FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue N.W. Suite 520 N

Washington, D.C. 20004-1710

(202) 434-9933

October 2, 2012

DECISION

Appearances:          Mary Beth Zamer, Esq., Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville, Tennessee for the Petitioner

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

Before:                        Judge Moran

            I. Introduction: On November 18, 2010, Bledsoe Coal’s Abner Branch mine was notified that it was under a potential pattern of violations. To avoid the designation of having, not simply a potential pattern, but to be identified as having a pattern of significant and substantial (“S&S”) violations, Bledsoe was advised by MSHA that it had to achieve a certain maximum rate of such violations in its next inspection. It failed to achieve that rate, as MSHA found 18 violations that it designated as having the S&S attribute. Bledsoe challenged both the legitimacy of the pattern regulations and the findings that the 18 citations were in fact properly denominated as being “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

            A hearing was held in London, Kentucky from September 5 - 7, 2012 on the issues of the validity of those 18 citations and their designation as “S&S.” The parties stipulated that, under application of the pattern regulations, MSHA needed to prove that at least 9 of the 18 citations were validly issued and were S&S.

            Upon the conclusion of the hearing, the parties, having first waived closing arguments and the filing of post-hearing briefs, the Court then announced its finding that all 18 of the citations were affirmed as violations and that fifteen (15) of those citations were S&S, while three (3) did not have the significant and substantial attribute. Accordingly, for the reasons which follow, the Court upholds MSHA’s determination, placing Bledsoe Coal’s Abner Branch Mine under the pattern of violation designation, as provided by Section 104(e) of the Mine Act,

and imposes civil penalties for them.

            II. PRELIMINARY MATTERS

Understanding “Significant and substantial” violations and the Pattern Provision under the Mine Act

Section 104(e) pattern violations placed in perspective.

            Although in place since the Federal Mine Safety and Health Act of 1977, a period now of nearly 35 years having since passed, the pattern of violations provision has not be used as an active enforcement tool until recently. In that sense, because it has now left its previously dormant state, it is “new” to the mining community. While this has caused commotion within that community, the provision, when examined from a calm perspective, is not especially remarkable in the context of the enforcement of the citations and orders provisions Congress designed under the Mine Act.

            Congress provided a thoughtful enforcement scheme under the Mine Act and when that overall scheme is examined, it is clear that the pattern provision is not draconian in any sense. An examination of the operative provision, section 104 of the Act, demonstrates this. Where, upon inspections or investigations, violations are found, Section 104 provides an ordered approach to dealing with them. Broadly stated, but without distortion, under section 104(a), when a citation is issued for a violation, a time is then set for its abatement. If the violation is not abated within the permitted time, a withdrawal order, pertaining to the extent of the area affected by it, is issued and miners are prohibited from that area until the violation is corrected.

            However, Congress, in its wisdom and from its experience with mining tragedies, knew that an effective enforcement scheme required more than the tool of section 104(a). Based upon that recognition, it included two enhanced enforcement provisions to deal with two specialized compliance problems. These appear in section 104(d) and section 104(e) of the Mine Act. Both of these provisions were present when the 1977 Mine Act came into existence, in November of that year. The thrust of section 104(d) is to deal with a violation with two specialized attributes not called out in section 104(a). The “(d) provision” addresses a violation which is “of such nature as could significantly and substantially contribute to the cause and effect of a [mine] safety or health hazard” and which violations also were caused by an unwarrantable failure by the mine to comply with those standards. When those two attributes coincide, a (d)(1) notice is issued but the potential for enhanced enforcement is also triggered because if, in the ensuing 90 days, there is another violation found and such violation is also caused by an unwarrantable failure, all miners in the area affected by that violation must be withdrawn until the matter is abated. Once that occurs, what is referred to as the “(d) chain” comes into effect. That is, a mine is then faced with one withdrawal order after another each time another unwarrantable failure violation occurs and that withdrawal order consequence continues until an inspection of the mine finds no unwarrantable failure violations. This is known as a “clean” inspection, so described because it is free of more unwarrantable failure violations. The Court of Appeals has described this as a powerful enforcement tool, which is directed chiefly at unwarrantable failure violations. UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d 1477 at 1478-79 (D.C. Cir. 1985). Thus, without oversimplifying it, section 104(d) is primarily focused upon violations which occur in association with an unwarrantable failures to comply with safety and health standards.

            Understanding that this is the thrust of section 104(d), with its focus on unwarrantable failures to comply with the law, makes it easier to appreciate the different focus of the enforcement aim provided by section 104(e) “pattern” violations. While the emphasis of section 104(d) is upon unwarrantable failures to comply with the law, section 104(e) is particularly concerned with the situation where there has been a pattern of “significant and substantial” violations. This S&S pattern provision makes no reference to the degree of negligence or unwarrantability associated with a given violation; it only addresses situations where there has been a pattern of violations whose nature could significantly and substantially contribute to the cause and effect of mine health or safety hazards.

            If the two elements are present - S&S violations for which there is a pattern of their occurrence - Congress enacted a prescription which follows the same, well-known, enforcement scheme that applies for unwarrantable failures. Accordingly, when a pattern of S&S violations has been identified, the mine receives a notice from the Secretary of the pattern’s presence. Then, as with the Act’s treatment of unwarrantable failures, if in the 90 day period following the pattern notice a subsequent inspection finds another S&S violation, a withdrawal order will be issued for the area affected by that subsequently-found S&S violation. The withdrawal order, just as with the section 104(d) unwarrantable failure circumstance, is lifted only after the new S&S violation has been abated. That process, a withdrawal order for each subsequent S&S violation continues until an inspection of the entire mine reveals no more S&S violations. Such a “S&S -free” or “clean” inspection releases a mine from its former pattern status, just as a clean inspection releases a mine from an unwarrantable failure (d) chain.

            Thus, Congress was concerned not only with the circumstances where unwarrantable failures to comply with the law occur but it also had an independent and distinct concern when S&S violations occur as a pattern. In other words, apart from any measure of the culpability involved, the focus of unwarrantable violations, Congress also intended to deal forcefully with the presence of a pattern of S&S violations. Consequently, despite the reaction expressed over the pattern provision, it addresses Congress’ express concern with significant and substantial violations and it employs the familiar and well-established enforcement progression found in section 104(d). As in circumstances when unwarrantable failures reoccur, and the 90 day provision and clean inspection are implemented under section 104(d), essentially the same procedures are employed when S&S violations occur in a pattern. Though mine operators obviously want to avoid the 104(d) designation and the chain which may ensue, the community understands and copes with the reality of the provision’s presence. The Court expects that, in time, mine operators will adjust to the activation of this long-existing provision which deals with a pattern of those more serious transgressions designated as “significant and substantial” violations.

Significant and Substantial Violations

            The foundation for the S&S analysis, at least in terms of case law, comes from two decisions: National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981) and Mathies Coal, 6 FMSHRC 1 (Jan. 1984). Mathies built upon National Gypsum by identifying four elements needed for a violation to be considered S&S. Expressed in a bare bones fashion, those four elements are:

1. a violation of a standard or a violation of the Mine Act itself; 2. the identification of a “discrete safety hazard,” which the Commission has equated with a “measure of danger to safety; 3. a reasonable likelihood that an injury will result; and 4. an injury which would be a reasonably serious one.

            The Commission and the Courts have added to this brief explanation, some highlights of which will be related here. The first requirement, a violation of a standard or a violation of the Mine Act itself, is straightforward. Inclusion of violations of the Act itself, not simply safety and health standards promulgated under it, makes sense because the Act has its own safety and health provisions established in its text.

            The second requirement, the identification of a discrete safety hazard, means that there is a measure of danger to safety contributed to by the violation. For each violation alleged to be “significant and substantial,” the relevant hazard associated with the violation must be identified. Accordingly, to provide a few illustrative examples, in a case involving a violation for the lack of berms on a roadway, the judge cited the hazard of a vehicle veering off the roadway and rolling or falling down the incline. Black Beauty Coal, 2012 WL 3255590, (Aug. 2012). So too, in Cumberland Coal, 33 FMSHRC 2357, 2366 (Oct. 2011), the Commission held that an operator’s failure to install lifelines that could not be used effectively contributed to the hazard of miners not being able to escape quickly. Thus, it is not the absence of a berm or the improper positioning of hooks along a lifeline that is the focus. Rather, for the second element, it is the hazard associated with the absence of those devices that is the subject for this part of the S&S analysis.

            As for the third element, the Mine Act itself requires only that the violation of a standard make a significant and substantial contribution to the cause and effect of the identified mine hazard. It therefore may be thought of as a violation which has the effect of advancing matters towards the creation of a hazard and therefore moving events towards a hazard’s emergence. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). While this third element, that there be a reasonable likelihood that the hazard contributed to will result in an injury seems, in practice, to be the most difficult to apply, the applicable test, that there be “a reasonable likelihood” that an injury will result, is not as complex as it seems. It also may be helpful to understand this when viewed from the perspective of what is not required. Thus, the test does not require that it be demonstrated that it is more probable than not that an injury will result. Instead, only a reasonable likelihood is required to be shown. Whether that reasonable likelihood of an injury occurring has been shown is evaluated in the context of assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

            Finally, the fourth element, that the injury must be a reasonably serious one, has not been difficult to apply. Another way to express this is that negligible mining mishaps, such as bumps, bruises and small cuts, do not constitute reasonably serious injuries. It’s important to appreciate that when a standard is violated, the absence of an injury producing event actually occurring does not mean that the violation was not S&S. Restated, no injury need occur for the violation to be S&S. Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005)

III. Analysis of the Citations in issue.

Docket No. KENT 2011 1162

Citation No. 8405309

            Inspector Grady D. Russell issued this citation on January 26, 2011, invoking 30 C.F.R. § 75.1720(a), upon observing a miner plastering a brattice without suitable eye protection. Gov. Ex. 1 (“GX 1”). The relevant portion of the cited standard provides that: “each miner regularly employed in the active workings of an underground coal mine shall be required to wear the following protective clothing and devices: (a) Protective clothing or equipment and face-shields or goggles when welding, cutting, or working with molten metal or when other hazards to the eyes exist from flying particles.”

            There is no dispute that the miner was not wearing goggles. In fact, upon the citation being issued, the miner retrieved his nearby goggles and donned them, whereupon the violation was abated. The Respondent disputes the S&S characterization of the violation on the basis that the consistency of the plaster made it unlikely that the miner would be subjected to “flying” material. The Court does not agree.

            As noted, the violation itself was established. The discrete hazard was an eye injury; the measure of danger to safety contributed to by the violation was, by not wearing goggles, no protective barrier was present and the miner was subjected to the plastering material contacting his eyes as he plastered the brattice. Certainly, the absence of goggles contributed to the cause and effect of a safety or health hazard. Only one other ingredient would be needed for the hazard to come to fruition: the plaster contacting the goggle-less miner’s unprotected eyes. It was the Inspector’s view that this was a reasonably likely occurrence. Inspector Russell, in addition to his considerable mine experience, has an industrial hygiene degree. Therefore, from both the areas of Inspector Russell’s education and his experience, the Court places weight up upon his opinion that the event was reasonably likely to occur and that it, if it did result, the injury would be reasonably serious, as lost workdays or restricted duty could be reasonably expected.  

            That is not all. As reflected in Gov. Ex. 2, in the material safety data sheet (“MSDS”) for the type of plaster being used that day, the “Hazards Identification” section of that MSDS warns that “[d]ue to the [product’s] alkalinity, [it] can be irritating to eyes . . . [and that] [e]ye contact can cause tearing, redness, and severe irritation.” Further, if such eye contact were to occur, one is to “[i]mmediately flush with water for fifteen minutes holding eyelids apart [and] . . . Seek medical attention immediately.” GX 2 (emphasis in exhibit). In addition, contrary to suggestions that flying material would be unlikely and, beyond the Inspector’s viewpoint about such an event, it is noted that the product is sufficiently non-viscous that it can be stirred. That the manufacturer recognizes the risk of eye contact is obvious from the MSDS, as it advises wearing “chemical safety goggles.” Last, it may be noticed that this work was not being performed in a laboratory, surgical or “white room” setting. Instead, the work consisted of smearing the product on the brattice. Clearly, it is supportable to conclude, for the reasons articulated above, along with the first two Mathies elements, that the twin likelihood elements of the Mathies’ analysis were present.

Accordingly, the Court finds that the violation was S&S and imposes a civil penalty of $499.00.

Docket No. KENT 2012 34

Citation No. 8352926

            Inspector John Sizemore issued Citation No. 8352926 on January 20, 2011, citing the mine for a violation of 30 C.F.R. § 75.220(a)(1). That standard provides: (a)(1) “Each mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.”

            The Condition or Practice section of the Citation issued here states that the: “operator had not followed the approved roof control plan [in two respects] 1. The distance from the last row of corner bolts to the rib support measured from 54 to 58 inches for a distance of 11 ft. This area is located on the outby side of the 1^st intersection outby the # 8 belt tail piece on the return side of the entry. 2. The distance measured between the pillars located between the 1^st and 2^nd crosscuts outby the # 8 belt tail piece measured from 25 ft. to 29 ft. in width. The maximum entry width in this location (allowed by the approved roof control plan) is 20 ft. Standard 75.220(a)(1) was cited 17 times in two years at [the Abner Branch Rider] [ ] mine (17 to the operator, 0 to a contractor).” GX 3.

            The two cited conditions involved the same pillar of coal. Tr. 10. The Inspector stated that each cited condition, independently, was an S&S violation, though they were cited together as a single citation. Tr. 11, Vol. 2.

            There is no dispute over the fact of this violation for failing to comply with the approved roof control plan. Although too much time was spent at the hearing regarding the undisputed fact that the maximum widths under the plan may be exceeded by an additional 12 inches, such exceedances can only exist for a maximum of five (5) feet. In the two instances cited for excessive widths, one continued for 11 feet, while the other was beyond the additional 12 inches allowed for short distances, as 25 to 29 foot widths were present and the plan permits a maximum entry width of 20 feet. Timbering and steel jacks were required to abate the condition to bring it back into compliance with the plan’s minimum requirements.

            Respondent’s Mine Superintendent, Mr. Oliver, was traveling with Inspector Sizemore on that day, January 20, 2011. Vol 3. Tr. 12. Oliver stated that “this area [they] had pulled, this was an outby area on the # 8 belt. This was at crosscut #50 right where the drive was set to turn right and the tailpiece was there. And the right rib had sloughed off and when we had moved back there and set up, we had put up a row of five-foot bolts in pizza pans and respotted that [ ] areas. And there were some timbers set on the sheer in the break . . .” Vol. 3 Tr. 13. The sheer was there to make it wide where one turns a crosscut. However, he noted that it had sloughed all the way down that pillar but that it had been cleaned up and rebolted. Vol 3. Tr. 14. The “pizza pans” are 18 inch square metal pieces used to control draw rock. R’s Exhibit R 2, a photograph, shows the area about which the citation was issued. Noting that the photo depicts an area where it sloughed off, he stated that the bolts had been added after that occurred. Vol. 3 Tr. 16. Oliver contended that when he arrived at the area with Sizemore, there were timbers in place. Vol. 3 Tr. 16. This was done because of the corner being wide. He added that more jacks had to be added in the area to abate the citation. Vol.3 Tr. 18.

            Oliver was next shown Exhibit R 3, another photo of an area that was cited. This photo shows what was done to abate the citation. This shows, among other things, a new jack, that is in the picture’s foreground and it has no rock dust on it. Vol 3 Tr. 19-20. In the background is another jack which jack has rock dust on it. He could not recall how many jacks had to be set in order to terminate the citation. Vol. 3 Tr. 21. He twice noted that the roof in this area was sandstone. Vol. 3 Tr. 20. The point of this observation was to assert that it is a real solid, hard, roof and therefore that the roof presents “no problem . . . at all.” Vol. 3 Tr. 22. Nor did Oliver believe there was any issue with the condition of the ribs. He also added that the roof is not high in this location, another factor he considered making it safer. One does not need to bolt ribs where a roof is under eight feet high. Vol. 3 Tr. 23. Nor did he believe that the jack or timbers that were already present were taking any weight. Vol. 3 Tr. 23.

            Oliver conceded that he took no issue with the measurements taken by the Inspector. Vol 3 Tr. 25. He also agreed that, per Respondent’s own exhibits, R 2 and R 3, someone decided that supplemental support was in fact needed in the cited area. Vol. 3 Tr. 25. Pizza pans are added to a roof to control draw rock only, that is to say, to deal with the immediate roof. Vol. 3 Tr. 26. Oliver also agreed that the wide part was more than just on the corner but also went into the entry. Vol. 3 Tr. 29. Although he then did not agree that more conventional support was needed to deal with the sloughage into the entry, suggesting that an extra row of bolts would suffice, he admitted that such a remedy is not part of the ground control plan for this mine and that it was not acceptable for this mine’s geology. Vol. 3 Tr. 29.

            Regarding the mine’s use of pizza pans, Mr. Oliver agreed that their use was based on its concern that the roof bolt and plate needed that additional protection from draw rock. Vol. 3. Tr. 32. This concern existed despite the presence of the sandstone roof. Vol. 3. Tr. 32.

            The Court finds that, in the single citation, the standard was violated, that it was violated in two separate and independent manners and that each cited condition, independently, was significant and substantial, though the twin problems were viewed as a single violation. The discrete hazard is, rather obviously, roof falls. With lost work days or restricted duty being a very reasonable assessment of the type of injury that could be expected, the likelihood of such an injury occurring was the only matter left in dispute. Here, the Court finds that it would be reasonably likely to occur. This conclusion is supported by the Inspector’s view of that likelihood. As with Inspector Russell’s background, Inspector Sizemore also has a breadth of experience in mining, both in the private sector and in his time with MSHA, with the latter having begun in 1991. Inspector Sizemore informed that had he found either of the two conditions present, he would have marked each as S&S. That is, the conditions did not have to exist in tandem for his S&S finding. The basis for his conclusion rested upon more than one consideration. He noted that roof control plans provide for the minimum control measures to be implemented. The Court can take notice of the fact that roof falls remain a leading cause of coal mining deaths in the United States. Inspector Sizemore also testified, and the Court credits his testimony on this violation, that he observed stress on the pillars in the cited area and that he saw loose ribs. When widths exceed the maximum allowed under the roof control plan, it is axiomatic that the roof support is decreased from that which is needed and required as the minimum requirements. Pillars, when widths are excessive, necessarily take increased pressure on them and such increased pressure can cause ribs to pop out. Thus, Inspector Sizemore’s opinion about the likelihood of an injury was reasonable and augmented by his visual observations. Exposure to the excessive width conditions would exist for the belt examiners as well as those doing repairs or maintenance in the area.

Accordingly, the Court finds that the violation was S&S and assesses a civil penalty of $1,700.00 for the violation.

Docket No. KENT 2012 1162

Citation No. 8352931

            In this instance, Inspector Sizemore cited Bledsoe for a violation of 30 C.F.R. 75.202(a). Entitled, “Protection from falls of roof, face and ribs.” That standard provides: “The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.”

            The condition or practice section of the Citation stated: “Two of the three cribs installed under a stress crack, in the 2^nd left cross cut inby, the portal, in the track entry, were not secured against the roof. The cribs, headers and cap boards were loose and moved freely when examined.” Gov. Ex. 6.

            Sizemore stated that all miners were exposed to this condition as they pass the area on the way to the working section. The area is also required to be preshifted. The entry is also used as an escapeway. The cribs were not installed for decor. There were, and it is not denied, cracks in the roof running across the tracks at the location of the cribs. While miners traveling on a “rail runner” to the working section were in a covered vehicle, that covering was not a ROPS type structure.

            The cribs were installed to provide additional roof support to address the crack or break in the roof, running across the tracks. However, while they were present, there was no claim that the cribs could perform their support role if not secured snugly against the roof. Although the gap was narrow, any gap means that the cribs are not providing roof support. The cribs provided no additional support for the roof when they could be moved about freely. Thus, the cribs cited were only holding up air, not roof. While the roof did not show sagging when the Inspector found the problem, he noted that had that been the case he would have marked the gravity as being “highly likely,” instead of “reasonably likely” to occur. To be deemed S&S, the required finding is “reasonably likely,” not “highly likely.”                            

            Although Respondent’s witness Oliver testified about the citation, he only observed the problem after cribs had been tightened so that they could resume their roof support function. Thus, he was not present on the day the cribs were cited. Further, he agreed that there was a stress crack present across the entry. While he considered the crack to be a “minimal” one, that characterization sidesteps the fact that the cribs were installed in the first place for the purpose of dealing with the stress crack. Thus, there was no assertion that the cribs were not in fact necessary or not needed. Vol. 3. Tr. 34-35. Still, he described that crack as “hairline” and not as much a concern as a hillseam, which is an open joint, would present. He acknowledged that the cribs had been installed because the crack is on a track entry and because the mine was envisioned as “a long term mine.” Vol. 3. Tr. 35. As it existed in the track entry, people will ride and pass under it, but he did not believe that miners had any reason to be walking in that area. Vol. 3. Tr. 37. As mentioned, those riding the track are not on equipment with ROPS or at least Mr. Oliver did not know what the covers on the mantrips using that entry could withstand, nor what the ratings were for such covers. Vol. 3. Tr. 42. This entry is also an escapeway and in such an event miners would be walking under that area. Vol. 3. Tr. 42. Over time, the cribs will shrink, and Oliver informed that “you’ve got to go back and retighten along, you know, as they loosen up.” Vol. 3 Tr. 36 (emphasis added). That did not happen here.

            The mine’s general manager, Mr. Osborne, also testified about the cribs issue, stating that they were quite old. He did not know how old they were however. Tr. 338. In the Court’s view, accurate or not, the age of the cribs is beside the point. The issue is whether they were performing their role by providing support. The evidence is that they were not functioning for that task, as they were able to move freely. Consequently, old or newly installed, they were not providing the support determined to be needed in that area.

            Therefore, for this Citation too, there was no claim that the roof did not need the cribs. In fact, their presence attested to their need. The problem was that cribs which can be moved around freely, by definition, are not supporting any roof. That is why proper installation includes the cribs, cap boards and headers, which all work in concert to make sure that the cribs are tight against the roof and thereby providing support to it.

            Accordingly, the violation was undeniably established as the roof where persons traveled was not adequately supported to protect persons from hazards related to falls of the roof.

The violation having been proven, the S&S analysis continues with second element, the discrete safety hazard, the risk of a roof fall. Absent effective cribs, the roof could not provide the level of support deemed necessary by their installation. The risk of a roof fall was increased once the cribs stopped providing their support function. The notion that the cribs had been there a long time and yet there had been no roof fall establishes nothing because it is unknown how long the cribs had stopped their function of roof support. The Court takes notice that roof falls can occur suddenly and without warning. Given the Inspector’s view that there was a reasonable likelihood that an injury would result, when coupled with the absence of effective cribs, the Inspector’s viewpoint is sound and the Court makes the finding that the absence of the effective cribs did present such a reasonable likelihood and the third element of Mathies was established. Further, by their nature, it is reasonable to assume that should a roof fall occur and some roof strike a miner, lost workdays or restricted duty, and therefore a reasonably serious injury, would be the likely result.

Accordingly, the Court finds that the violation was S&S and assesses a civil penalty of $499.00 for the violation.

Docket No. KENT 2011 835

Citation No. 8352936

            On February 1, 2011, Inspector Sizemore cited Bledsoe under 30 C.F.R. § 75.202(a) on the basis of observing a “loose ended dropped down piece of sandstone roof measuring 32 inches in width by 51 inches in length by 1 inch to 6 inches in thickness [ ] in the 1^st cross cut outby the last open break in the # 2 entry on the 001 section.” In his citation, he noted, “The loose rock was pulled down with little effort.” Gov. Ex. 9. Later, the Inspector was instructed to add an additional condition he observed in the same section, this time noting there was “[u]nsupported loose ended coal measuring 6 inches in thickness by 16 ft in length by 3 ft in width [which] was observed loose ended and dropped down from the roof in the last open cross cut between the #3 and #4 entries on the 001 section.” Gov. Ex. 9, continuation sheet, Citation No. 8352936-01.

            Thus, two roof control hazards were cited on the same MMU. Mining was actively proceeding at the time the conditions were cited. Accordingly, exposure was present for all miners traveling in the cited areas, in the course of moving equipment, doing examinations, rock dusting and scooping. The twin-cited conditions were a crosscut apart from each other. For the loose-ended sandstone, Sizemore estimated that the material taken down would weigh several hundred pounds, while the unsupported loose-ended coal would weigh at least 150 pounds. Given those weight estimates, it is understandable that the Inspector concluded that one who was hit by such materials, in either instance, would be seriously injured. The Court adopts this conclusion.

            As noted, the cited provision, entitled, “Protection from falls of roof, face and ribs,” provides: “The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.” Inspector Sizemore stated that there would be foot travel in the cited area and that persons would travel in both crosscuts. He added that exposure would occur 2 to 3 times during the course of a shift and that all miners in the section were exposed to the cited hazards.

            Respondent’s witness, Mr. Oliver, principally challenged the amount of cap coal that fell, but otherwise his testimony, in the Court’s estimation, did little to contest the circumstances that were present, as presented through the Inspector. Mr. Oliver stated that he was not right with Inspector Sizemore when they found that “piece of rock.” His presence was after they had pried the rock down. Vol. 3. Tr. 57. However, he was present for the second condition found by the Inspector. This second condition involved what Oliver describes as “cap coal.” For this condition, he agreed it six inches thick by three feet in width and it was out from the rib by three feet. Vol. 3. Tr. 60.

            Clearly, the violation was established; each of the two conditions cited on the 001 section independently constituted violations of the cited provision. They separately presented a roof fall hazard and the materials came down easily in abating the problems. Inspector Sizemore determined that each condition, independently, constituted significant and substantial violations. The Court agrees. The discrete safety hazard was the risk of a roof fall. Given the ease with which the materials came down, and the exposure Sizemore identified, there was, demonstrably, a reasonable likelihood that an injury would result. Given the amount of the inadequately supported materials present in each cited condition, there can be no doubt that any injury, should one occur, would be a reasonably serious one.

            On the basis of the foregoing, the Court concludes that the standard was clearly violated, for each of the two separate and independent conditions observed, and that each was a significant and substantial violation. Given the twin conditions, albeit expressed in a single citation, the Court imposes a civil penalty of $800.00 for this violation.

Docket No. KENT 2011 1162

Citation No. 8352932

            On February 1, 2011 Inspector Sizemore cited the mine for another violation of 30 C.F.R. § 75.202(a). It will be recalled that the cited provision entitled, “Protection from falls of roof, face and ribs,” provides: “The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.”

            In this instance, the Inspector noted in the condition or practice section of his citation that “[n]ine (9) bearing plates provided for the roof bolts installed in the roof located in the 3^rd cross cut inby the portal, in the belt side cross cut, in the track entry, were not touching the roof. The draw rock had fallen out around the bolts, leaving the bearing plates loose.” Gov. Ex. 8. Citation No. 8352932.

            The Inspector found the loose plates one crosscut, or “one break” inby the from the area where he had earlier cited the mine for the loose cribs, per Citation No. 8352931. There were two areas affected by the loose bearing plates, one 7 foot by 8 foot area and another area, measuring 8 feet by 20 feet. The Inspector stated that he observed draw rock on the mine floor. When draw rock has come out, the integrity of the “beam” provided by the roof bolt is diminished. This is because the bearing plate and the roof bolt operate in tandem. One cannot install a roof bolt without a bearing plate. Additional draw rock is more likely to fall out when the bearing plate is no longer flush and some draw rock has already fallen. The Inspector estimated that additional pieces which could fall would be in the range of some 7 to 9 inches in thickness, and therefore enough to hurt someone. Inspector Sizemore stated that all miners pass through this area and that he has observed miners in the area as well. Exposure would be both from those walking through the area and those riding the “rail runner” mine transport.

            Respondent’s Mr. Oliver did not see this condition until after cribs had been built in the area of the loose plates. Vol. 3 Tr. 45. He did not dispute that there were loose plates. However, he did not agree that this was an area where people travel. Tr. 45. Oliver stated that there was no reason to be over in that crosscut. Noting that cribs were at the mouth of this crosscut, Oliver believed that the loose bearing plates must have been some 5 or 10 feet in from there. Vol. 3, Tr. 47. If one had to fix a brattice there, Oliver stated it could be fixed from the belt line side. Vol. 3 Tr. 48. However he agreed that the pressure side of the brattice is on the track side and therefore that is the side that would need good plastering. Vol. 3 Tr. 50. He maintained that one would not need to go into that crosscut to rock dust, because it is sprayed into that area.

            Oliver informed that this is an old mine which was rehabilitated. In that process they had cut height and rebolted the track entry. In doing that, Oliver stated, they removed the old bolts, cut new height and then rebolted. Yet he advised that the crosscuts had not been rebolted. Vol. 3. Tr. 53-54. They did not take those steps for the crosscuts adjacent to that track on the basis that the area “looked good” and the plates there were good at that time. Vol. 3 Tr. 55.

            Implicitly, Oliver agreed, or at least he did not challenge that there were loose bearing plates, as cited by the Inspector. Instead, the focus of his testimony was that there was no exposure to the hazard. However, he conceded that one could go into the cited area to perform rock dusting or to work on a brattice. The Court, upon consideration of the conflicting testimony as to exposure, credits the testimony of the Inspector on the issue of exposure.

            As with the other matters in this proceeding, there is no real challenge to the first two elements of the S&S Mathies analysis. The violation was present and the discrete safety hazard is the risk of a roof fall. Here, at some point, draw rock had fallen from the area around the loose bearing plates, so a roof fall of some degree had occurred. The situation had become worse once the draw rock had fallen from around the nine plates because the design of the support was no longer performing, as intended, with the plates and bolts working in concert. The unsecure plates therefore contributed to the cause and effect of the mine hazard of a further roof fall. Given the exposure, it was reasonably likely that an injury would result. Considering the nature of the hazard, roof falls, a reasonably serious injury would be the likely result if a miner were struck by draw rock. Such an injury would be likely to cause lost work days or restricted duty, and with the inherent unpredictability of the occurrence of a roof fall, a more serious injury could also occur. The size of the two areas affected, which were relatively large in the Court’s view, also plays a part in the analysis that an injury would be reasonably likely and that, should one occur, it would be reasonably serious.  

Accordingly, upon consideration of the testimony, the Court affirms the violation and the S&S finding and imposes a civil penalty of $499.00.

Docket No. KENT 2011 1162

Citation No. 8352943

            In this instance Inspector Sizemore cited Bledsoe for another violation of 30 C.F.R. § 75.202(a). It will be recalled that this provision titled “Protection from falls of roof, face and ribs,” provides that: “The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.”

            The Inspector’s citation provided that “[a] section of roof between the 32^nd and 33^rd cross cut on the return side of the #8 belt conveyor measured from 53 inches to 6 ft from the edge of the pillar to the last row of permanent supports for a distance of 23 ft.”

            Just as he did with Citation Number 8352926 Inspector Sizemore cited the Respondent for a wide area. The maximum allowable width was 48 inches and, as with the other excessive width citation, the 5 foot distance, allowing an exceedance of 12 inches over the 48 inches, is limited to five feet. Here, the wide area, running some 23 feet, far exceeded the five foot absolution from the 48 inch requirement. Gov. Ex. 10. Sizemore expressed that there would be exposure to the belt shovelers in this area and that they would need to shovel both sides of the belt.

            Respondent’s witness, Mr. Oliver, agreed that there were some wide bolts. However, it was his contention that the roof and ribs looked good. Still, he admitted there was some sloughing. Although he expressed that the condition was not plainly obvious, he conceded that it is the examiner’s responsibility to look for such problems. He also agreed that the mine examiner is supposed to note things like this, such as rib sloughing and areas that are too wide. Vol. 3 Tr. 67.

            Here, Oliver did see the condition cited and, as noted, he agreed that the rib had sloughed off and that there were also some wide bolts. Vol. 3 Tr. 63. He felt the top looked good but there was the issue with the rib sloughage. Vol. 3 Tr. 64. This condition, he advised, went for 23 feet, which is about 5 rows of bolts. Vol. 3 Tr. 64. To deal with the problem, they had to set four timbers. Vol 3 Tr 65. He conceded that when there is rib sloughage, there will be coal on the floor from that and that the belt examiner will be there every working shift to see this. Vol. 3 Tr. 68.

            The violation was established and the discrete safety hazard is the increased risk, that is, the measure of danger contributed to the risk of a roof fall, by the excessive widths. Here, far beyond the 5 foot allowance for a width to run beyond the 4 foot width called for in the plan, the excessive width continued for an additional 18 feet, with the result that the excessive width continued for 23 feet.

            The Inspector’s opinion that it was reasonably likely that an injury would result is supported by the fact that the failure to follow the plan was extensively exceeded. One must not lose sight of the fact that the plan’s requirement provides for a maximum width of 4 feet from the edge of the pillar to the last row of permanent supports. Those requirements are not arbitrary; they are mandated to provide sufficient roof support for the conditions at a given mine. It is axiomatic that the mine’s roof support was diminished by the excessive width.

            That a reasonably serious injury would result was established by the Inspector’s testimony that examiners and those required to work on the belt would be exposed to the insufficient support in that area. Further, as Inspector Sizemore noted, miners have to be able to travel on both sides of the belt and the belt lines are to be on-shifted.

            Accordingly, based on the foregoing remarks about the evidence, the Court upholds the citation, finds that the violation was S&S and imposes a civil penalty of $499.00.

Docket No. KENT 2011 1162

Citation No. 8352920

            On January 13, 2011, Inspector Sizemore cited Bledsoe for a violation of 30 C.F.R. § 75.400. That standard entitled, “Accumulation of combustible materials,” provides: “Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.”

            The Citation was detailed, with the Inspector noting four separate accumulations of combustible materials. It recorded the following accumulations: “1. Float coal dust, black in color was observed deposited on the roof, ribs, and floor along the entire length of the # 1 belt conveyor, including back into the cross cuts to the stopping lines. 2. Plastic bottles, water jugs, food wrappers, pieces of conveyor trimmings, paper boxes and other combustible garbage was observed strewn under and along the mine floor along the # 1 conveyor. 3. Loose coal measuring from 1 inch to 14 inches in thickness was observed at different locations along the #1 belt, including around and under the # 1 belt tail piece, requiring the belt to run in a compaction of loose coal and float coal dust. 4. Dried strings of ‘cloth like material’ torn from the edges of the conveyor belt were twisted in ‘fist full’ amounts around the bearing location of the rollers (top and bottom). Note: The operator took the belt out of service until all conditions could be corrected. Note: The operator is ‘Put on Notice’ if this hazard continues to be allowed to exist, this type of citation will be considered for ‘High Negligence; and Knowing and Willful assessment.” Gov. Ex 11.

            Inspector Sizemore felt that the float coal dust had been present for “quite a while.” While there was testimony from the Respondent that rock dusting was present and that shovelers were working on the items listed in the Citation, the Inspector stated that he did not observe either. Accepting that, as the Inspector stated, the float coal had been present for some time, and considering the multiple categories of combustible materials and further considering that the problems were extensive and not limited to a small area, whether some work was in progress at the time the citation was issued is not relevant to either the fact of violation, nor to the significant and substantial designation. In fact, given the Inspector’s comment in his Citation that the situation was sufficiently flagrant so as to warrant a warning that the next time he would mark such a violation as “high negligence,” it is fair to state that he was lenient in his assessment of the negligence involved here.

            Regarding the coal dust accumulations and whether there was any risk of the roller igniting those, the Inspector believed there was such a potential. He also factored the “bird’s nest” effect he observed. Tr. 288. The “bird’s nest” referred to the fraying on the edge of the belt around some of the rollers. Tr. 290-291. This fraying was present around all three rollers. The belt was running. Tr. 294.

            The Inspector stated that the float coal dust had been there “quite a while.” The extent that he observed plus his experience informed him in reaching that conclusion. Tr. 314. It would have taken more than several shifts for these problems to develop. Tr. 314.

            It is noted that the float coal dust problem was along the entire belt. Tr. 303. In contrast, the trash he found was more towards the surface. Tr. 303. The loose coal was along the entire belt. Tr. 304. So too, the “birds nest” issue was present along the entire belt. Tr. 303.

            The Court takes notice that Mr. Osborne testified about this Citation, per Gov. Ex. 11, and the two related violations, per Government Exhibits 13 and 14. Mr. Osborne is presently the mine’s general manager and he has held a number of other important positions at Bledsoe over the years. There was a conflict in the testimony concerning the amount of trash, with Mr. Osborne describing it as only enough to fill a small store plastic bag and Inspector Sizemore describing it as much more than that. The Court credits the Inspector on this conflict.

            While Mr. Osborne did see some accumulations, he contended that people were shoveling in the cited area at the “V plow” but when questioned about the presence of accumulations along the entire belt, as noted by the Inspector, Mr. Osborne could only say that he didn’t see that. Tr. 333. Thus, there was no complete denial of the full extent of the problem. Mr. Osborne also agreed that there was some “bird’s nest” present around rollers and thereby confirmed item number 4 in the Citation. Tr. 334.

            Upon consideration of the record evidence, the Court concludes that all four bases listed in the Citation for combustible material were established and that each, independently, constituted a violation of the cited provision. Thus, in truth, there were four violations of the combustible material prohibition along the # 1 belt. That there was a measure of danger contributed to by the violations is obvious; combustible material of the types noted in the citation in a coal mine is anathema to safe operation. All that is needed is an ignition source for the problem to come to fruition. For the float coal dust problem, only an ignition would be needed to create a present hazard. Tr. 307. The same is true for the other associated problems found along this belt line; only an ignition would be needed. Tr. 307. i.e. to ripen into a present problem, only an ignition would be needed to occur. Tr. 309. Certainly it cannot be disputed that there is a reasonable likelihood that the hazard to which the violations contributed would cause an injury. Any time there is a fire in a coal mine, there is a reasonable likelihood that a reasonably serious injury will result. This may be as a result of smoke inhalation, CO exposure, or worse, to those working in the mine as well as to those who would be called to deal with a fire.

            With all four elements present, the violation is S&S. The Court imposes a civil penalty of $1,203.00 for this.

Docket No. KENT 2011 1162

Citation No. 8352921

            Inspector Sizemore issued Citation No. 8352921 on January 13, 2011. In doing so, he invoked 30 C.F.R. § 75.1731(a) as being violated. That standard, entitled “Maintenance of belt conveyors and belt conveyor entries,” provides “Damaged rollers, or other damaged belt conveyor components, which pose a fire hazard must be immediately repaired or replaced. All other damaged rollers, or other damaged belt conveyor components, must be repaired or replaced.”

            The condition or Practice section of the Citation stated: “[t]hree top belt rollers, with the bearings wallowed out (resulting in the rollers turning metal to metal), were observed along the #1 belt conveyor. Note; A separate citation # 835292[0] was issued for the accumulations of combustible material along the # 1 belt conveyor providing a fuel source for this evident ignition source, and was a factor in the S&S classification of this citation. Note: The operator took the belt out of service until all conditions could be corrected.” Gov. Ex. 13.

            The Inspector did not know how long it would take for the wallowed rollers to create sufficient heat to cause an ignition. Tr. 289.

            As to this Citation, Mr. Osborne did confirm that he also heard the screeching noise of the defective rollers. Although he testified that he accompanied the Inspector on that day, upon finding the first roller problem, he thereafter scooted ahead of the Inspector, finding the other roller problems. It was Mr. Osborne’s position that the screeching rollers, with their bad bearings, were failing, but had not yet failed. Upon finding the two additional problematic rollers, Mr. Osborne decided to shut down the belt. Thus, he conceded that the problems he found were serious enough that he decided to shut down the belt. Tr. 356.

            The violation was established and was properly designated as S&S. In making this determination the Court took into account the testimony of Mr. Osborne but arrived at conclusions contrary to his view of the matter. The discrete safety hazard was a mine fire. The damaged rollers, with their defective bearings, could become hot. When coupled with the related problems identified by Inspector Sizemore in Exhibit 11 (supra) and Exhibit 14 (infra), the third element of Mathies was established. Should a mine fire develop in these circumstances a reasonably serious injury would be expected.

            A civil penalty of $634.00 is imposed for this S&S violation.

Docket No. KENT 2011 1162 

Citation No. 8352922

            In this, the last of the three citations that Inspector Sizemore viewed as appropriate to be considered together, he issued Citation No. 8352922 on January 13, 2011, citing 30 C.F.R. § 75.1731(b) this time. That standard, again entitled, “Maintenance of belt conveyors and belt conveyor entries,” provides at subsection (b) that “Conveyor belts must be properly aligned to prevent the moving belt from rubbing against the structure or components.”

            In the Condition or Practice section for this citation, the Inspector stated that “[t]he # 1 belt conveyor is not being maintained in proper alignment. The bottom belt was observed in three locations cutting into the metal structure of the belt conveyor. Note; A separate citation # 835292[0] was issued for the accumulations of combustible material along the # 1 belt conveyor providing a fuel source, for this evident, friction type ignition source, and was a factor in the S&S classification of this citation. Note: The operator took the belt out of service until all conditions could be corrected.” Gov. Ex. 14.

             In this belt misalignment issue, which the Inspector described as “cutting” into the frame, it would be more accurate to state that the Inspector actually meant “rubbing” of the belt structure. Tr. 296. It is worth noting that Mr. Osborne admitted that he “know[s] what it takes to make a belt fire. If you don’t take care of your belts, keep them in maintaining condition, they will.” Tr. 369. He added that he had no idea how long a roller would have to run without having bearings in it to start an ignition or get hot enough to start a belt fire. Tr. 369.

            Respondent used Exhibit R 5 to illustrate how the rubbing belt appeared at the time of the citation’s issuance. However, after some hesitation, Mr. Osborne admitted that the belt, as pictured in R 5, was not aligned. Tr. 351. In making this determination the Court also took into account the testimony of Mr. Osborne but arrived at conclusions contrary to his view of the matter.

            The violation was established and was properly designated as S&S. The earlier S&S analyses for the other two related violations for the # 1 belt conveyor are incorporated here.

A civil penalty of $634.00 is imposed.

Docket No. KENT 2011 1162

Citation No. 8352917

            For this citation, Inspector Sizemore cited 30 C.F.R. § 75.809, which is entitled, “Identification of circuit breakers and disconnecting switches.” It concisely provides: “Circuit breakers and disconnecting switches underground shall be marked for identification.” It is important to note that this standard also appears as a statutory provision in the Mine Act itself at 30 U.S.C. 868(j), Section 308 (j), where it provides the identical language contained in the safety standard. To state the obvious, Congress, considered this provision to be serious and grave enough to express the safety provision in the Mine Act, even though, by design of the statute, it knew that the Secretary could, and did, also express it as safety standard.

            Here, on January 11, 2011, Inspector Sizemore noted in the Condition or Practice section of his Citation that: “[n]either the receptacle or the breaker (observed on the 001 section power center) providing power to the (energized) # 9 belt drive was marked to show which equipment the receptacle or breaker controlled.” Gov. Ex. 20. The Respondent does not contend that the standard was not violated, but does challenge the S&S designation. To abate the violation, the receptacle and breaker were marked. The hazard the standard is directed at is the risk of electrocution or electrical burns. Tr. 29 Vol 2.

            Inspector Sizemore, who is a “certified electrician,” but not an electrical inspector, stated in his testimony that the # 9 belt was plugged into the receptacle and that the belt was energized at the time he examined the power center. He did not know whether the belt was actually running at that moment. Being under “load” it was drawing power. While the “cat head,” (technically identified as a “cable coupler” Vol 2. Tr. 103) which is essentially a very large plug, was labeled, neither the receptacle nor the breaker were labeled to show the equipment it controlled. Absent such labeling, in the event of an emergency, which by definition is a time when action must be taken swiftly, a miner would not be able to identify how to deenergize the  # 9 belt. Even in a non-emergency, knowing which device is being unplugged would seem to be a fundamental practice. Congress thought so too. Many pieces of equipment are typically plugged into the 001 Section power center: the joy miner, front bridge, middle bridge, back carrier, and two bolter machines. Sizemore anticipated that electrocution or burns could result from the items not being marked. Succinctly, the Inspector stated the hazard was that “in the event of an emergency [ ] a miner wouldn’t be able to readily identify how to de-energize the No. 9 belt.” Tr. 17, Vol. 2.

            The Respondent’s defenses involved two aspects. One was that the Cat Head itself was marked. The other was that one can hit the red button and shut down all the power at the power center. Tr. 36-38. Vol 2. Neither of these, in the Court’s view, affect the S&S designation. Respondent asserted that, in pulling out a Cat Head, by its design, when one pulls it out from the receptacle, even if one has flipped the wrong breaker switch, the ground wire monitor becomes disengaged first and therefore no danger can occur. This hypothetical assumed that the belt drive has first been shut off and would not have a load on it.

            The Inspector did not agree with the hypothetical’s assumption because one must always knock the breaker first. Tr.41 Vol. 2. Counsel and Inspector Sizemore parried over when there is a load present. All agreed that if the equipment is operating, then it is under load. If the breaker has been “knocked,” that is, switched off, it was the Inspector’s view that there is still power on the cable. He believed that if one knocks the breaker where the power connects to the equipment, there is still power going to that breaker. Tr. 43. Vol 2. The Respondent’s contention was that when one pulls out a cable it has to unlatch first and that action breaks the ground monitor. The Inspector agreed that the power is then off at the cable but that power remains on the power center. However, the Inspector added that if he saw someone do that, he would cite them for improperly de-energizing equipment. Tr. 44 Vol. 2.

            The Court then inquired why, assuming one followed the steps outlined by the Respondent’s Counsel, the matter would still be S&S. The Inspector responded that one is to knock the breaker before doing anything with the cat head. He added that anyone is allowed to knock a breaker in an emergency; it is not limited to electricians. Tr. 47. Vol 2. Thus, in an emergency, one is running up and trying to de-energize a piece of equipment and take the power off it. In that situation it is critical to be able to recognize the breaker that controls the cat head for the particular piece of equipment. Tr. 48. Vol. 2. One needs to be able to find the correct breaker immediately and knock the power for the piece of equipment. Hitting the “E Stop” as Respondents suggested is problematic too because other equipment may be under load, or operating or energized; in such circumstances, knocking the power runs the risk of an arc or fire because the equipment is running. Tr. 50 Vol 2. MSHA electrical Inspector Lewis (see infra) agreed with this view that the E stop is not without risk. Vol. 2, Tr. 72. He explained that it is similar to pulling a plug out from an operating home appliance. Tr. 51. Vol. 2. While that arc or spark would occur inside the box, the Inspector’s point was that one should not be hitting the E Stop if anything is under load. Tr. 54. Vol. 2. As Inspector Sizemore clarified, “the law intends for the person to be able to look at that breaker and know exactly which one to knock and also to look at the receptacle and make sure that its plugged into the right one, and for the cat head to be marked to make sure that it’s plugged into the right one.” Tr. 53. Vol 2.

            As just alluded to, MSHA Inspector Randall Lewis also testified about this citation. Inspector Lewis is an electrical supervisor and well-qualified by virtue of education and experience to testify about such matters. He has been a certified electrician since 1980. Gov. Ex. 26, Inspector Lewis’ resume. Inspector Lewis made it clear that he would have a concern where a power center did not have the receptacle and breaker marked, even if the cat head was marked. Tr. 63. Vol. 2. He echoed the concern expressed by Inspector Sizemore that a person that wanted to knock the power to the belt drive would not necessarily know what was the proper breaker to knock to remove the power to that system. Tr. 63 Vol 2. It is not simply about emergencies that this concern arises. Any time one wants to do electrical work, such as work on the belt drive, one needs to remove the power before starting such work. Tr. 63 Vol 2. Without labeling, one will not be sure which breaker to pull. If one guesses incorrectly, there is the risk of an electrical arc occurring upon pulling a cat head out, if the receptacle is still energized. Tr. 64. Vol 2. Inspector Lewis noted that there have been instances when an individual has done just that, pulled out a cat head under load and receiving burns. Tr. 64. Vol 2.

            Pulling a cat head out when it is under load is a very hazardous thing because the arc can be injurious putting one at risk for second to third degree burns. Tr. 68-69. Vol. 2. Inspector Lewis knows of such instances when miners have received burns from such an event. Vol. 2 Tr. 69. He agreed with the Inspector’s view that it was “reasonably likely” that an accident could occur. Vol 2, Tr. 69. Though challenged that he did not say it was likely to get an arc when pulling out a Cat head, Lewis clarified that he meant it was only unlikely if it was not under a load. Vol. 2 Tr. 74.

            As noted, the Respondent contended that the locking feature of the Cat head makes it unlikely that an arc would occur because, in unlocking it, that breaks the monitor circuit. Inspector Lewis agreed with that only if it is not under load. Vol 2. Tr. 76-77.

            The Respondent called Lawrence Lawson on this matter. Lawson is the mine’s chief electrician. He testified that if one unplugs the Cat Head when it is under load, the pilot ground check will be the first part of that plug to disconnect. Thus, he contended that, because of this way that a Cat Head disconnects, there will be no arc. Vol. 2 Tr. 98-99.

            Lawson admitted that the power box for the receptacle was only labeled “spare.” Tr. 102.

Further, he stated that if one were to shut off the wrong breaker, and then went to unplug the Cat Head, the ground check would break and cause the breaker to knock. However, in doing that, there would be an arc inside of that breaker. Tr. 111. He maintained this is designed for such an arc and that particular arc is much less powerful than an arc occurring in the power center.

            To abate the Citation, Lawson advised, a label was placed on the receptacle, stating “number 9 drive.” Tr. 117. He also stated that this power center had seven to eight similar receptacles on it, so one would see that number of similar items along with the receptacle that was not labeled. Tr. 118.

            Lawson also advised that breakers will trip in the mine on a daily basis. When that happens, no one records that a breaker has tripped. He added that whenever a breaker trips, there will be an arc, though contained, within such breaker. Tr. 119. This arcing is not without consequence however, as such arcing affects the life of that breaker. Manufacturers of such breakers guarantee them for only one break. Tr. 120. He also agreed that there are lots of things that can wrong with breakers. Tr. 123. Though he felt it was unlikely to happen, he did agree that if one pulled out a plug and the breaker was faulty, there would be an arc. Tr. 123. Accordingly, while there was a conflict between Inspector Lewis and Mr. Lawson, with the latter asserting that there would only be arcing if one had a defective breaker, it developed that Inspector Lewis did agree that one would need a defective breaker for this to occur. Still, it is sobering to realize that a breaker is only guaranteed for one trip. Tr. 129.

            As mentioned, Lawson believed there was no danger because in disconnecting a cat head the last prong to disengage from it is the ground load, that is, the ground pin. Therefore one is protected by a ground. He maintained that with a ground check system it is impossible to have arcing. Vol. 2. Tr. 110.

            However, Lawson stated that if he wanted to disengage the power from the cat head, he would first knock the breaker right above it. Vol 2 Tr. 116-117. But that is exactly the problem, as neither was labeled. In fact, Mr. Lawson’s own testimony demonstrates the problem. In describing the receptacles and breakers on the power box, he first identified where the receptacle for the continuous miner would be located. Then, he stopped, stating “Let me back up. I told you wrong. Directly to the right of this was the carrier circuit, which is another receptacle identical to this one.” Vol. 2. Tr. 116-117 (emphasis added). Thus, even as Mr. Lawson tried to describe the various hookups on the power box at the hearing, he got mixed up about identifying the correct receptacle. Typically, Lawson informed, there will be “seven to eight” such receptacles on the power center. Vol 2. Tr. 128.

            Further underscoring the obvious importance of labeling circuits, Mr. Lawson noted next that the adjacent receptacle was for the carrier and, in his words, “it was correctly labeled.” Vol. 2 Tr. 118 (emphasis added). Another problem for the Respondent is that it admitted if one wanted, for example, to cut off the cat head in issue here, one would first “knock the breaker.” Vol. 2. Tr. 121. However, that would be the breaker that was not labeled. If one knocked the wrong breaker, as stated before, it was Bledsoe’s fall back position that the ground check lug would break first as one pulled out the cat head and that would cause the breaker to knock. Vol. 2, Tr. 122. He admitted that there will be arcing in such a circumstance but that it will be contained inside of the breaker which is inside the power center. Vol. 2. Tr. 123-124, 129-130.

            Lawson admitted that a breaker is guaranteed to work properly by the manufacturer for only one break. Vol. 2, Tr. 132. Nowadays, he advised, breakers simply “will not stand up to the industry. They just go bad . . .” Vol. 2, Tr. 133. Accordingly, the mine ends up changing out breakers on a weekly, if not daily, basis. Vol. 2, Tr. 131. He then conceded that if one had such a faulty breaker and one then pulled out a cat head under load, one “could possibly have an arc if you pulled one out of a faulty breaker under load.” Vol. 2. Tr. 135.

            While there was some conflict initially about the risk of arcing occurring, ultimately it became clear to the Court that arcing could in fact occur if the breaker was defective. Breakers, it turns out, are guaranteed to work once. The mine conceded that it’s practice is to replace its breakers after one such use because of their lack of repetitive reliability. That is, the mine conceded they can depend on them only once and then must be replaced. Although there was much stated about the presence of the “E stop” button, that is not the subject of the standard. While one of the Respondent’s questions assumed that the belt drive would first have been shut down, the standard does not limit itself to such situations and the concern expressed by MSHA at the hearing was over what could occur in the context of an emergency. Even then, Inspector Sizemore stated, one would still need to pull (i.e. disconnect) the breaker first and that it is a rule to disconnect the breaker before pulling a cat head. Tr. 33. The essential problem, Inspector Sizemore related, in terms of his S&S marking, was that one has to knock, that is disconnect the breaker, before one does anything like removing a cat head. As it may be anyone who arrives at the power center in the event of an emergency to knock the breaker, that is, there is no requirement that one must be an electrician to knock the breaker, a miner may not know which breaker to knock. Tr. 39. Thus, one will not be able to know which breaker controls the cat head for a particular piece of equipment. Sizemore stated that this provision was written in blood, and that because of a history of injuries related to the lack of being able to identify the correct piece of equipment, the law requires that one arriving at the power center needs to be able to look at the breaker and know exactly which one to knock and also to be able to look at the receptacle and know that it is the correct one for the cat head. Tr. 44.

            A fundamental problem with the Respondent’s argument that the violation is not S&S is that it relies upon other problems not arising. For example, the Respondent has argued that the way the Cat Head is connected to the receptacle makes it unlikely, as one removes it, that an arc would occur. This ignores the lack of identification that is critical and basic; as Congress and MSHA have stated in the Act and the safety standards, one has to know what one is disconnecting from the power center.

            Another critical aspect is that the breaker has to be effectively knocked. Identification of correct breaker would seem to be essential to that. While there was another suggestion that if one is wearing electrical gloves, something that could certainly not be assured each time a Cat Head were to be removed, such gloves would offer absolute protection from shock. Inspector Lewis informed otherwise, advising that when an arc occurs, one is putting molten metal in the air. Molten metal is about 20 times the temperature it takes to melt steel. One near such an arc can inhale this. One can also get flash burns from the arc on the face and areas of arms not covered by gloves. Vol. 2 Tr. 81-82. As to the E Stop, an arc will occur if that is hit and it is under load. Although it is not likely that the arc will go outside of the power box, it can occur. Vol. 2 Tr. 49-50.

            The Court concludes that the violation, which was virtually conceded, was S&S. The discrete safety hazard, effectively identified by Congress through its inclusion of the provision, is an electrical injury. In answering the critical question of whether the lack of identification on underground circuit breakers or disconnecting switches contributes to the cause and effect of a mine hazard, there is no doubt that it does and the testimony of Inspector Lewis supports that conclusion. There was also a reasonable likelihood that any such injury would be a reasonably serious one, a conclusion also supported by the testimony from Inspector Lewis informing about such injuries.

            Based on the foregoing, the Court finds that the violation was S&S and imposes a civil penalty in the sum of $499.00.

Docket No. KENT 2011 1162

Citation No. 8352918.  

            In this instance, Inspector Sizemore cited 30 C.F.R. § 75.514, which is entitled “Electrical connections or splices; suitability,” and provides: “All electrical connections or splices in conductors shall be mechanically and electrically efficient, and suitable connectors shall be used. All electrical connections or splices in insulated wire shall be reinsulated at least to the same degree of protection as the remainder of the wire.”

            The Inspector’s statement in the Condition or Practice section of the Citation related that “[t]he outer jacket of a splice observed in the 480 volt cable, providing power to the Co # 2 Fletcher [roof] bolter, observed in service on the 001 section, was torn into exposing the insulated leads that had only black electrical tape providing insulation.” Gov. Ex. 22. To abate the condition, the splice was reinsulated. This correction was accomplished in 11 minutes.

            The “gap,” that is to say, the area where the insulated leads were only covered by electrical tape, was found by the Inspector found to be only 1/8th of an inch. It was found near the take-up reel end of the cable, about 25 feet from that terminus and the testimony revealed that it was likely that the splice was intentionally created with the intention that it would give way there, if the cable were pulled beyond its length. The area where the gap was located on the cable was such that it would be off the reel nearly every time the bolter is in use. The testimony informed that if a cable breaks at the reel itself, such a repair is time consuming. On the other hand if the cable were to break at the point of the temporary splice, it could be quickly fixed. However, the fact that this was apparently intentional does not mean that it was an appropriate or safe thing to do. It was not, as such a connection is not “suitable.” Clearly the cable was not reinsulated to at least the same degree of protection as the remainder of the wire.

            Sizemore, elaborating upon his observations, recalled that the splice was torn loose and that there was coal dust in the area where it had torn loose and the insulated leads were present. Tr. 132. In concluding that it was S&S, he expressed that, once the outer insulation is gone,

a miner is then exposed to the insulated leads, but those insulated leads are not intended to be exposed, nor are they to be handled. Tr. 134. The problem is that such insulated leads provide insufficient protection as they are not designed to withstand the rigors of mining. Tr. 133. Cables are not treated gently in the mining process; they are pulled around ribs, strewn down entries and reeled back up quickly. In short, mining is rough on cables. Tr. 135. Though not exposed to as much stress where a tear is close to the reel end, the cable would still be exposed to some of the rigors of mining. Tr. 136. If a miner were to come into contact with a bare lead, and remembering that only insulation remained on the leads, the 480 volt cable would cause burns or even electrocution. Tr. 136. However, here, while not compliant with the cited standard, the gap did have insulated leads intact and there was electrical tape also wrapped around those insulated leads. Tr. 136.

            Although there is no question that the standard was violated, the Court does not believe that the circumstances warranted the S&S designation. Inspector Sizemore advised that he may have had to bend the cable to find the break in the splice. There was testimony that, in the normal course of events, the cable would not be bent in the fashion such as the Inspector did here. While the discrete hazard is the risk of a shock or electrocution and clearly and if one were to contact the bare wire, a reasonably serious injury would result, the evidence did not establish a reasonable likelihood that an injury would result under continued normal mining operations. Given the small gap, and that, while insufficient, the leads were covered by electrical tape and further that the leads themselves still had insulation around them, the third element was not established.

            Accordingly, the Court finds that, the third Mathies element not having been established on this record, the violation was not S&S.

Upon consideration of all the penalty factors, although the government sought a penalty of $450.00, the Court imposes a penalty of $250.00.

Docket No. KENT 2011 1162

Citation No. 8352919.

            In this instance Inspector Sizemore cited 30 C.F.R. § 75.517. That provision, which is also a statutory provision, is entitled “Power wires and cables; insulation and protection,” and it provides that: “Power wires and cables, except trolley wires, trolley feeder wires, and bare signal wires, shall be insulated adequately and fully protected.”

            The Inspector stated in the Condition or Practice section of the Citation that: “[t]wo areas in the 480 volt cable providing power to the co # 1 Fletcher Roof Bolter observed in use on the 001 section were not reinsulated adequately or fully protected. One area of the cable [on] the outer jacket had been torn away leaving an approx. 6 inch area of exposed insulated leads with only [a] thin layer of electrical tape used to reinsulate. Another area of the cable had been cut exposing [ ] an insulated lead.” Gov. Ex. 23. The areas were not close to the reel end, nor were they right up to the bolter, but rather between those two extremes. Tr. 25. Vol. 2. (See also, Gov. Ex. 21, Inspector Sizemore’s notes, at page 10.) Thirteen minutes after the condition was cited, it had been abated. It appeared to the Inspector as if one had cut a gap out of the cable. While electrical tape had been wound around it, that too had been torn away. The second cut was about 50 feet away from the other cut. In that situation, there was a nick in the cable about ½ of an inch and one could see the insulated inner leads there.

            MSHA’s Inspector Lewis and Bledsoe’s Mr. Lawson also testified about this citation. Mr. Lawson agreed that there were two areas that were cut, although he maintained that one couldn’t see the leads. For one he agreed there was a “flap” that was some 6 inches long. If one pulled back the flap, one could visualize the insulated leads, but Lawson did state that they were intact. Lawson also conceded that the repairs were not proper in that tape was only used, instead of the proper the correction through the use of a “cable wrap.” A cable wrap, as demonstrated through demonstrative evidence at the hearing, is far more substantial than electric tape.

            Because the Court finds that the third element of Mathies was not established by the Secretary, the S&S finding of the Inspector cannot be sustained. However, given the fact that there were two problematic areas along the same cable and that the mine operator was aware of this problem as evidenced by the temporary and inadequate repairs to the cable, the negligence of the operator must be deemed to be more than moderate. Mr. Lawson admitted that the repairs were not done correctly.

            When considered with the other statutory factors, the Court imposes a civil penalty of $600.00 for this violation.

Docket No. KENT 2011 835

Citation No. 8352934.

            For this Citation, Inspector Sizemore again invoked 30 C.F.R. § 75.517, applying to power wires and cables and its requirement for insulation and protection. As just noted, it provides that: "Power wires and cables, except trolley wires, trolley feeder wires, and bare signal wires, shall be insulated adequately and fully protected." Here, the Inspector recorded in the Condition or Practice section of the Citation that: “[t]he insulation was torn loose exposing bare copper wires, on the cable providing power to the Twin Head Fletcher Roof Bolter observed bolting roof on the 001 section.” Gov. Ex. 24. The roof bolter was in use at the time he observed the bare wire.

            Inspector Sizemore stated that the condition was reasonably likely to cause a fatality because of the exposed copper wires. Vol. 2. Tr. 269. He expressed that it would not matter if the bare wire was a ground or phase wire because the wire “will become energized in the event of a fault, or in the insulation of the inner leads, that’s what it’s for, is to pick up current.” Vol. 2. Tr. 269-270. Thus, exposure of the bare copper wires inside of a cable is enough. As the cable is handled by miners on a daily basis, there would be exposure. Vol. 2. Tr. 270. The electric cable was easy to see; the Inspector saw the problem immediately. Vol. 2. Tr. 273. Sizemore did point out that his notes reflect that he saw bare copper wires and therefore more than one bare copper wire was visualized by him. Vol. 2. Tr. 275-276. Gov. Ex. 7 at page 10.

            When compared with the other electrical wire related violations in this proceeding, this admitted violation is of a different order, because the wiring had deteriorated to the next, and final level, as bare wire was exposed. Thus, the last insulation barrier for the electric wires was gone.

            This violation is clearly S&S. Obviously, the discrete safety hazard is the risk of shock, including electrocution. Either event would result in a serious injury, with death being one of the possible outcomes. With no barrier over the bare electric wire, the only other ingredient would be contact by a miner or some conduit of contact with the wire and then to a miner. The contribution of the absence of the insulation over the wire is plain.

            The Court assesses a civil penalty of $1,657.00 for this serious violation.

Docket No. KENT 2011 1162

Citation No. 8352939.

            Again, citing 30 C.F.R. § 75.517, ), Inspector Sizemore noted in the Condition or Practice section of this Citation that “[a] splice provided in the 995 volt cable providing power to the continuous miner on the 001 section was not fully protected or insulated. The splice had pulled apart exposing the insulated leads.” Fifteen minutes after the citation was issued the cable was repaired. Gov. Ex. 25.

            Some distinctions from the other like violations are noted. Here, the cut was on a section of the cable that was inby the last open crosscut, meaning that it was relatively close to the continuous miner. However, here a splice was present, not simply electrical tape, but it had pulled apart. There was testimony that this splice or “boot” had slipped off and therefore there was no intentional disregard of the standard’s requirements. So too, while not a substitute for compliance, the leads were insulated. No bare wire was exposed.

            Mr. Oliver testified about this matter. He was with Inspector Sizemore at the time that citation was issued. He stated that there was a splice on that cable but that the boot had slipped off a little and one could see the shielded leads of the cable. Vol. 3 Tr. 97-103. He did agree that the matter needed to be attended to right away. Vol. 3. Tr. 105.

            Upon consideration of all the evidence, the Secretary failed to establish the third Mathies element. Therefore, the violation was not S&S. A civil penalty of $200.00 is imposed.

Docket No. KENT 2011 835

Citation No. 8352924.

            On January 20, 2011, Inspector Sizemore cited Bledsoe for a violation of 30 C.F.R. § 75.400. As noted supra, that section deals with the accumulation of combustible materials, and requires that coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.

            In this instance, the Citation, in the Condition or Practice section stated there were “[a]ccumulations of combustible material including; 1. Float coal dust, black in color was observed deposited on the roof, ribs, and floor, was observed in an area beginning at the end of the track and extending three cross cuts outby. 2. Empty paper boxes and rock dust bags, empty open ended oil cans, discarded wooden pallets, and other combustible garbage was observed deposited in an area beginning at the end of the track and extending two cross cuts up the primary escapeway toward 001 section and extending three cross cuts outby the end of the track.” Gov. Ex. 15.

            Inspector Sizemore stated that the area he cited was where the mine would load and unload supplies and that the entire section would travel through the area. Vol.2, Tr. 305-306. The affected area began at the end of the track and extended three crosscuts outby. Tr. 307. The amount of garbage he observed was estimated by him to be “knee high or better.” Tr. 308. Thus, these were accumulations and they were of combustible material. This presented a danger of fire. Electrical cables, for example, are in that area. Tr. 308. Damage to those cables and a spark from that, would be enough to create the hazard. Tr. 309. Smoke inhalation or burns would be the expected result. Tr. 310. The materials were found at the end of the track to the 001 section. Tr. 311. The Inspector stated that he did not view all such accumulations as S&S. Tr. 313. His notes related to this Citation are in Ex. 4 at page 5. There, he wrote: “[the area has] a diesel mantrip, rail runners and other equipment observed in use in the area, electric cables observed in area and the garbage and float coal dust and the various ignition sources.” Tr. 314. Sizemore acknowledged that he did not find anything awry with the condition of the mantrip or the rail runner or with any other equipment. Tr. 316.  

            Although Respondent’s Counsel challenged the Inspector’s view of whether it was reasonably likely that a cable would become damaged, the Court believes this is not the proper S&S inquiry. First, it is noted that the Inspector believed “that the cable [could become] damaged, because you had equipment operating in that area, you had - - that’s where your scoop is operating at that loads supplies on and off the width, and you have your diesel mantrip, your rail runner, and you have all that equipment in there, so it could reasonably likely be damaged.” Tr. 318-319.

            In the Court’s view, apart from whether the cable would become damaged, the real focus should be upon the conditions cited. The hazard from the accumulation of combustible material is that such material could ignite. Having that material present provides an essential ingredient for the matter to ripen into a full blown problem, needing only an ignition source. Such ignition sources were identified by the Inspector. By the Respondent’s attempt to add a further element, that is, that the cable or some other piece of equipment needs to be found to be defective, that adds an event which is not needed for this S&S determination. Such an approach effectively would negate the presence of the combustible material itself and, under such an approach, if followed to its logical conclusion, even a defective cable would not be sufficient, unless one could show that the defective cable could then ignite the combustibles. But the whole idea of an S&S finding is to arrest matters before they reach such a critical state. That type of approach essentially confuses imminent danger situations from findings where a violation moves matters, in a meaningful way, towards the development of a hazard’s presence. By focusing on other matters, and not the violation and the role that violation plays in contributing to the cause and effect of a mine health or safety hazard, it muddies the S&S analysis.

            The float coal dust and various combustible garbage observed by the Inspector had accumulated in the active workings. This violated the standard and such material created a fire hazard. Obviously, such conditions contributed to the cause and effect of the hazard. As this was in an active area, by the nature of the equipment used there, that equipment’s operation presented a source for an ignition of the combustibles. This meets the 3^rd Mathies element as there was a reasonable likelihood of an injury would result. Last, should such an ignition occur, reasonably serious injuries could be expected to result.

The violation and the S&S characteristic having been established, the Court assesses a civil penalty of $1,203.00.  

Docket No. KENT 2011 1162

Citation No. 8352940.  

            On February 1, 2011, Inspector Sizemore issued this Citation, stating in the Condition or Practice section of that Citation that: “[l]oose coal measuring from 1 inch to 6 inches in depth was observed deposited along the mine floor on the track side of the # 8 belt conveyor, and into the cross cuts on both sides along the entire length of the # 8 conveyor. On February 8, 2011, the Inspector issued a “Subsequent Action 1a Continuation,” extending the abatement time to February 14, 2011. That subsequent action was provided as the Inspector stated that “the operator will require additional time to complete the clean up operations along the # 8 belt conveyor.” The # 8 belt conveyor was cleaned and dusted, with the citation being terminated on February 28, 2011. GX 16 and GX 7, page 26. Vol 2. Tr. 323.

            This is the same # 8 conveyor cited by the Inspector in an earlier-discussed citation but it involved a different day. Sizemore stated that the accumulations were “black in color and . . . spread out over the mine floor.” Tr. 325. He measured the depths recorded in his citation. At least some amount of accumulation was present everywhere, with the 6 inch depth representing the maximum amount he found. Tr. 326. He determined that the accumulations had been there for “quite a while.” Tr. 326. The accumulations were on the track side of the belt and the belt examiner and those required to work on the belt would be on that side. A belt examiner would travel this area once each working shift.

            Viewing this, the Inspector “foresaw a mine fire because we had the accumulations of loose coal, and we also had another citation along this belt line for the bottom belt . . . [and] another citation that was issued for the belt running out of line and cutting [i.e. rubbing] into the metal structure, providing an ignition source.” Vol 2. Tr. 327. Sizemore believed these conditions had existed “[a]t least several shifts.” Vol 2 Tr. 327. In connection with these findings, the Inspector checked the belt inspection books. Gov. Ex. 19, belt examiner records for January 29 and 30, 2011. That report notes the mine adjusted a couple of the bottom rollers and that the belt was tipping stand a little and pulled loose rib . .. at break 24 and working on structure . . . [with] zero percent CH4.” Gov. Ex. 19. Similar information appeared for January 30^th with the report noting “belt pulled loose rock at break 30, adjusted roller at break 17, belt rubbing stand, working on structure, 0 percent CH4.” Vol 2 Tr. 330.     

                              

            Mr. Oliver also testified on this matter and the related matter of Gov. Exhibit 17. Regarding the matter described in Exhibit 16, the loose coal ranging from one to six inches in depth, along the belt line, he stated that the belt was clean underneath it and well rock dusted and that they had cleaned under the belt with a “rake,” which is a low track with a blade on it. Vol. 3 Tr. 73. However, he conceded that the rake can’t reach all the way under and that there was loose coal on the rib, though nothing around the rollers. He did not agree that the condition continued along the entire length of the belt. Vol. 3 Tr. 73. The “worst part” of it, he stated, was “the upper end” of the belt. Though he agreed that this needed to be cleaned up, he added that it was up against the rib. This material was on the narrow, that is, the non-walkway side. Then shown R’s Ex. R 4, a photograph, Oliver used this to show that the belt was clean underneath, that there was no coal around rollers and that it was rock dusted. However, when asked if he knew when that photo was taken, he answered, “No, not exactly.” Vol 3 Tr. 75. Oliver was then shown Respondent’s Exhibit R 9, another photo of the # 8 belt line. Here too, Mr. Oliver used the photo to show that there was only a small amount of accumulations on the mine floor and that the area was well rock dusted. However, he conceded that they did have to clean up the accumulations, including those which were on the narrow side.

            Oliver agreed that the rake device can only reach “so far” and then one must use a shovel to complete the job. Further, he admitted that shoveling should have been done and that such coal needs to be cleaned up. Vol. 3 Tr. 82-83. He also conceded that this problem “had been there a while, yes.” Vol. 3 Tr. 84. While he stated that there was some rock dusting on top of the accumulations, he acknowledged that new coal was evident on top of that rock dusting, as noted by the little black dots in one of the Respondent’s photographs. However, Oliver did not consider that to be “accumulations,” as they were not a “pile of coal.” Still, he then agreed that even an inch of such coal is an “accumulation.” Vol 3 Tr. 85. He also agreed that the belt examiner should be looking for such things and looking on both sides of the belt for that.

            He also admitted that, as to the belt rubbing which was cited in the related Citation, noted pre Exhibit 17, that one doesn’t want things to get hot from such rubbing and that, when rubbing is occurring, things can get hot. Vol. 3 Tr. 87. Referred to Gov Ex 19, the belt examiner’s book, for January 29^th, for the # 8 belt, he agreed that a problem with that belt had been recorded as the belt was tipping (i.e. rubbing) the stand, requiring some rollers which needed to be adjusted. Vol. 3 Tr. 89.

            The violation was established. The Court finds that the Inspector’s Citation accurately described the conditions which existed. The hazard is the risk of mine fire. Certainly, coal accumulations of this order contributes in a significant and substantial manner to that discrete hazard, creating a reasonable likelihood that an injury will result. Were a fire to develop, there is a reasonable likelihood that those exposed to the problem would sustain reasonably serious injuries of at least lost workdays or restricted duty. 

This violation was S&S and is assessed at $1,026.00

Docket No. KENT 2011 1162

Citation No. 8352941.

            On February 1, 2011, Inspector Sizemore also issued another Citation pertaining to the # 8 conveyor, stating that it was “not being maintained in proper alignment. The bottom belt was observed cutting into the metal structure of the belt conveyor in several locations. Note; a separate citation # 8352940 was issued for the accumulations of combustible material along the [# 8 conveyor] providing a fuel source for this evident, friction type ignition source, and was a factor in the S&S classification of this citation.” Gov. Ex. 17. Upon the belt being aligned, the citation was terminated.

            The cited standard, 30 CFR § 75.1731 is entitled, “Maintenance of belt conveyors and belt conveyor entries.” The Inspector cited subsection (b) of that provision, which provides, “Conveyor belts must be properly aligned to prevent the moving belt from rubbing against the structure or components.”

            The Inspector saw the belt rubbing into the metal structure. As distinct from his other citation wherein he referred to cutting, on this occasion Inspector Sizemore did literally mean that the belt was cutting, not simply rubbing, into the bottom structure. He observed the belt running at a high rate of speed. Vol 2. Tr. 334. For both Exhibits 16 and 17, Inspector Sizemore identified the same hazard – the risk of a fire – as he noted the fuel source, the combustible material, the loose coal and the ignition source of the belt cutting into the stand. Vol. 2. Tr. 335. His concern was an initial ignition from the belt rubbing against the stand and from that the concern that some of that material could drop off the structure onto the floor, with the risk that the coal could be set on fire. Vol. 2. Tr. 336.

            Inspector Sizemore affirmed that the violations he found, as reflected in Gov Ex. 16 and 17 were made worse because they existed together. Vol. 2, Tr. 346. That is, it would be improper to consider the two violations in isolation because they are related. One dealt with loose coal and the other with alignment but together they made each situation worse. Vol. 2. Tr. 346. By omitting problems in the books, the work force addressing the problems has inadequate information. The books alert them to things that need attention. It is that failure to so note problems that contributed to the cause and effect of a mine hazard. Vol 2 Tr. 348.

            On cross-examination, he reiterated that the concern was the belt rubbing the structure. He agreed that his concern was a heated up belt structure and the risk of hot pieces falling into the accumulations, which accumulations he observed as present. Vol. 2. Tr. 359. He added that as the belt was cutting into the stand, that wears off the fire resistance and creates a source of heat. Vol. 2. Tr. 360. While the Inspector stated that one scenario, which he considered to be reasonably likely, would be a belt stand heating up from the belt rubbing which could then come down and come in contact with the accumulations. He added that there is combustible material on the stands themselves. One example is float coal dust. Vol. 2 Tr. 363-365. The Inspector agreed that he wrote this violation as S&S because of it being an ignition source for the accumulations that he saw. Vol. 2 Tr. 367.

            Mr. Oliver also testified about this matter. He acknowledged seeing the belt rubbing the stand, admitting that this was present in two locations. Vol. 3 Tr. 80. He then shut down the belt, made adjustments and restarted it. The belt was not hot. This belt is also wet, as water is used to keep the float coal dust down. Vol. 3 Tr. 81. He saw no indication of any belt fraying.

            The violation was established and was S&S. The hazard, plainly, is the risk of a mine fire. It is obvious that such friction along the belt presented a measure of danger to safety, contributing to the cause and effect of that hazard. A reasonable likelihood that an injury would result was established. As noted, this violation must be considered along with Citation No. 8352941. However, the violation’s S&S quality was present even apart from the aggravating conditions established in that other citation. Friction along a belt carrying coal presents an inherently dangerous recipe, apart from the other fuel sources identified by the Inspector.

With any mine fire which could result from an ignition, there is a reasonable likelihood that a reasonably serious injury would be a consequence.

            Accordingly, the violation and its S&S nature having been established, a civil penalty of $634.00 is assessed.

Docket No. KENT 2011 1162

Citation No. 8352945.

            On February 1, 2011, Inspector Sizemore also issued a Citation for a violation of 30 C.F.R. § 75.362(b). Entitled, “On-shift examination,” the provision cited at that time provided: “(b) During each shift that coal is produced, a certified person shall examine for hazardous conditions along each belt conveyor haulageway where a belt conveyor is operated. This examination may be conducted at the same time as the preshift examination of belt conveyors and belt conveyor haulageways, if the examination is conducted within 3 hours before the oncoming shift.”

            This citation is related to Citation No. 8352941, Gov. Ex. 17, in that, after finding the conditions identified for that Citation, Inspector Sizemore examined the belt book. This included the relevant on-shift reports. They recorded problems with the bottom belt; that it was rubbing. This is the same condition that the Inspector cited in this citation, Citation No. 8352945. The basis for the Inspector’s citation was that the on-shift didn’t note the loose coal. Thus, only part of the problems he found were listed in the on-shift. One is required to note accumulations of combustible material in the books. Vol 2. Tr. 340-342. In marking it as S&S, the Inspector was concerned about the risk of a fire, with the combustible material and the belt running out of alignment.

            On cross-examination, Inspector Sizemore stated that the onshift exam for the 31^st was insufficient. Vol 2. Tr. 369. In this regard, he cited section 75.362(b). Counsel for the Respondent then had the Inspector agree that a certified person did perform such an exam for the # 8 belt. Vol. 2. Tr. 370. The Inspector paused after his initial agreement, adding that the problem was the failure to record all the problems that should have been noted. Vol. 2. Tr. 372. At that point, the Court stepped in, noting that the case law is clear that the standard requires that an adequate exam be performed. The Court noted that any other construction would produce ludicrous results, as a mine could pick a sightless person and assign that individual to perform the examination for hazardous conditions along a belt line. Vol. 2. Tr. 373. Counsel for the Respondent then suggested that a different standard is to be cited for recording of hazards: section 75.363. The Court then noted that the Secretary can also move to amend the standard cited as section 75.363, should they elect to do so. Vol. 2. Tr. 375. The government then moved to amend the violation to cite section 75.363. Vol 2 Tr. 379.

            For this kerfuffle, the Court finds that both 75.362(b) and 75.363 apply to the situation recorded by Inspector Sizemore for this Citation. The former applies on the basis of the reasoning articulated by the Court at the hearing. Section 75.363, while it places more emphasis on the duty to record hazards found by expressly requiring a record be made of them, is an alternative source to address the implicit requirement of 75.362(b). Accordingly, while both could be utilized, the Court accepts the Secretary’s motion to amend the standard violated.

            Regarding the Inspector’s citing the rubbing of the stands for January 31^st, Sizemore agreed that this rubbing was recorded in the book. The Inspector’s stance was that such a hazard, belt rubbing, is not simply to be recorded, but must be corrected. Vol. 2 Tr. 377. As the other condition noted by the Inspector in this Citation was not noted, the violation was established.

            By failing to note the conditions identified in Exhibit 16, the standard was violated. The hazard in this instance was the risk of a mine fire. It is plain that the failure to record such problems undercuts the prophylactic intent of the standard and therefore such failure contributes to the cause and effect of that mine hazard’s development, creating a reasonable likelihood that an injury will result from it. As noted supra, should a mine fire ensue, there is a reasonable likelihood that a reasonably serious injury would result in lost workdays, restricted duty, or worse.  

            Accordingly, the violation and the S&S designation are affirmed. A civil penalty of $540.00 is assessed.

SUMMARY

           The Court has upheld each of the violations and, except for three citations, finds that the remaining, as per the discussion above, were each significant and substantial, as that term is applied under the Mine Act. All penalties were based upon due consideration of the statutory criteria. The “R 17,” the assessed violation history report, was not used in a manner to increase or decrease the penalties imposed. All violations were deemed to have been abated in good faith.

Docket No. KENT 2011 1162

Citation No. 8405309 $499.00

Docket No. KENT 2012 34

Citation No. 8352926 $1,700.00

Docket No. KENT 2012 1162

Citation No. 8352931 $499.00

Docket No. KENT 2011 835

Citation No. 8352936 $800.00

Docket No. KENT 2011 1162

Citation No. 8352932 $499.00

Docket No. KENT 2011 1162

Citation No. 8352943 $499.00

Docket No. KENT 2011 1162

Citation No. 8352920 $1,203.00

Docket No. KENT 2011 1162

Citation No. 8352921 $634.00

Docket No. KENT 2011 1162 

Citation No. 8352922 $634.00

Docket No. KENT 2011 1162

Citation No. 8352917 $499.00

Docket No. KENT 2011 1162

Citation No. 8352918 $250.00

Docket No. KENT 2011 1162

Citation No. 8352919. $600.00

Docket No. KENT 2011 835

Citation No. 8352934. $1,657.00

Docket No. KENT 2011 1162

Citation No. 8352939 $200.00

Docket No. KENT 2011 835

Citation No. 8352924 $1,203.00  

Docket No. KENT 2011 1162

Citation No. 8352940 $1,026.00

Docket No. KENT 2011 1162

Citation No. 8352941 $634.00

Docket No. KENT 2011 1162

Citation No. 8352945 $540.00

ORDER

           Based on the foregoing discussion and findings, the Respondents are ORDERED to pay the assessed civil penalties for the violations, as set forth above, within thirty (30) days.

                                                                             /s/ William B. Moran

                                                                             William B. Moran

                                                                             Administrative Law Judge

Distribution: (E-mail and Certified Mail)

Mary Beth Zamer, Esq., Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219-2456

Marco M. Rajkovich, Esq., John Williams, Esq., Williams, Kilpatrick & True, PLLC, Lexington, Kentucky 40513