FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

May 19, 2009

DECISION

Appearances:  Brian W. Dougherty, Esq., Vicki L. Mullins, Esq., U.S. Department of Labor, Nashville, Tennessee, on behalf of the Petitioner

                        Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia, on behalf of the Respondent

Before:            Judge Barbour

            This case is before me on a Petition for the Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration (“MSHA”) against Rockhouse Energy Mining Co., (“Rockhouse”). The matter arises under sections 105(a) and 110(a) of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”). 30 U.S.C. §§ 815(a), 820(a). In the petition, the Secretary alleges Rockhouse, in three instances, violated safety standards for underground coal mines, standards that are set forth in Part 75, Title 30, Code of Federal Regulations. 30 C.F.R., Part 75. She further alleges each of the violations was a significant and substantial contribution to a mine safety hazard (“S&S”). She proposes a total assessment of $5,160 for the alleged violations.

            After the Secretary’s petition was filed, Rockhouse answered, asserting it did not violate the standards, or, if it did, that the violations were not S&S. Rockhouse also took issue with the gravity and negligence findings MSHA’s inspector made with regard to each alleged violation.

            After the matter was assigned to me, I scheduled it to be heard in Pikeville, Kentucky. Due to difficulties in finding a hearing site in Pikeville, the location was changed to Hazard, Kentucky. At the hearing the parties presented testimonial and documentary evidence regarding the alleged violations. Also at the hearing, but prior to going on the record, I asked counsels if they objected to my issuing a bench decision with regard to each of the alleged violations. Counsels stated they did not. Rather than submitting post-hearing briefs, counsels were given, and accepted, the opportunity to summarize their parties’ positions at the close of evidence. Tr. 11-12.

            My findings follow. Editorial changes have been made for clarity’s sake.

                        CITATION NO.                   DATE                        30 CFR §

                        66576439                                12/13/07                     75.202(A)

            The citation states in part:

                                    Additional roof support is needed in the 010-0

                        MMU left return [N]o. 1 entry starting at x-cut 4 of the No.

                        7 belt and extending inby to x-cut 11, a distance of ap-

                        proximately 560 feet. A roof fall has occurred in the [N]o.

                        12 x-cut and the entry outby. This show[s] signs of ad-

                        verse conditions in that there are cutters along each rib

                        line, large pieces of draw rock are hanging ready to fall,

                        and visible cracks [are] running with the entry.

                                    This airway is required to be traveled by the

                        weekly mine examiner once per week.

            Gov’t. Exh. 1.

            In pertinent part, section 75.202(a) requires “[t]he roof . . . of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards relating to falls of the roof.”

            Regarding Citation No. 66576439, I stated:

                                    I find the violation existed as [set forth] in

                        the citation and as testified to by [MSHA] Inspector

                        David Stepp. In making this finding[,] I [do not] discredit

                        the testimony of . . . [Rockhouse’s weekly examiner,

                        Mike] Muncy[;] I simply believe Mr. Stepp’s testimony

                        reflects a more complete and . . . full [recollection] of

                        the conditions that existed [in the No. 1 entry] on

                        December 13. I find that Inspector Stepp’s description of

                        the draw rock that existed in the cited 560-foot area of the

                        . . . [No. 1] entry, . . . [and in  particular] the channeling that

                        existed on both sides of the entry, ranging from hairline cracks

                        to . . . [cracks] up to two to three inches wide, to be indicative

                        of an entry that was taking weight and that was showing marked

                        signs of progressive deterioration. The cited roof required

                        either additional support, or needed to be removed from access

                        to miners, something Rockhouse did [later] by dangering it off.

                                    I further find the condition was . . . [S&S]. The hanging

                        draw rock, as Mr. Stepp testified, posed a visually obvious

                        danger to Mr. Muncy as he traveled the area [during the weekly

                        examinations he conducted]. And the channeling and cracks

                        indicated[,] as mining continued[,] rock was reasonably likely to fall.

                        Indeed, Mr. Stepp’s believable testimony that he noted fallen

                        pieces of rock in the cited area of the entry . . . is persuasive

                        to me that the progression of the deterioration had reached

                        the point where falling rock could be expected.

                                    Mr. Muncy traveled the area weekly. Had the citation

                        not been issued, it is reasonably likely he would [have]

                        continued . . . [making the examinations and] . . . he would

                        have been a moving target as he rode through the cited area.

                        I recognize [a] rock or roof fall would have had to coincide

                        with his passage . . . to injure him, but I cannot base a

                        [non-S&S] conclusion on the fact he would have had. . . to

                          . . . [be] at the wrong place at the wrong time to . . . [be] struck.

                        It is enough that the roof was reasonably likely to fall and

                        that Mr. Muncy was required regularly to travel where . . .

                        falls were reasonably likely to occur. Had Mr. Muncy been

                        hit, he most likely would have suffered a serious injury

                        or worse. [T]hus, I find the violation was both S&S

                        and serious.

                                    [However,] I do not believe the Secretary has

                        established anything more than moderate negligence on

                        Rockhouse’s part. The roof’s condition was progressive.

                        While I infer . . . [the condition of the roof] constituted a

                        violation on December [6,when the entry was last examined]

                         . . . . I cannot find, based on the evidence, [the roof’s condition

                        was so serious . . . on December 6 . . . [it then] constitut[ed] an

                        S&S violation. [T]herefore, I cannot conclude the roof’s

                        condition was so glaringly obvious [on December 6] that

                        the failure of Rockhouse to [additionally] support . . . [the

                        roof] or to danger it off at that time constituted high

                        negligence. [In addition,] . . . the Secretary has not [otherwise]

                        shown between December [6] and December [13] that

                        Rockhouse[‘s] management [should have] been aware of

                        the condition of the roof as it existed on December [13].

            Tr. 330-333.

                        CITATION NO.                   DATE                                    30 CFR §

                        66576443                                12/13/07                                 75.400

            The citation states:

                                                Accumulations of loose coal have been allowed

                                    to accumulate in the roadway of the 010-0 MMU right

                                    return airway starting at ss# 30526 and extending inby

                                    4 x-cuts to the section feeder line. This loose coal

                                    ranged in depth from 1 to 6 inches and was deposited

                                    along the entire length of this area.

                                                [The] area is the immediate return for the

                                    right side of the 010-0 MMU that produces coal 2 shifts

                                    per day and has a dead work crew that works 3^rd shift.

                        Gov’t Exh. 6.

            In pertinent part, section 75.400 requires “[c]oal dust, . . . loose coal, and other combustible materials . . . [to be] cleaned up and not be permitted to accumulate in active workings.”

            Regarding Citation No. 66576443, I stated:

                                    [The] Secretary has alleged a violation of section 74.400

                        [and] Rockhouse has conceded the violation. [See Tr. 315.]

                                    [Regarding the Secretary’s S&S allegation,] Rockhouse’s

                        counsel has established there were no ignition sources present on

                        December [13,] . . . when the violation was cited. There were no

                        equipment permissibility violations. There were no face ignitions.

                        There was no methane. Does the record establish . . . an

                        injury-causing event could have occurred? Yes, it does. But the

                        Secretary’s evidence is simply too speculative to conclude one

                        was reasonably likely. Basically[,] the Secretary has

                        established . . . [only] that . . . accumulations [of combustible

                        materials] were present and that potential ignition sources

                        might come into existence in the future [– a]nd I emphasize

                        the word might – but i]f this were enough to  establish an

                        S&S violation, then virtually every accumulation [violation]

                        . . . would be S&S, something . . . the Act does not contemplate.

                                    However, the fact an ignition source could occur . . .

                        establishes . . . the violation was serious. Clearly, had the

                        accumulations ignited – and I’m fully persuaded by the testimony

                        the Secretary . . . presented . . . [including] Mr. Stepp’s testimony

                        – that the loose coal could have ignited, and that the finely ground

                        coal dust [could have] propagated a methane explosion. If these

                        things had happened, then all miners on the section would have

                        been subject to serious injury . . . [or] death. [T]his is enough

                        to make the violation serious.

                                    [I am] further persuaded . . . the extent of the accumulations

                        was such . . . they should have been observed and corrected during

                        more than one preshift examination, and certainly during at least

                        one on-shift examination. Inspector Stepp found Rockhouse was

                        moderately negligent, which means . . . [the company] did not

                        meet the standard of care required . . . and I agree.

            Tr. 333-335.

                        CITATION NO.                   DATE                                    30 CFR §

                        66576447                                12/13/07                                 75.1403-6(b)(3)

            The citation states in part:

                                                None of the 4 sanding devices installed on

                                    the . . . diesel mantrip would work when tested. [The]

                                    mantrip was parked [underground] at the end of the

                                    track near the 010-0 MMU when inspected with no

                                    sand available on the [mantrip.] [The] mine has many

                                    hairpin curves and steep hills that must be maneuvered

                                    to exit the mine.

                        Gov’t Exh. 10.

            Section 75.1403 permits an inspector to issue safeguards “to minimize hazards with respect to transportation of men and materials.” Sections 74-1403-2 through 75.1403-11, of which 75.1403-6(b)(3) is a part, set out the criteria by which MSHA inspectors are guided in requiring safeguards on a mine-to-mine basis. MSHA issued a safeguard to Rockhouse on February 27, 1996, that required mantrips at the mine to be equipped with “properly installed and well-maintained sanding devices.” See Citation No. 6656447. The subject citation alleges Rockhouse did not comply with the safeguard notice’s requirement.

            Prior to the Secretary’s presenting evidence with regard to the alleged violation, counsel for Rockhouse moved for partial summary decision on the S&S issue. Counsel argued an S&S finding could not be made for a safeguard violation, citing the ruling of Commission Administrative Law Judge Michael Zielinski in Big Ridge Incorporated, 30 FMSHRC 1172 (November 2008). The Secretary’s counsel opposed the motion based on the same arguments the Secretary made to Judge Zielinski in Big Ridge and to Commission Administrative Law Judge Jerold Feldman in Wolf Run Mining Co., 30 FMSHRC 1189 (December 2008) (review granted March 31, 2009). In Wolf Run Judge Feldman held, contrary to Judge Zielinski, that an S&S finding could be made for a safeguard violation. Because decisions in Judge Zielinski’s cases are pending, his holdings in Big Ridge and Cumberland are not yet final for review purposes. However, Judge Feldman’s ruling became ripe for review after Judge Feldman issued a decision in Wolf Run (February 26, 2009). Subsequently, Wolf Run appealed, the Commission granted review, and the issue of whether a valid S&S finding may be made by an inspector when he or she cites a safeguard is presently before the Commission.

            After counsels stated their positions, I explained that I agreed with Judge Zielinski in all respects and that I would grant counsel for Rockhouse’s motion based on Judge Zielinski’s reasoning. Tr. 240-241. Nonetheless, counsels and I agreed evidence should be presented on the S&S issue so that if my ruling were reversed, an S&S finding could be made on the record. Tr. 241.

            Regarding Citation No. 66576447, I stated:

                                    I am persuaded by Inspector Stepp’s testimony a violation

                         existed. The safeguard [criteria] cited[, section 75.1403-6(b)(3),

                         requires] sanding devices to be operative at all times when being

                        used at the mine.

                                    [T]o me this clearly means [the devices on the mantrip

                        must be operative when the mantrip is] capable of being used as

                        well as [when] the equipment actually is in use.

                                    The [subject] mantrip was capable of being used. It was

                        parked at the end of the track, true. But it was not dangered off

                        or otherwise placed out of service. And as Inspector Stepp rightly

                        noted, it only required a flick of . . . [a] switch to start it up and use it.

                                    With . . . [regard to the inspector’s S&S finding,] even if I

                        had not concluded the S&S finding ha[s] to be vacated because . . .

                        [an S&S finding] cannot be made with regard to [a] safeguard

                        [violation], I would . . . [invalidate] the finding in any event. I am

                        persuaded by Mr. Adams’ testimony an accident due to the mantrip’s

                        non-functioning [sanders] was not reasonably likely. First, I believe

                        Mr. Adams’ testimony established the mantrip was not reasonably

                        likely to be used before the condition of the sanders was likely to be

                        found and corrected. In this regard I note that other mantrips were

                        available and were more likely to be used [than the cited mantrip.]

                        And I also note that had the [cited] mantrip been used in the regular

                        course of . . . [mining], its operator would have been specifically asked

                        about its sanders. Moreover, even if an emergency arose, and the

                        emergency required use of the cited mantrip, Mr. Adams persuaded

                        me that [the] non-functioning sanders would [have been unlikely]

                        . . . to cause an accident.

                                    This is unlike a previous citation involving non-working

                        sanders at this mine [(See Rockhouse Energy Mining Co.,

                        30 FMSHRC 1125, 1154-56 (December 2008),] because there

                        [is] no testimony in [the] situation under consideration today that

                        the tracks were wet. [A]s Mr. Stepp explained, the mine is dry

                        during the winter[, and t]he previous violation was cited during

                        the . . . early days of September when, I’ll take judicial notice, it

                        is [still] hot in Pike County.

                                                           *                       *                      *

                                    Moreover, unlike the previous citation, in this particular

                        instance Rockhouse persuasively offered testimony from an

                        experienced miner who had ridden numerous times on a rail

                        mounted mantrip and who had never . . . found the need to use

                        the [sanders] on his rides.

                                    Because I conclude the violation was unlikely to result in

                        an accident, I find it was only moderately serious . . . . I further

                        find Rockhouse’s negligence was moderate. As Inspector Stepp

                        initially concluded, the most likely inference from me to draw is

                        that the sanders were brought into the mine in . . . non-working

                        condition. But given the fact Rockhouse knew the mantrip was

                        unlikely to be used prior to it being examined, and . . . [that when

                        it was] examined, the condition was likely to be found and corrected,

                        the existence of the condition [does] not show a high lack of care.

                        Tr. 335-338.

CIVIL PENALTY ASSESSMENTS

            Having found the alleged violations exist, I must assess civil penalties taking into account the civil penalty criteria set forth in section 110(i) of the Act. 30 U.S.C. § 820(i). With regard to the company’s history of prior violations, the Secretary offered a computer printout showing those violations cited from December 15, 2007, through December 14, 2008, for which civil penalties had been paid. Gov’t Exh. 12, Tr. 292-295. The printout indicates a total of 626 paid violations. This is a large history. In addition, the parties stipulated that Rockhouse is a large operator and that the proposed penalties would not affect Rockhouse’s ability to continue in business. Tr. 292. Moreover, each of the citations indicates the violations were abated within a time MSHA found to be adequate. From this, I infer the company exhibited good faith in its abatement efforts.

            CITATION NO.       DATE            30 CFR §        PROPOSED ASSESSMENT

            66576439                    12/13/07         75.202(a)        $2106

            I stated at the hearing:

                                    The Secretary has petitioned for the assessment of a civil

                        penalty of $2106 for the violation. Given the serious nature of the

                        violation, the moderate negligence of Rockhouse and considering

                        all of the other civil penalty criteria, I find the proposed penalty to be

                        appropriate.

            Tr. 333.

            CITATION NO.       DATE            30 CFR §        PROPOSED ASSESSMENT

            66576443                    12/13/07         75.400             $2106

            I stated at the hearing:

                                    The Secretary has petitioned for the assessment of a civil

                        penalty of $2106 for the violation. Given the serious nature of

                        the violation . . . [and] taking into consideration [Rockhouse’s failure]

                        to meet . . . [its] standard of care and the other civil penalty criteria,

                        I conclude a penalty of $1,500 is appropriate.

                        Tr. 335.

            CITATION NO.       DATE            30 CFR §         PROPOSED ASSESSMENT

            66576447                    12/13/07         75.1403-6(b)(3) $1304

            I stated at the hearing:

                                    The Secretary has petitioned for [the assessment of a civil

                        penalty] of $1304. Given the moderate seriousness of the

                        violation[,] . . . Rockhouse’s  moderate negligence, [and taking into

                        consideration the other civil penalty criteria,] I conclude [a penalty

                        of $800 is] appropriate.

                        Tr. 338.

ORDER

            Within 40 days of the date of this decision, the Secretary IS ORDERED to modify Citations No. 66576443 and 66576447 by deleting the S&S findings and by changing line 10(A) from “reasonably likely” to “unlikely.” In addition, Rockhouse IS ORDERED to pay civil penalties totaling $4,406 in satisfaction of the violations in question. Upon modification of the citations and payment of the penalties, this proceeding IS DISMISSED.

                                                                                    David F. Barbour

                                                                                    Administrative Law Judge

Distribution: (Certified Mail)

Brian W. Dougherty, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501

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