FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, DC 20001

202-434-9981/tele 202-434-9949/fax

October 21, 2011

DECISION

Appearances:  Karen Wilcynski, 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 petitions allege that American Coal Company (“AmCoal”) is liable for 40 violations of the Secretary’s Mandatory Safety Standards for Underground Coal Mines, and propose the imposition of civil penalties in the total amount of $224,354.00. A hearing was held in Evansville, Indiana, and the parties filed briefs after receipt of the transcript. Prior to and in the course of the hearing the parties settled 32 of the violations. A Decision Approving Settlement was entered on July 18, 2011, disposing of those violations and 93 other violations in six additional Commission dockets. Remaining at issue are eight violations for which the Secretary has proposed penalties in the amount of $119,684.00. For the reasons that follow, I find that AmCoal committed seven of the violations, and impose civil penalties in the total amount of $37,300.00.

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. Galatia is a “gassy” mine, having liberated over one million cubic feet of explosive methane gas in a 24-hour period, and is subject to 5-day spot inspections under the Act. For many years, water has drained into areas of the mine, softening the fire clay mine floor, and making it difficult to maintain roadways. Various steps were taken to keep the roadways passable, including pumping water, depositing gravel and rock dust, and installing wooden “bridges.” Bridges have been used for many years. Since about 2005, they have been made of three layers of rough-sawn lumber, bolted together. Woven steel cable loops are attached to facilitate installation. A photograph of new bridges, ready for installation in the mine, was introduced into evidence. Ex. R-78. Bridges were placed in particularly soft locations, and were often 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, and is capable of breaking boards or dislodging them from the bridge structure. In 1990, when Kerr-McGee Coal Corporation operated Galatia, a fatal accident involving a dislodged bridge board occurred. A ram car rode over a dislodged 12-foot-long bridge board that was lying in the travelway parallel to the direction of travel. As the car’s forward wheel finished traversing the board, the end of the board was pressed down into the mine floor, cantilevering 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-79. 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-36.

            Pursuant to section 314(b) of the Act, and the Secretary’s regulations, 30 C.F.R. § 75.1403, authorized representatives of the Secretary may issue safeguards to address hazards related to the transportation of men and materials at a particular mine. 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. As a result of the aforementioned 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-A.

            Underground coal mines must be inspected by the Secretary’s Mine Safety and Health Administration (“MSHA”) four times each year. Two veteran MSHA inspectors were involved in issuing the subject violations, both of whom were familiar with conditions in the Galatia Mine and had considerable experience as inspectors and miners. Steven Miller worked as an MSHA inspector for 18 years before becoming a supervisor in 2009, and worked in the mining industry for 13 years prior to joining MSHA. He began inspecting the Galatia Mine in 1991, and had inspected it many times before the subject inspections in May and July of 2008. Keith Roberts, an MSHA inspector and coal mine health and safety specialist, had worked for MSHA for 12 years, and had also inspected the Galatia Mine. Prior to joining MSHA, he had worked for 15 years as a staff safety engineer at the Galatia Mine for AmCoal’s predecessor Kerr-McGee. He also had worked for 11 years as a miner, section foreman and training and labor specialist for Old Ben Coal Company.       

            At about 7:45 p.m. on May 1, 2008, Miller received a phone call from an unidentified miner at Galatia who related a series of complaints about conditions in the mine, including that the headgate and tailgate travelways at what was then called the New Future portal were nearly impassable because of mud and water. The employee reported that equipment was being pushed through the travelways and he was concerned about the safety of the miners. He also reported that when MSHA was not present, the operation was “run wild.”

            Miller reported the call, typically referred to as a “code-a-phone,” to his supervisors, who instructed him to get Roberts and investigate the complaint. Roberts had been at the mine that day, and had returned to the MSHA field office to complete some paperwork. They proceeded to the mine, reviewed the books and mine map, dressed, and went underground about 10:20 p.m. As they were walking the main travel road they encountered two members of AmCoal’s management team, and gave them a copy of the “sanitized” code-a-phone complaint. They proceeded inby and encountered Gary Hamby, an AmCoal shift manager, on his way out of the mine, and gave him a copy of the complaint. Hamby continued outby to take two miners to the bottom, and said that he would return and give Miller and Roberts a ride. They continued to walk inby on the South Sub-Main primary intake escapeway/travelway and arrived at an “underpass,” between crosscuts 11 and 13 where the roadway dipped down approximately four feet to clear an overcast for the belt. The general area of the mine was wet, and standing water had collected in the underpass to a depth of nearly a foot. Miller and Roberts observed loose bridge boards in the travelway, in apparent violation of the previously mentioned safeguard, and initiated enforcement action. Miller issued an order pursuant to section 104(d) of the Act, closing the travelway until the hazard presented by the boards was abated.

Order Nos. 6673958 and 6673961

            Order No. 6673958 was issued at 11:30 p.m., on May 1, 2008, pursuant to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.1403, and charges Respondent with failing to comply with Notice to Provide Safeguard No. 3538483. The violation was described in the “Condition and Practice” section of the Order as follows:

The South Sub-Main Primary Intake Escapeway/Travelway was not being properly maintained. Bridging lumber being used on the mine floor, from crosscut number 11 to crosscut number 13 were not secured nor removed from the mine floor. The lumber was protruding up out of the mine floor and ranged in length from 7 feet to 2 feet, width 6 inches to 12 inches and 2 inches to 6 inches in thickness. The travelway is traveled by management personnel each operating shift. This condition is a violation of a Notice to Provide Safeguard(s) No. 3538483 dated, 8/17/1990, requiring that all bridging lumber used on the mine floors to be secured or that loose and dislodged pieces of lumber be resecured or removed from the travelway. This condition should have been observed by mine management who travel this area. Loose lumber was floating on top of the water in some of these areas.

Ex. G-A.

            Miller determined that it was highly likely that the violation would result in a fatal injury, that the violation was significant and substantial (“S&S”), that one person was affected, and that the operator’s negligence was high. The citation was issued pursuant to section 104(d)(2) of the Act, and alleged that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty, in the amount of $21,993.00, was proposed for this violation.

            AmCoal challenges the order on a number of grounds. It contends that: the safeguard is invalid for lack of specificity and that it was misapplied to the alleged conditions; there was no hazardous condition; an injury was unlikely to result; the violation could not be reasonably expected to result in a fatal injury; its negligence was low such that the orders should not have been issued pursuant section 104(d); and the assessed penalty is excessive.

The Validity of the Safeguard

            In Cyprus Cumberland Res. Corp., 19 FMSHRC 1781, 1784-85 (Nov. 1997), the Commission reiterated the law applicable to a determination of the validity of a safeguard.

Under section 314(b) of the Mine Act, the Secretary may issue “[o]ther safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials.” 30 U.S.C. § 874(b). In order to issue such a safeguard, an inspector, must determine that there exists an actual transportation hazard not covered by a mandatory standard and that a safeguard is necessary to correct the hazardous condition. Southern Ohio Coal Co., 14 FMSHRC 1, 8 (January 1992). (SOCCO II). He must also specify the corrective measures an operator must take. The Commission reviews the Secretary’s issuance of a safeguard under an abuse of discretion standard.

            The inspector’s decision to issue a safeguard must be based upon “his evaluation of the specific conditions at a particular mine and on his determination that such conditions create a transportation hazard in need of correction.” SOCCO II, 14 FMSHRC at 11-12. A safeguard “must identify with specificity the nature of the hazard at which it is directed and the conduct required of the operator to remedy such hazard.” Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (SOCCO I). It is the Secretary’s burden to prove the validity of a safeguard. SOCCO II, 14 FMSHRC at 13-14. While the language of a safeguard, which may be issued without consulting with representatives of the operator, must be narrowly construed, the Secretary’s authority to issue a safeguard is interpreted broadly. Cyprus Cumberland, 19 FMSHRC at 1785; SOCCO I, 7 FMSHRC at 12.

            AmCoal argues that the safeguard does not identify with specificity the particular hazards it was intended to address. It contends that an operator needs clear notice of an inspector’s rationale in issuing a safeguard and the specific hazards that might befall miners so that it can ensure that it does what is necessary to comply. These same arguments, and others, were raised by AmCoal in cases pending before other Commission Administrative Law Judges. Those Judges rejected AmCoal’s arguments and affirmed the validity of Notice to Issue Safeguard 3538483. I also reject AmCoal’s challenge to the safeguard.

            AmCoal seizes upon language from SOCCO I and argues that a safeguard must identify particular and specific hazards, e.g., specify the precise mechanics of how a piece of loose bridging lumber could result in an injury to a miner. I reject that argument. While the language imposing required conduct on an operator must be narrowly construed, the Secretary’s authority to issue a safeguard is interpreted broadly. This safeguard identifies the hazardous condition it was designed to address; “Numerous pieces of bridging lumber (2-1/2" x 10-1/2" x 12'-14') . . . were dislodged or protruding from the mine floor along the travel entry” rendering it unsafe for the passage of miners and material. Nothing more is required. I find that the Secretary has established that issuance of the safeguard was not an abuse of discretion.

            Much of AmCoal’s argument is grounded on familiar due process concepts, i.e., that it must have fair notice of what is required to enable it to do what it necessary to comply with the safeguard. These arguments are more properly addressed to the interpretation of the safeguard, not its validity. However, the requirements of the safeguard could hardly be clearer. It directs that “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.” I find no ambiguity in that language and, with limited exceptions, AmCoal points to none.

            I find that Notice to Issue Safeguard No. 3538483 is valid.   

The Violation

            There is no significant dispute about the presence of loose bridge boards in the travelway, ranging in length from two to seven feet. AmCoal does not contend that the boards were not present, as described in the order and by Roberts and Miller in their testimony and notes. Hamby, who was with Miller and Roberts when the order was issued, testified that he didn’t see any boards sticking up, and the boards that he saw didn’t present a hazard. Tr. 390-91, 409. He confirmed that there was a seven-foot board, but said it was laid up on a rib. Tr. 409-10. I find that there were loose and dislodged bridge boards in the travelway, as described by Miller and Roberts.

            AmCoal argues that the safeguard was written too broadly, has been enforced inconsistently, and should not have been applied to those particular boards because they did not present the same hazard as the condition that led to the issuance of the safeguard. Essentially, it argues that the safeguard should be interpreted restrictively as applying only to loose or dislodged bridge boards that are the approximate length of the board involved in the 1990 fatality, i.e., 10-12 feet. Stephen Willis, AmCoal’s manager of health and safety, did not see the condition as cited, but opined that the boards referred to in the order did not pose the type of hazard that resulted in the 1990 incident. Tr. 287. He also described the configurations of different types of mobile equipment that used the travelway, and expressed his opinion that an incident like the 1990 fatality was highly unlikely to result from the presence of the cited boards. Tr. 288-93.

            The safeguard was, indeed, written broadly. It covers all loose or dislodged bridge boards, and requires that they be secured or removed from travelways. The hazards presented by loose boards in travelways are not restricted to the specific circumstances of the 1990 incident. Miller and Roberts explained that there were several ways that a board could cause serious injury, including becoming wedged against a rib, or flipping up into an operator or passenger compartment. These were not fanciful speculations. Especially at the underpass, mobile equipment was subject to considerable sideways movement, both intentional and unintentional. Vehicles had to travel up a grade, gaining approximately four feet in elevation before reaching the established roadway height at the next crosscut, roughly 100 feet away. In watery/muddy/slurry conditions, heavy equipment such as ram cars had to be maneuvered side-to-side to gain enough traction to climb the grade. Tr. 44. Hamby agreed that in such conditions equipment had to “worm and squirm” to get through. Tr. 380. Willis confirmed that heavy equipment would have to be maneuvered side-to-side. Tr. 277-78. Roberts testified that equipment had to make a 90-degree turn where the South Sub-Main travelway met the 9th West headgate travelway, and that equipment operating in wet, soft, muddy conditions can “fishtail a lot or slide a lot.” Tr. 213. That movement, particularly in slippery, deeply rutted conditions, could result in loose pieces of lumber being pushed against a rib, into the side of a deep rut, or into mud built up along a rib, a condition he observed six days later, as noted infra. Such pieces of lumber, of any appreciable length, e.g. four-seven feet, could enter the operator or passenger compartment of a piece of mobile equipment resulting in injury to a miner.

            There were several different pieces equipment that used the travelway, including, ram cars, scoops, tractors, golf carts, mantrips and shield movers. The varying configurations of the vehicles, particularly, the locations of operators and/or passengers, presented different potentials for injuries to miners caused by loose lumber. Tr. 45, 88, 97, 230-32. Mantrips, carrying as many as 16 miners, have open sides. A piece of lumber stuck in mud on the miner floor, or along a rib or the side of a rut, could enter the operator or passenger area of such a vehicle, especially if it was sliding or turning in slippery conditions. Tr. 88, 236. Similarly, miners riding in golf carts are exposed to injuries from loose lumber. While they most likely would not suffer an impalement like in the 1990 incident, the carts could slide around in ruts left by heavier, larger equipment, exposing the occupants to pieces of lumber that had been pushed against a rib, or embedded in mud. Tr. 92, 96. A smaller board could be flipped up by a wheel. Tr. 92-93.

            Moreover boards considerably shorter than 12 feet could present an impalement hazard, as in the 1990 incident. One end of a board seven feet in length, for example, could be pressed down into the fire clay bottom and the opposite end could remain elevated after the wheel passed over the board. Roberts testified, and I agree, that he could not rule out the occurrence of an accident similar to the 1990 incident caused by a smaller board. Tr. 229-30, 236. Following the 1990 accident, steel bar “lips” were welded along the top edge of ram car operator’s compartments in an effort to prevent boards from riding up the side and entering the compartment. Tr. 274; Ex. R-79. While the bars might catch a board that was sliding up the low front wall of the compartment and prevent it from contacting the operator, a board could still pose a risk of serious injury, and the lip would not catch the end of a board that was at or above its height.

            As noted above, Hamby and Willis expressed opinions that the boards cited in the order did not present hazards. However, they also agreed that “anything can happen,” that the potential injuries described by Roberts and Miller were possible, and that neither boards nor other objects should be in travelways. Tr. 276, 292-93, 298, 390.

            To the extent that AmCoal’s “overly broad” argument is addressed to the validity of the safeguard, I find that it was well within the Secretary’s discretion to issue a safeguard that addressed the breadth of hazards presented by loose boards in travelways. To have restricted the safeguard to 10-12-foot-long boards, would not have provided the protection to which miners were entitled.

            AmCoal’s argument that the boards in question did not present hazards, and that the safeguard should be restricted to only cantilever hazards presented by boards of approximately 12 feet in length, is rejected. It would entail a substantial and unjustified re-writing of the safeguard. I find that the loose and dislodged boards in the travelway violated the safeguard.

Significant and Substantial

            The Commission recently reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC ___, ___ (October 5, 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., 6 FMSHRC 1824, 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 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)).

            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 loose and dislodged pieces of lumber from the travelway, i.e., that a person using the travelway would be injured by the boards. While some injuries resulting from the violation, e.g., a contusion resulting from a small piece of lumber being flipped up, might not be reasonably serious, the majority of the injuries posed by the presence of more lengthy boards that could impale an 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.

            Miller determined that the hazard was highly likely to result in a fatal injury. AmCoal challenges both determinations, and argues that the hazard was unlikely to result in an injury and that any injury would not have been fatal.

            Miller and Roberts measured six pieces of bridging lumber that were in the travelway. The lengths of the pieces were seven feet, six feet, 42 inches, 40 inches, 36 inches and two feet. Tr. 38; Ex. G-A (notes at 7). The cross-section of the six-foot piece was six inches by six inches. The two longest pieces presented the more serious hazard. As noted above, under certain specific conditions, they could result in an impalement injury similar to the 1990 incident, i.e., either a fatality or a reasonably serious injury.

            As to the likelihood of an injury causing event occurring, the Secretary argues that there was heavy traffic through the area and that the condition had existed for more than one shift and would have continued to exist for some time. AmCoal was setting up to mine a new longwall panel. Mining crews were being transported on mantrips and golf carts and numerous trips to the set-up area were being made by heavy equipment, all of which had to traverse the wet slippery conditions at the underpass. AmCoal used shield movers or heavy ram cars to move up to 10 shields per shift, each weighing 15 tons. There is no dispute that there was a high volume of traffic through the area during the set-up process.

            As to the length of time that the condition had existed, there is insufficient evidence to establish that it had existed for any appreciable length of time prior to the issuance of the order. However, there is evidence that it would have continued to exist for some time, had it not been cited.

            There is no evidence as to exactly when the boards became dislodged from the bridges. Miller did not know when the boards had become dislodged. Tr. 49. He testified that, judging from the number and appearance of the boards, that the damage did not occur on the previous shift, but had existed for “some time.” Tr. 49, 68-69. However, it is apparent that his conclusion that the subject condition had to have deteriorated over a period of time greater than a shift or two was more a reference to the generally poor condition of the travelway at the underpass than to the presence of the boards. Tr. 49-50, 65. In responding to a question about the length of time the condition existed, Miller first referred to the road, and then corrected to the boards, before stating that the condition existed for some time and did not just occur. Likewise, in addressing the companion examination order, he explained that the bridge board condition had existed for “quite some time,” in part by noting that the longwall foreman had told him that conditions were “too bad to travel out of the [set-up] area,” presumably observations he would have made on his way into the set-up area at the beginning of the shift. Tr. 62. The conditions that the foreman had referred to were muddy, rutted roadways, not the presence of loose bridge boards. Tr. 63-64.

            There was general agreement that heavy equipment, e.g., a ram car moving a shield or loaded with rock dust, could do considerable damage to a bridge. Tr. 67, 240, 277-78, 306, 343. Earlier on the shift, five shields had been moved through the underpass, and four ram cars loaded with rock and rock dust had traversed it. Tr. 318-20, 400. Any of those pieces of heavy equipment could have dislodged the boards. While it may have been reasonable to conclude from the number of board pieces that more than one piece of heavy mobile equipment caused the damage, the nine ram cars could easily have dislodged and broken those pieces of lumber during the 4:00 p.m. to 12:00 midnight shift.

            As to the appearance of the boards, Miller testified that he recalled that none of the boards appeared to have been freshly broken. Tr. 68-69. However, it is apparent that Miller had virtually no recollection about the appearance of the boards, and that his conclusion about their appearance was, essentially, a deduction from the fact that he had commented in his notes that the condition had existed for some time. Tr. 66-69. He conceded that there is no reference to the appearance of the boards in his notes. Tr. 67-69. Hamby testified that he had been through the area several times earlier on the shift, the last time about two hours before the order was issued, and had not seen any loose boards. Tr. 390-92. He also opined, referencing notes made by Paul Vuljanic, an AmCoal project engineer, who was also at the scene and helped to investigate the alleged violation, that the boards appeared to have been freshly broken. Tr. 385-87; Ex. R-67.

I have serious doubts that even a seasoned inspector like Miller or Roberts could reliably determine whether a broken piece of wood had been lying in those muddy conditions for one hour, 12 hours, or longer, based solely on its appearance. The conditions were extremely muddy, and a freshly broken board that had been lying in the mud could easily be judged to have not been freshly broken. It is more plausible that a recent break might appear to have been fresh. I find that there is insufficient evidence to justify a finding that the boards had been dislodged on an earlier shift.

            It is likely, however, that the boards would have remained in the travelway for some time. AmCoal was intent on completing the longwall set-up, and would have continued to send equipment through the underpass. AmCoal’s examiners conduct a visual inspection; they do not probe for sub-surface objects. Tr. 359. Muddy boards in those conditions would be very difficult to see, particularly by an equipment operator who was attempting to navigate the borderline passable travelway. While the pieces that were “protruding” would have been easier to spot, passing equipment could push them down into the mud. Following the 1990 incident, Kerr-McGee, and now AmCoal, continuously train all employees to look for and remove loose or dislodged bridge boards from travelways. Tr. 224-25, 279, 349. However, it would not be unreasonable to assume that an operator of mobile equipment attempting to navigate the heavily-rutted, water-filled, muddy slopes at the underpass would be reluctant to stop, or wade back on foot, to retrieve a loose board, particularly a smaller piece of board that might not be perceived as a hazard.

            To establish the severity of injury, i.e., that it would be fatal, the Secretary relies on the fact of the 1990 accident, a generalized statement by Roberts that “there have been similar types of accidents in the industry, not always associated with lumber, but with other types of rigid or semi-rigid materials,” and Willis’ acknowledgment of an incident in 2003, where a scoop operator was fatally injured by a piece of PVC water pipe. Tr. 215, 356. AmCoal maintains that the 2003 incident, which involved a 20-foot long segment of 4-inch diameter PVC water pipe, with a metal coupling on the end, bears no resemblance to the 1990 incident or the risks presented by the much shorter pieces of lumber at issue here. It also points to the fact that there have been no lost-time accidents attributable to bridge boards at Galatia in the past 20 years, despite the utilization of hundreds of bridges that suffer continuous, ongoing damage. Tr. 98, 278, 367.

            It is apparent that Miller’s determination as to the severity of injury was based, almost exclusively on the occurrence of the fatality in 1990. As he recorded in his notes: “If an injury [were] to occur it would be fatal as this mine has had a fatal because of this type of condition.” Tr. 39; Ex. G-A (notes at 12). The 1990 accident was a highly unusual incident that occurred under very specific conditions. A 12-foot board was lying parallel to the line of travel of a ram car, the operator’s compartment of which was directly behind the lead wheel by about 12 feet. Steel bar “lips” were subsequently welded on the operator’s compartments of all ram cars in an effort to prevent such boards from entering the compartment. None of the other types of mobile equipment traversing the area share that ram car’s configuration. The boards at issue here were no longer than seven feet. Roberts testified that the shorter boards did not present the same hazard as a 12-foot board, but that one could not “rule out” a fatal accident caused by a shorter board. Tr. 228-31. I find that, while it is possible that a fatal impalement-type injury might occur with a seven-foot board, it is unlikely that such an event would occur. The general, unexplained reference to similar types of accidents, and the dissimilar 2003 incident, do not alter that conclusion.

            Miller and Roberts identified several other potential means by which a board might cause injury to an operator or passenger, including becoming wedged against a pillar by a sliding or turning piece of equipment and bowing or bending and snapping into a vehicle such as a mantrip or golf cart. Again, it would be possible that such an incident could occur. However, it seems unlikely that those lighter vehicles would bow or bend a six or seven foot board, especially one with the cross section of the six-foot piece, i.e., six-by-six inches. Such a piece of lumber would more likely hold the vehicle away from the pillar and, if it entered the side of the vehicle, would not result in a fatal injury.

            Because of the high volume of traffic, the fact that the boards had been in the area for part of a shift and were likely to remain for several hours, and the underpass was an area where mobile equipment struggled to get through very difficult conditions, I find that under continued mining conditions it was reasonably likely that a board could enter a vehicle and strike the operator or a passenger, resulting in a reasonably serious injury.

            I find that the violation was S&S, but that it was not highly likely to result in a fatal injury. Rather it was reasonably likely to result in an injury requiring lost time or restricted duty.

Unwarrantable Failure - Negligence

            In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. 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, 194 (Feb. 1991) (“R&P”); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

            The Secretary argues that the violation was the result of AmCoal’s unwarrantable failure because, despite being aware of the condition, it continued mining operations and made no effort to address or remedy the hazard. The Secretary also maintains that AmCoal had been put on notice that greater efforts were necessary for compliance. AmCoal counters that it was not aware of the dislodged bridge boards at the underpass, and that, prior to issuance of the orders, it had taken steps to address travelway conditions, including pumping down water accumulating at the underpass.

            The Secretary is correct in pointing out that there was considerable notice to AmCoal that conditions on the travelways were deteriorating because of the large volume of heavy equipment traffic associated with the longwall move. When Roberts was at the mine earlier in the day, he observed numerous pieces of heavy equipment including the longwall stage loader, being moved toward the set-up area. Tr. 200-01. He pointed out to an AmCoal shift mine manager that substantial damage was being done, and would likely be done, to the travelways and bridges, and asked him to follow-up with the oncoming shift. Tr. 201-02, 208. In addition, MSHA had met with AmCoal safety personnel in an effort to secure better maintenance of travelways and reduce the number of citations and orders issued for such violations. Tr. 50-51. However, most, if not all, of the Secretary’s “need for greater compliance effort” evidence pertains to general roadway conditions affecting the ability of equipment and personnel to use the travelways, not to hazards presented by loose or dislodged bridge boards. While such general maintenance evidence is relevant to the issue of whether AmCoal was on notice that greater compliance efforts were needed, it does not establish that AmCoal was on notice that it needed to pay closer attention to the somewhat unique hazards presented by loose or dislodged bridge boards.

            As to general roadway conditions, AmCoal introduced credible evidence that it was attempting to address deteriorating roadway conditions, including the condition at the underpass. The preshift examiner for the oncoming 4:00 p.m. to midnight shift, had noted water build-up at the underpass and indicated that road work was needed on the 9^th West Headate travelway. Tr. 394-96; Ex. R-43. Hamby had reviewed the report and noted the entries when he started his shift and made work assignments. At his direction, the water in the underpass was pumped down and grading was done on the roadway from crosscuts 17-23. Tr. 324, 395-97, 402-04; Ex. R-43. On the previous shift, work had been done on the 9^th West Headgate roadway, and that set-up road had been shut down for the entire shift for road work. Tr. 310-16: Ex. R-53.

            The evidence on the issue of whether AmCoal was on notice of the dislodged bridge boards is not nearly as strong as the Secretary asserts. Miller believed that AmCoal was on notice of the condition because he concluded that it existed for more than one shift and that management personnel, including the longwall boss he talked to after issuing the order, would have traveled through the area during the preshift examination for the second shift and during the shift change at the beginning of the second shift, i.e., around 4:00 p.m. Tr. 47, 62. As he recorded in his notes, the condition was “on the travelway used by man trips that are operated and/or supervised by section foremen,” and that management had been in the area on the shift before the order was issued. Ex. G-A (notes at 14). In his testimony, Miller also opined that the preshift examiner for the oncoming midnight shift, who would have traveled the area between 9:00 p.m. and 11:30 p.m. when the order was issued, should have seen the condition. Tr. 62-63.

            As noted in the S&S discussion, there was insufficient evidence to justify a finding that the boards had been dislodged on an earlier shift. Consequently, the primary “notice” evidence relied upon by the Secretary, and the only notice evidence recorded by Miller in his notes, is unavailing. It is likely that at least some of the boards had been dislodged by the time the preshift examination was conducted, after 9:00 p.m. on May 1, and possibly could have been seen by the examiner. However, it is also likely that at least some of the nine pieces of heavy equipment that traversed the area during the shift did so after the preshift examination had been conducted, and could have dislodged some of the boards and/or rendered them more visible. The report of the preshift examination that was conducted between 9:00 p.m. and 12:00 a.m. on May 1, does not note the presence of dislodged bridge boards at the underpass, but does note rutted and muddy conditions on the 9th West Headgate travelway. Ex. R-43. On the whole, while it is possible that AmCoal should have been on notice that there were dislodged bridge boards in the travelway, I find that the Secretary did not carry her burden of proving that AmCoal had actual knowledge of the conditions.

            On the factors relevant to the unwarrantable failure determination, I find that the following considerations weigh against a finding of unwarrantable failure: AmCoal did not have knowledge of the hazardous condition; the condition did not exist and was not obvious for a significant period of time and was most likely caused by one or more of the nine ram cars that traveled through the underpass on the 4:00 p.m. to midnight shift; the condition was confined to the area of the underpass and was not extensive; while it was S&S, it did not pose a high degree of danger; and, AmCoal’s abatement efforts were prompt and effective. I find the need for greater compliance efforts factor weighs in favor of a finding of unwarrantable failure, but not strongly. While AmCoal was on notice that hazardous travelway conditions were occurring and were likely to occur, and that such conditions could include dislodged bridge boards, it had taken steps to address deteriorating roadway conditions, including pumping of accumulated water at the underpass. The previous violations that prompted the meetings with MSHA to discuss remedial action appear to have been directed to the wet conditions and resulting deterioration of the roadways. Because of the nature of the use of bridges, continued attention to such problems should have been, and apparently was, a focus of AmCoal’s travelway maintenance efforts.

            I find that the violation was not the result of AmCoal’s unwarrantable failure, and that its negligence was moderate.

Order No. 6673961

            Order No. 6673961 was issued by Miller at 4:15 a.m. on May 2, after exiting the mine and re-checking the preshift examination records for references to the dislodged bridge boards at the underpass. It alleges a violation of 30 C.F.R. § 75.363(a), which requires that hazardous conditions found during required examinations “be posted with a conspicuous danger sign where anyone entering the areas would pass. A hazardous condition shall be corrected immediately or the area shall remain posted until the hazardous condition is corrected.” The subject order alleges that the hazardous condition identified in Order No. 6673958 was, or should have been, observed by AmCoal managers and was not immediately corrected or posted with a conspicuous danger sign. Miller determined that the violation was highly likely to result in a fatal injury, that it was S&S, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $21,993.00 was proposed for this violation.

The Violation

            As noted in the discussion of the unwarrantable failure issue with respect to the safeguard order, I have found that AmCoal did not have actual notice of the conditions. There is insufficient evidence to justify a finding that the condition existed for more than one shift, as Miller believed. Consequently, the management personnel who would have traveled through the area during and prior to the 4:00 p.m. shift change cannot be charged with observing and reporting the condition. As also noted in that prior discussion, the Secretary failed to carry her burden of establishing that the condition existed and was visible during the preshift examination that was conducted between 9:00 p.m. and 11:30 p.m., such that AmCoal should have had knowledge of the condition.

            Because the Secretary failed to prove by a preponderance of the evidence that the hazardous condition that allegedly should have been observed, reported, and dangered-off or remedied, i.e., loose or dislodged bridge boards, had existed and was visible when the examinations were made by AmCoal managers, I find that Order No. 6673961 must be vacated.

Order Nos. 6673588 and 6373589

            Roberts returned to the mine on May 7 to complete the investigation of the code-a-phone complaint by inspecting the 9th West longwall’s tailgate entries that he and Miller could not get to on May 1. In the course of the inspection, he issued Order No. 6673588 for an alleged violation of the previously discussed safeguard for loose and dislodged bridge boards near a feeder. He also issued Order No. 6373589, for AmCoal’s failure to identify and correct the bridge board hazard during on-shift examinations.

Order No. 6673588

            Order No. 6673588 was issued by MSHA inspector Keith Roberts at 10:40 a.m., on May 7, 2008, pursuant to section 104(d)(2) of the Act. It alleges a violation of section 314(b) of the Act and 30 C.F.R. § 75.1403, and charges Respondent with violating the previously discussed Safeguard No. 3538483. The violation was described in the Condition and Practice section of the Order, as amended, as follows:

Loose, broken, unsecured and dislodged bridge boards are present in the 9^th West Tailgate (MMU 005-0) working section at the feeder breaker location, the No. 3 Entry between 5550' W and the connecting cross cut between No. 3 & No. 4 entries at 5625' W.

At the feeder location five (5) bridge boards have been dislodged and are exposed and/or loose and unsecured. These exposed/dislodged bridge boards range from 12" to 36" [long] x 5" - 11" [wide] x 2" [thick].

In the No. 3 entry, a bridge board approximately 44" [long] x 5" [wide] x 2" [thick] is present in the shuttle car haulage road. Four (4) splintered bridge boards ranging from 5' - 8' [long] x 6" [wide] x 2" [thick] are present on a ledge above and adjacent to the road along the south rib.

Loose, unsecured, broken and splintered bridge boards are present in the connecting cross cut between entry No. 3 and entry No. 4 at 5625' W. A splintered board approximately 4' [long] x 1 1/2" [wide] x 1 -2 “ [thick] is protruding from the “wind row” of mud/gob along the east rib line. Bridge boards approximately 44" [long] x 4" [wide] x 2" [thick], 5.5' [long] x 1 - 5" [wide] (tapered) x 2" [thick], and 8' [long] x 6" [wide] x 2" [thick] have been run over by mobile equipment as evidenced by tire tread markings on the boards and the boards being depressed into the floor. A Wagner diesel-powered coal scoop, Co. No. CS-11, has traveled over the bridge boards and is still located in the cross cut.

This condition is a violation of Section 314(b) of the Mine Act and the Notice to Provide Safeguard(s) No. 3538483, dated 08/17/1990 requiring that all bridging lumber used on the mine floor be secured or that all dislodged pieces of lumber be re-secured or removed from the travelway.

This condition represents a distinct power haulage hazard to a miner operating the coal scoop or the ram car using the travel road or connecting cross cut.

The mine operator has a repeated history of citations and orders for violation of the standard, including three 104(d)(2) orders issued since 04/11/2008 for similar conditions.

Ex. G-D.

            Roberts determined that the violation was highly likely to result in a fatal injury, that it was S&S, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $21,993.00 was proposed for this violation.

            AmCoal challenges this order on the same grounds that it challenged the previous safeguard order. Aside from the previously rejected challenge to the validity of the safeguard, it contends that: the safeguard was misapplied to the alleged conditions; there was no hazardous condition; an injury was unlikely to result; the violation could not be reasonably expected to result in a fatal injury; its negligence was low such that the order should not have been issued pursuant section 104(d); and the assessed penalty is excessive.

The Violation

             While traveling the 9th West tailgate, Roberts observed loose and dislodged bridge boards and pieces of boards at several locations in the area of a feeder used in development of the tailgate entries as a travelable bleeder for the longwall panel. The sizes and locations of the boards are described in the Order and Roberts’ notes. Ex. G-D. Bob Hatcher, at the time a member of AmCoal’s safety department, accompanied Roberts and assisted in measuring the boards. Hatcher, who began working for MSHA prior to the hearing, also took notes, and prepared a report on the alleged violation. Ex. R-69, R-70. While Hatcher purportedly disagreed with Roberts’ assessment of the hazards presented by the boards, his description of the location of the boards largely comports with Roberts’. I find that the loose and dislodged bridge boards were present in the travelway, as described by Roberts, and that the safeguard was violated.

S&S - Gravity

            As with the boards that were the subject of the previously discussed orders, AmCoal disputes the gravity of the violation, and contends that the boards did not present hazards, especially hazards that were highly likely to result in a fatal injury.

            While some of the boards did not present serious hazards, there were several loose boards of significant length that were located in the portion of the travelway actually used by mobile equipment. Both Roberts and Hatcher identified boards of 44 inches, eight feet, and five and one-half feet that were lying in the travelway, and a splintered board protruding from a windrow. Ex. G-D, R-69, R-70. Some of the boards were removed by being pried up from the floor, but that was simply an indication that they had been pressed down into the mine floor, not that they were still secured or attached to a bridge. Tr. 512-13.

            AmCoal argues that several of the boards did not present hazards. The five boards near the feeder were relatively short, the longest was three feet, and did not pose an impalement hazard. Roberts testified that he would not cite “just small boards;” they had to have some size to pose a hazard to mobile equipment operators. Tr. 454-55. There also were boards located in the travelway that were worn or “serrated,” close to where a five-and-one-half-foot board was laying. Roberts’ notes reflect that they were “exposed but secured,” i.e., still attached to a bridge, and he explained that they were not included in the order. Tr. 456, 466-67; Ex. G-D. At Hatcher’s direction, a scoop was used to pull some of those boards free using a chain. Others were sawed through to allow their removal. Roberts commended Hatcher for removing them as a means of preventing them from becoming loose, like the other boards that resulted in the violation. Tr. 456, 466-67. There apparently were also some boards that may have been secured to a bridge in the area where the approach wheel of a shuttle car would stop when dumping on the feeder. It is unclear whether those boards were included in the order. Four boards had been placed on a “windrow,” a build-up of mud along the rib that was three feet high and four feet wide. Those boards were in the travelway, but they were not located where mobile equipment would encounter them, as least while they remained on the windrow. Roberts acknowledged that they did not present a hazard in that location, but believed that they had been improperly stored and could fall down onto the traveled part of the roadway. Tr. 452.

            Accepting AmCoal’s arguments, the fact remains that there were several loose boards of significant length in the travelway. There is no material difference between the hazards presented by the boards at issue in Order No. 6673958 and those that were the subject of this order.

            Roberts was unable to state when the boards had been dislodged. Tr. 440. He knew, and AmCoal’s production reports confirm, that coal had not been mined on the day shift prior to his arrival. Tr. 453; Ex. R-53. He concluded that the boards had become dislodged during the 12:00 a.m. to 8:00 a.m. shift, when coal had been produced in development of the tailgate entries and shuttle car and other traffic would have occurred in the area. Tr. 435-37. As he explained, there were no shuttle car runs for production on the day shift, consequently, the boards “would have had to have been dislodged on the midnight shift.” Tr. 440. AmCoal contends that even though no coal was being produced, mobile equipment was operating in the area on the day shift and could have dislodged the boards. A crew was working inby the feeder installing bridges, and bridging material would have been brought through the travelway and connecting crosscut by a scoop, or, possibly a ram car. Roberts confirmed that the bridging crew was working inby the feeder on the day shift. Tr. 419, 422. Roberts also believed that mechanics were traveling in the area to attend to disabled equipment. Tr. 419.

            Chris Ferrell, AmCoal’s mine foreman on the 12:00 a.m. to 8:00 a.m. shift, has 31 years of experience in the mining industry. He would have conducted the on-shift examinations that were the subject of the companion order issued by Roberts for a failure to identify and correct the hazardous condition. The report of his on-shift examination reflected that conditions were “safe.” Tr. 244; Ex. R-43. He testified that he examined the area of the feeder five-to-six times per shift, and was last in that area between 7:00 and 7:30 a.m. Tr. 245, 261. He was aware of the hazards posed by loose bridge boards and the 1990 fatality, took care to identify and remove dislodged boards, and was certain that there were no unsecured boards in the cited area when he last examined it. Tr. 250-55.

            While I found Ferrell to have been a credible witness, I find that at least a majority of the boards had been dislodged during the 12:00 a.m. to 8:00 a.m. shift, or earlier. A scoop or ram car delivering bridges and supplies to the crew working inby may have caused some of the damage during the day shift. However, there is no evidence that a significant amount of mobile equipment traffic was associated with the bridging effort. There was considerably more traffic in the area during the midnight shift when coal was being produced by mining in the bleeder entries. The condition would also have existed for some time, had it not been cited by Roberts. It had not been discovered and/or corrected during previous examinations, and it could well have continued to exist through and, possibly, into the following shift.

            As with the previously discussed boards, I find the probability of a fatal injury occurring to have been remote. However, Miller and Roberts described several scenarios whereby boards that were 44 inches to eight feet in length could produce a reasonably serious injury. The floor of the mine in the area was soft and equipment needed to maneuver to access the feeder. I find that under continued mining conditions it was reasonably likely that a board could enter a vehicle and contact the operator or a passenger resulting in a reasonably serious injury.

            I find that the violation was S&S, but that it was not highly likely to result in a fatal injury. Rather it was reasonably likely to result in an injury resulting in lost time or restricted duty.

Unwarrantable Failure - Negligence

            Whether the violation was the result of AmCoal’s unwarrantable failure is a close question. Factors weighing against such a finding are: the condition was not extensive; while it was S&S it did not pose a high degree of danger; and AmCoal’s abatement efforts were prompt and effective. Factors weighing in favor of an unwarrantable failure determination are: the condition had existed for more than one shift; AmCoal was or should have been aware of the condition; and AmCoal had been put on notice that increased compliance efforts were necessary.

            The most significant factor is that AmCoal had been put on notice that increased compliance efforts were necessary. Roberts noted that AmCoal had been issued three section 104(d)(2) orders for safeguard violations since April 11, less than one month earlier. Tr. 433; Ex. G-D. One of those was the previously discussed Order No. 6673958, issued on May 1 for a violation of the dislodged bridge board safeguard. The particular safeguard violated in the other two orders was not identified. However, the two orders related to loose and dislodged bridge boards issued on May 1, coupled with the other evidence of prior notice discussed previously, should have alerted AmCoal to the need for increased efforts to comply with the subject safeguard. Dislodged boards can be difficult to see. As noted previously, and as pointed out by Ferrell, if they have been pressed down into the mud “sometimes you can’t see them,” and they can be exposed or “pulled up” by another passing vehicle. Tr. 256.

            As noted in the discussion of the examination order that follows, while I do not find that Ferrell had actual notice of the condition during the midnight shift, AmCoal is chargeable with notice of the condition. Because it had been put on notice that increased compliance efforts were required, it should have initiated more rigorous examination procedures to identify and remove loose or dislodged bridge boards.

            I find that the violation was the result of AmCoal’s unwarrantable failure to comply with the standard.

Order No. 6673589

            Order No. 6373589 was issued by Roberts at 3:00 p.m. on May 7, 2008, the same day as Order No. 6673588, and alleges a violation of 30 C.F.R. § 75.362(a)(1), which requires that on-shift examinations be conducted at least once during each shift to, inter alia, identify and correct hazardous conditions in areas where miners are assigned to work. Ex. G-E. The subject order alleges in the Condition and Practice section that:

An inadequate on-shift examination of the 9th West Tailgate working section (MMU 005-0) was conducted on the 12:00 a.m. - 8:00 a.m. shift of 05/07/2008 in that the hazardous condition detailed in Mine Order No. 6673588 was neither immediately corrected nor posted with a conspicuous danger sign where anyone entering the area would pass and recorded in a book maintained for that purpose.

Ex. G-E.

            Roberts determined that the violation was highly likely to result in a fatal injury, that it was S&S, that one person was affected, and that the operator’s negligence was high. The order was issued pursuant to section 104(d)(2) of the Act, and alleges that the violation was the result of AmCoal’s unwarrantable failure to comply with the standard. A civil penalty in the amount of $21,993.00 was proposed for this violation.

The Violation

            Roberts testified that he does not issue examination orders “lightly.” Tr. 436-7. He believed that an on-shift examination was done, but that it was inadequate, and did not understand how the “readily visible” boards in that “relatively small area” could not have been seen by an examiner. Tr. 434-37, 440. Ferrell, who conducted the on-shift examinations on the midnight shift, the latest around 7:00 a.m., did not see dislodged boards and reported that the area was safe. Tr. 244; Ex. R-43. As noted in the discussion of Order No. 6673588, a majority of the boards had most likely been dislodged during the midnight shift and were present during one or more of Ferrell’s examinations. However, they may not have been as “readily visible” as when Roberts saw them. Mobile equipment servicing the bridging crew could have altered the location and/or appearance of the boards, e.g., it is highly likely that the board protruding from the windrow was put in that position after the examinations had been done, otherwise Farrell would have seen it.

            As explained with respect to the previous order, AmCoal should have been on notice that increased efforts to comply with the bridge board safeguard were required. It should have imposed a more rigorous examination procedure, whereby even loose boards that had been pressed into the muddy mine floor, but were not completely covered with mud, would have been detected and removed or re-secured. AmCoal maintained that it is always vigilant for loose bridge boards, and that they are routinely removed from travelways when observed. It also points to the fact that it has experienced no lost time accidents as a result of loose bridge boards for at least many years. That may be accurate. However, it had been the recipient of two section 104(d)(2) orders on May 1 as a result of loose and dislodged bridge boards, and it had received two other (d)(2) orders for safeguard violations within the past month. Yet it took no additional measures to identify and remove loose bridge boards. Willis cited AmCoal’s continuing efforts to comply with the safeguard, but conceded that he “couldn’t say that [AmCoal] did anything differently after the May 1 orders were issued.” Tr. 488.

            I find that a majority of the boards cited by Roberts had been dislodged during the midnight shift and were present when Farrell made one or more of his examinations. They should have been detected and removed from the travelway, or the area should have been dangered-off until the condition could be corrected. I find that the standard was violated.

            S&S - Unwarrantable Failure

            The inadequate on-shift examination resulted in the hazardous bridge board condition continuing to exist, at least for the remainder of the shift and most likely well into the oncoming shift. There is no evidence that the examination was otherwise deficient. For the reasons identified above with respect to the safeguard violation, and considering that this violation would have existed for a somewhat shorter period of time, I find that the violation was not highly likely to result in a fatal injury, but that it was reasonably likely to result in a reasonably serious injury, i.e., a lost work days or restricted duty injury, and that it was S&S.

            The violation of the on-shift examination standard does not lend itself to straightforward application of the traditional factors applied in the unwarrantable failure analysis. The inadequate examination was not “extensive,” and, like the safeguard violation, did not pose a high degree of danger. The order was terminated promptly after AmCoal was reminded of the requirements of the standard. The violation did not exist for any appreciable length of time, although its continuing effects would have extended into the next shift. AmCoal did not have knowledge of the inadequacy of the examination, although it is chargeable with knowledge of the underlying hazardous condition. The factor that weighs most heavily in favor of an unwarrantable failure finding is prior notice. The inadequacy of the examination was Farrell’s failure to detect dislodged bridge boards, at least some of which were most likely not as readily visible as they were when Roberts saw them. Farrell explained, as Willis had before, that a passing vehicle can pull/push up loose boards that previous vehicles had pressed down into the mud where they could not be seen. Tr. 256. Farrell knew about the safeguard and the 1990 fatality and paid particular attention to bridge boards. He should have been aware of the May 1 orders, and should have taken care to closely examine for such boards, including boards that may not have been readily visible.

            I found Farrell to be a credible witness, and find that he made a good faith effort to identify hazardous conditions, including dislodged bridge boards, when he conducted his on-shift examinations. I also find that with extra effort prompted by heightened awareness of problems with bridge boards, he should have identified the hazardous condition. However, I find that his negligence in failing to do so did not rise to the level of unwarrantable failure, but was moderate.

            Aside from its agent Farrell’s inadequate examination, AmCoal was also culpable. Because of the previous safeguard violations, it should not have relied on its normal examination procedures to identify dislodged bridge boards, but should have instituted more rigorous inspections designed to detect boards that had been loosened or dislodged, even those that were not readily visible. I also find that AmCoal’s negligence in failing to institute more rigorous examination procedures did not rise to the level of unwarrantable failure, but was moderate.

            Considering Ferrell’s and AmCoal’s negligence together, I find that they did not rise to the level of unwarrantable failure, but that AmCoal’s negligence with respect to the violation was high.

Citation No. 6674229 

            Citation No. 6674229, was issued by Roberts on May 30, 2008, 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, No. 3538483. The violation was described in the “Condition and Practice” section of the Citation as follows:

A 2" x 8" x 5' section of bridge board, unsecured and parallel to traffic flow is present on the 9th West Headgate/Longwall set-up unit travel road at XC-20.

This condition presents a distinct powered haulage hazard to mobile equipment operators traveling along this road in that the unsecured bridge board can foul against the frame of equipment and be forced into the operator’s compartment.

Ex. G-J.

            Roberts 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 high. A civil penalty in the amount of $8,893.00 was proposed for this violation.

            In defense of this citation, AmCoal asserts virtually all of the arguments made with respect to the previous safeguard orders, including its previously rejected challenge to the validity of the safeguard.

The Violation

            Roberts was continuing the regular quarterly inspection of the mine on May 30, 2008. At 9:00 a.m., shortly after an 8:00 a.m. “hot seat” shift change from the midnight to the day shift, he observed a partially dislodged bridge board in the roadway. He issued the instant citation for the safeguard violation, and also issued a citation for the poor conditions of the travelway/escapeway in that area.

            Roberts’ field notes reflect that the five-foot section of bridge board was “unsecured” and that it was “not completely dislodged.” Ex. G-J (notes at 3, 15). He testified that one end of the board was “kind of secured” but the other was not; it moved when it was hit. Tr. 524-25. The citation was terminated because the board had been removed when Roberts returned to the area 25 minutes later. Roberts did not know how the board was removed or how long the removal effort had taken. Tr. 531-34. AmCoal argues that the safeguard does not apply to partially dislodged five-foot long boards, which would not present a cantilever hazard like the 12-foot long completely dislodged board that resulted in the 1990 fatality.

            The safeguard requires that “loose and dislodged pieces of lumber be re-secured or removed from the travelway.” Ex. G-A. The board in question was loose, and would eventually have been completely dislodged by another piece of mobile equipment. Tr. 525. I find that the loose five-foot long board was present in the travelway in violation of the safeguard.

            S&S - Gravity

            With respect to the two previous safeguard violations, I found that multiple completely dislodged bridge boards that had remained in a travelway for at least part of a shift, and were likely to have remained in the travelway for some time thereafter, were reasonably likely to result in a lost time or restricted duty injury, and were S&S. Here, there was one loose, but not dislodged, bridge board. If it were to have become completely dislodged from the bridge, its five-foot length was sufficient to present a hazard to mobile equipment operators. However, while it remained attached, it presented a minimal hazard. Roberts reasoned that the board had most likely been loosened by a heavier piece of mobile equipment, such as one of the ram cars that had hauled cribbing material and rock dust on the previous shift. He did not think that the lighter vehicles involved in the just-completed shift change, would have caused the damage. Tr. 528-29. However, he also acknowledged that he observed the loose board “early in the shift right after equipment may have passed through” the area. Tr. 521. Whether, or when, the board would have become completely dislodged, and how long it would have remained in the roadway thereafter, are unclear.

            While I find Roberts’ determination that the board was loosened on the previous shift to be reasonable, it most likely was loosened toward the end of the shift. As Roberts noted, equipment that could have loosened the board may have passed through the area just before the citation was issued. In addition, AmCoal had been removing bridge boards from the travelway in the same location on the previous shift and, if the board had been loose or partially dislodged, it most likely would have been removed at that time. Tr. 537-40. Considering AmCoal’s increased compliance efforts, including its attention to bridge boards at crosscut #20 on the previous shift, I find that had the board become completely dislodged, it would have been removed from the travelway relatively promptly.

            While the loosened board existed for part of a shift, it did not present a significant hazard. Had it become completely dislodged, it would have been removed promptly. I find that the loose bridge board was unlikely to result in a lost time or restricted duty injury, and that the violation was not S&S.

            Negligence

            As Roberts noted, AmCoal had enhanced its efforts to comply with the safeguard after issuance of the May 1 and 7 safeguard orders. Tr. 521-22. AmCoal’s Production & Delay and on-shift examination reports for the 12:00 a.m. to 8:00 a.m. shift, which ended shortly before the citation was issued, reflect that loose bridge boards at crosscut #20 were removed, trash was removed and the roadway at that location was rehabilitated by the placement of bridges and other measures. Tr. 537-40; Ex. R-46, R-53. One end of the single board in question was still secured to the bridge and it may well have appeared to have been properly attached, especially in the muddy conditions. When Roberts saw it, the loose end of the board had been displaced. Tr. 524. While it was reasonable for Roberts to conclude that one of the heavier pieces of equipment, possibly a ram car, had detached one end of the board on the previous shift, it may not have been displaced enough to make it appear loose until struck by one of the lighter vehicles traversing the area for the shift change.

            Roberts believed that AmCoal should have been on heightened awareness for loose bridge boards and “should check all bridge locations each shift and repair as needed.” Tr. 523. He later added that “fairly frequent” checks of roadway conditions should have been performed. Tr. 527-28. It is apparent from AmCoal’s efforts on the immediately preceding shift that it was monitoring the conditions of the travelway at least once a shift, and probably more frequently. Considering that this one bridge board was loose for only a small part of a shift, and may not have been displaced until shortly before the citation was issued, it was not the result of AmCoal’s high negligence.

            I find that AmCoal’s negligence with respect to this violation was low.

Citation No. 6674228 

            Citation No. 6674228 was issued pursuant to section 104(a) of the Act and is the escapeway violation issued by Roberts on May 30, 2008, in conjunction with the safeguard citation discussed above. It alleges a violation of 30 C.F.R. § 75.380(d)(1), which requires that escapeways be “maintained in a safe condition to always assure passage of anyone, including disabled persons.” The violation was described in the “Condition and Practice” section of the Citation as follows:

The primary escapeway for the 9th West Headgate/Longwall set-up unit is not being maintained to always assure the safe passage of anyone, including disabled persons. Standing, muddy (clay) water and slurry-like clay mud, ranging from 8" - 14" in depth, is present on the mine floor, rib-to-rib, extending from XC-17 to XC-19, XC-20 to XC-21 and the intersection of XC-24. The water and mud covers bottom irregularities (ruts and “pot holes”) throughout these areas.

Ex. G-H.

            Roberts determined that the violation was reasonably likely to result in a lost workdays or restricted duty injury, that it was S&S, that eight persons were affected, and that the operator’s negligence was high. A civil penalty in the amount of $7,578.00, was proposed for this violation.

            Respondent does not dispute the fact of violation or the gravity, except to challenge the number of persons affected. It also challenges the degree of negligence and the amount of the penalty. Tr. 560.

Persons Affected

            The location of the violation was the main travelway for the 9^th West longwall, which also served as the primary escapeway. Roberts determined that eight persons would be affected by the violation because a typical crew for the longwall consisted of eight miners, and he believed that it was reasonably likely that all eight would be injured in the event that evacuation through the escapeway was required. Respondent argues that, because the longwall was not operating (it was being set up), and Roberts did not confirm that eight miners were inby at the time, that the Secretary did not establish that eight persons would be required to use the escapeway, and that it is not reasonably likely that all persons using the escapeway would be injured.

            Roberts determined from his experience that eight miners would be on the longwall set-up crew. Eight occupations/positions for a typical longwall crew had been listed in AmCoal’s records, and names had been entered for the various positions. Tr. 589. Because those miners were not operating the non-functional longwall, he concluded that they were working on the longwall set-up. Roberts also believed that additional persons might be inby, e.g., equipment operators or mechanics. In the absence of evidence to the contrary, I find that eight persons would have been required to use the escapeway in the event that evacuation was required.

            The number of persons affected by a violation is part of the gravity assessment. As stated in the Secretary’s penalty assessment regulations; “Gravity is determined by the likelihood of the occurrence of the event against which a standard is directed; the severity of the illness or injury if the event has occurred or was to occur; and the number of persons potentially affected if the event has occurred or were to occur.” 30 C.F.R. § 100.3(e). MSHA’s Citation and Order Writing Handbook for Coal Mines and Metal and Nonmetal Mines, provides a further explanation of the term persons affected: “ The number of persons affected is the number of persons who would be expected to be injured if an accident or overexposure occurred as a result of the violation.”

            Roberts determined that all eight crew members were affected by the violation because he believed that it was reasonably likely that all eight miners would suffer injuries in the event that they were forced to use the escapeway. Tr. 574-75, 591. Respondent argues that it is not reasonable to assume that all eight miners on a crew would fall and be injured while exiting the mine, even under emergency conditions.

            The conditions described in the citation, water and slurry 8 to 14 inches deep, covering an irregular surface, certainly presented treacherous footing and a high likelihood that a person traversing the areas on foot in an emergency situation would fall. It is possible that a person falling in soft-muddy conditions could suffer a reasonably serious injury. The question is: was it reasonably likely that all eight crew members would not only fall, but suffer an injury that would require lost work days or restricted duty. The conditions existed in three areas of varying lengths; 300 feet, 150 feet and 20 feet. While it is possible that the entire crew could have been injured, I find it unlikely. While I find it reasonably likely that a majority of the crew, e.g. six miners, would fall in the soft, muddy conditions while using the escapeway in an emergency, I find it unreasonable to assume that all of those miners would suffer a reasonably serious injury. It is more likely that no more than half of those falling would suffer a reasonably serious injury, and I find that three persons were affected by this S&S violation.

Negligence

            Roberts had had several discussions with AmCoal’s safety personnel about serious and ongoing problems with travelways, specifically the 9^th West Headgate travelway. Tr. 576-77. Numerous citations had been issued for similar conditions. Tr. 581. Chronic water problems had continued to plague the mine, making it extremely difficult, if not impossible, to properly maintain travelways, particularly during the longwall move when there was a high volume of heavy equipment traffic. Roberts was frustrated with AmCoal’s employment of short-term measures to deal with the water, e.g., dumping rock dust or gravel to abate escapeway or travelway violations, only to have the conditions quickly reoccur. Tr. 565-68. Air pumps were used for de-watering. Aside from lengthy air supply lines, the pumps’ intake hoses were typically placed into the water/slurry mixture, where the screen on the hose end quickly became clogged. AmCoal personnel would, occasionally, clean the screen, but would then place the hose end back into the slurry where it would soon clog again. The pumps could have been more effective if a culvert-type basin, with filtering screens, had been constructed to keep the heavier slurry away from the pumps’ intakes. Tr. 565-66. A member of AmCoal’s engineering department had characterized its efforts to address water problems at the underpass as “futile.” Tr. 580-81. Roberts believed that additional efforts should have been made to address the water problems, and that numerous management personnel were well aware of the problems because mine managers, shift foremen, and other agents of AmCoal had traveled through the area, which had been deteriorating over more than one shift. Tr. 576-78, 580.

            AmCoal argues that the conditions had not existed for several shifts because it had done considerable work on the travelway in that area on the previous shift. As noted in the discussion of Citation No. 6674229, it had removed loose bridge boards, placed new bridges and worked to improve conditions in the area cited. In conjunction with those efforts, it also points to the fact that nine pieces of heavy equipment had recently traveled the roadway, and that the cited conditions were most likely largely caused by that recent traffic. Roberts conceded that “some efforts were being made” to address the problems. Tr. 605.

            While AmCoal’s failure to effectively address the chronic water problems contributing to deterioration of the travelways could establish that its negligence was high, I find that its efforts on the previous shift to remedy adverse conditions in and near the area cited is a mitigating factor sufficient to lower its negligence to moderate.

Citation No. 6674230 

            Citation No. 6674230, was issued by Roberts on May 30, 2008, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.400, which requires that: “Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not allowed to accumulate in active workings, or on diesel-powered and electric equipment therein.” The violation was described in the “Condition and Practice” section of the Citation as follows:

Combustible material, in the form of broken/splintered wooden pallets, empty rock dust sacks, empty cardboard boxes and several large sections of plastic shrink wrap, has been stockpiled in cross cut #39 (Right) of the 9th West Headgate travel road. The stockpile is approximately 10' L x 4' W x 5' H.

Ex. G-N.

            Roberts determined that the violation was unlikely to result in a lost workdays or restricted duty injury, that it was not S&S, that eight persons were affected, and that the operator’s negligence was high. A civil penalty in the amount of $2,678.00, was proposed for this violation.

            Respondent does not challenge Roberts’ assessment of gravity, but does contest the fact of violation, the number of persons affected, the negligence assessment and the amount of the assessed penalty.

The Violation

            As stated in the citation, Roberts observed approximately 200 cubic feet of paper, wood, and other combustible materials in crosscut #39 off the 9th West Headgate travelway. The material had a coating of dust on it which, because of its location and conditions in the area, led Roberts to conclude that it had been there for a considerable period of time, estimated at “several shifts.” Tr. 616; Ex. G-N.

            Respondent’s challenge to the violation is two-pronged. It argues that the “small” trash pile was not combustible material within the meaning of the standard, and that the material had not been allowed to accumulate. As to the first point, the materials – broken, splintered wooden pallets, empty paper rock dust sacks, empty cardboard boxes and plastic shrink wrap – were obviously combustible. Respondent notes that, while in use, pallets with supplies on them, bags filled with rock dust, and boxes containing supplies, are not considered combustible materials that need to be removed from the mine. It argues that inspectors, like Roberts, use a subjective standard to determine when such materials transition from inventory to trash accumulation violations, “which makes it difficult for operators to know exactly what may trigger a citation or order.” Resp. Br. at 35. The argument rings hollow. The substantial amount of material was clearly combustible trash that was required to be removed from the mine.

            It is also apparent that the material had been allowed to accumulate. Roberts explained that mines typically use a large amount of supplies that generate trash, and it is essential that operators employ a system for managing the removal of such trash. Supply cars travel into and out of the mine on practically every shift. Collection of trash, typically depositing it next to travelways for pick up by exiting supply and other vehicles, should ensure that combustible trash does not accumulate in active workings. Respondent had an ongoing trash removal program, and there is some evidence that efforts to remove trash had been made on the previous shift. Tr. 635, 641; Exh. R-53. However, the material in question was relatively deep in the crosscut, which was not a location consistent with it’s being staged for removal. Tr. 637. In addition, there was a layer of dust on the material, indicating that it had been there for some time, several shifts by Roberts’ estimate. Tr. 616; Exh. G-N. While, as noted below, there is some uncertainty about the length of time that the material had been in the crosscut, the evidence establishes that it had been there for more than one or two shifts, was not being handled in an effective execution of Respondent’s trash control program, and had been allowed to accumulate within the meaning of the standard.

            Respondent’s challenge to the number of persons affected is also unavailing, as explained in the discussion of Citation Nos. 6674228 and 6674229.

Negligence

            Roberts’ assessment of Respondent’s negligence was predicated on a number of factors. He had had recent discussions with safety department personnel about trash accumulation problems, and had emphasized the need to remove trash. Tr. 613-15. The mine had been cited for 400 violations of the accumulations standard in the previous 24 months. Tr. 616. Judging from the dust layer, the materials had been allowed to remain in the crosscut for some time.

            The most significant of these factors is Roberts’ discussions with management officials about the need for increased diligence in implementing its trash removal program, which put Respondent on heightened awareness of trash accumulation problems. The overall number of accumulations citations is of limited significance because accumulations of coal most likely accounted for the vast majority of those citations. Roberts’ estimate of the time that the materials had been in place was based on the coating of dust. There was no evidence as to the rate at which dust would accumulate at that location, although Roberts thought that it would be slow because of the depth of placement of the materials in the crosscut. He acknowledged that the dust probably resulted from mobile equipment traffic in the travelway. As noted previously, in general there was considerable traffic during the set-up operation. Relying on the shift report, Respondent argues that its efforts to remove trash along the travelway on the immediately preceding shift should be considered a mitigating factor.

            Considering the uncertainty of the amount of time that the materials had been allowed to remain in the crosscut, and Respondent’s documented trash removal efforts on the previous shift, which indicated a degree of responsiveness to concerns about trash removal issues, I find that its negligence with respect to the violation was moderate, rather than high.

Order No. 6673981 

            Order No. 6673981, was issued by Miller at 11:00 a.m. on July 31, 2008, and alleges a violation of 30 C.F.R. § 75.361(a) which requires that “within 3 hours before anyone enters an area in which a preshift examination has not been made for that shift, a certified person shall examine the area for hazardous conditions, determine whether the air is traveling in its proper direction and at its normal volume, and test for methane and oxygen deficiency.” The violation was described in the “Condition and Practice” section of the order as follows:

Two miners and a mine foreman were observed working in an area of the mine where no preshift examination or supplemental examination had been conducted. The miners were working at crosscut number 38B, between the number 1 and number 2 entries of the 9th West tailgate entries. The mine foreman stated that he did not know who conducted an examination in the area. These miners had also worked just outby this area on an airlock. The only pre-shift examiner certification was near the airlock, and was dated 7/30/2008.

Ex. G-C.

            Miller determined that the violation was highly likely to result in a permanently disabling injury, that it was S&S, that three persons were affected, and that the operator’s negligence was high. The order was issued pursuant to section 104(d)(2) of the Act and alleges that the violation was the result of Respondent’s unwarrantable failure to comply with the cited standard. A civil penalty in the amount of $12,563.00 was proposed for this violation.

            AmCoal does not contest the fact of the violation, or that it was the result of its unwarrantable failure, i.e., it concedes that the order was properly issued pursuant to section 104(d) of the Act. It challenges the number of persons affected and the gravity, contending that an injury was unlikely and any injury would not have been permanently disabling.

            Miller was conducting a ventilation survey of the longwall. The members of the inspection party had traveled up the intake side of the longwall, and were walking out the tailgate bleeder entries when Miller observed two miners and a foreman working in an area that had not been the subject of a preshift or supplemental examination. The miners had previously been working near an airlock just outby where Miller encountered them, also an area where no preshift or supplemental examination had been done. Notations at that location indicated that the last examination had been conducted on the previous day. The foreman acknowledged that he did not know if the area had been examined. The same foreman had previously been the subject of a citation for working in an un-examined area.

            The order was terminated at 11:15 a.m., after a supplemental examination was completed by Joseph Myers, AmCoal’s safety director, who accompanied Miller, and no hazardous conditions were found. Tr. 165, 183-84. In addition, no hazardous conditions had been identified during the preshift examinations of the working sections or by Miller during his ventilation survey. Tr. 162-63, 188-91.

            Miller’s assessment of gravity was based on his experience and knowledge that conditions can change quickly in a mine, especially in a large longwall operation’s bleeder system and where the mine liberates large quantities of methane. The location in question was about mid-way in the longwall panel. He did not know where the face was at the time. Tr. 155. The mine had “gassed out” that week, i.e., mining had to be curtailed because of excessive methane. Tr. 158. Miller also was aware of prior incidents at the mine, “ignitions, fires and so forth,” although the only such incident discussed was a fire that had occurred several years earlier when the mine was operated by Kerr-McGee. Tr. 166, 172. While the foreman carried a multi-gas detector that constantly monitored the atmosphere, the miners did not, and they had been working several crosscuts away from the foreman. Tr. 171.

            AmCoal’s challenge to gravity is largely based on the fact that no hazards were discovered in the supplemental examination, the ongoing ventilation survey, or the preshift examinations of the working sections. It points to a similar preshift examination violation issued by another inspector who determined that an injury was unlikely, and argues that, where no hazards are found in a supplemental examination, an injury of a reasonably serious nature should be found to be unlikely.

            The Secretary counters that the evidence supports Miller’s S&S determination, that the preshift examination is a critically important and fundamental safety practice in the industry, and that because of changing conditions subsequent examinations may have little relevance to conditions at the time of the violation, citing Jim Walter Resources, Inc., 28 FMSHRC 579, 603 (Aug. 2006); Manalapan Mining Co., 18 FMSHRC 1375, 1382 (Aug. 1996); and Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995).

            In Buck Creek the Commission described the preshift examination requirement as one of fundamental importance in assuring a safe working environment underground. Commission decisions have also made clear that a preshift examination violation can be S&S despite the fact that an inspector’s subsequent examination of the area discloses no hazardous conditions, in part because many hazardous conditions are transient in nature and the S&S determination must be made as of the time of the violation. Buck Creek, 17 FMSHRC at 13-15; Manalapan, 18 FMSHRC 1382 (opinion of Commissioners Holen and Riley), 1396 (opinion of Commissioners Jordan and Marks); Jim Walter, 28 FMSHRC at 603-04.

            In Jim Walter, factors pertinent to sustaining an S&S finding for a preshift violation included the following; the mine was gassy and, prior to the shift, had experienced an interruption to ventilation due to a fan check; the mine had a history of fires and ignitions, including on the same section as recently as two weeks before the violation; and, the mine had a history of roof falls, including one in the same week on the subject section. If normal mining operations had continued, power would have been restored, and electric and diesel powered equipment was present. 28 FMSHRC at 603. In Manalapan, where a finding that a preshift violation was not S&S was reversed by the Commission, four miners had been in an unexamined area for four hours. The mine had been out of production for several days, and methane accumulations and other hazardous conditions can develop during idle periods; the mine liberated methane, as established by bottle samples; the equipment used by the miners included welding and cutting torches, and the roof bolter they were repairing was energized, also a potential ignition source; the area was adjacent to a mined-out area and there was a possibility of low oxygen in the atmosphere; the mine roof had a tendency to fall, and there had been several roof falls. 18 FMSHRC at 1382-83. In Buck Creek the Commission reversed a finding that a preshift violation was not S&S where the mine had been idle the previous two days and the subject miners were the first ones entering after the idle period; methane can build up during such periods; during idle periods failures in stoppings can interrupt ventilation; the mine had prior ventilation problems; and, the mine had a history of methane accumulations and roof falls. The fact that two of the miners were certified examiners and the area they were in had been examined did not alter the result, because hazards in other unexamined areas could have affected them. 17 FMSHRC at 13-14.

            In Buck Creek and Manalapan the Secretary urged the Commission to establish a presumption that every failure to conduct a preshift examination was S&S. The Commission declined to do so, although in Manalapan two Commissioners argued persuasively for such a presumption. 18 FMSHRC at 1388-95. Here, the Secretary argues that in the absence of a preshift examination, it is impossible to rule out the existence of hazardous conditions, and that Miller “determined that it was highly likely that an injury of a reasonably serious nature would occur because no pre-shift or supplemental exam had been conducted to rule out potential hazards in the area.” Sec’y. Br. at 27. While he disavowed a “cookie cutter” approach, Miller responded affirmatively when asked whether he believed that a serious injury would always be highly likely where there has been a failure to conduct a preshift examination, although he added that it was “even more so” considering the mine’s history. Tr. 159, 166.

            The Secretary’s argument, and Miller’s explanation of his S&S designation, bear some resemblance to the unsuccessful argument that preshift violations should be presumed to be S&S. Most of the factors noted by the Commission as supporting S&S findings in Jim Walter, Manalapan and Buck Creek were not present here. However, Galatia was a gassy mine, subject to 5-day spot inspections for methane, and had “gassed out” that week. Tr. 158. The miners had been working in the unexamined area since the beginning of the shift, and most likely would have continued working for several more hours. The area had last been examined the previous day, possibly during the required weekly examination. While the working sections had been examined, they were considerably removed from the area of the violation. The fact that Miller did not identify any hazards during his nearly contemporaneous ventilation survey of the longwall cannot inure to AmCoal’s benefit, because under normal mining operations MSHA would not have been conducting a ventilation survey of the longwall’s bleeder system. In any event, the area of the violation had not been surveyed prior to issuance of the violation. Nor does the after-the-fact supplemental examination that disclosed no hazards at that time preclude a finding that the violation was S&S.

            While this is a close case, I credit the assessment by Miller, a highly experienced inspector, and find that the violation was reasonably likely to result in a permanently disabling injury and that it was S&S. I also sustain Miller’s determination that three persons were affected, in that many of the significant hazards that might have been encountered, particularly those associated with methane accumulations, would have resulted in injuries to all three persons.

The Appropriate Civil Penalties

            The Galatia mine was a very large mine, the sole mine operated by its controlling entity. Its history of violations from February 1, 2007 to April 30, 2008, a printout from MSHA’s computerized database, was introduced into evidence. Ex. G-T. The report indicates that AmCoal had 695 paid violations in the subject time period and that approximately 237 of those were S&S. Neither party urges AmCoal’s history of violations as a factor that should increase or decrease the amount of any civil penalty imposed for the subject violations, and it appears unremarkable, considering that the Galatia mine was extremely large and was being inspected by multiple MSHA inspectors on most business days year round. The parties stipulated that the proposed penalties would not affect AmCoal’s ability to continue in business, and that AmCoal demonstrated good faith in abating the violations.

            Order No. 6673958 is affirmed as an S&S violation. However, it was not the result of AmCoal’s unwarrantable failure. Rather its negligence was moderate. In addition, the violation was reasonably likely to result in a lost work days or restricted duty injury, not highly likely to result in a fatality. A civil penalty of $21,993.00 was proposed by the Secretary. 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 $5,000.00.

            Order No. 6673588 is affirmed as an S&S and unwarrantable failure violation. However, the violation was reasonably likely to result in a lost work days or restricted duty injury, not highly likely to result in a fatality. A civil penalty of $21,993.00 was proposed by the Secretary. Considering the reduction in the level of gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $12,500.00.

            Order No. 6673589 is affirmed as an S&S violation. However, it was not the result of AmCoal’s unwarrantable failure. Rather its negligence was high. In addition, the violation was reasonably likely to result in a lost work days or restricted duty injury, not highly likely to result in a fatality. A civil penalty of $21,993.00 was proposed by the Secretary. Considering the elimination of the unwarrantable failure designation, and the reduction in the level of gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $7,500.00.

            Citation No. 6674229 is affirmed. However, AmCoal’s negligence was low rather than high, and the violation was not S&S, rather it was unlikely to result in a lost work days or restricted duty injury. A civil penalty of $8,893.00 was proposed by the Secretary. Considering the reductions in the levels of negligence and gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $500.00.

            Citation No. 6674228 is affirmed as an S&S violation. However, AmCoal’s negligence was moderate rather than high and the number of persons affected was reduced from 8 to 3. A civil penalty of $7,578.00 was proposed by the Secretary. Considering the reductions in the level of negligence and the number of persons affected, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $2,500.00.

            Citation No. 6674230 is affirmed. However, it was the result of AmCoal’s moderate rather than high negligence. A civil penalty of $2,678.00 was proposed by the Secretary. Considering the reduction in the level of negligence, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $1,300.00.

            Order No. 6673981 is affirmed as an S&S and unwarrantable failure violation. However, the violation was reasonably likely, not highly likely, to result in a permanent injury. A civil penalty of $12,563.00 was proposed by the Secretary. Considering the reduction in the level of gravity, and the factors enumerated in section 110(i) of the Act, I impose a penalty in the amount of $8,000.00.

ORDER

            Order No. 6673961 is VACATED. Order Nos. 6673588 and 6673981, and Citation Nos. 6674229, 6674228, 6674230 are AFFIRMED as modified. Order Nos. 6673958 and 6673589 are modified to citations issued pursuant to section 104(a) of the Act, and are AFFIRMED, as modified. Respondent is ORDERED to pay civil penalties in the total amount of $37,300.00 within 45 days.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

                                                                        Senior Administrative Law Judge

Distribution (Certified Mail):

Karen Wilcynski, 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