FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

STIPULATIONS

The parties have entered into several stipulations, introduced as Parties Joint Exhibit 1. Those stipulations include the following:

1. Respondent, Consol Energy, Inc. – Shoemaker Mine is an “operator” as defined in Section 3(d) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter referred to as the “Mine Act”), 30 U.S.C. Section 802(d), at the Shoemaker Mine where the alleged Orders/Citation at issue in this proceeding were issued; and,

2. Shoemaker Mine is owned and operate by Respondent, Consol Energy, Inc.; and,

3. The operations of Respondent at the Shoemaker Mine are subject to the jurisdiction of the Mine Act; and

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Commission (hereinafter “FMSHRC”) and its designated Administrative Law Judge pursuant to Sections 104, 105, 113 of the Mine Act; and.

5. The alleged Orders and Citation and terminations involved herein were properly served by a duly authorized representative of the Secretary of Labor upon an agent of the Respondent at the dates, times and places stated therein, and may be admitted into evidence for the purpose of establishing their issuance; and

6. True copies of the above-captioned alleged Order Numbers and alleged Citation Number were served on Respondent or its agents as required by the Mine Act; and

7. Each party shall stipulate to the authenticity and admissibility of the other party’s exhibits, but not to the relevancy or the truth of the matters asserted therein; and

8. Any formal MSHA computer printout reflecting Respondent’s history of violations is an authentic copy and may be admitted as a business record of the Mine Safety and Health Administration; and

9. The imposition of the proposed penalties will have no effect on Respondent’s ability to remain in business; and

10. Respondent demonstrated good faith in the abatement of the alleged Orders and Citations at issue in this proceeding.

Joint Exhibit 1 (see also Transcript Page 6).[1]

LAWS AND REGULATIONS

The citation involved in this matter, Citation No. 7033058, was issued under Section 104(a) of the Federal Mine Safety & Health Act of 1977. That provision provides the following:

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)

Citation No. 8033058 deals with an alleged violation of 30 C.F.R. §75.360(b)(3) (titled “Preshift Examination”). That section provides the following:

(b) The person conducting the preshift examination shall examine for hazardous conditions, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction at the following locations:

(3) Working sections and areas where mechanized mining equipment is being installed or removed, if anyone is scheduled to work on the section or in the area during the oncoming shift. The scope of the examination shall include the working places, approaches to worked-out areas and ventilation controls on these sections and in these areas, and the examination shall include tests of the roof, face and rib conditions on these sections and in these areas.

Both Orders involved in this matter, Order Nos. 8030970 and 8033057, were issued under Section 104(d) of the Federal Mine Safety & Health Act of 1977. That provision provides the following:

(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 chapter. 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) of this section 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)

Order Nos. 8030970 and 8033057 deal with alleged violations of 30 CFR §75.400 (titled “Accumulation of combustible material”). That section provides the following:

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.

30 CFR §75.400.

The Secretary maintains that the citation and both orders were based upon violations that were S&S in nature. Well-settled Commission precedent sets forth the standard used to determine if a violation is S&S. A violation is S&S “if, based upon the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission later clarified this standard, explaining:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

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.

The term “gravity” in the Mine Act is contained in Section 110(i), which states that in determining the appropriateness of a penalty, the Secretary must consider, among other things, “the gravity of the violation.” 30 U.S.C. §820. The Secretary promulgated three factors under 30 C.F.R. §100.3(e) to determine the gravity of a citation for purposes of determining the penalty. Those factors are:

[T]he likelihood of the occurrence of the event against which a standard is directed; the severity of the illness or injury if the event has occurred or was to occur; and the number of persons potentially affected if the event has occurred or were to occur.

30 C.F.R. §100.3(e).

Pertinent regulations and well-settled Commission precedent deal with the standard for negligence under the Act. 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.” 30 C.F.R. § 100.3(d). “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.” Id. Low negligence exists when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. High negligence exists when “[t]he operator knew or should have known of the violation condition or practice, and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices. Id.

According to the Commission, an unwarrantable failure is defined as “aggravated conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). The Commission explained the judge’s role in determining whether conduct is aggravated as follows:

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, the operator’s knowledge of the existence of the violation… While an administrative law judge may determine, in his discretion, that some factors are not relevant , or may determine that some factors are much less important than other factors under the circumstance, all of the factors must be taken into consideration and at least noted by the judge.

IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec. 2009).

VIOLATIONS

1. Order No. 8030970

On October 14, 2010 at 10:15 a.m. Inspector David M. Edwards (“Edwards”) issued to Respondent Order No. 8030970. Edwards found:

Accumulations of combustible material consisting of loose coal, loose fine and ground up coal, and coal dust including float coal dust deposited on rock dusted surface was [sic] being permitted to accumulate on the No. 8 Beltline from the belt regulator located at #8-50 crosscut to the belt drive and take-up area located at #8-1 crosscut. The accumulations coming in contact with the belt rollers measured anywhere from 2 to 3 feet in width and 24 inches in dept packed around he roller shaft and bearings were warm to touch. Float coal dust, black in color, was present on the bottom directly under the belt rollers approximately 6 feet in width and on the belt structure and water lines at the cited location. The conveyor belt of the No. 8 Beltline was not properly aligned from crosscut #8-46 to #8-47. The bottom belt was rubbing against the belt structure creating frictional heat which poses a fire hazard. Damaged rollers were present at crosscut #8-23 (Bottom Roller) and #8-3 crosscut (2 Bottom Rollers). Management was engaged in aggravated conduct constituting more than ordinary negligence in that the area was pre-shift and the conditions were not reported or worked on. This violation is an unwarrantable failure to comply with a mandatory standard. This mine has received 137 (75.400) citations over the past 2 years.

Government Exhibit 6.[2] Edwards noted that the risk of injury or illness for this violation was “Reasonably Likely,” “Lost Workdays or Restricted Duty,” “S&S” and would affect 1 person. He further found that Respondent exhibited “High” negligence with respect to this violation.

Respondent took action to terminate the condition on October 14, 2010 at 10:30 p.m. Under “Subsequent Action” Edwards noted:

The operator had miners shoveling on the beltline from approximately 1:00 p.m. to 10:00 p.m. to complete the cleaning and the belt line was rock dusted from the belt drive to the belt regulator at #8-50 crosscut.

Id. On October 18, 2010, Edwards modified the body of the Order with respect to Condition or Practice, adding:

The heavy accumulations were present from #8-36 crosscut extending outby to #8-15 crosscut, a total distance of approximately 2,100 linear feat.

Id.

2. Order No. 8033057

On October 26, 2010 at 10:10 a.m. Inspector James Gropp (“Gropp”) issued Respondent Order No. 8033057. Gropp found:

Loose dry coal, coal dust, including float coal dust, black in color was permitted to accumulate on the active 8 South continuous miner sections on the left side, MMU 032, and the right side, MMU 016, at the following locations:

1) 15A #0 entry from the face at approximately 2+10 for a length of 80 feet outby. The accumulations were 4 to 15 ½ feet wide and were 4 to 15 inches in depth.

2) Intersection of 15A #0 and 8 South #1 at spad 6+94 where the miner had holed 8 South #2 to #1 crosscut allowing accumulations that were 15 ½ feet wide, 4 to 9 inches in depth and 10 feet in length outby the side of the intersection.

3) Intersection of 8 South #2 entry at 6+94 where the miner had holed 8 South #3 to #2 crosscut allowing accumulations 15 ½ feet wide, 4 to 19 inches in depth and 12 feet in length on the outby side of the intersection.

4) Crosscut of 8 South #4 to #3 between 6+94 to 5+75 a distance of approximately 140 feet in length, 15 ½ feet wide and 8 to 12 inches in depth.

5) 8 South #4 entry starting at approximate spad 5+20 for a length of 60 feet in length that was 14 feet in width and 12 inches in depth.

6) 8 South #6 entry starting at approximate spad location 4+15 for a distance of 30 feet inby where the miner head had scaled the right side rib maneuvering around the corner from #5 to #6 creating accumulations that were 12 to 24 inches in depth and ranged from 2 ½ feet to 6 feet in width.

7) 8 South #8 entry at 6+28 where the miner had holed the crosscut #5 to #6 that were 12 to 24 inches in depth and ranged from 6 to 15 ½ feet in width.

The standard 75.400 was cited 139 times at this mine in the last two years. The operator engaged in aggravated conduct constituting more than ordinary negligence in that the mine clean up program was not being followed and permitted accumulations to exist in the active workings of 8 South. This violation is an unwarrantable failure to comply with a mandatory standard

GX-9. Gropp noted that the risk of injury or illness for this violation was “Reasonably Likely,” “Lost Workdays or Restricted Duty,” “S&S” and would affect 10 persons. He further marked that Respondent exhibited “High” negligence with respect to this violation. Respondent took action to terminate the condition on October 26, 2010 at 14:10, Calloway noted:

The accumulations were cleaned and removed from the mine.

Id. On October 27, 2010 at 12:51 p.m., Gropp modified the body of the Order with respect to Condition or Practice, replacing any mention of “032” with “083,” adding:

The wrong MMU number was entered for the 8 South Left side section.

Id.

3. Citation No. 8033058

On October 27, 2010 at 1:30 p.m. Gropp issued Respondent Citation No. 8033058. Gropp found:

An inadequate pre-shift examination was conducted on the midnight shift of 10-26-2010 preceding the oncoming day shift on the 8 South continuous miner sections, left side MMU 083 and right side MMU 016. The hazardous conditions of combustible coal accumulations that existed, including their locations, were not reported and entered into the pre-shift report and no actions were taken to immediately correct the obvious conditions that were noted in the Order No. 8033057.

GX-12. Gropp noted that the risk of injury or illness for this violation was “Reasonably Likely,” “Lost Workdays or Restricted Duty,” “S&S” and would affect 10 persons. He further found that Respondent exhibited “High” negligence with respect to this violation. Respondent took action to terminate the condition on October 27, 2010 at 1:31, Calloway noted:

The hazardous conditions cited were corrected on 10-26-2010 at 1410 hours, therefore the citation is terminated.

Id.

SUMMARY OF THE TESTIMONY

1. Testimony of Inspector David M. Edwards

A. Edwards’ Qualifications and Work History

Edwards worked at MSHA’s St. Clairsville, Ohio Office. (Tr. 15). He has a degree in electromechanical engineering at Belmont Technical College. (Tr. 97). Before joining MSHA, he worked for 18 years in the mining industry, all underground. (Tr. 19-20). From 2000 to 2006 he worked as a foreman at Shoemaker Mine, the mine at issue. (Tr. 21). Edwards’ training as a foreman included fire boss training and his duties included pre-shift examinations. (Tr. 21). In April 2006, Edwards was laid off. (Tr. 22). Edwards joined MSHA on January 7, 2007. (Tr. 15, 22). He had 21 weeks of instruction at the Academy in Beckley, West Virginia. (Tr. 16). He also received on-the-job field training including specialized instruction on fire hazards and combustible accumulations. (Tr. 16). Edwards’ other specialized certifications included foreman’s papers in Ohio and West Virginia and an examiner certification for Consol. (Tr. 19, 21). He was authorized to train underground examiners and certify mine foremen. (Tr. 19).

B. Edwards’ Testimony about Activities Conducted Before the Inspection

Edwards conducted an EO1 inspection on Shoemaker on October 14, 2010. [3] (Tr. 22-23). Edwards arrived at the mine at 7:15 a.m. (Tr. 24-25). Shoemaker has three portals: Golden Ridge, Whittaker, and River. (Tr. 25). Edwards met Terry Wilson, a foreman trainee, at Whittaker. (Tr. 25). Edwards had never met Wilson before and Wilson said it was his first day. Tr. (98-99). Edwards also notified the UMWA representative, Steve Lavenski, who was permitted to travel with the inspector. (Tr. 25).

Edwards testified that in order to prepare for an inspection, an inspector must review uniform mine files, the ventilation plan, the roof control plan, the emergency response plan, the mine-specific safeguards related to injuries in the past caused by transportation, the violation history, and the mines (d) series status. (Tr. 24). He also reviewed the pre-shift examination records for the areas he was going to travel. (Tr. 26, 99). He reviewed notes from the previous (midnight) pre-shift and perhaps even farther back. (Tr. 26). He will not conduct an inspection without reviewing the pre-shift examinations. (Tr. 101). Finally, Edwards filled out the inspection cover sheet (GX-7). (Tr. 32). The cover sheet shows the date of the inspection, the event number for the EO1, the arrival time and the list of records checked. [4] (Tr. 32).

C. Edwards’ Testimony Regarding the Inspection

i. Conditions Observed

Edwards, Wilson, and Lavenski rode inby to do the pre-operational checks to make sure that it was safe to travel. (Tr. 26). En route, Edwards observed the roof condition, rib conditions, tie line, and ventilation. (Tr. 26). The rail jeep could not be parked at 9 Belt so Lavenski took it to 7 North. (Tr. 26-27, 98). Edwards inspected the No. 9 Belt and issued no citations. (Tr. 27- 28).

After inspecting 9 Belt, Edwards and Wilson began to move down 8 Belt. (Tr. 28). The 8 Belt was approximately 5-6,000 feet long. (Tr. 28-29). Edwards reviewed roof conditions, rib conditions, ventilation, accumulations, belt structure, belt rollers, and CO monitors. (Tr. 28). In doing so, he noticed fire hazards. (Tr. 28). After determining a “fire triangle” existed, Edwards issued a withdrawal order (Order No. 8030970, GX-6). (Tr. 31). To have a fire triangle, there must be an accumulation of combustible material, an ignition source, and 20.8% oxygen. (Tr. 96-97). He ordered the belt shut down to be cleaned and realigned. (Tr. 34).

At the hearing, Edwards described each element of the fire triangle present here. First, at intermittent locations from 8-50 to 8-1 along 2,100 feet of the 5,000 foot belt Edwards noticed float coal dust and other accumulations.[5] (Tr. 29, 34, 36, 93, 138). Edwards noted the largest accumulation started at 8-36 crosscut and extended outby, towards the drive, to 8-15 crosscut. [6] (Tr. 37). On cross examination, Edwards conceded that he was not sure of how many accumulations were present. (Tr. 138-140). He believed there were five or six, though he did not write the number down. (Tr. 138-140). Edwards testified to several kinds of accumulations including loose coal, loose fine and ground-up coal, coal dust, and float coal dust. (Tr. 45). He described black float coal dust as an accumulation of combustible material with the consistency of talcum powder. (Tr. 46). Edwards saw the black float coal dust on the belt line, the belt structure, the water line, and under the belt rollers. (Tr. 41-42). He found float coal dust was on the mine surfaces as well, including rock dusted areas. (Tr. 41). Edwards observed that the float coal dust covered most of the width of the entry, including the floor, ribs, and roof. (Tr. 42, 139). He stated that float coal dust as thin as a piece of paper can be an explosion hazard. (Tr. 41). Float coal dust must be mixed with rock dust so that the combination is 80% incombustible material. (Tr. 47). While mixed rock dust and coal dust will vary in color, depending on the components, Edwards noted that black color indicates that it is mostly coal dust. (Tr. 48, 49). However, gray coal dust is still an accumulation. (Tr. 49-50). The only way to know the content of dust was to take a sample. (Tr. 47). Edwards admitted that he did not take any samples. (Tr. 137). Neither Edwards nor Wilson had a sieve. (Tr. 49).

With respect to air quality, Edwards testified that this area had 20.8% oxygen and 0% methane (despite the fact this was a gassy mine on a five-day spot). [7] (Tr. 30).

Finally, Edwards testified to three ignition sources on the belt line: belt rubbing the structure, rollers running in accumulations, and damaged rollers. (Tr. 29-30, 34-35, 37, 39, 42-43, 130). The belt was rubbing structure at 8-46 to 8-47 crosscut. (Tr. 29-30, 34, 42, 130). Upon observing this condition, Edwards shut down the belt. (Tr. 30, 52, 130). The belt rubbing the structure was a violation of 75.1731(b) and, as a result, Edwards issued a citation. (Tr. 30). Edwards issued this as a 104(a) citation, marked as S&S. [8] (Tr. 31). Edwards explained that this condition created frictional heat against the metal parts of the belt structure. (Tr. 42-43). The belt ran so fast that it could cut through metal. (Tr. 43). The belt was warm to the touch, smoking, and smelled of burning rubber. (Tr. 43). The belt structure was hot, not just warm. (Tr. 43). Edwards asserted Wilson also felt the belt was hot. (Tr. 43). To correct this condition, the operator had to train the belt, or move it so it was no longer rubbing. (Tr. 131, 132).

In addition, Edwards observed belt rollers spinning in coal accumulations between 8-36 and 8-15. (Tr. 29, 35, 37, 39). These were the accumulations that concerned him most. (Tr. 139). Edwards testified the accumulations were about as wide as the belt. (Tr. 38). He measured them at about two or three feet deep. (Tr. 38). However, Edward’s notes indicated that the belt was three feet in width and 24 inches in depth. (Tr. 38). These accumulations included wet material. (Tr. 35, 39). However, Edwards noted wet dust can dry out and become combustible. (Tr. 35). Under normal mining operations, if this was allowed to continue, Edwards believed there was a potential for a fire. (Tr. 39). The area was rock-dusted. (Tr. 35- 36). However, float coal dust on top of rock dusted was still an accumulation. (Tr. 35-36).

Finally, Edwards observed damaged rollers, a violation of §75.1731(a). (Tr. 30, 35, 43). There were two damaged bottom rollers at the 8-3 crosscut and one at the 8-23 crosscut. (Tr. 43-44). When the rollers break in two, inspectors call them “pizza cutters,” and all of the broken rollers Edwards found here were pizza cutters. (Tr. 45). He explained that the metal from the roller cuts into the metal shafts and creates heat. (Tr. 30, 45). He considered this a fire hazard in light of the accumulations and the 20.8% oxygen atmosphere. (Tr. 45). He testified that to correct these problems the belt must be shut down and the rollers changed out. (Tr. 131).

Edwards contended this was “the worst belt line” he had ever seen. (Tr. 50, 126-127, 165). Edwards maintained this opinion on cross examination, though he admitted he had only taken five measurements. (Tr. 139). He claims that Wilson also said this was the worst belt he had seen at Consol. (Tr. 40).

ii. The Meaning of “Warm to the Touch” According to Edwards

According to Edwards, warm to the touch was not a term with a specific definition or temperature; it just means warmer than under normal conditions. (Tr. 117- 119). Edwards believed warm to the touch is serious; it indicates a potential ignition source. (Tr. 118, 122). Under normal mining conditions, something is wrong and will get worse. (Tr. 117, 121, 122). Similarly, Edwards did not know what temperature hot to the touch would be. (Tr. 125). The belt rubbing the structure was hot, meaning it would burn his hand. (Tr. 121). Edwards did not know how hot a roller must be or how long it must run to start a fire. (Tr. 118, 122). Edwards did not believe the exact temperature was significant; it was just important that a belt was not supposed to be warmer than room temperature. (Tr. 170-171).

Neither Edwards nor Wilson had a heat gun. (Tr. 40). He has never carried a heat gun as an AR nor has he asked an operator to test the heat of structure. (Tr. 125). Edwards took no objective tests of the frictional heat source; he just used his hand. (Tr. 132). He noted that there was smoky hot rubber. (Tr. 119). On cross examination, Edwards admitted that he was not aware of any belt fires at Shoemaker mine due to accumulations. (Tr. 142).

iii. After The Issuance of Order No. 8030970

Edwards notified Wilson that the belt or section would be down. (Tr. 51, 128-129, 160). Edwards believed Wilson informed management. (Tr. 52). Edwards believes he notified Tex Raider (“Raider”), a belt coordinator. (Tr. 52-53, 130). He did not know what time he provided notice. (Tr. 128-129). Edwards told Raider that the belt needed to be shut down and Raider promised to do so. (Tr. 53, 135). Respondent had to eliminate the ignition sources, change the rollers, and clean the accumulations. (Tr. 53, 135). The belt was shut down for an hour or an hour and a half for realignment. (Tr. 141).

Edwards went home. (Tr. 54). He testified that Afternoon Foreman Eric Turner (“Turner”) called him at 10:00 p.m. (Tr. 55, 57). Turner stated the belt was trained, the rollers were changed, and the ignition sources corrected. (Tr. 56). Edwards went back to the mine (Tr. 56). All of the conditions were corrected. (Tr. 57). The belt was not running while he was underground. (Tr. 57). Edwards did not believe it was running while the citations were being abated. (Tr. 57). Edwards testified that Order No. 8030970 at page 3 states that the operator shoveled and rock dusted the belt line for approximately 9 hours. (Tr. 57-58).

D. Edwards’ Testimony on the Negligence Finding in Order No. 8030970

Edwards testified that the operator exhibited high negligence. (Tr. 142). Edwards made this determination because the pre-shift exam was inadequate and the conditions were obvious and extensive. Edwards referred to the last pre-shift examination report of the No. 8 Belt before his inspection. (GX-8, Tr. 66). The examiner was an agent of the operator and responsible for preventing accumulations of combustible material in active workings. (Tr. 64-65, 142). The examiner inspected this area and only noted that the area needed to be swept. (Tr. 143-144). Edwards also referred to Citation No. 8030971. [9] (GX-9, Tr. 66, 67). The citation was issued for an inadequate examination of the No. 8 Belt. (Tr. 67, 68). Edwards noted that the violation was final and the penalty, $9,100.00, had been paid without modification. (Tr. 68). Edwards believed the cited condition did not occur after this pre-shift examination. (Tr. 72, 143, 169). Based on his experience, Edwards knew that the accumulations could not have happened that quickly. (Tr. 72). Beyond high negligence, Edwards believed that the failure to take, or even mark the need for, corrective action was an unwarrantable failure. (Tr. 64, 70-71).

On cross-examination Edwards discussed the fact that there were some notations on the pre-shift record. Entry No. 4 for the pre-shift examination on October 14, 2010 noted 8-15 to 8-36 needed to be swept. (Tr. 151-152). Edwards marked that this condition was not reported in Order No. 8020970 because he believed that this notation was a report of a condition, just not the condition he observed. (Tr. 65, 152). He believed that the fact that the area where he found the heaviest accumulations only stated “needs swept” and listed no corrective action was important. (Tr. 65, 70-71). Edwards believed that if an area needs swept, it does not mean anything beyond float coal dust needs to be swept. (Tr. 144, 168). These accumulations were obvious, extensive and existed for some time. (Tr. 65). Edwards testified that the existence of these accumulations constituted an unwarrantable failure. (Tr. 65).

Edwards conceded that he did not look at any of the other pre-shift examinations beyond October 14, 2010. (Tr. 143-144). At hearing, Edwards reviewed several other pre-shift examinations, including those that stated there were areas that needed to be swept, areas where belt was rubbing the structure, areas with accumulations under the rollers, and broken rollers. (Tr. 147-149). Edwards admitted that he did not talk to the pre-shift examiner, Wilhem, who was not present. (Tr. 145).

In addition to the pre-shift examination evidence Edwards reviewed a MSHA record of the violation history for the Shoemaker during the previous two years. (GX-5, Tr. 67-68). Edwards testified that this history showed Shoemaker had 137 citations for §75.400 over the last two years. [10] (GX-4, 5 p. 61-71; Tr. 69). Edwards had issued a §75.400 violation at Shoemaker in the past. (Tr. 70). When doing so, he spoke with management about corrective actions, the conditions found, and things to improve upon. (Tr. 70). Edwards was not sure as to what mine location the 137 part §75.400 citations were issued or if it was for the same or similar condition cited here. (Tr. 159-160). However, Edwards knew the mine had a significant history of violating §75.400. (Tr. 165-166).

Edwards felt Respondent’s conduct was aggravated because of Aracoma and the other history of death from fires on belt lines. [11] (Tr. 155). On cross examination, Edwards admitted that this situation was not like Aracoma, but stated that he was trying to prevent such a situation from occurring. (Tr. 156-157). Edwards also believed the conduct was aggravated because of the inadequate pre-shift reports, the inadequate examinations, and the condition was obvious and extensive. (Tr. 158). Edwards thought the pre-shift examiner downplayed the conditions. (Tr. 158). On cross examination, Edwards conceded that things can change in a matter of seconds in a coal mine and he was uncertain about how long the condition was obvious. (Tr. 159). He did not ask anyone how long the condition existed. (Tr. 159).

E. Edwards’ Testimony on the Gravity of Order No. 8030970

Edwards testified that the minimal gravity of Order No. 8030970 was lost workdays or restricted duty. (Tr. 58-59). It could have been worse. (Tr. 58-59). He believed that miners could have been exposed to smoke inhalation or burns resulting in permanently disabling or fatal injuries. (Tr. 58). Edwards found that this was reasonably likely to occur because the fire triangle was present. (Tr. 59). Further, he believed the specific hazard created was fire on the belt line or an explosion. (Tr. 59-60).

According to Edwards, the likelihood of the cited danger was increased because there were three equally important ignition sources: belt rubbing the structures, damaged rollers, and accumulations of coal turning in the rollers. (Tr. 133, 164-165). Belt rubbing the structure was an ignition source because friction causes the structure to get hot and the roller to warm. (Tr. 62, 133-134). On cross examination, Edwards admitted that it was possible for a belt to go out of alignment in a matter of seconds. (Tr. 132). He admitted that even if the belt was misaligned, there was a CO system and water sprays on the belt. (Tr. 132). He also testified that there was no methane detected and that the belt was fire resistant. (Tr. 133).

Edwards stated rollers packed and spinning in accumulations were ignition sources because the coal acts as a restriction on the roller turning, causing frictional heat. (Tr. 61). Edwards further testified that broken rollers are an ignition source because uneven rolling can cause frictional heat. (Tr. 61-62). Also, damages rollers can break in two and cut into the metal causing arcing and sparking. (Tr. 61-62, 125-126). Here, Edwards touched the broken bearings and rollers and they were warm. (Tr. 62, 126). He did not see any pizza cutter rollers or sparks but he heard damaged rollers. (Tr. 126).

Edwards noted that one person, the examiner, would be affected by this condition. (Tr. 63-64). Belt lines might have a shoveler though Edwards did not see one here. (Tr. 64).

Edwards discussed why he found this violation to be S&S. With respect to Order No. 8030970, Edwards testified that Respondent violated §75.400. (Tr. 152). He believed the hazard in this case was the risk of fire on the belt line. (Tr. 152). Although no methane was present, he testified that Shoemaker was a gassy mine on a five-day spot. (Tr. 153, 169). Methane can be liberated from the ribs, roof, the coal on the beltline or the coal in a stockpile at the surface. (Tr. 169). If there was a fire on the belt line, the examiner would be exposed. (Tr. 153-154). Edwards testified that the reasonably likely injury would be smoke inhalation, or burns, resulting in lost workdays, restricted duty, and possibily permanently disabling or fatal injury. (Tr. 153-154). Finally, Edwards believed Respondent exhibited negligence. (Tr. 154). According to Edwards, if all five criteria are met then a violation was S&S. (Tr. 154). This was true even though Edwards never heard of a belt fire at Shoemaker Mine. (Tr. 154-155).

F. Edwards’ Testimony Rejecting Possible Mitigating Factors

Edwards conceded that some of the accumulations on the mine bottom were damp to wet. (GX-7, page 19, Tr. 63, 122-123, 134). However, he did not feel this was a mitigating factor because wet coal will dry out under normal mining conditions and become combustible. (Tr. 63, 122-124). The belt will run and the air will dry out the coal. (Tr. 123, 166). The fact that there was a working CO system and water sprays did not change his opinion that this was an S&S violation. (Tr. 166-167). He testified that the CO monitors will only note when there is already a fire, not the danger of a fire. (Tr. 167). He further noted the water sprays were designed to prevent coal dust suspension not to suppress fires. (Tr. 168). He also opined that a fire resistant belt does not mean flammable material was not a hazard. (Tr. 167).

G. Edwards’ Testimony Regarding the Photographs

Neither Edwards nor Wilson took photographs; they had no cameras. (Tr. 72-73). Respondent provided pictures that were allegedly taken within sixty minutes of the writing of Order No. 8030790. [12] (Tr. 73). Respondent submitted 19 photographs numbered 12-30 and Edwards discussed each one. (Tr. 74-93). Edwards testified that the photographs showed accumulations of coal dust. (Tr. 75-93). He also observed that most of the photographs did not show the amount of accumulation that was present when he issued Order No. 8030970. (Tr. 75-92). In addition, Edwards noted that one photograph (#23) showed strands of the belt breaking off. (Tr. 86-87). He claimed that this was an indication of belt rubbing structure. (Tr. 86-87). He described how the structure becomes ragged and will slice the belt. (Tr. 87). However, Edwards also noted that the photographs were often dark in the background and overly bright where the flash or photographer’s head lamp cast light. (Tr. 75-93).

In reviewing the photographs, Edwards often testified that there was no indication that the areas shown were at Shoemaker mine; however, he had no reason to believe it was a different mine. (Tr. 74-93, 161). Respondent’s McElroy and Shoemaker mines look identical. (Tr. 161-162). Edwards was not present when the photos were taken, so he did not know when they were taken or who took them. (Tr. 162).

II. Testimony of James Gropp

A. Qualifications and Work History

Gropp had twenty years of experience before going to MSHA, fourteen years underground, all with Respondent. (Tr. 175-176, 178). He received a Bachelor’s degree in Mining Engineering from the University of Pittsburgh in 1987. (Tr. 174). As an employee for Respondent, Gropp acted as an industrial engineer, a section foreman, a project engineer, a shift foreman, a mine engineer, and a track and construction foreman. (Tr. 177). In those capacities, Gropp performed pre-shift examinations of the active workings. (Tr. 178-189). He had been employed by MSHA since April 2007. (Tr. 173). MSHA provided him with specialized training, including on-the-job training with journeymen inspectors and 21 weeks of training at the Academy. (Tr. 174). The 21 weeks in Beckley included classes on law, regulation, policy; citation and order writing; and all the different aspects of Parts 75 and 48. (Tr. 174).

B. Gropp’s Testimony about Activities Conducted before the Inspection

Gropp conducted an E01 inspection of Shoemaker on October 26, 2010. (Tr. 180). He was also at Shoemaker to run a noise survey on an MMU section. (Tr. 181). That day he calibrated his instruments, got his inspection gear, drove to the mine, and arrived after 7:00 a.m. (Tr. 181). Upon arrival, he reviewed the pre-shift book, on-shift books, and the weekly permissibility books. (Tr. 182).

C. Gropp’s Testimony Regarding the Inspection

Upon entering the mine, Gropp did not immediately begin the survey; instead, he began an imminent danger run on all areas inby the tailpiece. (Tr. 182-183). This was done to ensure that nothing would result in an injury while he was there. (Tr. 183). He testified that this was standard procedure. (Tr. 183). He began around 9:00 a.m. (Tr. 183). The company escort was Gary Rose (“Rose”) along with Craig Norton (“Norton”), a foreman trainee, and the union representative was John Miller. (Tr. 183). Upon arriving at the section he stopped at the right-side power center, dropped off his gear, and then went towards the face. (Tr. 184).

Gropp noticed an accumulation of coal just inby the power center. (Tr. 184). Then he traveled up the right side face of the No. 8 entry and saw a second accumulation of coal. (Tr. 184). He then informed Norton this was a violation. (Tr. 184). He ran the faces from 8 to 5 to 4. (Tr. 184). As he went from 4 to 3, he saw more accumulations and he told Norton it was bad. (Tr. 184). Then he examined 2, 1, and 0 entries of the 15D section. (Tr. 184). He found more accumulations and issued Order No. 8033057. (Tr. 184). Upon leaving the faces, Gropp entered the No. 4 entry and saw more accumulations where a piggyback loader was dumping. (Tr. 185). This coal was 60 feet from the intersection of the face outby. (Tr. 185). Gropp added this to the accumulation order. (Tr. 185).

Gropp testified regarding a mine map of Shoemaker. (GX-15, Tr. 187-189). The map included some of the areas Gropp inspected (it did not include the area where one accumulation was found). (Tr. 187-188). Gropp marked the map 1-7 to show the accumulations he found. (Tr. 188, 197). The accumulations here were in the active workings of 8 South. (Tr. 199-200). There were some pieces of equipment on top of the accumulations observed including a bolter by the face of the 15A 0 entry. (Tr. 200). The first accumulation (sixth in the Order) was inby the tailpiece in area 6. (Tr. 190). This accumulation was not on the map; it was outby. (Tr. 190). This was a heavily traveled area and the accumulation was on the right side of the entry. (Tr. 190). Gropp believed this accumulation occurred when a miner cut the rib while trying to maneuver in a tight area with the bits on. (Tr. 190). The accumulation was 30 feet in length, 12 to 24 inches in depth, and two and a half to six feet wide. [13] (Tr. 190). The accumulation was made of coal. (Tr. 191). Gropp testified that he knew this because it was black and he could see where the rib was cut. (Tr. 191). He believed the operator should have scooped coal and put it on the belt. (Tr. 192).

The second accumulation (seventh in Order No. 8033057) was near the face of the No. 8 entry. (Tr. 192). The accumulation spanned 6 plus 28. (Tr. 193). This accumulation resulted from the miner holing through crosscut 7 to 8. (Tr. 193). When a miner goes from a crosscut to an entry, it is called holing through. (Tr. 192). This process causes coal to fall outside of the crosscut. (Tr. 192). Holing through is a normal part of the mining process and result in accumulations of coal and stone. (Tr. 193). There was a fan on top of these accumulations so Respondent could not have loaded them up. (Tr. 192-193). They were as wide as the entry or from to six to 15 and a half feet, 12 to 24 inches in depth. (Tr. 193). The operator should clean accumulations before mining 40 feet and did not do so here. (Tr. 193).

The next coal accumulation (listed fourth in Order No. 8033057) was in the crosscut 4 to 3 and completely covered the crosscut. (Tr. 193-194). The accumulation went from rib to rib and was 140 feet long. (Tr. 194). The coal was 8 to 12 inches in depth and fifteen and a half feet wide. (Tr. 194). Gropp had to walk over the accumulation as would anyone conducting a pre-shift. (Tr. 194). At this location Gropp told Respondent he would issue an order. (Tr. 247-248).

The next accumulation (listed third in Order No. 8033057) was also from holing into an entry from a crosscut at approximately 6 plus 94. (Tr. 194-195). The coal fell inby and outby the crosscut. (Tr. 194). The coal had not been cleaned. (Tr. 194). The accumulation was 15 and a half feet wide, 4 to 18 inches in depth, and 12 feet long on the outby side. (Tr. 195).

The next accumulation (listed second in Order No. 8033057) was in the No. 1 entry 8 south. (Tr. 195). This accumulation was also caused by holing in to an entry. (Tr. 195). It was 15 and a half feet wide, four to nine inches in depth, and 10 feet long. (Tr. 195).

The next accumulation (listed first in Order No. 8033057) was at the 15 A 0 entry. (Tr. 195-196, 243). The operator had just taken the miner out and never pushed the coal back to the face or loaded it out. (Tr. 196, 243-244). Gropp believed the miner was pulled out on that shift, but it could have been earlier. (Tr. 244-245). Gropp did not know if the scoop was down. (Tr. 244-245). Gropp believed Respondent was cutting without a loader because it was being fixed. (Tr. 196, 245). There was 80 feet of coal from the face outby, the accumulation was four to 15 and a half feet wide and four to 15 inches deep. (Tr. 196, 244). Gropp believed a drag bar made this accumulation. (Tr. 196-197). Occasionally coal will fall onto the bottom when it is being loaded or moved. (Tr. 196-197). Shuttle cars have a drag bar to keep the roads smooth. (Tr. 196-197). On cross examination, Gropp conceded that some of this coal could have been added to after the pre-shift examination. (Tr. 265).

The next accumulation (listed fifth in Order No. 8033057) was outby the face of No. 4 where Respondent had the loader piggybacked. (Tr. 197). The accumulation stretched from 5 plus 20 for 50 feet. (Tr. 197). The accumulation was 14 feet wide and 12 inches deep. (Tr. 197). Gropp believes the drag bar was involved here and that coal was dragged off shuttle cars by cables on the top. [14] (Tr. 197, 254-255). However, it was possible that coal fell when the shuttle car hit a rut. (Tr. 255-256). Gropp did not know what the bottom was made of here. (Tr. 254). If the bottom here were clay, whether it had ruts would depend on the moisture. (Tr. 254). He did not know if the bottom was wet was because he could not see through the coal. (Tr. 254).

At these areas, Gropp saw various kinds of coal accumulations. (Tr. 199). The difference between loose coal, loose fine and ground-up coal, coal dust, and float coal dust is size, and they are all combustible. (Tr. 199). Neither Gropp nor anyone else had a sieve. (Tr. 199-200). However, he knew float coal dust was present because miners produce it. (Tr. 199). Further, coal on the tram road would be pulverized by equipment. (Tr. 199). Black float coal dust means there was fresh coal that has never been rock-dusted. (Tr. 201-202). Rock dust is white and a mix of coal and rock dust is gray. (Tr. 202). Gropp did not take any photographs because he did not have a camera. (Tr. 203). He did not believe anyone else had one. (Tr. 203).

Gropp knew that these accumulations were not the result of sloughage because they spanned the entire entry from rib to rib. (Tr. 202). Sloughage is usually on the side by the rib. (Tr. 202). Accumulations 2, 3, and 7 resulted from holing into the crosscut. (Tr. 250). This was not sloughage. (Tr. 250-25)1. However, the miner often hits the ribs and causes sloughage. (Tr. 251). This was what happened at accumulation No. 6. (Tr. 251). This probably happens more than once in a given shift. (Tr. 251). With respect to accumulation Nos. 3 and 4, Gropp did not see a roof bolting machine correcting sloughage from the roof. (Tr. 251-252). He did not believe the material falling here was slate. (Tr. 252-253). Gropp was familiar with the slate at Shoemaker. (Tr. 252). The slate was usually white to gray in color though he has seen it look black. (Tr. 252). The accumulation was coal with perhaps a little stone. (Tr. 252-253). However, Gropp conceded that he took no samples at any of the areas of accumulation. (Tr. 258). He did not know if anyone took samples. (Tr. 259).

Gropp’s impression of the working section was that there were about 400 feet of total, obvious, and extensive accumulations. (Tr. 204). The accumulations felt like walking on sand. (Tr. 204). A majority of the accumulations were on the left side, although Citation No. 8033058 was written for both sides. (Tr. 233). Two examiners walked the area without noting anything. (Tr. 233). Gropp never noticed anyone cleaning the accumulations and was not told why Respondent was not doing so. (Tr. 245, 280-281). Gropp did not write the citation for inadequate exam on October 26 because there were two people doing exams and he wrote the Order for both sides. (Tr. 275). During the investigation, Gropp did not observe anyone trying to clean. (Tr. 203). Gropp issued Order No. 8033057 (GX-10) at 10:10 a.m. for violation of §75.400. (Tr. 185, 187).

Respondent terminated the Order using three shuttle cars, two loaders, a scoop and people using shovels. (Tr. 205). Ten people cleaned the area in about four hours. (Tr. 205).

D. Gropp’s Testimony on the Length of Time the Condition Existed, the Pre-shift Examinations and Clean-Up Plan

Accumulation No. 1 existed anywhere from one to three shifts. (Tr. 211). Gropp hypothesized the time based of the rate of mining (between 32 and 36 feet per day) and the distance between the accumulations and the face. (Tr. 256-267). The accumulation could not have occurred during the inspection because the left side had not started mining. (Tr. 212).

Accumulation No. 2 existed for one to two days. (Tr. 212-213). The accumulation could not have occurred during the inspection because the left side had not started mining. (Tr. 213).

Accumulation No. 3 occurred before No. 2 and so existed one to three days. (Tr. 213, 264). The accumulation could not have occurred during the inspection because the left side had not started mining. (Tr. 213).

Accumulation No. 4 could have existed one to two shifts. (Tr. 213-214, 264). The coal was there because it was getting drug off the top of the shuttle cars. (Tr. 213-214, 264). Gropp saw shuttles but did not see them in the accumulations because the left side was not producing. (Tr. 264). The spill could not have occurred during the inspection for that reason. (Tr. 214).

Accumulation No. 5 could have existed longer because of the way Respondent set up the miner with the piggyback loader. (Tr. 214). When Respondent ran the shuttle car from the face and dumped the coal on the ground, it covered up the miner cable. (Tr. 214). The accumulations were likely there the whole time Respondent mined the crosscut from 4 to 3 and across the 15A. (Tr. 214). The accumulations could have been there one to three shifts or one to three days. (Tr. 214). The time would depend on whether the accumulations had ever been cleaned. (Tr. 214, 215). The accumulation could not have occurred during the inspection because the left side had not started mining. (Tr. 215). The left side did not have shuttles running at the time. (Tr. 254).

Accumulation No. 6 existed a day. (Tr. 215). Gropp learned this from the dayshift foreman on the right side, Yorty. (Tr. 215).

No. 7 existed for one or two shifts, a day at most. (Tr. 215). Respondent holed crosscut 7 to 8 and turned up at that point. (Tr. 215-216).

Gropp admitted that some of the accumulations may have occurred after the last pre-shift examination and before the inspection, notably 1, 4, and 5. (Tr. 224-225). All of No. 1 could have occurred after the last pre-shift if Respondent had mined the entire area in 3 hours. (Tr. 225). However, Nos. 4 and 5 were too extensive to have been completely deposited in that time. (Tr. 225). Gropp did not believe Nos. 2, 3, 6, and 7 occurred since the last pre-shift. (Tr. 225).

Gropp believed that the examiner would have seen the seven accumulations. (Tr. 225). However, he did not ask anyone how the coal got there as he did not think it was important. (Tr. 256). The exception was accumulation No. 6, where he spoke to the foreman and learned that the bits on a miner had caused the accumulation a day before on dayshift. (Tr. 257-258).

Gropp referred to a pre-shift and on-shift examination report for 8 south left and right for 10-26 on the midnight shift. [15] (GX-14, Tr. 227-228). Nothing in the report stated anything about accumulations on the left side. (Tr. 228-229). Gropp did not talk to the pre-shift examiner, although he had in the past. (Tr. 266). However, on cross examination, Gropp admitted that the on-shift report stated that No. 6 cross 7, cross 8, last open needed dusted. (Tr. 269-270). The report stated that this condition was corrected. (Tr. 269-270). However, Gropp felt this condition was not part of the violation. (Tr. 270). The report just stated the area needed to be dusted, not that there were accumulations. (Tr. 270). Another on-shift report notation dealt wtih four areas (1 was 4 entry, 2 was feeder, 3 was tail, and 4 was 0 entry). (Tr. 271). This was the section Gropp was on. (Tr. 272). Gropp did not look at this on-shift before the hearing. (Tr. 272-273). The report stated there were coal accumulations in all of these areas and that the problem was corrected. (Tr. 272). Gropp testified that if the problems were corrected, they must have occurred again. (Tr. 272). However, even if people had worked on the area, Gropp would not change his evaluation because of the amount of accumulations. (Tr. 278-279).

As a result of the observations above, Gropp also issued Citation No. 8033058 (GX-12), for inadequate pre-shift. (Tr. 226, 231). Gropp referred to the notes that substantiate the citation during his testimony. (GX-13, Tr. 226-227). Citation No. 8033058 was not issued until October 27, 2010, because the area cited was supposed to be examined by two different people. (Tr. 230). Gropp did not feel comfortable issuing a citation on the October 26 as a result of not knowing who did what at the time. (Tr. 230). He changed his mind after talking with his supervisor and realizing that something should have been on the books. (Tr. 227, 230). Two full mining crews and two other people worked on the section following the exam. (Tr. 233). The examiner reviewed these hazardous conditions and did not report them. (Tr. 233). The conditions existed for a period of time, an exam occurred, and the condition was not corrected. (Tr. 275-276).

Gropp also testified that the mine had been cited 139 times for §75.400 in the last two years. (Tr. 223). Gropp learned this number from a computer program before issuance of Order No. 8033057. (Tr. 224). He also recalled from the file review that this violation was common. (Tr. 224). Gropp conceded that these citations were not issued in the same location. (Tr. 266-267). He also conceded that §75.400 is one of the top five violations in the country. (Tr. 277).

Gropp was familiar with the Shoemaker clean-up program. (RX-9; Tr. 216-217, 245). When Gropp worked at Shoemaker the cleanup sequence was as follows: the section was mined for 40 feet and the loader would clean up, then Respondent would apply rock dust, and then this would be repeated for the 300-foot entry. (Tr. 248). Once a face was finished, the miner operator would back the miner up the length of the cut, approximately 30 feet with the pan up in the air, then he would drop the pan and push the coal back up to the face. (Tr. 248-249). Then, it would be loaded out with a loader into shuttle cars. (Tr. 248-249). If the loader was down, he would use the miner because it also has a shovel. (Tr. 248-249). If the miner had already been taken out before the loader went down, the miner would be brought back in. (Tr. 249-250). The miner was a large piece of equipment though Gropp did not believe it was very slow. (Tr. 250).

Respondent did not conform to the clean-up plan with respect to the following sections: No. 1 stated that all coal spills will be cleaned up. (Tr. 217, 221). No. 2 stated, “after dusting, loader needs to be backed up 50 feet and both ribs pushed up to miner.” (Tr. 221). Instead of the loader, a miner could be used. (Tr. 221-222). No. 5 stated, “Coal spillage and accumulations near the fan will be cleaned up as mining progresses.” (Tr. 217-218, 222). No. 6 stated, “Return entries should be mined 30 feet passed center. The miner will be backed up 30 feet and push coal into the face past the last channel and loaded out.” (Tr. 218). No. 9 stated, “areas that cannot be cleaned with scoop or loader will be shoveled out and cleaned up.” (Tr. 217, 222). No. 10 stated, “No. 8 south and 8 north mains will be cleaned in the same manner as listed above.” [16] (Tr. 217). No. 8 stated, “After holing to crosscut 1 to 2, No. 2 entry will be scooped starting two breaks from the face on both sides. Any cables in the entry need to be hung so they will not be damaged.” (Tr. 219). No. 14 stated, “At any time the loader is down and running into shuttle cars mine 40 feet back miner up and clean ribs and coal spilled from the shuttle car then dust before mining continues after the entry or crosscut is finished the entire area is to be scooped then dusted.” (Tr. 219). According to Gropp, these failures were a point in determining negligence because the conditions existed in the active workings of the mine and should have gotten attention. (Tr. 234).

Gropp found Order No. 8033057 to be an unwarrantable failure because the examiner would follow the same route as his inspection. (Tr. 210-211). Also, the accumulations were obvious and extensive. (Tr. 210-211, 266). Gropp believed the accumulations existed between one and three days total. (Tr. 211). Gropp believed that Respondent did nothing to correct the problem here. (Tr. 266). He further stated that the number of people in the area affects the unwarrantable failure finding. (Tr. 223). 8 South was well-traveled because it was the future of the mine. (Tr. 223). The section foreman, the CM coordinator, the mine foreman, and upper management would all be interested in this spot. (Tr. 223).

E. Gropp’s Testimony on the Gravity of Order 8033057 and Citation No. 8033058

Gropp evaluated the gravity of Order No. 8033057 as reasonably likely, lost workdays or restricted duty, S&S and ten persons affected. (Tr. 205). Gropp evaluated Order No. 80332057 as reasonably likely to result in an injury because: combustible material was present; there was an ignition source of electrical cables in and on the coal; there was a bolter on top of the accumulations; and the mine liberated methane and was on a five day spot inspection. (Tr. 206). Gropp testified that the specific hazard created by the condition was an ignition of combustible material or a propagation of an explosion if there was a face ignition or explosion. (Tr. 205). He believed that if an ignition were to occur, at a minimum, there would be smoke inhalation and respiratory damage. (Tr. 205-206, 232). He also felt a miner could suffer crushing internal injuries from explosive forces. (Tr. 206, 232). He believed that these sorts of injuries would at least result in lost workdays or restricted duty. (Tr. 206).

With respect to likelihood Gropp found many ignition sources. Shoemaker has a history of cable violations. (Tr. 207). At the time of issuance, Respondent had five citations in the previous month for openings in cables. (Tr. 207). Gropp was not sure if the cables he saw that day were damaged; he did not check them or issue a citation for them. (Tr. 208, 259). It would not have mattered to him if the cables were not damaged; cables can be damaged and are damaged regularly. (Tr. 208, 259-261, 279). Cables can be damaged by wire mesh, by stones, or by equipment. (Tr. 262). Numerous hazards result from cables sitting in a coal pile, including heat. (Tr. 279). Also, there were other ignition sources. (Tr. 261). Methane was an ignition source when the face was actively being mined and Shoemaker was on a five-day spot. (Tr. 207-208, 279-280). Gropp testified that, given the accumulations here, if there was a methane ignition it could put fine coal dust into the air and propagate an explosion. (Tr. 280). However, he never heard of a face ignition propagating at Shoemaker. (Tr. 281). The shuttle car with a cable on top, the bolter cable on top of the accumulations in 15A, and the fan cable on right side of No. 7 were also ignition sources. (Tr. 261). However, Gropp did not examine or issue any citations with respect to this equipment. (Tr. 261).

Gropp believed ten people would be affected because there were ten people inby the violation where the air would travel. (Tr. 208, 273). Gropp wrote the citation as affecting ten people because there were violations on both air splits. (Tr. 277-278). The miner was operating on the right with an operator, two bolters, a utility man, and a loader operator. (Tr. 208, 273). On the left there were three people hanging curtains and two bolters. (Tr. 208-209, 273).

Gropp testified that Citation No. 8033058 (GX-12) was an S&S violation for the same reasons as Order No. 8033057. (Tr. 231-232). There were accumulations of combustible material; an ignition source from the cables and methane; and, people affected with no action taken to correct the problem. (Tr. 232). Also, an examination was made but the violations were still present, there were accumulations, there were cables, and the mine was on a five day spot. (Tr. 274-275).

III. Gary Rose

A. Rose’s Qualifications and Work History

Rose graduated from high school and had no further education. (Tr. 283). He had assistant foreman certifications, MSHA training cards, an EMT certification, and a dust certification. (Tr. 283). He worked at Shoemaker as a Section Foreman. (Tr. 283-284). Before Shoemaker, he worked two years at another mine as a roof bolter, miner operator, and shuttle car operator. (Tr. 284). At the time of the citation, he was a CONSOL safety inspector. (Tr. 284).

B. Rose’s Testimony Regarding Order No. 8030970

Rose was familiar with Order No. 8030970. (Tr. 389). He learned that the Order had been issued when he went to work on the afternoon shift. (Tr. 389). He did not know when the Order was issued. (Tr. 390). He was told by The Safety Department to go to No. 8 Belt and take pictures. (Tr. 389-390). He took the photos contained in RX-3. (Tr. 389). Rose did not have a copy of the Order or know where the violations were found, so he tried to take pictures of areas that may have been violations. (Tr. 391, 410). Rose took the photographs between 4:30 and 5:30 on the same day the violation was issued. (Tr. 391-392, 410). Rose testified that the photographs showed that the cited areas were muddy and well rock-dusted. (Tr. 392-409). He testified that the belt was 5,200 feet long and was wet for its whole distance. (Tr. 396-397). In addition, he believed the photographs indicated that there were no significant accumulations of coal dust. (Tr. 392-409). With respect to photograph #23, Rose testified that the two strings hanging down from the belt were normal and not a hazardous condition. (Tr. 403).

No one traveled with Rose when he took the photographs. (Tr. 409). Rose did not take any notes or sample with the photographs. (Tr. 409-410). While he was taking photos Rose never observed anyone working on the belt. (Tr. 402). Rose stated that the belt was running. (Tr. 402).

C. Rose’s Testimony Regarding the Accumulations cited in Order No. 8033057

Rose was familiar with Order No. 8033057, as he was with Gropp when it was issued. (Tr. 284-285). The inspection began where the No. 7 was marked on the map. (Tr. 285). They then made their way across the faces and ended up at No. 1. (Tr. 286).

At No. 1, the last place the parties visited, the miner pulled out. (Tr. 286-287). Respondent was done mining and had re-hung the curtain. (Tr. 286-287). Rose did not know when the miner had moved out. (Tr. 287). He conceded that Respondent had not cleaned up 40 feet of accumulation. (Tr. 286-287). When a miner pulls out of an area the proper protocol was for the scoop to clean up. (Tr. 288). The operator should then push everything up to the face and rock dust. (Tr. 288). If the scoop was down, the loader was used, and if the loader was down, the miner must be used. (Tr. 288-289, 304-305). Rose testified that both pieces of equipment were down here. (Tr. 289). As a result, dusting would have been done by hand instead of with a loader. (Tr. 305-306, 315). No one was rock dusting by hand here, but Rose testified that within 40 feet of the face, rock dusting was not required. (Tr. 315). Unlike Gropp, Rose saw no accumulation 80 feet outby, four to 15 feet wide, and four to 15 inches deep. (Tr. 287). Rose did not measure and did not recall Gropp doing so. (Tr. 287). Rose measured by counting roof straps, which were spaced four feet apart. (Tr. 288). Rose did not know how long it would take to fix the scoop. (Tr. 289). It can take 20-30 minutes to bring the miner back. (Tr. 289, 305). Rose did not recall Gropp asking why the area was not clean. Tr. 290.

No. 2 was at the intersection of 15A number 0 and 8 south 1 at spad 694. (Tr. 290). Rose did not see Gropp or Miller take any measurements here. (Tr. 290-291). The bottom was muddy clay with ruts formed in it. (Tr. 291). Also, there was some sloughage from equipment hitting the rib. [17] (Tr. 291).

No. 3 and 4 dealt with areas being center bolted. (Tr. 292). Mesh was being placed because the top was bad and needed more support as a precaution. (Tr. 292-293, 307-308). At the time of the inspection the equipment was there though Respondent was not putting the mesh up. (Tr. 293, 309). Rose was not aware if the miners were bolting on the same shift as the inspection; it could have been on the last shift. (Tr. 309-310). The falling rocks were black or green and slimy. (Tr. 293). None of the rock was touching the ribs. (Tr. 294). Rose did not agree with Gropp that the accumulations were all the way across the entry. (Tr. 294-295). The accumulation was stone with a little coal mixed in. (Tr. 295, 311). Rose did not recall Gropp taking measurements in No. 3 or No. 4 and he did not take any. (Tr. 297, 311).

No. 5 was at 8 south 4 entry or spad 5 plus 20. (Tr. 297). Rose did not recall an accumulation there. (Tr. 297). Rose was not with Gropp at this location. (Tr. 304).

No. 6 was a muddy tram road with a buggy sitting in the entry. (Tr. 297). There was a very large puddle of water in the area. (Tr. 297). Shuttle cars go through the area to haul coal. (Tr. 296). If a shuttle car hits the ruts, it can hit a rib and knock rock or coal from the rib. (Tr. 296, 312-313). Rose did not see this happen. (Tr. 296, 312-313). Sometimes coal will fall out of the shuttle car if there was a bad operator or from hitting ruts. (Tr. 296-297, 313, 315).

No. 7 was located in 8 south No. 8 entry and was near where the fan was sitting, with mining occurring straight up from the fan. (Tr. 297). Rose stated this was an area that was holed through with a little accumulation next to the rib. (Tr. 297). To clean a hole through, Respondent must use a loader and shovel at the end of every shift. (Tr. 298). Rose testified that this area was going to be cleaned after the shift, when Respondent mined more than 40 feet. (Tr. 313).

Rose did not know why his assessment was so different from Gropp’s. (Tr. 298). The only discussion Rose and Gropp was that Gropp said it looked pretty bad and then he issued Order No. 8033057. (Tr. 298). Rose did not take notes or photos on the day of the Order. (Tr. 304). Rose did not accompany the pre-shift examiners (McCauley, Pribila, and Wilhelm) when they examined this area. (Tr. 312, 314). Rose did not have any first hand knowledge of how or when these accumulations occurred. (Tr. 312). Gropp took no measurements, no dust or air samples, no photographs, and did not check the ventilation to Rose’s recollection. (Tr. 302-303). Rose was with Gropp most of the time, although he walked away occasionally because Norton and Miller were there as well. (Tr. 302). He was with him at all the cited areas, except for No. 5. (Tr. 302). Gropp did not discuss any ignition sources or cables. (Tr. 303). Rose did not know the average amount of mining per shift in this area. (Tr. 305).

D. Rose’s Testimony Regarding the Clean-up Plan

Shoemaker mine had a clean-up and rock dusting plan. (Tr. 299). In a miner section, after the miner moves out, the coal must be scooped up and rock dusted. (Tr. 299). Dusting must occur every 40 feet, though after every 40 feet Respondent dusted the last 80 feet. (Tr. 299). This was to comply with the new regulations. (Tr. 300).

E. Rose’s Testimony Regarding Gropp’s Actions After the Investigation

When Gropp said he was going to issue an Order, Rose contacted his supervisor, Hough. (Tr. 301-302). Rose did not help clean the areas covered by Order No. 8033057 nor did he know how many people were involved or how long it took to clean. (Tr. 313).

IV. Testimony of Brian Hough

A. Qualifications and Work History

Hough received a Bachelor’s degree and a Master’s in Safety Management at West Virginia University. Tr. 317. Hough was trained in the Fundamentals of Supervision, Business Essentials, C.F.R. Training, and Managing Your Body by Consol. Tr. 317. He was a certified Mine Foreman in West Virginia, an MSHA instructor, a Con Ed instruction, a West Virginia EMT miner, and had a MSHA dust certification. Tr. 317. Hough had a total of twelve years of mining experience. Tr. 319. Hough received his assistant mine certification in 2003 and upgraded to a mine foreman a year ago. Tr. 347. He was an assistant mine foreman at the time of these violations. Tr. 348.

B. Hough’s Testimony Regarding Gropp’s Inspection

Hough was familiar with the Order No. 8033057 and he learned about it from Rose at the time of issuance. (Tr. 319-320). When he learned of Order No. 8033057, Hough examined the pre-shift and on-shift book, made copies, and headed into the mine. (Tr. 320). Hough went underground at approximately 10:40 a.m. (Tr. 351-352). When he got there, he talked to Gropp and then reviewed all of the locations in the Order. (Tr. 321). He did not take notes beyond mental notes and did not take any photos because he did not have a permissible camera. (Tr. 349-350). Hough did not accompany the pre-shift inspector. Tr. 351. He did not measure the accumulations. (Tr. 351). He did not see the accumulations occur and he did not sample them to determine their composition. (Tr. 351).

After looking at the areas Hough told Gropp he did not think the accumulations justified an Order. (Tr. 321). He testified that he informed Gropp that the accumulations were minimal given the size of the area. (Tr. 321-322). The accumulations occurred in an area that was well over 1,000 feet from one side of the section to the other and had two separate MMUs with two separate crews. (Tr. 321-322). However, Hough conceded that it was possible to have a single accumulation so bad as to justify a withdrawal order, though that did not occur here. (Tr. 352).

C. Hough’s Testimony regarding the Accumulations cited in Order No. 8033057

In Order No. 8033057, No. 1 was listed as four to 15 inches deep. (Tr. 322-323). Hough testified that this was not possible because the drag rails on the shuttle car prevent accumulations of that depth. (Tr. 322-323). Further, based on roof straps Hough saw only 40 feet of accumulation, not 80. (Tr. 323). Hough believed the last 40 feet do not need to be cleaned. (Tr. 355-356). On cross examination, Hough admitted that the 40-foot requirement was not part of the regulations and only comes from Respondent’s clean-up plan. (Tr. 357-358). Hough did not know why the area was not cleaned. (Tr. 324). The delay may have been because the bolter was in the area. (Tr. 324). It would take a long time, up to an hour, to move the miner back in place because the ventilation would have to be moved. (Tr. 324, 359-360). It would be the section supervisor’s decision whether to move the miner back in or wait for the loader and scoop to be fixed. (Tr. 325, 356-357). It was also his responsibility to ensure accumulations stay at no more than 40 feet. (Tr. 325, 356-357). Hough spoke with the section supervisor (he cannot recall who that was). [18] (Tr. 325). He told the supervisor to move the miner back in to clean up. (Tr. 325).

No. 2 was located at the intersection of 15A 0 and 8 South No. 1. (Tr. 325). Hough saw material on the ground, some of which had been pushed by the shuttle cars. (Tr. 327). Some of the accumulation was rock material as there was a 12-18 inch stone binder at the lower part of Shoemaker. (Tr. 327). The area was also moist and slippery from seepage. (Tr. 327-328). This can cause stone to fall out of the binder in the rib and accumulate. (Tr. 327-328). This material was not combustible. (Tr. 327-328). He testified that it was mostly rock and mud including clay from the bottom. (Tr. 328, 360). However, Hough did not take any samples. (Tr. 328, 360). Hough did not believe these conditions warranted an order. (Tr. 328). On cross examination, Hough conceded that stone that falls from the rib falls onto the rib lines and if it falls from the roof it falls straight down. (Tr. 360). He also admitted that coal could come out of the shuttle cars because of ruts in the clay. (Tr. 352). Hough described the drag rails suspended from the shuttle cars to prevent ruts deeper than 4-inches. (Tr. 352-353). However, he noted that the rails only prevent the car from bottoming out; they do not eliminate all ruts. (Tr. 352-353). A rut could be a foot deep before the shuttle care bottomed out and the ruts could fill with coal. (Tr. 353-355).

No. 3 was at the intersection of the 8 south and the 2 entry. (Tr. 328). There was material falling from the roof at this location. (Tr. 361). However, it was slate and was being bolted. (Tr. 361). This action was not a hazard because bolts were being added, though the situation may be dangerous if not corrected. (Tr. 361-362). The falling shale was not listed on the pre-shift or on-shift report, though examiners sometimes feel this was hazardous. (Tr. 362-364). However, the reports do not mean that mining occurred here, it only means that the power was on. (Tr. 364-365). Coal sloughage from the roof would be combustible. (Tr. 366).

No. 4 and 5 were a combined area for piggybacking. (Tr. 329-331). This was an area where coal from one shuttle car was dropped and then placed on another shuttle car. (Tr. 329-331). Piggybacking occurs when shuttle car cables are not long enough to reach from the loading point to the belt. (Tr. 330, 366). Coal must be placed on the bottom for piggybacking. (Tr. 330). At a certain level, that accumulation is not permissible, maybe 20 tons. (Tr. 366). However, Hough did not believe what he saw on the bottom warranted an order. (Tr. 331). Hough did not know how much energy went through a trailing cable. (Tr. 365).

Hough did not recall No. 6. (Tr. 331).

No. 7 was where the mine fan was sitting and the employees were setting up to mine. (Tr. 331). There were rib sloughage, some coal, some rock, in this area. (Tr. 331).

D. Hough’s Testimony Regarding the Clean-Up Plan and Cleaning in General

Hough was familiar with the clean-up and rock dusting plan. (Tr. 334). The clean-up plan goes into effect at the end of each shift; employees clean the tailpiece and their areas at the shift change. (Tr. 334). The plan was not updated on a set schedule. (Tr. 335).

When a miner is holing in and there are accumulations as a result, the loader can turn into the crosscut and attempt to clean up the mess. (Tr. 332). It is very difficult because of the angle of the turn so usually Respondent has to shovel. (Tr. 332). Respondent has to wait until the area is holed through and then roof bolted before the accumulation can be cleaned. (Tr. 332).

E. Hough’s Testimony Regarding Examinations cited in Citation No. 8033058

Hough was also familiar with Citation No. 8033058. (Tr. 336). It was true the pre-shift records do not include any information regarding this area. (Tr. 336-337). However, this was because any violations were corrected before the last three hours of the shift and so the on-shift took credit. (Tr. 342-343). Between pages 62 and 79 of the on-shift report, there were many entries that listed cited conditions and noted that the violations had been corrected during the shift. (Tr. 337-342). Hough showed these reports to Gropp so that he would see the attempts to correct violations. (Tr. 342). Gropp said he felt there was not enough effort. (Tr. 342).

Hough testified that the purpose of a pre-shift was to take care of hazardous conditions and to then report those conditions to the record book. [19] (Tr. 344). He testified that pre-shift hazards must be corrected or dangered off before anyone can go into the section. (Tr. 344, 347). This was different than an on-shift hazard. (Tr. 344-345). In that case, the condition must still be corrected but the whole area does not need to be dangered off. (Tr. 344-345). However, hazardous violations must be dangered off, even when discovered on-shift. (Tr. 345). Hough felt that nothing listed in the on-shift report required dangering off because the conditions were not hazardous, just violations. (Tr. 345).

On cross-examination, Hough discussed why the on-shift did not list all of the accumulations in Order No. 8033057. (Tr. 369). He stated that the on-shift report might have included No. 6 from the Order and indicated the condition was corrected. (Tr. 369-370). He also noted accumulations in the No. 8 entry were cleaned and dusted. (Tr. 370-37)1. On-shifts for 0 Entry and Feeder tail also stated that conditions needed to be cleaned up. (Tr. 371). He also referred to the pre-shift report for the shift where Gropp issued the violations. (Tr. 371). That report stated 0 entry had loose coal accumulations and this was listed as a violation. (Tr. 371). Also, No. 4 entry from 4 to 3 had accumulation and the condition was listed as a violation. (Tr. 371-372).

Hough stated that there was no way to determine how long accumulations existed besides watching their creation. (Tr. 332, 366-367). Even knowing the rate of mining would not be accurate because mining distances can vary daily. (Tr. 333). On a good day, a miner can advance 200 feet. (Tr. 333). Hough did not know the rate of mining per shift at the time of Order No. 8033057. (Tr. 367). However, records existed that Hough could have checked if he wanted to dispute MSHA’s estimate of mining rates per shift. (Tr. 367-368). Hough did not know why he and Gropp came to such different conclusions on how long the condition existed. (Tr. 334). According to Hough, at times in the past, even with Gropp, this amount of accumulation would warrant a citation, not an order. (Tr. 334).

V. Testimony of Tom Skrabak

A. Qualifications and Work History

Tom Skrabak (“Skrabak”) graduated from high school. (Tr. 373, 374). He was certified as a mine Foreman. (Tr. 374). He had fire and shot papers in Ohio and West Virginia, as well as a training certificate with MSHA. (Tr. 374). He had 41 years of mining experience. (Tr. 376). He worked on miner sections, had done construction underground, and worked as section foreman, shift foreman, and mine foreman. (Tr. 376). Skrabak had been employed by Respondent at Shoemaker and has been for 23 years. (Tr. 374). His position at the time of the hearing was General Mine Foreman; however, on October 14, 2010, he was an Assistant Mine Foreman in charge of the Whittaker Portal. (Tr. 374).

B. Skrabak’s Testimony Regarding Order No. 8030970

Skrabak was familiar with Order No. 8030970. (Tr. 376-377). He became familiar when he was called about it on the afternoon of the October 14 by the assistant superintendent at Golden Ridge. (Tr. 376-377). He stated that he had no knowledge of the Order and that it had not been issued to him. (Tr. 377).

C. Skrabak’s Testimony Regarding Edward’s Inspection

On the day at issue, Skrabak saw Edwards in the morning and had a non-substantive conversation; however, he did not go underground. (Tr. 378). Instead, he went to a meeting at the Golden Ridge. (Tr. 378). Skrabak’s meeting was at the engineering department. (Tr. 383-384). There was a screen showing belt production in that office. (Tr. 384- 385). Skrabak even has one at his home because a down belt means no production. (Tr. 384-385). During the meeting only one alarm summary went off. (Tr. 385). Skrabak was not sure what time the alarm occurred. (Tr. 385). The summary stated “Disconnect, drive disconnect 1, disconnect 2,” and was for 8 Belt. (Tr. 385). “Drive disconnect” indicated that the belt was down because the power was disengaged. (Tr. 385- 386). A radio communication showed the belt was down because rollers were being changed. (Tr. 386). Skrabak learned the reason at his meeting and was told by one of the surveyors. (Tr. 386). He did not remember the belts going down at any other time. (Tr. 380). The meeting started at around 10:00 a.m. and ended around 1:00. (Tr. 383-384). He then went to the superintendent’s office and discussed other matters before leaving at 2:00. (Tr. 383-384).

When Skrabak saw Edwards coming out of the mine, he asked how the inspection went and Edwards told him he “got you for a few.” (Tr. 381). “Got you for a few” indicates to Skrabak that there were a few citations. (Tr. 382). Edwards gave no indication of an order. (Tr. 382). Skrabak did not learn about Order No. 8030970 until the phone call later. (Tr. 382). It was MSHA protocol to inform the mine foreman or assistant mine foreman when an Order was issued. (Tr. 383). Normally, when an order was issued, the section or belt was shut down until the situation was corrected. (Tr. 383, 386-387). As an assistant mine foreman, Skrabak would know if the belt shut off. (Tr. 381).

Skrabak learned about Order No. 8030970 around 4:00. (Tr. 387). After receiving the call, Skrabak went into the foreman’s office and obtained a copy of the Order. (Tr. 378-380). Skrabak read the Order and called the assistant superintendent back. (Tr. 380). Skrabak never saw the condition, had no firsthand knowledge of the condition, and did not walk with the inspector. (Tr. 388).

CONTENTIONS OF THE PARTIES

The Secretary contends that Order No. 8030970 was validly issued. (Secretary’s Post-Hearing Brief at p. 2). He also argues the violation of the standard was reasonably likely to result in lost workday injuries, and would affect 1 person. GX-6. The Secretary claims that the violation was S&S (Secretary’s Post-Hearing Brief at p. 7). Finally, he argues the violation was the result of high negligence and constituted an unwarrantable failure. (Id. at 14). Respondent argues that there were no significant accumulations of combustible material. (Respondent’s Post-Hearing Brief at p. 30-33). It also contends that no injury was reasonably likely, that the condition was not S&S, and that no one would be affected. (Id. at pp. 37-39). Finally, it argues that it did not exhibit negligence and there was no unwarrantable failure. (Id. at pp. 39-40).

The Secretary contends that Order No. 8033057 was validly issued. (Secretary’s Post-Hearing Brief at p. 18). He also argues the violation of the standard was reasonably likely to result in lost workday injuries, and would affected 10 persons. GX-10. The Secretary claims that the violation was S&S. (Secretary’s Post-Hearing Brief at p. 26). Finally, he argues the violation was the result of high negligence and constituted an unwarrantable failure. (Secretary’s Post-Hearing Brief at p. 29). Respondent argues that there were no significant accumulations of combustible material. (Respondent’s Post-Hearing Brief at pp. 40-47). It also contends that no injury was reasonably likely, that the condition was not S&S, and that no one would be affected. (Id. at pp. 47-49). Finally, it argues that it did not exhibit negligence and there was no unwarrantable failure. (Id. at pp. 49-50).

The Secretary contends that Citation No. 8033058 was validly issued. (Secretary’s Post-Hearing Brief at p. 31). He also argues the violation of the standard was reasonably likely to result in lost workday injuries, and would affect 10 persons. GX-12. The Secretary claims that the violation was S&S. (Secretary’s Post-Hearing Brief at p. 33). Finally, he argued the violation was the result of high negligence. (Id. at p. 34). Respondent argues that the pre-shift examinations were conducted properly. (Respondent’s Post-Hearing Brief at pp. 50-52). It also contends that that no injury was reasonably likely, that the condition was not S&S, and that no one would be affected. (Id. at pp. 53-54). Finally, it argues that it did not exhibit high negligence. (Id. at p. 54).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Order No. 8030970

A. The Secretary has sustained his burden of proof by the preponderance of evidence that §75.400 was violated

With respect to Order No. 8030970, the Secretary presented sufficiently probative evidence of impermissible coal dust accumulations at the subject mine so as to establish a violation of §75.400.

Edwards gave credible testimony regarding coal dust accumulations along the No. 8 Beltline. Edwards observed areas with coal fines, some that had actually accumulated up to the rollers and the roller structure. The rollers were turning in the accumulations. (Tr. 29). Edwards found coal, loose coal, actual coal particles, and coal lumps on the belt line and also ignition sources from 8-46-8-47. (Tr. 29).

Edwards used a tape measure to measure the accumulations, some of which were up to three feet in height and six feet in width. (Tr. 36-38). As to the height of the accumulations, the belt structure was not consistently the same distance from the bottom. Some rollers were as little as one foot from the bottom. (Tr. 38). The accumulations were found to be sometimes coming into contact with rollers. [20] (Tr. 38). Edwards touched rollers that were packed in accumulations; the rollers were warm to the touch. (Tr. 39).

At hearing Edwards referred to his underground notes (GX-7) which were consistent with his in-court testimony. Respondent cross-examined Edwards regarding the pristine nature of his notes and regarding the actual time and place the Order was written. Although Edwards’ testimony was somewhat problematic on these minor points, the ALJ found Edwards’ testimony on the whole to be reliable, credible, consistent, and not impeached despite Respondent’s vigorous cross-examination. (see also Secretary’s Post-Hearing Brief at p. 3, Footnote 2).

The ALJ also notes Respondent’s hearing cross-examination of Edwards and brief arguments that the Secretary’s case was not supported by any photographic, heat measurement, or coal particle testing evidence.[21] (see inter alia Tr. at 40, 49, 72, 119, 125 and Respondent’s Post-Hearing Brief at p. 9 and 33).

The ALJ concurs that, in the best of all evidentiary worlds, MSHA inspectors would carry cameras to photograph all violation scenes, sieves to measure coal dust particles, coal dust meters,[22] specimen bags to collect samples, and heat guns to measure friction temperatures. But, mines are not sterile environments where precise empirical testing can always be conducted. Moreover, placing aside questions of practicality, our current case and statutory law do not require such proof to establish the safety standard violations at issue.

An inspector’s testimony, standing alone, if found credible and reliable, may constitute sufficient evidence to prove the existence of a safety violation and, indeed, its S&S nature. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-1279 (Dec. 1998) (holding that the opinion of an investigator that a violation is S&S is entitled to substantial weight); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-136 (7^th Cir. 1995) (ALJ did not abuse discretion in crediting expert opinion of experienced inspector); and Cement Division., National Gypsum Co., 3 FMSHRC 822, 825-826 (Apr. 1981) (regarding the probative value of inspector’s judgment).

In the case sub judice, the ALJ recognizes that Edwards had not been working many years as an inspector for MSHA at the time of the instant inspection.[23] However, the ALJ rejects any argument advanced by the Respondent contending that Edwards’ testimony should be accorded little weight due to his short time with MSHA. (see inter alia Respondent’s Post-Hearing Brief at p. 34). As indicated supra, Edward, in fact, had 18 years of underground coal mining experience prior to joining MSHA, including more than 6 years as a certified mine examiner for Respondent in the Shoemaker Mine. (Tr. 19, 21-22).

After careful evaluation of the evidence, the ALJ finds that Edwards was an experienced miner who could readily identify the type of unreported impermissible accumulations cited in his order. The ALJ found Edwards’ actual measurement of the accumulations and contemporaneous notes to further corroborate his testimony. As shall be discussed infra, Edwards’ testimony was essentially unrebutted as to the fact of the violation. Thus, the ALJ accords Edwards’ testimony substantial weight.

The ALJ notes Edwards’ concession that there were areas of the beltline that were wet, damp, rock dusted, and/or not in violation of 75.400 and notes Respondent’s arguments regarding such.[24] However, Edwards credibly testified that there were other significant areas of the beltline that had “major impermissible violations” starting at the 8-36 crosscut and extending to the 8-15 crosscut, a total distance of 2,100 linear feet. (Tr. 36-37). Despite Respondent’s vigorous cross-examination, Edwards persuasively opined that given “the conditions of accumulations, the continuous presence of ignition sources and also knowing the oxygen content,” the cited area was the “worst beltline” he had ever seen. (Tr. 50, 127). Thus, even accepting there were various areas of the belt line at Shoemaker Mine that were in compliance with §75.400 on October 14, 2010, the ALJ is persuaded that significant lengths of Beltline No. 8 were in violation.

The Secretary’s position that §75.400 was violated is not only supported by the case record but also by applicable law. At hearing and in its brief, Respondent indicated that various areas along the belt line were wet, muddy, or rock-dusted. (See Respondent’s Post-Hearing Brief at p. 11-13). However, such factors do not necessarily mandate against a finding of a §75.400 violation. In Utah Power & Light, 12 FMSHRC 965, 969 (May 1990) (citing Black Diamond Coal Company, 7 FMSHRC 1117, 1120-21 (Aug. 1985), the Commission held that dampness in coal did not render it incombustible and that wet coal can eventually dry out in a mine fire and ignite. See also Black Diamond, 7 FMSHRC at 1121 (“a construction of (§75.400) that excludes loose coal dust that is wet or allows accumulations of loose coal dust mixed with non-combustible materials defeats Congress’ intent to remove fuel sources from the mine and permits potentially dangerous conditions to exist.”).

It is black letter law that the Secretary bears the burden of proof to establish the fact of violation by the preponderance of evidence. Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). However, this burden of proof standard only requires that the trier-of-fact conclude the “existence of a fact is more probable than its nonexistence.” RAG Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). As discussed supra, Edwards’ essentially unrebutted testimony establishes by the preponderance of the evidence that §75.400, as cited in Order No. 8030970, was violated. Moreover, there is also additional inferential evidence in the record supportive of a finding of violation.

Final Order No. 8030971 (GX-9) contains an unwarrantable failure finding that was uncontested by Respondent and reads as follows:

A record of hazardous conditions for the No. 8 beltline pre-shift was no recorded in the preshift report located on the surface. A hazardous condition which existed from #8-50 to #8-1 crosscut of the No. 8 Beltline was not recorded on the midnight shift of 10/14/2010. The area was preshifted at 5:36 a.m. by an examiner and the condition was obvious and extensive and was not worked on or corrected and not entered into the record book on the surface for that purpose. The condition is described in Order #8030970. This order is written in conjunction with that order. This violation is an unwarrantable failure to comply with a mandatory standard. The mine has received 6 citations of 75.360(f) over the past 2 years. Management engaged in aggravated conduct constituting more than ordinary negligence in that the area was preshifted and a hazardous condition was not reported or corrected.

(GX-9).

As averred under the condition or practice section, this Order finding a pre-shift examination violation was based upon “the condition…described in Order #8030970.” In his brief the Secretary properly points out pertinent Commission law indicating that for purposes of the Act, paid penalties that have become final orders pursuant to §105(a) reflect violations of the Act and the assertion of violation contained in the citation is regarded as true. See inter alia Old Ben Coal Company, 7 FMSHRC 205, 209 (Feb. 1985), (Secretary’s Post-Hearing Brief at p. 4), and (GX-5, page 53 - indicating Respondent had paid a $9,100.00 penalty associated with Order No. 8030971).

The ALJ notes Respondent’s argument that the penalty was “inadvertently paid” and that, in any case, Edwards was unaware of the payment when he issued Order No. 8030970. (Respondent’s Post-Hearing Brief at p. 15 and Tr. 149-150). Respondent’s uncontested payment of the penalty at No. 8030971 may not invoke strict rules of res judicata or collateral estoppel, or constitute an admission as to violation of §75.400 as cited in Order No. 8030970. However, the ALJ finds that an adverse inference may reasonably be drawn from said uncontested payment, further supporting the Secretary’s position.

As noted supra, Respondent presented testimony from Gary Rose in an effort to undercut Edward’s testimony. Rose’s testimony, however, was not persuasive that no violation of §75.400 had taken place. The safety inspector at the Shoemaker Mine when Order No. 8030970 was issued, Rose had not been informed of such until nearly five hours after issuance. [25] (Tr. 389-390). Rose did not see any of the cited accumulations, did not see Order No. 8030970 before or during his photographs of the beltline, and had no actual knowledge of the specific areas that Edwards had cited. (Tr. 389-391, 410). Rose’s “random” photographs were taken more than 7 hours after this order was issued. Tr. 390-392.

Although Beltline No. 8 was approximately 5,000 to 6,000 feet long, Respondent only proffered 19 of Rose’s photographs for admission into evidence. Rose admitted that he had taken no notes, contemporaneous or otherwise, associated with the photographs and was solely testifying from memory. (Tr. 410). The ALJ gave credence to Rose’s testimony only to the extent that there may have been various areas along the belt line that had no impermissible accumulations.[26]

In the final analysis, the ALJ finds Edwards’ testimony to be more credible regarding the violative accumulations located along approximately 2,000 feet of the No. 8 Beltline. None of Rose’s photographs were clearly established to have depicted the actual beltline areas that Edwards found to be in violation. (see also Secretary’s Post-Hearing Brief at p. 5-6 regarding such). The ALJ also finds that the testimony of Respondent’s witness, Tom Skrabak, was of little probative value. Skrabak had no actual first hand knowledge of the cited accumulations. (see also Secretary’s Post-Hearing Brief at p. 6 regarding such).

In view of the foregoing the ALJ finds that there was a clear violation of §75.400 as set forth in Order No. 8030970.

B. Respondent’s violation of §75.400 was Significant and Substantial in nature

Taking into consideration the record in toto and applying pertinent case law, the ALJ finds that Respondent’s violation of §75.400 was significant and substantial in nature. The first element of Mathies – the underlying violation of a mandatory safety standard – has clearly been established.

As to the second element of Mathies – a discrete safety hazard, that is a measure of danger to safety, contributed to by the violation – the record again clearly establishes satisfaction of such. Abundant case law has held that combustible accumulations create significant explosion and propagation hazards. see Old Ben Coal Co., 1 FMSHRC 1954 (Dec. 1979); Black Diamond Coal Company, 7 FMSHRC supra; and Amax Coal Co., 19 FMSHRC 846 (May 1997). Furthermore, Commission Judges have long recognized that coal accumulations along conveyor belts and/or longwall shields contribute to the safety hazard of a mine fire or explosion. Consol Pennsylvania Coal Co., 32 FMSHRC 545, 560-561 (May 2010) (ALJ Bulluck); San Juan Coal Co., 28 FMSHRC 35, 39 (Jan. 2006) (ALJ Hodgdon) (reversed and remanded on other grounds); Mountain Coal Co. LLC, 26 FMSHRC 853, 868 (Nov. 2004) (ALJ Manning); Clinchfield Coal Co., 21 FMSHRC 231, 241 (Feb. 1999) (ALJ Barbour).

As discussed supra, Edwards credibly testified regarding extensive combustible accumulations under and along the No. 8 Beltline. The violative condition at issue, the impermissible accumulations, contributed to the discrete safety hazard of a mine fire or explosion. These accumulations were combustible and could provide the fuel source for a fire or explosion. (Tr. 46, 48-49, 59-60, 94-97). Thus, the Secretary has clearly established that the second prong of Mathies was met.

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)).

It is essentially uncontested that the hazard contributed to by the cited accumulation(s) was a fire or explosion, and such a hazard would have a reasonable likelihood of resulting in an injury, including, at the very least, smoke inhalation and burns. (see Tr. 58-59; see also Black Diamond Coal Company, 7 FMSHRC at 1120 wherein the Commission noted “Congress' recognition that ignitions and explosions are major causes of death and injury to miners…”). At hearing, Edwards described belt rollers turning in accumulations of coal, float coal dust on belt structures and water lines, the conveyor belt at No. 8 beltline not being properly aligned, and damaged rollers. (see GX-6 and Tr. 29, 34-37, 41-47, 50-51, 61-62, 133).

In Amax Coal Co., supra, the Commission upheld the ALJ’s finding that belt running on packed coal was a potential source of ignition for accumulations of loose, dry coal and float coal dust along the belt line, and that the condition presented a reasonable likelihood of an injury causing event. In addition, in Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994), the Commission held that accumulation violations may properly be designated as S&S where frictional contact between belt rollers and the accumulations, or between the belt and frame, results in a potential ignition source for the accumulations. The Commission in Mid-Continent found it was immaterial that there was no identifiable hot spot in the accumulation because continued normal mining operations must be taken into account when evaluating the circumstances. In the present case, if the violative condition had been allowed to persist, it would have reasonably led to smoke, fire and, potentially, an explosion. Further, an additional ignition source was present in the form of the misaligned belt rubbing the structure, which could generate frictional heat. Even if the coal near the damaged rollers and misaligned belt had been wet, the Commission has recognized that wet coal can dry out and ignite. See Black Diamond Mining Co., supra at 1121. The preceding rulings, including those in Musser and Cumberland Coal, would all suggest a finding that Mathies third element was met in the case sub judice.

C. Respondent’s argument that there was not a confluence of factors present that would sustain a designation of S&S is specifically rejected.

Citing, inter alia, U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Mar. 1984), the Respondent argued that the record did not establish “a confluence of factors present that would sustain a designation of significant and substantial.” (See Respondent’s Post-Hearing Brief at p. 37-38). To the extent that Respondent maintains its cited case law and/or interpretations of such stands for the proposition that the hazard contributed to must be reasonably likely to result in an actual accident or untoward event, the ALJ rejects such as being inapposite to the above-cited Commission jurisprudence. However, even if Respondent’s proposed analysis of Mathies’ third element were utilized, the ALJ agrees with the Secretary’s arguments that a finding of S&S would still be warranted (See also Secretary’s Post-Hearing Brief at p. 9-14).

In determining whether a violation is reasonably likely to lead to injury, the likelihood of injury must be considered in the contest of “continued normal mining operations.” See Mid-Continent, 16 FMSHRC at 1221-1222). Additionally, when evaluating the reasonably likelihood of a fire, ignition, or explosion, the Commission has held that the examination of the confluence of factors must be based upon the particular facts surround the violation. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (quoting Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). “Some of the factors include the extent of accumulations, possible ignition sources, the presence of methane, and the type of equipment in the area.” Id. citing Utah Power & Light Co., 12 FMSHRC at 970-971 (1990); Texasgulf, 10 FMSHRC at 500-503.

At hearing Edwards discussed the necessary confluence of factors at the subject mine by referring to the existence of a “fire triangle.” (Tr. 96). The necessary components of a fire triangle are: (1) an accumulations of combustible materials (fuel); (2) the presence of ignition sources; and (3) 20.8% oxygen content in the air. All were all found by Edwards during his inspection. (See inter alia Tr. 28-31, 34, 45, 50-51, 59, 96). The combustible “fuel” found by Edwards included loose coal, loose fine and ground up coal, and coal dust (including float coal) along the No. 8 Beltline.

As noted supra, both at hearing and in its Post-Hearing Brief, Respondent has attempted to diminish the combustible nature of the impermissible coal accumulations by emphasizing the dampness/wetness along the belt line and by arguing that the subject was rock dusted. [27] (see Respondent’s Post-Hearing Brief at p. 8, 11-13, 31-33, 38-39 and Tr. 35, 39, 123, 134, 392-407).

However, both in Utah Power & Light and Black Diamond, the Commission observed that wet coal wet coal will eventually dry out during normal mining operations and that loose coal mixed with non-combustible materials may nonetheless pose a hazard. (See also Tr. 35, 63, 122, 123 for Edwards’ observation that wet dust will become combustible once dried out.).

Further, the photographic evidence presented by Respondent to prove the accumulations were wet and/or rock dusted was often of problematic probative value. As noted supra, Edwards was uncertain as to whether the scenes depicted in Rose’s photographs were of the actual sites Edwards had inspected or, indeed, were even taken at Shoemaker. (see inter alia Tr. 74-75, 77, 80, 82-84, 86, 88-89, 91-93, 161-162).

It was difficult to ascertain whether the photographed coal dust in some offered exhibits was lighter because of rock dusting or because of photo flashing. (see also Tr. 75-76, 78, 81, 83-84, 86, 88-93, 396, 404). Some of the photographed areas were so dark that one was left to speculate whether the area depicted was wet or had a coating of dry black coal dust. In weighing the probative value of the photographs, the ALJ carefully considered Edwards testimony that he had observed many areas where the coal dust was dry, black in color, and/or where the coal dust appeared to lay on top of the rock dust.[28] (Tr. 75-77, 79, 82-83, 85, 88, 91-93). Contrary to Respondent’s arguments, the ALJ finds that Edwards’ testimony established the existence of combustible materials which would be one of the necessary tri-part elements in the “fire triangle.”

Further, at hearing Edwards testified at length regarding the No. 8 Beltline being out of alignment and rubbing the metal belt structure at crosscuts 8-47 to 8-46. (GX-6, 7; Tr. 29-30, 34, 42-43). This rubbing of the belt on the metal structure with the associated friction heat[29] was a potential ignition source for the combustible accumulations – thus constituting the second necessary component of the fire triangle. The ALJ notes Respondent’s argument that “warm” rollers are common and do not constitute a hazard. However, according to above cited case law, the ALJ must consider that, with continuing normal mining operations, rollers subject to continued frictional heat may also rise in temperature, posing a hazard for fire and explosion. (See also Secretary’s Post-Hearing Brief at p. 11-12).

Other potential ignition sources found by Edwards were belt rollers in contact with, turning in, and impacted by the accumulations. (Tr. 29, 35, 37, 39, 50-51, 61, 133). These accumulations coming into contact with the belt rollers were extensive: they measured two to three feet in width and 24 inches in depth and were packing around roller shafts. (GX-6, 7; Tr. 35-38). The bearings of the impacted rollers were also found to be heating up – another potential ignition source for the accumulations. (Tr. 61-62, 133-134). Float coal dust, black in color, was observed directly under the belt rollers on the bottom, approximately 6 feet in width. The dust was also found on the belt structure and water lines. (GX-6, 7; Tr. 41-42). Again, under normal mining conditions pursuant to the above-cited Commission holdings, these conditions could worsen until a fire and/or explosion occurred. (see also Highland Mining Company, LLC, 31 FMSHRC__, slip op., KENT 2009-1241 (January 28, 2013) (ALJ Rae); Tr. 61-62, 117; and Secretary’s Post-Hearing Brief at p. 11 regarding the danger of the belt becoming an ignition source with continued friction).

The ALJ notes that another potential ignition source was methane. The subject mine is a gassy mine.[30] In fact, the Shoemaker mine was on a 5-day spot inspection for high methane levels on the day of the inspection. (Tr. 42, 60). Although not detecting any methane during his inspection, Edwards testified that methane can be liberated at any time to provide an ignition source. (Tr. 169). Further, the Commission has directly held that low levels of methane at a time of violation do no preclude methane from being a factor in the S&S designation. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (holding that whether a violation is S&S designated depends on the circumstances that would have existed if normal mining operations continued[31] after the time the violation was cited, and, finding that methane levels can rise quickly during mining operations). Thus, in addition to the frictional heat associated with the misaligned belt, impacted and damaged rollers, the possibility of a methane release in the subject gassy mine were all part of the confluence of factors justifying an S&S designation.

Further, at hearing Edwards also gave unrebutted testimony that the subject area had a 20.8% oxygen content which was sufficient for creation of the third part of the “fire triangle.” In Highland Mining Company, supra and Clinchfield Coal Co., supra, ALJs Rae and Barbour respectively addressed similar fact patterns where accumulations created a reasonably likelihood of fire or explosion so as to satisfy Mathies’ third element. (see Highland Mining at 15-16 and Clinchfield at 241-242).

In Highland Mining, ALJ Rae found that rollers turning in a quantity of recently spilled coal posed a hazard of fire. Rae rejected the mine operator’s position that evidence suggesting that the spill was recent or that the coal was wet vitiated the third element of Mathies. (See Highland Mining at 14-16).

In Clinchfield, ALJ Barbour noted that there were locations where rollers were turning in the accumulations, places where stuck or misaligned rollers caused the belt to rub against the belt structure, portions of the accumulations that ranged from damp to wet, places where the belt was rubbing in the damp to wet accumulations and float coal dust laying on the belt structure. Id. ALJ Barbour specifically found that the belt rubbing against the belt structure produced friction, which generates heat, and was a reasonably likely ignition source. Id. ALJ Barbour explained:

Further, while many of the accumulations ranged from damp to wet, there were places where the belt was rubbing in the damp to wet accumulations, which meant that heat was being produced and therefore the accumulations were drying. This too meant that as mining continued, it was reasonably likely that even some of the damp to wet accumulations could have ignited.

Finally, there was the highly explosive float coal dust that lay on the belt structure from the portal to the Y… As mining continued, the places where the belt was malfunctioning could have generated heat sufficient to touch off an ignition. As [the MSHA Inspector] noted, “It only takes one frictional source to ignite coal dust” Once there was an ignition, the float coal dust could have propagated an explosion along the beltline.

Id. (see also Secretary’s Post-Hearing Brief at p. 12-14).

The ALJ has considered the nature and the extent of the accumulations, the oxygen levels, the fact that the subject mine was gassy, and the multiple ignition sources. A conclusion that a belt fire was reasonably likely to occur under continued normal mining operations is persuasively supported by the record. In light of such, the ALJ is further persuaded by the arguments advanced by the Secretary (see inter alia Secretary’s Post-Hearing Brief at p. 13) that even if he were required to prove that the violation itself was reasonably likely to lead to injury, Mathies third element has been established.

D. The record clearly established that the fourth element of Mathies is satisfied

Under Mathies, the fourth and final element that the Secretary must establish is that there is “a reasonable likelihood that the injury in question will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC at 1574. Smoke inhalation and burns sustained in a mine fire or explosion would inarguably be considered serious injuries. (See Tr. 58-59). The ALJ agrees that at least one person, as found in the order, would suffer such injuries. (See GX-6 and Tr. 64). Thus, the Secretary has carried his burden as to all of the elements of Mathies as to Order No. 8030970.

For reasons set forth within, the ALJ affirms the Order as written as to the gravity found by Edwards.

E. Respondent’s violation constituted an unwarrantable failure to comply with §75.400

In a decision issued on February 1, 2013, the Commission recently addressed the specific question of when combustible coal accumulations in violation of 30 C.F.R. §75.400 constituted an unwarrantable failure on the part of the operator to comply with mandatory health and safety standards. (See Secretary of Labor v. Manalapan Mining Company, Inc., 35 FMSHRC__, slip op., (February 2, 2013), 2013 WL 754106).

In Manalapan, the Commission reviewed the factors to be evaluated in determining unwarrantable failure:

In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, including (1) the extent of the violative condition, (2) the length of time that the violative condition existed, (3) whether the violation posed a high degree of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the operator had been placed on notice that greater efforts were necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999). These seven factors need to be viewed in the context of the factual circumstances of a particular case, and some factors may be irrelevant to a particular factual scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Nevertheless, all of the relevant facts and circumstances of each case must be examined to determine if an operator’s conduct is aggravated, or whether mitigating circumstances exist. Id.; IO Coal, 31 FMSHRC at 1351.

Id. at 5.

Considering each of these factors seriatim, the ALJ finds that Respondent’s conduct constituted an unwarrantable failure to comply with §75.400.

As to the extent of violation factor, as discussed supra, Edwards’ description of the cited coal accumulations was credible as to the extensive nature of such, being present over 2000 feet of No. 8 Beltline. Given the extent of the accumulations, it was quite apparent to Edwards that the violative condition had existed over a significant length of time. Respondent’s own pre-shift examination report, performed hours before Edward’s inspection, noted that the area where Edwards found the violations – crosscuts 8-15 to 8-36 – needed swept. (GX-8; Tr. 70-71, 142-144). Such extensive accumulations – taking many miners over 9 hours to shovel – would very likely have taken place over a long period. See Windsor Coal Co., 21 FMSHRC 997, 1001-1004 (Sept. 1999) (extensive accumulations that existed for longer than one shift warranted an unwarrantable failure finding).

As to whether the violations posed a high degree of danger, the ALJ has carefully considered the evidence presented by Respondent that various areas along the No. 8 Beltline were damp, wet, muddy, had been rock dusted, that there was a working CO System present on the belt, that there were water sprays, that the belt was constructed from fire resistant material, and that the methane readings taken during the examination were 0%. (See inter alia Tr. 166-169; see also Respondent Post-Hearing Brief at p. 9). The ALJ grants that such factors might arguably be considered mitigating so as to diminish the degree of danger posed by the violative conditions. However, as discussed supra, just as such factors do not preclude an S&S designation, the ALJ finds that a diminished degree of danger does not vitiate a finding of unwarrantable failure.

As noted supra, the ALJ gave only partial credence to the testimony presented by Respondent. Edwards credibly disputed the extent of wetness and/or rock dusting in the areas of the beltline that he actually cited. Further, Edwards persuasively testified that a CO monitor will only alarm when there is already a fire, not where there is a danger of fire. (Tr. 167). In addition, water sprays were primarily designed for dust suspensions, not fire suppression. (Tr. 168). Furthermore, the fact that the belt was made of fire-resistant material did not vitiate the hazard of combustible accumulations. (Tr. 167). Given the above-cited case law holding that the ALJ must assume continuing mining operations and possible drying out of combustible materials, a diminished degree of danger at the time of actual inspection would not necessarily preclude an unwarrantable failure finding.

The ALJ is also mindful of the Commission’s admonition in Manalapan that while the factor of dangerousness may be so severe that, by itself, it warrants of finding an unwarrantable failure, the absence of significant danger does not necessarily preclude a finding of unwarrantable failure. Manalapan at 6. Pursuant to the Commission’s holding, the undersigned has “considered the evidence relating to the danger factor, determined whether it was an aggravating or mitigating circumstance, and weighed it against the other relevant factors to determine whether the operator’s conduct under the circumstances amounted to an unwarrantable failure.” Id.

In weighing the other relevant aggravating factors, discussed herein, even if the degree of danger posed by the accumulations had been somewhat diminished, the ALJ finds that Respondent’s conduct was nonetheless impermissibly reckless.

As to whether the “violation was obvious,” the ALJ again notes Edwards’ description of the violative area as “the worst belt line” he had ever seen. (Tr. 50, 127). Even if Edwards had used exaggerated phraseology in describing the violative conditions existent, it is nonetheless clear from his testified to observations that the impermissible accumulations would have been obvious to a reasonably prudent person, familiar with the mining industry and the protective purpose of §75.400. Given the extent of the violative condition and the length of time it must have existed, the ALJ finds that the operator knew or should have known of its existence.

As to Respondent’s efforts in abating the violative condition and as to whether Respondent had been placed on notice that greater efforts were necessary for compliance, the ALJ essentially adopts the arguments advanced by the Secretary regarding such. (See also Secretary’s Post-Hearing Brief at p. 15-16).

Inter alia, Respondent had been issued 137 violations of 30 C.F.R. 75.400 for impermissible accumulation of combustible material at Shoemaker miner in the two years prior to the issuance of this Order. (GX-4, 5 p. 61-71; and Tr. 69). Although not knowing the specific number of §75.400 violations prior to his inspection, Edwards, based upon his review of the mine file, knew that Shoemaker had a significant violation history. (Tr. 165-166) (see also case law cited by Secretary holding that repeated similar violations may be relevant to determining unwarrantable failure. Such prior violations serve to put an operator on notice that greater efforts are necessary for compliance with the pertinent safety standard violated. San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007).[32] Further, during his previous quarterly inspection, Edwards specifically discussed with mine management their need to address the problem of impermissible accumulations. (Tr. 70).

In view of the foregoing the ALJ holds that a finding of unwarrantable failure is warranted.

F. The civil penalty of $4,000.00 is affirmed

Section 110(i) of the Mine Act establishes the six criteria to be considered in determining the appropriateness of a civil penalty.[33]

Further, the Commission has outlined its authority for assessing civil penalties in Douglas R. Rushford Trucking, stating “the principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established.” 22 FMSHRC 598, 600 (May 2000). While the Secretary’s system for points in Part 100 of 30 C.F.R. provides a recommended penalty, the ultimate assessment of the penalty is solely within the purview of the Commission. Id. Thus, a Commission Judge is not bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The de novo assessment of civil penalties does not require each of the penalty assessment criteria to be given equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

After reviewing all of the relevant facts and weighing the 110(i) factors applicable to such, the ALJ finds no reasons to depart upward or downward from the original $4,000.00 amount proposed by the Secretary.

II. Order No. 8033057

A. The Secretary has also sustained his burden of establishing that §75.400 was violated as set forth in Order No. 8033057.

As described supra, on October 26, 2010 Inspector James Gropp issued Order No. 8033057 to Respondent for violation of §75.400. (GX-10).

During his EO1 quarterly inspection of Shoemaker (Tr. 180), Gropp[34] – like Edwards on October 14, 2010 – found extensive impermissible accumulations of combustible materials.[35] Gropp measured accumulations of coal created when the mining machine cut into the rib while being maneuvered. (Tr. 190-191). Gropp measured each accumulation up to 25 feet with a tape measure and stepped off larger accumulations, using each of his steps for one yard. (Tr. 191-192, 198). Like Edwards, Gropp documented his observations with contemporaneous notes. (Tr. 186). (Respondent clarified that Gropp recorded his observations underground and filled in his administrative details and summary questions/answers aboveground. Tr. 238-239).

At the time of the inspection, Respondent was actively mining on the right side face and the left side face. Gropp did not observe anyone preparing to clean or actually cleaning accumulations. (Tr. 280- 281).

The first impermissible accumulation that Gropp cited was located just inby the section tail piece. (see impermissible accumulation No. 6 on Order No. 8033057, GX-10). The accumulation had been created by the miner (machine) gouging into the right rib. (Tr. 190-191). The accumulation measured 30 feet long, 12 to 24 inches deep and 2.5 to 6 feet wide. (Tr. 190).

While such gouging accumulations are not unusual when the miner is being moved into a new entry, these accumulations had not been scooped or loaded into a shuttle car to be put on a belt and removed from the mine. (Tr. 191-192). Gropp testified that the impermissible accumulations had existed for at least one day prior to his investigation. He had been informed by the right side day shift foreman, Mr. Yorty, that the miner had been moved around the corner during the day shift the day before the investigation. (Tr. 215, 257-258).

The next accumulation found by Gropp was the No. 8 entry and cited as No. 7 on the Order and map. (GX-10, 15; Tr. 192-193). This accumulation was on the entire width of the entry – 6 to 15 ½ feet – and measured 12 to 24 inches deep. (Tr. 193). Gropp observed that Respondent had moved a fan on top of the accumulations along with the fan cables. (Tr. 193). A loader could not, given such, be brought in to clean up the accumulations (Tr. 192-193). In order to determine how long the cited accumulations had existed prior to his inspection, Gropp calculated Respondent’s rate of mining, using inter alia, beeper machine shifts for the 30 shifts prior to his inspection. (Tr. 211-212). Averaging the numbers, Gropp concluded that Respondent mined an average of 36 feet per shift on the left side and 33 feet on the right side. (Tr. 212). Based upon his calculation, Gropp concluded that the impermissible accumulations, as cited at No. 7 on the Order and Map, had existed for at least one to two shifts. [36] (Tr. 215-216).

Gropp next described another §75.400 violation at the crosscut of 4 to 3, No. 4 in the Order: the “whole crosscut was completely accumulated in coal.” (Tr. 193-194). Gropp had to walk over the accumulations which measured 140 feet long, 8-12 inches deep, and the entire width of the entry (15 ½ feet wide). (GX-10, 15; Tr. 194). Gropp opined that a miner cable, loader cable, and water line hung from the mine roof, had likely shoved coal from the top of a shuttle car as it had driven underneath. (Tr. 202-203, 216). Gropp determined that this accumulation had also existed for at least one to two shifts prior to his inspection and would not have occurred since the last pre-shift examination. (Tr. 213).

Gropp further testified regarding the impermissible accumulation cited as No. 3 on the Order and map. (GX-10, 15, Tr. 194-195). This accumulation was also extensive, measuring 15 ½ feet in width, four to 18 inches in depth, and 12 feet long. (Tr. 195). Gropp concluded that this accumulation had resulted from holing through, both inby the crosscut, at the face, and outby the crosscut. (Tr. 195).

Gropp indicated that Respondent had also failed to clean up this accumulation and had continued mining. (Tr. 195). Gropp concluded that this accumulation had existed for at least one to three days prior to his inspection. (Tr. 213). Gropp further opined that the accumulation could not have occurred since the last pre-shift accumulation. Respondent had not yet started mining on the left side during the inspection shift. Given Respondent’s mining pattern, this accumulation had to occur prior to the No. 2 accumulation found by Gropp. (Tr. 213).

With respect to the violation cited No. 2 on the Order, Gropp measured the accumulations as 15 ½ feet wide, four to nine inches deep, and 10 feet long. This accumulation, which was located near the No. 1 entry of the 8 South Section, was the result of Respondent holing through from a crosscut. (GX-10, 15; Tr. 195). Gropp against determined that the accumulation had existed at least 1 to 2 days prior to his inspection, and , because Respondent had not yet started mining on the left side, could not have occurred since the last pre-shift examination. (Tr. 212-213).

In reference to the cited accumulation, identified as No. 1 on the Order, Gropp determined that Respondent recently finished mining this entry and pulled the miner out without ever having pushed the coal back into the face or loading it out. (GX-10, 15, Tr. 196). The loader that would have moved this accumulation had been switched out for maintenance. (Tr. 196). Gropp measured the accumulation as being four to 15 ½ feet wide, four to 15 inches deep, going from the face where Respondent finished mining outby 80 feet in length. (Tr. 196). Gropp further observed a bolter operating in the face of the 15 AO entry on top of the accumulation at the time of the inspection. (Tr. 200). Gropp determined that this accumulation had also existed for at least one to two shifts prior to his inspection. (Tr. 211).

The final impermissible accumulation cited in the Order, No. 5, was outby the face of No. 4 where Respondent had the loader “piggy-backed” (dumped coal onto the ground to move it from one shuttle car to another because each shuttle has a trailing cable that can only travel 1,000 feet) (GX-10, 15; Tr. 197). This accumulation measured 60 feet long, 14 feet wide and 12 inches deep (Tr. 197). This accumulation was also likely the result of cables shaving coal from the top of a shuttle car (Tr. 216), the coal then being spread out by the drag bar on the bottom of the shuttle car (Tr. 197). Gropp determined that this accumulation could have existed for up to three days (Tr. 214-215). In any event, this accumulation could not in any way have occurred since the last pre-shift examination, because Respondent had not yet started mining on the left side during the inspection shift. (Tr. 214).

At the time of his inspection, Gropp observed that all of the cited accumulations were dry. (Tr. 278). He further testified that each accumulation consisted of loose coal, loose fine and ground up coal, and coal dust including float coal dust (Tr. 199). Gropp conceded that no one present had sieves to measure particle sizes. (Tr. 200). However, regardless of particle sizes, all of the accumulations were combustible and had been left by Respondent. (Tr. 203-205). Gropp further noted that the coal in the cited accumulations was black in color in that the coal was just freshly produced from the mining process and had never been rocked dusted. (Tr. 202). Gropp did not believe the accumulations were sloughage: sloughage is usually on the side of the rib; the cited accumulations were the entire entry width from rib to rib.[37] (Tr. 202).

Gropp testified that the accumulations in Order No. 8033057 were extensive and obvious: the accumulations were from rib to rib, measuring, in total, 400 feet in length; much of these accumulations were outby the face, an area where they should not have been. (Tr. 204). It would not have been possible for the impermissible accumulations not to have been noticed. (Tr. 204). Respondent had utilized three shuttle cards, 2 loaders, and ten miners using shovels, to abate the violations.

The undersigned found Respondent’s attempts at hearing to rebut Grupp’s testimony to be less than persuasive. Gary Rose, the safety inspector at Shoemaker mine when Order No. 8033057 was issued, conceded that he had taken no contemporaneous notes during the inspections nor had he taken any of his own measurements of the cited accumulations. He conceded that it was difficult to remember specifics due to the lapse of time. (Tr. 304, 311). Additionally, Rose admitted that he had no firsthand knowledge of how or when many accumulations had been made. (Tr. 312). Further, Rose’s explanation for why Respondent had not timely dealt with the accumulations was less than compelling. (See also Secretary’s Post-Hearing Brief at p. 24-25). For example, when asked why Respondent had not attempted hand dusting accumulations, Rose answered: “I do not have any idea why they were not doing it at that time.” (Tr. 306).

Respondent’s second witness, Brian Hough, also did not give persuasive evidence to contradict or rebut Gropp’s testimony regarding the §75.400 violation. Hough also had taken no contemporaneous notes, measurements, or photographs of the cited violations but was instead relying on “mental notes.”[38] (Tr. 349-350). Further, Hough testified that he had not seen any accumulations made nor did he sample any accumulations to determine what they were made of. (Tr. 351). It would be impossible for Hough to determine how long the accumulations had existed. (Tr. 366-367). Hough admitted that, after the Order was issued, he had the miner brought back in to clean up the cited accumulations. (Tr. 325).

The ALJ, hereby, incorporates his rationale supra, as to the applicable case law supporting a finding of §75.400 herein without a full recitation thereof.

Gropp, like Edwards, was an experienced miner.[39] While Gropp, like Edwards, had not worked for MSHA for a prolonged period, Gropp had 20 years of experience in mining as well as a B.S. in mining engineering. The ALJ found Gropp to be a credible and reliable historian as to his descriptions of the violative conditions at Shoemaker and accorded substantial weight to Gropp’s testimony. The ALJ found Gropp’s testimony to be more than sufficient to establish the fact of violation of §75.400.

B. Respondent’s violation of §75.400 was Significant and Substantial in nature

The ALJ notes that much of the rationale and case law discussed supra as to Order No. 8030970 is equally applicable to the consideration of Order No. 8033057. The ALJ again incorporates said rationale and case law citations without full recitation thereof herein.

The ALJ again finds that all of the Mathies elements are met. There was a violation of a mandatory standard. A discrete safety hazard – a mine fire or explosion – was contributed to by the violation. (Tr. 205). Gropp’s observation of extensive combustible accumulations at the active 8 South continuous miner section was credibly described. These accumulations, just as the accumulation described by Edwards, would provide a fuel source for fire or explosion. (Tr. 205-206).

Utilizing the Musser/Cumberland interpretation as to the third element of Mathies and applying the rationale used above as to Order No 8030970, there was clearly a reasonable likelihood that the discrete safety hazard contributed to would result in an injury. As testified to by Gropp, a mine fire or explosion would be reasonably likely to result in smoke inhalation, respiratory damage, and crushing internal injures. Such injuries would result in lost workdays or restricted duty to at least the 10 miners Gropp actually observed near the cited accumulations: a miner operator, two bolters, a utility man, and a loader operator on the right side and 2 bolter operators and three miners hanging curtains on the left side. (Tr. 208-209, 273-274). Considering the specific fact pattern established and applicable Commission jurisprudence discussed infra, the ALJ finds that the Secretary has again carried his burden of proving Mathies third element as to Order No. 8033057.

The ALJ further accepts the argument advanced by the Secretary that, given the extensive combustible accumulations, oxygen level, and ignition sources testified to by Gropp, there was a reasonably likelihood of a fire and/or explosion at the subject mine. (See Secretary’s Post-Hearing Brief at p. 27-29).

At the time Gropp issued Order No. 8033057, Shoemaker was a “gassy mine” on 5-day spot inspection because of the high concentration of methane liberated and recorded during the previous inspection quarter. (Tr. 206-207). Respondent did not dispute that Shoemaker liberates more than a million cubic feet of methane a day. (Tr. 207). The cited accumulations were located at the active working face; there could have been face ignitions. (Tr. 280). Equipment and electrical cables were in and on the combustible accumulations (Tr. 200, 206-207, 261-263, 274-275). Shoemaker had, within the last month, been issued five citations for electrical cable openings. (Tr. 207, 259-260, 279). Given that cables are regularly damaged during the mining process, the Secretary established a reasonable likelihood of fire or exploration at Shoemaker Mine. [40] (Tr. 208, 262).

The Secretary persuasively cited several ALJ decisions containing similar fact patterns finding that an S&S violation of §75.400 was warranted. (see Secretary’s Post-Hearing Brief at p. 28-29, including holdings in United States Steel Mining Company, Inc., 5 FMSHRC 1873 (Oct. 1983) (ALJ Broderick) and Youghiogheny and Ohio Coal Co., 8 FMSHRC 330 (Mar. 1986) (ALJ Maurer))

In United States Steel, given that the subject mine was gassy and on a 103(i) spot inspection for methane, that face ignitions had occurred in the past, and that mobile mining equipment operated in the cited areas, ALJ Broderick found S&S. 5 FMSHRC at 1875. In Youghiogheny and Ohio Coal, considering inter alia, evidence of insufficient rock dusting, the fact that the mine was gassy, and on the 103(i) spot inspection for methane, ALJ Maurer concluded that S&S was warranted. 8 FMSHRC at 334.

In light of Gropp’s testimony regarding the extensiveness of accumulations, the significant length of time they were allowed to exist, and the multiple ignition sources existent, a conclusion that a fire or explosion was reasonably likely to occur under continued normal mining operations is supported by the record and above-cited case law. Thus, even if the Secretary had to prove the within §75.400 violation was reasonably likely to lead to injury, the third element of Mathies for this order has been established.

It is essentially undisputed that the injuries expected to result from the hazard of a fire or explosion would be of a reasonably serious nature. The fourth element of Mathies has also been clearly established.

C. Respondent’s violation as set forth in Order No. 8033058 constituted an unwarrantable failure

The same rationale and case law utilized by this Court as to Order No. 8030970 is essentially applicable to this Order. The ALJ again incorporates such within without full recitation.

Applying the Manalapan factors seriatim, the ALJ finds that Gropp credibly described the extensive nature of the violative conditions. The impermissible coal accumulations had existed for a significant length of time. Inter alia, the amount of time expended and the number of individuals required to abate the condition is supportive of such.

The ALJ was not persuaded by the arguments advanced by Respondent in its brief that a lesser degree of danger was posed by the cited conditions. (see Respondent’s Post-Hearing Brief at p. 43-49). However, as noted supra, even if the ALJ were to find that Respondent’s cited factors diminished the degree of danger presented by the §75.400 violations, such a diminished degree of danger would not, under Manalapan, necessarily vitiate a finding of unwarrantable failure.

There are other relevant aggravating circumstances to justify an unwarrantable failure designation, even if the degree of danger was somewhat diminished. Respondent has clearly been placed on notice that greater efforts were necessary to prevent §75.400 violations from occurring. Respondent had been issued 139 violations of §75.400 for impermissible accumulations of combustible materials at the Shoemaker mine in the 2 years prior to the issuances of this Order. (GX-4, 5, page 61-71, Tr. 267) (This number included unwarrantable failure Order No. 8030970 discussed infra).[41]

As to Respondent’s efforts to abate the violative condition prior to issuance of the Order, Respondent admitted it was dilatory in such: Respondent essentially conceded that it chose not to clean up accumulations because the scoop and loader were broken and moving the miner or hand dusting would have taken too long. As noted by the Secretary, Respondent’s inactions appeared to violate its own clean up plan. (Secretary’s Post-Hearing Brief at p. 30; Tr. 218, 221-223).

Finally, as properly pointed out by the Secretary, Respondent’s conduct in essentially ignoring the impermissible accumulations was especially egregious given the high traffic in the cited areas with numerous individuals walking on and around the combustible materials. (See Secretary’s Post-Hearing Brief at p. 30; Tr. 223). Therefore, the ALJ is constrained to conclude that the instant violation was the result of Respondent’s unwarrantable failure and high negligence.

D. The civil penalty of $14,743.00 is affirmed

After carefully considering all of the criteria for assessing a civil penalty as set forth at 30 U.S.C. §820(i), including, inter alia, the fact that Respondent is a larger operator whose ability to stay in business will not be affected by payment of the civil penalty, the ALJ affirms the Secretary’s original assessed penalty of $14,743.00.

III. Citation No. 8033058

A. Respondent violated §75.360(b)(3) as set forth in Citation No 8033058

It is black letter Commission case law that pre-shift examinations are of fundamental importance in assuring a safe working environment for miners. (See Buck Creek Coal Co., Inc., 17 FMSHRC 8, 15 (Jan. 1995); Enlow Fork Mining Co., 19 FMSHRC at 15).

On October 27, 2010 Gropp, after consulting his supervisor, issued Citation No. 8033058, determining that there were inadequate pre-shift examinations conducted on the midnight shift of October 26, 2010 preceding the oncoming day shift on the 8 South continuous miner section, left side MMU 083 and right side MMU 016 (GX-12). Gropp’s citation was essentially based on Respondent’s pre-shift examiners’ failure to note and report the hazardous accumulations described supra and set forth in Order No. 8033057. (GX-12). Despite the obvious and extensive accumulations testified to by Gropp, the pre-shift examiners for the 8 South Right section and 8 South Left section recorded no observations of dangerous or hazardous conditions. (GX-14; Tr. 231).

Even accepting Respondent’s argument that Accumulation Nos. 1, 4, and 5 may have occurred between the time the 8 South right pre-shift examinations had occurred and the time of the inspection – the ALJ finds that even lesser accumulations would have constituted a hazardous condition where the pre-shift examinations were conducted. In order to have given proper warning to miners, all 7 hazardous accumulations should have been observed, noted, and recorded on the pre-shift examinations. (Tr. 211-215, 225).

Inter alia, the ALJ notes the following: accumulation No. 6 had existed for at least one day, when Respondent moved the miner to a new entry. (Tr. 215, 257-258); given that no mining had taken place on the left side between the pre-shift examination and the inspection, accumulation Nos. 2, 3, 6, and 7 would have been present on the 8 South Left section at the time of the pre-shift examination. (Tr. 211-215, 225). Moreover, much of Respondent’s hearing testimony was not presented to show that the accumulations had not existed but to explain why such had not been timely abated prior to inspection. (See also Secretary’s Post-Hearing Brief at p. 33).

A review of the testimony and hearing record reveals clear and convincing evidence, unrebutted by Respondent, that there were extensive impermissible accumulation existent at the time of the pre-shift examinations and that such were not reported in violation of §75.360(b)(3).

B. Respondent’s violation was Significant and Substantial

The ALJ incorporates his review of the applicable standards under Mathies to establish Respondent’s violation was significant and substantial. The Secretary has persuasively carried its burden of proving the fact of a §75.360(b)(3) violation and that discrete safety hazard (mine fire or explosion) was contributed to by that violation. (Tr. 232, 274-275).

The third Mathies element is met pursuant to the Musser/Cumberland interpretations. It is readily apparent that the hazard of a mine fire or explosion at the cited areas in Shoemaker mine, where 10 miners were working, would be reasonably likely to result in an injury. For reasons already discussed supra the ALJ is persuaded that, even if the Secretary were required to show that the violation was reasonably likely to lead to injury, given the factual situation existent at Shoemaker Mine, the Secretary could carry this even more onerous burden. (see also Secretary’s Post-Hearing Brief at p. 34).

The fourth prong of Mathies has also been established. As discussed supra, should there be a fire or explosion, the injuries that would be suffered by miners could be expected to be of a reasonably serious nature. Here, at least 10 miners working the cited area would be exposed to such serious injuries as smoke inhalation with associated respiratory damage and internal injuries from explosion. (Tr. 232, 274-275).

C. Respondent was highly negligent in failing to record and report the impermissible accumulations found by Gropp

§100.3(d) provides that, under the Mine Act, an operator is held to a high standard of care. Inter alia, a mine operator is required to be on the alert for conditions and practices that affect the safety of miners and to take steps necessary to prevent hazardous conditions. The pre-shift examiners’ failure to report the hazardous conditions existent at Shoemaker Mine was found by Gropp to have constituted a grossly negligent departure from the standard of care imposed by the Mine Act.

Given that the required examinations were “of fundamental importance in assuring a safe work environment” (See Buck Coal Co., supra) – the ALJ finds that Respondent’s pre-shift examiners were clearly derelict in their duty to report hazardous conditions and agrees with the high degree of negligence found by the inspector.

The Secretary has ably set forth a summary of the facts established at hearing that would support a high negligence assessment. (see Secretary’s Post-Hearing Brief at p. 35-36). Notwithstanding Respondent’s arguments otherwise, the pre-shift examinations were not conducted in a fashion consistent with what a reasonably prudent person, familiar with the mining industry and protective purposes of §75.400 and §75.360(b)(3), would have done. The pre-examination reports failed to fulfill the primary goal of giving fair and adequate notice of potential hazards to miners. The above-cited record compellingly establishes the high degree of negligence found by Gropp. Both of Respondent’s examiners traveled the same route as Gropp. (Tr. 233, 275-276). Many of Respondent’s managers and employees passed through the cited area. (Tr. 233-234). Respondent violated its own clean up program with regard to the accumulations. (Tr. 234).

Respondent was clearly put on notice that greater efforts were necessary to ensure adequate pre-shifts were being performed: Respondent had received 17 violations of §75.360 in the two years prior to the issuance of the within citation (GX-5 at 55-52). Respondent had been issued an unwarrantable failure order for failing to report hazardous coal accumulations on October 14, 2010 pre-shift examination (GX-9). Respondent had paid the penalty for this order (GX-4). Respondent had been issued 139 violations of 30 C.F.R. §75.400 for impermissible accumulations of combustible material at Shoemaker Mine in the two years prior to the issuance of Order No. 8033057 (GX-5 at 61-71, Tr. 223). Respondent had been issued an unwarrantable failure order on October 14, 2010 (GX-6).

Like the Secretary, the ALJ was troubled by Respondent’s seeming policy and practice not to record or correct pre-shift hazards so as to avoid down-time in production. The ALJ essentially adopts the Secretary’s rationale regarding such as further grounds for a finding of high negligence. (see Secretary’s Post-Hearing Brief at p. 36-37).

The ALJ affirms the assessed civil penalty of $6,996.00.

ORDER

It is hereby ORDERED that Citation No. 8033058 and Order Nos. 8030970 and 8033057 are AFFIRMED.

Respondent is ORDERED to pay civil penalties in the total amount of $25,739.00 within 30 days of the date of this decision.[42]

John Kent Lewis

Administrative Law Judge

Distribution:

Rebecca J. Oblak, Esq., Bowles Rice, 7000 Hampton Center, Suite K, Morgantown, WV 26505

Andrea J. Appel, Esq. and Elaine M. Abdoveis, Esq., U.S. Department of Labor, Office of the Regional Solicitor, Region III, 170 S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106

[1] Hereinafter, the transcript of the proceeding shall be referred to as “Tr.”

[2] Government exhibits will hereinafter be referred to as “GX” followed by the number.

[3] An EO1 inspection is a regular, quarterly inspection of the entire mine. (Tr. 23).

[4] There was an error on this form; Edwards flipped the miner’s representative and the company representative. (Tr. 32). He inserted the wrong names on the lines. (Tr. 33, 98).

[5] There was not a solid line of accumulations; some spots were worse than others. Tr. 93, 94.

[6] He took some measurements with the 25-foot tape measure. (Tr. 137-138). He measured the width of the accumulations by using the width of the 72-inch belt and the depth of the accumulations with the tape measure. (Tr. 137).

[7] Edwards knew this was a gassy mine because every quarter MSHA takes a return bottle sample and sends them to the labs for analysis. (Tr. 60). This showed how much methane was liberated from the coal mine at various strategic locations in the return air for 24 hours. (Tr. 60). These numbers together dictate how often a mine needs to be on a spot inspection for methane. (Tr. 60). Shoemaker was on a five-day spot. (Tr. 60-61). This means every fifth day the mine needs an EO2 inspection for liberation of methane. (Tr. 60-61).

[8] Edwards called his supervisor, Joe Facello (“Facello”), at the mine before he returned to the field office. (Tr. 163). Edwards was not directed to issue the Order. (Tr. 163). He only called to ensure that writing 104(a) citations (for belt rubbing structure and other issues) in addition to the order was the appropriate process. (Tr. 163, 164).

[9] The evidentiary support for this citation will be discussed below.

[10] Thirty C.F.R. §75.400 is a “Rules to Live By” standard. (Tr. 151). The Rules to Live By identify and informs operators of the standards that result in the most fatalities when violated. (Tr. 69, 150, 151).

[11] The Aracoma Alma #1 Mine experienced a mine fire on January 19, 2006 caused by frictional heat generated by a misaligned longwall belt. See Report of Investigation Fatal Underground Coal Mine Fire January 19, 2006 Aracoma Alma Mine #1 Aracoma Coal Company, Inc. Stollings, Logan County, West Virginia I.D. No. 46-08801. The fire resulted in the deaths of two miners. Id.

[12] The photographs are contained in Respondent’s Exhibit 3, with each given a separate page number. Tr. 73. Respondent’s exhibits will hereinafter be referred to as “RX” followed by the number.

[13] The measurements listed in the Order No. 8030970 that were 15 and a half feet or less were made with the tape measure, the other measurements were walked off with each step being a yard. (Tr. 198). When Gropp took the measurements the Norton and Miller were with him; however, Rose may have left. (Tr. 241).

[14] The miner cable was hanging up at the No. 3 entry across crosccut 3 to 4 and the shuttle cars were passing and likely scraping the coal from the cars. (Tr. 216). This would apply to accumulation Nos. 4 and 5, but mostly 4. (Tr. 216).

[15] A pre-shift report is prepared before anyone can go underground for the next shift to let people know about hazardous condition in the area. (Tr. 229). An on-shift exists so an examiner can record air readings, the error, observations, and corrections of violations or hazardous conditions during the shift. (Tr. 229). The on-shift in GX-14 did not occur on the same shift as Gropp’s inspection. Tr. 230. Instead, it occurred on the previous midnight shift. Tr. 230.

[16] “Above” referred to No. 7 which stated, “After holing the middle crosscut, miner will be backed up 30 feet; clean both ribs as well as the coal in the intersection.” (Tr. 218-219).

[17] Whether or not sloughage from the rib is combustible depends on whether it is coal, whether it is rock dusted, and whether there is methane in the air or another source of ignition. (Tr. 306). However, material is combustible whether or not there is an ignition source. (Tr. 306-307).

[18] Later, he remembered the supervisor on the left was Pribila and the right was Yorty. Tr. 357.

[19] Hough opined that all violations are not necessarily hazardous conditions. (Tr. 346). He stated that the accumulations here were not a hazardous condition and would not be unless they were extreme. (Tr. 346). However, Hough did not actually see the conditions. (Tr. 346-347). He reviewed the books and found that the examiner did not believe the conditions were extreme. (Tr. 346-347). Hough did not know if the miners stopped mining to clean them up. (Tr. 347).

[20] See also, Edwards’ descriptions of damaged rollers at 8-3 and 8-23 crosscuts that could become frictional heat sources. (Tr. 44-45).

[21] The ALJ notes that Respondent also failed to present any scientific testing evidence. The problematic nature of its proffered photographs shall be discussed infra.

[22] MSHA is encouraging underground mine operators themselves to collect and evaluate rock dust/coal samples. Last year, NIOSH verified the effectiveness of the coal dust explosibility meter (CDEM) to evaluate rock dust/coal dust samples to determine whether rock dusting was adequate to prevent explosions. See MSHA Program Information Bulletin No. P13-01, “Availability of a Report on the Use of the Coal Dust Explosibility Meter,” dated Jan. 25, 2012.

[23] At page 2 of his brief, footnote 1, the Secretary ably summarized Edwards’ experience:

MSHA Coal Mine Inspector David M. Edwards (“CMI Edwards”) has been employed by MSHA since January 7, 2007 (Tr. 15). During his tenure with MSHA, CMI Edwards has attended the 21-week coal mine inspector training program and traveled (sic) with certified Coal Mine Inspectors for on-the-job training (Tr. 16). Both the training program and the on-the-job training specifically covered the areas of fire hazards and combustible accumulations (Tr. 16-19). CMI Edwards has earned his certified mine foreman’s papers in Ohio and West Virginia and, since joining MSHA, has earned a certified electrician’s card for both surface and underground and an MSHA training certificate to train underground examiners to qualify for certification as mine foremen (Tr. 19). CMI Edwards had 18 years of underground coal mine experience prior to joining MSHA, including more than six years as a certified mine examiner for Consol Energy in the Shoemaker Mine (Tr. 19, 21). At Shoemaker, CMI Edwards was a certified mine foreman, conducted pre-shift examinations and received fire-boss training (Tr. 21). CMI Edwards has an Associate’s Degree in Electro-Mechanical Engineering (Tr. 20).

[24] The ALJ shall discuss infra why such possibly mitigating evidence as general wetness, rock dusting, and intermittent non-violative areas would not necessarily preclude findings of S&S and/or unwarrantable failure.

[25] Due to changing conditions associated with mining operations and environment, the ALJ had to consider the possibility that the scenes photographed by Rose may not have been an accurate reflection of the conditions witnessed by Edwards at the actual time of the inspection.

[26] Inter alia the ALJ has considered this to be a mitigating factor in denying the Secretary’s request for an increased penalty beyond $4,000.00.

[27] Respondent’s Post-Hearing Brief at p. 38 cites Tr. 294-295 for the proposition that the cited area was damp to wet. However those pages contain Rose’s testimony on Order No. 8033057 and are not relevant to the immediate discussion on Order No. 8030970.

[28] The black color of the float coal dust would, on visual inspection, indicate little or no non-combustible rock dust component.

[29] See inter alia Tr. 43 wherein Edwards testified that when he and Terry Wilson touched the belt it was “actually hot.”

[30] Pursuant to 30 U.S.C. §813(i) a gassy mine liberates more than one million cubic feet of methane.

[31] As noted infra, for S&S determinations the evaluations of the reasonable likelihood of an injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC at 1836. Further, the determination of S&S must not be based on the facts existing at the time of the citation issued but also in the context of continued mining operations without any assumptions as to abatement. Secretary of Labor v. U.S. Steel Company, Inc., 6 FMSHRC 1573, 1574 (July 1984). Thus, it cannot be inferred that the violative condition will cease. Secretary of Labor v. Gatliff Coal Company, 15 FMSHRC 1982, 1986 (Dec. 1992).

[32] See also Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (finding unwarrantable failure indicated when the operator was cited 88 times during the prior two years period for §75.400 violations).

[33] “[T]he Commission shall consider the operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.” 30 U.S.C. §820(i).

[34] Gropp was accompanied by UMWA Safety Committee representative, John Miller, Respondent representative, Foreman trainee Craig Norton, and Safety Inspector, Gary Rose. (Tr. 183).

[35] See summary of Gropp’s testimony supra for full description of impermissible accumulations.

[36] See also Secretary’s Post-Hearing Brief argument regarding Respondent’s failure to challenge Gropp’s calculations at p. 20-21; see also Tr. 215-216.

[37] In any case, Respondent admitted that rib sloughage constituted combustible material. (Tr. 306-307).

[38] The ALJ found the Secretary’s argument in his Brief at pages 25-26 persuasive as to the limited probative value of Hough’s testimony.

[39] see summary of Gropp’s background supra and summary of such in Secretary’s Post-Hearing Brief at 18, footnote 6.

[40] Trailing cables, even if intact at the time of the inspection, have been found to be ignition sources for coal accumulations. Utah Power & Light, 12 FMSHRC 965, 971 (1990).

[41] The ALJ notes Respondent’s argument that the Secretary has failed to present a sufficient “breakdown” of the previous 139 citation that had been issued. (Respondent’s Post-Hearing Brief at p. 33). Respondent cited no case or statutory law for the proposition that such a failure would preclude an S&S or unwarrantable failure finding. Indeed, our Commission case law indicates that previous violations cited, not just those involving the same facts, constitute an aggravating factor. (see inter alia San Juan Coal Co., 29 FMSHRC at 131 (past violations in a different area of the mine may provide an operator with sufficient awareness of an accumulation problem to be considered for unwarrantable failure).

[42] 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