FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
TELEPHONE: (412)
920-2682
FAX: (412) 928-8689
April 3, 2012
|
LEFT FORK MINING CO., INC. MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), |
: : : : : : : : : : : |
CONTEST PROCEEDING Docket No. KENT 2012-443-R Order No. 9353807; 03/29/2011 Mine: Straight Creek #1 Mine ID: 15-12564 |
DECISION
| Appearances: | John M. Williams, Esq., and Todd Myers, Esq., Rajkovich, Williams, Kirkpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY for Contestant Mary Sue Taylor, Esq., and Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN for the Secretary |
| Before: | Judge Andrews |
STATEMENT OF THE CASE
This
contest proceeding is pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq.
(2000)(the “Act”). A hearing was held on
an expedited basis by agreement of the parties in Hazard,
JURISDICTION
Contestant’s activities in mining coal at its Straight Creek #1 Mine subjects it to the jurisdiction of the Act as a “coal or other mine” as defined by section 3(h) of the Act, 30 U.S.C. §802(h). Further, Contestant meets the definition of an “operator” as defined by section 3(d) of the Act, 30 U.S.C. §802(d). Hence, this proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its Administrative Law Judge (ALJ) pursuant to sections 105 and 113 of the Act, 30 U.S.C. §§805, 813.
The undersigned has jurisdiction only of the Section 104(b) Order No. 8353807 and the single modification of that order. The references to other citations and orders are for the purpose of placing the instant case in context with the circumstances that existed at the Straight Creek #1 Mine, and to maintain clarity in the discussion of this decision. It must be emphasized that the decision herein is strictly limited to the 104(b) order and modification, and may not be construed as adjudicating in any manner other citations and orders referenced and assigned to other ALJs.
TIMELINE OF EVENTS AND SUMMARY OF THE TESTIMONY
History of the
Order at Issue
At 13:05 on March 22, 2011, MSHA Inspector Tom D. Middleton (“Middleton”) issued 107(a) Order No. 8353800 and 104(a) Citation No. 8353801,[1] both based on methane and oxygen levels detected in the Straight Creek seam between seals #2 and #3. Ex. D.[2] The safety standard cited was 30 C.F.R. §75.323(b).[3]
Minutes later, at 13:40, Middleton issued 103(k) Order No. 8353802, closing the entire mine to all activity, based on the gas inundation discovery.[4] Prior approval would be required before mine operations could be restored. Exs. C, 2. The 103(k) order was modified four times that day to allow necessary persons to enter, to ventilate the area, to re-energize power, for required examinations, to monitor the seals in question, and to de-water the Rim seam. The 103(k) order was modified a fifth time, two days later, to allow power and pumping in the Straight Creek seam.
Five hours after the discovery of methane, at 18:05 Middleton issued 104(a) Citation No. 8353804[5] citing safety standard 30 C.F.R §75 333(h), set forth above, regarding the maintenance of the #2 and #3 seals in the Straight Creek Seam. This is the specific event that underlies the subsequent 104(b) order and its modification. The condition in the citation reads:
The #2 and #3 seals in the straight creek seam are not being maintained to serve the purpose for which they were built. The #2 seal water trap is below the normal travel route to the seal, the water trap would impound water behind seal before the trap could de-water the area behind the seal. The #3 seal is allowing the atmosphere behind the seal to be expelled into the intake air course through cracks in the roof strata.
Exs. B, 3. The time set for abatement was 21:00 that day.
Since the 103(k) order had been in effect since 13:40 that day, Left Fork was required to submit a plan for approval by MSHA prior to addressing the maintenance needed at the seals. Such a plan was submitted the very next day, on March 24, 2011. The plan was to inject a type of grout into the roof above the #3 seal to repair the leak. Ex. I. MSHA did not formally respond, in writing, to this plan. Despite the submission of this plan, Inspector Middleton issued 104(b) Order No. 8353807, the order contested here, on March 29, 2011, for failure to submit a plan to abate seal maintenance in accordance with 104(a) Citation No. 8353804, stating:
The operator has not submitted a plan to repair the affected seals. Reasonable time has been given to the operator to submit a plan.
Exs. 4, B.
On April 8, 2011, Left Fork submitted a second plan to repair the #3 seal to prevent any further methane inundations, to allow for expert evaluation of the seals and depending on the findings of the experts, to remove equipment. This plan was denied in writing on April 11, 2011, by the District Manager. Ex. J.
Beginning in May 2011, and continuing into January 2012, Left Fork attempted to obtain approval of a plan to seal the entire Straight Creek seam of the mine by water inundation. The purpose was to allow work to resume in the Rim seam. [6] The record contains evidence of many communications between mine and MSHA personnel, and a number of required revisions to the extensive plan, all serving to illustrate that many weeks of work were invested by both parties in this plan. Exs. 8-13, 17-20, K-P. There were also various ventilation plans and revisions during this period. Ex. 14-16.
Also in this period, the 103(k) order was further modified. In May, the modification was to remove electrical power and stop all work and travel in the Straight Creek seam. The final modification in June referred to the plan being developed for sealing the entire Straight Creek seam and allowed for power and pumping in that seam as necessary for construction, but contingent upon submission of updated action plans throughout the process. Ex. C, 2.
On January 11, 2012, the 104(b) order of March 29, 2011, based on the failure of the mine to submit a repair plan, was modified by MSHA Inspector Dannie W. Lewis to de-energize all power and withdraw all miners with the following justification:
Numerous hazards are present throughout the entire mine. There are 19 unabated 104(b) orders currently at this mine over a broad area. Some of these 104(b) orders have existed for up to approximately 18 months uncorrected by the operator. Additional hazards have been identified at this mine in several locations.
The operator was cited for seals not being maintained as required (See 104(d)(2) order # 8353803 and 107(a) order # 8353800 on 3-22-11, The operator has previously submitted for approval a seal construction plan to construct new seals for which during this time the operator was to prepare the seal sites, conduct examinations and pump water. No work is being done to prepare for seal installation as verified by evaluation of these areas. The only work that has been done for some time has been examinations and pumping water.
Resources are not being allocated or used to address the many hazards that exists and that continue to accumulate at this mine. These conditions expose those miners conducting examinations and doing work to pump water to numerous hazards that have the potential to result in injuries that range from lost workday/restricted duty up to include fatal. This order is being modified for the affected area to include the entire mine. The operator must withdraw all miners from the mine and de-energize all electrical power from the underground portion of the mine. This action is being taken for the safety of miners working in the mine. The operator is being allowed to run the mine fans to prevent the accumulation of explosive methane/ch4.
Ex. 4, A.
On January 13, 2012, two days after the mine was shut down by the 104(b) modification, the plan to seal the entire Straight Creek seam was approved contingent upon the submission of a specific rehabilitation plan. Ex. P.
The 103(k) order, as modified, remains
in effect.
Testimony
David
Partin (“Partin”) is the safety compliance officer for Left Fork and he does
all of the mine plans. He reported 30
years of experience in coal mining and certification as an inspector and mine
foreman. Tr. 325. He testified that he
was the author of the March 23, 2011 and April 8, 2011 Action Plans. Ex.
I, J. He
stated that on March 22, 2011, there was a crack in the strata above the #3
seal. Tr. 330, 331. Then, on March 23,
2011, he submitted a plan to MSHA to repair the leak at the #3 seal, but
received no written response regarding this plan. Tr. 333, 334. Partin testified further that the repair as
planned would have taken one day. Tr. 334.
He then submitted another plan on April 8, 2011, but this was denied by
a letter that gave as a reason a confluence of items which was not explained
beyond reference to citations. Tr. 336, 337.
He said at this point Left Fork began to make plans to seal off the
entire Straight Creek seam of the mine, since this would terminate all of the
violations. Tr. 337, 338. He added there
were no discussions with anyone at MSHA that the #3 and #2 seals would have to
be repaired or that every violation would have to be abated for approval of the
new Straight Creek seam sealing plan. Tr. 367, 368.
Homer
Cox (“Cox”) testified that he has 33 years of experience in coal mining and has
performed most tasks with the exception of running a miner. Tr. 274.
He is the Outby Foreman and Examiner in the Straight Creek seam of the
mine, where he has worked since 2006, and he holds certifications as Mine
Foreman and Medical Technician Underground. Tr. 273, 274. Cox stated he is familiar with the old seals
#2 and #3 and that on March 23, 2011 the #3 seal was perfect but there was a
crack in the strata above it with a small leak. Tr. 279, 280. He further stated the mine made
recommendations to fix the hole, and recalled that MSHA Inspector Bo Mills told
him that the mine could not fix the problem, but Mills did not give him a
reason for this decision. Tr. 280, 281.
Cox also testified he was familiar with the 103(k) order issued because
of leakage, and although there was a roadway to the #2 and #3 seals, they were
not allowed to either go there or fix the seals. Tr. 279, 282, 305, 313. When testifying about the plan to seal off
the entire Straight Creek seam, Cox said a lot of work was done in June 2011,
to prepare two sites for the installations, and that the sites were ready for
construction. Tr. 276, 277, 278, 298.
Cox reported he was present on January 11, 2012, and accompanied Inspector Lewis and Lewis’ Supervisor to the Straight Creek seam. Tr. 282, 283. He was told to stay at the end of the Goat Trail while Lewis and his supervisor went to #2 and #3 seals, about 300 feet away. Tr. 283, 285, 297. He further reported that although the ventilation comes from the seals and past where he was positioned, his Solaris detector found no methane. Tr. 286, 287. Cox stated that when the two inspectors came back, they reported methane levels of 1.5 and 2.1 at the seals,[7] and, when outside the mine, they said the power to the mine should be cut. Tr. 287, 298.
The testimony of Jeff Craig (“Craig”), Superintendent at Left Fork, and Jim Brummet (“Brummet”), a Counselor at Left Fork, both corroborated the testimony of Cox regarding the new seal site preparation work. Craig testified the sites had been scooped and the ribs cleaned, and that a lot of work had been done including removal of old belt structure. Tr. 238-240. Cox said this work had been done in the summer of 2011. Tr. 242. Brummet testified that Mark Heiser (“Heiser”) told him on January 12, 2012, that the two sites were “cleaned up good.” Tr. 319. Heiser, a MSHA ventilation specialist, was called as a rebuttal witness regarding the conversation with Brummet when they were in the lighthouse on January 12, 2012, but he was unable to recall the conversation that had occurred only days before the hearing. Tr. 442, 443.
The
Contestant’s witnesses also included Jefferson Davis (“
Danny Wayne Lewis (“Lewis”) has been a MSHA coal mine inspector for over nine years, with prior mining experience of about twenty-three years performing a number of tasks and holding several certifications. Tr. 21, 22. He testified that in 2011 he had completed ten day spot methane inspections at the Straight Creek #1 mine and in January 2012 was assigned the required quarterly E01 inspection at the mine. Tr. 24. He also testified that he was familiar with and was present on the day that Inspector Middleton wrote the 103(k) order of March 22, 2011. Tr. 84, 85.
On January 11, 2012, accompanied by his supervisor Paul Hurt (“Hurt”) and Foreman Homer Cox, Lewis testified he and Hurt went to the area of the seals in the Straight Creek seam. Tr. 40. He reported that forty to fifty feet from seals #2 and #3 their detectors went off, and bottle samples taken[9] were later reported as showing methane of 1.120 for the #2 seal and 1.64 for the #3 seal. Tr. 46, 52, 53, 55. He acknowledged writing the 104(b) modification, and that his decision to turn off the power was directly related to the methane level at the #3 seal. Tr. 70, 74, 83. Lewis recalled becoming aware of a lack of air movement in the area related to a ventilation control curtain, which affected air to the seals, torn down by a rock. Tr. 54, 55, 106. He said the curtain would need to be put up to get air over to the seals; he admitted he did not include anything about this curtain or the methane discovery in the 104(b) modification. Tr. 110-112. Lewis also admitted that the atmosphere in front of the seals was not explosive. Tr. 103, 104.
Lewis testified that instead of writing more paper to the company, and even though there is a legal requirement to pull power under section 75.323(c), he decided to modify the (b) order to get other people involved and get the problem taken care of. Tr. 69-71. He stated that the issue of seal construction did not factor into this decision to modify the 104(b) order to require the de-energizing of the mine and the withdrawal of all the men. Tr. 72, 87. Lewis further stated that if the methane reading he had taken on January 11, 2012, had been less than one percent, he probably would not have issued the 104(b) modification. Tr. 72, 73.
The Secretary’s witnesses also included Charles “Jasey” Maggard, a MSHA Staff Assistant, who testified generally about power in the mine and the need to de-energize in the presence of methane, Tr. 113-161, and James Travis Proffitt (“Profitt”), a MSHA ventilation specialist whose testimony included the plan to seal the entire Straight Creek seam by water inundation. Proffitt’s testimony also served to reveal the extensive amount of time and resources expended by Left Fork and MSHA in the development of the plan over a period of about six months. Tr. 163-216. Proffitt also opined that if Lewis thought the air was stagnant in the area of the #2 and #3 seals, and the ventilation control line curtain was down, then the air would not be properly sweeping across and ventilating those seals. Tr. 200, 201.
LAW AND REGULATIONS
Section 104(a) of the Act sets forth the conditions under which a citation may be issued to a mine operator. Section 104(a) provides:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this chapter has violated this chapter, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this chapter, he shall, with reasonable promptness, issue a citation to the operator. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this chapter.
30 U.S.C. § 814(a).
Section 104(b) of the Act describes the responsibilities of the Secretary when the problem or condition identified as the subject of a 104(a) citation has not been abated at the time of a follow-up inspection. Section 104(b) states:
If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) that a violation described in a citation issued pursuant to subsection (a) of this section has not been totally abated within the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the abatement should not be further extended, he shall determine the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine or his agent to immediately cause all persons, except those persons referred to in subsection (c) of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated.
30 U.S.C. § 814(b).
Section 103(k) of the Act establishes the authority of the Secretary to take appropriate action in the event of any accident in a mine. Section 103(k) reads:
In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.
30 U.S.C § 813(k).
Regulation 30 C.F.R. §75.333 contains safety standards for ventilation controls, and subsection (h) addresses maintenance of the controls. Section 75.333(h) reads:
All ventilation controls, including seals, shall be maintained to serve the purpose for which they were built.
30 C.F.R. §75.333(h).
CONTENTIONS OF THE PARTIES
Contestant argues that, since de-energizing the entire underground portion of the mine is not related to abatement of the underlying violation, i.e. failing to maintain the seal, and in fact makes abatement not possible, it cannot be so ordered under 104(b). Contestant further argues that under the 103(k) order, miners were not allowed to go to the seals. Contestant contends that the seals at issue in the 104(b) order could not have caused an accident that would affect the entire mine, and, therefore, expanding the scope of the 104(b) order to the entire mine was inappropriate. Contestant claims that the Secretary did not have the authority under Section 104(b) of the Act to require the operator to shut down the entire mine and to de-energize all underground electrical power. Contestant finally argues that, even if the Secretary has authority under 104(b) to order Left Fork to de-energize the mine, the order is arbitrary and capricious and does not contribute to the safety of the mine. As a result of the order, Contestant claims that the safety of the mine has decreased and it will become a total loss.
The Secretary contends that the 104(b) order itself is not at issue, but only the January 11, 2012 modification of that order. The Secretary argues that her actions in modifying the 104(b) order to extend to the entire mine and remove the electrical power underground were reasonable. Based on conditions observed near the No. 3 seal on January 11, 2012, the Secretary supports this argument by explaining that the degree of risk presented by keeping the power on with unknown quantities of potentially explosive methane levels was high enough to justify the requirement to remove the underground electrical power. Further, the Secretary claims that her actions were reasonable because several factors were considered in making the decision to modify the 104(b) order to extend to the entire mine and to require de-energization. According to the Secretary, these factors include: prior inundation of methane, the potential for methane liberation in the seam, the potential harm presented by an explosion in the area, the risk of injury presented should an explosion occur and the continued deterioration of the mine. In addition, she argues that it was appropriate to require withdrawal of personnel and de-energization of the entire mine because the Rim seam and the Straight Creek seam are locked in the same ventilation system.
ANAYLYSIS AND
CONCLUSIONS
Approaching the #2 and #3 seals in the Straight Creek seam on January 11, 2012, Inspector Lewis noticed the air was stagnant. A ventilation line curtain had been felled by a rock and air was not sweeping through the area as it otherwise would. As Lewis and Supervisor Hurt progressed to about forty feet from the seals, their detectors signaled the presence of methane. Bottle samples then taken later confirmed methane concentration levels of 1.12 and 1.64, and oxygen levels of 20.37 and 20.04. Ex 5.
The atmosphere encountered was not explosive,[10] but the levels did meet the criteria for application of the safety standard for excessive methane. As the Secretary candidly admitted in her opening statement at the hearing, a citation could have been issued under Section 75.323. Tr. 10,11. This would have served to shut off the power and withdraw miners. In the alternative, I observe that the 103(k) order, which was based on the March 2011 methane inundation and used twice before to remove power and stop work, could have been modified again to achieve the same result.
Instead, Lewis and Hurt chose the instant 104(b) order that had been issued in error and never corrected or vacated, and decided to issue a modification with a justification that is not sustainable. The attempt by the testimony of Lewis to explain this unfortunate choice as not wanting to write more paperwork to the company fails to convince because, with the rediscovery of methane, some paper would surely be written. Simply put, the Inspector and his Supervisor chose the wrong method to close down the Straight Creek #1 Mine.
The 104(b) Order of March 29, 2011
Under the Mine Act, the Secretary has the burden of proving the fact or occurrence of the cited violations by a preponderance of the evidence. Garden Creek Poccahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). The Secretary may satisfy her preponderance of the evidence burden by demonstrating “that it was more likely than not” that the cited violation occurred. Enlow Fork Mining Company, 19 FMSHRC 5, 13 (January 1997). The Secretary may satisfy her burden of proof by relying on reasonable inferences drawn from indirect evidence, but such inferences must be inherently reasonable and there must be a rational connection between the evidentiary facts and the ultimate fact to be inferred. Garden Creek, 11 FMSHRC at 2153 citing Mid-Continent Resources, Inc., 6 FMSHRC at 1132, 1138. According to Mid-Continent Resources, when the validity of a 104(b) order is challenged by an operator, the Secretary bears the burden of proving that the violation described in the underlying citation was not abated within the given time period. Mid-Continent Resources, Inc. 11 FMSHRC 505, 509 (April 1989).
Contrary to the argument of the Secretary that only the January 11, 2012 modification is at issue, I find that prior to consideration of whether the modification to the 104(b) order was proper, it is important to determine the validity of the issuance of the initial 104(b) order.
Though the condition subject to the 104(a) citation, the lack of maintenance of the seals, had not been abated on March 29, 2011, the 103(k) order in place prevented the operator from abating the condition without an approved plan. Also, mine personnel believed that the March 23, 2011 Action Plan had been denied, based apparently on the reported conversation between Cox and Mills. I find this belief to be credible, and therefore abatement by repair of the seals was not possible on March 29, 2011 due to both the 103(k) order and the unofficial denial of the March 23, 2011 Action Plan. Despite the fact that seal repair was not permitted up to and including March 29, 2011, the instant 104(b) order was issued. Compounding this mistake, both reasons given for the order were erroneous; a plan had been submitted to MSHA, and the time for abatement could not be considered reasonable because repairs had not been allowed by MSHA. It is the 103(k) requirement of an Action Plan that is the subject of the 104(b) order, and therefore, to meet her burden, the Secretary must provide evidence that no plan had been submitted to abate the underlying seal condition.
Since the mine was operating under a 103(k) order at the time the 104(b) order was issued, if the mine operator wanted to abate the underlying conditions in the 104(a) citation, the repair of seals, it would first have to submit a plan, and upon approval of that plan, seek a modification to the 103(k) order to permit workers to carry out the plan and abate the conditions. At the time of the 104(b) issuance on March 29, 2011, the 103(k) order permitted only energizing power center #1 and pumping water in the Straight Creek seam. Exs. 2, C. Contestant was also permitted to monitor the atmosphere outside several seals Exs. 2, C. Absent an approved plan and modification of the 103(k) order, miners were not permitted to go to the seals and perform work.
The 104(b) order was issued for failure to submit a plan, as pertinent to this decision, for repair at the #3 seal. Ex. B. However, Left Fork had submitted a plan for repairing the #3 seal on March 23, 2011, six days before the 104(b) order was issued. That plan proposed repairing the seal by injecting a polyurethane-type grout into the mine roof. Ex. I. According to the testimony of Cox, found credible when compared to the facts and circumstances in this case, that plan was not approved,[11] but no reason for the denial was given. Tr. 280, 281, 313. According to the testimony of Partin, also found credible for the same reason, there was no written denial of the March 23, 2011 plan. Tr. 333, 334. The first recognizable denial of a plan to fix the seal did not come until April 11, 2011, nearly two weeks after the 104(b) order was issued, and this was in response to the Action Plan of April 8, 2011. Ex. J
The Secretary did not offer sufficient evidence that no plan had been submitted, and did not even include the March 23, 2011 plan in her exhibits.
Due to the fact that Left Fork had submitted to MSHA a plan to fix the #3 seal, the premise on which the 104(b) order was based must be found to be in error. But was there a premise on which the 104(b) order could have been correctly written? If the order had been issued because the mine had not abated the condition, such order would have been in error since the 103(k) order prevented repairs being made without an approved Action Plan. If the order had been issued because an Action Plan had been denied, that would obviously be incorrect because the mine could not abate the condition until an Action Plan was approved. However, if the 104(b) order had been based on an approved Action Plan to repair the seals that Left Fork had not implemented, (assuming any appropriate modification of the 103(k)), the result could be different. But that is not the case here. I find that 104(b) Order No. 8353807 of March 29, 2011, based on a failure to submit a repair plan, was not validly issued.
The 104(b) Order
Modification of January 11, 2012
It is well settled that, absent legal prejudice, MSHA may modify a section 104 citation. Wyoming Fuel Company, 14 FMSHRC 1282, 1289-1290 (Aug. 1992). But the question presented here is whether modification of a vacated order survives to be scrutinized for its validity. The result of vacating an order is to cancel it or render it null and void.[12] It is as if the order no longer exists. Unless the reviewing authority issuing the decision to vacate specifically limits the decision to only a particular portion of the order, the entire order is set aside. It follows, then, that an amendment or modification that had been made to a vacated section 104 order would be cancelled as well.
But even if I had found the initial 104(b) order to be valid, the obviously confused and even incorrect and irrelevant justifications written for the issuance of the modification would call into question its validity.
The first paragraph of the written justification does not in any way relate to either the 104(a) seal maintenance citation or the subsequent 104(b) order for failure to submit a repair plan. Rather, it states a general reference to prior unabated orders at the mine and unspecified hazards.
The second paragraph of the modification of the 104(b) order is not only confusing but also unrelated to the 104(b) order as well as the underlying 104(a) citation. With the first sentence, it appears that Lewis confused the instant 104(b) order with Order No. 8353800, which is actually the 107(a) imminent danger order due to methane inundation. He then further cites Order No. 8353803, which is a weekly examination violation that appears (from data on the MSHA website) to have nothing to do with the instant case. The second paragraph actually addresses the plan to seal the entire Straight Creek seam, not the seal maintenance that was at issue when the 104(a) citation was written. Lewis’s attempts at hearing to discount his confusion and reframe the argument that the modification to the 104(b) order was appropriate were incredible to say the least. Lewis testified that he modified the 104(b) order because of the high methane readings and poor ventilation; however, other than the possibility that methane was leaking from above the seal but not being swept out of the mine due to the absence of the ventilation curtain, this testimony does not confirm a direct relationship between his findings forty to fifty feet from the seal and the state of strata above the seal which was not observed at that time. Lewis wrote nothing in the justification about the discovery of methane that day, and also failed to record what he knew about the ventilation line curtain being torn down. If methane was the reason for the order as was asserted, there were other, sustainable choices available to accomplish closure of the mine.
The first two sentences of the third paragraph are also irrelevant, referencing again the prior unabated violations and stating an opinion regarding hazards, but with no reference made to the repair of the old seals. The remainder of the third paragraph lists the actions to be taken to shut down the entire mine, with the exception of the ventilation fans. Even if I could find that the original 104(b) order was valid, albeit containing erroneous statements, the written reasons for modifying that order are unrelated to the repair of the old seals in the Straight Creek seam and incorrect.
Nothing in Section 104(b) of the Act authorizes the de-energizing of an entire mine, only the withdrawal of certain personnel. See 30 U.S.C. § 814(b). If the Secretary wanted to de-energize the mine, she would have had to do so under different authority, either a citation for the methane discovered or another modification of the 103(k) order, as discussed above. Further, a 104(b) order is not the appropriate vehicle for shutting down a mine for its history of violations, but rather must relate back to the lack of abatement of the specific violation cited in the original 104(a) citation. Although I have determined the modification of January 11, 2012, does not survive the decision to vacate the 104(b) Order of March 29, 2011, I also find in the alternative that the modification was issued in error and invalid.
Practical Impact
of Decision
It might appear that upon finding the 104(b) order and modification invalid, the Straight Creek #1 Mine could restore power and begin pumping, assuming the mine is not already lost to flooding. But the mine cannot just turn on the power. As acknowledged by General Manager Jefferson Davis, if the 104(b) order were lifted, an action plan acceptable to MSHA would be required to re-establish power and de-water pump the mine. Tr. 398, 399. Even the finally approved plan to seal off the entire Straight Creek seam, so many months and so much manpower in the making, cannot be implemented without a rehabilitation plan approved by MSHA.
If the instant (104b) order and modification had been found to be valid, the result would not be much different. The mine would still be required to submit an acceptable rehabilitation plan, most likely addressing the multiple steps outlined by Mr. Davis in his testimony. Tr. 398-401.
Therefore, regardless of whether the 104(b) order and modification were found valid or invalid, in the absence of an acceptable rehabilitation plan the only discernable result of the expenditure of many resources by all parties, including this proceeding, is the progressive flooding of the mine and loss of equipment. These comments, of course, are not a part of the decision, but are offered to explain why at the conclusion of the hearing on January 31, 2012, I suggested to the parties that the best resolution would be for the principals to meet and work out a plan to prevent destruction of the mine. If such an agreement could be reached, the parties were invited to contact my office. As of the date of this decision, there has been no contact.
ORDER
It is hereby ORDERED that 104(b) order No. 8353807, as modified, is VACATED. Having found that the order is invalid, this case is DISMISSED.
/s/
Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution:
John M. Williams, Esq., and Todd Meyers, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513
[1] Both the order and citation are currently assigned to another ALJ.
[2] Note that the Secretary’s exhibits are designated by
numbers and Contestant’s exhibits are designated by letters.
[3] 30 C.F.R. § 75.323(b) states that (1) when 1.0 percent
or more methane is present a working place or an intake air course,
electrically powered equipment and other mechanized equipment in the affected
area, other than intrinsically safe atmospheric monitoring systems, shall
deenergized and/or shut off, changes shall be made to the ventilation system
and no work shall be permitted in the affected area until the concentration is
less an 1.0 percent; and (2) when 1.5 percent or more methane is present in a
working place or an intake air course, everyone other than those referred to in
§ 104 of the Act shall be withdrawn and electrically powered equipment shall be
disconnected from the power source, except for intrinsically safe atmospheric
monitoring systems.
[4] This order is assigned to another ALJ.
[5] Assigned to another ALJ.
[6] The Rim seam is located on top of the Straight Creek
seam and there are places where the two meet. Tr. 25; Ex. J-1. These seams are also conjoined by the same
ventilation system. Tr. 26; Ex. J-1.
[7] See Analysis of Air Samples. Ex. 5.
[8] See Ex. R,
the depth of the water levels within the mine.
[9] Ex. 5.
[10] The atmosphere is considered to be explosive when the methane concentration is between 5 and 15 percent inclusively and the oxygen concentration is greater than 12.1 percent. See CONSOL of Kentucky, Inc., 30 FMSHRC 1, 3 (Jan. 2008)(ALJ)
[11] This testimony concerns a conversation only between Cox and Mills, and neither the Secretary nor Respondent provided any written evidence indicating a formal denial of the Action Plan of March 23, 2011.
[12] I note that the Merriam Webster Dictionary defines
vacate as “to make legally void.”
“Vacate.” Merriam Webster
Dictionary. http://www.merriam-webster.com/dictionary/vacate (2012).