Federal Mine Safety and Health Review Commission

I. BASIC LEGAL PRINCIPLES

A. Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and substantial nature (“S&S”). An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that is the most difficult to apply. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Musser Engineering, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010).

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). The Commission has emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1573, 1575 (July 1984). With respect to citations or orders alleging an accumulation of combustible materials, the question is whether there was a confluence of factors that made an injury-producing fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors that have been considered include the extent of the accumulation, possible ignition sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-503.

B. Negligence and Unwarrantable failure

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:

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

30 C.F.R. § 100.3(d) (2011). The Commission has defined an unwarrantable failure as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d. 133, 136 (7th Cir. 1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

II. DISCUSSION WITH FINDINGS OF FACT

CONCLUSIONS OF LAW

A. Order No. 6666983; LAKE 2008-526

On November 17, 2007, MSHA Inspector Dean Cripps issued Order No. 6666983 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. [1] The citation alleges:

Combustible material in the form of hydraulic and gear oil was allowed to accumulate on the RC25 Jeffrey diesel ram car located at the Millennium Portal bottom. Oil was pooled approximately one inch in depth on the floor of the front differential compartment. All four service brake disks were coated with oil. The engine and engine compartment was also coated with oil.

(Ex. G-A). The inspector determined that an injury or illness was reasonably likely to occur and result in lost workdays or restricted duty, the violation was S&S, 20 people would be affected, and the violation was the result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $60,000.00.

1. Background Summary of Testimony

a. Testimony of Inspector Dean Cripps

Dean Cripps is an inspector and an electrical engineer for MSHA. At the time of his testimony, Cripps had worked for MSHA for over 19 years. (Tr. 8). Cripps has inspected the Galatia Mine since he started with MSHA. (Tr. 10). Prior to his work with MSHA, Cripps worked in the coal mining industry as an electrical engineer, maintenance boss, underground maintenance foreman, and long wall maintenance foreman for a total of about eight years.

On November 17, 2007, Cripps inspected the Galatia mine. (Tr.12). He got into the cage, went down the shaft, and was near the bottom when he observed an RC Jeffrey diesel ram car (the “ram car”). (Tr. 15). He observed that hydraulic oil and gear oil had accumulated on it. (Tr. 14). He then issued the order citing a violation of 30 C.F.R. § 75.400. Cripps testified that hydraulic oil and gear oil are combustible. (Tr. 15).

The accumulations he observed were in active workings where people work or travel during the course of their duties. (Tr. 15). The location of the ram car was at the bottom of the shaft where all employees enter and exit the mine. Id. At the Millennium Portal, a ram car may travel from the bottom through the intake, through the entire primary escapeway used by the active sections, to the long wall face, a distance Cripps estimated to be around two to three miles. (Tr. 16, 18-19).

Cripps designated the violation as S&S and reasonably likely to cause lost work days or restricted duty. (Tr. 20, 27-28). He based his assessment on the fact that combustible hydraulic oil was in contact with the heat source, the friction from the brake caliper, so that it was reasonably likely for a fire to occur on the ram car. (Tr. 20-21, 28). Because the ram car was operating in the intake and the primary escapeway, the smoke, gases, and carbon monoxide (“CO”) from a fire would travel into the mine to the sections where the men would be working, and everyone working inby the ram car would be affected. (Tr. 20-22).

If the ram car caught fire, the primary escapeway would be filled with smoke and people would have to exit through the alternate escapeway. (Tr. 23). But the air that ventilates the primary escapeway also ventilates the alternate escapeway. Id. Therefore, if smoke contaminates the air in the primary escapeway, it will eventually make its way into the alternate escapeway. When the ram car is operated in the primary escapeway, the mine operator has a heightened responsibility to see that the equipment is maintained free from fire hazards. (Tr. 100). Cripps testified that for that reason, the condition he observed exposed the miners to a high degree of danger. (Tr. 28). Cripps testified that 20 people would be affected because there were two units inby, and each unit had approximately 10 to 12 people, and at least that number of people that were working inby at the time. (Tr. 21, 70, 76).

Cripps designated AmCoal’s negligence as high and the result of its unwarrantable failure. (Tr. 30). One factor he considered in making those designations was that when he observed the condition of the ram car, the amount of oil that was present led him to believe it had been there for an extended period of time and that it should have been found by the equipment operators doing their preoperative inspections as well as by someone doing the weekly exam. Id. Another factor was that several MSHA inspectors had observed multiple violations at the Galatia Mine for accumulations in general and on diesel equipment in particular. Id.

Cripps testified that the accumulations appeared to have existed for at least several shifts based on the amount of oil present. (Tr. 24). He testified that an inch of gear oil requires considerable time to accumulate. Id. Hydraulic oil is under pressure, so if a hydraulic hose leaked or blew, oil would spew everywhere and, in a matter of seconds, large amounts of oil could be covering the components of the machine. (Tr. 101). However, the gear oil in the gear box in the ram car is not under pressure, so if there is a problem with the seal, it will drip and leak out and it will take a much longer period of time for the oil to accumulate. Id.

Cripps stated that the service brakes on the ram cars are notorious for leaking because the caliper seals go bad. (Tr. 24). Once a seal starts leaking, hydraulic oil can accumulate and coat the disc in a short time. (Tr. 25). But each service brake caliper is an individual part, so the seals on all four calipers do not start leaking at the same time. Id. Cripps testified that because all four calipers were leaking, the condition must have developed over time. Id.

Cripps agreed that the flash point of hydraulic oil and gear oil is about 400 degrees Fahrenheit. (Tr. 43). He did not find any ignition sources other than the friction from the brakes. Id. The oil pooled on the floor of the differential compartment was under the brake pads by about a foot and a half. (Tr. 43-44). Cripps did not note any other conditions that would lead to a fire. (Tr. 44-45).

Cripps testified that if someone walked by the ram car without opening the cover, they would not see the accumulations on the engine or in the differential compartment. (Tr. 49-50). The maximum allowable surface temperature for the engine is approximately 302 degrees Fahrenheit. If the engine coolant gets too hot, above approximately 170 degrees, a valve shuts off the engine. (Tr. 53-54).

Cripps testified that hydraulic oil leaking from defective seals was on the brake calipers. (Tr. 55-57). The speed of a ram car is about three to four miles per hour, and rarely above five. (Tr. 61). The terrain at the New Future Mine is relatively flat. (Tr. 62). Cripps did not know precisely how hot the brakes would get on the ram car, nor did he do any tests to find out, nor could he think of any instances of where ram car brakes have ignited hydraulic oil, but he did think the brakes were an ignition source. (Tr. 62-63, 67-68).

The ram car has a fire suppression system that uses a dry chemical that automatically activates in the event of a fire. (Tr. 72-73). There are nozzles that provide coverage for the brake discs and other parts of the ram car. (Tr. 73).

Cripps testified and his notes show that when he checked the weekly examination records for the diesel equipment, the ram car had been checked on November 14^th, three days before he issued the order. (Tr. 29). That record indicated that the ram car needed to be washed and tagged out. Id. Based on Cripps’ almost 20 years of experience as a coal mine inspector and on the appearance of the ram car, his opinion was that the ram car was put back into service after being tagged out without being washed. (Tr. 30, 100).

Cripps testified that the brakes on the ram cars sometimes lock up and malfunction, with the pad staying in contact with the discs even after the pedal is released. (Tr. 97). If that friction caused a fire and the fire suppression system did not extinguish it, then the ram car could become a “raging inferno.” (Tr. 99).

Inspector Cripps saw in the examination records that the car had been tagged out for washing three days prior to the inspection, but there was no indication in the records or by a visual inspection of the ram car that anyone had taken corrective action, although he did not inspect the ram car on the intervening days (Tr. 78-79, 81-82).

Cripps testified that there had been numerous 75.400 violations issued at the mine, about 38 citations and 7 104(d)(2) orders in the two months prior to the inspection. (Tr. 92-93). Cripps issued the present 104(d)(2) order, in part, because of the number of violations he had issued for dirty equipment at the mine and, in particular, the number he had issued for oil on brake discs. (Tr. 93-94). The mine operator was on heightened notice because, Cripps said, he had issued perhaps a hundred such citations in a four or five year time period. (Tr. 94).

b. Testimony of Scott Webb

Scott Webb is the compliance manager at AmCoal who met with Inspector Cripps on November 17, 2007. (Tr. 107, 109). AmCoal has employed Webb for 19 years in various positions. (Tr. 106-07). His responsibilities in the Safety Department include performing safety checks underground and escorting MSHA inspectors. (Tr. 107).

One of Webb’s primary responsibilities was to check the underground equipment that had been tagged out. (Tr. 119). The entry in the record book of November 14, 2007 showed that the subject ram car had been examined. (Tr. 117). The visual fire suppression system had been inspected and marked as okay. (Tr. 121). There were no problems with the engine. Id. However, a notation under “dangerous condition” said “needs washed.” Id. The car was tagged out for service. (Tr. 118). Under normal practices, a tag is placed in the cab of the equipment so that anyone entering would see the tag. Webb testified that anyone operating tagged-out equipment would have been discharged, as would any manager directing an operator to remove the tag and operate the equipment. (Tr. 119).

Webb stated that hydraulic leaks occur often in ram cars. (Tr. 129). The weekly checks are intended to detect and fix them. Id. Webb testified that under the brakes and differential, the floor of the ram car is beveled and contains perhaps 15 to 20 hoses and cables that carry hydraulic fluid. (Tr. 125, 129). If a hose blew off, everything would be covered in oil. (Tr. 130). If one came loose, it would leak. (Tr. 130). Hoses sometimes loosen or detach in normal mine conditions. Id. Webb testified that the floors at the mine are relatively flat but there are potholes and ruts and bumps in places and areas where bridge boards are necessary. (Tr. 129).

Webb testified that all four service brakes would not usually start leaking simultaneously. (Tr. 139). The possible sources of oil on the discs could have been oil from the differential, oil from the braking unit, oil from a blown hose, or spilled oil from a can stored on top of the ram car. (Tr. 142). Webb did not have any personal knowledge about the condition of the ram car at the time Cripps cited the condition or what may have caused the accumulations. (Tr. 143). He did not see the ram car until after it was washed.

Preoperational checks happen at the beginning of a shift before ram cars are put into service. (Tr. 130-131). The employee handbook, a copy of which every employee receives, contains standards for performing preoperational checks. (Tr. 131). In it, employees are directed to perform a “walk around inspection of the machine.” (Tr. 132). If employees observe a condition that creates a hazard, they are required to have it corrected. Id. If they were not qualified, they would call someone that was. Employees were directed to wash the radiator and engine compartment each shift. Id. Part of the weekly inspection involves checking for leaks. (Tr. 134). Equipment operators were also directed to clean their equipment during periods of delay, based on the projected length of the delay. (Tr. 134).

On the day of the inspection, Delane Winters was the designated ram car operator. (Tr. 135). If she had done a preoperational check, she would have washed the ram car if necessary. Id. However, she had no personal knowledge that it had been cleaned on November 17, or whether a preoperational check had occurred. (Tr. 140). Webb testified that he thought that Ms. Winters had not yet arrived underground on the day of the inspection and, thus, the preoperational check had not yet been performed. (Tr. 141).

Webb admitted that a dirty ram car is considered a “dangerous condition” because accumulations of combustible materials can start a fire. (Tr. 139). However, in his 19 years at the mine, Webb had never seen or heard of a fire being caused or started by brake friction in a ram car or other pieces of equipment. (Tr. 121).

Webb testified that the flashpoint of the hydraulic oil used in AmCoal’s ram cars in November 2007 was 400 degrees Fahrenheit. (Tr. 111-13). If the surface temperature of the engine reaches 302 degrees Fahrenheit, the engine automatically shuts down. (Tr. 115). There are three automatic shut downs related to the engine if it overheats: a low engine oil pressure shut down, an “exhaust over temp,” and a “water coolant over temp.” Id.

Webb testified that a governor limits ram car speeds to about three miles per hour. (Tr. 122). The ram car has a fire suppression system with “check fire” wires that loop through the machine, including around the fuel tank, over the motor, into the scrubber department, and through the center section where it provides coverage for the brakes. (Tr. 123). A nozzle is directed at each disc brake. (Tr. 122). When activated, the system discharges a dry chemical that extinguishes the fire. (Tr. 124).

In the case of a fire, personnel were trained to position themselves with the air to their backs. Operators would not go downwind of a fire. (Tr. 126). Webb testified that the two crews working in the mine were approximately two miles from the bottom. (Tr. 128). There were two escapeways in the mine separated by block stoppings. (Tr. 128). The air in the alternate escapeway was return air. Id.

c. Testimony of Joe Manning

Joe Manning has been an underground miner for 30 years. (Tr. 144). At the time of the inspection, he was the Superintendent at New Future Portal, in charge of all day-to-day activities there. (Tr. 145).

Manning testified that on November 19, two days after the inspection, he conducted an investigation and wrote an email to Safety Director Paul Kraus and safety department members Scott Webb and Bill Crittendon. (Tr. 147; Ex. R-92). Manning explained that he went below to look at the ram car, which had been moved to the wash bay but had not yet been washed. (Tr. 148). He noted that the ram car looked like it needed to be cleaned. He noted accumulations on the calipers. (Tr. 148). He did not think the accumulations looked severe and he did not find an ignition source. (Tr. 149).

Manning admitted that several MSHA inspectors had discussed accumulations with him prior to the November 17^th inspection and had put him on notice that there had been excessive accumulations of combustible material on diesel equipment. (Tr. 166). Manning said that to address this concern, AmCoal implemented the preoperational check system so that every operator would check their equipment for accumulations of oil before they operated it.

Manning did not know whether Delane Winters had done a preoperational check prior to the order being issued. (Tr. 161). He testified that the ram car was not hot at the time he first observed it on the day of the inspection. (Tr. 149). It did not appear to have been operated on that shift. Id.

Manning’s email further said that three people operated the ram car on November 14, 15, and 16, and all three said there was no tag on it when they operated it. (Tr. 157). He found nothing to indicate that someone removed the tag without washing it. (Tr. 158). The policy at the time of the inspection was that a person who removed a tag without correcting the hazard would be terminated. Id. Manning admitted that because of that policy, there was incentive for people to not confess to having removed a tag. (Tr. 167).

Manning testified that the oil could have accumulated in two days, or even within one or two shifts. (Tr. 160). In three days of ram car usage, the hydraulic parts and components with hoses may leak. Id. Dust from coal, rocks, oil leaks, and normal movement and operation may accumulate. Id. Preoperational checks, permissibility checks, and weekly checks are all procedures for detecting and remedying accumulations.

Manning testified that it was not a common practice to allow all four service brake discs to become coated with oil before the condition was corrected. (Tr. 164). In his 30 years of mining experience, Manning had never heard of a fire starting on any piece of equipment because of brake friction. (Tr. 162).

2. Brief Summary of the Parties’ Arguments

a. Secretary of Labor

The Secretary argues that there was a clear S&S violation of section 75.400. The Secretary stresses that under the third element of Mathies, an evaluation of the reasonable likelihood of injury should be made assuming normal mining conditions. When evaluating the reasonable likelihood of a fire, the Commission examines whether a confluence of factors was present. The factors considered include the extent of the accumulations, the length of time the cited accumulations were present, and the presence of possible ignition sources. Amax Coal co., 19 FMSHRC 846, 848 (May 1997). The fact that a mine has measures in place to suppress a fire does not mean that fires do not pose a safety risk to miners. Buck Creek Coal Co., 53 F.3d 133, 136 (7^th Cir. 1995). Because the mine is a gassy mine on a five-day spot inspection schedule, there is an inherent hazard that requires extreme caution and due diligence to assure the safety of its miners. The evidence presented in the case establishes that there was a reasonable likelihood that the hazard contributed to by the violation would have resulted in an event in which there was a serious injury.

The Secretary also maintains that the violation was the result of the operator’s high negligence and its unwarrantable failure to comply with the safety standard. The Commission analyzes several key factors in determining whether a violation is the result of an operator’s unwarrantable failure, as discussed earlier in this decision. The Secretary contends that she established that AmCoal met these factors.

b. AmCoal

AmCoal does not dispute that there was a violation of section 75.400. It argues that the testimony of Inspector Cripps should receive little or no deference because his testimony and conclusions differed significantly from what he recorded in his notes and what he actually investigated when he issued the order.

AmCoal also argues that the violation was not S&S because there was no ignition source that could have ignited the oil accumulations. The only potential ignition source was the possibility of friction creating heat on the brake pads, but the inspector admitted that he was just speculating that brake friction could start a fire at the mine. AmCoal maintains that only one person would have been affected if a fire were to start. The ram car had a built-in fire suppression system that covered all the potentially affected areas of the ram car and there was a portable fire extinguisher on the ram car. The inby crews were over a mile away. There was absolutely no evidence that a fire would have progressed into a conflagration that would bellow thick smoke into the mine atmosphere.

AmCoal also argues that its negligence was moderate and the violation was not the result of its unwarrantable failure. The violation occurred at shift change and there was no proof that the ram car had been operated that shift. The company argues that the operator would have noticed the accumulations and would have made sure that the ram car was cleaned before it was operated. There is also no evidence that management knew of the cited condition. The engine and differential compartments had covers over them so the accumulations would not necessarily be noticed by someone walking by. The company’s weekly examination records show that the ram car was being inspected and serviced on a regular basis. The ram car could have easily been washed on November 14, put back into service, and then could have developed oil leaks and spills.

3. Discussion and Analysis

The Secretary established the first two elements of the Mathies S&S formula. A violation was established that created a discrete safety hazard. The hazard was a fire starting on the ram car with the result that smoke and CO would enter the mine atmosphere. I also find that the Secretary established the fourth element. If an injury were to occur as a result of this violation, the injury in question would be of a reasonably serious nature. As in many cases, the issue is whether there was a reasonable likelihood that the hazard contributed to by the violation would have resulted in an injury to a miner.

The Commission has provided the following guidance for accumulation violations:

When evaluating the reasonable likelihood of a fire, ignition, or explosion, the Commission has examined whether a “confluence of factors” was present based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the accumulations, possible ignition sources, the presence of methane, and the type of equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 1990).

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).

I find that, in examining all of the factors that can contribute to a fire, the Secretary did not establish that it was reasonably likely that the hazard contributed to by the violation would have resulted in an event in which there was an injury. [2]

I find that there was no ignition source that was reasonably likely to ignite the oil. The oil at the bottom of the differential compartment was not near any ignition source. There were no loose wires or other parts that could get hot in this compartment. It was also unlikely that heat from the engine could ignite the oil. Because the ram car was a permissible piece of equipment, the maximum surface temperature of the engine would not be any higher than 300 degrees, which was well below the ignition temperature of the hydraulic oil. (Tr. 53). The ram car was equipped with shut-down devices that automatically shut the engine down if the exhaust or coolant temperature gets high enough to ignite the oil.

The only potential heat source that could possibly ignite the oil was heat generated by the brake discs. The ram cars travel at an extremely slow speed, about five miles per hour or less, and are unlikely to generate enough heat in normal usage to ignite oil. Inspector Cripps was concerned that a brake pad could malfunction and stay compressed during normal operations. The inspector did not observe any problems with the brakes or the discs during his inspection. Although it was possible that the brakes could ignite the oil, such an event was quite unlikely. At most, the brakes would start to smoke and a “distinctive smell” would become evident. (Tr. 98). Inspector Cripps has observed stuck brake pads at mines but there was no evidence that such an event has ever started a fire on a piece of equipment. I find that it was unlikely that friction from the brake pads would start a fire. [3] In addition, it is not clear whether the ram car was ever operated in the condition that it was found by the inspector. Some of the accumulations could have appeared at the end of the previous shift. Finally, it is not clear whether the ram car operator on the ongoing shift had performed her preoperational check at the time of Cripps inspection. Given that fact, I cannot presume that she would have operated the vehicle in the condition it was at the time of the inspection.

I recognize that the test for S&S is not that there must be a reasonable likelihood that the violation will cause injury, but 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 (Oct. 2010); Black Beauty Coal Co., 34 FMSHRC ___. slip op. at 9-10, No. LAKE 2008-477 (Aug. 2, 2012). The potential hazard in this case is that the oil on the vehicle will catch on fire creating smoke. As stated above, such an event was not likely. [4]

The violation was very serious, however. The gravity of this violation does not depend on the reasonable likelihood of a fire but rather the focus is on what effect a fire could have on the health and safety of miners. For the reasons the inspector provided to justify his S&S determination, I find that the gravity was high. It is the gravity I must take into consideration when assessing a civil penalty. 30 U.S.C. § 820(i). Because the ram car would travel around into inby areas, I find that 20 miners could have been affected if a fire started when the ram car was in an inby area.

I find that the violation was the result of AmCoal’s negligence but that the Secretary did not establish the violation was the result of AmCoal’s aggravated conduct constituting more than ordinary negligence.

The ram car was parked at the portal bottom and would have been observed by many people including management personnel. The violation was extensive and, if someone carefully looked at the ram car, it was obvious. Although it is not entirely clear how long the condition existed, at least some of the oil must have been present for some length of time. It is unlikely that all four brake calipers would have started leaking at the same time. Thus, the conditions observed on November 17 did not happen all at once, but built up over at least one or two shifts. The conditions created a serious safety hazard, as discussed above. It is not clear if the ram car operator had conducted her preoperational examination of the vehicle. It is also not clear when the ram car had been previously operated. Thus, it is just as likely as not that the ram car had not been operated with all of the accumulations present and that it would have been cleaned before it was operated again.

On the other hand, Inspector Cripps credibly testified that he had numerous discussions with AmCoal officials regarding accumulation violations. The mine had been issued 38 citations and 7 orders for violations of section 75.400 in the two months prior to November 17. (Tr. 93). It received in excess of 200 violations of this standard in the 15 months preceding November 17. (Tr. 361-62; Ex. G-Z). Most importantly, MSHA inspectors had cited AmCoal on numerous occasions for accumulations on diesel equipment at the mine and for accumulations on brakes of such equipment. (Tr. 32, 92-93). The inspector testified that the service brakes on ram cars at the Galatia Mine were “notorious for leaking.” (Tr. 24). Inspector Cripps testified that he had discussed this problem with mine management and had written many citations for equipment being coated with oil. Id. Manning admitted as much. (Tr. 166). Thus, the operator was put on notice that greater efforts were necessary for compliance with section 75.400, especially with respect to accumulations of oil, grease, and coal dust on mobile equipment. See e.g. Big Ridge, Inc. 33 FMSHRC 689, 705-06 (Mar. 2011) (ALJ). Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with the standard. Enlow Fork Mining Co., 19 FMSHRC at 11.

Given the particular facts in this case, I find that there is insufficient evidence to establish an unwarrantable failure finding. Because of the uncertainties concerning the length of time the condition existed and the time it would have continued to exist assuming normal mine operations, I find that it was not established that management exhibited aggravated conduct with respect to this order. The order is hereby MODIFIED to a section 104(a) citation with moderate negligence. Given the above, I find that a penalty of $30,000.00 is appropriate for this violation.

B. Order No. 6668417; LAKE 2008-526

On November 13, 2007, MSHA Inspector Danny Ramsey issued Order No.6668417 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.351(b)(2) of the Secretary’s safety standards. [5] The citation alleges:

The designated AMS operator, responsible for monitoring the AMS signals, did not promptly respond to defective CO sensors indicated on the Finnigan #1 conveyor belt. The defective sensors, located at the head roller, the conveyor tail piece and at the 4200’ mark were not reported.

(Ex. G-G). The inspector determined that an injury or illness was reasonably likely to occur and result in a fatal accident, the violation was S&S, 25 people would be affected, and the violation was the result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $53,858.00.

1. Background Summary of Testimony

a. Testimony of Inspector Danny Ramsey

Danny Ramsey is a ventilation specialist and an inspector for MSHA. (Tr. 172). He had been an inspector with MSHA for about seven and a half years. (Tr. 172). Prior to working with MSHA, Ramsey worked in the mining industry for approximately 31 years. (Tr. 173-74).

AmCoal installed carbon monoxide (“CO”) monitors along the belts at the mine as part of its approved ventilation plan. MSHA refers to these monitors as an atmospheric monitoring system (“AMS”). [6] Ramsey testified that he issued Order Number 6668417 after checking the examiner’s books on November 13^th and noticing that the CO systems were still reported as being down and not operating. (Tr. 177, 179-80). The previous day, he had asked about the CO systems and had been told they were down, but that the affected belts that convey coal were not running and were idle. (Tr. 177). However, on the 13^th when he asked about production, he was told that they had run coal the night before even though some of the sensors on the CO system were shown as not operating at that time. Id. The sensors on the belt were placed 2000 feet apart, the distance the regulations require. (Tr. 180, 201). Three sensors were not working: one at the head roller, one at the 4200 foot mark, and one at the tail piece of the belt. (Tr. 180). If a fire started along the area where a sensor was out, another monitor might have detected the CO. (Tr. 203). The inoperable sensors were at the ends and in the middle of the belt. (Tr. 206).

The belt that was down was the Flannigan #1 belt at the Galatia mine. (Tr. 177). It is the main belt that transfers coal out of the mine. (Tr. 178). The standard requires an AMS operator to monitor the system and, if the system goes into alert, fails, or alarms, he is to notify a responsible supervisor immediately. Id. The AMS only monitors the presence of CO along the belt lines. CO is created during a fire. (Tr. 178, 179). In order to comply with the mine’s ventilation plan, if the sensors are not working, someone is required to physically monitor the affected area. (Tr. 182). The AMS operator, who works in a surface office at the portal known as “mine control” receives signals from and maintains communication with the AMS. (Tr. 178, 179).

Inspector Ramsey discussed the problem with Steve Willis, the safety manager at that portal. (Tr. 181). Willis called mine control and spoke to the AMS operator about the belts. The AMS operator said that the belts had been run that night with the sensors not working.

Ramsey designated the violation as reasonably likely and fatal, S&S, with 25 people affected. (Tr. 184, 189). The specific hazard of concern to the inspector was that the moving parts on the belt line would start a frictional fire and, without functioning CO sensors, the fire would spread and become a large fire. (Tr. 184-85). There is usually only one examiner in the actual vicinity of the belts during each shift. (Tr. 185). Another miner may be present cleaning up accumulations. Ramsey testified that at least 25 people were working inby this area. He recalled the airflow that day moving inby, although that was not recorded in his notes or on the order. (Tr. 199). The miners who were working inby were approximately two-and-a-half to three miles away from the cited area. The belt entry was separated from the main travel road by stoppings and man doors every 600 feet. (Tr. 198). The air that was traveling inby would not have traveled all the way to the face; rather, it would have traveled to a regulator. (Tr. 199-200). Ramsey did not know where the regulators were on the day he issued the citation.

With regard to the “reasonably likely” designation, Ramsey testified that when there is machinery with moving parts in an area that is not well traveled without operating sensors to alert the presence of a fire, the smoke from a fire could travel inby along the belt line and pose a high degree of danger to the miners. (Tr. 186-87). There would be no way for the miners to escape the mine. (Tr. 190). The risk associated with exposure to CO in high concentrations is death. On cross-examination, Ramsey testified that if someone were in the belt entry when a fire broke out, they possibly could go through one of the man doors to cleaner air.

The person monitoring the AMS system at mine control did not properly respond to the defective sensors. (Tr. 188). The fact that the sensors were not working was recorded in the examiner’s books when Ramsey was at the mine. (Tr. 188-89). The AMS operator also said the same thing to Ramsey. (Tr. 188). The midnight shift mine manager made a statement that he was not contacted by the AMS operator regarding the defective sensors. (Tr. 191).

In designating the violation as an unwarrantable failure and high negligence, Ramsey took into account the fact that the AMS operator was an agent of AmCoal. The AMS operator knew of the problem but did not react to it or report it. (Tr. 190, 208). Ramsey testified that the operator was an agent of the mine because he was solely responsible for monitoring the AMS system and other systems in mine control. (Tr. 190-191). Another reason he thought the AMS operator was an agent was because it was his belief that the operator was a salaried employee. (Tr. 209). AmCoal had notice that there were problems with the AMS system because they had been working on the sensors the day before. (Tr. 192). Anyone in management should have known that the sensors were not working because it was in the books and the books are countersigned by mine management each shift. Ramsey testified that, when an AMS system is not functioning, he presumes the existence of an emergency because conditions along a belt create a potential for a fire or other hazard. (Tr. 193).

Ramsey further testified that, after issuing the order, he went underground and traveled approximately seven miles to the Flannigan longwall area. (Tr. 194). He did not stop to check the status of the belts or CO monitors at that time. He did not issue citations or orders for accumulations along that area of the Flannigan #1 belt. Id. He did not note any potential ignition sources along the entries or along the Flannigan belt. (Tr. 194-95). He did not inspect the belt. He did not know the status of the rollers on the belt or of any of the equipment or machinery on the belt. (Tr. 195). His designation of gravity as reasonably likely was based on a presumption of a potential hazard. (Tr. 196).

Ramsey testified that he listed the violation as potentially fatal because of the possibility of smoke or CO inhalation. (Tr. 196). Ramsey testified that whether the injury would result in lost work days or a fatal accident would depend on the size of the fire. Ramsey presumed that, because there was no alert system protecting miners and the AMS operator failed to notify anyone that the sensors were not working, a fire could become very big before it was discovered. Ramsey testified that a large area was not protected by CO sensors and this area had a history of problems with coal spillage and friction sources were often present. (Tr. 197).

b. Testimony of Stephen Willis

Stephen Willis was the Manager of Health and Safety at AmCoal in February, 2007. (Tr. 264). His duties were monitoring the safety program and compliance program, reviewing accidents, and conducting investigations. (Tr. 264). Willis began mining coal in 1972. (Tr. 265). He has worked mining coal, in management, and in health and safety. (Tr. 265-66). At the time of the hearing, Willis had been at Galatia for approximately 20 years. (Tr. 266).

Willis met with Inspector Ramsey on November 13. (Tr. 266). Willis first learned about the condition cited in Order 6668417 when Ramsey informed him that the order would be issued. (Tr. 267). With Ramsey present, Willis called Carl Shurtz, putting him on speaker phone. Shurtz works in mine control and monitored all the functions that control the belts. (Tr. 268). If there was an alarm on a CO monitor, Shurtz’ job was to call the shift manager so the shift manager could investigate and call an electrician if necessary. Willis asked Shurtz if there was a problem with the monitors and Shurtz replied that there was. (Tr. 269).

After the order was issued, Willis conducted his own investigation. (Tr. 267; Ex. R-81). Mr. Shurtz was the AMS operator between 7:00 a.m. and 7:00 p.m. while Jim Hood was AMS operator between 7:00 p.m. and 7:00 a.m. The belts had not been running for several shifts due to a roof fall in the Flannigan longwall. (Tr. 273). The day before the order was issued, November 12, the belts were not working and Shurtz told the electricians that there was a problem. Shurtz worked with the electricians to troubleshoot the problem, but when the system was reset, some of the CO sensors still were not working. (Tr. 277). This problem had not been fixed when Shurtz left the mine at the end of his shift at 7:00 p.m. on November 12.

After Mr. Hood started his shift as the AMS operator, he informed Shift Manager Randy Robinson of the problems with the CO monitors along the belt. Robinson was the shift manager of the shift that ended at midnight that evening. (Tr. 271-81; Ex. R-81). After more troubleshooting, most of the CO sensors along the Flannigan #1 came online at about 11:30 p.m. on November 12. The CO monitor at the 4200 foot location along this belt still would not come online. Hood told the electrician about this failure. Don Cotter, the shift manager for the shift that started at 12:01 a.m. on November 13, was not advised that all of the CO monitors were not working. (Tr. 262-63). The shift manager for the previous shift knew that all the CO monitors were not working and that the electricians were working on the problem. The oncoming shift manager was not informed of the situation, so he apparently assumed that all systems were working, and coal was transported on the belt on the midnight shift. Willis attributes the problem to a breakdown in communications between the AMS operators and the two shift managers.

Willis testified that he did not believe that AmCoal was negligent because the electricians knew about the problem and they were working to correct it. (Tr. 282-83). The change of shift probably contributed to the communication breakdown with the midnight shift manager. (Tr. 283). The AMS operators had been communicating with the electricians. Based on Willis’ investigation, the electricians continued to work on the problems and they kept management apprised of the situation. (Tr. 283-84).

Willis testified that there was absolutely no question in his mind that the air along the whole Flannigan belt was moving in an outby direction in November of 2007. (Tr. 290-91). Willis testified that the monitor at the Northwest 3 tail and the monitor at the Flannigan 1 head were close together, approximately 100 feet apart. (Tr. 289, 292). Willis believed that the monitor at the Northwest 3 tail was working. (Tr. 292).

Because the air was moving outby, if a fire were to start, the smoke and CO would travel in an outby direction. (Tr. 296). Stoppings separated the primary escapeway/travelway from the belt entry. Willis testified that if a fire were to occur, he did not believe that it would affect inby miners. He testified that outby there may have been examiners and other employees working, but if a fire were to start they would go through a man door into the clean air in the primary escapeway. (Tr. 297, 299). Willis testified that a fatal injury was highly unlikely. (Tr. 299). If someone were injured, Willis thought that the most likely injury would be lost days or restricted duty from smoke inhalation. (Tr. 300). Willis said there was a fire deluge system at all the belt drives.

The only responsibility and authority of the person monitoring the AMS system was to notify the shift manager when necessary. (Tr. 307). The AMS operators had no management responsibilities. (Tr. 308). They also did not train people, hire or fire people, coordinate the location of personnel within the mine, and were not given any responsibilities in respect to allocating work to individuals. They are in charge of the communication center for all three portals, underground and on the surface. (Tr. 316-17). If there is an emergency, they must be on alert and aware. (Tr. 311-12). They are responsible for generating a log book that records CO alarms, failures, and computer reports. To be a mine controller, technical skills and computer skills are required.

2. Brief Summary of the Parties’ Arguments

a. Secretary of Labor

AmCoal’s designated AMS operator failed to promptly respond to several defective CO sensors on the Flannigan #1 conveyor belt. The violation was S&S because, assuming continued mining operations, the malfunctioning sensors posed a hazard to the two mining units working inby. In the event of an emergency, it was reasonably likely that fatal injuries would occur. The Secretary argues that she is not required to establish that it was reasonably likely that the violation itself would result in an injury but the test is whether there was a reasonable likelihood that the identified hazard would result in an injury. The hazard in this instance consists of miners being unable to escape quickly in an emergency situation. With the sensors not working it was reasonably likely that, if a fire were to start in the cited area of the belt, there would be a delay in its being detected. This delay would make it reasonably likely that miners would not be able to escape in a timely manner.

The Secretary also maintains that the violation was the result of AmCoal’s high negligence and its unwarrantable failure to comply with the standard. The AMS operator was the agent of AmCoal and his negligence is imputable to the operator.

b. AmCoal

AmCoal does not dispute the violation but contends that the violation was not S&S, that its negligence was not high, and that the violation was not the result of its unwarrantable failure to comply with the safety standard. The evidence demonstrates that an injury was unlikely to occur, that any injury would have resulted in no more than lost workdays, and that only one person would have been affected. There is no proof that there were any conditions along the belt that could have started a fire. Inspector Ramsey did not even inspect the belt for hazardous conditions. A large fire would never have occurred because there were only three malfunctioning CO detectors and there were other detectors in close proximity. If a fire had started, it would have been detected by the other CO monitors. The air was traveling in an outby direction so it was highly unlikely that the inby miners would have been injured in the event of a fire. Any smoke and fumes would have traveled out of the mine via the belt entry and any miners in that entry could have entered the primary escapeway to exit the mine.

The evidence demonstrates that AmCoal’s negligence was moderate and the violation was not the result of its unwarrantable failure. Mine management was aware of the problem with the CO monitors, corrective work was ongoing, the cited conditions had not existed for a long period of time, and the hazard created was not great. AmCoal also argues that the mine control employees responsible for monitoring the AMS should not be considered to be agents of the company.

3. Discussion and Analysis

I find that the Secretary established that the violation was S&S. In analyzing the S&S issue, I have considered the likelihood that the hazard contributed to by the violation would cause injury, not the likelihood that an emergency would occur. Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365-68 (Oct. 2011) appeal docketed, No. 11-1464 (D.C. Cir. Nov. 29, 2011). In this case, I find that an injury was reasonably likely.

There were only three malfunctioning CO monitors cited. Within 100 feet outby of the CO monitor at the Flannigan #1 head was a functioning CO monitor at the NW 3# belt tail piece, and two others were also located outby. (Tr. 292; Exs. R-70, R-74). There was also a CO monitor within a few hundred feet inby of the CO monitor at the Flannigan #1 head, at the belt drive. Id. Thus, if a fire were to start, the functioning CO monitors would likely alert the person monitoring the system on the surface, but there could be a delay. Moreover, the air current along the beltline traveled in an outby direction, not in an inby direction as the inspector assumed. Thus if a fire were to start, any smoke produced would probably not enter the working sections of the mine.

On the other hand, the ventilation plan requires that CO monitors be installed at specified locations along belt lines. These monitors are crucial along belt lines because the belts at the mine are very long and miners do not generally work along the belt. Having three adjoining monitors not working while coal is being carried on the belts out of the mine creates a serious safety hazard. If a fire were to start along the belt, it is unlikely that a miner would promptly discover the fire. As a consequence, functioning CO monitors were crucial for the safety of miners. The AMS operator knew that the monitors were not working and steps were not taken by management to ensure that the belt was not operated until the condition was corrected.

I find that the Secretary established all four elements of the Mathies S&S test. The hazard in this instance was that a fire would start, the fire would not be immediately detected, and smoke and CO would enter the mine atmosphere. It was reasonably likely that the hazard contributed to by the violation would have resulted in an event in which there was a serious injury. The most likely injury would have been smoke inhalation. I agree with AmCoal that 25 miners were not affected by the violation. I credit the testimony of Willis that the air was flowing in an outby direction. Outby miners would have been in the zone of danger. I find that one or two miners could reasonably have been expected to suffer smoke inhalation. A fatal accident was unlikely. The gravity of the violation was serious.

I find that the Secretary did not establish that the violation was the result of AmCoal’s unwarrantable failure to comply with the standard. I credit the testimony of Willis on this issue. His investigation revealed that the belt was run as a result of a simple miscommunication. (Ex. R-81). Mine management was aware that the CO monitors were not functioning. The AMS operator communicated this fact to management. The belts were not operating when the CO monitors stopped working and they did not run for several shifts. There was no coal production between November 10 and 12. A mine control technician reported the problems with the CO sensors on each of those days but he was told the belts were not going to be operating on his shift. The belt only ran on the midnight shift before Ramsey’s inspection. Apparently, the fact that the monitors were still not online was not communicated to the midnight shift manager. (Tr. 282-82). The electricians were working on the problem and were in communication with mine control. The shift manager for the previous shift had been notified, but the information was not communicated to the manager of the oncoming shift.

I find that AmCoal was negligent. It is clear that AmCoal needs to develop a better system of communicating malfunctioning CO monitors from one shift to the next. Either the AMS operator needs to be given specific instruction with respect to this responsibility or there needs to be better communication between shift managers. The AMS operators knew that AmCoal’s electricians were working to fix the problem and the belt had been down for several shifts. On that basis, the AMS operator assumed that everyone was aware of the situation and there was no risk to the safety and health of miners. I find that AmCoal’s negligence was moderate. [7] The order is hereby MODIFIED to a section 104(a) citation with moderate negligence. A penalty of $35,000.00 is appropriate for this violation.

C. Citation No. 6668304; LAKE 2008-138

On September 6, 2007, MSHA Inspector Ramsey issued Order No. 6668304 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.363(b) of the Secretary’s safety standards .[8] The citation alleges:

Inadequate on-shift examinations have been performed on the #1 North West conveyor belt at the bunker. Obvious hazards were not recorded in a book maintained for this purpose on the surface of the mine.

(Ex. G-I). The inspector determined that an injury or illness was reasonably likely to occur and result in lost workdays or restricted duty, the violation was S&S, one miner would be affected, and the violation was the result of high negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $20,300.00.

On February 4, 2008, AmCoal participated in a safety and health conference with MSHA pursuant to 30 C.F.R. § 100.6. At the conclusion of this conference, Edward B. Ritchie, MSHA’s conference and litigation representative (“CLR”), removed the unwarrantable failure determination and modified the order to a section 104(a) citation. The modification states, in part:

It was determined that there were mitigating circumstances that would not support the determination of aggravated conduct and unwarrantable failure as cited. It was determined that the bunker area cited was being examined, but not in its entirety. The new examiner was not aware that he was required to examine the lower area of the bunker. Therefore, it was determined that the violation was due to a lack of proper communication or instruction by mine management and not the result of aggravated conduct.

(Citation/Order No. 6668304-02). The modification did not change the “high” negligence designation.

At the hearing, Inspector Ramsey strenuously disagreed with the modification made by CLR Ritchie. (Tr. 231). This modification was made without Inspector Ramsey’s knowledge or consent. (Tr. 210-11). Counsel for the Secretary asked that I carefully consider the evidence she presented at the hearing and enter a finding of aggravated conduct if I find that the evidence supports such a finding. AmCoal objected on the basis that it did not come prepared to defend against an unwarrantable failure finding. (Tr. 2011-12).

I hereby DENY the Secretary’s request. Although the issuing inspector disagreed with the modification of the order, the CLR acted in his official capacity and modified it to a section 104(a) citation. When AmCoal filed its prehearing submission, it stated that it was contesting Citation No. 6668304. (AmCoal Responses to Notice of Hearing at 4) (emphasis added). Moreover, AmCoal noted in its answer to the Secretary’s petition for assessment of penalty that the order had been modified to a section 104(a) citation. (AmCoal Answer at 1). Exhibit A to the Secretary’s petition for assessment of penalty lists the citation as a section 104(d)(2) order, however, and the Secretary’s proposed penalty was calculated on this basis. That discrepancy is one of the reasons why AmCoal chose to contest the citation.

Until the middle of the first day of the hearing, AmCoal was unaware that the Secretary wanted to revoke MSHA’s prior modification of the citation. AmCoal prepared for the hearing with the understanding that it was contesting the citation as modified in 2008 and it is seeking a reduction of the penalty because the citation was mistakenly specially assessed as if it were still a section 104(d)(2) order. I hold that it would undermine fundamental notions of due process to revoke MSHA’s modification of the order to a citation at this time.

1. Background Summary of Testimony

a. Testimony of Inspector Ramsey

Ramsey testified that at the time he observed the cited conditions, he was at the north portal at the bunker area. (Tr. 214). The bunker area is a large metal storage facility that stores coal temporarily when the conveyer gets overloaded with coal. Examiners, belt cleaners, and mechanics who service the bunker area travel in and around the bunker.

The citation was issued because Inspector Ramsey observed several hazards that were not recorded in the on-shift examination book. He issued seven citations for these hazards that day in the bunker area. (Tr. 215, 218). The citations were Nos. 6669797-800 and 6668301-303. (Tr. 216; Ex. G-DD). Those citations were issued contemporaneously with Citation No. 6668304 and are not in dispute. (Tr. 216, 218-19). MSHA’s Mine Data Retrieval System at its website shows that AmCoal paid the Secretary’s proposed penalty for each underlying citation.

The first unrecorded hazard was that personnel doors at the bunker were left in the open position. (Tr. 218). The purpose of the doors is to isolate the primary escapeway from the belt entry. As result of this violation, the primary air course was not isolated from the belt air course. It created a hazard of fire, smoke, or gases from the belt line reaching the primary escapeway. (Tr. 218, 219).

The second hazard resulted from the presence of oil on the floor in the pump station for the bunker. The floor, hosing, and drainage were saturated with raw oil, creating a fuel source. The pumps generated heat, and oil was present on the electrical components of the pump station. (Tr. 219). Ramsey did not measure the temperature of the pumps, did not see any open electrical leads near the pumps, and did not think that the pumps were malfunctioning. (Tr. 219, 244). There was a large fan blowing on the pump station for cooling purposes, which is not typical. (Tr. 219, 243). The fan itself was not a hazard, but Ramsey believed that the pump was too hot to touch. (Tr. 219-20, 243, 245). At the time Ramsey observed the hot pumps, they were not sufficiently hot to ignite the oil right at that moment. (Tr. 245). The oil on the floor also created a slip, trip, and fall hazard. (Tr. 220-21).

The third hazard Ramsey observed was that the Number One North West Belt was not maintained in safe operating condition. (Tr. 221, 246). A defective bottom roller was observed at the number three crosscut. The location is toward the end of the bunker on the inby side. (Tr. 246). The roller was broken, allowing the belt to contact the roller shaft, creating a friction source that could ignite combustible materials. (Tr. 221). Because the roller was not in contact with combustible materials, Ramsey designated the violation as unlikely and non S&S. He noted that there were “no sparks and no fuel.” (Tr. 247).

Ramsey observed another hazard in the same area. (Tr. 221-22). The inby material door located at the number three crosscut off the Main West travelway was open. (Tr. 222). When not in use, both doors must be closed. This created another opening between the belt and primary escapeway. Without isolation, there is a possibility of smoke from a fire contaminating the primary escapeway. Ramsey also determined than an injury was unlikely.

Next, Ramsey observed that a suitable facility for traveling under the moving belt conveyer was not provided on the North West Number 1 belt. (Tr. 223, 247). Ramsey noted footprints and tire tracks under the belt where miners had been traveling under the belt. (Tr. 223). Ramsey designated the citation as non-S&S because there was ample clearance of about six feet under the belt. (Tr. 223, 248). Ramsey estimated that the condition had existed for quite some time. (Tr. 223). The citation was remedied when AmCoal added metal guarding. (Tr. 248).

Ramsey also observed that two guards for the Galatia North bunker chain located on the south side were not secured in place while machinery was in operation. (Tr. 223-24, 248). An opening of about 12 inches in width by 14 feet in length on the bunker was observed, exposing the chain. (Tr. 224, 249). Ramsey designated the citation as “reasonably likely” because there were unguarded moving parts creating a hazard. (Tr. 224). The hazard was in an area regularly traveled by mine personnel to conduct examinations and to service equipment. (Tr. 249). Ramsey could not determine how long these conditions had existed. (Tr. 250).

Next, Ramsey observed that loose float coal dust, oil, oil-soaked coal, and coal dust had been allowed to accumulate along and under the bunker. (Tr. 225). The accumulations ranged from between 2 inches to 30 inches in depth along and under the bunker. The accumulations were in an area approximately 18 to 20 feet in width and 300 feet in length, along the entire length of both sides of the bunker. (Tr. 225, 252). This created a slip, trip, and fall hazard. (Tr. 225). Additionally, Ramsey testified that because maintenance is routinely performed on the bunker and torch work is required when repairing chains and sprockets, there is a danger of a fire or smoldering coal. He did not find an ignition source. (Tr. 251).

The accumulations and missing guards were very obvious and had been there a significant amount of time. (Tr. 226). The crossing facility had been there for “a while”. However, the two door violations could have occurred 30 minutes before Ramsey arrived. The others should have been recorded at the end of the midnight shift examination. (Tr. 226, 227). Ramsey looked at the records on the surface, but found no record of the hazards. (Tr. 226-27).

Ramsey testified that he only issues section 75.363(b) citations for failure to do an on-shift examination when there are several violations or hazards. (Tr. 227, 242). In this case, there were seven. (Tr. 227-28). Ramsey testified that either the examination was so poor that the examiner did not see any of the violations or, if he saw them, he did not record them. (Tr. 228). These violations were substantial enough to warrant writing a section 104(d)(2) order for the violation.

Ramsey testified that a miner could be injured by any one of these cited conditions. The most likely injuries would be lost workdays from smoke inhalation, strains, sprains, broken bones, or contusions. (Tr. 230, 248). Ramsey testified that the failure to record these hazards exposed miners to a high degree of danger. (Tr. 230). He found no mitigating circumstances, even after discussion with the mine superintendent. (Tr. 230, 235). Ramsey testified that the conditions were obvious and were on both sides of the bunker. (Tr. 232). The bunker has different levels but there is a catwalk above it.

b. Testimony of Stephen Willis

Stephen Willis testified that the bunker is a containment area that makes it possible to keep the belts running continuously. (Tr. 322-23). Willis had a vague recollection of the order at issue in this case. (Tr. 323). Willis testified that a newly-trained examiner performed the on-shift examination that day. Although he was an experienced miner, it was his first time doing an examination. (Tr. 324). Willis did not recall any problems with the examiner other than he failed to examine the lower part of the bunker. Another examiner had left him at the door leading to the bunker and told him to “just go straight and down, keep on the belt, your Northwest belts.” The examiner said that he went through the door, stayed on the top catwalk across the bunker and he did not travel down to the bottom of the bunker. (Tr. 324-25). Willis agreed the examiner failed to perform a thorough examination. (Tr. 342-43). Willis admitted that the examiner who showed him the bunker should have given him more specific instructions for examining that area. (Tr. 344). Willis explained that because the examiner had 20 years of mining experience, he knew how to perform a competent examination, but he was not made aware of all the sections of the bunker that needed to be examined. (Tr. 326).

Willis testified that he would not expect to see an open door noted in an on-shift exam book. (Tr. 327). The examiner would simply close the door. (Tr. 328, 329). If there was a fire in the area, smoke would have been not been drawn into the primary escapeway. (Tr. 328). Willis did not agree with Ramsey’s determination that the violation was reasonably likely to cause an injury. However, Willis admitted that the ventilation plan requires that personnel doors remain closed to keep the belt isolated from the primary escapeway. (Tr. 346).

Willis testified that because oil frequently accumulated in the pump station in the bunker area, it is cleaned on a regular basis. (Tr. 330). Willis said that the broken conveyer belt roller shaft was unlikely to have started a fire. Such conditions are fairly common and a roller can break very quickly. (Tr. 333). The condition may not have existed at the time of the previous examination.

Willis testified that there are two sets of inby material doors at the number three crosscut because it is an airlock. (Tr. 334). One of the sets of doors was closed and one was open. (Tr. 334-35). If an on-shift examiner found the condition, Willis would expect him to close the doors. (Tr. 335).

Willis testified that there was about 10 feet of clearance where the roadway passed under the belt. (Tr. 335). There had never been a guard at this location. (Tr. 336). Willis testified that many inspectors had walked through the area but had never cited AmCoal for failure to have a guard. Willis would not expect an on-shift examiner to record it in the on-shift exam book. (Tr. 337).

He testified that the Galatia North bunker chain on the south side moved very slowly, so the absence of a guard did not create a hazard to miners. (Tr. 337-38). Finally, Willis testified that loose coal, coal dust, oil, and oil soaked coal frequently accumulated along and under the bunker. (Tr. 339). This area required continuous cleaning which included hosing down the area under and behind the bunker. (Tr. 339-40). The walls and floor surrounding the bunker are concrete and the bunker is made out of steel. (Tr. 340). The condition could have occurred very quickly.

2. Brief Summary of the Parties’ Arguments

a. Secretary of Labor

Inspector Ramsey discovered seven serious hazards in the mine bunker area. He issued the order after seeing that none of these hazards was recorded in the on-shift record book. The failure to record these conditions is a clear violation of section 75.363(b). The violation was S&S because, taken together, the conditions described in the underlying citations created a reasonable likelihood that the hazard contributed to by the instant violation would result in an event in which there is a reasonably serious injury. Finally, the Secretary maintains that the failure of the examiner to record the hazards discovered by Inspector Ramsey constituted high negligence and an unwarrantable failure to comply with the requirements of the safety standard. The high negligence of certified mine examiners is attributed to the mine operator.

b. AmCoal

AmCoal maintains that Inspector Ramsey’s testimony should be accorded very little deference because it is inconsistent with his notes and with the language of the citation. AmCoal also argues that an injury was unlikely to occur as a result of the violation. It argues that, when viewed individually, the underlying citations that Inspector Ramsey issued did not create safety hazards that were required to be recorded in the on-shift record book. For example, the open doors that were cited may have been recently opened and they did not create safety hazards for the reasons explained by Willis. An on-shift examiner could discharge his duties by simply closing the doors as he walked through the area without recording them. Finally, the violation was the result of AmCoal’s moderate, rather than high, negligence. The examiner was new to the bunker area and he examined the area from the catwalk along the belt. The examiner knew that he had to examine the bunker but he did not know what was involved in performing this function. Because the penalty proposed by the Secretary was based on the mistaken belief that the order had not been modified to a section 104(a) citation, the penalty should be lowered to $243.00 using the regular assessment formula.

3. Discussion and Analysis

I find that the Secretary established that there was a violation of section 75.363(b) and that the violation was S&S. There can be no doubt that the on-shift examiner failed to examine a large part of the bunker. He simply walked across a catwalk on top of the bunker and did not examine the lower levels. When the inspector examined the entire bunker area he discovered a number of safety hazards, as described in his testimony summarized above. In their briefs, the parties analyzed each of the underlying citations. The Secretary contends that these citations were issued because the inspector observed hazardous conditions that should have been recorded in the record book. AmCoal argues that the cited conditions did not create immediate hazards that needed to be recorded. For example, one of the citations was issued for failure to provide a suitable crossing facility where miners and equipment had been traveling under the moving North West #1 belt. Due to the height of the belt, the inspector determined that an injury was unlikely. This condition had likely existed for years and was unlikely to cause an injury. AmCoal contends that such a condition cannot be the basis for an S&S finding in the citation at issue in this case.

I find that, taken together, the conditions documented in the underlying citations created a discrete safety hazard. The hazard was that the failure to do an adequate on-shift examination would make it more likely that at least one of the cited conditions would come to fruition and injure a miner. Assuming continued normal mining operations, I find that it was reasonably likely that at least one of these conditions would have contributed to the cause and effect of a mine safety or health hazard. Miners work in the area performing maintenance and cleaning. There was a reasonable likelihood that at least one of these hazards would have resulted in an event in which there was an injury of a reasonably serious nature. The failure of a certified mine examiner to thoroughly inspect his assigned area of a mine and record hazardous conditions contributes to the hazard. In Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995), the Commission described preshift examinations as one “of fundamental importance in assuring a safe working environment underground.” The same is true of on-shift examinations. Recording the hazardous conditions discovered in the examination is crucial to the safety and health of miners. While I agree with AmCoal that some of these conditions did not require recording in the on-shift book, several others should have been recorded because they created “hazardous conditions” that are required to be recorded.

The degree of negligence that should be attributed to AmCoal is a closer question. An on-shift examiner is deemed to be an agent of the mine operator and his negligence can be attributed to the operator. Rochester & Pittsburg Coal Co., 13 FMSHRC 189 (Feb. 1991). In this case, the examiner was negligent in not examining the entire bunker area and recording hazardous conditions. In addition, AmCoal was directly negligent in not properly training the examiner on how to examine the bunker area.

There is no question that the bunker area is unusual and a miner who did not normally work in the area might be confused as to how to examine the area. Given that fact, it was incumbent on AmCoal to ensure that the new examiner was properly trained on how to conduct an examination of the bunker. I find that this failure to show the examiner the areas of the bunker that needed to be inspected contributed to the violation and constituted high negligence. AmCoal should have known that a miner without experience working in the bunker would not know how to examine the area. In reaching this conclusion, I have taken into consideration the fundamental importance of on-shift examinations. I find that a penalty of $15,000.00 is appropriate for this violation.

D. Order No. 6668510; LAKE 2008-526

On October 28, 2007, MSHA Inspector Steven Miller issued Order No. 6668510 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. The citation alleges, in part:

Float coal dust, a distinct black in color, loose coal, coal saturated with oil, and plastic were allowed to accumulate on the 1^st West Headgate Lube Center, . . . The accumulations measured approximately 1/8 inch to 6 inches in depth. Accumulations were located on the frame, electrical conduits and electrical leads, fire suppression system, and on the tanks. The saturated coal and coal float dust were packed under and around the hose reels, conduits and hoses. The accumulations have been here for several shifts and there was no entry in the weekly book of these accumulations.

(Ex. G-K). The inspector determined that an injury or illness was unlikely to occur, but if an injury did occur it would likely be fatal. He determined that the violation was not S&S and that 10 miners would be affected by the violation. The operator’s negligence was high. The Secretary has proposed a civil penalty in the amount of $45,000.00.

1. Background Summary of Testimony

a. Testimony of Inspector Miller

At the time of the hearing, Steven Miller was a field supervisor with MSHA in Benton, Illinois. (Tr. 352). Miller has been employed with MSHA for twenty years. (Tr. 353). Miller has run every piece of equipment in a conventional mine. (Tr. 353). Prior to working with MSHA, Miller worked for two different coal companies, holding positions as general laborer, mine examiner, and group leader. (Tr. 354). He has inspected 50 to 100 mines as part of his duties with MSHA and is familiar with Galatia Mine. (Tr. 354-55).

Miller was at Galatia for an inspection in November and December of 2007. When Miller noted the conditions cited, he was in the First West head gate, near the Flannigan end of the mine, toward Galatia North. (Tr. 356). His escort was Joe Myers. (Tr. 356). The location is a lube center, which is near an active face. (Tr. 357). The lube center is a low-boy trailer made of steel that measures about 18 feet by 6 feet. (Tr. 365). Regulations require that lube centers be within 500 feet of a loading point. (Tr. 357). Miners refueling shuttle cars, scoops, or any mobile equipment requiring diesel fuel, as well as miners operating other active pieces of equipment on the unit or delivering materials to the unit, may travel in the area. (Tr. 357).

When Miller entered the area, he inspected the lube center and issued two citations in addition to the order at issue in this case. (Tr. 358-60). Miller testified that the lube center was in poor condition. (Tr. 359). It was covered in oil, and fuel and oil leaks were also present. (Tr. 359). Miller recorded in his notes that the mine had a history of accumulation violations. Miller testified that these conditions had been an ongoing problem at the mine with over 375 similar violations in the previous 15 months. (Tr. 361). Inspectors had cited the lube centers on a regular basis. (Tr. 362). Prior to this order being issued, there had been ongoing meetings regarding the frequent section 75.400 violations. (Tr. 370). Therefore, AmCoal should have been on heightened awareness that it needed to take more affirmative steps to promptly clean up these conditions. (Tr. 387).

Inspector Miller was concerned that a small fire in the lube center could ignite trash, oil, and fuel in the area which could then propagate a major mine fire. (Tr. 365). The area is not monitored from the surface and there is no fire detection system in the lube center. (Tr. 365). To detect a fire, someone would have to see it or smell it. (Tr. 365).

Miller testified that he determined that an injury was unlikely because he did not find an ignition source. (Tr. 363). The order was also marked as non-S&S. (Tr. 362-63). He marked the gravity as fatal because, in the event of a fire, there was a likelihood that someone would be overcome by smoke or not able to get out of the area. (Tr. 363). The negligence was high because of the history of similar conditions and the failure to correct them. (Tr. 363). He testified that ten people who were in the area could be affected. (Tr. 364). Miller said that the number of miners who would be affected would depend on which way the belt air was flowing but he could not recall the airflow at the hearing. (Tr. 364). However, if there were a fire, Miller said the air could travel to the primary escapeway quickly. (Tr. 371). The secondary escapeway was also nearby. (Tr. 371). He acknowledged that there were stoppings between the lube center and those entries. (Tr. 373). It was unlikely that the air was flowing toward the face. (Tr. 374). If the miners at the face had detected a fire, they would have been trained to go to the primary escapeway. (Tr. 374).

Miller indicated that there may have been a CO monitor along the belt nearby, but he did not travel to that area nor did he cite the mine for an inoperable CO monitor. (Tr. 375-76). If there were a fire near the face or the belt and the CO monitor were working, there would have been an alarm for the mine controller to see. (Tr. 376). The lube center was in a crosscut rather than in a main travelway. (Tr. 376).

Miller determined that miners were exposed to the conditions for several shifts. Because the lube center had been repaired 10 or 12 days earlier, he concluded that the accumulations occurred since that time. (Tr. 366). Miller testified that the accumulations must have existed during the previous weekly examination. (Tr. 383). In Miller’s opinion, based on his 35 years in the field, the conditions existed for a lot longer than one week. (Tr. 367). Miller said the section foreman, anyone fueling the equipment, or the person making the weekly examination should have observed, reported, and corrected the conditions. (Tr. 367). The conditions were extensive and not a result of normal mining operations. (Tr. 369).

b. Testimony of Joseph Myers

Myers is a safety compliance manager with AmCoal, where he has worked for 29 years. (Tr. 387-88). He had also served as the safety director. (Tr. 388). He accompanied Miller on the day of the inspection. (Tr. 388). Myers saw the accumulations and created a report about the order for the safety manager. (Tr. 390-91). Myers did not disagree with the characteristics of the accumulations that were observed. (Tr. 405).

Myers was with Miller when he checked the permissibility books. (Tr. 393). There were no entries of accumulation hazards. (Tr. 393). Myers’ report said that the area was subject to a weekly examination and the next one was to have been completed by November 3. (Tr. 395). Myer’s report also recorded that the lube center had been taken out of service on October 18. (Tr. 397). The lube center would have been cleaned when it was tagged out on October 18th. (Tr. 408-09, 411). The lube center was also repaired again on October 22 for a bad breaker, then put back into service. (Tr. 411, 412).

He did not believe that the cited conditions would have contributed to an injury because several safety measures were in place and operating. (Tr. 398). Myers said there were manual and automatic fire suppression in the area and rock dust was applied in the surrounding area. (Tr. 398).

Myers testified that the lube center vented to the belt line or directly to the return. (Tr. 399). This vent is present to prevent miners from being affected by smoke or other chemicals. (Tr. 399). If there were a fire, the smoke would go to the belt line or to the return. (Tr. 400). In the event of an emergency, miners would travel directly to the primary escapeway, where there is fresh air. (Tr. 400). If it were blocked, they would go to a secondary escapeway. (Tr. 400).

Lube centers are subject to weekly electrical permissibility inspections. (Tr. 400). The checks are completed by a qualified person who has had training to accurately examine the equipment. (Tr. 401). Myers admitted that section 75.400 prohibits accumulations of combustible material, even between weekly examinations. (Tr. 402-03).

Heavy-duty ram cars, road graders, and other equipment may be near the lube center or using it to fuel up. (Tr. 401). Hourly employees operate this equipment. (Tr. 402). The mobile lube truck, which carries fuel, is typically driven by a manager and it usually stops at the lube center. (Tr. 402).

Myers testified that MSHA inspectors had previously discussed the problem of excessive accumulations. (Tr. 410). Myers said that it was incumbent on foremen and examiners to inspect the lube center and to remove any accumulations. (Tr. 410-11).

2. Brief Summary of the Parties’ Arguments

a. Secretary of Labor

The Secretary argues that AmCoal violated section 75.400 because Inspector Miller found accumulations of coal dust, float coal dust, and loose coal in an active working of the mine. An active working is “[a]ny place in a coal mine where miners are normally required to work or travel.” 30 C.F.R. § 75.2. Miners worked and traveled by the lube center. The violation was the result of AmCoal unwarrantable failure for a number of reasons including the gravity of the violation, the length of time the accumulations had been present, the obviousness of the violation, and the fact that AmCoal had been put on notice that it needed to make greater efforts to comply with the safety standard.

b. AmCoal

AmCoal contends that the degree of gravity should be reduced from “fatal” to “lost workdays” and the number of people affected from 10 to 1. The evidence establishes that, in the event of a fire, miners would have been able to quickly enter the fresh air course. The air passing in the vicinity of the lube center flowed to the returns, not to the face. The lube center was in a crosscut that was close to the primary escapeway so any affected miners near the lube center would have been able to walk into fresh air. Ten people would not have been affected because smoke in the lube center would not have traveled to the face. AmCoal also argues that the evidence demonstrates that the violation was the result of its moderate negligence rather than high negligence and unwarrantable failure. The lube center was required to be examined weekly. Inspector Miller admitted that he issued the order between these examinations. AmCoal contends that the accumulations could have easily built up since the previous examination. The unwarrantable failure designation was also inappropriate because the inspector determined that an injury was unlikely.

3. Discussion and Analysis

I find that the order should be affirmed in all respects, except that the “fatal” designation should be reduced to “permanently disabling.” There was a clear violation of section 75.400. The violation was serious. The evidence establishes, however, that a fatal accident was not likely. Given the location of the lube center, the direction of the airflow, the fire suppression system, and the other firefighting equipment in the lube center, a major conflagration was unlikely and any smoke and fumes produced by a fire would travel out the returns. I recognize that a fatality is always possible, but I find that the evidence shows that lost workdays or a permanently disabling injury is a much more likely outcome. Determining the number of miners who could be affected is always a matter of making an estimate. I find that 10 miners could be affected depending on the number of miners in the area. If a major fire were to develop, it is reasonably likely that up to 10 people could suffer lost workdays or more permanent injuries from the effects of smoke inhalation or from burns while either fighting the fire or trying to exit the area. As a consequence, the inspector’s estimate that 10 miners could be affected is reasonable.

I find that AmCoal’s negligence was high and was the result of its unwarrantable failure to comply with the safety standard for the reasons set forth in the Secretary’s brief and her reply brief. The violation was both obvious and very serious. I credit the testimony of Inspector Miller that the conditions must have existed for a considerable length of time. The accumulations were packed under and around equipment in the lube center. The accumulations were extensive and no efforts had been made by AmCoal to clean them up. AmCoal had been put on notice that it needed to make greater efforts to comply with the requirements of section 75.400 at the mine. Any examiner, foreman or member of management doing a routine check of the area should have readily identified that hazard and ordered that it be corrected. It is not clear whether management knew of the conditions, but I find that management should have known that the conditions existed. I find that the evidence establishes that AmCoal was highly negligent and the violation was the result of its unwarrantable failure to comply with the safety standard. AmCoal demonstrated aggravated conduct with respect to this violation. A penalty of $45,000.00 is appropriate.

III. SETTLED CITATIONS

A number of the citations at issue in these cases settled, either prior to the hearing or during the hearing. The proposed settlements were approved by my orders dated April 19, 2012. The total assessed penalty for the settled citations and orders in LAKE 2008-138 was $48,511.00. Citation No. 6668425, which alleged a violation of a notice to provide safeguard, has also been settled, but it was not included in my order approving partial settlement. The proposed settlement amount for that citation is $902.00, which I hereby approve. The total assessed penalty for the settled citations and orders in LAKE 2008-526 was $121,945.00. I ordered AmCoal to pay these penalties within 30 days of my orders approving partial settlement.

IV. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. I have considered the Assessed Violation History Reports, which are not disputed by AmCoal. (Ex. G-Z). At all pertinent times, AmCoal was a large mine operator. The violations were abated in good faith. The penalties assessed in this decision will not have an adverse effect on AmCoal’s ability to continue in business. The gravity and negligence findings are set forth above. AmCoal’s large size and its significant history of previous violations were a major factor in the penalties I assessed in these cases.

V. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

Citation/Order No. 30 C.F.R. § Penalty

LAKE 2008-138

6668304 75.363(b) $15,000.00

6668425 (settled) 75.1403-7(k) 902.00

LAKE 2008-526

6666983 75.400 30,000.00

6668417 75.351(b)(2) 35,000.00

6668510 75.400 45,000.00

TOTAL PENALTY $125,902.00

For the reasons set forth above, the citations are AFFIRMED or MODIFIED, as set forth in this decision. The American Coal Company is ORDERED TO PAY the Secretary of Labor the sum of $125,902.00 within 30 days of the date of this decision. [9]

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Karen E. Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)

Jason W. Hardin, Esq., and Mark E. Kittrell, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City, UT 84111-8900 (Certified Mail)

Jason Witt, Esq., Assistant General Counsel, Coal Services Group, 56854 Pleasant Ridge Road, Alledonia, OH 43902 (First Class Mail)

RWM

[1] Section 75.400 provides, in part, that “[c]oal 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 . . . .”

[2] I do not agree with AmCoal’s argument that Inspector Cripps’ testimony should not be credited because of any discrepancies between his notes and his testimony. Inspectors are not required to notate every detail of an inspection and I do not find his notes to be significantly inconsistent with his testimony. I reach the same conclusion with respect to the testimony of Inspectors Ramsey and Miller.

[3] I reached a similar conclusion in Mach Mining, 33 FMSHRC 763, 766-67 (Mar. 2011) (ALJ). That case involved loose coal saturated with oil and grease on a roof bolting machine.

[4] I have not considered the presence of a fire suppression system on the ram car in reaching this conclusion.

[5] Section 75.351(b)(2) provides, in part, that when an atmospheric monitoring system (“AMS”) is used at a mine:

The mine operator must designate an AMS operator to monitor and promptly respond to all AMS signals. The AMS operator must have as a primary duty the responsibility to monitor the malfunction, alert and alarm signals of the AMS, and to notify appropriate personnel of these signals. In the event of an emergency, the sole responsibility of the AMS operator shall be to respond to the emergency.

[6] AmCoal disputes this characterization because mines with an AMS usually monitor for a wide range of conditions including the presence of methane. As a consequence, it contends that MSHA should have cited it for a violation of its ventilation plan rather than a violation of section 75.351(b)(2). Recognizing that the Secretary could seek to modify the citation to reflect its position, AmCoal does not argue that the order should be vacated on this basis. (Tr. 300; AmCoal Br. 23-24). It does, however, use this argument to support its position that the person on the surface who is responsible for operating the monitors is not its agent.

[7] As a general matter, I agree with the Secretary that the AMS operator is the agent of the operator and his negligence should be attributed to the mine operator. The AMS operator is crucial to the mine’s operation and the safety and health of miners with the result that the position involves a level of responsibility normally delegated to mine management. Given that I have reduced AmCoal’s negligence to moderate, I do not need to analyze this issue in detail. See generally, Rochester & Pittsburg Coal Co., 13 FMSHRC 189 (Feb. 1991); Mettiki Coal Corp., 13 FMSHRC 760 (May 1991).

[8] Section 75.363(b) provides, in part, that “[a] record shall be made of any hazardous conditions found” during on-shift examinations.

[9] Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.