretary failed to sustain her burden of proving that Citation No. 8114322 was an S&S violation. The Respondent contends that the mud would not have had any significant impact on miners if they needed to escape via rail transportation or by foot.

The Conditions Described in Citation No. 8114322 Violated 30 C.F.R. §75.380(d)(1)

Section 75.380(d)(1), which concerns escapeways, states:

Each escapeway shall be —(1) Maintained in a safe condition to always assure passage of anyone, including disabled persons.

After Inspector Bailey returned from the imminent danger run, he exited the mantrip in order to examine the No. 3 belt drive. Tr. 61-62. At this point he encountered thick solid mud. Tr. 63. There was a pump nearby, but the mud was too thick for the pump to remedy the problem. Tr. 63. Using his footprint, Bailey measured the mud at 13 inches deep in an area that is only five feet high. Tr. 63-64, 176. The mud extended from rib to belt, with the thicker mud to the right of the rail between the rib, as one faced outby. Tr. 64. The mud extended the length of two cross-cuts, which measured approximately 130-150 feet long. Tr. 64. According to Graham, there was always mud at the belt head. Tr. 175. Bailey struggled in the mud and fell several times as he attempted to walk through the area. Tr. 62, 65.

The track entry was an alternate escapeway, with a lifeline in the deepest part of the mud. Tr. 62, 67. The Commission has previously held that when assessing a violation of §75.380(d)(1) in an escapeway, the judge should assess the dangers during an emergency rather than during normal operations. Maple Creek Mining, Inc., 27 FMSHRC 555, 560 (2005).

[T]he test with respect to the use of an escape route is not whether miners have been safely traversing the route under normal conditions, but rather the effect of the condition of the route on miners' ability to expeditiously escape a dangerous underground environment in an emergency.

The American Coal Co., 29 FMSHRC 941, 950 (Dec. 2007). The Commission further held that “of particular importance in determining whether an escapeway is adequate under section 75.380 is the ability of miners to transport an injured miner on a stretcher through it.” Maple Creek Mining, 27 FMSHRC at 560. As illustrated by Bailey’s difficulty traveling in the area, these conditions illustrated that the escapeway was not being maintained in a manner that assured passage of all persons, including disabled persons. Tr. 65-66. If an inspector walking through the area under normal conditions found it difficult to traverse without slipping and falling, the escapeway would pose a serious danger to miners—especially an injured miner in a stretcher—during an emergency.

The Conditions Described in Citation No. 8114322 were Significant and Substantial and one Miner was Affected

Having found that the conditions described in Citation No. 8114322 violated 30 C.F.R 75.380(d)(1), which is a mandatory safety standard, the first prong of the Mathies test is satisfied. The second prong requires a determination of whether the violation contributed to a discrete safety hazard. The mud in the alternate escapeway created an inability to escape the mine quickly in the event of an emergency. Tr. 66-67. Inspector Bailey testified that the condition would likely cause miners to slip and fall in the escapeway during normal travel and during an evacuation. Tr. 65-67. Furthermore, since the lifeline was located above the mud, it would be impossible for a miner to use the lifeline and avoid the mud. Tr. 67.

The Respondent argued that miners would be able to use the mantrip in the event of an emergency, and thereby avoid the mud, but Bailey testified that there is no certainty that the mantrip would be available. Tr. 139-140. Indeed, the very purpose of primary and alternate escapeways is to allow miners

to quickly exit an underground mine and that impediments to a designated escapeway may prevent miners from being able to do so. The legislative history of the escapeway standard states that the purpose of requiring escapeways is “to allow persons to escape quickly to the surface in the event of an emergency.” S. Rep. No. 91-411, at 83, Legislative History, at 209 (1975).

Mill Branch Coal Corp., 34 FMSHRC 2090, 2123-2124 (Aug. 2012) (ALJ) (emphasis in original).

With regard to the third and fourth prongs of the Mathies test, the hazard of slipping and falling, especially during an emergency, could result in one spraining or breaking a leg, knee, back, or wrist, as well as increased exposure to smoke and other hazards. Tr. 66-67. Such an injury would be significant in nature. Even in non-emergency situations, there is a discrete danger of miners slipping and falling down onto the rail or the ground. Tr. 65-66. Such falls could result in serious injuries.

Inspector Bailey cited the violation as affecting one miner, because even if all 12 miners inby were evacuating, it would be likely that most of them would not sustain serious injuries due to a slip or fall. Tr. 70. I credit Bailey’s testimony here and find it to be a reasonable conclusion.

The Conditions described in Citation No. 8114322 were the result of the Operator’s Moderate Negligence

Inspector Bailey testified that the conditions described in Citation No. 8114322 were the result of the Respondent’s moderate negligence because it should have known about the mud in the alternate escapeway, given its extensiveness. Tr. 69. Though no one presented any mitigating evidence, he found that it was not entirely visible from the mantrip, and one had to step in it to become aware of it. Tr. 70. The violation was abated through a combination of miners shoveling the mud and by adding water in order to liquefy it and allow the pump to remove it. Tr. 70-71, 142. I therefore affirm that this citation was the result of moderate negligence.

l. Citation No. 8114324

Citation No. 8114324 reads as follows:

Combustible material in the form of loose coal, wet to dry, was present on the No. 2 belt under 5 bad rollers, and at the drive. This coal ranged from four inches deep under one of the rollers to up to 15 inches deep at the drive. The coal located under the bottom rollers had a reasonably likely ignition source to ignite the coal exposing all miners inby. This entry is the alternate escapeway. (see Citation #8114323) The coal has been removed from under the damaged rollers. The operator will be allowed additional time to remove the coal at the drive.

The citation was issued pursuant to section 104(a) of the Act for a violation of 30 C.F.R. 75.400. The gravity was assessed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited as Significant and Substantial with 12 persons affected and a Moderate degree of negligence.

The Secretary argues that the conditions described in Citation No. 8114324 violated 75.400, which requires that loose coal and other combustible materials be cleaned up and not be permitted to accumulate. Bailey found coal accumulations under five damaged rollers on the No. 2 belt. The Secretary argues that the conditions satisfied the four Mathies criteria for determining whether a violation is S&S: (1) the operator violated 75.400, a mandatory safety standard, by not cleaning up these accumulations; (2) the violation contributed to the discrete safety hazard of fire in the track/belt entry resulting from frictional heating leading to an ignition of coal accumulations; (3) a fire or ignition would reasonably likely cause smoke inhalation or burns to miners working underground; and (4) that such inhalation or burns are reasonably serious in nature. The Secretary argues that the operator exhibited moderate negligence because it should have known about the accumulations under the five damaged rollers.

The Respondent argues that the Secretary failed to sustain her burden of proving that Citation No. 8114324 was reasonably expected to cause lost work day injuries to 12 miners. There were 12 miners working underground, and the Respondent contends that it is unreasonable to expect all 12 miners to be injured even if the event were to occur. The Respondent argues that since the air in the belt entries was traveling away from the working sections and escape from the mine was a short distance, most of the miners would have been able to escape without injury. Furthermore, the mine was equipped with directional life lines, additional SCSRs, a refuge chamber, and other emergency safety protections.

The Respondent further argues that the Secretary failed to sustain her burden of proving that Citation No. 8114324 was an S&S violation. The Respondent contends that the accumulations cited were not in contact with any moving parts or belt rollers. Furthermore, the No. 2 belt was the wettest at the mine.

The Conditions Described in Citation No. 8114324 Violated 30 C.F.R. §75.400

Section 75.400, which concerns accumulations of combustible materials, states:

The Commission has held that a violative “‘accumulation’ exists ‘where the quantity of combustible materials is such that, in the judgment of the authorized representative of the Secretary, it likely could cause a fire or explosion if an ignition source were present.’” Utah Power & Lighting Co., 12 FMSHRC 965, 968 (May 199), quoting Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 1980), aff’d 951 F.2d 292 (10^th Cir. 1991). Citing legislative history and precedent, the Commission was clear that “[t]he standard was directed at preventing accumulations in the first instance, not at cleaning up the materials within a reasonable period of time after they have accumulated.” Id. Furthermore, the inspector’s judgment should be reviewed judicially by reference to an objective test of whether a reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have recognized the hazardous condition that the regulation seeks to prevent. Id., citing Canon Coal Co., 9 FMSHRC 667,668 (Apr. 1987).

Inspector Bailey testified that there were five localized piles of coal underneath the damaged rollers at the No. 2 belt. Tr. 71. He further found accumulations within the guarding at the drive. Tr. 71. Upon measuring the piles, he found that the smallest pile was four inches deep and the largest was 15 inches deep, with the coal directly under the rollers dry. Tr. 71. None of the witnesses contradicted this testimony. Tr. 269-270. I find that the Respondent violated §75.400 by permitting the cited accumulations to exist in a manner contrary to the regulation.

The Conditions Described in Citation No. 8114324 were Significant and Substantial and 12 Miners were Affected

Having found that the conditions described in Citation No. 8114324 violated 30 C.F.R 75.400, which is a mandatory safety standard, the first prong of the Mathies test is satisfied. The second prong requires a determination of whether the violation contributed to a discrete safety hazard. Inspector Bailey’s testimony establishes that the violation contributed to the discrete safety standard of a fire in the track or belt entry for the same reason as the accumulations discussed above. Tr. 48. This hazard resulted from the frictional heating hazard caused by the damaged rollers on a running belt, which could ignite coal accumulations or cause smoke. Tr. 48. Assuming normal continued mining operations, Bailey estimated that the belt would run until midnight on September 8, during both of the mine’s production shifts. Tr. 48. This would allow the metal on metal friction, described in citations above, to increase and cause the damaged rollers to get hot enough to ignite the coal accumulations beneath them or cause smoke. Tr. 48.

Bailey’s testimony also satisfies the third and fourth prongs of Mathies, which require a reasonable likelihood that the hazard contributed to would result in an injury, and that the injury are reasonably serious in nature. A fire or ignition was reasonably likely to cause burns or lead to smoke inhalations to miners underground. Tr. 49. The No. 2 belt is in the track entry, so all shifts of miners enter and exit the mine traveling past this belt, exposing them to the hazard. Tr. 48, 234. Furthermore, the track entry is the mine’s alternate escapeway, which means that in the event of an emergency miners working inby may need to escape using the track entry. Tr. 33.

The violation affected 12 miners because at the time that Bailey cited the Respondent there were 12 miners working inby the belt. Tr. 33, 74. Additionally, if a fire rages out of control, it would potentially damage the adjacent intake stopping line, which would short circuit the air and push the belt air to the face or cause smoke to enter the intake. Tr. 33.

The Conditions described in Citation No. 8114324 were the result of the Operator’s Moderate Negligence

Inspector Bailey testified that the conditions described in Citation No. 8114324 were the result of the Respondent’s moderate negligence because it should have known about the coal accumulations located under the five damaged rollers, given that they had existed for at least one day. Tr. 73. The conditions should have been discovered and corrected during the September 8 preshift examination for the day shift, or by the two section foremen who traveled past the No. 2 belt at the start of the September 8 shift. Tr. 73. These facts indicate that the Respondent should have known about the accumulations, and I affirm the citation as resulting from moderate negligence.

m. Order No. 8114325

Order No. 8114325 reads as follows:

The operator conducted an inadequate preshift examination on the belts for the oncoming day shift on this day and several shifts prior to that. Four violations were written on the No. 1, 2, and 3 belts (Citation #’s 8114320, 8114321, and 8114324) during this shift. All violations were deemed S+S by the authorized representative, and two of the four were written as unwarrantable failure to comply with a mandatory standard. The operator has not recorded one hazard or violation on any of the belts for at least 2 weeks going back to 8/2010. These conditions were obvious, extensive, and had existed for a period of time longer than 2 shifts. The operator engaged in aggravated conduct constituting more than ordinary negligence in that the conditions on the belt were obvious, and no examiner made a record of the conditions in the examination book. This is an unwarrantable failure to comply with a mandatory standard.

The Order was issued pursuant section 104(d)(1) of the Act for a violation of 30 C.F.R. 75.360(a)(1). The gravity was assessed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty. Furthermore, it was cited as Significant and Substantial, with 12 persons affected, a high degree of negligence, and an unwarrantable failure.

The Secretary argues that the conditions described in Order No. 8114325 violated 75.360(a)(1), which requires the operator to conduct pre-shift examinations in areas where persons are scheduled to work or travel. The miners were scheduled to travel the track haulageway, which is in the same entry as the Nos. 1, 2, and 3 belts. Therefore, the Secretary argues that the conditions that Bailey cited in the Nos. 1, 2, and 3 belts were hazards that the preshift examinations should have recorded.

The Secretary argues that the conditions satisfied the four Mathies criteria for determining whether a violation is S&S: (1) the operator violated 75.360(a)(1), a mandatory safety standard, by failing to conduct adequate preshift examinations; (2) the violation contributed to the discrete safety hazard of fire in the track/belt entry resulting from frictional heating leading to an ignition of coal accumulations; (3) a fire or ignition would reasonably likely cause smoke inhalation or burns to miners working underground; and (4) that such inhalation or burns are reasonably serious in nature. The Secretary argues that the conditions were the result of high negligence and aggravated conduct and therefore support a finding of unwarrantable failure.

The Respondent argues that the Secretary failed to sustain her burden that Order No. 8114325 was a violation of Section 75.360(a)(1). The Respondent contends that none of the areas listed under Section 75.360(b) required a pre-shift examination of the belts. It contends that because no work was scheduled on the track/belt entry for the following shift, it was not required to conduct complete pre-shift examinations of the belts. Furthermore, it maintains that on-shift examinations of the belts were being properly conducted. Additionally, the Respondent argues that since it installed “top of the line” rigid metal frames with “life time bearing” in the idler rollers, the belts were kept in line and level, thereby not requiring much maintenance.

The Respondent further argues that the Secretary failed to sustain her burden of proving that Citation No. 8114325 was reasonably expected to cause lost work day injuries to 12 miners. There were 12 miners working underground, and the Respondent contends that it is unreasonable to expect all 12 miners to be injured even if the event were to occur. The Respondent argues that since the air in the belt entries was traveling away from the working sections, and escape from the mine was a short distance, most of the miners would have been able to escape without injury. Furthermore, the mine was equipped with directional life lines, additional SCSRs, a refuge chamber, and other emergency safety protections.

The Conditions Described in Order No. 8114325 Violated 30 C.F.R. §75.360(a)(1)

Section 75.360(a)(1), which concerns preshift examinations at fixed intervals, states:

Except as provided in paragraph (a)(2) of this section, a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8–hour interval during which any person is scheduled to work or travel underground. No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8–hour interval. The operator must establish 8–hour intervals of time subject to the required preshift examinations.

Inspector Bailey issued Order No. 8114325 for failure to conduct an adequate preshift examination as required under §75.360(a)(1) following his finding of violations at the Nos. 1, 2, and 3 belts that led to Citation Nos. 8114320, 8114321, 8114323, and 8114324. Section 75.360(a)(1) requires a preshift examination for every 8-hour interval during which persons are scheduled to work or travel underground. Section 75.360(b)(1) specifies that these preshift examinations must be conducted in roadways, travelways and track haulageways where persons are scheduled to work or travel during the oncoming shift. The plain language of §76.360 is “unambiguous.” Buck Creek Coal, Inc., 17 FMSHRC 8, 15 (Jan. 1995). On its face it is clear in its requirement of a preshift examination in areas where miners are scheduled to work or travel. The Respondent’s repeated arguments that preshift examinations are only required for areas where miners are scheduled to work is a misreading of the regulation.

The Commission has recognized preshift examinations as “of fundamental importance in assuring a safe working environment underground.” Buck Creek Coal, 17 FMSHRC at 15; see also Jim Walter Resources, Inc., 28 FMSHRC 579, 598 (Aug. 2006). Chairman Jordan and Commissioner Marks have referred to the preshift inspection requirement as “the linchpin of Mine Act safety protections.” Manalapan Mining Co., Inc., 18 FMSHRC 1375, 1391 (August 1996) (Jordan and Marks, concurring and dissenting in part). MSHA requires several layers of examinations, including on-shift, preshift, and weekly examinations, in order to ensure miner safety. “These examinations are designed to create a multi-layer, prophylactic approach to the identification and correction of hazardous or unsafe conditions in the mine.” Coal River Mining, LLC, 34 FMSHRC 1087, 1095 (May 2012) (ALJ).

The Commission has clarified that the term “hazardous conditions” in §75.360(b) does not require that the condition be S&S or reasonably likely to result in injury; rather, the term “hazard” denotes a measure of danger to safety or health. Enlow Fork Mining Co., 1997 WL 14346, *7 (1997). “The Commission has approved the definition of “hazard” as “a possible source of peril, danger, duress, or difficulty,” or “a condition that tends to create or increase the possibility of loss.” Id.

The Nos. 1, 2, and 3 belts constitute areas where miners are scheduled to travel because the track haulageway is located in the same entry. Tr. 77. Inspector Bailey testified that the conditions he cited at the Nos. 1, 2, and 3 belts were hazards that should have been recorded by the preshift examination records for the September 8, 2010 day shift. Tr. 78, 159-160. Graham, the Respondent’s preshift examiner, agreed that a damaged roller, rollers turning in coal accumulations, and a large accumulation of coal should all be recorded during a preshift examination of the belts. Tr. 189-190, 192-193.

Bailey testified that he reviewed the preshift examination records for the preceding two weeks and did not see any hazards or violations recorded on the Nos. 1, 2, or 3 belts.[9] Tr. 75-76. As discussed above, Bailey testified that the conditions that he observed on the belts had existed for at least one day, and in some cases up to a week. Tr. 37, 51, 60, 73. Had adequate preshift examinations been performed, these hazards would have been reported.

The crux of Respondent’s argument relies on an erroneous reading of §75.360 that only requires preshift examinations for times when persons are scheduled to work. Tr. 209, 241; Resp. Post-Hearing Brief, 20-22. However, §75.360(a)(1) is clear in requiring a “preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground.” 30 C.F.R. 75.360(a)(1) (emphasis added). Similarly, section (b)(1), which is similarly applicable here, specifies that preshift examinations must be performed in “roadways, travelways and track haulageways where persons are scheduled, prior to the beginning of the preshift examination, to work or travel during the oncoming shift.” 30 C.F.R. 75.360(b)(1) (emphasis added). Furthermore, section (b)(10) specifies that preshift examinations must be performed in “[o]ther areas where work or travel during the oncoming shift is scheduled prior to the beginning of the preshift examination.” 30 C.F.R. 75.360(b)(10) (emphasis added). Respondent’s interpretation of the regulation is highly selective and unreasonable. The regulation is clear in its requirements of areas where miners work or travel.

The Respondent also argues that the belt system was new and the fact that no top rollers were stuck or damaged shows that the belts were being properly maintained. However, this argument misunderstands the regulation at issue. Section 75.360 requires the operator to conduct preshift examinations before shifts where miners are scheduled to work or travel. If the belt system is new and properly maintained, as Respondent asserts, then there should be no hazards to report. However, neither the age of the system nor its maintenance reduce the operator’s burden to conduct preshift examinations, and report any hazards discovered.

I find that Graham failed to conduct a proper preshift examination of the belts for the oncoming September 8 day shift. Graham testified that he only looks for obvious hazards, such as a broken piece of belt structure, a roller out of a hanger, or a belt with a rock fallen on it. Tr. 179. Graham testified that he was not looking for large accumulations at the belt, flagged rollers, stuck rollers, or rollers turning in accumulations during his preshift examination on September 8. Tr. 189-190, 192-194.

The Conditions Described in Order No. 8114325 were Significant and Substantial

Having found that the conditions described in Order No. 8114325 violated 30 C.F.R 75.360(a)(1), which is a mandatory safety standard, the first prong of the Mathies test is satisfied. The second prong requires a determination of whether the violation contributed to a discrete safety hazard. Inspector Bailey’s testimony establishes that the violation contributed to a discrete safety hazard; namely, a fire in the track/belt entry or smoke resulting from the ignition of coal due to the frictional heating hazards cited in Citation/Order Nos. 8114320, 8114321, 8114323, and 8114324. Tr. 82. Each of these individual citations was found and affirmed as S&S above. The details of how each cited condition contributed to a frictional heating hazard, as well as smoke hazard, and how those hazards were reasonably likely to result in a serious injury are discussed above. As such, the failure to perform adequate preshift examinations, which allowed the violations discussed above to persist, is S&S.

The Conditions described in Order No. 8114325 were the result of the Operator’s High Negligence and Aggravated Conduct, making it an Unwarrantable Failure

The evidence presented by the Secretary establishes that this violation resulted from the Respondent’s aggravating conduct, characterized as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” The Commission has held that a preshift examiner acts as the agent of the mine operator when he is performing his examinations and his conduct is imputable to the miner operator for unwarrantable failure purposes. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 195-197 (Feb. 1991).

Inspector Bailey testified that he designated this order as an unwarrantable failure because the conditions cited in Citation/Order Nos. 8114320, 8114321, 8114323, and 8114324 were obvious and extensive. Tr. 108. Nothing in the record contradicts this testimony. There were no mitigating circumstances presented by the Respondent that would lower the negligence involved. The conditions that Bailey cited had existed for at least a day and up to a week, meaning that adequate preshift examinations were also not being conducted for similar lengths of time. Tr. 37, 51, 60, 73. Had adequate preshift examinations been conducted, they would have discovered the hazards cited. There is no evidence in the record that the Respondent attempted to abate the conditions prior to the Order. The Respondent knew or should have known that adequate preshift examinations were not being conducted because visible hazards existed, but the examination book did not reflect this fact. In this particular case, I find that the requirement for preshift examinations is a central concern of the Mine Act and the regulation is abundantly clear. Therefore, though there is no indication that the Respondent received specific notice, I find that the other factors support a finding of unwarrantable failure.

Civil Penalties

The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the Act delegates to the Commission and its judges the authority to assess all civil penalties provided in the Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission [ALJ] shall consider the six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

I affirm Citation No. 8114320 as issued, and find that the Respondent violated 30 C.F.R. 75.1725(a). The citation was correctly designated as being S&S, resulting from high negligence and an unwarrantable failure. Further, it was correctly designated as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty and 12 miners affected. The Citation and penalty of $6,996.00 were correct as issued and are affirmed.

I also affirm Order No. 8114323 as issued, and find that the Respondent violated 30 C.F.R. 75.1731(a). The Order was correctly designated as S&S, resulting from high negligence and an unwarrantable failure. Further, the Order was correctly designated as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty, with 12 miners affected. The Order and penalty of $28,800.00 were correct as issued and are affirmed.

I also affirm Citation No. 8114321 as issued, and find that the Respondent violated 30 C.F.R. 75.1731(c) and 30 C.F.R. 75.400. The Citation was correctly designated as S&S and resulting from moderate negligence. Further, the Citation was correctly designated as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty and 12 miners affected. The Citation and penalty of $2,106.00 were correct as issued and are affirmed.

I also affirm Citation No. 8114322 as issued, and find that the Respondent violated 30 C.F.R. 75.380(d)(1). The Citation was correctly designated as S&S and resulting from moderate negligence. Further, the Citation was correctly designated as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty and one miner affected. The Citation and penalty of $540.00 were correct as issued and are affirmed.

I also affirm Citation No. 8114324 as issued, and find that the Respondent violated 30 C.F.R. 75.400. The Citation was correctly designated as S&S and resulting from moderate negligence. Further, the Citation was correctly designated as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty and 12 miners affected. The Citation and penalty of $2,106.00 were correct as issued and are affirmed.

I also affirm Order No. 8114325 as issued, and find that the Respondent violated 30 C.F.R. 75.360(a)(1). The Order was correctly designated as S&S, resulting from high negligence and an unwarrantable failure. Further, the Order was correctly designated as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty, with 12 miners affected. The Order and penalty of $28,800.00 were correct as issued and are affirmed.

I have fully considered all six statutory penalty criteria and assess a civil penalty in the amount of $69,348. Raw Coal is a large operator and the parties have stipulated that the penalty will not have any effect on the operator’s ability to continue in business. Stip. 8, 11. According to the Mine Data Retrieval System, the Sewell Mine B has a significant history of violations. The negligence in several of the citations and orders considered above was high, and the gravity was affirmed as reasonably likely to lead to injury or illness, with such injury or illness reasonably leading to lost workdays or restricted duty.

ORDER

For the reasons set forth above, the citations are AFFIRMED as indicated. Raw Coal Mining Company is ORDERED TO PAY the Secretary of Labor the sum of $69,348.00 within 30 days of the date of this decision.[10]

/s/ William S. Steele

William S. Steele

Administrative Law Judge

Distribution: (Certified Mail)

Cheryl E. Carroll, U.S. Department of Labor, 1100 Wilson Boulevard, 22^nd Floor West, Arlington, VA 22209

James F. Bowman, P.O. Box 99, Midway, WV 25878

^{^[1]} The numbered paragraphs correspond to those in the Secretary’s Pre-Hearing Report.

^{^[2]} Throughout all the witness’s testimonies, the terms “stuck” and “frozen” are used interchangeably.

^{^[3]}Several of the words in the report, admitted as RX-1, are not legible.

^{^[4]} Graham equivocated on whether in his report in the examination book, when he referred to the “1, 2, 3, and 4 belts,” he was actually referring to the track. Tr. 183-184.

^{^[5]} Ciampanella appeared to contradict his deposition testimony often in his testimony. Tr. 255-265. Ciampanella repeatedly stated that he may have been confused or misunderstood during the deposition. Tr. 257, 264. He also changed his opinion at points in his testimony. Tr. 265-266.

^{^[6]}Ciampanella appeared to change his deposition testimony concerning the mine’s policy towards painting the structure when there is a problem with the rollers. Tr. 263-264. At hearing, Ciampanella testified that it is not company policy or practice to paint or hang ribbons. Tr. 264. However, he also said that occasionally they paint the rollers when there is a problem. Tr. 264-265.

^{^[7]} At hearing, Ciampanella contradicted his deposition testimony, stating that it was not company policy to paint or hang ribbons at damaged rollers. Tr. 264-265.

^{^[8]} This citation was amended to allege in the alternative an S&S violation of 30 C.F.R. 75.400. Tr. 7-8.

^{^[9]} Bailey testified that there were hazards reported on the belts 11 days prior to the inspection. Tr. 88, 94. At hearing, Bailey also reviewed the preshift and onshift reports, and testified that most of the entries preceding the inspection were onshift reports, and many of them were written so generally that he did not view them as reports of hazards. Tr. 100, 155-156.

^{^[10]} Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390.