FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

January 31, 2012

DECISION

Appearances:  J. Matthew McCracken, Esq., U.S. Department of Labor, Office of the Solicitor,  Arlington, Virginia, for Petitioner;

                        Melissa M. Robinson, Esq., Jackson Kelly, PLLC, Charleston, West Virginia,  for Respondent.

Before:            Judge Paez

This case is before me upon the Petition for Assessment of Civil Penalty filed by the Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (2010) (“Mine Act”). Pine Ridge Coal Company, LLC (“Pine Ridge”), contests two orders issued under section 104(d)(2) of the Mine Act arising from an inspection of its Big Mountain No. 16 mine. The parties have stipulated to my jurisdiction over this matter, as well as the Secretary’s jurisdiction over Pine Ridge’s operations at Big Mountain No. 16. (Sec’y Br. 2.)

I. Statement of the Case

            The Secretary filed her petition against Pine Ridge for six alleged violations of her mandatory safety standards. Pine Ridge timely filed its Answer, and thereafter the case was assigned to me. I held the hearing in this matter in Charleston, West Virginia.

            At the hearing, the parties reported that they had resolved four of the six alleged violations in this docket. The two remaining violations, Order Nos. 7269756 and 7269757, were issued on May 16, 2007, and assert, respectively, that Pine Ridge violated 30 C.F.R. § 75.370(a)(1) (2006), by breaching its mine ventilation plan through ineffective ventilation controls in the 023 MMU return entry, and 30 C.F.R. § 75.364(b)(2), by failing to conduct an adequate weekly examination of the return entry. The Secretary asserts that both orders involve significant and substantial (“S&S”) violations arising from Pine Ridge’s unwarrantable failure to comply with the cited mandatory safety standards. The Secretary proposes a civil penalty of $45,000 for each of these violations for a total proposed penalty assessment of $90,000.

            The Secretary presented one witness, Gary L. Frampton, the MSHA inspector who issued the orders contested in this case. (Tr. 9–63.) Pine Ridge also presented one witness, Big Mountain No. 16 Mine Superintendent Chris Matkins. (Tr. 64–120.) The parties submitted post-hearing briefs following receipt of the transcript.

II. Issues

            The Secretary asserts that the conditions were properly cited as violations and that the S&S and unwarrantable determinations are valid. She further submits that in analyzing whether a violation of an operator’s ventilation plan is S&S, the Commission should assume the occurrence of the event the plan was designed to prevent or lessen in severity. Pine Ridge denies that any violations occurred and denies the allegations set forth in the orders. The operator further contends that if the orders are not vacated then they should be modified to non-S&S section 104(a) citations, inasmuch as the facts do not support the S&S and unwarrantable failure designations.

            Accordingly, the following issues are before me: (1) whether the cited conditions were violations of the Secretary’s mandatory health and safety standards; (2) whether the Secretary’s assertions regarding the gravity and S&S determination are supported by the record; (3) whether the Secretary’s determination that the violations constitute unwarrantable failure on the part of Pine Ridge is supported by the record; and (4) whether the proposed civil penalties are appropriate.

            For the reasons that follow, Order Nos. 7269756 and 7269757 are hereby AFFIRMED.

III. Findings of Fact

A.        Big Mountain No. 16’s Ventilation System

            Big Mountain No. 16 uses a “blowing” ventilation system to circulate fresh air through its mine. (Tr. 12.) A fan at the mine’s surface generates pressure by pushing air from outside into the mine, which circulates through the mine’s interior via main tunnels known as “entries” and smaller tunnels that perpendicularly intersect them, which are known as “crosscuts.” (Id.) Fresh air from the surface, known as “intake air,” follows a carefully prescribed route, and various specialized structures, such as regulators, seals, stoppings, and overcasts, ensure that the air follows its designated path. (Ex. R-1.) These structures guide the air by relying on the fundamental fact that air will move from areas of higher pressure to areas with relatively lower pressure. (Tr. 92, 106–07.) As fresh air passes through the mine it collects methane gas, coal dust, and rock dust emitted by the mine itself, as well as in areas where miners are removing coal. (Tr. 12.) The contaminated air, known as “return air,” is then directed out of the mine via a separate route. (Id.) At the time the orders in this case were issued, Big Mountain No. 16’s specific blowing ventilation system used two fans on the surface to circulate fresh air through the mine. One fan blew fresh air along the belt corridor system and ventilated seals on that side of the mine. (Id.) The other fan, located at the main portal, ventilated the rest of the mine, including the areas where miners worked. (Id.)

            An important element of Big Mountain No. 16’s ventilation system is the overcast, which ensures proper ventilation at the intersection of entries carrying two different airflows. When properly constructed, an overcast prevents air flowing through one entry from mixing with air flowing through the other entry where they intersect. In the 023 MMU return entry at Big Mountain No. 16, management had constructed three new overcasts. The overcasts were built by erecting two cinder block and mortar walls spanning the width of the intersection and up to a height of approximately five feet, or about half the height of the mine entry. (Tr. 17.) Then, pieces of metal decking, forming what is known as a “Kennedy panel,” were laid across the top of the walls. (Tr. 17, 71–72.) The pieces of metal decking were approximately twenty-feet long, two-feet wide, and six-inches thick. (Tr. 17, 72.) To increase their load-bearing capacity, each piece is hollow with three- to four-inch solid caps at its ends, as well as a solid lip running around its edges, such that when the panel is laid across the walls, it resembles an upside-down canoe. (Tr. 22, 76, 79; Ex. J-5, at 126.) Finally, two other cinder block walls were built on top of them, spanning the width of the entry running perpendicular to the entry blocked by the bottom two walls. (Tr. 70.) The overcasts were finished with a coat of plaster to seal the air and ensure the two air courses remained separate. (Tr. 73.) Walkways were also built over the lower walls covered by the Kennedy panel to allow miners to cross over the top of the overcast. (Tr. 18, 70–71.) In addition to these walkways, each overcast featured a doorway built into its lower wall known as a “man door” to allow miners access to the other entry spanned by the overcast. (Tr. 70–71.)

            Once finished, the overcast’s lower walls direct air flowing through the entry over the Kennedy panel and through the intersection. The walls on top of the Kennedy panel prevent this air from commingling with air passing perpendicularly through the other entry. In turn, the overcast’s upper walls channel the air passing through the intersection by directing it underneath the Kennedy panel. The Kennedy panel and the lower walls prevent this air from mixing with the air flowing above the Kennedy panel.

            Maintaining a proper ventilation system is vital to ensuring a safe environment in the mine. Company officials must comply with MSHA regulations regarding proper mine examination to ensure that ventilation problems do not exist. For example, if a fire occurs in one section of the mine and air from the section’s return entry is leaking through the overcast into the mine’s entry designated as an escapeway, then miners could be forced to escape through smoke-filled airways. (Tr. 32.) Moreover, return air contaminated with rock and coal dust from the working section could leak through a faulty overcast into the intake entry, contributing to the risk of respiratory diseases such as black lung. (Id.)

            On May 16, 2007, Pine Ridge was operating two mechanized mining units (MMU’s), the 022 MMU and the 023 MMU, in different parts of the mine. (Tr. 33.) This case concerns the ventilation controls in these two MMU’s, particularly the return air course from the 023 MMU. The fresh air ventilating these sections flowed nearly two-and-a-half miles into the mine from the mine fan blowing at the surface, until reaching a pair of regulators. (Tr. 29.) The regulators split this stream of intake air, turning part of it toward the 023 MMU, and directed the remaining fresh air deeper into the mine toward the 022 MMU. (Tr. 15–16; Ex. R-1.)

            After fresh air circulated through the 023 MMU, it exited the section and flowed over a series of three overcasts before reaching the main return entry and exiting the mine. (Ex. R-1.) The first overcast was designed to direct the return air over the mine’s main intake entry ventilating the 022 MMU, as well as the 022 MMU’s primary escapeway. (Tr. 15–16, 27–28; (Ex. R-1.) From there, the return air flowed past two breaks at Survey Spad Nos. 11464 and 11449, where the operator had constructed stoppings to separate the return air course from two entries intersecting the return. (Tr. 21; Ex. R-1.) From these two survey spads, the return air course continued over a second overcast spanning the coal conveyor belt entry at survey spad no. 11446. (Tr. 22–23; Ex. R-1.) Finally, the return air passed over a third overcast, which crossed a roadway that all miners working in the mine’s active areas used in their daily travels. (Tr. 25, 33; Ex. R-1.) This roadway also served as the secondary escapeway for the 022 MMU. (Id.)

            At the time these orders were issued on May 16, 2007, the 023 MMU was a new, active section of the mine. Construction of the overcasts was completed by approximately April 29, 2007, in conjunction with the ventilation change that was to circulate fresh air through the section. (Tr. 111; Ex. J-1.) The 023 MMU went into production on May 4, 2007. (Tr. 39–40; Ex. J-1.) On Monday, May 14, 2007, immediately after returning from a week of leave due to the birth of his daughter, Pine Ridge Superintendent Matkins performed a check of the 023 MMU return entry. (Tr. 95–96.) Matkins determined that an adequate volume of air was flowing through the conveyor belt entry and roadway entry. (Tr. 95.) He also determined that the only air leakage in these two entries involved fresh air flowing into the 023 MMU return entry. (Id.)

B.        Inspection of Big Mountain No. 16 mine

            The two disputed orders in this matter were issued on May 16, 2007, during Frampton’s routine inspection of the Big Mountain No. 16 mine as a result of his walk-through of the 023 MMU return entry. (Ex. J-1; Ex. J-2.) Frampton’s inspection of the return air course proceeded out of the 023 MMU and over the three overcasts spanning three entries: (1) the main intake entry, (2) the conveyor belt entry, and (3) the roadway entry, respectively. As Frampton approached the first overcast, he noticed that the Kennedy panels created holes, which were obvious to him because the panels were not sitting flush on top of the walls. (Tr. 16.) The space between the overcast’s lower walls was two to three feet shorter than the length of the metal decking composed of the Kennedy panel, thus allowing the hollow portions on the bottom of the decking to stretch over the walls and into the return entry. (Tr. 18–19, 22, 60.) Ideally, the Kennedy panel would have sat neatly on top of the two lower walls. Instead, they extended about a foot to a foot-and-a-half past each lower wall. Unlike an upside-down bowl that would be sealed if left on a counter, the Kennedy panels were more like upside-down bowls that extended over the edge of a counter, thus creating a gap where air could flow freely.

            After discovering the holes in the overcast, Frampton conducted a smoke tube test to determine which direction the leaking return air was flowing. (Tr. 18–19.) He observed air flowing through the holes from the return entry and into the primary intake, towards the 022 MMU working section of the mine. (Tr. 20.) Frampton conducted several more smoke tube tests at the overcast and reached the same results each time. (Tr. 20–21.) He observed that contaminated return air flowing through the return entry was seeping under the Kennedy panel, through the hollow spaces in the decking, and into the intake via the approximately six-inch by two-foot holes between the decking pieces and the wall. (Tr. 78.)

            In conducting the smoke tube tests, Frampton also examined the man door in the overcast. (Tr. 21.) The overcast’s man door was located in the lower wall facing the 023 MMU, allowing miners access to the intake entry. (Tr. 21; Ex. R-1.) When Frampton opened the door to check his smoke tube results, he observed contaminated air from the 023 MMU return entry flowing into the intake entry and turning immediately right in the direction of the 022 section. (Id.)

            Pine Ridge disputes Frampton’s discovery that return air was leaking into the primary intake entry. (Resp’t Br. 5; Resp’t Reply 3.) Superintendent Matkins asserted at the hearing that, had that been the case, the return airflow out of the 022 MMU would have been reversed from its proper direction. (Tr. 85–86.) Because Matkins’s section foreman was required to check the area every four hours, Matkins asserted that his foreman would have detected reversal of the return airflow out of the 022 MMU. (Tr. 86.) Nevertheless, Matkins did not personally investigate the first overcast with Frampton. (Tr. 109–10.) Moreover, Frampton also explained that the regulators splitting the intake air between the 022 MMU and the 023 MMU, as well as the mine’s return capacity, contributed to the airflow he witnessed at the primary intake. (Tr. 36–37.) I have noted that Matkins has a bachelors of science in mine engineering from Virginia Tech and approximately sixteen years of experience in the coal mining industry. (Tr. 65–66.) However, I find that Frampton’s direct observations of the first overcast, bolstered by his thirty-seven years of experience in underground coal mining up to the level of a compliance officer at a large mine operator, Massey Energy (Tr. 10–11, 43), establish that air was leaking from the 023 MMU return entry into the primary intake entry.

            Frampton continued his inspection by walking further down the return toward the next overcast. As Frampton walked by Survey Spad Nos. 11464 and 11449, he passed the area where two entries crossed the 023 MMU return entry. (Ex. R-1.) There, Frampton observed four stoppings, two on his left and two on his right—one pair per entry—that were built to block return air from going into the other entries. (Tr. 21.) Looking at each of stoppings on his left from the return entry, Frampton could see the string of electric lights illuminating a conveyor belt four crosscuts away through holes in the stoppings. (Tr. 21–22; Ex. R-1.) The stoppings should have been airtight, blocking any light from the conveyor belt. (Tr. 37.) Upon closer inspection, Frampton noticed holes of up to eight by six inches in size in the stoppings. (Tr. 22.) Frampton also conducted a smoke tube test near the holes in each of the four stoppings. (Id.) He found that air was flowing out of the stoppings on the left toward the surface with the H2 conveyor beltline. (Tr. 23.) As for the stoppings on the right, Frampton found that contaminated air was leaking out of them and deeper into the mine near the H2 conveyor beltline and travelway. (Tr. 23; Ex. R-1.)

            Frampton then approached the second overcast in the return, which crossed one of the mine’s conveyor belts, the H2 beltline, at Survey Spad No. 11446. (Tr. 22–23.) This overcast was designed to direct contaminated return air over the H2 conveyor beltline. (Tr. 22.) However, Frampton again saw that the metal decking of the Kennedy panel extended beyond the overcast’s lower walls by approximately eighteen inches on both sides of the overcast. (Id.) Frampton again found that contaminated air was flowing from the return air entry into the entry containing the H2 conveyor belt. (Tr. 22–23.) Frampton also observed that when the man door was opened, air from the return flowed into the conveyor entry. (Tr. 23–24.) This finding indicated the air pressure was wrong, as fresh air from the beltline should have flowed out of the man door and into the 023 MMU return entry, not the other way around. (Id.)

            Frampton then continued walking through the return and came upon the third and final overcast, which crossed over a roadway and secondary escapeway for 022 MMU. (Tr. 25.) Frampton noticed the same construction flaw as he had seen in the other two overcasts, namely that the Kennedy panel’s metal decking extended well beyond the overcast’s walls. (Tr. 26.) The holes in this overcast were obvious to Frampton. (Id.) Frampton again found that contaminated air was flowing from the return, through the holes in the overcast, and into the entry containing the roadway. (Tr. 25–26.) When Frampton opened the man door at the overcast, which faced the stream of return air, he determined found that air was again allowed to flow improperly into the roadway entry. (Tr. 25.)

            Frampton determined that the holes in these overcasts stemmed from their construction and not from any other factors, such as an impact with mining equipment. (Tr. 40, 60–61.) Frampton explained: “The construction of the overcast was not complete as I saw it.” (Tr. 30.) The twenty-foot long metal decking of the overcasts’ Kennedy panels extended two to three feet beyond the overcasts’ lower walls, which were only seventeen to eighteen feet apart. (Tr. 19, 22, 25–26, 30–32, 60.) Thus, the decking stretched out approximately eighteen inches on either side of the overcasts’ lower walls. (Tr. 31.) As a result, Frampton found “too many [holes] . . . to note.” (Ex. J-4, at 80.) Similarly, Frampton concluded that the holes in the stoppings also stemmed from their shoddy construction. (Tr. 37, 40.)

            However, Pine Ridge Superintendent Matkins asserted that the overcasts were plastered in an attempt to seal them. (Tr. 73.) Nevertheless, Matkins admitted the holes in these overcasts had most likely been present since their construction (Ex. J-5, at 147), which was completed around April 29, 2007, in advance of the ventilation change corresponding with the start of production on the 023 MMU on May 4, 2007.

            Based on these findings, Frampton issued Order No. 7269756 for an alleged violation of 30 C.F.R. § 75.370(a)(1) (Tr. 26; Ex. J-1), providing the following verbatim:

The Approved Mine Ventilation Plan is not being complied with. Return air flow, from the West (023-0 MMU), was found leaking into the primary escape way for the South section (022-0 MMU), into the H2 energized belt conveyor entry, and into the roadway of the H Zone. Energized electrical installations, non-permissible diesel and battery powered equipment were out by the point of the return air flows, entering the belt line and the roadway and the intake entry’s. Obvious holes in stopping’s, and overcast were present, in addition to numerous places that poorly sealed stopping’s contributed to the hazard. When man doors were opened, the pressures were found to be in reverse of the required air flow directions.

(Ex. J-1.)

            Frampton determined that this violation created the highly likely risk of permanently disabling injuries to twenty miners. (Ex. J-1.) Frampton noted that miners in the 022 MMU would be exposed to rock and coal dust leaking into the 022 MMU intake entry and travelway entry, as well as smoke in primary and secondary escapeways in the event of a fire. (Tr. 44.) Accordingly, Frampton designated the alleged violation as S&S. (Id.) Additionally, Frampton determined that Pine Ridge had been highly negligent in allowing this allegedly violative condition to exist, conduct which in his view amounted to an unwarrantable failure to comply with 30 C.F.R. § 75.370(a)(1). (Ex. J-1.) Specifically, Frampton asserted that Pine Ridge had allowed the holes in the overcasts and stoppings to persist for twelve days since their construction, despite being obligated to conduct a weekly examination of the return, as well as daily preshift examinations of the conveyer belt and roadway running beneath the second and third overcasts of the 023 MMU return, respectively. (Tr. 40–41, 56–61.)

            Because the 023 MMU was required to be inspected once a week, Frampton reviewed the weekly examination book. (Tr. 40; Ex. J-2.) Frampton did not find notations of any of the holes in the overcasts or stoppings. (Id.) Based on these observations, Frampton concluded that Pine Ridge violated 30 C.F.R. § 75.364(b)(2) and issued Order No. 7269757, which stated:

An adequate weekly examination of the one return entry of the Northwest section, (023-0 MMU) has not been conducted and recorded in the weekly examination record book. When examined, return air was found leaking through holes in permanent stopping’s, and large holes in recently completed overcasts. Also, when man doors were opened, air flowed into the primary escape way of the South Section (022-0 MMU), H2 belt conveyor entry, and the roadway. These holes would be obvious to the most casual observer. This 023-0 MMU, started producing coal on 5/4/2007.

(Ex. J-2.)

            Frampton asserted that the alleged violation created a highly likely risk of permanently disabling injuries to twenty miners. (Ex. J-2.) Accordingly, Frampton designated the alleged violation as S&S for the same reasons as he designated Order No. 7269756 as S&S. (Id.) Moreover, based on his perception that the holes in the overcasts were obvious, Frampton determined that Pine Ridge was highly negligent in allowing the condition to exist, thus engaged in conduct which rose to the level of an unwarrantable failure to comply with the Secretary’s mandatory safety standard. (Tr. 45; Ex. J-2.)

            After Frampton issued the orders in this case, Pine Ridge worked to fix the holes in its ventilation controls. (Tr. 67.) A few hours after the holes had been fixed, Pine Ridge Superintendent Matkins went to meet with Frampton. (Tr. 67, 91.) Matkins had heard that the miners were unable to correct a difference in air pressure that was causing contaminated return air from the 023 MMU to flow improperly through the holes in the overcasts into the other entries. (Id.) Matkins met Frampton at the third overcast where it crossed over the roadway. (Tr. 67.) Using a smoke tube, Frampton showed Matkins that air from the 023 MMU return entry was still leaking through the man doors on the overcasts spanning the conveyor belt and roadway entries. (Tr. 67–68, 109.) Matkins, however, did not accompany Frampton to the stoppings or the first overcast at the 022 MMU intake entry. (Tr. 109–10.)

            To change the pressure in the return entry and attempt to correct the problem, Matkins made a small adjustment to a return regulator located at a punch-out from the mine to the surface. (Tr. 89–90, 99.) The adjustment lowered the air pressure in the 023 MMU return. (Tr. 113.) Matkins went back to Frampton at the third overcast spanning the roadway, where they determined that the leakage of air from the return entry to the roadway entry had been corrected. (Tr. 90.) As a result, Frampton terminated Order No. 7269756 concerning Pine Ridge’s violation of its ventilation plan. (Ex. J-1.)

IV. Principles of Law

A.        Operator Liability

            Under the Mine Act, operators are strictly liable for violations of the Secretary’s mandatory health and safety standards. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008) (citing Asarco, Inc., 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d, 868 F2d 1195 (10th Cir. 1989)). The actions of an operator’s weekly examiner may be imputed to the operator for the purposes of analyzing its negligence. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194–96 (Feb. 1991). To determine whether a particular condition violates a broadly worded standard, the Commission employs the objective “reasonably prudent person” test, which provides:

[T]he alleged violative condition is appropriately measured against the standard of whether a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation.

Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656 (Aug. 2008) (quoting Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982)).

B.       S&S

            The Mine Act defines an S&S violation as one “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is S&S “if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation under National Gypsum, the Secretary must prove the four elements of the Mathies test:

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984)).

            The third element of Mathies, which requires “a reasonable likelihood that the hazard contributed to will result in an injury,” is by far the most difficult element of the Mathies test. See U.S. Steel Mining Co. (U.S. Steel IV), 18 FMSHRC 862, 870 (June 1996) (Marks, Comm’r, concurring in result) (observing that during the 12-year period immediately following Mathies, over 93% of the Commission’s 47 decisions involving an S&S issue concerned the third element). In U.S. Steel IV, the Commission held that “the third element of the Mathies test does not require the Secretary to prove it was ‘more probable than not’ an injury would result.” 18 FMSHRC at 865 (citation omitted).

            In Ziegler Coal Co., the Commission considered the Operator’s argument that its violation of allowing contaminated return air to pass over non-permissible equipment, that is, equipment that could ignite coal dust or methane, was not S&S. 15 FMSHRC 949, 952–54 (June 1993). The Commission noted that in a case involving injuries connected to a mine fire, “[t]he reasonable likelihood of an ignition is the necessary precondition to the reasonable likelihood of an injury.” Id. at 953 (citing U.S. Steel Mining Co. (U.S. Steel II), 6 FMSHRC 1834, 1836 (Aug. 1984)). The Commission determined that the Judge did not make a finding on the reasonable likelihood of an ignition and remanded the case for further analysis of the third element of Mathies. Id. at 953–54.

            At the same time, the Commission has long held that “[t]he fact that injury [or a condition likely to cause injury] has been avoided in the past or in connection with a particular violation may be ‘fortunate, but not determinative.’” U.S. Steel IV, 18 FMSHRC at 867 (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk Run Coal Co., 27 FMSHRC 899, 906–07 (Dec. 2005) (holding that absence of adverse roof conditions at time of or prior to violation does not preclude establishing S&S violation); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996) (noting that absence of accidents involving violative equipment does not preclude S&S finding).

            The Commission recently reiterated these principles in Cumberland Coal Resources, LP, 2011 WL 5517385 (FMSHRC Oct. 5, 2011), and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 2010). Citing Elk Run Coal and Blue Bayou Sand & Gravel, the Commission emphasized that the test under the third prong of Mathies is whether the hazard fostered by the violation is reasonably likely to cause injury, not whether the violation itself is reasonably likely to cause injury. Cumberland Coal Res., 2011 WL 5517385, at *5; Musser, 32 FMSHRC 1280–81.

C.       Unwarrantable Failure

            The unwarrantable failure terminology derives from section 104(d)(1) of the Mine Act and refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d). In Emery Mining Corp., the Commission determined that an unwarrantable failure is aggravated conducted constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987). 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, 13 FMSHRC at 194; see also Buck Creek Coal, 52 F.3d at 136 (approving the Commission’s unwarrantable failure test).

            Whether conduct is “aggravated” in the context of unwarrantable failure 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, 14 FMSHRC at 1261; 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. Consolidation Coal Co., 22 FMSHRC at 353. 

V. Further Findings of Fact, Analysis, and Conclusions of Law

A.      Order No. 7269576 – Ventilation Controls

            1.         Violation – § 75.370(a)(1)

            Order No. 7269756 alleges a violation of the Secretary’s mandatory safety standard at 30 C.F.R. § 75.370(a)(1), which provides:

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.

            Every ventilation control between the 023 MMU return entry’s turn out of the 023 MMU and its intersection with the main return entry had significant holes. These ventilation controls were designed to prevent any combustible coal dust or methane gas in the return air from mixing with intake air ventilating the main intake, conveyor belt, and roadway. Here, Frampton discovered that the leaky ventilation controls allowed return air to enter the streams of fresh intake air. The ventilation controls thus failed their purpose of controlling the flow of methane or coal dust through the mine.

            Most importantly, Pine Ridge Superintendent Matkins admitted that the holes in Pine Ridge’s overcasts and stoppings were improper and needed repair:

Q:You’re not testifying that it was okay to have those holes there, are you?

A:No, if the holes had been discovered through the weekly examination or just through construction of the overcast, they would have been repaired.

            Q:        But those holes are not in compliance with your ventilation plan?

A:You’re not supposed to have holes in your stoppings. That’s a bad practice. . . .

                        . . . .

. . . [Y]ou would just have a hole in the stopping that needs repaired.

(Tr. 115–16.) (See Ex. J-5, at 134–35 (stating that holes in overcast would have been repaired had they been discovered).)

            However, Pine Ridge’s position is that the holes themselves did not violate its ventilation plan. (Resp’t Br. 4–6; Resp’t Reply 2–5.) According to Pine Ridge, the only violation was the improper pressure differential between the 023 MMU return and the entries it intersected. (Id.) Pine Ridge points out that the pressure differential remained even after the holes in the overcasts and stoppings were repaired. (Resp’t Br. 5–6; Resp’t Reply 4–5.) Had the entries’ air pressures been at the proper levels, fresh air would have leaked into the return entry, which would not have been as hazardous as contaminated air mixing with fresh air. (Tr. 20, 115–16.) Therefore, the pressure differential was the problem, not the holes in the ventilation controls. (Resp’t Br. 6; Resp’t Reply 4–5.)

            It is true that the hole-ridden ventilation controls did not cause the leak of return air, insofar as the higher air pressure in the 023 MMU return entry pushed contaminated air into the lower-pressure primary intake entry, conveyor belt entry, and roadway entry. However, this view of the evidence is incomplete. It overlooks the crucial fact that the defective stoppings and overcasts gave passage to return air escaping from the 023 MMU into areas designated for intake air, including three entries. Had the holes not been present, return air would have escaped into the other entries primarily through opening the overcasts’ man doors, which typically remain closed. As Pine Ridge Superintendent Matkins acknowledged, underground mining conditions are dynamic, and events occurring during the course of “normal mining activity,” such as a collapsing block of coal or a change in the outdoor barometric pressure, can precipitate sudden changes in the mine ventilation system’s pressure, which may not be immediately detected. (Tr. 99.) As the discoveries of MSHA Inspector Frampton show, effective ventilation controls are vital to maintaining the proper flow of air through the mine. Pine Ridge’s defective ventilation controls significantly contributed to improper airflow through the mine. Matkins admitted that fixing the holes was a necessary repair, just as a reasonably prudent mine operator would have recognized the holes in the overcasts and stoppings as hazards and repaired them. Accordingly, I determine that Pine Ridge violated 30 C.F.R. § 75.370(a)(1).

            2.         Gravity and S&S

            I have concluded that Pine Ridge violated 30 C.F.R. § 75.370(a)(1), one of the Secretary’s mandatory safety standards, thus satisfying the first element of the Mathies test.

            According to MSHA Inspector Frampton, the defective ventilation controls created two discrete safety hazards. First, by allowing contaminated return air to seep into the 022 MMU intake entry and the roadway entry, the violation increased miners’ exposure to coal and rock dust, contributing to the risk of occupational respiratory diseases such as black lung. (Tr. 32.) Second, Frampton determined that should a fire have occurred in the 023 MMU area of the mine, smoke could have permeated the primary entry to the 022 MMU and the roadway, which serve as the primary and secondary escapeways for the 022 MMU area, respectively. (Id.) That would have forced miners working on the 022 MMU to travel through smoke-filled passageways on their more than two-mile trip to the surface of the mine. (Id.) These discrete safety hazards satisfy the second element of Mathies.

            The next issue is whether the hazard fostered by Pine Ridge’s violation was reasonably likely to result in an injury. The Secretary’s position on this question is that “in evaluating whether the violations of [s]ection 75.370(a)(1) are S&S, one should assume the occurrence of the event that properly implemented ventilation plans are designed to prevent or lessen in severity.” (Sec’y Br. 15.) Pine Ridge submits that analysis of the S&S issue should consider “the conditions and particular sequence of events as the inspector found them when the violation was written” and that the facts here do not support a conclusion of S&S. (Resp’t Br. 7–11; Resp’t Reply 5–10.)

            Here, Pine Ridge Superintendent Matkins admitted that the violation exposed miners to coal and rock dust, though, alluding to the slow, progressive nature of black lung disease, he thought that what he perceived as the brief duration exposure was not problematic: “The only hazard that I believe could have existed is this respirable dust, and again, that’s not something that’s going to develop over two days.” (Tr. 103–04.)

            Notwithstanding the Mine Act’s thirty-five-year-old mandate to ensure “to the greatest extent possible, that the working conditions in each underground coal mine are sufficiently free of respirable dust concentrations in the mine atmosphere to permit each miner the opportunity to work underground during the period of his entire adult working life without incurring any disability from pneumoconiosis [black lung disease] or any other occupation-related disease,” 30 U.S.C. § 841(b), coal dust-induced respiratory ailments remain a pernicious risk to coal miners’ health. Recent data from the National Institute for Occupational Safety and Health indicate that black lung is becoming more common among the nation’s coal miners, with even younger miners showing evidence of advanced and seriously debilitating lung disease. Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, 75 Fed. Reg. 64,412, 64,413 (Oct. 19, 2010).

            The Commission has long recognized the insidious nature of black lung disease:

There is no dispute, however, that overexposure to respirable dust can result in chronic bronchitis and pneumoconiosis. The effects of the health hazards associated with overexposure to respirable dust usually do not cause immediate symptoms—as noted, simple pneumoconiosis is asymptomatic. This factor makes precise prediction of whether or when respiratory disease will develop impossible. Likewise, it is not possible to assess the precise contribution that a particular overexposure will make to the development of respiratory disease. In sum, the present state of scientific and medical knowledge . . . do[es] not make it possible to determine the precise point at which the development of chronic bronchitis or pneumoconiosis will occur or is reasonably likely to occur.

Consolidation Coal Co., 8 FMSHRC 890, 898 (June 1986), aff’d, 824 F.2d 1071 (D.C. Cir. 1987). Indeed, the nebulous, progressive nature of black lung disease is why a violation of the Secretary’s underground respirable dust concentration standard raises the rebuttable presumption that the violation is S&S. 8 FMSHRC at 899.

            Similarly, Pine Ridge has acknowledged that its violation exposed its miners to the hazards of respirable dust. Although Frampton did not take samples of the air during his inspection (Tr. 53), it is more likely than not that the violation would have subjected miners to heightened levels of coal and rock dust during the course of continued normal mining operations, as return air was allowed to flow into the 022 MMU’s primary intake entry and the roadway entry used by the miners in both working sections. Moreover, during the course of continued normal mining operations, this dust exposure would be reasonably likely to contribute to the development of black lung disease, a condition with debilitating health consequences. The hazard associated with this violation satisfies the third and fourth elements of Mathies.

            As for the second safety hazard present at the mine, the salient question is whether the seepage of smoke through the numerous holes in the overcasts spanning the primary and secondary escapeways during a mine fire was reasonably likely to result in injuries in the event of a mine fire. The specific likelihood of a fire or explosion at the mine is not at issue, as that was not the hazard associated with the violation. Smoke leaking through the numerous holes in these overcasts would have affected miners as they attempted their two-mile journey to the surface, with the attendant risks of serious injuries from smoke inhalation or falls. Thus, I determine that this hazard satisfies the third and fourth elements of Mathies, too.

            Based on the foregoing, the discrete safety hazards associated with Pine Ridge’s violation were highly likely to result in reasonably serious injuries. Accordingly, the gravity allegations set forth in Order No. 7269756 are affirmed, and I conclude that the violation was S&S.

            3.         Negligence and Unwarrantable Failure

            Undoubtedly, Pine Ridge’s failure to properly construct the overcasts and stoppings constituted negligent conduct. Here, the hole-ridden overcasts and stoppings amounted to a violation posing a reasonable risk of serious injury. These ventilation controls were supposed to prevent contaminated air flowing through the 023 MMU return entry from infiltrating the entries lying between the return entry’s turn out of the 023 MMU and the intersection with the main return entry. In fact, this area had only two other ventilation controls in addition to seven cited by MSHA Inspection Frampton. Frampton found that not one of these seven poorly-built controls (four stoppings and three overcasts) was effective. Pine Ridge Superintendent Matkins even acknowledged that the holes in the one overcast that he saw stemmed from an inherent flaw in its construction—namely, that the mostly-hollow metal decking of the Kennedy panels extended approximately eighteen inches on either side of the overcast. Significantly, I grant significant weight to Frampton’s testimony that these were some of the worst ventilation controls he has seen in his thirty-seven-year career in underground coal mining. (Tr. 43–44; Ex. J-4, at 113.)

            Moreover, the holes were visible. The holes in two of the stoppings were so large that they could be seen from dozens of feet away, as they were illuminated by lights hung along a conveyor belt running through an entry four crosscuts back from the stoppings. Though Pine Ridge speculates that these lights could have been switched off, nothing in the record before me supports that proposition. (Resp’t Br. 15; Resp’t Reply 15.) The holes in the overcasts were also readily visible, as they were formed by the defective Kennedy panel’s eighteen-inch span over each side of the overcast’s lower walls, which were approximately just below eye-level at five feet. Matkins insisted that the holes were not readily visible because, to be seen, one had to hunch down to see the hollow portions of the Kennedy panel’s metal decking, which was about five feet off the mine floor. (Tr. 77.) Indeed, the breaches of the overcasts’ protective barrier were located in the overhang between the hollow Kennedy panel decking and the overcasts’ lower walls. Nevertheless, the defects in the overcasts were so extensive and obvious that a superficial inspection of any of the overhangs of the overcasts’ Kennedy panels by slightly hunching down near one would have revealed the problem.

            The violative condition was also permitted to persist for an extended period of time—twelve days. Matkins admitted that these holes most likely had existed since the overcasts’ construction immediately prior to the start of production on the 023 MMU on Friday, May 4, 2007. (Tr. 75.) Moreover, Matkins admitted that these holes constituted necessary repairs. At the same time, Matkins inspected the return two days prior to Frampton’s May 16 inspection, but he made no mention of the conditions of ventilation controls themselves. Matkins conducted this inspection after he had just returned from a week of leave for the birth of his daughter. Together I find this evidence insufficient to overcome the conclusion that the holes pervading the ventilation controls of the 023 MMU return were inexcusably overlooked.

            Based on these considerations, the other evidence held out by Pine Ridge to mitigate its negligence does not lessen its culpability for this violation. Matkins’s observation that even well-made ventilation controls leak is minimally relevant here because its ventilation controls were not well-made and needed significant repairs. (Tr. 73–74; Resp’t Reply 15.) Additionally, Pine Ridge’s post-violation efforts to correct the condition did not reduce its culpability for the violation itself. (Resp’t Br. 13; Resp’t Reply 12.) Rather, Pine Ridge was required to do so to avoid further sanctions under the Mine Act. See 30 U.S.C. § 820(b)(1) (providing civil penalty for failure to abate a violation). Finally, Pine Ridge notes that the evidence does not demonstrate how long the improper airflow persisted through the 023 MMU return. (Resp’t Br. 14–15; Resp’t Reply 14.) However, this misstates the issue. The problem in this case is that Pine Ridge used inadequate ventilation controls, which failed to control the flow of return air due to changing conditions associated with normal mining operations. The fact that a poorly built dam does not leak during the dry season is not evidence that it will prevent a flood during a strong summer storm.

            Given the gravity of this violation, its extensive and obvious nature, and the fact that it was allowed to persist for twelve days, I conclude that Pine Ridge’s violation arose from aggravated conduct constituting more than ordinary negligence, and thus was an unwarrantable failure to comply with the Secretary’s mandatory safety standard.

            4.         Penalty

            Under Section 110(I) of the Mine Act, the Administrative Law Judge must consider the following six criteria in determining an appropriate civil penalty:

[T]he operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(I).

            As the Commission noted in Rushford Trucking, “the principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established.” 22 FMSHRC 598, 600 (May 2000).

            Here, Pine Ridge demonstrated good faith in attempting to achieve rapid compliance once MSHA Inspector Frampton issued the order. Pine Ridge is also a relatively large operator, and the assessed penalty would not inhibit its ability to remain in business. Pine Ridge’s history of violations shows eleven prior S&S violations of the Secretary’s ventilation plan standard at 30 C.F.R. § 75.370(a)(1), which were significantly less grave than the one presented in this case. (Ex. G-2.) However, Pine Ridge’s failure to address the holes in nearly every ventilation control of the 023 MMU return entry between the entry’s exit from the section and the main return entry for at least twelve days prior to Frampton’s inspection was an unwarrantable failure to comply with the Secretary’s mandatory safety standard. The gravity of Pine Ridge’s violation was serious, as it was S&S and posed the risk of permanently disabling injuries. Based on these considerations, I assess a $45,000 penalty for this violation.

B.        Order No. 7269757 – Weekly Examinations

            1.         Violation

            As for Order No. 7269757, the Secretary alleges that Pine Ridge violated 30 C.F.R. § 75.364 which states:

(b) Hazardous Conditions. At least every 7 days, an examination for hazardous conditions at the following locations shall be made by a certified person designated by the operator:

. . . .

(2) In at least one entry of each return air course, in its entirety, so that the entire air course is traveled.

            As discussed above, Pine Ridge’s hole-ridden stoppings and overcasts did not comply with its ventilation plan and posed a significant safety hazard that created the risk of permanently disabling injuries to twenty miners. See discussion supra Part V.A.1 and Part V.A.2. The holes constituted necessary repairs, as they were important to controlling the flow of contaminated return air leaving the 023 MMU section. Id. As for this violation, Pine Ridge disputes that the holes were inherently hazardous. It asserts that its weekly examiner could have seen the holes but determined they were not “hazards,” as the air pressure at the time of the examination could have forced fresh air from the intake entry, conveyor belt entry, and roadway entry into the return entry, instead of the other way around, as MSHA Inspector Frampton’s investigation revealed. (Resp’t Br. 16–17; Resp’t Reply 15–17.) Pine Ridge’s reasonable doubts about the air pressure of this area of the mine during the weekly examination preceding the Order is too thin of a reed upon which to rest a conclusion that these defective ventilation controls were not hazardous. The determination of compliance with this safety standard is an objective inquiry that asks whether the reasonably prudent operator conducted an adequate examination for “hazardous conditions.”

            As stated above, these holes were inherently hazardous because they failed to control the flow of return air through the mine during continued normal mining operations. See discussion supra Part V.A.1 and Part V.A.2. A reasonably prudent mine operator would have recognized and noted the significant risks they posed. Id. MSHA Inspector Frampton’s review of Pine Ridge’s inspection records revealed no notation of these hazards. An adequate weekly inspection would have noted these obvious problems. See discussion supra Part.A.3. Pine Ridge should have detected and recorded these hazards during its weekly examination of the return that took place between Friday, May 4, 2007, and Frampton’s inspection twelve days later on Wednesday, May 16, 2007. It did not. Therefore, I determine that Pine Ridge violated 30 C.F.R. 75.364(b)(2).

            2.         Gravity and S&S

            As noted above, the Secretary has established that Pine Ridge violated 30 C.F.R. § 75.364(b)(2), a mandatory safety standard, thus satisfying the first element of Mathies. Pine Ridge’s failure to adequately examine the mine constituted a discrete safety hazard, meeting the second element of Mathies. The holes overlooked by its examination exposed the miners to the risk of black lung disease. See discussion supra Part V.A.2. Moreover, in the event of a fire in the 023 MMU, smoke would have flowed through these holes and into the primary and secondary escapeway and obstructed the miners in their attempt to safely escape the mine. Id. The hazards overlooked by Pine Ridge were reasonably likely to result in an injury of a reasonably serious nature. Id. This conclusion satisfies the remaining two elements of Mathies.

            Therefore, I determine that Pine Ridge’s failure to adequately examine the return entry rises to the level of an S&S violation. The gravity allegations set forth in Order No 7269757 are affirmed.

            3.         Unwarrantable Failure

            As previously noted, Pine Ridge should have detected the holes in the overcasts when performing its weekly inspections, notwithstanding the fact that a modicum of effort was involved in stopping slightly to peer underneath the Kennedy panels jutting out of the overcasts and into the return entry. See discussion supra Section IV.A.3. These holes were spread across seven of the nine ventilation controls separating the 023 MMU return entry and the other perpendicular entries lying between the 023 MMU section and the main return entry. The pervasive nature of the holes in the overcasts, which stemmed from the fact that the overcasts’ Kennedy panels visibly stuck out from the overcasts’ walls, is highly significant. The obvious nature of this design flaw should have attracted the attention of Pine Ridge’s weekly examiner. By that same token, the stoppings also had large, easily visible holes, which again were the result of their poor construction. These holes existed for at least twelve days. MSHA Inspector Frampton, who has thirty-seven years of underground mining experience up to the highest levels of private industry as a compliance officer, even noted that these ventilation controls were some of the worst he has ever seen. Coupled with Pine Ridge’s belief that a condition may be “non-hazardous” in the absence of any contingencies of normal mining operations that could make that condition dangerous, it is apparent that the failure to address these holes rose to the level of inexcusable indifference toward the Secretary’s safety standard. Again, Pine Ridge’s position would absolve the builder of a shoddy dam of responsibility for a flood due to a seasonal summer storm just because the dam worked during the dry winter months. This surely does not reflect the prophylactic purpose of the Secretary’s regulations. I conclude that Pine Ridge’s conduct rose to the level of aggravated conduct constituting more than ordinary negligence, and thus was an unwarrantable failure to comply with the Secretary’s mandatory safety standard

            4.         Penalty – Weekly Examinations

            As noted above, I have considered Pine Ridge’s history of violations, which does not show a significant history of breaching 30 C.F.R. § 75.364, as well as Pine Ridge’s efforts to correct its violative conduct once it was identified by MSHA Inspector Frampton. Pine Ridge is also a relatively large operator, and the imposition of the Secretary’s proposed penalty would not inhibit its ability to remain in business. As I have concluded above, however, the gravity of this violation was very serious and resulted from Pine Ridge’s unwarrantable failure to comply with the Secretary’s mandatory safety standard. Accordingly, I assess a penalty of $45,000 for this violation.

VI. Order

Based on the foregoing, Order Nos. 7269756 and 7269757 are hereby AFFIRMED. Pine Ridge is ORDERED to pay a penalty of $90,000 within 40 days of this decision.

                                                                                    /s/ Alan G. Paez

                                                                                    Alan G. Paez

                                                                                    Administrative Law Judge

Distribution:

J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209

Melissa M. Robinson, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, P.O. Box 533, Charleston, WV 25322

/jts, nev