MSHA issued a Section 104(d) order for an alleged violation of 30 C.F.R. Section 75.363(a), which requires any hazardous condition found by the mine foreman (or other certified person) to be posted with a conspicuous danger sign where anyone entering the areas would pass. The standard also requires the hazardous condition be corrected immediately or the area to remain posted until the hazardous condition is corrected. Here, the MSHA inspector found accumulations in an area of the mine and the operator failed to immediately address the accumulations. Specifically, the MSHA inspector found, despite the obvious hazard posed by the accumulations, the operator’s examiners continued to identify the accumulations as a “condition” and did not address it for multiple shifts.

The operator first argued the accumulations were not combustible coal dust but rather a combination of rock dust and road dust with low amounts of permitted float dust. As such, the operator argued the alleged violation of 30 C.F.R. Section 75.363(a) should be vacated because the condition was non-hazardous and did not need to be immediately corrected.

ALJ Simonton noted to establish a violation of 30 C.F.R. Section 75.363(a), the Secretary must first establish hazardous conditions existed and the hazardous condition had not been corrected or posted. Here, ALJ Simonton credited the testimony of the operator’s witnesses who stated the accumulations were mixtures of road and rock dust that neutralized any presence of coal dust. Importantly, ALJ Simonton found none of the photographs offered by the Secretary indicated significant evidence of large amounts of coal dust – a fact supported by the operator’s samples, which were well above the minimal incombustibility level. Moreover, ALJ Simonton credited the operator’s examination books wherein it was consistently noted corrections to ongoing accumulation issues. As such, ALJ Simonton vacated the unwarrantable failure order because the Secretary failed to establish a hazardous condition existed at the time of the inspection.