Appearances: Schean G. Belton, Office of the Solicitor, U.S. Department of Labor,

Before me for consideration are Petitions for the Assessment of Civil Penalty filed by the Secretary of Labor (“the Secretary”) pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 820(a), against the Respondent, Cam Mining LLC (“Cam Mining”). These matters concern the disposition of two alleged violations of mandatory safety standards contained in 30 C.F.R. Part 75 of the Secretary’s regulations governing underground coal mines.

Docket No. KENT 2009-1426 is a single penalty proceeding containing 104(a) Citation No. 8222328, that alleges a significant and substantial (“S&S”) violation of section 75.400 which prohibits a mine operator from permitting float coal dust to accumulate on electrical equipment located in active workings.

30 C.F.R. § 75.400. The Secretary seeks to impose a civil penalty of $1,337.00 for Citation No. 8222328.

Docket No. KENT 2009-955 contains 45 citations, with a total proposed civil penalty of $38,372.00. The parties proffered a comprehensive partial settlement agreement for approval, resolving 44 of the subject 45 citations. The parties agreed to a reduction in proposed penalties for the 44 settled citations from $37,787.00 to $29,474.00. The settlement terms include a reduction in the degree of negligence attributable to Cam Mining for the violative conditions in six citations, deleting the S&S designation for five citations, and a reduction in the gravity assessed for two citations. The specific terms of the agreement are contained in the parties’ May 22, 2012, written motion for approval of their partial agreement and are incorporated by reference. The settlement terms for the 44 citations were approved on the record. (Tr. 5).

The Secretary proposes a civil penalty of $585.00 for remaining Citation No. 8222333 in Docket No. KENT 2009-955. Citation No. 8222333 alleges an S&S violation of the mandatory safety standard in section 75.512-2, which requires weekly electrical examinations. 30 C.F.R. § 75.512-2. Thus, the total proposed civil penalty for the two citations in issue is $1,922.00.

The hearing in these proceedings was conducted on June 6, 2012, at the Commission’s headquarters in Washington, D.C. At the culmination of the hearing, the parties were urged to settle these matters based on my preliminary evaluation of the record. However, the parties failed to reach an agreement and have elected to file joint stipulations in lieu of post-hearing briefs. (Joint Stip. 1-12, filed Aug. 12, 2012).

There are two overlapping production shifts and one maintenance shift at Cam Mining’s No. 28 Mine. The first is the day production shift from 6:00 a.m. until 3:00 p.m. The second is the night production shift from 2:00 p.m. until 11:00 p.m. The third, or midnight shift, is a maintenance shift that begins at 11:00 p.m. and ends at 7:00 a.m. (Tr. 35-36).

Kilovolt Amp (kVA) boxes, also called transformer boxes, power belt drives, pumps and lights. (Tr. 52). A typical kVA box is approximately 4 feet high by 6 feet wide, and fifteen feet long. (Tr. 53; Gov. Ex. 3). The boxes contain vent openings to permit heat to escape, which also allow dust to enter. (Tr. 62). It is common for a kVA box to have rust and discoloration inside. (Tr. 137). These transformer boxes are highly energized at 7200 volts. To prevent contact with energized conductors, coal production must be discontinued and transformers de-energized before transformer boxes can be safely opened. (Tr. 65).

Kenneth Fleming, the issuing Mine Safety and Health (MSHA) Inspector in these matters, described the standard method for electrical examinations of kVA boxes. Since transformers cannot be routinely opened for weekly on-shift electrical examinations without interrupting mining operations, each box is designed with a 10 inch by 10 inch window “for purposes of doing examinations.” (Tr. 55, 136). Fleming testified that a typical examination involves kneeling down on the mine floor while using the battery light from a hard hat to view the inside of the box and its electrical connection points. (Tr. 57).

The two citations adjudicated in these matters involve one of several kVA transformer boxes, designated as box 3C, located in the No. 28 Mine. Citation Nos. 8222328 and 8222333 were issued, respectively, for violative accumulations of float coal dust approximately 1/8 inch

in depth in the 3C kVA box, and, an alleged inadequate weekly electrical examination believed to be insufficient because it did not identify the cited 3C transformer box accumulations.

B. 104(a) Citation No. 8222328 - Accumulations

Section 75.512 of the Secretary’s regulations requires weekly recorded examinations of electrical equipment. See 30 C.F.R. §§ 75.512, 75.512-2. During the second production shift on Monday, February 9, 2009, Enos Little, Cam Mining’s electrical examiner, conducted his weekly electrical examination. Little’s examination report noted that kVA boxes 1 through 8, 3A, 3B and 3C were “O.K.” (Tr. 73; Gov. Ex. 6 at 4; Joint Stip. 1).

Inspector Fleming arrived at the mine site the following morning, at 6:30 a.m., on Tuesday, February 10, 2009. (Tr. 42). Fleming testified that he is required to inspect each belt conveyor in its entirety. That day, Fleming inspected the 3C belt conveyor at the loading point, the belt drive, and the starter box, as well the associated components for the belt drive. (Tr. 48). Fleming noted “just a light coating of accumulations” along the mine floor of the 3C conveyor for approximately 25 breaks, that he characterized as “paper thin” in extent. (Tr. 49). Fleming proceeded to inspect the 3C kVA transformer box located in proximity to the 3C belt conveyor drive. Using his caplight to provide illumination through the transformer box’s observation window, Fleming observed a ‘black powdery substance’ which looked like float dust on the floor of the box and on the conductors. (Tr. 58). Specifically, Fleming noted cone-shaped accumulations approximately 1/8 inch deep on the phase leads. (Tr. 59).

As a result of his observations, on February 10, 2009, Fleming issued Citation No. 8222328, citing a violation of the mandatory standard in section 75.400, that prohibits float coal dust on rock-dusted electrical equipment. Citation No. 8222328 states:

Accumulations of combustible material in the form of black, powdery float coal dust have been allowed to exist inside the kVA box (S/N 11425) at the #3C belt conveyor drive. These accumulations are evident through the boxes [sic] inspection window and appear to be approximately 1/8 of an inch in depth and are deposited upon the energized components and the boxes [sic] floor. This condition exposes miners to hazards associated with fire and/or dust ignition on a regular basis. Management has been put on notice that greater efforts are needed toward compliance with this mandatory standard.

(Gov. Ex. 4).

Fleming designated the cited violation as S&S, because he believed there was a discrete hazard of a dust ignition that jeopardized the health and safety of the 15 to 20 miners that were assigned to the 3C working section. (Tr. 109). However, Fleming did not observe any defects in the electrical components of the transformer box. As the cited accumulations were approximately 1/8 inch in extent, Fleming initially attributed the violation to a moderate degree of negligence. (Gov. Ex. 4). The citation required Cam Mining to abate the cited accumulations in the 3C box prior to 3:00 p.m. on the following day. (Tr. 148).

Fleming did not examine any other kVA boxes during his inspection on the morning of February 10, 2009. (Tr. 48). To comply with the abatement requirement, that evening, Cam Mining’s third-shift chief electrician Douglas Gray removed the lid on the 3C kVA box and cleared the accumulations with a leaf blower. (Tr 206; Joint Stip. 3). Although no analysis of the combustible content was performed, Gray believed, based on his observations after the lid was removed, that the accumulations were primarily rock dust because they were gray in color. (Tr. 207-08). Gray testified that he advised Fleming of his opinion that the accumulations were primarily rock dust when Fleming arrived at the mine at 6:50 a.m. on February 11, 2009, as the maintenance shift was ending and the day shift was beginning. (Tr. 209).

Although Citation No. 8222328 was initially issued as a 104(a) citation, as discussed below, after reviewing the weekly electrical examination book upon his return to the mine on February 11, 2009, Fleming modified the citation to a 104(d)(2) order, to reflect that the cited violation was attributable to a high degree of negligence evidencing an unwarrantable failure. (Gov. Ex. 5 at 2). The unwarrantable failure was based on Little’s February 9, 2009, weekly electrical examination report which did not reflect accumulations in the 3C transformer box. (Tr. 73; Joint Stip. 4, 5).

On May 24, 2012, the Secretary filed an uncontested motion to return 104(d)(2) Order No. 8222328 to a 104(a) citation, by modifying Cam Mining’s negligence to moderate, thus deleting the unwarrantable failure designation. The Secretary’s motion did not provide an explanation for the modification. Thus, the issue of unwarrantable failure is no longer at issue in this proceeding.

C. 104(a) Citation No. 8222333 - Electrical Examination

As noted, Fleming viewed the weekly electrical examination record book upon his arrival at the mine during the early morning hours on February 11, 2009. Fleming believed that Little’s failure to note the accumulations in the 3C box during his weekly electrical examination was indicative of a perfunctory examination. (Tr. 70). Consequently, Fleming issued Citation No. 8222333, citing section 75.512-2 for an inadequate weekly electrical examination. (Joint Stip. 4, 6). Citation No. 8222333 states:

An inadequate electrical examination has been performed on the #3C belt conveyor transformer S/N 11425. The examination record indicates that the examination performed on 2-9-09 revealed no hazardous conditions. However, on 2-10-09 an MSHA inspector observed accumulations of black float coal dust deposited on the inside, energized phase conductors and floor, which resulted in the issuance of a violation of 75.400. This condition was observed through the boxes [sic] provided inspection window and would be obvious to any reasonably prudent person familiar with the requirements of this type of examination. This condition of performing inadequate electrical examinations exposes miners to a wide variety of serious hazards on a daily basis.

(Gov. Ex. 7) (emphasis added).

Fleming considered the alleged inadequate weekly electrical examination to be S&S as a consequence of the failure to alleviate the hazard posed to section personnel in the event of a coal dust ignition. Fleming attributed Little’s failure to identify the 1/8 inch of accumulations in the 3C transformer box for corrective action to a moderate degree of negligence. (Gov. Ex. 7).

Although Fleming had only inspected transformer 3C, Fleming ordered Cam Mining to conduct a thorough electrical re-examination of all of its transformers, designated as boxes 1 through 8, 3A, 3B and 3C. (Tr. 80-81). Fleming cautioned that “allowing accumulations to exist is unacceptable,” and that any accumulations must be recorded in the examination book. (Tr. 82).

Consistent with Fleming’s admonition, Little re-examined the kVA transformers during the 2^nd production shift on February 11, 2009. (Tr. 83). Little’s examination notes reflected:

Boxes 1, 2 and 3: “Light accumulations of light gray dust.”

Boxes 4 through 7: “Transformer need cleaned.”

Box 8: “Light accumulations of gray dust.”

Box 3A: “Transformer and splitter box needs cleaned.”

Boxes 3B and 3C: “Transformer O.K.” (Little’s re-examination

occurred after Gray had removed the accumulations in kVA box 3C).

(Gov. Ex. 6; Joint Stip. 7). Having previously cleaned transformer 3C, following Little’s re-examination Gray cleaned transformers 4 through 8 during his maintenance shift. (Gov. Ex. 6; Tr. 214; Joint Stip. 8). As noted above, Gray considered the accumulations to be primarily rock dust. (Tr. 209).

Fleming returned to the mine at 8:30 a.m. the following morning, February 12, 2009, to confirm, for abatement purposes, that Little had conducted an adequate electrical re-examination. (Tr. 81; Joint Stip. 9). Although he found Little’s re-examination adequate, Fleming noted that corrective action had been taken for some, but not all, of the conditions reported by Little. (Tr. 95; Joint Stip. 10). Fleming did not have an opportunity to further view the accumulations in the cited 3C transformer box before they were cleaned by Gray. Fleming also did not observe the conditions inside transformer boxes 4 through 8 before they had been cleaned by Gray, so the nature and extent of any accumulations that had existed in those boxes is unclear.

However, Fleming testified that he did observe the internal conditions of transformer boxes 1, 2, 3, 3A and 3B, which had not been cleaned by Gray, after these boxes were de-energized and the lids were removed. (Tr. 128; Joint Stip. 11). Fleming observed that box 3B was free of accumulations. Although Little had noted accumulations in boxes 2 and 3A, Fleming concluded that the conditions in those boxes did not constitute accumulation violations after viewing the accumulations directly with the transformer lids removed. (Tr. 96-100).

Fleming issued section 75.400 citations for accumulations in transformers 1 and 3 that are not subjects of these proceedings. Based on his preliminary inspection through the observation windows, Fleming initially contemplated issuing S&S citations for these violative coal dust accumulations. However, Fleming determined that “after [the] KVA lids were removed [and] visually examined, [the] accum[ulations] . . . were not as bad as seen [through the] inspection windows.” (Gov. Ex. 8 at 6; Tr. 128; Joint Stip. 12). Consequently, the citations issued for transformer boxes 1 and 3 were designated as non-S&S. (Tr. 98-99). Thus, it is significant that Fleming’s opinions with respect to the S&S nature and extent of the accumulations based on his initial observations through the examination windows were not confirmed by his subsequent inspection after the lids were removed. In the final analysis, after the lids on the uncleaned transformers were removed, Fleming did not observe any evidence of S&S accumulations in transformers 1, 2, 3, 3A and 3B. (Gov. Ex. 8 at 6; Tr. 99).

II. Further Findings and Conclusions

A. 104(a) Citation No. 8222328 – Accumulations

1. Fact of Violation

It is axiomatic that the Secretary has the burden of proving every element of a cited violation. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). Thus, the Secretary must establish, by a preponderance of the evidence, that Cam Mining violated section 75.400 by permitting float coal dust to accumulate on electric equipment. Cam Mining asserts the cited coal dust accumulations in the 3C transformer box consisted primarily of incombustible rock dust. The Secretary contends the accumulations were composed of combustible float coal dust.

As a threshold matter, whether conditions constitute accumulations prohibited by section 75.400 should be committed to the broad discretion of the mine inspector. Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 1980); Amax Coal Co., 19 FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480, 483 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 19-20 (Jan. 1997) (Marks, concurring). Thus, Fleming’s opinion with respect

to the accumulation conditions in transformer box 3C constituting a violation is entitled to considerable weight. Even if the accumulations observed by Fleming contained incombustible rock dust, the Commission has rejected “a construction of [section 75.400] that excludes loose coal . . . mixed with noncombustible materials [because it] defeats Congress’ intent to remove fuel sources from mines and permits potentially dangerous conditions to exist.” Black Diamond

Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985). Given the deference accorded to theobservations of mine inspectors, Cam Mining’s assertion that the cited accumulations consisted of non-violative rock dust must fail.

Moreover, Cam Mining’s asserted rock dust defense is inconsistent with Little’s February 11, 2009, electrical re-examination, which reflected that transformer boxes 1 through 8 and 3A needed cleaning. Although this matter involves the conditions inside transformer box 3C, the general conditions of accumulations within the other transformer boxes are relevant because they were exposed to similar atmospheric mine conditions. While it is true that Fleming required Little to ‘thoroughly’ inspect the transformer boxes, the fact remains that Little conceded dust accumulations were present. As discussed above, Little’s notations that some of these accumulations were gray in color do not, alone, in the absence of combustibility analysis, discredit Fleming’s conclusion that an accumulation violation had occurred. Consequently, the Secretary has satisfied her burden of establishing that the cited section 75.400 violation occurred.

2. S&S

As a general proposition, a violation is properly designated as S&S in nature if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or an illness of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained:

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

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission explained its Mathies criteria as follows:

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

The Commission subsequently reasserted its prior determination that as part of any S&S finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of the hazard contributed to by the cited violative condition or practice. Peabody Coal Co., 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).

Resolution of whether a particular violation of a mandatory standard is S&S in nature must be made assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC at 1130. Thus, consideration must be given to both the time frame during which the violative condition existed prior to the issuance of a citation, and the time that it would have existed if normal mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc.,

8 FMSHRC 8, 12 (Jan. 1986).

It is clear that the first, second and fourth elements in Mathies necessary for an S&S designation have been met. In this regard, the Secretary has demonstrated a violation of section 75.400 that poses the discrete hazard of a coal dust ignition, and that serious injury or death will result if such an ignition were to occur. The remaining third element - whether it is reasonably likely that the hazard contributed to by the violation will result in an event causing serious injury - is more problematic.

The Commission and Congress have recognized that accumulations of combustible material constitute hazardous conditions, as any combustible material, when placed in suspension, can propagate an explosion. Enlow Fork Mining Co., 19 FMSHRC at14 (citing S. Rep. No. 411, 91st Cong., 1st,ess. 65 (1969)), reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 191 (1975). However, the essence of the S&S determination in this matter is whether it is reasonably likely that the hazard contributed to by the cited accumulations of approximately 1/8 inch in depth will result in an ignition causing serious or fatal injuries. Bellefonte, 20 FMSHRC at 1254-55.

As a general matter, accumulations prohibited by section 75.400 are not significant and substantial per se. Thus, in assessing the likelihood of an ignition caused by a combustion hazard, the Commission looks to whether there is a “confluence of factors” present based on the particular facts surrounding the violation that would make a fire, ignition, or explosion reasonably likely. Texasgulf, 10 FMSHRC 498, 501 (Apr. 1988). Some of these factors include the extent of the accumulations, possible ignition sources, the presence of methane, and the type of equipment in the area. Enlow Fork Mining Co., 19 FMSHRC at 9 (citing Utah Power & Light Co., 2 FMSHRC 965, 970-71 (May 1990)); Texasgulf, 10 FMSHRC at 500-03.

Applying the Texasgulf analysis with respect to “confluence of factors,” the Secretary’s characterization of the cited accumulations must fail for several reasons. Direct evidence is “[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.” Circumstantial evidence is “[e]vidence based on inference and not on personal knowledge or observation.” Black’s Law Dictionary 636 (9^th ed. 2009).

Here, the evidentiary facts relied on by the Secretary to prove S&S are based on indirect observation obtained under poor viewing conditions rather than personal knowledge gained through normal direct observation. Such indirect observations cannot be relied on as direct evidence (personal knowledge) establishing the true nature and extent of the subject accumulations.

While it is not uncommon for the Secretary to establish the elements of a violation by inference, there must be a “logical and rational connection between the evidentiary facts and the ultimate fact inferred.” Mid-Continent Resources, 6 FMSHRC 1132, 1138 (May 1984). In this instance, the Secretary, in effect, seeks to establish the likelihood of combustion based on Fleming’s observations with respect to content and extensiveness. Fleming “observed” the cited accumulations through a relatively small observation window, illuminated by cap light, rather than by directly observing the accumulations after the transformer lid was removed. Moreover, Fleming’s assessment was not based on objective measurement. The rub is that Fleming’s impressions based on his initial observations are not reliable, in that he has conceded that several accumulations that he observed after transformer lids were removed “were not as bad as [when] seen thru [sic] inspection windows.” (Gov. Ex. 8 at 6; Joint Stip. 12).

With respect to combustible content, it is significant that Gray used a leaf-blower to clear the cited accumulations in transformer box 3C before Fleming had an opportunity to observe the accumulations after the lid was removed. Thus, Fleming’s opinion with respect to the color of the accumulations is based solely on his limited observations through the examination window.

Finally, the Secretary has not shown any credible evidence of defects in the 3C transformer box that would constitute a reasonably likely ignition source under the Texasgulf analysis. Although Fleming opined that arcing can occur during normal operation of a transformer box, his ‘anything can happen’ opinion is unavailing. Moreover, his opinion was primarily based on his recollection of an incident involving a spliced cable. However, spliced cables were not present in the subject transformer boxes. In this regard, Fleming testified:

Court: Mr. Fleming, describe for me the source of ignition in the kVA box. What would the source of ignition be?

Fleming: You’ve got multiple areas, Your Honor, that’s ignition points. You’ve got relays that go in and out. UVRs, they’re called shunt trips. All your electrical connection points are always a weak place in electricity. And those weak places, if they’re not adequate, they will heat up. I don’t know if anybody has ever seen it or not, but if you make a splice in a cable, that splice adds resistance to the voltage that runs through that cable and it will cause it to heat. So anytime you have a connection point with amp electricity, that’s a heat-generating source. Okay? Not only do you have all those ignition points there, but you have the sheer magnitude of the transformers that will heat up so hot that men cook

off them.

Court: All right. Let me see if I understand. So the ignition source is from the normal operation of the transformer or if there is a malfunction in the wiring?

Fleming: It’s the normal . . . normal operation, yes.

Court: And your opinion is that the heat could serve as an ignition source?

Fleming: Well, the heat [dries] the coal well, which makes it more readily ignitable. Your ignition sources are the knife blades being thrown out even under a load or not. Now, the ones that I experienced over at Mountain Edge was – I was pulling them out under a load. Now, they will arc even if they’re not under a load.

(Tr. 105-07) (emphasis added).

In the final analysis, there was a disconnect between Fleming’s testimony that transformers routinely arc, and his reliance on unusual circumstances to illustrate ignition sources. Moreover, Fleming’s assertion that arcing is a continuing source of ignition is inconsistent with MSHA’s requirement of weekly, rather than daily, electrical examinations. In addition, Fleming’s designation of the prohibited accumulations in transformer boxes 1 and 3 as non-S&S belies his contention that arcing is an ever present source of ignition. (Tr. 98-99). While Fleming testified that the heat generated by a transformer will dry coal, Fleming does not contend that the heat is sufficient to ignite coal. Thus, on balance, Fleming’s testimony with regard to the reasonable likelihood of an ignition based on the heat generated by, and the electrical connections in, a transformer box is not credible.

In view of the above, the Secretary has failed to demonstrate that the cited accumulations are properly designated as S&S. Consequently, Citation No. 8222328 shall be modified to reflect that the cited violation of section 75.400 is not S&S in nature, and, that the violation is attributable to no more than low to moderate negligence.

3. Civil Penalty

The Commission outlined the parameters of its responsibility for assessing civil penalties in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violations, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)).

In keeping with this statutory requirement, the Commission has held that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an exercise of discretion, which is bounded by proper consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294;

Cantera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo assessment of civil penalties does not require “that equal weight must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

The parties do not contend that imposition of the total civil penalties proposed in this case, including those contained in their settlement agreement, will adversely affect Cam Mining’s ability to continue in business, or, that the penalties are otherwise inappropriate given the size of Cam Mining’s operations. The cited conditions were abated in good faith and in a timely manner, as evidenced by the remedial action taken by Gray to clean the 3C transformer box shortly after Citation No. 8222328 was issued. Finally, the Secretary does not assert that Cam Mining’s history of violations is an aggravating factor. Given the modification of Citation No. 8222328 deleting the S&S designation, the $1,337.00 civil penalty initially proposed by the Secretary shall be reduced to $450.00.

B. 104(a) Citation No. 8222333 - Electrical Examination

1. Fact of Violation

Regular examinations for the purpose of detecting and correcting hazards are

“of fundamental importance in assuring a safe working environment underground.” Enlow Fork Mining Co., 19 FMSHRC at 15 (quoting Buck Creek Coal Co. 17 FMSHRC 8, 15 (Jan. 1995)). Consequently, section 75.512 requires mine operators to conduct an examination of all electrical equipment on a weekly basis for the purpose of identifying potentially dangerous conditions.

Despite the essential role that examinations have in promoting mine safety, as noted, the Secretary bears the burden of demonstrating that the facts surrounding the examination evidence a violation. Garden Creek, supra. Although the Mine Act is a strict liability statute, reliance on strict liability to establish the fact of a violation begs the question. In other words, a mine operator can be held strictly liable only after the Secretary has demonstrated that a violation has occurred. Order concerning Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 1675, 1677 (Sept. 1992) (ALJ Broderick).

In resolving whether a mine operator has violated section 75.512, the proper inquiry is whether the subject electrical examination has been adequately performed. See, e.g., RAG Cumberland Resources LP, 26 FMSHRC 639 (Aug. 2004) (holding that although mandatory standards may not explicitly require adequate or effective measures by mine operators, such a requirement is implicit in the standard’s underlying purpose), aff’d 171 Fed.Appx. 852 (D.C. Cir. 2005). In this regard, Fleming based Citation No. 8222333 on his belief that the electrical examination of transformer 3C was ‘inadequately’ performed. (Gov. Ex. 7).

Resolving the adequacy of Little’s electrical examination requires consideration of both the methodology and sufficiency of the examination. With regard to methodology, the test is whether the electrical examination was performed in accordance with accepted mining industry practice and procedures. See Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (providing an objective reasonable person test for determining whether an operator’s conduct violates mandatory standards). It is clear that Little’s examination through the observation window of transformer box 3C during a production shift, when the transformer was energized, was an acceptable method of performing an electrical examination. In fact, Fleming admitted that he routinely inspects transformers for electrical hazards by peering through the examination window while the transformer box is energized. (Tr. 57).

Evaluating the sufficiency of Little’s examination findings requires an analysis of the thoroughness of his examination. In this regard, the term “adequate” is defined as “sufficient to satisfy a requirement or meet a need.” American Heritage Dictionary of the English Language 20 (4th Ed. 2009). Compliance with examination requirements must be evaluated on a case-by-case basis. Adequacy determinations must be viewed in context in that examinations cover a myriad of mine conditions, as well as a variety of equipment and cables. Thus, a failure to note a violative condition in a routine on-shift, pre-shift or electrical examination, alone, is not necessarily evidence of an inadequate examination. Rather, the adequacy of the examination must be viewed in the context of whether the overlooked violation is obvious or otherwise reasonably discoverable. In addition, the violation must be sufficiently hazardous to warrant a reasonable examiner to conclude that corrective action is required.

I stress that the question is not whether the overlooked condition constitutes a violation of a safety standard. Rather, the question is whether the failure to identify this condition for remedial action renders the examination inadequate, especially in this case where reasonable people may differ as to whether minimal accumulations required cleaning.

In the instant case, the cited overlooked accumulations in transformer box 3C have been determined to be non-S&S in nature. Although Citation No. 8222333 is based solely on Little’s failure to note the accumulations in box 3C, the re-examination required for abatement reflects Little’s weekly electrical examination was considered to be inadequate with regard to all transformers.

Given the Secretary’s burden of proof, the Secretary has only managed to demonstrate

non-S&S accumulations in three of eleven transformer boxes that went unnoted in Little’s initial electrical examination. The failure to note such non-S&S accumulations, minimal in extent and viewed through an observation window, does not rise to the level of an inadequate electrical examination. I do not question the sincerity or good faith of Inspector Fleming. However, with the benefit of hindsight, the evidence does not substantiate Fleming’s initial impression that the electrical examination was inadequate. Accordingly, Citation No. 8222333 shall be vacated.

ORDER

Consistent with this Decision, IT IS ORDERED that Citation No. 8222328 in Docket No. KENT 2009-1426 IS MODIFIED to delete the significant and substantial designation, and to reflect that the degree of underlying negligence attributable to Cam Mining is low to moderate. Accordingly, IT IS ORDERED that a civil penalty of $450.00 shall be assessed for Citation No. 8222328.

IT IS FURTHER ORDERED that Citation No. 8222333 in Docket No. KENT 2009-955 IS VACATED.

IT IS FURTHER ORDERED that the parties’ motion to approve partial settlement for Docket No. KENT 2009-955 IS GRANTED. Consistent with the parties’ settlement terms, IT IS ORDERED that Cam Mining shall pay a total civil penalty of $29,474.00 in satisfaction of the remaining 44 citations in issue.

Consistent with the $450.00 civil penalty assessed for Citation No. 8222328, as well as the parties’ settlement terms, IT IS ORDERED that Cam Mining, LLC pay, within 40 days of the date of this decision, a total civil penalty of $29,924.00 in satisfaction of the 46 citations that are in issue in these proceedings.

IT IS FURTHER ORDERED that, upon receipt of timely payment, the civil penalty proceedings in Docket Nos. KENT 2009-955 and KENT 2009-1426 ARE DISMISSED.

/s/ Jerold S. Feldman

Jerold Feldman

Administrative Law Judge

Distribution:

Schean G. Belton, Esq., U.S. Department of Labor, 618 Church Street, Suite 230,

Nashville, TN 37219

Mark E. Heath, Esq., Spilman, Thomas & Battle PLLC, 300 Kanawha Blvd.,

Charleston, WV 25321

/tmw