FMSRHC ALJ DECISION

DECISION

Appearances: Karen E. Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Jason W. Hardin, Esq., and Mark E. Kittrell, Fabian & Clendenin, Salt Lake City, Utah, for Respondent.

Before: Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against The American Coal Company (“AmCoal”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing held in Evansville, Indiana, and filed post-hearing briefs.

AmCoal operates the Galatia Mine, an underground coal mine in Saline County, Illinois. At the time the citations and orders in this case were issued, the mine was very large. It had three portals: the Main Portal, Galatia North Portal, and the Millennium Portal, which is now known as the New Future Portal. Miners would often rotate between portals and equipment would sometimes be moved to different portals. The Main Portal and Galatia Portal were connected underground but, due to a fault line, the Millennium Portal was separate. All three portals had one identification number issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”). This mine employed a little over 1,000 people in 2007 and produced 7,009,160 tons of coal in 2007. In 2007, the mine liberated a little over four million cubic feet of methane a year and it was under a five-day spot inspection cycle.

I. DISCUSSION WITH FINDINGS OF FACT

CONCLUSIONS OF LAW

A. Order No. 7490536

On July 20, 2007, MSHA Inspector Steven Miller issued Order No. 7490536 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. The citation alleges:

Accumulations of loose coal and coal float dust were allowed to accumulate on both sides of the Stamler Feeder located on the 9th West Tailgate active section. The feeder was located in the Number 3 Entry. The accumulations measured approximately 6 inches to 52 inches deep, 12 feet to 17 feet wide, 4 feet to 15 feet long. The accumulations were also in front and under the energized feeder.

(Ex. B). The inspector found that an injury or illness was reasonably likely to occur and result in lost workdays or restricted duty, that the violation was significant and substantial (“S&S”), that nine people would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.400 provides, in part, that “[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings . . . .” The Secretary has proposed a civil penalty in the amount of $60,000.

1.Background Summary of Testimony

Inspector Miller has worked for MSHA since September 1991. (Tr. 1:10-11). Miller is currently a Field Office Supervisor. Id. Before he became Field Office Supervisor, Miller had inspected the Galatia Mine (the “Mine”) several times from 2000 to 2007. (Tr. 1:12-13). Miller described the Mine as a huge mine with three portals and one mine identification number, though the Mine’s status has changed since the July 20, 2007, inspection. (Tr. 1:13-14).

On July 20, 2007, Miller was at the Mine to perform an E02 spot inspection, in which he typically would look for “possible methane accumulation problems, ventilation problems, anything of that nature.” (Tr. 1:15). When Miller found the subject condition, he testified that he was “near the tail area, the feeder area of the belt for this west tailgate active section.” (Tr. 1:19). Miller testified that the area of concern was the accumulation around the Stamler Feeder. He stated that the Stamler Feeder is the piece of equipment that has a conveyor, and “[y]ou dump coal into it, it goes through a chunk breaker that breaks the coal up, and then it’s dumped onto a conveyor belt that transfers it out of the coal mine.” (Tr. 1:19).

Miller observed accumulations that “measured approximately 6 inches to 52 inches in depth, 12 feet to 17 feet wide, 4 feet to 15 feet long.” (Tr. 1:20-21; Sec’y Ex. B). He testified that the accumulations were in front, as well as under, the energized feeder. Miller observed that “[s]ome of the accumulations had been there so long that some of them had rock dust where they had rock dusted on top of the accumulations.” (Tr. 1:21). He stated that this was significant in showing that the coal dust had “been allowed to accumulate and has not been removed or cleaned up, as required.” (Tr. 1:21-22). Additionally, Miller observed accumulations in contact with the feeder itself. (Tr. 1:24). Miller recalled being told there was no scoop available that day to clean up the accumulation, but it was his opinion that the accumulation could have been cleaned up with “a scoop, a [continuous] miner, or shovels.” (Tr. 1:24; AmCoal Ex. 2).

Miller determined that the accumulation violation was S&S due to the absence of mitigating factors, prior 75.400 violations at the Mine, and the fact that the mine operator had notice of the violation. (Tr. 1:25-26). Furthermore, Miller recalls a conversation with the foreman and the escort on Friday, July 20, 2007, during which Miller believes he was told that the accumulation had been present since the previous Sunday. (Tr. 1:27-28; AmCoal Ex. 2). Miller believed that a fire could result because of the accumulation and the ignition sources present. He believed that the various ignition sources included “the feeder itself, moving parts, electrical coming to the feeder, the area under the feeder, the belt tail, the belt conveyor itself, the rollers in the tail segment, the rubbing of the belt against the structure.” (Tr. 1:30). Miller determined that in the event of a fire, the injuries to miners could include “smoke inhalation, the escapeway would be blocked, limited visibility, maybe miners not getting out of the mine, tripping, slipping, falling, broken legs.” (Tr. 1:31). In characterizing the violation as unwarrantable failure, Miller relied on the fact that there were over 360 citations for accumulation violations in a nine-month period at the Mine and the fact that management had opportunities to correct the problem. (Tr. 1:32).

On cross-examination, Miller stated that it is his general experience with the Mine that some areas can be wet. (Tr. 1:41). Miller stated that it is common for there to be some spillage around feeders, but in his opinion, the amount of accumulation here exceeded normal spillage. (Tr. 1:54-55). To clarify the location of the accumulation, Miller stated “[t]here were accumulations outby the tail, there were accumulations along both sides, under the tail to the tail roller of the belt” and that “[a]ccumulations went along the side of the feeder, over the bat wings.” (Tr. 1:63). Miller acknowledged that the prior 75.400 violations were not necessarily of the same nature as the accumulation on the feeder, but rather could have been accumulation of trash, oil, or something similar. (Tr. 86-87).

While Miller could not say whether mining occurred at that location on the day of the citation, he testified that both the belt and the feeder were energized. (Tr. 1:58). When asked about potential ignition sources, Miller could not name a specific broken part or condition of a piece of equipment that might generate heat. (Tr. 1:88-95). It was Miller’s opinion that because the feeder was energized, it could serve as an ignition source. (Tr. 1:90). Miller testified that “anytime you have a moving belt or moving rollers and you have coal in the vicinity of them, those are all ignition sources.” (Tr. 1:93). Miller thought there may have been accumulations on or near the belt, but he stated that he “wouldn’t consider that an ignition source.” (Tr. 1:91). Miller’s notes and the order did not specify whether any rollers were in the accumulations, but Miller testified “[i]t states there are accumulations under the feeder, so to be under the feeder, it has to be near the tail roller or in contact.” (Tr. 1:92). Miller thought nine people would be affected because he personally observed nine people on the unit.

Dallas James Crossman, the production manager at the New Future Mine, next testified. (Tr. 1:117). Crossman started working at the New Future Mine in April 2008, and was not working at the New Future Mine when the citation was issued. (Tr. 1:118). Crossman did not have any personal knowledge of the conditions that existed on the day of the citation. (Tr. 1:158). Crossman testified that longwall mining began on the ninth west longwall soon after April 2008, because he helped cut “the ninth west through up into the ninth west headgate.” (Tr. 1:121). Crossman testified to the variety of fire suppression mechanisms that are present, including a low oil switch-off for the feeders, a high oil temperature switch that shuts down a unit that reaches the trip point, a dry-type fire suppression on the feeder, and two actuators on the feeders that would “expel fire suppressant onto the components.” (Tr. 1:144-148).

David McBride has worked at the Mine for over nineteen and a half years. (Tr. 1:161). He was an electrical foreman at the Mine since about 2000, and has been the maintenance manager at the Mine for the past three years. (Tr. 1:162). In July 2007, McBride was an electrical foreman at the Mine. (Tr. 1:172). McBride reviewed the Electrical Examination Book for the dates July 10, 2007 through August 8, 2007, and testified that he could not identify any potential fire hazards. (Tr. 1:165-166; AmCoal Ex. 17). McBride testified that the feeder at issue in this citation had a manual fire suppression system. (Tr. 1:177).

AmCoal employee, William Crittendon, next testified. (Tr. 1:180). Crittendon has worked in the mining industry for over thirty years, and he believes that he was the safety manager when this citation was issued. Crittendon was accompanying Miller in the Mine when the citation was issued. Crittendon testified that no activity had occurred at the site where the citation was issued from the beginning of the shift up until Miller’s inspection. (Tr. 1:191). Additionally, Crittendon had written in his notes on the day of the inspection that Miller had told him that the accumulations had been present since Sunday, but Crittendon does not recall saying that to Miller. (Tr. 1:191-192; AmCoal Ex. 21).

AmCoal employee, James Matthew Carnahan, next testified. (Tr. 1:199). Carnahan has worked with AmCoal for nearly eight years and is a continuous miner (“CM”) operator. Carnahan worked in the New Future Mine at the ninth west tailgate in July 2007. Carnahan was the CM operator during the shift that ended at 9:05 a.m. on July 20, 2007. (Tr. 1:201). Carnahan testified that he might not remember working that exact day, but that the conditions in that area around July 2007 were “extremely wet, a lot of mud, lot of water, water coming out of the bottoms, out of the top, and it was pretty gassy.” Id. He testified that with the mud and water, the travelways would have been “rutted up, muddy.” (Tr. 1:204). Looking over the Production & Delay (“P&D”) Reports, Carnahan testified that the feeder at issue had been cleaned between 7:20 a.m. and 9:00 a.m. on July 20, 2007. (Tr. 1:208; AmCoal Ex. 14).

2. Summary of the Parties’ Arguments

The Secretary argues that Miller properly established that AmCoal violated section 75.400. (Sec’y Br. 7). The Secretary’s argument is based on AmCoal’s actions of allowing the accumulation of loose coal and coal float dust to build up over a period of time without taking corrective action. (Sec’y Br. 7). The Secretary relies on Miller’s testimony that he had spoken to AmCoal’s foreman who had informed him that the accumulation had been present for around six days. (Sec’y Br. 7).

The Secretary argues that the violation was S&S. (Sec’y Br. 7-8). In support of this argument, the Secretary contends that there were “numerous ignition sources” in the affected area. (Sec’y Br. 8). The Mine produces significant quantities of methane, and as such, the Secretary argues that, by allowing the accumulation to exist for days, “any of the ignition sources in the area could have independently ignited the float coal dust if it were suspended in the mine atmosphere by a methane explosion.” (Sec’y Br. 8). Since mine fires and explosions can cause serious injuries, the Secretary argues that the violation was S&S. (Sec’y Br. 8).

Next, the Secretary argues that the violation was the result of AmCoal’s serious lack of reasonable care. (Sec’y Br. 8). The Secretary attributes this to the history of warnings and citations that AmCoal had received, the length of time the violation existed, the lack of mitigating factors, the presence of high negligence, and the lack of regard for the condition. (Sec’y Br. 8-9). Finally, the Secretary argues that the proposed penalty was appropriate due to AmCoal’s “unwarrantable failure to comply with 30 C.F.R. § 75.400.” (Sec’y Br. 9).

AmCoal argues that the alleged violation was not S&S. (AmCoal Br. 2). AmCoal primarily rests this argument on the failure of MSHA to identify an ignition source. (AmCoal Br. 2). There was no identifiable problem with the feeder or belt equipment, which would cause the feeder to serve as an ignition source, and therefore AmCoal argues that MSHA’s evidence of an ignition source was too speculative. (AmCoal Br. 3).

Next, AmCoal argues that the alleged violation does not rise to the level of high negligence or an unwarrantable failure. (AmCoal Br. 4). AmCoal relies on Exhibit 14 and Carnahan’s testimony that AmCoal started the process of removing the accumulations using a continuous miner about 45 minutes before the issuance of the order. (AmCoal Br. 4-5). The process of cleaning up the accumulations could have “inadvertently created [another] accumulation on the side of the feeder between it and the rib.” (AmCoal Br. 4-5). Additionally, AmCoal argues that the condition did not go on for five days of active mining, because the area was idle for most of the week. (AmCoal Br. 5-6). AmCoal points to the lack of corroborating evidence to support Miller’s testimony that he had been told that the condition had existed since the previous Sunday. (AmCoal Br. 5-6). Also, AmCoal asserts that since it was muddy and wet, there was not a present threat of ignition. (AmCoal Br. 6). Finally, AmCoal believes that the allegation that nine people would be affected is excessive. (AmCoal Br. 6).

3. Discussion and Analysis

AmCoal does not contest that a violation of section 75.400 occurred. Rather, it is contesting the gravity, S&S, negligence, and unwarrantable determinations of Inspector Miller. I find that the Secretary established a violation of the safety standard.

An S&S violation is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has explained that:

[i]n 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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is made in terms of “continued normal mining operations.” U.S. Steel, 6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

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

The Commission has provided the following guidance for accumulation violations:

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

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

I find that, in examining all of the factors that can contribute to a fire, the Secretary established a reasonable likelihood that the hazard contributed by the violation would have resulted in an event in which there was an injury. I credit Inspector Miller’s description of the extent and location of the accumulations. The accumulations were quite large and extensive. (Tr. 109). The accumulations were under and around both sides of the feeder breaker. The accumulations were deep in some locations and included float coal dust, which is very volatile. Rock dust was on top of the float coal dust in some locations, which indicates that at least some of the accumulations had been present for a considerable length of time. The feeder breaker was energized. Although there is no evidence that the feeder was defective, it was still a potential ignition source. I reject the argument of AmCoal that the inspector’s testimony concerning the presence of ignition sources was speculative. Inspector Miller has extensive experience and I credit his testimony. The opinion of an experienced MSHA inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 175, 178-79 (Dec. 1998); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7^th Cir. 1995). In general, the Mine liberates a high level of methane and the violation was near the face where methane is more typically liberated at a mine. Carnahan testified that the area was generally gassy. (Tr. 1:201). The size of the accumulations and their location at the feeder were the significant factors I considered in reaching the conclusion that the violation was S&S. Although a raging fire or an explosion was not very likely, the conditions could reasonably be expected to create a smoldering ignition of coal producing smoke that would present a health hazard to miners. Smoke inhalation was the most likely consequence that would result from this violation.

I find that the Secretary did not establish that the violation was a result of AmCoal’s unwarrantable failure to comply with the safety standard. In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission restated the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol., 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

In the present case, the accumulations were rather extensive given that they were around and under the feeder breaker. The length of time that the accumulations had been present is in dispute. The Secretary contends that the accumulations were present since the previous Sunday. The order was issued on Friday. AmCoal argues that there is no basis in the record to establish that the condition had existed for that length of time. The subject order was issued on July 20 at 9:45 a.m. on July 20. AmCoal presented the P&D Report from the morning of July 20 which shows that a shuttle car got hung up on the feeder and that a continuous mining machine was used to pull it off. (Ex. R-14, p.6). The operator then used the continuous miner to clean up accumulations around the tail of the feeder. Id. Carnahan credibly testified about this issue and stated that the effort to clean the feeder might well have inadvertently created an accumulation on the rib side of the feeder. (Tr. 1:206-08). Inspector Miller testified, however, that the accumulations he was especially concerned about were outby the dumping point on the feeder. (Tr. 1:64-66). I find that the evidence establishes that some of the cited accumulations were created just prior to the inspection while some of the material may have been present for a longer period of time.

The Secretary relies on the fact that AmCoal has received numerous citations for violations of section 75.400 and that there have been “countless meetings” with AmCoal to address the operator’s ongoing failure to abate excessive accumulations. She contends that these previous citations and meetings put AmCoal on notice that greater efforts were necessary to ensure compliance with section 75.400. I credit the testimony of Inspector Miller that AmCoal had been issued many section 75.400 citations and accumulation issues had been discussed with mine management.

Inspector Miller also testified that the section foreman told him that he was waiting for a scoop car to arrive to clean up the spillage. AmCoal contends that most of the accumulations cited by Inspector Miller were between the feeder and the rib, which was too narrow to clean with a scoop. (Tr. 1:68-70). AmCoal contends two miners were cleaning up coal with shovels along the belt line and that these miners were reasonably close to the feeder and were making their way toward the feeder as they shoveled. I find that the evidence establishes that AmCoal was making some efforts to clean up the accumulations. It was not ignoring the conditions. I credit the evidence presented that a continuous miner had been in the area cleaning up accumulations prior to Inspector Miller’s arrival and that the miners who were shoveling nearby would have helped clean up the cited accumulations in a relatively short period of time.

I find that the cited accumulations were obvious and S&S. As stated above, although it was reasonably likely that the accumulations would create smoke causing smoke inhalation, the likelihood of a serious fire or explosion was not that great. Finally, it is clear that AmCoal knew about the condition, but that it was taking some steps to address it.

Considering all of the evidence, I find that AmCoal’s negligence was moderate and that its negligence did not rise to the level of aggravated conduct constituting more than ordinary negligence. The gravity of the violation was serious. I modify Order No. 7490536 to a section 104(a) citation with moderate negligence. I find that a civil penalty of $40,000 is appropriate for this violation.

B.Order No. 7490556

On August 26, 2007, Inspector Steven Miller issued Order No. 7490556 under section 104(d)(2) of the Mine Act for an alleged violation of section 75.362(d)(1)(ii) of the Secretary’s safety standards. The order alleges:

A qualified person did not make a test for methane immediately before energizing the Fletcher Roofbolting Machine, company number RB 17, in the Flannigan Head Gate Unit. (MMU-001) The repairman stated he energized the machine and did not take a methane test nor did anyone else make the required test. The repairman and one red hat miner were the only two people on the section and neither one of them had a multi-gas detector with them. This roofbolting machine was located in the number 3 entry on this section.

(Ex. C). The inspector found that an injury or illness was reasonably likely to occur and that the injury or illness could reasonably be expected to be fatal, that the violation was S&S, that two people would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.362(d)(1)(ii) requires that a “qualified person shall make tests for methane . . . [i]mmediately before equipment is energized, taken into, or operated in a working place.” 30 C.F.R. § 75.362(d)(1)(ii). The Secretary has proposed a civil penalty in the amount of $18,742.

1.Background Summary of Testimony

On August 26, 2007, Miller conducted an inspection at the Mine. (Tr. 1:210). Miller issued the citation, because there were “two gentlemen performing work on an energized piece of equipment that they energized, and they had not made the required methane test before energizing that piece of equipment in that area.” (Tr. 1:211). Miller testified that one of these men was a repairman and the other was a red hat miner, and that the repairman “was giving directions to the red hat on what to do and so forth.” (Tr. 1:212). The two miners were performing a permissibility test on a 480-volt Fletcher roof bolting machine. (Tr. 1:212-216). Miller stated that anytime equipment is energized, a methane test has to be conducted to determine whether the area is safe. (Tr. 1:217). The miners told Inspector Miller that no methane test had been performed before they energized the machine. (Tr. 1:218).

Miller described the violation as S&S, because there have been methane accumulations in this section before. The repairman “should have been aware that a gas test had to be made, and he proceeded knowing that he didn’t have a detector.” (Tr. 1:218). Miller testified that without performing a methane test, there is no way to determine whether there is methane present. (Tr. 1:218). Miller recalls being told by one of the miners that an opening was discovered on a panel on the equipment during the permissibility test. (Tr. 1:219). Miller perceived that to be the hazard because if there was methane build up, then it could be ignited. (Tr. 1:219).

Miller identified one of the hazards to be the potential ignition of methane. (Tr. 1:221). He believed that this could cause burns or even be fatal. (Tr. 1:221). When asked whether it was “reasonably likely that exposure could result in death or have a reasonable potential to cause death,” Miller responded that “[i]f methane is present and you have an opening in the panel, it is possible, yes.” (Tr. 1:221). Miller elaborated that ignition could occur if the place is left to “sit or go idle, the curtain is dropped, or you just have a bleeder, methane being released from the coal seam, and that you would have a build up in that area and you throw the power on something and something arcs and ignites methane.” (Tr. 1:223). Miller characterized this situation as unwarrantable failure due to “[t]he exposure, the three conditions that we observed, management was on notice that they had a problem with not providing gas detector equipment for their people.” (Tr. 1:226).

Miller testified that there had been problems in the past with the miners at the mine failing to use the multigas detectors. (Tr. 1:227). Miller was especially concerned because an inexperienced miner, who was still learning about mine safety, was present. (Tr. 1:228).

Miller further testified that he determined that the violation was the result of AmCoal’s high negligence because the repairman was a trained electrician who held an MSHA electrical card that AmCoal had placed confidence in to perform the work in a safe manner. As a consequence, “he was more than just an hourly employee, in my opinion.” (Tr. 1:241-242). Miller believed that the repairman was serving as an agent of AmCoal. (Tr. 2:23). He reached this conclusion because the repairman was a certified electrician and because he was giving instructions to the inexperienced minor. (Tr. 2:23-24). Miller stated that even if he had thought that the repairman was not acting as an agent of AmCoal, he probably still would have found high negligence, since the repairman “was directing the workforce, or directing an employee.” (Tr. 2:23-24). He also designated it as high negligence, because of “a history of methane build up accumulations in this area of the mine.” (Tr. 2:25).

Miller stated that he had taken a methane test of the area when he issued the order, but that he did not write the results down, which signaled to him that the methane reading was normal. (Tr. 2:27). Miller agreed that he had no knowledge of high levels of methane in the affected area at the time of this incident. (Tr. 2:30-31). Additionally, Miller could not identify any accumulations near the affected area. (Tr. 2:36).

Miller recalled “many” conversations that he had on previous occasions with the operator regarding miners underground without methane detectors, miners possessing methane detectors but not turning the detectors on, and telling the operator why this was unacceptable. (Tr. 2:53-54). Additionally, Miller clarified that even if a preshift examination had included a methane test, a methane test would still need to be conducted before energizing the unit. (Tr. 2:54).

Greg Tharp testified for AmCoal. (Tr. 2:70). Tharp was the maintenance foreman at the Galatia North Mine during the time the order was issued. (Tr. 2:70). Tharp was familiar with Mr. Shea, the repairman who committed the alleged violation, because Shea was one of Tharp’s crew members. (Tr. 2:71). Tharp stated that Shea was an hourly employee, was not a supervisor, did not conduct training, and did not direct employees on what to do. (Tr. 2:71).

Tharp testified that there were multigas detectors available to be checked out to employees and they were trained on how to use the devices. (Tr. 2:71-72). He testified that Shea had checked out the multigas detectors “many times.” (Tr. 2:73). He recalls telling Shea “to check out a multigas meter” on August 26, 2007. (Tr. 2:73). Tharp could not identify any fail-safe measures that would ensure that this policy was carried out. (Tr. 2:87-89). Additionally, Tharp directed the red hat miner to work with Shea that day, with the purpose of acting as an assistant to Shea. (Tr. 2:75). The red hat miner was not obtaining training from Shea. (Tr. 2:90-91). Tharp stated that the unit was idle that day and possibly had been idle during part of the previous shift. (Tr. 2:75).

Tharp summarized AmCoal’s policy towards methane checks: “If anything was inby the last open crosscut it shouldn’t be energized until there had been a methane test taken at that face.” (Tr. 2:79). Tharp also stated that it was policy that “you were not allowed to go underground unless you had a spotter or were in the immediate company of a person who did have a spotter.” (Tr. 2:80). Spotter is an alternate word for a methane detector. (Tr. 2:80). Tharp testified that Shea would have been informed of these policies during his training. (Tr. 2:79-80).

Steven Willis testified for AmCoal. (Tr. 2:100). Willis was the Manager of Health and Safety for AmCoal when the order was issued. (Tr. 2:101). Willis said that Shea deserved to be terminated from his employment because, “[e]veryone knows to get a spotter, everyone knows to make gas checks.” (Tr. 2:101-102). “I have given countless safety talks myself at each portal on proper gas checks, when to take them, and what to do when you find it.” Id. Shea was terminated that day as a result of the violation. (Tr. 2:106-107; AmCoal Ex. 32).

Additionally, Willis testified that according to the P&D reports, no mining had occurred between July 31, 2007 and August 30, 2007 at the first northwest Flanigan headgate. (Tr. 2:107-108; AmCoal Ex. 33). Willis also testified that per the preshift reports for the affected area leading up to the citation, there was “no indication of methane whatsoever.” (Tr. 2:109; AmCoal Exs. 34, 35, 36). Willis testified that, had methane been liberated from the Grobbins longwall, it would have been ventilated out of the mine through exhaust fans, and would not have worked its way into the Flannigan Unit. (Tr. 2:112-114).

2. Summary of the Parties’ Arguments

The Secretary argues that Miller properly established that AmCoal violated section 75.362(d)(1)(ii). (Sec’y Br. 9). The Secretary argues that this is a violation based on AmCoal’s actions of directing both Shea and the red hat miner “into the mine, towards the face area, to perform a permissibility test on the Fletcher Roofbolter, without carrying a multi-gas detector.” (Sec’y Br. 9).

The Secretary argues that the violation was S&S. (Sec’y Br. 10). The Mine liberates significant quantities of methane and, as such, the Secretary argues that the only way to determine whether there is methane in a given area is through the use of a methane detector. (Sec’y Br. 10). The Secretary relies on Miller’s testimony that there was an opening in one of the panels and that the opening could serve as an ignition source. (Sec’y Br. 10). Thus, with the ignition source and the methane, the Secretary believes that “[t]hese facts supported Inspector Miller’s determination that it was highly likely that a fatal electrocution (or explosion) could have occurred.” (Sec’y Br. 10).

Next, the Secretary argues that the violation was an unwarrantable failure. (Sec’y Br. 10). The Secretary relies on Miller’s testimony that he had previously noticed a problem with miners at the Mine failing to carry methane detectors and that AmCoal had previously received warnings about the problem. (Sec’y Br. 10-11). Thus, by having notice of the problem and by allowing the repairman and red hat miner to conduct a permissibility test without a methane detector, the Secretary argues that it is unwarrantable failure. (Sec’y Br. 11). Similarly, the Secretary believes that Shea ought to be treated as a supervisor for this order because he was “allowed to travel into the mine with a trainee to perform tests required of the operator.” (Sec’y Br. 11). Finally, the Secretary argues that the proposed penalty is appropriate. (Sec’y Br. 12).

AmCoal argues that the alleged violation was not S&S. (AmCoal Br. 6). AmCoal rests this argument on the failure of the Secretary “to establish the presence of a fuel source or ignition source.” (AmCoal Br. 6). In support of this, AmCoal argues that “[t]estimony and the preshift reports for the area establish that methane was not present.” (AmCoal Br. 6). Additionally, there was no evidence that any accumulations or other fuel sources were present. (AmCoal Br. 7). Similarly, AmCoal argues that there was insufficient evidence to establish that the supposed gap in the panels posed a problem. (AmCoal Br. 7).

Next, AmCoal agues that the Court should not impute Shea’s actions to AmCoal. (AmCoal Br. 7). AmCoal points to prior case law in stating that “[i]t is well-settled that the negligence of a lower-level, hourly miner is not imputable to an operator for the purposes of penalty assessment, negligence determination, or unwarrantable failure determination.” (AmCoal Br. 7). AmCoal believes that the Secretary did not provide sufficient evidence to prove that Shea was an agent of AmCoal at the time of the violation. (AmCoal Br. 8-9). AmCoal looks toward Shea’s lack of management authority in arguing that Shea was not an agent of AmCoal. (AmCoal Br. 9). Additionally, AmCoal notes that Tharp indicated that he was nearby in case Shea and/or the red hat miner needed questions answered or supervision. (AmCoal Br. 9). Tharp’s testimony indicates that Shea was instructed to get a multigas detector that day but that Shea failed to do so. (AmCoal Br. 10).

Finally, AmCoal argues that the violation was not the result of its high negligence or unwarrantable failure. (AmCoal Br. 10). AmCoal relies on the fact that Shea was a low-level employee, who had extensive training, yet “ignored his training and the directions of his supervisor that very day.” (AmCoal Br. 10). Additionally, Shea was terminated from his employment with AmCoal immediately following the incident. (AmCoal Br. 10). AmCoal argues that by terminating Shea, it abated the current problem and deterred future similar conduct by other AmCoal employees. (AmCoal Br. 10). Additionally, AmCoal argues that the lack of a fuel source and ignition source shows that the situation did not pose a high chance of danger. (AmCoal Br. 10).

3. Discussion and Analysis

AmCoal is not contesting that a violation of section 75.362(d)(1)(ii) occurred. The Secretary established the first two elements of the Mathies formula. With regard to the third element of the Mathies formula, I will evaluate a “confluence of factors.” Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).

In examining factors that contribute to a fire, I find that the Secretary did not establish a reasonable likelihood that the hazard contributed by the violation would have resulted in an event in which there was an injury. Preshift reports showed that methane was not present in that area. Miller believes that he took a methane test at the location of the cited condition but he did not write the results down. The fact that he did not do so is a strong indication that the methane test results were normal.

With regard to other possible ignition sources, Miller identified the opening in a panel on the roof bolting machine as a potential ignition source. Since no one looked further into whether this gap could actually create conditions that could lead to a fire, I find that there was no ignition source present. There was no evidence of accumulations at the location of the cited condition. Therefore, under the confluence of factors test, there was not a reasonable likelihood that the hazard contributed by the violation would have resulted in an event in which there was an injury. See Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).

I find that the Secretary did not establish that the violation was a result of AmCoal’s unwarrantable failure to comply with the safety standard. I find that Shea’s negligence should not be imputed to AmCoal. Miller partially based his findings of high negligence and unwarrantable failure on his belief that Shea was an agent of the operator. Imputation of a miner’s conduct can be imputed to the operator under certain circumstances, such as when the miner is found to be a supervisor or agent of the operator. See generally Capitol Cement Corp., 21 FMSHRC 883, 894 (Aug. 1999). However, “[i]t is well settled that the negligence of a rank-and-file miner is not imputable to an operator for the purposes of penalty assessment or unwarrantable failure determination.” Reading Anthracite Co., 32 FMSHRC 399, 411 (April 2010). To determine whether to impute negligence, “where a rank-and-file employee has violated the Act, the operator’s supervision, training and disciplining of its employees must be examined to determine if the operator has taken reasonable steps to prevent the rank-and-file miner’s violative conduct.” Southern Ohio Coal Company, 4 FMSHRC 1458, 1464 (Aug. 1982).

Here, Shea was accompanied by a red-hat miner, which is part of the reason why Miller perceived Shea as an agent of AmCoal. Tharp’s testimony established that Shea was paid on an hourly basis, was not a supervisor, and did not conduct training. Shea was fired immediately after this incident. Shea had been given training on the proper use and importance of a multigas detector. The company made multigas detectors available to employees who were trained to use the detectors. Tharp’s testimony established that Shea failed to follow Tharp’s directions that day to check out a multigas detector. While there is conflicting testimony as to the purpose of the red-hat miner who accompanied Shea, Shea’s supervisor testified that the red-hat miner’s purpose was simply to assist Shea with his duties. Additionally, it was company policy to carry multigas detectors and this policy was covered in training sessions. Therefore, AmCoal took “reasonable steps to prevent the rank-and-file miner’s violative conduct.” Southern Ohio Coal Company, 4 FMSHRC 1458, 1464 (Aug. 1982).

Because Shea had limited duties with no supervisory authority and AmCoal took measures to prevent miners from going underground without multigas detectors, I find that Shea was a “rank-and-file miner,” and his negligence is not imputable to AmCoal. See Reading Anthracite Co., 32 FMSHRC 399, 411 (April 2010)

In conclusion, I find that this violation did not rise to the level of an unwarrantable failure because Shea’s negligence is not imputable to AmCoal and the company had training and policies in place to ensure that miners traveled underground with multigas detectors. I recognize that Inspector Miller testified that he had “many” conversations with AmCoal employees in the past regarding miners failing to carry and use the multigas detectors. As a consequence, I find that AmCoal’s negligence is on the high side of moderate. In addition, future violations of this safety standard may well be accurately characterized as an unwarrantable failure. I modify Order No. 7490556 to a section 104(a) citation. A penalty of $10,000 is appropriate.

C. Citation No. 7490558

On August 26, 2007, Inspector Steven Miller issued Citation No. 7490558 under section 104(a) of the Mine Act for an alleged violation of section 75.509 of the Secretary’s safety standards. The citation alleges:

A repairman was observed performing a permissibility test on the Fletcher Roofbolting Machine (RB 17) with the power on the machine. This machine was located on the Flannigan Head Gate Unit (MMU-001) in the number 3 entry.

(Ex. E). The inspector found that an injury or illness was highly likely to occur and the injury could reasonably be expected to be fatal, that the violation was S&S, that one person would be affected, and that the violation was the result of high negligence on the part of the operator. Section 75.509 requires that “ [a]ll power circuits and electric equipment shall be deenergized before work is done on such circuits and equipment, except when necessary for trouble-shooting or testing.”30 C.F.R. § 75.509. The Secretary has proposed a civil penalty in the amount of $34,652.

1.Background Summary of Testimony

This citation was issued in conjunction with Order No. 7490556. Here, Inspector Miller stated that he had observed the repairman perform a permissibility test on the Fletcher Roofbolting Machine while the machine was powered. (Tr. 1:211-212; Sec’y Ex. E). The red hat miner was present as well. (Tr. 1:212). Miller was troubled by the fact that the repairman told him that he had been performing permissibility tests the same way for at least the last six months. (Tr. 1:222; Sec’y Ex. E).

Permissibility tests are used to make sure that an enclosure is properly sealed through the use of a feeler gauge. (Tr. 1:229). Miller testified that, in his own experience in conducting permissibility tests, he would first talk to the machine operator and find out if there were any problems. (Tr. 1:230-231). Then, he would have the machine operator “lock and tag the machine out” so that he could begin the permissibility test. (Tr. 1:231). Miller said that according to policy, “the only time power can be on that machine is for troubleshooting, and we normally have meter in hand and gloves on.” (Tr. 1:232).

Miller designated this as S&S due to his fear of the “feeler gauge getting into something on one of the enclosures or the cable have a bare conductor on it.” (Tr. 1:232). Miller believed that by performing the permissibility test with the power on, there was a risk of electrocution. (Tr. 1:232). Additionally, Miller believed it was highly likely because “if that cable’s got a bare conductor on it, you’re going to be electrocuted.” (Tr. 1:233).

On cross-examination, Miller testified that under certain circumstances, the machine may need to be powered for a permissibility test, such as when checking the start/stop switch or the lights on the machine. (Tr. 2:38-40). Miller was unsure as to what part of the permissibility test was being performed by the repairman at the time of the encounter, but recalls seeing the repairman with “a feeler gauge in hand and the power on and stuck in an opening.” (Tr. 2:41). On redirect, Miller recalled his conversation with the repairman, “I had discussion with him, talked about why he was doing what he was doing and why, and as my notes reflected, he told me he did it that way for six months.” (Tr. 2:61).

Greg Tharp testified that the repairman, Mr. Shea, had performed permissibility tests “many times” and that he had personally observed Shea perform some of those permissibility checks. (Tr. 2:81). During these observations, Tharp had never observed Shea having portions of the machine energized when it should have been de-energized. (Tr. 2:81). On recross examination, Tharp testified that it was reported to him that Shea was “doing feeler gauge tests on a machine while it was energized” during the incident in question. (Tr. 2:96). Tharp stated that this was a hazard, because of “[t]he possibility of the feeler gauge coming in contact with an energized component.” (Tr. 2:96).

Steven Willis referred to Shea’s training log to show that Shea had received permissibility test training and his training had not yet expired at the time of the citation. (Tr. 2:104-105; AmCoal Ex. 30). When asked about permissibility tests on cross-examination, Willis testified that it was his belief that Shea might have been making excuses by saying that he had been engaging in the conduct for six months. (Tr. 2:115). It is his opinion that, if Shea had been engaging in the conduct for six months, someone would have reported him. (Tr. 2:116).

David McBride has been employed as an electrician with AmCoal since 1991. (Tr. 2:120). He was an underground electrical foreman since about 2000 and he has been a maintenance manager at the Mine for the last three years. (Tr. 2:120). McBride testified that miners must take a 96-hour class to obtain their certification before the miners can conduct electrical permissibility tests on equipment. (Tr. 2:121). McBride believed that Shea had received this certification. (Tr. 2:121). McBride testified about the type of roofbolter that was being used by Shea during this incident. (Tr. 2:125). He went through the various components of the machine, and stated that, even if the machine had been energized, electrocution would not have occurred. (Tr. 2:126-129).

On cross-examination, McBride verified that he is not an electrical engineer. (Tr. 2:141). Additionally, he stated that it is not standard practice to have the equipment energized while performing a permissibility test. (Tr. 2:142-143). McBride agreed that there are risks when there is a failure to tag and lock circuit breakers prior to conducting an inspection of a machine. (Tr. 2:144).

2.Summary of the Parties’ Arguments

The Secretary argues that Miller properly established that AmCoal violated section 75.509. (Sec’y Br. 9). Building on the prior arguments set out for Order No. 7490556, the Secretary adds that “the same repairman and trainee performed a permissibility test on the 480-volt roofbolter with the power on the machine.” (Sec’y Br. 10).

The Secretary argues that the violation was S&S. (Sec’y Br. 10). The Secretary states that, without knowing whether there was an electrical problem with the roof bolting machine, it was reasonably likely that Shea would receive an electric shock when he conducted the permissibility examination without de-energizing the bolter.

Next, the Secretary argues that AmCoal was highly negligent with respect to this violation. Miller testified that Shea had told him that he had conducted permissibility tests in this fashion for at least the past six months. (Sec’y Br. 11). On the basis of this testimony, the Secretary argues that it can be inferred “that management had allowed the cited conduct to occur over a long period of time without proper training, oversight and supervision.” (Sec’y Br. 11). Finally, the Secretary argues that the proposed penalty is appropriate. (Sec’y Br. 12).

AmCoal argues that the alleged violation was not S&S. (AmCoal Br. 10). AmCoal sets forth this argument, because “the evidence introduced at trial demonstrated there was no likelihood that the hazard would result in injury.” (AmCoal Br. 10-11). It would be impossible to come into contact with an energized part on the roof bolter with the feeler gauge, even if the gauge were fully inserted. Wires were designed to be below the level at which a feeler gauge might enter, and step flanges were present in some locations which would also prevent electric shock. (AmCoal Br. 11).

Next, AmCoal argues that Shea’s actions should not be imputed to AmCoal. (AmCoal Br. 11). AmCoal argues that the operator had provided training to Shea on how to properly perform a permissibility test, yet Shea ignored that training. (AmCoal Br. 11). Additionally, AmCoal argues that “the Court should find AmCoal’s training of Shea and its policies and procedures regarding such training to be mitigating circumstances warranting a ‘Low’ or at most ‘Moderate’ finding of negligence.” (AmCoal Br. 11-12).

3.Discussion and Analysis

I find that the Secretary established a violation of the safety standard. Under the safety standard, electrical equipment is required to be de-energized “before work is done on such . . . equipment.” Shea was performing a permissibility test on the roof bolter. He was not attempting to repair the equipment and he had not opened any electrical compartments on the equipment. Nevertheless, I find that performing permissibility tests is “work” as that term is used in the safety standard.

I also find that the violation was S&S. The Secretary is not required to establish that it was more probable than not that an injury would result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). Rather, the Secretary must show that it was reasonably likely that the hazard contributed to by the violation would result in an injury. The Secretary established the first two elements of the Mathies S&S test. There was a violation of the safety standard that created a discrete safety hazard. In addition, if an injury were to occur, it would likely cause a serious electric shock injury. I find that the Secretary established that it was reasonably likely that the hazard contributed to by this violation would result in an injury. Shaw was sticking the feeler gauge into electrical boxes and other components that contained energized electrical circuits. I find that the evidence establishes that it was reasonably likely that Shaw would touch a wire or an electrical component that was energized as he was performing the permissibility test. Apparently, it was not unusual for Shaw to perform this test on energized equipment. Assuming continued normal mining operations, an accident was bound to happen.

I find that AmCoal’s negligence was only moderate, however. I credit the testimony of AmCoal’s witnesses that it instructed its employees to perform permissibility tests with the equipment de-energized and that it was not the usual practice for miners to do these tests with the equipment energized. I find that there was no showing that AmCoal had any knowledge that Shea performed permissibility tests without shutting down equipment. For the reasons discussed above, the negligence of Shea should not be imputed to AmCoal. A penalty of $15,000 is appropriate for this violation.

D. Citation No. 6668585

On December 6, 2007, Inspector Steven Miller issued Citation No. 6668585 under section 104(a) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety standards. The citation alleges:

Accumulations of combustible materials (trash) have been placed in the No. 23 crosscut along the Flannigan Travelway. The materials are in the form of paper, cardboard, plastic, old filters and wood.

(Ex. G). The inspector found that an injury or illness was unlikely to occur but, if there were an injury, it would likely result in lost workdays or restricted duty. He determined that the violation was not S&S but that the violation was a result of the operator’s high negligence. The Secretary has proposed a civil penalty in the amount of $6,996.

1.Background Summary of Testimony

On December 6, 2007, Miller was at the Mine performing an E01 inspection for that quarter. (Tr. 2:146). Miller testified that the Flannigan Travelway, the location of the cited condition, was a frequently-used travelway. (Tr. 2:147-148). Miller observed trash accumulations along the Flannigan Travelway, including “cardboard, wood, paper, plastic, and eight old filters.” (Tr. 2:148; Sec’y Ex. G). Miller was not sure whether management was aware of the condition, but it was his belief that, based on the use of the travelway, someone should have observed the trash accumulation. (Tr. 2:148).

In regard to the accumulations, Miller stated that “[w]hen I was sent there for this inspection, my supervisor advised me they had some citations issued for stockpiling trash behind curtains, basically acting as a holding tank or storage unit or whatever, so trash was an issue and an issue that we talked about during this inspection.” (Tr. 2:149). Miller recalled prior discussions that he, as well as other inspectors and his supervisor, had with AmCoal management about the stockpiling of trash. (Tr. 2:149).

Miller determined that the materials were combustible due to incidents of prior filter fires at the Mine. (Tr. 2:150). Miller testified that the trash was not contained and that the trash was present in active workings. (Tr. 2:151-152). Miller believed that this posed a fire danger. (Tr. 2:152). In the unlikely event of a fire, Miller believed that injuries could occur, such as “smoke inhalation or burn or inability to escape the mine.” (Tr. 2:152). To account for his belief that ten people would be affected, Miller followed guidelines that the number was to reflect “everyone inby the area that could be affected by the event.” (Tr. 2:153). Additionally, Miller determined that the violation was the result of AmCoal’s high negligence, because of the filter fires that had previously occurred at the Mine, the number of meetings that had been conducted, and “guidance from my boss that it was an ongoing problem that we had to get a handle on.” (Tr. 2:154). It was brought up that the three portions of the AmCoal mine complex had had over 360 section 75.400 violations for accumulations in the two years prior to the issuance of the citation. (Tr. 2:156; Sec’y Ex. A).

One of the previous fires occurred when hot filters were removed “from a scoop near one of the portals on the north” and the filters were placed in with some trash. (Tr. 2:182). The trash caught on fire and produced smoke. Id. Here, Miller testified that the filters in the trash were not hot. (Tr. 2:183).

Miller testified that trash accumulation is normal in the mining process, but “[i]t’s just a matter of having policy and procedure to remove it from the mine.” (Tr. 2:157). Miller did not believe that AmCoal could have any excuse for this accumulation of trash, because “[a]ll combustible materials are to be removed, and after the [previous] meetings . . . that had been conducted, they were on a heightened alert that we had a problem with 75.400 accumulation of trash.” (Tr. 2:158).

Miller stated that it was his belief that, if a fire broke out because of the accumulations, smoke would go through the primary escapeway. (Tr. 2:163). It was Miller’s opinion that the Mine had not improved its trash compliance since earlier meetings between the inspectors and the Mine operators. (Tr. 2:169). Miller was unsure about how long the trash had existed in that location, but noted that he saw rock dust on the trash. (Tr. 2:173). Furthermore, Miller does not recall specifically counting the number of people who were inby the cited condition to account for the number of people affected. (Tr. 2:174).

Joe Myers testified for AmCoal. (Tr. 2:186). Myers is currently the Safety Compliance Manager for AmCoal. (Tr. 2:186). During the time of this citation, Myers was the Safety Director at the Galatia North Mine. (Tr. 2:186). Myers testified that in late 2007, trash was removed every day from the Mine. (Tr. 2:189). Myers testified that after an earlier incident of trash accumulation, AmCoal made “it a priority to remove trash, to not let it assemble, to not let it stay in one place, because . . . materials are brought to the mine in boxes, papers, whatever, and when they are disposed of, we take the remains and we get them out of the mine.” (Tr. 2:190-191). Myers testified that, based on his review of P&D reports, if a fire had started because of the accumulation, then the only person that could have been injured would have been the examiner. (Tr. 2:192-194). Myers could not say whether trash removal was taking place on the Flannigan Travelway on the day of the citation. (Tr. 2:195). Additionally, Myers did not know whether there was any work being performed on the Flannigan Travelway on the day of the citation. (Tr. 2:195-196).

2. Summary of the Parties’ Arguments

The Secretary argues that AmCoal’s violation was the result of high negligence, because of the repeated conduct of AmCoal “storing combustible materials (trash) in cross-cuts for extended periods of time.” (Sec’y Br. 12). The Secretary rests this argument on prior meetings that Miller and others had with AmCoal, the fact that AmCoal should have known about the accumulations, and AmCoal’s alleged attempts to conceal the condition. (Sec’y Br. 12).

The Secretary argues that Miller’s determination that ten people would be affected is reasonable. (Sec’y Br. 13). Miller determined that the smoke would travel inby, thus affecting “mine management, examiners, and mine personnel who regularly travel through the affected area.” (Sec’y Br. 13). Finally, the Secretary argues that the proposed penalty is appropriate. (Sec’y Br. 13).

AmCoal seeks to vacate this citation, because “[t]he Secretary failed to establish how long the small trash pile had existed, did not establish the size, shape or dimensions of the trash pile, and did not establish whether the trash pile was in fact combustible.” (AmCoal Br. 12). AmCoal relies on Myers’ testimony as evidence of the daily trash removal that goes on in the Mine. (AmCoal Br. 12). Additionally, AmCoal points out that the evidence shows that the Mine had been idle during the time this citation was issued. (AmCoal Br. 12).

If the citation is not vacated, then AmCoal argues that the number of people affected should be reduced to one person. (AmCoal Br. 12). AmCoal believes that Miller did not know or count how many people would be affected, and therefore, the number was not accurate. (AmCoal Br. 12-13). Additionally, AmCoal would like to see the citation reduced from high negligence to no negligence, because “[w]ithout any indication by the Inspector of how long these items existed and whether they were somehow particularly combustible, it was not negligent for AmCoal to place the nondescript trash in a crosscut for pickup.” (AmCoal Br. 13).

3. Discussion and Analysis

I affirm the citation but I find that the operator’s negligence was moderate. There is no dispute that the cited material was present. I agree with the argument of AmCoal that it is not negligent for an operator to place trash in a crosscut for pickup. I credit the testimony of Inspector Miller that the trash was combustible and that the mine had a history of allowing trash to accumulate rather than having it promptly removed. Section 75.400-2 requires mine operators to develop a program for regular cleanup and removal of combustible materials. I find that the testimony of Myers that the company had made it a “priority” to promptly remove trash unconvincing. He could not state whether trash removal was taking place on the day the citation was issued. The Secretary presented sufficient evidence to establish a prima facie case and AmCoal’s evidence was insufficient to rebut the Secretary’s case.

AmCoal relies, in part, on my decision in Basin Resources, Inc., 19 FMSHRC 711, 717-18 (April 1997) (ALJ) to support its argument that there was no violation of section 75.400. Whether there is a violation of section 75.400 with respect to trash and other miscellaneous combustibles must be considered on a case-by-case basis. In this instance, I find that the Secretary established a violation.

I find that AmCoal’s negligence was moderate because there was no showing that management was aware that the trash was present. This factor is significant because it is not clear whether there was significant activity along the Flannigan Travelway on December 6, 2007. It is clear that AmCoal must take action to improve its trash removal program. The violation was not S&S and was not serious. A penalty of $2,000 is appropriate.

E.Citation No. 6668587, 6668591, and 6668594

On December 6, 2007, Inspector Steven Miller issued Citation No. 6668587 under section 104(a) of the Mine Act for an alleged violation of section 75.202(a) of the Secretary’s safety regulations. The citation alleges:

Two loose ribs (coal and rock) were observed along the Main West Travelway between crosscut number 155 and crosscut number 156. One rib was located on the north side and one on the south side of the travelway. The North measured 5 feet long, 7 feet high and 6 inches to 18 inches in thickness, the one on the South measured 10 feet long, 8 feet high and 6 inches to 18 inches in thickness. This area is routinely traveled by the miners.

On December 7, 2007, Inspector Miller issued Citation No. 6668591 under section 104(a) of the Mine Act for an alleged violation of section 75.202(a) of the Secretary’s safety regulations. The citation alleges:

Two areas of unsupported mine roof existed along the Galatia North Travelway. One area is located at crosscut number 51 (southeast corner) and measured approximately 10 feet wide by 25 feet long. The other area is located at crosscut number 86 in the travelway entry, there [are] two roofbolts that need replaced. Loose draw rock is hanging from the mine roof in these areas. There [are] also areas where sloughing has occurred and the bearing plates are no longer firmly against the mine roof in these areas as well. These areas are neither supported nor otherwise controlled to protect persons from hazards related to falls of the mine roof. These areas are routinely traveled by mine examiners and mine personnel.

On December 8, 2007, Inspector Miller issued Citation No. 6668594 under section 104(a) of the Mine Act for an alleged violation of section 75.202(a) of the Secretary’s safety regulations. The citation alleges:

Two areas of unsupported mine roof existed along the Galatia North Travelway between crosscut No. 150 and crosscut No. 149. One area is located on the west side and measured approximately 10 feet wide by 30 feet long. The other area is located on the east side and measured approximately 10 feet wide and 20 feet long. Loose draw rock is hanging from the mine roof in these areas. There [are] also areas where sloughing has occurred and the bearing plates are no longer firmly against the mine roof in these areas as well. These areas are neither supported nor otherwise controlled to protect persons from hazards related to falls of the mine roof. These areas are routinely traveled by mine examiners and mine personnel.

(Exs. H, I, J). For all three citations, the inspector found that an injury or illness is reasonably likely to occur and that the injury or illness could reasonably be expected to be permanently disabling, that the violation was S&S, that one person would be affected, and that the violation was the result of high negligence.

Section 75.202(a) of the Secretary’s regulations requires:

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.

30 C.F.R. § 75.202(a). The Secretary proposed the penalty of $8,893 for each of the three citations.

1.Background Summary of Testimony

Miller issued all three citations on different days while conducting an E01 inspection. (Tr. 2:201-202). Citation No. 6668587 was issued due to the cited condition in the Main West Travelway, and Citation Nos. 6668591 and 6668594 were both issued due to the cited conditions in the Galatia North Travelway. (Tr. 2:202).

When discussing Citation No. 6668587, Miller defined “loose ribs” as “where the coal is separated from the solid pillar.” (Tr. 2:203). Miller observed the separation in this instance to be six to eight inches. (Tr. 2:203-204; Sec’y Ex. H). Miller was uncertain how he measured the rib, but he believes that he did so visually, out of fear that the rib would have “rolled over” if he was too close. (Tr. 2:204). Miller believed that the cited condition was a hazard because “[t]he number of people that travel this travel road and being exposed to this area.” (Tr. 2:204). He believed that the roadway was well traveled and that the condition should have been observed. (Tr. 2:205). Miller was unsure as to how long the cited condition had existed, but he believed that the condition could deteriorate quickly. (Tr. 2:206).

When discussing Citation Nos. 6668591 and 6668594, Miller defined an “unsupported roof” as “an area where there is no longer a roof bolt installed firmly against the roof or post or crib set.” (Tr. 2:207). For Citation No. 6668591, Miller testified that “[t]he roof bolts were hanging down from the roof . . ., were no longer providing support for the roof, and the bearing plates were loose.” (Tr. 2:208). Also, Miller described the importance of bearing plates. “The bearing plate is what puts pressure on the roof to laminate it.” (Tr. 2:212). Miller compared sloughing to weathering. “In the winter months the mine dries out; in the spring and summer, the humidity comes back in . . ., the moisture cut[s] the roof, if it’s exposed, so it’s what we call sloughage.” (Tr. 2:211).

It was Miller’s opinion that the conditions in Citation Nos. 6668591 and 6668594 “should have been observed by mine personnel, agents of the operator, the examiners” due to the location of the cited conditions and the frequency of travel in that area. (Tr. 2:213). Miller believed that the conditions “had been there for awhile” because the draw rock was still hanging from the roof and there was draw rock on the floor. (Tr. 2:214-215). Miller noted these violations were in an older part of the Mine. (Tr. 2:215). Miller stated that in the past, there have been problems with the roof being inadequately supported in this area of the Mine. (Tr. 2:215). Furthermore, in issuing Citation No. 6668594, Miller noted that mine examiners had to travel in the cited area, because of the location of a transformer, which required examination. (Tr. 2:216-217).

Miller determined that the cited conditions were hazardous, because there were “no posts set or anything to keep that rib from rolling over.” (Tr. 2:216). In addition, no flagging had been put up in these areas to prevent people from traveling near these areas. Miller designated all three citations as high negligence, because “[t]here were obvious conditions that should have been observed and reported in the mine examiner’s books.” (Tr. 2:220). Miller stated that the injuries from loose ribs or roof falls can range anywhere from permanent disability to a fatal accident. (Tr. 2:217). Miller did not observe any mitigating factors for the three citations. (Tr. 2:218).

On cross-examination, Miller admitted that he had walked by the cited condition in Citation No. 6668587 on December 6, 2007, when he was on the way to issue a different citation. (Tr. 2:224). Miller did not see the cited condition at that time. (Tr. 2:225). Miller believed that the six to eight inch gap could not have occurred in the time it took him to return to the area. (Tr. 2:226). Miller testified that it is common for sloughage to occur on the ribs. (Tr. 2:234).

For Citation No. 6668591, Miller testified that it was his belief that the area had been mined out and was only used as a travelway between the two mines. (Tr. 2:240). Miller believed that “plenty of people” used the travelway including pumpers, examiners, and individuals hauling material. (Tr. 2:249-250). Miller testified that since the Mine was old, it needed more maintenance and thorough examinations. (Tr. 2:251-252).

Joe Myers, the Safety Director for Galatia North, testified that the area of the cited condition for Citation No. 6668587 was an area that was typically traveled by miners in vehicles with “protective canopies on top.” (Tr. 2:256). Myers also testified that, due to the location of the cited condition, when miners were traveling on golf carts, “[i]f they’re traveling in the middle of the entry, like most people do, it would be very unlikely that the rib would contact the golf cart or people on it.” (Tr. 2:257). If the rib sloughed off, it would not hit the miners. Myers also testified that it is not a normal routine for miners to walk that area. (Tr. 2:258).

With respect to Citation No. 6668591, Myers testified that the travelway is used by examiners, but it is not regularly traveled by miners. (Tr. 2:258). He stated that it is more common for miners to “[g]o across the top” to the New Era Main Portal, rather than driving through the travelway. (Tr. 2:259). Myers testified that inspectors had previously traveled through that area, but that these inspectors had never cited the mine for the sloughage described in Citation No. 6668594, even though Myers estimated the sloughage had existed for several months. (Tr. 2:262). Additionally, Myers stated that “[w]ith the sloughage that’s come down, somebody would have to physically climb up on this windrow or sloughage to be under unsupported top, because the main travelway where people travel is supported.” (Tr. 2:263).

On cross-examination, Myers testified that someone in a vehicle could be injured in a rib roll, but it was his opinion that “the coal itself would not trap them or pin them, because obviously the rib roll, in my opinion, would break, would crumble, and would not pin them in an injury fashion.” (Tr. 2:275).

Mike Smith, a Safety Specialist who oversaw the Galatia North Mine in December 2007, accompanied Miller on the day that Citation No. 6668591 was issued. (Tr. 2:289). Smith testified that, to get under the unsupported part of the roof, an individual would have had to climb on top of the pile of sloughed material. (Tr. 2:291). Smith recalled previously traveling in that area with other inspectors who had seen the cited conditions, yet had not issued citations. (Tr. 2:291-292). Also, Smith did not believe that it was reasonably likely that there would be a roof fall due to the condition of the roof bolts. (Tr. 2:293).

2. Summary of the Parties’ Arguments

The Secretary argues that Miller correctly determined that all three violations were S&S and that Miller correctly determined that a permanently disabling or fatal injury was reasonably likely to occur from a roof fall or rib roll due to the cited conditions. (Sec’y Br. 13). The Secretary rests this argument on the serious hazard presented, noting that “roof falls remain the leading cause of death in underground mines.” (Sec’y Br. 13-14). The Secretary argues that AmCoal allowed these sections of the Mine to deteriorate, despite the fact that “[t]hese travelways are main haul roads that are frequently traveled by mine managers, examiners, state and federal inspectors, and miners on a regular basis.” (Sec’y Br. 14).

Next, the Secretary argues that the violations were the result of high negligence. (Sec’y Br. 14). The Secretary rests this argument on AmCoal’s previous safety issues in letting miners travel on unsafe paths. (Sec’y Br. 14). Additionally, the Secretary reiterates that AmCoal failed to mitigate the hazard. (Sec’y Br. 15). Finally, the Secretary argues that the proposed penalties are appropriate. (Sec’y Br. 15).

AmCoal challenges the S&S designation on all three of the citations, arguing that “it was not reasonably likely that individuals would be injured from the cited condition.” (AmCoal Br. 13-15). For Citation No. 6668587, AmCoal argues that the cited condition was located in a travelway where individuals typically travel on some type of vehicle or equipment. (AmCoal Br. 13). Therefore, “[b]ecause these individuals would be traveling faster than walking speed and because they would be shielded by the vehicles as they traveled past the condition, it would be unlikely that an injury would occur.” (AmCoal Br. 13). Because of this protection, AmCoal argues that it is unlikely that an injury would be permanently disabling. (AmCoal Br. 13). AmCoal seeks a reduction on the negligence determination for this citation because Miller characterized the incident as an “open and obvious condition,” yet Miller conceded that he did not see the condition the first time he walked by it that day. (AmCoal Br. 14). Since conditions can deteriorate rapidly, AmCoal argues that it was not established when the condition presented itself. (AmCoal Br. 14). Therefore, AmCoal would like the negligence finding reduced to, at most, low negligence. (AmCoal Br. 14).

In regard to both Citation Nos. 6668591 and 6668594, AmCoal argues that the cited conditions took place in an older part of the Mine, which was infrequently used by miners. (AmCoal Br. 14-15). Only certain people, mainly examiners and inspectors, traveled in this area, and when they did travel in this area, they were typically in vehicles. (AmCoal Br. 14-16). AmCoal also argues that it should be a mitigating circumstance that MSHA inspectors had previously witnessed the cited conditions, yet had never noted or cited the condition in the past. (AmCoal Br. 15-16).

For Citation No. 6668591, AmCoal argues that the “unsupported portion of roof at crosscut 51 was due to a corner that had sloughed off years ago and was known by mine personnel.” (AmCoal Br. 14). Due to its location, AmCoal urges that it is unlikely that anyone would be under the cited condition. (AmCoal Br. 14). Additionally, for crosscut 86, AmCoal argues that the roof bolts provided support and that people infrequently traveled in that area. (AmCoal Br. 15).

AmCoal contends that its negligence was low with respect to the three violations. With respect to Citation No. 6668587, Inspector Miller traveled through the area at least once without observing the violation. With respect to Citation Nos. 6668591 and 6669594, the cited conditions had existed for years and had been observed by MSHA inspectors without being previously cited.

3. Discussion and Analysis

The Secretary established all three violations. I find that the Secretary established that Citation Nos. 6668587 and 6668594 were S&S. The fact that most travel through the cited areas was in golf carts does not negate the fact that it was reasonably likely that the hazard contributed to by the violation would result in an injury, assuming continued normal mining operations. The cited conditions created a serious hazard to miners. I find, however, that the golf cart canopies did provide some level of protection and I reduce the gravity from “permanently disabling” to “lost workdays or restricted duty” in Citation No. 6668587. I find that the evidence does not establish that a permanently disabling injury was likely. I have also taken into consideration the fact that, with respect to Citation No. 6668594, the Galatia North travelway was in an older part the mine and was infrequently used. For that reason, I similarly reduce the gravity of that citation.

I find that the Secretary also established that Citation No. 6668591 was S&S. The cited areas were at the corners of several crosscuts. I credit the testimony of Myers and Smith that a miner would have to climb up on top of existing sloughage at Crosscut 51 to be exposed to the unsupported roof. This condition, by itself, would not establish an S&S violation. The cited area at Crosscut 86, however, did create a condition that would be reasonably likely to contribute to an injury. The roof bolts and bearing plates were not flush against the roof. I reduce the gravity from “permanently disabling” to “lost workdays or restricted duty.”

I find that the negligence of AmCoal with respect to all three violations was moderate. The evidence does not establish that AmCoal exhibited a high degree of negligence with respect to the cited conditions. The fact that other unrelated problems had been encountered along the cited travelways did not put AmCoal on heightened notice to look for roof and rib problems. The conditions had existed for a lengthy period of time, a number of MSHA inspectors had traveled through the area, and no citations were previously issued. I credit the testimony of Inspector Miller as to the conditions he observed but I credit Myers and Smith as to the length of time the conditions existed. The Galatia North Travelway was infrequently used and had been inspected many times by MSHA without citations being issued. A penalty of $5,000 for each of these citations is appropriate.

F. Citation No. 6673604

On December 7, 2007, Inspector Dean Cripps issued Citation No. 6673604 under section 104(a) of the Mine Act for an alleged violation of section 75.400 of the Secretary’s safety regulations. The citation alleges:

Combustible material in the form of hydraulic oil and motor oil was allowed to accumulate on the RC06 Jeffrey diesel ram car located on the Flannigan 1st West longwall. The oil was present on the top and sides of the diesel engine. Three of the service brake discs and calipers were coated with oil.

(Ex. K). The inspector found that injury or illness is reasonably likely to occur and that the injury or illness could reasonably be expected to be lost workdays or restricted duty, that the violation was S&S, that ten people would be affected, and that the violation was the result of moderate negligence. The Secretary has proposed a civil penalty in the amount of $10,437.

1.Background Summary of Testimony

Inspector Dean Cripps testified for the Secretary. (Tr. 3:4). Cripps is an electrical engineer for the U.S. Department of Labor, as well as an inspector for MSHA. (Tr. 3:5). He has worked for MSHA for approximately nineteen and a half years. (Tr. 3:5). On the day of the citation, Cripps was performing an E01 inspection. (Tr. 3:7).

Cripps testified that hydraulic oil and motor oil are combustible. (Tr. 3:10). Cripps stated that the cited accumulations were in an active working area. (Tr. 3:11). Cripps believed that the oil was due to leaks on the equipment. (Tr. 3:11-12). He said that the condition created a hazard, because brakes operate through friction.

When you step on the brake pedal, friction is applied to the calipers. The pads close in tight on the disk that’s moving and friction is what causes the machine to stop. Anytime you have friction you have possibility of build up of heat.

(Tr. 3:13-14). Cripps testified that this could cause a fire, and since the ram cars travel on the main intake, the fresh air might “help propagate that fire and to keep it going, and to also spread the results of that fire inby where men would be working.” (Tr. 3:14). Cripps believed that this condition should have been found during the weekly inspection of the ram car. (Tr. 3:15).

Cripps determined that ten people would be affected by the condition, because the machine is operated in the intake and primary escapeway. If a fire occurred, it would affect everyone on the section. (Tr. 3:17-18). Cripps believed both an ignition source and combustible material were present. (Tr. 3:22). Cripps designated the incident as moderate negligence, because he “probably” didn’t see a notation of the condition in the record books, so he was unsure if management had actual knowledge of the condition. (Tr. 3:22). Cripps recalled previous conversations that he had with management about the “condition of diesel equipment in general, leaks on these brake calipers.” (Tr. 3:23).

Cripps designated the cited condition as S&S, because he determined an accident “was reasonably likely to occur, due to the fact that the combustible material was present on the brakes, calipers and the brake disks.” (Tr. 3:24).

On cross-examination, Cripps looked at his notes to determine that on December 7, 2007, there was a ventilation change occurring and that the only people underground would have been working on the ventilation change. (Tr. 3:26-27; AmCoal Ex. 68). Cripps did not know whether the cited ram car was used on December 7, 2007. (Tr. 3:31). Cripps agreed that if the ram car sat idle for a shift, it would not pose a hazard. (Tr. 3:39). Cripps stated, however, that if “the ram car is there, it’s ready to go, it’s not tagged out of service, it’s available for use, so an operator could go up there, get on it and drive it . . . .” (Tr. 3:57). Besides the accumulations, Cripps did not identify any additional problems with the ram car’s engine. (Tr. 3:42). Cripps did not measure the temperature of the engine, but he believed that the temperature of the engine would be less than the ignition temperature of motor oil. (Tr. 3:44).

Joe Myers, the Safety Director at the Galatia North Mine, testified that on December 7, 2007, the area where the citation was issued was idle and he was not aware of any personnel in that section. (Tr. 2:264). Myers discussed the fire suppression systems available if a fire were to occur on a Jeffrey diesel ram car, including automatic fire suppression and a hand-held fire extinguisher. (Tr. 2:265). It was his opinion that if a fire had broken out on the ram car, then only one person, the operator, would be affected. (Tr. 2:266). Myers could not recall whether the specific ram car was being used on December 7, 2007. (Tr. 2:278). Myers agreed that, even with the existence of oil, there could be friction, which could produce heat, between the brake pads and discs. (Tr. 2:280).

2. Summary of the Parties’ Arguments

The Secretary argues that AmCoal’s violation was S&S. (Sec’y Br. 15). The Secretary bases this argument on Cripps’ testimony of observing “the sides of the engine and three of four service brake discs and calipers covered in oil due to obvious leaks.” (Sec’y Br. 15). The Secretary alleges that AmCoal allowed these accumulations to build up on the ram car. (Sec’y Br. 15). Accordingly, the Secretary argues that this condition was a fire danger. (Sec’y Br. 15).

The Secretary argues that Cripps’ finding that ten people would be affected is reasonable, since the ram car generally travels all over the Mine. (Sec’y Br. 15-16). Finally, the Secretary argues that the proposed penalty is appropriate. (Sec’y Br. 16).

AmCoal first challenges the finding that the violation was S&S, because “it was not reasonably likely that individuals would be injured from the cited condition.” (AmCoal Br. 16). AmCoal argues that “the Secretary failed to prove that the oil on the engine could have provided a fuel source for a fire or that the engine somehow posed an ignition source.” (AmCoal Br. 17). In terms of the hydraulic oil on the ram car brakes, AmCoal argues that since there were no temperature measurements taken, it is unknown whether the brakes would heat up to the flashpoint of the oil. (AmCoal Br. 17). Also, since there was a longwall recovery occurring in another mine portal, it was unlikely that anyone would have used the ram car. (AmCoal Br. 17).

AmCoal challenges the finding that ten people would be affected because AmCoal argues that Cripps neither accounted for the number of employees working at that time nor accounted for the fact that the Mine was idle. (AmCoal Br. 17). AmCoal believes that only one or two people were potentially affected by the cited condition. (AmCoal Br. 18).

3. Discussion and Analysis

I find that the Secretary established a violation of the safety standard but she did not establish that the violation was S&S. First, the inspector admitted that the temperature of the engine would normally be less than the ignition temperature of the oil. There were no defects found on the engine that would cause it to overheat and start a fire. Second, there was no showing that friction on the brakes would ignite oil on the discs or calipers. It takes high heat to ignite motor oil and hydraulic oil. See e.g. Highland Mining Co., LLC, 30 FMSHRC 1097, 1100-02 (Nov. 2008) (ALJ). In addition, I find that it was unlikely that, if oil on the brakes did start smoking, this event would contribute to any injuries to miners. There was no showing that smoking brakes would create a serious fire or bellowing smoke that would engulf the section. I also credit the evidence that it was unlikely that anyone would use the ram car during the shift because the longwall equipment was being moved to a new panel. Thus, I find that the third element of the Mathies test was not met. The gravity was serious, however. I find that the evidence establishes that only 1 or 2 people would potentially be affected if a fire did start. The inspector testified that oil on the service brake pads could increase the stopping distance of the ram car which could contribute to an accident. I note, however, that the citation does not contain such an allegation with the result that it is not part of this case. I affirm the inspector’s moderate negligence determination. A penalty of $7,000 is appropriate.

G. Citation No. 6673606

On December 8, 2007, Inspector Dean Cripps issued Citation No. 6673606 under section 104(a) of the Mine Act for an alleged violation of section 75.1914(a) of the Secretary’s safety regulations. The citation alleges:

The RD01 Jeffrey diesel rock duster was not being maintained in approved condition. The following conditions were observed: 1) the lid on the air solenoid control box was open; 2) the exhaust back pressure gauge did not function.

(Ex. L). The inspector found that injury or illness was unlikely to occur and that injury or illness could reasonably be expected to be lost workdays or restricted duty, that the violation was not S&S, that ten people would be affected, and that the violation was the result of moderate negligence. Section 75.1914(a) of the Secretary’s regulations requires that: “[d]iesel-powered equipment shall be maintained in approved and safe condition or removed from service.” 30 C.F.R. § 75.1914(a). The Secretary has proposed a civil penalty in the amount of $1,530.

1.Background Summary of Testimony

Inspector Cripps testified that the rock duster was in the shop, but not tagged out of service. (Tr. 3:66). Cripps clarified that if the equipment had been tagged out of service, he would not have issued the citation. (Tr. 3:66). Cripps stated that “[i]f it’s out of service, it generally will have, or should have, a tag on it marking why it’s out of service.” (Tr. 3:67). If a vehicle is “just parked there, . . . it can be started up and used and operated.” Id.

Inspector Cripps testified that equipment operators sometimes open the solenoid control box to manually manipulate the solenoid to get the equipment to start. (Tr. 3:68). This process overrides the safety systems in the equipment and the automatic safety shutdowns will not work. (Tr. 3:68-69). Cripps stated that he had previously brought up this concern to AmCoal operators. (Tr. 3:69). Cripps listed the cited condition as affecting ten people, because the rock duster was parked at the bottom shop in the Flannigan Portal and it is regularly operated in the primary escapeway. (Tr. 3:72). Cripps clarified that he saw that the solenoid box was opened, but that he did not know if the solenoid had been bypassed. (Tr. 3:73).

Joe Myers testified for AmCoal. (Tr. 2:255). Myers first addressed the open lid on the solenoid control box and stated that “I don’t believe there is a hazard for the lid not being sealed or secured.” (Tr. 2:268). Also, Myers testified that most of the boxes are flat, so the lid would shut on its own. Id. Myers then addressed the back pressure gauge and stated that the purpose of the gauge is “for the operator to view the pressure that the particular filter has on the back pressure, that the exhaust has going to the filter.” (Tr. 2:269). Myers testified that the rock dusters have a temperature trip, which shuts down the equipment if it overheats. (Tr. 2:271). He stated that the gauge does not control any automatic protective device. (Tr. 2:271). Myers did not believe it to be a hazard if the gauge was not properly working. (Tr. 2:271-272). Myers also testified as to the various fire suppression and safety systems in the repair shop, where the rock duster was parked. (Tr. 2:284-285). Myers testified that equipment is typically parked at the repair shop so that it can be worked on. (Tr. 285).

2. Summary of the Parties’ Arguments

The Secretary argues that Cripps properly established that AmCoal violated section 75.1914(a). (Sec’y Br. 16). The Secretary argues that the equipment was not in approved condition and that the equipment was not tagged out of service. (Sec’y Br. 16).

The Secretary argues that Cripps established that the only reason a solenoid box would be open would be so that it could be manipulated, which would have dismantled the safety devices. (Sec’y Br. 16). The Secretary further argues that “in the unlikely event of a fire on the machine, everyone in the surrounding area would have been affected.” (Sec’y Br. 16). The Secretary refers to Cripps’ testimony that he had previously brought up the problem of open solenoid boxes to AmCoal and that AmCoal failed to comply. (Sec’y Br. 17). Last, the Secretary argues that the proposed penalty is appropriate. (Sec’y Br. 17).

AmCoal first argues that the number of people affected should be reduced to one or two persons, because the Mine was idle and because Cripps’ estimate of 10 individuals affected was based on speculation. (AmCoal Br. 18). Next, AmCoal believes that mitigating circumstances existed and therefore challenges the negligence determination. (AmCoal Br. 18). AmCoal argues that there is no evidence that the solenoid box was open so that the safety devices could be bypassed. (AmCoal Br. 18). AmCoal also argues that since the rock duster was at the repair shop, it could have been there for repairs, but not yet tagged out of service. (AmCoal Br. 18). Also, AmCoal addresses the back pressure fuel gauge and argues that “in the event of its malfunction, the AMOT would still operate normally and shut down the rock duster and prevent overheating or fire.” (AmCoal Br. 19).

3. Discussion and Analysis

AmCoal did not contest the fact of violation. It is contending that the violation was not as serious because it would only have potentially affected one or two people, including the equipment operator. I agree. There is no credible evidence that ten miners would be affected by this violation. It was highly unlikely that this violation would result in a fire that would affect ten miners.

As to negligence, AmCoal asserts that its negligence should be low. Inspector Cripps testified that the solenoid box was open because the equipment operator must have been manually manipulating the solenoid to override the safety systems. I do not doubt the inspector’s testimony that this has occurred at the mine but there is certainly no direct proof that this occurred in this instance. The back pressure gauge is designed to tell the equipment operator when it is time to replace the particulate filter. The temperature trip still functions whether the gauge is working or not. It is significant that the equipment was in a repair shop. There is no affirmative testimony as to why it was in the shop, but it could well have been there to repair any number of items on the rock duster, including components within the air solenoid control box and the back pressure gauge. I agree with the inspector that the rock duster was available for use but, given the fact that the mine was idle, it was not likely that it would be used.

I find that the gravity of this violation was low and that AmCoal’s negligence was low. A penalty of $800 is appropriate.

II. SETTLED CITATIONS

A number of the citations at issue in these cases settled, either prior to the hearing, during the hearing, or after the hearing. The terms of the settlements are set forth below:

LAKE 2008-38

By order dated February 17, 2011, I approved the Secretary’s motion for partial settlement for 15 of the 20 citations at issue in this docket in the amount of $21,404. In addition, the parties have now agreed to settle four citations that were based on notices to provide safeguards. These are Safeguard Citation Nos. 6667312, 7490989, 7490559, and 7490851. The total proposed settlement for these citations is $9,640.

LAKE 2008-142

By order dated February 17, 2011, I approved the Secretary’s motion for partial settlement for 14 of the 20 citations at issue in this docket in the amount of $12,918.

LAKE 2008-525

By order dated February 17, 2011, I approved the Secretary’s motion for partial settlement for 18 of the 20 citations at issue in this docket in the amount of $41,921.

III. APPROPRIATE CIVIL PENALTIES

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

IV. ORDER

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

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

LAKE 2008-38

7490558 75.509 $15,000.00

LAKE 2008-142

6668585 75.400 2,000.00

6668587 75.202(a) 5,000.00

6668591 75.202(a) 5,000.00

6668594 75.202(a) 5,000.00

6663604 75.400 7,000.00

6673606 75.1914(a) 800.00

LAKE 2008-525

7490536 75.400 40,000.00

7490556 75.362(d)(1)(ii) 10,000.00

SETTLED SAFEGUARD CITATIONS 9,640.00

TOTAL PENALTY $99,440.00

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, and VACATED as set forth above. The American Coal Company is ORDERED TO PAY the Secretary of Labor the sum of $99,440.00 within 30 days of the date of this decision.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

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

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

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

RWM

SECRETARY OF LABOR,	:	CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH	:
ADMINISTRATION (MSHA),	:	Docket No. LAKE 2008-38
Petitioner	:	A.C. No. 11-02752-129287-01
	:
	:	Docket No. LAKE 2008-142
v.	:	A.C. No. 11-02752-136300-05
	:
	:	Docket No. LAKE 2008-525
	:	A.C. No. 11-02752-153962-01
THE AMERICAN COAL COMPANY,	:
Respondent	:	Galatia Mine