FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE: 202-434-9958/FAX:202-434-9949

July 17, 2013

DECISION

Appearances:              Matthew S. Shepherd, Esq., Schean G. Belton, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for Petitioner;

                        Marco M. Rajkovich, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, Kentucky, for Respondent.

Before:                        Judge Tureck

These cases are before me on two Petitions for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Tennco Energy, Inc. (“Respondent”), pursuant to §105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815 (“Act”). The first, filed on October 19, 2010, was docketed as KENT 2010-1511. It alleges one violation of the Mine Act and proposes assessing a penalty of $2,000. The second, filed on February 25, 2011, was docketed as KENT 2011-499. It alleges two violations of the Mine Act and proposes assessing $52,500 for each alleged violation for a total of $105,000 in penalties. Respondent contends that the citation and orders should be vacated.

The following are the issues to be resolved in this case: (1) whether Respondent violated 30 C.F.R. §§ 75.202(a), 75.360(f), and 75.364(b); (2) whether the violations were significant and substantial; and (3) whether the violations were attributable to Tennco’s high negligence and unwarrantable failure to comply with the standards.

The two cases were consolidated for hearing and decision. A formal hearing was held in Somerset, Kentucky on March 15-16, 2012, and a subsequent hearing was held on April 4, 2012, in Hazard, Kentucky. At hearing, Government Exhibits 1 through 18, Government Exhibit “Map,” and Respondent’s Exhibits A(1), A(2), A(3), CC, DD, EE, FF, LL, N, O, OO, Q, R, RR, S, T, UU, VV, and Y were admitted into evidence. Both parties then filed post-hearing briefs, the last of which was received on July 30, 2012.

I. Stipulations

The parties stipulate as follows:

1. At all times relevant to this proceeding, Tennco Energy, Inc. was the operator of the Hance Mine No. 1, Mine ID No. 15-19408.

2. The Hance Mine No. 1 is a “mine” as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. § 802(h). 

3. At all times relevant to this proceeding, products of the Hance No. 1 entered commerce, or the operations or products thereof affected commerce, within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.

4. Employees at the Hance Mine No. 1 produced approximately 224,000 tons of coal in 2010.

5. A copy of the citations/orders at issue in this proceeding was served on Tennco Energy, Inc. by an authorized representative of the Secretary. 

6. Tennco Energy, Inc. timely contested the citations/orders.

7. Tennco Energy, Inc. is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and the presiding Administrative Law Judge has the authority to hear this case and issue a decision regarding this case.

II. Findings of Fact and Conclusions of Law

Hance Mine No. 1 (“Mine”) is a single section, underground drift coal mine located in Middlesboro, Kentucky and operated by Tennco Energy, Inc. TR1 9, 32. The average height of the Mine is seven feet. TR1 35. At the Mine, Respondent uses the room and pillar mining method. TR1 36-37. The Mine was designed with a primary and secondary escapeway. TR1 45. The secondary escapeway, also known as the No. 2 entry, serves as the main travelway to the No. 1 section of the Mine. TR1 43-44, TR2 407, TR2 588, Sec’y Br. 2-3. It is approximately 2,800 feet in length. TR1 40. At the time the citation and orders were issued, 32 people worked at the Mine, which had only been in existence for approximately ten months. TR1 38, TR2 485.

On June 22, 2010, Luther Shelton, a roof bolt machine operator at the Mine, sat down on a cardboard box next to a rib in the No. 1 section where he had been working that morning and began to eat his lunch. TR1 10, 62-63. Randy Miracle, Shelton’s roof bolting partner, noticed a chunk of loose coal begin to fall above Shelton’s head. TR1 351. Miracle warned Shelton about the loose piece of coal but, as Shelton got up, it fell on him and fractured two bones in his lower back. TR1 351-52. Shelton was transported out of the Mine and was flown by helicopter to a hospital at the University of Tennessee. TR1 10.

Alex Sorke, Tennco Energy’s safety consultant, called MSHA and the State of Kentucky to report the accident at around 12:30 p.m. TR2 616. MSHA issued a §103(j) order telephonically at 12:39 p.m., which required that all employees withdraw from the Mine and stop all underground activity. TR1 58, 465. MSHA mine safety and health specialist James Lundy arrived at the Mine at about 1:35 p.m. to investigate the accident and, upon his arrival, the §103(j) order was modified to a §103(k) order. TR1 58-59. Lundy had been employed with MSHA since 2006 and his duties as a mine safety and health specialist included conducting environmental surveys, participating in inspections, and going underground into the coal mines about three or four days a week. TR1 19, 28. Lundy was also trained in accident investigations. TR1 29. At the time of the hearing, he had close to 28 years of mining experience. TR1 26. After speaking to the miners who were standing outside about the accident, Lundy entered the Mine at approximately 2:25 p.m. TR1 63. Lonnie Curnutt, MSHA’s acting field office supervisor; Alex Sorke, Tennco Energy’s safety consultant; Mike Runyon, the Mine superintendent; and two individuals from Kentucky’s Office of Mine Safety and Licensing, accompanied Lundy underground via two mantrips. TR1 64-65.

Lundy and the group headed to the No. 1 section of the Mine to gather information on what had caused Shelton’s accident. TR1 65. Lundy testified that while traveling on the mantrips through the No. 2 entry, or secondary escapeway, he saw ribs that were sloughing and fractured, including approximately 50 loose ribs. TR1 65-66. Lundy also saw ribs which had slabs of loose rock and loose coal tilting out towards the roadway. Id. There was a general discussion about recent changes in the mine ribs over the past few weeks, and Sorke mentioned that the ribs had taken on some moisture. TR1 69. As the party traveled towards the No. 1 section of the Mine through the No. 2 entry, Lundy testified that he noticed vertical cracks on ribs and saw bits and chunks of coal, some as much as three or four feet long, hanging horizontally from the stable rib material in approximately 40 to 50 places. TR1 70.

According to Lundy, once the group arrived at the No. 1 section, he saw an area where a roof fall had occurred that had been “dangered off” against travel. TR1 77. Lundy also observed a loose rib immediately inby the corner clip where the accident had taken place. TR1 78. Specifically, Lundy noticed a fractured rib that was jutting out into the entry and a pillar that appeared as if it was taking a lot of weight with its fireclay mud oozing out. Id. The fractured rib had a crack that measured at least half an inch out from the rib. TR1 81. Further, there was fresh rock dust that had fallen from the area, which showed that the crack in the rib was fairly recent. TR1 82. The fractured rib was 10 feet away from the accident scene. TR1 83.

After investigating the No. 1 section, Lundy walked back up the secondary escapeway about 300 or 400 feet past the feeder, made some observations, and then turned around. TR1 95, 290. While there, Lundy stated that he observed about four or five roof and rib problems, including some sloughage and pillars that had taken weight. TR1 97. Lundy stated that he took photographs of the accident scene, various parts of the secondary escapeway, and the examination records. TR1 101, 102, 197. Lundy then spoke to Runyon and told him that he saw a lot of sloughage on ribs and areas where cracks were present, and asked Runyon why the conditions had not been noted in the examination records. TR1 222-23. Runyon answered that he had seen the conditions but did not think that they were bad enough to put in the book. TR1 223. Lundy told Runyon that he disagreed with his assessment of the conditions and that he would be issuing citations for the conditions that he found in the Mine. Id. In order to abate the citations, Tennco Energy was required to modify the Mine's roof control plan and supplement it with a rib control plan. TR1 225.

The following day, on June 23, 2010, Lundy issued a citation and two orders to Tennco Energy for the conditions he had observed. TR1 230. The citation and orders were served on Sorke when he arrived at the MSHA District 7 office to get the Mine’s’s roof control plan changed to include rib control measures. TR1 225, 230. A revised roof control plan was issued on June 24, 2010 and added the use of cord lashing to control the ribs. TR1 228. Tennco Energy commenced the cord lashing process on June 24, 2010 and completed cord lashing on June 30, 2010, lashing close to 70 percent of its pillars. TR1 229-30.

Citation No. 8335474

Lundy issued a §104(d)(1) citation, No. 8335474, alleging a significant and substantial violation of 30 C.F.R. §75.364(b) that was “highly likely” to result in an injury or illness that could reasonably be expected to be “permanently disabling,” and was caused by Respondent’s “high” negligence and “unwarrantable failure” to comply with the standard. Section 75.364(b) requires:

At least every 7 days, an examination for hazardous conditions at the following locations  shall be made by a certified person designated by the operator:

(1) In at least one entry of each intake air course, in its entirety, so that the entire air course is traveled.

(2) In at least one entry of each return air course, in its entirety, so that the entire air course is traveled.

(3) In each longwall or shortwall travelway in its entirety, so that the entire travelway is traveled.

(4) At each seal along return and bleeder air courses and at each seal along intake air courses not examined under §75.360(b)(5).

(5) In each escapeway so that the entire escapeway is traveled.

(6) On each working section not examined under §75.360(b)(3) during the previous 7 days.

(7) At each water pump not examined during a preshift examination conducted during the previous 7 days.

The “Condition or Practice” is described in the citation as follows:

The weekly examination for hazardous conditions book for this mine does not include any reference to the ribs that are sloughing throughout the mine. The examiner admits the ribs are sloughing and spalling but that he does not think they are that bad. The condition is widespread even in the primary and secondary escapeways. The condition is obvious to a casual observer. Diligent examinations and accurate assessment of conditions are necessary to the safety of the miners. The mine is currently under a 103(k) order. When the order allows, a weekly examination must be made of the mine with accurate statement of conditions and actions taken. This action on the part of the examiner constitutes more than ordinary neglect, and is an unwarrantable failure to comply with a mandatory safety standard.GX 1.

The Secretary proposes a penalty of $2,000 for this alleged violation of 30 C.F.R. §75.364(b) since no hazardous conditions were noted in the weekly reports after the examinations were performed on June 14 and June 21, 2010. Sec’y Br. 5. The hazardous conditions that the Secretary alleges existed in the Mine were widespread sloughing of ribs and the existence of 40-50 loose ribs in the primary and secondary escapeways. GX 1, Sec’y Br. 6, Sec’y Reply Br. 5. The Secretary contends that photographs in evidence as GX 9-O, 9-Q, 9-R, 9-T, 9-V, 9-W, and 9-X show the extent of the conditions that should have been included in the weekly examination reports. Sec’y Br. 6, Sec’y Reply Br. 5. The Secretary further contends that §75.364(b) was violated because these conditions would have been present during the weekly examinations that took place on June 14 and June 21, 2010, and should have been noted in the examination records. Id.

Respondent contends that this citation should be vacated. Specifically, Respondent argues that weekly examinations were performed by Runyon, the Mine superintendent, on June 1st, June 7th, June 14th, and June 21st, respectively. Resp’t Br. 16, 18. The route Runyon took to perform these weekly examinations was to travel up the return entry all the way to the working section, cross into the intake, proceed to the secondary escapeway, and then exit the mine via the primary escapeway. TR2 448-51. He traveled through the areas where Lundy observed the allegedly hazardous conditions. Id. The Respondent argues that on all of these examinations, Runyon observed sloughing, but saw no hazards, and that Runyon was in the mine in between weekly examinations but saw no changes in the ribs at those times. Resp’t Br. 16, 18. The Respondent further contends that on the day of the accident, June 22nd, Runyon had been in the No. 1 section, the section where the accident occurred, and he saw sloughage but he did not see any hazards. Resp’t Br. 19.

During the weeks prior to the accident, MSHA Inspector John Sizemore, MSHA Engineer Mark Hiser, and MSHA personnel Kyle Nelson and Jamie Crawford had been in the Mine to perform inspections and tests. TR2 425, 432, 588, 596, 601, 603, 610-12, 614. Sizemore had been in the Mine on seven different days prior to June 22nd and traveled the very same roadways that Lundy would later travel. Id.; TR1 296. On May 21st, Sizemore was at the Mine for a general inspection and to conduct a respiratory dust survey. He was accompanied by Runyon. TR2 425. They traveled through the secondary escapeway all the way to the section via a golf cart and saw sloughage. TR2 425-26. Sizemore made no mention of the ribs and there were no citations or orders issued for the ribs or the sloughage observed. TR2 428-29. On May 25th, Sizemore returned to the Mine and traveled once again along the secondary escapeway with Sorke. TR2 588-89. They viewed the ribs and saw sloughage, but Sizemore made no mention of hazards, made no comments regarding the roof or the ribs conditions, and did not issue any citations or orders related to rib control that day. TR2 591-92, 594.

On June 1st, Sizemore and Sorke traversed up the No. 1 beltline. TR2 596. On this particular inspection, however, Sizemore issued a citation because of a piece of dislodged rib. TR2 597. Sorke testified that the dislodged rib had been there for three months and was simply leaning against a wall. Id. Sizemore made no comments about any other ribs. Id.; TR2 600. On June 3rd, June 7th, June 8th, and June 15th, Sizemore returned to the Mine for various reasons and traveled in and out of the primary and secondary escapeways and through selected crosscuts. TR2 436, 446, 602, 606, 615. On these visits, he was accompanied by either Sorke or Runyon. Runyon testified that Sizemore saw the sloughage but voiced no concerns about ribs, and issued no citations or orders related to ribs. TR2 435-36, 445-46. In addition, Hiser was in the Mine on June 10th along with Nelson and Crawford. They entered through the return entry and traveled to the No. 1 working section. TR2 610-12. He was accompanied by Sorke, who testified that all three had the opportunity to look at the ribs in the No. 1 section and went through all seven passageways of the section, but no citations or orders were issued. TR2 611, 613-14.

Further, it should be noted that Lundy testified that the Mine had an excellent reputation and, as far as he knew, had no previous accidents involving the roof or ribs. TR1 293-94.

A copy of Respondent’s weekly examination records for the Mine was admitted into evidence. The records for the examinations that took place on June 1, June 7, June 14, and June 21, 2010, under a column labeled “hazards noted”, state “none at time of exam” for each date. RX CC. Thus, if sloughing or other conditions that actually were hazardous existed on these dates, Respondent would have violated §75.364(b) as alleged by the Secretary by failing to list the sloughage and loose ribs in the weekly reports.

The Secretary bases his case regarding Citation No. 8335474 on the testimony of Inspector Lundy supplemented by his inspection notes and the photographs he took during his June 22^nd inspection of the Mine following the accident. The photographs the Secretary is relying on to support Lundy’s testimony of the violations are of poor quality. They are photocopies of photographs, and in addition are not well lit. Nevertheless, they are clear enough to show some sloughing and cracks in the ribs somewhere in the secondary escapeway on June 22, 2010. But Lundy did not follow MSHA’s internal guidelines by labeling the date, time, location, and a brief description of the photos (see RX OO), and had great difficulty in trying to identify where each photo was taken. For one thing, he was terribly confused about where he traveled in the Mine. His notes of the inspection state that he traveled up the secondary escapeway (RX UU at 9), which is accurate. But despite this entry in his notes, he testified consistently that the photographs he took other than at the accident site were taken in the primary escapeway. See infra. Then, under cross-examination, he stated that he had made a mistake, and he actually traveled in the secondary escapeway. TR1 288, 290. But he was sure he traveled in only one of the escapeways. TR1 290. So his entire testimony regarding the locations where his photos were taken is incorrect. Lundy’s inspection notes provide no details regarding the specific locations of the loose ribs that he allegedly saw. TR1 288-89, TR3 77-78; RX UU, VV.

Further, since Lundy traveled only the secondary escapeway, all of Lundy’s photos were of the No. 1 section where the accident took place and of the secondary escapeway. TR1 289, TR3 19, TR3 79. There are no photos in evidence of the conditions in the primary escapeway. Moreover, his admission that he only traveled in one of the escapeways, which would have been the secondary escapeway, is in conflict with the citation, which states that “[t]he condition is widespread even in the primary and secondary escapeways.” Emphasis added. In stating that the condition was widespread in both escapeways, he relied upon what he was told by his supervisor, Lonnie Curnutt, regarding the conditions in the primary escapeway. TR1 322. The Secretary did not call Curnutt as a witness. Thus, there is no reliable evidence that there was any sloughing, loose ribs, cracks in ribs or any hazardous conditions in the primary escapeway.

Further, Lundy was deposed a week before the hearing, and was specifically questioned regarding the locations of the photos taken to show sloughing and loose ribs. During that short interval between his deposition and the hearing, he changed his mind regarding the sites where most of the photos were taken, but for the most part neither his deposition testimony nor his testimony at the hearing is correct.

Specifically, Lundy testified at the hearing that GX 9-O showed the condition at the No. 4 crosscut, but a week earlier during his deposition he had not been able to remember the location. TR1 152-54. Sorke testified, however, that GX 9-O could not have been taken within the first four crosscuts in the Mine because the ribs in those crosscuts were not banded after the inspection. TR2 642. He opined that Lundy would surely have had the Respondent band the area if he thought it needed remedial action prior to terminating the citations. TR2 642-43.

Lundy testified that GX 9-O showed rib failures that had extended out into the Mine floor and on to the roadway. TR1 156-57. However, he also testified that he did not see a hazard unless a person was close to the rib. TR1 342. Runyon testified that there were no hazards shown in GX 9-O. TR2 518. Specifically, he testified that GX 9-O showed sloughage but he did not see any hazards since the sloughage was on the ground. Id.

Lundy testified that GX 9-Q was a photo of the No. 5 pillar in the primary escapeway. TR1 159. But he testified that he did not go into the primary escapeway. Sorke testified that the photo was of the offset and rib at the accident site. TR2 639. He is familiar with the site because he helped Lundy take measurements there. TR2 640. Lundy testified that the photo showed a thin fracture on the rib, a vertical crack that went from the mine floor almost to the roof on the rib, and coal material that had fallen from the rib on to the mine floor. TR1 163. However, he later testified on cross-examination that there were no hazards inherent to the rib shown in GX 9-Q. TR1 342. For the Respondent, Sorke testified that GX 9-Q showed flaking of the ribs and a spot on a rib where examiners may have pulled down a piece of coal. TR2 641-42. Runyon testified that there were no hazardous conditions shown in GX 9-Q. TR2 518.

Lundy testified that the photo in GX 9-R was taken in the No. 2 crosscut outby the primary escapeway; but admitted that he had been wrong regarding the location during his deposition a week earlier. TR1 166, 170. He testified that the hazard shown in GX 9-R was a fracture in the rib. TR1 166. Sorke could not identify from the photo where it was taken but testified that he saw no hazards. TR2 638. Runyon also testified that there were no hazards shown in GX 9-R. TR2 519.  

Regarding GX 9-T, Lundy testified that the photo was taken by the No. 2 pillar of the primary escapeway; but he testified at his deposition that the photo was taken in the outby corner of the first pillar underground. TR1 172, 174. In either case, since he testified he did not go into the primary escapeway, his testimony cannot be correct. Sorke disagreed with Lundy’s testimony regarding both of these sites, placing the location between the 18th and 19th crosscuts and the left corner of the 19th pillar. TR2 637. Lundy testified that the hazardous condition shown in GX 9-T was a pillar with an overhanging brow and a sloughed off rib underneath it. TR1 172. He also observed a crack in the top portion of the overhanging brow. TR1 172-73, TR1 336. Sorke explained that since the overhanging brow was not in the roadway, there was no hazard. TR2 519. Further, Sorke explained that the presence of a crack is not a hazard. It would only be a hazard if the crack was in the corner of the pillar and the pillar was hanging. TR2 523. He opined that a straight line crack, by itself, would not be a hazard. Id.

Regarding GX 9-V, Lundy testified that the photo was taken between the No. 2 and No. 3 crosscuts of the primary escapeway. TR1 176. Again, since he testified that he did not travel in the primary escapeway, this identification is incorrect. Sorke contradicted Lundy’s testimony, stating that the photo was taken between crosscuts 17 and 18. TR2 634-35. Similar to Sorke, Runyon also testified that the exhibit was located between break 17 and 18 on the left-hand side of the roadway going up the secondary escapeway on the return neutral. TR2 521. The hazard that Lundy identified in the photo was the sloughing of the ribs. TR2 177. Neither Sorke nor Runyon saw any hazards. TR2 636, 519. 

Government exhibit 9-X is a close-up of the photo in GX 9-W. Lundy testified that the photos were taken between the No. 2 and No. 3 crosscuts at the second full pillar underground of the primary escapeway. TR1 181, 185. He took the photos to show the “bread loafing type effect” of the rib material as it started to break and slough into the entry and to show that the condition was obvious. Id. As has been noted several times above, the photos could not have been taken at the location specified by Lundy because he did not travel the primary escapeway on June 22, 2010. Although Runyon could not identify the exact location where the photos were taken, he did not see any hazards in either photo. TR2 521-22. Sorke also could not identify the specific location where the GX 9-X photo was taken but testified that it was not located in No. 2 and No. 3 crosscuts of the primary escapeway because the ribs in that area were not banded and had no sloughage. TR2 633. Sorke, however, identified the location of the photo in GX 9-W, stating that it was taken at the end of the No. 18 pillar and at the corner of the 19th pillar. TR2 636. He then realized that GX 9-W and 9-X were photos of the same area. TR2 637.

To add insult to injury, Lundy took additional photos, but lost the camera. TR1 270.

The only evidence the Secretary is left with to prove a violation of §75.364(b) is Lundy’s testimony that there was sloughing, loose ribs and cracks in ribs somewhere in the secondary escapeway which should have been noted in the weekly examination reports of June 14 and 21. Lundy alleges that the conditions were obvious to the casual observer and were evident in the two weeks prior to Shelton’s accident. TR1, GX 1. However, Sizemore and Hiser, the MSHA inspectors, were in the mine in the two to three weeks prior to Shelton’s accident and neither discussed widespread hazardous ribs with Sorke or Runyon. In fact, Sizemore was in the mine seven times in the weeks proceeding the accident, between May 21^st, and June 15th, and only cited the mine one time, for a single loose rib on June 1st. TR2 597. Sizemore also accompanied the third shift mine foreman on a preshift examination on June 3rd and, after the preshift examination, no one reported to Sorke any problems about ribs or sloughing. TR2 602. Sizemore made no mention of loose ribs or hazardous conditions to either Runyon or Sorke during the other six times he was in the mine. In fact, until the accident, no MSHA inspectors had mentioned sloughage issues to Runyon. TR2 417.

In light of all the defects in Lundy’s testimony, as well as the failure of other MSHA inspectors to find similar hazardous conditions during the period Lundy alleges these conditions should have been reported in the weekly reports, the Secretary has not met his burden of proof regardless of Respondent’s contrary evidence. Therefore, Citation No. 8335474 must be vacated.

But even if it is held that the Secretary’s evidence, despite its considerable flaws, is sufficient to meet the Secretary’s initial burden of proving a violation of §75.364(b), Respondent’s contrary evidence outweighs the Secretary’s.

There is a fundamental difference between the parties with regard to whether sloughage and the loose ribs are hazardous and whether loose ribs actually existed in the mine in the weeks leading up to the accident. Section 75.364(b) only requires an inspection for “hazardous conditions”. Respondent admits that sloughage exists in the Mine, but argues that sloughage is not a hazard. Similarly, Respondent, without conceding that there were loose ribs in the Mine, argues that loose ribs are not inherently hazardous and are removed as soon as they are discovered.

Government Exhibit 9-O, 9-Q and 9-T do show sloughing of some rib material onto the Mine floor. GX 9-M, 9-N, 9-Q, 9-R and 9-T appear to show cracks in ribs. However, it is unclear just by looking at the photos if the conditions shown in the exhibits are hazardous. Thus, a deeper analysis of the testimony is necessary. Although Lundy characterized the conditions that he observed as hazardous, and testified that the conditions had existed for at least two weeks prior to Shelton’s accident, he later testified that he saw no imminent dangers or hazards that would have necessitated stopping his investigation and requiring an immediate clean-up. TR1 257, 308-09.

Lundy testified that he observed about 50 loose ribs as he traveled to the No. 1 section. TR1 66. But as was pointed out above, Lundy’s opinion is suspect. Lundy testified that he saw a fractured rib with a crack 10 feet from the scene of the accident. TR1 83. He testified to seeing this loose rib pulled down with a slate bar two or three days after the accident. TR1 383-84. Sorke testified that there was, in fact, a loose rib that was pulled down three or four days after the accident but disagreed with Lundy, stating that the loose rib that was pulled down was not evident on the day of the accident investigation. TR2 633. He also opined that he could not believe Lundy failed to take a picture of this loose rib if it had been apparent at the time of the accident. Id. So although a loose rib was taken down a few days after the accident, the only proof that it was there on June 22^nd is Lundy’s testimony which is contradicted by Sorke. Regardless, there is no reliable evidence that there were widespread loose ribs, as alleged in the citation.

Neither Sorke nor Runyon believed that the ribs in the Mine were hazardous. Runyon explained that what he looked for when examining ribs was to ensure that they were stable and not sloughed out into the roadway. TR2 414. If the ribs were sloughed out into the roadway, then the sloughage was cleaned up with a scoop or a low track. Id. Runyon further explained that unless the ribs were sloughing out into the roadway, they were left alone because digging out the ribs would only increase the amount of sloughage. TR2 415, 421. Further, if any part of a rib had broken loose but had not sloughed out, it would need to be pulled out with a bar and removed from the area. TR2 416. Miners were cautioned to stay away from ribs, and Runyon testified that it is hazardous to sit under sloughage. TR2 417, 506. Sloughage that is hanging and ready to come down is hazardous but the sloughage that is already on the ground is not hazardous. TR2 525. Further, changes in the underground mine temperature from the winter to the summer months result in condensation that will dampen the ribs. TR2 418. The middleman in the ribs absorbs the condensation and starts flaking out and, in turn, causes the ribs to start sloughing. TR2 419-20. Runyon testified that nothing can be done to prevent the sloughage and that the only remedies were to clean up the sloughage if it got into the roadways and to provide additional support to the ribs. TR2 420-21.

 Runyon was in the mine frequently in the weeks before the accident and testified that the ribs had not changed when he conducted his weekly examination on June 1, 2010. TR2 451. On that day, he saw sloughage in the No. 2 entry that had been there in the past but he did not see any hazardous conditions from the rib sloughage. TR2 451-52. On June 7, Runyon went up the No. 2 entry, which was the same route as on June 1, 2010, and he saw minimal sloughage but no hazards. TR2 453. Runyon also went up the entries everyday between June 1st and June 7th when he was not conducting his weekly examinations and he did not see any changes in the ribs. TR2 454.

On June 8th, Runyon traveled with Sizemore on his inspection. Runyon observed no changes in the ribs from the weekly examination that he had conducted the day before on June 7th. TR2 455. On June 14, 2010, Runyon once again traveled up the No. 2 entry to perform his weekly examination and saw sloughage but no hazards. TR2 455. On the weekly examination that took place on June 21, 2010, Runyon traveled the same route and saw sloughage, but once again saw no hazards. TR2 456. On all of his weekly examinations, Runyon traveled up both the primary and secondary escapeways in their entirety. TR2 450-51,455. Runyon accompanied Hiser on his inspection on June 10, 2010, which included an imminent danger run. TR2 460. An imminent danger run requires going across the face of the mine and making sure that it is cleaned up and rock dusted, checking the test holes, checking that bolts are anchored in the right spads, and looking at the ribs. Id. Runyon testified that he saw sloughage but no hazards. TR2 457. From June 10th through June 21st, Runyon saw very little changes in the ribs. TR2 461. Finally, on June 22nd, the day of the accident, Runyon was in the No. 1 section within the hour before the accident. TR2 463. He had seen sloughage but had not seen any hazards. Id. Runyon testified that he did not believe the sloughage he observed was hazardous and did not place these observations in the weekly examination book because sloughage, by itself, was not considered a dangerous condition. TR2 478-79.

Sorke also did not see any hazardous conditions in the mine related to loose ribs. He testified that sloughage is a normal occurrence in all coal mines. TR2 574. Similar to Runyon, Sorke discussed the seasonal changes in coal mines that cause ribs to get damp or wet. TR2 579. He testified that the ribs in the Mine were damp to the touch due to seasonal changes and the ribs’ middlemen had absorbed the moisture. TR2 580-81. Based on his 44 years of mining experience, Sorke testified that sloughing was always taken care of by scaling the ribs. TR2 581. In addition, MSHA’s theory at the time he was employed with MSHA, from 1978 until his retirement in 2008, was that sloughage should be left alone unless it is in the roadway where people will travel. TR2 557, 567, 582. If it was in the roadway, then it should be cleaned up. TR2 582. He explained that the reason why the sloughage should be left alone unless it is in the roadway is because it will hold the rib and help to prevent further sloughage once the weight of the mountain sits down on the rib. TR2 583.

Shelton, the roof bolter who was injured, testified that, in the past, there had not been any problems with ribs in the Mine that would result in an accident. TR1 347. There were some rib problems in the roadway but the inspectors told them simply to clean them up. Id. He also testified that rib sloughing is when a rib loosens up and the method he knew to resolve it was to remove the loose rib with a slate bar. TR1 348. He had been told in the past not to get against the ribs and it was common knowledge. TR1 350. On the day of the accident, Shelton looked at the rib above him before he sat down and did not see any problems. TR1 351. He thought the rib “looked good” and he would not have been in the area if he had seen any problems with the rib. Id.

            There is a dispute between Lundy, on the one hand, and Runyon and Sorke on the other, regarding whether the coal that injured Shelton fell from the top of a rib or was cap coal. But exactly where the coal fell from is not important. What is important is that I credit Shelton and Sorke’s testimony that they saw nothing hazardous regarding the ribs in the section. Shelton’s testimony that prior to sitting down to eat he checked the rib and it looked good (TR2 350-51), is particularly persuasive. From one of the photos of the accident scene, GX 9-G, Sorke concluded based on three chunks of coal that had been left at the scene and the angle that the coal fell, that it was a piece of cap coal that was bonded to the roof that fell and hit Shelton. TR2 624-26, GX 9-G. Lundy testified that cap coal is the coal that is touching the mine roof and is also a part of the ribs. TR1 94. Runyon testified that since cap coal is bonded to the roof, there is no way to put a bolt in it; and if cap coal has a crack in it or it is loose, the best remedy is to pull it down. TR2 505. Sorke testified that cap coal that is bonded to the roof of a mine is not a detectable hazard. TR2 631.

            As explained above, the evidence shows that Runyon conducted the weekly examinations in good faith. The evidence does not lead to the conclusion that a detectable rib hazard was the cause of the accident which injured Shelton. Runyon observed the No. 1 section within an hour prior to the accident and saw no changes in the ribs or obvious hazards. Shelton had looked at the rib above him immediately before he sat down and thought it “looked good.” As explained above, Sorke and Runyon both testified that sloughage is common in underground coal mines and is not normally considered a hazard. In fact, sloughage is a hazard only if it can fall upon and injure a miner. Lundy confirmed this when he testified that sloughage is not a violation and would only be considered a hazard if it could cause injury. TR3 100-01.

            Both Runyon and Sorke explained that sloughage will continue to occur if a mine attempts to continually remove it. Further, Lundy is the only one that saw hazardous rib conditions despite the fact that there were several MSHA personnel in the mine in the weeks leading up to the accident. During those inspections, there were no discussions about widespread loose ribs and the need to change the roof control plan. In fact, only one citation was issued by Sizemore, for a single loose rib. No one else saw the 40 to 50 loose ribs that Lundy claimed existed and that was the basis for Citation No. 8335474. In addition to not being able to identify where these allegedly loose ribs were, Lundy misstated the specific locations where the photos were taken. He also undermined some of his findings regarding hazards shown in the photos by testifying that there were no hazards inherent to the rib shown in GX 9-Q. TR1 342. From an analysis of the photos and the testimony, the evidence shows that the conditions which were sloughage, fractured ribs, and cracks in the ribs were not spilling into the roadways and did not lead to Shelton’s injuries. Instead, his injuries were caused by a fluke accident initiated by his ill-advised decision to sit near the ribs while eating lunch.

            Based on the above discussion, the evidence does not support a finding that there were widespread hazardous rib conditions throughout the mine. Therefore, a violation of § 75.364(b) has not been proven, and Citation No. 8335474 must be vacated.

Order No. 8335475

            Order No. 8335475 alleges an S&S violation of 30 C.F.R. §75.202(a) that occurred, that will be permanently disabling, and that was caused by Respondent’s “high” negligence and “unwarrantable failure” to comply with the standard. Section 75.202(a) requires that “the roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.”

  The “Condition or Practice” is stated as follows:

The operator has failed to control the ribs on the active 001-0 working section of this mine. Loose ribs have been found in various locations on and outby the active section. The ribs have not been supported or taken down to prevent miners from injury. Loose ribs are obvious along the roadways and on the active section. Failure to implement corrective measures has resulted in an accident involving a serious injury to a miner. Failing to recognize the hazard and implement necessary changes constitutes more than ordinary neglect and is an unwarrantable failure to comply with a mandatory safety standard. Foremen and management personnel shall be trained in hazard recognition and the revised roof control plan prior to returning to the underground areas of the mine.GX 6.

            The Secretary proposes a penalty of $52,500 for this alleged violation of 30 C.F.R. §75.202(a). The Commission has held that §75.202(a) is a broadly worded standard and therefore “the adequacy of particular roof support or other control must be measured against the test of whether the support or control is what a reasonably prudent person, familiar with the mining industry and the protective purposes of the standard, would have provided in order to meet the protection intended by the standard.” Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987).

            As discussed above, Lundy’s claims of widespread loose ribs in the mine at the time of Shelton’s accident is not supported by the evidence. Since the evidence did not show widespread loose ribs, I cannot find that there was a failure by Respondent to implement corrective measures. Further, Runyon testified that Respondent provided rib support in the Mine by setting timbers and cribs and controlled loose ribs by pulling down the loose material and cleaning up sloughage. TR2 414-16, TR2 473, 479. Respondent did not use cord lashing to control loose ribs because, prior to the accident, Runyon and Sorke had never heard of it, and in any event it was not required by the Mine’s roof control plan. TR2 473-74, 479.

            Sorke also testified that during his close to 30 year career at MSHA and 44 years of total mining experience, using timbers and cribs and scaling sloughage was an acceptable method to control ribs. TR2 581-82, 674. In fact, Lundy himself testified that he saw timbers, straps, and differing roof bolt sizes throughout the mine during his investigation. TR1 294-95. Lundy also testified that scaling ribs can be an acceptable means to control ribs if all of the material is removed and there is no longer a hazard. TR3 103. The photos that he took to show the rib conditions showed the straps, different sized bolts, and other evidence of supplemental roof support that existed in the secondary escapeway. GX 9-A, 9-C, 9-E, 9-M, 9-N, 9-O, 9-Q, 9-R, 9-V, 9-W. Lundy testified that the use of timbers has not been recognized as rib support by MSHA since 2009 because they are ineffective. TR1 373-74, 383. However, apparently no one from MSHA had ever discussed this with Respondent, and Respondent had not been required to change its roof control plan at the Mine. Both Runyon and Sorke testified that the corrective method that Lundy required, the use of cord lashing or banding, would not have prevented the chunk of coal from falling and striking Shelton. TR2 477, 669. In fact, as Sorke testified, rib control measures do not prevent sloughage from occurring. TR3 74. Lundy testified that Shelton could still have been injured even if cord lashing had been implemented at the time of his accident. TR1 380. Neither Sizemore and Hiser, who were both in the mine the two weeks preceding the accident, mentioned the need for additional rib control methods or the need to revise the mine’s roof control plan. TR2 429-30, 436, 459, 594, 600, 602, 606, 613-14.

            Thus, the evidence shows that the Mine was complying with the provisions in its approved roof control plan prior to and, at the time of the accident, and was using generally accepted industry methods to control its ribs. Therefore, Order No. 8335475 must be vacated.

Order No. 8335476  

Order No. 8335476 alleges an S&S violation of 30 C.F.R. § 75.360(f) that occurred, will be permanently disabling, and that was caused by Respondent’s“high” negligence and “unwarrantable failure” to comply with the standard. Section 75.360(f) requires:

At each working place examined, the person doing the preshift examination shall certify by initials, date, and the time, that the examination was made. In areas required to be examined outby a working section, the certified person shall certify by initials, date, and the time at enough locations to show that the entire area has been examined.

The “Condition or Practice” is stated as follows:

The operator has failed to record the hazardous conditions (loose ribs) encountered during the preshift examinations of the mine. No loose ribs have been noted in the book reviewed for the previous three weeks. The corrective measures are also missing from the book provided for that purpose. The books have been countersigned and include at least 3 examiners who are agents of the operator. Loose ribs are noted through both the primary and secondary escapeways. The roof control plan has been found to be inadequate for the mining conditions and a miner has received serious injuries due to an accident. Proper examination of the mine would have shown the roof control plan was ineffective due to the presence of loose ribs throughout the mine. Failure to provide a record of findings during a mine examination constitutes more than ordinary neglect and is an unwarrantable failure to comply with a mandatory safety standard.

  GX 7.

            The Secretary proposes a penalty of $52,500 for this alleged violation of 30 C.F.R. §75.364(b). Similar to Citation No. 8335474, the Secretary alleges that loose ribs were present but no hazardous conditions were noted in the records, in this instance the records of pre-shift examinations. Although the order mentions a three week period in which no loose ribs were noted in these records, the Secretary’s evidence and argument are limited to pre-shift examinations conducted on June 18, June 19, June 20, June 21, and June 22, 2010. Sec’y Br. 14; GX 10, 11, 11-A, 11-B, 12, 12-A, 12-B, 13. The Secretary argues that since no hazardous conditions were recorded, inadequate pre-shift examinations were conducted, in violation of section 75.364(b). Id.

            Respondent contends that this citation should be vacated because there is no proof of loose ribs in either the primary or secondary escapeways. Resp’t Br. 35-36. Further, Respondent points out that the pre-shift reports for June 18-22 do note hazardous conditions in the Mine which had to be remedied, although none involved the roof or ribs.

            Lundy testified that GX 10, 11, 11-A, 11-B, 12, 12-A, 12-B, and 13, the preshift and onshift examination records from June 18 through June 22, 2010, did not list any hazardous rib or roof conditions. TR1 197-206. However, as discussed above, the evidence does not establish that there were widespread hazardous rib conditions throughout the mine in the weeks preceding the accident and on the day of the accident. The defects in the evidence proffered by the Secretary to support Citation 8335474 are just as applicable to this order. Therefore, Order No. 8335476 must be vacated.

III. Order

            It is ORDERED that Citation No. 8335474, Order No. 8335475, and Order No. 8335476 are vacated, and Docket Nos. KENT 2010-1511 and KENT 2011-499 are dismissed. 

                                                                        /s/ Jeffrey Tureck

                                                                        Jeffrey Tureck                                                                        

                                                                        Administrative Law Judge

Distribution:

Matthew S. Shepherd, Esq., Schean G. Belton, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456.

Marco M. Rajkovich, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513.