Paragraph (b)(1), referenced above, provides that “[e]scapeways shall be provided from each working section, and each area where mechanized mining equipment is being installed or removed, continuous to the surface escape drift opening or continuous to the escape shaft or slope facilities to the surface.”

            John Lawson is an experienced inspector for the Department of Labor’s Mine Safety and Health Administration (“MSHA”) who has an additional 36 years experience in the mining industry. Inspector Lawson testified that during his inspection of the subject mine on June 19, 2007, he observed that no lifeline was present in the return of the secondary escapeway for a distance of eight crosscuts or about 500 feet. While Bledsoe maintains that the lifeline was absent for a somewhat lesser distance, there is no dispute that either condition constituted a violation of the cited standard. The Secretary also maintains however that this violation was “significant and substantial.” A violation is properly designated as "significant and substantial" if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained:

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

            See also Austin Power Co. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

            The third element of the Mathies formula requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984), and also that the likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986); Southern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991).

            Inspector Lawson described a lifeline as a rope equipped with directional cones that miners can use to follow with their hands to a safe area with fresh air when their vision is impaired or prevented because of smoke. Lawson opined that fatalities were reasonably likely as a result of this violation in the event of a fire and smoke as miners would be unable to find their way to fresh air.

            While Respondent admits a violation of the cited standard herein, it nevertheless argues that the inspector was wrong in finding that the lifeline was absent for as long as eight crosscuts and maintains that the lifeline was only absent for five crosscuts. I find that for purposes of the findings herein it makes no difference whether the lifeline was absent for five or eight crosscuts. Respondent also argues that since it is undisputed that the primary escapeway was compliant with the regulations and available for use, fatalities were not reasonably likely as a result of the deficiencies in the secondary escapeway.

            Recently, however, in Secretary v. Cumberland and Coal Resources, LP, 35 FMSHRC____, Oct. 5, 2011, slip op. p. 11, appeal filed, D.C. Cir., Oct. 24, 2011, the Commission, in effect, created a presumption that, in determining whether a violation of an evacuation standard is “significant and substantial”, an emergency will exist. The Commission rationalized this holding by finding, in effect, that without such a presumption, the Secretary would be unable to sustain her burden of proving by a preponderance of evidence that such violations are “significant and substantial.”Within the framework of that decision the violation herein was therefore “significant and substantial.”

            The Secretary also maintains that the violation was the result of the Respondent’s unwarrantable failure. In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. This determination was derived, in part, from the plain meaning of "unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate action"), and "negligence" (the failure to use such care as a reasonably prudent and careful person would use, and is characterized by "inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference" or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February 1991). The Commission has also stated that use of a "knew or should have known" test by itself would make unwarrantable failure indistinguishable from ordinary negligence, and accordingly, the Commission rejected such an interpretation. A breach of a duty to know is not necessarily an unwarrantable failure. The thrust of Emery was that unwarrantable failure results from aggravated conduct, constituting more than ordinary negligence. Secretary v. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October 1993).

            For the reasons that follow, I find that the violation herein was the result of Bledsoe’s unwarrantable failure. First, the violative condition was extensive. The lifeline was completely missing from at least five crosscuts in an escapeway, and therefore would have likely impaired or impeded the ability of miners to reach safety in the event of a mine fire and blockage of the primary escapeway. Second, it may reasonably be inferred that the violative condition had existed from five to eight days. As mining progressed, the lifeline should have been advanced with the tailpiece, which had been moved from five to eight times. In other words, on five to eight separate occasions, mine management advanced everything necessary to produce coal but failed to insure that the lifeline was also advanced, clearly demonstrating reckless disregard for miner safety. Third, the violation was obvious and presented a high degree of danger. Indeed, a missing lifeline for a distance of as much as 500 feet would be obvious to even a casual observer. In addition, during the time that miners were deprived of a secondary lifeline, an agent of the operator had conducted preshift examinations of the area. However, the condition had not been reported in at least the preshift report for the prior shift and had not been corrected. Finally, I find that the operator was on notice that greater compliance efforts were necessary. Only six days before the instant order was issued. Inspector Lawson had issued a citation for a lifeline being torn down for a distance of twenty-six crosscuts. The lifeline had broken apart, was separated in six to eight places, was found lying in piles on the mine floor and was covered with draw rock.

Citation Number 7528924 

            This citation, also issued pursuant to section 104(d)(1) of the Act, alleges a “significant and substantial” violation of the standard at 30 C.F.R. § 75.400 and charges as follows:

There are accumulations of loose, dry coal, coal dust and float coal dust, black in color, along with in some areas, loose, wet coal along side and underneath the #2 conveyor belt starting at the #2 belt tailpiece and extending to the #2 belt drive. These accumulations range up to 12 inches deep when measured. Several of the bottom conveyor belt rollers on the back side of the belt are buried by these accumulations and are turning in these accumulations. There are several stuck bottom conveyor belt rollers in this belt and some of the bottom belt rollers had bad bearings causing the roller shafts to heat up and be warm to the touch. Along the walkway side of the belt there are accumulations of mud, water and gob up to approximately 10 inches deep hindering safe travel through this area. There are also accumulations of coal dust and float coal dust, black in color, deposited over previously rock dusted areas for the entire length of the belt.

The operator has been cited a total of 113 times in the last fifteen months for accumulations. MSHA personnel has [sic] brought this to the attention of the mine operator three times during this inspection.

            The cited standard, 30 C.F.R. § 75.400, provides that “[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.”

            The Secretary claims in her brief that Bledsoe did not dispute that the cited condition was violative. However, the Secretary does not document any record reference to support her claim and Bledsoe disputes that claim. Under the circumstances, I find that counsel’s assertion in this regard to be unfounded. Moreover, I find that there are serious problems with Inspector Lawson’s testimony in this matter as it is contradictory in significant respects to the allegations in the citation at bar. The citation alleges that the violative accumulations existed “along side and underneath the #2 conveyor belt starting at the #2 tail piece and extending to the #2 belt drive.” Lawson testified however that he did not mean the entire belt and there were no violations at the tailpiece, head drive or in the 360-foot “swag” area. Similarly, contrary to the allegations in the citation, Lawson testified regarding the alleged stuck or bad rollers in the following colloquy at hearing:

Q.        [By Mr. Williams] I understand. But when you’ve testified about how many stuck rollers there may have been or how many bad bearings there may have been, you don’t really recall how many there where, do you?

A.        No. That’s why I put several in the citation

Q.        And your citation says several and I believe your notes also says several; is that correct?

A.        Yes, sir.

Q.        And it would also be correct that we don’t know from looking at the citation or your notes the location of any of these, do we?

A.        No, sir.

Q.        They could have, in fact, been in the area where you saw what you said you said were accumulations or they could have been in different areas, correct?

A.        Yes, sir.                                                                                               (Tr. 56-57)

            Thus, Mr. Lawson could not, contrary to the allegations in the citation, place the rollers with bad bearings in close proximity to the alleged accumulations. In addition, when asked if a stuck roller could be “an ignition source,” Lawson said it “could be...[i]f the roller is stuck and the belts running against the frame of the rollers...” (Tr. 29). In an effort to clarify this testimony, Lawson was asked several questions about whether the belt was, in fact, rubbing against the frame. (TR 30-32). In the following colloquy Lawson finally admitted that this was not an ignition source:

JUDGE MELICK: Well, I guess maybe if I want try to connect, if any–if there is a connection between the belt cutting into the frame and its proximity to any accumulations?

THE WITNESS: I can’t recall, Your Honor. You know, in that location, you know-

JUDGE MELICK: Well, how would that be an ignition source for accumulations then?

THE WITNESS: You’re talking about where the belt had cut into the frame?

JUDGE MELICK: Yes

THE WITNESS: Well, unless it was observed cutting into the frame it wouldn’t be, you know, if they had trained the belt back over where it’s not touching the frame.

JUDGE MELICK: All right. So you’re saying it was not an ignition source at that time?

THE WITNESS: No. (Tr. 31-32)

            Because of these significant contradictions, I am able to accord but little weight to Lawson’s testimony regarding the instant charges. Moreover, in light of the contrary testimony presented by Mine Manager Osborne regarding the non-existence of combustible materials and the Secretary’s failure to provide any evidence to support the inspector’s bald assertion that the cited material was combustible, I find that the Secretary has failed to sustain her burden of proving the alleged violation.

Civil Penalties

            Under section 110(i) of the Act, the Commission and its judges must consider the following factors in assessing a civil penalty: the history of violations, the negligence of the operator in committing the violation, the size of the operator, the gravity of the violation, whether the violation was abated in good faith and whether the penalties would affect the operators ability to continue in business. The record shows that Bledsoe is a large mine operator and that it has a significant history of violations. The gravity and negligence attributed to the violation have previously been discussed. There is no dispute that the violation was abated in good faith and there is no evidence that the penalties assessed herein would affect the operator’s ability to stay in business.

ORDER

            Citation Number 7528924 is hereby vacated. Order Number 7528951 is hereby affirmed as written and Bledsoe Coal Corporation is directed to pay civil penalties of $44,645.00 for the violation charged therein within 40 days of the date of this decision. Pursuant to the motion to approve settlement filed herein, Bledsoe Coal Corporation is further directed, within 40 days of the date of this decision, to pay civil penalties of $864.00, $136.00, $1,289.00 and $8,564.00 respectively for charging documents 7543189, 7543190, 7505606 and 7528990. Contest Proceeding Docket No. KENT 2007-491-R is hereby dismissed.

                                                                        /s/ Gary Melick

                                                                        Gary Melick

Administrative Law Judge

(202) 434-9977

Distribution: 

Robert Motsenbocker, Esq., and Thomas Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7^th Avenue North, Suite 420. Nashville, TN 37219

John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Center Circle, Suite 375, Lexington, KY 40513

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