Federal Mine Safety and Health Review Commission

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

BIG RIDGE, INCORPORATED,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. LAKE 2011-716

A.C. No. 11-03054-253140-01

Mine Name: Willow Lake Portal

Appearances: Tyler P. McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor;

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Big Ridge Incorporated.

This case is before me on a Petition for Assessment of Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition alleges that Big Ridge, Incorporated, is liable for eleven violations of the Secretary’s Mandatory Safety and Health Standards for Underground Coal Mines,

and proposes the imposition of civil penalties in the total amount of $359,400.00. The parties propose to settle four of the citations and that settlement will be approved herein. A hearing was held in Evansville, Indiana, on the seven remaining citations for which a total of $274,500.00 in penalties were assessed. The parties filed post-hearing briefs following receipt of the transcript. For the reasons that follow, I find that Big Ridge committed six of the violations, but that in many cases gravity and negligence were lower than alleged, and impose civil penalties in the total amount of $16,500.00.

Big Ridge’s Willow Lake Portal Mine (“WLPM”) is a large underground coal mine located in Saline County, near Eldorado, Illinois. The immediate roof in many areas of the WLPM is composed of shale, a relatively soft, laminated layered rock. Unlike harder, more solid rock, e.g., limestone, it deteriorates or “weathers” when exposed to varying atmospheric conditions in a mine. It expands when it absorbs humidity and contracts when exposed to dryer air. As a result, layers of shale, or draw rock, loosen and fall. The stability of rock in a mine roof can be assigned a numerical rating pursuant to a coal mine roof rating system. A high rating of 65 would describe roof rock that was extremely stable, e.g., limestone, which may not require any roof support. A low rating of 35 would describe unstable rock, susceptible to deterioration and pieces falling from the immediate mine roof, which would indicate that some sort of “skin control” should be employed. The rock comprising the roof at the WLPM had a rating of 40, which, in the opinion of one inspector, indicated that skin control measures should be considered.

MSHA has not issued any guidelines or requirements for roof control measures based upon specific mine roof ratings. Tr. 455.

The WLPM has had a history of roof falls. The Secretary introduced an exhibit summarizing reported accidents involving roof falls and reported injuries resulting from roof falls at the WLPM from December 1, 2008 to December 17, 2010. Ex. G-3. Accidents involving roof falls include unplanned roof falls at or above the anchorage zone of roof bolts or that impair ventilation or impede passage and falls that result in an injury to an individual that causes death or has a reasonable potential to cause death.

An injury to a miner must be reported if it results in medical treatment being administered, death or loss of consciousness, inability to perform all job duties on any day after an injury, temporary reassignment to other job duties, or transfer to another job.

Of the 45 incidents reported during the subject period, 33 were accidents where falls originated above the anchorage point of roof bolts. None of them resulted in an injury to a miner. It appears that there has never been a fatality suffered in any such roof fall at the WLPM. Tr. 279. Twelve other falls involved smaller rocks striking and injuring miners, typically resulting in lost work days. Six of those involved roof bolters who were in the process of supporting the roof. Six others involved miners in other situations.

The Secretary argues that WLPM’s history of roof falls is significant and is relevant to gravity and negligence determinations. However, it is important to distinguish situations involving potential falls of the main mine roof from those involving potential falls of smaller rocks from the immediate mine roof, i.e., “skin control” issues. Most of the litigated violations involve the latter. As Anthony Fazzolare, an experienced MSHA inspector, explained when discussing Citation No. 8428617, which alleged a failure to control loose rocks in the immediate mine roof, WLPM’s history of accidents involving roof falls had “nothing to do with the citation.” Tr. 54. He also believed that Big Ridge could not “control [the roof] falling above the anchor zone.”

Tr. 54-55. Fazzolare was concerned about the injury reports, because he believed that those may have been avoided if there had been more aggressive scaling of the roof. Tr. 55.

Under the Act, underground coal mines must be inspected four times each year.

Two MSHA inspectors work continuously throughout the three-month periods to complete the inspections at the WLPM. At the end of the quarterly inspection, the lead inspector typically prepares a close-out report, and meets with mine managers to discuss the results of the inspection, including the identification of items that appear to require more attention, and areas where improvement was demonstrated. The WLPM is also subject to 5-day spot inspections because it liberates over one million cubic feet of methane in a 24-hour period.

In March 2010, MSHA implemented a program entitled “Rules To Live By” (“RTLB”), which was designed to improve the prevention of fatalities in the mining industry. MSHA sought to further reduce mining fatalities, which in 2009 had fallen to an all-time low for the second straight year. Special emphasis was placed on 24 mandatory safety standards that had been frequently cited in 589 fatal accident investigations in calendar years 2000 through 2008. Ex. G-2. MSHA intended to focus attention on the subject standards through outreach and education, followed by enhanced enforcement. Eleven standards were identified for coal mines, including two addressed to roof control, 30 C.F.R. § 75.202(a), which requires that mine roofs and ribs be controlled in areas where persons work or travel, and 30 C.F.R. § 75.220(a)(1), which requires that mine operators develop and follow an approved roof control plan.

The launch of the program was preceded by the mailing of a flyer to mine operators and meetings between MSHA officials and mine managers. Ex. G-1, G-2. Enhanced enforcement began in mid-March 2010. The alleged violations at issue here occurred during the quarterly inspection that was conducted from October 1 to December 31, 2010. While they allege high negligence by the operator, they were issued pursuant to section 104(a) of the Act, rather than section 104(b), which addresses more serious unwarrantable failure violations. All of the contested citations allege violations of the roof control standards that were subjects of the RTLB program, and each of them was specially assessed, resulting in substantially higher proposed penalties. If civil penalties for the seven contested violations had been assessed using the regular assessment process itemized in the Secretary’s regulations, a total of $81,957.00 in penalties would have been proposed.

The special assessment process resulted in proposed penalties totaling $274,500.00.

As noted above, all of the litigated citations include allegations that Big Ridge’s negligence was high. A major factor in the Secretary’s arguments in support of the high negligence designations is that Big Ridge had been put on notice of a need for greater efforts to comply with the roof control standards because of MSHA’s emphasis on such violations under the RTLB program, a need for better compliance with roof control standards expressed during close-out conferences for recent quarterly inspections, and the fact that as many as 140 violations of the standard had been issued at the mine in the past two years. Tr. 153-54.

While the RTLB program placed increased emphasis on the standards that were subjects of the program, the roof control standards at issue were only 2 of the 11 standards that were the subjects of that program for underground coal mines. Standing alone, the fact that section 75.202(a), one of the most frequently cited standards, was included in the RTLB program, is of limited significance as a prior notice factor. The fact that the standard had been cited 140 times in the past two years at the WLPM, is of greater significance. The Commission has recognized that the incidence of repeat violations may indicate that “an operator had prior knowledge of the specific safety or heath standard cited.” Cantera Green, 22 FMSHRC 616, 624 May 2000), Peabody Coal Co., 14 FMSHRC 1258, 1263-64 (Aug. 1992). Here the size and general roof conditions in the mine, soft shale that was subject to weathering, could provide some explanation for the significant number of violations of the general roof control standard that had been issued over the preceding two-year period, and there is essentially no evidence as to the qualitative nature of that information.

As discussed in the penalty portion of this decision, penalty assessment forms for roof control violations typically show that five penalty points were assessed for Big Ridge’s history of repeat violations. While that is a relatively modest level on that factor’s scale of 0 to 20 points, it produced substantial increases (up to 50%) in penalty assessments.

The evidence regarding the close-out conferences for the last three quarters of fiscal year 2010, the quarters immediately preceding the quarter in which the litigated violations were issued, is considerably more significant. While the reports for March and June 2010 contained a general notation of a need for better focus on RTLB standards, the close-out report for the final quarter of fiscal year 2010, which was issued in September 2010, immediately prior to the inspection during which the litigated violations were issued, made specific reference to increased roof control violations and the need for increased attention to roof control issues, stating:

Roof and Ribs – roof control violations are high here. Problems need to be addressed before we have to take care of them. Keep an eye on the ribs, most of the time they are secured but do not take them for granted. Watch entry widths.

In addition, MSHA inspectors typically discuss violations with management officials when they are issued. Tr. 50-51, 549-50. Considering the number of roof control violations, there would have been numerous discussions of that subject in the months preceding the inspection that began on October 1, 2010, and throughout that quarter.

The cumulative effect of the prior notice evidence, especially the specific warning in the September 2010 inspection close-out report and related discussions with mine management, put Big Ridge on notice that increased efforts to comply with the roof control standards were needed. Prior notice is a significant factor in the evaluation of Big Ridge’s negligence with respect to the litigated violations.

Big Ridge timely contested the penalties assessed for the violations, which prompted the filing of the petition. The alleged violations are discussed below.

Citation No. 8424063 was issued by MSHA inspector Anthony Fazzolare at 10:05 a.m., on October 1, 2010, pursuant to section 104(a) of the Act.

It alleges a violation of 30 C.F.R.

§ 75.202(a) which requires that: “The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.” The violation was described in the “Condition and Practice” section of the citation as follows:

Entry #1, tag 5+60 minus 30 feet, there was a damaged roof bolt, the [plate] was loose and not supporting the top.

A piece of mobile equipment had hit the permanent roof support rendering it useless as roof support. The unsupported top measured approximately 7 feet 5 inches by 8 feet or 59.33 [square feet]. There was draw rock in the entry [where] the bolt was located.

Standard 75.202(a) was cited 140 times in two years at mine 1103054 (140 to the operator, 0 to a contractor).

Fazzolare determined that it was reasonably likely that the violation would result in an injury necessitating lost work days or restricted duty, that the violation was significant and substantial (“S&S”), that one person was affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $18,700.00 was proposed for this violation.

The damaged bolt was located in entry #1 of Unit 5. That unit consisted of eleven entries divided into two working sections, or MMU’s. The entries were numbered from right to left facing inby. Intake air coursed through a middle entry, and was split and directed toward two returns, entries # 1 and #11, such that each MMU could operate separately. Entry #1 was on the right side MMU, which was idle when Fazzolare inspected it. No mining had been done in that MMU on the day shift. Production reports confirmed that all mining on the day shift had been done on the left side MMU, in entries #10 and #11. Tr. 166-69; Ex. R-8.

Big Ridge does not challenge the fact of the violation. Daniel Bishop, a safety compliance supervisor at the mine, traveled with Fazzolare and confirmed that the bolt was damaged, most likely because it had been struck by a piece of mobile equipment. Tr. 173-74. He also confirmed that the plate was loose and that there was draw rock in the area. Tr. 173. Big Ridge challenges the gravity and negligence determinations, and the amount of the penalty assessed.

The Commission reviewed and reaffirmed the familiar Mathies

framework for determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65 (Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

The fact of the violation has been established. The damaged bolt contributed to a discrete safety hazard, a miner being struck by a piece of draw rock falling from the inadequately supported roof.

An injury caused by a sizable rock falling from the roof would likely involve broken bones or lost work days, and would be reasonably serious. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury causing event.

Fazzolare initially determined that the damaged roof bolt had been rendered “useless as roof support.” Tr. 144; Ex. G-8. However, he later clarified that the resin bolt continued to provide beam support for the main roof and that his concern was “skin control,” or control of the immediate roof where he observed the presence of draw rock.

Tr. 160. Bishop, who also made notes of his observations during the inspection, confirmed that there was draw rock in the area. However, he characterized the draw rock as thin layers of shale that did not pose a hazard. Tr. 183-85. He recorded in his notes that the roof in the area was in good condition, and that there were no slips or cracks indicating that a piece of rock was likely to fall. Tr. 172. Fazzolare did not note the presence of any fallen roof material in the area of the bolt. Tr. 145. No material had to be scaled down to abate the violation, which was accomplished by the installation of two roof bolts. Ex. G-8.

The damaged bolt was located outby the last open crosscut, i.e., outby the area where most active mining activities would take place. Fazzolare determined that the person most likely to be affected would have been a preshift or on-shift examiner.

Tr. 148. Since no mining had occurred on the right side on the day shift and no one was working in the area, an on-shift examination did not have to be conducted during that shift as of the time the citation was issued. Tr. 156-57. Where the primary person potentially affected by a violation such as this one is a preshift or on-shift examiner who travels the area little more than once per shift and who is charged with the responsibility of identifying such conditions, which an inspector has deemed to be obvious, it is difficult to conclude that an injury causing event is reasonably likely to occur under continued normal mining conditions.

Given that the condition had existed only since the latter part of the previous shift, that there was most likely very limited exposure of miners on that shift and virtually no exposure of miners on the day shift, that a preshift or on-shift examiner would have been the first person to have traveled the area before mining activity would have commenced, and that the condition of the mine roof in the immediate area of the damaged bolt was not particularly bad, I find that the hazard contributed to was unlikely to result in an injury, and that the violation was not S&S.

The Commission and courts have observed that the opinion of an experienced MSHA inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995). Fazzolare certainly qualifies as an experienced MSHA inspector. However, I find that the Secretary has failed to carry her burden of proving that it was reasonably likely that an injury producing event would occur. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) (to prove S&S nature of violation Secretary must prove that it is reasonably likely that an injury producing event will occur, not that one could occur).

Fazzolare determined that Big Ridge’s negligence with respect to the violation was high because he believed that the damaged bolt should have been observed and noted during the preshift examination conducted prior to the start of the day shift.

Tr. 149-52, 161. He believed that any such examiner should have been paying particular attention to possible roof control violations because of MSHA’s emphasis on such violations under the RTLB program, the fact that violations of the standard had been issued 140 times at the mine in the past two years, and had been emphasized during close-out conferences for recent quarterly inspections. Tr. 153-54.

Since no equipment had yet been operated during the day shift in the right-side MMU, Fazzolare concluded that the bolt must have been damaged prior to the start of the shift, most likely prior to the previous midnight shift because that shift was typically devoted to maintenance. The report of the most recent preshift examination, done between 3:30 a.m. and 6:30 a.m., no more than 6 hours and 35 minutes before the citation was issued, did not note the damaged bolt. Tr. 149-50; Ex. G-10.

To the extent that Fazzolare’s determination was based upon a belief that no mining had been done on the midnight shift, it proved to be erroneous. The midnight shift, which started at 11:00 p.m. on September 30 and ended at 7:00 a.m. on October 1, took one cut of coal in the #1 entry. Tr. 170-71; Ex. R-7. Typically, that cut would have been taken toward the end of the shift, after all maintenance tasks had been completed. Tr. 171. It may well have been taken after the subject preshift examination had been done. The report of the preshift examination shows that it was done between 3:30 a.m. and 6:30 a.m., and that, in addition to the preshift exam, numerous seals were examined. Ex. G-10. Bishop explained that preshift examinations are generally conducted early in the allowable preshift exam window, and that the examination of the seals, the results of which were listed after the results of the preshift examination, evidence that the preshift examination was conducted closer to 3:30 a.m. Consequently, the examination could easily have been done before the cutting of coal in the #1 entry, which would have involved the operation of equipment in the location of the damaged bolt. Tr. 171, 175, 182; Ex. G-10.

Neither Fazzolare nor Bishop knew exactly when the preshift examination had been done, or when the cut of coal had been taken in the #1 entry. Tr. 158, 182. Fazzolare had noted that there were sufficient notations of dates/times/initials (“d/t/i”) made by preshift examiners to show that the examinations had been conducted, but he had not recorded the times that the area had been examined. Tr. 158; Ex. G-9.

Had coal not been cut in the #1 entry within hours of the issuance of the citation, it would have been reasonable to conclude that the bolt had been damaged more than one shift earlier, and that it should have been identified in the preshift examination. However, it is at least as likely, if not more likely, that the cut of coal and damage to the bolt occurred after the preshift examination had been conducted. Having been put on notice that increased efforts were necessary to comply with the cited standard, examiners should have exercised enhanced awareness of such conditions. However, since it is unclear that the area was examined while the condition existed, the Secretary’s prior notice evidence is of considerably diminished significance.

I find that the Secretary has failed to prove, by a preponderance of the evidence, that Respondent’s negligence with respect to the violation was high. I find that its negligence was moderate.

Citation No. 8428617 was issued by Fazzolare at 10:00 a.m., on November 17, 2010, pursuant to section 104(a) of the Act, and also alleges a violation of 30 C.F.R. § 75.202(a).

The violation was described in the “Condition and Practice” section of the citation as follows:

The operator has failed to support or otherwise control the top in Unit number 2 (MMU 002-0 and MMU 012-0). There was loose rocks in all ten entries starting at a line from the unit feeder and extending to the faces. Standard 75.202(a) was cited 143 times in two years at Mine 1103054 (143 to the operator, 0 to a contractor).

Fazzolare determined that it was reasonably likely that the violation would result in an injury necessitating lost work days or restricted duty, that the violation was S&S, that 14 persons were affected, and that the operator’s negligence was high.

A specially assessed civil penalty, in the amount of $63,000.00 was proposed for this violation.

An unintentional roof fall that blocked the flow of return air had occurred outby on Unit #2 on November 15, 2010. As a result of the fall, MSHA issued an order pursuant to section 103(k) of the Act, prohibiting access to the area, except for certain remedial activities. Ex. R-19. The return air was re-routed and, on November 16, Fazzolare inspected the unit to determine if air flow was sufficient to allow lifting of the order. He traveled on foot up the middle entry, and proceeded across the last open crosscut to all 11 entries.

Finding conditions acceptable, he terminated the order at 2:25 p.m. that afternoon. He did not identify any violations or issue any citations or orders as a result of his inspection.

Tr. 63-64. Fazzolare returned to Unit #2 the following morning, to continue the regular quarterly inspection. He identified loose material in the roof that he determined needed to be scaled and, at 10:00 a.m., issued the subject citation.

Big Ridge mounted a vigorous defense to the alleged violation. After the 103(k) order had been lifted on November 16, a partial crew was assigned to Unit #2 for the afternoon shift, to prepare it to return to production. Curt McClusky, the shift leader of that crew, testified that they first installed new bolts near a loose bolt that had been noted on the preshift report, and then spent four hours scaling the roof and ribs. Tr. 93-95; Ex. R-15. One miner operated a scoop, cleaning the areas of the unit that had been scaled. The balance of the shift was spent rock dusting the unit. The mechanical duster broke down late in the shift, and the remaining two entries were dusted by hand. Tr. 95-96. Zack Gibbons, a miner in McClusky’s crew, related the same description of their efforts. Tr. 106-07; Ex. R-17. McClusky and Gibbons testified that at the end of that shift the unit looked good, the roof was safe, and there was nothing more that could or should have been done. Tr. 96, 108.

A belt move was then conducted on the midnight shift. Tr. 115. For the day shift on November 17, a crew of ten miners was assigned to the unit to continue to prepare it for the resumption of production. Chris Stephenson, the foreman of that crew, testified that he was charged with installing 12-foot cable bolts in intersections and wherever else they were needed, and trimming a brow on an overcast. Tr. 113-16. When he arrived at the section, Stephenson checked the tailpiece and traveled through the last open crosscut checking the faces. He carried a scaling bar with him, and scaled down “a couple pieces of slate” as he traveled. Tr. 117. In his opinion, the mine roof looked fine and the unit was in good condition, except for some spillage of coal in a couple of crosscuts. Tr. 118. Just before he had finished making the faces, Stephenson was informed that Fazzolare had issued the roof control citation, and some scaling needed to be done. One location that was identified as needing to be scaled was two crosscuts back from the face, in the area of entry #8. Tr. 119. Stephenson also scaled down a small piece of slate, approximately two inches by two inches and one inch thick, in the #10 entry. Tr. 119. Stephenson assigned two roof bolters to scale down whatever was required to abate the citation, and they scaled “maybe two or three pieces of small stuff.” Tr. 119.

Robert Clarida, a Big Ridge safety compliance officer, traveled with Fazzolare, and was present when the citation was issued. He thought that the roof was in good condition. He didn’t see anything wrong with it, and believed that the condition of the roof would not typically have warranted a citation. Tr. 127-29. He did not believe that the inspection party traveled all of the entries, and stated that Fazzolare identified only three to four places that needed scaling of small pieces of draw rock. Tr. 138.

When McClusky and Gibbons reported for their afternoon shift on the 17th and learned that the roof control citation had been issued, they were surprised and upset. Tr. 97, 108. They felt that the citation amounted to unjust criticism of how they had performed their jobs, and were concerned that impression would be conveyed to management. Tr. 98, 108. McClusky went to the mine manager, and plead his case. He was informed that the manager had spoken to other persons who had been in the unit, who told him that the unit was in good condition, and that he was in no trouble. Tr. 98. Clarida talked to McClusky and Gibbons, and realized that they were upset about the citation. He asked that they reduce their complaints to writing, which they did. Ex. R-15, R-17.

In Canon Coal, Co., 9 FMSHRC 667, 668 (April 1987) (cited in Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998)), the Commission held that:

Questions of liability for alleged violations of this broad aspect of this standard [the precursor to the present section 75.202(a)] are to be resolved by reference to whether a reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have recognized that hazardous condition that the standard seeks to prevent. Specifically, the adequacy of particular roof support or other control must be measured against the test of whether the support or control is what a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have provided in order to meet the protection intended by the standard. We emphasize that the reasonably prudent person test contemplates an objective – not subjective – analysis of all the surrounding circumstances, factors, and considerations bearing on the inquiry in issue. (citations omitted)

Here, the roof control measure at issue was the degree to which Respondent scaled draw rock in the unit so as to remove loose pieces that could fall and injure a miner working or traveling in the area.

Fazzolare did not believe that WLPM had been sufficiently aggressive in scaling, such that hazardous pieces of draw rock were present when he inspected the unit. He estimated that they had existed for more than one shift “due to the extent” of the condition.

Tr. 36-37. Big Ridge counters that it had done aggressive scaling on the afternoon shift the previous day, additional scaling at the beginning of the day shift on the 17th, and would have continued to scale loose material as needed. Whether Big Ridge’s efforts to control draw rock in the unit satisfied the reasonably prudent person test is a close question on the facts of this case.

On the one hand, an experienced MSHA inspector recorded in his notes and the citation that there were loose rocks in all of the unit’s entries. On the other hand, there is credible evidence that extensive scaling had been done throughout the unit on the evening of November 16, after the section 103(k) order had been lifted. That scaling was completed approximately 14 hours before the citation was issued. The report of the preshift examination done before the start of the day shift on November 17 did not indicate problems with the roof. Tr. 54-55; Ex. G-14. Stephenson, who had 23 years of mining experience, did some scaling as he made the faces of the unit at the beginning of the day shift. He and Clarida, who had 40 years of mining experience, testified that, in their opinion, the roof was in good condition and that no violative conditions existed. They also testified that the citation was terminated after only a few small pieces of slate were scaled down.

The mine roof in the area in question was composed of a layer of draw rock, or laminated slate, typical for the WLPM. Because of the ongoing process of weathering, at practically any point in time one could find small pieces of slate that could be dislodged with a scaling bar. As Fazzolare stated, “That top is bad all the time.” Tr. 51. Gibbons expressed essentially the same opinion, stating that with “top like that you can pick at it 24/7,” i.e., there would always be small pieces that could be pried down. Tr. 111. Obviously, as McClusky stated in response to a question by the Secretary’s counsel, when scaling there is a certain degree of judgment as to what you are going to pry down. Tr. 103.

The fact that Fazzolare, who may have been in an enhanced enforcement mind set, identified pieces of rock that he determined were loose and could be pried down is not surprising.

However, it does not necessarily follow that Big Ridge failed to control loose rock when measured by the reasonably prudent person standard. Stephenson scaled loose rock as he examined the faces, and he and Clarida testified that only a few small pieces of rock were scaled down to abate the citation, and that the roof was in good condition. The Secretary was hard

pressed to counter that evidence. Fazzolare had no recollection of the cited condition, and was unable to provide any information as to the number, sizes, or locations of the loose pieces of rock. Tr. 31, 81. His notes add nothing to the description in the citation, and no photographs of the allegedly violative condition were taken.

In an enforcement proceeding under the Act, the Secretary has the burden of proving all elements of an alleged violation by a preponderance of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).

On the facts of this case, I find that the Secretary has failed to prove by a preponderance of the evidence that Big Ridge’s efforts to scale loose pieces of draw rock were inadequate under the objective, reasonably prudent person test, i.e, that Big Ridge violated the standard.

Citation No. 8428407 was issued by MSHA inspector Keith Jeralds, at 9:07 a.m., on November 19, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R.

§ 75.202(a), which was described in the “Condition and Practice” section of the citation as follows:

An area of unsupported mine roof existed between the Number 46 and Number 47 crosscut along the 5A travelway which is the alternate escapeway. There were three loose roof bolt plates hanging from the mine roof in this area. The area measured approximately 8 feet wide by 8 feet long. The plates of the 6-foot roof bolts measured 12 inches to 18 inches from solid roof. The roof was broken with draw rock and visible cracks and when sound tested the top sounded drummy. This area is routinely traveled by management and examiners. The affected area was flagged off.

Standard 75.202(a) was cited 142 times in two years at mine 1103054 (142 to the operator, 0 to a contractor).

Jeralds determined that it was reasonably likely that the violation would result in a fatal injury, that the violation was S&S, that one person was affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $53,800.00 was proposed for this violation.

Fully grouted roof bolts were used at the WLPM. Unlike tensioned bolts, they form a passive roof support system. They provide support to the main roof by creating a beam effect. Plates installed on the heads of the bolts, typically 8 inches square, provide “skin” control, supporting the surface of the immediate roof, at least in the area of the plate. The weathering effect on the laminated shale roof results in small pieces of rock falling from between the roof bolt plates. The shale in contact with the plates does not fall, nor do the layers immediately above it. They are supported by the plate, and remain glued to the bolt by the resin placed into the roof bolt hole at the time of installation. As the roof material between bolts recedes, in this case from 12 to 18 inches, a column of rock remains on the plate, sometimes becoming smaller as it rises above the plate. This produces an effect known as a “chandelier” or “chandeliering.” Jeralds took a photograph of the cited condition which depicts the subject bolts, at least one of which presents a classic chandelier effect. Tr. 254-55; Ex. G-17A.

Big Ridge apparently installs new roof bolts and plates in areas where the chandelier effect has proceeded beyond what it regards as permissible. The limits or conditions that would prompt Big Ridge to re-bolt such an area were not specified, aside from testimony that the area would be re-bolted if the plates were loose. Tr. 324. While not addressed solely to chandeliering, Big Ridge has a diesel roof bolter on each production shift specifically designated to address travelway roof conditions noted by examiners. When it responds to a location, a number of bolts are typically installed. Tr. 343-44. MSHA has not sought to specify when a chandelier condition would become a violation. Tr. 275. Neither party introduced evidence that specific roof control measures to address chandeliering have been proposed by Big Ridge or MSHA for inclusion in Big Ridge’s approved roof control plan.

On November 19, 2010, Jeralds, a relatively new MSHA inspector who had considerable coal mining experience, was traveling inby on the 5A travelway on his way to Unit 5 to conduct a spot ventilation inspection.

He was riding in an open man trip, i.e., the ride had no canopy, and passed under an area where considerable weathering of the roof had occurred, creating a chandelier effect on three roof bolts. He had the man trip operator stop, and he walked back to the location, where he determined that there was an area of unsupported roof that measured 8 by 8 feet in the left center of the travelway approximately 6 feet from the rib.

It was described in a sketch Jeralds made in his notes. Tr. 251-52 ; Ex. G-16. The plates of the three chandeliered bolts were 12-18 inches from the mine roof, and appeared to be loose. He did not attempt to move or spin the plates, but observed cracks and broken rock in the chandelier column, which led him to conclude that the plates were loose. He also observed cracks and broken top in between the bolts.

Jeralds believed that the integrity of the three bolts was compromised to the extent that they could be considered “missing,” and that a “regular roof fall” could occur. Tr. 260. He also was concerned that “fairly significant chunks” of the cracked and drummy sounding draw rock could fall out. Tr. 260. As an MSHA trainee, he had attended quarterly close-out conferences at the WLPM, and was aware that there had been reportable roof falls in the area, i.e., falls of rock above the anchorage zone of the roof bolts. Tr. 263-64, 267. His assessment that a fatal injury was reasonably likely was based upon the overall condition, the compromised integrity of the three bolts, and the size of the area he deemed unsupported, which made a larger fall more likely. Tr. 260, 287.

The chandelier effect certainly compromised the integrity of the roof bolts’ support of the main mine roof. Here, the six-foot bolts were no longer providing six feet of beam support. However, they were providing 4.5 to 5 feet of beam support. Jeralds did not know what length of roof bolt was required by the WLPM roof control plan. Tr. 277. In fact the plan required only

3-foot bolts. Tr. 335. Consequently, the chandeliered bolts continued to provide main roof support that substantially exceeded the requirement of the plan. In addition, the bolts were spaced 4 feet apart, closer than the 4.5 foot minimum specified in the plan. Tr. 335.

I find that the bolts continued to provide adequate support for the main mine roof, and that the standard was not violated in that respect. What remains for determination is whether the columns of material on the bolts and/or the material in the immediate roof between the bolts was adequately supported.

Jeralds believed that the plates of the chandeliered bolts were loose and that the material resting on the plates was not adequately supported. His determination that the plates were loose was based entirely upon a visual examination, and his observation of what he believed were small gaps in broken rock in the columns. Tr. 379. He did not attempt to move the plates or tap them with his sounding rod. Todd Grounds, Big Ridge’s compliance manager, did not personally observe the condition. He agreed that if a bolt plate was loose, or rock had fallen from around the bolt such that the bolt itself was visible, roof support would be inadequate and the area should be flagged off and repaired. He concluded that whether the plates were loose or not could not be determined solely from the photograph. Tr. 345. However, based upon his review of the photograph and Jeralds’ notes, he believed that the rock forming the chandeliers appeared to be solid, the bolts were not visible, and the condition did not present a hazard.

Tr. 350-51. Jeralds confirmed that the bolts had not been exposed. Tr. 257. Grounds further testified that the only way to determine conclusively if a plate was loose was to attempt to spin it. Tr. 337.

James Felty, a Big Ridge maintenance foreman with 42 years of mining experience, traveled with Jeralds and observed the condition, which he agreed was accurately depicted in the photograph taken by Jeralds. Tr. 310; Ex. G-17A. In his opinion, the condition was not hazardous. It was a condition that resulted from normal weathering, and was not a violation as long as the roof material was secure, and he believed it was. Tr. 312-13, 323-24. He hung the flags on the bolts, as depicted in the photograph, evidencing that he sincerely believed that the condition was not hazardous by walking under it and tying the flags directly on the chandeliered bolts. Tr. 313. Jeralds did not see Felty hang the flags. He indicated that the flags should have been hung on good bolts around the perimeter of the area, and opined that whoever had hung the flags on the chandeliered bolts did not recognize that he was in a hazardous place. Tr. 283, 292.

As to the condition of the roof in the area, Jeralds observed cracks in the immediate roof between bolts. He tapped the roof with his sounding rod. Tr. 260-61. He believed that it sounded hollow, or “drummy,” which indicated that there were more cracks above, that the layers were not laminated together, and that rock was apt to fall. Tr. 261.

Grounds opined that as material weathered out, the remaining roof was typically solid. Unless there were fractures or material that needed to be pried down, the immediate roof was adequately supported and the plates continued to provide the same “skin” control as when they were first installed. Tr. 351. He concluded from his review of Jeralds’ photograph, that the immediate mine roof between the bolts was not cracked and that there did not appear to be any loose material that needed to be pried down. Tr. 351, 354. As to the “drummy” sound, Grounds testified that that was not unexpected for a shale roof that had been mined 4 years earlier.

Tr. 353. He conceded that a “drummy” sound might indicate that “maybe layers have done some separating,” and that a close visual examination would be in order to determine if there were any cracks or other evidence of loose material. Tr. 354. However, he reiterated that, from his examination of the photograph, there did not appear to be any cracks or loose material in the cited area. Tr. 354.

I place little weight in Grounds evaluation of the condition. He was not present when the citation was issued, and did not observe the conditions first hand. His testimony and conclusions were based solely upon his review of Jeralds’ photograph and notes. The photograph, while helpful in gaining an understanding of the overall condition, provides very little detail as to the specific condition of the chandeliered columns, and even less detail on the condition of the roof. Felty obviously did not believe that the condition of the chandeliered columns or the immediate roof presented a hazardous condition. However, he expressed some tolerance for falling draw rock, and considered the conditions similar to others in the mine.

While Jeralds’ focus was on what he considered to be lack of support for the main roof, he was also concerned about falls of draw rock that would be of sufficient size to result in broken bones or lost time injuries. Tr. 285. It is not clear that the plates of the bolts were loose. Two of the plates appear to have significant columns of material on them, and do not give the appearance of being loose. The more classic chandelier-shaped column, gives the appearance of being less stable, and I find that the plate on that bolt was loose. I also find that the immediate roof in the area was, as Jeralds described it, broken and cracked. While I agree with Grounds and Felty that the “drummy” sound of the slate was not remarkable, I find that the broken and cracked material of the roof was not adequately supported in violation of the standard.

The fact of the violation has been established. The inadequately supported roof contributed to a discrete safety hazard, a miner being struck by a piece of falling rock. Sizable rocks falling from between the chandeliered bolts could easily result in broken bones or lost work day injuries, injuries that would be reasonably serious.

Whether the violation was S&S turns, as it often does, on whether the hazard was reasonably likely to result in an injury causing event.

The 5A travelway was the only route to the Number 5 section. Mining crews and supervisors traveled the road, as did grader operators, mechanics, mine examiners, and others. It was also an alternate escapeway which would have been used in the event of an emergency if the primary escapeway was rendered unavailable. While mining crews routinely traveled in man trips with canopies that lessened the possibility of serious injuries from falling draw rock, mine examiners and others traveled in open vehicles. Tr. 280, 288, 316-17.

Based upon the foregoing, I find that it was reasonably likely that the hazard contributed to by the violation would result in a reasonably serious injury, and that the violation was S&S.

Jeralds’ determination of high negligence was based upon his belief that the condition was obvious, had existed for a substantial length of time, and that numerous mine examiners would have traveled and inspected the area, none of whom identified it as a hazard. Tr. 267.

He also knew that roof falls had been discussed in closeout meetings with mine managers, and believed that they should have had a heightened awareness of potential falls. As noted above, however, the WLPM’s history of accidents involving roof falls is largely irrelevant to violations involving skin control issues.

The chandelier effect certainly would have been obvious. Witnesses generally agreed that a significant chandelier effect takes some time, e.g., days, months or even years to develop.

Tr. 199 (Fazzolare, several days or months), 225 (Clarida, over the years), 264-65 (Jeralds, fairly long time), 311(Felty, deteriorates over years), 340 (Grounds, weathers as seasons change). The 12-18 inch columns in the 5A travelway had most likely developed over the 4-year period since the entry was mined in 2006. Numerous state and federal mine inspectors, as well as Big Ridge examiners, would have observed that condition at various stages of its development. Obviously, it had not been previously identified as a violation because it continued to exist.

However, the chandelier effect does not, in itself, indicate that the mine roof is inadequately supported. If the portion of the roof bolts remaining imbedded securely in the mine roof meets or exceeds the requirements of the roof control plan, the main mine roof would continue to be adequately supported. The immediate mine roof, or skin, also would not pose a hazard, unless bolt plates were loose and/or there was broken draw rock that had become loose and was ready to fall.

Jeralds appeared to have been focused upon what he perceived to be inadequately supported main mine roof over a 64 square-foot area. As noted above, however, the bolts continued to provide support for the main mine roof in excess of that required in the roof control plan. The cavity, ranging from 12 to 18 inches in height, certainly was obvious, and had been present for a considerable length of time. However, that condition did not pose a hazard. Rather it was the cracked and broken material in the immediate roof, and potentially loose material on one chandeliered bolt, that posed a hazard. Those conditions were far less obvious than the chandeliered bolts. While there was considerable testimony that the chandeliered bolts were the product of months or years of weathering, there is virtually no evidence as to how long the loose material in the top had existed, or when the material on the chandeliered bolt became loose.

Many of the “managers” that passed through the area were foremen or similarly situated individuals that traveled with work crews on mantrips. Those vehicles had canopies that significantly compromised the ability of occupants to observe the mine roof as they traveled. Two days before the citation was issued, an MSHA inspector had made at least four trips past the area, most likely in a canopied mantrip, and did not identify it as a hazard. Tr. 346-477. Mine examiners, however, typically rode in open vehicles. Tr. 288. They, no doubt, observed the recessed roof and knew that the condition had developed over the years. In light of the prior notice they should have given it a closer inspection. However, the actual violative condition was considerably less obvious than the general condition of the chandeliered bolts, and there is no evidence that the roof was cracked and broken or that the bolt plate was loose when the examinations were or should have been made.

On the facts of this case, I find that Respondent’s negligence with respect to this violation was moderate, but on the high end of the moderate range.

Citation No. 8428626 was issued by Fazzolare at 12:10 p.m., on November 26, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.202(a), which was described in the “Condition and Practice” section of the citation as follows:

Draw rock had fallen from around two permanent roof supports at XC 1 Permanent Battery Charging Station on the Main North Travelway. The unsupported top in this area measured approximately 10 foot by 10 foot or approximately 100 feet squared.

There was ram car parked in this cross cut with the batteries under the unsupported top.

Standard 75.202(a) was cited 146 times in two years at mine 1103054 (146 to the operator, 0 to a contractor).

Fazzolare determined that it was reasonably likely that the violation would result in an injury necessitating lost work days or restricted duty, that the violation was S&S, that one person was affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $17,300.00 was proposed for this violation.

A permanent battery charging station was located in crosscut #1, at the bottom of the slope entrance to the mine. Ram cars would be backed into the crosscut, so that their batteries would be close to the charger. Operators would exit the car and cut the power, unplug the batteries, plug the charger into the batteries, and turn the charger on. Tr. 220-21; Ex. G-36. When Fazzolare issued the citation, there was a ram car parked at the charging station, and its batteries were underneath the subject roof bolts, which were located close to the right rib of the crosscut when facing the charger. Fazzolare prepared a rough sketch of the area, depicting the charging station, the ram car and the subject bolts. Tr. 190-91; Ex. G-36. Draw rock had fallen from between the bolts, creating a chandelier effect. The distance from the roof bolt plates to solid roof was approximately 8-9 inches. A small column of broken rock remained around the bolts, resting on the plates and tapering in as it rose to the mine roof. At least some of the smaller pieces of rock continued to be bonded to the bolts by the resin used in the original installation. The area of the recessed roof was approximately 10 by 10 feet. Fazzolare did not believe that the bolts were damaged. He did not make any notations to that effect in his notes, and believes that he would have, if they had been damaged. Tr. 241-43.

Big Ridge does not challenge the fact of violation. Clarida traveled with Fazzolare and confirmed that draw rock had fallen from around the bolts, and that broken rock continued to rest on the plates in a chandelier configuration. Tr. 236-37. He testified that the bolts were damaged and the plates were loose, and speculated that the ram car’s batteries may have struck the bolts when the car was backed into the charging station. Tr. 217. Big Ridge challenges the gravity and negligence determinations, and the amount of the penalty assessed.

As with the previously discussed violation, Citation No. 8428407 which also involved chandeliered bolts, the fact of the violation has been established. The inadequately supported roof contributed to a discrete safety hazard, a miner being struck by a piece of falling rock. Rocks falling from the chandeliered bolts, or from between the bolts, could easily result in broken bones or lost work injuries, injuries that would be reasonably serious. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury causing event.

Fazzorlare believed that the support provided by the bolts had been compromised by about 20%, because 8 to 9 inches of the 48-inch-long bolts were no longer imbedded in solid rock. Tr. 193-94. Nevertheless, he was not concerned about a major roof fall. Tr. 204. He was concerned that more draw rock would fall, causing a broken bone and resulting in a lost work days or restricted duty injury. Tr. 198-99. As he explained, the issue was “skin control,” i.e., control of the immediate roof surface, and he was concerned that more draw rock might “dribble” out from between the bolts since the plates were no longer providing support to the immediate roof. Tr. 195, 203-04.

He believed that miners were exposed to the condition because operators of ram cars frequently used the charger, preshift examiners inspected the crosscut every shift, and electrical examiners inspected the charger weekly. Tr. 195. While the operator of the ram car that was parked in the crosscut would not have traveled under the cited condition because the operator’s compartment and battery connections were on the left side of the car,

he believed that other ram cars, made by different manufacturers, had operator’s compartments and battery connections on the opposite side of the car, and that operators of those cars would park on the left side of the crosscut and would travel under the cited condition. Tr. 190, 195-96, 206, 212-13.

Clarida testified that all of the WLPM’s ram cars were configured the same as the one that was parked at the charging station when the citation was issued. He indicated, by drawing on Fazzolare’s sketch, that the operator’s compartment and battery connections were on the left side. Tr. 219-21; Ex. G-36. Consequently, the operators would all back the car in so that the right side was closer to the rib, such that the car would be under the subject bolts, and the operators would not travel under them.

Clarida re-visited the area shortly before the hearing to confirm his recollection of the scene.

As to the examiners, he stated that the center and left side of the crosscut were higher than the right, and that they would most likely not travel under the lower, 4.5-foot-high roof, where the bolts were located, because they would have to hunch over. Tr. 219. The “dti” board used by the preshift examiners was also on the left side of the crosscut, as he indicated on the sketch. Tr. 222; Ex. G-36. The electrical examiners had no need to travel under the bolts, which were some 20 feet from the charger. Tr. 231. Fazzolare, whose recollection of the inspection was admittedly virtually non-existent, believed that the mine roof was too high for the bolts to have been struck by a piece of equipment, and had no recollection as to whether the height of the roof in the crosscut varied. Tr. 242-43.

Fazzolare’s S&S assessment was based, in part, on his assumption that the operator compartments and battery connections of some of the WLPM ram cars were located on the right side of the cars, and that the operators of such cars would travel under the cited condition. That assumption was incorrect. In fact, the operator compartments and battery connections were all located on the left sides of the ram cars, and it is highly unlikely that the operators would have been exposed to the cited condition. The examiners, likewise, were not likely to travel under the condition. They most likely would have traveled on the center and left side of the crosscut, where the roof was higher, and where the “dti” board was located. Moreover, as examiners, they should have identified and avoided any dangerous or questionable conditions.

There is limited evidence as to the size and nature of loose material associated with the bolts. Fazzolare could not relate the size of the loose material he was concerned about. Tr. 198-99. He did not identify any cracks or other instability in the roof between the bolts. Clarida opined, as he had recorded in his report, that aside from the chandelier formations on the two loose plates the rest of the mine roof looked good. Tr. 225; Ex. R-56.

The loose rock consisted of relatively small pieces of draw rock, resting on the loose plates of the two bolts. It was highly unlikely that miners would be exposed to the condition, because there was no reason that anyone would travel under it. I find that the hazard contributed to by the violation was unlikely to result in an injury causing event, and that the violation was not S&S.

Fazzolare determined that Big Ridge’s negligence with respect to the violation was high, because he believed that the condition was obvious and was attributable to the weathering of draw rock that occurred over the course of “several days or months.” Tr. 199-200. The area was examined every shift and during weekly electrical examinations of the charging station. Tr. 197. The condition had not been reported on the most recent preshift examination. Tr. 210; Ex. G-21. He also believed that mine management should have been particularly concerned about roof control violations because of MSHA’s RTLB program, the fact that he had issued other roof control violations in that quarter, that violations of the standard had been issued 146 times at the mine in the past two years, and roof control violations had been the focus of close-out inspection reports. Tr. 198-99.

Big Ridge counters that its negligence should be low, because it was “most probable that the condition,” which it viewed as loose plates on damaged chandeliered bolts, “occurred at the end of the last shift when the ram car was parked at the charging station, which would have occurred after the preshift examination took place.” Resp. Br. at 51. Clarida testified that his recollection that the bolts were damaged, i.e., had been struck by a piece of mobile equipment, had been confirmed during his recent examination of the area. Tr. 226, 237. He surmised that they had been struck when the ram car that was parked in the crosscut was backed into the charging station because the roof on that side of the crosscut was about one foot lower than the 5.5 to 6 foot roof height in the main part of the crosscut, and the batteries of the ram car could move up as it articulated. Tr. 217-19, 226. Fazzolare testified that he did not recall whether the bolts were damaged, but believed that if they had been, he would have recorded that fact in the citation and/or his notes. Tr. 208, 241-43. He also believed that the mine roof was higher than 4.5 feet, which would have made it unlikely that the bolts would have been struck by a piece of mobile equipment. Tr. 243.

At the completion of the inspection, Clarida wrote a brief report on the issuance of the citation. Tr. 225, Ex. R-56. Nowhere in that report did he mention damage to the bolts, or the reduced height of the entry on the right side. He explained that he did not put that information in the report because he was more concerned about the S&S designation. Tr. 236. He also agreed that, if the ram car had recently struck the bolts, that any loose rock that had fallen should have been on the ram car. No observations of loose or fallen rock were noted by either Fazzolare or Clarida. Tr. 196; Ex. G-19, G-20, R-56. Clarida also agreed with Fazzolare that extensive chandeliering of bolts is a condition that develops over years due to draw rock being scaled down or falling out piece by piece. Tr. 225.

Big Ridge’s speculation that the bolts had been damaged at the end of the prior shift when they were struck by the ram car is rejected. While Fazzolare did not notice any damage to the bolts, the plates apparently were loose, a condition that Big Ridge has acknowledged did not provide adequate roof support. That condition could not have been obvious, because Fazzolare failed to note it. There is no indication as to when that condition occurred, other than the rejected theory advanced by Big Ridge.

As discussed with respect to Citation No. 8428407, the recessed roof in the area of the chandeliered bolts was a condition that developed over a lengthy period and was not hazardous in itself. It would have been obvious, and would have been observed by Big Ridge’s preshift and electrical examiners, as well as state and federal mine inspectors, for a considerable period of time up to the time of the inspection. Yet, it had never been identified as a hazardous condition. There is no evidence that the hazardous condition, the loose plates on the bolts, existed for any appreciable length of time prior to the issuance of the citation, and that condition was far from obvious.

I find that Big Ridge’s negligence with respect to the violation was moderate.

Citation No. 8428049 was issued by MSHA inspector Chad Lampley at 8:20 a.m., on December 1, 2010, pursuant to section 104(a) of the Act.

It alleges a violation of 30 C.F.R.

§ 75.220(a)(1) which requires that mine operators develop and follow a roof control plan approved by the MSHA district manager. The violation was described in the “Condition and Practice” section of the citation as follows:

The operator’s approved roof control plan was not being followed on working Unit #1, MMU -011. The spacing of permanent support roof bolts, row to row, as shown on pages 7 and 8 of the approved roof control plan was exceeded. The spacing ranged from 5 feet 8 inches to 4 feet 11 inches, affecting two rows of permanent support roof bolts. A damaged support roof bolt was also present, making an affected area that measured 7 feet 10 inches by 9 feet 10 inches. The condition was present in entry #8, inby the last open crosscut S.S. 8+50. The affected area was flagged off by the operator, after the condition was observed, to prevent miners from traveling the area.

Lampley determined that it was reasonably likely that the violation would result in a fatal injury, that the violation was S&S, that two persons were affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $50,700.00 was proposed for this violation.

Lampley was conducting a spot ventilation inspection when he traveled to Unit #1 the working section of the mine, and observed, in entry #8, a damaged roof bolt and a row of bolts some of which exceeded the four and one-half foot maximum spacing specified in the WLPM approved roof control plan. He measured the affected area surrounding the damaged bolt at

7 feet, 10 inches by 9 feet, 10 inches, and diagramed the condition in his notes. Tr. 385-90;

Ex. G-24. Tom Patterson, a WLPM safety supervisor, accompanied Lampley and confirmed the presence of the damaged bolt and the excessive spacing. Tr. 512-16. Big Ridge does not contest the fact of the violation. It challenges the gravity and negligence determinations, and the amount of the penalty assessed.

Lampley’s S&S determination was based upon three factors; the number of miners exposed to the condition, the number of non-conforming bolts in the small area, and the gray shale roof conditions. Tr. 404. The affected area was in the face of the #8 entry, an active working section, and numerous miners traveled in the area, including the continuous miner operator, roof bolters, ram car drivers, scoop operators, utility men hanging curtains, foremen, shift leaders, and examiners. Tr. 399. One row of bolts had been installed at an angle to the adjoining row, such that four of the five bolts were more than the maximum allowable 4.5 feet from the corresponding bolt in the adjoining row. One of those bolts was damaged. The roof was gray shale, which indicated that it had a relatively high clay content, making it more susceptible to weathering. Tr. 397-98. While there were no cracks or adverse roof conditions, Lampley believed that weathering of the shale sufficient to result in falls of material could occur “not long” after it was exposed by being mined. Tr. 397-98, 403, 461. He also believed that the larger spacing between bolts could result in falls of larger pieces of material such that a fatality was reasonably likely. Tr. 399, 404.

Big Ridge’s Roof Control Plan specified that a minimum of four bolts be installed in each row, no more than 4.5 feet apart and no further than 4 feet from each rib. Rows of bolts were required to be no more than 4.5 feet apart. Big Ridge installed five bolts in each row spanning the entry, rather than the four bolts required in its plan.

Lampley’s diagram depicts the bolts in question. The bolts on the left side (facing inby) were in compliance with the four and one-half foot spacing requirement, as interpreted by MSHA.

The second bolt from the left in the slanted row was 4 feet, 10 inches from the corresponding bolt in the next most inby row; four inches greater than permitted in the plan. The gap widened as the bolts approached the right rib, measuring 5 feet, 4 inches; 5 feet, 6 inches and 5 feet, 8 inches. The largest gap was between the bolts nearest the right rib.

There is no dispute that there was excessive spacing between the rows of bolts. However, because the bolts in each row were closer together than required by the plan, it is not apparent that a significant reduction in roof support resulted. The plan required a maximum of 4.5 feet between the required four bolts and a maximum of 4 feet between a bolt and a rib. Big Ridge installed 5 bolts which, if evenly spaced across a 20-foot wide entry, would have been 3.3 feet apart and 3.3 feet from each rib. No one measured the distances between bolts, or between the bolts and the rib. Nevertheless, it would appear that the closer spacing of the bolts would have provided support over and above that required by the plan, and that the compromise of that support attributable to the excessive spacing between rows of bolts may not have reduced the support significantly below that required by the plan.

The area of a square encompassed by 4 bolts installed to the plan’s specifications, 4.5 feet apart in rows 4.5 feet apart, would be 20.25 square feet. The distance from the center of the square to a bolt, the point of the roof farthest from a bolt, would be 3.2 feet (half of the diagonal of the square). If bolts were spaced only 3.3 feet apart, however, the area of the rectangle encompassed by 4 bolts in rows 4.5 feet apart would be 14.9 square feet. The distance from the center of the rectangle to a bolt, the point of the roof farthest from a bolt, would be 2.8 feet – both figures significantly lower than those for bolts installed according to the plan. If the spacing between rows were extended to 5 feet, the rectangle formed by four bolts 3.3 feet apart would be 16.5 square feet, and the farthest point of roof from a bolt would be 3 feet – both still less than comparable numbers for bolts installed in compliance with the plan. At 3.3 foot bolt spacing, rows would have to be 5.4 feet apart to yield an area of support and farthest distance to a bolt comparable to those provided under the plan.

The above figures are purely geometrical calculations, and there is nothing to establish that bolts spaced 3.3 feet apart in rows 5.4 feet apart would provide main roof support and skin control equivalent to bolts spaced 4.5 feet apart in rows 4.5 feet apart. However, it seems apparent that the additional bolts installed by Big Ridge provided greater roof support than was required under its plan. It is also apparent that increasing the spacing between rows beyond 4.5 feet provided less support than if that spacing had been maintained. What is not clear is whether, or to what extent, the excessive spacing between rows compromised roof support beyond that required by the plan.

Similar considerations apply to the bolts adjacent to the right rib, which were 5 feet, 8 inches apart, 14 inches more than permitted in the plan. Those bolts supported, in addition to the areas between adjacent bolts, a rectangular area encompassed by the bolts and the rib, which provided a continuous line of support at the edge of the entry. Had those bolts been 4 feet away from the rib, as permitted by the plan, exceeding the spacing by 14 inches would have significantly expanded the area being supported by the two bolts and the rib. However, those bolts were most likely closer to the rib than 4 feet, because five, rather than four bolts were used in each row. Lampley did not measure the distance from the bolts to the rib, but agreed that they should have been closer than 4 feet. Tr. 443. He also agreed that, depending on the amount of the deviation and the type of top, that excessive spacing closer to a rib might not be as much of a problem as a similar condition away from the rib.

Tr. 453-54.

Lampley’s S&S determination was also based upon his belief that weathering of the shale top would start immediately upon its exposure to the atmosphere and that significant falls of material between bolts could occur rather quickly, i.e., before the section advanced a break or two and the frequency of miners traveling in the area of the excessive spacing would be significantly reduced. He did not specify a time line for the expected deterioration, but it is apparent that he considered falls of significant pieces of roof material imminent. However, the roof was in good condition and he conceded that there were no cracks or other adverse conditions. Tr. 461. The process of weathering, absorption of moisture by shale exposed by mining and subsequent drying, no doubt starts when the shale is exposed to the mine atmosphere. However, it was generally agreed by most witnesses that significant effects of weathering would occur over a fairly lengthy period, e.g., days or months.

While it is possible that material would fall while miners were still working in the area, the section would have continued to advance, and in a matter of days the frequency of miners traveling in the area of excessive spacing would have been substantially reduced. Considering the uncertain degree to which the excessive spacing between rows actually compromised roof support, and the admittedly good condition of the roof, it is questionable whether weathering of the roof would have resulted in significant falls of material while the area remained an active working section.

Based upon the foregoing, I find that the Secretary has failed to prove that the hazard contributed to by the violation was reasonably likely to result in an injury causing event. I further find that the violation was not S&S, and that it was unlikely to result in an injury requiring lost work days or restricted duty.

The Secretary maintains that Big Ridge’s negligence was high because the condition was obvious, preshift and on-shift examiners had failed to identify and correct it, and Big Ridge had been put on notice of the need to exercise greater care in following its roof control plan because of the RTLB program and discussions in quarterly close-out conferences. Lampley noted that small deviations from bolt spacing requirements can be hard to detect, but that when the deviation was over one foot, as it was for the bolts nearest the rib, it should have been obvious. Tr. 410-11. Patterson, and other Big Ridge witnesses disagreed. Patterson testified that Lampley had gone to the #8 face, and discovered the damaged bolt as he was leaving. He then measured the area affected by the damaged bolt and noticed and measured the excessive spacing. Tr. 514-16. He and other witnesses testified that the fact that the area had been machine rock dusted, giving it an overall white appearance, made it difficult to detect bolt spacing errors. Tr. 516, 486, 498.

On the previous shift, there had been a cut of coal taken in the #8 entry. Thereafter, production was curtailed because the belts were down. Bolting and rock dusting were done in the interim, and the foreman, Larry Perry, conducted the preshift examination for the oncoming shift. Tr. 478-83. When the belts became functional toward the end of the shift, another cut of coal was taken in the #8 entry. Lampley surmised that the bolt could have been damaged when the miner was backed out of the entry after making the last cut. Tr. 391, 414. Although it is possible that the excessively spaced bolts were installed after Perry had conducted his preshift examination, some bolting had been done, and the excessive spacing, but not the damaged bolt, would most likely have been present when Perry did his preshift examination. Tr. 481–84, 487-88. Randy Meadows, Jr., a shift leader on the day shift, was on duty when Lampley issued the citation. He had conducted his on-shift examination in the #8 entry prior to issuance of the citation, and had not detected the damaged bolt or the excessive spacing. Tr. 495, 498. He explained that the plate of the damaged bolt was tight to the roof, not dangling. Because of the low top his head was bent over as he walked through, and the area had been rock dusted making it harder to see such defects. Tr. 498.

Given the overall conditions, the limited damage to the bolt, the fact that the mis-aligned row of bolts was nearly straight, not crooked so as to stand out, and the fact that the area had been rock dusted, it is understandable that a person might not have noticed them when walking through the area. In fact, Lampley may not have noticed the spacing deviations until his attention was drawn to the area by the damage to the bolt. Nevertheless, as Meadows conceded, an examiner is trained to, and should, identify conditions that are hazardous or not in conformance with the roof control plan, whether or not the area had been rock dusted. Tr. 502. This is doubly true since Big Ridge had been put on notice that greater efforts were required to comply with roof control standards. Here, Perry most likely failed to notice the spacing deviations and Meadows failed to notice the damaged bolt and the spacing deviations. I find that Big Ridge’s negligence with respect to this violation was high.

Citation No. 8428050 was issued by Lampley at 8:35 a.m., on December 1, 2010, pursuant to section 104(a) of the Act. It also alleges non-compliance with the roof control plan, a violation of 30 C.F.R. § 75.220(a)(1). The violation was described in the “Condition and Practice” section of the citation as follows:

The operator’s approved roof control plan was not being followed on working Unit #1, MMU -011. The spacing of permanent support roof bolts, row to row, as shown on pages 7 and 8 of the approved roof control plan was exceeded. The spacing was 5 feet along the brow approaching the 4-way intersection in the #5 entry. This condition was present between entries #5 and #6, in the last open crosscut, S.S. 8+25. Miners were present in the affected area when this condition was observed. The affected area was flagged off by the operator, after the condition was observed, to prevent miners from traveling the area.

This citation was issued only 15 minutes after the previously discussed violation. It also involved excessive bolt spacing, here in the last open crosscut adjacent to entry #5. A cut had been taken in the crosscut on the other side of the entry, and the miner had been backed out, across entry #5, and was parked under the excessively spaced rows of bolts. When the crosscut had been driven into the entry, it was at a slightly lower height than the roof in the entry, which left a “relatively small brow,” or deviation in roof height at that location. Tr. 422. The condition is depicted in a sketch made by Lampley in his notes. Tr.417-22 ; Ex. G-24. The distance between the row of bolts in the crosscut immediately adjacent to the brow and the next row of bolts in the crosscut was 5 feet, which is 6 inches longer than the maximum spacing specified in the roof control plan.

As with Citation No. 8428049, Big Ridge does not contest the fact of the violation, but challenges the gravity and negligence determinations, and the amount of the penalty.

Lampley’s S&S determination was based upon factors similar to those considered with the previous citation, the presence of miners on an active working section, the hazard of rock falling from between bolts or a major roof fall made more likely by the shale roof, and the presence of the brow which made the roof more susceptible to weathering. Big Ridge again points to the fact that it installed five bolts per row, rather than the four required by the plan, that six bolts had been installed in the row of bolts adjacent to the brow, that the roof was in good condition, and that the small brow was not an unusual condition since driving a crosscut into an entry at a slightly lower height helped prevent damage to the bolts in the entry.

The brow was between a row of bolts in the intersection of the crosscut and the entry and the first row of bolts in the crosscut. Those rows of bolts had been installed in compliance with the plan, i.e., no more than 4.5 feet apart. It was the second row of bolts in the crosscut that was 5 feet away from the first row of bolts. As noted in the discussion of Citation No. 8428049, I find that Big Ridge’s installation of five or six bolts, rather than the required four bolts, in each row provided support over and above that required in the plan, and that the Secretary has not established that the diminution in support attributable to the excessive spacing between the rows of bolts resulted in main roof support or skin control at a level below, or at least appreciably below, that required by the plan. As previously noted, if the bolts in the five and six-bolt rows were spaced equally, the rectangular area encompassed by four bolts in rows 5 feet apart would have been significantly smaller than the area encompassed by bolts installed in compliance with the plan. The farthest distance from a point of the roof within the area to a bolt would also have been smaller than the distance for bolts installed in conformance with the plan.

Lampley explained that he was more concerned about the brow than the 6 inch spacing error because the brow made the roof more susceptible to weathering – the shale layers would absorb moisture more readily, “like the side of a deck of cards.” Tr. 420-22. However, the brow was between rows of bolts that had been installed in conformance with the plan. The row of bolts immediately adjacent to the brow contained six bolts, rather than the required four, which substantially reduced the distance between bolts, and plates, in that row.

Tr. 522, 528. I accept Lampley’s assessment that the brow made the layered shale more susceptible to weathering, and that activity in the area would have continued for a considerable period of time. Tr. 422, 424-28. However, the row of bolts adjacent to the brow in the crosscut provided considerably more support than required by the plan, and there is no evidence that the increased support was taken into account in the S&S assessment.

Upon consideration of the above, including the factors discussed with respect to the previous citation, I find that the Secretary has failed to establish that the hazard contributed to by the violation was reasonably likely to result in an injury. I find that the violation was unlikely to result in a lost work days or limited duty injury and that it was not S&S.

The Secretary argues that Big Ridge’s negligence was high because the condition was obvious and Meadows, the shift leader, had admitted that he had conducted his on-shift examination and had failed to identify the excessive spacing. However, as Big Ridge points out, the deviation involved was six inches, not over a foot as with citation 049, and there was nothing to call attention to it, e.g., a crooked or diagonal row of bolts. The area had been rock dusted, which made it harder to precisely identify the location of bolts, and the continuous miner was parked under the rows of bolts. In addition, it is not clear that Meadows had completed his on-shift examination. He had begun his examination in the #8 entry, where citation 049 was issued. However, his examination was interrupted by his involvement in efforts to abate citations issued by Lampley, who had arrived on the section shortly after Meadows. Tr. 491-96, 499. Meadows could not recall whether he had examined the crosscut prior to issuance of the citation. Tr. 499, 505.

No. 8428049, I find that Big Ridge’s negligence with respect to this violation was moderate.

Citation No. 8428066 was issued by Lampley at 9:55 a.m., on December 17, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.202(a). The violation was described in the “Condition and Practice” section of the citation as follows:

The roof was not adequately supported in entries #1 and #3 of the Unit #3 (MMU-003) working section. Three unsupported kettle bottoms were present in the # - entry, inby the last open crosscut S.S. 1+30. The kettle bottoms measured approximately 20 to 14 inches in diameter. Other smaller kettle bottoms are also present in the entry that need additional support. A continuous miner and battery hauler were parked at the affected area. Two kettle bottoms were present in the #3 entry that measured approximately 3.5 feet in diameter. These kettle bottoms were partially supported, additional support is needed in this area. The affected areas were flagged off by the operator, after the conditions were found, to prevent miners from traveling the areas. Standard 75.202(a) was cited 148 times in two years at mine 1103054 (148 to the operator, 0 to a contractor).

Lampley determined that it was reasonably likely that the violation would result in an injury requiring lost work days or restricted duty, that the violation was S&S, that one person was affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $20,300.00 was proposed for this violation.

Lampley inspected Unit #3 of the WLPM on the date in question. He was accompanied by Donald Hughes, a belt coordinator for the WLPM who had 34 years of experience in coal mining and frequently accompanied inspectors. They first went to the left side of the unit, where Lampley found and cited a roof control plan violation for a pillar that was too narrow. He then traveled to the right side of the split unit, MMU-003, and found unsupported kettle bottoms in entry #1 and partially supported kettle bottoms in entry #3. Kettle bottoms are typically round or spherically shaped rock formations that are not incorporated into the layered shale roof. They abut the top of the coal seam and, when it is removed, may fall out of the roof if disturbed, e.g., hit by a piece of equipment, or if there is significant weathering of the supporting shale around them. Kettle bottoms should be either pried from the roof, or supported by roof bolts. Bolts can be installed directly through a kettle bottom, or on its sides such that the plates installed with the bolt extend under it. Lampley found three unsupported kettle bottoms in entry #1, which ranged from 14 to 20 inches in diameter. Other smaller kettle bottoms were also present that needed additional support. In entry #3 he found two, 3.5 foot diameter kettle bottoms that were partially supported. One had two roof bolts installed adjacent to it, with plates overlapping the edges of the kettle bottom. The other had a bolt installed through its edge. Big Ridge does not challenge the fact of the violation, but contests the S&S and negligence determinations, as well as the amount of the penalty.

The fact of the violation has been established. The inadequately supported kettle bottoms contributed to a discrete safety hazard, a miner being struck by a falling kettle bottom. Any injury caused by a falling sphere of rock 14 to 20 inches in diameter could easily result in broken bones or lost work days, injuries that would be reasonably serious. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury causing event.

When Lampley found the kettle bottoms in entry #1, the area had been cut, bolted, cleaned and rock dusted, and the continuous miner was parked under the three unsupported kettle bottoms. Tr. 540-41. A ram car was also present. Lampley included a sketch of the entry, the kettle bottoms, the miner, and ram car in his notes. Tr. 539-40; Ex. G-29. The miner was positioned inby the last open crosscut, in a position to start the next cut, or mining cycle. Lampley determined that it was reasonably likely that a kettle bottom, most likely one of the unsupported kettle bottoms in the #1 entry, would fall and strike a miner, resulting in a lost work days or limited duty injury. The area was an active working section, and several miners would be working under the kettle bottoms. Tr. 543. He was less concerned about the partially supported kettle bottoms in entry #3. Tr. 542. There was broken and unconsolidated shale on the right side of the unit, although not, apparently, in the immediate area of the kettle bottoms, that he believed made it more likely that they would fall. Tr. 544. Big Ridge’s roof control plan also contained a “site specific roof support plan” that noted that adverse roof conditions might be encountered in the area, and that supplemental support should be “installed in cycle along with primary support installation.” Tr. 551-52; Ex. G-25.

Big Ridge’s primary defense to the S&S and high negligence allegations rests on the testimony of Rodney Wenzel, the shift leader in charge of the section that day. Wenzel was supervising a partial crew of five to six miners, who were preparing the unit for production. They were working on the left side of the unit, and performed a “hot seat” shift change with the miners on the previous shift. Wenzel left to conduct his on-shift examination of the right side of the unit, where he noticed the kettle bottoms later cited by Lampley. He got one of the miners from the left side and began to scale them down, but was called back to the left side of the unit to abate the narrow pillar citation. Tr. 569, 595. That involved ordering timbers and supplies for building cribs, and installing those items when they were delivered. He took the helping miner with him. In the meantime, Lampley and Hughes traveled to the right side of the unit, where Lampley found the kettle bottoms. No one was working on that side of the unit at the time.

Big Ridge contends that Wenzel was in the process of scaling down or properly supporting the kettle bottoms, and had assured that none of the miners on the section would be on the right side until that work was done. Consequently, it contends that there was limited exposure to the kettle bottoms, which would have been rendered unhazardous in the course of continued normal mining, and that the violation was not S&S. Wenzel testified that he discussed his efforts and intentions with Lampley. Lampley acknowledged that “there probably was some type of conversation there,” but he simply did not recall it. Tr. 604-05. He also noted that even if Wenzel was going to take care of the kettle bottoms, that the miner had been parked under them, and miners had obviously been exposed to the condition. He also noted that the area had not been flagged-off, which he felt should have been done. Tr. 605. He did not record Wenzel’s explanation in his notes, and stated that he “would like to think” that he would have mentioned that as a mitigating circumstance. Tr. 605.

The kettle bottoms in the #1 entry were left unsupported when the roof was bolted. Thereafter, the bolter was moved out, the area may have been cleaned and dusted, and the miner and ram car were returned to the entry and parked there. It is difficult to credit Wenzel’s testimony, especially as to his claimed conversation with Lampley, because Lampley would most likely have mentioned it in his notes.

However, even if Wenzel would have remedied the violation before additional miners were exposed to it, another mining cycle was about to begin, and the miners who moved the bolter out, moved the miner and ram car in, and took other actions in the entry had been exposed to the unsupported kettle bottoms. Kettle bottoms, by their nature, present hazardous conditions and must be supported. Some of the smaller ones were simply scaled down with a bar, which suggests that they may have been in a condition to fall with minimum disturbance or weathering of the surrounding roof.

I find that the hazard contributed to was reasonably likely to result in a reasonably serious injury and that the violation was S&S.

Lampley’s assessment of high negligence was premised upon his determination that a face boss, who had the responsibility to make sure miners properly supported kettle bottoms, would have been in the area of the working section “continually throughout the day.” Tr. 549. He also had spoken to other inspectors who had advised that they had written numerous roof control and roof control plan violations such that Big Ridge should have been on notice that greater attention needed to be paid to such violations, and that higher negligence would be considered for future violations. Tr. 549-50. The Secretary also relies upon the “prior notice” evidenced previously discussed.

It may well be that a face boss could have been in the area and negligently failed to assure that roof bolters properly supported the kettle bottoms. However, the presumed presence and knowledge of a face boss, an agent of the operator, is too slender a thread to saddle Big Ridge with high negligence. Such a “continuous presence” presumption would have the effect of attributing to the operator virtually any act of negligence of a rank and file miner. In order to take advantage of the full force of the prior notice evidence, it should be demonstrated that an agent of the operator, typically an on-shift or preshift examiner, examined the area of the violation and failed to note and correct it. However, there is virtually no evidence as to exactly when the condition came into existence, i.e., when the inadequate roof bolting had been done – more importantly, whether it was prior to a preshift or on-shift examination by a duly qualified and certified person charged with the responsibility of identifying and correcting hazardous conditions.

When questioned about an entry in his notes, Lampley clarified that the most he could say about the length of time that the condition existed was “that likely it would have had to have been there since the previous shift,” because no mining had yet been done on the right side on the day shift. Tr. 559. He also did not know when the on-shift examinations would have been made. Tr. 559. The inadequate roof bolting that failed to make safe the kettle bottoms, the latter part of the mining cycle, had presumably been done toward the end of the previous shift. As such, a preshift examination, conducted within three hours of the beginning of the next shift, might well have been conducted before the roof bolting was done.

Upon consideration of above, I find that Big Ridge’s negligence with respect to this violation was moderate.

As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC ___ (Aug. 7, 2012) (slip op. at 4-5):

Section 110(i) of the Mine Act grants the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

Under this clear statutory language, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”). While there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. In addition to considering the statutory criteria, the judge must also set forth a discernible path that allows the Commission to perform its review function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

The parties stipulated that Big Ridge is a large operator and that the proposed penalties would not affect its ability to remain in business. Ex. Jt-1. The parties did not enter into a stipulation as to Respondent’s good faith in abating the violations. However, the evidence reflects that the violations were abated promptly in good faith. Forms reflecting calculations of penalty proposals, which are discussed below, also reflect an appropriate credit for good faith abatement. I find that Big Ridge abated the violations promptly and in good faith when called to its attention.

Big Ridge’s history of violations is reflected in two reports from MSHA’s database. The first report shows all citations issued at the WLPM from October 1, 2008 to December 17, 2010. Ex. G-4. A “summary” of the report states that 165 section 75.202(a) violations and 40 section 75.220(a) violations were issued during that period. Approximately 45% of those violations were listed as being “in contest,” or had otherwise not become final. Those totals closely correspond to the computer generated numbers of violations of the cited standards noted in the citations. The second report, referred to as an “R-17” lists violations issued at the WLPM that had a “Final Order Date” between “9/17/2009" and “12/16/2010.” Ex. G-34. It apparently reflects that 905 violations became final during the covered date range, including citations that were issued as early as “7/27/2007.” It lists 38 section 75.202 violations and 17 section 75.220 violations. I accept the figures reflected in the reports as accurate. However, the overall violation history set forth in the exhibits is deficient in that it provides no qualitative assessment, i.e., whether the number of violations is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

Some qualitative violations’ history information can be found on MSHA’s “Special Assessment Narrative Form” (“SANF”), which sets forth penalty proposals calculated by both the regular and special assessment formulas. SANFs for each of the violations at issue were provided to Big Ridge during discovery and, by agreement of the parties, were submitted as part of the record as an appendix to Big Ridge’s post hearing brief. Tr. 610-11, Resp. Br. app. I. As reflected on the SANFs, the Secretary’s Part 100 regulations for regular penalty assessments take into account two aspects of an operator’s violation history, the “total number of violations and the number of repeat violations of the same citable provision of a standard in a preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have become final are used in the calculations. For total violation history, points used in the penalty calculation are assigned on the basis of the number of violations per inspection day. The SANFs for six of the violations reflect an assessment of eight points for overall violation history, and one form reflects 10 points. Those numbers correspond to a moderate to low history of total violations, on the regulatory scale of 0 - 25 points.

Limiting the consideration to violations that have become final can present a skewed picture of an operator’s actual compliance with health and safety standards during the 15 months preceding a violation. Operators may have contested large numbers of violations, delaying finality for substantial periods of time. As a result, considering violations by final order date can be misleading. For example, in Thueson Const. Co., 34 FMSHRC ___ (Aug. 20, 2012) (ALJ), a small operator that had received only three citations in the 15 month period, had settled contests of 12 previous violations in that time frame, which, under the Secretary’s Part 100 penalty formula, “obscured the fact that the Respondent’s fifteen-month violation history was relatively benign.” Id. slip op. at 11-12.

The opposite effect could be produced where an operator has contested significant numbers of violations, thereby excluding them from MSHA’s calculations. Here, Big Ridge was cited for approximately 1,150 violations during the period September 17, 2009 through December 16, 2010. Ex. G-4. During that same period 905 violations, with issue dates ranging from July 27, 2007 to October 2, 2010, became final. That the WLPM is a large mine, at which a large number of violations are issued, most likely accounts for the fact that its “final” violations’ history is not dramatically different from its “issued” violations’ history during the pertinent time period.

I find that Big Ridge’s overall history of violations, as relevant to these violations, was moderate, and essentially a neutral factor in the penalty assessment process.

The legislative history of the Mine Act placed special emphasis on an operator’s repeated violations of the same standard in determining the amount of a penalty.

In evaluating the history of the operator’s violations in assessing penalties, it is the intent of the Committee that repeated violations of the same standard, particularly within a matter of a few inspections, should result in the substantial increase in the amount of the penalty to be assessed.

S. Rep. No 181, 95th Cong., 1st Sess. 43 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 631 (1978). The SANFs indicate that, under the history of violations component of the assessment formula, 5 or 6 points were added as “Repeat Violation History Points” for the section 75.202(a) violations, and 2 points were added for the section 75.220(a) violations. These are relatively modest enhancements on the Secretary’s 0-20 point scale for repeat violations history, which takes into consideration only violations that have become final. Nevertheless, for the section 75.202(a) violations, those points resulted in approximately a 50% increase in the penalty calculated under a regular assessment, and a 33% increase in the penalty range calculated under the special assessment. More modest increases of approximately 17% and 14% respectively, resulted for the section 75.220(a) violations.

Big Ridge’s history of violations may also be considered in determining the degree of an operator’s negligence, because the incidence of repeat violations may indicate that “an operator had prior knowledge of the specific safety or heath standard cited.” Cantera Green,

22 FMSHRC at 624, Peabody, 14 FMSHRC at 1263-64. In evaluating negligence, repeat violations that are close in time to the subject violation are more relevant, and non-final violations may be considered on the issue of whether an operator has been put on notice of a need for increased compliance efforts with respect to a particular standard. Enlow Fork Mining Co., 19 FMSHRC 5, 12 (Jan. 1997) (on remand, judge should evaluate as evidence of prior warnings three citations issued approximately one month prior to the violation at issue). As noted in the discussion of prior notice, Big Ridge’s repeated violations of the roof control standards were taken into account in determining the degree of negligence, in that Big Ridge had been put on notice of a need for greater compliance efforts.

Citation No. 8428063 is affirmed as a violation. However, it was found to be unlikely to result in a lost work days injury and was not S&S. In addition, Big Ridge’s negligence was found to be moderate, rather than high. A specially assessed civil penalty in the amount of $18,700.00 was proposed for this violation. As evidenced by the SANF for this violation, reductions to the likelihood of injury and negligence determinations would have produced substantial adjustments, reductions of 35 penalty points, to both the regular and special assessments. As Big Ridge points out in its brief, those reductions would have most likely resulted in a regular assessment of $335.00 and a special assessment in the range of $1,140.00. Considering the factors itemized in section 110(i), and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $1,000.00 for this violation.

Citation No. 8428407 is affirmed as a violation. It was found to be S&S. However, the severity of injury was found to be lost work days, rather than fatal. In addition, Big Ridge’s negligence was found to be moderate, rather than high. A specially assessed civil penalty in the amount of $53,800.00 was proposed for this violation. As evidenced by the SANF for this violation, reductions to the severity of expected injury and negligence determinations would have produced substantial adjustments, reductions of 30 penalty points, to both the regular and special assessments. Those reductions would have resulted in a regular assessment in the range of $1,530.00 and a special assessment in the range of $5,211.00. Considering the factors itemized in section 110(i), including the fact that the gravity of the violation remained serious and that Big Ridge’s negligence was on the high side of the moderate range, I impose a penalty of $5,000.00 for this violation.

Citation No. 8428626 is affirmed as a violation. However, it was found to be unlikely to result in a lost work days injury and was not S&S. In addition, Big Ridge’s negligence was found to be moderate, rather than high. A specially assessed civil penalty in the amount of $17,300.00 was proposed for this violation. As evidenced by the SANF for this violation, reductions to the likelihood of injury and negligence determinations would have produced substantial adjustments, reductions of 35 penalty points, to both the regular and special assessments. Those reductions would have resulted in a regular assessment in the range of $310.00 and a special assessment in the range of $1,052.00. Considering the factors itemized in section 110(i), and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $1,000.00 for this violation.

Citation No. 8428049 is affirmed as a violation. However, it was found to be unlikely to result in a lost work days injury and was not S&S. In addition, although Big Ridge’s negligence was found to be high, it was just barely so. A specially assessed civil penalty in the amount of $50,700.00 was proposed for this violation. As evidenced by the SANF for this violation, reductions to the likelihood and severity of expected injury would have produced substantial adjustments, reductions of 30 penalty points, to both the regular and special assessments. Those reductions would have resulted in a regular assessment in the range of $874.00 and a special assessment in the range of $3,224.00. This violation could have been cited as a roof control violation. However, it was cited under the less frequently cited roof control plan standard, which resulted in a lower allocation of repeat violation points than if it had been cited under section 75.202(a). Considering the factors itemized in section 110(i), including the fact that Big Ridge’s negligence remained high, I impose a penalty of $3,500.00 for this violation.

Citation No. 8428050 is affirmed as a violation. However, it was found to be unlikely to result in a lost work days injury and was not S&S. In addition, Big Ridge’s negligence was found to be moderate, rather than high. A specially assessed civil penalty in the amount of $50,700.00 was proposed for this violation. As evidenced by the SANF for this violation, reductions to the likelihood and severity of expected injury and the degree of negligence would have produced substantial adjustments, reductions of 50 penalty points, to both the regular and special assessments. Those reductions would have resulted in a regular assessment in the range of $264.00 and a special assessment in the range of $971.00. As with Citation No. 8428049, this could have been cited as a roof control violation, but it was cited under the roof control plan standard, which resulted in a lower allocation of repeat violation points. Considering the factors itemized in section 110(i), I impose a penalty of $1,000.00 for this violation.

Citation No. 8428066 is affirmed as an S&S violation. However, Big Ridge’s negligence was found to be moderate, rather than high. A specially assessed civil penalty in the amount of $20,300.00 was proposed for this violation. As evidenced by the SANF for this violation, a reduction to the degree of negligence determination would have produced significant adjustments, reductions of 15 penalty points, to both the regular and special assessments. Those reductions would have resulted in a regular assessment in the range of $1,795.00 and a special assessment in the range of $6,115.00. Considering the factors itemized in section 110(i), and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $5,000.00 for this violation.

The penalties imposed above, which total $16,500.00 are substantially lower than the $211,500.00 in penalties assessed for the violations for which Big Ridge was found liable. The substantial reductions are the result of findings of lesser gravity and/or lower negligence, which would have produced substantially lower assessments under the Secretary’s penalty formulas, both for regular and special assessments, as explained above with respect to each violation.

As set forth in Joint Exhibit 2, the parties agreed to settle Citation Nos. 8424183, 8428613, 8428619 and 8428065. The total of the penalties assessed for those violations is $84,900.00 and the proposed penalties for settlement total $36,500.00. The factual bases for the compromises are set forth in the exhibit. I have considered the representations and evidence submitted and conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act. Accordingly the settlement will be approved and Respondent will be ordered to pay civil penalties in the amount of $36,500.00 for the settled citations.

Upon consideration of the above, the motion for approval of settlement is GRANTED, and it is ORDERED that the citations are modified as proposed, and that Big Ridge, Inc., pay penalties in the amount of $36,500.00 for the settled violations.

Citation No. 8428617 is VACATED. Citation Nos. 8428063, 8428407, 8428626, 8428049, 8428050 and 8428066 are AFFIRMED, as modified. Respondent, Big Ridge Inc., is ordered to pay civil penalties in the amount of $16,500.00 for the litigated violations.

Tyler P. McLeod, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1999 Broadway, Ste. 800, Denver, CO 80202-5710

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Ste. 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000