FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

 October 6, 2011

DECISION 

Appearances:              Schean G. Belton, Esq., and Rachel Levinson, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner;

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, Kentucky,for the Respondents.

Before:                        Judge Feldman

            These consolidated civil penalty and contest proceedings concern Petitions for the Assessment of Civil Penalty filed pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977, as amended ("the Mine Act"), 30 U.S.C. § 820(a), by the Secretary of Labor (“the Secretary”) against the respondent, McCoy Elkhorn Coal Corporation (“McCoy Elkhorn”). The petitions seek to impose a total civil penalty of $30,948.00 against McCoy Elkhorn for two significant and substantial (“S&S”) violations of Part 75 of the Secretary's mandatory safety regulations governing underground coal mines. 30 C.F.R. Part 75.

            Namely, the Secretary seeks to impose a civil penalty of $27,259.00 for an alleged violation of the mandatory safety standard in section 75.400 cited in 104(d)(1) Citation No. 7432120 that is attributable to an unwarrantable failure. 30 C.F.R § 75.400. Section 75.400 prohibits a mine operator from permitting combustible coal dust to accumulate in active workings. The Secretary also seeks to impose a civil penalty of $3,689.00 for Citation No. 7420523 for an alleged inadequate preshift examination in violation of section 75.360(b)(3). 30 C.F.R. § 75.360(b)(3). The violations were noted by Mine Safety and Health Administration (“MSHA”) inspector Brian Dotson during his October 17, 2007, inspection of the No. 15 Mine.

            The proceedings also concern personal liability actions brought by the Secretary under section 110(c) of the Mine Act against section foremen James Slone, Michael Diamond, and Jason Robinson. 30 U.S.C. § 820(c). The Secretary seeks to impose personal liability for a $900.00 civil penalty on each of these individuals for their alleged responsibility for the subject coal dust accumulations. Section 110(c) of the Mine Act provides that a corporate agent “who knowingly authorized, ordered or carried out . . . [a] violation” committed by a corporate operator may be subject to individual liability. These matters were heard on March 8 through March 10, 2011 in Prestonsburg, Kentucky. The parties’ post-hearing briefs are of record.

            I. Settlement Agreements

            The parties have agreed to partial settlements of Docket Nos. KENT 2008-260 and KENT 2008-986. The parties have settled Docket No. KENT 2008-987 in its entirety.

                        a. Docket No. KENT 2008-260

            Docket No. KENT 2008-260 contains 20 citations. The alleged preshift violation in 104(a) Citation No. 7420523 is a subject of this disposition. The parties’ partial settlement agreement with respect to the remaining 19 citations was approved by Judge Zielinski on October 10, 2008. Pursuant to Judge Zielinski’s Decision Approving Partial Settlement, McCoy Elkhorn has previously paid a civil penalty of $23,142.00 in satisfaction of these remaining 19 citations. (Tr. 340). As noted, the proposed civil penalty for outstanding Citation No. 7420523 that alleges an inadequate preshift examination is $3,689.00.

                        b. Docket No. KENT 2008-986

            Docket No. KENT 2008-986 contains seven citations, six of which are the subject of the parties’ settlement agreement that was granted on the record. Pursuant to their agreement, McCoy Elkhorn has agreed to a reduction in civil penalty, from $6,314.00 to $4,200.00, for these six citations that remain unmodified. (Tr. 341-42). Remaining 104(d)(1) Citation No. 7432120 alleging prohibited combustible accumulations, for which a civil penalty of $27,259.00 is proposed, is a subject of this litigation.

                        c. Docket No. KENT 2008-987

            The parties also proffered at the hearing their settlement agreement for the two citations that are the subject of Docket No. KENT 2008-987. Pursuant to their agreement, McCoy Elkhorn has agreed to a reduction in civil penalty, from $998.00 to $669.00, for these two citations that remain unmodified. The settlement terms were approved on the record. (Tr. 342-43).

            II. Findings of Fact

                        a. Mining Cycle

            In October 2007, the 001/002 supersection at McCoy Elkhorn’s Mine No. 15 utilized a mining cycle that is common to the mining industry. The supersection consisted of two continuous miners that were permitted to cut simultaneously. The left-side miner mined entries one through four and the right-side miner mined entries five through nine. Under the approved roof control plan, McCoy Elkhorn was permitted to advance as much as 35 feet for each cut.

            The typical mining cycle began by taking a cut of coal with the continuous miner. The extracted coal was transferred from the continuous miner to shuttle cars that were positioned behind the miner. After loading the shuttle car, the coal was transferred to the feeder for loading onto the beltline. After a cut was completed, the continuous miner pushed any remaining loose coal on the mine floor to the face of the cut. The continuous miner was then trammed to the next entry to begin the next cut.

            The next segment of the mining cycle involved the roof-bolting machine. The bolter was transported into the cut where it installed roof bolts to within four feet of the face. After the bolter was backed out of the entry, before the next cut was taken, a scoop was taken to the face to use its bucket to remove the loose coal that had been plowed to the face by the continuous miner. In October 2007, there were three scoops utilized in the 001/002 supersection. If the residual coal accumulations pushed to the face had not been cleaned by a scoop when the continuous miner returned to start the next mining cycle, the loose coal at the face was loaded into shuttle cars by the continuous miner.

            The ribs in the newly cut and bolted entry were then rock dusted by hand, as the continuous miner cycle began for the next entry. As a general matter, scooping and dusting are not required immediately after a bolter leaves an entry. Rather, scooping and dusting must be completed before the continuous miner returns to the entry to begin further advancement. (See Gov. Ex. 6; Tr. I at 71-73, 75, 125-29, 205, 208, 428, Tr. 458).

            As noted above, the aforementioned mining cycle is a common industry practice. This cycle is commonly observed by mine inspectors without the issuance of citations for face accumulations that normally occur during the extraction process. (Tr. 129).

                        b. 001/002 Section Staffing and History

            In October 2007, there were two production shifts and one maintenance shift at McCoy Elkhorn’s No. 15 Mine. Jason Robinson was the section foreman for the first production shift that worked from 6:00 a.m. to 2:00 p.m. James Slone was the section foreman for the second production shift that began at 2:00 p.m. and ended at 10:00 p.m. Michael Diamond was the section foreman for the maintenance shift that began at 10:00 p.m. and ended at 6:00 a.m.

            The 001/002 supersection was experiencing significant roof sloughage in October 2007. (Tr. 130, 370, 539-40). Sloughage even occurred at the faces before the next cuts were made. The degree of sloughage worsened over time after the ribs were exposed. (Tr. 130-31, 539-41). Prior to October 2007, MSHA inspector Randall Thornsbury, and Benny Freeman, supervisor of the MSHA Phelps Field Office, had cautioned McCoy Elkhorn not to routinely clean rib sloughage because it would result in additional sloughage. (Tr. 464, 541, 578-80, 663-64). Additional sloughage reduces the pillar size, causes rib rolls, and compromises roof support. (Tr. 464-65).

            MSHA had been concerned about McCoy Elkhorn’s history of coal dust accumulation violations. On October 11, 2007, Dotson issued to Robinson a citation for accumulations that included rib sloughage. Although Robinson disagreed that the sloughage conditions constituted a violation, Dotson ordered the sloughage to be cleaned. Dotson warned that he would issue a 104(d) citation if he returned to the section and observed similar conditions. (Tr. 91, 104, 664-66, Tr. III at 370-77).

            After issuing the section 75.400 citation on October 11, 2007, Dotson met with Robinson and McCoy Elkhorn superintendent Gary Hensley to inform them that greater efforts were needed to address the number of section 75.400 violations that had been issued. (Gov. Ex. 4; Tr. 161). At that time, Robinson blamed the accumulation condition on two scoops that had broken down, and on one scoop with a dead battery that was being charged after use during the previous maintenance shift. (Gov. Ex. 4).

            After Dotson’s initial warning on October 11, 2007, Dotson returned to the mine to inspect the 001/002 section on October 15, 2007. (Tr. 168). Dotson testified that he observed that the section was well rock dusted during the day shift on October 15. (Tr. 165). However, Dotson issued non-S&S Citation No. 7432117 citing a violation of section 75.400 for coal dust accumulations on a fletcher roof bolter. (Gov. Ex. 5).

                        c. 104(d)(1) Citation No. 7432120 – Accumulations

            On October 16, 2007, Slone’s crew advanced 14 ½ cuts in the 001/002 entries and crosscuts during the second production shift that ended at approximately 10:00 p.m. (Gov. Ex. 2). Slone testified that all of these cuts were cleaned during the mining cycles. Slone testified that he did not take a second cut in an entry or crosscut without first removing the loose coal from the faces. (Tr. 132-33). However, there were four cuts that remained unbolted at the end of the second shift. This is consistent with Diamond’s production report that reflects that “4 places” were bolted during the maintenance shift that ended at 6:00 a.m. on October 17, 2007. (Gov. Ex. 2). It is unsafe to scoop and clean an unbolted cut. Consequently, the unbolted cuts made during Slone’s second shift were not immediately cleaned. (Tr. 144, 358, 462, 549).

            When Diamond’s maintenance shift began at 10:00 p.m. on October 16, the right-side continuous miner had taken the right lift cut in the 6-Left (the crosscut between the 5 and 6 entries), by penetrating into the No. 5 entry, which was already flush with the crosscut. Diamond testified that the right lift cut was 30 feet deep. (Gov. Ex. 6; Tr. 598-99). There was an additional, unfinished, left lift cut that did not reach the No. 5 entry that was approximately 20 feet deep. (Tr. 598-99). Consequently, Diamond found the continuous miner in the left lift of the 6-Left that had not been cut through to the No. 5 entry at the shift change. Diamond’s third shift crew completed the left lift cut in the 6-Left. (Gov. Ex. 6; Tr. 68-69, 114, 582-87).

            In addition to completing the 6-Left cut, Diamond’s crew installed bolts in the four cuts that remained unbolted at the conclusion of Slone’s shift. (Tr. 69). During the remainder of the shift, Diamond’s crew performed non-production work such as using a scoop to clean and pressure dusting across the faces of all nine entries, including the left return, right return, intake and neutrals. (Gov. Ex. 6; Tr. 69-70, 75). However, Diamond’s cleanup efforts were hampered because two of the three available scoops had broken down. Diamond’s crew used the third scoop for the remainder of the shift until its batteries ran out of power. At the end of his shift, Diamond placed the scoop on charge and informed oncoming first shift foreman Robinson that he would not have a scoop available until charging was complete. (Gov. Ex. 2; Tr. 75, 82, 102-04).

            Beginning his shift at approximately 6:00 a.m. on October 17, 2007, Robinson traversed all nine entries of the section to ensure that there were no imminent dangers. (Tr. 103-04). Robinson testified that he informed his crew that they were not going to cut any coal because the scoop was being charged and because the ribs had sloughage. (Tr. 94-95, 102-04, 457-58). Mindful of Dotson’s previous admonition, Robinson reportedly ordered his crew to begin shoveling the ribs to remove the sloughage. (Tr. 91, 104, 465-66, Tr. III at 370-77). Robinson, right side continuous miner operator William Lowe, and shuttlecar operator Ricky Varney all allege that the first shift did not begin cutting coal until 2:00 p.m. on October 17, 2007, at which time the “three right cut” and “five heading cut” were made. (Tr. 457, 466-67, 499, 534-35, 543, 570, Tr. III at 377-78).

            Inspector Dotson arrived at the No. 15 mine site at approximately 8:00 a.m. on October 17, 2007. (Tr. 182-83). Dotson testified that upon entering the mine office, he observed a computer screen that listed the belt lines and CO sensors, which were depicted in green, reflecting that the belts were operational and running. (Tr. 179, 352-53). Although McCoy Elkhorn concedes the belts may have been running, it asserts that there was no coal on the belts when Dotson arrived at the mine. (Tr. 680-81).

            Dotson examined the preshift, onshift, and weekly examination books since his previous inspection on October 15, 2007. (Tr. 180). Dotson determined there were no conditions noted for the 001/002 section, with the exception of methane readings for three of the nine section faces. (Tr. 180).

            After examining the examination books, Dotson traveled to the 001/002 MMU Section, arriving at the section at approximately 10:00 a.m. Although the belts were running when Dotson was on the surface, they were not running when Dotson went underground. (Tr. 259). Dotson made an imminent danger run across all headings. Dotson’s contemporaneous notes reflect that the roof and ribs were adequately supported. His notes also reflect that the roof and ribs were rock dusted. (Gov. Ex. 5, 10/17/07 notes, p. 5).

            There had been a rib roll between the power entry and the beltline when Robinson’s crew arrived on the section on the morning of October 17, 2007. (Tr. 457). Robinson had assigned men to clean that area and to shovel coal from the ribs in some of the crosscuts near the faces. (Tr. 467, 470-72). The shoveled coal included rib sloughage that had already been rock dusted and sloughage, black in color, which had developed since Diamond’s crew had rock dusted. (Tr. 471, 500-504). Dotson conceded that sloughage was a common occurrence at the No. 15 Mine. (Tr. 370). Dotson also conceded both that Robinson’s crew was shoveling the ribs, and, that there were no continuous mining operations occurring when he arrived at the section. (Tr. 259).

            At approximately 10:15 a.m., Dotson observed accumulations of coal ranging from eight to twenty-four inches on the mine floor roadways and coal ribs in all nine entries on the 001/002 section. Dotson testified he observed loose coal and float coal dust accumulated from crosscuts four to five, five to six, six to seven, and seven to eight. Dotson testified that accumulations of combustible materials were also found along the right rib, the No. 9 entry, as well as in the roadways in the Nos. 8, 7, 6, 5, 4 and 3 entries leading down to the feeder. (Tr. 189). The combustible material measured 16 to 24 inches in some areas. The material was dry, was black in color, and had not been rock dusted. (Gov. Exs. 5, 10/17/07 notes, p. 13 and 7).

            Dotson believed the accumulations found in the roadway were spillage from shuttle cars hauling coal from the face to the feeder. (Tr. 190). Accumulations observed in the crosscuts appear to be residual coal left by the continuous miner that were not cleaned with scoops. (Tr. 190-91). Based upon Dotson’s knowledge of the mining cycle, and the extent and location of the accumulations, Dotson concluded the section had not been adequately cleaned for at least two and one half shifts of production. (Gov. Ex. 5, 10/17/07 notes, p. 9; Tr. 209).

            Dotson determined that two scoops had been taken out of service during the previous maintenance shift. Robinson told Dotson that he knew the entire section “was dirty” from the feeder to the face and that the third shift was supposed to clean the night before but didn’t do a “very good [job].” (Gov. Ex. 5, 10/17/07 notes, p. 7; Tr. 191).

            Dotson testified, consistent with his contemporaneous notes, that Robinson told him that he had finished making cuts in the three right and five headings before Dotson arrived on the section. (Gov. Ex. 5, 10/17/07 notes, p. 7; Tr. 191). The cuts were started where the continuous miners were located at the beginning of the shift. Significantly, Dotson’s testimony seriously undermines Robinson’s claim that the three right and five heading cuts were made at 2:00 p.m., after the section had been cleaned.

            Based on his observations and the fact that mining had continued despite the presence of significant accumulations, Dotson issued 104(d)(1) Citation No. 7432120. The citation states:

Accumulations of combustible materials in the form of loose coal and float coal dust, dry and black in color, ranging from 8 inches to 24 inches in depth is deposited on the mine floor roadways and coal ribs across the 001/002 MMU Section. The accumulations begins [sic] at the coal feeder (located at survey station #1452) and extends a distance ranging from 100 feet to 180 feet to the faces across all nine entries on the 001/002 Section. There are 480 VAC and 995 VAC electrical equipment trailing cables located throughout the cited area. This mine has been issued a total of eighteen 104(A) [sic] citations for 75.400 C.F.R. in the past 21 months. Employees are required to work and travel along the cited area on a daily basis. This condition will cause a mine fire or explosion if left uncorrected.

(Gov. Ex. 7).

            Significantly, Dotson explained that the accumulations he observed were not entirely attributable to rib sloughage. (Tr. 372). Dotson explained the basis for his belief that the accumulations he observed violated section 75.400:

The part about where they did not clean up from the continuous miner cuts and the roadway spillage, and there was some coal in these outer places that was on the rib that I cannot say was not from rib sloughage. But what I cited was accumulation of combustible materials from not cleaning up the roadways and the cuts that had been taken.

(Tr. 373).

            Dotson opined that the accumulated combustible material, in the form of float coal dust and coal dust, was reasonably likely to lead to serious injuries if left uncorrected. His conclusion was based on the extensiveness of the accumulations, their duration of at least two shifts, the mine’s history of excessive methane, and the potential ignition sources from the operation of two continuous miners that had made cuts shortly before his arrival on the section. Consequently, Dotson designated the cited accumulation condition as S&S in nature. Dotson attributed the violation to a high degree of negligence because the accumulations were obvious. (Tr. 249-51). Given previous warnings that greater compliance with section 75.400 was required, Dotson believed that the two cuts made by Robinson’s crew, before the section was adequately cleaned, demonstrated a sufficiently high level of negligence to support an unwarrantable failure.

            As noted, the Secretary also seeks to impose personal liability on section foremen James Slone, Michael Diamond, and Jason Robinson, pursuant to Section 110(c) of the Mine Act, for allegedly ‘knowingly authorizing, ordering or carrying out’ the section 75.400 violation cited in Citation No. 7432120.

                        d. 104(a) Citation No. 7420523 – Preshift Examination

            Despite his observations, Dotson did not recall seeing any notations regarding accumulations in the 001/002 section when he reviewed the preshift examination book shortly after arriving at the mine. After completing his inspection, Dotson returned to the surface to once again review the preshift examination book to determine what, if anything, Diamond had noted on his preshift examination during the preceding maintenance shift. Dotson noted the records had been changed. Superintendent Hensley had added the words “section needs cleaned” in Diamond’s October 17 preshift exam record. (Gov. Ex. 1; Tr. 181-82). Hensley told Dotson he had made the entry after Robinson called out and said the section was dirty. (Tr. 182).

            Dotson left the mine office to travel underground to the 001/002 section at approximately 9:30 a.m. It took approximately 40 minutes to travel by mantrip to the section. (Tr. 183-84). Hensley reportedly made the entry between the time Dotson left the mine office to go underground and Dotson’s arrival on the section. (Tr. 182).

            Dotson issued 104(a) Citation No. 7420523 as a result of the accumulation conditions he observed and the absence of any relevant notations identifying the need to clean the section by the preshift examiner. The citation cited a violation of the mandatory standard in section 75.360(b)(3) that requires a preshift examination for hazardous conditions in working places. Citation No. 7420523 provides:

Due to Citation # 7432120 issued on this date on the 001/002 section, and the extensiveness of the citation, it is apparent that an adequate pre-shift examination was not conducted for the dayshift on the 001/002 section. Combustible materials in the form of loose coal and float coal dust were located across the section and no hazards were listed in the pre-shift/on-shift record book for the dayshift dated 10/17/2007. Employees are required to work and travel along this section on a daily basis. Conducting an inadequate pre-shift where hazardous conditions are present will cause a serious accident to employees scheduled to work in the area.

(Gov. Ex. 8). As discussed, Dotson designated the cited violation as S&S because it was reasonably likely that the failure to recognize the hazardous accumulations will result in serious injury or death given the combustible fuel and ignition sources present during mining operations.

            III. Further Findings and Conclusions

                    McCoy Elkhorn’s Civil Liability

                        a. 104(d)(1) Citation No. 7432120 – Accumulations

                                    i. Fact of Violation

            Section 75.400, the cited mandatory standard, requires that coal dust and other combustible materials shall “not be permitted to accumulate in active workings.” This mandatory standard seeks to remove the hazard of combustible accumulations fueling or propagating an explosion. Since coal dust is a natural consequence of mining, the question is whether McCoy Elkhorn “permitted” the accumulations to occur without making any effort to timely remove them.

            In applying section 75.400, the Tenth Circuit Court of Appeals has stated section 75.400 “prohibits permitting [coal dust] to accumulate; hence it must be cleaned up with reasonable promptness, with all convenient speed.” Utah Power & Light v Secretary of Labor, 951 F.2d 292, 295 n.11, (10^th Cir. 1991). The Secretary has the burden of proving all elements of a cited violation. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). Thus, resolution of whether McCoy Elkhorn’s actions constitute a violation of section 75.400 is dependent on the extensiveness and the duration of the accumulations cited by Dotson.

            The subject accumulations delineated by Dotson in Citation No. 7432120 were extensive in nature. It is true that some of the accumulations consisted of sloughage that had been rock dusted. However, the Commission has rejected “a construction of [section 75.400] that excludes loose coal . . . mixed with noncombustible materials [because it] defeats Congress’ intent to remove fuel sources from mines and permits potentially dangerous conditions to exist.”

Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985).

             In the final analysis, whether conditions constitute accumulations prohibited by section 75.400 should be committed to the broad discretion of the mine inspector. Old Ben Coal Company, 2 FMSHRC 2806, 2808 (October 1980); Amax Coal Co., 19 FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480, 483 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 19-20 (Jan. 1997) (Marks, concurring). Dotson credibly testified that, while some accumulations were the result of non-violative sloughage, what he cited were accumulations from continuous miner cuts and roadway spillage in nine entries from the face to the feeder. (Tr. 373). Section 75.400 requires the timely removal of such accumulations.

            Turning to the issue of duration, both Slone and Diamond essentially admitted that their crews failed to adequately clean the section during the two shifts preceding Dotson’s inspection. Slone’s crew left mine floor areas uncleaned. (Tr. 144, 358, 462, 549). Diamond acknowledged that his maintenance crew “cleaned what we could” because two of the three available scoops were “down all night.” (Gov. Ex. 2; Tr. 75-76). Robinson also testified that inoperative scoops interfered with his crew’s ability to clean the section. (Tr. 102-04). The inability to timely clean the section because of the unavailability of scoops is an aggravating rather than mitigating circumstance. In the final analysis, McCoy Elkhorn is responsible for ensuring that scoops are adequately maintained and charged.

            Moreover, Robinson’s admission to Dotson that the section was “dirty” and in need of cleaning is an evidentiary admission. (Gov. Ex. 5, 10/17/07 notes, p. 7; Tr. 191). Robinson’s shift began at 6:00 a.m. McCoy Elkhorn asserts, as a mitigating factor, that the section was being cleaned when Dotson arrived on the section at approximately 10:00 a.m. (Tr. 90). However, Robinson had already spoken to Hensley after Dotson left the mine office to go underground. At that time, Hensley amended the preshift book to reflect the “section needs cleaned.” (Gov. Ex. 1; Tr. 181-82). Thus, it is reasonable to assume that cleaning the section was not a priority until after Dotson went underground.

            As discussed below, Robinson’s testimony that he ordered the three right and five headings to be cut at 2:00 p.m. on October 17, after the section was cleaned, rather than before Dotson arrived on the section, simply is not credible. Robinson’s decision to finish cuts in the three right and five headings earlier that morning, rather than to adequately clean the section before resuming mining, reflects that the combustible accumulations were not cleaned with the deliberate speed necessary to avoid liability under section 75.400. Consequently, the Secretary has satisfied her burden of demonstrating a section 75.400 violation.

                                    ii. S&S

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

In order to establish that a violation of a mandatory safety standard is [S&S] under National Gypsum, the Secretary of Labor must prove:

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to [by the violation] will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Id. at 3-4; see also Austin Power Inc., v. Sec’y of Labor, 861 F.2d 99, 103-04 (5^th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third element of Mathies, an S&S finding requires a determination that the violation contributes significantly and substantially to the cause and effect of a hazard. U.S. Steel Mining Co., Inc. 6 FMSHRC 1866, 1868 (Aug. 1984) (emphasis in original).

            Resolution of whether a particular violation of a mandatory standard is S&S in nature must be made assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration must be given to both the time frame that a violative condition existed prior to the issuance of a citation, and the time that it would have existed if normal mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).

            The Commission, as well as Congress, have recognized that accumulations of combustible material constitute hazardous conditions, as any combustible material, when placed in suspension, can propagate an explosion. Enlow Fork, 19 FMSHRC 5, 14, (Jan. 1997) citing S. Rep. No. 411, 91st Cong., 1st, Sess. 65 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 191 (1975). Thus, the essence of an S&S violation is whether it is reasonably likely that the hazard contributed to by the violation will result in an event in which there are serious or fatal injuries. Bellefonte, 20 FMSHRC at 1254-55.

            As discussed, the Commission articulated the elements of an S&S violation in Mathies. Applying the Mathies criteria, having concluded McCoy Elkhorn violated section 75.400, the first element is satisfied. Coal dust accumulations are potentially combustible, and, if combustion, i.e., fire or explosion, were to occur, there is a reasonable likelihood that miners would sustain serious injury. Therefore, the second and fourth elements of the Mathies test are met.

            The remaining criterion, a reasonable likelihood that the combustion hazard caused by the violation will result in injury, requires examining whether there was a “confluence of factors” present based on the particular facts surrounding the violation that would make a fire, ignition, or explosion reasonably likely. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). Some of these factors include the extent of the accumulations, possible ignition sources, the presence of methane, and the type of equipment in the area. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (January 1997) citing Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 1990); Texasgulf, 10 FMSHRC at 500-03.

            As noted above, the cited accumulations were relatively extensive. It took the entire first shift crew four hours to clean the cited accumulations. I credit Dotson’s testimony that cutter heads from continuous miners are potential ignition sources. (Tr. 247-49). Dotson stated, “if there was a face ignition with the amount of excessive accumulations of float coal dust that I seen . . . it would propagate and spread across the whole section, affecting everyone on the section.” (Tr. 249).

            In addition, McCoy Elkhorn’s Mine No. 15 liberates large quantities of methane. In the event of a methane ignition, the cited accumulations could be put in suspension, increasing the hazard associated with a fire or explosion. The likelihood of fire or explosion must be viewed in the context of continued mining operations without the violation having been abated. Texasgulf, 10 FMSHRC at 501. Thus, the record evidence supports the conclusion that it is reasonably likely that a hazard contributed to by the cited violation will result in an accident causing serious injury. As such, the violation has been properly designated as S&S.

                                    iii. Unwarrantable Failure

            The elements of unwarrantable conduct are well settled. The Commission has determined that an unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d 133, 135-36 (7^th Cir. 1995) (approving the Commission's unwarrantable failure test).