.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

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

 

July 23, 2012

SECRETARY OF LABOR,   
MINE SAFETY AND HEALTH   
ADMINISTRATION (MSHA),  
Petitioner,

v.

CONSOLIDATION COAL CO.,

                         Respondent.  

 



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CIVIL PENALTY PROCEEDINGS

 

 

Docket No. VA 2009-211

A.C. No. 44-04856-178738

 

Buchanan Mine #1



 

DECISION

 

Appearances:               Angele Gregory, Esq., and Elizabeth Friary, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for Petitioner;

 

Billy R. Shelton, Esq., Jones, Walter, Turner & Shelton, Lexington, Kentucky, for Respondent

 

Before:                         Judge Tureck

                               

            This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Consolidation Coal Company (“Consol”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“the Act”).  The Secretary proposes assessing penalties against Consol totaling $199,300 for five alleged violations of mandatory safety standards at Consol’s Buchanan #1 coal mine (“Buc1”).  The Secretary contends that each of these violations was significant and substantial, involved high negligence, and was an unwarrantable failure to comply with mandatory standards.  Consol challenges both the occurrence of the violations and the severity of the assessed penalties.

 

            A formal hearing was held in Jonesborough, Tennessee on July 12 and 13, 2011.  At the hearing, Government Exhibits 1-10 and 12, and Respondent’s Exhibits 1-5, were admitted into evidence,[1] and each party provided testamentary evidence.  At the conclusion of the hearing, a deadline of September 13 was set for the parties to file briefs.  That deadline was subsequently extended by 30 days.  On October 3, the Secretary’s Motion to Amend Petition for Assessment of Penalty was filed.  That motion sought to amend Order No. 8157102 to change the safety standard allegedly violated from 30 C.F.R. §75.1103-3 to §75-1100.1(a).  Respondent opposed the motion, and I denied it by order issued on October 18, 2011.  Both parties then filed post-hearing briefs and reply briefs, the last of which was received on November 14.

 

Findings of Fact and Conclusions of Law

 

            At the start of the hearing, the parties stipulated that:  Consol is subject to the Act and the jurisdiction of the Federal Mine Safety and Health Review Commission; Consol and Buc 1 are engaged in interstate commerce; Consol is an operator under the Act, and Buc 1 is a coal mine; the imposition of the proposed assessed penalties will not affect Consol’s ability to stay in business; Consol is a large operator; and the citations were properly served.  TR12, at 6-7. 

 

            Buc 1 is a very large, deep underground coal mine located in Southwest Virginia.  It has been in operation since 1984.  TR13, at 25.  It employs about 700 miners and generally operates 24 hours a day on three shifts:  7:30 a.m. - 3:30 p.m. (the day shift); 3:30 p.m. - 11:30 p.m. (the evening shift); and 11:30 p.m. - 7:30 a.m. (the owl shift).  There are 16 miles of beltline in Buc 1.  TR 12, at 167.  As an underground mine, Buc 1 is subject to quarterly inspections by MSHA’s coal mine inspectors.  Due to its size, these quarterly inspections of Buc 1 generally take the full quarter to complete, at which time the next quarterly inspection begins.  TR12, at 29-30.  Accordingly, MSHA inspectors are in the mine almost all the time. Id. at 122.

 

Citation 8157100; Orders 8157101, 8157102

 

            On July 2, 2008, MSHA coal mine inspector John Hughes arrived at Buc 1 at 9:00 a.m.  TR 12, at 43.  Hughes has been an MSHA coal mine inspector since 2005.  Id. at 27.  His last jobs prior to coming to work for MSHA were pre-shift examiner and then section foreman for Massey.  Id. at 22-23.  He never worked at a mine with a longwall, and Buc 1 is the only mine he has inspected with a longwall.  Id. at 113, 116.  Hughes was at Buc 1 on July 2 to follow up on a citation he issued the previous day regarding a leak in a water line.  Id. at 45-46; RX 2, at 44.  He was accompanied on his inspection by Dave Lambert, Respondent’s shift foreman on the Page side.[2]  Hughes testified that when he arrived at the mine, Lambert informed him that the water line was down.  Id. at 46.  However, his inspection notes indicate that Lambert did not inform him that the water was off until 11:00 a.m.  GX 6, at 8.  Since he could not close the citation he had issued the previous day until the water line was back up, Hughes decided to pass the time by inspecting some mine equipment and taking some air readings. Id.  Then he and Lambert went to the control room, a very small room with monitors displaying, among other things, whether the belts are moving.  Id. at 51-52.  Hughes observed that the tripper conveyor belt, which transports coal to the Grassy Bunker, a storage area for coal before it is brought to the surface, was operating.  Id. at 52.  Since the water line there was down, he believed that if a fire occurred on the belts there would be no way to put it out.  Id. at 53.  However, he did not believe that this situation presented “a real fire hazard or imminent danger type situation . . . .”   TR12, at 56.  So instead of going right to the tripper belt to abate the problem, he went to the number 2 vent to obtain air readings.  Id.  He explained that this got them closer to the area by the Grassy Bunker without tipping his hand that he suspected a violation was occurring.  Id. at 54-55. He believed that if the miners knew he suspected there was an ongoing violation, it would be corrected before he could witness it taking place.  Id. at 55-56.

 

When Hughes and Lambert arrived at the belt line, a little less than an hour after they left the control room (TR12, at 249), the tripper belt was not running.  TR12 at 61.   If that belt was not operating, production at the mine had to be reduced because all the mined coal had to be sent to the main line; it could not go to the Grassy Bunker for underground storage.  TR 12 at 215-16.   Hughes testified that he observed that that the belt rollers had frozen in place (id. at 88), a determination he made solely through a visual inspection of the rollers.  Id. at 158-59.  He did not touch the rollers, nor did he see them while the belt was operating.  Id. at 93, 159.  But he stated that the rollers were so eroded away that they could not turn.  Id. at 159-60, 169.   Further, he stated that virtually the entire belt rollers located within 70 feet of the tripper conveyor belt tail piece was severely flattened.  Id. at 88.   He stated that the moving conveyor belt dragging across the stuck rollers created heat and friction, a potential fire hazard.  They also cause coal fines to build up on the rollers, which could serve as a fuel source in the event of a fire.  Nevertheless, despite that there were probably over 50 rollers within this 70 foot length of belt,[3] and that he found virtually all of them to be severely flattened, Hughes testified that initially he indicated that only five rollers needed replacing.  Id. at 166.  According to Lambert, who was with Hughes when he inspected the belt line, Hughes identified only three rollers – two top and one bottom – that had to be replaced.  Id. at 251-52.  Hughes testified that after receiving input from the miners at the site, he ultimately found seven more rollers which he believed had to be replaced.  Id. at 166; GX 1, at 1.  Lambert agrees that the miners at the belt told Hughes that they were going to change nine additional rollers, but he testified that Hughes did not inspect these rollers.  Id. at 252. 

 

Hughes determined that the condition of the rollers constituted a violation of 30 C.F.R. §75.1725(a), which states:  “Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.”  Therefore, he issued Citation No. 8157100. GX 1.    Further, he determined that “[t]he condition of the belt rollers indicates the condition has existed for a [sic] extended period of time.”  Id. at 98; GX 1, at 1.  Because of this, he believed that “adequate pre-shift examinations are not being conducted on the Tripper Conveyor belt.”   In fact, he believes that the pre-shift examiners deliberately ignored the problems with the rollers. TR 12 at 169.  He contended that this failure to conduct an adequate pre-shift inspection constituted a violation of 30 C.F.R. §75.360(a)(1).  That section requires “a pre-shift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground.”   He issued Order No. 8157101 due to this alleged violation.

 

            Respondent, while not contesting that bad rollers can be a fire hazard (TR12, at 220), disputes that the rollers were unsafe. There has never been a belt fire at Buc 1. TR 13, at 25.  The belts are fire resistant, although not fire proof.  TR 12, at 176-77. Buddy May worked for Consol at Buc 1 from 1997 until he retired in April 2009.  TR 202.  He was classified as a general laborer and belt man, but occasionally he performed pre-shift inspections.  TR 203-04.  On July 2, 2008, he was working as the Grassy Bunker operator on the owl shift.  He performed the pre-shift inspection of the tripper belt and bunker area for the day shift at about 4:30 a.m. on July 2.  TR 206.  He did not find any problems with the belt rollers. TR 12, at 212-13.  However, it was noted on the pre-shift examination report from the owl shift on July 2, 2008 that the tripper belt needed additional cleaning, and there is no notation that the additional cleaning was performed.  RX 1.  May testified that when he did his inspection not only was the tripper belt down, but the take up rope was down; and when the take up rope is down, the belt sags, making it harder to see the rollers.  TR12, at 213-14.  Further, he testified that it cannot be determined if a roller is frozen if the belt is not operating.  TR12, at 214.  Finally, May testified that rollers with flattened spots can still work well, although it was Respondent’s policy to change flattened rollers.  TR 214-16. 

 

 When Hughes got to the belt line, he did not check the water line to see if the repairs had been completed.  TR12, at 61.  But the three miners working at the site informed Hughes that the belt had been running while the water line was shut off as it was being repaired.  TR12, at 67.   That the belt was operating while the water was shut off was acknowledged by the mine superintendent, Bill Meade, and the shift foreman who was repairing the water line, Lee Daniel.  The inoperative water line supplied the water for the automatic fire suppression systems at the conveyor belt heads and the fire hoses along the 4 North belt.  TR12, at 59-60. Meade testified that Daniel made a mistake by keeping the belt operating while the water was off, and Daniel corroborated Meade’s testimony.  TR 13, at 47-48; RX 2, at 22, 45-46.  Hughes determined that operating the belt while the water was off was a violation of mandatory standard 30 C.F.R. §75.1103-3, and issued order number 8157102.  Section 75-1103-3 states:

 

Automatic fire sensor and warning device systems installed in belt haulageways of underground coal mines shall be assembled from components which meet the minimum requirements set forth in §§75-1103-4 through 75-1103-7 unless otherwise approved by the Secretary.

 

            Hughes determined, for each of these alleged violations, that injuries resulting in lost workdays or restricted duty were reasonably likely; that the violations were significant and substantial; and that they resulted from high negligence.  He based these determinations on the extent of the damage to the rollers; his belief that belt rollers are the leading cause of mine fires; and that in the absence of an operating water line a fire was reasonably likely.  Further, he found that these violations constituted unwarranted failures to comply with mandatory standards. All of these violations were terminated expeditiously.  The Secretary’s proposed penalties for these alleged violations are as follows:  Citation 8157100 - $27,900; Order 8157101 - $23,800; and Order 8157102 - $23,800.

 

Orders 8157127, 8157128

 

            On July 24, 2008, Hughes was again engaged in inspecting Buc 1.  On this date, he was accompanied by a coal mine inspector trainee, Brian Keith Ray, and Kim Noah, the chief safety supervisor at Buc 1 at the time.  Noah also was a certified mine foreman in Virginia.   Hughes and Ray arrived at the mine at 8:00 a.m.  Hughes, Ray and Noah were riding on the manbus in the 3 East Mains on the way to O Panel when Hughes noticed that a layer of black float coal dust had settled on everything, from rib to rib and on all surfaces and equipment.  He stated that it was obvious and extensive.  GX 4, at 2; GX 5, at 2.  The accumulation of float coal dust began at break 103 and got worse to break 107, where the manbus stopped.  EX 8, at 4; TR13, at 205.  Hughes then walked the rest of the way to break 115, where, he stated, the accumulation was even worse.   TR13, at 90, 93.  The distance between breaks 103 and 115 was about 1400 feet.  GX 4.  Hughes stated that he measured these accumulations with a ruler and they averaged 1/16 of an inch deep.  TR13, at 89-90.  He added that based on the extent of the area affected and the amount of float coal dust which had accumulated; the condition had to have existed for more than one shift.  TR13, at 105; EX 8, at 6.  Hughes’s testimony was supported to some extent by the testimony of Ray.  Ray only observed the area from break 107 back to break 103.  TR13, at 206.  He stated that he stopped at break 103 because that was where the mine surface started transitioning from white to a darker color.  Id. at 205.  “And then, as I walked back toward [break] 107, it, it was getting darker and darker, and it was black.”  Id.  But he did not measure the depth of the float coal dust, nor did he accompany Hughes past break 107.   Id. at 206. 

 

            Hughes testified that float coal dust is combustible and an explosive hazard.  TR13, at 85; see also TR13, at 207-08, 274.  Respondent does not contest this point.  Rather, respondent contends that there was no significant accumulation of float coal dust in the location indicated in the order. Respondent points to the testimony of Mike Ellis, a certified foreman in Virginia (TR13, at 233) who conducted the pre-shift examination of that part of the mine less than five hours before Hughes and Ray got there.  TR13, at 127, 235; GX 4.  Ellis testified that he saw no accumulations of coal float dust in the areas of breaks 103 to 115.  TR13, at 237.  Further, Noah testified that “[t]he offside of the belt naturally was, you know, it was a little bit gray, but in no means had float coal dust built up in, in black in color like he stated. . . .  [I]t looked good.”  TR13, at 264.  Respondent points out that Hughes inspected the same area the previous day and did not find an accumulation of float coal dust (TR13, at 135-36), and other inspectors went by the same area and did not issue citations for accumulations of float coal dust.  Further, respondent contends that the mine was shut down from the end of the day shift on July 23, 2008 until 6:00 a.m. the next morning due to electrical and ventilation problems. TR13, at 266-67, 314-19.   According to Respondent, from the time Hughes left the mine on July 23 until he returned to the site of the alleged violation at 9:30 a.m. on July 24, mining would not have been going on long enough to have produced the amount of float coal dust Hughes alleges was present.  Finally, Respondent contends that even if there was an accumulation of float coal dust, it would not have been hazardous because it was too far away from the face to have ignited. TR13, at 289.

 

            Hughes determined that the accumulation of float coal dust that he found was a violation of §75.400, which prohibits the accumulation of float coal dust and other combustible materials.  He also believed that the accumulation of float coal dust should have been noted in the pre-shift inspection conducted at 4:30 that morning because he believed the float coal would have taken at least a shift or more to have accumulated to that extent.  Therefore, he found that Respondent also violated §75.360(a)(1), by conducting an inadequate pre-shift examination.  Hughes found that both of these violations were reasonably likely to cause injury leading to lost workdays or restricted duty, and that these violations were significant and substantial.  Further, he found both involved a high degree of negligence and were unwarrantable failures to comply with mandatory standards.  Both violations were terminated by 11:30 a.m., by rock dusting and conducting a proper pre-shift inspection, respectively.  The Secretary’s assessed penalty for the alleged violation of §75.400 is $70,000, and the assessed penalty for the alleged violation of §75.360(a)(1) is $53,800.  

 

Proof of Violations

 

            Citation 8157100          

 

                The Secretary alleges that respondent violated §75.1725(a), which states: 

 

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

 

The citation states that this standard was violated because 12 belt support rollers on the tripper conveyor belt - 11 top and one bottom - “were frozen in place and would not rotate.”  GX 1.  It goes on to state that these frozen rollers created a fire hazard by producing heat and friction when the belt dragged across them.  Id.  Although there was considerable testimony regarding whether some rollers had sizable flat spots and whether these flat spots, without more, can be hazardous, the citation clearly rests on the allegation that rollers were frozen in place, not just that they had flat spots.[4]  Therefore, to prove that Respondent violated this standard, the Secretary must first prove that rollers were frozen in place. 

 

            There is a clear conflict in the testimony regarding this issue between Hughes, on the one hand, and May and Lambert on the other.  When Hughes inspected the belt line, he stated that initially he found only five rollers which he believed had to be replaced. He did not try to turn the rollers, nor did he see the belt in operation.  Therefore, he could only surmise, although he did so emphatically (see, e.g., TR 12, at 170), that those five rollers could not turn. He testified that some of these rollers were so worn that the outer shell of the rollers – about a quarter-inch thick metal – had eroded through.  But he could not say how many of the total of 11 or 12 rollers he ultimately found were frozen were that badly worn.  TR12, at 161, 165-66.  Hughes’s inspection notes, prepared shortly after his inspection concluded on July 2nd, state that the rollers were “deformed”   and had flat spots, but did not state that the outer shells had eroded through.  GX 6, at 18-20.  Moreover, his testimony is confusing regarding whether the rollers were so worn that the internal parts of some rollers were visible. See TR12, at 165.[5]

 

            Lambert, who accompanied Hughes on his inspection on July 2nd and has worked for the Respondent for close to 40 years, testified that Hughes initially said two top rollers and one bottom roller were in violation.  Id. at 250-51.  According to Lambert, neither of these rollers had worn through the outer surface.  TR13, at 10-11.  One of these rollers  “had a fairly decent flat spot on it”  and another  “had a flat spot starting to wear on it pretty good”.  TR 12, at 251.  Nevertheless, he stated that both could have been reused.  Id. at 253.  He stated that Hughes concluded that there were 11 or 12 stuck rollers rather than just two or three because shortly thereafter, when he and Hughes returned to the bunker area, the miners working there told him they were going to replace eight or nine other rollers.  According to Lambert, Hughes never looked at these rollers.  Lambert added that some of these rollers were cleaned up and reused.  Id. at 252; TR 13, at 21. 

 

            May, who was retired for over two years at the time he testified at the hearing, stated that it cannot be determined whether a roller is stuck if the belt is not moving.  TR12, at 214.  During the pre-shift inspection he conducted at 4:30 a.m. on July 2nd, he did not see any rollers which were flattened down.  Id. at 212.

 

            Hughes testified that he did not have a camera and therefore could not take photographs of the allegedly defective rollers while he was in the mine.  Nor, apparently, did he obtain any of these rollers after they were removed so they could be photographed outside the mine.  Obviously, photographs would have been a great help in determining the extent of the wear on the rollers. Without photographs or other corroborating evidence, the Secretary’s case regarding Citation 8157100 is dependent solely on Hughes’s testimony.  I find that Hughes’s testimony regarding this issue is not persuasive. 

 

            First, that Hughes believes he can tell that a roller is frozen in place simply by looking at it while the beltline is not operating strains credibility. 

 

            Second, Hughes’s testimony regarding the number of frozen rollers he saw is inconsistent.  He testified that:

 

 practically all of the rollers within the first 70 feet of the tail piece . . . was [sic] just gone completely.  They was [sic] all frozen and had just been worn so much by the belt, . . . now the tops of them were flatten [sic] severely and not just a small amount. The rollers had been cut into by the belt severely.

 

TR12, at 88 (emphasis added).  Yet initially, he told Respondent that only three (according to Lambert) or five (according to him) rollers had to be replaced, and both he and Lambert agree that he upped the total to 11 or 12 after one of the miners told him there were more than just three or five that they were going to replace.  In any event, neither the citation nor Hughes’s inspection notes indicate that more than 11 or 12 rollers were frozen. As was noted above, there were approximately 50 rollers within the first 70 feet of the tail piece.

 

            Third, Hughes’s inspection of the rollers was extremely brief.  According to Hughes’s inspection notes, he issued a citation at the Page service shaft bottom regarding a battery charger at 11:00 a.m. GX 6, at 7; see also TR12, at 126.  Since at that time he still could not inspect the water line he had come to inspect in order to terminate the violation he had identified the previous day, Hughes decided to take some intake air readings at the bottom of the service shaft to pass the time.  GX 6, at 8-10; TR12, at 46.  He and Lambert then went over to the production shaft, which is closer to the portal (see GX 9), where he took more intake air readings.  Each of these intake air readings took several minutes.  TR12, at 127.  Hughes then went into the control room, which is right by the production shaft, where he found out that the tripper belt was running.  Then almost an hour elapsed before they arrived at the bunker and tripper belt area.  Hughes issued Citation 8157100 at 12:15.  It is irrefutable that Hughes could not have spent more than a few minutes at the tripper belt before he issued the citation.  It is doubtful that he could have performed more than a cursory inspection of the rollers in that short time.

 

            Buddy May, who performed the pre-shift inspection at 4:30 on the morning of Hughes’s inspection, retired in April, 2009, over two years before he testified at the hearing.  Further, he was a laborer, not a management employee.  He should have little incentive to sugar-coat his testimony to aid the Respondent’s case.  His testimony shows that he conducted a pre-shift examination on the morning of July 2, 2008, and did not find any problems with the tail belt rollers that he failed to report.  However, it is unclear from his testimony whether he actually observed all of those rollers during his inspection because the take up rope was down, which caused the beltline to sag.

 

            Dave Lambert was still working for Consol when he testified at the hearing, and had for almost 40 years.  TR12 at 242.  As a shift foreman, he was part of management and could be expected to testify in a light most favorable to the Respondent. Nevertheless, his testimony is consistent with the time line of events, and he testified clearly and without equivocation or self-contradiction.

 

            I find that the evidence fails to establish any of the belt support rollers were frozen in place. It is the secretary’s burden of proof, and Hughes’s testimony on this issue simply is not persuasive.  Therefore, this citation must be dismissed.       

           

            Order 8157101

 

            The Secretary alleges in this order that Respondent violated §75.360(a)(1), which states in relevant part:

 

[A] certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground.

           

It is the Secretary’s position that because 12 support rollers “were damage[d] to the extent that the belt rollers had frozen in place and would not rotate “, adequate pre-shift examinations of those rollers had not been conducted  “for an extended period of time.”  GX 2, at 2.  But again, this citation rests on Hughes’s belief that many rollers were frozen in place, which I found has not been proven.  Further, I credit May’s testimony that he conducted a timely pre-shift examination that morning.  Therefore, Order 8157101 must be dismissed.           

 

            Order 8157102

 

            The Secretary alleged in this order that Respondent violated §75.1103-3.  This section states:

 

Automatic fire sensor and warning device systems installed in belt haulageways of underground coal mines shall be assembled from components which meet the minimum requirements set forth in §§75-1103-4 through 75-1103-7 unless otherwise approved by the Secretary.

 

As I held in the October 18, 2011 Order Denying Motion to Amend Petition for Assessment of Civil Penalty (hereafter “Order Denying Amendment”),[6]  that section of the regulations has nothing to do with any allegations in this case.  Accordingly, this order is dismissed.

 

            Order 8157127

 

            In this order, the Secretary alleges that Respondent violated §75.400, which states:

 

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

 

This order was issued at 9:30 a.m. on June 24.  Hughes was present at the mine doing an inspection the previous day and did not encounter the same condition regarding accumulated float coal dust at that time.  TR13, at 114, 172.  He left the mine on June 23 sometime before the start of the evening shift, which began at 3:30 p.m. Id. at 166-67.

 

             Hughes stated that the amount of float coal dust he found on June 24 must have accumulated over at least a full shift or more, and could not have been caused solely by restarting the belt after a period of idleness.  Id. at 115.  Because of this, he also believed that the float coal dust present should have been noted on the pre-shift examination report, and the failure to do so indicated that the pre-shift examination was inadequate. 

 

            Michael Ellis was a pre-shift examiner on the owl shift for the Respondent on July 24, 2008.  He had worked for Consol for six or seven years at the time he testified at the hearing.  TR13, at 232-34.  Ellis conducted the pre-shift examination of the area of the mine in question at about 4:30 a.m.  He testified that he believes the belts were running that morning, although he is not sure because the inspection occurred three years ago.  Id. at 241-42.  He added that “most of the time, we are producing coal.”  Id at 238.  Although he testified that he did not see any evidence of float coal dust during his pre-shift inspection that morning (id. at 237, 239), he also testified that he cannot specifically recall that morning.  Id at 249.   However, he stated that he probably did not see any, since he did not record it in the pre-shift report.  Id. at 249.

 

            Kim Noah’s testimony is in stark contrast to that of Hughes. Unlike Ellis, Noah remembered specific details from the July 24, 2008 inspection because “it was very serious.”  TR 13, at 282.  Noah worked for Consol for 33 years. (TR 13, at 260).  Although he retired in May, 2009, and therefore should have nothing at stake in this case, it is not hard to conceive that his memory of what occurred on that date might favor Respondent’s position. Nevertheless, his testimony that there was no accumulated float coal dust from breaks 103 to 115 was unequivocal and is entitled to considerable weight.

 

            Craig Dickerson has worked for Respondent since 1990.  On July 24, 2008, he was the longwall coordinator.  At the time of the hearing he was the assistant mine superintendent.  TR13, at 295-96.  On July 24, he entered the mine at 7:30 a.m., accompanying MSHA inspector Joe New, who was to perform a health inspection at the longwall.  E.g., id. at 304.  Dickerson and New rode the manbus to break 103, where they had to turn off to get to the longwall.  Id. at 300.  It takes the manbus about 30-35 minutes to get from the portal to break 103.  Id. at 306.  At break 103, Dickerson stated that he could see an additional 200 feet down the main vent shaft, to between breaks 104 and 105.  Id. at 300.  He testified that he did not see “1/16 of an inch [of] float coal dust from rib to rib, the roof, the ribs, the floor . . . .”   Id. at 301.  Such a condition “would have been obvious.”  Id. He added that New did not point out a problem to him regarding float coal dust or issue a citation.  Id. at 301-02. 

 

            Finally, Elmer Deel was an assistant general maintenance foreman at Buc 1 in July, 2008, and is still employed there by Consol.  TR13, at 311.  Deel was called to testify by Respondent on one issue – how long the mine was in production on July 23 and July 24.  It is Respondent’s position that the mine was out of production for so much time from the end of the day shift on July 23 through the time of Hughes’s inspection on July 24 that it would have been impossible to have produced the amount of float coal dust Hughes alleges he saw at 9:30 a.m. on July 24. 

 

            I give Deel’s testimony little weight.  He admitted that he has no recollection of the events that transpired over that period.  TR13, at 314, 320.  His testimony consisted of explaining notations made by him and other assistant general maintenance foremen in a notebook kept at the mine.  Id. at 312-13.  He did not look at any other records in preparation for testifying at the hearing.  Id. at 320-22.  He stated the notebook, relevant excerpts of which are in evidence as Respondent’s Exhibit 5, is a written record of maintenance at the mine which is filled in after every shift.  Id.  He wrote the notes for the July 23, 2008 day shift and, judging by the handwriting, the July 24 day shift as well; but the notes for the evening shift on July 23 and the owl shift that followed were written by others.[7]  These records, whether written by him or someone else, are very sketchy. Most important, they are silent regarding the time when anything was done.  The following entries are paramount:

 

            July 23, 2008 day shift:  “Fan went down Pulled the Mine did not get done evening Shift to follow up”

 

            July 23, 2008 evening shift:  “Put HV Back in underground”. 

 

There is no indication in these records of when, during the day shift, the ventilation fans went down and the mine was evacuated.  Nor is there any indication of when the fans were turned back on during the evening shift.  But according to these records, the fan went down, the mine was evacuated, and possibly repairs had started before the day shift ended, and production had started again during the evening shift. Accordingly, even if Deel’s testimony that shutting down the fans would have caused production to have stopped for at least six hours is accurate, production could have been going on for at least 12 hours – one and a half shifts - by the time Hughes inspected the area from breaks 103 to 115 at 9:30 a.m. on July 24. 

 

            Deel also pointed out that the notes from the evening shift on July 23 show that a take-up motor on the main beltline was changed, and while that was being accomplished the mainline belts could not have operated.  TR13, at 318-19.  This would have stopped production.  But again, these notes do not indicate the time at which this repair was made or how long it took.

 

            Further, Deel admitted that the Respondent maintained records which would have pinpointed the hours during which the fans were operating and the mine was in production on July 23 and 24, 2008, but he did not review those records.  TR13, at 320-22.  Moreover, the Respondent did not offer these records into evidence, relying instead on vastly inferior documentary evidence and Deel’s imprecise testimony.    

 

            There is no way to reconcile all this contradictory testimony.  The testimony of Hughes and Ray is totally inconsistent with that of Noah and Dickerson regarding the condition of the mine at 9:30 a.m. on July 24. Since Ray saw only a limited part of the 3 East Mains area in question, and Dickerson saw even less, determining whether Order 8157127 is valid essentially boils down to Hughes’s testimony versus that of Noah.  

           

            I find that the Secretary’s evidence does not outweigh the Respondent’s because Hughes’s opinion is jaundiced.  Hughes has a very negative opinion of coal mine operators.  Despite the fact that it is a criminal violation of the Mine Act (see §110(e)) to provide anyone with advance notice of an inspection, he is convinced that Dave Lambert, Respondent’s shift foreman, would have notified the miners at the beltline that Hughes was coming to inspect it if he was given the chance to do so.  See TR 12, at 55-56.  Moreover, Hughes believes that all of Respondent’s pre-shift examiners acted in bad faith, deliberately ignoring the violations of safety standards that he found.  See TR 12, at 169; TR 13, at 128-29.  In addition, Hughes appears to be intent on finding violations regardless of whether he has reliable evidence to support them, as the evidence regarding Citation 8157100 demonstrates.  Finally, as was noted in Footnote 5 above, Hughes was more concerned with catching Respondent engaging in a violation than in having the violation corrected as soon as possible, potentially endangering the safety of the miners.  Because of these factors, I do not trust Hughes’s determinations.

 

            Therefore, I give more weight to the testimony of Kim Noah and find that there were no accumulations of float coal dust from crosscuts 103 through 115 along the 3 East Mains at 9:30 a.m. on July 24, 2008. Accordingly, Order 8157127 is vacated.

 

            Order 8157128

 

            This order also alleges a violation of §75.360(a)(1), contending that an inadequate pre-shift examination was conducted along the 3 East Mains because the hazardous accumulations of float coal dust between breaks 103 and 115 were not recorded or corrected.  However, since I have found that the Secretary has not proven the existence of these hazardous accumulations of float coal dust, she has also failed to prove that the pre-shift examination should have identified this condition. Therefore, this order is vacated.

 

            Since I have vacated all of the citations and orders comprising this docket, it must be dismissed in its entirety.

 

ORDER

 

            IT IS ORDERED that Citation 8157100 and Orders 8157101, 8157102, 8157127 and 8157128 are VACATED, the proposed penalties are DENIED, and this case is DISMISSED.

 

 

                                                                                    /s/ Jeffrey Tureck 

                                                                                    Jeffrey Tureck

                                                                                    Administrative Law Judge

Distribution:  (certified mail)

 

Angele Gregory, Attorney, United States Department of Labor, Office of the Solicitor, 211 7th Avenue North, Suite 420, Nashville, TN 37219 

 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, 151 N. Eagle Creek Drive, Suite 310, Lexington, KY 40509.

 

 


[1] Citations to the record of this proceeding will be abbreviated as follows:  GX – Government’s Exhibit; RX – Respondent’s Exhibit; TR12 – July 12 Hearing Transcript; TR13 – July 13 Hearing Transcript.

[2] For reference purposes, the mine is divided into the Page side and the Contrary side.  Page and Contrary are the locations of the mine portals.

[3] Hughes testified that there were seven rollers for every ten feet of belt.  TR 12, at 167.

[4] In this regard, see Secretary’s Brief at 28-29.

[5] One aspect of Hughes’s testimony which I find particularly troubling is his belief that it was more important to catch Respondent red-handed in a safety violation than in abating the violation as soon as possible.  See TR 12 at 56.  Not only did he fail to point out to Lambert that the beltline was operating despite the absence of a water supply as soon as he discovered this condition while he was in the control room, but he deliberately took his time – about an hour (TR 12 at 249-50) - getting to the site where this violation was taking place.  He did so to mislead Lambert regarding his ultimate destination in the mine, causing Lambert not to warn the miners at the beltline that a mine inspector was on his way there.  In that way, he hoped to catch Respondent continuing to engage in the violation when he arrived at the scene. It seems to me that Hughes could have been endangering the very miners he is supposed to be protecting by his failure to point out the problem as soon as he became aware of it. Moreover, since he believed the violation that was occurring was operating the beltline without a water supply (at this point he had no knowledge of the condition of the rollers), he already had the evidence to prove that violation while he was in the control room.  See id. at 51-53.

 

   It is hoped that Hughes’s actions are not a reflection of a policy endorsed by MSHA. 

[6] The Order Denying Amendment is incorporated by reference into this decision.

[7] In fact, the notes for the July 23-24 owl shift were undoubtedly written by two different people.