FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW
JUDGES
7 PARKWAY CENTER,
TELEPHONE: (412) 920-7240
FACSIMILE: (412) 928-8689
August 7, 2012
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MILL BRANCH COAL CORPORATION, |
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CONTEST PROCEEDINGS Docket No. VA 2012-435-R Order No. 8178569; 05/22/2012 Docket No. VA 2012-436-R Citation No. 8178574; 05/22/2012 Docket No. VA 2012-437-R Order No. 8178571; 05/22/2012 Docket No. VA 2012-438-R Order No. 8178572; 05/22/2012 Docket No. VA 2012-439-R Order No. 8178573; 05/22/2012 Docket No. VA 2012-440-R Order No. 8178574; 05/22/2012 Docket No. VA 2012-441-R Order No. 8178575; 05/22/2012 Docket No. VA 2012-442-R Order No. 8178576; 05/22/2012 Docket No. VA 2012-443-R Order No. 8178577; 05/22/2012 Low Splint A Mine Mine ID 44-07189 |
AMENDED* DECISION
Appearances: R. Henry Moore, Esq., and Arthur Wolfson,
Esq., Jackson Kelly PLLC on behalf of Contestant
Robert Alan Kelly, Esq., and John M. McCracken, Esq.,
Office of the Solicitor, U.S. Department of Labor on behalf of Respondent
Before: Judge Lewis
Statement of the Case
This case is before me
pursuant to the Federal Mine Safety and Health Act of 1977 (“the Act”), 30
U.S.C. §801 et. seq. This case
has proceeded on an expedited basis.
Procedural History
On May 22, 2012, Order
No. 8178569 was issued by an Mine Safety and Health Administration (“MSHA”)
inspector pursuant to §107(a) of the Act, 30 U.S.C. §814(a). Associated with the §107(a) imminent danger
order, Citation No. 8178570, and Order Nos. 8178571, 8178572, 8178573, 8178574,
8178575, 8178576, and 8178577 were also issued on May 22, 2012, pursuant to
section 104(d)(1) of the Act, 30 U.S.C. §814(d)(1).
On May 24, 2012 the
Contestant, Mill Branch Coal Corporation, filed notices of contest as to said
citation and orders. Also on May 24, the
Contestant filed a motion to consolidate and expedite the above referenced matters. After a pre-hearing conference held on May 25,
2012, and without objection from the Secretary-Respondent, I granted
Contestant’s Motion to Consolidate and Expedite proceedings. On May 29, 2012, Contestant filed a motion for
an order compelling compliance with §104(c) of the Act.
On May 31, 2012, after
a pre-hearing conference, I verbally [1]
granted Contestant’s motion to the following extent: consultants retained by
Contestant would be permitted to enter areas subject to the §107(a) order
during the time period of June 1, 2012 to June 4, 2012, provided such
consultants were accompanied by authorized MSHA representatives.
On June 5, 2012, a
hearing was commenced in
Issues
The general issue
before me is whether Order Nos. 8178569 (imminent danger order) and associated
Citation No. 8178570 and Order Nos. 8175873 and 8155874 were properly issued
pursuant to Section 107(a) and 104(d) of the Act, 30 U.S.C. 801 et. seq.
Specific issues
include: (1) whether the MSHA inspector abused his discretion when he issued his
imminent danger order on May 22, 2012; (2) whether the mine operator engaged in
conduct which would have violated 30 C.F.R. §§75.380(d)(1), 75.364(b)(1) and
75.364(b)(2); (3) and, if so, whether said violations were significant and
substantial in nature and/or constituted an unwarrantable failure.
Stipulations of Fact
1. Mill Branch Coal Corporation, the Contestant, is the
operator of the Low Splint A Mine (Mine I.D. No. 44-07189).
2. The Low Splint A Mine produces coal that enters
“commerce” as defined by Section 3(b) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §801 et. seq., and is therefore subject to the
jurisdiction of the Act pursuant to Section 4 of the Act, 30 U.S.C. §804.
3. The Administrative Law Judge and the Federal Mine
Safety and Health Review Commission have jurisdiction to hear and decide this
proceeding pursuant to Section 105 of the Act, 30 U.S.C. §805.
4. MSHA Inspectors Chris Cain and Gary Hall were acting
in their official capacities as authorized representatives of the Secretary of
Labor when they issued the citations or orders at issue in this proceeding.
5. True copies of the citations and orders at issue in
this proceeding were served on Mill Branch Coal Corp., or its agents as
required by the Act. [3]
Summary of the Testimony
Christopher Cain
At hearing Christopher
Cain appeared and testified. Cain was
currently a roof control specialist who had been working for MSHA since October
2006. (See Transcript at p. 17). [4] Cain’s educational background included high
school graduation and three semesters at the
At MSHA he had
received twenty-one weeks training at the Academy for Journeymen Training. He also had received training as a roof
control specialist and special investigator in §110 cases as well as §105(c)
cases. (5 Tr. 20). As well as being an accident investigator, he
had been a certified mine inspector since August 2008. (5 Tr. 20).
Cain estimated he had conducted 100-200 underground inspections. He had past experience with heaving floor
instances and squeezes. [5] (5 Tr. 21-22). He had issued four (4) imminent danger orders
in the previous two years. (5 Tr. 22).
Cain had conducted the
inspection of the Low Splint A mine on May 22, 2012 and had been accompanied
throughout the inspection by his supervisor Gary Hall. (5 Tr. 23).
Cain’s duties on the day of inspection included: a six month review of
the roof control plan, a monthly pillar review, and an E01 inspection
coverage. (5 Tr. 24-25).
Cain had been at
Contestant’s mine in the past, first as an inspector trainee in 2007 and later
as an actual inspector conducting a roof control review in December 2011. (5 Tr. 26).
On January 25, 2012,
Cain once more went to Low Splint A. He
conferred with a mine inspector who had concerns regarding floor heaval issues
in the same general area that was the subject of Cain’s §107(a) order. (5 Tr. 26-27).
On May 22, 2012, Cain
met with Randy Hensely, the mine acting superintendent. Cain stated that he was going to conduct an
E01 six-month review of the roof control plan.
He and his supervisor, Gary Hall, would also be conducting a monthly
pillar review and field activity review.
(5 Tr. 28).
Cain disclosed to
Hensley that he had driven past the mine the day before and had observed coal
being produced. (5 Tr. 28). Hensley stated, however, that coal was no
longer being produced because floor heaval had interfered with belt
operations. (5 Tr. 29).
The mining equipment in the affected area was
now being pulled and being brought to “one North, where the 4W and 4E panels
were projected.” (5 Tr. 29).
Hensley’s explanations
raised red flags to Cain. Contestant
appeared to be withdrawing from areas that it had earlier, in January 2012,
projected would be mined. The floor heave
under the belt was now so bad that the belt was being pushed into the mine roof
and continued mining had to be abandoned.
(5 Tr. 29-30).
Cain presented various photographs depicting the floor heaval under and into the belt. (MSHA B-24 – B-28). [6]
Based upon his past
experience Cain opined that any continued operation of the belt would pose a
fire hazard due to the belt rubbing against the ceiling, roof bolts, or floor
upheavals. Further, a belt fire might
result due to the added strain or friction on belt rollers/bearings. (5 Tr. 34-36).
Cain described
multiple jacks that had been installed in the belt area and elsewhere, many of
which were knocked out, severely bent, or clearly failing. (5 Tr. 36-40, 56-60; see also MSHA B-
30 – B-34).
Cain concluded that
coal production had been stopped because the squeeze between the floor and
ceiling had rendered the belt inoperable.
(5 Tr. 41; see also Cain’s inspection notes at MSHA F-1).
None of the conditions
which Cain observed were reported in the mine’s records, leading Cain to
conclude that hazards were not being seen or not being recognized or not being
recorded. (5 Tr. 43).
Cain proceeded with
Randy Hensley and Gary Hall into the secondary escapeway. He observed more floor heaval, continued
scooping, significantly more floor material in the cross-cuts, and more deterioration
in the ribs than what he witnessed previously.
(5 Tr. 50-53). Initially advising
Hensley that he would probably be issuing a 107 order, Cain, after discussing
the matter with Hall, decided to hold off until reviewing “the area as a
whole.” (5 Tr. 51). [7]
During further
inspection Cain observed numerous jacks in the area of the secondary escapeway
that had been knocked out of place and not reset. Regarding such as further signs of rib
deterioration and roof support problems, Cain concluded that Contestant was at
this point just scooping the alternative escapeway enough to remove
machinery. (5 Tr. 61-68; see also
MSHA-B-15 – 22).
Cain noted seven
miners working in the affected area. (5
Tr. 67).
Cain testified that the primary escapeway was located in the intake
entry. [8]
Hensley informed Cain that a four-wheeler (mantrack)
could not travel the primary escapeway but that a three-wheeler could make
it. (5 Tr. 69).
Cain parted company
with Hensely and continued to traverse the primary escapeway with Hall. Cain began to take photographs of the primary
escapeway. Areas were observed where
there was rib deterioration and significant floor heaval directly under the
life line. In case of any emergency
miners “walking blind” or with disabled miners on a stretcher would have
difficulty traversing such. (5 Tr.
72-75; see also photographs at MSHA B-1 – MSHA B-2).
Cain’s field notes indicated that the bottom had
heaved and squeezed almost to the mine roof, measuring thirty-five to thirty-six
inches in most places and even less in others, the weaving back and forth into
enteries and cross-cuts. (5 Tr.
75-76). There were again signs of rib
deterioration. (5 Tr. 77). Tire tracks over the top of a floor heaval
showed that at some time an examiner had passed through. (5 Tr. 77).
Although there was
evidence that the Contestant had been scooping the alternate escapeway to keep
it travelable, there were no signs of scooping in the primary escapeway. (5 Tr. 77).
Cain referred to MSHA
B-6 which showed rib deterioration and the upheaval transferring itself from
the life line and snaking back and around.
After failing to find
an open door, Cain finally came upon Hensley and informed him that he was
issuing an imminent danger order for the entire South East Mains area. (5 Tr. 81-82). This order was later reduced to writing. (MSHA E-1).
Cain was told by
Hensley that the area “wasn’t this bad” when he had inspected it a week and
half previously. (5 Tr. 83, 85). However, Hensley conceded that, due to
heaving, individuals were unable to travel the primary escapeway in a
mantrip. (5 Tr. 85).
Given, inter alia, the
significant hooving and squeeze affecting the entire Southeast Mains area, the
conversations with management that observed conditions had been worsening, the
adverse impact upon the escapeways, especially the primary escapeway, and the
mandates of §107, Cain felt compelled to issue an imminent danger order. (5 Tr. 82-88).
In
determining that the violation of §75.380(d)(1) was “S&S” in nature, Cain
noted that the hazard created was that miners working on the 001 MMU would not
have a safe means to escape during a major event occurring at the mine. (5 Tr.
105; see also MSHA E-2) During equipment removal, scoops, diesel scoops,
battery scoops, electrical equipment would be involved. It was apparent that miners were in haste
trying to retrieve the equipment. If one
of the equipment were to catch fire (in the alternate escapeway) the only means
of access in and out would be blocked. (5 Tr. 105)
In concluding that any injury caused by the hazard would
be highly likely and could be expected to be fatal in nature, Cain considered
the potential of the alternate escapeway being blocked if there were a sudden
deterioration in the already degrading ribs and floor heaval. (5 Tr. 105-106).
As to his conclusion that the negligence involved rose to
a level of reckless disregard, Cain testified that the Contestant was only
focusing on maintaining the alternate escapeway so that its machinery could be
retrieved -- and essentially ignoring the primary intake escapeway. (5 Tr. 106).
The Contestant had knowledge of the unsafe conditions as
evidenced by Hensley’s conclusion that a mantrip could not be driven through
the primary escapeway. (5 Tr. 107). Hensley had been in the same area a week and
half prior. (5 Tr. 107).
Cain further noted that the return had multiple stopping
lines that had been crushed out, rebuilt and re-patched. There was one set of stoppages completely crushed
out. There were multiple areas where
foam expansion packs were used to fill in the voids. The primary escapeway had rehabilitation and
damage to stoppings. (5 Tr. 108).
Referring to Citation No. 8178573 (MSHA E-3), Cain stated
that Contestant also had violated §75.364(b)(1) in that hazardous conditions in
the intake for Southeast Mains, A Left and B right, were not recognized or
reported during weekly examinations. (5
Tr. 109).
Cain noted that none of Contestant’s weekly examination
reports for the month of May 2012 listed any of the hazards observed by him on
May 22, 2012. (5 Tr. 110-114; see also Contestant’s weekly examination
reports at MSHA G). [9] Given inter alia that the hazards had
existed for some time prior to May 22, 2012, Cain concluded that the violation
was significant and substantial in nature, the possibility of injury being reasonably likely to occur,
the degree of negligence high, and any injury reasonably expected to be fatal
in nature. (5 Tr. 115).
Considering that there were no mitigating circumstances
that could be discerned at the time Citation No. 5178573 was issued, Cain
further made a determination that the violation was an unwarrantable failure to
comply with a mandatory safety standard.
On page 2 of the citation, Cain listed some of the specific reasons for
his unwarrantable failure determination. (5 Tr. 116). [10]
Cain asserted that the conditions leading to the issuance
of his §104(d)(1) order were some of the worst he had ever seen. (5 Tr. 117).
Referring to Citation No. 8178574 (See MSHA E-4), Cain
stated that the examiner designated by the operator to conduct examinations of
the return for Southeast Mains had also failed to adequately record or report
the hazards observed by Cain during his May 22, 2012 inspection. (5 Tr. 107-120). Cain again concluded that said failure was
“S&S” in nature, reaching a high degree in negligence and constituting an
unwarrantable failure. (5 Tr. 118-119). Cain noted that at some point the return had
been scooped but “everything was gobbed out and it was in complete failure.” (5 Tr. 119).
Cain testified that when he returned to the surface he
met with the operator’s intake examiner, Bruce Martin. Cain reported that
Martin said “Thank you” after being informed that Cain was issuing an imminent
danger order. (5 Tr. 120-121).
On cross examination, Cain again testified that Hensley
had informed him that the beltline was against the mine roof and production had
be stopped by the time of his May 22, 2012 inspection. (5 Tr. 128).
Cain confirmed that many of the photographs taken by the
government during its case in chief had been taken on May 24, 2012 and not
during the actual inspection of May 22, 2012.
(5 Tr. 128; See inter alia MSHA B-23 to B-34).
Cain did not know whether the floor heaving had gotten
worse between May 21, 2012 and May 22, 2102. (5 Tr. 129).
Cain conceded that it was not required that a miner be
able to ride a vehicle in an escapeway but only that miners, including disabled
persons, could travel such. (5 Tr. 136). Cain did not take any ventilation readings on
May 22, 2012 nor did he evaluate ventilation before issuing the imminent danger
order. (5 Tr. 137).
Cain himself had never been part of a mine rescue team;
nor had he ever fought a mine fire. (5
Tr. 140).
Cain found it necessary to crawl in places over top of
the hooved bottom in the intake escapeway. (5 Tr. 140). There was no access in and out of the intake
escapeway for 1,400 feet. (5 Tr. 140). Cain could not access the intake escapeway
just out by seven drive. (5 Tr. 141). Cain did not actually measure the flexibility
of the lifeline. (5 Tr. 143).
Cain did not allow the performance of a stretcher test,
noting inter alia that he had difficulty traveling the intake escapeway
even without a stretcher. Given all the circumstances, conducting a stretcher
test would be too risky. (5 Tr. 147).
Cain had not returned to the mine after May 24, 2012. (5 Tr. 148).
Cain described the “problem” area covered by the imminent
danger order thusly:
The
problem started off with – the floor heaving and ride started coming out of the
B Left panel which is to the left of A Left.
As they mined the five west panel out and second mined it, when they
went outby the Southeast Mains. The
Southeast Mains was originally stopped due to conditions.
When
they mined that area outby, second mined it outby, it accelerated the floor
heaval. And the pressure, instead tried
traveling with the section, instead, tried to cut across the Southeast Mains
and those two pressure zones tried to link up.
(5
Tr. 151).
On redirect examination, Cain stated that the alternate
escapeway was not wide enough to get all the machinery out. Contestant planned to use the continuous
miner to mine its way through the area to get additional width. Ultimately, Contestant had to turn the miner
around, “either cut their way out or continue to scoop with a diesel scoop to
allow them a wider entry (to) get all this equipment out.” (5 Tr. 157).
Any retrieval operation would involve more than simply driving equipment
or hooking it with a scoop and pulling it out. (5 Tr. 158).
Cain summarized his position that there was no need to
further inspect the belt line on May 22, 2012 because he had seen enough in the
escapeways to justify the imminent danger order: he knew floor heaving had
occurred; the other entries were bad; the return was the worst of all; Hensley
had informed him that number six belt had been squeezed between the floor and
roof. (5 Tr. 159).
Gary Hall
Gary
Hall appeared and testified on behalf of the Secretary. Hall had started wih MSHA in 2006. He was current working as a roof control
supervisor. (5 Tr. 160-161)
He graduated high school and had an associate’s degree in
Mine Technology. From 1981 until joining
MSHA, he had worked continuously as a miner.
His mining jobs included rodman, roof bolt operator, scoop and shuttle
car operator. He attended the
He had accompanied Chris Cain during the May 22, 2012
inspection of the Low Splint A Mine.
When he arrived at the mine office, Randy Hensley advised him and Cain
that the mine was not running coal. The
Contestant was moving to another section of the mine and moving out
equipment. Hensley further explained
that the “bottom had started heaving in the belt entries so bad that it was
hard to keep the belts running. And they
had made the decision to pull back.” (5 Tr. 164-165).
Referring to MSHA exhibit G, the Contestant’s weekly
examination sheets, Hall stated that the review of such revealed no safety
hazards reported. (5 Tr. 166-167).
Hall, Inspector Cain, and Hensley proceeded underground
on a mantrip. Traveling in a
south-easterly direction in the alternate escapeway Hall began to see a
“squeeze” in the Southeast Mains area, the bottom heaving up, the ribs
sloughing off, travel ways and cross-cuts being recently scooped. (5 Tr. 168-169).
Hall saw “heaving all around the seven drive” and
evidence of pressure. Cain asked a
section foreman to set up extra supports because the area appeared to be
deteriorating. Cain informed Hensley
that he was going to issue an imminent danger order but Hall advised Cain to
hold off until there was further inspection conducted. (5 Tr. 171-172). Hall counted seven miners in the affected
area. (5 Tr. 174).
Going into the primary (intake) escapeway, Hall took
photographs of the bottom heaving. (5
Tr. 178-180; see also MSHA B1-B6).
In case of an emergency, the heaving would hinder across to the life
line. (5 Tr.179- 180).
While the alternate escapeway revealed evidence of having
been recently scooped, there was no evidence of recent scooping in the primary
escapeway. (5 Tr. 181-185; see also
MSHA B8-B12).
Hall noted various jacks in the alternate escapeway that
appeared to have been recently set — because there was no rock dust on them —
but were already showing signs of being bent due to pressure from the ribs or
floor. (5 Tr. 185-186; see also
MSHA B14-B18).
Based upon his own personal observations, Hall agreed
that an imminent danger order should have been issued. (5 Tr. 188).
If the imminent danger order had not been issued, and
mining operations would have continued, the miners faced the risk of roof
collapse and inaccessible or untravelable escapeways. Individuals could not get from the secondary
escapeway to the primary escapeway.
Entries were blocked with material scooped from previous heaving. Doors would not open. (5 Tr. 188-189).
As to the area covered by the imminent danger order, Hall
opined that the affected area had to be as large as it was because “when it
comes to protecting miners… you’re not going to take chance on putting them on
the edge of danger.” (5 Tr. 191). Given the evidence of squeeze, Hall and Cain
did not know “when it starts failing, how far back it’s going to go. And the five drive seemed like the logical
place to make sure that everybody was protected.” (5 Tr. 191).
Referring to Citation No. 8178570, Hall stated that,
based upon his own personal observation during the May 22, 2012 inspection, the
Section 8 description of (unsafe) conditions in Southeast Mains was accurate. [11] Hall further agreed that the discrete safety
hazard caused by the unsafe conditions witnessed was that miners would not have
a safe means to escape during a major event occurring at the mine and possibly
be killed. (5 Tr. 193).
Based upon his own observations and experience in mining
operations, Hall agreed with the conclusions of Inspector Cain that the mine
operator had engaged in negligent conduct that rose to a level of reckless
disregard for the safety of miners which constituted an unwarrantable failure
on the part of the mine operator. (5 Tr.
194-195).
There were obvious and extensive hazards, particularly in
the primary escapeway. While “everybody
works in low conditions,” the mine area was “being low[ered] by the pressure”
and despite “red flags that were going up to warn” the operator, the operator
failed to correct the conditions. (5 Tr.
195).
Likewise, Hall agreed with Cain’s conclusion that the
operator’s weekly examiner during the month of May had failed to list any of
the hazards observed by Cain and Hall, justifying the issuance of Citation No.
8178573. (5 Tr. 195-196; see also
MSHA E-3). Not every miner had an
opportunity to review the weekly examination report but they all had the right
to know if there was a safe way out of the mine and to know if somebody should
be sent to remedy the situation. (5 Tr. 197).
In reference to Citation No. 8178574, Hall again agreed
with the conclusions of Inspector Cain that the operator’s weekly examiner
responsible for reporting hazards in the return for Southeast mains was
derelict in his duties, his failure to recognize and record hazards
constituting a high level of negligence.
(5 Tr. 198-200; see also MSHA E-4).
Hall confirmed that he had accompanied Government Expert
Michael Gauna on May 24, 2012, during Gauna’s inspection of Low Splint A
Mine. (5 Tr. 201). Hall noted some changes in the primary
escapeway since May 22, 2012: a little more rock on the bottom in places; a
bigger chunk of rock, approximately ten feet long and four inches think, had
fallen out and pulled some lifeline down; timbers showing pressure. (5 Tr. 203).
On cross examination, Hall conceded that there was always
pressure on the mine roof from the overburden.
(5 Tr. 207). Some of the
government’s photographs, including MSHA B-8 and B-12, were pictures of the
cross-cuts which were not part of the escapeway. (5 Tr. 207-208). Hall did not know when some of the jacks,
which were laying on the ground, had actually been knocked out. (5 Tr. 210).
Hall agreed that steps (in an escapeway) in a smoky environment could be
a stumbling hazard as could an uneven mine floor. (5 Tr. 211-212).
When traveling the escapeway, Hall had to crawl in areas,
the traverse not being easy. (5 Tr. 213).
Hall agreed that MSHA exhibit B-7 depicted the floor heave at its
closest point to the mine roof. (5 Tr.
214). However, Hall did not actually
grab the lifeline to test whether it could be used “comfortably.” (5 Tr. 215).
Referring to MSHA B-18, if the jacks pictured on the
ground had been knocked out during machinery removal, and had not be replaced,
Hall opined that this also was an unsafe practice. (5 Tr. 218-219). Further, allowing chunks of coal to remain on
the floor of the escapeway could also warrant a §104(a) citation pursuant to
§75.380. (5 Tr. 219-220).
Michael Gauna
Appearing also on behalf of the Secretary was Michael
Gauna, a mine engineer with MSHA technical support group. (5 Tr. 224-225). Gauna had a Master’s in Mine Safety, a
Master’s in Mine Engineering, and a Bachelor’s degree in Geological
Engineering. Testifying as an expert,
Gauna, since 1979, had worked for twenty years in the mining industry. In 2000 he joined MSHA and the last twelve
years had been work as a specialist in roof control. He had conducted over 150 underground
investigations, twenty-four of which involved fatalities or serious injuries. He had also performed over 200 investigations
in reference to pillar design for various mines. (5 Tr. 225-226; see also MSHA D for curriculum
vitae).
Gauna conducted an underground investigation of the Low
Splint A Mine on May 24, 2012. Prior to
physical inspection of the mine, Gauna was briefed by MSHA personnel and
representatives of the operator. As part
of his inspection he put together a collection of mine photographs contained in
MSHA exhibit C. (5 Tr. 227-228). Gauna initially rode on a mantrip with Don
Jacobs and John Richardson.
Gauna noted that the roadways were showing intermittent
signs of “pressure floor heave.” (5 Tr.
231).
Guana also observed evidence of pillar degradation which
he attributed to the affected area being in a squeeze situation. (5 Tr. 232-233). Although unable to photograph some sections
of the mine, Gauna observed extensive floor heaving in the old face areas, A
Left. The amount of closure along the
bank of the B Left pillar recovery had totally failed. (5 Tr. 235).
Damaged stopping, roof degradation, and pillar degradation
was observed in the primary escapeway. (5
Tr. 236). Gauna opined that “the six
belt area is pretty much being hit by two failure zones that are trying to
merge with each other.” (5 Tr.
238).
Based upon his own past experiences and investigations of
pillar squeezes in the industry as well as with MSHA, Gauna drew various
conclusions from the convergence and closure that he had witnessed in the
operator’s mine.
He summarized such thusly:
And this
type of closure that’s been going on for quite a while… there’s evidence here
of at least two to three generations of stoppings that had to be rebuilt
because of the squeeze and closure coming from the B Left recovery.
Again,
the photographs and also the evidence show that there’s a lot closure here in
the low base area near five west… in my opinion… you have two independent failures
that have now managed to try to merge… and the consequence… pillar stability
failure along the six belt and in the vicinity of this six belt drive… my
conclusions is that this areas is not just simple floor heave. The degree of pillar degradation and the
degree of pillar sloughage; it’s a pillar system failure… the most important
thing is that you need to have a pillar system that holds the entire area up…
or you’ve lost control in the overall stability.. when you’re in system failure
like this, things can become unpredictably… when it wants to shift… it’ll dot
hings you don’t expect it to…
That’s
my conclusion. It’s a pillar system
failure that has to be continuously approached and cautiously worked on…
(5 Tr. 241-242).
In
his past investigation of pillar squeezes, the mining equipment had already
been taken out. This was the first time
in his career where he had seen people working in this situation “with this
degree of failure.” (5 Tr. 244).
In Gauna’s opinion the issuance of the imminent danger
order was justified. Miners should not
be working when the primary support system has been lost and unforeseen events
could take place because global stability is no longer present. (5 Tr. 244).
Gauna did no believe his analysis was hampered by the
lack of bore hole analysis; nor did he believe that the MSHA inspector(s) had
acted imprudently in issuing an imminent danger order without drilling test
holes and taking bore hole data. (5 Tr.
245).
Even accepting that the operator had ceased mining
operations on May 21, 2012 and now only wished to retrieve equipment through
the secondary escapeway, Gauna opined that such should not be permitted given inter
alia there was only one visible travelway, an equipment breakdown could
raise problematic safety issues. (5 Tr.
246). [12]
Based upon his past experience with pillar failures,
Gauna speculated that Contestant might need to mine their equipment out from a
different direction. (5 Tr. 248).
On cross examination Gauna stated that he had not put a
tape measure up any existing test bore hole.
(5 Tr. 249).
Gauna commented that Contestant had originally intended
to mine Southeast Mains all the way into the five west but — probably due to an
underlying Taggart interaction causing the system to fail —had stopped
advancing and pulled back. (5 Tr.
255-256).
Stating that the affected mine area degradation had been
going on for a very long time — “you just don’t have these sets of doors, these
sets of stoppings immediately installed” — Guana emphasized that closure was
like a “fish trap” waiting to happen. It
could happen over an indeterminate period of time or it could be
instantaneous. One could not control the
time frame of pillar failure. Things
could happen in a much faster time from that what one could imagine. (5 Tr. 257-258).
Gauna
was called in rebuttal in reference to Dr. Newman’s testimony. Gauna testified that the model is a very
powerful tool and that it is used in the coal mining industry, especially in
multiple seam environments. (5 Tr.
235). However, MSHA does not consider
them valid for different reasons.
Sometimes the model situation does not lend itself to looking at the
overall global stability of an area. (5
Tr. 236). The model was flawed and not
the right tool to look at the Low Splint A Mine situation where the foundation
of the pillars are in question. (5 Tr.
236). The model cannot distinguish
between weaker foundation compared to overburden. (5 Tr. 236).
The model has an inherent problem in that it assumes that there is a
rigid floor. (5 Tr. 236). This assumption that the pillars are
reinforced by a strong floor gives the appearance that the pillars are
stronger. (5 Tr. 236). Such a strong floor does not exist. (5 Tr. 236).
The model does not accurately display the global stability of this area
because it over states the fact that these pillars are stable when they can not
be because the entire system is on a weak foundation. (5 Tr. 236).
Gauna
stated that the model is also flawed because, numerically, it shows that the
roof and the floor will not come together.
(5 Tr. 238). However, in reality,
the floor heaving and roof will come together.
(5 Tr. 238). Gauna testified that
his opinion that the roof and floor would come together was based solely on his
personal observations. (5 Tr. 238). For this reason, the model is not the correct
tool to use in this type of situation. (5
Tr. 238). In situations with soft floor,
the model can be misleading. (5 Tr.
238).
Daniel McGlothlin
Daniel
McGlothlin appeared and testified on behalf of the Contestant. McGlothlin was currently a safety manager for
Alpha Natural Resources. He had long
experience in the mining industry, working for both himself and for his father
who owned a coal company. He had
received a mine engineering degree from Virginia Tech. He had experience in mines that had floor
heaval. (5 Tr. 262-268).
McGlothlin
had been asked to go to Contestant’s mine on May 22, 2012 where he met with
Inspector Cain. After being informed of
the 107(a) Order, McGlothlin requested that a stretcher test be conducted but
Cain refused. McGlothlin opined that,
given Cain’s expressed concerns regarding the travelability of the primary
escapeway, a stretcher test would have been appropriate. (5 Tr. 269).
McGlothlin
eventually did conduct his own inspection of the affected mine area. He initially proceeded underground with John
Richardson. He was able to travel the
primary intake escapeway on a motor vehicle up to almost the mouth of A Left at
which point the height precluded further travel. (McGlothlin could no remember whether he was
traveling on a two or four man vehicle).
(5 Tr. 272-273).
Approaching
the door on the left hand side going toward six belt, McGlothlin stated: “John
got hold of the door, pulled, pulled, pulled.
He got the door open but could not get it completely shut.” (5 Tr. 273).
McGlothlin
stated that the lowest point in the primary escapeway which could not be
traveled by vehicular means was thirty-eight inches. (5 Tr. 276).
In
response to whether he had difficulty traveling a particular entry, McGlothlin
responded that “bent over walking is always difficult for a man my age.” (5 Tr. 277).
While he needed to drop to a knee to do measuring he never had had to
crawl. (5 Tr. 278). Although the types of doors used were
typically self closing one of the doors could not be completely closed, having
a four to five inch gap.
Assessing
the intake escapeway in terms of passability, McGlothlin conceded that it could
not be traversed on a vehicle. However,
“at least one side of the heave, in every instance, there was… access to travel
the primary escape.” (5 Tr. 278).
McGlothlin
further opined that, if Cain had consented to a stretcher test in the primary
escapeway, miners would have “got through it, but it wouldn’t have been
easy.” (5 Tr. 279).
McGlothlin
opined that imminent danger order was not justified in that “imminency is not
here.” (5 Tr. 281). There was not a likelihood of fire because
most fires in a coal mine were belt fires and the belt was not running and was
not going to run. Further, there was not
a reasonable likelihood of equipment catching fire: scoops had a fire
suppression system and electrical equipment had breakers. (5 Tr. 282).
There was further little likelihood that the intake escapeway would be
so contaminated with smoke such that a lifeline would be required, if there
were a fire in the alternative escapeway.
There was also little likelihood that the battery operated mantrips,
three and four wheelers would catch on fire.
(5 Tr. 283).
Bore
scope testing could not be performed on May 24, 2012 because the screen and
recorder would not work. (5 Tr.
285).
McGlothlin
estimated that he had traveled the intake escapeway approximately six times
during the two nights. The jacks that
had been installed were for floor heaving, not for roof support. (5 Tr. 291).
If
MSHA had not shut the mine down, the plan was to remove the shuttle cars, then
the MRS’s, then the roof bolters. If the
feeder would not clear, a decision would need to be made whether to widen the
area or leave the feeder. (5 Tr.
294).
On
cross examination McGlothlin agreed that floor heaving, rib sloughage, and bent
jacks were all signs of pressure being exerted in the area. (5 Tr. 301).
McGlothlin further agreed that when an area exhibits continuing
pressure, there must eventually be a determination as to whether to stop
mining. (5 Tr. 302). While McGlothlin was advised that mining had
been ceased at Contestant’s mine due to “excessive floor heave” he could not
say that all floor heave was a hazardous situation. (5 Tr. 304).
McGlothin
denied observing any mine areas that posed imminent danger. He did not see any area of roof conditions
that gave him “great heartburn.” He did
not see any area that he would consider “impassable” — though he conceded
passage would be “difficult.” While
agreeing there was a “great amount of floor heaval” and evidence of pillar
stress, McGlothlin did not believe there was danger of imminent collapse. (5 Tr. 307-308).
Though
he believed that the imminent danger order was unjustified McGlothin conceded
that “if I’d went through that area, I’d say, we’re pulling out of there.” (5 Tr. 312).
Harold “Randy” Hensley
Harold
Hensley and testified on behalf of the Contestant. He had worked for the Mill Branch Coal Corporation
for three years and had worked at the Low Splint A Mill Branch location since
January 2012 as a mine foreman. (6 Tr.
4-5). The Low Splint A location had one
producing section, located at B Right. (6
Tr. 7). He has worked in underground
coal mines for thirty-three years. (6 Tr.
5). As a mine foreman he was responsible
for projects including installing new beltlines and setting new drives. (6 Tr. 5).
On
May 8, 2012, Hensley had taken over as acting superintendent. (6 Tr. 6; S. Tr.
13).
Prior
to working for Mill Branch, Hensley had experience with floor heaving at an Arch
Minerals mine. (6 Tr. 7).
On
May 21, 2012, Mill Branch Coal Corp. decided to cease mining B Right and remove
the equipment out. (6 Tr. 8). The last production shift on B Right was the
evening shift of May 21 and the mine began moving equipment as soon as the
evening shift concluded. They
successfully moved one shuttle car, the belt head, and the safe haven. Hensley believed that the miner, the feeder,
and all other equipment would have been removed from B Right within twenty-four
hours. (6 Tr. 8).
On
May 22, 2012, Inspector Cain met and informed Hensley that there would be an
EO1 inspection and that the beltline would be examined. (6 Tr. 9).
Before entering the mine, Hensley and Inspector Cain discussed the
bottom heaving in A Left and B Right. (6
Tr. 15). Hensley informed Inspector Cain
that there was work being conducted on the roadway in order to acquire enough
clearance so that the equipment could be removed. (6 Tr. 15).
Hensley stated that the roadway had been a low area since he arrived at
the Low Splint A Mill Branch and that it was scooped constantly but that it was
not any different than any other mine. (6
Tr. 11).
Inspector
Cain and Hensley parked the ride on the six roadway at the turn off towards B
Left and walked towards the seven drive.
(6 Tr. 12). Inspector Cain said
that the bottom was hooving and the miners then dangered off the area with
timbers. (6 Tr. 12).
After
parking the ride, Inspector Cain walked to the face, down the intake, and
through the return. (6 Tr. 12-13). Hensley went a different route and was
informed that Inspector Cain had written an imminent danger order from
Inspector
Cain then informed Hensely that power could not be supplied to the area because
the imminent danger order prevented miners from conducting a preshift
examination. (6 Tr. 15). Accordingly, electricians discontinued
power to the area. (6 Tr. 15).
Hensley
did not believe that there was an imminent danger because there was not any
issue that anyone could be harmed.
Hensley
went back into A Left and B Right on May 23 with the state mine inspector. Along with the two state inspectors, Hensley
traveled in the neutral roadway, across the faces where the mining had been
stopped, down the intake, and came out at Cross-cut 70. There were portions that were low that forced
Hensely to bend over and duck walk. The
state inspectors told Hensley that they did not see anything wrong with the top
and did not understand the imminent danger order. On May 24 the state mine inspectors issued a
notice of violation because “the intake escapeway was not maintained in a good
condition.” The notice of violation
further alleged that:
The mine
floor has hooved starting at number two entry Southeast Mains starting in the
intersection of survey SPAD 1593 for approximate distance of 400 feet.
Travelways
along the number five an number six belt conveyer between the secondary and
primary escapeways were not maintained clear of material and the gob has the
travelways blocked. … The man doors are inoperable due to hooving pressure in
this area. Has received excessive
pressure from undermining area of Taggart seam located approximately 150 to 200
feet below this.
(6 Tr. 33).
He
also reentered the area on May 24 with Inspector Cain for five to six hours and
did not see any change from the 22nd to the 24th. Hensley reentered the area on June 1 and
measured one area that had thirty-eight inches of clearance.
On
April 22, MSHA Inspector Johnny Turner traveled Low Splint A Mill Branch. As Hensley was setting additional jacks
Turner stated that it would be appropriate to install additional support to the
area. Inspector Turner stated that no
miner needed to be in the area so it would be appropriate to set four jacks
across each cross-cut and danger the area off.
Hensley followed Inspector Turner’s advice, set four jacks across each
crosscut.
Sometimes
the jacks bent as the bottom was hooving.
(6 Tr. 34) Whenever a jack was
bent, Hensley would replace it with another jack to prevent the bottom from
hooving further. (6 Tr. 34). The miners would dig the bottom down to
solid material, six to ten inches, and make the bottom flat to set the
jack. (6 Tr. 34).
There
was not any problem with ventilation in the area on May 22, 23, 24 or June 1.
The
May 22 weekly examination reported that there was hooved bottom in A Left, that
the mantrip cannot transverse the intake.
(6 Tr. 37; MSHA G). The May 15
weekly examination report did not note any hazard for the primary escapeway
(which was also the intake) or the return.
(S. Tr. 7; MSHA G). [13] Hensely stated that the hazards cited in the
imminent danger order were not present on May 15 and that all of the heaving in
the primary escapeway occurred in two weeks.
(S. Tr. 8, 17). Hensley stated
that he was not aware that the bottom had hooved because it was not reported on
the May 15 weekly examination. (S. Tr.
13). Hensley did not read the weekly
examination reports of May 1 or May 8 because at the time he was a foreman and
not acting superintendent and the first report he read was for May 15. (S. Tr. 13-14). Hensley testified that Low Splint A had been
dealing with hooving since January 2012.
(S. Tr. 16).
The
standard height in the entries and cross-cuts at Low Splint A Mill Branch was
about five feet. (S. Tr. 11). Hensley stated that the primary escapeway was
below average and, because of this, the regular ride would not make it down the
primary escapeway. (S. Tr. 11). Hensley would use a low-profile stringer to
get through the primary escapeway because the clearance was approximately forty
inches. (S. Tr. 10, 13).
Hensley
stated that all of the miners in Low Splint A were new to the mine when they
began working in January. (6 Tr.
38). All of the miners went through a
drill, required by the Mine Act every six months, by going through the primary
escapeway so that they could practice and know where the lifeline was. (6 Tr. 38).
The miners had not completed another drill through the primary escapeway
between Janaury and the time the imminent danger order was issued on May
22. (6 Tr. 39).
Hensley
said that in his thirty years of mining he had never seen a citation for a
primary escapeway violation but was aware that an operator had to keep the
primary escapeway free and clear of hazards for passage for an emergency
because he read the regulations. (6 Tr.
41-43).
Hensley
testified that there was enough seismic pressure and heaving that the main
travelway, also the alternate escapeway, had to be cleared constantly. (6 Tr. 48).
However, it was not dealt with on the primary escapeway. (6 Tr. 48).
Hensley
testified that Mill Branch Coal was aware that the belt had been raised one
time. (6 Tr. 52).
Hensley
testified that it was his call to stop production on May 21. (6 Tr. 59).
Hensley’s
supervisor was John Alan Richardson and Mr. Richardson’s superior was Barry
Compton. (6 Tr. 61-62).
Hensley
testified that Mill Branch was constantly dealing with the floor heaving but
that it still kept unpredictably cropping up in different places. (6 Tr. 62).
Hensley conceded that the miner operator was essentially playing
“whack-a-mole” when it came to dealing with unpredictable and unstoppable floor
heaving. (6 Tr. 63-64).
Bruce Martin
Bruce
Martin appeared and testified on behalf of the Contestant. Martin had been working at the Low Splint A
Mine since January 3, 2012 as a fire boss.
(6 Tr. 67). Among his duties,
Martin checked beltlines, roadways, travelways, power centers, and conducted
weekly examinations. (6 Tr. 68). Martin had approximately thiry-eight years
experience in the mines, including six years as a fire boss. He has also worked as a miner operator and
cutting machine operator. (6 Tr.
68-69).
During
May 2012, Martin conducted weekly examinations in the area of Southeast Mains,
A left and B right. (6 Tr. 69).
On
May 15, 2012 Martin traveled in the intake escapeway and return. Martin was either able to drive, duck-walk,
or crawl through areas he examined. (6
Tr. 70-71).
Referring
to his weekly examination records of May 8, 2012 (at MSHA G), Martin read his
handwritten entries under “Examination for Hazardous Conditions Including Tests
for Methane” as follows:
Went up
left returns to section across face, down intake, up left turn. Fixed deadbolts … scaled rock. Appeared to be ok[ay] at the time of exam. Bottom heaving in some places.
(6 Tr. 71-73).
Under
“Examination of pillar falls, seals, idle workings, abandoned areas” Martin
read out his handwritten notes as follows:
Check
all rooms in the intakes, left turn, checked all seals, side sticks. All ‘appear to be’ ok[ay] at time of
examination.
(6 Tr. 73). [14]
Martin
denied seeing any hazards. (6 Tr.
74). On May 22, 12012 Martin examined
the areas at issue. He was able to
traverse such by either walking, duck-walking, or crawling. Because of poor knees it was easier for him
to crawl than to duck-walk. He denied
having any “real difficulty” in traversing the intake. (6 Tr. 75).
Martin
confirmed that the return was lower than it had been on the May 15, 2012.
Upon getting outside Martin
intended to inform Hensley that the bottom had “heaved over on intake” and that
the return was getting lower. However,
the MSHA inspectors had shut the mine down before he could do so. (6 Tr. 77-78).
After
finding out an imminent danger order been issued, Martin filled out his May 22,
2012 week exam entries at MSHA G. (6 Tr.
79).
Martin
read aloud his notes. [15] He indicated return was getting very low in
such.
Martin
further indicated that Cain had asked him regarding his evaluation of
regulations and whether Martin was performing such daily examinations. Martin thanked Cain for this enquiry but
denied that he had thanked Cain for the issuance of the imminent danger
order. (6 Tr. 81-82).
Martin
opined that the intake escapeway on May 22, 2012 was “passable” and could have
been used in an emergency situation by walking, duck-walking, or crawling. (6 Tr. 84).
On
cross examination Martin confirmed that the only working section of the mine in
the month of May was the area subject to the imminent danger order. (6 Tr. 88).
During the month of May Martin was aware of beltline problems because of
floor heaving. The bottom was heaving up
and stopping the rollers from turning.
(6 Tr. 88). Martin denied knowing
the number of times the beltline had to be stopped so that the belt could be
raised. (6 Tr. 88-89).
Martin
indicated that Randy Hensley, Chris Gibson and “some other fellows” were
setting up jacks around the “belt drives and things…anywhere we need
them.” On occasion Martin also set up
jacks. ( 6 Tr. 89-90).
Asked
what his impression was of the pillars of the mine, Martin stated:
Well,
the bottom was heaving… they had set up jacks through mine. And we had raised that belt through there
where that bottom heaving. And it needed
attention… it needed to be where the belt was picked up all the way and it
needed to be where it was heaving up under the belt, it needed to be cleaned
out.
(6 Tr. 92)
Martin
did feel the area was under a squeeze.
(6 Tr. 93). He informed Hensley
of such and “that’s why they put jacks and things in there.” Even though there was bottom heaving, Martin
did not see the area as being unsafe “because the top wasn’t breaking.” (6 Tr. 94).
If a
squeeze gets worse, the “company” could make other arrangements including
“pull[ing] out of that place.” (6 Tr.
95).
Martin
was unable to answer whether Southeast Mains should have been moved out of
sooner. (6 Tr.96).
Acknowledging
that his duties included looking for hazards that would impede passage in
intake and return travelways, Martin stated that some stoppings in the primary
intake “needed to be fixed from the hooving.”
(6 Tr. 99).
Referring to the photographs in MSHA B-1
through B-7, Martin agreed that conditions had worsened between May 15, 2012,
when he had examined the mine areas and May 22, 2012, when the photograph was
taken. (6 Tr. 105-106).
Martin
agreed that the entire section, including the primary escapeway had been under
a squeeze. Jacks had been placed and the
bottom had been scooped. but Martin swore that if he were unable to “have got
there, that it would have been made known.”
(6 Tr. 107).
Martin
conceded that he did not mention bottom heaving in his May 15, 2012 weekly
examination report. (6 Tr. 108; see
also MSHA G).
While
he “was concerned” about the heaving he witnessed on May 22, 2012, he actually
wrote the report only after learning the mine would be shut down. (6 Tr. 108-109). [16]
Martin
asserted that by reporting that there was bottom heaving this gave sufficient
notice that the area was under a squeeze.
(6 Tr. 111-112).
Referring
to Order No. 8178573 (MSHA E-3), Martin agreed that under the section for
condition and practice it was accurately reported that there was a hooving
bottom and deteriorating rib lines. He
was uncertain if there were damaged stoppings because on May 22, 2012 he went
no further than five drive. (6 Tr.
112-113).
Martin
felt the escapeways were travelable but a stretcher could not be carried. (6 Tr. 113).
Referring
to Citation No. 8178574 (MSHA E-4) Martin again agreed with the report of
hooving bottom. (6 Tr. 114).
In
reference to Inspector Cain’s notes at MSHA F-1, Martin agreed that he had
informed Cain that he had to crawl in a portion of the intake and agreed that
he had observed more hooving in the intake since the previous week. (6 Tr. 115).
Martin could not remember if he had no answer to Cain questioning him as
to why he had reported no hazards. (6
Tr. 116).
Martin
conceded that everyone in the mine knew the South Mains area was under
squeeze. (6 Tr. 116). Martin further agreed that if a squeeze area
continued to deteriorate and remedial action was not taken, eventually the area
would collapse or close up. (6 Tr.
116-117). Martin further agreed that if
such collapse or closure took place men working on the face could be
trapped. (6 Tr. 117).
Martin
explained that he did not mention such a serious condition in any of his weekly
reports because he did not know it was wrong not to report bottom hooving. “Just about any mine” had bottom hooving. A state inspector had not commented on such
and Hensley knew about it. “The bosses
knew about. Everybody in the mine saw
it…” (6 Tr. 117).
On
redirect Martin indicated that others, including MSHA inspectors, did not see
hooving as necessarily a hazard. (6 Tr.
119).
John Richardson
John
Richardson appeared on behalf of the Contestant.
Stating
both the primary and alternative escapeways had “good” roof, he believed that
the machinery could have been retrieved in less than two days but for the
imminent danger shut-down. (6 Tr. 127).
On
cross examination
Being
shown MSHA exhibit B-7, which depicts heaving in the primary escapeway,
Being
shown MSHA exhibit B-1, which depicted floor heaving under the lifeline in the
primary escapeway,
Being
shown MSHA exhibit B-2, which again depicted heaving under the life line,
While
not conceding that the position of the life line over a heave constituted a
hazard,
When
mining ceased on May 21, 2012, it was intended that all belts and equipment
would be moved to four West which was “ready to go.”
Donald Jacobs
David
Marshall Jacobs appeared and testified on behalf of Contestant. Jacobs worked for Alpha Natural Resources as
Senior Manager of Geology for
Jacobs
was familiar with the area in which the Low Splint A mine was located. He had explored the area and once worked for
Westmoreland Coal Company which had operated a mine below the site of the Low
Splint A. The mined out area was called
the “Taggart seam,” was approximately 250 feet below the Low Splint A, and had
since closed. (6 Tr. 145-146).
Because
of this Taggart seam, it was not uncommon for there to be floor heaving in the
Low Splint A mine, including in Southeast Mains. As one advanced in the mine, typically about
a break or break and a half, there would be heaving. The floor would pop up. “It would converge and as you continue to advance,
you would see that heaving progressed relatively slowly.” (6 Tr. 147).
Jacobs
asserted it was “typical” of the mine.
“As the floor heaves, you’ll see that the ribs will slough and that’s
sort of a mode of failure.” (6 Tr.
147).
As
to whether the floor heave would continue, Jacobs stated:
if you
extract something out of the earth, over time, its going to converge. It’s a question of time…
(6 Tr.148)
As
to whether there could be failure at some point, Jacobs opined:
In
extreme cases, we’ve seen some areas in the mine that actually had some areas,
that after the floor heaved and the ribs sloughed, we had cutters and in
several areas of the mine where we had that situation, we went back and glued
the top. We also noted that in the test holes,
you could measure – actually see the separation of bedding planes.
(6 Tr. 148).
Jacobs
had entered the mine on May 24, 2012 to check test holes with a bore scope but
the scope did not operate correctly. (6
Tr. 149). He also checked two test holes
with a tape measure to see if there were any offsets or separations. Although some separations were found about
three or four feet, he did not find such “worrisome.” (6 Tr. 149).
Jacobs stated that he did not
see anything that indicated an imminent failure of the roof nor anything to
suggest there would be imminent failure in the §107(a) section. (6 Tr. 150).
Jacobs further opined that the situation could have been handled by
pulling the equipment out. (6 Tr.
151).
On
cross examination Jacobs agreed that the pillars and blocks left behind after
the Taggart seam operation ended could cause upward pressure. (6 Tr. 154).
However, Jacobs did not believe that “a pillar or barrier seam and
Taggart seam” would affect the whole area.
(6 Tr. 154).
While
agreeing that the area was “under convergence,” Jacobs testified that the
convergence was “at various rates over various times,” exhibiting itself in
floor heave and rib slough. (6 Tr.
155-156).
Jacobs
denied that the convergence could have led to a catastrophic failure. (6 Tr. 157).
David Newman
Dr.
Alan Newman appeared and testified as an expert witness for Contestant. Newman had operated Appalachian Mining and
Engineering, an engineering consulting firm, for the past twenty-four years. He possessed a Ph.D. in Mining Engineering and
had focused on ground control issues. [17] (6 Tr. 160-163).
He had dealt with the issue of floor heaving in the
past. (6 Tr. 163).
Dr. Newman first visited Low Splint A Mine on June 1,
2012. He was accompanied by Scott
Peterson, Randy Hensley, Forest Lambert, and Gary Hall. (6 Tr. 164).
Dr. Newman traveled underground to the Southeast Mains
and conducted a series of bore scope [18]
tests on pre-existing test holds. (6 Tr.
165). The bore holes were two feet above
roof bolt length, being approximately eight feet in length. (6 Tr. 165-166).
If a tape measure were used instead of a bore scope, one
could check a test hold by feeling whether the lip of the tape measure would be
hung on a crack. (6 Tr. 166).
Contestant’s exhibit LS-4 contained the map on which
Newman plotted the location of the places where he used the bore scope (6 Tr.
167)
Newman started testing on B Right, along E Left, then
coming into Southeast Mains. Instead of
going into the intake escapeway, he picked this route as it would be the main
route by which equipment would be brought out of the mine. (6 Tr. 167).
Newman did go into the intake escapeway: from bore hole eleven, he came
down across the belt, through a door and worked his way up the intake escapeway
to where the regular was. (6 Tr. 168; see
also B-32).
Newman took photographs of the bore holes and noted
observations of each. (6 Tr. 169; see
also Contestant’s exhibits LS-6 and LS-8).
Although noting some cracking in the bore holes, Newman
did not observe any cracks above the bottled horizon and/or anything that was
indicative of imminent failure. (6 Tr.
169-171). He made a video of the bore
holes which was reduced to a disk. (6
Tr. 172; see also Contestant’s Exhibit LS-7). Referring also to the photographs of the bore
holes (see also LS-3), Newman opined that the roof appeared in
“excellent” condition. The conditions
appeared “wonderful.” (6 Tr. 174).
Newman also heard no mine noises. (6 Tr. 175).
Explaining
what he observed from photographs from bore hole five, Newman saw floor heave
to the left hand side of the ride and “some pillars falling.” (6 Tr. 175).
However, Newman opined that this was not indicative of pillar
failure. As the floor heaves upward,
it’s pulling the interface between the pillar and the floor with it, which as
that pulls out, causes spalling and the “rib on the pillar beings to sit down a
little bit.” (6 Tr. 176). Newman noted that rib spalling is common and
did not indicate pillar failure or pillar instability. (6 Tr. 176).
Newman further stated that scooping up material and
piling such against a rib, as depicted when viewing outby hole five, actually
reinforces the rib. (6 Tr. 177).
Based upon his bore scope testing, Dr. Newman felt there
was no problem in terms of stability-related issues and no potential for
imminent collapse of the roof. (6 Tr.
178).
Dr. Newman further opined that, but for the imminent
danger order, the mine operator could have safely removed the mining
equipment—whether it would have taken one, two or three days. (6 Tr. 178).
In addition to his bore scope testing, Dr. Newman also
performed “modeling.” Dr. Newman
explained modeling as follows:
Newman: Initially
what’s done is to take the geometry of the mine. There are three mines that are involved. There is a mine in the lowers Parsons and
that is a seam that lies above the Low Splint.
And then the Taggart seam underlies the Low Splint. The max of those three mines are superimposed
on each other and they are used to create a model – and this is done by
grids. Each of these are on five-foot
elements; five foot by five foot small blocks.
And so the mine maps are reduced to areas that are solid coal, pillars,
gob, entries, or cross-cuts.
Newman: What
you put in is modulus of the rock meaning its stiffness, and the strength of
the coal, 900 pounds per square inch is an MSHA accepted, NIOSH based standard
strength. That was used to develop the
coal strength.
Newman: What
you try to do is you break these as I mentioned into five foot by five foot
elements. Ultimately it gives you an
idea of relative stability of one area of the mine to another. And specifically an idea of pillars that
would be under higher or lower stress, relative to other pillars, allows you to
pinpoint specific areas that may be problematic.
Newman: Yes.
Newman: Yes, it
is.
(6 Tr. 179-180).
As to the Low Splint A Mine, the modeling essentially
indicated that, although the Southeast Mains area was under stress with
predictable floor heaving and spalling, the pillars themselves were
stable. (6 Tr. 181-184). After review of the modeling Newman again concluded
that it was safe to remain in Southeast Mains and to retrieve equipment. (6 Tr. 185).
Except for the area of the roof fall, the roof of the
intake escapeway was, in Dr. Newman’s opinion, in good condition. (6 Tr. 185).
Once mining is stopped, there would, in Dr. Newman’s
expert opinion, be no further dynamic change in the distribution or magnitude
of stress. (6 Tr. 186). “In terms of mining you have reached an
equilibrium where there will be no further change in stress distribution or magnitude.” (6 Tr. 186).
Based upon his review of an E-Log [19]
of a bore hole near the center of A Left, Dr. Newman concluded that beneath the
Low Splint seam were spike indicative of coal streaks which diminished with
depth to the rock formation becoming more uniform shale and a stronger heaving
surface. (6 Tr. 188).
On cross examination Newman agreed that he conducted no
bore hole testing in the primary escapeway.
(6 Tr. 189). Newman disagreed
that various photographs showed roof degradation but rather areas of draw
rock. (6 Tr. 192).
As to his modeling, Newman stated that he relied upon
data supplied by Alpha, including maps and flown typography. (6 Tr. 192).
The modulus was based upon “some testing for Alpha on other core holes,
not in this vicinity.”
Although for modeling purposes, the mine roof and floor
were considered synonymous, Newman confirmed that in reality the rock in Low
Splint’s floor was not the same as in its roof.
The rock had a different lithology and different shales. (6 Tr. 193).
Newman further indicated that the model and specific software was not
designed to characterize the roof or the floor; the intent was to examine
pillar stability. (6 Tr. 194).
Further, the model was not designed to examine the
stability of entries nor was it designed to deal with the convergence of the
floor. (6 Tr. 195-196)
Newman again conceded that he had spent most of his time
in the secondary escapeway. However, he
characterized the situation in said section thusly:
What is
happening is the floor had heaved. The
ribs had spalled, both in reaction to the floor heaving and also due to the
combination of overburden pressure and abutment stresses coming off of those
areas that had been pillared. So if you
have three components; you have the roof, the pillars, the floor, it is the
floor where convergence or the movement has occurred. So looking at the E-log, one can intuit that
there are several layers of floor. And
after scooping as they have the weaker layers out of the way, eventually what
you would expose is a stronger, more compact layer of shale. And at the time I was there, there was no
sounds or no evidence of rock failing or movement. So therefore, the thought is that you had
come to an equilibrium where at that time, there was no further
convergence. There was no further
degradation of the floor.
(6 Tr. 197-198).
Newman conceded that he would not have expected the MSHA
inspectors to have conducted the type of analysis he had testified to in
determining whether to issue an imminent danger order. He agreed they would have to draw on their
observations onsite. (6 Tr. 200). However, on redirect, he opined that the
inspectors could have examined the test holes.
(6 Tr. 201).
On
further direct examination, Dr. Newman reasserted that the model used in this
situation was appropriate. (6 Tr.
241).
Dr.
Newman further testified that it was established that the roof was stable via
the bore scope. (6 Tr. 240). Dr. Newman also elaborated that the initial
layer that the pillars are sitting on is weak material but, ultimately, that
weak material had been scooped out and the pillars rested on more competent
material. (6 Tr. 240). This layer of competent stable material is
why the area was quiet on June 1 when Dr. Newman inspected the area. (6 Tr. 241).
If the layer were not stable, there would have been noise and cracking
during the six hours that Dr. Newman was at the area. (6 Tr. 241).
William Dupree
William
Alan Dupree, Jr., was the president of the
While
working for MSHA’s ventilation division, he would go to mines with complex
ventilation issues and help resolve the condition and make
recommendations. (6 Tr. 205). If there was a fire or an explosion in an underground
mine, the ventilation division provided gas sampling instrumentation to sample
the gases and also analyze the concentrations for explosibility, toxicity. (6 Tr. 205).
With
respect to the imminent danger order at issue, Dupree held a meeting with
MSHA’s technical expert, MSHA’s representatives, and
During
this meeting, MSHA expressed concerns that if the pillars lost strength then
the roof could weaken. (6 Tr. 212). At this meeting, Dupree suggested that test
holes be examined to give a view of the strata in the immediate roof and
determined what the roof looks like. (6
Tr. 212-213).
Dupree
did go underground the Low Splint A mine with Danny McGlothlin. (6 Tr. 213).
They both traveled up the travelway, crossed under the belt, and into
the primary escapeway. (6 Tr. 214). After traveling the primary escapeway a
distance, Dupree and McGlothlin walked and crawled the escapeway to the section
in question. (6 Tr. 213-214).
Dupree
stated that the roof looked pretty good at the intake escapeway and that the
escapeway was passable. (6 Tr.
214-215). Next, Dupree went to the one
cross-cut inby seven belt to assist with the borescope. (6 Tr. 215).
Ultimately, the borescope was not operable. (6 Tr. 216).
After
his examination, Durpee came to the conclusion that there was not an imminent
danger. (6 Tr. 216). There was not anything ventilation-wise,
methane-wise, or roof control-wise that would cause an imminent danger. (6 Tr. 221).
Dupree
testified that the purpose of a 107(A) order is when an imminent danger
situation is recognized that a 107(A) is issued so that MSHA can have control
over the situation. (6 Tr. 224). When an imminent danger is observed, a 107(A)
order is issued for the purposes of removing personnel from exposure from those
areas and situations that could within a reasonable short time frame cause
serious injury or death. (6 Tr.
225). An exception allows some individuals
to stay in the mine for a limited purpose of abating the condition upon which
the 107(A) order was issued. (6 Tr.
224). The Mine Act allows miners to
re-enter the area if the condition is abated.
(6 Tr. 225). Next, MSHA
re-inspects the mine to determine if the conditions have been abated. (6 Tr. 227).
If the conditions have been abated, then MSHA terminates the order. (6 Tr. 227).
Dupree
believed that the imminent danger order was, in this case, used as a control
order. (6 Tr. 218). MSHA came across a situation unsure of what
type of enforcement action was appropriate and issued the 107(A) order as a
mechanism to control the situation. (6
Tr. 218). This uncertainty was due to
the fact that there has been a high turn-over rate at MSHA with supervisors
being only trainees three years previously.
(6 Tr. 219). This is despite the
normal five years it took an inspector to see enough to be a good, experienced,
comfortable inspector. (6 Tr. 219).
Dupree
stated that it was very common for an excapeway to make changes in
direction. (6 Tr. 220). There have been numerous occasions where an
operator has to move the stopping line over to bypass a fall area to create
another avenue for the escapeway. (6 Tr.
220).
In
Dupree’s opinion, there was almost zero likelihood of a major event that would
require the use of one or both of the escapeways. (6 Tr. 220).
It was also very unlikely that there would be an event that would cause
smoke to fill the intake escapeway. (6
Tr. 221). There was not an ignition
source because the belts were not running or any active coal production. (6 Tr. 221-222).
During
his conversations with Inspector Cain on October 24 while underground, Dupree
stated that he wished Mill Branch would have pulled the equipment out of the
area a day earlier. (6 Tr. 232). This is because the more bottom hooving
occurs more work has to be done to re-enter the mine and retrieve
equipment. (6 Tr. 233).
Finding of Fact and Conclusions of Law
I. There was a significant
and substantial violation of §75.380(d)(1).
Based upon such and the observed global conditions in Low Splint A
Mine, the Inspector did not abuse his discretion in issuing an imminent danger
order pursuant to §107(a).
Section 107(a)
provides:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the
Secretary finds that an imminent danger exists, such representatives shall
determine the extent of the area of such mine throughout which the danger exists,
and issue an order requiring the operator of such mine to cause all persons,
except those referred to in Section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized representative of the
Secretary determines that such imminent danger and the conditions or practices
which caused such imminent danger no longer exist. The issuance of an order under this subsection
shall not preclude the issuance of a citation under section 104 or the
proposing of a penalty under section 110.
Section 104(d)(1)
provides the following:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause imminent
danger, such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the
operator under this Act. If, during the
same inspection or any subsequent inspection of such mine within 90 days after
the issuance of such citation, an authorized representative of the Secretary
finds another violation of any mandatory health or safety standard and finds
such violation to be also caused by an unwarrantable failure of such operator
to so comply, he shall forthwith issue an order requiring the operator to cause
all persons in the area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary
determines that such violation has been abated.
Section 3(j) of the
Act defines “imminent danger” as “the existence of any condition or practice in
a coal mine or other mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can be abated.” 30 U.S.C. §802(j).
This definition has
not changed from the definition contained in the Coal Mine Health and Safety
Act of 1969, 30 U.S.C. §801 et. seq. (1976) (amended 1977) (the “Coal
Act”).
On May 22, 2012, MSHA
Inspector Chris Cain and Gary Hall conducted an inspection of Operator’s Low
Splint A mine during which time the inspectors concluded that there were unsafe
conditions which compelled the issuance of a §107(a) imminent danger order.
The Order No. 8178569
reads as follows under the heading “Condition or Practice”:
All entries outby the 001 MMU where miners are removing
equipment after second mining are currently on a ride and are squeezing the
bottom to the mine roof. The primary and
secondary escapeways are affected. Also
the intake and return air courses are all showing signs of excessive
pressure. The worst area is from #6
drive at S.S. 1562 to #7 Drive at S..S. 1602 including all entries. The hooving bottom will adversely affect the
miner’s safety and health while trying to recover the 001 MMU equipment with
only one travelable entry. These
conditions according to mine management have dramatically worsened in the last
week. The bottom has bent 100 ton jacks,
broke posts, and is starting to affect the stability of the mine ribs.
This order was issued orally to Randy Hensley in the
primary escapeway near #6 Drive at 11:15 a.m. on this date
This imminent danger
order was, in part, based upon the inspectors’ observations and conclusion that
the escapeways from the mine area in question, specifically the primary
escapeway, were so compromised that 30 C.F.R. §75.380(d)(1) was violated.
This section provides,
in pertinent part: “(d) each escapeway shall be (1) maintained in a safe
condition to always assure passage of anyone, including disabled persons.”
Under the heading and
caption “Conditions or Practice” Citation No. 8178570 alleged as follows:
The primary escapeway provided for miners removing
equipment from the 001 MMU is not being maintained to always ensure safe
passage of anyone, including disabled persons.
The bottom has hooved and made travel slow and difficult for myself and
would for others. The excessive pressure
is created by the second mining of the 5 West Mains which has put the area on a
ride. The bottom and ribs are showing
signs of significant deterioration inby and outby the #6 Drive located in the
Southwest [20] Mains
after the second mining of the adjacent 5 West Mains. The condition of the escapeway severely
increases the risk to miners working on the 001 MMU. The hazard exists that miners working on the
001 MMU do not have a safe means to escape during a major event occurring at
the mine and being killed. The
alternative escapeway is the only safe means of travel from the 001 MMU outby
to the #6 Drive and is common with the belt entry. The doors allowing access to the intake escapeway
were blocked or damaged to prevent miners from entering or leaving the
escapeway for 1,400 feet.
The operator has engaged in aggravated conduct
constituting more than ordinary negligence in that:
1. An examination of the intake is conducted on a weekly
basis.
2. The mine has a history of showing signs of excessive
pressure.
3. The decision made by mine management to discontinue
mining on the 001 MMU was made after the bottom hooved and created these
problems.
4. No effort by mine management was made to correct or
prevent this condition from occurring.
This violation is an unwarrantable failure to comply with a mandatory
standard.
This citation is being issued in conjunction with a
107(a) Order No. 8178569.
As described supra
Inspectors Cain and Hall and expert Gauna testified at length as to why their
personal observations led them to believe the escapeways, especially the
primary escpaeway, were unsafe and not travelable by disabled miners during a
major event.
Further, all three
witnesses gave extensive testimony as to why they believed that the significant
floor heaving, broad-based squeeze, and potential pillar system failure in Low
Splint A Mine created an imminent danger to miners, including the seven miners
who were engaged in a hasty retrieval of machinery.
This Court recognizes
that imminent danger orders can be issued regardless of whether the Mine Act or
the Secretary’s regulations have been violated.
Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991).
After a careful
evaluation of the record, however, this Court finds that §75.380(d)(1) had in
fact been violated and that said violation in part justified Inspector Cain’s
issuance of the §107 imminent danger order.
Section 75.380(a)
requires that underground coal mine operators designate and provide as
escapeways at least two separate and distinict “travelable” passageways that
meet the extensive requirements of §75.380.
Although there is no definition of “travelable” in the Mine Act, §75.380(d)
specifically provides for assured “passage of anyone, including disabled
persons.”
There is no dispute
that escapeways are needed for miners to quickly exit an underground mine and
that impediments to a designated escapeway may prevent miners from being able
to do so. The legislative history of the
escapeway standard states that the purpose of requiring escapeways is “to allow
persons to escape quickly to the surface in the event of an
emergency.” S. Rep. No. 91-411, at 83, Legislative
History, at 209 (1975).
The location and
physical attributes of escapeways must be such that those disabled in a mine
accident and needing assistance can quickly and safely get from the
start of the escapeway to the surface.
Moreover, §75.380 obligates operators to continually maintain the
condition of escapeways so that such passage is not hindered. See Maple Creek Mining, Inc., 27
FMSHRC, 555, 559-61 (Aug. 2005). Section
75.380(d), as discussed infra, also provides that MSHA may require a
“stretcher test” where four persons carry a miner through the area in question
on a stretcher.
In Sec. of Labor
v. The American Coal Co., 29 FMSHRC
941, 950 (Dec. 2007) the Commission held:
…the test with respect to the use of an escape route
is not whether the miners have been safely traversing the route under normal
conditions, but rather the effect of the conditions of the route on miner’s
ability to expeditiously escape a dangerous underground environment in
an emergency.
The Administrative Law
Judge found both Cain and Hall to be credible in their explanations as to why
miners in an emergency could not quickly or expeditiously
traverse the primary escapeway pursuant to the above cited case and statutory
law.
Contestant’s own
witness, Bruce Martin, gave problematic testimony as to whether individuals could
carry a stretcher in the primary escapeway.
(5 Tr. 113).
Another of
Contestant’s witnesseses, Daniel McGlothlin, conceded that travel in the
primary escapeway would be difficult. (5
Tr. 307-308).
The Administrative Law
Judge recognizes that the performance of a stretcher test – and the inability
to perform such – would have further supported the issuance of the imminent
danger order and Citation No. 8178570.
However, there is no statutory or case law that mandates performance of
a stretcher test before an inspector can issue a §107(a) order or a
§75.380(d)(1) violation. Further, the
Administrative Law Judge finds that Cain was warranted in not permitting a
stretcher test in view of the rapidly changing global conditions and risk posed
to miners. Considering the signs of
pressure convergence, floor heaval, pillar collapse, rib compromise,
bent/knocked jacks, reports of cessation, and worsening conditions, Cain had
sufficient grounds for issuing an imminent danger order and §75.380(d)(1)
violation with or without stretcher testing.
Indeed, Contestant’s
own witness, Daniel McGlothlin, conceded that miners would have had difficulty
performing a stretcher test – and this difficulty was without regard to
aggravating emergency conditions such as smoke or fire. (5 Tr. 278-279, 307-308).
The Administrative Law
Judge agrees with the arguments of Contestant that a mine is not an “office
environment” and that escapeways need not be free of all “the normal mining
conditions a miner might encounter.” (See
Contestant’s brief at p. 24).
However, the record here is quite clear that disabled miners could not
be expeditiously and quickly evacuated in an emergency situation through the
primary escapeway which is the “essence of the standard” which Contestant
argues was not violated. (See
Contestant’s brief at p. 24).
As noted supra,
the Government presented photographic evidence of massive floor heaving, much
sneaking its way through the primary escapeway [21]
which served as the intake air course for fresh air coming from the
surface. (See MSHA B-1 and
B-2).
The floor heaving,
which was sometimes present directly below the life line, would have clearly
impeded escaping miners. (5 Tr.
72). In the case of emergency
conditions, such as a smoky environment, miners might have significant
difficulty in utilizing the life line and/or escapeway. (See also 5 Tr. 178-179).
Significant and Substantial
A violation is properly designated S&S “if, based
on the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to by the violation will result in an
injury or illness of a reasonably serious nature.” Cement Division, National Gypsum, 3
FMSHRC 822, 825 (Apr. 1981). The
Commission has set forth the elements that the Secretary must establish. Mathies Coal Co., 6 FMSHRC 1, 3-4
(Jan. 1984). The elements are:
(1)[T]he underlying violation of a mandatory safety
standard; (2) a discrete safety hazard – that is, a measure of danger to safety
– contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
We have explained further that the third element of
the Mathies formula “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which
there is an injury.” U.S. Steel
Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984). We have emphasized that, in accordance with
the language of section 104(d)(1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC
1866, 1868 (Aug. 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
This evaluation is made in terms of “continued normal
mining operations.”
Unwarrantable Failure
The term “unwarrantable failure” is defined as
aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2004 (Dec. 1987). Unwarrantable failure
is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or the “serious lack of reasonable care.”
The Secretary has established all four elements of the
S&S test as it pertains to Citation No. 8178570.
There was an underlying violation of a mandatory
safety standard – §75.380(d)(1) – which provides that underground mines shall
have at least two separate and distinct travelable passageways, designed as
escapeways, which shall be “maintained in a safe condition to always assure
passage of anyone, including disabled persons.
30 C.F.R. §75.380(d)(1).
There was a discrete safety hazard contributed to by
the violation – that is “miners working on the 001 MU do not have a safe means
to escape during a major event occurring at the mine…” (See MSHA E-2).
The primary escapeway in the mine had been essentially
neglected by the operator who appeared to be focusing its efforts on
maintaining the alternate secondary escapeway – most probably because this
travelway had to remain open for the removal of machinery.
The inability of miners, disabled or otherwise, to
escape in a quick and expeditious manner would reasonably cause a serious
injury so as to satisfy the third prong of Mathies. Again, under the third prong of Mathies
the test is whether the hazard fostered by the violation is reasonably
likely to cause injury, not whether the violation itself is reasonably
likely to cause injury. Pine Ridge
Coal Co., LLC, 2012 WL 601258 (Jan. 2012) (emphasis in original) citing
The inability of miners to get out quickly and safely
in emergency conditions would clearly lead to a reasonable likelihood that
injury would be of a reasonably serious nature so as to satisfy the fourth
prong of Mathies.
The Administrative Law Judge essentially adopts the
arguments advanced by the Secretary that §75.380(d)(1) was in fact violated and
that said violation was significant and substantial in nature. (See also Secretary’s brief at pp.
57-62). The Administrative Law Judge
further agrees with the gravity assessment of highly likely.
However, after considering the record in toto,
including the arguments advanced by Contestant in its brief (see pp.
29-32) the Administrative Law Judge has some question as to whether the mine
operator’s conduct, though highly negligent, constituted an unwarrantable
failure.
Though a “close call,” the Administrative Law Judge
accepts the Contestant’s witness testimony as credible to the extent that the
mine operator may not have been acting in a complete “reckless disregard” for
the safety of miners or engaging in “intentional misconduct,” so as to support
an unwarrantable finding.
Inter alia, in
reaching said conclusion the Administrative Law Judge has considered the
Contestant’s witness testimony that the primary passage was still “passable,”
that the geologic phenomena and mining conditions witnessed were essentially
benign in nature and that, in any case, given the cessation of mining, there
was little chance of an emergency situation involving smoke or fire.
Other Conditions Warranting Issuance of a §107(a)
Order
In addition to the
violation of §75.380(d)(1), the Secretary presented further evidence indicating
that there might be a massive failure of the structural integrity of the
mine. Both eye-witnesses and expert
testimony was offered showing that the mine area at issue might be subject to
unpredictable floor hooving, rib compromise, and possible pillar collapse. The combination of §75.380(d)(1) violation
together with the signs of structural collapse properly warranted the issuance
of a §107(a) order.
As noted supra, section
3(j) of the Mine Act defines “imminent danger” as the “existence of any
condition or practice in a coal or other mine which could reasonably be
expected to cause death or serious physical harm before such condition or
practice can be abated.” 30 U.S.C.
§802(j). To support a finding of
imminent danger, an inspector must conclude that “the hazardous condition has a
reasonable potential to cause death or serious injury within a short period of
tiem.” Utah Power & Light Co., 13
FMSHRC 1617, 1622 (Oct. 1991). In
reviewing an inspector’s finding of imminent danger, the Commission must
support the inspector’s determination “unless there is evidence that he has
abused his discretion or authority.” Rochester
& Pittsburgh Coal Co., 11 FMSHRC 2159, 2164 (Nov. 1989) (quoting Old
Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 31 (7th Cir.
1975) (emphasis omitted)). The
Commission has held that an “abuse of discretion” is found when “there is no
evidence to support the decision or if the decision is based on an improper
understanding of the law.” Energy
West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (citations omitted and
emphasis added) (affirming the judge’s determination that the inspector did not
abuse his discretion when he issued an order extending abatement time).
Considering the
record, in toto, this Administrative Law Judge cannot find that there
was no evidence to support Inspector Cain’s decision to issue the 107(a)
order pursuant to the Commission’s holding in Energy West.
Further, considering the above cited testimony of
Secretary’s witnesses, the Administrative Law Judge cannot find that there was
a “clear error of judgment” on the part of Inspector Cain. (See also Citizens to
The Secretary has correctly stated that the standard
for reviewing an inspector’s imminent danger order is “abuse of discretion” and
has further correctly argued that an MSHA inspector has considerable discretion
in determining whether an imminent danger exists. (See also Secretary’s post trial brief
at p. 34). However, the Contestant is
also correct in its position that an inspector’s discretion is not without
limits.
As the Commission explained in Island Creek Coal
Co., 15 FMSHRC 339, 346-347 (Mar. 1993):
While the crucial question in imminent danger cases is
whether the inspector abused his discretion or authority, the judge is not
required to accept an inspector’s subjective “perception” that an imminent
danger existed. Rather, the judge must
evaluate whether, given the particular circumstances, it was reasonable for the
inspector to conclude that an imminent danger existed. The Secretary still bears the burden of
proving [her] case by a preponderance of the evidence. Although an inspector is granted wide
discretion because he must act quickly to remove miners from a situation that
he believes to be hazardous, the reasonableness of an inspector’s imminent
danger finding is subject to subsequent examination at the evidentiary hearing.
An inspector “abuses
his discretion…when he orders the immediate withdrawal of miners under section
107(a) in circumstances where there is not an imminent threat to miners.”
In concluding that Inspector Cain had not acted
arbitrarily or capriciously in issuing his imminent danger order, the
Administrative Law Judge fully recognizes that an inspector’s bona fide concerns
about a potential disaster and the safety of miners cannot – standing alone
– overcome contradictory evidence or the inspector’s lack of knowledge and
inquiry. (See
However, Inspector Cain’s issuance of an imminent
danger order on May 22, 2012 was clearly not based simply upon a generalized
anxiety regarding miner’s safety at the Low Splint A Mine or the observation of
one safety criterion. Cain testified
that he had prior knowledge of squeeze/convergence problems at the mine, that
he had been informed that mining operations had been stopped due to
belt/squeeze problems the day prior to his inspection, that he had personally
observed impediments to easy traverse of the primary escapeway, and that he had
witnessed multiple stigmata of pressure convergence, including floor heaval,
rib sloughing, and jack collapse.
In her brief, the Secretary persuasively argued that
relevant case law requires the Court, in determining abuse of discretion, to
focus on the information that was reasonably available to the inspector when he
made his decision. (See Secretary’s
brief at p. 35; see Wyoming Fuel Co., 14 FMSHRC 1282 (Aug. 1992)).
Given the objective stigmata of dangerous pressure
convergence, including floor heaval, rib collapse, compromised jacks, signs and
reports that conditions had significantly worsened in recent days, and given
that Contestant had in fact stopped mining and was in the process of retrieving
equipment, a reasonable person, possessing a qualified inspector’s education
and experience, confronted with such circumstances that Cain had before him on
May 22, 2012, would have been warranted in issuing a §107(a) order. (See also Secretary’s cited case law
in brief at pp. 35-36).
Thus, Order No. 8178569 was justified.
The Administrative Law Judge agrees with the
Secretary’s position, which is supported by abundant case law, that imminent
danger orders should be reviewed though the perspective of an MSHA inspector
who “must act quickly to remove miners from a situation he believes is
hazardous.” Because the consequences of
making an incorrect determination could be fatal, “the benefit of any doubt” must
“cut in favor of withdrawal.” (Se
also Secretary’s brief at pp. 36-38).
Thus, the critical question before this Court is not
whether Cain was ultimately correct in his assessment of overall geologic
conditions and hazards at the Low Splint A Mine. The essential issue is whether, given the
exigent circumstances that Cain was confronted with, did he abuse his
discretion in issuing a §107(a) order.
Accordingly, although Dr. Newman, the retained expert
of Contestant, presented some sophisticated analysis to support a conclusion
that there was no actual imminent danger existent at the time of the §107(a)
order, [22] Newman
himself conceded that the MSHA inspectors could not have been expected to have
engaged in such analysis, retroactive or otherwise, prior to issuing a §107(a)
order. Inspectors would have instead had
to rely on their own observations on May 22, 2012 at the scene.
Associated with Newman’s testimony, Contestant has
argued that the cessation of mining had lessened stresses on the roof and that
a state of equilibrium had been attained.
(See Contestant’s brief at p. 19). The Court has credited this argument only to
the extent that the mining cessation might be considered a mitigating factor in
determining unwarrantable failure.
However, this Court was more persuaded by contradictory evidence
presented by the Secretary, including Michael Gauna’s testimony regarding the
unpredictable nature of the global environment at Low Splint A, even after the
work stoppage.
In Cyprus Emerald Corp., 12 FMSHRC 911 (May
1990), the Commission held that a mine operator had acted appropriately in
dangering off an area of bad roof in that no miners worked, traveled, or were
required to enter the area at issue.
However, the Commission upheld the validity of the 107(a) order, noting:
Under section 107(a) of the Act, the Secretary is
responsible not only for determining the area of the mine affected by the
danger and removing miners from such area but also determining when miners may
safely re-enter the affected area because conditions or practices that caused
the danger no longer exist. We cannot
conclude that the inspector abused his discretion in issuing an order
prohibiting re-entry into the area until the hazard was eliminated.
Given the photographic, documentary, and testimonial
evidence presented by the Secretary as to the potentially catastrophic
conditions present at the Contestant’s mine, this Court can find no “clear
error of judgment” on Cain’s part in issuing the imminent danger order.
Burden of Proof and Assessment of Credibility
Contestant has properly argued that it is the
Secretary’s burden of proof to establish the fact of violation by the
preponderance of the evidence. Garden
Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). (See also Contestant’s post hearing
brief at p. 14).
However, the Commission has long held that the
preponderance of evidence standard only requires that the trier-of-fact believe
that “the existence of a fact is more probable that its nonexistence.” RAG Cumberland Resources Corp., 22
FMSHRC 1066, 1070 (Sept. 2000).
The Administrative Law Judge finds that the Secretary
has carried this less onerous burden of proof.
In reaching this
determination the Administrative Law Judge has carefully evaluated the veracity
of all witnesses. It is black letter law
that the Administrative Law Judge as trier-of-fact must assess the credibility
of all witnesses and determines the weight their testimony deserves. [23]
I found Contestant’s witness, Randy Hensley, to be
less than fully credible. A critical
question raised at hearing was: why had mining suddenly stopped on May 21,
2012, less than twenty-four hours before the issuance of the imminent danger order
on May 22, 2012?
Hensley’s explanation that there simply happened to be
another section ready to be mined struck this Court as just too happy a
coincidence. [24]
The recollection of Cain, as corroborated by his contemporaneous
field notes and Gary Hall’s testimony, that Hensley had admitted on May 22,
2012 that the decisional motivation for the mine move was floor heaving under
the beltline was far more believable. [25] (See inter alia 5 Tr. 28-29; 6 Tr. 8;
MSHA F-1, p. 2).
Hensley’s testimony was further undermined by
Contestant’s own witness, Safety Manager McGlothlin, who stated that he had
learned on Monday night, May 21, 2012, of the pull out “because of excessive
floor heave.” (5 Tr. 304; see also
Secretary’s brief at p. 51).
Further, Hensley’s assertions that floor heaving did
not constitute a hazard despite the multiple problems caused by such at the Low
Splint A simply did not ring true. [26]
As noted infra, although he asserted otherwise,
Contestant’s witness, Danny McGlothlin, essentially admitted to the “imminency”
of the unsafe mining condition at Low Splint A by conceding that “if I’d went
through that area, I’d say ‘We’re pulling out of there.’” (5 Tr. 312).
Likewise, the Administrative Law Judge found
Contestant witness, Bruce Martin, only partially credible. Martin may have testified to a good faith
(but altogether mistaken) belief that it was unnecessary to fully report
hazards such as floor heaving and squeeze because miners were already aware of
such. (6 Tr. 117). However, the Administrative Law Judge did not
fully credit Martin’s explanation as why he thanked Cain at their meeting on
May 22, 2012. The Administrative Law
Judge believes that the thanks arose out of a belated epiphany as to the
imminent danger presented by the unreported hazards than gratitude for unrelated
esoteric information.
Similarly, the undersigned found Contestant’s witness,
John Richardson, to have given inherently contradictory testimony. On the one hand he considered the roof
safe. (6 Tr. 123-127). On the other, however, he admitted that
recent roof falls had occurred, one of which cause significant rerouting of the
escapeway. (6 Tr. 132-135).
As noted supra, the Administrative Law Judge
also found the expert opinion [27]
testimony of Dr. Newman to be “problematic.”
Newman spent little or no time assessing the primary escapeway. His narrow focus on the “stability of the
immediate roof” raised questions regarding his conclusions about the mine’s
global stability. (See also analysis
of Newman’s testimony at pp. 26-28 of Secretary’s brief).
Many of the conclusions that Newman drew from his
modeling analysis were persuasively called into question by Michael Gauna who
pointed out fundamental flaws in said analysis.
(See inter alia 6 Tr. 236). [28]
On the other hand, Secretary’s witnesses all appeared
to be more forthright and consistent in their testimony.
The Administrative Law Judge found no credible
evidence of any underlying personnal animosity that Cain might have harbored
toward any employees of Contestant which would have prejudicially motivated
issuance of the §107(a) order. [29]
The Administrative Law Judge also rejects Contestant’s
suggestion that an adverse interest should be drawn from the “fact” that
imminent danger orders are rare and Cain had issued four of such within two
years. (See Contestant brief at
p. 22). Without knowing the surrounding
circumstances of Cain’s other imminent danger orders, these facts standing
alone have little probative value. One could
just as easily infer from such that Cain had been investigating unusually
dangerous mines in recent years.
The Administrative Law Judge discovered no “hidden
agenda” underlying Cain’s testimony and finds that Cain truthfully described
the mining condition which he believed in good faith justified an imminent danger
order.
The Administrative Law Judge further found that the
testimony of Gary Hall and Michael Gauna essentially corroborated Cain’s
testimony both as to the conditions witnessed by Cain and the reasonable
inferences that Cain drew from said observations.
Unlike the testimony of many of the Contestant’s
witnesses, Cain’s, Hall’s, and Gauna’s testimony was remarkably consistent, both
internally and externally, raising no issues of credibility. Regardless of whether these witnesses were
actually correct in their interpretations and assessments of conditions
observed, the Administrative Law Judge found all three witnesses to be fully
credible in their recollections of events and completely honest in their
expressed convictions.
However, although finding that the Secretary has
proved her case by the preponderance of the evidence, the Administrative Law
Judge acknowledges that this case is not without uncertainty. [30] The Contestant has offered some evidence and
presented some argument which raises some doubt regarding the validity of the
within imminent danger order. If this
were a criminal proceeding, this Court may have found that the Secretary had
failed to carry the more onerous burden of proof beyond a reasonable
doubt.
II. Both Sections 75.364(b)(1) and (b)(2) were violated and both
violations were significant and substantial in nature
Section 75.364(b)(1) and (b)(3) state as follows:
(b) Hazardous conditions. At least every 7 days, an examination for
hazardous conditions at the following locations shall be made by a certified
person designated by the operator:
(1) in at least one entry of each intake air course,
in its entirety, so that the entire air course is traveled.
(2) in at least one entry of each return air course,
in its entirety, so that the entire air course is traveled.
Order No. 8178573 (MSHA E-3) states as follows under
Section 8 Condition or Practice:
The weekly examiner designated by the operator
conducting the examination for the intake for Southeast Mains, A Left, and B Right did not
recognize hazards found throughout these areas.
The previous examinations recorded in the record book did not list any
hazards for the examinations conducted during the month of May prior to this
date. Hooving bottom, deteriorating riblines,
damaged stoppings, and failure to maintain a travelable escapeway were found
during an inspection of the area. The
failure to recognize and record hazards in the record books does not allow or
show miners and mine management an accurate depiction of the intake or
escapeway and can seriously injure miners that work or travel through the
affected area.
This violation is an unwarrantable failure to comply
with a mandatory standard.
The operator of this mine engaged in aggravated
conduct constituting more than ordinary negligence in that:
1. The examiner designated by the operator failed to
recognize the hazards.
2. The record shows the examinations being
countersigned by the operator.
3. The operator failed to ensure a proper examination
is being conducted and recorded.
4. This violation has existed for a period of time.
5. The hazards found were obvious and extensive.
Order No. 8178574
(MSHA E-4) states as follows under Section 8 Condition or Practice:
The weekly examiner designated by the operator
conducting the examination of the return for the Southeast Mains, A Left, and B
Right did not recognize the hazards found throughout these areas. The previous examinations conducted in the
record book did not list any hazards for the examinations conducted during the
month of May prior to this date. Hooving
bottom, deteriorating riblines, and damaged stoppings were found during an
inspection of this area. The failure to
recognize and record hazards in the record book does not allow or show miners
or mine management an accurate depiction of the return air course that affects
the 001 MMU. This case seriously injure
miners that work or have to travel through this area to maintain the returns.
This violation is an unwarrantable failure to comply
with a mandatory standard.
The operator of this mine engaged in aggravated
conduct constituting in more than ordinary negligence in that:
1. The examiner designated by the operator failed to
recognize the hazards.
2. The record shows the examinations being countersigned
by the operator.
3. The operator failed to ensure a proper examination
is being conducted and recorded.
4. This violation has existed for a period of time.
5. The hazards found were obvious and extensive.
At hearing the Secretary, as noted supra,
presented extensive testimony, further corroborated by photographic evidence,
that there were numerous observable hazards present in the intake air course
which was also the primary escapeway. (See
inter alia S. Tr. 52-63, 178-181, 236-237; MSHA exhibits B-1 – B-7).
Despite the obvious and possibly ominous nature of
these conditions, the weekly examiner essentially failed to recognize, record,
or report such.
The Administrative Law Judge specifically rejects
Contestant’s argument that the weekly examinations had been conducted in a
fashion consistent with what a reasonably prudent person would do. (See Contestant’s brief at pp.
34-35). To the contrary, given that the
required examinations are “of fundamental importance in assuring a safe working
environment underground,” (see Buck Creek Coal Co., Inc., 17 FMSHRC 8,
15 (Jan. 1995)), the Administrative Law Judge finds Bruce Martin was clearly
derelict in his duties. The
Administrative Law Judge hereby adopts the rationale of the Secretary in support
of this violation being at a significant and substantial level. (See Secretary’s brief at pp.
62-64).
Incorporating the rationale recited supra, the
Administrative Law Judge further agrees with the levels of gravity and
negligence assessed by the Secretary at Order No. 8178573.
However, the Administrative Law Judge again questions
as to whether the operator’s negligence rose to a level of unwarrantable
failure. Inter alia, as argued by
the Contestant in its brief (pp. 38-40) there remains some questions as to the
length of the time the conditions were known to the operator. Further, the Administrative Law Judge found
Martin to be somewhat credible in explaining that he had failed to fully report
floor hooving because it was such a common phenomenon at Low Splint A Mine that
miners were aware of such. Although this
explanation was clearly an inadequate defense as to the fact of violation and
S&S nature of such, the Administrative Law Judge did find that Martin’s
failures were more the result of ignorance, misunderstanding, and incompetence
than that of intentional misconduct or reckless disregard, so as to justify an
unwarrantable finding. .
As to Order No. 8178574 regarding failure to report
hazards in the return for Southeast Mains (see MSHA E-4), the
Administrative Law Judge again incorporates the rationale previously recited supra. As persuasively argued by the Secretary (see
brief at p. 67-68), the failure to report any signs of squeeze,
pillar/floor closure, or extreme floor hooving constituted a significant
and substantial violation of §75.364(b)(2).
The Administrative Law Judge hereby adopts the Secretary’s rationale
regarding such as well as its gravity/negligence assessments. (See pp. 67-69 of Secretary’s
brief).
However, for the same reasons set forth supra,
the Administrative Law Judge hesitates to find unwarrantable failure, given inter
alia the changing conditions of the mine and questions regarding length of
notice to the operator.
Therefore, the Administrative Law Judge finds the
following: the imminent danger order at No. 8178569 was properly issued
pursuant to §104(a) of the Act; the violations of §§75.380(d)(1), 75.364(b)(1),
and 75.364(b)(2) at Citation/Order nos. 8178570, 8178573, and 8178574,
respectively, were significant and substantial in nature but were not
unwarrantable failures.
ORDER
In view of the above, it
is ordered that the §107(a) imminent danger order at No. 81878569 was
validly issued.
It is further
ordered that the separate citation at No. 8178570 and separate Order Nos.
8178573 and 8178574, issued in conjunction with said §107(a) order, were
validly issued based upon significant and substantial violations of
§§75.380(d)(1) and 75.364(b)(1) and (2), respectively, pursuant to §104(d)(1).
It is further ordered,
however, that said violations were not a result of unwarrantable failure(s) on
the part of Contestant.
/s/
John K. Lewis
John
K. Lewis
Administrative
Law Judge
Distribution:
R.
Henry Moore, Esq., and Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three
Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222
Robert
Alan Kelly, Esq., and John M. McCracken, Esq., Office of the Solicitor, U.S.
Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington,
VA 22209
/smg
* This Decision has
been amended to reflect corrected exhibit cites.
[1] The written order memorializing such incorrectly referred to “contestant” as “respondent.” In any event, Contestant’s consultant(s) together with MSHA representatives did enter the Low Splint A mine area at issue on June 1, 2012.
[2] Due to the expedited nature of the proceedings, I originally set, at conclusion of the hearing, a brief filing date of July 16, 2012. However, due to various problems with transcript production, I granted a short extension for briefing.
[3] See also Joint Stipulations of fact presented at commencement of June 5, 2012 hearing.
[4] Hereinafter, the transcript from the proceedings of June 5, 2012 are referred to as “5 Tr.” and the proceedings of June 6, 2012 at “6 Tr.”
[5] Cain described “squeeze” as it particularly applied to Contestant’s mine area at issue in the following manner: “A squeeze or ride is when you retreat mine and as you pull that back, the pressure doesn’t get released in the gob area where it should, it’s not in front of it. And actually in this instance, it didn’t go behind the miners per se, directly behind, rather it came across the Southeast Mains and tried to connect with the other gob. So ultimately, it was outby them but quite a ways outby them. So it kind of took a shortcut across the Southeast Mains.” (Tr. 22).
[6] In this decision and order Government exhibits are referred to as “MSHA” followed by alphabet/exhibit number. Contestant exhibits are referred to as “LS.”
[7] Cain specifically testified that, based upon what he had already heard from Hensley and based upon the conditions he had already observed in the A Left area, he was already inclined to issue a 107 order. (Tr. 51-52).
[8] Throughout the hearing testimony the terms intake escapeway and primary escapeway were used interchangeably.
[9] As shall be discussed infra, there were significant legibility issues as to the records in question.
[10] See MSHA E-3, p. 2, wherein Cain stated:
This violation is an unwarrantable failure to comply with
a mandatory standard.
The
operator of this mine engaged in aggravated conduct constituting more than
ordinary negligence in that;
1. The examiner designated by the operator failed to
recognize hazards.
2. The record shows the examinations being countersigned
by the operator.
3. The operator failed to ensure a proper examination is
being conducted and recorded.
4. This violation has existed for a period of time.
5. The hazards found were obvious and extensive.
[11] However, Hall also agreed that “Southeast” Mains was incorrectly referred as “Southwest” Mains.
[12] Gauna further reported that he had discussed possible machinery retrieval solutions with the operator’s representatives involving use of the belt line as the second escapeway. But this was before he discovered that “the roof was so bad.” (Tr. 247).
[13] S. Tr. refers to the supplemental transcript.
[14] Martin’s actual handwritten notes at MSHA G, were in parts, indecipherable to undersigned ALJ; and indeed appeared also to be to Hensley. (See 6 Tr. 37; Secretary’s brief at p. 66).
[15] There again appeared to be legibility issues. Martin was uncertain as word used to describe intake.
[16] Despite having learned the mine was being shut down, Martin denied knowing that MSHA was going to issue an imminent danger order. The ALJ found that this assertion, given Martin’s many years of mining experience, undermined his creditability. (See also 6 Tr. at 109-110).
[17] See also Dr. Newman’s resume at Contestant’s LS-3.
[18] A bore scope is a device with a camera within a steel cylinder. Approximately an inch in diameter, the bore scope enables the user to visually inspect everything that’s within the bore hole. (Tr. 165).
[19] E-Log is an electronic log where a nuclear device is lowered down a bore hole, giving a review of the composition of the rock itself. (Tr. 187).
[20] At the hearing, the Secretary noted that “Southwest” was a typographical error and that it was obvious that the “Southeast” Mains was being referred to. (Tr. at 104).
[21] The same pathway that is the subject “primary escapeway” of Citation No. 8178570 is the “intake air way” that is the subject of Order No. 8178573. MSHA E-3.
[22] This Court found Dr. Newman’s testimony to be only partially credible for the same reasons ably set forth by the Secretary. Dr. Newman based his conclusions on observations ten days after the order was issued. He did not perform testing in the primary escapeway. His modeling program assumed the roof and floor were the same rock. MSHA’s expert, Michael Gauna, gave persuasive testimony regarding flaws in Newman’s model. (See also Secretary’s brief at pp. 26-28).
[23] A Judge’s credibility determinations are entitled to great weight an may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992).
[24] The undersigned is reminded of the old Rabbinic saying: “When falsehood saw he had no legs, he made himself wings.”
[25] In its brief at p. 2, fn. 2, Contestant conceded that “the recent heaving in A Left would have made it more labor intensive to continue mining in B Right and a move to a new section made sense.” Understandably, however, Contestant did not draw the same negative inferences as to its witnesses’ credibility on this point.
[26] See also detailed outline of Hensley’s inconsistent and contradictory statements in Secretary’s brief at pp. 21-23, 50-51, 64).
[27] The ALJ fully recognizes the necessity for expert
testimony in many of the cases before the Commission. However, there is abundant case law
indicating why expert opinion evidence may in and of itself be
problematic. Indeed, many states’ juror
instructions contain the following or similar language:
In
evaluating the credibility of the witness, you should consider their interests
in the outcome of the case; that is, whether that interest in any fashion
affected their testimony.
The
testimony of an expert witness is merely an opinion. An opinion is what someone thinks about
something and the thought may be precisely accurate or totally inaccurate and
yet represent the absolute, honest conviction of the person who expressed
it. Because of this, opinion evidence is
generally considered of inferior or low grade and not entitled to much weight
against positive testimony of actual facts.
Fay v.
[28] Of course the ultimate issue before the ALJ was not whether Newman, as Contestant’s retained expert, was expressing his honest convictions about conditions at the mine and, indeed, was not whether Newman was correct in his retroactive analysis that no imminent danger in fact existed. The ultimate issue was, as Secretary correctly stated: “Whether the MSHA inspectors abused their discretion in determining there was an imminent danger in the Low Splint A Mine on May 22, 2012, based on the circumstances and information that was before them at the time the determination was made, such that the 107(a) order (Order No. 8178569) was lawfully issued on May 22, 2012.” (See Secretary’s brief at pp. 30-31).
[29] The ALJ rejects Contestant’s suggestion that Cain’s reported remark to Hensley that Hensley would “remember me when I leave today” indicated an improper mens rea on Cain’s part. (See 5 Tr. 9-10; pp. 22 of Contestant’s brief).
[30] Such, however, is the “nature of the judicial process.” As Benjamin Cardozo observed nearly a century ago: “…in my first years upon the bench…I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience. The Nature of the Judicial Process. 1921.