FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
OFFICE OF
ADMINISTRATIVE LAW JUDGES
TELEPHONE:
202-434-9958 / FAX: 202-434-9949
January 18, 2013
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner v. HOPKINS COUNTY COAL, LLC, Respondent
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CIVIL PENALTY PROCEEDING
Docket No. KENT 2010-975 A.C. No. 15-8826-213963 Docket No. KENT 2010-1163 A.C. No. 15-18826-219379 Mine: Elk Creek |
DECISION
Appearances:
Hopkins County Coal, LLC, 771 Corporate
Drive, Suite 500, Lexington, KY 40503, for Respondent
Before: Judge Rae
This case is before me upon a
petition for assessment of a civil penalty under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
On January 14, 2010 Hopkins County
Coal (“HCC”) experienced an ignition in the No. 8 entry of its No. 4 unit at
the Elk Creek Mine. Shortly after the
ignition, the Mine Safety and Health Administration (“MSHA”) issued a control
order that required Respondent to stop production on the No. 4 unit. HCC and MSHA negotiated a revised ventilation
plan on January 15, 2010. Both parties
negotiated in good faith, but had different theories on the cause of the ignition. Correspondingly, the parties had different views
on how changes in the ventilation plan would address the cause of the ignition.
HCC requested a technical violation so that it could challenge three revisions
to its ventilation plan. MSHA issued the
technical violation on January 19, 2010.
This litigation ensued.
HCC challenges three revisions requested
by MSHA because it believes they bear no rational relationship to the cause of
the ignition. The three contested provisions apply only to HCC’s Number 4 unit,
as opposed to the entire mine. The first
contested item would change the quantity of air that should be maintained at
the end of the line curtain from 7,000 c.f.m. when the scrubber is running and
5,800 c.f.m. when the scrubber is not running to 7,000 c.f.m. at all times when
mining is taking place. The second contested item would increase the volume of
air over the scrubber from 5,000 c.f.m. to 7,000 c.f.m. The third contested revision would reduce the
maximum curtain setback distance from the face from 45 feet to 40 feet. The issues presented are whether MSHA has the
discretion to insist upon revisions, and, if so, whether the revisions are
arbitrary and capricious. For the reasons set forth below, I find that MSHA has
the discretion to require their inclusion in the plan and they are not arbitrary
or capricious.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
On January 14, 2010 there was an ignition
on the Number 4 unit, MMU 006 and 007 at Elk Creek Mine. Tr. 13, 41.
Elk Creek is an underground coal mine in
The ignition at Elk Creek occurred at
approximately 5:30 pm while a continuous miner was cutting coal in the No. 8
entry of HCC’s No. 4 section. Tr. 13, 247,
362, 437. One of the bits of the
continuous miner made contact with a pyritic inclusion[2] which
caused a spark that precipitated the ignition.
Tr. 385-87. The ignition lasted a
few seconds and resulted in no injuries.
Tr. 13, 388.
At the hearing there was a significant
amount of discussion about whether methane played a role in the ignition. The Respondent argued that methane in no way
played a part in the ignition and therefore MSHA’s additional
methane-controlling measures should not be in the revised ventilation
plan. MSHA argued that methane played a
role in the ignition and such measures must be in the ventilation plan.
Exacerbating the difficulty of
determining whether, and in what quantity, methane was present is the fact that
the methane monitor was out of calibration. Tr. 290. The methane monitor was located on the miner
and allowed the miner operator, car drivers, and anyone else in the vicinity to
see the amount of methane present when the head was cutting the face. Tr. 58-59.
Prior to ignition, the methane monitor read .8% methane. Tr. 60, 385-86, 424, 475. After ignition, the methane monitor read 1.7%
methane. Tr. 58, 60, 387-88. At the time of the inspection the methane
monitor read .5% “high.” Tr. 290.
Additionally, a reading on the methane
monitor does not reflect precisely how much methane is at the face. The “sniffer,” which detects methane, is
positioned approximately five to six feet away from the face. Tr. 459.
Therefore, the amount of methane at the face could be much higher than
the reading displays. Tr. 459.
HCC implied that because the methane
monitor was reading “high” on this one occasion (during the inspection) that it
always read “high.” However, two
witnesses for the Secretary testified that just because the methane monitor
read high on one occasion does not mean that it will read high on all
occasions.
The District
Manager, Carl Boone, II, responded to questioning…
Q. And you were made aware of the fact
that it was out of calibration to the high side; correct?
A.
I was made aware that the methane monitor was out of calibration. Whether it’s high or low indicates a problem
with the methane monitor. It’s not
always the same.
Tr. 290.
Similarly, MSHA Ventilation Specialist
Supervisor, David West, stated…
Q.
So at the alarm point at 1 percent, is there really only .5 percent
methane around that sniffer head?
A.
I can’t say for sure. I mean,
when it’s out of calibration either way, I can’t attest to what it’s actually
picking up even though it’s reading to the good side, like this one was reading
to the good side, like this one was reading 3.0 instead of 2.5. I can’t attest to how it’s going to actually
affect it.
…
…Q.
These methane monitors are sensitive, aren’t they?
A. Yes.
Q.
And they can be thrown out of calibration by exposure to heat; correct?
A.
They can be – a lot of things can change the calibration. I mean, I’m not necessarily saying that heat
can. There’s a variation of things. We check a lot of monitors.
Q.
They can be thrown out of calibration by exposure to water, too;
correct?
A.
Possibly.
Q.
And even though this was reading to the high side, it was a violation;
right?
A.
Correct.
Q.
So you had to write the citation.
But the methane monitor after the ignition was showing up to be more
sensitive than was required; right?
A.
After the ignition, yes.
Q.
And you can’t speculate to what it was doing before the ignition?
A.
No, sir.
Tr. 101-03.
There was also testimony as to the
significance of the color of the flame. The
eyewitnesses of the flame, Kenneth Myers, a Miner Operator for HCC, and Jason
Ipox, a Shuttle Car Operator for HCC, both testified that the flame was orange. Tr. 387, 422-23. Troy Johnson, Safety Technician for HCC,
testified that the color of the flame indicates the fuel source: an orange
flame indicates coal dust and a blue flame indicates methane. Tr. 444-45.
However, his testimony also showed that it is possible that the presence
of methane might be undetectable solely on the basis of flame color because the
methane could be subsumed or overpowered by a larger quantity of coal dust. Tr.
455-56. Furthermore, Doyle Wayne Sparks,
MSHA Ventilation Specialist, testified that the color of a flame is not
indicative of its fuel source.
Q.
During the course of your accident investigator training, have they ever
done any demonstrations of what a methane flame looks like?
A.
We have seen tests. I’ve heard it
both ways. I’ve heard it’s blue. I’ve heard it’s orange.
Tr. 96-97.
MSHA was notified of the ignition and
issued the 103(j) order at 5:40 pm. Tr.
48. Inspectors went to the mine, interviewed
miners and inspected the continuous miner.
Inspectors determined that the
presence of methane (Tr. 181), the suspension of coal dust (Tr. 182), the lack
of air being directed into the entry (Tr. 183-89), and the malfunctioning water
sprays on the continuous miner (Tr. 179) all contributed to the ignition.
After the ignition, MSHA issued a 103(j)
control order to cease production in the No. 4 unit to protect the scene,
protect evidence, and protect the miners.
Tr. 47. MSHA arrived at the scene
and conducted their investigation until approximately 4:00 am on January 15,
2010. Tr. 368. Prior to leaving the mine, MSHA issued a
103(k) order to continue the prohibition against production on the No. 4 unit
until HCC submitted and received approval of the revised ventilation plan. See
Tr. 110. On January 15, HCC submitted the
revised plan. Tr. 244. The revised plan included attempts to address
what HCC saw as the root cause of the ignition:
provisions to insure that continuous mining operators would cool and
wet-down areas in circumstances where sparks would be created or where miner
bits would hit inclusions. Tr. 246,
565-66. HCC also increased the number of
checks for miner bits and heads and mandatory examinations of the wet-bed
scrubber screen to guarantee a clear scrubber screen under normal mining
conditions. Tr. 246, 567. The District Manager denied the
submission. Tr. 246. Throughout the day on
January 15, MSHA had several conversations with management at HCC regarding the
ventilation plan. Tr. 252-53. At the end of the day, although HCC
implemented the changes in order to resume production, the parties still
disagreed about the need for the three contested provisions in the plan. Tr. 253.
HCC requested a technical violation[3]
pursuant to the Program Policy Manual V.G-4 (Release V-33), so that it could
challenge the three revisions, and was issued Citation No. 8498208 on January
19, 2010. Tr. 267-69.
The
Secretary’s Position
The Secretary argued that MSHA’s
revisions were not arbitrary and capricious and that HCC did not negotiate in
good faith. Regardless of whether the
provisions at issue would have prevented the ignition on January 14, 2010, the
Secretary argues that they will reduce the likelihood of future ignitions at
Elk Creek Mine. Secretary’s Post-
Hearing Brief at 6, Hopkins County Coal (KENT 2010-974, -1163)(2012).
MSHA alleges a violation of 30 C.F.R. §
75.370(a)(1), which states that an operator must follow a ventilation plan
designed to control methane and respirable dust which is approved by the
district manager.[4] The framework for resolving plan disputes is
laid out in Twentymile Coal Co., 2008
WL 4287782, 10-11 (August 2008) and C.W.
Mining Co., 18 FMSHRC 1740, 1746 (Oct. 1996). “Absent bad faith or arbitrary action, the
Secretary retains the discretion to insist upon the inclusion of specific
provisions as a condition of the plan’s approval.” C.W.
Mining Co., 18 FMSHRC at 1746. Furthermore,
the Secretary must exercise her own judgment with respect to the content of
ventilation plans. UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989)(quoting S. Rep.
No. 95-181, at 25)(1977).
MSHA’s District Manager, Carl Boone, relied
on information obtained during the investigation, the recommendations of his
colleagues, and his own experience in the mining industry and determined that
the provisions in the ventilation plan should be included.[5] The Secretary argues that the District
Manager did not act arbitrarily when he insisted upon including the provisions
in contest. The revisions requested would increase the air flow in the working
areas, which would sweep out any methane and dust that had accumulated. The Secretary acknowledges that the provisions
in contest may not have prevented the ignition on January 14, but argues that
they do lower the likelihood of a future ignition at the mine. Matt Pride, HCC’s Safety Director, conceded at
trial that MSHA’s revisions would reduce the likelihood of future
ignitions. Tr. 513-15. Brian Kelly, HCC’s Engineering Manager, also
agreed that the provisions would improve ventilation. Tr. 547.
The Secretary also argues that HCC did
not negotiate in good faith. The Secretary states that the Commission has held
that mine operators and MSHA must negotiate in good faith for a reasonable
period of time concerning disputed plan provisions. Carbon
County Coal Co., 7 FMSHRC 1367, 1371(1985).
There are two elements to good faith-notice of a party’s position and
adequate discussion of disputed provisions.
C.W. Mining, 18 FMSHRC at 1747.
The Secretary argues that the Respondent
HCC did not negotiate in good faith because it refused to recognize that
methane contributed to the ignition, even though it was present before and
after the ignition. The Secretary states
further that even if there was not any methane present when the ignition
occurred, HCC must still yield to MSHA’s plan revisions because the Commission
has held that MSHA is not required to prove the hazard addressed by a new plan
provision either exists or is reasonably likely to occur. Peabody
Coal Co., 18 FMSHRC 686, 690 (May 1996).
Therefore, the Secretary argues that HCC failed to negotiate in good
faith because it refused to recognize the facts and bargain over plan
provisions that addressed methane, a fuel source, which was present at the time
of ignition.
The
Respondent’s Position
HCC believes that the ignition on
January 14 was a coal dust ignition, which resulted when the continuous mining
unit struck a pyritic inclusion. Tr.
386-87. When the continuous miner hit
the inclusion, sparks were generated that resulted in the ignition of an orange
flame. The miners in the area at the
time reported seeing an orange flame with no hint of blue, and reported hearing
no pops, sonic booms, or sounds of any kind.
Tr. 386-87, 423. Witnesses
testified at the hearing that coal dust flames are typically orange in color
and have no noises associated with them, while methane flames are typically
blue. These facts led HCC to believe
that the ignition was fueled solely by coal dust and that methane played no
part in the ignition.
Upon this theory of the cause of the ignition,
HCC asserts two bases to challenge MSHA’s actions: first, MSHA lacks the authority to make
demands for ventilation plan changes for a coal dust ignition, and second,
MSHA’s demands were arbitrary and capricious.
HCC asserts that the plain language of 30
C.F.R. § 75.370(a)(1) proves that MSHA does not have the authority to regulate ventilation
plans after a coal dust ignition. 30
C.F.R. § 75.370(a)(1) states that the operator shall develop and follow a
ventilation plan designed to control “methane and respirable dust.” HCC argues that respirable dust is not coal
dust.[6] Furthermore, it argues that nothing was
offered by the Secretary to suggest that respirable dust concerns were the
basis for MSHA demanding HCC change its ventilation plans. It also argues that the cited standard does not give MSHA the authority to regulate hazards posed
by coal dust because MSHA’s enforcement authority for regulation of coal dust
is contained in 30 CFR § 75.401 and that provision does not concern ventilation
plans.[7]
“The
agency must examine the relevant data and articulate a satisfactory explanation
for its action including a ‘rational connection between the facts found and the
choice made.’” Twentymile Coal, 2008
WL 4287782 at *16 (Aug. 2008)(Commissioners Jordan and Cohen)(quoting Motor Vehicle Mfr’s Ass’n v. State Farm Mut. Auto Ins. Co., 463
ANALYSIS
The first issue raised is whether MSHA
had the discretion to demand ventilation plan changes from HCC as a result of a
coal dust ignition. I find that they do.
Section 304(a) of the Mine Act, 30
U.S.C. § 864(a), identifies coal dust, float coal dust, loose coal, and other
“combustible materials” as combustible.[8] The purpose of a ventilation plan is to
control the accumulation and ignition of combustible materials. The ventilation plan, as described by 30
C.F.R. § 75.370(a)(1), is clearly designed to control both methane and respirable dust.
Respirable dust is a general term that refers to any dust that can be
inhaled and contains small particles of coal dust.[9] Therefore, assuming the ignition was caused
solely by coal dust, MSHA has the authority to regulate it via the ventilation
plan.
It is possible that methane was present
in the area and contributed to the ignition.
The Commission has already found that methane is ignitable at a one to
two percent concentration and is explosive at a five to fifteen percent
concentration. Texas Gulf Inc,. 10 FMSHRC 498, 501 (April 1988); Tr. 151. The
methane monitor read .8% methane before the ignition and 1.7% after the
ignition. Nothing in evidence can
definitively prove that methane was present in a concentration lower than
1%. The vast majority of mine ignitions
have a combination of methane and coal dust as a fuel source. Methane levels can spike very quickly.
Furthermore, when the sniffer cap gets stopped up the methane monitor will give
a false reading. Tr. 179-80. Quite frankly, it is impossible to know how
much methane was present at the time of ignition, given the unreliability of
the methane monitor and its 5-6 foot distance from the face. It is entirely possible that the ignition was
caused by a spike in methane.
In addition, the color of the flame is
not dispositive of the ignition source.
The witnesses all testified to an orange flame, but the court heard
testimony that a methane flame may be blue or orange. Therefore, neither the color of the flame,
nor the readings of the methane monitor can definitively prove that methane was
not a contributory cause of the ignition.
The next issue is whether the changes in
the ventilation plan have a rational relationship to the cause of the ignition,
in other words, whether MSHA’s insistence on the revisions was arbitrary,
capricious, or constituted an abuse of discretion. I find MSHA’s changes bear a rational
relationship to the cause of the ignition.
The standard to be applied to a District
Manager’s denial of approval of an operator’s ventilation plan is “arbitrary,
capricious, or abuse of discretion.” Mach Mining, LLC, 34 FMSHRC __ slip op.
at 4-5 No. LAKE 2010-R-1, LAKE 2010-R-2, LAKE 2010-714 (Aug. 9, 2012). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its
judgment for that of the agency.” Twentymile
Coal Co., 30 FMSHRC 736, 754-55 (Aug. 2008) (quoting Motor Vehicle Mfr's Ass'n v. State Farm Mut. Auto. Ins. Co.,
463
The issue is whether the Secretary of
Labor properly exercised her discretion and judgment in the plan approval
process. Mach Mining, FMSHRC __ slip op. at 4 No. LAKE 2010-R-1, LAKE
2010-R-2, LAKE 2010-714 (Aug. 9, 2012).
The Secretary bears the burden of showing that the actions of the
District Manager in his review and decision-making regarding the plan were not
arbitrary and capricious.
Here, the Secretary proved that the
actions of the District Manager were not arbitrary and capricious. MSHA
conducted an investigation into the ignition that resulted in strong evidence
that coal dust played a role in the ignition and inconclusive evidence as to
methane’s role in the ignition.
I.
Background Information on Ignitions
Q: What causes an ignition in a coal
mine?
A: Usually, the lack of ventilation. And the lack of ventilation allows methane to
build up; or insufficient amount of ventilation, you get methane, coal dust,
and sparks.”
Tr.
32.
An ignition in a coal mine happens when
you have a fuel source, an ignition source, and oxygen; this is commonly
referred to as the “fire triangle.” Tr.
94, 133. Methane, coal dust, or a
combination of the two can serve as a fuel source and oxygen is present in an
underground coal mine.[10] Tr. 133, 134, Tr. 324. Ignition sources are things that can cause
sparks, such as the bits on a continuous miner, or electrical equipment used on
the section. Tr. 134-35. When the miner bits hit substances harder
than coal, they tend to spark. Tr. 106.
Elk Creek was a gassy mine that had
prior ignitions. David West, MSHA Ventilation
Specialist Supervisor, and Carl Boone, District Manager, testified that there
were two other ignitions at Elk Creek prior to the ignition in question. Tr. 133, 241.
He also testified that at the time the ignition occurred, Elk Creek was
liberating 995,000 cubic feet of methane in a 24 hour period. Tr. 139.
Currently, Elk Creek liberates four and a half million cubic feet of
methane in a 24-hour period. Tr.
140. At the time of the ignition, Elk
Creek mine was on a five-day 103(i) spot series because of the large quantities
of methane it liberated. Tr. 137. David West stated that Elk Creek was probably
the gassiest mine in his district. Tr.
137. Carl Boone, MSHA District Manager,
said that the mine was “[v]ery gassy.”
Tr. 241. When David West was
questioned as to the significance of liberating that much methane he stated, “[i]t
tells the mine operator that they’re liberating a lot of methane and they need
to be staying on top of their safety plan and ventilation plans… You know, it
tells us there’s methane there.” Tr.
140. Methane gets into a coal mine when
it is liberated from the coal face and coal ribs. Tr. 150-51.
Carl Boone, District Manager, stated in
testimony that a methane monitor’s reading after an ignition might not
accurately read the amount of methane present, as methane tends to burn off
during an ignition…
Q. There was no signs that methane was
involved in this ignition, were they [sic]?
A.
Yes. We had about eight-tenths,
they found methane all day long. After
the ignition occurred, the guys turned around and they see 1.7 on the methane
monitor. Well, when you’ve had that
ignition, be it a dust or methane ignition, it burned out other methane that
was in the place, and it got down to 1.7 or 1.25 or 2. If it was there, it got down to that point
there. But to me, it burned off methane.
Q.
You’re not aware of any facts that support that conclusion; right?
A.
I don’t think you can have a fire and not burn off methane. It’s going to burn the fuel that’s in the
place. It’s going to burn a lot of the
dust, it’s going to burn a lot of methane, but it didn’t burn all of
either.”
Tr.
296-97.
Coal dust is a byproduct of the work of
mining- it is typically seen when miners cut the face and the bits grind the coal.
Tr. 151. David West, MSHA Ventilation
Specialist Supervisor, stated that it’s “a fact of the mining industry” that
coal mining produces dust. Tr. 151.
Methane and coal dust can ignite in the
presence of oxygen and sparks. The presence of coal dust lowers the
concentration of methane needed to ignite.
Wayne Sparks, MSHA Ventilation Specialist, testified that “you can have
a methane and coal dust ignition with less than five percent. Some say two; some say even less than two
percent methane. In the presence of coal
dust, you can have an ignition.” Tr.
120-21. David West, MSHA Ventilation
Specialist Supervisor, stated that when miner bits hit pyritic inclusions,
“usually, you get a lot of sparks.” Tr.
153. There are pyritic inclusions at Elk
Creek and David West stated that he found a pyritic inclusion that was cut in
half 26 inches from the head of the miner during his investigation. Tr. 153.
MSHA Ventilation Specialist Felix Caudill also noticed pyritic
inclusions in the section. Tr. 340.
II. The Quantity of Air Maintained at the End of
the Line Curtain
The quantity of air maintained at the
end of the line curtain affects the amount of methane and coal dust at the
face. MSHA requires mine operators to
maintain a certain amount of air at the end of their line curtains. Tr. 157.
Prior to the ignition HCC’s ventilation plan required that 7,000 c.f.m.
of air should be maintained at the end of the line curtain while the scrubber
was running and 5,800 c.f.m. while the scrubber was not running. MSHA requested HCC to change its ventilation
plan so that the quantity of air maintained at the end of the line curtain
would be 7,000 c.f.m. at all times. MSHA
required other mines to maintain 7,000 c.f.m. at the end of the line curtain without
the scrubber running. Tr. 114. David West, MSHA Ventilation Specialist
Supervisor, testified that during his investigation of Elk Creek he measured
the velocity of air at the end of the line curtain and it was 5,600 c.f.m. Tr. 150.
Felix Caudill, an MSHA Ventilation Specialist who was also present at
the scene, took a second reading of the velocity of air at the end of the line
curtain and found it to be 6,700 c.f.m. He
stated that the purpose of ventilating a coal mine – keeping the air flowing at
the end of the line curtain at a certain quantity- was to dilute and render
harmless the air, and sweep away any poisonous gases and dust. Tr. 150.
Carl Boone, MSHA District Manager gave similar testimony. Tr. 265.
Air is supposed to deflect from the line curtain, come up to the face,
sweep the corners of dust and methane, and flow out of the mine. Tr. 155.
If a mine has low air, the air will go into the last open crosscut and deflect
from the line curtain in a figure eight pattern, instead of moving to the face
and sweeping dust and methane away, testified David West. Tr. 154.
He stated that the air does a figure eight pattern because there is not
enough pressure to push the air to the face; a figure eight pattern results in
a build-up of methane and/or dust at the face.
Tr. 154. The quantity of air at the
end of the line curtain is related to the amount of air that will get to the
face of the mine, testified David West.
“The more you have in your line curtain, the more you sweep the corners
of the face.” Tr. 157. Here, the testimony of David West clarifies
the import of the amount of air maintained at the end of the line curtain.
Q: “If a mine operator increases the
quantity of air that’s traveling behind the line curtain, and if we assume that
there’s dust and methane that’s present in the entry, would the increase in air
behind the line curtain dilute and render harmless the dust and methane that’s
present at a faster rate than it would otherwise be reduced if the mine
operator did not increase the air at the end of the line?
A: Yes, it would….
…
Q:…Can you explain what you mean when
you say yes, it would [sic]?
A.
Well, if you—say you doubled your air flow, which in this case they
didn’t double the air flow. But if you
doubled your air flow—
Q.
We’re talking about the air flow at the end of the line curtain?
A.
Yes, end of the line curtain. And
all that air got to the face, then it would cut your methane in half. I mean, it’s a direct relationship, and the same
thing with dust.
Tr.
160-61.
Any equipment near the face of the mine,
such as a continuous miner, will obstruct the air flow. Tr. 158, 256.
Elk Creek used a continuous miner in the No. 8 entry, that was approximately 35 feet long. Tr. 159.
Carl Boone, District Manager, stated that an increase in air flow was
necessary because at the time of the ignition, Felix Caudill, MSHA Ventilation
Specialist, reported 6,700 c.f.m. and “we got 6,700 cubic feet of air up there,
and we had an ignition of something.”
Tr. 256.
At hearing, MSHA employees testified
that they wanted to increase the amount of air at the end of the line curtain
to better sweep the face of dust and methane. Wayne Sparks, MSHA Ventilation
Specialist, and lead investigator on the investigation stated, “We asked for
seven at the line curtain without the scrubber.
We were just trying to get more air to the face to render—to dilute the
gas.” Tr. 116. David West, MSHA Ventilation Specialist
Supervisor, testified that the air at the end of the line curtain at Elk Creek was
too low, and contributed to the ignition.
Tr. 183. He said, “We’re required
to maintain enough air at the end of the line curtain to render and carry away
harmful gases and dust. In this
situation, with everything else that was there, it needed to be increased.” Tr. 183.
Here, the District Manager evaluated the
facts gleaned from the investigation of Elk Creek. MSHA determined that HCC had enough air at
the end of the line curtain to meet its ventilation plan requirements and still
had an ignition; therefore, MSHA determined that the ventilation plan
requirements for the end of the line curtain needed to be increased to better
sweep away coal dust and methane from the face and to lessen the chance of
another ignition. MSHA noted that
methane was present before and after the ignition in quantities that may lead
to an ignition in combination with coal dust, and increased the amount of air
at the end of the line curtain to dilute and render harmless the methane. Therefore, I find that MSHA’s action to
change the amount of air at the end of the line curtain from 7,000 c.f.m. when
the scrubber is running and 5,800 c.f.m. when the scrubber is not running to
7,000 c.f.m. at all times when mining is taking place was rationally related to
the facts of the ignition and was not arbitrary and capricious.
III.
The Curtain Setback Distance from the Face
The distance that the line curtain is
set back from the face affects the ventilation of the face. A curtain is a piece of material that is cut
to fit the mine. Tr. 155. It is hung on the mine walls using nails or
ties and is supposed to drape from the top of the mine to the floor of the
mine. Tr. 155. MSHA requires mine operators to maintain line
curtains within a specified distance of the face as part of their ventilation
plans, testified David West, MSHA Ventilation Specialist Supervisor. Tr. 161.
MSHA does this to “control the methane and respirable dust, coal dust up
in the faces [sic].” Tr. 161. Bill Adelman, General Manager of HCC,
testified that it is common knowledge that a line curtain closer to the face
will do a better job of ventilating the working place. Tr. 587; see
Testimony of David West, MSHA Ventilation Specialist Supervisor, Tr. 162; see also
Testimony of Carl Boone, District Manager, Tr. 263.
HCC had a “deep cut plan,” at Elk Creek
Mine, which means that HCC made cuts of over 20 feet. Tr. 162.
David West testified that a “deep cut plan” harms ventilation because
the curtain is farther back from the face, so the amount of air getting to the
face is decreased during the cut. Tr. 163. Carl Boone, District Manager, stated that he
believed the reason Elk Creek had an ignition was because there was not enough
air in the mine and the curtain needed to be closer to the face. Tr. 255-56.
David West testified, that he believed that reducing the curtain setback
distance from the face to 40 feet and increasing the amount of air maintained
at the end of the line curtain to 7,000 c.f.m. at all times would decrease the
amount of methane and coal dust at the face, reduce respirable dust, and reduce
the occurrence of ignitions and explosions.
Tr. 189, 192. He also indicated
that he did not believe it would be difficult for a mine operator to maintain
these conditions and that they were in place at other mines. Tr. 190-91.
MSHA’s decision to decrease the
curtain setback distance from the face from 45 feet to 40 feet was not
arbitrary and capricious. As HCC
admitted at trial, it is common knowledge that moving the curtain closer to the
face does a better job of ventilating the working place. HCC had an ignition at Elk Creek due to coal
dust and, arguably, methane. Therefore,
the requirement for HCC to reduce its curtain setback distance is a rational
plan revision that will better sweep the face of coal dust and methane. I find that MSHA’s requested plan revision to
reduce the curtain setback distance from 45 feet from the face to 40 feet from
the face was not arbitrary and capricious.
IV.
The Volume of Air Over the Scrubber
The volume of air passing over the
scrubber affects the ventilation of the working place. MSHA requires that mine operators keep their
scrubbers operating at a minimum scrubber capacity, meaning a specified minimum
volume of air that should be blown through the scrubber while cutting
coal. Tr. 166. The scrubber capacity refers to the quantity
of air that is blown through the scrubber.
Tr. 166. The wet bed scrubber, or
“scrubber” is located inside the continuous miner. Tr. 73, 164.
The wet bed scrubber pulls dust away from the face and releases it
behind the mining unit to reduce the dust in the air and pull air and dust away
from the face. Tr. 73, Tr. 165. The fan in the scrubber pulls air out of the
hood of the miner, away from the face, and takes it through duct work toward a
screen. Tr. 73, 164. Then, the air is pulled through a 20-layer
pleated screen that is sprayed with water jets to settle the dust that comes
through the screen. Tr. 164. David West also testified that the scrubber
is also used to help reduce methane. Tr.
165. The scrubber requires a certain
quantity of air to be sucked off the cutting drum in order to work
properly. Tr. 165. The screen can get dirty, which results in
less air being sucked through the scrubber.
Tr. 165-66. David West, in his
testimony, stated that he was unaware of any manufacturer that says you can
operator a scrubber as low as 5,000 c.f.m.
Tr. 168. He testified that the
manufacturer of the continuous miner used in the incident in question probably recommended
a minimum capacity of between 7,000 c.f.m. and 10,000 c.f.m. Tr. 167.
HCC General Manager, Bill Adelman,
admitted that it is common knowledge that more air in the working place will
better sweep out methane and dust. Tr.
586-87. Carl Boone similarly testified
that increasing the minimum scrubber volume would protect miners by providing
better ventilation to the face. David
West, MSHA Ventilation Specialist Supervisor, testified that the air that is
being directed into the entry behind the line curtain can affect the amount of
dust that the scrubber is able to pick up off the head of the miner because “if
you get the air flow at the end of the line curtain to match more [sic] what
the scrubber would pull normally, then there’s a better chance that the air at
the end of that line curtain is going to reach up into the face further and
sweep that dust out to where that scrubber can pick it up.” Tr. 170.
Furthermore, David West testified that “if you don’t have enough line
air behind the end of the line, that scrubber exhaust will circulate back up
over and under your line curtain and go back into the face.” Tr. 173.
If the air recirculates, he explained, the dust and methane in the
scrubber exhaust will circle back to the face.
Tr. 174. David West testified
that he did not think it was difficult to keep a scrubber operating at a
capacity of 7,000 c.f.m. and that he thought that the scrubber volume working
close to the minimum capacity allowed in the plan contributed to the
ignition. Tr. 179-81. He said that the scrubber, “Just wasn’t
diluting the methane and the dust that was up in the face” and was not properly
pulling it away from the face. Tr. 181. He
stated that adjusting the scrubber volume to match the air maintained at the
end of the line curtain was necessary for the scrubber to work properly. Tr. 189.
I find that MSHA’s actions were not
arbitrary and capricious when MSHA increased the minimum volume of air over the
scrubber. MSHA increased the amount of
air that should be maintained at the end of the line curtain and testimony
showed that it is important for the scrubber volume to mirror that. Increasing the volume of air over the
scrubber will also better clean the face of dust and methane and decrease the
likelihood of an ignition. Because the
ignition was caused by poor ventilation of the face, I find that MSHA’s
revision to increase the volume of air over the scrubber from 5,000 c.f.m. to
7,000 c.f.m. was rationally related to the cause of the ignition.
The revised standards required by the
District Manager are a part of a comprehensive plan developed through
negotiations between MSHA and HCC to address both coal dust and methane. The
revisions requested by the District Manager bear a rational relationship to the
facts because the revisions increase the air flow at the face, which dilutes
the concentration of methane and accumulated dust, lowering the risk of a
methane ignition and propagation of a fire.
Since the facts indicate that methane could have played a part in the
ignition, I find that the District Manager’s explanation for including the
contested revisions bears a rational connection to the facts.
Furthermore, I have trouble believing
HCC’s claim that the Secretary acted in an arbitrary and capricious manner.
Bill Adelman, General Manager of HCC, admitted in testimony that HCC’s
objections to the plan revisions were not because of what MSHA wanted to
include in the plan, but because he thought MSHA added the revisions in an
underhanded manner. Tr. 589. He testified
that the changes did not affect production costs in time, manpower or money; he
was objecting on principal alone.
The Secretary argues that HCC negotiated
in bad faith. I do not find that they
did. HCC is entitled to an opinion on
whether methane was involved in the ignition.
HCC and MSHA exchanged various proposed changes to the plan which HCC
ultimately accepted under protest.
Finally, HCC argues that because MSHA’s
plan revisions apply to only one section of the mine, MSHA’s changes were
arbitrary and capricious. HCC also feels
that MSHA had improper motives because there has never been an ignition on any
of the other sections of the mine despite their operating under the original
ventilation plan. However, it is apparent from the testimony of MSHA District
Manager, Carl Boone, that MSHA was uncomfortable with the fact that the
revisions would only apply to one unit. His
testimony states that MSHA originally requested that the ventilation plan
revisions be applied to all units on the mine, but sacrificed that request in
order to further negotiations.
A. So we finally come up with a plan
that we’re going to agree off [sic] to that’s not way far off. It wasn’t what I wanted, but I tried to work
with them and get to where that we could get a plan that we felt like we could
live with and that would absolutely protect the safety of the miners in the Elk
Creek mine from a methane or dust ignition, to have that—I wanted it all over
the whole mine to start with. But it
wasn’t going there and everything. And I
can remember distinctly—
Q.
You said it wasn’t going there.
Why wasn’t it going there?
A.
They didn’t want it to go there.
So I remember distinctly saying, Bill, heaven forbid you have another
ignition, because you’ll get it on all sections. I’m going to go along with what y’all
submit. But heaven forbid you have
another one. We’re going to do it on all
the sections.
…..
Q.
Now, there’s been much made of this today, that these provisions at
issue only apply to the No. 4 unit. Can
you explain why that is, why these three provisions were restricted to the No.
4 unit?
A.
It’s called negotiations…We would rather have had it for the entire mine
and what have you, but we didn’t get that.
We didn’t get the 30 feet—there’s just a lot of things we didn’t get,
but it was all in the spirit of just being cooperative, but yet getting
something that would protect the miners and hopefully not have another
occurrence like this.”
Tr. 253, 266-67.
Therefore, I find that the revisions
requested by the District Manager bear a rational relationship to the
facts. They seek to reduce the
accumulation of respirable dust and methane by increasing the volume of air at
the end of the line curtain to 7,000 c.f.m. at all times when mining is taking
place, increasing the volume of air over the scrubber to 7,000 c.f.m., and
decreasing the distance that the line curtain should be set back from the fact
to 40 feet.
The violation is AFFIRMED and the Respondent is ORDERED
to pay the civil monetary penalty proposed by the Secretary.
/s/
Priscilla M. Rae
Priscilla
M. Rae
Administrative
Law Judge
Distribution:
Matt
S. Shepherd, Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219-2440
Gary
D. McCollum, Assistant General Counsel, Hopkins County Coal, LLC, 771 Corporate
Drive, Suite 500, Lexington, KY 40503, for Respondent
/mep
[1] A 103(i) spot
series draws its name from the Mine Act, Section 103(i), 30 U.S.C. §
813(i). Tr. 135. The section states, “(i) Spot inspections. Whenever the Secretary finds that
a coal
or other mine liberates excessive
quantities of methane or other explosive gases during its operations, or that a
methane or other gas ignition or explosion has occurred in such mine which resulted in death or serious injury at any time
during the previous five years, or that there exists in such mine
some other especially hazardous condition, he shall provide a minimum of one
spot inspection by his authorized representative of all or part of such mine during every five working days at irregular intervals.
For purposes of this subsection, “liberation of excessive quantities of methane
or other explosive gases” shall mean liberation of more than one million cubic
feet of methane or other explosive gases during a 24-hour period. When the
Secretary finds that a coal or other mine
liberates more than five hundred thousand cubic feet of
methane or other explosive gases during a 24-hour period, he shall provide a
minimum of one spot inspection by his authorized representative of all or part
of such mine every 10 working days at irregular
intervals. When the Secretary finds that a coal or other mine liberates more than two hundred
thousand cubic feet of methane or other explosive gases during a 24-hour
period, he shall provide a minimum of one spot inspection by his authorized
representative of all or part of such mine every
15 working days at irregular intervals.”
[2] A pyritic
inclusion is also known as a “head” or “kettlebottom.” It is a form of hard rock. When a miner bit hits a pyritic inclusion, it
often causes a spark. Tr. 63.
[3] “When the operator and the Secretary are unable to
resolve a dispute concerning a plan's provisions, the Secretary may issue a
citation alleging a violation for operating without an approved plan, which is
sometimes referred to as a “technical citation,” so that the matter may be
litigated before, and resolved by, the Commission.” Mach Mining, 2012 WL 4471152 at 27 (Aug. 2012).
[4] “The operator shall
develop and follow a ventilation plan approved by the district manager. The plan shall be designed to control methane
and respirable dust and shall be suitable to the conditions and mining system
at the mine.”
[5] The District
Manager is an experienced coal miner, who has worked in the mine industry and
in mine safety since 1965.
[6] In so arguing, HCC relies on the regulation’s
definition of coal dust which states, “Respirable Dust. Dust collected with a sampling device
approved by the Secretary and the Secretary of Health and Human Services in
accordance with part 74- Coal Mine Dust Personal Sampler Units of this
title. Sampling device approvals issued
by the Secretary of the Interior and Secretary of Health, Education, and
Welfare are continued in effect.” 30 CFR
75.2.
[7] 30 C.F.R. §
75.401. Where underground mining
operations in active workings create or raise excessive amounts of dust, water
or water with a wetting agent added to it, or other no less effective methods
approved by the Secretary or his authorized representative shall be used to
abate such dust. In working places,
particularly in distances less than 40 feet from the face, water, with or
without a wetting agent, or other no less effective methods approved by the
Secretary or his authorized representative, shall be applied to coal dust on
the ribs, roof, and floor to reduce dispersibility and to minimize the
explosion hazard.”
[8] “Coal 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 electric equipment therein.”
[9] Coal dust is
“particles of coal that can pass a No. 20 sieve,” 30 C.F.R. § 75.400-1, which means pieces of
coal that can pass through a No. 20 sieve and smaller. Coal dust that is small enough to be inhaled
is referred to as respirable coal dust. See Alabama By-Products Corp., 2
FMSHRC 422, 423 (Feb. 1980).
[10] David West,
Ventilation Specialist Supervisor for MSHA, also testified that sulfuric gas
could act as a fuel source when there are pyritic inclusions in a mine. Tr. 134.