**FEDERA****LMINESAFETYANDHEALTHREVIEWCOMMISSION**

OFFICEOFADMINISTRATIVELAWJUDGES

1331PENNSYLVANIAAVENUE,NW,SUITE520N

WASHINGTON,DC20004-1710

TELEPHONE:202-434-9900/FAX:202-434-9954

 

October 20, 2020

 

SECRETARYOFLABOR,                                 :                 CIVIL PENALTY PROCEEDINGS

MINE SAFETY ANDHEALTH                       :     

ADMINISTRATION(MSHA),                         :                 Docket No. SE 2019-0075

Petitioner                                      :                 A.C.No. 01-02901-481428

                                                      :

v.                                                   :                 DocketNo. SE 2019-0146

                                                                  :                 A.C.No. 01-02901-487211

PEABODYSOUTHEAST MINING, LLC,          :                 

Respondent                                   :                 ShoalCreek Mine

**DECISION**

 

Appearances:              EmilyRoberts, Esq., and Christopher Smith, Esq., Office of the Solicitor, U.S.Department of Labor, Nashville, Tennessee, for Petitioner; 

 

Arthur Wolfson, Esq.,Fisher & Phillips, LLC, Pittsburgh, Pennsylvania, for Respondent.

 

Before:                        JudgeBulluck

 

Thesecases are before me upon Petitions for Assessment of Civil Penalty filed by theSecretary of Labor (“Secretary”), on behalf of the Mine Safety and HealthAdministration (“MSHA”), against Peabody Southeast Mining, LLC (“Peabody”),pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977(“Mine Act”), 30 U.S.C. § 815(d). The Secretary seeks a total civil penalty of $76,061.00for three violations of his mandatory safety standards.

 

Ahearing was held in Birmingham, Alabama. The following issues are before me:    (1)whether Peabody violated the standards; (2) whether the violations wereattributable to the level of gravity alleged; (3) whether the violations wereattributable to the degree of negligence alleged; (4) whether the violationswere attributable to unwarrantable failures to comply with the standards; and(5) the appropriate penalties. The parties’ Post-hearing Briefs are of record. 

 

Forthe reasons set forth below, I **AFFIRM**one citation and two orders, asissued, and assess penalties against Respondent.

 

 

 

**I.    JointStipulations**

 

            Theparties have stipulated as follows:

 

1.     PeabodySoutheast Mining, LLC, is an operator, as defined in section 3(d) of theFederal Mine Safety and Health Act of 1977, as amended, hereinafter, the MineAct, 30 U.S.C.       § 802(d), at the mine at which the citation and orders atissue in this proceeding were issued.

 

2.     Shoal CreekMine, Mine ID: 01-02901, is a mine, as defined in section 3(h) of the Mine Act.30 U.S.C. § 802(h).

 

3.     Operations ofPeabody, at the mine at which the citation and orders were issued, are subjectto the jurisdiction of the Mine Act.

 

4.     This proceedingis subject to the jurisdiction of the Federal Mine Safety and Health ReviewCommission and its designated Administrative Law Judge, pursuant to sections 105and 113 of the Mine Act.

 

5.     Shoal Creek Mineis operated by Respondent.

 

6.     Payment of thetotal proposed penalty in this matter will not affect Peabody’s ability tocontinue in business.

 

7.     The individualswhose names appear in Block 22 of the citation and orders were acting in anofficial capacity, as authorized representatives of the Secretary of Labor,when the citation and orders were issued.

 

8.     The citation andorders were issued and served by a duly authorized representative of theSecretary of Labor upon an agent of Peabody at the date, time, and place statedin the citation and orders, as required by the Act.

 

9.     Exhibit A,attached to the Secretary’s Petition in Docket Numbers SE 2019-0075 and  SE 2019-0146,contains authentic copies of the citation and orders, with all modifications orabatements, if any.

 

Tr.18-20.

 

**II. Factual Background**

 

Peabodyoperates the Shoal Creek Mine (“mine”), an underground coal mine in Adger,Jefferson County, Alabama.[1]The mine runs two continuous miner sections and two longwall sections overthree shifts a day: owl from 11:00 p.m. to 7:00 a.m.; day from 7:00 a.m. to3:00 p.m.; and evening from 3:00 p.m. to 11:00 p.m. Tr. 280, 289. Mining atShoal Creek is a wet process, the mine is located near a river, which furthercontributes to the wet conditions, and it is a gassy mine subject to five-dayspot inspections. Tr. 37-38, 150, 176, 192-93. 

 

OnDecember 11, 2018, at 1:05 p.m., as the H-2 longwall section was activelymining, a sizable tear occurred in the H-2 belt, causing coal to spill and beltstrings to wrap around belt rollers. Tr. 208-09, 213-16. The belt was shutdown, the accumulations were cleared from underneath the belt and moved to thewalkway, and the belt was running coal again by 5:15 p.m. Tr. 217-24. At some timeafter the belt had torn, an anonymous hazard complaint was called in to MSHA, reporting“gobbed out” rollers turning in coal in the H-2 belt entry takeup area.    Tr. 37-38.Consequently, on the morning of December 12, MSHA Birmingham field officesupervisor Thomas Chatham arrived at the mine to conduct an inspection of theH-2 belt, in addition to the regularly scheduled five-day spot inspection. Tr.30-31, 37-38. The inspection party included safety supervisor Matt Selman andUMWA representative Steve Miller and, when it reached the takeup area of theH-2 belt entry, the belt was running, accumulations were observed around thetakeup, and the belt was shut down and the take up guarding removed.   Tr. 48-55,72, 109; Ex. P–1. Thereafter, when Chatham observed that the accumulations werein contact with the belt and rollers, and that belt strings were wrapped aroundrollers, bearings, and the takeup frame, he issued an unwarrantable failurecitation to Peabody for accumulations of combustible materials. Tr. 49-56,72-76. Miners were immediately assigned to clean the area and, ultimately, theaccumulations were removed from the mine by December 17. Tr. 235-238, Ex. P–1.

 

OnFebruary 19, 2019, MSHA Inspector Darryl Allen conducted an E01 inspection at ShoalCreek. Tr. 277, 284. Before entering the mine, he reviewed the examination booksand identified potential hazards in the West Main No. 4 belt entry, the alternateescapeway for the H-2 and H-3 longwall sections. Tr. 286-93, 300-01. Theinspection party included Allen’s supervisor Thomas Chatham, safety supervisorsBrett Clements and Matt Selman, and miners’ representative Tim Wise. Tr. 312-13,459-60. At the beginning of the inspection, Clements drove the mantrip to theWest Main No. 4 entry and dropped off the inspection party at crosscut 84, thenentered the escapeway at crosscut 81 where he had parked. Tr. 460-62. The others,walking outby crosscut 84, came upon holes, filled with muck and water, betweencrosscuts 83 and 82 and met Clements around crosscut 83, and Allen issued awithdrawal order to Peabody for failure to maintain the alternate escapeway in passablecondition. Tr. 315-19, 345, 461-63, 480-82; Ex. P–6. The crew was removed immediatelyfrom the affected area, miners were assigned to scoop the muck and fill theholes with road mix and gravel, and the order was terminated at 12:35 p.m. thatafternoon. Tr. 341-43, 466, 490-91; Ex. P–6.

 

OnMarch 11, 2019, Inspector Allen returned to Shoal Creek to continue hisquarterly inspection and, upon arrival, reviewed the examination books andidentified accumulations in the North Main No. 1 belt entry. Tr. 511-13, 518-39;Ex. P–11 at 1. The inspection party included Allen’s supervisor Thomas Chatham,foreman Mike Earl, and miners’ representative Morris Studdard. Tr. 545; Ex.P–11 at 1. At the start of the inspection, Allen observed a seized roller near crosscut10, Earl shut down the belt, Allen observed seven more seized rollers whilecontinuing inby and issued a citation for the eight seized rollers betweencrosscuts 10 and 22 1⁄2, and he issued another citation for two nonfunctionalfire hose outlets. Tr. 541-47, 664-65;    Ex. P–14(a), (b). Thereafter, uponobserving accumulations in the tail area, Allen issued a withdrawal order toPeabody for accumulations of combustible materials. Tr. 548-51, 672-73; Ex.P–10. The crew was withdrawn immediately from the affected area, miners wereassigned to remove the coal fines and coal muck from under the tailpiece,walkway, and full width of the entry, and the order was terminated the next day.Tr. 587-92; Ex. P–10. 

 

**III.Findings of Fact and Conclusions of Law**

 

**1.       ****CitationNo. 9136082**

** **

InspectorThomas Chatham issued 104(d)(1) Citation No. 9136082 on December 12, 2018,alleging an “S&S” violation of section 75.400 that was “reasonably likely”to cause an injury that could reasonably be expected to result in “lostworkdays or restricted duty,” and was caused by Peabody’s “high” negligence andunwarrantable failure to comply with the standard.[2] The“Condition or Practice” is described as follows:

 

Accumulations ofcombustible material in the form of loose coal and coal fines were allowed toaccumulate in the H-2 belt entry. Upon inspection of the H-2 belt,accumulations of loose coal and coal fines were observed in the belt take up. Thecoal accumulation measured up to 30 inches deep in the take up. Theaccumulations were in contact with turning rollers and the moving H-2 belt. Theaccumulations were also observed in the walkways on the walkway and off-walkwayside of the belt for the length of the take up. The accumulations measuredapproximately 120 feet long, 21 feet wide, and up to 30 inches in depth. Alsonumerous rollers in the take up had accumulations of belt string around the endof the roller. The belt string had accumulations of loose coal, coal fines, andfloat coal dust in and on the strings. The strings were tightly wrapped aroundthe bearing and the belt roller frame. It is reasonably likely that minerswould receive injuries from smoke inhalation that would result in lost workdays or restricted duty. The air in the H-2 belt entry is used to ventilate theactive H-2 longwall face. The H-2 belt entry is also the alternate escape wayfor the active H-2 long wall. Standard 75.400 was cited 121 times in two yearsat mine 0102901 (121 to the operator, 0 to a contractor). This violation is anunwarrantable failure to comply with a mandatory standard.

 

Ex.P–1. The citation was terminated on December 17, after the operator had removedthe accumulations from the mine, and rock dusted the area. Ex. P–1.

 

**A.   ****Fact ofViolation**

 

Inorder to establish a violation of one of his mandatory safety standards, theSecretary must prove that the violation occurred “by a preponderance of thecredible evidence.” *Keystone Coal Mining Corp.*, 17 FMSHRC 1819, 1838(Nov. 1995) (citing *Garden Creek Pocahontas Co.*, 11 FMSHRC 2148, 2152)(Nov. 1989)).

 

TheSecretary maintains that Peabody violated section 75.400, and that longwalloutby supervisor Joe Bell and fire boss Lee Esch admitted that the citedaccumulations created a fire hazard. Sec’y Br. at 14. Peabody argues that thecited material was spillage, and that it had a “reasonable time” to clean it up.Resp’t Br. at 6-8.

 

**1.    ****Summary ofTestimony**

** **

**a.    ****Thomas Chatham**

 

InspectorThomas Chatham testified for the Secretary that early on December 12, 2018, he wasnotified of an anonymous hazard complaint that rollers were “gobbed out” andturning in coal in the H-2 belt entry takeup area at Shoal Creek, that heexpanded his spot inspection to include that area, and that the mine was on afive-day spot inspection cycle for methane. Tr. 36-38. Chatham explained thatthe H-2 belt entry served as an alternate escapeway for the active  H-2longwall, that it ventilated the H-2 longwall working face and that, if a firewere to occur, miners at the face or utilizing the escapeway would be exposedto smoke. Tr. 70-71, 75-76, 100. He testified that he reviewed threeconsecutive pre-shift reports after the belt tear had occurred, and that nonenoted accumulations or cleanup in the H-2 belt takeup area. Tr. 76, 81-83; Ex.P–5 at 2-5.[3]Chatham stated that when he arrived at the takeup area, he smelled burningrubber, observed accumulations of loose coal and coal fines on the walkway and off-walkwaysides of the H-2 belt, and that no one was working in the area. Tr. 49-55, 71-72,109. He stated that the belt was turned off and the takeup guards removed, thathe observed under the takeup accumulations in contact with every takeup roller andthe belt, and that belt strings, covered with loose coal, coal fines and coal dust,were wrapped around a number of rollers, bearings, and the takeup frame. Tr. 49-55,73, 85-87.  By his measurements, the accumulations approximated 120 feet long,21 feet wide, and 12 to 30 inches deep. Tr. 71-72. He explained that the beltis coated with fire resistant material, that when it is unaligned, the coatingcan wear off and expose fabric strings, and that they gather around rollers andcollect coal dust. Tr. 85-86. He also explained that non-permissible belt drivemotors in the area could cause internal sparks, but acknowledged that he didnot inspect the motors’ cables, and that methane was only produced outby thecited area. Tr. 54, 92, 97. While he noted that a lot of water was present, he statedthat the accumulations felt dry in a few places and that, based on hisobservations, he thought that a fire was likely to occur. Tr. 58-61, 74. Hestated that he spoke to longwall outby supervisor Joe Bell and longwallcoordinator Randy Deavours about the belt tear, and ascertained that cleaninghad begun on December 11, but neither mentioned that any cleaning had takenplace on December 12. Tr. 77, 100-06, 111-12; Ex. P–3. He also described the depictionsin the photographs that he had taken of the H-2 belt takeup area before andafter termination of the citation. Tr. 57-68;  Ex. P–4. In his opinion,spraying is a common cleaning method at Shoal Creek, but not effective, and he admittedthat he had no personal experience with it or knowledge of whether it had been employedto address this condition. Tr. 78-79, 88-89, 103, 106, 113. Additionally, hestated that if cleaning had been scheduled beyond December 11, the belt shouldhave been stopped and the takeup guards removed, although he acknowledged thatthe mine was not required to shut the belt down to clean. Tr. 106, 113. Heexplained that based on the condition and his conversation with managementabout its cleaning efforts, he issued an unwarrantable failure citation, notingthat the accumulations were the most extensive that he had cited at Shoal Creekduring that quarter. Tr. 104, 107. 

 

**b.    ****Lee Esch**

** **

Owlshift fire boss Lee Esch testified for the Secretary that the H-2 belt entrywas the secondary escapeway for the H-2 longwall, that it provided clean air tothe working face and that, during owl shift on December 12, he conducted his pre-shiftexamination of the H-2 belt takeup area specifically looking for combustiblematerials in contact with frictional heating sources that can dry out wetmaterials, noting that, previously, he had seen fires in the mine.   Tr. 117-19,139. He stated that he finished his examination between 5:30 and 6 a.m., andthat the takeup area was examined around 4 a.m. Tr. 127-29, 138. He explainedthat he examined the takeup from the walkway side, with the guards in placeobstructing his view, and that he did not record any hazards in the H-2 beltentry; customarily, according to him, examiners did not record hazards if theywere being worked on, but this practice was scrapped after the inspection.     Tr.123-26, 140-41. Esch admitted that he had no independent memory of examiningthe area beyond reviewing his notes, that he was not present when Chatham tookphotographs nor did he dispute their authenticity, and that the conditionsdepicted in them needed to be addressed because they could cause a fire. Tr.124, 135-36. 

 

**c.     ****Joe Bell**

Dayshift longwall outby supervisor Joe Bell testified for Peabody that he hadworked at Shoal Creek for about 10 years, and that his team was responsible forcleaning areas outby the longwall face, including the H-2 belt takeup area. Tr.145-49. He explained that longwall mining at Shoal Creek is a wet process, andthat the H-2 belt takeup is particularly wet due to its location in the mine andthe belt shortening as the longwall advances, all of which make the area proneto accumulations. Tr. 150, 191-92, 224. According to Bell, the belt tear onDecember 11 created “[a] mess . . . the pieces got wound up in a lot of rollers. . . . So there was a lot of things wrapped around stuff and then on top ofthat, the material,” and it took “all hands on deck” to clean and repair thebelt, with the “mindset . . . to get [the belt] running,” because accumulationscannot be pumped onto the belt when it is shut down. Tr. 154-58, 217. He statedthat in order to clean the spill and get the belt running, the takeup guardingwas removed, seven to eight miners shoveled the accumulations from under thebelt onto the walkway, and the belt was repaired; most of the accumulations hadbeen moved onto the walkway by the time that he left, around 4 p.m. Tr. 157-61.He estimated that, given the extensiveness of the spill and the slow cleaningprocess, it would have taken a few shifts to finish the job. Tr. 196-202. 

 

ByBell’s account, on December 12, between 7:30 and 8:30 a.m., the H-2 belt was runningand, with the takeup guards in place obstructing his view while he was working,he did not have an opportunity to inspect the takeup, and he observed material anda piece of discarded belt in the walkway. Tr. 163-65, 187-89. He stated that hiscrew washed the takeup area for approximately a half hour, explaining that whenthe guards are up, shoveling can clear some of the accumulations and hosing cleansthe rest, and that his crew had planned to pump the material onto the belt. Tr.163-66, 189-91. Thereafter, he stated, longwall coordinator Randy Deavours called,assigning him and two miners to attend to a fuel cell hazard elsewhere and, beforeleaving the area, the belt was still running, and he turned off the pumpbecause there was no one to run it. Tr. 166-68, 193-94. Bell testified that whenhe returned to resume cleaning in about an hour, the inspection party wasthere, and he observed the condition at the takeup for the first time; he qualifiedhis testimony by stating that he had not looked closely at it earlier becausehe had been focused on clearing material from the walkway, but then admitted that,generally, he had seen it earlier in the shift. Tr. 168-74, 193-96. In hisopinion, the material on the walkway had washed back under the takeup due tothe wetness of the area. Tr. 176. Bell agreed with Chatham’s narrative of thecondition on the face of the citation, and testified to the accuracy of Chatham’sphotographs, noting that it would be dangerous to run the belt in that condition.Tr. 177-88. His testimony as to the photographs of the belt strings wasinconsistent, however; he acknowledged the depictions as what he had seen upon hisdeparture on December 11 and arrival on December 12, then denied having seenthem at all on December 11, and not until he was with Chatham on December 12. Tr.182-84, 187, 194-96.

 

**d.    ****Randy Deavours**

** **

Dayshift longwall coordinator Randy Deavours testified for Peabody that heoversees production and outby supervisors, and that he had worked at ShoalCreek for two years and four months. Tr. 204-05. He stated that air from the H-2belt entry and the primary escapeway combined to ventilate the longwall face,and that the primary escapeway provided the majority of the fresh air. Tr.206-08.****By his account, the H-2 belt tore at 1:05 p.m., and he immediatelywent to the belt takeup, finding a tear of approximately 30 feet, and anextensive spill of wet coal. Tr. 209, 213-16. He explained that accumulationscannot be pumped when the belt is off because it is needed to carry them out ofthe mine. Tr. 216-19. He stated that after the belt tore, approximately sixminers shoveled the accumulations from under the belt onto the walkway,finishing around 5:00 p.m., and that the belt was repaired. Tr. 216-19. Deavourstestified that the belt was restarted at 5:15 p.m., that the longwall made 4 1⁄2passes during evening shift and 2 during owl shift, and that productioncontinued into the morning. Tr. 220-24, 238-40; Ex. P–5 at 22-24, 36. He alsotestified that cleaning continued from day into evening and owl shifts and that,once the belt was running, accumulations were pumped onto it, as well as loadedonto wheelbarrows and skid steers and dumped onto it. Tr. 218-24; Ex. P–5 at22-24, 36. According to Deavours, at the beginning of December 12 day shift, hehad instructed Bell’s crew to continue cleaning the walkway at the belt takeup andthat, shortly thereafter, he reassigned them to move a fuel cell located tooclose to a high voltage cable in another area. Tr. 225-29. He explained that bythe time that Bell’s men arrived at the fuel cell, he had also found accumulationsin contact with a roller around crosscuts 8 to 10, and that he had assigned anotheroutby man to address it. Tr. 227-31. He continued, testifying that he then receiveda call that MSHA had shut down the H-2 belt because of accumulations at the takeup,and that he traveled there and observed extensive wet accumulations,acknowledging that he did not touch them.   Tr. 230-34, 241, 243-46. Heexplained that the area was prone to accumulations, that cleaning in that area occurredalmost every day and that, based on his experience, he believed that the cited conditionwas caused by the material left in the walkway washing back under the belt andtakeup. Tr. 231-34, 241. He opined that the belt should not have been runningin that condition, and explained that in order to terminate the citation, 10 to13 man crews, over at least three shifts, used wheelbarrows and skid steers to loadthe belt, that the belt was “bumped” so that it could be loaded, and that pumpingwas not possible because the belt was not running. Tr. 235-40. 

** **

**e.    ****James Barnett**

** **

Eveningshift utility miner connection and certified examiner James Barnett testified forPeabody that he performed examinations once or twice a week and that, on December11, he conducted a pre-shift examination of the H-2 belt entry around 8 p.m.,and that the guards were in place and the belt, carrying a lot of water, was conveyingcoal. Tr. 249-54. He asserted that he observed miner Ricky Shubert standing inthe walkway hosing coal from under the belt takeup, and that he did not make noteof accumulations in the H-2 takeup area because cleaning was underway. Tr. 252-59;Ex. P–5 at 3. He also stated that he did not observe any contact between theaccumulations and the rollers or the belt, that he would have stopped the belthad that been the case because contact can cause fires, and that he had previouslyseen mine fires due to bearing failure and belt strings. Tr. 252-57.

 

**2.    ****Analysis**

 

Aviolation of section 75.400 occurs “where the quantity of combustiblematerials is such that, in the judgment of the authorized representative of theSecretary, it could cause a fire or explosion if an ignition source werepresent.” *Old Ben Coal Co.**,** *2FMSHRC 2806, 2808 (Oct. 1980) (“Old Ben II”) (footnote omitted). This judgmentis viewed through the objective standard of whether a “reasonably prudentperson, familiar with the mining industry and the protective purposes of thestandard, would have recognized the hazardous condition that the regulationseeks to prevent.” *Utah Power & Light Co.**,** *12 FMSHRC 965, 968 (May1990), *aff’d* 951 F.2d 292 (10th Cir. 1992).

 

Peabodylaunches its challenge to the violation by focusing on the cause of theaccumulation, i.e., the extensive belt tear, and arguing that given the size ofthe spill, it had a reasonable amount of time to clean it up. Resp’t Br. at 6-8(citing *Old Ben Coal Co*., 1 FMSHRC 1954, 1958 (Dec. 1979) (“Old Ben I”)(noting that “some spillage of combustible materials may be inevitable inmining operations”); *Utah Power & Light Co*., 951 F.2d 292, 295 n.11(10th Cir. 1991) (stating that “loose coal . . . . mustbe cleaned up with reasonable promptness, with all convenient speed”); *butsee Black Beauty Coal Co.*, 703 F.3d 553, 559 n.6 (D.C. Cir. 2012) (rejectingthe argument that operators have a “reasonable time” for cleaning before a section75.400 citation can be issued)). While the Commission has stated that“[w]hether a spillage constitutes an accumulation under the standard is aquestion, at least in part, of size and amount,” (*Old Ben I**,** *1 FMSHRC at 1958) the D.C.Circuit has explained that, although spills can occur quickly, accumulations ofcombustible materials substantial enough to cause or propagate a fire areprohibited, even if recent. *Black Beauty**,* 703 F.3d at 558-59, 559 n.6; *see Utah Power*, 951F.2d at 295 n.11;**Prabhu Deshetty***,** *16 FMSHRC 1046, 1049 (May 1994) (rejecting adefense based on recentness of a spill). Moreover, the D.C. Circuit has explainedthat the discussion of “reasonable promptness” in *Utah Power* is dictathat has not been followed by the 10th Circuit in subsequent cases, and thatoperators are not afforded a reasonable time to clean accumulations before aviolation of section 75.400 can be found. *Black Beauty**,* 703 F.3d at 558-59, 559 n.6. Here, theevidence clearly establishes that there were substantial accumulations of coalin the H-2 belt takeup area. Chatham’s account of the condition is largely corroboratedby his contemporaneous notes and photographs, and even Bell and Esch admitted thatit would have been dangerous to run the belt in the condition documented byChatham’s photographs. Ex. P–3 at 3-4. While the accumulations were the resultof a substantial belt tear, they were significant enough to require major cleanupefforts before resuming operation of the belt to run coal. 

 

Peabodyalso argues that it had cleared the accumulations from underneath the H-2 beltin the takeup area, that the material must have washed back, and that cleaningwould have continued but for the inspection and Bell’s crew being called away. Resp’tBr. at 7-8. While I credit that after the belt tear on December 11 at 1:05 p.m.,Peabodyhad moved the accumulations under the belt onto the walkway before restarting thebelt later that evening, and that cleaning had continued during the subsequentevening, owl, and day shifts, the accumulations were never completely removedfrom the belt takeup area and taken out of the mine. Notably, onDecember 12 day shift, Deavours assigned Bell’s men to continue the cleanup of the belttakeup area, but then diverted them to another hazard elsewhere. Bell turnedoff the pumps when he left the area, and the belt continued to run. However,even if the outby crew’s cleaning had not been subordinated to another taskthat morning, its efforts would have constituted a mere fraction of the 10 to 13miner crew, working over the course of three shifts, to clean up the “mess” andterminate the citation. 

 

Whilethe record establishes that the H-2 belt takeup area was very wet, the evidencethat the accumulations were dry in several spots was unrebutted. The Commissionhas long explained that “wet coal accumulations pose a significant danger inunderground coal mines” because they can dry out through frictional contactwith the belt or rollers, and propagate a fire or explosion. *Mach Mining,LLC*, 40 FMSHRC 1, 3-6 (Jan. 2018) (citing *Consolidation Coal Co.*, 35FMSHRC 2326, 2329-30 (Aug. 2013); *Black Diamond Coal Mining Co.*, 7FMSHRC 1117, 1120-21 (Aug. 1985)). 

 

Basedon the evidence in its entirety, I find that the accumulations of loose coaland coal fines, measuring 120 feet long, 21 feet wide, and up to 30 inches deep,were substantial and extensive, that they were contacting the H-2 belt and rollers,that belt strings coated in loose coal, coal fines, and float coal dust werewrapped around rollers, bearings, and the takeup frame, and that theaccumulations had dried out in places from frictional contact and, therefore,were combustible. Accordingly, I conclude that Peabody violated section 75.400.

**B.   ****Gravity**

** **

TheSecretary argues that there was a realistic potential for fire to occur. Sec’yBr. at 14-16. Conversely, Peabody maintains that an ignition was unlikelybecause of the wet conditions in the mine, the absence of methane in the area,and the unlikelihood of belt drive motor cables sparking. Resp’t Br. at 8-10. Peabodyalso argues that the accumulations would have been cleaned up in the context of“continued normal mining operations” and, accordingly, would not have beenreasonably likely to cause injury had the inspector not intervened. Resp’t Br.at 8-10 (citing *U.S. Steel*, 7 FMSHRC 1125, 1130 (Aug. 1985) (explainingthat when considering whether a violation is S&S, the evaluation of thereasonable likelihood of injury should be made in the context of “continuednormal mining operations”)). Finally, Peabody contends that Chatham’s claimthat he smelled burning rubber should be discounted. Resp’t Br. at 10. 

** **

The Commission has recently restated thefour *Mathies*criteria that the Secretary must establish in order toprove that a violation is S&S under *National Gypsum*: 

 

(1) theunderlying violation of a mandatory safety standard; (2) the violation wasreasonably likely to cause the occurrence of the discrete safety hazard againstwhich the standard is directed; (3) the occurrence of that hazard would bereasonably likely to cause an injury; and (4) there would be a reasonablelikelihood that the injury in question would be of a reasonably serious nature.

 

*PeabodyMidwest Mining, LLC*,42 FMSHRC___, slip. op. at 5 (June 2, 2020); *see ICG Illinois*,*LLC*,38 FMSHRC 2473, 2475-76 (Oct. 2016); *Newtown Energy, Inc.*, 38 FMSHRC2033, 2038 (Aug. 2016);*Mathies Coal Co.*, 6 FMSHRC 1, 3-4 (Jan. 1984); *seealso Buck Creek Coal, Inc. v. FMSHRC*, 52 F.3d 133, 135 (7th Cir.1995); *Austin Power, Inc. v. Sec’y of Labor*, 861 F.2d 99, 103-04(5th Cir. 1988) (approving *Mathies* criteria), *aff’g* 9FMSHRC 2015, 2021 (Dec. 1987).  Resolution of whether a violation is S&Smust be based “on the particular facts surrounding that violation.” *Texasgulf,Inc.*, 10 FMSHRC 498, 501 (Apr. 1988); *Youghiogheny & Ohio CoalCo.*, 9 FMSHRC 2007, 2011-12 (Dec. 1987). 

 

Thefact of violation has been established, satisfying the first *Mathies*criterion, and the discrete safety hazard against which section 75.400 isdirected is fire or explosion contributed to by accumulations of combustiblematerials. 

 

TheS&S determination must be made at the time that a citation is issued“without any assumptions as to abatement;” however, if active abatement isunderway at the time of citation issuance, the sufficiency of the abatement measuresmust be considered when determining whether a violation contributes to the hazard.*See generally Knox Creek Coal Corp.*, 811 F.3d 148, 165-66 (4th Cir.2016); *Mach Mining*, 40 FMSHRC at 1, 5-6; *Paramont Coal Co.*, 37 FMSHRC 981, 985 (May2015); *U.S. Steel*, 7 FMSHRC at 1130; *U.S. SteelMining Co.*,6 FMSHRC 1573, 1574 (July 1984). In this case, active abatement was not underway atthe time of inspection. Bell’s crew’s cleaning of the takeup area had beeninterrupted before Chatham came upon the condition, and those efforts were marginal,at best, in light of the significant accumulations. Accordingly, based on the cleanupdeficiency from belt tear to inspection, I find that, in the context ofcontinued normal mining, the accumulations would have existed.

 

Incases involving combustible accumulations, the Commission has clarified thatwhen considering the second and third steps of the *Mathies*analysis,“the likelihood of an injury resulting depends on the existence of a ‘confluenceof factors’ that could trigger the ignition or explosion. Factors include anypotential ignition sources, the presence or potential for presence of methane,float coal dust accumulations, loose coal or other ignitable substance, and thetypes of equipment operating in the area.” *Mach Mining*, 40 FMSHRC at 3-4(citations omitted) (citing *McCoy Elkhorn Coal Corp.*, 36 FMSHRC 1987,1992 (Aug. 2014)); *see also Utah Power*,12 FMSHRC at 971; *Texasgulf*, 10 FMSHRC at 501-03. Belts and beltrollers contacting accumulations can be ignition sources, even absent defects. *MachMining*, 40 FMSHRC at 4-6; *Buck Creek*,* *52 F.3d at 135; *seeKnox Creek Coal Corp.*, 36 FMSHRC 1128, 1139-42 (May 2014). Finally, it iswell established that a fire in an underground coal mine poses a significant riskof injury to miners. *Buck Creek*,* *52 F.3d at 135-36; *BlackDiamond*, 7 FMSHRC at 1120. 

 

DespiteShoal Creek’s gassy nature, there is no evidence that methane was liberated inthe H-2 belt takeup area. However, the possibilityof sparks emanating from the non-permissible belt drive motors was unchallenged,as was thesmell of burning rubber, which was consistent with the condition observed inthe takeup area. Furthermore, the numerous points of frictional contact betweenthe accumulations and the belt and several rollers, along with the belt stringswrapped tightly around several rollers, bearings, and the frame, had begun todry out the accumulations. Accordingly, I find it reasonably likely that thecoal accumulations contributed to the occurrence of a fire in the mine, andthat the second *Mathies*criterion has been satisfied. 

 

Movingon to the third and fourth *Mathies*criteria, evidence establishing thatintake air from the primary escapeway, combined with intake air from the H-2belt entry, would dilute any smoke or contaminants reaching the longwall face,does not eradicate the danger of exposing the section crew to toxic air at theface and in the alternate escapeway, no matter how minimal the contamination. Asthe Seventh Circuit has expressed in *Buck Creek**, a finding that*“a fire burning in anunderground coal mine would present a serious risk of smoke and gas inhalation”is a common sense conclusion. 52 F.3d at 135-36; *see also Black Diamond*,7 FMSHRC at 1120 (recognizing that “ignitions and explosions are major causesof death and injury to miners”). Therefore, based on the evidence established inthis case and the relevant precedent, I find that a mine fire would bereasonably likely to cause an injury, and a reasonable likelihood that theresultant injurywould be of a reasonably serious nature, satisfying the *Mathies*test. Accordingly,thisviolation was S&S.

** **

**C.   ****Unwarrantable Failureand Negligence**

 

Unwarrantablefailure is aggravated conduct constituting more than ordinary negligence, characterizedby such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”or a “serious lack of reasonable care.” *CAM Mining, LLC*, 38 FMSHRC 1903,1908-09 (Aug. 2016); *Rochester & Pittsburgh Coal Co.*, 13 FMSHRC 189,194 (Feb. 1991); *Emery Mining Corp.*, 9 FMSHRC 1997, 2001-04 (Dec. 1987);*see also**Buck Creek Coal*, 52 F.3d at 136. The Commission hasrecognized the relevance of several factors in determining whether conduct is“aggravated” in the context of unwarrantable failure, such as the extensivenessof the violation, the length of time that the violation has existed, whetherthe violation posed a high risk of danger, whether the violation was obvious,the operator’s knowledge of the existence of the violation, the operator’sefforts in eliminating the violative condition, and whether the operator hasbeen put on notice that greater efforts are necessary for compliance. *SeeMcCoy Elkhorn*, 36 FMSHRC at 1993 (citing *Manalapan Mining Co.*, 35FMSHRC 289, 293 (Feb. 2013); *IO Coal Co.*, 31 FMSHRC 1346, 1350-57 (Dec.2009); *Cyprus Emerald Res. Corp.*, 20 FMSHRC 790, 813 (Aug. 1998), *rev’don other grounds*, 195 F.3d 42 (D.C. Cir. 1999)). Each case must be examinedon its own facts to determine whether an actor’s conduct is aggravated, orwhether mitigating circumstances exist. *Eagle Energy, Inc.*, 23 FMSHRC829, 834 (Aug. 2001) (citing *Consolidation Coal*, 22 FMSHRC 340, 353(Mar. 2000)). Although some factors may be irrelevant to a particular scenario,all relevant factors must be examined. *ICG Hazard LLC*, 36 FMSHRC 2635,2637-38 (Oct. 2014) (citing *IO Coal*, 31 FMSHRC at 1351).

 

The Secretary contends that, given thetime that it took to clean up the accumulations, the condition was extensive. Sec’yBr. at 16-20 (citing *McCoy Elkhorn*, 36 FMSHRC at 1993 (upholding afinding of extensiveness where it took an entire crew four hours to clean up accumulations)).Peabody makes the counter argument against extensiveness, in that theaccumulations were confined mostly to the belt takeup area. Resp’t Br. at 15. Inthis regard, the Commission has explained that extensiveness of the violativecondition has traditionally been determined by examining the magnitude of theviolation as it existed at the time that the citation was issued. *See EasternAssoc. Coal Corp.**,** *32FMSHRC 1189, 1195 (Oct. 2010). The accumulations observed by Chatham were 120feet long, 21 feet wide, and up to 30 inches deep, in contact with the belt andnumerous rollers, and drying out in places, and belt strings were wrappedaround rollers, bearings, and the takeup frame. Furthermore, it took 10 to 13 miners,over at least three shifts, to clean up the accumulations. Accordingly, thisviolation was extensive and clearly obvious, both aggravating factors. 

 

TheSecretary asserts that accumulations existing for more than a shift, as in thiscase, constitute aggravated conduct. Sec’y Br. at 17 (citing *Buck Creek*,52 F.3d at 136 (upholding a finding of unwarrantable failure where theaccumulations existed for more than one shift after identification during apre-shift examination)). Peabody argues that the condition existed for lessthan 24 hours, and that the accumulations washed back under the belt at somepoint after they had been moved onto the walkway. Resp’t Br. at 14-15. Therecord establishes that the belt tear occurred on December 11 day shift around1 p.m., and that Peabody cleared the coal from under the belt onto the walkway beforethe belt was restarted on evening shift around 5:15 p.m., but that the accumulationswere never completely removed from the walkway and taken out of the mine untilafter the citation was issued. Crediting that washback from the walkway occurredat some point after the initial cleanup of the spill, it is clear that theaccumulations remained in the belt takeup area over a period spanning fourshifts, from mid-day shifts December 11 to December 12. Accordingly, theviolation existed for a significant length of time, an aggravating factor.

 

TheSecretary argues that the S&S designation indicates that this condition washighly dangerous. Sec’y Br. at 17-19 (citing *San Juan Coal*, 29 FMSHRC125, 132-33, 134-35 (Mar. 2007) (finding that the judge failed to relate facts consideredin finding that a violation was S&S to the “degree of danger” prong of the unwarrantablefailure analysis)). On the other hand, Peabody minimizes the danger bycontending that the accumulations were wet. Resp’t Br. at 14-15. The evidenceestablishes that the accumulations were extensive, drying out due to frictionalcontact with the belt and rollers, and that belt strings, coated with loosecoal, coal fines and float coal dust, were wrapped around rollers, bearings,and the frame, posing a serious risk of ignition; additionally, this belt entrywas an alternate escapeway, an essential component of the evacuation scheme forthe active H-2 longwall in the event of an emergency. Accordingly, I find that thiscondition posed a high risk of danger, also an aggravating factor.

 

TheSecretary contends that Peabody had knowledge of the condition because Barnettand Esch had examined the area, and Bell’s crew was cleaning there on the day ofinspection. Sec’y Br. at 16-20. Peabody counters that it was aware of thecondition at the time of the belt tear and took remedial action, but makes norepresentation as to its awareness of the intervening washback prior toChatham’s inspection. See Resp’t Br. at 11-14. It is well settled that anoperator’s knowledge may be established, and a finding of unwarrantablefailure supported, where an operator reasonably should have known of aviolative condition. *See **Drummond Co., Inc*., 13 FMSHRC1362, 1367-69 (Sept. 1991); *Emery**,** *9FMSHRC at 2002-04. Therecord establishes that the belt was repaired and the accumulations moved fromunder it onto the walkway prior to resumption of production during the eveningshift, and that cleaning continued during the succeeding owl and day shifts. Peabody’s generalknowledge, that washback occurred in the wet takeup area and that theaccumulations were never completely removed from the walkway and taken out ofthe mine, has also been established. While Peabody’s washback contention hasbeen credited, it has failed to establish when it occurred during the course ofevents. However, Barnett’s observation of hosing under the belt takeup duringhis evening pre-shift examination on December 11 should have put Peabody onnotice that accumulations were back under the belt, notwithstanding thecustomary non-recording of hazards actively being addressed. Likewise, lack ofnotation of the hazard in the December 12 owl pre-shift report raisesspeculation as to whether the washback under the belt was overlooked or simplynot recorded because of active spraying. See Ex. P–5 at 2-5. In any case, byday shift on the morning of inspection, the dispatchment of Bell’s crew toclean in the takeup area clearly establishes Peabody’s knowledge of the “mess”that Chatham would encounter a short while thereafter. Accordingly, there areseveral indicators that lead to a finding that Peabody knew or should haveknown of the ongoing condition, an aggravating factor. 

 

The Secretary maintains that Peabody’scleaning efforts were insufficient, given the condition. Sec’y Br. at 18-19(citing *San Juan Coal*, 29 FMSHRC at 134-35 (explaining that “subordinationof cleanup efforts to other work may support an unwarrantable failure finding”);*Peabody Coal* Co., 14 FMSHRC 1258, 1260-63 (Aug. 1992) (affirming anunwarrantable failure where one miner had been assigned to clean the citedarea, but it took five miners four hours to abate the violative condition)). Peabodyresponds that its cleanup efforts were reasonable in light of its knowledge of thecondition after the spill, the fact that cleanup would have continued, and becauseChatham’s opinions about the condition and cleanup efforts were erroneous. Resp’tBr. at 12-15 (citing *Peabody Midwest Mining, LLC*, 41 FMSHRC 340, 352 (June2019) (ALJ) (finding that the violation was not unwarrantable based, in part, onthe mine’s determination that its planned cleanup would eliminate the conditionbefore it became hazardous)). Peabody also contends that “good faith” cleanupefforts can mitigate a finding of unwarrantable failure. Resp’t Br. at 11-13(citing *Cannelton Industries, Inc*., 20 FMSHRC 726, 734 (July 1998); *seealso Peabody Midwest Mining, LLC*, 41 FMSHRC 279, 303 (May 2019) (ALJ);*PeabodyMidwest Mining, LLC*, 40 FMSHRC 87, 141 (Jan. 2018) (ALJ)). The Commissionhas stated that when an operator has been placed on notice of a problem, thelevel of priority that it places on abatement is relevant, and that the focusis on the operator’s abatement efforts prior to being cited. *Enlow ForkMining Co.**, 19 FMSHRC 5, 13-19 (Jan.1997)*. Additionally, good faith cleanup efforts, even if based on amistaken belief, can be a mitigating factor; however, the belief must bereasonable under the circumstances. *Amax Coal Co.*, 19 FMSHRC 846, 851(May 1997); *see also Cannelton*, 20 FMSHRC at 734.**Obviously, thecleanup efforts after the belt was restarted did not eliminate the condition, andDeavours’ reassignment of Bell’s crew, on the morning of December 12, to addressanother problem, indicates that Peabody failed to appreciate the seriousness ofthe accumulations and prioritize abatement. This is especially so in light ofits general knowledge that washback occurred regularly in the H-2 belt takeuparea, and given the extensiveness of the accumulations left in the walkway. Finally,Peabody raises legitimate questions as to Chatham’s understanding of beltoperation during cleanup, its use of hoses for cleaning, and its cleanupefforts during December 12 owl and day shifts. However, any misconceptions thatChatham held about running the belt or hosing as essential components of its cleaningprocess, as well as Peabody’s actual efforts on December 12, have no bearing onPeabody’s overall inattention to the magnitude and seriousness of the accumulations,an aggravating factor. 

 

Repeated similar violations may also berelevant to an unwarrantable failure determination to the extent that theyserve to put an operator on notice that greater efforts are necessary forcompliance with a standard. *Amax Coal*, 19 FMSHRC at 851; *seealso Consolidation Coal Co.**,** *23FMSHRC 588, 595 (June 2001). The Commission has rejected theargument that only past violations, involving the same regulation and occurringin the same area, may be properly considered when determining whether aviolation is unwarrantable. *Peabody Coal*, 14 FMSHRC at 1263. Shoal Creekwas cited 121 times for violations of section 75.400 inthe two years preceding this citation, and 25 times in the quarter. Peabodytook control of Shoal Creek from Drummond on December 4, 2018 and, at the timeof inspection, one section 75.400 citation had been issued directly to Peabody.Ex.P–16 at 10, 19, 21. Notably, management employees Bell and Deavours retainedemployment with Peabody at Shoal Creek after having worked for Drummond. Moreover,it was well known that the area was prone to accumulations and washback. Takentogether, the evidence establishes that Peabody was on notice that greaterefforts for compliance were necessary, particularly in the cited area, anotheraggravating factor. 

 

Afterconsidering all the aggravating factors, I conclude that Peabody was highlynegligent, and that this violation was the result of its unwarrantable failureto comply with the standard. 

 

**2.       ****OrderNo. 9136320**

** **

InspectorDarryl Allen issued 104(d)(1) Order No. 9136320 on February 19, 2019, allegingan “S&S” violation of section 75.380(d)(1) that was “reasonably likely” tocause an injury that could reasonably be expected to be “fatal,” and was causedby Peabody’s “high” negligence and unwarrantable failure to comply with thestandard.[4]The “Condition or Practice” is described as follows:

 

The alternateescapeway leading from H-3 and H-2 longwall sections, to the west serviceshaft, is not maintained in safe condition to always assure passage of anyone,including disabled persons. Thick muddy water, containing coal fines, andcovering thick coal muck, has been allowed to accumulate in the West Main 4belt entry, (A.E.) from cross cut 82 to 83. The muddy water and muck, coveringtire ruts, rocks, coal, and other stumbling hazards, exists in three low areasof the belt entry between cross cuts 82 and 83, each measuring approximately 20ft. in length x the full width of the walkway side of the belt entry, andranging from 12 to 18 inches deep. A 13 hp. pump is observed suspended in thewater at cross cut 82, but is not in operation, and will not pump most of thethick mud and coal fine material. No pumps or pump lines are currently locatedat the other two low areas. This condition was reported to management on2/18/19 following the 8:00 p.m. to 11:00 p.m. pre-shift examination, and wasentered in the outby pre-shift records under Hazardous Conditions, or Violationof a Mandatory Safety Standard, and was countersigned by the Owl Shift MineForeman. No corrective actions appear to have been taken. The operator hasengaged in aggravated conduct constituting more than ordinary negligence. Thisviolation is an unwarrantable failure to comply with a mandatory standard. Standard75.380(d)(1) was cited 17 times in two years at mine 0102901 (17 to theoperator, 0 to a contractor). This violation is an unwarrantable failure tocomply with a mandatory standard.

 

Ex.P–6. The order was terminated on February 19, after the operator had removed water,coal fines, and coal muck from the holes, filled them with road mix and gravel,and cleared a six-foot-wide travelway in the alternate escapeway. Ex. P–6. 

 

**A.   ****Fact ofViolation**

** **

TheSecretary contends that Peabody violated the standard because the alternate escapewaydid not satisfy the “functional passability” test in *Utah Power*. Sec’yBr. at 33-34 (citing 11 FMSHRC 1926, 1930 (Oct. 1989)).[5] Conversely,Peabody seeks vacation of the order, maintaining that the cited area in theWest Main No. 4 belt entry was safe to travel, that three miners traveled thearea without any problem and, challenging Allen’s account of the condition asuncorroborated, that establishment of a violation is largely a factualdetermination. Resp’t Br. at 21-22. 

 

**1.    ****Summary ofTestimony**

** **

**a.    ****Darryl Allen**

 

InspectorDarryl Allen testified for the Secretary that, upon arrival at Shoal Creek inthe early morning of February 19 to conduct a quarterly E01 inspection, hefound in the February 18 evening pre-shift report, “water and muck deep 82 to83 and 82” in the West Main No. 4 belt entry, and that men were assigned to addressthe issue, but that the work was not completed.   Tr. 277, 284, 286-87, 292-93,300-01, 305, 309-10; Ex. P–9(a), (b). He explained that the West Main No. 4belt entry is the alternate escapeway for the H-2 and H-3 working faces, andthat it is subject to examination every shift. Tr. 296-98, 358-59. He stated thatPeabody safety supervisor Brett Clements transported the inspection party tocrosscut 84, where it crossed over to the West Main No. 4 belt entry, and thathe encountered thick “boot-sucking” muck and water, measuring 12 to 18 inches,in holes located between crosscuts 82 and 83, each hole stretching the width ofthe walkway for a distance of approximately 20 feet, with tire ruts, coalfines, and rocks throughout the area. Tr. 312-13, 316-19, 338-39, 373. He testifiedthat the first hole was filled with about 12 inches of water and muck, that thesecond hole, in which he almost fell, was filled with muck higher than the topof his boots, and that the third hole, filled with water and soupy muck, wasapproximately 18 inches deep. Tr. 316-24. He stated that there was a pump inthe hole by crosscut 82 that was not running, and explained that it was notdesigned to handle muck. Tr. 324, 327-29. By his account, there were noindications that any cleaning had been underway, and he speculated that themuck could have accumulated over a period of weeks. Tr. 328-33. Consequently, heexplained, he issued a withdrawal order because he was concerned about minersbeing impeded or losing balance and falling if they needed to use the escapewayand that, because the travelway was too narrow for vehicles, miners would haveto travel on foot through this condition and then another 1 1⁄3 miles in order toreach the exit. Tr. 297, 311-12, 316-17, 326, 331-34. Allen also expressedconcern about the ability of disabled miners to escape in an emergency, notingthat navigating the area in the cited condition with a stretcher would be dangerous.Tr. 375-77. 

 

**b.    ****Clarence Whitt**

 

Owlshift pump supervisor Clarence Whitt testified for Peabody that he had workedat Shoal Creek for about 16 years, that he typically reviews the fire boss bookbetween 10:20 and 10:30 p.m., that he records his cleaning assignments on thepre-shift report, and that he is directly notified of high priority issues byradio. Tr. 388-98, 400-01. He asserted that he reviewed the February 19 eveningpre-shift report, that it identified water and muck at crosscut 82 and betweencrosscuts 82 and 83 in the West Main No. 4 belt entry, and that he went directlyto that area with a pumper and found a hole at crosscut 82, approximately 20 feetlong, 8 to 10 feet wide, and 8 to 10 inches deep, filled with water and muck,noting that he could not see the bottom of the hole. Tr. 396-97, 402-03, 411-15;Ex. P–9(a). As he continued inby, he stated, he found a second hole filled withmuck, and that he did not walk the length of the hole or over to crosscut 83. Tr.405, 416, 421-22. He stated that thick muck filled both holes, but that he didnot identify any tripping hazard between crosscuts 82 and 83, and he admitted thathe was focusing on cleanup when assessing the condition rather than escaping inan emergency.     Tr. 416-18, 421, 428, 432. Whitt also equivocated as to whetherthe muck was “boot sucking;” having testified that it was not, he was referredto his contradictory deposition testimony that it was, then was not, admittingthat the change in his prior testimony had occurred after conferring withcounsel. Tr. 406, 420, 425, 430, 431. He explained that the pump cannot removemuck, and that it is located at crosscut 82 because the area is low lying andanything uphill drains down to it. Tr. 402-06, 409, 415-16, 419. He admittedthat he did not know the depth of the muck after pumping water off the hole atcrosscut 82 and acknowledged that, based on his experience, muck takes time tobuild up. Tr. 420, 425, 430-31. He testified that after pumping the water, he wascalled away to service the main sump, that he never called for anyone to cleanup the muck, and that he asked Joe Kennedy to check whether the water had builtback up in the hole at crosscut 82. Tr. 403, 418-22. Finally, he explained thatmobile equipment, such as skidsteers, was necessary to remove muck and, whileno equipment was there when he left, he heard over the radio that it was on theway. Tr. 418-24. 

 

**c.     ****Joe Kennedy**

 

Owlshift pump supervisor Joe Kennedy testified for Peabody that he had worked at ShoalCreek for over six years. Tr. 433-34. He explained that he and Whitt wouldreview the examination records at the beginning of the shift and divide thework, noting that the records are important for passing information betweenshifts. Tr. 434, 443-44, 450. He testified that at the beginning of February 19owl shift, he was working in an area without radio communication, that he leftthere between 4:30 and 5:30 a.m., and that he received a call about the West MainNo. 4 belt entry. Tr. 436-39. He stated that he proceeded to crosscut 82 andfound a little water and a lot of muck and that, as he walked the area, he didnot need waders and encountered no tripping hazards. Tr. 439-41. He testified thathe pumped water at crosscut 82 for 15 to 30 minutes at 6 a.m., then called forsomeone to scoop the muck because the pumps can only handle water, and that he expectedit to take place during day shift because there was no mobile equipment in thearea at the time. Tr. 441-43, 456-57.

 

**d.    ****Brett Clements**

 

Brett Clements testified for Peabody thathe had been working as a safety supervisor at Shoal Creek since 2013. Tr. 458. Hestated that he dropped off the inspection party at crosscut 84, parked themantrip at crosscut 81 and entered the West Main No. 4 belt entry there, thathe met the inspection party around crosscut 83, and that he called mine foremanDoug Altizer about missing lifeline cones and muck that Allen had identified inthe belt entry. Tr. 460-63, 487-89, 500-01. Explaining that the entry slopesdown from crosscut 81 to 82 and that water and muck were known to accumulate atthat low point, he stated that he encountered a hole filled with muck and waterat crosscut 82 and another filled with soupy muck between crosscuts 82 and 83, approximatingboth holes at 15 to 20 feet long, about walkway width, and 12 to 13 inches deep.Tr. 462, 480-83, 486, 490-91. He asserted that he had no trouble walkingthrough the holes, that no water came up over his 16-inch boots, and that he didnot encounter any trip and fall hazards, noting that he did not recall Allenstumbling. Tr. 462-64. In his opinion, withdrawing the miners was unnecessary becausethe material did not obstruct his travel in the escapeway.    Tr. 465. Hetestified about the photographs that he had taken, indicating how high the muckhad come up on his boots in the holes at crosscut 82 and between crosscuts 82and 83, and identifying the inactive pump in the hole at crosscut 82. Tr.466-67, 472-76, 496-98; Ex. R–1(a)-(c). Heexplained that soupy muck would need cleaning with a skid steer because it wastoo thick to pump, and stated that he was not present when the order wasterminated by scooping with a skid steer and filling the holes with road mixand gravel, enabling water to flow down to the pump. Tr. 477, 480-486, 490-91,500**.**

** **

**2.    ****Analysis**

 

Section 75.380(d)(1) requires underground coal mineoperators to maintain each escapeway in safe condition to assure passage ofanyone, including injured miners. *Maple Creek Mining, Inc*., 27 FMSHRC555, 556-59 (Aug, 2005). Operators must also keep escapeways clear forminers to quickly exit the mines in the event of emergencies. *MachMining, LLC*, 35 FMSHRC 2937, 2942-43 (Sep. 2013)(citing *Am. Coal Co.*,* *29 FMSHRC 941, 948, 953-54 (Dec. 2007)). The Commission has alsoexplained that the proper consideration “is not whether miners have been safelytraversing the route under normal conditions, but rather the effect of thecondition of the route on miners’ ability to expeditiously escape a dangerousunderground environment in an emergency.” *Am. Coal*, 29 FMSHRC at 950 (citations omitted). Moreover, theCommission has noted that “[o]f particular importance in determining whether anescapeway is adequate under section 75.380 is the ability of miners totransport an injured miner on a stretcher through it.”*MapleCreek*, 27 FMSHRC at 560.

 

WhilePeabody correctly contends that the question of whether an escapeway ispassable is largely a factual one, its arguments - - that because Whitt,Kennedy, and Clements walked the area between crosscuts 82 and 83 eight times,collectively, without difficultly, escaping miners would not be impeded, andthat Allen overstated the seriousness of the condition - - are not persuasive. *See*Resp’t Br. at 21-22 (citing *Am. Coal*, 29 FMSHRC at 948; *Maple Creek*, 27 FMSHRC at559-61; *Big Laurel Mining Corp.*, 37 FMSHRC 2001, 2032 (Sept. 2015) (ALJ)).The plain wording of section 75.380(d)(1) makes clear that it contemplates considerationof whether **disabled miners** would be able to pass safely, and is notrestricted to able-bodied miners who, in this case, were already aware of thecondition and not acting in response to an emergency.[6]*See**MapleCreek*, 27 FMSHRC at 556-57, 560 n.5 (addressing the fact that use of anescapeway during an emergency is significantly more dangerous than using thesame entry as a travelway in a non-emergency situation). 

 

Theevidence clearly establishes that there were three holes spanning the width ofthe walkway, filled with either water standing atop muck or a mixture of waterand thick muck, i.e., soup, and that there were ruts and rocks throughout thearea. While witnesses reported having encountered different depths of material inthe holes, given the size and irregularities of the depressions, in conjunctionwith evidence lacking in exactitude as to where Allen and each miner wasstanding within them, I credit all testimony on this point, and find that waterand muck in these holes ranged from 8 to 18 inches deep. Likewise, I creditAllen that one of the holes contained deep, boot-sucking muck, simply becausethe other witnesses may not have walked through the exact area in which hebarely avoided falling. Regarding the inconsistent testimony as to the numberof holes in the entry, I credit Allen’s testimony that there were three basedon his detailed description, supported by his contemporaneous notes, and thefact that neither Clements nor Whitt traveled the full length of the cited area.*See* Ex. P–8 at 2-5. Therefore, based on the evidence in itsentirety, I find that the conditions in the West Main No. 4 alternate escapewaywould impede miners’ safe passage under emergency conditions, particularlyminers carrying a stretcher or assisting an injured miner, and that Peabodyviolated section 75.380(d)(1). 

 

**B.   ****Gravity**

** **

The Secretary contends that thisviolation was S&S because in an emergency, miners were reasonably likely tobe delayed, and delay could cause serious injury. Sec’y Br. at 34-36. On thecontrary, Peabody contends that *Cumberland Coal* requires considerationof the facts and circumstances surrounding an alleged violation of an emergencystandard when determining whether it is S&S, and that delay was unlikely. Resp’tBr. at 23-24 (citing *ICG Illinois*, 38 FMSHRC at 2483 (Althen,dissenting); *Mach Mining*, 36 FMSHRC at 1530 (Cohen, concurring)). Peabodyalso argues that the muck, water, and holes would have been eradicated in thecontext of continued normal mining and, accordingly, would not have been reasonablylikely to cause injury had the inspector not intervened. Resp’t Br. at 25-26(citing *U.S. Steel*, 7 FMSHRC at 1130) (explaining that evaluation of thereasonable likelihood of injury should be made in the context of “continuednormal mining operations”). 

** **

Thefact of violation has been established, satisfying the first *Mathies*criterion, and the discrete safety hazard that section 75.380(d)(1) is intendedto prevent is impeding or delaying miners, including those disabled, in exitingthe mine should usage of the escapeway become necessary in an emergency.

 

The Commission has explained that it iscrucial to identify the hazard in the context of the occurrence of theenvisioned emergency and that, “[b]ecause theparticular facts in a case may not establish that a violation of an [emergency]standard contributes to a hazard which is reasonably likely to result in aninjury, not every violation of an [emergency] standard will be S&S.” *CumberlandCoal Res.*,**33 FMSHRC 2357, 2369 (Oct. 2011),*aff’d* 717 F.3d1020 (D.C. Cir. 2013); *see also**Peabody Midwest*, 42 FMSHRC___,slip. op. at 4-6; *ICG Illinois*, 38 FMSHRC at 2483 (Althen, dissenting)(“[A]ssuming the existence of an emergency is not the same thing as assumingthat the violation is S&S . . . . [T]heparticular facts surrounding the violation must be considered.”). 

 

The evidence establishes that pump supervisorsWhitt and Kennedypumped water from the hole at crosscut 82 on February 19 owl shift. However, atthe time of inspection, no action had been taken to remove the water or soupymixtures from the other two holes, much less fill them. Accordingly, based onthe inadequate remedial efforts leading up to inspection, I find that the conditionwould haveexisted in the context of continued normal mining.Peabody’s positionthat safe travel in the alternate escapeway would not have been impeded, asevidenced by the three miners’ uneventful travel through the cited area, isunavailing. The evidence clearly establishes that the water and muck-filledholes in the rutted, and rock strewn terrain, posed trip and fall hazards thatwould be reasonably likely to impede escaping miners, particularly inthe case of disabled miners being assisted in exiting the mine safely,satisfying,the second *Mathies*criterion. 

 

Regardingthe third and fourth *Mathies* criteria, any trip and fall hazards impeding and delaying safepassage through the alternate escapeway during an emergency would be reasonablylikely to prolong miners’ exposure to adverse atmospheric conditions, resultingin, but not limited to, respiratory and musculoskeletal injuries of areasonably serious nature, satisfying both criteria. Accordingly, I find that thisviolation was S&S.

 

**C.   ****Unwarrantable Failureand Negligence**

** **

Insupport of the unwarrantable failure charge, the Secretary asserts that the waterand muck-filled holes in the alternate escapeway were extensive, obvious, and highlydangerous, that they had existed since, at least, February 18, that Peabody wasaware of the condition, that its abatement efforts were inadequate, and that itwas on notice that greater efforts were necessary for compliance. Sec’y Br. at36-41. 

 

Peabodycounters that it knew about the condition, that reasonable efforts were made toaddress it in the short time that it had existed, and that further cleaningwould have continued. Resp’t Br. at 26-27. Peabody also contends that the citedarea was traveled numerous times by its miners, without incident, indicatingthat the condition was not as dangerous or extensive as Allen believed, and thatit was not on notice to expend greater effort to be compliant. Resp’t Br. at 27-28.

 

Theevidence establishes that there were three sizable holes, walkway-wide, filledwith water atop muck or soupy muck, about 20 feet long and 8 to 18 inches deep,in a rutted, rocky area of the escapeway, and that the condition was firstrecorded in the February 18 evening pre-shift report. This condition was reasonably likely to impede safe passage of minersresponding to an emergency, and more so miners disabled and in need ofassistance, notwithstanding the fact that two pump supervisors walked, withoutincident, through a portion of the area during owl shift. Accordingly, Ifind that the condition was extensive and obvious, and that it had existed for atleast three shifts, a significant timespan given the highly dangerous nature ofunexpected trip and fall hazards in the escapeway, and the mandate that it **always**be maintained to assure safe passage of **everyone**. These are aggravatingfactors. 

 

Itis clear that Peabody was aware of the hazardous condition since February 18 eveningshift, and also of the area’s susceptibility to accumulations of water and muck.Moreover, the owl shift pump supervisors, having observed the targeted area onFebruary 19, took no action to ensure that mobile scooping equipment was deliveredto the area on their watch rather than relying on the next shift. While Peabodycorrectly points out that Allen mistakenly believed that no cleaning, whatsoever,had occurred before he issued the withdrawal order, it is clear that pumping atcrosscut 82 was only the initial action necessary to abate the condition. Furthermore,termination of the order not only involved removal of the water and muck, but fillingthe holes, a remedial step that it is reasonable to conclude would not haveoccurred, but for issuance of the order. *Accordingly, I find that Peabody had knowledge of thecondition, and that*its abatement efforts were insufficient, both aggravatingfactors. 

 

Shoal Creek was cited 17 times for violations of section 75.380(d)(1) inthe two years preceding this order. Peabody took control of the mine onDecember 4, 2018 and, at the time of this order, two section 75.380(d)(1)citations had been issued directly to Peabody at the mine. Ex. P–16 at 6-7,21. Notably, when ownership changed hands, pump supervisorsWhitt and Kennedy, and safety supervisor Clements were retained byPeabody and, based on this violation history and the importance of maintainingpassable escapeways in underground mines, Peabody should have appreciated theurgency in abating the condition. Accordingly, I find that Peabody was onnotice that greater efforts for compliance with this emergency standard werenecessary, also an aggravating factor.

 

Afterconsidering all the aggravating factors, I conclude that Peabody was highlynegligent, and that this violation was the result of Peabody’s unwarrantablefailure to comply with the standard. 

 

**3.       ****OrderNo. 9136341**

** **

InspectorDarryl Allen issued 104(d)(1) Order No. 9136341 on March 11, 2019, alleging an“S&S” violation of section 75.400 that was “reasonably likely” to cause aninjury that could reasonably be expected to result in “lost workdays or restrictedduty,” and was caused by Peabody’s “high” negligence and unwarrantable failureto comply with the standard. *See supra* at 4 n.2. The “Condition orPractice” is described as follows:

 

Combustiblematerial in the form of wet and dry coal fines and coal muck, have been allowedto accumulate in the North Main 1 belt entry, and are observed in contact withthe belt surface and belt rollers. The accumulation exists from cross cut 20,inby to the belt tail pulley at cross cut 22.5, a distance of approximately 400ft. in length, x 20 ft. wide, and ranging from 6 to 24 inches deep. Coal finesare under the belt tailpiece, in contact with the bottom belt, and belt tailpulley. The belt has been shut off by the mine foreman, due to 8 seized beltrollers being rubbed by the moving belt, currently cited between cross cut 10and the belt tail. Two bottom belt rollers are observed buried in packed coal,with only the top of the rollers visible on the off walkway side of the belt. Twoof the seized belt rollers are observed near the tail piece at structure nos.432 and 441. The bottom belt has been running on top of packed damp to dry coalfines from the tail pulley to cross cut 22, a distance of approximately 100 ft.in length. Coal accumulation at the North Main 1 belt tail has been reported bybelt examiners and entered in the examination records for 8 consecutive shifts,from 3/8/19 during the 12:00 to 2:00 p.m. exam to 3/10/19 during the 8:00 to10:00 p.m. exam. During the most recent pre-shift examination conducted thismorning, 3/11/19 between 4:00 and 7:00 a.m., the examiner reported 3 frozenrollers including one roller that was broken. During today’s inspection atapproximately 11:00 a.m., these damaged rollers, and others, are still observedbeing rubbed by the moving belt. No miners are observed in the area at the timeof inspection, and no corrective actions of reported conditions have beentaken. The mine foreman has shut the belt off and called for a belt crew tobegin corrective actions. Standard 75.400 was cited 131 times in two years atmine 0102901 (131 to the operator, 0 to a contractor). This violation is anunwarrantable failure to comply with a mandatory standard.

 

Ex.P–10. The order was terminated on March 12, after Peabody removed the coalfines and coal muck from under the tailpiece and walkway. Ex. P–10. 

 

**A.   ****Fact ofViolation**

 

TheSecretary maintains that Peabody mine foreman Mike Earl, by and large, confirmedAllen’s account of the condition. Sec’y Br. at 23. Peabody argues that becausethe material noted in the records had been cleaned recently, it was spillage ratherthan prohibited accumulations and that, given its wetness, it was notcombustible. Resp’t Br. at 34-35 (citing *Utah Power*, 951 F.2d at 295n.11 (noting that operators must clean “loose coal” with “reasonable promptness”); *Consolidation Coal Co*.,33 FMSHRC 385, 395-96 (Feb. 2011) (ALJ) (stating that cited material must becombustible in order to establish a violation of section 75.400.)).~~~~

 

**1.    ****Summary ofTestimony**

** **

**a.    ****Darryl Allen**

 

InspectorDarryl Allen testified for the Secretary that he continued the quarterly E01inspection of Shoal Creek on March 11 around 7:00 a.m., and that he believedthat accumulations in the North Main No. 1 tail area, identified in 11consecutive pre-shift and    on-shift reports, had not been fully addressed sinceMarch 7, noting that the condition had been recorded inconsistently as “hazardous”and “non-hazardous.” Tr. 511, 518-539, 600-05;    Exs. P­–11 at 1, P­–12 at36-56. He testified that, upon arrival at the North Main No. 1 belt entry, he identifieda seized roller near crosscut 10, that foreman Mike Earl stopped the belt, thatcontinuing inby, he identified seven more seized rollers and issued a citationfor eight seized rollers between crosscuts 10 and 22 1⁄2, and that he also issueda citation for two nonfunctional fire hose outlets. Tr. 541-48. He stated that aroundcrosscut 20 until around crosscut 22 1⁄2, he found rib-to-rib accumulations ofcoal fines and coal muck, 6 to 24 inches deep, that the belt was in contactwith coal accumulations in two places in the tail area for approximately 20feet and 100 feet, respectively, and that two rollers were completely impactedby coal in the tail area.  Tr. 541, 548-55, 557, 561, 572, 612; Exs. P–11, P–13(c)-(k).Allen described his photographs of the conditions, acknowledging that the exactlocations depicted were unclear. Tr. 559-76, 617; Exs. P–13 (a)-(k), P–14 (a), (b).He asserted that he had touched the accumulations, and that they were dryingout at points of contact with the belt and rollers. Tr. 555-56, 565-67. By hisaccount, no cleaning was occurring when the inspection party reached theaffected areas, and no mobile cleaning equipment was present. Tr. 557. He estimatedthat cleaning would have required a crew of miners using shovels and mobile equipment,but acknowledged that MSHA has no specific requirements as to cleaning methods.Tr. 557-58, 590, 615. Based on the extensiveness of the accumulations, he opinedthat they could have existed for multiple weeks, and that the mine was aware ofthem from the records. Tr. 588-90. He acknowledged that when he returned to thecited area on March 12, four to five feet of material had been cleared from underneaththe belt, and that some of it could have been noncombustible, such as fireclay.    Tr. 591-94. Allen also testified about previous accumulations violationsat Shoal Creek, stating that he had “tried to work with the mine” to prevent them,but that “they just didn’t seem to improve any.” Tr. 576-84, 595-96, 616; Ex.P–15(a)-(f). 

 

**b.    ****Chris Robertson**

 

Owlshift foreman Chris Robertson testified for Peabody that he had worked at themine for about 10 years, that his schedule included alternate weekends, thatweekends are used typically for maintenance, although the mine runs coal onSaturday sometimes, that the belts do not operate when the mine is notproducing, and that the belt is not examined in its entirety during shifts whenit is not running. Tr. 622-24, 626-28. He stated that he reviews the records atthe beginning of his shift to identify hazards and assign workers, and explainedthat Peabody’s examiners designate hazardous conditions either (“HC”) for highpriority, or (“HS”) for lower priority non-hazardous health and safetyconditions, and that the records reflect when a shift refers unaddressed issuesto the next shift. Tr. 624, 626-28; Ex. P–12. He explained that the tail areawas prone to accumulations, and that a full-time miner was stationed there to monitoraccumulations. Tr. 658-62.****Robertson reviewed the records from March 7 eveningshift through March 11 owl shift, and testified that the belt was not runningfrom Saturday, March 9 owl shift until Monday, March 11 owl shift, that theaccumulations noted were not hazardous because there was no friction when the beltwas not running, and that accumulations cannot be removed from the mine whenthe belt is shut down. Tr. 630-41; Ex. P–12 at 37-54. He stated that the belt wasrestarted between 3:00 and 5:00 a.m. on March 11, that the accumulations were cleanedat his direction during that shift, and that his account was based on hisreview of the records rather than his memory. Tr. 625, 629-39, 643-45; Ex. P–12at 37-55. He noted that the accumulations identified in the March 11 owl pre-shiftreport were at crosscuts 23 and 24, not 22 where the tailpiece is located, thata sump, catching water and coal fines from the tail area near crosscuts 22 and23, can be clogged by muck and coal, and that accumulations must be washed fromunder the belt when it is running, then scooped onto it to be taken out of themine. Tr. 639-41, 647-53; Ex. P–12 at 56. He noted that when the belt is shutdown, it can be “bumped,” i.e., intermittently started and stopped quickly, forloading, but that it needs to run in order to take accumulations out of themine. Tr. 645-50. Finally, he acknowledged that accumulations in contact withturning rollers can dry out, but opined that because the tail area is always wet,that would not happen. Tr. 642-43, 651.

 

 

 

 

**c.     ****Mike Earl**

 

Dayshift mine foreman Mike Earl testified for Peabody that he worked at ShoalCreek from 2003 to 2006 and, currently, since 2009. Tr. 656. He explained thatall coal transported out of the mine travels on the North Main No. 1 belt, thatthe sump helps control accumulations around the tail area, and that a full-timeemployee is stationed there because the belt entry is susceptible to water andaccumulations, which can occur quickly. Tr. 657-62. He testified that on March8, he reviewed the owl pre-shift report for that day, noted the hazardousaccumulations at crosscut 22 in the North Main No. 1 belt entry, and that he countersignedthe report which indicated that men had been assigned. Tr. 675-76; Ex. P–12 at38. Earl stated that at the beginning of his shift on March 11, he reviewed therecord and delegated work assignments, then joined the inspection party. Tr. 655,662, 669, 675-77. According to him, the inspection party entered the North MainNo. 1 belt entry at crosscut 6 and, walking inby, found the seized rolleraround crosscut 10, which had been noted in the examination record, and heturned off the belt and called Johnathan Aaron to fix it. Tr. 663-69. He statedthat as the inspection party approached the tailpiece, beltline attendant AaronThrasher was washing material from under the belt between crosscuts 22 and 23,that he told Thrasher to turn off the water, and that he did not recall any mobileequipment in the area. Tr. 664-66, 670. His testimony was inconsistent as towhere the cited accumulations began and, ultimately, he stated that he couldnot remember, but that they could have started anywhere between crosscuts 20and 22 1⁄2, that they stretched 80 to 100 feet, and that there were coal fines onrollers and accumulations in contact with the belt.   Tr. 664, 667-68, 671-73. Heacknowledged that cleaning would require spraying by more than one miner, andthat the belt would have continued running if he had not shut it down when theinspection party reached crosscut 10. Tr. 674, 678. He also testified that theorder was terminated by cleaning that continued from day shift through eveningand owl shifts. Tr. 678-79. 

 

**d.    ****Johnathan Aaron**

 

Dayshift dewater supervisor Johnathan Aaron testified for Peabody that he supervisedthe tail area of the North Main No. 1 belt and delivered equipment, explainingthat he would review examination records and delegate work, and that on March11 day shift, he assigned Aaron Thrasher to change rollers at crosscuts 20 and 21and clean accumulations in the tail area, noting that he would need to sprayand use a skid steer. Tr. 682-87, 700; Ex. P–12 at 56. He testified that theskid steer was down, that while he and Thrasher were repairing it, Mike Earlcalled him about a seized roller at crosscut 10, that he left Thrasher working onthe skid steer and that, subsequently, Thrasher went to clean the tail area. Tr.688-91, 696-700, 713-14; Ex. R–2. According to Aaron, he did not become awareof the extensiveness of the accumulations at the tailpiece until Allen foundthem. Tr. 691, 699, 713-14. He explained that the belt department has 10 skidsteers, 7 Lo Tracs,[7]and 2 loaders, that not all mobile equipment is available at any given time andthat, immediately after the order was issued, 10 miners terminated the order usingloaders, skid steers, and Lo Tracs. Tr. 701-04, 711-15; Ex. R–2. 

 

 

**2.    ****Analysis**

 

Restated,a violation of section 75.400 occurs “where the quantity of combustiblematerials is such that, in the judgment of the authorized representative of theSecretary, it could cause a fire or explosion if an ignition source werepresent.” *Old Ben II**,** *2FMSHRC at 2808.

 

Although Shoal Creek is a wet mine andthe tail area in the North Main No. 1 belt entry is particularly wet, the unrebuttedevidence that the accumulations were drying out in several places beliesPeabody’s contention that the accumulations were non-combustible. Furthermore,its contention, that the accumulations were spillage because of recentoccurrence, is also unavailing. *See**Black Beauty**,* 703 F.3d at 558-59, 559 n.6 (explainingthat operators are not afforded a reasonable time to clean accumulations beforea violation of section 75.400 can be found, and that accumulations ofcombustible materials substantial enough to propagate a fire are prohibited, evenif recent). Accordingly, based on the evidence in its entirety, I find thatthere were accumulations of coal fines and coal muck, from around crosscut 20to 22 1⁄2, entry-wide, that there were several points of contact between theaccumulations and the belt, that two rollers were completely impacted by coal, thateight rollers, some in the tail area, were seized, and that some accumulationshad dried out due to frictional contact and, therefore, were combustible. Accordingly,I conclude that Peabody violated section 75.400.

 

**B.   ****Gravity**

** **

TheSecretary argues that, given the realistic potential for fire to occur, the violationwas S&S. Sec’y Br. at 23-25. Peabody maintains that an ignition wasunlikely to occur because of the wet conditions in the mine and absence ofmethane, and further, that its active cleanup was interrupted by Allen. Resp’tBr. at 36-37.~~~~

 

Thefact of violation has been established, satisfying the first *Mathies*criterion, and the discrete safety hazard against which section 75.400 isdirected is fire or explosion contributed to by accumulations of combustiblematerials. 

 

Theevidence establishes thatbeltlineattendant AaronThrasher was assigned to clean the tail area at the beginning of March 11 day shift,but was delayed because the skid steer was down, and that he was repairing itwith dewatersupervisor Johnathan Aaron when the inspection started. Ultimately, Thrasher wentto the tail area to clean without a functioning skid steer. While Allen did notsee any cleaning underway in the tail area, I credit that Thrasher was sprayingunder the belt when the inspection party reached the area, and that he stoppedcleaning at Earl’s direction. Notably, it took 10 miners, cleaning withhoses and mobile equipment through the day, evening, and owl shifts, to remove theaccumulations. Accordingly, based on Peabody’s scanty allocation of manpowerand mobile equipment for cleanup prior to issuance of the order, I find thatthe accumulations would have existed in the context of continued normal mining.DespiteShoal Creek’s gassy nature, there is no evidence that methane was liberated inthe cited area. However, based on theevidence of extensive accumulations in contact with the belt and rollers, multiple seizedand impacted rollers, and accumulations drying out due to frictional contact, I find that thecoal accumulations contributed to the reasonable likelihood of a fire in themine, and that the second *Mathies*criterion has been satisfied. 

 

Theevidence also establishes that in the event of a mine fire, at the very least,the full-time miner stationed at the tail area would be exposed to smoke-filledair. Moreover, fire burning in the underground coal mine would present aserious risk of smoke and gas inhalation, resulting in injuries of a reasonablyserious nature, satisfying the third and fourth *Mathies*criteria. *See**Buck Creek**,*52 F.3d at135-36; *see also Black Diamond*, 7 FMSHRC at 1120. Accordingly, Ifind that thisviolation was S&S.

** **

**C.   ****Unwarrantable Failureand Negligence**

** **

Insupport of the unwarrantable failure designation, the Secretary asserts thatthe accumulations were extensive, obvious, and highly dangerous, that they hadexisted for at least 11 shifts preceding inspection, that Peabody had knowledgeof the condition, that its efforts to abate it were inadequate, and that it wason notice that greater efforts were necessary for compliance. Sec’y Br. at 25-29.

 

Peabody contends that the unwarrantablefailure designation is inappropriate because the accumulations in the NorthMain No. 1 belt entry, noted in the March 8 owl pre-shift report, were cleanedduring the next evening shift and recorded as non-hazardous in the pre-shift report,then partially cleaned during March 9 owl shift, and fully cleaned during March11 owl shift. Resp’t Br. at 38-41. Peabody also maintains that the citedaccumulations were new, having existed for less than a shift, that they were notextensive, and that it was not on notice that greater efforts for compliancewere required. Resp’t Br. at 40-42.

 

Theevidence establishes that coal accumulations, rib-to-rib, spanning an area fromaround crosscut 20 to crosscut 22 1⁄2, were in contact with the belt and rollers,that two rollers were completely impacted by them, that multiple rollers,some in the tail area, were seized, and that some of the accumulations had driedout. This extensive and obvious condition created a serious risk of ignition,and was highly dangerous. These are aggravating factors. 

 

Examinationrecords indicate that the accumulations in the North Main No. 1 belt entry tailarea began on Thursday, March 7 evening shift and continued throughout theweekend, and that some cleaning in the tail area had occurred during March 8evening, and March 9 and 11 owl shifts. Foreman Chris Robertson’s testimonythat the tail area was completely cleaned on March 11 owl shift is undercut bythe extensiveness of the coal accumulations in contact with the belt androllers, the rollers completely impacted with coal, and the seized rollers thatthe inspection party encountered later that morning, a condition reasonablylikely to have developed over several shifts. Moreover, if accumulations arecommonplace in the tail area, as Peabody contends, one full-time minerstationed there would seem reasonable to monitor them, but would constituteinsufficient manpower to keep them in check. In light of the credibleobservations of the accumulations and the evidence as a whole, I find that thearea was not completely cleaned during March 11 owl shift, and that what didoccur did not even put a dent in the condition. Nevertheless, creditingPeabody’s assertion - - that the condition was not hazardous for the betterpart of the weekend when the belt was not running - - does not negate that it becamehazardous when it was not fully abated before production resumed on March 11owl shift. Accordingly, I find that the accumulations existed, to varyingdegrees, since March 7 evening shift until the inspection on March 11 dayshift, and that Peabody was aware of it, both aggravating factors. 

 

Theevidence indicates that some cleaning in the North Main No. 1 belt entry hadoccurred during multiple shifts on March 8, March 9, and March 11, and that Thrasherhad been spraying under the tail without any mobile equipment when the area gotinspected. Notably, it ultimately took 10 miners, cleaning with hoses and mobileequipment over a period of three shifts, to terminate the order, a sizeablework crew compared to the lone miner hosing the area. Accordingly, I find that Peabody’sefforts fell far short of what was required to abate the hazardous condition,and this is an aggravating factor. 

 

TheCommission has emphasized that “past discussions with MSHA about anaccumulation problem serve to put an operator on heightened scrutiny that itmust increase its efforts to comply with the standard.” *San Juan Coal*,29 FMSHRC at 131 (quoting *Consolidation Coal*, 23 FMSHRC at 595); *seealso**Amax Coal*, 19 FMSHRC at 851. Shoal CreekMine had 131 section 75.400violations in the past two years and, although Peabody took control ofthe mine on December 4, 2018, at the time of this order, 20 section 75.400 violationshad been issued directly to Peabody. Exs. P–10, P–16 at 6-7, 21.Additionally,Allen had tried to assist management in preventing coal accumulations during priorinspections, and the record establishes that shift foremen Chris Robertson andMike Earl had also worked at Shoal Creek under the prior ownership. Accordingly,I find that Peabody was on notice that greater efforts for compliancewith this standard were necessary, another aggravating factor. 

 

Afterconsidering these aggravating factors, I conclude that Peabody exhibited a highdegree of negligence, and that this violation was the result of itsunwarrantable failure to comply with the standard.

 

**IV.Penalties**

** **

Whilethe Secretary has proposed a total civil penalty of $76,061.00, the judge mustindependently determine the appropriate assessment by proper consideration ofthe six penalty criteria set forth in section 110(i) of the Mine Act: 

 

(1) theoperator's history of previous violations; (2) the appropriateness of the penaltyto the size of the business of the operator; (3) whether the operator wasnegligent; (4) the effect on the operator's ability to continue in business;(5) the gravity of the violation; and (6) whether good faith was demonstratedin attempting to achieve prompt abatement of the violation. 

 

30U.S.C. § 820(i); *See Sellersburg Co.*, 5 FMSHRC 287, 291-92 (Mar. 1983), *aff’d*736 F.2d 1147 (7th Cir. 1984). Additionally, the Commission has recognized thedifference between regularly and specially assessed proposed penalties, requiringthat judges explain divergences from regularly assessed penalties but not thosespecially assessed, and avoid using special assessments as anchoring points in settingpenalties. *Solar Sources Mining, LLC*, 42 FMSHRC 181, 190-202, 198n.25 (Mar. 2020); *see also American Coal Co*., 933 F.3d 723, 727 (D.C.Cir. 2019) (explaining that the Secretary is under no obligation to “prove” hisdecision to propose a special assessment rather than a regular assessment).

 

Twoof the three charges in this proceeding involve serious accumulationsviolations. While the Secretary has based his proposed penalty for theviolation in the H-2 belt entry on application of his Part 100 penalty points,the proposed penalty for the arguably similar violation in the North Main No. 1belt entry has been specially assessed. One plausible explanation for thisdifference in approach is that the 104(d)(1) citation in the H-2 belt takeup areapreceded the 104(d)(1) order in the North Main No. 1 tail area by a mere threemonths, clearly placing Peabody under heightened scrutiny to prevent recurrentviolations. 

 

Applyingthe *Sellersburg* penalty criteria, and based on a review of MSHA’s onlinerecords, I find that Peabody is a large operator. The record also indicatesthat Peabody demonstrated good faith in achieving rapid compliance after noticeof the violations, and consideration of the Assessed Violation History Reports followsfor the one citation and two orders. The parties have stipulated thatimposition of the proposed penalties will not adversely affect Peabody’sability to remain in business. Jt. Stip. 6. The remaining criteria involveconsideration of the gravity of the violations, and Peabody’s negligence incommitting them, factors that have already been discussed fully. Therefore,considering my findings as to the six penalty criteria, the penalties are setforth below.

 

**1.    ****Citation No.9136082 (SE 2019-0075)**

** **

Ithas been established that this S&S violation was reasonably likely to causean injury that could reasonably be expected to result in lost workdays orrestricted duty, and that it was caused byPeabody’s high negligence and unwarrantable failureto comply with the standard. In the fifteen-month period precedingissuance of this citation, 87 violations of section 75.400 issued to ShoalCreek became final orders of the Commission. Ex. P–16 at 10, 19, 21.Becauseof the overlap in Drummond and Peabody management when Shoal Creek ownershipchanged hands, as well as evidence that accumulations violations were problematicat the mine and the cited area was prone to accumulations, I find the violationhistory aggravating. The Secretary has proposed a regularly assessed penalty of$3,161.00 for this serious violation. Applying the civil penalty criteria, Ifind that a penalty of $7,500.00 is appropriate.

 

**2.    ****Order No.9136320 (SE 2019-0146)**

** **

Ithas been established that this S&S violation was reasonably likely to causean injury that could reasonably be expected to result in a fatality, and that it was caused by Peabody’s high negligence and unwarrantable failure to comply with the standard. In thefifteen-month period preceding issuance of this order, 12 violations of section75.380(d)(1) issued to Shoal Creek became final orders of the Commission. Ex.P–16 at 6-7, 21. Because of the overlap in Drummond and Peabody management whenShoal Creek ownership changed hands, I find the violation history aggravating. TheSecretary has specially assessed a penalty of $57,700.00 for this seriousviolation. Applying the civil penalty criteria, I find that a penalty of $38,500.00is appropriate.

** **

**3.    ****Order No.9136341 (SE 2019-0146)**

** **

Ithas been established that this S&S violation was reasonably likely to causean injury that could reasonably be expected to result in lost workdays orrestricted duty, and that it was caused byPeabody’s high negligence and unwarrantable failureto comply with the standard. In the fifteen-month period precedingissuance of this order, 88 violations of section 75.400 became finalorders of the Commission. Ex. P–16 at 10, 19, 21. Because of the overlap in Drummondand Peabody management when Shoal Creek ownership changed hands, along with therecent, serious accumulations violation in the H-2 belt entry and MSHA’semphasis on accumulations prevention at the mine, I find the violation historyaggravating. The Secretary has specially assessed a penalty of $15,200.00 forthis serious violation. Applying the civil penalty criteria, I find that apenalty of $15,000.00 is appropriate.

 

**ORDER**

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**WHEREFORE**,it is **ORDERED** that Citation No. 9136082, and Order Nos. 9136320 and9136341 are **AFFIRMED**, as issued, and that Peabody Southeast Mining, LLC, **PAY** a civil penalty of $61,000.00within 30 days of the date of this Decision.[8]**ACCORDINGLY**, these cases are **DISMISSED**. 

 

 

** **

** **

/s/Jacqueline R. Bulluck

                                                                        JacquelineR. Bulluck

                                                                        AdministrativeLaw Judge

 

 

Distribution:

 

EmilyRoberts, Esq., & Christopher M. Smith, Esq., U.S. Department of Labor,Office of the Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee37219

Roberts.Emily.O@dol.gov; Smith.Christopher.M@dol.gov

 

ArthurWolfson, Esq., Fisher & Philips, LLP, Six PPG Place, Suite 830, Pittsburgh,Pennsylvania 15222

awolfson@fisherphillips.com

----

[1] DrummondCompany, Incorporated, (“Drummond”) owned and operated Shoal Creek Mine untilDecember 4, 2018, when Peabody Energy took over ownership, and PeabodySoutheast Mining, LLC, took over operations. Ex. P–16 at 1, 19.

[2] 30 C.F.R. §75.400 provides that “[c]oal dust, including float coal dust deposited onrock-dusted surfaces, loose coal, and other combustible materials,shall be cleaned up and not be permitted to accumulate in active workings, oron diesel-powered and electric equipment therein.”

[3] Chatham citedPeabody for an inadequate pre-shift examination of the H-2 belt takeup area on December12, and Peabody subsequently withdrew its contest of that citation. Tr. 80-82;Ex. P–2.  

[4] 30 C.F.R. §75.380(d)(1) provides that “[e]ach escapeway shall be . . . [m]aintained in asafe condition to always assure passage of anyone, including disabled persons.”

 

[5]The “functional passability”test in *Utah Power* predated section 75.380(d)(1) but, nonetheless,includes consideration of disabled miners’ ability to safely utilizeescapeways. 

[6] Peabody’s citeto *American Coal*, involving a violation of section 75.380**(b)**(1)and providing guidance on escapeways generally, does not address safe passabilityof disabled miners and, consequently, is not instructive on this point. *See*Resp’tBr. at 21 (citing 29 FMSHRC at 948).

[7] Lo Tracs are mobileequipment used by Peabody to remove material from underneath the belts. Tr.702. 

[8] Payment shouldbe made electronically at Pay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,send payment (check or money order) to: U.S. Department of Treasury, MineSafety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390.Please include Docket and A.C. Numbers.