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

Hidden Splendor operates the Horizon Mine (the “Horizon Mine”) in Carbon County, Utah. A total of twelve section 104(a) citations and eleven 104(d)(2) orders of withdrawal were adjudicated at the hearing. The Secretary proposed a total penalty of $278,393.00 for these citations and orders.

I. BASIC LEGAL PRINCIPLES

A. Significant and Substantial

The Secretary alleges that the violations discussed below were of a significant and substantial (“S&S”) nature. An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). 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). In order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that is most difficult to apply. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based upon the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).

The S&S nature of a violation and the gravity of a violation are not synonymous. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). The Commission has emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC at 1575. With respect to citations or orders alleging an accumulation of combustible materials, the question is whether there was a confluence of factors that made an injury-producing fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-71 (May 1990). Factors that have been considered include the extent of the accumulation, possible ignition sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-03.

B. Negligence and Unwarrantable Failure

The Secretary defines conduct that constitutes negligence under the Mine Act as follows:

Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

30 C.F.R. § 100.3(d). The Commission has defined an unwarrantable failure as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995). 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 e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

C. Changes in Mine Management

At the hearing and in its post-hearing brief Hidden Splendor maintained that changes it made in high level management significantly improved its safety practices and policies. These changes went into effect just prior to the issuance of the citations and orders at issue in these cases. Hidden Splendor hired Joseph Fielder as the new mine manager and he instituted changes at the mine. Hidden Splendor believes that these changes should be considered in evaluating the negligence and the history of previous violations criterion in assessing a civil penalty. The Secretary contends that a change in a mine manager is not a factor that should be considered.

I agree with the Secretary’s position on this issue. I must consider the operator’s negligence and the operator’s history of previous violations. The operator of the Horizon Mine has not changed. Hidden Splendor Resources, Inc. is a fully owned subsidiary of America West Resources, Inc. America West Resources has operated the Horizon Mine since 2003. There has been no recent change in the operator that would warrant reducing penalties based on a change in the mine manager. Although it is true that Hidden Splendor hired Fielder as the new mine manager, it also hired Joseph Fielder’s predecessor. Consequently, even if I were to assume that Fielder made changes that improved safety at the mine, it does not change the fact that the citations and orders in these cases were issued against an operator that has been in control of the conditions at the mine since 2003.[1]

II. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

A. Citation Nos. 8457214 and 8457215; WEST 2009-1072

On April 30, 2009, MSHA Inspector Donald Durrant issued Citation No. 8457214 under section 104(a) of the Mine Act, alleging a violation of section 75.202(a) of the Secretary’s safety standards. The citation states, in part:

The mine roof near the 3rd West headings, cut short by the presence of a major fault, where the weekly examiner travels during his 7 day required route, was not being maintained to protect persons from the hazards of roof falls. The area where the examiner must negotiate and back track is literally cluttered with roof falls, both large and small, roof cutters are present all around the area, broken roof bolts and sagging roof also exist, and existing floor to roof support, mostly timber, are taking much weight and some are broken.

(Ex. G-46). The inspector also found similar conditions at the First West seals, which are preshifted each day. Inspector Durrant determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in a fatal accident. Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected. Section 75.202(a) of the Secretary’s regulations requires that “[t]he 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 a penalty of $1,412.00 for this citation.

On April 30, 2009, Inspector Durrant also issued Citation No. 8457215 under section 104(a) of the Mine Act, alleging a violation of section 75.364(a)(1) of the Secretary’s safety standards. The citation states, in part:

The weekly examinations being conducted in the area of the 3rd West heading that were terminated due to a major fault are inadequate. The mine roof where the examiner must travel to examine this area is not adequately supported and poses hazards to persons who would need to be there.

(Ex. G-51). Inspector Durrant determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in a fatal accident. Further, he determined that the violation was S&S, the operator’s negligence was high, and that one person would be affected. Section 75.364(a) requires, in part, that at least “every 7 days, a certified person shall examine unsealed worked-out areas where no pillars have been recovered by traveling to the area of deepest penetration. . . .” 30 C.F.R. § 75.364(a)(1). The Secretary proposed a penalty of $4,689.00 for this citation.

1. Background Summary of Testimony

Inspector Durrant testified that during his inspection on April 30, 2009, he determined that the mine roof in the Third West and First West areas was not being adequately supported according to section 75.202(a). (Tr. 26-27). He made this determination based upon discovering roof falls throughout the area, weight on existing vertical support, broken timber, roof cutters running down the rib lines, and sagging roof. (Tr. 27-28). He also testified that the area was cut by a major fault, which generally makes roof conditions more challenging. On cross-examination, Inspector Durrant testified that the existence of roof cutters does not always mean there will be a roof fall and that it was possible that the company disagrees with his position that the area was cut by a major fault. (Tr. 59, 62).

Inspector Durrant testified that he designated the citation as S&S because the conditions he observed made it reasonably likely for an accident to occur and that the accident would likely be fatal due to the general nature of roof falls. (Tr. 30-32). In addition, he testified that one person would be affected in a potential accident since he was primarily concerned with a mine examiner traveling through the area. On cross-examination, Inspector Durrant testified that there were many roof falls in the area that was cited and yet he was unaware of any fatalities or injuries that have resulted from these falls. (Tr. 63-64).

Addressing the citation’s negligence designation of moderate, Inspector Durrant testified that the condition was obvious and extensive and that it had likely existed for months or even a couple of years. (Tr. 34-35). He also testified that the mine had a history of roof falls and had been cited for similar conditions at least 42 times since 2007. (Tr. 37). Inspector Durrant added that in March of 2009 he attended a meeting with several managers of the company concerning a potential pattern of violations. (Tr. 38). He referenced a letter dated March 12, 2009 sent to the mine operator notifying it that MSHA was considering it for a potential pattern of violations. (Tr. 40-41, Ex. G-49). Inspector Durrant testified that at this meeting the operator was told that the mine would be inspected in two or three weeks. At this later inspection Inspector Durrant testified that the roof control issues were not properly addressed. (Tr. 41-42). On cross-examination, Inspector Durrant testified that despite being reviewed for a potential pattern of violations, the company was never actually put on a pattern of violations. (Tr. 65).

Inspector Durrant also testified that the examinations made by the Horizon Mine examiner Larry Kulow on April 25 and on May 2 failed to meet the requirements of section 75.364(a)(1). (Tr. 46-50, Ex. G-52). Inspector Durrant explained that the deficiencies he found in the area were not recorded in the mine’s record books by Kulow. As in the previous citation, Inspector Durrant designated the citation as S&S, the potential for an accident as reasonably likely, and the level of injury as fatal. (Tr. 51-52).

Addressing the citation’s negligence designation of high, Inspector Durrant testified that Kulow either knew or had reason to know of the conditions and that there were no mitigating circumstances of any substance. (Tr. 52-53). On cross examination, Inspector Durrant testified that the only mitigating evidence that Kulow provided was that he did not think the conditions were that bad. (Tr. 65-66). Inspector Durrant testified that, while he generally respects Kulow, in this particular instance he did not respect Kulow’s judgment. (Tr. 71).

Inspector Durrant testified that he performed a root-cause analysis and determined that poor examination habits and improper incentives were root causes of the violations. (Tr. 54-55). Inspector Durrant explained that he felt strongly that poor performance may have been rewarded.

On cross-examination, Inspector Durrant testified that on April 30, 2009, he traveled alone and that he is the only person that can claim to have observed the conditions that he cited. (Tr. 57-58). Inspector Durrant further testified that someone who spent more time at the mine and had more experience with the conditions of the mine would be in the best position to judge the conditions of a particular mine. (Tr. 60-61). He stated that before he wrote the two citations, he had only visited the area two times while Kulow had visited the area approximately 150 times. (Tr. 62).

Joseph Fielder testified that Hidden Splendor had many safety problems in the past but it had improved 100 percent in the last three years. (Tr. 77). He testified that he enacted a disciplinary system at Hidden Splendor that will implement the culture of safety that he wants to build there. (Tr. 78).

Fielder testified that Hidden Splendor’s roof control plan currently requires one of the best types of roof support used in mining today. (Tr. 83). According to Fielder, Hidden Splendor monitors roof conditions using roof bolters, by drilling test holes, and by making sure the anchorage point to the roof bolt is accurate. Fielder went on to explain that successfully monitoring roof support requires the observation of change over time. (Tr. 83-84). He also testified that roof conditions are monitored weekly and continuously inspected during work. Regarding Inspector Durrant’s citation, Fielder testified that he did not feel that additional roof support was needed at the time of the citation. (Tr. 85-86). On cross examination, Fielder testified that the Third West heading area was not using the improved roof support system that he mentioned earlier. (Tr. 93).

Fielder testified that Larry Kulow was the weekly examiner in April 2009 and that he trusted Kulow’s expertise. (Tr. 87-88). Fielder testified that Kulow would make sure that management was aware of any hazards that he found. (Tr. 89). On cross-examination, Fielder testified that Kulow was employed at the mine when it had numerous safety problems, but that Kulow was only one of four or five examiners working at the mine. (Tr. 92).

Hidden Splendor weekly examiner Larry J. Kulow testified that he did not notice the conditions noted in Inspector Durrant’s citation. (Tr. 101; Ex. G-46; Ex. G-51). He noticed the floor heave and he noticed hazards on the sides, but he did not notice any hazards along the walkway. Kulow testified that if a hazard does not impede his walkway, he will simply hang danger tape, and not report it as a hazard. (Tr. 99-100). Kulow testified that it is important for him to do a conscientious job because he is responsible for the safety of the men. (Tr. 101-102).

Regarding his routine examinations, Kulow testified that, because he looks at such a large area of the mine, he might overlook specific details but that he would notice anything in the travelway that would be a hazard. (Tr. 103). Kulow testified that the examination practices of the mine do not differentiate between big hazards and small hazards. (Tr. 104).

2. Summary of the Parties’ Arguments

The Secretary argues that Hidden Splendor violated section 75.202(a) by failing to adequately support and control the roof in the Third West headings of the Horizon Mine. The Secretary cites Inspector Durrant’s testimony that there were roof falls, weight on existing support, broken timber, roof cutters, and sagging roof and mesh as evidence of the violation. (Sec’y Br. at 9). Testimonial evidence from mine employees Larry Kulow and Joseph Fielder confirms the existence of hazards in the area. (Sec’y Br. at 9-10). While Kulow alleges that he found a path to get through the headings, Durrant testified that he could not find a path that was safe to travel. Furthermore, Kulow admitted that if a roof fall had occurred in the area, he does not know if it would have been contained in one specific area. (Tr. 106).

The Secretary argues that the violation was S&S because it met the four elements of the S&S standard. There was a violation of the mandatory safety standard section 75.202(a), the violation contributed to the discrete safety hazard of a roof fall, roof falls are highly dangerous, and the extent of the roof conditions created a reasonable likelihood that the hazard would have resulted in an injury. (Sec’y Br. at 10-11). Additional factors include Durrant’s testimony of feeling uneasy in the area and the Horizon Mine’s history of roof falls.

The Secretary argues that the violation was the result of Respondent’s high degree of negligence because the roof conditions were obvious and extensive and Hidden Splendor should have known about them. (Sec’y Br. at 11-12). The Secretary explained that this mine had a history of roof falls (at least 42 previous citations), that Hidden Splendor received a potential pattern of violations notice regarding roof falls, and that it had received a specific notice that the roof in the Third West headings needed monitoring. According to the Secretary, since Hidden Splendor knew of the inadequate roof support and lacked mitigating evidence, the violation was the result of a high degree of negligence.

Regarding Citation No. 8457215, the Secretary argues that Hidden Splendor violated 30 C.F.R. § 75.364(a)(1) by failing to conduct an adequate weekly examination of the Third West headings. (Sec’y Br. at 31). According to the Secretary’s analysis, Kulow did not satisfy the safety standard because he would omit hazards that did not directly affect travelways, but the standard requires the examiner to record all hazards. The Secretary suggests that this violation was S&S and resulted from a high degree of negligence for the same reasons that the underlying violation was S&S and resulted from a high degree of negligence. In response to mitigating evidence that Kulow was an expert in the field and that Fielder trusted his opinion, the Secretary points out that the mine had significant examination and roof control problems while Kulow was in charge of examinations for the past decade. (Sec’y Br. at 32).

Hidden Splendor argues that to determine whether section 75.202(a) is violated, the Court must apply the “reasonably prudent miner” standard. (H.S. Br. at 15). This standard asks whether a reasonably prudent miner would have acted differently under the circumstances. Under Hidden Splendor’s analysis, Larry Kulow was the “reasonably prudent miner,” and had much more experience with the mine than Inspector Durrant did. Kulow had been to the mine about 150 times over three years while Inspector Durrant had only been there twice. Kulow testified at trial that he ensures the safety of his men and Durrant agreed that it was in Kulow’s own interest to keep the area he travels safe. (H.S. Br. at 16).

Regarding the floor heaves, Kulow explained that they are common at the Horizon Mine and not a cause for concern. (H.S. Br. at 17). Mr. Fielder agreed that the cited area was prone to floor heaves but that he did not think that additional ground support was needed. Despite Durrant’s respect for Kulow’s expertise, Durrant completely dismissed Kulow’s opinion that he did not believe the conditions underground were hazardous. Hidden Splendor argues that Durrant should have used Kulow’s differing opinion about the underground conditions as a mitigating factor in designating the violation as high negligence.

Regarding the alleged violation of § 75.364(a)(1) in Citation No. 8457215, Hidden Splendor argues that even if the inspector and the mine examiner disagree as to whether hazardous conditions existed, there is no dispute about whether Kulow conducted the examination that the standard required. (H.S. Br. at 14-15). The standard does not require the examiner to walk a specific route as long as he gets to the necessary points. Hidden Splendor argues that evidence proves that Kulow examined the necessary areas and any roads not taken were not areas “where persons work or travel” so as to trigger the regulation’s requirements.

Furthermore, Hidden Splendor argues that Durrant’s testimony is unreliable because Hidden Splendor was not allowed any opportunity to observe the purported conditions when he issued the citation. (H.S. Br. at 18-19). Since Kulow walked the area before Durrant did and underground conditions can change quickly, Hidden Splendor argues that no violations occurred.

3. Discussion and Analysis

I find that the Secretary established both violations. I credit the testimony of Inspector Durrant as to the conditions he found during his inspection. The requirements of the safety standard, as applied to the roof, can be broken down into three parts: (1) the cited area must be an area where persons work or travel; (2) the area must be supported or otherwise controlled, and (3) such support must be adequate to protect persons from falls of roof. In considering whether roof support is adequate, the Commission has held that “[t]he adequacy of particular roof support or other control must be measured against the test of whether the support or control is what a reasonably prudent person, familiar with the mining industry and protective purpose of the standard, would have provided in order to meet the protection intended by the standard. Cannon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987).

It is well recognized that roof falls pose one of the most serious hazards to miners in the coal mining industry. United Mine Workers of America v. Dole, 870 F. 2d 662, 669 (D.C. Cir. 1989). The Commission has noted the inherently dangerous nature of mine roofs, and attributed the leading cause of death in underground mines to roof falls. Consolidation Coal Co., 6 FMSHRC 34, 37 (Jan. 1984); Eastover Mining Co., 4 FMSHRC 1207, 1211, n.8 (July 1982); Halfway Incorporated, 8 FMSHRC 8, 13 (Jan. 1986).

A representative of Hidden Splendor did not accompany Inspector Durrant during his inspection. The inspector had this to say about the conditions he observed:

The area was in rough shape. It had changed quite a bit since my last inspection of this area. There were roof falls throughout the area, large and small roof falls. There was weight on existing vertical support timber. There was broken timber. There [were] roof cutters running down the rib lines. There were sagging roof and mesh.

[A] lot of the conditions observed were likely there the last time I inspected . . . but there was no question that there had been more activity, more problems that were developing over time. I felt very uneasy traveling that area that night.

(Tr. 28-29). I credit this testimony. Inspector Durrant also testified that, although he could not determine the exact route that the weekly examiner uses to perform the required examination, he could not find a “path that night that a person could travel to try to get through these headings, particularly on the Third West end, that was safe to travel.” (Tr. 31-32). Based on his 38 years of experience in the mining industry and with MSHA, Durrant testified that he would have found a safe route if such a route existed. (Tr. 32).

In applying the reasonably prudent test to the facts, I find that the Secretary established that the roof was not adequately supported. The cited area is also an area where the weekly examiner must travel. I therefore find that Respondent violated section 75.202(a).

Based upon the same facts, I also find that Respondent violated section 75.364(a)(1). An adequate examination would have identified the unsafe conditions identified by Inspector Durrant. Respondent contends that Kulow managed to avoid the hazards during his examinations and that the cited hazards were not violations due to the fact that they were not located in areas “where persons work or travel.” Crediting Inspector Durrant’s testimony that there was no safe route through the cited area, the fact that Kulow claims that he avoided the roof hazards simply exposes the fact that, due to an inadequate examination, he did not notice the hazards.

I find that Citation Nos. 8457214 and 8457215 are both S&S. Each citation is a violation of a safety standard that contributed to the discrete safety hazard of a roof fall. Both violations are also reasonably likely to lead to an injury based upon the conditions of the cited area and Inspector Durrant’s testimony. The various problems with the roof, including roof falls, broken timbers, supports taking weight, sagging roof, sagging mesh and rib cutters all combine to make a roof fall very likely to occur, and reasonably likely to cause an injury. Additionally, continued inadequate examinations of the roof could lead to more hazardous violations in the future, making the conditions similar to those cited in Citation No. 8457215 even more likely to cause an injury. Roof falls, furthermore, are one of the leading causes of fatalities in mining, which along with the deteriorated condition of the cited area, leads me to hold that the fatal designation is appropriate for both citations. Citation Nos. 8457214 and 8457215 are violations of mandatory safety standards that contributed to the discrete safety hazard of roof falls, which are reasonably likely to lead to a serious injury.

Citation Nos. 8457214 and 8457215 were the result of Respondent’s high negligence. In addition to the Inspector’s description, I credit his testimony that the roof conditions were obvious and extensive even to the most casual observer. Hidden Splendor was clearly on notice that greater efforts were necessary to comply with roof control standards due to numerous violations and the discussions about the potential of being placed on a pattern of violations. Inspector Durrant had even alerted Hidden Splendor to the fact that the roof in Third West headings needed to be monitored, which not only shows that Respondent was on notice, but also suggests that it failed to make any effort to correct the conditions. Respondent should have known of these roof conditions due to the obviousness of the conditions and the fact that it should have been on alert to look for such conditions based upon the notice that it received. Based upon the extent of the violative conditions, and Inspector Durrant’s testimony that the violative conditions could have existed for months or years, I find that the hazards existed for a significant amount of time. Also, the roof falls threatened by these violative conditions pose a high degree of danger to miners. Moreover, I reject Hidden Splendor’s argument that a difference of opinion between mine management and Inspector Durrant is a mitigating circumstance in this situation. The hazards were obvious, extensive and posed a high degree of danger. Based upon these facts, Hidden Splendor cannot successfully argue that their opinion differed from that of Inspector Durrant and therefore it was not negligent, only mistaken. Respondent acted with high negligence in regard to the violative conditions cited in Citation Nos. 8457214 and 8457215. A penalty of $5,000.00 for each of these violations is appropriate.

B. Citation No. 8457229; WEST 2009-1072

On May 12, 2009, MSHA Inspector Durrant issued Citation No. 8457229 under section 104(a) of the Mine Act, alleging a violation of section 75.1722(b) of the Secretary’s safety standards. The citation states:

The welded wire screen at the #3 headroller on the walk side of the belt, did not extend a sufficient distance to prevent persons from reaching over the guard and being caught between the head pulley and the belt. The top of the pulley was measure[d] to be 70 inches from the mine floor. After the belt was removed from service, a miner was able to reach over the guarding and contact the pulley. Injuries suffered from these types of hazards generally are permanently disabling at the least.

(Ex. G-57). Inspector Durrant determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in a permanently disabling injury. Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected. Section 75.1722(b) of the Secretary’s regulations requires that “[g]uards at conveyor-drive, conveyor-head, and conveyor-tail pulleys shall extend a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley.” 30 C.F.R. § 75.1722(b). The Secretary proposed a penalty of $499.00 for this citation.

1. Background Summary of Testimony

Inspector Durrant testified that he issued Citation No. 8457229 on May 12, 2009, because the wire screen on the Number 3 belt conveyor did not sufficiently guard the head roller to satisfy section 75.1722(b) and to prevent people from sustaining injury by contacting the belt. (Tr. 195). Durrant, who is 5’8” tall, was able to reach up and touch the pulley. (Tr. 196-197). He estimated that the pulley was 70 inches off of the mine floor, and that he could reach about 84 inches if he stood flatfooted. (Tr. 197). On cross-examination it was determined that due to the additional lateral distance of the head roller from the walkway, it was about an 82 to 84 inch reach. (Tr. 204, 210). Inspector Durrant also asked maintenance supervisor Paul Wilmonen, who is over 6’ tall, to reach up and touch the pulley, which he did easily. (Tr. 198).

Inspector Durrant designated the citation as S&S because he judged that the inadequate guard made it reasonably likely that an accident could occur and that the accident would likely result in a permanently disabling injury. The Inspector reasoned that an accident was reasonably likely to occur because the violation was in a busy part of the mine. (Tr. 198). Inspector Durrant was especially concerned about an injury occurring during maintenance, considering that to access the sprinkler and sensors for the deluge system a miner would have to reach beyond the guarded area. (Tr. 199-200, 210). On cross-examination, Inspector Durrant admitted that when maintenance is performed the head roller would usually be shut off, but that it was still reasonably likely that someone would neglect to do so. (Tr. 205, 211). Furthermore, if a miner used a ladder to perform maintenance on the deluge system, he would be even closer to the unguarded area. (Tr. 212). Inspector Durrant also believed that the likelihood of an accident increased due to the number of inexperienced miners at the Horizon Mine. (Tr. 200).

Inspector Durrant testified that he designated the negligence as moderate because the operator knew or had reason to know of the violation. (Tr. 201-202). He testified that a preshift examiner walked through the area three times per day on a normal operating day. (Tr. 202). Although he theorized that the condition might have existed for weeks or even months, Inspector Durrant gave the operator the “benefit of the doubt” because he did not know for sure. Id. Inspector Durrant testified that he was aware of previous citations concerning guarding being issued at the Horizon Mine. (Tr. 203).

Maintenance Foreman Paul Wilmonen confirmed Inspector Durrant’s testimony that he was able to reach up and contact the head pulley. (Tr. 216). Both Wilmonen and Safety Technician Larry Murdock testified that maintenance would never be performed on the head roller without the roller being locked and tagged-out. (Tr. 217, 308). Furthermore, Wilmonen did not believe that a miner could contact the pulley by accident, especially considering that a person had to reach up to get to the pulley; Murdock agreed. (Tr. 217, 305).

2. Summary of the Parties’ Arguments

The Secretary argues that the head roller on the #3 conveyor belt violated section 75.1722(b) because it was inadequately guarded. She asserts that the language of the standard clearly addresses accidental and intentional conduct. The guard was not sufficient because both Inspector Durrant and Paul Wilmonen could reach behind the guard.

The Secretary further argues that Respondent’s violation of section 75.1722(b) was S&S because a serious hazard was identified that was reasonably likely to cause a serious injury. The tension between the head pulley and belt would lead to a crushing or amputating type of injury that would be permanently disabling. The violation occurred in a busy area of the mining operation, and the presence of the deluge system components made it likely that a miner would reach into the unguarded area. The risk of an accident occurring is exacerbated by the fact that many inexperienced miners work at the Horizon Mine.

Respondent’s negligence was moderate. The area of the violation is examined by a preshift examiner three times a day, and Inspector Durrant testified that the violation could have existed for months. Furthermore, Respondent should have been on heightened notice concerning proper guarding because the mine has a history of receiving guarding violations.

Respondent argues that no violation existed because the standard only applies to inadvertent contact and an accident was unlikely to occur in the cited area; therefore, the citation should be vacated. The standard did not consider intentional contact, and any contact that occurred during maintenance would happen when the belt was de-energized and locked out. Furthermore, accidental contact with the head roller is highly unlikely to occur due to the fact that the cited head pulley is 70” above the ground and 84” from the walkway itself.

3. Discussion and Analysis

Unguarded or inadequately guarded machine parts pose a serious hazard to miners, making section 75.1722(b) an important safety standard. The Commission has held that guarding should protect miners from “a reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.” Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2097 (Sept. 1984). Furthermore, “[e]ven a skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions.” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983).

I find that the Secretary established a violation of mandatory safety standard 75.1722(b). I credit the testimony of Inspector Durrant as to the conditions he found during his inspection. The requirements of the safety standard, as applied to the guarding of the head roller, can be broken down into two parts: (1) the cited guarding must protect a piece of equipment including any conveyor-drives, conveyor-heads, or conveyor-tail pulleys, and (2) such guarding must extend a sufficient distance to prevent a miner from contacting the equipment.

This citation meets both requirements of a violation of section 75.1722(b). It is undisputed that the #3 headroller on the walk side of the belt is the type of equipment covered under section 75.1722(b). Further, both Inspector Durrant and Paul Wilmonen could contact the head roller from the walkway, clearly showing a violation of the cited standard. If either the inspector or Mr. Wilmonen could touch the headroller, then the guarding did not “extend a sufficient distance to prevent a miner from contacting the equipment,” which is violation of the standard on its face. 30 C.F.R. § 75.1722(b).

I also find that the violation was S&S. Inspector Durrant testified that it was reasonably likely that a miner could contact the headroller, causing an accident. The cited guarding was located in a busy area of the mine with inexperienced miners present. (Tr. 198). If Inspector Durrant or Paul Wilmonen could contact the headroller from the walkway, it is reasonably likely that one of the many miners traveling through this area could do so as well. The likelihood increases due to the undisputed fact that parts of the deluge system, which may require maintenance, were beyond the headroller. (Tr. 199-200, 210). A miner performing maintenance on the deluge system might contact the head roller while reaching around it, if he were bumped while performing maintenance or if he reached to steady himself and contacted the headroller while working on the deluge system. Although the head roller should be de-energized, tagged and locked out while any maintenance is being performed in the area, I find it reasonably likely that it would not be. The “human factor” or the “vagaries of employee conduct” make it likely that even an experienced miner, and certainly an inexperienced one, may neglect to properly de-energize the head roller. Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 (Nov. 1983). Furthermore, the use of a ladder to perform maintenance on the deluge system would only make it easier for a miner to contact the headroller. (Tr. 212). I credit Inspector Durrant’s testimony that a miner was reasonably likely to contact the headroller considering the state of the guard at the time of the citation.

Respondent argues that the cited standard does not apply to intentional contact; I reject this argument. The language of the standard itself states that a guard should “prevent a person from reaching behind the guard.” C.F.R. § 75.1722(b). This language does not reference preventing only accidental contact with the head roller. Instead, it considers the deliberate, although misguided, action of a miner due to “momentary inattention,” or “ordinary human carelessness.” Thompson Brothers Coal, 6 FMSHRC at 2097. In Mainline Rock and Ballast, furthermore, the 10th Circuit considered a similar argument, stating that “[t]o the extent Mainline Rock attempts to equate intentional conduct with intentional contact, its interpretation is absurd.” Mainline Rock and Ballast, Inc., 693 F.3d 1181, 1185 (10th Cir. 2012). The standard focuses on preventing the harm that can occur when a miner contacts an inadequately guarded piece of equipment, and not on whether that contact was accidental or not.

I credit Inspector Durrant’s uncontroverted testimony that if a miner’s limb were to become stuck in the active headroller, it would result in a serious injury in the form of the crushing or amputation of a limb. I therefore find that Citation No. 8457229 was S&S because Respondent’s violation of section 75.1722(b) contributed to the discrete safety hazard of a miner’s limb being caught in the headroller, which was reasonably likely to occur and could lead to the crushing or amputation of that miner’s limb.

I find that the negligence designation of moderate is appropriate because Respondent knew or had reason to know of the violation. A pre-shift examiner walked through the area three times per day on a normal operating day and there is a history of guarding citations at the Horizon Mine. I credit the Inspector’s testimony that the condition existed for some time. I find that a penalty of $500.00 is appropriate for Citation No. 8457229.

C. Order No. 8460169; WEST 2009-916

On April 10, 2009, MSHA Inspector Richard Boyle issued Order No. 8460169 under section 104(d)(2) of the Mine Act, alleging a violation of section 48.5(a) of the Secretary’s safety standards. The citation states:

Two new miners, Daniel Lopez and Hennery Lopez were not given the required 8 hour on-site training prior [to] being assigned work duties on March 30, 2009. The required training was not provided to these men until the following day, March 31, 2009. Statements from the mine operator revealed that persons were aware of the men’s schedule, but could provide no rationale as to why the required training was not given, thus demonstrating a serious lack of reasonable care.

(Ex. G-38). Inspector Boyle determined that an injury was highly likely to occur and that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, the operator’s negligence was high, two people would be affected, and the violation was the result of the operator’s unwarrantable failure. Section 48.5(a) of the Secretary’s regulations requires that “[e]ach new miner shall receive no less than 40 hours of training as prescribed in this section before such miner is assigned to work duties. Such training shall be conducted in conditions which as closely as practicable duplicate actual underground conditions, and approximately 8 hours of training shall be given at the minesite.” 30 C.F.R. § 48.5(a). The Secretary proposed a penalty of $5,645.00 for this order.

1. Background Summary of Testimony

Inspector Boyle testified that he issued Order No. 8460169 because two new miners, Daniel Lopez and Hennery Lopez, were not given the eight-hour on-site training required by section 48.5(a). (Tr. 647).

Inspector Boyle designated the violation as S&S because it was reasonably likely that a serious injury would occur as a result of the cited violation. (Tr. 655). He stated that the mine had a history of roof falls, the miners would not know what to do in an emergency, and that the miners were untrained and unfamiliar with the machinery in the mine. (Tr. 652, 654). For instance, the belt line that the miners were using could catch a shovel and push it violently back at a miner if the miner shovels in the wrong direction. (Tr. 653).

Believing that mine management had actual knowledge that the new miners were untrained, Inspector Boyle designated this order as an unwarrantable failure with high negligence. (Tr. 656, 63). Management told him that they thought it “would be OK” to have the new miners work underground if they were accompanied by experienced miners. (Tr. 661). Inspector Boyle admitted on cross-examination that the new miners did have their first 32 hours of training and that it would be permissible for a visitor or other untrained person to enter a mine with an experienced miner. (Tr. 669).

Carl Martinez, the shift foreman for the crew on the graveyard shift that included the new miners, testified that he did not know that the miners did not receive the required training at the time he took them underground. (Tr. 687). Initially, Martinez assumed that the new miners had been trained, based upon the fact that they were sent to him to work. (Tr. 687). He had one of the new miners working as the third man on the roof-bolting crew and the other assisting a mechanic. (Tr. 682). He kept both miners close to his person at all times, and within sight of an experienced miner. (Tr. 682-683). He did, however, admit that he could not personally watch the new miners at all times. (Tr. 689). Toward the end of the shift, however, Martinez realized that the miners had not been trained when one asked him what a lifeline was for. (Tr. 683-684). At this point, Martinez removed the entire crew from the mine as quickly as possible. (Tr. 685).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent’s violation of 30 C.F.R. § 48.5(a) was S&S because sending untrained miners underground is highly likely to result in a serious injury. The miners were not familiar with the mine or the equipment in it, exposing them to an array of hazards ranging from getting body parts caught in a belt to being unable to find escapeways in the event of an emergency. Other miners may also be endangered.

Due to aggravated conduct, the Secretary argues that the cited violation was a result of high negligence and constituted an unwarrantable failure on the part of Respondent because management knew that the miners were untrained and also knew that sending the new miners underground was a violation. Section 48.5(a) is unambiguous and the fact that management thought that it was permissible to send untrained miners underground is not a mitigating factor. In fact, it is an indictment of the management, because it suggests that they knew their actions would violate the standard ahead of time. Furthermore, management tried to conceal the violation from Inspector Boyle.

Respondent concedes the violation of section 48.5(a), but disputes the findings of S&S, high negligence and unwarrantable failure. It argues that the findings of high negligence and an unwarrantable failure are inappropriate due to mitigating circumstances. Although section 48.5(a) is clearly a strict liability provision, the fact that Joe Fielder believed that he was in compliance with the regulation should be considered a mitigating factor. Further, Carl Martinez removed the miners from the mine as soon as he learned that they had not finished their training. During the next shift, before Inspector Boyle came to the mine to investigate, the miners received their training. The combined facts and circumstances do not support findings of either high negligence or unwarrantable failure.

Respondent argues that Order No. 8460169 was not reasonably likely to lead to an injury and is therefore not properly characterized as S&S. The new miners had 32 of the required 40 hours of training, and the duties they performed underground were similar to what they would have done for the final 8 hours of training. They remained within sight of their co-workers and in close proximity to Martinez at all times. Visitors enter mines and are not reasonably likely to be injured, and therefore these two miners were not likely to be injured either.

3. Discussion and Analysis

Failing to train new miners in accordance with section 48.5(a) can pose a threat to both new miners and everyone working within a close proximity to them. See Mingo Logan Coal Company, 19 FMSHRC 246, 250 (Feb. 1997).

I find that the cited violation of section 48.5(a) was S&S. It was reasonably likely that untrained miners performing underground work duties could cause a serious injury to themselves or others or be unable to escape in the event of an emergency due to the fact that they were unfamiliar with the mine and mining equipment. Respondent conceded the finding of the underlying violation of a mandatory safety standard. I credit Inspector Boyle’s testimony that an untrained, new miner faces a wide array of discrete safety hazards. These hazards include sustaining serious injuries through the misuse of equipment, an example of which the inspector provided was a shovel catching on a belt and being forced back at the miner. Further, Inspector Boyle testified that a new miner would not know what to do in the event of an emergency.

It is reasonably likely that the various hazards contributed to by the cited violation would result in an injury, especially considering the danger of a new miner being unable to find an escapeway or being slowed while trying to escape during an emergency. Carl Martinez’s testimony verified the likelihood of this hazard when he said that one of the new miners did not even know what a lifeline was. Thus, the new miner was not only unfamiliar with the Hidden Splendor Mine’s escapeways, but he was also unfamiliar with mine safety and emergency equipment. In the event of an emergency, a miner who cannot identify a lifeline would certainly be slowed trying to escape, and it is doubtful whether a miner with so little knowledge of a mine would be able to escape at all. This lack of emergency preparedness coupled with other hazards facing an untrained miner underground leads me to agree with Inspector Boyle’s designation that an injury due to the cited violation was highly likely. Furthermore, it is clear that the inability to escape in the event of an emergency could cause serious and permanently disabling injuries.

I also find that the violation constituted a high degree of negligence because the mine management knew or should have known that they were in violation of the standard. As Inspector Boyle testified, section 48.5(a) is an unambiguous standard that mandates that “approximately 8 hours of training shall be given at the minesite.” 30 C.F.R. § 48.5(a). The fact that Joe Fielder thought it would be permissible to send the new miners into the mine supports the fact that management knew before the violation that these new miners had not completed training. Regardless of what management told Inspector Boyle at the outset of his investigation, it is management’s job to know this standard and train miners accordingly. In this situation, Hidden Splendor management did not do so.

Inspector Boyle’s designation of the violation as an unwarrantable failure is a closer question. I find that the Secretary established that this violation was the result of an unwarrantable failure to comply with the safety standard. The training provisions of Part 48 have been in effect since the passage of the Mine Act. Section 115(a)(1) of the Act mandates 40 hours of training for new miners at underground coal mines. 30 U.S.C. § 825(a)(1). That Hidden Splendor believed that it could send miners underground without first providing this training defies common sense and demonstrates, at least, a serious lack of reasonable care. This violation was obvious and posed a high degree of danger. I acknowledge that as soon as Martinez discovered that the miners had not completed their training, he immediately pulled them out of the mine. For that reason, the penalty is reduced to $4,000.00.

D. Order No. 8457577; WEST 2009-1451

On August 3, 2009, MSHA Inspector Durrant issued Order No. 8457577 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.1914(a) of the Secretary’s safety standards. The citation states:

The Wagner diesel powered scoop, company # 407, S.N. . . . was not being maintained in approved and safe operating condition on July, 30, 2009, during the swing shift. The afternoon shift supervisor was operating the machine on the evening in question and had boarded the unit that was located in the A-West Mains section return, with the intention of bringing the machine to the surface, via the return travelway alternate escape route. A statement made by the supervisor during a hazard complaint investigation revealed the following: While operating the scoop in his attempt to get the machine to the surface, the scoop shut down on several occasions, possibly indicating low or no water in the machine’s scrubber system or a water transfer issue from the make-up tank to the scrubber. Wanting to disrupt the annoying shut downs of the equipment, the foreman made the conscious choice to block out the scoop’s safety system to prevent further shut downs, which in itself poses multiple safety risks, including potential fire at the exhaust filter and subsequent fire within the mine. Shortly after bypassing the machine’s safety system, the diesel particulate filter ignited, likely from an overheating condition where the temperature exceeded the 185 degrees Fahrenheit limit, dispersing sparks and embers into the mine atmosphere. Overheating at the particulate filter of permissible machines is generally caused by no cooling water available to cool the engine’s hot exhaust gasses.

(Ex. G-77). Inspector Durrant determined that an injury was highly likely to occur and that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, the operator’s negligence showed reckless disregard, seven people would be affected and the violation was the result of the operator’s unwarrantable failure. Section 75.1914(a) of the Secretary’s regulations requires that “Diesel-powered equipment shall be maintained in approved and safe condition or removed from service.” 30 C.F.R. § 75.1914(a). The Secretary proposed a penalty of $32,810 for this citation.

1. Background Summary of Testimony

After receiving a hazard complaint concerning an unreported fire on a diesel scoop, Inspector Durrant testified that he began his investigation on July 31, 2009, by speaking with Joe Fielder. (Tr. 367). The incident that instigated the investigation took place on July 30, 2009. (Tr. 367). Joe Fielder told Inspector Durrant that Josh Fielder was operating the scoop at that time, but he did not offer additional information. (Tr. 368).

The next day, Inspector Durrant interviewed Larry Murdock, who said that he saw the scoop inby the portal with flames or embers coming from what appeared to be the exhaust filter on the scoop. (Tr. 370). Next, Murdock saw that the operator, Josh, had shut off the machine and was using bottled drinking water to extinguish the fire. (Tr. 370). Murdock brought more bottles of water to extinguish the filter fire and eventually removed the filter from the scoop and brought the scoop back to the surface. (Tr. 370). Murdock also stated that the fire lasted about five minutes; it did not burn long enough that Respondent was required to report the fire to MSHA. (Tr. 371, 385).

Inspector Durrant further testified that he then spoke with Josh Fielder, the operator of the scoop. (Tr. 371). After doing a preoperational check on the scoop in the A West section, Josh attempted to bring the scoop to the surface for repairs. (Tr. 371). Josh told Inspector Durrant that the scoop shut down several times on his way to the surface, convincing him to “wire out” the safety system in the engine compartment. (Tr. 372, 375). Shortly after starting the machine, Josh noticed sparks or embers coming from the filter. (Tr. 372). Inspector Durrant testified that the principle danger of bypassing the safety systems in the scoop is the chance that it will cause a filter fire, which is exactly what happened. (Tr. 375). It is likely, Inspector Durrant believed, that the fire was caused by a lack of water in the scrubbing system. (Tr. 374).

Inspector Durrant testified that he is very familiar with Josh Fielder and described him as a “bright” young man with “vast knowledge” of the machines in the mine. (Tr. 376). He believes that Josh knew the dangers of his actions and chose to bypass the safety systems anyway. (Tr. 376).

Considering the presence of all three points of the fire triangle, Inspector Durrant believed it was highly likely that this incident could lead to a full-blown mine fire. (Tr. 377). Although the scoop eventually stopped close to the portal, Inspector Durrant believed that the filter could easily have begun burning farther down the portal, within the actual coal seam. (Tr. 379). If that were to happen, the fuel, fluids, oils and other flammable components of the scoop that presented a fire hazard in the rock tunnel at the portal could join with the combustible coal mine itself. (Tr. 380). Furthermore, if a fire had started in the coal seam, extinguishing the fire would be difficult because it would take time to move men and equipment to the scoop. (Tr. 381).

Inspector Durrant testified that miners could sustain serious, permanently disabling injuries in the form of burns, smoke inhalation and CO exposure. (Tr. 382). He also believed that seven people would be affected by either being inby the area or going to the area to fight the fire. (Tr. 382-383).

Inspector Durrant testified that he designated the negligence for the cited violation as reckless disregard. (Tr. 383). The Inspector explained that he viewed the violative conduct as intentional conduct that was done without considering the safety of anyone present in the mine at the time. (Tr. 383). He was especially influenced by the fact that the operator of the scoop was a shift supervisor. (Tr. 384).

Clark Atwood, safety director for Hidden Splendor, testified that there was a problem with the scoop at the time of the accident. (Tr. 401). He agreed with Inspector Durrant that it probably stemmed from a lack of water in the scrubber safety system. (Tr. 401). Atwood asserted that bringing water to the scoop was not possible, because no water source was available. (Tr. 606-607). He stated that a full-blown mine fire was not possible because the incident happened in the portion of the tunnel that is made of rock, but he also did not see at what point the sparks or fire began. (Tr. 403, 408). Although Atwood claimed that Josh Fielder made the right decision when he bypassed the safety system of the scoop to move it, he also stated that Josh was disciplined for his actions. (Tr. 402, 404, 408).

2. Summary of the Parties’ Arguments

Hidden Splendor’s shift supervisor bypassed the safety system on a diesel-powered scoop, which Respondent admits. This violation was S&S because not only could a fire have started, but a fire actually did start and it was highly likely that a serious injury would occur. All components of the fire triangle were present, which could have led to a mine fire. In the event of a mine fire, numerous miners would be affected when they attempted to fight the fire.

The cited violation of section 75.1914(a) was the result of reckless disregard that constituted an unwarrantable failure. Respondent designated Josh Fielder as a shift supervisor, making him a leader within the mine. As a supervisor, Josh made the decision to intentionally bypass a critical safety system on a scoop and did so without any regard for the safety of himself or his fellow miners. This direct action by Josh Fielder, a supervisor, exhibited an absence of care that supports a finding of an unwarrantable failure to comply with a mandatory safety standard and a negligence designation of reckless disregard.

Respondent argues that Order No. 8457577 was not an unwarrantable failure, should not have been designated S&S, was not the result of reckless disregard, and that fewer than seven miners would have been affected.

Bypassing the safety system on the scoop was Josh Fielder’s only option to remove the scoop, which was blocking return air from leaving the mine. Josh did not act with reckless disregard, but rather he made a difficult choice to protect the safety of himself and his fellow miners.

Josh Fielder’s actions were not reasonably likely to lead to an accident. The air in that section was traveling outby, which would exhaust any fumes. There is no methane at the Hidden Splendor Mine. The scoop was situated in a portion of the mine composed completely of incombustible rock. The scoop had both a fire suppression system and an extinguisher on board. Furthermore, it is mere speculation that seven people would be required to fight a fire under these conditions, especially when drinking water was all that was required to extinguish the fire that actually occurred. The S&S designation in the cited violation is unwarranted because an accident that could lead to the injury of miners was not reasonably likely.

3. Discussion and Analysis

I find that the cited violation of section 75.1914(a), Order No. 8457577, was properly designated as S&S. Respondent conceded the underlying violation of the safety standard. The discrete safety hazard contributed to by the violation is the injury to miners caused by a fire. The likelihood that a fire could start is not an issue in this situation, because a fire actually did start. Although no miners were injured, it remains highly likely that such a fire could lead to the injury of a miner. I credit Inspector Durrant’s testimony that all of the elements of the fire triangle were present. The small fire in this instance could easily have become a larger fire, which, as Inspector Durrant testified, would require several men to extinguish. In the time required to bring firefighting men and equipment to the scene, the fuel source, oil and fluids of the scoop could all catch fire. Next, the fire-resistant tubes and tires may burn as well. Even more perilous is the reasonable likelihood that this fire could have occurred within the coal seam and ignited the mine itself. A mine fire can obviously lead to the serious, permanently disabling or even fatal injury of any number of miners, through smoke inhalation or burns. At least two miners were exposed to the hazard.

I also find that the negligence designation of reckless disregard and the finding of an unwarrantable failure are appropriate in this situation. Inspector Durrant believed that Josh Fielder had intimate knowledge of mining equipment; as a result, Inspector Durrant believed that Josh knew exactly the risk he was taking by bypassing the safety scrubber in the diesel scoop. Although I am sure that Inspector Durrant’s characterization of Josh Fielder is correct, any supervisor should recognize that overriding safety systems on a piece of equipment is inherently dangerous. This proposition is highlighted in the violative conduct at issue because the anticipated hazard that could result from the override of the safety system, a filter fire, actually occurred. I do not credit Respondent’s argument that it was safer to bypass the safety systems on the scoop than to take the proper steps to safely remove the scoop. The cited violation was quite dangerous, as I credit Inspector Durrant’s testimony that a mine fire was at least reasonably likely to occur and was reasonably likely to cause serious injury to several miners. Clearly, management knew of the violative conduct. Not only was this violation obvious, but a mine supervisor actually created the violative condition on purpose. When Josh Fielder intentionally disabled a safety system, he acted with reckless disregard and his behavior supplied the aggravated conduct required for an unwarrantable failure designation.

Therefore, I find that Order No. 8457577 was properly designated as S&S with a negligence designation of reckless disregard and a finding of unwarrantable failure. A penalty of $30,000.00 is appropriate for this violation.

E. Order No. 8457576; WEST 2009-1451

On July 31, 2009, MSHA Inspector Durrant issued Order No. 8457576 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.1914(f) of the Secretary’s safety standards. The citation states:

The weekly tests and maintenance for the Wagner diesel powered scoop, company # 407 . . . have not been adequate to assure safe operation of the machine.

(Ex. G-73). The order listed a number of deficiencies including an unguarded drive shaft and an inoperable exhaust back pressure gauge. Inspector Durrant determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, the operator’s negligence was high, seven people would be affected and the violation was the result of the operator’s unwarrantable failure. Section 75.1914(f) of the Secretary’s regulations requires, in part, that “[a]all diesel-powered equipment shall be examined and tested weekly by a person qualified under § 75.1915” and that “(1) [e]xaminations and tests shall be conducted in accordance with approved checklists and manufacturers' maintenance manuals.” The Secretary proposed a penalty of $4,440.00 for this order.

1. Background Summary of Testimony

Inspector Durrant issued this order under section 75.1914(f) because the scoop had undergone its weekly test and maintenance within the last few days, but numerous defects and deficiencies remained. (Tr. 310). When Inspector Durrant arrived at the mine, he had received a hazard complaint concerning the cited scoop. (Tr. 308). The scoop was parked on the surface. (Tr. 309). The scoop was tagged out and the information on the tag indicated that the scoop needed to be washed. (Tr. 313). Inspector Durrant testified that Darwin Stansfield, who at that time was the maintenance foreman at Hidden Splendor, had tagged the machine out, but only because of coal accumulations. (Tr. 313-314). Darwin was busy at the time, however, and was only with the inspector intermittently. (Tr. 314). Although Inspector Durrant found many problems with the scoop, the most severe was a missing panel that exposed miners to crushing injuries through contact with the drive shaft and U-Joint. (Tr. 316).

Inspector Durrant testified that he cited the scoop because it was scheduled to return to the mine shortly, according to Tomas Hernandez, who was a laborer at the time. (Tr. 323). The scoop was taken out of service on July 29^th, fixed on the 30^th, and then taken out of service again on the 31^st. (Tr. 344). The scoop was tagged out of service just fifteen minutes before Inspector Durrant arrived at the mine. (Tr. 342).

2. Summary of the Parties’ Arguments

Hidden Splendor violated Section 75.1914(f) by failing to conduct adequate examinations on a diesel powered scoop and a penalty of at least the assessed amount of $4,440.00 is appropriate. The scoop was inspected two days earlier, yet Inspector Durrant found numerous problems. Although the scoop was tagged out before Inspector Durrant arrived at the mine, the inadequate examination was done two days prior, and the scoop went back into the mine.

Order No. 8457576 was S&S because a mandatory safety standard was violated when Hidden Splendor failed to perform adequate examinations, and that violation could contribute to numerous injuries. Mr. Hernandez was readying the scoop to return to the mine, which would put the scoop back in service. It is reasonably likely that the unguarded U-joint could cause crushing injuries and the inoperative exhaust back-pressure gauge is reasonably likely to contribute to a fire that could lead to serious injuries.

Respondent’s violation of Section 75.1914(f) is an unwarrantable failure to comply with a mandatory safety standard. There were numerous, obvious violations on the scoop. The mine received notice on several occasions that it needed to conduct more thorough examinations of its diesel-powered equipment. Inspector Durrant found no mitigating circumstances that affected his unwarrantable failure determination. The inadequate inspections constitute a serious lack of reasonable care on Respondent’s behalf.

Respondent argues that Order No. 8457576 should be vacated because the cited piece of equipment was removed from the mine and tagged out for service at the time the citation was written. Respondent questions the credibility of the inspector and references his dearth of notes concerning the citation. Further, the numerous problems with the scoop, combined with the fact that it had been removed from the mine because it could not run continuously, make it unlikely that this scoop was simply meant to be cleaned and returned to service. In any event, a permissibility exam would be performed on the scoop before it could be returned to the mine, and the defects would likely have been noticed and repaired at that time.

3. Discussion and Analysis

Commission precedent establishes that when equipment or facilities are available for use by miners, such equipment and facilities must comply with MSHA safety standards. See W.J. Bokus Industries, Inc.,16 FMSHRC 704, 707 (Apr. 1994); Ideal Basic Industries, Cement Division, 3 FMSHRC 843, 844 (Apr. 1981). Where nothing precludes the use of a piece of equipment, and that equipment could be used, even inadvertently, that equipment can be inspected and cited. Ideal Basic Indus., Cement Div., 3 FMSHRC at 844. As long as the cited safety standard does not stipulate otherwise, a piece of equipment can be inspected as long as it is not tagged out and parked for repairs. Alan Lee Good, an individual doing business as Good Construction, 23 FMSHRC 995, 997 (Sept. 2001).

I find that there was no violation of Section 75.1914(f) because the scoop in question was not “available for use.” The scoop was on the surface and tagged out at the time of the inspection. Although the Secretary argues that the scoop would simply be cleaned and returned to the mine immediately, and was therefore available for use, I find that to be unlikely or at least speculative. This is the same scoop that caught fire the previous day. (Tr. 372). In fact, the scoop had so many problems that it never returned underground at the Hidden Splendor Mine. I find, therefore, that there was no violation of Section 75.1914(f). Order No. 8457576 is hereby VACATED.

F. Order No. 8457509; WEST 2009-1162

On June 1, 2009, MSHA Inspector Durrant issued Order No. 8457509 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.364(a)(1) of the Secretary’s safety standards. The citation states, in part:

The weekly examinations being conducted in the 4^th East inactive section for examination of the deepest points of penetration are incomplete and inadequate due to deep water, silt and mud accumulations at [several] locations. . . .

Discussions with mine management have taken place, dating back to about May 14, 2009, of the weekly examination requirements in this area or the available option to submit a sump evaluation, including sump evaluation points in lieu of traveling all points of deepest penetration. The water had not been pumped to allow for adequate examinations of these areas nor had a plan been submitted to the District Manager for approval.

(Ex. G-65). Inspector Durrant determined that an injury was unlikely to occur and that, if there were an injury, it would result in no lost workdays. Further, he determined that the violation was not S&S, the operator’s negligence was high, one person would be affected and the violation was the result of the operator’s unwarrantable failure. Section 75.364(a)(1) of the Secretary’s regulations requires that, concerning weekly inspections in worked-out areas:

At least every 7 days, a certified person shall examine unsealed worked-out areas where no pillars have been recovered by traveling to the area of deepest penetration; measuring methane and oxygen concentrations and air quantities and making tests to determine if the air is moving in the proper direction in the area. The locations of measurement points where tests and measurements will be performed shall be included in the mine ventilation plan and shall be adequate in number and location to assure ventilation and air quality in the area. . . . An alternative method of evaluating the ventilation of the area may be approved in the ventilation plan.

30 C.F.R. § 75.364(a)(1). The Secretary proposed a penalty of $4,000.00 for this citation.

1. Background Summary of Testimony

Inspector Durrant issued this order because Larry Kulow was not getting to the established evaluation points (“EP”) of inspection in the east and north entries of the Four East section. (Tr. 152). Deep water in the East headings was impossible to negotiate, preventing Kulow from reaching the EPs. (Tr. 154). This water had been present for months. (Tr. 193). Kulow was taking oxygen and methane readings at the farthest point he could reach. (Tr. 156).

Inspector Durrant designated this order as unlikely with no lost workdays because he did not believe there was any hazard posed by Kulow’s failure to reach the EPs. (Tr. 156). He designated one person affected because the inspector was likely the only person who could be affected by the cited violation. (Tr. 156). Furthermore, Inspector Durrant believed that Kulow’s conduct was prudent, and once Hidden Splendor filed a new ventilation plan, the new EPs were simply the points where Kulow had reached prior to the new plan. (Tr. 165). Kulow believed that he was able to adequately determine the direction of airflow, oxygen readings and methane readings from the edge of the water in the flooded areas. (Tr. 191).

Inspector Durrant designated the negligence of this order as high with an unwarrantable failure to comply with a mandatory safety standard. (Tr. 156). Respondent knew or should have known that it was required to reach the EPs in accordance with its ventilation plan, but they failed to do so. (Tr. 157). Furthermore, Inspector Durant had warned Respondent a few weeks prior to the violation that it either had to remove the water and reach the EPs or submit a new plan with different EPs. (Tr. 157). Inspector Durrant found no mitigating circumstances and believed that the speed with which Respondent submitted a new plan after receiving the order showed the ease with which they could have avoided the citation. (Tr. 158, 160).

Joe Fielder testified that he was familiar with the ventilation plan in place before Inspector Durrant issued Order No. 8457509. (Tr. 186). Although he was aware that water had filled the route to the EPs, he claimed that through an oversight on his part, he did not realize Kulow could not reach the EPs. (Tr. 187). He also asserted that Hidden Splendor was using pumps to remove water from the flooded areas. (Tr. 179).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent’s failure to conduct adequate examinations was the result of high negligence and was an unwarrantable failure to comply with a mandatory safety standard because Respondent engaged in aggravated conduct. This violation was extensive and obvious. According to Kulow, It existed for months. Further, Respondent received notice that a greater effort was required to comply with the cited safety standard when Inspector Durrant warned mine management weeks before writing the citation. Even after this warning, Respondent made no effort to abate the violation, even though filing a new ventilation plan could have been done in a day. Due to aggravated conduct, this violation was properly designated as an unwarrantable failure with high negligence.

Although Respondent does not contest the violation, it does contest the high negligence and unwarrantable failure designations. Neither party disputes that the paths to the EPs in the K-north section were “roofed-out” with water and were therefore impassable. Neither party disputes the fact that Kulow’s actions posed no hazard. Conditions making examinations impossible should be considered when the Commission determines negligence.

Further, Inspector Durrant’s testimony that he notified Respondent of the violation and Respondent chose to do nothing is unreliable. Although Inspector Durrant claims that mine management told him pumping water out of the sections was too expensive, Respondent was in fact pumping water out of the section in question. Kulow and mine management were doing what they thought was the safest examination practice while trying to pump the water out. Although Respondent misunderstood the safety standard, it was not highly negligent, and this order should not be designated an unwarrantable failure.

3. Discussion and Analysis

There is no dispute that Respondent violated section 75.364(a)(1). Both Inspector Durrant and Larry Kulow agree that Kulow could not reach the EPs in K North because the passageways were “roofed-out” with water. (Tr. 154, 191).

Considering all of the facts and circumstances, I find that Order No. 8457509 constituted a high level of negligence, but was not an unwarrantable failure on the part of Respondent. I find that the negligence designation should remain at high because the violative condition existed for months and the violation was obvious. Both Kulow and Fielder admit that they were aware that high water blocked the route to the EPs. Although both testified that they thought having Kulow take measurements from the water’s edge instead of from the EPs was acceptable, they both were also aware that the mine was putting forth a significant effort to pump the water out, suggesting that the knew the presence of the water was unacceptable. That the water was present in such large quantities and had been present for months make Hidden Splendor’s inability to reach the checkpoints in the mine’s ventilation plan obvious. These same facts show that the violation was extensive, because Kulow could not reach any of the EPs for multiple weekly inspections. Furthermore, I credit Inspector Durrant’s testimony that he put Respondent on notice that it needed to remove the water or submit a new ventilation plan; Respondent failed to do either. If mine management did not know that they were in violation of section 75.364(a)(1), they certainly should have known.

I find that Hidden Splendor’s violation did not constitute an unwarrantable failure due to mitigating circumstances, especially the fact that the violation posed no danger to miners. Although impossibility of conducting an exam is not a defense to a section 75.364(a)(1) violation, the Commission may consider it when evaluating negligence or an unwarrantable failure designation. See Basin Resources, Inc., 19 FMSHRC 1391, 1401 (Aug. 1999) (ALJ). Inspector Durrant testified that Respondent’s violation of section 75.364(a)(1) did not pose a hazard to any miners. (Tr. 156). The “roofed-out” sections prevented any miners from wandering into the uninspected sections. I also credit Larry Kulow’s unopposed testimony that he was able to take adequate readings of oxygen, methane and airflow from the edge of the water, the performance of which is the primary purpose of the cited standard. (Tr. 191). The new MSHA-approved ventilation plan changed the EPs to the water’s edge, which supports Kulow’s testimony that he took adequate readings from those points. Furthermore, despite the fact that Respondent failed to correct the condition for a long period of time, mine management did employ pumps with the intent of removing the water, hoping it would allow them to correct the violative condition by resuming inspections at the established EPs. Considering the entire facts and circumstances of the situation, I find that Respondent did not engage in aggravated conduct and the order is hereby modified to a section 104(a) citation. A penalty of $1,000.00 is appropriate for this violation.

G. Citation No. 8457222; WEST 2009-1072

On May 7, 2009, MSHA Inspector Durrant originally issued Citation No. 8457222 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.360(a)(1) of the Secretary’s safety standards, which would later be amended to a violation of section 75.360(b)(1), under section 104(a). The citation states:

The preshift examinations being conducted in the 1st West travelway, which also serves as A West Mains section alternate escapeway, are inadequate and have been for some time. Two areas between x-cuts 26 and 27 were found to be unsupported and should have been identified by the mine examiners. This is the seventh issuance since July of 2007 for this standard. Additionally, this Authorized Representative has repeatedly put the operator on notice regarding the importance of thorough mine examinations, therefore, has once again demonstrated a serious lack of reasonable care.

(Ex. G-55). Inspector Durrant determined that an injury was reasonably likely to occur, which was later changed to a finding that an injury was unlikely to occur. The Inspector found that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, which was later changed to non-S&S. Inspector Durrant found that the operator’s negligence was high, which was later amended to a negligence designation of moderate. Originally, Inspector Durrant found that seven people would be affected and the violation was the result of the operator’s unwarrantable failure, but later he amended the citation to remove the unwarrantable failure designation and reduced the number of persons affected to two. Section 75.360(b)(1) of the Secretary’s regulations requires:

(b) The person conducting the preshift examination shall examine for hazardous conditions and violations of the mandatory health or safety standards referenced in paragraph (b)(11) of this section, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction at the following locations:

(1) Roadways, travelways and track haulageways where persons are scheduled, prior to the beginning of the preshift examination, to work or travel during the oncoming shift.

30 C.F.R. § 75.360(b)(1). The Secretary proposed a penalty of $1,795.00 for this order.

1. Background Summary of Testimony

Inspector Durrant testified that he issued Citation No. 8457222 because he believed that the preshift examiner failed to notice several damaged roof bolts and roof plates in the area that included crosscuts 26 and 27. (Tr. 113-114). In the area at crosscut 27, there were four severely damaged roof bolts, affecting a section of the roof that measured 9.75 feet wide by about 8 feet long. (Tr. 115). Between crosscuts 26 and 27 there were five severely damaged roof bolts, which affected a section that measured 9.5 feet wide by 11 feet long. Id. The area of the mine involved in the citation is a main thoroughfare, and is also used as an alternate escapeway. (Tr. 113).

Although the inspector initially believed that the violative conditions underlying this citation had existed for several days, upon further inspection he realized that the damage to the roof had probably happened only hours before his inspection. (Tr. 114).

Inspector Durrant modified Order No. 8457222 to reflect that an injury was unlikely to occur because the violative condition did not exist for as long as he originally presumed and the roof area underlying the order was fairly small in size and did not show signs that a roof fall was likely. (Tr. 118-119). He testified that although a minor roof fall was unlikely, if it were to occur, crushing type injuries could result. (Tr. 119).

Originally, Inspector Durrant believed that the refuge chamber had damaged the roof bolts several days before his inspection. (Tr. 120). After interviewing several miners, including Carl Martinez and Dwayne Gilbert, the inspector was convinced that a head roller that was brought in during the shift immediately preceding the inspection had damaged the roof in the area where the cited violation occurred. (Tr. 121-122). Although he cannot remember the specifics of his conversation with Carl Martinez, Inspector Durrant’s notes indicate that the headroller arrived in A West during the graveyard shift and likely damaged the roof bolts. (Tr. 122). Martinez denied telling Inspector Durant that he thought the head roller damaged the roof bolts. (Tr. 145).

Inspector Durrant estimates that the damage to the roof happened shortly after 1:00 a.m. (Tr. 124). The preshift exam took place between 4:00 and 7:00 a.m., and Inspector Durrant’s inspection occurred at 9:30 a.m. (Tr. 124).

Inspector Durrant’s notes also indicate that Roger Tuttle believed that the damage to the roof was done when bringing in the refuge chamber because the chamber was the only thing tall enough to cause the damage. (Tr. 129-130). Although he could not remember an exact date, Inspector Durrant was sure that the refuge chamber had been brought into the mine before the day in question, and prior to the headroller being brought in. (Tr. 135). He discounted Tuttle’s assertion that only the refuge chamber could have caused the damage. (Tr. 136).

Carl Martinez, however, testified that although the refuge chamber was brought into the mine days before the headroller, it was only transported to somewhere near crosscut 8. (Tr. 140). The chamber could not be brought past crosscut 8 until the floor was dredged, because the chamber was too tall to fit through the travelway. (Tr. 141). Although he could not remember the date, Martinez testified that the refuge chamber was not transported through crosscuts 26 and 27 until the morning that Order No. 8457222 was written. (Tr. 142). Giving a detailed breakdown of the process of moving the chamber through the mine, Martinez also estimated that the chamber would have traveled through crosscuts 26 and 27 sometime between 6:45 and 7:00 a.m. (Tr. 145). The preshift examination that morning concluded at 6:39 a.m. (Tr. 145, 151, GX-56). Roger Tuttle also testified that the refuge chamber was moved through the area in question the morning of the inspection and he believes that the chamber damaged the roof bolts. (Tr. 150).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent violated section 75.360(a)(1) by failing to conduct an adequate preshift examination of the 1st West roadway/alternate escapeway. Inspector Durrant found extensive damage to the roof between crosscuts 26 and 27 and at crosscut 27, which Kulow did not record in the preshift examination records. Two miners told Inspector Durrant that a headroller had been moved into the area during the graveyard shift and the inspector’s notes indicate that Carl Martinez said that the roller likely damaged the roof. Although Martinez denies having said the roller damaged the roof, Inspector Durrant is a more reliable source of information because he has notes and not merely two-year-old memories. The damage to the roof occurred about three hours before the preshift exam began, but the examiner did not notice the damage, which is a violation of section 75.360(a)(1).

Further, the Secretary asserts that Respondent was moderately negligent because it knew or should have known of the violation. Although the negligence designation is mitigated by the short period of time that the violation existed, the violation was both extensive and obvious.

Respondent argues that the Secretary did not satisfy her burden of proof with regard to this citation. Roger Tuttle told Inspector Durrant that the only thing tall enough to damage the roof bolts was the refuge chamber and at trial he testified that the refuge chamber had damaged the roof bolts. Carl Martinez explained the route by which the refuge chamber moved into the mine and testified that the chamber would have passed through the area where the roof was damaged on the day of the inspection, between 6:45 and 7:00 a.m.

3. Discussion and Analysis

I find that the Secretary did not show by a preponderance of the evidence that Respondent failed to conduct an adequate preshift examination; therefore, Respondent did not violate section 75.360(a)(1). The Secretary must prove by a preponderance of the evidence that a violation occurred. See Jim Walter Resources, Inc., 28 FMSHRC 983, 992 (Dec. 2006). The primary factual question before me is whether the roof bolts between crosscuts 26 and 27 and at crosscut 27 damaged before or after the preshift examination. To answer this question, I must decide (1) what piece of equipment damaged the roof bolts and (2) at what time did that damage occur? Based upon the testimony and the exhibits before me, the Secretary did not show by a preponderance of the evidence that the Respondent violated section 75.360(a)(1) on May 7, 2009.

The Secretary failed to show that the headroller was responsible for damaging the roof bolts. Inspector Durrant found that the roof suffered damage during the transportation of a head roller, sometime around 1:00 a.m. (Tr. 124). The preshift examination, which occurred between 4:00 a.m. and 7:00 a.m., did not record this damage. His findings were primarily based upon interviews with miners, including statements from Carl Martinez and Dwayne Gilbert. (Tr. 122). Gilbert only told the Inspector that he saw a miner transporting the headroller around 1:00 a.m. (Tr. 122). Inspector Durrant’s notes indicate that Carl Martinez said that the headroller likely caused the damage to the roof bolts, but Inspector Durrant cannot remember the specifics of the conversation. (Tr. 122). Although he did witness the movement of the headroller, Martinez testified that he did not tell the inspector that the headroller likely caused the damage. (Tr. 122). It was undisputed that the refuge chamber is a large piece of equipment and the travelway had to be enlarged just to transport it through the mine because it is so tall. (Tr. 141). It took two scoops working simultaneously to move the chamber through certain portions of the mine. (Tr. 142, 144). In his notes, Inspector Durrant included Roger Tuttle’s statement that the refuge chamber was the only thing tall enough to damage the roof and Tuttle testified to this fact at the hearing. Initially, even Inspector Durrant himself believed that the refuge chamber had damaged the roof bolts in question. (Tr. 120). Although the headroller did move through the damaged area around 1:00 a.m., there is no clear evidence to show that it caused the damage to the roof. \

The Secretary failed to show by a preponderance of the evidence that the damage to the roof bolts occurred before the preshift examination on May 7, 2009. Inspector Durrant testified that although he had no notes or specific facts to relate, he was sure that the refuge chamber entered the mine days or even a week before his inspection took place. (Tr. 135). Therefore, even if the refuge chamber, and not the headroller, caused the roof bolt damage, that damage occurred before the preshift examination on May 7, 2009. I credit the testimony of both Tuttle and Martinez, who testified that the refuge chamber did not move into the area of crosscuts 26 and 27 until the morning of May 7, 2009. (Tr. 142, 150). Based upon Inspector Durrant’s testimony, it seems that his information about the refuge chamber concerned the date when the chamber entered the mine, but not the particular section in question. The refuge chamber had in fact entered the mine days before, but Martinez credibly testified that it was delayed from reaching the area including crosscut 26 and 27 for several days due to its large size.

Martinez, furthermore, gave a detailed and plausible account of how long it would take to move the refuge chamber through the mine, estimating that it would not reach the area in question until 6:45 to 7:00 a.m. on the day of the inspection. (Tr. 145). Although his estimate was not nearly as precise as that given by Martinez, Tuttle’s testimony supported Martinez’s timeline. (Tr. 150). Preshift examination records show that the examination was completed at 6:39 a.m. (Ex G-56). Even if Martinez’s estimate was slightly off, it is reasonably likely that the examination had either finished by the time the damage occurred, or the examiners had already examined the portion of the mine containing the damage before the damage actually occurred. The Secretary did not show by a preponderance of the evidence that the damage to the roof bolts in crosscuts 26 and 27 occurred before the preshift examination and therefore failed to meet her burden to show that Respondent violated section 75.360(a)(1). Citation No. 8457222 is hereby VACATED.

H. Citation No. 8457231: WEST 2009-1072

On May 13, 2009, MSHA Inspector Durrant issued Citation No. 8457231 under section 104(a) of the Mine Act, alleging a violation of section 75.1103-1 of the Secretary’s safety standards. The citation states:

The automatic fire sensor warning at the # 3 drive unit is not provided with both an audible and visual warning signals that are required to permit rapid location of fire.

The audible functions over the mine communication phones but there is no visual warning whatsoever. A malfunctioning phone at the manned surface location would not alert the attendant as to a fire on a flight of belt.

(Ex. G-59). Inspector Durrant determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that the violation was S&S, the operator’s negligence was moderate, and twelve persons would be affected. Section 75.1103-1 of the Secretary’s regulations requires that “[a] fire sensor system shall be installed on each underground belt conveyor. Sensors so installed shall be of a type which will (a) give warning automatically when a fire occurs on or near such belt; (b) provide both audible and visual signals that permit rapid location of the fire.” 30 C.F.R. § 75.1103-1. The Secretary proposed a penalty of $1,304.00 for this citation.

1. Background Summary of Testimony

Inspector Durrant testified that during the fire sensor warning test at the drive, he determined that although the audible system worked, there was no visual warning at the surface. (Tr. 220). Inspector Durrant believes that the visual signal should either alert a manned surface location or all underground working sections to allow rapid location of a fire. (Tr. 221). It is not sufficient to only have warnings at the belt. (Tr. 221).

Inspector Durrant determined that an injury was reasonably likely because if the audible signal failed there would be no warning of a fire. (Tr. 222). He designated the injury as resulting in lost workdays or restricted duty due to injuries that were reasonably likely to result from a fire, including the threat of burns, CO exposure or smoke inhalation. (Tr. 223). The deluge system would not necessarily extinguish a fire, which would necessitate rapid location of the fire by miners to use fire suppression equipment. (Tr. 224). Inspector Durrant determined that 12 people would be affected, because that was the number of miners working inby the location. (Tr. 224). Miners would also come to the location in the event of a fire to fight the fire or evacuate. (Tr. 241). The cited belt is not in the primary escapeway, but it is adjacent to and shares airflow with the secondary escapeway. (Tr. 241).

Inspector Durrant designated the negligence as medium because he believes that Respondent should have known of the violative condition. (Tr. 224-225). The cited standard is specific and unambiguous and it is mine management’s job to know and comply with the standard. (Tr. 225). He also noted that he believed the violative condition could have existed for years, but admitted that it had never been cited. (Tr. 234).

Dennis Dodds, who was Hidden Splendor’s maintenance supervisor at the time, testified that the system had been in place since the late 1990s and as far as he knew had been inspected every quarter since without receiving a citation. (Tr. 255, 257). Dodds also testified that there had never been a belt fire at the Horizon Mine. (Tr. 256).

2. Summary of the Parties’ Arguments

The Secretary argues that Hidden Splendor violated section 75.1103-1 by failing to have a visual warning for the #3 belt drive at a location that would permit rapid location of a fire and a penalty of at least the assessed amount of $1,304.00 is appropriate. When Inspector Durant tested the system, the visual warning occurred only at the belt. A light at the belt does not help to actually locate a fire; if you can see the light, you can see the fire. The Secretary’s interpretation that a sensor providing visual signals to permit rapid location of the fire must be in a manned location away from the belt is reasonable, consistent with the purpose of the Act and is therefore entitled to deference.

Respondent’s violation of section 75.1103-1 was S&S. If the audible system somehow failed, the lack of a visual warning at a separate manned location could result in injuries from a delay in discovering a fire. Such injuries include burns, carbon monoxide exposure, and smoke inhalation. These injuries could affect miners traveling the alternate escapeway. The Secretary asserts that Respondent should have known that its system was non-compliant because it was Respondent’s responsibility to know and therefore Respondent’s negligence was moderate.

Respondent argues that the citation must be vacated because Respondent did not violate section 75.1103-1. It is undisputed that the audible warning system was acceptable and that there was a strobe light at the belt. The cited standard does not mandate the specific location of the visual warning system; it only requires that it “must permit rapid location.”

Furthermore, Respondent argues that the citation should be vacated because Respondent did not have fair notice that the cited standard requires a visual warning on the surface. The #3 drive had been inspected at least four times a year every year and no MSHA inspector ever found it to be non-compliant.

The Secretary’s claim that the violation was S&S is too attenuated to uphold, Respondent asserts. There has never been a fire at the Horizon Mine and it was unlikely that a fire would start at this location. Even if a fire did start, ample fire-suppression and fire-fighting systems were in place. Most importantly, the audible system would alert the entire mine of the fire. In the unlikely event that a fire started, the audible system and the fire suppression system would have to fail before the lack of a visible system created a hazard. It is unlikely that an injury would occur in such an instance.

3. Discussion and Analysis

In Mainline Rock and Ballast, the Tenth Circuit Court of Appeals ruled that “MSHA cannot be estopped from enforcing its regulations simply because it did not previously cite the mine operator,” and that “regulations provide adequate notice of the regulated conduct, and thus satisfy due process requirements, “so long as they are sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, would have fair warning of what the regulations require.” Mainline Rock and Ballast, Inc., 693 F.3d 1183, 1185 (10th Cir. 2012); See also Walker Stone Co., 156 F.3d 1076, 1083–84 (10th Cir. 1991).

I must also apply the reasonable person standard to this case. For these particular facts, a reasonably prudent person would have fair warning that section 75.1103-1 required more than a visual warning at the belt drive itself. Both parties agree that the purpose of the visual signal is to permit rapid location of a fire, but Respondent contends that having the strobe underground by the belt drive fulfills the purpose of the standard. A visual signal placed at the belt, however, would not permit rapid location of the fire in a large mine. Only the miners within the direct vicinity of the belt would see the light. At many underground coal mines, a visual signal is sent to the manned control center on the surface. Therefore, a reasonably prudent person would know that the standard must contemplate persons in other parts of the mine being able to rapidly locate the fire. I find that the Secretary established a violation of section 75.1103-1.

I also find that the violation was not S&S. The Secretary established the first two elements of the Mathies test but did not prove that it was reasonably likely that the hazard contributed to by the violation would result in an injury. Although it is possible that the insufficient visual signal could result in fire-related injuries, it is not reasonably likely to do so. In order for any injury to occur there must be (1) a fire and (2) a failure of the audible warning system. The Horizon Mine has never had a belt fire and it does not emit methane. The Secretary did not establish that a fire was reasonably likely as a result of the cited violation.

Inspector Durrant testified that the audible signal should serve to warn miners of a fire at the belt. (Tr. 222). Although the Secretary contends that loud machinery may hinder miners from hearing the audible signal, this signal goes to every part of the mine and it is reasonably likely that such a signal would be heard. Therefore, even if I were to assume that a fire was to occur, the audible system would have to fail in order for an injury related to this violation to be likely. I find, therefore, that it is not reasonably likely that the hazard contributed to by the violation would result in an injury. Moreover, it is unlikely that 12 miners would be affected by this violation.

I find that the violation was the result of Hidden Splendor’s low negligence. Hidden Splendor had not previously been cited for this condition and it did provide a visual warning at the belt itself. A penalty of $100.00 is appropriate.

I. Order No. 8457488: WEST 2009-1162

On May 21, 2009, MSHA Inspector Durrant issued Order No. 8457488 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.512 of the Secretary’s safety standards. The order states, in part:

The Eimco battery powered scoop, company # 1, used on the A West Mains development section, MMU 002-0, was not being maintained to assure safe operating condition. The machine was observed in x-cut 2 at the charging station, still connected to the machine’s batteries and the cover over the X/P enclosure within the operator’s compartment had been removed and left off during maintenance and/or repair work, exposing miners to energized leads within the compartment and X/P enclosure that, when tested, read 120 volts DC. The opening in the compartment measured to be 11 ½ inches by 8 inches. Damp conditions were present within that compartment, increasing the shock potential with this confluence of factors.

Many newly employed, inexperienced miners, work at this mine and in this area, again increasing the risk of serious, even fatal injuries.

(Ex. G-61). This order was issued in conjunction with an imminent danger order. Inspector Durrant determined that an injury was highly likely to occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was S&S, the operator’s negligence was high, twelve persons would be affected, and the violation was the result of an unwarrantable failure on the part of Respondent. Section 75.512 of the Secretary’s regulations requires:

All electric equipment shall be frequently examined, tested, and properly maintained by a qualified person to assure safe operating conditions. When a potentially dangerous condition is found on electric equipment, such equipment shall be removed from service until such condition is corrected.

30 C.F.R. § 75.512. The Secretary proposed a penalty of $9,122.00 for this order.

1. Background Summary of Testimony

Inspector Durrant wrote Order No. 8457488 under section 75.512 because there were exposed conductors and wires in the control cab due to a missing controller cover. (Tr. 263-64). The scoop was plugged into the on-board batteries. (Tr. 264). Inspector Durant believed that a qualified person must have been doing maintenance on the controls within the cab. (Tr. 262). A volt meter showed that there were 120 volts in the controller, which posed a shock hazard. (Tr. 266-67).

Inspector Durrant designated the order as S&S. (Tr. 271). He determined that an injury was highly likely because the compartment is to the left of anyone who enters the cab and the inspector believes a miner might put his hand on the controller to steady himself while entering the cab. (Tr. 267). When seated, the controller is just to the left of the operator of the scoop, at about elbow height. (Tr. 282). The opening was about 8 by 11.5 inches. (Tr. 283). There were also wet and damp conditions in the scoop, which increases the hazard of shock. (Tr. 268). The scoop was not tagged-out and was available for use for a variety of tasks, including cleanup and hauling work. (Tr. 269). Inspector Durrant asserted that scoops are frequently used and young, inexperienced miners are employed at the Horizon Mine. Id. The inspector designated this order as fatal because 120 volts carries enough amperage to cause a fatal shock. (Tr. 270). Inspector Durrant also stated that the cited violation only affected one person. (Tr. 271).

Order No. 8457488 was the result of both high negligence and an unwarrantable failure on the part of Respondent. Id. The Inspector made these designations because the condition was obvious, the danger to miners could be fatal, the mine operator knew or had reason to know about the condition and there were no mitigating circumstances. (Tr. 272-23, 283).

Charles William Bordea, an MSHA electrical inspector, also testified for the Secretary. He was generally familiar Eimco scoops, although he had no knowledge of the specific events surrounding this particular order. (Tr. 292). Mr. Bordea’s testimony confirmed much of what Inspector Durrant previously testified to, including the position of the box, the risk of contacting the live leads when entering the cab, and the risk of a miner receiving a fatal shock. (Tr. 294-95). He also testified that a miner’s foot, clothing or metal tools on a tool belt could contact the energized components in the controller, leading to a shock. (Tr. 294, 298).

Dennis Dodds, who took readings of the controller with his volt meter for Inspector Durrant, testified that only one component in the controller, was electrified. (Tr. 300). To contact that component, the main control input, Dodds reached into the box and curled his hand around a terminal. Id.

2. Summary of the Parties’ Arguments

The Secretary argues that Hidden Splendor violated 30 C.F.R. § 75.512 by failing to maintain a battery-powered scoop to assure safe operating conditions and a penalty of at least the assessed amount is appropriate. The scoop was plugged in, available for use, and the cover of the controller was missing, which exposed conductors and wires. These components were energized, carrying 120 volts. The scoop was not being maintained to assure safe operating conditions.

The uncovered controller was highly likely to cause an injury and was S&S. Scoops are regularly used in the mine and this one was available for use. The opening of the controller was large and miners often contact it when entering the cab of the scoop. The electrified components were not deep within the controller and both Inspectors Durrant and Bordea described numerous plausible ways to contact them. Furthermore, a shock could be fatal.

The Secretary also maintains that the violation was the result of high negligence and an unwarrantable failure. Inspector Durrant testified that the cover had been removed by a qualified electrician. Qualified electricians responsible for conducting required exams are considered agents of the operator for negligence and unwarrantable failure determinations. The failure to close the compartment was obvious, which means that Respondent knew of the condition. The operator knew or should have known of the condition, there were no mitigating circumstances, and the violation was extremely hazardous, resulting in the existence of aggravated conduct.

Respondent argues that it did not violate Section 75.512 because the scoop was being repaired and therefore was ineligible for inspection. Inspector Durrant admitted that an electrician must have removed the controller for maintenance or repairs. Inspector Durrant also issued Order No. 8457490 for failing to lock and tag-out the scoop during repairs. Although that order was subsequently vacated, it establishes that the scoop was in fact under repair. If it were under repair, it would not be subject to 30 C.F.R. § 75.512.

Even if a violation occurred, the Secretary’s conclusion that an injury was highly likely is untenable. The energized conductor was out of reach of a miner. It was inside of the controller and on the back of a switch, meaning a miner would have to curl his hand around a switch to contact it.

The Secretary’s case for an S&S violation is not based upon reasonable likelihood. The Secretary’s witnesses concluded that fatality was possible in this situation, but they did not prove that it was reasonably likely. Furthermore, neither witness was properly qualified to speak about these topics.

3. Discussion and Analysis

As I stated before, Commission precedent establishes that when equipment or facilities are available for use by miners, such equipment and facilities must comply with MSHA safety standards. See W.J. Bokus Indus., 16 FMSHRC at 707; Ideal Basic Indus., Cement Div., 3 FMSHRC at 844. Where nothing precludes the use of a piece of equipment, that equipment can be inspected and cited. Ideal Basic Indus., Cement Div., 3 FMSHRC at 844. As long as the cited safety standard does not stipulate otherwise, a piece of equipment can be inspected as long as it is not tagged-out and parked for repairs. Alan Lee Good, 23 FMSHRC at 997.

I find that the cited scoop was available for use and therefore could be cited for a violation of section 75.512. Respondent argues that repairs or maintenance were underway on the cited scoop and therefore it was not subject to a citation for a permissibility exam violation because that exam would be conducted once the repairs were completed. The scoop, however, was in an active area of the mine. More importantly, it was not tagged-out. Inspector Durrant testified that he did not see anyone who may have been working on the scoop for the hour-long period he was at or near the scoop. In fact, there were no markings, signs, barriers or designations of any kind that indicated that this scoop should not be used. The second sentence of the safety standard requires removal of equipment when a “potentially dangerous condition is found.” Clearly, the qualified miner who had been working on the scoop was aware that he left the scoop with the energized leads exposed and energized. Thus, the dangerous condition was known to the operator. The scoop could have been used, which means it presented a danger to miners. The scoop was, therefore, subject to an inspection and the order concerning a violation of Section 75.512.

I find that Respondent violated section 75.512. The fact that the controller cover was missing while a component behind that cover was electrified presents a potentially dangerous condition. As I found above, the scoop was not removed from service. Therefore, a violation of section 75.512 was established because the examiner of the electric scoop failed to correct a potentially dangerous condition.

I also find that the order was S&S. I credit the testimony of Inspectors Durrant and Bordea that there are numerous scenarios that are likely to cause a miner to reach into the controller and contact the energized component. These scenarios include contacting a component with a hand while steadying oneself in the process of entering the cab, or with a foot or tool while in the cab, as the compartment is adjacent to where the operator must sit. The opening into the controller was quite large, measuring 8 inches by 11.5 inches. I also credit, however, the testimony of Mr. Dodds that only one component was electrified, and he therefore had to curl his hand around a switch to contact it. I find, therefore, that an injury is reasonably likely as opposed to highly likely.

If an injury were to occur, I find that a 120 volt shock is reasonably likely to be fatal. I credit the testimony of both Inspectors Durrant and Bordea on this issue. Although Respondent argues that neither of the Secretary’s witnesses is qualified to testify that a 120 volt shock is likely to be fatal, this court has routinely held that it is. See Carmeuse Lime and Stone, 33 FMSHRC 1654, 1663 (July 2011) (ALJ); Nelson Brothers Quarries, 24 FMSHRC 167, 170 (Feb. 2002) (ALJ); United Nuclear – Homestake Partners, Now Homestake Mining Company, 3 FMSHRC 1552, 1559 (June 1981) (ALJ).

Considering all the facts and circumstances, I find that the violation of Section 75.512 was the result of both high negligence and an unwarrantable failure on Respondent’s behalf. The operator knew or should have known of the obvious violation. The violation posed a high degree of danger, even the possibility of death. Although only one panel of the controller was missing, the relatively large size of the opening and the position of the opening in the small cab make this violation extensive. Neither party presented evidence of whether the operator had been placed on notice concerning this type of violation. Furthermore, it is unclear how long the condition existed. I find that Respondent acted with high negligence and with aggravated conduct that constituted an unwarrantable failure. A penalty of $7,000.00 is appropriate.

J. Order No. 6686024: WEST 2009-208

On January 30, 2008, MSHA Inspector Boyle issued Order No. 6686024 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.1914(f) of the Secretary’s safety standards. The citation states, in part:

An inadequate examination has been made on diesel machinery at this mine as indicated by the obvious and extensive conditions that were found and citations written on 01-30-2008. 26 citations were written on the three machines. 15 of these citations were S&S. The citations referred to in this order are 7288429 and 7288430. Also include citations 6686001 through 6686024. All of the issues are specific requirements of CFR and are required on the weekly examinations of this machinery. A regimented inspection using approved checklist was implemented when this mine was last cited for this same issue. Reasonable efforts have not been made to maintain and inspect this machinery, and management has allowed a [remedy] that was defined as a settlement of a previous order to no longer be the standard that dictates how these inspections will be carried out. These conditions should be obvious to any casual observer.

(Ex. G-1). Inspector Boyle determined that an injury was highly likely to occur and that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, the operator’s negligence was high, that eleven persons would be affected, and that the violation was the result of Respondent’s unwarrantable failure. Section 75.1914(f) of the Secretary’s regulations requires:

All diesel-powered equipment shall be examined and tested weekly by a person qualified under § 75.1915.
(1) Examinations and tests shall be conducted in accordance with approved checklists and manufacturers' maintenance manuals.
(2) Persons performing weekly examinations and tests of diesel- powered equipment under this paragraph shall make a record when the equipment is not in approved or safe condition. The record shall include the equipment that is not in approved or safe condition, the defect found, and the corrective action taken.

30 C.F.R. § 75.1914(f). The Secretary proposed a penalty of $20,032.00 for this order.

1. Background Summary of Testimony

Inspector Boyle, who is a diesel specialist, issued Order No. 6686024 because numerous problems with three diesel powered machines convinced him that regimented inspections were not being performed on the Horizon Mine’s diesel equipment. (Tr. 599, 620). Inspector Boyle issued this order under section 75.1914(f)(1), but later modified the order to a section 75.1914(f) violation because he wanted to include the entire inspection process. (Tr. 600). Inspector Boyle believed that the permissibility issues were obvious and extensive. (Tr. 599). He also believes they had existed for a long period of time because, with so many issues, it was unreasonable to believe that the machines could have deteriorated so much within a week or two. (Tr. 601). The violations Inspector Boyle issued were associated with oil accumulations, oil accumulations near ignition sources, electrical wiring with fuses bridged out, compromised fire suppression, compromised fire extinguishers, faulty brakes, and defective steering; many of these conditions were obvious even to untrained observers. (Tr. 601-02). In total, there were 25 underlying violations written, about half of which were S&S. (Tr. 602). Respondent paid some of these citations and orders, challenged others and some are proposed. (Tr. 603).

Inspector Boyle also detailed a few of the most serious conditions, including faulty brakes on a mantrip, which were reasonably likely to lead to a serious, perhaps crushing, injury. (Tr. 604). Another piece of equipment had a broken steering shaft, which Inspector Boyle believed was also reasonably likely to cause serious injury to a miner. (Tr. 608). He testified that both mantrips had various accumulations and missing fire suppression devices. Considering the presence of all three elements of the fire triangle, these violations were reasonably likely to lead to a mine fire. Such a fire would likely result in serious injuries such as smoke inhalation. (Tr. 610). The inspector believed that the operator should have known of all of these conditions, which he described as obvious, extensive, and dangerous. (Tr. 601, 604, 607, 611). Although none of the underlying citations or orders was designated as “high negligence” and only one as “highly likely,” Inspector Boyle designated Order No. 6686024 as S&S because he believed that the faulty exams were highly likely to lead to a permanently disabling injury. (Tr. 609, 621, 636). The number of violations suggested to Inspector Boyle that there was a serious problem with the diesel equipment examinations at the mine. (Tr. 637).

The Horizon Mine was previously issued citations for inadequate equipment inspections. The inspector referenced a citation written under section 75.1914(f)(2) on May 10, 2006, for inadequate diesel inspections. (Tr. 617). After issuing the citation, Inspector Boyle met with mine management to reinforce proper inspection protocols and provide checklists. (Tr. 618). The checklists address all of the problems underlying Order No. 6686024 except for the accumulation violations. (Tr. 619). Inspector Boyle believed the accumulations to be obvious, stating that they should have been detected by weekly inspections or preshift exams. (Tr. 620).

Inspector Boyle testified that he determined that there were 11 miners affected by the violations on the mantrip. (Tr. 622). The underlying citations ranged from one to eight persons affected. (Tr. 636).

Order No. 6686024 constituted both high negligence and an unwarrantable failure on the part of Respondent, according to Inspector Boyle’s testimony. The underlying conditions were obvious and extensive to the point that no training was required to detect them and any sort of preoperational checks should have detected them. (Tr. 622). Supervisors sometimes used the equipment. Id. Previous citations gave mine management notice of the underlying violative conditions as well as the deficient inspections. Id. There were no mitigating factors in Inspector Boyle’s opinion. (Tr. 640).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent violated section 75.1914(f) by failing to conduct adequate weekly examinations on multiple pieces of its diesel equipment and an increased penalty above the assessed penalty of $20,302.00 is appropriate. There were 25 underlying violations that were extensive, obvious, and had existed for a period of time that began before the most recent weekly examination. Collectively, these violations show that Respondent was not conducting adequate inspections in violation of section 75.1914(f) and Respondent presented no affirmative evidence to the contrary.

Respondent’s violation of section 75.1914(f) was S&S. The numerous violations created a situation that led to a high likelihood of serious injury. The combination of various hazards increases the risk of serious injuries as a result of events including equipment crashes and mine fires. An inadequate examination has a broader effect than the individual violations that it creates. Although each citation was only reasonably likely, the combination of at least 15 reasonably likely events makes it highly likely that, due to an inadequate inspection, a miner could sustain a serious injury.

The Secretary also urges that Respondent’s failure to adequately examine diesel-powered equipment was the result of high negligence and constituted an unwarrantable failure. The underlying violations were extensive, obvious and had existed for a long period of time. Further, Respondent was clearly placed on notice concerning the violation.

Respondent argues that the order should be vacated because section 75.1914(f) only requires that examinations be performed and Respondent performed the exams. If the order is not vacated, it should be modified. The 104(d)(2) order is inappropriate due to a mistake in the D chain made by the Inspector. None of the underlying citations allege permanently disabling injuries and the only one that designated an injury as highly likely was settled as reasonably likely. The highest number of persons affected in any citation was only eight and those citations settled as only one person affected. None of the underlying citations was designated as being the result of high negligence. The previous citation that put Respondent on notice was too attenuated to serve as notice and mine management has changed since that time.

3. Discussion and Analysis

Order No. 6686024 was issued as a 104(d)(2) order, but Respondent argued that there was no 104(d)(1) citation to complete the D chain for Order No. 6686024. At the hearing, I asked the Secretary to file a report on the D chain issue raised by counsel for Hidden Splendor. In a report received on April 6, 2011, the Secretary set forth the chain that led to the issuance of Order No, 6686024 (the “report”), which is incorporated herein by reference. Multiple mistakes were made by MSHA inspectors all along the chain when they incorrectly listed the underlying (d)(1) citation in box 14E. In her report, the Secretary convinced me that these mistakes were corrected by subsequent modifications to the underlying orders. These modifications were attached to her report. Consequently, I reject Hidden Splendor’s argument on this issue.

I also reject Respondent’s argument that section 75.1914(f) only requires that weekly examinations be performed without regard for the adequacy of those exams. Section 75.1914(f) has two subsections, which are clearly included in 75.1914(f). Therefore, when considering a citation written under section 75.1914(f), I will also consider subsections 75.1914(f)(1) and 75.1914(f)(2). The requirements of the safety standard can be broken down into four parts: (1) a qualified examiner (2) shall examine and test all diesel-powered equipment every week (3) in accordance with approved checklists and maintenance manuals, and (4) a record of these exams must be kept and must include identification of defective equipment, identification of defects found and corrective actions taken.

I find that the Secretary established a violation of mandatory safety standard 75.1914(f). Respondent violated both the third and fourth elements set forth in subsections 75.1914(f)(1) and 75.1914(f)(2). I credit the testimony of Inspector Boyle as to the conditions he found during his inspection. Excluding the accumulation violations, Inspector Boyle testified that all of the citations he issued were addressed by the checklists that he personally gave Respondent. If Respondent had followed the checklists correctly, there would not be such a high number of violative conditions.

Although Respondent did keep records to show examinations were being done, these records did not list the defects that Inspector Boyle found. Even if Respondent did not follow the checklists Inspector Boyle gave them, the inspector testified that many of the violations were obvious, even to someone without training. The accumulation violations, which were not on the checklists, would be difficult for any person performing an examination to miss.

I also find that Order No. 6686024 was S&S. The Secretary established a violation of 75.1914(f). There are multiple discrete safety hazards that the violation contributed to, including crushing type injuries as a result of faulty brakes or steering, carbon monoxide poisoning or smoke inhalation as the result of a fire. Although Respondent opines that none of the underlying violations were designated as highly likely to lead to an injury, Inspector Boyle testified that the cumulative effect of the underlying violations convinced him that an injury was in fact highly likely. I agree with Inspector Boyle and I credit his testimony that the hazard contributed to by the cited violation would reasonably likely be a serious, permanently disabling injury.

Furthermore, the neglect that Respondent’s examiners demonstrated relates to the violation Inspector Boyle cited, not an amalgamation of the underlying violations. The state of the diesel equipment suggests that it is highly likely that an injury would occur because Respondent’s examiners were unable or unwilling to identify and correct hazards. The citations themselves are proof of this conduct and they provide a starting point for evaluating the likely outcome of the conduct, but they do not define the parameters of the likely outcome of the conduct. For this reason, among others, the Mine Act enumerates violations for faulty inspections separate from underlying conditions. Order No. 6686024 is highly likely to lead to a serious injury and is an S&S violation of section 75.1914(f).

Looking at all the facts and circumstances, I find that Order No. 6686024 was the result of Respondent’s high negligence and an unwarrantable failure to comply with section 75.1914(f). Every factor used in evaluating the existence of an unwarrantable failure weighs against Respondent in this instance. Respondent was on notice that greater efforts were necessary for compliance due to Inspector Boyle’s previous citations and his attempt to train Respondent’s examiners on proper examination techniques, including the use of approved checklists. Despite this training, the continued failure to properly examine diesel equipment or record defects found during those examinations shows that Respondent made little or no effort to correct the violative conduct. The condition was extensive, as the inadequate examinations led to a large number of violations and safety hazards. I also credit Inspector Boyle’s testimony that the extensive deterioration of the diesel equipment did not happen in a one- or two-week period, which means that the violative examinations existed for a substantial period of time. As Inspector Boyle noted, the underlying conditions were all obvious. Due to the sheer number and extensiveness of the underlying violations, the fact that the diesel examinations were inadequate was obvious and Respondent should have known that its examinations were inadequate. Consequently, I hold that of Order No. 6686024 constituted both high negligence and an unwarrantable failure on behalf of Respondent. A penalty of $20,000.00 is appropriate for this order.

K. Citation No. 8454049; WEST 2009-208

On June 19, 2008, MSHA Inspector Tain Curtis issued Citation No. 8454049 under section 104(a) of the Mine Act, alleging a violation of section 75.1101-1(a) of the Secretary’s safety standards. The citation states:

When the #6 Belt drive fire deluge was activated only 4 of the 16 nozzles discharged any water. The belt was off, but only on sequence, it would start when the preceding belt would start. The hazard is [that] only 25% of the system worked on a drive that usually runs continuously and is not attended regularly by a miner. The area was rock dusted and no accumulations were in the drive area. This has been an ongoing problem with the deluge systems on the belt drives at this mine, 5 citations have been issued since 3/2007, on 75.1101-3(a).

(Ex. G-16). Inspector Curtis determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that the violation was S&S, the operator’s negligence was high, and six persons would be affected. Section 75.1101-1(a) of the Secretary’s regulations requires:

Deluge-type spray systems shall consist of open nozzles attached to branch lines. The branch lines shall be connected to a waterline through a control valve operated by a fire sensor. Actuation of the control valve shall cause water to flow into the branch lines and discharge from the nozzles.

30 C.F.R. § 75.1101-1(a). The Secretary proposed a penalty of $3,996.00 for this citation.

1. Background Summary of Testimony

On June 19, 2008, Inspector Tain Curtis issued Citation No. 8454049 because only four of 16 fire deluge sprays worked. (Tr. 767). Inspector Curtis designated the citation as S&S. (Tr. 771). He marked this citation as reasonably likely to lead to an injury because the belt drive creates heat and a fire would not be extinguished by only 4 deluge sprays. (Tr. 767). Inspector Curtis also testified that a fire could start in the gear boxes or the gear reducers and consume the belt and any coal on the belt. (Tr. 770). He testified that although there was no coal present at the time of his inspections, during normal mining operations there would be coal on the belt. Id. A fire would expose miners to asphyxiation through noxious smoke, carbon monoxide, burns, slips, trips and falls while fighting the fire. (Tr. 768). Inspector Curtis was not sure whether a deluge system was supposed to extinguish or slow down a fire, but he testified that the system would barely slow down a fire in the cited condition. (Tr. 769).

Inspector Cutis designated this hazard as lost workdays or restricted duty because it would take a while for a miner to recuperate from carbon monoxide poisoning or burned lungs. (Tr. 770). He designated that six persons would be affected because that was the number of miners working in the cited section. (Tr. 771).

Inspector Curtis designated Respondent’s negligence as high. (Tr. 773). The mine was on notice that their deluge system required more attention due to three 75.1101-3(a) citations issued between March 2007 and when Inspector Curtis issued Citation No. 8454049. (Tr. 772). The condition was extensive, as only four of 16 nozzles sprayed water due to clogs from debris. (Tr. 775). One of those four only dribbled water. Id. Respondent should have known of the condition, as detecting it only required turning on the water. (Tr. 776). The system, however, is only required to be turned on and tested once a year. (Tr. 777).

Joseph Fielder testified that there had never been a belt fire at the Horizon Mine and that the cited area has a fire hose, a water source, fire extinguishers and rock dust. (Tr. 785-86). He asserted that if mine management knew the deluge system was clogged, management would have fixed the system. (Tr. 787).

2. Summary of the Parties’ Arguments

The Secretary argues that Citation No. 8454049 is S&S. Respondent stipulated to the violation. There is a discrete safety hazard of a fire spreading rapidly without suppression, which leads to a reasonable likelihood of serious injuries that include carbon monoxide asphyxiation and burned lungs. Only 25% of the system activated, which is not sufficient to control a fire. The additional firefighting equipment in the area was all handheld and would require a miner to move close to the fire to extinguish it.

According to the Secretary, the cited violation was a result of Respondent’s high negligence. Respondent should have known of the condition and prevented it, but Respondent failed to do so. Respondent should have been on heightened alert concerning problems with the cited system because five citations were issued on the system in the preceding year.

Respondent disputes the finding that Citation No. 8454049 was the result of high negligence. The Inspector does not allege that examinations were not being performed and the system is only required to be actually tested once a year. Respondent could not have known about the clogs in the system because they developed after the last yearly test and could not be discovered through the weekly examination.

Respondent also asserts that the S&S designation is unjustified. The deluge system does not present a hazard because it cannot cause a fire. For any injury to occur, a fire must start, which is unlikely based upon the mine’s history and condition. Heat and fuel were not even present. A fire was unlikely to start; therefore, an injury is unlikely to occur.

Furthermore, it is unfair to assume that a fire would occur in order to decide if an injury is likely to occur. If a fire did occur, however, the area was equipped with a warning system, a water source, extinguishers, and rock dust to fight a fire. Even if a fire occurred, this equipment would mean that injury as a result of that fire is not reasonably likely because the fire would be contained.

3. Discussion and Analysis

I find that the citation was not S&S. Respondent stipulated to the violation. A discrete safety hazard was present; a fire could start and serious injuries, including asphyxiation and burns, could occur as a result of the violative condition. Although the cited violation satisfies three of the four Mathies criteria, the third element is the most difficult to apply. In this instance, there is not a reasonable likelihood that miners would be unable to control a fire that would result in serious injuries as a result of the violation.

The fire prevention system has many built in redundancies so that the partial loss of the deluge system was unlikely to make a fire reasonably likely to cause injury due to an inability to control it. First of all, the Horizon Mine had never experienced a belt fire and has no history of dangerous methane levels. The area where this belt was located posed no increased risk of fire. It seems unlikely, therefore, that a fire that miners could not control would occur.

Even if a fire did occur, however, the absence of a fully functional deluge system is not reasonably likely to have contributed to a hazardous fire. The occurrence of a fire at the #6 belt would produce an audible alarm that would notify the entire mine of the fire. The area of the belt is also equipped with a firehose, a water source, rock dust and fire extinguishers, all of which could be used by miners to fight a fire. The deluge system is a fire suppression system that is not designed to extinguish a fire on its own. (Tr. 224). Miners, therefore, would be forced to use the firefighting tools at their disposal whether the deluge system was operational or not. Due to the array of firefighting and suppression tools located at the belt, along with the conditions that make a fire unlikely, I find that Citation No. 8454049 was not S&S.

Considering all the facts and circumstances, I find that Respondent’s negligence was moderate. Numerous citations issued in the previous year placed Respondent on notice that greater efforts were necessary for compliance. Even though the Act requires the system to be tested once a year, the Horizon Mine’s previous problems with its deluge system demanded vigilance on the part of mine management. The violation itself was extensive, considering only four out of 16 nozzles worked and one only dribbled. Respondent, therefore, should have known about this violation.

There are, however, mitigating factors that show this citation was not the product of high negligence on the part of Respondent. Neither party presented evidence pertaining to how long the violation existed, but I find that it is likely that the condition occurred after the yearly test of the system. The violation was not obvious, as weekly examinations, even when conducted perfectly, could not detect it. The violation did not pose a high degree of danger. A penalty of $500.00 is appropriate for this violation.

L. Citation No. 8457087: WEST 2009-591

On December 23, 2008, MSHA Inspector Curtis issued Citation No. 8457087 under section 104(a) of the Mine Act, alleging a violation of section 75.220(a)(1) of the Secretary’s safety standards. The citation states:

The operator was not following their approved roof control plan. Found a cross-cut that was mined prior to 12/13/2008, that was not bolted. The roof control plan states that places would be bolted within 24 hours. The hazardous condition has existed since 12/13/2008 today is 12/23/2008. Cross-cut # 3 K-north MMU 001-0, between #1 and #2 entry. The unbolted cross-cut had an area of immediate roof that fell 1 foot high by 1 foot. The fall was not deemed reportable.

(Ex. G-36). Inspector Curtis determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, the operator’s negligence was high, and that one person would be affected. Section 75.220(a)(1) of the Secretary’s regulations requires that “[e]ach mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine.” 30 C.F.R. § 75.220(a)(1). The Secretary proposed a penalty of $2,473.00 for this citation.

1. Background Summary of Testimony

On December 23, 2008, Inspector Curtis responded to a hazard complaint in the K-North section of the Horizon mine. (Tr. 747). Inspector Curtis issued Citation No. 8457087 under section 75.220(a)(1) because a section of the roof had not been bolted within 24 hours as the roof control plan requires. (Tr. 748). The roof plan requires that “for cuts of ten foot or greater, roof bolts [be] installed within 24 hours after the area is mined,” excluding “extraordinary circumstances such as mechanical breakdown of the bolter.” (Tr. 749, Ex. G-81 at 5). A new crosscut had been broken through and the preshift showed that it had not been bolted. (Tr. 750).

Inspector Curtis designated the citation as S&S because it was reasonably likely that the unbolted roof would lead to a roof fall that would cause an injury of a serious nature. (Tr. 756). A cubic foot of roof had already fallen. (Tr. 750). Roofs must be bolted within 24 hours due to air slack, which occurs gradually when air gets between the layers of coal or rock, making roof falls more likely. Id. Although air slack is more likely in coal roofs, it can also occur in rock roofs. The roof in the cited area was rock, not coal. (Tr. 751). Inspector Curtis believed that the small roof fall was a sign that air slack had already occurred and, if left unbolted, the whole roof would eventually fall. Id. He also testified that after air slack occurs, even bolting the roof may be ineffective to prevent roof falls. (Tr. 755). The longer the roof is allowed to slack, the more dangerous it becomes and this condition was left unabated for 10 days. (Tr. 757). Joe Fielder testified, however, that a roof fall was unlikely. (Tr. 764).

There were no miners working in the crosscut at the time, but Inspector Curtis testified that it was an open crosscut that was active, although it was outby the busiest sections of the mine. (Tr. 752). There was also a roofbolter in the section, with the power on. Id. The inspector was not sure if the section was blocked off, but he did not believe that it was. (Tr. 754). He reasoned that miners from the adjacent section or travelway could enter the cited section, as well as the miner who intended to use the powered roofbolter. (Tr. 752-753). He believes that hazard flags were in place because he did not cite the mine for their absence. (Tr. 154). The flags would not physically keep a miner out of the section. Id.

Inspector Curtis testified that he designated the citation as permanently disabling because falling rocks from the roof could break bones and cause contusions. (Tr. 754). He said that only one person would be affected because it was unlikely more than one person at a time would go through the area. (Tr. 755). Inspector Curtis believed that Respondent knew about the violation, because it was marked in the preshift book, dated December 13. (Tr. 78).

Although Inspector Curtis acknowledged that the roof bolting machine may have broken down and the floor was wet with deep mud, he testified that these were not mitigating circumstances because the section had been unbolted for ten days. (Tr. 757). In Inspector Curtis’ opinion, ten days is enough time to fix the bolter or to use the section’s other bolter, which could be brought in through the other side. (Tr. 758-759). Inspector Curtis, therefore, did not believe this to be an extraordinary circumstance referred to as an exception in the roof plan. (Tr. 759).

Joe Fielder testified that the roof bolter in the cited section had lost a traction planetary gear on the cat system, which prevented the bolter from moving. (Tr. 760). The replacement part had to be purchased in the eastern United States and it took several days to find and several days to ship. (Tr. 761). Fielder testified that, as soon as the part arrived, it was put on the roof bolter and the cited roof was bolted. (Tr. 761). Fielder also testified that the other roofbolter could not be brought into the cited section because one side was blocked by the broken down bolter, and the other was blocked by mud that was up to four feet deep. (Tr. 762).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent violated section 75.220(a)(1) by failing to comply with its approved roof control plan when it did not install roof bolts within 24 hours after mining at crosscut 3 in K-North, between the #1 and #2 entries. Ten days after mining the area, Respondent still had not bolted the roof.

Respondent’s violation of section 75.220(a)(1) was S&S because it exposed miners to roof falls. Leaving the roof unbolted exposes the roof to air slack, which can create an increased risk of roof falls even after the roof has been bolted. A piece of roof had already fallen. There was a reasonable likelihood of injury because Inspector Curtis determined that the roof would eventually fall and miners were likely to be in the area.

The Secretary asserts that Respondent’s violation of section 75.220(a)(1) was the result of high negligence. The condition was obvious and Respondent clearly knew of the condition, because it was recorded in the preshift exam book. The area was not blocked off, even though the violative condition had existed for at least ten days. The argument that the roof bolter was broken down is not a mitigating factor because Respondent had plenty of time to repair the bolter or use the section’s other bolter; there were no other mitigating factors.

Citation No. 8457087 should be vacated because the roof control plan exempted the 24-hour roof bolting requirement in the event of the mechanical breakdown of a roofbolter. The bolter was clearly broken down due to a mechanical failure and it took 17 days to obtain replacement parts and complete repairs. Hazard flags warned miners not to enter the unbolted area until the roofbolter was fixed and able to bolt the roof. No other bolter could be brought to bolt the roof due to the muddy conditions of the section. Respondent did not violate its roof control plan because its actions fall within an enumerated exception of the plan.

3. Discussion and Analysis

Considering the roof control plan in its entirety, I find that Respondent did not violate section 75.220(a)(1) because it falls within an enumerated exception of the roof control plan. When interpreting a roof control plan, each section shall not be read in isolation; rather, the entire plan as a whole must be considered. Mettiki Coal Corporation, 13 FMSHRC 3, 7 (Jan. 1991). Considering the cited portion of the plan on page three, subsection six, it is clear that Respondent did not violate 75.220(a)(1). The exception in subsection 6 is for extraordinary circumstances, but the enumerated example of an extraordinary circumstance that excuses the 24-hour requirement is the “mechanical breakdown of the bolter.” (Ex. G-81 at 5).

When considering the entire plan, there is no language that suggests that Respondent’s conduct violated the plan or that there is a specific period of time in which a roof must be bolted when extraordinary circumstances are present. I credit the testimony of Fielder as to the problem the mine was having getting the part for the roof bolter and the impossibility of using the other roof bolter. Respondent flagged-off the area and it repaired the roof bolter as quickly as was feasible. Respondent’s conduct plainly fell within an exception to the 24-hour roofbolting requirement of the roof control plan, and therefore Respondent did not violate section 75.220(a)(1). Citation No. 8457087 is hereby VACATED.

M. Order No. 6685990; WEST 2009-210

On September 17, 2008, MSHA Inspector Devere Smith issued Order No. 6685990 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.360(a)(1) of the Secretary’s safety standards, which was later amended to be a violation of 75.360(b). The citation states:

An adequate pre-shift exam was not completed on the 1st West travelway in that two (2) areas of insufficient roof support were found by this inspector. (reference citation #’s 6685989 and 6685988). The pre-shift exam book indicated NONE OBSERVED for this travelway. Had this top failed, serious injury or a fatality could have occurred.

(Ex. G-31). Inspector Smith determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was S&S, the operator’s negligence was high, that six persons would be affected, and that the violation was the result of Respondent’s unwarrantable failure. Section 75.360(b) of the Secretary’s regulations requires, in part, that “[t]he person conducting the preshift examination shall examine for hazardous conditions, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction at the following locations: . . . (1) Roadways [and] travelways.” 30 C.F.R. § 75.360(b). The Secretary proposed a penalty of $14,743.00 for this order.

1. Background Summary of Testimony

On September 17, 2008, Inspector Smith issued Order No. 6685990 because he observed dangerous roof conditions in two areas. (Tr. 421). In the First West area, between crosscuts 9 and 10, 16 bolts were taking weight, seven of which he deemed were near failure; these conditions affected an entryway that was about 20 feet wide. (Tr. 424, 427). At crosscut 27, in an intersection, Inspector Smith viewed six bolts that were either bent or missing heads. (Tr. 427). Both areas were bolted with 5 foot bolts, which do not support the “trouble zone” of the roof. (Tr. 429).

Inspector Smith designated the order as S&S. (Tr. 431). The preshift examiner in this instance failed to “protect the safety and health of the coal miners.” (Tr. 430). The inspector believed that the cited roof conditions, if left unabated, would have led to a roof fall that could cause fatal injuries. (Tr. 425, 432). Based on the damaged roof bolts and the fact that the mine has a history of roof control violations and a “trouble zone” at the 5 foot depth of the roof, Inspector Smith believed that these roof conditions were reasonably likely to result in an injury (Tr. 428-29, 433). Furthermore, the cited area is both the secondary escapeway and the main entrance of the mine. (Tr. 436-37).

Inspector Smith testified that the order was the result of the operator’s high negligence and unwarrantable failure to comply with the standard because the operator knew or should have known of the condition and there were no mitigating factors. (Tr. 433). Mine management should have known about the conditions because foremen traveled the cited area every day and the preshift examiner is the agent of the operator and should have found and recorded the roof control problems. (Tr. 434, 437). He also noted that MSHA had warned the Horizon Mine’s management on at least two occasions that their roof examinations were inadequate. (Tr. 435). The conditions were both obvious and extensive. (Tr. 436). Usually, a weight shift like the one that caused the damage in this area would also cause dust or debris to fall, but the Inspector did not observe any in the area, which led him to estimate that the underlying conditions existed for at least a day. (Tr. 438). Inspector Smith designated that six miners would be affected because that was the number of miners in the section. (Tr. 434).

Roger Tuttle testified that the plates at crosscuts 9 and 10 were showing a small amount of deflection, but that he did not believe the conditions were severe enough to constitute a hazard. (Tr. 469). At the time of the inspection, Tuttle had looked at the cited area twice a day, five days a week for about a year. (Tr. 467-68). Tuttle did believe that there were three bolts that were damaged, but he stated that there was already supplemental roof support in that area. (Tr. 479). He further testified that the bolts in the cited sections were fully-grouted bolts, which can support a roof even without a head or plate. (Tr. 464). According to Tuttle, the plates in question looked the same at the time of the trial as they did at the time of the inspection. (Tr. 472).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent violated section 75.360(b) by failing to adequately examine for and report hazardous conditions along two separate crosscut sections and a penalty of at least the assessed amount of $14,743.00 is appropriate. At crosscuts 9 and 10, Inspector Smith observed 16 bolts taking weight, seven of which were near total failure. Six bolts were damaged quite badly at crosscut 27 as well. The preshift examiner in this area should have observed, recorded and fixed these roof problems, but he did not.

Hidden Splendor’s failure to conduct an adequate preshift examination was S&S because the violation of section 75.360(b) was reasonably likely to lead to a roof fall that could cause fatalities, argues the Secretary. The Horizon Mine has a history of roof falls. Also, although in compliance with the roof control plan when installed, 5 foot bolts were not ideal to stabilize the roof in this area. The combination of the damaged bolts, history of roof falls in the mine, and the use of 5 foot bolts made a roof fall in either of the cited areas reasonably likely.

Respondent’s high negligence and unwarrantable failure caused its violation of section 75.360(b), according to the Secretary. The conditions were obvious, extensive, and should have been noted by the preshift examiner, who is an agent of the operator. There was a high risk of danger associated with a roof fall in this area due to the extent of the conditions and its location in a main travelway. These conditions also existed for some time, at least before the preshift examination. Previous citations placed Respondent on notice that more effort needed to be placed into preshift examination to comply with the Secretary’s standards. There were no mitigating factors.

Respondent admits the violation of section 75.360(b), but disputes the designations of S&S, high negligence, unwarrantable failure. The S&S designation was unsupportable because an injury was not reasonably likely to occur as a result of the violation. Although Respondent should have identified the hazard at crosscut 27, the conditions at 9 and 10 did not present a hazard in Respondent’s opinion. The fact that the plates were showing deflection was not a hazard, but simply something that required attention. The fully grouted resin bolts present in the cited sections could stabilize the roof even with damaged or missing heads or plates. Furthermore, the inspector based this designation on the history of roof falls at the Horizon Mine, but failed to consider that the cited section did not have a history of roof falls and that the Horizon mine has never had an injury due to a roof fall. Furthermore, the underlying citations were both designated as non-S&S.

Respondent believes that there was a difference of opinion between mine management and MSHA rather than a situation where designations of high negligence and unwarrantable failure are appropriate. Supplemental supports that Respondent erected in the First West travelway show that mine management monitored and addressed roof control issues. The Secretary failed to show either that the conditions had existed for a long period of time or that the conditions were obvious. Furthermore, the bolts could have been recently damaged when equipment was moved through the area. Respondent’s culpability in regard to the cited conduct was neither highly negligent nor aggravated because Respondent was not ignoring hazards; rather, Respondent identified the conditions and disagreed with the Inspector as to the severity of, and danger posed by, those conditions.

3. Discussion and Analysis

It is well recognized that roof falls pose one of the most serious hazards in underground coal mines. United Mine Workers of America v. Dole, 870 F. 2d 662, 669 (D.C. Cir. 1989). A mine examiner must be unceasingly vigilant when inspecting the roof to protect miners who work or travel in the area. It is critical that preshift examiners conduct thorough and detailed examinations of the mine and that they pay particular attention to the condition of the roof.

I find that Respondent’s violation of section 75.360(b) was S&S. Respondent admitted the violation. The discrete safety hazard contributed to by the violation is the danger of a roof fall occurring in an area that was not adequately examined. Clearly, a roof fall in any of the cited areas could be fatal for a miner and I credit Inspector Smith’s testimony in this regard. Finally, I also find that there is a reasonable likelihood of injury due to a roof fall contributed to by the inadequate examinations at Horizon Mine. Regardless of the history of roof falls in the Horizon Mine, unsupported roofs lead to roof falls. The negligent examination practices that allow unsupported roofs to occur are even more dangerous and more likely to lead to injury than any single unsupported roof. Every time that an examiner fails to recognize a problem area in the roof, a roof fall becomes more likely, and an injury resulting from such a fall becomes more likely. I credit Inspector Smith’s testimony that a roof fall would actually have occurred without correction of the cited condition. Respondent’s violation of section 75.360(b) contributed to the potentially fatal hazard posed by roof falls, which are reasonably likely to result in an injury.

Considering all the facts and circumstances associated with the cited violation of section 75.360(b), I find that the order was not an unwarrantable failure and was the result of moderate negligence. Some aggravating factors do exist. Respondent admits that it should have known of at least one of the underlying conditions and Smith testified that this condition was obvious due to the severe damage to the bolts. MSHA warned Hidden Splendor that greater efforts were necessary for achieving adequate inspections. The risk of roof falls poses a high degree of danger. Respondent failed to improve its preshift examinations despite MSHA’s warnings.

I find that Respondent mitigated its negligence due to its honest, good faith belief that the conditions in crosscuts 9 and 10 did not pose a hazard to miners. This area was the main entryway. Roger Tuttle testified that he walked beneath the cited section of roof ten times a week, looking at the roof support every time. If Roger Tuttle, or anyone else at the Horizon Mine, had believed this condition was a hazard, I believe Respondent would have further supported the roof. According to Tuttle, the bolts in the cited area with the most damage were already buttressed with supplemental support. Also, the high traffic in this area suggests that the violation was not obvious, as most of Respondent’s employees had an opportunity to see the roof in that area. The order is hereby modified to a section 104(a) citation. A penalty of $5,000.00 is appropriate for this violation.

N. Order No. 8457347: WEST 2009-1451

On July 29, 2009, MSHA Inspector Smith issued Order No. 8457347 under section 104(d)(2) of the Mine Act, alleging a violation of section 77.202 of the Secretary’s safety standards, which was later amended to be a violation of section 77.1104. The citation states:

The area around #1 surface belt tailpiece and magnet had dangerous accumulations of float coal dust and coal fines on/around the structure. Coal fines were measured at 4 ft in width by 10 ft in length and up to 9 inches deep and were rubbing the belt and out-by bottom belt roller. In addition accumulations under the belt at the magnet were measured 3 ft wide by 8 ft in length and up to 4 inches deep. Float coal dust was in the air around these areas and on the structure. The belt was in service at this time.

(Ex. G-69). Inspector Smith determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that the violation was S&S, the operator’s negligence was high, one person would be affected, and the violation was the result of Respondent’s unwarrantable failure. Section 77.1104 of the Secretary’s regulations requires that “[c]ombustible materials, grease, lubricants, paints, or flammable liquids shall not be allowed to accumulate where they can create a fire hazard.” 30 C.F.R. § 77.1104. The Secretary proposed a penalty of $4,000.00.

1. Background Summary of Testimony

Inspector Smith first noticed a suspended cloud of float coal dust by the #1 tail piece. (Tr. 497). Next, he viewed a roller turning in dry coal fines and producing both the float coal dust and heat. (Tr. 498). The accumulations under the belt measured 4 feet wide by 10 feet in length by 9 inches deep. (Tr. 502). There were also accumulations outby but not touching the roller that measured 3 feet wide by 8 feet long and 4 inches deep. Id. The accumulations were composed of dark black coal sized anywhere from fines to 2 inch nut coal. (Tr. 502-03).

Inspector Smith designated the order as S&S because it was reasonably likely that a serious injury would occur. (Tr. 510). The presence of an ignition source, oxygen, and fuel led Inspector Smith to believe that the accumulations could contribute to a fire. (Tr. 503).

The Inspector designated the hazard as reasonably likely to cause an injury because the friction between the roller and the coal fines produced heat. Id. Inspector Smith stated that the movement also produced float coal dust, which convinced him that the cloud was not created by the wind. (Tr. 516). Inspector Smith had seen fires start in this way at several different locations. (Tr. 504). The roller, the area under the tail piece, and passing non-permissible equipment were all ignition sources. Id. The combination of the roller and tail piece was Inspector Smith’s main concern, as he envisioned an ignition of the coal fines due to the roller turning in the fines. (Tr. 506). He was also concerned about the ignition of the float coal dust by the non-permissible equipment. He testified that the coal dust was far enough into the roadway that the electrical systems of the equipment could ignite the cloud, which would lead to a flash that would injure any miner in its vicinity. (Tr. 505). In a worst-case scenario, the float coal, the fines, and any grease on the belt drive would all catch fire. (Tr. 508).

Inspector Smith designated the injuries resulting from such a fire as lost work days or restricted duty injuries. He worried about smoke inhalation and possible burns stemming from the fire itself. (Tr. 509). Due to the materials stored in the area, he also believed that injuries from slips, trips and falls, as well as cuts and abrasions could occur while fighting the fire. (Tr. 510).

Inspector Smith designated Respondent’s negligence as high. (Tr. 511). Respondent knew or should have known of the condition because a supervisor walked through the area 15 minutes before Inspector Smith issued the citation. Id. The supervisor should have seen the large cloud of float coal dust, as it was obvious. (Tr. 512). Based upon the size of the accumulations and cloud, this condition was extensive. (Tr. 511-12). Further, Inspector Smith testified that Respondent had noticed that greater efforts were necessary to address accumulations because the same area had been cited for accumulations 12 days earlier when the inspector issued Order No. 8457347. (Tr. 513). Based upon the size of the accumulations and the fact that the mine had just completed a down shift, Inspector Smith believed that the accumulations had been there for longer than a shift, but no more than 48 hours. He did not believe that the accumulations resulted from a recent spill because it took two hours of work with a power washer to remove the hard-packed accumulations. (Tr. 523).

Roger Tuttle testified that due to a 15-foot drop where coal dumps from the #2 belt to the #1 belt, there is a cloud of coal dust at the cited location when dry coal is being produced. (Tr. 534). Upon activation, the belt usually produces a cloud of coal dust as well. (Tr. 535). Tuttle did admit that the belt rolling on accumulations could produce coal dust and eventually lead to a fire. Id.

2. Summary of the Parties’ Arguments

Respondent’s violation of section 77.1104 is S&S. Inspector Smith testified that the cited conditions could lead to a large fire or a coal dust flash, which could result in smoke inhalation, burns, and slip-and-fall type injuries. The accumulations were reasonably likely to lead to injury because they were extensive and could have been ignited by the tailpiece roller rubbing on the coal fines, the belt rubbing in the coal fines, or non-permissible equipment traveling in the area. At least one miner would be in the area and if a fire started it could grow quickly and would require miners to fight the fire by hand. Sustained operation of the belt would further increase the likelihood of a fire-causing injury.

Respondent’s high negligence and unwarrantable failure led to its failure to comply with a mandatory safety standard. An accumulation citation was issued in the same area about a week earlier, which put Respondent on notice that greater efforts were required to comply. The condition was obvious and extensive. The cloud of coal dust was 10 to 15 feet wide and high, was visible from the office, and was directly in the route of anyone traveling into the mine. The accumulations were large and Inspector Smith noticed them immediately. The accumulations existed for a period of time greater than one shift because, during the previous shift, the belt had been idle and the accumulations were compacted and difficult to remove. The fire hazard makes this violation highly dangerous. The fact that Mr. Cisneros, a supervisor, passed the accumulations and coal dust cloud shows that Respondent knew or should have known of the condition.

Respondent asserts that the cited conduct violated section 77.1104, but did not constitute high negligence or an unwarrantable failure. Belt spills and accumulations can occur very quickly and the Secretary did not show that this particular accumulation existed for any length of time. The dust cloud could have appeared suddenly due to the 15-foot drop at the coal transfer point, or could have occurred due to the belt beginning to move. In either situation, a dust cloud would be normal and might not alarm a supervisor. Either scenario could also have occurred after the supervisor walked through the area. The supervisor’s conduct should not be considered highly negligent simply because he failed to turn his head and look at the accumulations. The Secretary’s evidence is speculative and Respondent’s negligence should be no more than moderate.

The cited condition is not S&S because a fire was unlikely to begin and unlikely to injure miners if it did. Common sense dictates that a fire beginning as the result of a passing vehicle is a remote possibility. Moreover, since the conveyor belt moved continuously, it would not generate or retain enough heat in any one place to ignite the accumulations. The belt was flame resistant and there was fire equipment in the area. This belt area is on the surface, rather than underground, allowing both smoke and miners to exit the area quickly in the event of a fire, which makes an injury as the result of a fire unlikely. The order should be modified to a non-S&S, section 104(a) citation based upon the operator’s moderate negligence.

3. Discussion and Analysis

Respondent stipulated to the violation, but I find that the Secretary did not meet her burden to show that the violation was S&S. To prove a finding of S&S, the Secretary is required to show that a fire is reasonably likely to occur and cause a serious injury. Although the Secretary showed that the violation contributed to a discrete safety hazard of causing a fire, which could cause serious injuries, she did not show that a fire was reasonably likely to occur and cause an injury. The Secretary did not show that the main ignition sources, the roller and belt rolling in the accumulations, were likely to lead to a fire. I find that the ignition of the float coal dust from non-permissible machinery is possible, but not reasonably likely.

If a fire did occur, furthermore, the location of the belt makes serious injuries less likely. Generally, the most serious repercussions of fires in coal mines are smoke inhalation and carbon monoxide poisoning. As the cited belt was outside, smoke and carbon monoxide are less likely to accumulate in the event of a fire.

Considering all the facts and circumstances before me, I find that the designations of high negligence and unwarrantable failure are appropriate. The violation existed for at least a shift and based upon the difficulty of removing the accumulations, possibly longer. The accumulations and the cloud of float coal dust were large, prompting me to call the condition extensive. The size of the accumulations and cloud, as well as their location within sight of the office and anyone entering the mine, make this violation obvious. The operator was cited less than two weeks prior to the issuance of Order No. 8457347 and was surely on notice that greater efforts were necessary for compliance. Respondent did abate the previous citation, but it did nothing to correct the current violative condition or prevent further accumulations. Furthermore, based upon the location of the cloud and accumulations, coupled with the fact that a supervisor passed through the area 15 minutes before Inspector Smith issued the citation, I find that the operator knew or should have known about the violation. Although the violation was not reasonably likely to cause an injury and therefore did not pose a high degree of danger, Respondent’s aggravated conduct shows that Order No. 8457347 was the result of high negligence and an unwarrantable failure on the part of Respondent. A penalty of $500.00 is appropriate for this violation.

O. Citation No. 8454109; WEST 2009-210

On September 4, 2008, MSHA Inspector Charles Bordea issued Citation No. 8454109 under section 104(a) of the Mine Act, alleging a violation of section 75.512 of the Secretary’s safety standards. The citation states, in part:

After the electrical inspection of equipment in the K-North Section (MMU-001), it is determined that an inadequate weekly exam is being allowed on one of the permissible equipment. Mainly involved is the ARO roof bolter (2G-4136A-0) which has been in operation here since June 2008. No one noticed that fire suppression protection had not been installed for the cable reel compartment. No entry was made at any time by any examiner in the weekly record of examination about this.

(Ex. G-28). Inspector Bordea determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that the violation was S&S, the operator’s negligence was high, and that six persons would be affected. The Secretary proposed a penalty of $6,996.00 for this order.

1. Background Summary of Testimony

Inspector Charles “Bill” Bordea issued the citation under section 75.512 because he found obvious safety hazards that the examiner did not record in the examination book. (Tr. 544-45). One such hazard was a 4-inch gash in the outer protective armor of a trailing cable on shuttle car #6, which created a shock hazard in the damp mine conditions. (Tr. 546-47). Inspector Bordea testified that this condition should have been found during a weekly exam. (Tr. 548). Another hazard on the shuttle that worried Inspector Bordea was that the unused holes on the backs of headlights were not plugged with a standard plug and tack-welded into position. Id. This condition should have been corrected in a weekly examination, as the inspector stated that electrical examiners learned this in a “101” type of class. (Tr. 549). It is also a high priority because these unplugged holes produce heat and arcs that can ignite coal dust or other flammable substances. Id. Inspector Bordea testified that failure to find this hazard shows that the weekly examination failed in its primary purpose, which is to prevent fires and fire-related injuries such as burns and smoke inhalation. (Tr. 550).

Shuttle car #5 lacked the required insulation that prevents a shock hazard on the cable reel. (Tr. 551). This condition is easy to notice visually by opening a hinged door, and examiners should be trained to do so. (Tr. 551-52). This condition occurs over time with wear. (Tr. 551). A lack of insulation could lead to a ground fault and excess voltage on the reel, which poses a shock hazard to the machine operator and anyone touching the machine. (Tr. 553). Electrocution is the worst case scenario, as the miner could contact 500 volts in damp conditions. (Tr. 553).

Inspector Bordea also found hazards on the ARO roof bolter. (Tr. 554). He testified that the protective conduit that went around the number 14-3 120-volt cable that was connected to the light at the top of the TRS had a gash in it. (Tr. 555). The underlying cable was undamaged, but it was exposed. (Tr. 556). If the cable were to be cut, any miner contacting it would be exposed to 120-volt electric power. Id. A visual examination should have revealed this defect. Id.

The cable reel on the roof bolter, furthermore, did not have any fire suppression, a hazard that could easily be identified by a visual examination. (Tr. 557). The Inspector testified that 40% of electrical machine fires on machines with cable reels begin at the cable reel because the cable generates large amounts of heat and is a conductor. (Tr. 559-60). The inspector found that a cable reel without fire suppression was reasonably likely to cause a serious injury to a miner and was indicative of a high level of negligence on behalf of the operator. (Tr. 561-63).

Inspector Bordea concluded that all these defects showed that the operator was not adequately conducting electrical examinations at the mine in accordance with section 75.512. (Tr. 566). He believed that the inadequate inspections were reasonably likely to lead to an injury because over time they would lead to more numerous and possibly more dangerous hazards. Id. The fact that some hazards were found and corrected while some went unnoticed for weeks worried the inspector and led him to believe that other serious issues would occur. (Tr. 567). He believed six persons would be affected because six was the minimum number of miners in a section. (Tr. 568).

The inspector also testified that the citation was the result of Hidden Splendor’s high negligence. (Tr. 568). First, all the defects were obvious upon the completion of a simple visual examination, but none were marked in the permissibility log book. (Tr. 565-66). Inspector Bordea believes that the lack of required insulation on shuttle car #5, the unwelded packing glands on #6, and the cable reel on the roof bolter existed for at least several weeks. (Tr. 554). The possible hazards were dangerous and should have been spotted by Respondent. (Tr. 553, 566-69).

Dennis Dodds testified that between July 15 and September 4, 2008, the bolter was out of service because the bolter’s temporary roof support broke. (Tr. 586). The bolter was, however, in service on September 4. (Tr. 588). Although a functional test would not be performed on the bolter until it had been in the mine for six months, Dodds admitted that when the bolter returned to service, the Act required a permissibility exam to check the fire suppression. (Tr. 589-90).

2. Summary of the Parties’ Arguments

The Secretary argues that Respondent violated 30 C.F.R. § 75.512 by failing to conduct an adequate weekly electrical examination on multiple pieces of permissible equipment. Respondent’s examiner failed to “identify, report and correct five obvious hazardous conditions on three pieces of equipment,” which is a violation of 30 C.F.R. § 75.512. (Sec’y Br. at 43). Shuttle car #6 had a damaged trailing cable that contributed to a risk of electrocution and lacked proper tack-welding that contributed to a risk of burns and smoke inhalation from fire, both of which were obvious hazards that existed prior to the last weekly inspection. The cable reel on shuttle car #5 lacked the required insulation, which exposed miners to the hazards of a ground fault on the reel, fire-related injuries and even electrocution. The missing insulation hazard existed prior to the most recent inspection and was obvious. The ARO roof bolter had a damaged protective conduit on its lighting system and was missing fire suppression on its cable reel compartment. The damaged protective conduit posed hazards associated with both fire and shock and the examiner should have detected the obvious defect.

Respondent’s violation of section 75.512 was S&S. Each hazard that Inspector Bordea identified could result in serious injuries and as a group all of the hazards are even more likely to do so. Furthermore, Respondent’s failure to identify and correct these defects suggests a haphazard approach to examinations. It is reasonably likely that this approach to examinations would lead to serious injuries through Respondent’s continued failure to identify hazards.

Respondent’s failure to perform adequate examinations on permissible equipment was the result of high negligence. All these defects were obvious upon a visual inspection. At least three of the hazardous conditions existed for a substantial period of time. Multiple examiners, however, failed to report these conditions and there were no mitigating factors.

Respondent argues that the citation was only based upon the defects of the ARO roof bolter. The inspector did not find any notations in the permissibility examination records concerning the roofbolter’s missing fire suppression system because the piece of equipment was out of service between July 15, 2008, and September 4, 2008, and therefore no permissibility examination was necessary. The citation alleging inadequate permissibility examinations was issued on September 4, 2008, which means Respondent did not perform permissibility exams upon the equipment prior to Inspector Bordea’s inspection. Thus, Respondent did not violate section 75.512 and Citation No. 8454109 should be vacated.

If the court upholds the citation, Respondent argues that the negligence designation should be reduced to low. An outside company performed the preparatory work on the bolter and delivered the bolter to the mine without a fire suppression system. Since the system had never been present, it was difficult for an examiner to detect the absence of, opposed to a defect of, the system.

3. Discussion and Analysis

I credit Inspector Bordea’s testimony that Respondent performed inadequate permissibility exams upon its electric-powered equipment in violation of section 75.512. The inspector referenced five different concerns on three different pieces of equipment. He further testified that all of these defects were obvious and had “time factors,” suggesting they existed for several weeks. (Tr. 565). Respondent’s examinations failed to address multiple, obvious violation that existed for a period of time.

Respondent argues that the Inspector based the citation upon the hazardous conditions of the ARO roofbolter only and that the citation should be vacated because the roofbolter was out of service during the permissibility exams. The record, however, does not support these arguments. Inspector Bordea testified that various defects on two shuttle cars and the ARO roof bolter convinced him that Respondent had not been performing adequate examinations. (Tr. 546). Although the body of the citation states that it “mainly involved” the fire suppression on the ARO bolter, it also references inadequate examinations on “some of the permissible equipment.” (Ex. G-28). Both the language of the citation and the inspector’s testimony support the conclusion that the missing fire suppression system on the roof bolter was Inspector Bordea’s most important consideration when writing the citation, but it was not the only condition that he considered.

It is immaterial that the roofbolter was out of service from July 15, 2008 to September 4, 2008. When the bolter was returned to service on September 4, Dennis Dodds testified that a permissibility exam was conducted. That exam did not find either of the defects on the ARO roof bolter, which were obvious and only required a visual inspection to be found.

I find that this citation is S&S. The violation contributed to a variety of discrete safety hazards including a shock hazard that could cause electrocution and a fire hazard that could cause smoke inhalation. The potentially fatal effects of electrocution and smoke inhalation are serious injuries. The fact that there are multiple violations supporting this citation, one of which is reasonably likely to cause injury on its own, suggests that the conditions caused by the inadequate examinations at the mine are reasonably likely to cause an injury. When I consider the effect of Respondent continuing to conduct inadequate exams combined with the number of underlying violations, the reasonable likelihood of an injury becomes even easier to predict.

I also find that Citation No. 8454109 was the result of Respondent’s high negligence. I credit Inspector Bordea’s testimony that the defects upon which he based this citation were obvious, dangerous, and had existed for some time. Respondent should have known that its examiners performed inadequate examinations because finding the violative conditions was apparent upon a visual inspection. A penalty of $7,000.00 is appropriate for this citation.

P. Citation No. 8454042 and Order No. 8454043; WEST 2009-208

On June 2, 2008, MSHA Inspector Curtis issued Citation No. 8454042 under section 104(a) of the Mine Act, alleging a violation of section 75.220 of the Secretary’s safety standards, which was later amended to be a violation of section 75.202. The citation states:

The top in section 2nd West MMU 002-0, in the belt entry in front of the feeder breaker, between cross cut #14 and #15 was showing signs of taking weight. The area had recently been re-bolted and several of the new bolts were pulling through the mesh into the roof, several old bolts were broken and also pulling through the mesh into the roof. This area is traveled by a shuttle car and [is] just inby the travel way for every one traveling in and out of the section along the belt entry.

(Ex. G-8). Inspector Curtis determined that an injury was highly likely to occur and that such an injury could reasonably be expected to result in a permanently disabling accident. Further, he determined that the violation was S&S, the operator’s negligence was high, and six persons would be affected. Section 75.202 of the Secretary’s regulations requires:

(a) 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 burst
(b) No person shall work or travel under unsupported roof unless in accordance with this subpart.

30 C.F.R. § 75.202. The Secretary proposed a penalty of $15,570.00 for this citation.

On June 2, 2008, Inspector Curtis also issued Order No. 8454043 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.360(a)(1) of the Secretary’s safety standards, which was later amended to be a violation of section 75.360(b). The order states:

The pre-shift that was done and phoned out for section 2nd West, MMU 002-0 on 6-2-08, was inadequate in that the examiner failed to identify the hazard of bad top that was in the belt entry between cross cut # 14 and # 15. This area is just inby w[h]ere everyone travels in and out of the section through the belt entry. It is also a haulage way used by one shuttle car. This area had been re-bolted recently so the area had been identified once as a bad top area. This section has a history of unintentional roof falls.

(Ex. G-13). Inspector Curtis determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be permanently disabling. Further, he determined that the violation was S&S, the operator’s negligence was high and six persons would be affected. Section 75.360(b) requires that “[t]he person conducting the preshift examination shall examine for hazardous conditions, test for methane and oxygen deficiency, and determine if the air is moving in its proper direction at the following locations.” 30 C.F.R. § 75.360(b). The Secretary proposed a penalty of $7,774.00 for this order.

1. Background Summary of Testimony

On June 2, 2008, Inspector Curtis issued Citation No. 8454042. (Tr. 693). Inspector Curtis testified that he modified Citation No. 8454042 from a section 75.220 violation to a section 75.202 violation because there were “bad circumstances” in the belt entry area between crosscuts 14 and 15. (Tr. 695-96). The newer bolts in the area were taking weight and coming through the mesh, while the mesh itself was taking weight, causing it to hang down between the bolts from four to six inches. Id.

Inspector Curtis issued Order No. 8454043 based upon the same roof conditions as Citation No. 8454042. (Tr. 711). Although the preshift examiner conducted the examination, he did not record any of the roof problems and Inspector Curtis believed that the examiner should have seen and addressed the roof conditions in the cited area. (Tr. 712, 714).

Inspector Curtis designated Citation No. 8454042 as S&S. (Tr. 701). He believed that the roof conditions were highly likely to result in an injury because he believed that this roof would eventually fall if not corrected. (Tr. 700). Furthermore, this specific section of the mine had a history of roof falls and this area was in front of a feeder breaker, which meant that shuttle cars would pass through two shifts a day, and anyone could walk to the entry. (Tr. 702-03). The area is also a production section and miners worked in the area on three shifts a day, causing miners to be in the area for 24 hours a day. (Tr. 703). He found that an injury caused by a roof fall would be permanently disabling, causing at least broken bones or contusions and at worst fatalities. (Tr. 701).

Order No. 8454043, Inspector Curtis asserted, was also S&S. The same rationale applies to the S&S nature of Order No. 8454043 and Citation No. 8454042. (Tr. 713-14). Inspector Curtis, however, made it clear that he issued Citation No. 8454042 due to the condition of the bolts while he issued Order No. 8454043 because the preshift examiner failed to notice the hazard posed by the bolts. (Tr. 714). He did testify, however, that an examiner would not necessarily be expected to note and address the failure of old bolts after new bolts were installed. (Tr. 724).

Inspector Curtis designated Respondent’s negligence as high in regard to both Citation No. 8454042 and Order No. 8454043. (Tr. 706,715). Inspector Curtis testified that MSHA previously issued a citation for this area. (Tr. 704). He also stated that despite the fact that the roof control plan required 8-foot bolts in the area, he only observed 7-foot bolts. (Ex. G-94; Tr. 716). The top was unstable for 8.5 feet, a condition that the roof control plan required the operator to test for. When the operator rebolted the area, it only used 7-foot bolts. (Ex. G-94; Tr. 708). The inspector believed that Respondent should have known that the roof support in this area was insufficient because the 7-foot bolts failed to support the roof, but Respondent used 7 foot bolts again when it rebolted the area. (Tr. 710). He also believed that since Respondent installed new bolts, it had actual knowledge of the insufficient roof support, but failed to sufficiently address the hazard. (Tr. 715). He designated that six persons would be affected because there are six miners on a crew, although Joe Fielder testified that it was likely that only one person would be affected. (Tr. 710, 743).

Roger Tuttle testified that he was in the belt entry area between crosscuts 14 and 15 on a daily basis and that he habitually checked roof conditions wherever he went. (Tr. 738). He further testified that while there were older, damaged bolts in the cited area, the newer bolts adequately supported the roof. (Tr. 735). He also disagreed that the mesh was taking weight, claiming that it sagged due to the roof and the way that it was bolted. (Tr. 734). Tuttle agreed with Inspector Curtis that an examiner should not be required to note damaged old bolts if satisfactory new bolts were in place. (Tr. 736). Although he testified that the bolts worked, he referred to the roof in the cited area as “an area to watch” and he was not sure whether he would have recorded the conditions in the preshift book. (Tr. 736). He also testified that he recalled that the mine used 8- to 10-foot cable bolts in the rebolting process. (Tr. 736).

2. Summary of the Parties’ Arguments

Respondent violated section 75.202 by failing to adequately support and control the roof in the belt entry between crosscuts 14 and 15. Inspector Curtis issued Citation No. 8454042 due to obvious safety hazards. Many roof bolts in the area “were either loaded up, pulling through the mesh, broken and/or missing heads.” (Sec’y Br. at 12). The mesh was sagging four to six inches from the roof, and the roof itself was sagging between rows of mesh. Miners traveled in the area.

Respondent’s violation of section 75.202 is S&S. Inspector Curtis found that if left unaddressed, the roof would in fact fall. For this reason, as well as the section’s history of roof falls, the extent of the bolt damage, roof sag, and the fact that miners traveled through the area, the inspector decided that an injury was highly likely to occur. The citation designated that the injuries would be permanently disabling and the inspector testified that the injuries could even be fatal.

The same conditions that constituted a violation of section 75.202 also led to Respondent’s violation of section 75.360(b) for inadequate preshift examinations because the examiner did not record the hazardous roof conditions. Respondent’s failure to record the hazardous roof conditions in the cited area was S&S. Inspector Curtis testified that the roof would have fallen if left unattended and he determined that the conditions themselves were highly likely to cause an injury.

The violations described in Citation No. 8454042 and Order No. 8454043 were the result of the operator’s high negligence and unwarrantable failure. The violative condition was obvious and extensive. Respondent knew of the roof conditions and rebolted the roof, but did not adequately address the hazard because the new bolts were in bad condition as well. The new bolts were 7-foot bolts. Seven-foot bolts had already failed to support the roof, and the roof control plan at that time required at least 8-foot bolts.

Respondent argues that Citation No. 8454042 should be vacated because the roof was adequately supported to protect miners from roof-related hazards. Roger Tuttle traveled through the cited area on a daily basis at the time of the citation and he testified that the roof required continued monitoring, but was not a hazard. The mesh was not taking weight, but it appeared that way due to the installation of the new roof bolts. Tuttle also thought that the new bolts were 8- or 10-foot cable bolts, and not 7-foot bolts. Order No. 8454043 should be vacated for the same reasons as Citation No. 8454042, as a reasonably prudent miner would not have recognized that the cited roof conditions were hazardous.

Roger Tuttle’s testimony should be given greater credit than that of Inspector Curtis. The inspector testified that the older bolts were 7 feet long, but the previous roof control plan only called for 5 foot bolts. The roof control plan at the time of the citation called for 8- to 12-foot cable anchor bolts, but the inspector did not cite the mine for using 7-foot bolts. Inspector Curtis also admitted it was possible that he may have not seen the longer bolts.

An injury was not reasonably likely to occur as a result of these roof conditions and, therefore, neither Citation No. 8454042 nor Order No. 8454043 should be designated as S&S. Inspector Curtis testified that if Respondent did not fix the roof, it would eventually fall, but he did not say that the fall was highly likely to cause an injury. The miner most likely to be affected in a roof fall would be the shuttle car operator and the shuttle car canopy would protect him. An injury was unlikely. Joe Fielder testified that there would rarely be more than one miner present in the area at any time. Also, the inspector designated Order No. 8454043 as reasonably likely, which undermines the highly likely designation of Citation No. 8454042.

The inspector’s high negligence designation for the citation and order, as well as the unwarrantable failure designation of Order No. 8454043, erroneously relied upon the fact that the operator used the same size bolt to supplement the roof support in the cited area. The original plan called for 5-foot bolts and the amended plan called for 8- to 12-foot bolts. Basically, Inspector Curtis was mistaken about what size the old bolts and the new bolts were, as well as the fact that they were the same size. The negligence determination, furthermore, should consider that the operator was doing what it was supposed to do in this situation: supplementing the roof support. Respondent contends that it had been monitoring and supporting the roof conditions in the cited area.

3. Discussion and Analysis

The Secretary's roof-control standard 30 C.F.R. § 75.202(a) is broadly worded. Consequently, the Commission held that “the adequacy of particular roof support or other control must be measured against the test of whether the support or control is what a reasonably prudent person, familiar with the mining industry and protective purposes of the standard, would have provided in order to meet the protection intended by the standard.” Harlan Cumberland Coal Co Company, 20 FMSHRC 1275, 1277 (Dec. 1998) (citing Helen Mining Company, 10 FMSHRC 1672, 1674 (Dec. 1988)).

I find that the Secretary established a violation of section 75.202. I credit Inspector Curtis’ testimony that the old bolts, the new bolts, and the mesh in the area between crosscuts 14 and 15 were in bad condition and therefore did not adequately support the roof in the cited area. When even the newly installed roof bolts are in bad condition and taking weight, a reasonably prudent person familiar with the mining industry would find that the roof conditions were dangerous.. Much of the testimony that Respondent uses to try to discredit Inspector Curtis’ testimony, furthermore, is not based upon actual observations of the cited area, but rather general knowledge of the “rebolting process” or the roof control plan. (Tr. 733, 736). Generally stating what size bolts were supposed to be used in the cited area does not prove what size bolts and roof-control measures were actually used. For these reasons, Inspector Curtis’ observations and notes concerning the problems with the roof establish a violation of section 75.202.

I also find that the Secretary established a violation of section 75.360(b). I credit Inspector Curtis’ testimony that a preshift examiner should have recorded the hazardous condition of the roof. Even Respondent’s witness, Roger Tuttle, was not willing to testify that these conditions were not a violation of 75.360(b). When asked if the cited roof conditions were hazardous, he was equivocal. (Tr. 736).

I find that Citation No. 8454042 is S&S. Having already established the violation of 75.202, I find that Citation No. 8454042 contributed to the discrete safety hazard of a roof fall that could lead to serious, crushing, permanently disabling injuries. I credit Inspector Curtis’ testimony that an injury is reasonably likely, but not highly likely, to occur as a result of the violation. Respondent’s argument that the Secretary does not provide evidence to show that an injury was highly or even reasonably likely to occur as a result of the violation is a mischaracterization of the testimony given at hearing. Inspector Curtis testified that the roof would eventually fall and he also testified that there were ample opportunities for a miner to be in the area. (Tr. 700-03). Roof falls are one of the most serious hazards in underground coal mines and Respondent’s suggestion that this violation is unlikely to result in an injury is not credible given that miners frequent the area.

I find that Order No. 8454043, the failure to record the roof conditions in a preshift exam, is S&S. This violation contributed to the discrete safety hazard of a roof fall leading to serious, crushing, permanently disabling injuries. I credit Inspector Curtis’ testimony that the failure to notice, record or fix the underlying roof problems was reasonably likely to lead to a serious injury. Inadequate preshift examinations, moreover, are likely to lead to more hazards being left uncorrected and injuring miners. I find that this order contributed to the discrete safety hazard of a roof fall and was reasonably likely to lead to serious, perhaps even fatal, injury.

Looking at all the facts and circumstances, I find that Respondent acted with moderate negligence with respect to both the citation and order. I also find that Respondent’s conduct with respect to the violation set forth in Order No. 8454043 was not an unwarrantable failure to comply with section 75.360(b). Inspector Curtis testified that the hazardous roof conditions were both obvious and extensive, and I credit his testimony. The threat of a roof fall posed a high degree of danger. A previous citation placed the operator on notice that greater efforts were required for compliance. Neither side explicitly addressed how long the violative condition existed.

Respondent should have known that the roof conditions presented a hazard even after its attempts to support the roof. Respondent’s efforts to correct the hazardous condition, however, mitigate Respondent’s negligence. Although the supplemental roof bolts were inadequate, it showed that Respondent made an attempt to address the hazard. Roger Tuttle’s testimony suggests that Respondent believed its efforts to correct the hazard were sufficient. I find that Citation No. 8454042 and Order No. 8454043 were the result of moderate rather than high negligence and that Order No. 8454043 did not rise to the level of an unwarrantable failure. The order is hereby modified to a section 104(a) citation. A penalty of $5,000.00 is appropriate for Citation No. 8454042 and a penalty of $5,000.00 is appropriate for Order No. 8454043.

Q. Citation No. 6685835; WEST 2009-209

On August 19, 2008, MSHA Inspector Russell Bloomer issued Citation No. 6685835 under section 104(a) of the Mine Act, alleging a violation of section 75.202(a) of the Secretary’s safety standards. The citation states:

An area of unsafe roof was allowed to exist in the North Sub-Mains at crosscut 4, between #1 and #2 entries. The high-side rib has a cutter extending the entire length of the pillar, and there were 2 severed roof bolts and 21 bearing plates showing excessive weight.

This area is traveled by the Weekly Examiner, and this hazardous condition exposes him to fatal crushing injuries in the event of a roof fall.

(Ex. G-26). Inspector Bloomer determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected. The Secretary proposed a penalty of $2,282.00 for this order.

1. Background Summary of Testimony

Inspector Bloomer issued Citation No. 6685835 due to a roof fall hazard in an entry to the Third North section that violated section 75.202(a) of the Secretary’s safety standards. (Tr. 793). Two roof bolts had severed heads, but the Inspector could not determine if a lateral shift caused the damage or if the bolts had exceeded their yield. Id. There were also 21 bearing plates that were starting to deflect or deform. (Ex. G-27, Tr. 795). Two cutters in the ribs, one extending 80 feet and the other 20 feet, also suggested to Inspector Bloomer that a roof fall hazard existed. (Ex. G-27, Tr. 794).

Inspector Bloomer designated Citation No. 6685835 as S&S. (Tr. 798). The inspector designated this citation as reasonably likely based “largely” upon the mine history, but the conditions also “greatly influenced” his determination. (Tr. 796). He believed that the conditions suggested that the roof was unsafe, and that the entire crosscut between one and two could fall. (Tr. 796-97). Roof falls are one of the leading causes of fatalities in mining, which is why the inspector designated this citation as fatal. (Tr. 797). Generally, this area was only traveled by the weekly examiner, so only one person was likely to be affected. Id. The inspector admitted, however, that this route was not necessary for the examiner to travel. (Tr. 804). Although he did not know whether the examiner would travel through the cited area, there was nothing preventing the examiner from doing so. (Tr. 805-06).

Inspector Bloomer testified that Respondent’s moderate negligence caused the violation. (Tr. 798). He based his negligence designation upon the fact that the Horizon mine had 13 violations of its roof control plan and 12 75.202(a) violations within the 12 months prior to the issuance of this citation. (Tr. 800). Based upon the number of damaged plates, the inspector also believed that the violative condition was obvious. Id. Using his prior observations and experience, he believed the condition lasted for several shifts, but less than a week. (Tr. 801). He also believed it was possible that these conditions occurred after the weekly examiner’s last examination. (Tr. 802).

2. Summary of the Parties’ Arguments

The citation is S&S because the violation contributed to the discrete safety hazard of a roof fall and a fatal injury was reasonably likely to occur as a result of this violation. Respondent admitted that the cited area was an area where persons work or travel. Nothing prevented the examiner from walking through this area and Respondent did not produce the examiner to testify. The fact that the Horizon Mine has a history of roof falls also makes an injury more likely to occur.

The failure to adequately support the roof was the result of Respondent’s moderate negligence. Inspector Bloomer thought not only that the operator should have known of these conditions, but also that they were obvious. Respondent was clearly on notice that greater efforts were required to comply with roof control standards, as Inspector Bloomer discussed greater compliance efforts with management just over two weeks before issuing Citation No. 6685835. Respondent also had an extensive history of roof control violations in the preceding year.

Hidden Splendor admitted to the violation, but contests the gravity and negligence determinations. The cited condition is not reasonably likely to lead to an injury. Miners did not work in the cited area on a daily basis. Only the weekly examiner would pass through the area, and it was not necessary for him to do so. Inspector Bloomer did not know whether any miner had actually traveled through the area during the short period that the condition existed. The inspector’s assertion that the Horizon Mine’s history of roof falls makes an injury reasonably likely in this situation is erroneous; if there is no miner in the area, no injury can occur even if a roof fall occurs.

The fatal designation is not supported by the facts. Many roof falls occur that do not produce fatalities or even injuries. Despite the history of roof falls at the Horizon Mine, there has never been a roof-fall-related injury reported. Even if the examiner had been in the area at the time of the fall, Inspector Bloomer failed to explain why a roof fall would result in a fatality. The Secretary did not prove any negligence on the part of Hidden Splendor. Inspector Bloomer inappropriately assumed that the citation was the result of high negligence, and worked down from that starting point.

3. Discussion and Analysis

I find that Citation No. 6685835 is not S&S because the Secretary failed to meet her burden to show that an injury was reasonably likely to occur as a result of the violation. Respondent stipulated to the violation, which contributed to the discrete safety hazard of a roof fall that could cause serious injuries. The Secretary failed to prove, however, that an injury had a reasonable likelihood of occurring as a result of the violative conditions because she was unable to show that any miner was reasonably likely to be in the cited area. The cited area was not an active section, and the only person who could possibly be in the area would be the weekly examiner. Inspector Bloomer, moreover, was not even sure that the weekly examiner passed through the area. An injury resulting from a roof fall cannot be reasonably likely if no one is present during a roof fall. Despite the fact that an injury is unlikely to occur, I still find that such an injury is appropriately designated as fatal. The inspector feared that the entire roof would collapse, which is an event that could easily cause a fatality if a miner were present. I find that an injury was unlikely to occur but the violation was serious.

I find that Respondent’s negligence was moderate. This condition posed a very high degree of danger to miners, with the possibility of causing fatalities. The history suggesting that Respondent was on notice is extensive. Inspector Bloomer thought that the violative conditions were obvious, which suggests that the operator should have known of the conditions. Respondent did nothing to abate the hazard.[2] The condition existed for at least a few shifts, but less than a week. A penalty of $1,000.00 is appropriate for this violation.

R. Citation No. 6685827 & Order Nos. 6685828 & 6685829; WEST 2009-208 & -342

On July 31, 2008, MSHA Inspector Bloomer issued one citation and two orders that involved alleged violations in both the primary and secondary escapeways of the K North Section. Citation No. 6685827, issued under section 104(a) of the Mine Act, alleged a violation of section 75.380(d)(1) of the Secretary’s safety standards. The citation states:

The primary escapeway, located between crosscuts 21 to 23 of the K North CM development section – MMU 001-0, was not being maintained to assure safe passage of persons.

An area of thick mud, which measured up to 16” deep and extended from rib to rib for a distance of 200 feet, would impede the rapid evacuation of miners in the event of an emergency.

(Ex. G-19). Inspector Bloomer determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost work days or restricted duty. He determined that the violation was S&S, the operator’s negligence was high, and that six persons would be affected. Section 75.380(d)(1) of the Secretary’s regulations requires that “[e]ach escapeway shall be-- (1) [m]aintained in a safe condition to always assure passage of anyone, including disabled persons.” 30 C.F.R. § 75.380(d)(1). The Secretary proposed a penalty of $3,996.00 for this citation.

On July 31, 2008, Inspector Bloomer also issued Order No. 6685828 under section 104(d)(2) of the Mine Act, alleging another violation of section 75.380(d)(1) of the Secretary’s safety standards. The order state, in part:

The K North secondary escapeway, from the intake overcast to crosscut 23, was not being maintained in safe condition. There were numerous areas of loose top, exposed roof bolts, and rock accumulations in the walkway. These conditions, especially the roof hazards, expose the miners that travel this secondary escapeway to a high degree of danger. The last weekly examination was performed on 07/30/2008.

(Ex. G-35). Inspector Bloomer determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was S&S, the operator’s negligence was high, that six persons would be affected, and that the violation was the result of the operator’s unwarrantable failure. The Secretary proposed a penalty of $63,000.00 for this order.

Finally, Inspector Bloomer issued Order No. 6685829 under section 104(d)(2) of the Mine Act, alleging a violation of section 75.364(b)(5) of the Secretary’s safety standards. The order states:

An inadequate weekly examination was performed on the K North secondary escapeway. The exam was performed on 07/20/2008, and the record book did not contain any entries regarding hazardous conditions. The hazards observed were extensive and obvious. (References order #6685828.

(Ex. G-22). Inspector Bloomer determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was S&S, the operator’s negligence was high, that 12 persons would be affected, and that the violation was the result of the operator’s unwarrantable failure. The Secretary proposed a penalty of $27,959.00 for this order.

1. Background Summary of Testimony

Inspector Bloomer issued Citation No. 6685827 on July 31, 2008, for a violation of section 75.380(d)(1) due to an accumulation of mud in the main escapeway of the K North Section. (Tr. 816-18). Up to 16 inches of mud covered a length of 200 feet of the travelway. (Tr. 819). This mud impeded the safe and rapid passage of miners through the escapeway by presenting stumbling and tripping hazards. Id.

In the event of an emergency, Inspector Bloomer reasoned that the cited hazard was reasonably likely to impede the escape of miners. (Tr. 820). The Inspector designated the potential injury as a lost time injury due to the possibility of leg injuries as well as smoke inhalation that would slow escape. (Tr. 820-21). The likelihood of the mud impeding escaping miners is increased by the fact that in an emergency there may be poor visibility. (Tr. 822). He also believed that six miners, the number who were present in the section that day, could all be affected because they would all need to escape. (Tr. 821).

This citation was the result of Respondent’s high negligence because preshift examiners traveled this escapeway every day, yet none recorded or addressed the hazard. (Tr. 823). The condition was obvious. Id. Based upon the consistency of the mud, the inspector reasoned that the hazard had existed for a week. (Tr. 824). He also testified that the Horizon Mine had 14 escapeway violations in the previous 12 months. Id.

On July 31, 2008, Inspector Bloomer also issued Order No. 6685828 for a violation of section 75.380(d)(1) based upon multiple problems throughout the entire secondary escapeway in the K North Section. (Tr. 826-27, 833). The section of roof posing a roof fall hazard was 3 feet wide, 12 feet long and 12 inches thick and was “weighted” to the point that the bearing plates were deformed and showing signs of deflection. (Tr. 829). At crosscut 13 there were accumulations from a roof fall on the walkway that were 5 feet long, 13 feet wide and contained rocks that were up to 8 inches in size. (Tr. 830). These accumulations posed a tripping or stumbling hazard. Id. At crosscut 17 there were an exposed bolt and accumulations as a result of a roof fall. (Tr. 831). Another tripping or stumbling hazard existed at crosscut 18, where accumulations measured 7 feet long, 12 feet wide and 15 inches deep. Id. Individual rocks were up to 5 inches in size. Id. Between crosscut 21 and 22 there was an area of unsupported roof where four roof bolts were exposed and the roof had fallen parallel to the walkway for a distance of 30 feet. (Tr. 832).

Inspector Bloomer testified that Order No. 6685828 is S&S. (Tr. 836). The multiple conditions and various hazards were reasonably likely to lead to a fatal injury. (Tr. 835). During an escape, miners could be crushed or have their escape stopped by a roof fall, could suffer smoke inhalation due to a slow escape, or could stumble and lose the mouthpiece of their SCSR. (Tr. 835, 820). He also believed that six miners, the number who were present in the section that day, could all be affected because they would all need to escape. (Tr. 825, 836).

A variety of factors led Inspector Bloomer to believe that Citation No. 6685828 was the result of Respondent’s high negligence and unwarrantable failure. The hazards were extensive, obvious and dangerous, and a preshift examination had been performed on the area just the day before. (Tr. 837, 835). In December 2007, Inspector Bloomer warned mine management that the roof in this area was taking weight; between December and July, Respondent did nothing to correct this hazard. (Tr. 838). Inspector Bloomer marked these problem areas with flagging on December 17, 2007. That flagging remained until the day he issued Citation No. 6685828 and Respondent had not done anything to address the conditions. (Tr. 839). Based upon his prior observations and the presence of rock dust on the accumulations, Inspector Bloomer surmised that the violative condition existed for an extended period of time. (Tr. 840-41). Inspector Bloomer believed that mine management knew about the conditions, and says that Larry Kulow stated that management “just wanted to mine coal.” (Tr. 841). Additionally, the mine had a history of roof falls and MSHA issued 14 escapeway violations to Respondent in the 12 months preceding the issuance of Order No. 6685828. (Tr. 842).

The weekly examiner did not record the conditions described in Order No. 6685828, which prompted Inspector Bloomer to issue Order 6685829 for a violation of section 75.364(b)(5). (Tr. 845). Inspector Bloomer also considered the conditions in the primary escapeway. (Tr. 848).

Inspector Bloomer designated Order No. 6685829 as S&S because he believed that an injury was reasonably likely to occur. (Tr. 848-49). The inspector believed an injury could reasonably be expected to be fatal for the same reasons stated regarding Order No. 6685828. (Tr. 835, 848). He surmised that 12 persons would be affected because two crews worked in this area, although not simultaneously. (Tr. 849).

Respondent’s negligence in regard to Order No. 6685829 was high, and Respondent’s conduct also represented an unwarrantable failure. (Tr. 849-50). The violative conditions were obvious and extensive. (Tr. 850). The examiner, who is the agent of the operator, made no effort to abate the hazardous conditions. Id. MSHA issued the Horizon Mine a total of 14 violations pertaining to examinations in the 12 months prior to the issuance of Order No. 6685829 and conducted training on proper examinations in February of 2008. Id.

Inspector Bloomer also recalled a conversation with Larry Kulow where Larry Kulow mentioned “having people mad because he put things in the books.” (Tr. 870). The inspector asserted that this conversation pre-dated these citations, but he could not give a specific time frame during which it occurred. (Tr. 871). On cross-examination, Inspector Bloomer admitted that man doors would allow egress between the escapeways in the event of a blockage. (Tr. 872).

Joe Fielder testified that he knew of the mud problem, but that the mud could not totally be removed, even though they removed the mud as they advanced. (Tr. 880). Miners traveled the muddy area on a daily basis as they went to the faces. (Tr. 882). Fielder believed that the overflow of a storage tank quickly created the mud. Id.

2. Summary of the Parties’ Arguments

Respondent admitted that it violated section 75.380(d)(1) in Citation No. 6685827 by failing to maintain its primary escapeway in safe condition. Respondent stipulated to the violation of Order No. 6685828 and disputes only the special findings, but Respondent disputes both the violation and the special findings associated with Order No. 6685829.

The Secretary argues that Respondent violated section 75.364(b)(5) when it did not perform an adequate weekly examination of the secondary escapeway. Respondent did not produce a single witness to testify as to the adequacy of the exam. Although the examiner conducted the weekly exam the day before the inspection, Respondent did not record any of the numerous hazards that the Inspector found in the secondary escapeway.

Respondent’s failure to maintain safe primary and secondary escapeways was S&S; the same logic applies to Citation No. 6685827 and Order Nos. 6685828 and 6685829. In the event of an emergency, the extensive build-up of mud in the primary escapeway and the numerous hazards in the secondary escapeway would be reasonably likely to lead to an injury by slowing the escape of miners. Hazards in these areas include stumbling and tripping hazards, smoke inhalation, and the loss of an SCSR mouthpiece. The conditions during an emergency situation would both exacerbate these hazards and make them more likely to occur. Miners could be carrying other miners, visibility would be poor, and there could be disorientation and panic among the escaping miners. The conditions in the secondary escapeway also pose a crushing hazard from roof falls, which is why Order Nos. 6685828 and 6685829 were also likely to lead to a fatality. Numerous, serious injuries are reasonably likely to occur as a result of these violations and each order and citation should therefore be designated as S&S.

Respondent’s violation of section 75.380(d)(1) resulted from its high negligence. The conditions in the escapeway were obvious and Respondent was aware of the conditions. Joe Fielder testified that he was aware of the presence of mud in the escapeway. This escapeway was also the primary haulageway, which means that preshift examiners traveled this route on a daily basis, but none recorded the hazard. Inspector Bloomer determined that the mud had existed for about a week. Respondent had notice that greater efforts were required to comply with this standard because the mine received 14 escapeway citations in the preceding 12 months. The resulting hazards posed a high level of danger to the safety of any miners working in the section. A high negligence designation is appropriate for Citation No. 6685827.

Respondent’s high negligence and unwarrantable failure resulted in the conditions underlying Order No. 6685828. The violative conditions were extensive and obvious, and Inspector Bloomer testified that they had existed for an extended period of time. As discussed in the S&S analysis, these conditions posed a high degree of danger. Respondent had notice of these hazards based upon Inspector Bloomer’s previous discussion about the exact same conditions as well as the 14 escapeway violations that the mine had been cited for in the last 12 months. Mine management knew about these conditions, based upon Inspector Bloomer’s conversation with them and Kulow’s admission that Respondent “just wanted to mine coal.” (Sec’y Br. at 81). Respondent did not produce any testimony to refute this evidence and could not present any mitigating factors. Both designations of high negligence and unwarrantable failure on the part of Respondent are appropriate with regard to Order No. 6685828.

Order No. 6685829 was a result of Respondent’s high negligence and unwarrantable failure for the same reasons as Order No. 6685828. Additionally, the Horizon Mine received 14 examination violations in the 12 months before the inspector issued this order, and the mine received additional training in February 2008 on proper examinations.

Respondent maintains that Citation No. 6685827 and Order Nos. 6685828 and 6685829 were not S&S, because an emergency was not reasonably likely to occur. Assuming that an emergency will occur in escapeway violations inappropriately removes the Secretary’s Mathies burden and offends due process. Practically, this assumption makes every violation of an escapeway provision S&S. Instead, the Secretary must prove as a threshold matter that an emergency was reasonably likely to trigger the need for miners to escape. Conditions that suggested a potential emergency did not exist in the cited area. By the inspector’s own admission, the K-North Section did not have high methane content, exposed current or any other fire risks. The Horizon Mine has never had an emergency evacuation before. The violative conditions in Citation No. 6685827 and Order Nos. 6685828 and 6685829 were not reasonably likely to cause an injury and the citations are not S&S.

The fatal designations for Order Nos. 6685828 and 6685829 are also unjustified. The Secretary failed to prove that a fatality is a likely outcome of the cited hazard. The scenarios given by the inspector are too speculative and although Citation No. 6685827 has similar hazards associated with it, the inspector only designated lost workdays or restricted duty as the likely injury.

The high negligence designation of Citation No. 6685827 is unjustified. Hidden Splendor did not ignore the problem of mud in the escapeway. Mine management was aware of the hazard and attempted to dispose of the mud by pumping water out of the section and therefore it stipulated to the violation. Hidden Splendor’s efforts to correct the hazard show that Citation No. 6685827 does not warrant a high negligence finding.

Likewise, Order Nos. 6685828 and 6685829 were not the result of Respondent’s high negligence or unwarrantable failure. The inspector’s testimony that the conditions existed for a “period of time” is too vague, especially when Kulow believed that the conditions had deteriorated between July 30 and July 31. Although Inspector Bloomer relied upon Kulow’s purported statement that management only wanted to mine coal, he did not believe it himself.

The Secretary failed to carry her burden of proving that Order No. 6685829 was a violation of 75.364(b)(5). The violative conditions worsened in the time between when Kulow completed his examination and Inspector Bloomer performed his inspection. Inspector Bloomer admitted he should have investigated Kulow’s claim that the conditions worsened, but did not. Order No. 6685828 should be vacated because the conditions were not a hazard during Kulow’s examination. The finding that 12 persons would be affected for Order No. 6685829 has no basis in fact. The Horizon Mine does not hot seat its employees so there would never be 12 miners in this section at the same time.

3. Discussion and Analysis

I find that Order No. 6685829 is a violation of section 75.364(b)(5) of the Secretary’s safety standards because Respondent performed an inadequate weekly examination of the secondary escapeway in the K North Section. I further find that Citation No. 6685827 and Order Nos. 6685828 and 6685829 are all S&S and all were the result of Respondent’s high negligence. Also, Order Nos. 6685828 and 6685829 were both the result of Respondent’s unwarrantable failure.

I reject Respondent’s argument that Order No. 6685829 should be vacated. Respondent maintains that between Kulow’s examination on July 30 and Inspector Bloomer’s inspection the next day, conditions in the secondary escapeway worsened to create the violative conditions cited in Order No. 6685828. To argue that five separate hazardous conditions all appeared between July 30 and July 31 is simply unbelievable. I credit Inspector Bloomer’s testimony that there were numerous hazards that would impede the escape of miners in the event of an emergency and those hazards existed before Kulow’s examination on July 30. Any one of the violative conditions in the secondary escape-way could constitute a violation of section 75.380(d)(1) and the cumulative effect of all five certainly suffices to do so; Respondent violated section 75.380(d)(1) by failing to maintain the secondary escapeway in the K North Section.

Respondent’s core argument that an S&S finding for Citation No. 6685827 and Order Nos. 6685828 and 6685829 requires a showing that an emergency is likely to take place fails. The Commission has explicitly ruled to the contrary. In Cumberland Resources, the Commission stated that “[t]he Commission has never required the establishment of the reasonable likelihood of a fire, explosion, or other emergency event when considering whether violations of evacuation standards are S&S.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2366 (Oct. 2011). The Commission went on to specifically state that for “the failure to maintain an escapeway in safe condition . . . the applicable analysis under Mathies involves consideration of an emergency.” Id (Internal citations omitted).

Citation No. 6685827 met all the criteria required by Mathies to be designated S&S. Respondent conceded the underlying violation, which contributed to the discrete safety hazard of impeding the escape of miners in the event of an emergency. The mud was deep and covered a large section of the escapeway, which would almost surely impede miners in the event of an emergency. This mud would be difficult to traverse in the best of conditions and could be disastrous in an emergency situation where miners may be carrying other miners, visibility would be poor, and there could be disorientation and panic among the escaping miners. I credit Inspector Bloomer’s testimony that this hazard could have caused serious injuries, at least lost workdays or restricted duty, in the form of leg injuries due to tripping or stumbling or smoke inhalation in the event of a fire. Respondent’s violation of section 75.380(d)(1) contributed to the hazard of impeding the escape of miners in the event of an emergency and was reasonably likely to lead to serious injuries; therefore, Citation No. 6685827 is S&S.

I find that Order No. 6685828, issued for Respondent’s failure to maintain the secondary escapeway, is also S&S. Respondent conceded the underlying violation, which contributed to the discrete safety hazard of impeding the escape of miners in the event of an emergency. Every violative condition in the secondary escapeway was, individually, reasonably likely to impede escaping miners. When considered as a whole there is little doubt that Respondent’s violation of section 75.380(d)(1) in Order No. 6685828 was reasonably likely to lead to a serious injury. I credit Inspector Bloomer’s testimony that this hazard could have caused serious injuries and even fatalities in the form of miners being crushed by falling roof, leg injuries due to tripping, stumbling, or smoke inhalation in the event of a fire. Respondent’s violation of section 75.380(d)(1) contributed to the hazard of impeding the escape of miners in the event of an emergency and was reasonably likely to lead to serious injuries; Order No. 6685828 is S&S.

I find that that Order No. 6685829 is also S&S. The same analysis that applies to Order No. 6685828 applies here. Additionally, the fact that the weekly examiner did not identify so many serious hazards reveals a fundamental problem with the way Respondent performs weekly examinations on its escapeways. Poor examinations present a danger that goes beyond the hazards posed by the underlying conditions because they suggest that Respondent lacks the ability or desire to find and address future hazards to the health and safety of miners. I find, however, that fewer than 12 people would have been affected by this violation.

Citation No. 6685827 was the result of high negligence on the part of Respondent. The conditions in the escapeway were obvious and Respondent knew or should have known about the violative conditions. Joe Fielder acknowledged that mud in the primary escapeway of the K North Section had been a continuing problem for the mine and management should have been monitoring the escapeway closely for the hazard as a result. Joe Fielder himself testified that preshift examiners traversed this route every day, which lends even more credibility to the contention that Respondent should have known of the muddy conditions. I also credit the testimony of Inspector Bloomer that the mud had existed for about a week. Respondent had notice that greater efforts were required to comply with this standard because the mine received 14 escapeway citations in the preceding 12 months. The area and depth of the mud, which was up to 16 inches deep and covered the entire passage for a length of 200 feet, was extensive. It posed an impediment to escaping miners that created a high level of danger due to the serious injuries that could occur. A high negligence designation is appropriate for Citation No. 6685827.

Order Nos. 6685828 and 6685829 resulted from Respondent’s high negligence and unwarrantable failure. Respondent’s aggravated conduct demonstrated greater than ordinary negligence with respect to these violations. The violative conditions were extensive and obvious, and Inspector Bloomer testified that they had existed for an extended period of time. All three of these conclusions are supported by the number of conditions present that violated safety standards. Both orders are appropriately designated as having the reasonable likelihood to cause a fatal injury, which shows that the violative conditions pose a high degree of danger to miners. Respondent had notice of these hazards based upon Inspector Bloomer’s previous discussion about the exact same conditions as well as the 14 escapeway violations and 14 examination violations that the mine had been cited for in the last 12 months. Regardless of whether Inspector Bloomer accurately recorded statements made by Larry Kulow, it is clear that the operator knew or should have known of these conditions. There were no mitigating factors. The weekly examiner’s failure to record a single one of these numerous, serious hazards is indicative of aggravated conduct by itself.

The following penalties are appropriate for these violations: $4,000.00 for Citation No. 6685827, $60,000.00 for Order No. 6685828, and 25,000.00 for Order No. 6685829.

S. Citation No. 6685833: WEST 2009-209

On August 11, 2008, MSHA Inspector Russell Bloomer issued Citation No. 6685833 under section 104(a) of the Mine Act, alleging a violation of section 75.202(a) of the Secretary’s safety standards. The citation states, in part:

This citation is issued upon further review of Order #6685828.

The K North return/ secondary escapeway had an area of bad roof located near the bottom of the intake overcast ramp. The loose rock measured 36” wide x 144” long and up to 12’ in thickness. Inby, near crosscut 17, an area of unsupported top existed where material had fallen from the roof, exposing a corner roof bolt. Between crosscuts 20 and 21, for a distance of approximately 30 feet, material had fallen parallel to the walkway, which exposed four roof bolts.

(Ex. G-24). Inspector Bloomer determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was S&S, the operator’s negligence was high, and that one person would be affected. The Secretary proposed a penalty of $6,458.00 for this order.

1. Background Summary of Testimony

Inspector Bloomer did not issue Citation No. 6685833 until August 11, 2008, because he decided to issue it after conferring with MSHA superiors and specialists about the roof conditions that he witnessed on July 31, 2008. (Tr. 854). Although it addresses the same roof conditions in the secondary escapeway described in Citation No. 6685828, Citation No. 6685833 pertains to protecting miners from roof falls, while Citation No. 6685828 deals with maintaining the escapeway. (Tr. 855, 859).

Inspector Bloomer testified that Citation No. 6685833 is S&S. (Tr. 856). Based upon the previously described roof conditions and the mine’s history, the inspector deemed an injury reasonably likely to occur. (Tr. 855). Although there were maintenance crews inby the area, the inspector believed that only the weekly examiner would be affected. (Tr. 854-855, 858). Crushing injuries resulting from roof falls are the main cause of fatalities in mining. (Tr. 856).

Inspector Bloomer testified that Citation No. 6685833 was the result of Respondent’s high negligence. (Tr. 856). The conditions were obvious, yet the examiner failed to record them. Id. The Horizon Mine also received repeated roof control violations. Id. The Inspector found no mitigating factors with regard to negligence. (Tr. 857).

2. Summary of the Parties’ Arguments

Hidden Splendor violated section 75.202(a) by failing to adequately support the mine roof in the Mine’s secondary escapeway. Two separate areas of roof in the secondary escapeway of the K North Section, one at crosscut 5 and one at crosscuts 21 and 22, were unsupported.

The Secretary argues that the citations are not duplicative as long as they impose separate and distinct duties upon an operator. Although the roof conditions cited in Citation No. 6685833 are the same as the underlying conditions previously discussed as part of the basis for Citation No. 6685827, these citations were issued as violations of different safety standards that impose separate and distinct duties upon the operator. Citation No. 6685827 was a violation of section 75.380(d)(1) for failure to maintain an escapeway, and Citation No. 6685833 is a section 75.202(a) roof control violation.

Respondent’s failure to adequately control the roof in the secondary escapeway is S&S. Respondent’s violation of section 75.202(a) contributed to the hazard of a roof fall and it was reasonably likely that such a roof fall would fatally injure the weekly examiner.

Respondent’s violation of section 75.202(a) in Citation No. 6685833 was the result of Respondent’s high negligence. Inspector Bloomer concluded that Respondent knew or should have known of the violation and that there were no mitigating circumstances. The roof conditions were obvious and the area was examined on a weekly basis. Respondent was also on notice due to the mine’s history of roof control violations.

Hidden Splendor maintains that Citation No. 6685833 should be vacated because it is duplicative of Order No. 6685828. Inspector Bloomer issued Citation No. 6685833 based upon three areas of unsupported roof. Order No. 6685828 was based upon five conditions, three of which were the exact same instances of unsupported roof cited in Citation No. 6685833. The Inspector, furthermore, abated these conditions on August 2, nine days before he issued Citation No. 6685833. The duties imposed under section 75.202(a) as cited in Citation No. 6685833 are subsumed within the duties imposed by section 75.380(d)(1) as cited in Order No. 6685828.

3. Discussion and Analysis

I find that Citation No. 6685833 and Order No. 6685828 are not duplicative. The fact that two citations may be abated with the same actions is not the focus of the Commission’s analysis in determining if citations are duplicative. See Spartan Mining Company, Inc., 30 FMSHRC 699, 718 (Aug. 2008). The Commission has held that citations are not duplicative if “the standards involved impose separate and distinct duties” upon an operator. Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003 (June 1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar. 1993)).

Citation No. 6685833 and Order No. 6685828 are not duplicative because they impose separate and distinct duties upon Respondent. Section 75.202(a) imposes upon Respondent the duty to maintain safe roof conditions, while section 75.380(d)(1) requires that Respondent maintain escapeways. Although the underlying conditions in Citation No. 6685833 are also cited in Order No. 6685828, every violation of section 75.202(a) will not inexorably constitute a violation of section 75.380(d)(1), which was the case with the safety standards in Western Fuels. Western Fuels-Utah, Inc., 19 FMSHRC at 1004. In Western Fuels, section 75.1101-15(d) “simply specified a particular method of carrying out the broadly worded obligation contained in section 75.1101-14(a).” See Id. at 1003.

Neither of the safety standards cited here provides a method for fulfilling the duty set forth by the other. Citation No. 6685833 only considers the danger posed to the weekly examiner, while Inspector Bloomer designated that six miners would be affected by Order No. 6685828. This difference is directly related to the fact that these two violations impose separate and different duties upon Respondent. Despite referencing the same violative conditions, Citation No. 6685833 and Order No. 6685828 impose separate and different duties upon the operator.

I also find that Citation No. 6685833 is S&S. The cited roof conditions violated section 75.202(a) and contributed to the discrete safety hazard of a roof fall, which was reasonably likely to lead to a fatal injury. I credit Inspector Bloomer’s testimony about the conditions he observed as well as the history of roof falls in the section. I find that such a roof fall was reasonably likely to be fatal.

Further, I find that Respondent’s high negligence resulted in Citation No. 6685833. The conditions were obvious and extensive, as there were three different areas where the roof support was insufficient and bolts were exposed. A roof fall poses a high risk of danger to miners, with potentially fatal consequences. Respondent made no effort to correct the violative conditions, and had notice due to a history of roof control violations. The hazards had existed for quite some time. Respondent knew or should have known about the violative conditions. Considering all the facts and circumstances, I find that Citation No. 6685833 was the result of Respondent’s high negligence. A penalty of $5,000.00 is appropriate for this violation.

III. SETTLED CITATIONS

A number of the citations and orders at issue in these cases settled, either prior to the hearing or at the hearing. I approved these settlements by orders dated February 18, 2011, and April 13, 2011. In WEST 2009-208, I approved the settlement of 14 citations/orders and assessed a penalty of $18,067.00. In WEST 2009-209, I approved the settlement of 18 citations/orders and assessed a penalty of $12,616.00. In WEST 2009-210, I approved the settlement of 12 citations/orders and assessed a penalty of $10,187.00. In WEST 2009-342, I approved the settlement of 5 citations/orders and assessed a penalty of $2,460.00. In WEST 2009-591, I approved the settlement of 4 citations and assessed a penalty of $3,423.00. In WEST 2009-1072, I approved the settlement of 7 citations and assessed a penalty of $5,355.00. In WEST 2009-1162, I approved the settlement of 4 orders and assessed a penalty of $10,490.00. In WEST 2009-1451, I approved the settlement of 1 order and assessed a penalty of $4,000.00.

IV. 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 Report, which is not disputed. (Ex. G-89). At all pertinent times, Hidden Splendor Resources, Inc. was medium in size. The violations were abated in good faith. The gravity and negligence findings are set forth above.

Prior to the hearing, Hidden Splendor stipulated that “[i]f paid in equal monthly installments over 12 months, the proposed penalties would not affect Hidden Splendor’s ability to remain in business.” (Stip. ¶ 7, Respondent’s Preliminary Statement, p. 2). The Secretary’s total proposed penalty in these cases was $403,302.00. About nine months after the close of the hearing, Hidden Splendor, through an informal oral motion, asked that the record in these cases be reopened so that it could introduce financial information that it considered relevant to the “effect on the ability to continue in business” criterion set forth in section 110(i) of the Mine Act. The Secretary opposed the motion.

By order dated December 12, 2011, I denied Hidden Splendor’s motion. 33 FMSHRC 3249. My order denying the motion is incorporated herein by reference. Hidden Splendor based its motion on the fact that, in a filing with the Securities and Exchange Commission (“SEC”), it was revealed that the company’s financial condition had deteriorated since the date of the hearing. My reasons for denying the motion are set forth in my order. I noted that:

[i]t is the nature of the mineral extraction industry that profits earned or losses incurred by coal mining companies are often very volatile. A coal mining company can earn record profits one quarter and report a large loss in another quarter.

33 FMSHRC at 3251. I held that even if a SEC quarterly report showed a net loss for the quarter or for the year to date, such information would not show that the assessed penalties would have an adverse effect on the company’s ability to continue in business. I find that the penalties I have assessed below will not adversely affect Hidden Splendor’s ability to continue in business if the penalty is paid in installments over at least a year.

V. 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

WEST 2009-208

6686024 75.1914(f) $20,000.00

8454042 75.202(a) 5,000.00

8454043 75.360(b) 5,000.00

8454049 75.1101-1(a) 500.00

6685827 75.380(d)(1) 4,000.00

6685829 75.364(b)(5) 25,000.00

WEST 2009-209

6685835 75.202(a) 1,000.00

6685833 75.202(a) 5,000.00

WEST 2009-210

6685990 75.360(b) 5,000.00

8454109 75.512 7,000.00

WEST 2009-342

6685828 75.380(d)(1) 60,000.00

WEST 2009-591

8457087 75.220(a)(1) Vacated

WEST 2009-916

8460169 48.5(a) 4,000.00

WEST 2009-1072

8457214 75.202(a) 5,000.00

8457215 75.364(a)(1) 5,000.00

8457222 75.360(b)(1) Vacated

8457229 75.1722(b) 500.00

8457231 75.1103-1 100.00

WEST 2009-1162

8457509 75.364(a)(1) 1,000.00

8457488 75.512 7,000.00

WEST 2009-1451

8457576 75.1914(f) Vacated

8457577 75.1914(a) 30,000.00

8457347 77.1104 500.00

TOTAL PENALTY $190,600.00

For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or VACATED as set forth above. Hidden Splendor Resources Inc., is ORDERED TO PAY the Secretary of Labor the sum of $190,600.00 in 12 monthly installments. The first payment of $15,887.00 shall be due 30 days from the date of this decision, the remaining payments of $15,883.00 each shall be due the last day of each succeeding month. The parties are hereby authorized to negotiate a different payment plan as long as the total amount paid is $190,600.00.[3]

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Alicia Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5708 (Certified Mail)

Willa Perlmutter, Esq., and Daniel Wolff, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Avenue, NW, Washington, DC 20004-2595 (Certified Mail)

RWM

[1] Hidden Splendor relies, in part, upon my decision in Georgia Marble Corp.. 21 FMSHRC 456, 461 (Apr. 1999) (ALJ). That case was based on a stipulated record, only the amount of the penalties was at issue, and the parties stipulated that new management had made a “concerted effort to focus on safety.” Id. at 457. I took this fact into consideration when assessing the penalties by giving less weight to the history of previous violations criterion. Id. at 461. That case is distinguishable from the present cases.

[2] Respondent’s argument that it did not act negligently because it is not responsible for the “geology of the mine” fails. The Mine Act imposes strict liability on mine operators.

[3] Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.