FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue N.W. , Suite 520 N

Washington, DC 20004-1710

Tel.: 202-434-9933

December 31, 2012

DECISION

Appearances:              Brian D. Mauk, Esq., Rachel E. Levinson, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner

                                    Jeffrey K. Phillips, Esq., Steptoe & Johnson, Lexington, Kentucky for the Respondent

Before:                       Judge Moran

            Six citations are at issue in this Docket. For three of these, Highland challenges the claim that the cited standards, 30 C.F.R. § 75.1909(a)(8) and 30 C.F.R. § 77.1607(cc) , were violated. In the alternative, Highland asserts that they were not “significant and substantial” (“S&S”) violations. For the two citations , involving 30 C.F.R. § 75.1725(a) and 30 C.F.R. § 75.370(a)(1), Highland admits the standards were violated but challenges the significant and substantial designations for them. The last citation, No. 8497413, is addressed by the Court, by agreement of the parties, with no post-hearing briefing.

The Significant and Substantial designation.

            The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained that “In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. Id. at 3-4 In Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”), affirming an S&S violation for using an inaccurate mine map, the Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation . . . will cause injury. . . . the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” It also observed that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. at 1281.

          Finally, the fourth element, that the injury must be a reasonably serious one, has not been difficult to apply. Another way to express this is that negligible mining mishaps, such as bumps, bruises and small cuts, do not constitute reasonably serious injuries. It’s important to appreciate that when a standard is violated, the absence of an injury producing event actually occurring does not mean that the violation was not S&S. Restated, no injury need occur for the violation to be S&S. Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005).

The inspector’s opinion in determining S&S.

The Commission and courts have observed that the opinion of an experienced MSHA inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995).

The S&S determination where health standards are involved.

Where health standard violations are in issue, the Mathies test applies upon finding, (1) the underlying violation of a mandatory health standard; (2) a discrete health hazard--a measure of danger to health--contributed to by the violation; (3) a reasonable likelihood that the health hazard contributed to will result in an illness; and (4) a reasonable likelihood that the illness in question will be of a reasonably serious nature. Consolidation Coal Co., 8 FMSHRC 890, 897 (June 1986), aff'd 824 F.2d 1071 (D.C. Cir. 1987). The Commission elaborated: “[G]iven the nature of the health hazard at issue [i.e., respirable dust induced disease], the potentially devastating consequences for affected miners, and strong concern expressed by Congress for eliminating respiratory illnesses in miners, … if the Secretary proves an overexposure to respirable dust in violation of § 70.100(a), based upon designated occupational samples, has occurred, a presumption arises that the third element of the “significant and substantial” test - - a reasonable likelihood that the health hazard contribute or will result in an illness - - has been established.” Id. at 899.

FINDINGS OF FACT

Citation No. 8497415, involving the number 42 mini-track and Citation No. 8497416, involving the number 22 mini-track.

            MSHA Inspector Archie Coburn was at the Highland mine on July 26, 2010 and was accompanied by Randy Wolfe, mine manager and James Wilham, the miners’ representative. Tr. 1257. Just prior to issuing this citation, Coburn had issued a citation for an accumulation of oil and coal dust on the number 42 mini-track. A “mini-track” is relatively small motorized piece of mining equipment. Coburn then cited the same number 42 mini-track for having an exhaust pipe which was not connected to the exhaust diffuser, invoking 30 CFR § 75.1909(a)(8). Tr. 1257. Exhibits P 49 and P 50. That section of the cited standard, entitled “Nonpermissible diesel-powered equipment; design and performance requirements,” provides: (a) Nonpermissible diesel-powered equipment, except for the special category of equipment under § 75.1908(d), must be equipped with the following features: . . . (8) A means to direct exhaust gas away from the equipment operator, persons on board the machine, and combustible machine components.”

            Inspector Coburn’s citation described the exhaust pipe as “not connected to the diffuser due to the support bracket being broken and the exhaust pipe being pushed back from the diffuser.” The diffuser’s purpose is to cool exhaust fumes off the mini-track and to help dilute the carbon monoxide coming out of the motor. With no clamp present, the exhaust was not completely moving into the diffuser. Tr. 1262. Instead, exhaust was coming out around the broken bracket. Tr. 1262. The problem meant that some exhaust fumes would not travel to the diffuser and instead would exit the exhaust system prematurely, a phenomenon created by the exhaust pipe flopping loose. Coburn stated that he could see exhaust smoke coming through the top of the engine hood. Thus, the whole time the mini-track was running, carbon monoxide (“CO”) and heat would be produced and those combustion by-products would not be completely passing, contrary to its design, through the diffuser in order to dissipate them. Tr. 1263. Ultimately, the condition was abated by the installing a new exhaust system on the equipment.

            Inspector Coburn’s concerns were amplified because, as noted, he had just found accumulations of oil and coal dust on the motor frame and underneath the pan of the engine compartment. These accumulations were 2 to 2 ½ inches from the exhaust. Tr. 1262. With the exhaust pipe being unhooked from the diffuser, the Inspector believed that this created a risk of a fire. In addition, the CO fumes could travel to the location where the operator sits. Tr. 1264. Coburn determined that the oil and coal dust accumulations had been present for at least 3 days. Although his immediate concern was the possibility of a fire, he expressed that, over the long term, there would be health concerns too. Having observed that, for one of the mini-tracks, the diffuser had been bent back, he concluded that someone had likely backed the mini-track into a rib and then tried to bend it back to its original position. In that process, he speculated, the diffuser had been pulled loose. Tr. 1265.

            Coburn marked the violation as reasonably likely to result in an injury or illness because of the possibility of a fire. Smoke inhalation and dust would be generated if a fire occurred.

The Inspector also stated that the exhaust pipe, being broken from the diffuser, would allow sparks from the exhaust to exit prematurely, as some combustion related sparks move through the motor exhaust. Therefore, according to the Inspector, both fumes and exhaust sparks were not contained, as they would be if the diffuser were properly connected to the exhaust piping. The exhausts are supposed to travel along the exhaust piping to the diffuser. Inspector Coburn stated there were a lot of carbons, and a lot of “trash and stuff” on the motor, and one could see sparks come out of the exhaust pipe. Tr. 1268. This was the basis for his concern that those sparks would ignite the oil and gas he observed to be present on the mini-track. Tr. 1269.

            As noted, CO was another concern for the Inspector. No one disputes that CO is hazardous, to the point of being potentially lethal, as it replaces oxygen in one’s blood, and the Inspector maintained that the operator of the equipment would be exposed to CO which was not exiting the exhaust at its intended location. Tr. 1270.

            Coburn believed that the pre-operational check, a weekly examination requirement, would have disclosed this problem. Factoring that examination duty, Coburn marked the violation as moderately negligent. Tr. 1270-1272. He also marked it as S&S because, if mining were to continue, he believed that there was a possibility of a fire. Tr. 1274. Coburn added that MSHA has noted several pieces of equipment have caught fire in his mining district due to “exhaust” issues, although later he more particularly described the hazard as equipment catching fire from overheating. Tr. 1273.

Citation, No. 8497416; the number 22 mini-track.

            Inspector Coburn then spoke about a related citation, No. 8497416, also issued on July 26, 2010. Exhibit 51. This one involved a different mini-track, the number 22. For both machines, the exhaust piping starts at the motor and is connected to the diffuser at its end. Fumes then exit the vehicle from the diffuser. Tr. 1288. For this second machine, the Inspector observed that the exhaust pipe had been connected by two pieces of wire, instead of with exhaust clamps. Tr. 1274. The citation noted that the wire was used at two connection points, instead of exhaust clamps. The Inspector saw that exhaust soot had come out at the location where the improper connection existed, at the diffuser. Tr. 1274. Thus, the exhaust system was leaking. Tr. 1274. Accordingly, the problem was similar to the problem he found on the other mini-track he had cited; an exhaust system in a state of disrepair from improper connections. Tr. 1275. Every time the machine was running it was leaking in this manner. The presence of the make-shift wire “repair” told Coburn that the mine knew of the problem and that it had simply been rigged that way instead of installing a proper connection for the exhaust. Tr. 1275. Because of the amount of soot he observed, Coburn did not think this had been a problem for simply one shift and instead that it had been an issue “for a while.” Tr. 1276. As with the other mini-track, Coburn was concerned about exposure to CO, though he listed it as a “safety” issue for the machine’s operator. Understandably, he did not test for CO because he was unwilling to expose himself to the risk associated with such testing. Consequently, he had the machine shut off right away. Tr. 1314. Had he used his spotter to take a reading, it would have taken a minute or two to obtain a reading. Tr. 1314. The violation was abated by installing the proper clamps. Tr. 1278.

            Upon the Respondent’s cross-examination, which covered both of the mini-track citations, Coburn advised that neither of the cited vehicles were in operation when he came upon them. Instead, he asked that the vehicles be turned on. In terms of how long the equipment had been idle, Coburn stated he did not know; it could have been a couple of days or recently. Tr. 1279. Coburn agreed that such mini-tracks are not used with the frequency of a shuttle car or a roof bolting machine. Still, he believed that a proper pre-exam check would have disclosed the problem. He reaffirmed that, when that equipment was started up, he observed smoke or fumes emanating from them but he acknowledged that this would occur with any start-up of such equipment. Coburn never took any temperature readings of the exhaust or areas around that and he did not know how hot they would get. He stated that the ignition temperature of oil is between 100 and 140 degrees, while reminding that he observed the presence of motor oil and coal dust accumulations. Those accumulations were on the side of the motor, on its frame and also on a panel underneath it. Tr. 1282-1283. The exhaust pipe runs from the motor all the way to the diffuser. Coburn agreed that the exhaust pipe problem itself was not in the area of the motor nor was there an exhaust line problem until it reached the diffuser. Tr. 1284. Therefore, the problem was limited to where the exhaust pipe connected to the diffuser, which is at the rear of the mini-track. However, the accumulations were “all over,” as the whole compartment had oil down the side of the motor. The Inspector’s notes did not state that there were any accumulations of combustible material on the exhaust pipe or on the diffuser and Coburn affirmed there were no accumulations on those areas. Tr. 1285.

            Inspector Coburn also reaffirmed that, due to rust and general wear of the equipment, there will be sparking, which would shoot out at the end of the exhaust line. Carbon and debris from the motor will also contribute to the sparking. Tr. 1287. However, he added that this does not mean that such sparking will occur continuously or every time the equipment is running. Tr. 1288. Repeating his earlier testimony on direct, he advised that the connecting point from the diffuser to the exhaust was present, but disconnected. Instead, the diffuser had been bent back and the lower bracket had been broken loose and it had been pulled back, pushing the exhaust pipe back. The connecting point of the diffuser, a 2 to 3 inch protrusion, was not lined up and there was a gap at the bottom part which was large enough for him to put his finger through it, that is, a gap of a half to three-quarters of an inch was present. Tr. 1291. The temperature of the exhaust before it reaches the diffuser would be several hundred degrees. Tr. 1293. Coburn added that diesel fuel ignites at 190 degrees. Coburn did agree that there was adequate ventilation in the area; he indicated it was a little over 3,000 CFM, which is the required amount. Tr. 1294. In sum, the leakage was present only at the very rear of the mini-track and the operator, while located on the other end of the equipment, sits in an open top. Tr. 1295.

            As noted above, Coburn cited the mine for violations of 30 C.F.R. § 75.1909(a)(8), which requires that there be a means to direct exhaust gas away from the equipment operator, persons onboard machine and combustible machine components. While there was such a “means” to direct exhaust gases away, Coburn pointed out that it was not being maintained. Tr. 1298. He added that he could have cited the condition as a “failure to maintain.” To the suggestion that he cited the wrong provision, Coburn’s view was that he could have cited the mine for either, or both provisions, not simply the one he issued. Tr. 1298. The Court advised Respondent’s Counsel that it would not buy into the notion it suggested that, as there was a “means” to direct exhaust gas away from the equipment operator, the standard was satisfied. This is because it is implicit that such exhaust must be maintained to effectively direct such gasses away. Tr. 1299.

            Referring to the other mini-track, regarding Citation No. 8497416, Coburn did not contend that it also had oil and grease accumulations on it. Therefore, he did not believe that it posed an ignition or fire concern. Tr. 1299. For that one, although the exhaust pipe was connected to the diffuser, his concern was that the clamps were not installed. He advised that such failure disturbed the integrity of the exhaust pipe, noting that where the clamps were absent he saw soot after the diffuser, as well as out by the muffler. Tr. 1299-1300. Clamps, he advised, do more than simply ensure that the exhaust pipe does not rattle. Rather, they are there to press everything down so that the exhaust exits as designed. Absent a proper clamp, there is no proper seal between the two. Tr. 1301. Coburn affirmed that his concern was the equipment operator’s inhalation of exhaust gases, and specifically CO exposure. Tr. 1306.

            Coburn stated that once a miner started up the equipment that person should have observed the exhaust smoke coming up through the baffling on top of the motor and that it was not exiting through the back of the equipment, as designed. Tr. 1309. In terms of the spotter alarming, Coburn noted that about half of the time the operator of the equipment will be downwind of those fumes. Tr. 1309. Speaking to the relative severity of the two, similar, violations, Inspector Coburn remarked that he considered the violation where the dust and oil were present to be the more serious of the two. Tr. 1310. Neither piece of equipment had been tagged out nor marked as out of service and Coburn believed that they should have been. Tr. 1313.

            Brad Carlisle testified for the Respondent. At the time of the issuance of these citations, Carlisle was employed in the mine’s safety department. Tr. 1423. However, Carlisle wasn’t with Inspector Coburn when the citations were issued. Instead, his testimony was based upon his familiarity with the mini-tracks because, as he was then a mechanic at the mine and had worked on them. Carlisle stated that the diffuser’s purpose is to allow the exhaust to react with more air. While he noted that the operator of the mini-track is on the end opposite from the diffuser, he conceded that the operator would be exposed to fumes, depending primarily upon the direction of the air flow. He has never heard of sparks traveling out the exhaust pipe or out the diffuser. Tr. 1427. As noted during cross-examination, Mr. Carlisle was not present for the inspection of the mini-tracks, didn’t see how long they were operated and of course did not see the direction of the fumes’ travel at that time. As to whether he considered fumes coming out the top of the mini-track as normal, Carlisle responded: “Probably not.” Tr. 1430. Since mini-tracks are not permissible pieces of equipment, they cannot be used in return air, but they can be used in neutral and intake air. Tr. 1431. Carlisle could not say for sure if diffusers were required by law or not, but he added that there are mini-tracks at the mine with no diffusers at all. Tr. 1431.

Contentions, Analysis and Conclusions regarding Citation nos. 8497415 and 8497416.

            As noted, both these mini-tracks were cited for failing to have a means to direct exhaust gas away from the equipment operator, persons on board the machine, and combustible machine components. Both violations were established by the unrefuted testimony of the Inspector describing the exhaust line defects.

            The differences between the two similar problems can be briefly summarized. For the Number 42 mini-track, the problem was the exhaust pipe being disconnected from the diffuser. The Inspector observed that this part of the exhaust system had been bent and that someone had tried to bend it back to its normal position. Thus, based on the Inspector’s testimony, which the Court finds to have been credible, the operator knew of this problem. However, bending it back did not correct the defect, as the clamp to secure the diffuser to the exhaust was not present or, at least, not secured. The Inspector was of the view that the accumulation of oil and coal dust on that mini-track made the situation more serious. Critical to the analysis for this citation, the Inspector observed exhaust smoke coming through the top of the hood, instead of being directed out the exhaust piping and with no contradictory evidence on that point, the Court finds that to be the fact.

            For both mini-tracks, Coburn was concerned about the equipment operator’s exposure to carbon monoxide, albeit, for one, his uppermost concern was that the accumulations would ignite from exhaust fumes exiting prematurely. For the Number 22 mini-track, while that equipment did not have the accumulation of oil and coal dust issue, it did have a similar defect in the exhaust line where it met the diffuser. In terms of operator knowledge, for both mini-tracks, the nature of the half-baked means to repair the exhaust line defects meant there was awareness of the problems. Plainly, these were an improper, and ineffective, way to deal with the defects.  

            Somewhat incredibly, the Respondent contended that because a means to direct exhaust gas away was present, there could be no violation. As noted earlier, the Court rejects this strained interpretation. Where, as here, there is a demonstrated defect in the means to direct exhaust gases away from the operator, the standard is violated. It is inherent, though implied, in the requirement that the means must be effective or the standard would become meaningless.

            Respondent’s alternative argument to vacating the citations is that both should be reduced to “unlikely” and “non-significant and substantial.” Initially at least, the analysis of the two citations must be addressed separately. For Citation No. 8497415, Respondent notes that this citation had the additional issue of oil and coal dust accumulations but it disputes that there was any fire issue associated with that violation. It contends that, as these accumulations were not on the exhaust pipe or the diffuser, but rather only in the equipment’s motor area, there was no risk that the exhaust fumes could ignite the accumulations. Additionally, the Respondent contends that the Inspector’s view that the exhaust temperatures could be hot enough to ignite the engine oil accumulations is unsupported by credible testimony. It also maintains that the Inspector’s belief that sparks from the engine could exit the exhaust pipe and ignite the accumulations is equally unsupported.

            The Court agrees that, at least on this record, the Secretary failed to establish either the accumulations or the sparking theory as plausible ignition sources for the oil accumulations.

            However, this was not the sole basis for the Secretary’s contention that the violation was S&S because that finding was also asserted on the basis of the risk of carbon monoxide exposure. The Respondent contends that “because exhaust fumes may have been escaping the mini-track prior to reaching the diffuser does not mean that the operator was at any more risk of being exposed to an elevated level of carbon monoxide.” R’s Post Trial Memorandum at 9. Respondent argues that the exhaust fumes were moving the CO away from the operator’s cab unless the air flow were to move in a different direction. Thus, Respondent argues that the “fumes would not have gone towards the operator . . . absent air flow moving [ ] in that direction.” R’s Br. at 10. Accordingly it is the Respondent’s contention that “because exhaust fumes may have been escaping the Mini-Track prior to reaching the diffuser does not mean that the operator was at any more risk of being exposed to an elevated level of carbon monoxide.” R’s Br. at 9. Respondent argues that because the equipment requires pre-operational checks and because operators of such equipment wear “gas spotters,” which would alert them to elevated levels of such gas, the conditions were not S&S. However, the Commission has rejected the idea that such other practices are to be considered in making an S&S determination. As noted by Judge Bulluck in Secretary v. Marshall Mining, Inc., 2012 WL 4753928, Sept. 6, 2012, the Commission has “‘rejected the operator’s reliance on the additional safety measures as factors that would prevent an S&S finding,’” citing Cumberland, 33 FMSHRC at 2369 which, in turn, cited Buck Creek Coal, 52 F.3d 133, 136 (7^th Cir. 1995). Judge Bulluck added that the “Commission explained further that adopting [the] argument that redundant, mandatory safety protections provide a defense to a finding of S&S would lead to the anomalous result that every protection would have to be nonfunctional before a S&S finding could be made [and that] [s]uch an approach directly contravenes the safety goals of the Act.” Marshall at *7, citing Cumberland at 2369-70. The Court agrees with Judge Bulluck’s observations.   

            A related contention, Highland asserts that diffusers, even when properly connected, don’t reduce CO, because they are not converters. However, this argument is a straw man. Of course a diffuser is not a converter. Rather, as its name suggests, it is a diffuser. As noted, the Court rejects this argument because it is simply a distraction from the essence of the problem. It can hardly be argued that an exhaust system with improper or defective connections does not present problems. Certainly such exhaust systems are plainly intended, by design, to have sound connections right from the engine to the end of the exhaust line. Here, in both instances, the exhausts were not secured as intended. In one, the clamp was not connecting the diffuser to the exhaust pipe. In the other the exhaust was connected to the diffuser improperly, being jerry-rigged with wire. Accordingly, it needs to be remembered that both connections were not proper and, for one of the mini-tracks, the Inspector saw the exhaust exiting where it should not. For the other, the Inspector observed evidence of exhaust leakage at the improper connection point.

            Regarding the Respondent’s contentions that the problems would have been detected in the preoperational check; that the operator’s spotters would have alarmed if any harmful CO level had occurred; that the same amount of CO was still exiting the equipment, despite the improper connections; and that there was no evidence that any increased level of CO exposure had occurred or was likely to occur, the Court has already rejected the interpretation of the standard suggested by the Respondent.

            Given what is undisputed, that neither connection was proper, and that, in one case it was deliberately connected improperly, the question is whether such an arrangement was S&S. In applying the analysis, it should be noted that the Respondent has conceded that some exhaust gas fumes would move towards the direction of the equipment operator, depending on the air flow direction at a given time. Here, the Court applies the Mathies test, as modified for health violations, because the issue is whether the CO associated with the defective exhaust presented an S&S situation.

            Upon consideration, the Court concludes that both violations were established and that both were significant and substantial. The Court’s S&S is determination is based solely on the health risk of CO exposure, as it has determined that the Inspector insufficiently supported the basis for his other concerns relating to a risk of a fire occurring for one of the mini-tracks. The standard was violated. The discrete health hazard was the risk of CO poisoning from exhaust fumes not being fully directed out the exhaust, as designed and intended. That defective exhaust system presented a measure of danger to health because it contributed to the risk of carbon monoxide poisoning. The Court’s conclusion regarding the “reasonable likelihood” element is also supported by the Inspector viewing, for one of the machines, exhaust fumes exiting the top of mini-track’s hood. Accordingly, it is not mere supposition that such fumes can exit near the operator’s compartment when the exhaust system is in a state of partial disrepair. It must also be taken into account that CO is insidious. Being odorless and colorless, it does its harmful work silently and often before one can recognize its potentially deadly effects. It would be unreasonable to suggest that MSHA, having found an insufficiently, and or, an improperly connected exhaust line, must then conduct an inquiry to determine if the fumes are sufficient to cause harm. Nor should the Agency have to figure into its analysis the ventilation in the area and assess how fumes would exit when the vehicle is moving. If such requirements were imposed as part of the evidentiary burden, as a practical matter no exhaust defect violations with CO concerns could be shown to constitute S&S violations. As Respondent’s witness conceded, there could be exposure to such fumes and the fumes are not intended to exit through the top of the mini-track. Accordingly, the Court finds that both exhaust system defects associated with the two mini-tracks were S&S.

Negligence associated with the mini-tracks.

            On this issue, the Respondent again raises its claim that, as a means to direct exhaust gas away from the equipment operator was present, and, as a corollary argument, that as there is no requirement for a diffuser to be installed on such exhausts, there was no, or only low, negligence. It also contends that the defects would have been detected during the next pre-operational check of the equipment. R’s Br. at 13. However, the methods employed to correct the defects suggests that such proper repairs would not be forthcoming. Respondent addresses the use of wire to attach the diffuser by asserting that there is no requirement to use clamps. This deserves no further comment.

            The Secretary maintains that the Inspector properly designated the negligence as moderate. The Inspector, while recognizing that the individual performing the pre-operational check may not be a maintenance specialist, asserted that the exhaust exiting through the motor top should have alerted anyone that something was amiss. For the No. 42 mini-track, the amount of accumulations observed by the Inspector informed him that the defect had been present for at least three days and, for the No. 22 vehicle, the wire used to connect the diffuser to the exhaust pipe bespoke knowledge of the problem. The Court concludes that the negligence in both cases was at least moderate.

            Based upon all the evidence of record, and consideration of each of the statutory penalty criteria, the Court concludes that Citation No. 8497415 and for Citation No. 8497416, each warrant a penalty of $400.00, instead of the $807.00 proposed for each.

Citation No. 8497715 , citing 30 C.F.R. § 77.1607(cc).

            This Citation was issued by Inspector Keith Ryan. The cited provision states: “Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords along their full length.” Inspector Ryan was unable to testify at the hearing and for that reason this matter was addressed initially by the Respondent’s witness, Rodney Barker. Mr. Barker has been working in the coal mining industry for 41 years. Tr. 1155.

            Barker was familiar with the cited condition, which pertained to the “A belt.” Tr. 1169. The A belt is the first belt leaving the mine, with the destination for the coal carried on it being the preparation plant. As needed, the belt has crossovers, where it goes over a highway, for example. Tr. 1169. At such locations, the belt passes overhead via a tunnel and at those locations the belt will have a pull cord. In this instance, which involved an overpass which crossed a highway, there was a pull cord. Pulling on that cord stops the belt running. Tr. 1170. According to Barker, the citation asserted that the pull cord was “laying on the structure and wasn’t made [for] easy access.” However, he noted that the circuit was working. The inspector’s concern, Barker acknowledged, was that the pull cord was not accessed freely enough to shut it off. Tr. 1170. Barker agreed that the standard cited, 30 C.F.R. § 77.1607 (cc), provides that unguarded conveyors with walkways are to be equipped with emergency stop devices or cords along their full length. Tr. 1171. Looking to the words employed in the standard, Barker noted that, literally speaking, the provision says nothing about easy access to the stop cord. Tr. 1171.

            Mr. Barker stated that he was involved with the original installation of these stop cords, in 2001 or 2002. Tr. 1172. Furthermore, he often travels these belt lines daily, or at least has people who walk them weekly, to make sure the cords work and that the switches operate to shut down the belts. Tr. 1172. Over the years since their installation, Barker maintained, these cords have not had their location changed. That is also to say that no MSHA Inspector had ever before had an issue with the cords’ location.

            The walkway in issue is 2 feet wide and the top of the belt structure would be just a little below waist high. The cord is right beside it, that is, between the person and the belt. Tr. 1174. When one walks through the tunnel, there is only the cord next to the walkway; there is no railing present. Tr. 1174. Barker agreed that one walking along this area could fall onto the belt and he was sure that is why pull cords are required. Tr. 1174. They would then have the cord to grab hold of and thereby shut off the belt. Tr. 1174. One could also stumble into the belt. Tr. 1175.

            Barker had no knowledge as to how the citation was abated. Tr. 1176. However, it was abated by a different inspector and Barker maintained that the abating inspector told the mine they could leave the cords as they were. Tr. 1176. That inspector, according to Barker, didn’t want things changed out of a concern that the pull cords would then be too tight. Tr 1177. He reiterated that the cords “had a little bit of slack in them and [were] laying on the structure. They were still in operation though.” Tr. 1177. The government attorney noted that the citation states that the cord was found laying on or under the main belt structure and, upon cross-examination, Barker acknowledged that the pull cord was touching the structure that supports the belt. Tr. 1178. Barker agreed that the cable hangs or droops down but he maintained that it would be hard to have the cable be so tight from one end to the other so that it would not touch anything and still have the switch operate. Tr. 1179. He added that even if the cord were laying up against a roller, one could still get a hold of it. Tr. 1179. When government counsel suggested that a cord which is on or under the structure could be hard to reach if one is standing on the walkway, Barker responded that the cord would be on the structure itself in more than one location because “that’s just the way the rope is.” Tr. 1180. However, he also maintained that the cord would never sag so much that it would be underneath the structure. Tr. 1180.

            When questioned by the Court, Barker stated that the cord should be installed just underneath the plane that would be the top of the belt. Tr. 1186. He stated that one has the belt on top of the roller and the pull cord laying on the structure and reiterated that if one is laying on the belt, one could reach over and get a hold of it. If the cord is too tight, he maintained, it will trigger a belt stoppage for something as innocuous as the wind. Tr. 1187. However, Barker conceded that he was not present when the citation was issued nor present at the location when it was abated, though he was in the area. Tr. 1188.

            It was Inspector Coburn who terminated the pull cord citation on July 30, 2010. Tr. 1201, and Ex. P 64, Coburn’s notes relating to that abatement. Those notes, pertaining to the A belt line state: “Tunnel pull cords have been moved up half the belt structure.” Tr. 1202. This involved moving the cord probably some 4 to 8 inches. Tr. 1215. The cord was then between the top and bottom of the belt, in the middle between those two locations, and it was taut. Tr. 1204. New eyelets had been installed on the side of the belt line. As the cord runs through the eyelets, Coburn knew it had been moved. Tr. 1204. The old eyelets were still present and thus provided a frame of reference from its original position to the new one. The cord itself is a high tensile industrial aircraft wire which has a plastic or rubber coating. Tr. 1205. Coburn stated that the cord needs to be in the middle of the belt so that if one falls into the belt, they will trigger the cord. Thus, one can physically pull the cord or, if one falls onto the belt, the stop mechanism will be activated and the belt will stop. Tr. 1206. Coburn stated that if the belt is hanging loose and one falls into it, the belt will not stop.

            Inspector Coburn did not agree that the likelihood of one falling into the belt was remote, remarking that “[a]nyone walking on the side of the belt line could trip on coal, they slip on ice in the wintertime.” Nor did he agree that one would have to fall up and over the railing to get into the belt. Instead, he noted that “[a]ll you have is a small rail. The railing is part of the belt framing. You could fall in between. You could fall between the belt line. You could fall on top of the belt line. While shoveling you could be pulled into the bottom of the belt. They are required to shovel the belt line too.” Tr. 1216. Upon questioning by the Court, Coburn agreed that one would have to fall through the railing or somehow get past that railing in order to come in contact with the belt. Tr. 1218. Thus, ultimately Coburn agreed that it was likely that the railing would protect one from getting hurt if one were to fall. Tr. 1219. However, Coburn expressed that the trip cord’s function was to activate the stop switch before one fell on to the belt, and thus before one contacted the railing. Thus, there is the cord and then inside of that is the railing and then one encounters the belt itself. Tr. 1220.

            The Respondent also called Thomas Witherspoon on this issue. Witherspoon has been working in coal mining for some 21 years. Tr. 957. He has his mine foreman papers and is familiar with the way belt exams are performed. Tr. 958. Witherspoon stated that he checked with several others at the mine and all advised him that the pull had always been the way it was since Highland started mining. Tr. 1462. This was around 2001 or 2002. Tr. 1468. No one could understand why the cord was cited, given this history and the lack of previous citations for it. He maintained that the same inspector had seen the cord and not cited it in earlier inspections. Tr. 1463. Witherspoon was with Inspector Ryan on the day he issued the citation. He noted that the pull cord was functional at that time.

            As to the critical issue of the cord’s location, in the Court’s view, Mr. Witherspoon’s testimony was so vague as to be non-informative. Tr. 1464-1465. Unlike the other witnesses, Witherspoon maintained that one could not fall into the belt. He expressed that if one fell up against the belt, one’s hand would still be “right there at [the cord].” Tr. 1466. Witherspoon did not believe it was a violation, given all the previous occasions it had not been cited and that, if a violation, it was not S&S. The latter was based on his view that the cord was “right there” to be pulled if needed. Tr. 1466. On cross-examination, Witherspoon stated that the pull cord was about 8 to 10 inches below the belt. Tr. 1468. As to whether the cord was straight or sagging, Witherspoon stated that it varied: “It was in different areas. Part of it had eye bolts sticking up on the rail and it was through it. Part of it would be looped down a little bit. Then some of it would be laying on the side of the - - of the piece of steel that the rollers were sitting on, you know, right on top of the piece of steel.” Tr. 1469, 1472. Regarding why the Inspector issued the citation, Witherspoon stated that the Inspector “gave [him] a book and told [him] this is the way that things ought to be - - that it was a book on guarding and a book on pull cords, safety lines and stuff, and this is the way that things need to be done.” Tr. 1470. Witherspoon took the book the Inspector gave him and advised that it is now “in the office in there somewhere.” Tr. 1471. Witherspoon repeated that the pull cord was sagging in some areas and in some it “would be laying there.” Tr. 1472. To the best of his memory, the book the Inspector gave him shows a picture of a pull cord. Tr. 1473. The book example does not show a pull cord lying on a piece of steel. Tr. 1473. Nor does the book depict the cord sagging. Tr. 1473.

Counsels’ Contentions

            Respondent resurrects the tenor of the argument it made regarding the exhaust system for the mini-tracks. In this context, it asserts that the belt was so “equipped” with an emergency cord. It maintains that as long as the cord is “functional” there is no violation. Respondent maintains that this is true even if the cord is “on or under” the belt. For the reasons set forth in the treatment of this contention for exhaust systems, further discussion of this argument is unwarranted here. It is rejected.

            Turning to its alternative arguments, the Respondent asserts that, as the cord was operable, it was not reasonably likely to cause an injury. This contention deserves little comment as well. Under this argument a cord lying along the floor or ten feet above the walkway would meet the Respondent’s “test” for compliance.

            The Respondent next turns to aspects of the testimony from witnesses Barker, Witherspoon, and even Inspector Coburn, all to show that it was not “S&S.” Finally, Respondent argues that only low negligence was present, noting that the cord had not been previously cited. The fact that the cord was moved “4 to 6 inches,” Respondent asserts, shows only the issuing Inspector’s preference for, but not any deviation from, the required standard of care. R’s Br. at 16.

            From the Secretary’s viewpoint, it notes that the citation described the emergency pull cord as “found laying on or under the main belt structure and [because of that location it] would not allow easy access if a person were to fall or be pulled into the belt.” In its gravity analysis, the Secretary contends that one must assume that an emergency has occurred; that is, that someone has fallen into the belt. On that premise, it argues that the likelihood is not based on the chances of one falling into the belt. Sec. Br. at 71. Instead, working from the presumption that one has fallen onto the belt, the cord must be in place such that the belt will stop running before landing on the belt. From that, it contends that the cord must be taut, and not hanging loose as it was, to shut down the belt. It therefore argues that, in this instance, it was reasonably likely that the cord would not trip the belt shut off feature. The Court agrees with the Secretary’s gravity analysis, but as explained infra, evidentiary issues dictate the outcome. In terms of negligence, the Secretary argues that Highland should have known of the condition, as personnel walk the belt weekly. However, because the testimony was that the Respondent did walk the area, but it was unknown how long the emergency cord had been in the condition cited by the inspector, the Secretary, believing those were mitigating factors, maintains the negligence was moderate and urges a civil penalty of $807.00 be imposed.

            In the Court’s view, the violation was neither S&S nor was the negligence moderate. The standard, requiring unguarded conveyors with walkways are to be equipped with emergency stop devices or cords along their full length, requires that the cords be positioned so as to be effective. This cannot occur where, as here, the cord was found laying on or under the main belt structure because such locations would not allow easy access if a person were to fall or be pulled into the belt. Accordingly, the standard was violated. The discrete hazard is the harm that would occur if one were to fall and come into contact with the moving belt without the cord performing its shut down feature. Such an event would produce a reasonably serious injury but as to the third element, the reasonable likelihood that an injury would result, the Secretary failed to provide sufficient proof. This deficiency arose because the issuing inspector was not available to testify and therefore it was unknown how extensive, or limited, the insufficient areas of cord were. Nor could the inspector who abated the citation offer useful information because he did not view the cord in its condition when it is was cited, seeing it only after corrections had been made.

            In terms of the negligence associated with the violation, the Court must consider the absence of any previous issues about the cord placement by MSHA Inspectors. Therefore, on this record it is unknown whether the condition had developed during a relatively recent time frame or whether the mine had been lulled by the lack of previous citations over the issue. The record simply does not disclose these circumstances. On these facts, the negligence must be considered to be low.

            Considering the record as a whole, the Court determines a penalty of $100.00 is appropriate.

Citation No. 8501059, citing 30 C.F.R. § 75.1725(a)

            MSHA Inspector Paul Hargrove testified about Citation No. 8501059, issued July 28, 2010 and citing § 75.1725(a) . Tr. 1021, and Exhibits P 44 and P 45. The standard provides: “Machinery and equipment; operation and maintenance. (a) Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.”

            On that date Inspector Hargrove was performing an E01 inspection. With him were Brad Carlisle, Tommy Witherspoon, Bernie Alvey and Lawrence Penly. During his inspection of outby equipment he determined that the mine’s No. 29, 14 man diesel mantrip, was not being maintained in safe operating condition in that 6 of the 14 canopy post welds were broken and the posts were not attached to the mantrip. Further, the Inspector found that two of the posts were bent. Tr. 1022. This was observed in the mine’s bottom area, near crosscut 5 or 6, which is a staging area where mantrips line up for the next shift to come in. Tr. 1023. Typically, 10 to 12 miners will be on a mantrip.

            Ironically, if the mantrip comes without a canopy, there is no need to install one. However, here, there was one, and so it must be properly maintained. Tr. 1024. Thus, it is simply immaterial that some mantrips may not have a canopy and considering that fact only serves to blur the analysis. The canopy itself covers the area where miners sit. It is supposed to be able to support 18,000 pounds of weight on it, spread out evenly over its surface. Tr. 1024. Hargrove described the canopy as having 14 square tubing posts, with each being approximately 2 by 2 inches. Tr. 1025. The posts are welded onto the steel frame and, as noted, for six of them the weld was broke loose and, for two, the posts were bent forward. The bent posts were located in the back, or rear, of the mantrip. Thus, as he stated, the canopy was angled forward because of the defect. Tr. 1032. The bent posts in the rear had pushed the canopy forward. Tr. 1032. He noted that the canopy had been bent for a while because it had rusted over and accumulated dirt and other material was present where it had rusted in the crack. Tr. 1026. Obviously the Inspector couldn’t know how the canopy came to be damaged; it could have occurred upon contact with another piece of mobile equipment or perhaps by striking the roof at a low point. The main point is that it was damaged and had not been maintained by correcting the defects. The hazard stems, plainly, from having a canopy that can’t perform as designed. Tr. 1027. The canopy itself, by not being maintained, is a hazard in its own right. Tr. 1028. The mantrip in issue had not been tagged-out, so it was available for service. Tr. 1029.

            Section 75.1725(a) pertains to mechanical equipment not being maintained in safe operating condition. Tr. 1030. Hargrove stated that the condition was obvious as, when he walked up to it and began inspecting it, he noticed the problems right away. Tr. 1030. Another standard, 75.1914, applying to diesel equipment, requires, among other provisions within it, a visual examination is to be performed weekly before placing such equipment in operation, to make sure it is safe to operate. If that had been done here, Hargrove advised, the mantrip would have been placed out of service. In retrospect, Hargrove believed he should have cited the mine for that failure as well. Tr. 1031. Based on the rust he observed, Hargrove expressed that the condition had existed for several shifts at least, if not more. Tr. 1032.

            In marking the gravity as reasonably likely to result in an injury, Hargrove stated that, as one had a canopy which was not properly secured to the metal frame of the mantrip, the canopy can get knocked off and injure miners. As it had already been hit by something, it would not be unreasonable to think that it could get hit again. Tr. 1033. The Court certainly agrees with that observation. Marking the injury as lost work days or restricted duty, Hargrove was considering crushing injuries, broken bones and the like, as risks. Tr. 1034. As he noted, “[I]t do[esn’t] take a very big piece of metal to hurt somebody.” Tr. 1034. While up to 14 miners could be on this mantrip, he conservatively estimated the number affected as ten.

            In terms of his S&S designation, he believed it was reasonably likely to cause injury. Further, as just noted, the operator was capable of being aware of the problem, as it could have been detected through the weekly examination and because the defects were plain and obvious. Tr. 1035-1037. To abate the problem, the mine welded the posts up at the frame of the mantrip and it replaced the two bent posts. Tr. 1037. In repairing the welds, one must take out the old weld, that is, cut it out, then weld it back to do the job correctly. Tr. 1037. Providing further detail about the pieces with defective welds, Hargrove stated that those pieces could be moved around and that the gap was between the weld and the metal all the way around it. Tr. 1038. If one were riding on the mantrip the defective areas would rattle, making the problem all the more obvious and detectable. Tr. 1038.

            On cross-examination, Hargrove admitted that he made no tests or calculations concerning how much the canopy could withstand. Tr. 1039. Nor did he know how much force would be required to move the canopy. Tr. 1039. While an event involving a canopy at another mine heightened Hargrove’s awareness of the safety concern here, his concerns also included the effect of a roof fall on the canopy. Tr. 1040. The risk presented by the defects was real. As the Inspector noted, when the frame of the mantrip hits the rib, the canopy hits the rib also. He added, “These [mantrips] are so long that when they make a turn, a lot of times that canopy and that side frame is rubbing against the rib. You can look at the ribs and tell down there.” Tr. 1053. Further, as he noted, the travelways were wet, damp and bumpy. Tr. 1055.

            Inspector Hargrove’s point was that the posts had separated from the frame of the mantrip and that they were no longer connected. Tr. 1066. Thus, the 1/16 of an inch gap existed at the locations where the weld was located. Tr. 1066. He noted that the canopy was compromised by these conditions. Because of that, it is weakened and therefore it would not take a big piece of rock to make it come down. Tr. 1067. A similar worry exists if the canopy were to strike a rib. Hargrove advised that his experience at Highland has been sufficient such that he has seen mantrips rubbing on the side of the ribs when they are turning and he has seen the canopy running on the side of the ribs. Tr. 1067. He has observed the canopy hit the rib when backing up. Tr. 1067. As he summed up his view, he considered the violation to be “real serious . . . [and] significant and substantial . This [presents] the potential for not only [one] person but a group of men to be hurt.” Tr. 1069. While Hargrove agreed that the movement of the posts had not been, up to that point, sufficient to break the weld bead or chip it or damage it, he added that “any time you move a piece of metal around inside something like that, it’s actually going to start pushing your bead out. It’s going to keep getting worse is what I’m telling you.” Tr. 1069. Accordingly, while the posts themselves had not yet moved such that they were outside or pushed beyond the bead of the weld, they weren’t attached. Tr. 1072-1073.

            Highland witness Mr. Carlisle testified on this matter. As noted, at the time of this citation’s issuance, Carlisle was also working in the mine’s safety department. Tr. 1435. On the date in issue, July 28, 2010, Carlisle was not directly with Inspector Hargrove. He did not know how it was decided which vehicles have canopies nor, as the Court has noted, does it matter. The cited mantrip travels down the main entries, the main haulage roads, and to and from each unit. Tr. 1438. As it is non-permissible, it does not travel to the face. Tr. 1438. Accordingly, most of the time these vehicles are in the supply or haul road. Tr. 1439. Typically, the roof height in these areas is 6.5 to 7 feet. As to the cited number 29 diesel, Carlisle could not recall which particular posts had an issue, but he did note that some six of the posts had weld cracks around them. He maintained that the posts themselves were still intact, despite the cracks. Tr. 1440. He also was aware that there were a couple of posts that were bent, but contended that the cracked ones were not bent. The cracks were right above the weld. Tr. 1440. The standard cited, Section 75.1725(a), requires that mobile machinery be kept in safe operating condition, and Carlisle agreed the cited condition was a violation. Tr. 1441. However, he did not see it as S&S because a majority of the posts were intact and welded and he believed they would support a weight from a vertical load (i.e. a roof fall). Further, he stated that there was no low top that the mantrips here would encounter. Tr. 1442. Mr. Carlisle did acknowledge the presence of “surface rust” on the bent posts but he maintained that there was no “deep” rust present and he asserted that in a coal mine fresh metal will rust in an hour or a couple of hours. Tr. 1443. He also acknowledged it was possible for the mantrip to come in contact with the ribs and therefore that roof was not the only source of canopy contact. He conceded that the posts were damaged from hitting something but, based on his experience with metal, his view was that the bent posts were only compromised to a very small degree. Tr. 1445.

The Court’s Determinations

            Respondent asserts that the admitted violation should be designated as “unlikely” and non-S&S. The Court decidedly does not agree with Respondent’s assessment. Respondent’s argument that the roof was too high for the defective canopy to strike it, absent the mantrip hitting a bump in the supply road, avoids the testimony that the road would have such bumps and that ribs can be a source of contact as well. There is also the possibility that roof could fall and strike the man trip; it is not simply an issue of the mantrip itself striking the roof.

            With the violation admitted, the second Mathies element, is the discrete safety hazard that the defective canopy may become completely dislodged from its broken welds, subjecting those ten or so miners in the mantrip to injury. Such an event could occur from the man trip’s canopy striking a rib, or the roof, or from a roof fall. While the Respondent submits that striking the roof is extremely remote, due to its height relative to the canopy height, that view ignores the fact that the canopy, which was already significantly compromised at the time it was observed by the Inspector, had been striking at least one of those contact sources, as evidenced by the 6 broken welds and the 2 bent posts. Certainly, it is no stretch to find that there was a reasonable likelihood that an injury would result. The canopy’s multiple defects made it ripe for either the canopy itself to injure any one of the multiple miners riding the mantrip or for it to fail to provide its intended protection from a roof fall. Given those factors, the last element, that any injury would be a reasonably serious one is obvious. Each of the Mathies factors, as found by the Court, were amply supported by the testimony of Inspector Hargrove as well.

            Having found that the violation was clearly S&S, the Court next finds that Highland’s negligence was, at a minimum, moderate. The condition was immediately obvious based on the bent posts alone. Further, it did not require any discerning assessment to realize that 43% of the posts had defective welds. No one could legitimately suggest that welds don’t matter. Undeniably, the broken welds meant that the posts were not properly attached to the mantrip frame. Given the obvious nature of the multiple defects, the negligence on Highland’s part in not attending to these problems is disconcerting.

            Based on the foregoing discussion and findings and considering all the statutory criteria, the Court imposes a civil penalty of $4,500.00 for this violation.

Citation No. 8501103, citing 30 CFR § 75.370

            Inspector Archie Coburn testified about this Citation, which was issued on July 29, 2010. Exhibits P 52 and P 53. The cited section, 30 CFR § 75.370, entitled, “Mine ventilation plan; submission and approval,” provides: “(a)(1) The operator shall develop and follow a ventilation plan approved by the district manager. The plan shall be designed to control methane and respirable dust and shall be suitable to the conditions and mining system at the mine.”

            Inspector Coburn was at Highland on that occasion to conduct an EO2 inspection, which refers to a 10 day methane liberation spot inspection. Tr. 1321. He was with the mine’s Brad Carlisle and Steve Culver. Coburn had started on the intake side of the number 9 entry and worked his way across the unit. Thus, he was traveling the crosscut between the number 1 and the number 2 entry and he then started up the number 1 entry, moving behind the line curtain. It was at that point that he could see the methane mark, that is to say, the readout on the continuous miner. Thus, he was able to see the machine’s methane reading. It was then that he observed that the methane monitor on the continuous miner was going up to 1 percent and then to 2 percent. Tr. 1322-1323. The continuous miner was operating at that time, making a cut of coal.

            As noted, Coburn, seeing the readout, saw that the monitor was in excess of 1 percent and that the warning light was flashing. He noted that the miner operator made eye contact with him and that the miner operator then started walking towards him. It was then that Coburn observed the monitor go in excess of 2 percent. The light also came back on and a he saw a reading of 1.9 percent and that the level was then starting to go back down. Tr. 1323. The monitor, or “sniffer” as it is called, flashes as soon as a 1 % reading is made. Tr. 1324.

            It was the Inspector’s testimony that once the Inspector and the continuous miner operator made eye contact with one another, the operator stopped the continuous miner and began walking outby to check and adjust the backup curtains. Tr. 1327. Unless properly adjusted, there will not be sufficient air behind the line curtain. Tr. 1328. Methane can ignite at a level as little as 1 % when there is also coal dust in suspension and a spark occurs. Tr. 1329. Accordingly, the Inspector advised that, when methane reaches 1%, corrective action is required and mining has to stop. Ventilation may need to be adjusted or other steps taken to reduce the methane level. Tr. 1330. Here, Coburn cited the operator for insufficient air (i.e. an insufficient level of ventilation, which is measured in cubic feet per minute or “CFMs”). At least 5,000 CFMs are required behind the line curtain under Highland’s ventilation plan but Coburn found there was only 3,605 CFM at the time of the violation. Tr. 1331 and P 19 the mine’s ventilation plan, at page 6. Coburn stated that an experienced miner operator will notice such a diminished amount of air. Tr. 1333, 1336.

            Coburn reiterated that he noticed the methane monitor flashing at 1.3 % and it was then that he made eye contact with the miner operator. That continuous miner operator then stopped his machine and came towards the Inspector. Tr. 1337. Coburn’s concern was a methane ignition and he believed that, at a minimum, there was a risk of burns should that event have occurred. The miner operator and the shuttle car driver would be the individuals potentially affected by such an event. Tr. 1337. Coburn listed the negligence as moderate. Tr. 1338. Of significance, the Inspector noted that the miner operator never volunteered his air readings to him. Thus, the operator never protested that he had sufficient air present. Instead, the operator told Coburn he “couldn’t recall” how much air he had. Tr. 1339. The Court views both of these unchallenged statements by the Inspector to be probative. The Inspector also marked it as “S&S” because of methane underneath the head, and because there was coal dust where they were mining, so that if an ignition were to occur, burns would be the minimum result. Tr. 1340. The condition was abated by tightening all the backups and extending, that is, moving the curtain by extending it out. Tr. 1340. After those corrective actions were taken, Coburn took another reading and recorded 5,512 CFMs. Tr. 1341.  

            Although Respondent’s Counsel suggested that the miner operator was just about to correct the problem at the moment the inspector arrived, the Court, upon weighing the credibility of those who testified on the issue, finds that was not the case here. As Coburn expressed the events, which recounting the Court finds to be the more accurate version, when the Inspector and the miner operator made eye contact with one another, the continuous miner’s warming light was flashing, and based upon Coburn’s interpretation of the miner’s reaction, he concluded that the operator knew things weren’t right and he was then fixing it because of the Inspector’s arrival. Tr. 1354. Nor, as noted earlier by the Court, did the miner make any protest to the Inspector, such as contending that he was already attending to the issue when the Inspector arrived. Such a non-reaction is at odds with the Inspector’s experience when a miner genuinely did not know that the air was insufficient. Accordingly, the key point here is that it was only when the miner operator saw the Inspector that the miner stopped his machine and then began coming towards the Inspector. Tr. 1358.

            Carroll Browning testified for the Respondent regarding this matter. Mr. Browning has a long career in coal mining, and he has a mine foreman certificate. Tr. 1362. He stated that they had brought the continuous miner over to the number 1 entry and had set it up. The miner was then going to cut 40 foot of coal from that entry. Tr. 1362-1364. He found no methane problem during the set up and he obtained an air reading of 5,100. The curtain, bringing fresh air, is to be extended within 10 feet of the face. Tr. 1366. It seemed that Browning’s action in testing the air was not part of his routine duties as, when asked why he took the measurement, he stated: “I was just trying to help the man out and I wanted to make sure everything was right.” Tr. 1367. He then added, when prompted by a follow-up question, that he does that sort of thing all the time. The reading, he stated, was 5,100 CFM. Accordingly, Browning stated that he had adequate air present. Following that process, Browning stated that he then attended to other matters, as he is responsible for 13 to 18 people. Browning asserted that only 10 to 15 minutes of mining had occurred before the citation was issued. Tr. 1369. He became aware of this because he did not hear the cars moving, so he knew they were not hauling coal. Tr. 1369. When the miner operator told Browning there was insufficient air, Browning asserted that he knew there was sufficient air because he had just taken a reading. Tr. 1370. In the short period between his reading and the Inspector’s arrival, Browning asserted that a car had torn part of wing curtain down and a backup curtain had also come down. Tr. 1370. The miner operator told him that he knew the monitor was blinking and that he then shut the miner down went to investigate the source of the air interruption. Tr. 1371. Browning did not believe that the miner operator was the type of individual who would continue operating the miner when the methane light was blinking. As noted, that light will start to blink at 1% methane. As Browning asserted that it takes time to correct a problem and that it was being addressed as soon as it was discovered, he believed that there should not have been a citation issued and certainly that it was not an S&S matter. However, he did concede that it is not a safe practice to run a continuous miner with less than the minimum air required under the ventilation plan and that if the air is less than the minimum and one gets a bleeder or gas, “it could blow up.” Tr. 1377-1378.

            Brad Carlisle also testified about this Citation. At that time Carlisle was employed in the safety department. Tr. 1390. On July 29, 2010, he was accompanying Inspector Coburn and the two had just started making their way across the faces on the right side entry, as one looks inby. Tr. 1391-1392. Carlisle stated he was with Coburn the entire time of the inspection. As they came to the number 1 entry they “looked in the entry and the first thing we saw was the miner methane readout, noticed it was flashing. And I believe the readout was saying 1.1 was the first thing we saw.” Tr. 1394-1395. Carlisle contended that he then saw the miner operator walking out, towards them, “probably halfway between us and the miner.” Tr. 1395. It was Carlisle’s belief that the miner operator was reacting to the methane monitor reading, not to the presence of the Inspector and him. Tr. 1396. Carlisle also maintained that the miner operator was not coming towards them but rather was coming towards the wing curtain to check it. Tr. 1397. As with the foreman Browning, Carlisle believed there was no violation because the mine had followed the correct procedure and took immediate steps to correct the problem once it had been detected, which all happened to coincide with the inspector’s arrival at the scene. Carlisle also contended that the scrubber’s operation would mean that the operator probably would not notice the change in the air, as that device draws air itself. Tr. 1403. However, Carlisle did admit that he observed the methane detector reach 1.9% and he conceded that he has never run a continuous miner and therefore did not know about a miner’s ability to detect changes in the amount of air flowing during the operation of a continuous miner. Tr. 1409.

Contentions of Counsel

            While conceding that the standard was violated, Respondent contends that the insufficient air flow did not last long, that it was abated in four minutes and that it was caused by the curtain being inadvertently hit by a shuttle car. R’s Br. at 22. Respondent maintains that the condition should be found to be non S&S, with the gravity listed as “unlikely.” Respondent notes that methane levels at 1.5 to 2 percent may be explosive and that Inspector Coburn’s assertion on that did not take into account the other factors which need to be present for an explosion to occur.

            On that basis, Respondent urges that the Secretary failed to show that there was a reasonable likelihood that there would have been an ignition or an explosion. It submits that, if it were true that a methane ignition is reasonably likely to occur at 1.5 to 2 percent levels, MSHA would not let equipment operate in those circumstances. Respondent adds that a 1.5% level is the lowest possible level for a methane ignition to occur, and for that to occur there must be coal dust present, combining with that methane level. However, Respondent simultaneously notes that the continuous miner shuts down automatically at a methane level of 2 percent. R’s Br. at 23.

            Respondent lists other factors it views as reducing the likelihood of an ignition occurring in this instance. These include that: the violation occurred in the summer, a time when dust levels will be less because of higher humidity during those months; that there is no indication in the record that the water sprays were malfunctioning; and that there is no record of the presence of any other combustible gases. R’s Br. at 24. This decision has already discussed the proper parameters to consider in determining if a violation is or is not S&S. Respondent also contends that citation should reflect “low negligence” because Inspector Coburn’s “eye contact” assertion is dubious.

            As discussed, additional testimony was taken on this Citation on October 9, 2012. At that time, Mr. Browning testified that he checked the air before the continuous miner operator began running his machine and that he obtained a reading of 5,100 cfm. However, the Secretary points out that this claimed reading did not surface until the hearing and Inspector Coburn confirmed that no one informed him of that claimed reading when he issued his citation. Sec. Reply at 2. Regardless of whether the Court buys into the Respondent’s claimed air reading, the Secretary contends that it changes nothing in terms of the admitted fact of violation, nor the evaluation of the gravity or negligence, as the Inspector saw the continuous miner being operated while the methane monitor was showing 1.3 to 1.4 percent, and then rising to over 2 percent when the machine was shut off. In addition, air movement was recorded at 3,605 cfm, not the required 5,000 cfm. Id.

            The Secretary also maintains that the Inspector’s concern over a methane or coal dust ignition is in accord with MSHA’s policy. Just as the Inspector expressed that methane above 1% is a concern, so too MSHA’s policy requires corrective actions when that level is reached. Sec. Reply at 3. The Secretary asserts that, given the conditions found by Inspector Coburn, his S&S designation was appropriate. Those conditions consisted of the methane monitor flashing while the continuous miner was running, and a methane monitor reading of 1.3 to 1.4 percent. Importantly, the Inspector testified that the miner operator only shut off his machine when he appeared in the entry.

            As noted, Respondent concedes the violation. Its dispute is over the S&S and “moderate negligence” designations. The continuous miner operator, Mr. Shepherd, stated, during his October 9, 2012 testimony, that he turned the machine off “within a second or so” after his methane monitor began flashing and that action was not prompted by the Inspector’s arrival at his work location. While both the Inspector and Mr. Shepherd agreed that a miner operator will sense when air flow has dropped, the miner testified that he felt no such change on the day in issue. Instead, Mr. Shepherd maintained that in that instance he only knew there was an air flow issue because the methane monitor was triggered. R’s Reply at 3. Respondent also points to the testimony of Carroll Browning that he had measured the air flow before Mr. Shepherd began his work operating the continuous miner and found it to be fine, at 5,100 c.f.m. Instead, Respondent traces the air flow shortage to the ventilation curtain which was accidentally torn down.

            The Court agrees that this admitted violation was S&S and that Highland’s negligence was moderate. Applying the remaining Mathies criteria, the discrete safety hazard was the risk of an ignition at this highly gassy mine. The foregoing discussion eliminates the need for any further discussion of this element. The remaining two elements of Mathies need only the briefest of mention. An inadequate level of air, escalating methane levels, and a continuous miner in the process of mining coal cannot be construed as anything less than a conclusion that there was a reasonable likelihood that the hazard contributed to will result in an injury. Should an ignition have resulted, it is an ineluctable conclusion that there was a reasonable likelihood that a reasonably serious injury would result.

            In terms of the degree of negligence associated with this violation, the Court agrees that the continuous miner operator should have been aware of the low air level and that action was not initiated to address the flashing methane detector until the Inspector arrived. Upon consideration of the statutory criteria, the Court imposes a civil penalty of $1,657.00 on Highland for this violation.

Citation No. 8497413, citing 30 C.F.R. §75.370(a)(1)

            Inspector Coburn cited Highland for this alleged violation on September 21, 2010. Tr. 1226, Ex. P 46 and P47, the notes associated with the Citation. While traveling belt lines, the Inspector found a roller head spray not operating, although coal was running. The cited provision is part of the mine ventilation plan and that provision was discussed earlier in this decision. The water was not running, as it is supposed to be, and it was determined that the cause was simply that the valve had been turned off. Tr. 1228. Thus, there was no defect that had not been corrected. The water is applied to reduce the amount of dust as the coal runs on the belt. Under the ventilation plan, sprays are required at belt transfer points. Tr. 1242. The Inspector considered the violation to be S&S because the belt was running and that creates friction sources and respirable dust is generated. Coburn stated that belt examiners and shovelers would be exposed to such dust. He also asserted that the coal dust presented a possibility of an ignition source. Tr. 1236. In terms of any health hazard presented by such dust as would be present because of the absence of the water spray, the Inspector stated that this mine does not have miners assigned to man their headers, so exposure would be limited. Coburn concluded that the examiner had not yet reached the cited area. Tr. 1238. The Inspector added that it is the belt examiner’s responsibility to make sure that the sprays are working when he makes his examination. Abating the condition took the few minutes to simply turn the water valve on. Tr. 1240.

            The Respondent concedes the violation but challenges the S&S designation. The Inspector agreed that the violation did not occur as the result of any neglect or lack of repair on the mine’s part. Rather, it was simply a failure to turn the water spray valve back on. Tr. 1243. The condition lasted for about 2 hours but, again, the belt examiner had not yet arrived at the location where the valve had not been turned back on. Importantly, Inspector Coburn advised that no miners would have been exposed to any dust in the two hour period involved because no miners would have walked in that area during that period of time. Tr. 1243. Further, the Inspector did not assert that anyone missed the problem in the time preceding the citation. Thus, there was no suggestion that the problem should have been detected earlier and was simply ignored. The Inspector also affirmed that there were no other problems present such as stuck rollers or a misaligned belt. Tr. 1248.

            The Court concludes that the violation was not S&S in this instance. This is because of several factors. First, there was no reasonable likelihood that the hazard would result in an injury. The Inspector testified that there would be no exposure, at least through the time of exposure, and that a belt examiner, performing his job, would have recognized the problem and corrected it with the simple process of turning the non-defective valve back on. Accordingly, under normal mining operations the problem would have been detected and corrected on the spot. With no reasonable likelihood that the hazard would result in an injury, one does not reach the reasonably serious injury issue.

            Upon consideration of the evidence of record and the statutory penalty factors, including the conclusion that the gravity was “unlikely” and the negligence “low,” the Court imposes a civil penalty of $100.00 for this non S&S violation.

Civil Penalty Assessments

            Citation No. 8497415, and Citation No. 8497416 are found to be S&S, and of moderate negligence. A civil penalty of $400.00 is assessed for each violation.

            Citation No. 8497715 was not S&S nor was the negligence moderate. The negligence was low. A civil penalty of $100.00 is assessed.

            Citation No. 8501059 was S&S and the associated negligence was moderate. A civil penalty of $4,496.00 is assessed.  

            Citation No. 8501103 was S&S and Highland’s negligence was moderate. A civil penalty of $1,657.00 is assessed.

            Citation No. 8497413 was not S&S, and the negligence was low. A civil penalty of $100.00 is assessed.

ORDER

            Within 40 days of the date of this decision, Highland Mining IS ORDERED to pay a civil penalty in the total amount of $7,153.00 for the violations identified above. Upon payment of the civil penalty imposed, this proceeding is DISMISSED.

                                                                                                                                         /s/ William B. Moran

                                                                                                                                         William B. Moran

                                                                                                                                         Administrative Law Judge

Distribution (E-mail and Certified Mail)

Brian D. Mauk, Esq., Rachel E. Levinson, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219-1823.

Jeffrey K. Phillips, Esq., Steptoe & Johnson, 1010 Monarch Street, Suite 250, P.O. Box 910810, Lexington, KY 40591-0810