FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave., N.W., Suite 520N

Washington, DC 20004-1710

June 13, 2013

DECISION

Appearances:  Bryan R. Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor;

Jason W. Hardin, Esq., Fabian & Clendenin, Salt Lake City, Utah, for American Coal Company.

Before:            Judge Zielinski

            These cases are before me on Petitions for Assessment of Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The seven petitions originally set for hearing alleged that The American Coal Company (“AmCoal”) is liable for 141 violations of the Secretary’s Mandatory Safety Standards for Underground Coal Mines, and proposed the imposition of civil penalties in the total amount of $461,580.00. Prior to the hearing, the parties settled 130 of the violations for which a total of $260,169.00 in penalties had been assessed. The settlement included 53 of the 56 violations in LAKE 2011-183, and all violations in LAKE 2010-835, LAKE 2011-243, LAKE 2011-590 and LAKE 2011-702. A Decision Approving Partial Settlement ordering AmCoal to pay penalties in the amount of $177,414.00 was entered this date.

            A hearing was held in Evansville, Indiana on the remaining 11 violations, and the parties filed briefs after receipt of the transcript. In the course of the hearing, the Secretary vacated Citation No. 8423569 in Docket No. LAKE 2011-183. Tr. II 82. Remaining at issue are 10 violations for which the Secretary has proposed penalties in the amount of $187,811.00. For the reasons that follow, I find that AmCoal committed nine of the violations, and impose civil penalties in the total amount of $18,500.00.

Findings of Fact - Conclusions of Law

            At all times relevant to these proceedings, AmCoal operated the Galatia Mine, an extremely large underground longwall coal mine, located in Saline County, Illinois. Underground coal mines must be inspected by the Secretary’s Mine Safety and Health Administration (“MSHA”) four times each year. The citations litigated by the parties were issued during inspections of the mine in July, August and September of 2010.

Citation No. 8424040 (LAKE 2011-184) 

            Citation No. 8424040 was issued by MSHA inspector Wendell Crick at 10:45 a.m. on August 30, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1712-3(a), which requires that “bathing facilities, change rooms, and sanitary toilet facilities shall be provided with adequate light, heat, and ventilation so as to maintain a comfortable air temperature and to minimize the accumulation of moisture and odors, and such facilities shall be maintained in a clean and sanitary condition.” The violation was described in the “Condition and Practice” section of the citation as follows:

The bath house facility located at the plant area has not been maintained in a sanitary condition. Upon inspection, mold, dirt, and garbage was found on the floors and walls of the facility. The two shower rooms have mold on the floors and walls. One of these shower rooms is used by management personnel on a daily basis.

Ex. G-16.  

            Crick determined that the violation was reasonably likely to result in a lost workdays or restricted duty injury, that it was significant and substantial (“S&S”), that 10 persons were affected, and that the operator’s negligence was high. A regularly assessed civil penalty in the amount of $15,570.00, was proposed for this violation.

The Violation

            Crick was conducting a regular quarterly inspection of the surface areas of the Galatia mine, when he visited the building housing the bathhouse, locker room, and lunch room facilities for the preparation plant. He arrived at the bathhouse shortly after 10:00 a.m., and was accompanied by Michael Smith, an AmCoal safety representative. The building in question contained a lunchroom, a large shower room used by rank and file miners, a locker room, offices, and a smaller shower room across a hallway used by foremen and other supervisory personnel. The facilities were used by 20-30 miners, or more, depending on the number working a particular shift. Miners whose shift was ending would enter the facility, discard their soiled clothing, take showers, don clean clothing and leave. There was a boot wash station near the entrance that men were encouraged, but not compelled, to use. Presumably, miners also ate their lunches in the lunch room. Foremen moved through the area, providing work assignments to miners starting their shifts, and, occasionally, used the larger shower room.

            Crick observed a number of conditions that led him to conclude that the facility was not being kept in a clean and sanitary condition. Dirt, clay, gravel and black coal residue, had been tracked into the facility, covering a large portion of the floor in the locker room and extending into the lunch room. Tr. I 27. Crick observed boot prints in the dirt on the floor leading into the locker room, but did not observe footprints in the shower area. Tr. I 28. The floor in and near the large shower room was washed clean. He conceded that some tracking of dirt could be expected, but not to the extent of covering the floor. Tr. I 59. Trash and garbage overflowed several containers in the lunch and locker rooms, and had been pushed to the side of walkways.

            Crick also observed a black substance, that he believed was mold, on the walls and floor of the main shower room. The shower room was fairly large, approximately 15 x 20 feet, with multiple shower heads mounted on towers rising from the painted concrete floor. The walls were faced with white ceramic tile that extended down close to the floor. There was a course of concrete block between the tile and the floor. The black substance was on the walls, in the grout between the tile, and on the more porous concrete block and mortar around the base of the walls. Tr. I 28, 82. Although Crick did not test the substance, he believed that it was mold based upon training films he had seen; he stated “I know what mold is.” Tr. I 47. Crick saw no evidence that cleaning had been done in the recent past. Tr. I 35.

            Smith, who had retired prior to the hearing, confirmed the presence of the black substance, but disputed that it was mold, noting that miners ending their shift had black coal dust on their clothing and faces, and there was black particulate matter on the floor of the shower room, partially washed down into the drains. Tr. I 73-75. Smith also believed that the dirt on the floor was nothing more than what would normally be expected after a large group of dirty miners cleaned up after a shift. He explained that there were three locker/shower facilities at the Galatia mine, and that each was cleaned after every shift change. The larger facility, at the New Era portal, was cleaned first, followed by smaller facilities, including the prep plant. Since it was just after 10:00 a.m., the prep plant facility had not yet been cleaned after the shift change that had occurred 2-3 hours earlier, which largely explained the condition of the facility.

            Crick was very familiar with the Galatia mine, including the prep plant, having inspected it over a three-year period beginning in August 2007. Tr. I 16, 29. He had warned AmCoal officials about conditions in the bath facilities on prior occasions. Tr. I 30, 51. Because of the extent and nature of the conditions, he believed that they must have occurred over “a considerable amount of time;” mold “just doesn’t happen overnight.” Tr. I 31, 45. I find that the conditions represented a build-up of dirt and trash that occurred over more than one shift change. I also find, based on Crick’s experience and training, that the black substance on the walls in the shower room was mold, and that the bathing facilities and change room were not maintained in a clean and sanitary condition. The standard was violated.

Significant & Substantial

            The Commission reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65 (Oct. 2011):

            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:

 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 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984).

                        . . . .

                        . . . .

            The Commission recently discussed the third element of the Mathies test 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, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission concluded that the Secretary had presented sufficient evidence that miners who broke through into a flooded adjacent mine would face numerous dangers of injury. Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

            I have found a violation of a safety and health standard. It contributed to hazards, a slip and fall hazard and exposure to mold that Crick believed could lead to infection. Whether the violation was S&S turns on whether an injury or illness was reasonably likely to result from the hazards contributed to and whether it would have been reasonably serious.

            Crick believed that the primary hazard contributed to by the conditions was the health hazard presented by the dirt and mold. His concern was a “staph[ylococcus] infection . . . any type of infection” that could “lead to amputation of a finger or hand . . . if it’s not stopped in time.” Tr. I 32-33. He posited that men in the shower, who could have cuts on their hands or feet, could brush up against the walls, and “that mold and stuff gets in their hand and it could be infected . . . reasonably likely they are going to have to receive medical treatment.” Tr. I 34. Crick was somewhat circumspect in supporting his infection theory. He testified that he had seen training films that linked mold to staph infections, but could not state when or where he had seen them. Tr. I 55-57. He related that as a volunteer firefighter, a first responder, he was trained to assume that everyone was contagious, and to take precautions if he suffered a cut in moldy, dirty or rusty conditions. Tr. I 33-34. In the course of his training, he had “seen several times things that become these types of infections.” Tr. I 34.

            Both parties rely on materials discussing potential health hazards presented by mold. The Secretary introduced an article titled, Facts about Mold and Dampness, published by the Center for Disease Control and Prevention. Ex. G-17. It notes that a 2004 study by the Institute of Medicine (“IOM”) “linked” indoor exposure to mold with “upper respiratory tract symptoms, cough[ing], and wheeze[ing] in otherwise healthy people; with asthma symptoms in people with asthma; and with hypersensitivity pneumonitis in individuals susceptible to that immune-mediated condition.” Id. at 1. The document also notes that the IOM found comparable linkage to such symptoms from “exposure to damp indoor environments in general.” Id. at 1. AmCoal relies on guidelines published by the World Health Organization in 2009, which are referenced in the CDC document. Ex. R-66. It notes that the guidelines show that the IOM reviewed a number of mold-related studies and concluded that there was not “sufficient evidence of a causal association” between the presence of mold and any adverse health effects. Id. at 67-68. The WHO guidelines concluded that the “epidemiological evidence is not sufficient to conclude causal relationships between indoor dampness or mould and any specific human health effect.” Id. at 89. AmCoal contends that other materials support the WHO conclusions. Ex. R-64, R-65. A report from the American Industrial Hygiene Association, entitled “Facts About Mold,” notes that “most people have no reaction when exposed to molds,” and that “small amounts of mold growth in workplaces or homes (such as mildew on a shower curtain) are not a major health concern.” Ex. R-65 at 3. A publication by the Occupational Safety and Health Administration, “Preventing Mold-Related Problems in the Indoor Workplace, OSHA 3304-04N 2006, contains similar conclusions, i.e., most people experience no health effects from exposure to molds in indoor or outdoor air, and that the most common health effects associated with mold exposure include allergic reactions similar to common pollen or animal allergies.

Ex. R-64 at 9.

            None of the materials submitted suggest a relationship between mold and a bacterial staph infection. The available information with respect to the subject of health effects posed by the presence of mold, which is likely a complex subject, suggests that exposure to mold, or the damp environs of the shower room, would be unlikely to produce adverse health effects, at least in healthy individuals. Also to be considered is the relatively short-term exposure of miners, who would most likely be in the shower room for only a few minutes each day.

            Based upon the foregoing, I find that the Secretary has failed to prove, by a preponderance of the evidence, that the hazards contributed to by the violation were reasonably likely to result in an injury or illness of a reasonably serious nature. The violation was not S&S. I find that an injury or illness resulting in no lost work days was unlikely to result to one person.

Negligence

            Crick rated AmCoal’s negligence as high because there was at least some mold in the foremen’s shower room, and he concluded that the conditions in the facility had existed for a considerable period of time, such that they should have been observed by management personnel who frequently moved through the area. In addition, he had provided at least one warning to keep such facilities clean during a previous inspection, although he could not remember when that warning was given. Tr. I 30, 50-51. He had also issued a citation for unclean bathhouse facilities, as had other inspectors. Crick testified that at least one such citation was issued on June 7, 2009, but it does not appear on reports of previous violations introduced by the Secretary. Tr. I 37-39; Ex. G-28, G-30. The Secretary’s “R-17" report of violations that became final from January 14, 2009 through April 13, 2010, lists four non-S&S violations of section 75.1712-3(a), which were issued on April 25, 2007, October 17, 2007, February 28, 2008 and November 9, 2009. Ex. G-28.

            The violation history provided some notice to AmCoal that attention was needed to cleaning of bathhouse facilities, as did Crick’s prior warning. However, the violations of record were not S&S and were spaced out over a considerable period of time, such that any notice to AmCoal of a need for greater compliance as of August 2010 was not as indicative of culpability as more recent violations or warnings would have been. While I have found, as Crick asserted, that the conditions had occurred over more than one shift, there can be little question that a considerable portion of the dirt and trash was the result of the third shift’s use of the facility. The third shift’s contribution would have been present at 10:45 a.m., because cleaning would not have occurred until later, after the New Era facilities had been cleaned. The mold, possibly mildew, would most likely have been present for a longer period of time, and could have been observed by supervisory personnel who frequented the area, but who most likely would have spent the majority, if not all of, their time in the lunch room and changing room.

            Considering these factors, I find that AmCoal’s negligence with respect to this violation was moderate.

Citation No. 8424958 (LAKE 2011-183)

            Citation No. 8424958 was issued by MSHA inspector Bernard Reynolds on July 14, 2010. It was issued pursuant to section 104(a) of the Act and alleges a violation of 30 C.F.R. § 75.202(a), which 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.” Ex. G-32. Reynolds determined that the violation was reasonably likely to result in a lost workdays or restricted duty injury, that it was S&S, that one person was affected, and that the operator’s negligence was moderate. A specially assessed civil penalty in the amount of $7,700.00, was proposed for this violation.

            AmCoal withdrew its contest to the violation and the special findings. Tr. II 41. It challenges only the amount of the penalty. The area in question was located at the shaft bottom, where the elevator discharged and picked up all men and material entering and leaving the mine through the New Future portal. It was adjacent to a brow that had most likely been created by a fall of about 4 feet of material. Reynolds noticed that the roof bolts in an area that measured 6 x 6.5 feet, from competent bolt to competent bolt, were not supporting the roof. The bearing plates on the bolt heads were no longer in contact with the roof. The bolts were “torque - tension, double lock” bolts, generally six feet long, but may have been up to 8 or 9 feet long. Such bolts are anchored with a locking device on the upper end, that is reinforced with resin. The torqueing of the bolt, compresses the bearing plate against the roof, squeezing the roof layers together. If the plate is not in contact with the roof, no roof support is provided, and the bolt is little more than steel rod sticking down through a hole.

            The unsupported area was relatively small, encompassing only 39 square feet. Reynolds confirmed that just one competent bolt, properly positioned in that area, could have satisfied the requirements of AmCoal’s roof control plan. Tr. I 112-13. However, there were 10-12 damaged bolts in the area, many more than were required under the plan. Some additional bolts may have been installed to provide support for the brow created by the previous roof fall. They could also have been replacements for bolts that had been damaged. An incident of damage by mobile equipment typically does not involve more than one bolt. Tr. I 107. Since damaged bolts are not removed, it is likely that the bolts were damaged in a series of incidents, over a considerable period of time, e.g., a bolt might be damaged, a new bolt would be installed to provide required support, the new bolt might then be damaged, and another bolt would be added, and so on. Tr. I 110, 114-15.

            While AmCoal has withdrawn its contest to the fact of violation and the special findings, it is unfortunate that the status of the damaged bolts remains unknown, i.e., whether they all had been required to support the brow, or had been added periodically to substitute for damaged bolts. Considering the number of damaged bolts, it is highly likely that they were damaged in a series of incidents. If they were substitute bolts, inadequate support would have existed only from the time that the last-installed substitute bolt was damaged. If they were all required to support the brow, the roof would have been inadequately supported from the time the first bolt was damaged, and the inadequacy of the support would have grown as successive bolts were damaged. Reynolds’ assessment of gravity does not appear to have been based on the more serious scenario.

            Reynolds testified that the area was between two busy areas of the mine, the main maintenance shop and the rock dust bore hole, such that miners had “plenty of reason” to go through the area. While he was inspecting the area and issuing the citation, miners on two golf carts attempted to drive through it. However, he indicated in his notes that “most day-to-day traffic bypasses the area,” and stated that he had not seen equipment staged in it. Tr. I 117; Ex. G-32.

            Reynolds rated AmCoal’s negligence as moderate because the condition was obvious, had occurred over several shifts, and should have been seen by a preshift examiner. He did not feel that the violation was one that “glares at you,” to justify a determination of high negligence, and tends to rate negligence as “moderate” if the question is close. Tr. I 108. He also agreed that the condition most likely was created by a series of events that occurred over a period of time, and that he could not determine when any of the bolts had been damaged. Tr. I 114-15. If, as Reynolds noted, the majority of incidents of equipment damage to bolts involve one bolt, and the overall condition was created by a series of such events, then to portray the violative condition as 10-12 damaged bolts could be misleading. In fact, there could have been a substantial number of damaged bolts in that area for some time, and the roof would have been adequately supported as long as one properly positioned bolt remained competent. Damage to that one competent bolt would have created a violative condition, and AmCoal’s culpability would be measured not by its failure to observe a large number of damaged bolts, no doubt a well-known condition, but that there was no longer a bolt providing support, i.e., the last-installed replacement bolt had been damaged, and there is no evidence as to when that may have occurred. Considering that the damage may well have occurred prior to the last preshift examination, approximately 2 to 5 hours earlier, and that an examiner should have paid close attention to what was obviously a problematic area, Reynolds’ assessment of moderate negligence appears conservative.

Citation No. 8427602 (LAKE 2011-184)

            Citation No. 8427602 was issued by Reynolds at 1:00 p.m., on August 30, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1720(a), which requires that miners wear “[p]rotective clothing or equipment and face-shields or goggles when welding, cutting, or working with molten metal or when other hazards to the eyes exist from flying particles.” The violation was described in the “Condition and Practice” section of the citation as follows:

A miner was observed cutting steel anchoring rods with an oxygen/acetylene powered cutting torch, without wearing protective cutting goggles designed for this job. This condition existed at the belt drive pad for the 1WHG unit on 6 seam at the New Future portal.

Ex. G-22.

            Reynolds determined that it was reasonably likely that the violation would result in a permanently disabling injury, that the violation was S&S, that one person was affected, and that the operator’s negligence was high. A regularly assessed civil penalty, in the amount of $5,961.00, was proposed for this violation.

            AmCoal does not challenge the fact of the violation. It disputes the gravity and negligence allegations and the amount of the penalty.

S&S

            The fact of the violation has been established. The miner was wearing ordinary safety glasses, rather than goggles designed for use when cutting metal with a torch. The violation contributed to a discrete safety hazard, an increased risk that a piece of molten metal, or a spark, would contact his eyes and cause injury. Any such injury would be serious. Consequently, whether the violation was S&S turns on whether it was reasonably likely that the hazard would result in an injury.

            Reynolds was accompanied by Mike Harris, at the time AmCoal’s safety director at the New Future portal. They proceeded to the area of the first west headgate on the 6 seam, which was being prepared for mining. A large concrete pad had been poured to serve as a foundation for the belt head drive. In order to keep the pad from moving, 3/4 - inch steel rods were inserted into the mine floor and were grouted in, similar to roof bolts. They extended from 1 to 2 feet above the pad.

            As Reynolds and Harris approached the area, a miner, Harley Partridge, had his back to them, and was using an oxygen/acetylene torch to cut the rods off, flush with the pad. He noticed the light from their cap lamps as they approached, and turned to greet them. It was apparent that he was wearing regular safety glasses, not appropriate cutting goggles, and Harris reminded him that he needed his goggles. Tr. II 69. Partridge went to his supply bag to get his goggles, but they weren’t there. He indicated that they had been there that morning. The hoses to the torch were disconnected, until proper cutting goggles could be obtained, and Reynolds issued the subject citation.

            The Secretary contends that the safety glasses worn by Partridge were not sealed around the eyes, and that flying debris could blow around them. Cutting goggles, designed for such use, would have had a rubber enclosure that would keep material from coming in from the sides. Consequently, it was reasonably likely that the miner would suffer a serious eye injury. AmCoal argues that the miner’s position, and the combination of his safety glasses and hard hat, furnished protection nearly as effective as cutting goggles, and that an eye injury was not reasonably likely.

            Reynolds described the function of the torch. Acetylene gas is discharged around the periphery of a circular head, heating the metal to be cut. Once the metal is heated to near molten state, oxygen at high pressure is released through a small hole in the center of the torch, blowing the molten metal away in small hot particles, or sparks. Having operated such a torch, he described a process whereby even experienced operators would experience a “pop,” or minor explosion, at the tip of the torch, which “very possibly” could throw molten material back toward the operator. Reynolds had also suffered an eye injury while working on the surface in the 1980s, when a particle of coal was blown by wind into his eye, despite his wearing of “old horned-rimmed” safety glasses that had side shields. Tr. II 47, 60.

            At the hearing, Harris produced a pair of safety glasses, like those worn by Partridge, and a hard hat. He demonstrated that the glasses were “wrap around” style, that left “very little space” on the top, bottom and sides, for any particle or object to pass by. Tr. II 71. The hard hat added to the protection, because its 2 to 2.5 inch bill projected out over the glasses, further obstructing objects that might approach from the front or top. He described cutting goggles as being made of clear plastic, with ventilation holes, similar to “glasses that fit over glasses.”

            Partridge was kneeling and was operating the torch at arms length, pointing it down and away from his face. Tr. II 60-61, 68. It took very little time to cut a rod; Harris estimated about ten seconds. There is no evidence as to how many rods needed to be cut, or how much of the job Partridge had completed before Reynolds and Harris arrived.

Tr. II 76-77.

            There is no question that the safety glasses worn by Partridge provided some protection from bits of molten metal or sparks that were produced by the cutting action of the torch. The Secretary maintains that they did not form a complete seal, such that debris could blow around them. While that statement may be technically accurate, it does not address the size of any gaps, or the likelihood of such an event occurring. Reynolds does not appear to have made an assessment of the effectiveness of Partridge’s safety glasses. He did not record, in the citation or his notes, that safety glasses were being worn, and did not recall at the hearing whether or not Partridge was wearing safety glasses, stating “[w]hatever he had on was clear and not sealed completely around your eyes. There would be ways for flying debris to blow around them.” Tr. 47, 59; Ex. G-22.

            This statement, like the Secretary’s argument, convincingly establishes the violation, but does little to explain why an injury causing event would be reasonably likely to occur. It appears that Reynolds’ evaluation of gravity was based, almost exclusively, on the fact that Partridge was not wearing cutting goggles. It does not appear that he attempted to assess the degree of protection provided by the safety glasses and hard hat. Harris’ demonstration, donning the safety glasses and hard hat, showed that there was no direct path for a particle to strike an eye, and very little space on the bottom or sides for anything to blow by. The torch was directed down and away from Partridge’s face, and actual cutting action was very brief. There is no evidence of significant air movement, like the wind that played a role in Reynolds old injury. While there is no evidence of the number of rods that Partridge had, or would have cut, it was most likely not a large number, and there is nothing to indicate that Partridge would have engaged in other cutting or welding tasks without wearing appropriate goggles. Consequently, the duration of the violation was, and would have been less than five minutes of actual cutting.

            Considering all of the above factors, I find that the hazard contributed to was unlikely to result in a permanent injury, and that the violation was not S&S.

Negligence

            Reynolds evaluated AmCoal’s negligence as high, and recorded the following in his notes:

High Negligence

No operator can be excused from requirement of wearing proper eye protection while cutting or welding. Safety talk given in recent days prior - 4 days earlier - following another citation for same infraction.

Ex. G-22.

            Reynolds consulted MSHA records prior to the hearing and confirmed that another citation alleging a violation of the same standard had been issued a few days earlier. Tr. II 52-54, 62-63. That citation apparently prompted AmCoal to give training, in Reynolds’ words, “demanding from everybody that they be sure and wear their cutting goggles when they are using a torch or welder.” Tr. II 53. This was the thrust of the evidence introduced by the Secretary to establish that AmCoal’s negligence was high.

            No evidence was introduced during the Secretary’s case, that an AmCoal agent was aware, or should have been aware, that Partridge was not wearing cutting goggles while cutting the rods. However, the Secretary elicited, on cross-examination of Harris, that Partridge’s supervisor, the belt foreman, should have checked on his miners once per shift, and, at least when present, should have assured that they were using any required personal protection equipment (“PPE”). Tr. II 78-79. The Secretary concedes that Partridge’s negligence cannot be imputed to AmCoal, but argues that the belt foreman should have checked on him as he began his job to make sure he was wearing cutting goggles, and that his failure to do so justifies a finding of high negligence against AmCoal. This is especially so because the issuance of another citation that same day for failure to wear protective equipment should have put AmCoal on notice that training alone was not sufficient to ensure that miners would wear PPE. Sec’y. Br. at 16-17.

            The Secretary’s argument reaches too far. The belt foreman was responsible for the conveyor belts, which no doubt encompassed a considerable area. Tr. II 76. He was not in the area when the citation was issued, and there is no evidence that he was aware of, or in any way condoned, the violation. Tr. II 73, 76. It would almost certainly have been physically impossible for the belt foreman to have checked on every miner under his supervision as he began an assigned task. That a foreman is required to check on his workforce once per shift, does not suggest anything close to a duty of constant supervision, especially for a foreman with responsibility over a large area.

            The Secretary introduced no evidence to establish that the foreman should have anticipated that Partridge would not wear PPE, for example that he had done so in the past. AmCoal provided required periodic training on use of cutting goggles and other personal protective equipment. Moreover, 4 days prior to the issuance of the subject citation, it provided specialized training on use of PPE, including cutting goggles. This was done in response to a citation that had been issued for a violation of the standard. The recent increased emphasis on the use of PPE, weighs heavily against any argument that the foreman should have anticipated Partridge’s actions.

            Nor was there any evidence that AmCoal had failed to discipline miners who violated the PPE standard. The only evidence as to discipline is that Partridge was suspended for the violation. Tr. II 73-74. AmCoal provided all required safety equipment to miners, and maintained a “cabinet” where such items were available at the start of each shift. Harris had manned the cabinet at the start of the shift on which the citation was issued. Tr. II 74.

            The citation relied on by the Secretary to put AmCoal on notice that its training was insufficient was issued that same morning, at 9:15 a.m., for miners not wearing respiratory protection at the New Era portal, some distance removed from the New Future portal. MSHA inspectors typically type and deliver citations at the end of the inspection day, after coming to the surface. The actual citation was most likely not delivered to AmCoal safety personnel until well after it had been issued. Whether the issuance of that citation should have put AmCoal on notice that miners would disregard the emphasis on use of PPE and risk incurring discipline is debatable. However, having been issued only a few hours earlier than the instant citation, whatever notice it provided could have had no impact on the instant violation.

            I find AmCoal’s negligence with respect to the violation was low to moderate.

Citation No. 7575299 (LAKE 2011-183)

            Citation No. 7575299 was issued by then MSHA inspector James Rusher on July 14, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.517, which provides that “[p]ower wires and cables . . . shall be insulated adequately and fully protected.” The violation was described in the “Condition and Practice” section of the citation as follows:

The energized power cable serving the No. 39 battery charger was no longer adequately insulated and fully protected. There were four rips/holes in the outer jacket which exposed the inner insulated conductors. In one of the tears of the outer jacket, the inner white in color insulated conductor was torn open which exposed the inner energized bare wires. This condition was found in the No. 6 seam bottom shop at the No. 39 battery charger.

Ex. G-1.

            Rusher determined that it was reasonably likely that the violation would result in a fatal injury, that it was S&S, that one person was affected, and that the operator’s negligence was high. A specially assessed civil penalty, in the amount of $47,000.00, was proposed for this violation.

            AmCoal withdrew its contest of the violation and the special findings on gravity. It challenges the negligence determination and the amount of the penalty. Tr. II 82.

Negligence

            Rusher was passing through the No. 6 seam bottom shop, a maintenance shop, when he noticed a knot in the cable supplying 480-volt power to the No. 39 battery charger. He examined the knot, and immediately saw that the outer jacket of the cable had been torn open, exposing the inner conductors. The insulation on the white conductor had been damaged, and he could see the copper conductor itself. The damage was to the top side of the knot, such that a person who might have stepped on it could have been electrocuted. The shop floor was damp, and there were footprints in the area. Miners might have accessed the area for a number of reasons, including to use or inspect the charger, distribute rock dust, or set a roof prop. Consequently, he determined that the violation was reasonably likely to result in a fatality and that it was S&S.

            Rusher evaluated AmCoal’s negligence as high. He explained his rationale as follows: there were “several shop people working there, somebody, including the supervisor, should be checking equipment.” Tr. II 98. The shop repairmen each held electrical cards and were trained to identify hazardous electrical conditions. “[I]t was so easy for me to find . . . the guys that work [there] . . . should have seen that, especially when you think about the time I wrote it . . . 11:45 . . . . Half the shift is over, and they still hadn’t done anything.” Tr. II 98.

            The problem with that analysis is that, with the exception of the passing reference to the “supervisor,” the repairmen were rank-and-file miners, whose negligence cannot be imputed to AmCoal. Tr. II 124-25, See, e.g., U.S. Coal, Inc., 17 FMSHRC 1684, 1686 (Oct. 1995). The operators of the shield movers using the charger and those applying rock dust or setting props would also have been hourly employees. Tr. II 124. As to the shop supervisor, Rusher indicated that he typically would give men instructions near the work bay or the “grease pit,” and the knot in the cable could not be seen from those areas, unless one was specifically looking for it. Tr. II 169-71; Ex. G-, R-77. The supervisor would typically leave to visit production units and then return. Tr. II 125, 169. He was not required to conduct a preshift or onshift examination of the area.

            Electrical equipment, such as the charger, must be examined weekly by a qualified person acting as an agent of the operator. Tr. II 94; 30 C.F.R. § 75.512-2; U.S. Coal, 17 FMSHRC at 1688. The last weekly examination of the charger and its cable occurred on July 11, 3 days prior to the issuance of the citation. Tr. II 141-42; Ex. R-62. The notations in the weekly examination records showed that on the date of the examination, the examiner “put ground cable and clamp on,” indicating that a problem was found and corrected. Ex. R-62. A Battery Charger Permissibility Check List, which guides the examiners, provides that the cable should be checked for damage and/or bad splices, which should have resulted in the discovery of any defects, especially one as obvious as the cited condition. Tr. II 143-44; Ex. R-51. No cable defects were noted on the report of the examination. Ex. R-62.

            The charger is not a stationary piece of equipment; it could be picked up with a scoop and moved to other areas of the mine. Tr. II 87, 155. Rusher opined, on rebuttal, that the charger was routinely located in the maintenance shop, and that it appeared to have been there for “quite a long time.” Tr. II 172-73. While he did not know when the charger had been placed there, from the amount of dust on it, considering that there was not a lot of dust in that area, he was led “to believe that it had been there for quite a while.” Tr. II 173. He agreed that it was “possible . . . but not probable,” that the dust could have accumulated while the charger was in a different location. Tr. 173-74.

            Keith Violett, an AmCoal safety specialist who accompanied Rusher, confirmed that the inner conductors were exposed and that the insulation on the white conductor was damaged such that copper was visible. Tr. II 153. He testified that the white conductor appeared “fairly white” leading him to conclude that “it hadn’t been exposed very long.” Tr. II 130.

            The Secretary argues that the charger was in its location at least since the July 11 electrical examination, that the knot must have been in the cable at that time, that the tears in the cable occurred as the knot was being dragged, i.e., that they existed before July 11, and that the examiner must have failed to examine the cable thoroughly to discover the defect which may have been hidden by the knot. Sec’y. Br. at 19-20.

            While the Secretary’s theory is plausible, it is not persuasive. First, it is not reflected, or even hinted at, in Rusher’s contemporaneous notes, in which his assessment of negligence is based virtually exclusively on the failure of the hourly shop workers to have noticed the obvious hazard and corrected it. Violett and Rusher disagreed on the location of the knot, and the layout of the cable. Violett testified that the knot was near a travelway to the left of the power center and charger, where it may have been damaged by passing equipment. Tr. II 136-38, 146-48; Ex. R-77. Rusher was certain that the knot and exposed wires were in close proximity to the charger, and that the nature of the tear evidenced that it had been caused by the knot snagging on something sharp as the cable

was dragged. Tr. II 103-04, 164-67; Ex. R-77. Accepting Rusher’s description of the scene, the Secretary’s theory requires a finding that the person conducting the weekly electrical examination failed to observe the hazard. The damaged and exposed conductors were clearly visible; not partially hidden as posited by the Secretary. Rusher repeatedly noted that they were easy to see. AmCoal’s records of weekly examinations of electrical equipment establish that the charger was examined on July 11, while it was in the shop, and that a ground cable and clamp were installed.

            I find it highly unlikely that a competent electrical examiner would have failed to notice the obvious tears in the cable jacket, even if he did not carefully examine the cable as he was required to do. The obvious damage to the cable was very close to the charger, and the examiner identified and repaired an apparent defect on the charger. Other explanations for the damage, e.g., that the knot was actually located near a travelway and was struck by a piece of mobile equipment, or that the charger may have been moved after the July 11 exam and returned to the shop prior to the inspection, appear equally, if not more probable.

            I find that the Secretary has failed to prove that AmCoal’s negligence was high, i.e., that it “suggests an aggravated lack of care that is more than ordinary negligence.” Eastern Ass. Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991). I find that AmCoal’s negligence with respect to this violation was moderate. 

Citation Nos. 7575300 and 7575301 (LAKE 2011-183)

            There are very few standards addressing hazards associated with the transportation of men and materials in mines. However, pursuant to section 314(b) of the Act, and the Secretary’s regulations, authorized representatives of the Secretary may issue orders, called “safeguards” to address hazards related to the transportation of men and materials at a particular mine. 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403. The mine operator is obligated to comply with a safeguard, violations of which may subject it to citations or orders issued pursuant to section 104 of the Act. Cyprus Cumberland Res. Corp,

19 FMSHRC 1781 (Nov. 1997).

            Safeguards are issued by individual MSHA inspectors, who do not follow a notice and comment rulemaking procedure. Recognizing the “unusually broad grant of regulatory power” granted to MSHA, the Commission, in Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”), held that “safeguards must be drafted with specificity, so that operators receive adequate notice of the conduct required and the conditions covered by the safeguard.” The American Coal Co., 34 FMSHRC 1963, 1967 (Aug. 2012). While the Secretary’s authority to issue a safeguard is interpreted broadly, the language of a safeguard, which may be issued without consulting with representatives of the operator, must be narrowly construed,. Cyprus Cumberland, 19 FMSHRC at 1785; SOCCO I, 7 FMSHRC at 512.

            Safeguard No. 7568565 was issued at the Galatia mine on August 3, 1998, and provides:

Bottom irregularities, debris in the form of rock that had fallen from the roof, and wet and muddy conditions were present on the mine travelways at the following locations: on the Main East travelway from no. 69 to no. 85 crosscut, on the 6th North travelway from the mouth to no. 28 crosscut, and for the entire 6 North 5A unit travelway, a distance of approximately 20 crosscuts. This Notice to Provide Safeguards requires that all mine travelways be kept as free as practicable of bottom irregularities, debris and wet and muddy conditions that could affect the control of mobile equipment traveling these areas.

Ex. G-3, R-11.

            The validity of Safeguard No. 7568565 was recently upheld by the Commission in a separate challenge by AmCoal, the Commission noting that it has “consistently treated safeguards that specify hazardous conditions and specify a remedy as valid safeguards.” American Coal, 34 FMSHRC at 1969, 1974 (emphasis in original). It concluded that the safeguard specifies the nature of the hazard, “i.e., bottom irregularities, debris, and muddy conditions in a travelway that could affect the control of mobile equipment[,]” and specifies a remedy, “i.e., all mine travelways are to be kept as free as practicable of bottom irregularities, debris, and muddy conditions that could affect the control of mobile equipment.” Id. at 1974.

            Citation Nos. 7575300 and 7575301 allege violations of Safeguard No. 7568565. AmCoal challenges both citations, arguing that a narrow interpretation of the safeguard, under Cyprus Cumberland and SOCCO I, requires that all of the conditions identified in the safeguard be present before a violation can be established, i.e., that there must be bottom irregularities and debris and muddy conditions. Since there is no evidence that debris was present, AmCoal argues that the citations must be vacated. The Secretary counters that AmCoal’s reading of the safeguard is overly strict.

            Any of the conditions addressed by the safeguard could threaten the loss of control of mobile equipment. Under AmCoal’s reading, compliance with the safeguard could be achieved by simply removing as little as one piece of debris from a travelway that was so wet and muddy, with bottom irregularities, that the loss of control of mobile equipment was threatened. The safeguard specified three hazardous conditions, bottom irregularities, debris and wet and muddy conditions, and it specified a remedy for those conditions. Under the safeguard, AmCoal was obligated to keep its travelways as free as practicable from any and all of the three hazardous conditions. The safeguard was issued in 1998 and, until the recent challenge to its facial validity, AmCoal and MSHA apparently did not have widely divergent views on the breadth and scope of the safeguard. AmCoal’s strict interpretation argument, which is directed to Citation Nos. 7575300 and 7575301, is rejected.

Citation No. 7575300

            Citation No. 7575300 was issued by Rusher at 12:38 p.m. on July 15, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1403, and charges AmCoal with violating Safeguard No. 7568565. The violation was described in the “Condition and Practice” section of the citation as follows:

The following condition existed that could adversely affect the control of mobile equipment traveling through the area of the 6th West longwall travel road from crosscut No. 38 to 44 which had wet and muddy conditions. Additionally, several more areas of this road are quickly deteriorating from wet and muddy conditions, resulting in several ruts in the road. Finally, a four wheel drive AL Lee diesel mantrip was found stuck in the mud at the overcast at this travel road for the past ten minutes. A second mantrip was parked just outby this overcast for any emergencies in case this AL Lee mantrip could not get out of the mud.

A safeguard has previously been issued requiring that all mine travelways be kept free as practicable of bottom irregularities, debris, and wet and muddy conditions that could affect control of mobile equipment.

This standard was cited 71 times in two years at this mine.

Ex. G-2.

            Rusher determined that the violation was reasonably likely to result in lost workdays or restricted duty injuries, that it was S&S, that three persons were affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $25,800.00 was proposed for this violation.

The Violation

            Rusher inspected the Galatia mine on July 15, 2010. After reviewing examination books, conducting a safety talk, and terminating some previously issued citations, he proceeded underground, escorted by AmCoal safety representative, Keith Violett. They proceeded up the Main North travelway to several worked-out and sealed areas, and after inspecting the seals proceeded inby. They traveled approximately 125 breaks, up the Main North travelway to the entrance to the 6th West (“6W”) longwall panel headgate entries. There was an overcast at the intersection of the 6W travel road - and the Main North travel road. To provide clearance for traffic on the 6W travel road, the road bed was excavated several feet. Water infiltrating the mine collected in the low spot, softening the fire clay floor, and creating very wet and muddy conditions. AmCoal had installed an air-driven pump in a sump at that location, but conditions had deteriorated such that the travelway under the overcast was, at least temporarily, impassable. A four-wheel-drive diesel mantrip was mired in the mud at that location. Another mantrip was parked on the Main North travelway for use in an emergency.

            Rusher proceeded past the overcast and walked inby on the 6W travel road. It was the middle of three entries, the entry on the left was the belt entry and the one on the right was the return and the secondary escapeway. Crosscuts on the entries were numbered consecutively, with No. 1 being the first crosscut off the Main North travelway. Crosscuts were made approximately every 150 feet. When Rusher reached the area of crosscuts 38-44, he encountered knee-deep wet, muddy and rutted conditions, which extended for 900 feet, and rendered the travelway, in his opinion, impassable. Tr. II 182-85, 219.

            Although Rusher stated that debris, such as roof bolts or pieces of bridge boards, could be buried in muddy conditions, he did not state that he observed any such objects in the cited area on the 6W travel road and did not record any such observations in the citation or his notes. Tr. II 189-90; Ex. G-2. However, he later indicated that there was one broken piece of bridge board, a “spear,” that brushed against his leg, and which he threw away. Tr. II 306, 311-12. He did not state that he regarded the piece of wood as an impediment to mobile equipment travel, and did not cite it as a violation of the bridge board safeguard.

            Rusher opined that the wet, muddy, rutted condition of the 6W travel road between crosscuts 38 and 44, and other areas, could affect the control of mobile equipment, particularly small vehicles, such as mantrips and golf carts. Tr. II 199. He posited that the operator of a mantrip carrying 8-10 men could lose control while attempting to traverse the rutted mud, and strike the coal rib at an angle. Miners riding in the vehicle could be thrown out and, possibly, run over by the vehicle as it continued through the mud.

            AmCoal did not present any evidence challenging Rusher’s description of the conditions in the cited area. His conclusion that they could affect the control of mobile equipment appears reasonable, and I so find. The standard was violated.

S&S

            The conditions on the 6W longwall travelway violated the safeguard standard. A measure of danger to safety, a discrete safety hazard, was contributed to by the wet, muddy conditions, an operator’s ability to control a piece of mobile equipment in the area was impaired which could result in injuries to a miner or miners. The remaining issues in the S&S analysis are whether the hazard contributed to by the violation was likely to result in an injury, and whether such an injury would be reasonably serious. AmCoal concedes that a reasonably serious injury could possibly occur. It argues that the conditions were unlikely to result in an injury.

            Rusher posited that the operator of a mantrip carrying 8-10 miners could lose steering control while trying to navigate the rutted, muddy travelway causing the mantrip to strike a rib at an angle, and that “at least two to three” miners would suffer injuries from being thrown out, or from being run over by the mantrip after being thrown out. Tr. II 186-88. AmCoal argues that the cited condition did not exist for a significant period of time, and that it had taken measures to keep the travelway as free as practicable from wet and muddy conditions.

            It is not clear how long the condition had existed. Water infiltration was a prevalent condition in the mine, and, as evidenced by Citation No. 7575301, which Rusher issued a little over 2 hours later, conditions of travelways can deteriorate rapidly. Rusher traveled the Main North travel road on his way to the 6W longwall travel road, and did not observe any violative conditions. When he rode back down that road, after issuing Citation No. 7575300 at 12:38 p.m., he found that conditions on the Main North travel road had deteriorated “in a matter of hours,” and issued Citation No. 7575301 at 2:50 p.m. Tr. II 229. The Secretary conceded that it was “likely” that the conditions cited in 7575301 “deteriorated rapidly.” Sec’y. Br. at 22.

            When asked whether the conditions in the 6W travel road could have deteriorated rapidly, Rusher pointed out that the “unit’s” mantrip was stuck under the overcast at the mouth of the road, and that the crew apparently walked in, because there was no mantrip up at the unit. Tr. II 313-14. However, he had previously testified that there was a mantrip at the unit “that they obviously had got in there some way.” Tr. II 186. In addition he had stated: “there were men in here at the active unit mining coal. Whether these men knew that their travel road out of here was blocked or not, I don’t know.” Tr. II 181. AmCoal points out that its Production and Delay reports for July 15 show that the midnight crew and the oncoming day shift did not experience delays in traveling to and from the unit. Ex. R-58 at 19, 20. Those reports show overall travel times between the unit and the portal of 40-45 minutes, consistent with what Rusher had thought they would be, which indicates that the 6W travel road was passable and that the miners could not have walked nearly a mile to the unit. I find that the 6th West travel road was open and passable at 9:30 a.m., three hours before Rusher issued the citation. Conditions at the overcast and crosscuts 48-54 deteriorated thereafter. The mantrip mired in the mud under the overcast was there long enough that a back-up mantrip was brought to the area and parked next to it. The cited conditions existed for approximately 2 hours before the citation was issued.

            It is unclear how long the conditions would have existed under continued normal mining conditions. AmCoal had installed an air-driven pump in the vicinity of crosscuts 48-54 to remove water, and Rusher observed that the pump was running. Tr. II 197. There was also a pump working on the Main North road before the intersection with the 6W road. Tr. II 198, 231. Rusher testified that, to the best of his recollection after 2.5 years, there was a miner in the crosscut 48-54 area using a jackhammer to create a sump for a pump in the hard pan bottom. Tr. II 306-08. Since there was a pump running in that area, it appears that if there was a miner digging a new sump, AmCoal may have been in the process of installing another pump at the location. Rusher had indicated, “they were trying to work on it.” Tr. II 308.

            There is limited evidence as to when the conditions were actually abated. The P&D report shows a delay of 15 minutes, from 12:34 to 12:39, due to “Belts/AFC shutdown (travelway blocked).” Ex. R-58 at 20. The citation was terminated 4 days later, on April 19; the termination sheet reflecting that the water and mud had been removed and the road had been graded. Ex. G-2. It is doubtful that abatement occurred in 15 minutes, because Rusher would still have been in the area, and most likely would have terminated the citation at that time. April 19 was the date specified on the citation for termination. It is doubtful that the travel road to the 6W longwall would have been allowed to remain in what Rusher believed to be an impassable condition for a significant length of time. As noted in the discussion of negligence, AmCoal had a road grader for use in maintaining travel roads. However, it was out of service on July 15. Rusher opined that grading could have been done by other means, e.g., by dragging a steel beam through the area, which he had seen done in other mines. Tr. II 303.

            I find that the condition would have existed for approximately one shift under continued normal mining conditions. A limited number of mantrips transporting mining crews would have attempted to pass through the 6W longwall travel road in that time frame. The diesel mantrip mired in mud under the overcast would have had to have been removed before vehicles from outby could have traveled up the road.

            The S&S designation, and the Secretary’s arguments on the nature and seriousness of the hazards presented by the condition of the road, are somewhat at odds with Rusher’s determination to allow almost 4 days, up to April 19 at 8:00 a.m., for the citation to be terminated. Ex. G-2. While he felt that AmCoal could have made more of an effort to address the conditions, he was “not suggesting that you shut down the unit.” Tr. II 303. Rusher was familiar with the Galatia mine, and knew that water infiltration impacting roadways affected main entries and travel roads everywhere in the mine. Tr. II 197. Yet he was not aware of any incidents resulting in injuries from a mantrip going out of control in muddy road conditions. Tr. II 300. Nor was he aware of any such injuries occurring in any other mine, although he did not profess to know all the data for the nation’s mines. Tr. II 300-01.

            Considering the length of time that the condition had existed and would have existed under continued normal mining conditions, the limited number of times that a mantrip carrying passengers would likely have encountered the conditions, and the fact that there is no evidence of any injuries resulting from the loss of control of mobile equipment in wet, muddy, rutted conditions, I find that the hazard contributed to was unlikely to result in an injury and that the violation was not S&S.  

Negligence

            Rusher’s determination that AmCoal’s negligence was high rested upon a number of factors. He believed that the mantrip mired in mud at the overcast belonged to the incoming day shift crew, such that supervisors of the incoming day shift and the subsequently departing midnight shift would have had to walk through the conditions on the 6W travel road. Tr. II 200-01, 313. He knew that a citation for similar conditions had been issued a week earlier on the same road, that he issued two such citations that day, and that the safeguard standard had been cited 71 times in two years at the mine. Tr. II 194-95, 200; Ex. G-2, G-4. In light of what he believed was AmCoal’s knowledge of the conditions, he felt there should have been more of an effort to address them, such as pulling a drag through, or installing more pumps, especially since the road grader was inoperable. Tr. II 309.

            If the day shift and midnight shift supervisors had been forced to walk in and out of the unit on the 6W travel road, through the cited conditions, AmCoal could be charged with direct knowledge of the conditions several hours before they were cited. However, as found above, the conditions did not exist when the shift change occurred, and the respective crews, one traveling inby at 8:30 a.m. and one departing at 9:30 a.m., were able to navigate the road without delay. The cited conditions developed after the shift change, and there is no evidence that AmCoal managers were aware of them prior to their being cited.

            The fact that similar conditions had been cited on the same roadway one week earlier evidences that AmCoal was on notice that such a condition had developed. However, such wet and muddy conditions were prevalent in the mine, and the fact that a citation had recently been issued for a different area of the road does little to elevate AmCoal’s negligence with respect to this violation; nor does the fact that Rusher issued the subject citation, and one later that afternoon for conditions that all agree developed rapidly. Rusher acknowledged that there are over 20 safeguards in effect at the mine, and that citations for 71 safeguard violations could have been for any one of those. Tr. II 300.

            The lack of evidence to establish that AmCoal had direct knowledge of the conditions several hours prior to the issuance of the citation largely undercuts the significance of Rusher’s perceived lack of effort to address the conditions, although AmCoal may have been in the process of installing an additional pump at the location.

            As Rusher readily acknowledged, water infiltration in the mine was a wide-spread and persistent problem. Several measures had been employed to address it, but it was not always contained. The road grader was inoperable on the day in question. The Secretary questions whether equipment from a nearby mine should have been pressed into service. However, there is no evidence as to how long it would have taken to obtain and employ such equipment, what effect it would have had on the other mine, which was also “wet,” or how long the grader was expected to be out of service.

            Based upon the foregoing, I find that AmCoal’s negligence was no more than moderate.

Citation No. 7575301

            Citation No. 7575301 was issued by Rusher at 2:50 p.m. on July 15, 2010, about two and one-half hours after he had issued Citation No. 7575300. It also alleged a violation of Safeguard No. 7568565. The violation was described in the “Condition and Practice” section of the citation as follows:

There are wet and muddy conditions along with deep ruts and rough areas in the road that affect the control of mobile equipment operating on the Main North travel road. This condition exists at approximately crosscuts No. 82 to 86 and crosscuts No. 48 to 50 on the Main North travel road. A safeguard was previously issued on this condition that states that all mine travelways be kept free as practicable of bottom irregularities, debris, and wet and muddy conditions that could affect control of mobile equipment.This standard was cited 72 times in two years at this mine.

Ex. G-5.

            Rusher determined that the violation was reasonably likely to result in lost workdays or restricted duty injuries, that it was S&S, that two persons were affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $21,900.00 was proposed for this violation.

The Violation

            Rusher was on his way out of the mine, having issued the previously discussed safeguard citation for conditions on the 6W travelway. As he proceeded south on the Main North travel road, he encountered portions of the roadway that were wet and muddy, with deep ruts, at crosscuts 82-86 and 48-50. At 2:50 p.m., just over 2 hours after having issued the citation on 6W travelway, he issued Citation No. 7575301, for a violation of the same safeguard. The conditions were “basically” the same as those cited on the 6W travelway, and posed “virtually the same hazard.” Tr. II 202-03. For the reasons stated above with respect to Citation No. 7575300, I find that the conditions violated the safeguard.

S&S

            I also find, as with Citation No. 7575300, that the violation was not S&S. Rusher explained that the violation and hazard presented were virtually the same as those he determined for Citation No. 7575300, and the S&S analysis presents the same issues as with that citation. The Main North road was not blocked, and mantrips traveling the road at that time of day tended to be occupied by only a driver and one passenger. Tr. II 205. Consequently, he determined that two persons would be affected if the hazard resulted in an injury causing event. Rusher had traveled the Main North road on his way up to the 6W longwall panel, and had did not observe conditions that violated the safeguard. Tr. II 228-29. He agreed that the conditions had changed in a matter of hours, and the Secretary confirmed that “it is likely that [the conditions] developed rapidly.” Sec’y. Br. at 22. As with those on the 6W road, they most likely would have been addressed before they had existed a full shift, possibly sooner because of their location.

            Considering the length of time that the condition had existed and would have continued to exist under continued normal mining conditions, the limited number of times that a mantrip carrying passengers would likely have encountered the conditions, and the fact that there is no evidence of any injuries resulting from the loss of control of mobile equipment in wet, muddy, rutted conditions, I find that the hazard contributed to was unlikely to result in an injury and that the violation was not S&S. 

Negligence

            The evidence relevant to AmCoal’s negligence with respect to this violation is similar to that for Citation No. 7575300, except that the fact that the violative condition existed only for a short period of time is uncontested. Since it did not exist during the shift change, there is no argument that supervisors traveling with mining crews observed the hazardous condition. However, Rusher noted that the Main North road was an “active travelway” used by “supervisors of all kinds.” Tr. II 207. He added that “hardly a day ever went by I didn’t see a management person on any shift I go on.” Id. He believed that a manager should have seen the conditions.

            While it is possible that an AmCoal agent observed the violative condition before the citation was issued, it is equally, if not more plausible, that none did. The condition existed at 2:50 p.m. It did not exist when Rusher traveled the area on his way to the 6th West longwall panel. Rusher’s notes reflect that he arrived at the mine at 7:15 a.m., participated in a safety talk at 8:00 a.m., terminated citations, inspected mobile equipment, and inspected a number of seals of mined-out areas. Ex. G-2. He then proceeded to the 6W travel road, and issued Citation No. 7575300 at 12:38 p.m. He most likely passed through the area later cited at approximately 11:00 a.m. The violative condition, which did not exist at that time, developed rapidly, and was cited at 2:50 p.m. It most likely would have existed for no more than two hours before Rusher issued the citation. Accepting Rusher’s observation that the Main North road was traveled by a variety of supervisors in addition to those traveling with mining crews, and that he observed a “management person” traveling the road at least once per shift on the vast majority of days he was in the mine, it is, at best, possible that a member of AmCoal’s management observed the violative condition, and, if so, would have had very little time to address it. A pump had been installed in the area, and Rusher posited that another pump may have been needed to handle the water.

            Considering the above, and the bulk of the analysis of the negligence issue discussed with respect the Citation No. 7575300, I find that AmCoal’s negligence with respect to this citation was no more than moderate.

Citation Nos. 8423567 and 8423568 (LAKE 2011-183)

            Citation No. 8423567 was issued by MSHA inspector Keith Roberts at 10:00 a.m. on July 14, 2010, pursuant to section 104(a) of the Act, and alleges a violation of 30 C.F.R. § 75.202(a), which 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.” The violation was described in the “Condition and Practice” section of the citation as follows:

An area of unsupported rib coal is present along the 7th West Headgate (003-0) travel road (Entry #2) between XC-34 & XC-35. Three sections of broken, loose and overhanging rib are present on the south side rib. The sections are approximately 4' - 5' L x 4' H x 8" T and are separated from the pillar approximately 1.5" - 2". The entry has been mined into the soft, unconsolidated floor clay to an approximate depth of 18". The floor clay and the bottom sections of rib coal have sloughed away to create the cited condition.

This travel road is frequented by miners operating open-type personnel vehicles and by miners traveling on foot. This standard was cited 111 times in two years at this mine.

Ex. G-13.

            Roberts determined that the violation was reasonably likely to result in a lost workdays or restricted duty injury, that it was S&S, that one person was affected, and that the operator’s negligence was high. A specially assessed civil penalty in the amount of $25,800.00 was proposed for this violation.

The Violation

            AmCoal was in the process of developing a new longwall panel, and was using continuous miners to create a three-entry access to the panel. The left entry facing inby, the #1 entry, was the belt entry, the middle entry was the travelway - the 7 West Headgate (“7WHG”) travelway, and the right entry was the return. A minimum mining height of 7 feet was required in the travelway to accommodate longwall shields that would have to be transported to the set-up entries for the panel. The coal seam in that area was only 5.5 to 6 feet thick. To obtain the required clearance, AmCoal determined to mine approximately 18 inches of the soft fire clay from the mine floor, rather than the harder limestone and sandstone layer above the coal seam.

            That practice can lead to problems with stability of the ribs. The softer clay tends to deteriorate, and slough away, removing support from the edge of the coal rib. The load pan on a continuous miner, or the bucket of a scoop, can cut into the clay, exacerbating the process. If significant undercutting of the coal rib occurs, the face of the rib may slough or spall, falling to the mine floor, and/or toppling into the travelway. AmCoal was encountering significant water in the 7WHG entries. The solid limestone roof had given way to water-bearing sandstone, and water was flowing into the entries from the roof. Watersheds and barrel sumps were being installed to remove the water, but the area was very wet, particularly near the faces.

            On July 14, Roberts traveled the 7WHG travelway, accompanied by Matt Mortis, AmCoal’s safety director. As they arrived at the section, they parked their ride, and their attention was drawn to a piece of yellow “caution” flagging tape that had been hung from a roof bolt near the south rib of the entry, between crosscuts 34 and 35, about one crosscut outby the section transformer and one crosscut inby the mantrip parking area. Ex. G-13. Upon closer examination, it was apparent that three sections of rib coal had broken away from the pillar. As Roberts recorded in the citation and his notes, the pieces were approximately 4 to 5 feet long, 4 feet high and 8 inches thick. They were separated from the pillar by approximately 1.5 to 2 inches. At that location, approximately 18 inches of floor clay had been mined and the clay had “spalled from beneath the rib coal.” Ex. G-13. Mortis confirmed the accuracy of Roberts’ description of the violative condition. Tr. III 72.

            Roberts issued Citation No. 8423567 for the unsupported rib, and, also issued Citation No. 8423568 for inadequate preshift and onshift examinations because the condition was “easily visible” and had not been recorded in the examination books that he had reviewed prior to going underground. AmCoal does not challenge the fact of the section 75.202(a) violation. However, it does challenge the inadequate preshift examination citation, as well as the special findings, negligence determinations and the amounts of the penalties for both violations.

S&S

            The unsupported rib violation has been established. There were large sections of coal rib that had broken away from the coal pillar. The violation contributed to a discrete safety hazard, a risk that the unsupported rib sections would fall and strike a miner. The sections of rib were large, and any such injury would be serious. Consequently, whether the violation was S&S turns on whether it was reasonably likely that the hazard contributed to would result in an injury.

            The loose rib sections were sizeable, 4 to 5 feet long, 4 feet high and 8 inches thick. While they might have fallen straight down, i.e., remained upright, 90% of the time they would topple over into the travelway. Tr. II 280. Absent something that would have caused the coal to break up and roll, the sections would have fallen approximately 4 feet into the travelway. Tr. II 277. Miners typically walk near the center of the 18-20 foot wide entry. Id. However, Roberts testified that they might have occasion to hang cable on the rib, or could get close to the rib in a golf cart, if passing another vehicle. Id.

            As previously noted, there was a piece of yellow caution tape adjacent to the area in question. It was hung from a roof bolt, 4 feet away from the rib at the outby end of the loose pieces. Tr. II 293, Tr. III 81. Yellow flagging generally indicates that caution should be used; red flagging indicates “stop,” i.e., do not proceed. Tr. II 253, Tr. III 21, 30-32, 57. Flagging material, 3/4 inch wide tape, in both yellow and red, was readily available to all miners working in the area.

            Terry Hill, an experienced AmCoal mine examiner, conducted the preshift examination of the area in question between 5:00 a.m. and 7:00 a.m. the morning of July 14. He explained that red flagging is used to prevent access to hazardous areas, e.g., areas of unbolted roof. Tr. III 56. Yellow flagging, indicating caution, is used to warn of equipment or material parked out of a line of sight, or bad rollers on a belt line. Tr. III 57. He has never hung a yellow flag near a rib as a sign to “keep and eye on it.” Tr. III 67-68. If he thought there was an issue with a rib, he would examine it and would red flag it if it was hazardous, e.g., “spalling off, you know the rib falling off.” Tr. III 62. If it was not hazardous, he would not flag it.

            Stacy Hill, the face boss for the midnight shift, 12:00 a.m. to 8:00 a.m. on July 14, offered similar explanations for use of flagging. He tries to reserve red flagging for hazardous roof conditions. Tr. III 30. He has used yellow flagging to mark a rib that he did not believe was hazardous, but that needed to be watched, and believed that the yellow flag indicated that the condition was “not that bad” when the flag was hung, or it “would have been addressed,” i.e., “it wouldn’t have been there.” Tr. III 33-35.

            Roberts downplayed the significance of the fact that there was a yellow flag hung at the location of the violation. It is not mentioned in the citation, and appears only on the last page of his notes, in his discussion of the duration of the violation. Ex. G-13. Roberts testified that, as he walked up, he observed “the condition,” the undercut evidenced by the contrast of the gray clay and the black coal rib, which was “easily visible.” Tr. III 240, 244. He denied that his attention was drawn to the area by the yellow tape, adding that “at some point” he would “probably note the flagging.” Tr. III 262. In contrast, Mortis testified that when he and Roberts arrived at the section and started walking toward the face, their attention was drawn to the area by the yellow tape. Tr. III 71.

            Mortis’ rendition of events strikes me as considerably more likely. The yellow tape was designed to call attention to an area or condition. It most likely would have been far more visible than the undercut, especially in typical underground low light conditions. Roberts described the undercut as a contrast between gray fire clay and the black coal rib. Mortis testified that the rib coal would probably have been lightened by rock and road dust. Tr.III 78.

            The sections of loose rib coal were 4 feet high. If they fell, they most likely would have toppled over, landing approximately four feet into the travelway. Miners using the travelway, whether walking or riding, would tend to stay near the middle of the entry, and would typically have been at least 5 feet away from the rib. Consequently, falling sections of rib would have been unlikely to cause injury to miners using the roadway, even if they fell while a miner happened to be passing that particular location.

            The presence of the yellow flagging almost certainly rendered the possibility of injury even more unlikely. The yellow caution flag, hanging 4 feet off the rib, would have been clearly visible to anyone approaching the area. The normal reaction to the flag would have been to avoid the area near the rib. Roberts opined that miners might be on foot hanging cable along the rib, and that a golf cart passing another cart might come close to the rib. However, there is no indication of whether, or how often, that was likely to occur. It is doubtful that any miner would have worked at the rib line, given the presence of the warning tape, and the obvious loose coal, and drivers of golf carts would also have been unlikely to travel in the area marked by the yellow tape, even if they had to pull over to let another cart pass.

            I find that the hazard contributed to was unlikely to result in an injury producing event and that the violation was not S&S.

Negligence

            There is no question that the unsupported rib presented a hazardous condition. It is also apparent that someone at AmCoal had observed something that caused concern about the rib, although the condition may not have been as severe when the flag was hung. The critical question as to the negligence determination, as well as whether there was an inadequate preshift examination, is when the condition occurred, specifically, whether it existed for a sufficient length of time that an agent of AmCoal should have observed it.

            Roberts’ testimony on the duration of the violation was quite limited. When asked about the entry of “duration” in his field notes, he explained:

Well, on duration, I reasoned that the condition had to be present at least one shift, probably longer. There was a piece of yellow flagging along the side of the rib, which to me would indicate that the area was beginning to deteriorate.

Tr. III 253.

            He went on to state:

Seeing that flag there indicated to me that somebody at least saw the rib at some point in time and reasoned that it’s not looking real good and that was the reason for the flagging. There was no equipment parked in the area. There was no other reason for a yellow flag to be posted at that location.

But the rib I believe existed at least during the time that the section foreman was on the unit, and based on the flagging probably at least one shift prior to that and probably longer.

Tr. III 253-54.

            Opinions of experienced inspectors as to the duration of a condition or violation are frequently offered in a variety of contexts, typically, as here, to establish that a condition existed when an earlier examination was or should have been conducted. Often there is some obvious, or at least arguable, basis for crediting the estimate. For example, an estimate as to the length of time that accumulations of coal, or a certain thickness of float coal dust, had been present might be supported by evidence as to the rate that such substances would be expected to be deposited in the given area.

            There is no such evidence to support Roberts’ opinion on duration. The loose sections separated from the pillar at some point. However, there is no obvious relationship between the fact of the separation and when it occurred. It appears that Roberts placed a great deal of significance on the presence of the yellow flagging. Yet, there is no explanation as to why the presence of flagging should indicate that the condition existed for any particular length of time. Certainly, one could hardly dispute Roberts’ conclusion that someone had seen rib conditions that raised a concern prior to his discovery of the condition. But there is no evidence as to when the flagging was hung. The identity of the person that hung the flagging, and the time that the flagging was hung are unknown. Tr. II 283, Tr. III 74. Given the ready availability of flagging tape, Stacy Hill opined that the flag could have been hung by a scoop operator, or other hourly employee. Tr. III 48-49.

            Terry Hill, who conducted the preshift examination on the morning of July 14, did not observe any hazards in the 7WHG travelway, and so noted on the Preshift Mine Examiners Report. Tr. III 58-60; Ex-R-60 at 6. He testified that he did not observe a condition like that observed by Roberts, and that it could not be determined how long the condition had existed, because “conditions change by the minute.” Tr. III 66. He explained that if he had seen a yellow flag, he would have checked the conditions in the area. If they presented a hazard, he would have hung red flagging and contacted a supervisor to remedy the problem. He would have taken the yellow flag down if the area was not hazardous. Tr. III 60, 62-63. Hill was cognizant of potential rib problems when he conducted the preshift examination between 5:00 a.m. and 7:00 a.m. that morning. He had identified hazardous rib conditions, “rib rash” and “loose rib,” and noted them in his preshift report. It is highly unlikely that he would have failed to notice yellow caution tape hanging near a rib. I find that the caution tape was not present during the preshift examination.

            As Roberts’ notes indicate, citations had been issued for unsupported ribs in the same unit and another unit within the previous 3 weeks, and citations for roof/rib control violations had been issued 111 times in the past 2 years. He had also discussed with AmCoal safety department personnel problems with rib support in areas where significant floor clay was being mined, and had emphasized the need to monitor rib stability. Tr. II 250-51; Ex. G-13. AmCoal “concedes that it had been placed on notice that increased efforts to comply with roof control standards, insofar as they related to rib control issues, were needed at that time in that section.” Resp. Br. at 82. It maintains that it had increased its efforts to identify and address such conditions.

            As evidence of its efforts, AmCoal points to the fact that hazardous rib conditions were identified in both examinations conducted on July 14 prior to issuance of the citation. Stacy Hill, who conducted the onshift examination during the 12:00 a.m. to 8:00 a.m. shift, testified that undercut ribs could loose strength and that he actively monitored rib conditions. Tr. III 15-16. In the course of his onshift examination, he identified hazardous rib conditions in the #3 entry and began re-supporting the rib with roof bolts, actions that he recorded in his production and delay, and onshift reports. Tr. III 15-16; Ex. R-58, R-60 at 5. Roberts acknowledged that the records reflected that hazardous rib conditions had been reported and addressed. Tr. II 270. Terry Hill, identified hazardous rib conditions during his preshift examination, took steps to address them, and duly reported them on his preshift report. Tr. III 56-58; Ex. R-60 at 6. Roberts also acknowledged that hazardous rib conditions were noted and addressed as a result of the preshift examination. Tr. II 274.

            I find that the violative condition, the loose and unsupported sections of rib that had separated from the coal pillar, occurred after Terry Hill performed his preshift examination, and that the yellow flag was hung thereafter. While it is possible that the condition existed when section foremen arrived with the day shift and departed with the midnight shift, that has not been established by the evidence. Hazardous rib conditions were identified and addressed as a result of both examinations that occurred immediately prior to issuance of the citation, indicating that AmCoal was monitoring rib conditions as it had been advised to do. I find that AmCoal’s negligence with respect to Citation No. 8423567 was low to moderate. Citation No. 8423568, the examination violation, will be vacated.

Citation Nos. 8424517 and 8426154

            Citation Nos. 8424517 and 8426154 allege violations of a safeguard requiring that “bridging lumber” be secured and that loose or dislodged lumber be removed from travelways.

            The Galatia mine has experienced significant water infiltration since its opening. In low, or especially wet spots, water softens the fire clay mine floor making it difficult to maintain roadways. Various steps have been taken to keep the roadways passable, including pumping water, depositing gravel and rock dust, and installing wooden “bridges,” assemblies of lumber intended to provide a more firm travelway surface. Prior to 2005, bridges were nailed together, and were much more fragile. Since that time, they have been made of three layers of approximately 2" by 10" rough-sawn lumber, bolted together. As fabricated, they are approximately 10 feet wide, 16 feet long and 6 inches thick. A photograph of new bridges, ready for installation in the mine, was introduced into evidence. Ex. R-70. Bridges were placed in particularly soft locations, and were typically covered with gravel. Over-traveling mobile equipment pressed them into the mine floor. A piece of heavy mobile equipment, e.g., a ram car hauling supplies, can place considerable stress on a wooden bridge. Not infrequently, boards are broken and dislodged from bridges.

            In 1990, when Kerr-McGee Coal Corporation operated Galatia, a fatal accident involving a dislodged bridge board occurred. A ram car rode over a 12-foot-long bridge board that was lying in a soft, muddy travelway parallel to the direction of travel. As the car’s forward wheel finished traversing the board, it pressed the end of the board down into the mine floor, which cantilevered the opposite end up into the air. As depicted in a photograph, the operator’s compartment of that particular type of ram car was directly behind the wheel, and about 12 feet away from it. Ex. R-71. The elevated end of the board entered the compartment and impaled the operator as the car continued to move forward. MSHA investigated the accident, and issued a report. Ex. R-68.

            As a result of the accident, Notice to Provide Safeguard No. 3538483 was issued on August 17, 1990. It states, in pertinent part:

The established rubber-tired (off track) haulage roadway located in the No. 1 entry of the 1st East Longwall tailgate entries was not maintained to allow safe passage of miners and material. Numerous pieces of bridging lumber (2-1/2" x 10-1/2" x 12'-14'), which were used to stabilize the mine floor, were dislodged or protruding from the mine floor along the travel entry. This is a notice to provide safeguards requiring all bridging lumber used on the mine floors be secured or that loose and dislodged pieces of lumber be re-secured or removed from the travelway.

Ex. G-19.

            The persistent and widespread wet conditions in the Galatia mine resulted in hundreds of bridges being installed in numerous locations. JX-1 at 277-79. High volumes of mobile equipment traffic, especially heavy pieces of equipment such as shield movers and ram cars carrying supplies, frequently resulted in damage to bridges. Pieces of bridge boards broken from a bridge and dislodged boards could regularly be found in muddy travelway areas. When found by MSHA inspectors, violations of the safeguard standard would be cited. Several bridge board safeguard violations were at issue in a previously heard and decided case. American Coal Co., 33 FMSHRC 2511 (Oct. 2011) (ALJ). The history of the use of bridge boards, including the 1990 accident, the issuance of the safeguard, and the effect of active mining on bridge boards, was thoroughly examined in the prior hearing. In order to avoid duplicating that effort, the parties stipulated that a substantial portion of the record from that hearing could be incorporated into the record in these cases. Accordingly, the record was left open to allow the submission of designated portions of the prior hearing transcript, and a cross-reference of exhibits introduced in that proceeding, to exhibits introduced in the present record.

            The record from the previous hearing, as supplemented by the current record, establishes that heavy equipment, e.g., a ram car hauling supplies, could do considerable damage to a bridge in a single pass. 33 FMSHRC at 2522; JX-1 at 67, 240, 277-78, 306, 343. Broken or dislodged bridge boards could remain covered with mud and be brought to the surface by a passing vehicle. 33 FMSHRC at 2534; JX-1 at 256, 359. Many different types of mobile equipment use the travelways, including shield movers, ram cars, scoops, tractors, end loaders, mantrips and golf carts. The varying configurations of the vehicles, particularly the locations of operators and/or passengers, present different potentials for injuries to miners caused by loose lumber. 33 FMSHRC at 2518; JX-1 at 45, 88, 97, 230-32. Following the 1990 accident, steel bar “lips” were welded along the top edge of ram car operator compartments in an effort to prevent boards from riding up the side and entering the compartment. JX-1 at 274; Ex. R-71. While the bars might catch some boards, boards 4 feet long or longer continued to present a risk of injury. JX-1 at 229-30, 236. Following the 1990 accident, Kerr-McGee, and later AmCoal, have conducted periodic training on the dangers posed by loose and dislodged bridge boards and emphasized the requirement of the safeguard that they be secured or removed from travelways. 33 FMSHRC at 2522-23; JX-1 at 224-25, 279, 349. Since the 1990 fatal accident, there have been no fatal, permanently disabling or lost time injuries suffered as a result of loose or dislodged bridge boards at the Galatia mine. Tr. III 117-19; JX-1 at 98, 278, 367.

Citation No. 8424517 (LAKE 2011-242)

            Citation No. 8424517 was issued by MSHA inspector Danny Ramsey on August 23, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1403, and charges AmCoal with violating Safeguard No. 3538483. The violation was described in the Condition and Practice section of the order, as amended, as follows:

Bridging lumber was observed in the Main North travelway from #144 cross cut to the 8th West Headgate unit. The bridging lumber measured approximately 2 feet in length to 16 feet in length. Safeguard #3538483 requires all bridging lumber used on the mine floor to be secured or that the loose and dislodged pieces of lumber be re-secured or removed from the travelway. Standard 75.1403 was cited 67 times in two years at mine 1102752 (67 to the operator, 0 to a contractor).

Ex. G-18.

            Ramsey determined that the violation was reasonably likely to result in a fatal injury, that it was S&S, that one person was affected, and that the operator’s negligence was moderate. A specially assessed civil penalty in the amount of $18,700.00 was proposed for this violation.

The Violation

            Ramsey was traveling the Main North travelway when he encountered a wet, muddy area near the #145 crosscut. The roadway was relatively flat and passable, but there were ruts approximately 1 foot deep, and heavy equipment would likely have to “squirm” to get through. Tr. III 90. He observed bridge boards, crib ties and cap boards in the travelway and along the ribs, and measured two bridge boards, one was approximately 2 feet long, and the other was approximately 16 feet long. One end of the longer board was elevated approximately 12-18 inches in the air. The other end was under the mud, most likely attached to the bridge because the board could not be removed by hand. Tr. III 91.

            AmCoal does not challenge the fact of violation. It argues that the gravity and negligence designations are inappropriate and that the assessed penalty is excessive.

S&S - Gravity

            It is undisputed that the bridge boards were in the travelway in violation of the safeguard standard. A measure of danger to safety, a discrete safety hazard, was contributed to by the failure to re-secure or remove the partially dislodged 16-foot piece of bridging lumber from the travelway, i.e., that a person using the travelway would be injured by the board. While some injuries resulting from the violation, e.g., a contusion resulting from incidental contact, might not have been reasonably serious, the majority of the injuries posed by the presence of the lengthy board, which could impale an equipment operator or passenger, would be reasonably serious. As is often the case, the primary issue in the S&S analysis is whether the hazard contributed to by the violation was reasonably likely to result in an injury.

            Ramsey’s primary concern was the 16-foot board, which he believed presented a potential for a fatal injury. He had read about the 1990 accident that prompted the issuance of the safeguard, and believed that it was reasonably likely that the long board would cause a fatal injury by impalement. As with the inspectors who issued bridge board safeguard violations at issue in the prior case, his determination appears to have been based almost exclusively on the fact of the 1990 accident. 33 FMSHRC at 2523. He stated that he marked every bridge board safeguard violation as fatal. Tr. III 121. An AmCoal official testified in the prior hearing that all MSHA inspectors marked such violations fatal. JX-1 at 295.

            As noted in the 2011 Decision, the 1990 accident was a highly unusual incident that occurred under very specific conditions. While it is not outside the realm of possibility that a fatal impalement-type injury might occur with a long board, it is highly unlikely that such an event would occur. 33 FMSHRC at 2523. There, the presence of multiple boards of appreciable length, in a very muddy, wet travelway, where operators of heavy equipment had to struggle to climb a grade as the travelway emerged from under an overcast, was found to be S&S. Here, there was a single, partially dislodged board, 16 feet in length, in a relatively flat, passable, travelway with 6"-12" of mud.

            The 16-foot board was longer than the wheel-to-cab distance of any piece of equipment discussed at either hearing. Consequently, as situated, it could almost certainly not have been cantilevered up into the cab of a piece of mobile equipment as in the 1990 accident. The fact that it most likely remained attached to the bridge, rendered such an occurrence even more unlikely. It is significant that the board was protruding up above the travelway surface some 12"-18". While a ram car or another piece of heavy equipment would most likely have pushed it down, pushed it out of the way, or broken it off, there was a potential for it to enter the open riders’ compartment of a smaller vehicle, such as a golf cart. Ramsey was concerned about such an occurrence. However, Robert Bretzman, another MSHA inspector with extensive mining experience, who issued a similar bridge board safeguard violation, opined that injuries to operators of open vehicles like golf carts would not be reasonably likely because they could see and avoid bridge boards. Tr. III 177-78. See discussion of Citation No. 8426154, infra.

            AmCoal places considerable emphasis on the fact that, in the more than 20 years since the 1990 accident, bridge boards have not caused any injuries at Galatia or any other mines where they have been used. The Secretary countered, citing Elk Run Coal Co., Inc., 27 FMSHRC 899, 906 (Dec. 2005), that the absence of an injury-producing event when a cited practice has occurred does not preclude an S&S determination. AmCoal, in turn, points out that in Elk Run the Commission was careful to add, “[t]his is not to say that a history of roof falls in a mine is not pertinent to the consideration of the reasonable likelihood of an injury.” Id. at 906. AmCoal argues that, in light of the lengthy period during which no bridge board injuries occurred, the Secretary has failed to establish a reasonable likelihood that the hazard contributed to “will cause injury,” citing Musser Engineering, 32 FMSHRC at 1281.

            It is clear that the absence of an injury-producing event while a cited practice has occurred does not preclude an S&S finding. However, relevant accident history can and should be considered in the S&S determination. While there is no evidence that the specific condition cited by Ramsey had existed for an appreciable length of time, similar conditions have existed almost daily for over 20 years following the 1990 accident. There was general agreement that large numbers of wooden bridges have been used in Galatia’s wet/muddy travelways prior to and after the 1990 accident, and that high volumes of heavy mobile equipment traffic exact a heavy toll on the bridges, such that broken and dislodged bridge boards were almost constantly lying in travelways, visible or covered. Violations of the bridge board safeguard have been cited, not infrequently, by MSHA inspectors, and AmCoal personnel, who have been trained to remove bridge board hazards, have no doubt removed a large number of boards over the years. Bretzman testified that AmCoal was well aware of the importance that MSHA placed on compliance with the bridge board safeguard, and that citations would be issued whenever loose or dislodged bridge boards were found in travelways. Tr. III 179-80.

            Despite what was most likely frequent exposure of numerous equipment operators to various sized pieces of bridge boards in travelways, there have been no serious injuries caused by bridge boards since 1990; in fact, there have been no injuries at all. This is true even though bridges installed prior 2005 were much more fragile, and prone to breaking up. In addition, bridges have been used in other wet/muddy mines, and there is no evidence of bridge board related injuries in such mines. Tr. III 117-19. The tragic accident in 1990 established that loose or dislodged bridgeboards in travelways present a safety hazard. While it demonstrated that the hazard could cause a serious injury, it does not establish that such an injury would be reasonably likely to occur.

            The subject condition existed for an unknown length of time. There is no evidence from which it could be determined how long the board had been dislodged. It was not noted during the preshift examination that was conducted between 4:00 a.m. and 8:00 a.m. that morning, a few hours before the citation was issued. Ex. R-60 at 24-25. Since there is no evidence to establish that it had been dislodged at some earlier point in time, I find that it was dislodged after the preshift examination had been conducted, most likely by the mobile equipment traffic associated with the morning shift change and supplying the new shift. Under normal continued mining conditions, the hazardous condition could have been expected to continue to exist until the next preshift examination, i.e., 12:00 p.m. to 4:00 p.m. The condition was obvious, and the long board should have been identified and removed during that examination.

            Considering the length of time that the violation had existed and would have continued to exist under normal continued mining operations, less than one shift, the lengthy history of similar conditions having resulted in no injuries, and the nature of the specific condition, I find that the hazard contributed to was unlikely to cause a lost work days injury and was not S&S.

Negligence

            Ramsey determined that AmCoal’s negligence was moderate. AmCoal contends that its negligence was no more than low, arguing that the Secretary offered no evidence that anyone at AmCoal knew about the dislodged boards before the citation was issued. Ramsey could not determine how long the boards had been in the travelway. Tr. III 112; Ex. G-18. Their presence had not been noted during the preshift examination that was conducted that morning. Ex. R-60 at 24-25. However, he had issued a citation for a violation of the bridge lumber safeguard one month earlier, and would have spoken to mine management officials about it. Consequently, the Secretary contends that AmCoal was on notice of a need for greater compliance efforts with respect to the bridge board standard.

            At the earlier AmCoal hearing, it was established that virtually any piece of heavy equipment can break lumber from a bridge simply by maneuvering through one of the muddy areas where bridges are typically located. Loose or dislodged bridge boards may remain in the mud, virtually invisible until disturbed by a passing vehicle. JX-1 at 256. AmCoal was well aware of the problems posed by bridges, and provided training on the dangers posed by bridge boards and the obligation to comply with the safeguard by removing them from travelways. AmCoal had been cited for 67 violations of the general safeguard standard in the preceding 2 years. However, as Ramsey conceded, there were over 20 safeguards in effect at the mine. There is no evidence as to which, if any, of those violations involved loose bridging lumber, with the exception of the citation that Ramsey had issued a month earlier. AmCoal was well aware of the hazards posed by loose or dislodged bridging lumber, and had taken steps to address that hazard. Compliance with the safeguard was an ongoing topic of training. The fact that a citation related to bridging lumber had been issued one month earlier, and that other violations had been issued under the broad safeguard standard, did not significantly enhance AmCoal’s negligence with respect to this violation.

            The presence of crib ties and cap boards, in Ramsey’s words “scattered through there,” is troubling. Tr. III 127. While they are not within the applicable scope of the safeguard, they were pieces of wood lying in the travelway that could possibly have been considered to be debris that should have been removed under the previously discussed safeguard. The presence of those boards, along with the two bridge boards that Ramsey cited, at least suggests that AmCoal should have been paying more attention to its obligation to remove dislodged bridge boards from travelways.

            I find that AmCoal’s negligence was moderate.

Citation No. 8426154 (LAKE 2011-184)

            Citation No. 8426154, was issued by MSHA inspector Robert Bretzman on September 2, 2010, pursuant to section 104(a) of the Act, and alleges a violation of 30 C.F.R. § 75.1403. It charges Respondent with violating the previously discussed bridge board safeguard. The violation was described in the “Condition and Practice” section of the citation as follows:

The 6W Longwall Travelway was not kept free of debris, the travelway was also wet and muddy. A broken bridge board was along the side of the travelway. The bridge board had been run over by mobile equipment. The part of the board which was exposed was approximately 42 inches long by 8 inches wide. Standard 75.1403 was cited 67 times in two years at mine 1102752 (67 to the operator, 0 to a contractor).

Ex. G-21.

            Bretzman determined that the violation was reasonably likely to result in a fatal injury, that it was S&S, that one person was affected, and that the operator’s negligence was moderate. A regularly assessed civil penalty in the amount of $5,080.00 was proposed for this violation.

The Violation

            Bretzman was part of an MSHA team that intended to inspect AmCoal’s longwall mining operation on September 2, 2010. A team was used in order to minimize down time for the high-production longwall mining machinery. As he traveled up the 6 West longwall travelway, the mantrip went through a wet, muddy area. AmCoal had placed gravel in the middle of the travelway in an attempt to repair it. Bretzman was a passenger, riding on the right side of the vehicle, and saw a loose, dislodged bridge board on the right side of the travelway. He measured the exposed portion of the board. It was 42 inches long and 8 inches wide. An additional part of the board, of unknown length, was buried in the mud. The board was flagged, to prevent further travel in the area, and Bretzman proceeded inby to participate in the longwall inspection. When he returned, he was told that the board had been removed, and he terminated the citation.

            As with the previous bridge board citation, AmCoal does not dispute the fact of the violation. It challenges the gravity and negligence designations and the amount of the penalty.

Significant and Substantial

            The fact of the violation has been established. A measure of danger to safety, a discrete safety hazard, was contributed to by the failure to re-secure or remove the loose, dislodged piece of lumber from the travelway, i.e., that a person using the travelway would be injured by the board. An injury inflicted by this relatively lengthy board, that could impale an operator or passenger, would be reasonably serious. The primary issue in the S&S analysis is whether the hazard contributed to by the violation was reasonably likely to result in an injury.

            Bretzman was unable to determine how long the board, which had been covered at one time, had been exposed. Tr. III 167. Mine examiners who had passed through the area on previous shifts noted the muddy conditions and work being done to remedy those conditions. Ex. R-59 at 24-30. As Bretzman noted, AmCoal management was well aware of the importance that MSHA placed on compliance with the bridge board safeguard. Tr. III 167. Supervisors had passed through the area in conjunction with the shift change. The exposed board was obvious. It most likely was dislodged, or became exposed, as a result of the shift change traffic, and most likely would have been removed before or during the next examination, i.e., by the end of the shift. Consequently, the hazard would have existed for less than one shift.

            Bretzman knew the miner who was killed in 1990, and he was familiar with the facts of that bridge board accident. Tr. III 151. It obviously was a major factor in his determination that the board could cause a fatal injury, because he was not aware of any other injuries occurring due to the presence of loose or dislodged bridge boards. Bretzman related that there have been incidents, including injuries, related to bolts, pieces of wood and other debris being run over by mobile equipment. Tr. III 162. He had been struck by debris that had been run over by a vehicle he was riding in, although he did not suffer an injury resulting in lost work days. Tr. III 160, 173. He viewed the high volume of traffic as a significant consideration in determining that an injury was reasonably likely, because of the number of persons that would have been exposed to the hazard. Tr. III 177-78.

            In general, there have been high volumes of traffic on most, if not all, of the Galatia mine’s travelways. As noted above, hundreds of wooden bridges have been placed in wet and muddy areas, and mobile equipment has frequently dislodged pieces of lumber from those bridges. Yet, there have been no injuries attributable to loose and dislodged bridge boards in more than 20 years, with the exception of the 1990 incident.

            As with the previous citation, considering the length of time that the violation had existed and would have continued to exist under normal continued mining operations, less than one shift, and the lengthy history of similar conditions having resulted in no injuries, I find that the hazard contributed to was unlikely to cause a lost work days injury and was not S&S.

Negligence

            Bretzman rated AmCoal’s negligence as moderate. However, he noted that he could have rated the negligence higher because the board was found at the beginning of the shift and supervisors had been through the area. Tr. III 161. The Secretary adds that AmCoal should have been on notice of a need for greater compliance efforts because of numerous citations for safeguard violations, including the issuance of two citations for violations of the bridge board safeguard within the past month.

            If the dislodged board had been obvious when the area had been examined, or when supervisors passed through, AmCoal’s negligence could well have been high. However, Bretzman could not determine when the board had become exposed. Tr. III 167. Consequently, there is insufficient evidence to support a finding that the examiner or other supervisors were highly negligent. It was noted on the citation that the general safeguard standard had been violated 67 times in the past 2 years. However, violations of the more than 20 safeguards in effect at the mine did not significantly enhance AmCoal’s negligence with respect to this bridge board safeguard violation.

            Nor do the citations for violations of the bridge board safeguard establish prior notice on the facts of this case, because they do not necessarily evidence a need for greater compliance efforts. Bridge boards can be broken loose, or previously dislodged bridge boards can be pushed to the surface, by any of the numerous pieces of heavy equipment using the travelways of the large Galatia mine. AmCoal’s obligation under the safeguard is to re-secure or remove such boards, and it had taken substantial steps to meet its obligation, in the form of periodic training. MSHA’s enforcement efforts, of which AmCoal was well aware, further emphasized the need for compliance. Ramsey was unable to tell when the bridge boards he cited on July 19 and August 23, had been dislodged. While it is possible that he was not the first individual to have observed the boards, the areas had been examined not long before the citations were issued and no hazards were noted. In short, the presence of the bridge boards in the travelways, in itself, does not compel a conclusion that AmCoal should have done something more than it was doing to comply with the safeguard. Neither inspector identified additional measures that AmCoal should have employed to find and remove bridge boards.

            The citation was based on the presence of one bridge board. That board could have been dislodged or brought to the surface shortly before Bretzman found it. It was visible for some period of time before it was found, but that time period is unknown. I find AmCoal’s negligence to have been low to moderate.

The Appropriate Civil Penalties

            As the Commission reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-64 (Aug. 2012):

        Section 110(i) of the Mine Act grants the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

            30 U.S.C. § 820(i).

            Under this clear statutory language, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”). While there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. In addition to considering the statutory criteria, the judge must also set forth a discernible path that allows the Commission to perform its review function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

            Although all of the statutory penalty criteria must be considered, they need not be assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Generally speaking, the magnitude of the gravity of a violation and the degree of operator negligence are important factors, especially for more serious violations for which substantial penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30 FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and gravity more heavily than the other four statutory criteria).

Findings on Penalty Criteria

Good Faith - Operator Size - Ability to Continue in Business

            The parties stipulated that AmCoal abated the violations timely and in good faith, and that the proposed penalties would not affect its ability to remain in business. Tr. 5-6. The parties did not stipulate to the size of AmCoal as an operator. However, forms reflecting calculations of penalty assessments were filed with the petitions and indicate that AmCoal is a very large operator, as is its controlling entity, and I so find. AmCoal’s good faith abatement efforts should be considered a minor mitigating factor in the penalty assessment process. The fact that it is a very large operator and that the proposed penalties would not affect its ability to remain in business, while not aggravating factors, indicate that a penalty should be higher than that which would be imposed on a smaller operator.

History of Violations

            AmCoal’s history of violations is reflected in several exhibits. A report generated from MSHA’s database, typically referred to as an “R-17” shows closed violations with a final order date between January 14, 2009 thru April 13, 2010. Ex. G-28. The report reflects that 889 violations became final in that time period, 135 of which were S&S, and 7 of which were specially assessed. Another report shows all violations issued between July 14, 2008 and July 14, 2010. Ex. G-30. Copies of some of the citations issued for roof and rib control violations were also introduced into evidence. Ex. G-29. I accept the figures reflected in the reports as accurate. However, the overall violation history is deficient in that it provides no qualitative assessment, i.e., whether the number of violations is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

            Qualitative violations’ history information can be found on the forms reflecting calculations of the proposed assessments. The Secretary’s Part 100 regulations for regular penalty assessments take into account two aspects of an operator’s violation history, the “total number of violations and the number of repeat violations of the same citable provision of a standard in a preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have become final are used in the calculations. For total violation history, points used in the penalty calculation are assigned on the basis of the number of violations per inspection day, ranging from 0 points for 0 to 0.3 violations per day to 25 points for in excess of 2.1 violations per day. Forms reflecting regular penalty assessments for three of the litigated violations in Docket No. LAKE 2011-184 reflect an assessment of 10 points for AmCoal’s overall violation history.

            I find that AmCoal’s overall history of violations, as relevant to these violations, was moderate, and should be considered a neutral factor in the penalty assessment process.

Gravity - Negligence

            Findings on gravity and negligence are set forth in the discussion of each violation.

The Secretary’s Penalty Assessment Process – Special Assessments vs. Regular Assessments

            The Secretary specially assessed penalties for seven of the litigated violations. The special assessments totaled $161,200.00, which is 245% higher than the total of $46,694.00 that would have resulted from the regular assessment process. AmCoal argues that the Secretary’s secretive special assessment process arbitrarily subjects it to substantially enhanced penalties, and deprives it of due process. While, as explained below, AmCoal’s arguments are ultimately unavailing because the Commission imposes civil penalties de novo, the Secretary’s determination to specially assess a civil penalty has significant practical consequences. In AmCoal’s words, “the large disparity between the proposed special assessments and what would have resulted under the regular assessment guidelines, make informal resolution of such matters almost impossible and make time consuming and costly trials much more likely.” Rsp. Br. at 7.

            In addition, Commission ALJs are obligated to explain any substantial divergence between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984):

When . . . it is determined that penalties are appropriate which substantially diverge from those originally proposed, it behooves that Commission and its judges to provide a sufficient explanation of the bases underlying the penalties assessed by the Commission. If a sufficient explanation for the divergence is not provided, the credibility of the administrative scheme providing for the increase or lowering of penalties after contest may be jeopardized by an appearance of arbitrariness.

            The lack of transparency in the Secretary’s special assessment process, as discussed below, coupled with the Secretary’s refusal to disclose the bases for specially assessing a penalty, can frustrate attempted explanations. A review of the Secretary’s penalty assessment procedures may assist in understanding problems that may be posed by special assessments.

            Through notice and comment rulemaking, the Secretary has promulgated regulations specifying the “Criteria and Procedures for Proposed Assessment of Civil Penalties.” 30 C.F.R. Part 100. Those regulations provide two options for determining the amount of a civil penalty to be assessed by the Secretary, regular assessment and special assessment. 30 C.F.R. §§ 100.3, 100.5(a), (b). Penalties for the vast majority of violations are determined through the “regular assessment” process, whereby penalty points are assigned pursuant to criteria and tables that reflect the factors specified in sections 105(b) and 110(i) of the Act. 30 C.F.R. §100.3. Under the regulations, penalty points are assigned based on the size of the operator and the operator’s controlling entity; the operator’s history of previous violations; the operator’s history of repeat violations of the same standard; the degree of the operator’s negligence; and, the gravity of the violation, including the likelihood of an occurrence of an event against which a standard is directed, the severity of injury or illness if the event were to occur, and the number of persons potentially affected if the event were to occur. A penalty amount is determined by applying the total of the points assigned to a “Penalty Conversion Table,” which specifies penalties ranging from $112.00 for 60 or fewer points, up to the statutory/regulatory maximum of $70,000.00 for 144 or more points. That figure may then be adjusted by reducing it by 10% if the operator demonstrated good faith in abating the violation. 30 C.F.R. §100.3(f). A further reduction may occur if the operator can demonstrate to MSHA’s District Manager that the penalty will adversely affect its ability to continue in business. 30 C.F.R. §100.3(h).

            The regulations also provide that MSHA may elect to waive the regular assessment process if it determines that conditions warrant a special assessment. 30 C.F.R. §100.5(a), (b). The regulations do not further explain what conditions may warrant a special assessment. Nor do they identify how the amount of a special assessment will be determined, other than to state that “the proposed penalty will be based on the six criteria set forth in 100.3(a). All findings shall be in narrative form.” Id. The narrative findings for special assessments are typically brief and conclusory. They include a reference to the gravity of the violation, e.g., “serious,” the negligence of the operator, e.g., “high,” and relate that “[b]ased on the six criteria set forth in 30 CFR 100.3(a) and the information available to the Office of Assessments, it is proposed that” the operator be assessed the following civil penalty. E.g. Ex. R-13. Additional information can be gleaned from a “Special Assessment Narrative Form,” which reflects a calculation of both a regular assessment and the special assessment for a violation. Both calculations follow the format of the regular assessment process, except that additional points are assigned in the special assessment for gravity and negligence factors. The resulting penalty points totals are then compared to the Penalty Conversion Table. A range for a proposed special assessment is established by adding and subtracting 25% from the table result, and the proposed special assessment is selected from within that range. For example, the special assessment calculation for Citation No. 8423567 resulted in a penalty point total of 128, for which the table specified a penalty of $25,810. The range for the special assessment was $19,300 to $32,200, and the proposed special assessment was $25,800. A regular assessment for the violation was calculated as $7,579. Ex. R-14.

Method for Determining the Amount of Penalties for the Litigated Violations

            The purpose of explaining significant deviations from proposed penalties is to avoid the appearance of arbitrariness. Similarly situated operators, determined to be liable for violations of similar gravity, negligence and other penalty criteria, ideally should not be assessed significantly different penalties. Absent some guideline, however, a judge has no quantitative reference point to aid in specifying a penalty within the current statutory/regulatory range of $1.00 to $70,000.00. The Secretary’s regulations for determination of a penalty amount by a regular assessment, 30 C.F.R. §100.3, take into consideration all of the statutory factors that the Commission is obligated to consider under section 110(i) of the Act. The product of that regular assessment formula provides a useful reference point that would promote consistency in the imposition of penalties by Commission judges.

            Accordingly, in determining penalties for the litigated violations, the penalty produced by application of the Secretary’s regular assessment formula will be used as a reference point, and adjusted depending on the particular findings with respect to the statutory penalty criteria. The tables and charts in the regulations provide a limited number of categories for some factors. For example, the table for operator’s negligence consists of five gradations, ranging from “No negligence” to “Reckless disregard.” 30 C.F.R. §100.3(d). In reality, however, the degree of an operator’s negligence will fall on a continuum, dictating that adjustments will generally be required. Other unique circumstances may dictate lower or higher penalties. Violations involving “extreme gravity” and/or “gross negligence,” or, as stated in the former section 105(a), “an extraordinarily high degree of negligence or gravity, or other unique aggravating circumstances,” may dictate substantially higher penalty assessments. A party seeking a reduced or an enhanced penalty must assume the burden of producing evidence sufficient to justify any requested adjustment. Where the Secretary urges a penalty higher than that derived by reference to the regular assessment process, e.g., a higher penalty resulting from the special assessment process, he will have the burden of establishing the appropriateness of the higher penalty, based upon the statutory penalty criteria.

            In conclusion, whether the Secretary proposes a regularly or a specially assessed penalty is not relevant to the Commission’s determination of a penalty amount. While AmCoal’s arbitrariness and due process arguments are unavailing, its concerns about the practical implications of the Secretary’s determination to specially assess a violation, especially when the assessment is not based upon extreme gravity and/or gross negligence, are well founded, as evidenced by these proceedings.

Docket No. LAKE 2011-183

Citation No. 8424958

            Citation No. 8424958 alleged a violation of the roof and rib control standard, that was reasonably likely to result in a lost work days injury to one person, was S&S and the result of AmCoal’s moderate negligence. AmCoal withdrew its contest to the citation and special findings, and challenged only the amount of the penalty. A specially assessed civil penalty in the amount of $7,700.00 was proposed for this violation. Ex. R-13. The calculation of the proposed special assessment is set forth on a Special Assessment Narrative Form. Ex. R-14. That form also demonstrates that a penalty of $2,282.00, would have been assessed under the regular assessment formula contained in the Secretary’s Part 100 regulations, 30 C.F.R. Part 100.

            In proposing an enhanced penalty, the Secretary argues, in essence, that the gravity of the violation was more serious and AmCoal’s negligence was higher than charged in the citation. In addition, he contends that the imposition of higher penalties is warranted to discourage AmCoal’s “knowingly passive” approach to addressing particular hazards that repeatedly occur. As noted previously, Reynolds’ testimony on the gravity of the violation varied somewhat from what he had recorded in his contemporaneous notes. He testified that the condition presented a hazard of rocks falling from the roof and, since the area was “heavily traveled” there was an “increased risk to that many miners.” Tr. II 31-35. In contrast, his notes reflect that most traffic bypassed the area, one person, the material man, was identified as being affected by the violation, and that miners traveled the area “at least once per shift,” observations more consistent with the assessment of gravity in the citation. Ex. G-32.

            This violation involves neither extreme gravity, nor gross negligence, factors that have justified imposition of substantial penalties in other cases. Nor has the Secretary presented evidence sufficient to justify a finding that AmCoal demonstrated a knowingly passive approach to addressing known hazards. As noted above, however, the inspector’s determination of moderate negligence was conservative. Damage to the bolts most likely occurred over a considerable period of time. While additional bolts were most likely added to compensate for some of the damaged bolts, the area clearly presented ongoing roof control issues and should have been closely examined, especially because it was immediately adjacent to a significant prior roof fall.

            Considering the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s regulations governing regular assessments, I impose a penalty in the amount of $4,500.00 for this violation.

Citation No. 7575299

            Citation No. 7575299 alleged a violation related to exposed electrical conductors on a power cable in the bottom maintenance shop, that was reasonably likely to result in a fatal injury to one miner, and was attributable to AmCoal’s high negligence. AmCoal withdrew its contest to the violation and the findings on gravity. It challenged the negligence determination and the amount of the penalty. AmCoal’s negligence was found to be moderate, rather than high. A specially assessed civil penalty of $47,000.00 was proposed by the Secretary. In contrast, a penalty of $14,334.00 would have been proposed if the violation had been regularly assessed. Ex. R-14.

            The Secretary argues that the extreme levels of gravity and negligence warrant heightened penalties. The gravity of the violation was very serious, but not extreme. AmCoal’s negligence was moderate. These factors, alone, or in combination, are not comparable to those found to have justified substantial enhancements of penalties in the cases cited above. If the assessment calculations are adjusted to reflect moderate negligence, the result would be a special assessment of approximately $14,743.00, and a regular assessment of $4,329.00. Both calculations include a significant enhancement for the serious gravity of the violation. They are 232% higher than if the reasonably likely injury would have resulted in lost work days rather than a fatality. Considering the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s regulations governing regular assessments, I impose a penalty in the amount of $7,500.00.

Citation No. 7575300

            Citation No. 7575300 alleged a violation of a safeguard that required that travelways be kept as free as practicable from wet and muddy conditions that could affect control of mobile equipment. It was alleged that the violation was reasonably likely to result in a lost work days injury to three miners, and was attributable to AmCoal’s high negligence. AmCoal’s challenge to the violation was rejected. However, it was found that the violation was unlikely to result in an injury, was not S&S, and that AmCoal’s negligence was moderate, rather than high. A specially assessed civil penalty of $25,800.00 was proposed by the Secretary. A penalty of $6,997.00 would have been proposed if the violation had been regularly assessed. Ex. R-14. Applying the reductions in the level of gravity and negligence would produce a penalty in the range of $425.00 under the Secretary’s Part 100, regular assessment regulations. The relatively low gravity of the violation and the moderate level of negligence would not justify a substantially enhanced penalty. The Secretary argues that a substantial penalty is necessary to prompt AmCoal to address such conditions, which it “has the means and ability to avoid.” Sec’y. Rp. Br. at 8. Such considerations are essentially reflected in the analysis of AmCoal’s negligence with respect to the violation. It employed several measures to address the chronic conditions, most sanctioned by the MSHA inspector who wrote the citations. As to other possible actions, the Secretary did not establish that AmCoal had knowledge of the conditions sufficiently in advance to have effectively employed such measures. Upon consideration of the above, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $2,000.00.

            Citation No. 7575301 also alleged a violation of the wet, muddy travelway safeguard that was reasonably likely to result in a lost work days injury to two miners, and was attributable to AmCoal’s high negligence. AmCoal’s challenge to the violation was rejected, and it was found that the violation was unlikely to result in an injury, was not S&S, and that AmCoal’s negligence was moderate, rather than high. A specially assessed civil penalty of $21,900.00 was proposed by the Secretary. A penalty of $ 5,962.00 would have been proposed if the violation had been regularly assessed. Ex. R-14. Applying the reductions in the level of gravity and negligence would produce a penalty in the range of $363.00 under the Secretary’s Part 100, regular assessment regulations. The relatively low gravity of the violation and the moderate level of negligence would not justify a substantially enhanced penalty. Considering the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $1,500.00.

            Citation No. 8423567 alleged a violation of the rib and roof control standard that was reasonably likely to result in a lost work days injury to one miner, and was attributable to AmCoal’s high negligence. AmCoal did not challenge the violation. It was found that the violation was unlikely to result in an injury, was not S&S, and that AmCoal’s negligence was low to moderate, rather than high. A specially assessed civil penalty of $25,800.00 was proposed by the Secretary. A penalty of $7,579.00 would have been proposed if the violation had been regularly assessed. Ex. R-14. Applying the reductions in the level of gravity and negligence would produce a penalty in the range of $309.00 under the Secretary’s Part 100, regular assessment regulations.

            The Secretary urges the imposition of substantially enhanced penalties for this violation based upon the high negligence allegation and the overarching “deterrence” theme, i.e., to discourage AmCoal from taking a “wait and see” approach to known problems. As noted above, however, AmCoal’s negligence was found to be low to moderate, in part, because the examination records showed that hazardous rib conditions were being identified, reported and addressed. The low to moderate level of negligence, and the relatively low level of gravity, would not justify a substantially enhanced penalty. Considering the reductions in the level of negligence and gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $1,000.00.

Docket No. LAKE 2011-184

            Citation No. 8424040 alleged a violation of the standard requiring that bathing facilities, change rooms, and sanitary toilet facilities be maintained in clean and sanitary condition. It was alleged that the violation was reasonably likely to result in lost work days injuries to 10 miners, that the violation was S&S, and that AmCoal’s negligence was high. However, the violation was found to have been unlikely to result in an injury to one miner, it was not S&S, and AmCoal’s negligence was moderate. A regularly assessed civil penalty of $15,570.00 was proposed by the Secretary. Applying the reductions to the gravity and negligence factors in the Secretary’s regular assessment calculation would result in a penalty in the range of $243.00. Considering the above, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $500.00.

            Citation No. 8427602 involved a miner’s failure to wear protective goggles when using a torch to cut metal rods. The violation was alleged to be S&S, reasonably likely to result in a permanent injury, and the result of AmCoal’s high negligence. A regularly assessed civil penalty of $5,961.00 was proposed by the Secretary. The violation was found not to be S&S, unlikely to result in a permanent injury, and that AmCoal’s negligence was low to moderate. Those findings would result in a penalty in the range of $243.00 under the Secretary’s regular assessment regulations. Considering the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $500.00.

            Citation No. 8426154 alleged a violation of the safeguard standard, specifically the safeguard requiring the removal of loose and dislodged pieces of bridging lumber from travelways. It was alleged that the violation was reasonably likely to result in a fatal injury to one miner, that it was S&S, and that AmCoal’s negligence was moderate. A regularly assessed civil penalty of $5,080.00 was proposed for this violation. However, it was found that the violation was unlikely to result in a lost work days injury, and that it was not S&S. Those findings would result in a penalty in the range of $309.00 under the Secretary’s regular assessment regulations. Considering the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $500.00.

DOCKET NO. LAKE 2011-242

            Citation No. 8424517 also alleged a violation of the bridging lumber safeguard, that was reasonably likely to result in a fatal injury, was S&S and that AmCoal’s negligence was moderate. A specially assessed civil penalty of $18,700.00 was proposed for this violation. Ex. R-30. If the violation had been regularly assessed, the proposed penalty would have been $5,504.00. Ex. R-31. There is no explanation in the record as to why this citation was specially assessed, whereas Citation No. 8426154, which alleged a violation of the same standard and reflects the same gravity and negligence determinations, was not. The SARF for this violation, which was apparently mistakenly filed along with the petition, lends support to AmCoal’s arbitrary assessment argument. The “serious or aggravating circumstances” asserted to justify the inspector’s recommendation for a special assessment consisted of “[t]his mine has been cited 67 times for violation of this standard/safeguard. The mine has also experienced a fatality resulting from the condition cited.” This is somewhat misleading, because the 67 violations were not of the bridging lumber safeguard, but were violations of the general safeguard standard, i.e., any of over 20 safeguards in effect at the mine. While there was a fatality due to a bridgeboard, it occurred in 1990, under conditions that were dissimilar to those cited, and the fact that there have been no injuries since 1990 attributable to bridge boards is not mentioned. The violation was found to be unlikely to result in a lost work days injury and was not S&S. Those findings would result in a penalty in the range of $335.00 under the Secretary’s regular assessment regulations. Considering the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $500.00.

ORDER

            Citation No. 8423568 is VACATED. Citation No. 8424958 is AFFIRMED. Citation Nos. 7575299, 7575300, 7575301, 8423567, 8424040, 8427602, 8426154 and 8524517 are AFFIRMED as modified. Respondent is ORDERED to pay civil penalties in the total amount of $18,500.00 within 45 days.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge

Distribution (Certified Mail):

Bryan R. Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver. CO 80202-5710

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Ste. 1200, Salt Lake City, UT 84111-2323