FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 4, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; and Nakamura, Commissioner

            This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). As relevant to this appeal, Big Ridge, Inc. (“Big Ridge”) contested four orders issued by an inspector from the Department of Labor’s Mine Safety and Health Administration (“MSHA”), pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), after he observed accumulations of combustible materials in Big Ridge’s coal mine. Administrative Law Judge Gary Melick affirmed allegations in the orders that the operator violated 30 C.F.R. § 75.400, and that the violations were significant and substantial and caused by the operator’s unwarrantable failure to comply with the standard. 32 FMSHRC 1020 (Aug. 2010) (ALJ). Big Ridge filed a petition for discretionary review, challenging various of those determinations by the Judge. The Commission granted the petition and heard oral argument. For the reasons that follow, we affirm in part and reverse in part and remand for the reassessment of a civil penalty.

I.

Order No. 6683824

            A.        Factual and Procedural Background

            On December 10, 2008, MSHA Supervisor Michael Rennie inspected Big Ridge’s Willow Lake Portal coal mine in Equality, Illinois. Rennie testified that at approximately 8:15 a.m., he observed accumulations of coal along the 4E conveyor belt: (1) at the head roller and inby to the No. 8 crosscut in intermittent piles of up to 5 inches in depth; and (2) at the tail piece in an accumulation approximately 18 feet in length by two feet in depth. Id. at 1022; Tr. 35-40. Rennie observed that the bottom belt and tail roller were turning in the accumulations around the belt tail. 32 FMSHRC at 1022. The belt was also misaligned and had cut into the belt structure almost an inch. Id. Bart Schiff, the operator’s safety manager who accompanied Rennie, testified that there were accumulations under the rollers in several sections of the belt and on both sides of the bottom belt. Id. Schiff stated that the bottom belt was turning in coal. Id.

            Monty Applin, Big Ridge’s mine examiner, testified that he had performed an examination of the 4E tail at approximately 3:15 a.m. on December 10. Id. He noted a condition in the examination book that the belt had a dirty takeup and that the head roller needed rockdusting. Tr. 83-84. He observed no accumulations at the tail at the time of his examination. Tr. 85.

            James Holmes, Big Ridge’s section foreman, testified that he checked the tail piece at approximately 7:00 a.m. and 9:00 a.m. on the day of the inspection and found it to be clean. 32 FMSHRC at 1022. He testified that at 9:15 a.m., however, the 4E tail was “gobbed out,” or full of coal fines. Tr. 107-08. He explained that the belt’s skirt rubber had come out, which caused a spillage at the tail piece. Tr. 109. Rennie also testified that later in the day, he was informed that the accumulations had been caused by the belt misaligning and the skirt rubber coming off. Tr. 44-45.

            Based upon his observations, MSHA Supervisor Rennie issued Order No. 6683824 alleging an S&S and unwarrantable violation of section 75.400. Gov’t Ex. A1. The belt was shut down for approximately six hours while the violation was abated. 32 FMSHRC at 1024. During that time, the accumulations were shoveled, equipment was brought to the area, and rock dust was applied. Id. Holmes testified that it took six or seven miners 15 to 20 minutes to clean up the material at the tail piece. Tr. 112.

            The Judge affirmed the violation and special findings. Big Ridge’s petition challenges the Judge’s S&S and unwarrantable failure findings.

            B.        Disposition

                        1.         The Judge’s conclusion that the violation was S&S is affirmed.

            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 Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), 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.

(footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984).

            Big Ridge argues that the Judge erred in finding the violation to be S&S. It contends that the material at the tail piece merely constituted spillage caused by the skirt rubber coming off rather than a violative accumulation and that, accordingly, it should not have been considered in the Judge’s S&S determination. The operator also asserts that the Judge failed to consider that its fire detection and fire suppression systems made injury unlikely. It argues that the Judge further erred by not considering information in an MSHA report, which shows that there were no fatalities or lost time injuries resulting from reportable fires in belt entries between 1980 and 2005, because such information is relevant to application of the third and fourth Mathies elements.

            Applying the Mathies elements, we conclude that the Judge properly concluded that the 4E beltline accumulations were S&S. The first Mathies element is satisfied in that Big Ridge conceded the underlying violation.

            As to the second Mathies element, the Judge found that the violation exposed miners to the safety hazard of a belt fire from the friction caused by the belt cutting into the belt structure. 32 FMSHRC at 1023. We conclude that his finding of a hazard is supported by substantial evidence. MSHA Supervisor Rennie testified that there were “a lot” of accumulations at the tail, which extended almost 18 feet outby from the tail roller and were approximately two feet deep. Tr. 36-37; 32 FMSHRC at 1022. He stated that an ignition source was presented by the friction of the bottom belt sliding in the accumulations. Tr. 37; 32 FMSHRC at 1022. Rennie testified that an additional ignition source was present in that the belt had become misaligned and was rubbing against the belt structure. Tr. 37-38, 70; 32 FMSHRC at 1022. He explained that the belt had cut into the belt structure almost one inch in depth, and the structure was very hot to the touch. Tr. 37-38, 66. Applin, Big Ridge’s belt examiner, acknowledged that, although the belt was shut down at the time of his examination, a belt running in accumulations would constitute a hazard. Tr. 92. He explained that a “hazard is immediate danger that can cause a fire or explosion or lack of oxygen or a combination of gas – anything that can do bodily harm,” and that if he observed such a hazard, he would turn off the belt and have the hazard addressed.

Tr. 81-82.

            As to the third and fourth elements of Mathies, the Judge found that the hazard of smoke and fire would reasonably result in an injury that could reasonably be expected to be severe or even fatal from smoke inhalation, carbon monoxide poisoning and/or burns. 32 FMSHRC at 1023-24. MSHA Supervisor Rennie testified that he determined that injury or illness was highly likely given the amount of the cited accumulations and the presence of ignition sources. Tr. 46-47, 70. He explained that smoke from a fire would move directly to miners working on the section which could result in disorientation and that fatal injuries could result from a fire. Tr. 46-47, 67.

            Even if we were to accept Big Ridge’s argument that the material cited at the tail piece did not constitute violative accumulations, the record is clear that accumulations existed along the beltline. MSHA Supervisor Rennie testified that there were accumulations by the head roller and inby to the No. 8 crosscut that ranged up to 5 inches in depth. Tr. 36-37; Gov’t Ex. A1. He observed black float coal dust along the roof, rib, floor and belt structure. Gov’t Ex. A1. As noted above, the belt rubbing against the belt structure constituted an ignition source for those accumulations. Tr. 37-38, 66, 70. Thus, there remains substantial evidence in the record to support the Judge’s S&S determination.

            We find unpersuasive the operator’s argument that the Judge erred in determining that the violation was S&S because he refused to consider the safety measures that Big Ridge had in place, such as its fire detection and suppression systems. In Buck Creek Coal Co. v. FMSHRC, the court rejected the operator’s contention that other fire prevention safety measures mitigated the S&S nature of an accumulation. 52 F.3d at 136. The court reasoned that the fact that an operator has “safety measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to miners.” Id.; see also AMAX Coal Co., 19 FMSHRC 846, 849-50 (May 1997). As the Commission has recognized, adopting the position that redundant mandatory safety protections provide a defense to an S&S finding would lead to the anomalous result that every protection would have to be nonfunctional before an S&S finding could be made. Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369 (Oct. 2011).

            Likewise, we are not persuaded by Big Ridge’s argument that the Judge erred by not relying upon the MSHA report in his consideration of whether injury would be reasonably likely to result from a belt fire. The report is a Power-Point presentation, entitled, “Reducing Belt Entry Fires in Underground Coal Mines,” which was submitted by MSHA to the Belt Study Commission in 2007, as part of an evaluation of the use of belt air to ventilate working sections. R. Ex. 1; Tr. 622; Oral Arg. Tr. at 7-8. It would have been inappropriate for the Judge to draw broad conclusions about the likelihood of injury from belt fires from the presentation, when the presentation was prepared for a different reason and had a different focus. In any event, as the Commission has long recognized, the question of whether a particular violation is S&S must be based on the particular facts surrounding that violation. Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). Here, the Judge appropriately considered the nature of the specific cited conditions in concluding that the violation cited in Order No. 6683824 was S&S, and substantial evidence supports that conclusion.

            Accordingly, we affirm the Judge’s S&S determination.

                        2.         The Judge’s conclusion that the violation resulted from unwarrantable failure is reversed.

            The Commission has defined unwarrantable failure as “aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act.” Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). It is characterized by “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 2002-04.

            The Commission has further recognized that whether conduct is “aggravated” in the context of unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. Factors relevant to that consideration include 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 were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or posed 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); 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). While an administrative law judge may determine, in his or her discretion, that some factors are not relevant, or may determine that some factors are much less important than other factors under the circumstances, all of the factors must be taken into consideration. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009).

            Big Ridge argues that the Judge erred in concluding that the 4E belt accumulation violation was unwarrantable. It contends that he failed to consider all of the factors identified by the Commission as relevant to an unwarrantable failure consideration. It asserts that, moreover, the Judge erred with respect to the factor of whether the operator had been placed on notice that greater efforts were necessary for compliance. The operator explains that the Judge failed to provide a qualitative analysis of the reasons that Big Ridge’s past violations would have put it on notice with respect to the cited condition.

            We disagree with Big Ridge that the Judge erred in his consideration of the operator’s past violation history in his unwarrantable failure analysis. The Secretary submitted evidence that the operator had 110 final citations and 8 final orders alleging violations of section 75.400 within the 15 months prior to issuance of the subject order. 32 FMSHRC at 1025; Tr. 48-49. It was appropriate for the Judge to conclude that such violations were sufficient to place the operator on notice that greater efforts were necessary for compliance with the standard. We do not agree that past violations of section 75.400 can provide such notice only if they are factually indistinguishable from the cited condition. Indeed, as recognized by the D.C. Circuit, the Commission has concluded that “‘even if a different area was cited, past violations may, nonetheless, provide an operator with sufficient awareness of an accumulation problem.’” Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012), quoting San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007).

            Nonetheless, we agree with Big Ridge that the Judge failed to consider relevant factors, including the length of time that the violation existed, the operator’s efforts in abating the violative condition, and the operator’s knowledge of the existence of the violation. If the evidence in the record regarding these factors is weighed against the evidence and factors considered by the Judge, there is not substantial evidence in the record to support the Judge’s unwarrantable failure determination.

            Regarding the length of time that the violation existed, the Judge did not resolve the differences in testimony regarding when the accumulations existed on the morning of the inspection. 32 FMSHRC at 1022-25. Mine Examiner Applin testified that he did not observe any accumulations at the 4E tail piece during his examination at 3:15 a.m. and did not note the presence of such accumulations in his examiners’ report. Tr. 84-85; R. Ex. 3. MSHA Supervisor Rennie testified that he observed the cited accumulations at approximately 8:15 a.m. on the morning of the inspection. Tr. 39-40. Section Foreman Holmes, however, testified that he checked the 4E tail piece at 6:45 a.m. and just before 9:00 a.m. on the day of the inspection and observed no accumulations. Tr. 102-03. He stated that, approximately 15 minutes after his last inspection, he observed that the 4E tail was “gobbed out,” or full of coal fines. Tr. 107-09.

            The record is undisputed that the 4E belt’s skirt rubber came out at some point, and that coal can accumulate quickly under such circumstances. Tr. 44-45, 66, 109. Holmes concluded that the cited accumulations at the 4E tail piece had resulted from the skirt rubber coming out. Tr. 109. MSHA Supervisor Rennie also acknowledged that he had been informed that the accumulations had been caused when the skirt rubber came out. Tr. 44-45, 66. Thus, regardless of whether the accumulations existed at approximately 8:15 a.m. or at 9:15 a.m., it appears that the accumulations at the tail piece likely occurred when the skirt rubber came out, and that the violation did not exist for a lengthy period of time.

            The Judge also did not consider Big Ridge’s actions in abating the violative condition.

32 FMSHRC at 1024-25. In considering the abatement element, the Commission focuses on compliance efforts made prior to the issuance of the order. Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997). Section Foreman Holmes checked the 4E tail piece at the beginning of his shift, and again before 9:00 a.m. Tr. 102-03. Holmes observed the accumulations at the tail piece at approximately 9:15 a.m. Tr. 107-08. He stated that it was his practice to check the tail piece at the beginning of a shift and then approximately four to five times during the course of a shift in order to monitor its condition. Tr. 102-03. The Secretary did not place evidence in the record disputing Holmes’ testimony. Evidence of such monitoring does not support the Judge’s finding that the operator’s actions in permitting the material at the 4E belt to accumulate were aggravated.

            For similar reasons, evidence regarding the operator’s knowledge of the existence of the violation does not support the Judge’s unwarrantable failure finding. As discussed above, it appears that the material at the tail piece existed for a brief period of time, and there is no evidence in the record that the operator knew of the violative condition but failed to take appropriate corrective action. The record on these factors does not reflect the reckless disregard or serious lack of reasonable care that characterizes violations caused by unwarrantable failure.

            Accordingly, we reverse the Judge’s determination that the violation described in Order No. 6683824 was due to the operator’s unwarrantable failure to comply. We remand this matter to the Chief Administrative Law Judge for assignment to a Judge for the reassessment of an appropriate civil penalty.

II.

Order No. 6683087

            A.        Factual and Procedural Background

            On January 26, 2009, MSHA Inspector Scott Lee inspected the 1A belt at the mine.

32 FMSHRC at 1032. The 1A belt was approximately 500 feet long and had a water pump beneath it. Id. The inspector issued Order No. 6683087, which alleged an S&S and unwarrantable violation of section 75.400, because he observed accumulations of coal fines on top of the water pump and on the skid plate, the plate on which the water pump rested. Id. Inspector Lee described the accumulations on top of the water pump as 4 to 8 inches deep, 10.5 feet long, and 4 feet wide, and the accumulations on the skid plate as 4 to 6 inches deep. Id. He testified that approximately 150 feet away from the water pump, the 1A belt was rubbing on a damaged roller. Id. at 1033. Union President Greg Fort also testified that there were “quite a bit” of coal fines around the top of the water pump and “around the external parts in the sides.” Id.; Tr. 479.

            Earlier that day, at approximately 8:00 a.m., Charlie Hyers, an examiner for Big Ridge, had performed an onshift examination of the 1A belt. Tr. 553, 559. Hyers noted in the examination book that the beltline was “dark in color.” R. Ex. 75.

            Mike Davis, Big Ridge’s Safety Manager who accompanied Inspector Lee, disagreed with the inspector’s description of the accumulations. 32 FMSHRC at 1033. He testified that there were five rock dust bags on top of the water pump and less than an inch of accumulations on top of the bags. Id. Davis further testified that the material on the skid plate was non-combustible gob. Id.; Tr. 541-42. He explained that when the pump is pushed, the skid plate will push up fireclay and dirt from the floor in front of it. Tr. 521, 542.

            The Judge upheld the violations and special findings. 32 FMSHRC at 1033. In ruling that the violation was S&S, he found that the belt rubbing on the damaged roller constituted an ignition source, although the pump itself did not. Id. He also concluded that the violation had been caused by an unwarrantable failure because the amount of the accumulations on and around the pump was extensive, they were hazardous due to the nearby ignition source of the damaged roller, and because the operator was on notice that greater efforts were required to maintain the subject belt. Id. The operator appealed the S&S and unwarrantable failure designations.

            B.        Disposition

                        1.         The Judge’s conclusion that the violation was S&S is affirmed.

             Applying the Mathies analysis, we conclude that the Judge properly determined that the accumulation violation was S&S. Big Ridge conceded the violation in satisfaction of the first Mathies element. As to the second Mathies element, the Secretary submitted evidence in the record that the accumulations on the water pump contributed to the hazard of coal ignition, and the Judge credited the Secretary’s evidence. The Commission has recognized that a judge’s credibility determinations are entitled to great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co.,

3 FMSHRC 2767, 2770 (Dec. 1981).

            The Judge credited the testimony of Inspector Lee, as corroborated by Union President Fort, that there were significant accumulations on the water pump. 32 FMSHRC at 1032. Inspector Lee testified that the water pump was approximately 10.5 feet long and 4 feet wide, and that the accumulations on top of the cover were 4 to 8 inches deep, while the accumulations underneath the unit were 4 to 6 inches deep. Gov’t Ex. F1; Tr. 393. Lee testified that the accumulations were black in color and estimated that, given their color, they were 99 to 100% combustible. Tr. 392. Fort testified that the water pump had been under the belt approximately three to four weeks and had accumulated quite a bit of coal fines, black in color, around the top and along the sides of the pump. Tr. 478-79. Given this evidence, we find insufficient reason to overturn the Judge’s credibility determinations that there were a significant amount of combustible accumulations on the water pump.

            The Judge also relied upon the presence of the broken roller as an ignition source for the cited accumulations. 32 FMSHRC at 1033. Inspector Lee testified that there was a broken bottom roller on the belt, and that the bottom belt had rubbed a flat spot on the roller. Tr. 398, 400, 404. He explained that the frictional heat constituted an ignition source and that the roller was hot to the touch. Tr. 398-401, 404-05. Lee further stated that one end of the roller was in contact with other accumulations he had cited along the beltline, and that belt shavings could drop on the accumulations under the belt and start an ignition. Tr. 412. Fort observed belt shavings that resulted from pieces of the belt being torn off from the friction. Tr. 483. As the Judge found, Big Ridge’s expert, Chad Barras, testified that hot lubricant from damaged rollers and belt shavings can generate enough heat to ignite coal. 32 FMSHRC at 1033; Tr. 639-40, 641.

            As to the third and fourth elements of Mathies, there is evidence in the record that the hazard from smoke and fire would reasonably result in a reasonably serious injury. Inspector Lee explained that the accumulations and ignition source could have caused a fire or smoke which could engulf the area. Tr. 404-05. He explained that miners can die from carbon monoxide poisoning, get disoriented from smoke, and suffer burns from fires. Tr. 420-21.

            For these reasons, we affirm the Judge’s determination that the violation was S&S as supported by substantial evidence.

                        2.         The Judge’s conclusion that the violation resulted from an unwarrantable failure is affirmed.

            We conclude that substantial evidence supports the Judge’s determination that the violation was caused by an unwarrantable failure. As discussed above, a majority has concluded that the Judge’s findings that the violation was extensive and hazardous are supported by substantial evidence.

            Regarding the operator’s knowledge of the existence of the violation, the Judge found that the report of the onshift examination had placed management on notice of the potentially hazardous conditions along the 1A belt. However, even if we were to agree with Big Ridge that Hyers’ examination report did not provide the operator with knowledge of the accumulations at the water pump, we conclude that the operator had reason to know of the water pump accumulations given the amount of time that they existed and their obviousness. Inspector Lee testified that the condition was obvious, and that the belt examiners should have seen the accumulations particularly since they knew the equipment was under the belt. Tr. 406. In addition, he stated that the pump was very near the travel road where miners continually passed under the belt. Tr. 399; Gov’t Ex. F3. The inspector further testified that the accumulations had been there for “some time,” at least two to three shifts, but probably longer. Tr. 401, 402. There is no record support of the operator’s efforts in abating the violation as a mitigating factor.

            We further conclude that the Judge appropriately considered the factor of whether the operator had been placed on notice that greater efforts were necessary for compliance. The Judge also appropriately considered the operator’s past violations. Moreover, the record reveals that MSHA held closeout and pre-inspection conferences with Big Ridge that provided the operator with notice that greater efforts were necessary for compliance with section 75.400. 32 FMSHRC at 1025; Tr. 492-95. Union President Fort testified that compliance with section 75.400 “has been our big problem area” and that there were discussions in the meetings that the operator had to “take control of [its section 75.400 violations] and get them down.” Tr. 494-95. In the quarterly meeting on September 26, 2008, before issuance of the subject order, Big Ridge was informed that violations of section 75.400 had increased 6% over the prior quarter and comprised 24% of the cited violations. Tr. 497-98. MSHA also indicated that it wanted the operator to have fewer violations of section 75.400 pertaining to equipment. Tr. 503-04.

            Accordingly, we affirm the Judge’s determination that the violation cited in Order No. 6683087 was caused by an unwarrantable failure as supported by substantial evidence.

III.

Order No. 6683088

            A.        Factual and Procedural Background

            During the same inspection on January 26, 2009, MSHA Inspector Lee observed float coal dust accumulations that were along the entire 1A beltline, from rib to rib, and coal fines that were under the belt’s rollers and in the take-up and drive motors that were four to eight inches deep. 32 FMSHRC at 1034; Tr. 410. The inspector observed that a damaged bottom roller had dropped on one side, and the belt was rubbing on the roller. Tr. 411. One end of the damaged roller was in contact with the accumulations. Tr. 412. Union President Fort also observed the accumulations and that the damaged roller had torn pieces, or shavings, from the belt. Tr. 482-83. Mine Examiner Hyers, who had examined the 1A belt prior to the inspection, noted in the examination book that the 1A beltline was “dark in color.” Tr. 553, 557; R. Ex. 75. Inspector Lee issued Order No. 6683088, alleging an S&S and unwarrantable violation of section 75.400. The Judge affirmed the violation and special findings. 32 FMSHRC at 1033-34. Only the unwarrantable failure designation was appealed.  

             B.        Disposition

The Judge’s conclusion that the violation was unwarrantable is affirmed.

              We affirm the Judge’s finding of unwarrantable failure. Regarding the extensiveness of the accumulations, Inspector Lee’s testimony that there were float coal dust accumulations from rib to rib, along the entire length of the 500 foot-long belt, as well as accumulations 4 to 8 inches deep under the belt rollers and in the takeup and drive motors, supports the Judge’s extensiveness finding. Tr. 410. As the Judge stated, the inspector’s testimony was corroborated by Union President Fort, who testified that there were “quite a few accumulations and a lot of black coal dust in the area.” 32 FMSHRC at 1034; Tr. 483. We note that although three hours elapsed between the time that the inspector issued the order and the time that he terminated it, Bob Pate, the shift mine manager, testified that it took 30 minutes to shovel the beltline and 20 to 30 minutes to rock dust it. Tr. 528. We nonetheless conclude that there is substantial evidence in the record to support the Judge’s finding.

            There is also substantial evidence in the record to support the Judge’s determination that the operator had knowledge of the cited condition. See 32 FMSHRC at 1034. After examining the 1A beltline on the day of the inspection, Big Ridge’s examiner, Hyers, placed a comment in the examination book that read, “Beltline dark in color.” R. Ex. 75. Regardless of whether Hyers believed the condition to be merely a condition rather than a hazard that required immediate attention, as argued by Big Ridge, the notation gave the operator notice of a potential accumulation violation along the beltline. Moreover, Inspector Lee testified that the accumulations existed for at least one shift. Tr. 414-15. Although the operator had received notice for that period of time, there is no evidence in the record that the operator took abatement measures to address the accumulations prior to issuance of the order. Tr. 415.

            The Judge did not specifically address whether the violative condition posed a high degree of danger in his unwarrantable failure analysis. However, the Judge concluded that the violation was S&S (which the operator did not challenge), and there is evidence in the record regarding the danger posed by the violation. The record reveals that a damaged bottom roller had dropped on one side and was making contact with the belt, and that one end of the roller was in contact with the accumulations. Tr. 410-12. There were also belt shavings lying in the accumulations. Tr. 483. As the Judge found, Big Ridge’s expert, Chad Barras, testified that hot lubricant from damaged rollers and hot rubber and metal particles from a belt are a source of coal ignition. 32 FMSHRC at 1034; Tr. 619-20, 639. Finally, for the reasons discussed above, we hold that the operator’s past history of violations placed Big Ridge on notice that greater efforts at compliance were necessary. Accordingly, we affirm the Judge’s unwarrantable failure determination.

IV.

Order No. 6683968

            A.        Factual and Procedural Background

            On January 29, 2009, MSHA Inspector Larry Morris issued Order No. 6683968, alleging an S&S and unwarrantable violation of section 75.400 due to accumulations at the 2C conveyor belt. 32 FMSHRC at 1037. The order alleged that loose coal and coal fines were observed at the 2C belt tail piece, and ranged from 1 to 18 inches deep, 6 feet wide, and 15 feet long. Id. The inspector observed that the accumulations on the floor were wet or damp but that the accumulations at the tail roller were dry and powdery. Id. at 1038. Morris testified that the rotating 2C belt and tail roller were in contact with the accumulations. Tr. 564.

            Approximately two days before the citation was issued, Section Foreman Brad Champley reported a spillage problem at the 2C belt to Terry Butler, a maintenance foreman. Tr. 589, 597. Butler testified that he walked the entire belt and aligned it. Tr. 598. During the two hours before the order was issued, the 2C tail piece had already been shoveled twice. Tr. 581-83, 591. After the order was issued, the belt was removed from service and cleaned. Tr. 569. The operator discovered that the belt was running out of alignment at crosscut 18. Tr. 569. Inspector Morris testified that the operator placed the belt back into alignment, which corrected the problem. Tr. 569.

            The Judge affirmed the violation and special findings. He rejected the operator’s argument that the material was non-violative spillage. 32 FMSHRC at 1038. The Judge concluded that the cited accumulations were extensive and had not been cleaned with reasonable promptness given the operator’s knowledge of the serious spillage problem at the tail piece. Id.

            The Judge next found that the violative conditions were S&S. Id. at 1038. The Judge credited the testimony of Inspector Morris that the material was significant in amount, black in color, and was dry at the tail roller. Id. He also credited the testimony of Morris that the belt and metal tail roller were in contact with the accumulations and inferred that such a condition amounted to an ignition source. Id. at 1038-39. The Judge noted that the belt had become misaligned, and that with continued normal mining conditions, the misaligned belt could create metal or rubber shavings hot enough to ignite coal. Id. at 1039. Regarding his finding that the violation was caused by the operator’s unwarrantable failure, the Judge concluded that the violation was serious and obvious, and that the operator’s past violations placed it on notice that greater compliance efforts were necessary. Id.

             B.        Disposition

                        1.         The Judge’s conclusion that the operator violated section 75.400 is affirmed.

             Big Ridge argues that the cited material was mere spillage rather than violative accumulations. It maintains that it attended to the spillage at the 2C tail piece in a timely fashion, and that Section Foreman Champley had reported the condition and remedial measures had been taken.

            The D.C. Circuit has found unpersuasive an operator’s argument that coal accumulations that resulted from a sudden spill were not violative accumulations. Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 558-59 (D.C. Cir. 2012). The Court relied upon Commission precedent rejecting the position that accumulations of combustible materials may be tolerated for a reasonable time. Id. It noted that the Commission has explained that section 75.400 is “‘directed at preventing accumulations in the first instance, not at cleaning up the materials within a reasonable period of time after they have accumulated.’” Id. (citations omitted).

            Consistent with this precedent, we affirm the Judge’s finding of a violation. Here, the operator had not taken appropriate action to prevent the accumulation of combustible materials. As the Judge found, Foreman Champley knew that there was a problem of spillage at the tail piece that needed constant attention. 32 FMSHRC at 1038. During the morning of the inspection, the operator had shoveled the tail piece twice in the two hours before Inspector Morris observed the cited condition, and only about one-and-a-half hours had elapsed between the two cleanups. Tr. 581-83, 591. Champley knew that the problem with spillage at the tail piece was not new and had brought his concerns about the spillage to Butler “a day or so” before the inspection. Tr. 589, 597. Inspector Morris testified that the operator “knew [it] had a problem with the belt and chose to periodically clean the tail piece and keep running coal, and by continuing to run coal without correcting the problem, it allowed it to get in a citable condition.” Tr. 566.

            Moreover, substantial evidence supports the Judge’s finding that the accumulations observed by Inspector Morris after the belt had been cleaned a second time were extensive. Morris observed that the accumulations were approximately 15 feet long, extending a distance of 75% of the tail piece, were approximately 6 feet wide and 1 to 18 inches deep. Tr. 563, 569. Regarding the amount of accumulations, Morris testified that “there was enough that it had actually pushed the belt out away from the tail pulley approximately 2 inches.” Tr. 564. Accordingly, we affirm the Judge’s determination that Big Ridge violated section 75.400.

                        2.         The Judge’s conclusion that the operator’s violation was S&S is affirmed.

            Applying the Mathies elements, we conclude that the Judge properly determined that the violation was S&S. As discussed above, substantial evidence supports the Judge’s determination of violation in satisfaction of the first Mathies element.

            There is also substantial evidence to support the Judge’s determination that the second Mathies element was satisfied and that the cited accumulations contributed to the hazard of a coal ignition. The accumulations were extensive, as described above, and black in color.

Tr. 563, 572. The accumulations at the tail roller were dry and powdery, and the tail roller and belt were in contact with the accumulations. Tr. 563-64, 566. In addition, the record reveals that the belt was running out of alignment at the time Inspector Morris observed the conditions.

Tr. 569. As the operator’s expert testified, metal and rubber shavings worn from a misaligned conveyor belt can become hot enough to constitute an ignition source. 32 FMSHRC at 1038;

Tr. 619.

            As to the third and fourth elements of Mathies, the Judge found that the hazard of smoke and fire would reasonably result in a severe or even fatal injury. 32 FMSHRC at 1039. Inspector Morris testified that a fire would produce smoke and carbon monoxide, and that breathing carbon monoxide can cause light-headedness, unconsciousness, and death, and that miners could suffer burns from a fire. Tr. 567.

            We do not find persuasive the operator’s argument that the violation was not S&S because the accumulations had only existed for a short period of time and that regular maintenance would have continued on the belt. The Commission has recognized that “[t]he Mathies test requires evaluation of the violation at the time of citation, including an examination of the risk of serious injury, given the presence of the violative condition in normal mining operations.” Gatliff Coal Co., 14 FMSHRC 1982, 1986 (Dec. 1992) (emphasis added).

            Accordingly, for these reasons, we affirm the Judge’s S&S determination as supported by substantial evidence.

                        3.         The Judge’s conclusion that the operator’s violation was unwarrantable is affirmed.

            We agree with the Judge’s determination that the operator’s knowledge of the violative condition constituted an aggravating factor. 32 FMSHRC at 1038. The operator had reason to know that there was an accumulation problem on the 2C belt given past spillage problems within a day or two of the inspection and that the tail piece had to be shoveled twice during the two hours before the inspection. Tr. 566, 569. As the inspector testified, Big Ridge essentially made the decision to continue production and periodically clean the belt rather than stop the belt and resolve the cause of the spillage problem. Tr. 566. In considering an operator’s efforts in abating a violative condition, the Commission considers “whether the operator’s efforts to comply with safety standards and to correct conditions that could lead to violations were taken with sufficient care under the circumstances, even if ultimately unsuccessful in completely preventing a violative condition.” Windsor Coal Co., 21 FMSHRC 997,1005 n.9 (Sept. 1999). Big Ridge’s efforts in abating the violative condition prior to citation were insufficient, since mine management knew of a continuing problem at the location but chose to take temporary superficial measures rather than corrective action designed to prevent accumulations.

32 FMSHRC at 1038.

            The operator does not dispute the Judge’s findings that the violation was serious and obvious. Id. Although the Judge did not specifically address the factors of the extent of the violation and the length of time that the violation existed with respect to his unwarrantable failure determination, he made findings in other portions of his decision, based on evidence in the record.

            In the S&S portion of his decision, the Judge found that the cited accumulations “probably had not been present for more than 30 minutes to an hour.” Id. at 1039. Even if such a factor is considered mitigating, it is insufficient to outweigh other evidence relied upon by the Judge in concluding that the violation was unwarrantable. Regarding the extent of the violation, in the violation portion of his decision, the Judge found that the cited accumulations were extensive in size and amount, and we have concluded that substantial evidence supports that finding. Id. at 1038. Finally, for the reasons discussed above, we are not persuaded by Big Ridge’s argument that the Judge erred in considering the operator’s past violations in determining that it had been placed on notice that greater efforts were necessary for compliance with the standard. Id. at 1034.

            Accordingly, for these reasons, we affirm the Judge’s unwarrantable failure determination.

V.

Conclusion

            For the reasons discussed above, with respect to Order No. 6683824, the Commission affirms the Judge’s conclusion that the violation of section 75.400 was S&S and reverses the Judge’s determination that the violation resulted from unwarrantable failure. With respect to the penalty assessed for the violation, we remand to the Chief Judge for reassignment and for the reassessment of an appropriate civil penalty. With respect to Order No. 6683087, we affirm the Judge’s determination that the violation was S&S and affirm the Judge’s unwarrantable failure finding. With respect to Order No. 6683088, we affirm the Judge’s determination that the violation of section 75.400 was caused by unwarrantable failure. With respect to Order No. 6683968, we affirm the Judge’s conclusions that the operator violated section 75.400, and that the violation was S&S and caused by Big Ridge’s unwarrantable failure.

                                                                                    /s/ Mary Lu Jordan                                            

                                                                                     Mary Lu Jordan, Chairman

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Commissioner Young, concurring in part and dissenting in part:

            I concur with the majority in affirming the Judge’s determination that the violation of 30 C.F.R. § 75.400 alleged in Order No. 6683824 was significant and substantial (“S&S”) and in reversing the Judge’s determination that the violation resulted from the operator’s unwarrantable failure to comply with the standard. I join the majority in remanding the matter to the Chief Judge for reassignment and for the reassessment of an appropriate civil penalty. As to Order No. 6683087, I join the majority in affirming the Judge’s determination that the violation of section 75.400 alleged in the order resulted from an unwarrantable failure. I join the majority in affirming the Judge’s determination that the violation of section 75.400 alleged in Order No. 6683088 resulted from unwarrantable failure. I also join the majority in affirming the Judge’s determination that the operator violated section 75.400 as alleged in order No. 6683968.

            I write separately, and briefly, to dissent from the remaining sections of the majority opinion.

I.

Order No. 6683087

            I conclude that substantial evidence does not support the Judge’s determination that the violation of section 75.400 alleged in Order No. 6683087 was S&S. In particular, I do not find substantial evidence in the record to satisfy the second element set forth in Mathies Coal Co., 6 FMSHRC 1, 3 (Jan. 1984), that is, that the water pump accumulations contributed to the hazard of a coal ignition. As the Judge found, the water pump itself did not constitute an ignition source because the pump was equipped with solid state controls, which eliminate the possibility of sparking. 32 FMSHRC 1020, 1033 (Aug. 2010) (ALJ); Tr. 515.

            Moreover, the record does not support the Judge’s finding that the damaged roller constituted an ignition source for the water pump accumulations. Inspector Lee testified that there was a broken bottom roller on the belt, and that one end of the roller was in contact with the accumulations he had cited in a separate order, Order No. 6683088. Tr. 398-99, 404, 412. The inspector testified that the heat caused by the damaged roller constituted an ignition source. Tr. 398-401, 404-05. Union President Fort also observed belt shavings in the area of the damaged roller. Tr. 483. However, the damaged roller was approximately 150 feet away from the pump. Tr. 398-99. The frictional heat of the damaged roller posed a hazard of ignition to the accumulations in the area of the damaged roller, rather than to the water pump accumulations which were 150 feet away. The ignition hazard of the accumulations in the area of the damaged roller is addressed by allegations in Order No. 6683088 that the violative accumulations along the 1A beltline were S&S. Gov’t Ex. G1. Even if the belt shavings remained on the belt, it is possible that the shavings would have to travel the entire circuit of the belt before reaching the water pump and would no longer be hot. Oral Arg. Tr. at 55-56. In any event, it is the Secretary’s burden to establish how the circumstances presented here contributed to the hazard of a mine fire, and I would hold that the Secretary failed to meet his burden.

II.

Order No. 6683968

            I would also hold that the violation cited in this order was not S&S and that it did not arise from the operator’s unwarrantable failure. As we have noted, our Mathies formulation requires us to examine the confluence of factors to determine whether the hazard contributed to by the violation would be reasonably likely to result in a serious injury. Texasgulf, Inc., 10 FMSHRC 498, 500, 501 (April 1988) (stating that when evaluating the reasonable likelihood of a fire, ignition, or explosion, the Commission has examined whether a “confluence of factors” was present based on the particular facts surrounding the violation). We have also noted that the potential for injury must assume the continuation of normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

            In this case, continued normal mining operations must take into account that the operator was attending to the problem – imperfectly, and not wholly effectively, but with an ongoing awareness of the circumstances. This monitoring and cleanup, though certainly far from the best response among available options, significantly reduced the potential that these accumulations would contribute to a mine fire or propagation hazard.

            This is not a case where an operator asserts that it would have discovered a problem and corrected it in the course of normal operations. See U.S. Steel, 7 FMSHRC at 1130 (“fact that upon being told of a deficiency by an MSHA inspector an operator proceeds to make necessary corrections, does not obviate the need for determining whether an injury would have been reasonably likely to occur if mining operations had continued without the inspector’s intervention”). Rather, the maintenance effort here was already underway, with awareness of the nature and origin of the problem.

            The burden of proof is on the Secretary to establish a reasonable likelihood of serious injury arising from the hazard in this specific context. I would hold that the majority, like the Judge, fails to account for the ongoing remedial measures aimed at the conditions in this order.

            Similarly, I would hold that this violation did not result from the operator's unwarrantable failure. Although the condition was obvious and extensive, and although accumulations may pose a serious risk of fire or propagation, the intermittent intervals of accumulation were brief and were being attended to. Tr. 581, 583, 589, 590-91, 597. Additionally, efforts were underway to identify and address the misaligned belt which was causing the problem. Tr. 598. This is thus not a case where the operator may be said to be recklessly disregarding or willfully neglecting its duties. Nor is the danger so profound and its looming presence so evident that the operator can be found to have engaged in anything worse than ordinary negligence.

            Furthermore, the remedial steps being taken, while not wholly effective, are the type of pre-citation mitigation which must be taken into account. See IO Coal Co., 31 FMSHRC 1346, 1356 (Dec. 2009) (holding that “[t]he focus on the operator's abatement efforts is on those efforts made prior to the citation or order”). The operator’s attention also significantly reduces the gravity of the situation. None of this was wholly addressed in the Judge's decision, and I would hold that substantial evidence refutes, rather than supports, his conclusion that this violation resulted from the operator’s unwarrantable failure. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not necessary when record supports no other conclusion).

                                                                                    /s/ Michael G. Young

                                                                                    Michael G. Young, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

Cheryl C. Blair- Kijewski, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710