FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

January 18, 2012

DECISION

Appearances:              Edward V. Hartman, Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois, for Petitioner. Daniel W. Wolff, Crowell & Moring, LLP, Washington, DC, for Respondent.

Before:                        Judge Manning

            These cases are before me on two notices of contest filed by Mach Mining, LLC, (“Mach”) and a petition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Mach pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The cases involve two orders issued at the mine in March of 2009. The parties introduced testimony and documentary evidence at a hearing held in St. Louis, Missouri, and filed post-hearing briefs. Mach operates the Mach #1 Mine (the “mine”), a large underground coal mine in Williamson County, Illinois. The mine extracts coal in panels using a longwall system.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

            Inspector Bobby Jones has been employed by MSHA for almost four years. He currently works as a coal mine inspector out of the agency’s Benton, Illinois field office. Prior to joining MSHA, Jones worked for 28 years in the mining industry and held various positions, including laborer, equipment operator, supervisor, section foreman, and shift foreman.

            A.        Order No. 8414238; LAKE 2009-395-R and LAKE 2009-495

            On March 13, 2009, Inspector Bobby Jones issued Order No. 8414238 under section 104(d)(1) of the Mine Act for an alleged violation of 30 C.F.R. § 75.370(d). Order No. 8414238 alleges the following:

A proposed ventilation plan dated February 25, 2009 was implemented before it was approved by the district manager. The mine operator has mined over 1000 feet inby the location of the proposed set up rooms in headgate No. 3. The drawing titled “Ventilation Plan Map for future Longwall Operations” dated March 19th, 2006, which is part of [the] currently approved ventilation plan for this mine approved, on March 18, 2008, shows a six panel design with all six panels approximately 18,000 feet deep without any stair steps.

The proposed ventilation plan addendum, panel 3 extension, was received by the MSHA District Manager on February 26, 2009. An acknowledgment letter dated February 26, 2009 was sent to the mine operator stating that approval by the district manager was required. The mine operator had been put on specific notice in several meetings and by other letters of this requirement.

Jones determined that an injury was unlikely but, if an injury did occur, it could reasonably be expected to result in lost workdays or restricted duty. He determined that the violation was not of a significant and substantial (“S&S”) nature, that eleven persons would be affected, and that the violation was the result of high negligence on the part of the operator. The order was designated as an unwarrantable failure to comply with the mandatory standard. The Secretary has proposed a penalty of $2,161.00 for this violation.

            On May 15, 2009, I issued an order in LAKE 2009-395-R denying Mach’s motion for summary decision. In that order, I granted the Secretary’s motion for summary decision and found that the Secretary had established a violation of the cited standard; however, I reserved judgment on the issue of negligence and the appropriateness of the Secretary’s designation of this violation as an unwarrantable failure to comply with the mandatory standard. 31 FMSHRC 709 (May 2009). Consequently, I only address the negligence and unwarrantable failure issues with respect to Order No. 8414238 in this decision.

                        1.         Stipulations

            The parties entered into the following key stipulations with respect to this order:

5. Mach began underground mining at the Mach No. 1 Mine in November 2006.

6. Order No. 8414238 was issued to Mach on March 13, 2009, pursuant to section 104(d) of the Federal Mine Safety and Health Act of 1977.

7. As of the issuance date of Order No. 8414238, the method by which Mach was required to mine and ventilate its gate entries at the Mach No. 1 Mine under the mine’s MSHA-approved ventilation plan had not changed from the method described and/or illustrated in the mine’s ventilation plan approved by MSHA on March 18, 2008.

8. MSHA Inspector Bobby Jones was aware of, or had access to, the miners, mine records, and other information concerning the status of Mach’s development in Headgate No. 3 from February 21 through March 13, 2009.

9. Mach did not take any action preventing Inspector Jones from observing or becoming aware of the status of Mach’s development of Headgate No. 3 from February 21 through March 13, 2009.

10. Mine Inspector Jones was aware that Mach began mining inby the location of the proposed setup room in Headgate No. 3 at least 7-10 days prior to the issuance of Order No. 8414238.

                        2.         Summary of Relevant Testimony

            Inspector Jones testified that before he conducts an inspection he looks at the mine’s maps. (Tr. 15). According to Jones, the mine had an approved mine map that reflected panels that were 18,000 feet long. (Tr. 16). While at the mine on January 15, 2009, however, Jones looked at one of the mine’s maps posted on a board and noticed that the map included projections that reflected panels longer than 18,000 feet. Id. The map showed projections going beyond the existing line of setup rooms. At that particular time, the mine had not gone past the setup rooms and was still over 1,000 feet away from the 18,000 foot mark in Headgate No. 3. (Tr. 16-17). That same day, Jones had a conversation with Mike Skelton, the shift manager. Jones informed Skelton that the “mine file did not show a stair step or an extension of a panel, [and] that [Mach] would have to get approval from the district manager to change their ventilation system.” (Tr. 17-18). Jones had a similar conversation with Chris England, also a shift manager. (Tr. 18). Moreover, Jones testified that he believed that his own supervisor contacted Anthony Webb, general manger of the mine, the very next day and told him that district manger approval was required. (Tr. 19).

            In early March of 2009, while at the mine, Jones noticed that the same mine map now reflected that the mine had proceeded inby more than 18,000 feet in the No. 3 Headgate entries. (Tr. 20). Jones did not recall whether he traveled to the subject area of the mine that day. (Tr. 21-22). At some point during the days following this observation, Jones contacted Danny Ramsey, the ventilation specialist in his office, who showed Jones emails between him and Mark Eslinger, the district’s ventilation supervisor. (Tr. 22, 44). Jones did not talk to Bob Phillips, the district manager for District 8, about this issue. (Tr. 42). After confirming that no change to the ventilation plan had been approved which would have allowed the mine to proceed beyond the 18,000 foot threshold, Jones traveled to the mine on March 13, 2009, to conduct a regular EO1 inspection and issued the subject order. (Tr. 20, 22-2, 454). Jones testified he believed that, based on conversations with Chris England, Mike Skelton, and others at the mine, it was the mine’s intention to develop the panel to 36,000 feet without first getting approval from MSHA. (Tr. 23, 44, 45). At hearing, Jones conceded that he had little knowledge of any conversations Mach’s managers may have had with MSHA officials about Mach’s plan to go beyond the 18,000 foot threshold in Headgate No. 3. (Tr. 46, 47).

            Jones testified that he had conversations with mine managers about the alleged poor quality of the roof in the area where the panels had been approved to end, i.e., at 18,000 feet, but he never offered any alternatives to the approved plan since he had worked at a mine that had similar roof conditions where there was no need for an alternative. (Tr. 20-21). According to Jones, the mine mentioned a number of different reasons for mining past the approved plan, including mining an additional 1,000 feet due to the mine roof stresses in the area, and as far 36,000 feet to get into limestone. (Tr. 18-19). Jones was aware of a third party engineering firm’s recommendation to mine 1,000 feet past the approved plan in order to get into better roof. (Tr. 21). While Jones was concerned that mining past the 18,000 foot threshold would require the mine to alter its bleeder system, he agreed that, as of March 13, 2009, the mine had not affected the bleeder system by anything it had done on the Headgate No. 3 development section. (Tr. 45). The No. 3 Headgate entries were a dead end at that time and were not tied into the bleeders for the Nos. 1 and 2 Headgate entries.

            Jones determined that Mach exhibited high negligence and that the violation was the result of its unwarrantable failure to comply with the mandatory standard. (Tr. 23). He agreed that he did not confer with anyone else at MSHA about his high negligence and unwarrantable failure determinations. (Tr. 43, 56). Rather, he testified that he based his findings on his 30 years of mining experience, and on conversations with mine personnel. Jones had previously told mine management that a modification of the ventilation plan was required before the headgate entries could be extended beyond 18,000 feet and he made the company aware that it was his job to let them know that an approved plan was required. Jones testified that he was aware that three management officials, i.e., Webb, England, and Skelton, knew that the mine was mining past the approved plan. (Tr. 25). Jones testified that the mine was aware that it needed an approved plan, and that any change to the ventilation system required district manager approval. (Tr. 24). According to Jones, the mine exhibited aggravated conduct constituting more than ordinary negligence when it chose to continue mining “after being warned, or put on notice that . . . plan approval was required.” (Tr. 25). Jones testified that the violative condition was obvious. (Tr. 25). Jones found that the violation did not rise to the level of S&S or amount to an imminent danger. (Tr. 24-25). At no point during the issuance of the subject order did Jones ever have any dealings with district manager Phillips, and neither Ramsey nor Eslinger took part in any determination of whether to issue the violation as high negligence or unwarrantable failure. (Tr. 42-44). Jones acknowledged that reasonable people could disagree as to whether this alleged violation should have been issued as a 104(a) or 104(d). (Tr. 49). Further, he agreed that Mach believed that it was not violating the law. (Tr. 49-50).

            Anthony Webb testified for Mach. Webb is the general manager at the mine and is responsible for everything that goes on both underground and on the surface. (Tr. 72). Prior to becoming general manager in June of 2009, Webb was the Mine Superintendent. (Tr. 72, 108-109). Webb has a bachelor’s degree in mining minerals engineering and foreman papers for West Virginia. (Tr. 73.) He began work in the coal industry in 1999. (Tr. 73). In 2005 he started working for Mach as a shift manager and had involvement in the design and development of the mine plans, including the ventilation plans. (Tr. 78).

            Webb testified that in November 2005, Mach began constructing the slope of the mine using conventional mining methods. (Tr. 75-76). In 2006, Mach intersected the coal seam, which was approximately 500 feet deep. (Tr. 76). In November of that year, Mach began bottom development and in the first quarter of 2007 it started driving the first longwall panel. (Tr. 76). The first panel was 18,000 feet in length and 1,250 feet in width. (Tr. 76). Mach began longwall mining Panel No. 1 in March of 2008. (Tr. 76). Since that time, the mine has completed two panels and, at the time of hearing, was almost done with Panel No. 3. (Tr. 76).

            Webb explained that the mine is ventilated by a push-pull system, with a fan that pushes air into the mine and an exhausting fan that pulls air out of the mine. (Tr. 76). Webb testified that the mine had two different types of ventilation plans, one for the development sections and other plans specific to each longwall panel. (Tr. 87). Webb explained that, with regard to the actual longwall mining, District 8 was approving a separate plan for each panel, while the development plan was one continuous plan. (Tr. 86-87). Webb stated that the development of the headgates was included in the original development section ventilation plan that the mine had been using since its approval during the development of the slope. (Tr. 88).

            According to Webb, the mine was using a ventilation system that was different from the other mines in District 8. When the mine was first being developed, Mark Eslinger told Webb that he wanted to see a proposed map of the mine to give him an idea of how Mach was going to design the mine. (Tr. 78-79). Eslinger told Webb that he wanted the information early in the process so that he could become comfortable with the system. (Tr. 79). In response, Mach provided the March 19, 2006, ventilation plan map that was referenced in the subject order and was used during the construction of the slope. (Tr. 78; Ex. A Order of May 15, 2009). According to Webb, the mine did not consider the map to be part of the ventilation plan and submitted it as a courtesy because Eslinger had asked for it. (Tr. 79). Webb testified that the map showed six panels, approximately 18,000 feet in length, situated in a rectangular fashion. (Tr. 79-80).

            Webb explained that in the Illinois coal basin the geology is such that there is horizontal stress which can cause less than ideal roof conditions when the entries are directly perpendicular to the stress. (Tr. 83-34). The roof conditions in the setup entries that became the bleeders for the Nos. 1 and 2 panels were poor because of this stress. (Tr. 84-89). As a result, mine management talked to an outside engineering firm, Keystone Mining Services (“Keystone”), who conducted a roof control analysis and created a number of models for different scenarios as to how the mine could deal with the horizontal stress on Panel No. 3. (Tr. 92; Ex. R-4). Two scenarios Keystone evaluated were extending the panel to 19,000 feet or shortening it to 17,000 feet. (Tr. 92-93).

            According to Webb, MSHA wanted the bleeders to be walked by the examiners so that they could look for mud, water, roof falls, or other adverse conditions. (Tr. 91). Because MSHA was pushing the mine to walk the bleeder entries, the mine felt that the only way it could do so safely was if they had a more reliable roof. (Tr. 90-91). In southern Illinois, limestone is the best roof that a mine can hope for. (Tr. 90). Extending the panel into limestone would improve the safety and health of both the miners that were developing the entries and the examiners that would eventually be walking the entries. (Tr. 102). Webb opined that, when an operator can keep miners from being exposed to bad roof, it should do so. (Tr. 102).

            Webb testified that Mach provided MSHA with a copy of the Keystone report on February 10, 2009, at a meeting in the Vincennes office where Bob Phillips, Kevin Stricklin, and Mary Jo Bishop were all present. (Tr. 94, 97, 135). Inspector Jones was not present at this meeting. Webb explained that Mach personnel reviewed the report with MSHA personnel and answered questions. (Tr. 95). During the meeting, Mach informed MSHA of its intent to extend Panel No. 3 to 19,000 feet to get the bleeder entries out of the area where horizontal stress had been identified on Panel Nos. 1 and 2. (Tr. 96, 135). Webb testified that any reference to “36,000 feet” was about Panel No. 4 and that the mine had learned that Panel No. 4 would need to be that long to get into a limestone area with good roof. (Tr. 93). Webb agreed that, as of February 10, 2009, he was not aware of any obligation to seek district manager approval for this change. District Manager Phillips did not say that an amended ventilation plan needed to be submitted or that the mine could not proceed until such approval was obtained. (Tr. 97, 109).

            After Mach decided to extend Panel No. 3 an additional 1,000 feet inby to 19,000 feet, Keystone generated a second, more detailed report on February 23, 2009, that showed that the bleeder entries for Panel No. 3, if the panel were extended to 19,000 feet, would be in an area with a much lower stress level and, in turn, would have safer roof conditions. (Tr. 101-102; Ex. R-6). The bleeder entries under this plan would have a stair step configuration. At a meeting on February 24, 2009 in Vincennes, Mach provided MSHA with a copy of the February 23, 2009, Keystone report. (Tr. 96, 102). Webb testified that he and District Manager Phillips were at the meeting and he thinks that Mary Jo Bishop, Mike Renni and Mark Eslinger were there. (Tr. 102-104 ). According to Webb, Eslinger was the ventilation supervisor in the Vincennes, office, while Renni was the Benton, Illinois, field office supervisor. (Tr. 103). During the meeting, Mach informed the MSHA personnel that the mine had gone past the 18,000 foot mark and that it planned to go all the way to the limestone, then back up to the 19,000 foot mark and cut the bleeder entries for Panel No. 3 at that point. (Tr. 103). According to Webb, at the end of the meeting Phillips told Webb and the former general manager of the mine, Richard “Pete” Hendrick, that “it shouldn’t be a problem.” (Tr. 104). Phillips requested a map of the new stair step design of the bleeder entries, but did not say anything about approval being needed to develop beyond the 18,000 foot mark in Headgate No. 3. (Tr. 96, 103, 104). Mach provided the requested map to MSHA and Phillips on the February 25, 2009. (Tr. 96, 104; Ex. R- 7). Webb testified that he did not believe that the map he submitted was part of a plan but thought it was a courtesy to Phillips. (Tr. 105, 136). He explained that, if it had been a plan submittal, the cover letter would have been different. (Tr. 105). Webb agreed that a February 26, 2009 letter from Bob Phillips to him was in response to the map that Mach had provided to MSHA on February 25th, and that the letter stated that “[a]pproval by the District Manager is required and, action is being started to determine that this plan meets criteria for approval.” (Tr. 138); Ex. PE-7. Webb understood the letter to mean that approval was needed before the mine connected Headgate No. 3 into the Headgate No. 2 bleeder system. (Tr. 139, 156).

            Webb testified that Inspector Jones was the regular inspector at the mine around this time. (Tr. 97). Webb acknowledged that the first time the mine went past the 18,000 foot threshold in Headgate No. 3 was on February 21, 2009. (Tr. 97). He testified that Jones was at the mine on February 23, 2009 and traveled to Headgate No. 3 for the first time on February 24, 2009. (Tr. 98-99). Webb stated that Jones did not mention anything as far as needing any kind of approval when Jones was at the face of Headgate No. 3 on the 24th. (Tr. 99).

            Webb agreed that MSHA District 8 required additional approval every time a new longwall panel was mined. (Tr. 99). Further, he agreed that, as of March 13, 2009, the mine could not complete development of Panel No. 3 and begin longwall mining without additional approval. (Tr. 99-100). He knew that additional approval was necessary before the mine could connect the No. 3 Headgate entry to the active bleeder system for Panel Nos. 1 and 2. (Tr. 100, 155). However, it was his understanding that developing the headgate beyond the threshold was never something that had been regulated and required approval. (Tr. 88, 155). According to Webb, the mine had taken none of the steps that would have required additional approval. (Tr. 101).

            Webb testified that the mine had been developing Headgate No. 3, but as a result of the subject March 13, 2009 order, the mine had stopped development. (Tr. 82). Webb explained that, while Panel No. 1 had been 18,000 feet in length, Panel No. 2 was actually 18,200 feet, i.e., longer than Panel No. 1. (Tr. 82, 106; Ex. R-2). The extended development of Panel No. 2 was done to “gain access to the bleeder entries behind” Panel No. 1. (Tr. 82). He further explained that, at the time, the mine was not required to physically walk the bleeders in Panel No. 1. (Tr. 82). When the mine began Panel No. 2, MSHA asked if the mine could drive new entries because the entries behind Panel No. 1 were deteriorating. (Tr. 82-83). As a result, the mine started to drive two new entries, but, due to the roof conditions behind Panel No. 2, the mine abandoned the plan. (Tr. 83). According to Webb, the mine told MSHA about this and MSHA was aware that the mine had gone a bit further than 18,000 feet with Panel No. 2. (Tr. 83, 106). Mach never received a citation or order for going beyond 18,000 feet with Panel No. 2. (Tr. 83, 106). In March or April of 2010, MSHA approved the stair step design for the bleeders and Mach began mining Panel No. 3. (Tr. 122).

            Webb testified that Mike Skelton was the shift manager at the mine in February and March of 2009. (Tr. 106-107). Webb talks to Skelton on a daily basis and Skelton never told Webb that Bob Phillips or any acting district manager was requiring plan submission and approval for the mine to go beyond 18,000 feet in Headgate No. 3. (Tr. 107-108).

            On cross-examination Webb testified that the February 4, 2009, letter from Mary Jo Bishop to him did not put the mine on notice that approval was needed before the mine went past the 18,000 foot mark in Headgate No. 3. (Tr. 132; Ex. PE-4). Moreover, Bishop was at the February 10, 2009, meeting in Vincennes, discussed above, and Webb knows that the letter was discussed, yet no one from MSHA made any mention about plan submission or approval being required to go past 18,000 feet. (Tr. 132). Webb agreed that the stair step would have to be approved before cutting into the bleeder system. (Tr. 134)

                        3.         Parties’ Arguments

                                    i.         Secretary of Labor

            The Secretary argues that Mach’s violation of section 75.370(d) “clearly meets the standard for unwarrantable failure to comply with [the] mandatory standard.” Sec’y Br. 8. Specifically, the Secretary asserts that Mach engaged in “aggravated” conduct as evidenced by the presence of three aggravating factors. Id.

            First, Mach had knowledge of the existence of the violation. Mach’s assertion that it did not know of the requirement to get district approval or, in the alternative, that it had already obtained approval, before mining the additional 1000 feet, is not supported by the evidence. Id. Inspector Jones had multiple conversations Mach officials regarding the need to obtain district approval and Webb’s testimony that the mine had not been told about the need to obtain approval is contradicted by a February 4, 2009, letter from MSHA to the mine. Id; Ex. PE-4. Moreover, any approval that Mach alleges having been given is contradicted by three letters, dated February 26, 2009, March 13, 2009, and March 18, 2009, in which the district manager never approved Mach’s projected plan. Id; Ex. PE 7, PE-16 & PE-17. In spite of the fact that Mach was provided with clear notice that district manager approval was necessary before Mach mined beyond the approved plan, the mine intentionally and knowingly proceeded without such approval. Sec’y Br. at 9.

            Second, the Secretary asserts that the violation was obvious. Mach’s approved ventilation plan was a six panel design, with each panel stretching to 18,000 feet. Id. Inspector Jones was made aware of the mine’s decision to mine past the 18,000 foot mark on January 15, 2009, when he viewed the mine’s map. Id. The subject order was issued on March 13, 2009. Roughly a week and a half before issuing the order, Jones saw on a map that Mach had already gone past the 18,000 foot mark. Id. Mach management was aware that mining operations had extended beyond the approved map. Id. Despite verbal and written warnings that district approval was necessary, “Mach simply ignored the notice and willfully chose to proceed with its plan anyway.” Id.

            Third, the violation had existed for at least seven to ten days. Mach stipulated that Inspector Jones was aware that Mach began mining inby the proposed setup room in headgate No. 3 at least seven to ten days prior the issuance of the subject order. Id. at 9-10. By the time Jones issued the order, the mine had advanced approximately 1,000 feet. Id. at 10. As such, “Mach’s violative conduct was knowingly being continued for approximately 7-10 days.” Id.

                                    ii.        Mach Mining

            Mach argues that it “had a genuine, good-faith belief in the legality of its actions, and did not exhibit the type of ‘knowing’ or ‘aggravated conduct’ that constitutes an unwarrantable failure to comply with [the] mandatory standard” and that it did not act with high negligence. Mach Br. 15. Mach asserts that this case presents an issue of “first impression involving a legitimate dispute over the interpretation of the Secretary’s ventilation plan standard” and that “there is no evidence to suggest that Mach was acting with indifference or a lack of reasonable care.” Id. at 16. The Secretary failed to present evidence that Mach’s view of the situation “was not well-intentioned and genuine.” Id. Moreover, Inspector Jones’ own testimony conceded that “he did not think Mach subjectively thought it was violating the law, . . . and he agreed that another inspector might well have written the paper as a § 104(a) citation.” Id.

            Mach points out that it had not been cited on Panel No. 2 when it mined approximately 200 feet past the 18,000 foot projection and it argues that the mine had fully informed the Secretary of its intention to mine beyond the 18,000 foot projection on Panel No. 3. Id. at 16-17. Mach’s action of developing Panel No. 3 beyond the 18,000 foot mark was based upon the recommendation of an outside engineering group that suggested that further development would help to avoid the poor roof conditions that the mine had experienced in the setup entries of Panel Nos. 1 and 2. Id. at 17. Despite providing the Secretary, multiple times, with notice of its intent to mine beyond the 18,000 foot mark, no one at MSHA ever told Mach that it could not proceed as planned and, instead, MSHA only asked for an “updated map (or projection).” Id. Further, Mach also notified MSHA after it had mined past the 18,000 foot mark in Headgate No. 3, yet no one at MSHA mentioned anything about the need to obtain district manager approval. Id. Rather, District Manager Phillips simply requested a depiction of what Mach was doing at the time. Id. That depiction was provided the following day. Id.

            Mach argues that Inspector Jones’ testimony is of little value, while Webb’s testimony substantiates the information set forth in Hendrick’s supplemental declaration. Id.; see Hendrick Declaration related my order of May 15, 2009. According to Mach,“this Court, in denying the Secretary’s motion for summary decision on the issue of unwarrantable failure, stated that if the assertions stated in the Hendrick supplemental declaration were true, it would be ‘unlikely’ the Court would uphold the unwarrantable failure allegation.” Id. (citing May 15th Order at 7). Mach argues that the Secretary has known for over one and one half years prior to hearing “exactly what Mach’s position in opposition to the unwarrantable failure allegation was” and, despite it making its intentions known to MSHA at a number of meetings with MSHA officials, the Secretary has only called one witness “who has no knowledge, personal or even indirect, about the primary subject matter of [Hendrick’s] declaration,” i.e., what was made known to MSHA at the subject meetings regarding Mach’s planned development of Panel No. 3 to 19,000 feet. Id. at 18. Based on such, Mach argues that Webb’s testimony is compelling given that the Secretary called no witnesses to rebut Webb’s testimony as to the “truth and accuracy of Mach’s characterization of what was said (and not said) in those meetings.” Id.

            Further, Mach argues that the February 4, 2009, letter from District Manager Phillips to Mach can be “reasonably interpreted by Mach to mean nothing than that Mach was required to obtain MSHA approval (1) prior to mining through from Panel 3 into the Panel Nos. 1 and 2 bleeder ventilation current; and (2) prior to commencing longwall mining on Panel 3.” Id. at 20. Finally, Mach argues that the February 26, 2009, letter from Phillips to Mach was nothing more than a reminder that Mach did not yet have ventilation plan approval for longwall mining Panel No. 3. Mach Br. at 21; Ex. PE-7.

                        4.         Unwarrantable Failure and Negligence

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

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).

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

            I find that, for the reasons set forth below, Mach did not engage in aggravated conduct constituting more than ordinary negligence and that the violation was improperly designated as an unwarrantable failure to comply with the mandatory standard. At the outset of this discussion it is important to note that I found both Inspector Jones and Mr. Webb to be credible witnesses. Based on the credible testimony of both witnesses, I find that the parties were not on the same page when discussing what was necessary for Mach to comply with the cited standard. As a result, Mach unintentionally failed to obtain approval before proceeding beyond the 18,000 foot mark in Headgate No. 3, thereby violating the standard.

            Two of the potential aggravating factors that must be addressed in an unwarrantable failure analysis are “whether the operator has been placed on notice that greater efforts are necessary for compliance” and “the operator’s knowledge of the existence of the violation.” While the Secretary argues that she clearly put the mine on notice of its responsibility to obtain approval before mining beyond 18,000 feet in Headgate No. 3, Mach argues that it had a good faith belief that it was not violating the cited standard when it proceeded to develop Headgate No. 3 beyond the 18,000 foot mark. I credit the testimony of Webb, who explained that Mach believed that approval was only needed before connecting to the bleeder systems of Panel Nos. 1 and 2 and before beginning longwall mining of Panel No. 3. In crediting his testimony, I note that the Secretary alleges that a letter sent by MSHA to Mach and the statements of MSHA personnel to Mach personnel, put mine management on notice of the requirement to obtain approval before proceeding inby the 18,000 foot mark in Headgate No. 3. However, the evidence is not as clear and convincing as the Secretary represents.

            There were statements made by officials in face-to-face meetings and in written correspondence from MSHA regarding the need to obtain approval before extending Panel No. 3 beyond the 18,000 foot mark. However, Mach reasonably and in good faith believed that such statements were made with respect to the need to obtain approval before connecting the subject Headgate No. 3 entries to the Panel Nos. 1 and 2 bleeder systems and before mining the subject panel. After all, the February 4, 2009, letter to Webb, states that “[f]ailure to obtain approval before making changes to the bleeder design could be cause for enforcement action to be taken.” (Ex. PE-4). Inspector Jones admitted that nothing that the mine had done as of the date of issuance of the order had affected the bleeder system. I find Webb’s interpretation of the February 4, 2009, letter and his interpretation of what he was told by MSHA personnel, to be reasonable in the context of this unwarrantable failure analysis. Moreover, the fact that Mach, without incident, proceeded to develop beyond the approved 18,000 foot threshold in Panel No. 2 lends credence to Webb’s claim as to what the mine believed it was allowed to do. Mach’s belief, while mistaken, explains the mine’s view that it had no knowledge of the existence of the violation and, likewise, that it was not on notice that greater efforts were needed for compliance. I agree with Mach and I find these two factors to weigh in its favor.

            It is undisputed that Mach proceeded beyond the 18,000 foot mark in Headgate No. 3. I have already found that, in doing so, Mach violated the cited standard. I credit Webb’s testimony that the mine first advanced beyond the 18,000 foot mark in Headgate No. 3 on February 21, 2009. The subject order was issued on March 13, 2009, with the result that the violative condition existed for approximately twenty days. While the condition existed for that period of time, Mach’s Inspector log shows that Inspector Jones was at Headgate No. 3 on February 24th. (Ex. R-5). Further, Inspector Jones himself admitted that some time passed between the time he claims to have first noticed the violation, i.e., “early” March, and the time he issued the order, i.e., March 13th. As a result, given my finding that the mine had a good faith belief that it was not in violation of the cited standard, the length of time that the condition existed is not helpful in establishing whether the violation was the result of the mine’s unwarrantable failure to comply with the mandatory standard.

            With regard to the obviousness of the violation, I agree with the Secretary that the cited “condition” was obvious. However, when looked at in the context of my above finding regarding the mine’s good faith belief that it was in compliance with its ventilation plan, I find that the “violation” was not obvious.

            Inspector Jones issued the subject order as non-S&S and unlikely to result in an injury. If an injury did occur, he determined it would result in lost workdays or restricted duty. There is no evidence in the record to demonstrate that the condition created by this particular violation posed a danger to miners. The No. 3 headgate entries were being ventilated in accordance with the mine’s approved ventilation plan as these entries were developed. Once the subject order was issued, the mine ceased mining these entries. While not of consequence to this analysis, I do note that, per the undisputed testimony of Webb, the changes made to the ventilation system and panel design that are the subject of this order were approved by MSHA in early 2010. (Tr. 122).

            Based on my above findings, I agree with Mach that it had a legitimate, good faith, albeit incorrect, belief that mining beyond the 18,000 foot mark in Headgate No. 3 was not in violation of the mandatory standard. It boils down to a question of when MSHA’s approval was required, at the time the entries were driven beyond 18,000 feet or at the time these entries were connected into the existing bleeder system. Given the facts presented, and in consideration of the potential aggravating factors discussed above, I hold that Mach’s actions did not demonstrate aggravated conduct constituting more than ordinary negligence. Its conduct did not rise to the level of “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Rather, the violation seems to be the product of a lack of clear communication between MSHA and Mach which resulted in Mach’s misinterpretation of what was required for compliance with the mandatory standard. I find that given this good faith misunderstanding, Mach’s negligence was low. Consequently, I MODIFY the subject order to a 104(a) citation with low negligence. I affirm the Secretary’s low gravity findings. A penalty of $100.00 is appropriate for this violation.

            B.        Order No. 8414249; LAKE 2009-425-R and LAKE 2009-495

            On March 18, 2009, Inspector Bobby Jones issued Order No. 8414249 under section 104(d)(1) of the Mine Act for an alleged violation of 30 C.F.R. § 75.370(d). Order No. 8414249 alleges the following:

An 18 inch shaft was drilled from the surface into the active bleeder system on March 11, 2009, in the No. 2 entry at No. 190 crosscut in the No. 1 tailgate prior to a plan being submitted and approved by the District Manager. This shaft is to be used to place remote monitoring devices into the bleeder system as an alternative method to determine the effectiveness of the bleeder system.

Jones determined that an injury was unlikely, but, if an injury did occur, it could reasonably be expected to result in lost workdays or restricted duty. He determined that the violation was not S&S, that ten persons would be affected, and that the violation was the result of high negligence on the part of the operator. The order was designated as an unwarrantable failure to comply with the mandatory standard. A penalty of $2,161.00 was proposed by the Secretary. For the reasons that follow, I VACATE the order.

                        1.         Stipulations

            The parties entered into the following key stipulations with respect to this order:

11. Order No. 841429 was issued to Mach on March 18, 2009, pursuant to Section 104(d) of the Federal Mine Safety and Health Act of 1977.

12. The borehole referenced in order No. 8414259 was not included in the Mach No. 1 Mine ventilation plan of March 18, 2008.

13. Regarding the borehole referenced in order No. 8414259, Mach and District 8 discussed – prior to it being drilled – the use of such a borehole as a potential alternative means of evaluating the effectiveness of the bleeder system by remote monitoring in the event that access to the bleeder evaluation points could not be maintained, but remote monitoring through the referenced borehole was never required or incorporated into Mach’s ventilation plan.

                        2.         Summary of Relevant Testimony

            Inspector Jones testified that, on February 24, 2009, while at the mine conducting an inspection, he had a conversation with Morris Niday, a miners’ representative who was a warehouse and surface supervisor at the mine. (Tr. 28). During the conversation, Jones learned that Mach had begun to bore a 18-inch diameter hole from the surface into the mine’s bleeder system. (Tr.27-28). Jones traveled to the surface to inspect the hole and, after meeting with his own supervisor and speaking with Jim Slapak, the mine’s senior engineer, Jones determined that the hole had not yet penetrated into the bleeder system and was, instead, approximately 10 feet from doing so. (Tr. 28-29). To Jones’ recollection, the hole was not marked on any maps at that particular time. (Tr. 29). Jones testified that, based on his training and experience, the mine had not yet committed a violation because the it had not yet changed the ventilation system; however, he informed Slapak that, prior to punching the hole through the roof of the mine, Mach would need to obtain an approved plan that included the borehole. (Tr. 29-30). Jones could not recall if he spoke with Webb on February 24th about the borehole. (Tr. 30). Jones did acknowledge that he was aware that there had been discussions between MSHA and Mach about a borehole but, before February 24, he was not aware that the mine had actually begun drilling the hole. (Tr. 29).

            Jones testified that subsequently, on or around March 16, 2009, while conducting an EO1 inspection at the mine, he learned that the mine had completed the hole and punched through into the bleeder system. (Tr. 30). During the inspection that day, he did not travel to the area where the hole had punched through the mine roof. (Tr. 31). That evening, along with Webb, Jones did go to the location where the hole exited the mine on the surface. (Tr. 31). The hole on the surface was uncapped and air was coming out of the mine through the hole. (Tr. 32). According to Jones, Webb stated that the mine had completed the hole and punched through on March 11th. (Tr. 32). Jones testified that he had conversations with Webb on March 16th and 17th during which he learned that, while Webb was not sure exactly when on March 11 the hole had been completed, it was more than likely that miners were underground at the time, and the supervisors were aware that the hole was being drilled. (Tr. 34; Ex. PE-19). According to Jones, there were approximately ten to eleven miners underground in the general area. (Tr. 34). Jones acknowledged that the air readings he took in the area did not show anything out of the ordinary. (Tr. 35).

            On March 18, 2009, Jones returned to the mine and issued the subject order. (Tr. 32). He explained that it took him two days after March 16 to issue the order because he wanted to check to see if a more recent ventilation plan that included the borehole had been approved. (Tr. 32). Jones did not find such a plan, but he testified that if one had existed he would not have found a violation. (Tr. 32).

             Jones testified that he determined that the borehole was a violation of the mandatory safety standard because it “had the potential to alter the air flow in the bleeder system[,]” but acknowledged that the only evidence that the air current had been altered was the air coming out of the hole on the surface. (Tr. 36, 52). Further, he testified that the bleeder system is part of the air course. (Tr. 54). During cross-examination, Jones had the following exchange with counsel for Mach:

Q.        (Counsel for Mach) You’re not aware of any evidence, are you, sir, that when they punched through on March 11th, 2009, that they changed the ventilation system to alter the main air current, or a split of the main air current in a manner that could materially affect the safety and health of the miners? Would you agree that they didn’t do that on March 11th, 2009?

A.        (Jones) I can’t say if they did, or they didn’t. The potential was there. I don’t know if they did, or not.

. . .  

Q.        Would you agree with me that you are not aware of the main air current, or any split of the main air current having been altered by their punching through on March 11th, 2009?

A.        I have no way of knowing if it had been altered.

Q.        But would you agree with me that you don’t have any evidence showing that it was altered?

A.        I have no evidence showing that it was altered.

Q.        And you also don’t have any evidence of, would you agree with me, that there was any dangerous or combustible level of methane in the bleeder when they punched through?

A.        No, I have no evidence at that time that there was any there.

(Tr. 52-53). To his knowledge, the borehole had never been incorporated into the ventilation plan for purposes of evaluating the effectiveness of the bleeder system. (Tr. 55, 59-60). Jones found that the cited condition was not an imminent danger since it already existed and nothing had gone wrong to that point. (Tr. 36). Jones determined that an injury was “unlikely” given that nothing occurred when Mach holed through into the bleeder. (Tr. 51). Further, he found that the condition was not S&S. (Tr. 36).

            Jones issued the violation as a 104(d) order and determined that it was the result of Mach’s high negligence and unwarrantable failure to comply with the mandatory standard because both he and the MSHA field office supervisor, Mike Renni, had informed Mach that district manager approval was necessary before the mine drilled through the mine roof. (Tr. 35-37, 51). By failing to obtain such approval, Mach exhibited aggravated conduct constituting more than ordinary negligence. (Tr. 37). Jones opined that the condition was obvious and that, to his knowledge, Slapak, Webb, Chris England, a shift manager, and Mike Skelton, another shift manager, were all aware that the borehole was being drilled and that the drill had punched through the mine roof from the surface. (Tr. 37). Jones agreed that he did not confer with any other MSHA personnel about issuing the order as high negligence or an unwarrantable failure to comply. (Tr. 51, 56). Jones acknowledged that reasonable people could disagree as to whether this alleged violation should have been issued as a 104(a) or 104(d). (Tr. 55). Further, he agreed that Mach believed that it was not violating the law. (Tr. 55-56).

            Anthony Webb testified that it takes approximately two weeks to drill a borehole from the surface into the mine. (Tr. 110). The borehole at issue is an 18-inch case hole that was wet-drilled from the surface into the mine. (Tr. 114-115). Wet-drilling kept the hole filled with water so that the drill tailings floated to the top of the hole. (Tr. 114-115). Once the hole was within 10 feet of the mine roof, a casing was installed to prevent the hole from caving in. (Tr. 114-115). The casing was then grouted to prevent water from continually entering the mine via the wall of the hole. (Tr. 114-115). Subsequently, the remaining 10 feet of the borehole were drilled out and a certain amount of water used in the wet-drilling process entered the mine from the column above. (Tr. 115). In this particular case, the 18-inch wide borehole, which was approximately 600 feet deep, reached the bleeder in the mine on March 11, 2009. (Tr. 110-111).

            Webb explained that Jim Slapak was in charge of the drilling operation and took care of the surface surveying. (Tr. 116). Webb was not aware of any precautions taken by Slapak during the drilling of the hole besides drilling with water and making sure that there were no miners in the area when the drill punched through into the mine. (Tr. 116). Miners would not have been any closer than 4,000 feet from the area where the hole punched through. These miners were working at the face on Panel No. 2. (Tr. 117). A spark or ignition during the punch through was very unlikely given the water surrounding the drill bit. (Tr. 118). Even if there were a spark, the area of the punch through was well rock-dusted and the methane readings were “ less than one [percent].” (Tr. 118). According to Webb, methane only becomes a problem “between 5 and 15 percent.” (Tr. 120).

            Around the time that the borehole was punched through, Mach was involved in a dispute with MSHA over whether the bleeders in Panel No. 2 should be walked by the examiners. (Tr. 116-117). The ventilation plan submitted by Mach established bleeder evaluation points that were outby the bleeder entries. (Tr. 125-127). At the insistence of MSHA, the preshift examiners began walking the bleeders. (Tr. 116-117, 141). As a result of that dispute, the general area was being preshifted at the time of the order; however, the specific area of the borehole was not being preshifted because it was not necessary. (Tr. 118-119, 146; Ex. R-8). Prior to the dispute, Webb testified that, during the February 2009 meetings in Vincennes, the same meetings discussed supra in the context of Order No. 8414238, there was a discussion between Mach and MSHA about potential alternative means for the mine to evaluate the bleeder system. (Tr. 111). Inspector Jones was not present during the discussions. (Tr. 112, 121). Webb testified that, at the meetings, Mach expressed that it was not safe to have miners walking the bleeders and, in response, MSHA personnel mentioned the possibility of using remote monitoring through boreholes. (Tr. 111). At no point during the meetings did the district manager, or anyone else, say that approval was needed before drilling the borehole into the mine. (Tr. 121, 142). As a result, Mach decided to start drilling the borehole. (Tr. 111). According to Webb, it takes approximately two weeks to drill a borehole from the surface into the mine, so Mach wanted to have the holes in place if it chose to go down the path of remote monitoring. (Tr. 111). Drilling the hole ahead of time would allow the mine to avoid shutting down for two weeks while MSHA decided if it wanted the mine to use remote monitoring. (Tr. 111, 141).

            Webb testified that two 12.5 foot diameter bleeder shafts were located less than 200 feet from where the borehole entered the mine. (Tr. 113-114). The air flows from the active longwall face toward the bleeders. (Tr. 117-118). Further, the borehole was never actually used for the purpose of evaluating the effectiveness of the bleeder system and was never incorporated into the ventilation plan. (Tr. 112). Webb agreed that, had the mine used the hole for purposes of evaluating the effectiveness of the bleeder system, then it would have needed to obtain approval before doing so. (Tr. 158-159). According to Webb, the addition of the borehole did not alter the main air current in a manner that would have affected the safety and health of miners. (Tr. 113). He based this determination on his “engineering background and common sense . . . that an 18-inch borehole that is less than 200 feet from two 12-and-a-half foot holes, with a bleeder fan on top of them, that’s sucking like crazy, is not going to materially affect the ventilation” and the fact that the mine had no measurements to indicate that the current had been altered. (Tr. 113-114). Moreover, according to Webb, the borehole did not affect any of the requirements of section 75.371. (Tr. 112-113).

                        3.         Parties’ Arguments

                                    i.         Secretary of Labor

            The Secretary argues that Mach violated section 75.370(d) when it drilled a borehole into its bleeder system without first obtaining the written approval of the district manager. Sec’y Br. 11-12. Mach not only failed to argue that the borehole did not create any change in the information required by section 75.371, the mine actually admits that, “‘had it incorporated this borehole into its ventilation plan, it would have been required to obtain district manager approval in advance.” Sec’y Br. 12 (citing Mach Statement). Mach cannot admit that, on one hand, had the borehole become necessary, it would have required MSHA approval, while on the other, had the borehole not been necessary, it would be “free to drill at will.” Sec’y Br. 13. The borehole, whether used or not, was “a proposed method of enabling monitoring of the bleeder system and thus, its inclusion into the plan would be required by [30] C.F.R. § 75.371.” Id. The Secretary argues that the Mine Act “is to be liberally construed in light of the prime purpose of the legislation.” Id. It is necessary for a mine operator to seek and gain approval of any ventilation plan “deviation or modification” before it implements such, even if the operator is “acting [with] . . . a sincere belief that its actions [are] justified.” Id.

                                    ii.        Mach Mining

            Mach argues that Order No. 8414249 should be vacated. Mach drilled the borehole in advance of actually needing it in order “to hedge against the possibility that, without it, the mine would be shut down for several weeks if there were no other means to evaluate the effectiveness of the bleeder system.” Mach Br. 21. The Secretary’s regulations do not require that an operator obtain district manager approval before drilling a borehole and, “[r]ather, boreholes are only required to be approved before they are actually put to use in some functional way.” Id. at 22. According to Mach, the Secretary confuses the “right of an operator to drill a borehole (which does not require approval) with the requirement of the operator to obtain approval if a borehole is adopted as part of its ventilation plan (which is required when, inter alia, the hole is used to facilitate an alternative method of evaluating the effectiveness of the bleeder system).” Id. at 24 (internal citation omitted).

            “[T]here is no dispute that the borehole was never incorporated into Mach’s ventilation plan, for bleeder evaluation or any other purpose.” Id. at 23. Further, there is no evidence that Mach’s actions “altered the air current in a manner that materially affected the safety or health of its miners.” Id. Furthermore, “Mach did not make any changes to the content of its ventilation plan.” Id.

            Mach argues that the “requirements of section 75.371 are for informational purposes” and are “not design or performance standards.” Id. at 24. Section 75.370(d) is the applicable standard requiring approval if the “operator plans to make an intentional change in the air current that could materially affect the health or safety of the miners.” Id. Here, Mach made no such changes and MSHA has failed to offer any evidence that the air current was changed. Id. Moreover, Mr. Webb credibly testified that it was “unthinkable as a matter of common sense that an 18" borehole could alter mine ventilation in a way that would have a material effect on the health or safety of miners, especially when [such hole was] so close to the mine’s two bleeder exhaust shafts through which mine air exited the mine, pulled by the exhausting fan.” Id. at 24-25 (internal footnote omitted).

            Finally, Mach argues that the March 5, 2009, letter from MSHA to Mach says “nothing about needing approval to drill the hole. . . .” Id. at 25. According to Mach, it “was fully aware of its responsibility, per 30 C.F.R. § 75.371(z), to obtain district manager approval in advance of actually using the borehole in its ventilation plan as part of an alternative method of evaluating the effectiveness of its bleeders.” Id. However, the “possibility of using the borehole to facilitate an alternative method did not mandate that Mach seek prophylactic approval to drill the hole.” Id. (emphasis in original).

                        4.         Discussion

            Section 75.370(d) reads as follows:

 No proposed ventilation plan shall be implemented before it is approved by the district manager. Any intentional change to the ventilation system that alters the main air current or any split of the main air current in a manner that could materially affect the safety and health of the miners, or any change to the information required in § 75.371 shall be submitted to and approved by the district manager before implementation.

30 C.F.R. § 75.370(d).

            This particular standard involves three separate directives. First, the mine operator is restricted from implementing a proposed ventilation plan, or in this case a plan revision, before that plan is approved by the district manager. In this instance, the proposed revision of the plan involved a potential change in the method of monitoring the effectiveness of the bleeder system. Specifically, Mach, and apparently MSHA, were evaluating the possibility of utilizing remote monitoring of the bleeder system via a borehole. While it is undisputed that a borehole was drilled from the surface into the mine bleeders, I find that the proposed revision to the method of monitoring the bleeders had not been implemented by Mach and, as such, it was not necessary to obtain the district manager’s approval before drilling the borehole.

            Mach’s proposed revision, as pertinent to this case, addressed the means for determining the effectiveness of the bleeder system and any alternative methods of evaluation. The standard, by its plain language, would seem to require that the proposed change be “implemented” before approval in order for a violation to be found. In my order of June 29, 2009, which addressed the fact of violation in the context of Order No. 8414238, I found that “there [was] much more than a ‘potential’ that Mach [would] need to redesign its bleeder entries to accommodate the new panel configuration[,]” and, as such, there was a violation of the standard. Order at 2. Here, the situation is much different. While the potential existed that Mach would change the means for determining the effectiveness of the bleeder system, it was nothing more than that; it was a “potential” or “possible” change. Mach had not begun to evaluate the effectiveness of the bleeders by way of the borehole, and drilling the borehole did not necessitate a change. Instead, as Mach has pointed out, drilling the borehole simply hedged against a potential shutdown in the event Mach did in fact implement remote monitoring of the bleeder system via the borehole after obtaining MSHA approval to do such. While drilling the borehole may have been an initial step toward such a change, it does not amount to implementing such a change. I credit both Jones’ and Webb’s testimony that the borehole was never actually used as a means for monitoring the effectiveness of the bleeders and, accordingly, I find that it was never implemented into the mine’s ventilation plan. Instead, Mach continued to evaluate the bleeder system by its earlier approved methods. For the above reasons, I find that the drilling of the borehole did not amount to implementation of a proposed revision to the ventilation plan and, therefore, did not run afoul of the requirement that Mach obtain district manager approval.

            In order for the Secretary to succeed in proving a violation in the context of the remainder of the cited standard, she must prove one of two things: (1) that Mach intentionally changed the ventilation system and, in doing so, altered the main air current or any split of the main air current in a manner that could materially affect the safety and health of the miners, or (2) that there was a change in the information required by section 75.371. For the reasons that follow, I find that the Secretary has again failed to satisfy her burden.

            Again, it is undisputed that Mach intentionally drilled the subject borehole from the surface into the mine bleeders. Further, I credit Inspector Jones’ testimony that air from the mine was coming out of the hole on the surface. Given that air was traveling from the mine to the surface via the borehole, a change in the subsurface airflow was obviously made when the borehole was punched through the mine roof. That change involved an unknown quantity of air, which was once directed through the underground portion of the mine, now traveling through the borehole and out of the mine. However, the cited standard requires more than a change to the main air current or a split of such. The change must not only alter the air current, it must alter it in such a way that it “could materially affect the safety and health of the miners[.]” On this issue, the Secretary has not succeeded in satisfying her burden.

            While Jones believed that the borehole “had the potential to alter the airflow in the bleeder system,” he acknowledged that he could not say if the borehole altered the air current in such a manner that it could materially affect the safety and health of miners. He agreed that the “potential” was there for the change to materially affect the safety and health of miners, but he conceded that there was no evidence at the time that there were dangerous or combustible levels of methane in the bleeder system when the drill bit punched through. Moreover, Jones tellingly did not allege any other potential dangers that the creation of the borehole could have created. Webb, who has a mine engineering background, testified that no miners were in the area at the time of the punch through and that the methane readings were below dangerous levels. I credit Webb’s testimony. I find that Jones’ statement that the “potential was there” that the change could materially affect the safety and health of miners does not, without further evidence, come close to satisfying the Secretary’s burden on this element. Jones offered nothing to support his statement and I can find nothing in the record from which I could reasonably infer that the borehole could materially affect the safety and health of miners. It is significant that Mach had previously installed two bleeder shafts less that 200 feet from the subject borehole that were part of its approved ventilation plan. There were fans on the top of each of these shafts that pulled significant amounts of air out of the mine in the vicinity of the subject borehole. (Tr. 113-14). The Secretary did not establish, and probably could not establish, that the addition of this third borehole, which was not equipped with a fan, altered the main air current or any split of the main air current in a manner that could have materially affected the safety and health of the miners.

            Finally, with regard to the cited standard’s directive that district manager approval be obtained before there is any change to the information required by section 75.371, I find that the Secretary has failed to satisfy her burden. The standard requires that any change to the information required by section 75.371 be submitted to, and approved by, the district manager. Section 75.371 requires that the mine ventilation plan contain certain specific information. The required information is laid out in the subsections of the standard. Here, the Secretary alleges that changes related to subsections (y) and (z) were made prior to obtaining district manager approval. Subsection 75.371(y) requires that “[t]he means for determining the effectiveness of bleeder systems” be included in the mine’s ventilation plan. Likewise, as relevant to this analysis, subsection 75.371(z) requires that “[a]lternative methods of evaluation of the effectiveness of bleeder systems” be included in the mine’s ventilation plan. I find that, for many of the same reasons discussed above with regard to plan implementation, no changes to the subject mine plan information were made. Mach was only considering changing the means or alternative methods of determining the effectiveness of the bleeder system. Drilling a borehole, by itself, does not change the means, or alternative methods, of determining the effectiveness of the bleeder system. Again, as discussed above, at the time this order was issued, the mine continued to evaluate the effectiveness of the bleeder systems by approved methods. While drilling a borehole might be a small step in working toward such a change, it does not amount to a change in the information required by the referenced subsections of 75.371. For the foregoing reasons, Order No. 8414249 is VACATED.

II. APPROPRIATE CIVIL PENALTY

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are not disputed by Mach. Mach is a large mine operator. Mach in good faith stopped mining the No. 3 Headgate entries upon issuance of the order. The order was terminated on September 9, 2009, and a revised ventilation plan was subsequently approved. The penalty assessed in this decision will not have an adverse effect on Mach’s ability to continue in business. The gravity and negligence findings are discussed above.

III. ORDER

            For the reasons set forth above, Order No. 8414249 is VACATED. Order No. 8414238 is MODIFIED to a section 104(a) citation, as set forth in this decision and my earlier orders, as discussed above. Mach Mining, LLC, is ORDERED TO PAY the Secretary of Labor the sum of $100.00 within 30 days of the date of this decision.

                                                                                    /s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8^th Floor, Chicago, IL 60604

Daniel W. Wolff, Esq., Crowell and Moring, 1001 Pennsylvania Ave., NW Washington, DC 20004-2595