FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Citation No. 7065176 was also initially included in the hearing. However, after some initial testimony, the parties were able to reach a settlement of this Citation. The parties entered the agreement on the record which is set forth below.

JOINT STIPULATIONS

The parties stipulate to the following:

1. Emerald Coal Resources, LP operates the Emerald Mine No. 1 where the citations and orders in contest were issued.

2. Emerald Mine No. 1 is an underground coal mine in Greene County , Pennsylvania.

3. Emerald Mine No. 1 produced 4,901,640 tons of coal in 2010.

4. Emerald produces coal using longwall methods and continuous miners.

5. Emerald is an “operator” as defined in § 3(d) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter “the Act”), 30 U.S.C. § 803(d), at the coal mine at which the citations at issue in this proceeding were issued.

6. Operations of Emerald at the coal mine where the citations were issued in this proceeding are subject to the jurisdiction of the Act.

7. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 of the Act.

8. The individual whose signature appears in Block 22 of the Citations at issue in this proceeding was acting in the official capacity and as an authorized representative of the Secretary of Labor when the citations were issued.

9. True copies of the citations and orders at issue in this proceeding were served on Emerald as required by the Act.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact are based on the record as a whole and my careful observation of the witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a failure on my part to have fully considered it. The fact that some evidence is not discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8^th Cir. 2000)(administrative law judge is not required to discuss all evidence and failure to cite specific evidence does not mean it was not considered).

The Citation and Orders in dispute and discussed below have been designated by the Secretary as significant and substantial and unwarrantable failures to comply with mandatory safety standards. A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the Act as a violation “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 properly designated S&S “if, based upon the particular facts surrounding that 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).

The Commission has explained that:

[i]n order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (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); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

The difficulty with finding a violation S&S normally comes with the third element of the Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance: We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is made in consideration of the length of time that the violative condition existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices.” Id. MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices. Id. Low negligence exists when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. High negligence exists when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).

By its definition, an unwarrantable failure suggests more than ordinary negligence. 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 340, 353 (Mar. 2000). A judge may also determine, in his discretion, that some factors are not relevant or may determine that some factors are much less important than other factors under the circumstances. IO Coal Company, 31 FMSHRC 1346, 1351 (Dec. 2009).

The Commission has recognized that whether conduct is “aggravated” in the context of unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. Aggravating factors include 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 were necessary for compliance, the operator's efforts in abating the violative condition, whether the violation was obvious or posed a high degree of danger, and the operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC at 353 (“Consol”); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Beth Energy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. The Commission has made clear that it is necessary for a judge to consider all relevant factors, rather than relying on one to the exclusion of others. Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 125, 129-36 (Mar. 2007) (remanding unwarrantable determination for further analysis and findings when judge failed to analyze all factors). While an administrative law judge may determine, in his or her discretion, that some factors are not relevant, or may determine that some factors are much less important than other factors under the circumstances, all of the factors must be taken into consideration and at least noted by the judge. IO Coal Company, 31 FMSHRC at 1351.

I rely on the state of the law as discussed herein in considering each issue addressed below and whether the Citation and Orders which are alleged to be S&S and an unwarrantable failure meet the above noted criteria.

Citation No. 7065252

On April 8, 2010, Inspector Allan Jack (“Jack”) wrote Citation No. 7065252 citing a Section 104(a)[1] violation of 30 C.F.R. § 75.400 stating:

Accumulations of coal and coal dust black in color and dry to the touch was dumped in the face of the No. 2 entry of the operating E-Mains section (MMU 025-0). These accumulations made a pile 3 to 6 feet in height, 20 feet in length, and 16 feet in width. Management was put on notice for accumulation violations in January of 2010.

This standard has been cited 66 times at this mine in the past two years.

This Citation was designated as S&S and reasonably likely to cause permanently disabling injuries to two miners. The inspector evaluated the operator’s negligence as high and assessed a penalty of $17,300.00. The citation was terminated when the operator removed the accumulations.

Exhibit 1.[2]

30 C.F.R. § 75.400, entitled “Accumulations of combustible materials,” provides, “Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel powered and electric equipment therein.” 30 C.F.R. § 75.400-2 requires operators to establish and maintain a cleanup program that is available to the Secretary or authorized representative.

Jack has worked for the Mine Safety and Health Administration (“MSHA”) in the Ruff Creek field office for four years and had previously worked in the mining industry as a machine operator and a fire boss for approximately eleven years. Tr. 19-20. During his inspection of the Emerald No. 1 Mine, Jack was accompanied by Lloyd Birt (“Birt”), a section foreman and the representative for Emerald at that time.

Jack testified that he observed accumulations of coal and coal dust that were black in color, pushed into the face of the No. 2 entry and were approximately twenty feet long, sixteen feet wide and three to six feet high.[3] Tr. 21-22. After picking up a sample of the accumulation, he determined that it was dry and composed of coal and coal dust. Tr. 22-23. According to Jack, Birt theorized that the accumulations had been pushed to the face during either the previous afternoon or midnight shift Tr. 24.

Jack then issued Citation No. 7065252 for a violation of 30 C.F.R. § 75.400 because coal and coal dust are combustible materials. Tr. 25. He designated it as reasonably likely[4] to result in permanently disabling injuries because Emerald had no set pattern to the mining cycle in the E-Mains and, therefore, it was unknown what piece of equipment, including electrical equipment, would be in a specific location at a specific time and traveling past the accumulations. Tr. 25-26. He determined that two people would be affected because, although there are at least ten miners on the section, in the event of a fire, about twenty percent of the crew would try to fight the fire while the others evacuated the mine. Tr. 41. He assessed the operator’s negligence as high because Respondent was notified in 2010[5] that pushing accumulations to the face was no longer an accepted practice by MSHA and that the negligence designations would be increased for repeat violations. Tr. 26, 57. Before the time of the instant citation, Respondent was advised by MSHA that an acceptable amount of accumulation that could be pushed to the face was the amount of coal the mining machine was sitting on.[6] Tr. 30-31, 67-69, 71. Additionally, he wrote that management knew about the violation because a section foreman conducts a preshift and onshift examination every day and would have seen the accumulations. Tr. 43-44; Ex. 2. In his experience and opinion, this was not a common practice within the industry. Tr. 29.

Both Jack and Supervisory Health and Safety Inspector Robert Newhouse[7] (“Newhouse”) expressed concern with the general lack of rock dust on the accumulations. Tr. 35-36, 80. This concern was exacerbated by the fact that the Mine was on a five day spot inspection due to the liberation of methane. Tr. 73-74. Jack explained that the rock duster in the section fan located a couple of blocks from this entry had deposited what little rock dust was present, but there was no indication of deliberate rock dust on the accumulation. Tr. 36, Ex. 2. Birt confirmed this method of rock dusting at the hearing. Tr. 145.

As part of his position, Newhouse attends pre-inspection conferences in which he discusses any trends for that particular mine, whether they be accident or violation trends, in order to explain MSHA’s enforcement or accident initiatives at that particular time. Tr. 65-66. He testified that these conferences are typically attended by inspectors, the supervisor, the assistant district manager, mine management staff, the safety staff and, if relevant, the union safety committee. Tr. 66. He specifically testified that Section 75.400 was discussed during the January 2010 pre-inspection conference and that both Respondent and Safety Director Bill Schifko (“Schifko”), who manages compliance and litigation issues at the Mine, and the mine foreman were present. Tr. 67, 193. The purpose of this discussion was to reduce the number of violations under section 75.400 by more closely evaluating the negligence following a two-week grace period for the operator. Tr. 67-68, 83-84, 207. The particular issue of pushing coal to the face was not discussed. Tr. 208-209, 248-249.

Birt testified that the continuous miner mines continuously through a cycle[8], dumping the coal behind itself as it proceeds. Tr. 122-123. Schifko explained that the cleanup process has always involved preventing loose coal from lying around on the mine floor to prevent it from being pulverized by passing machines, which included pushing residual material to the face to be picked up during the next mining cycle. Tr. 194, 200. This residual material is a combination of the coal left by the loader when the continuous miner leaves the entry and coal that is deposited as a result of spillage in the feeder. Tr. 124-127. The scoop generally pushes the coal to the face until the cutting cycle brings the miner back to that entry. Tr. 125-127. There are a total of six entries in the E-Mains section of the Mine. Tr. 136.

Birt attempted to differentiate Emerald’s cleanup process from stockpiling by explaining that stockpiling is accumulating cut coal that a mine wants to do something with at a later time. Tr. 142. The cleanup process at Emerald only involves cleaning up the cycle and leaving it at the face. Tr. 142. He does admit, however, that the accumulation created is more than what is left under the continuous miner, but testified that no one in mine management informed him that this process was a violation of 30 C.F.R. § 75.400. Tr. 142-143. Schifko added that prior to 2010, this practice was never cited and asserts that the practice is not unsafe because there are no ignition sources in the area of the accumulations. Tr. 195, 202-203, 205. To the contrary, Newhouse stated that despite Respondent’s insistence of its worth, this practice is essentially the intentional stockpiling of coal and was unacceptable. Tr. 70-71, 79. Moreover, he testified that the accumulations do not follow Respondent’s cleanup program. [9] Tr. 75.

Respondent entered the testimony of three former MSHA inspectors who retired between 2006 and 2009. Each offered testimony that the cleanup program practiced by Emerald was once not only accepted, but encouraged by MSHA. Tr. 162-190. However, as I made clear at the hearing, this testimony has little relevance to what is acceptable to MSHA now, as the testimony of Newhouse clearly establishes that MSHA’s position on the accumulations has changed and Respondent had been apprised of the change. Consequently, I accord no weight to this testimony as it does not relate to what was acceptable at the time of the citation in dispute.

After considering all of the evidence, I find that Respondent has violated § 75.400, a mandatory safety standard under the Act. Respondent was on clear notice that the size of the accumulation in the citation far exceeded the acceptable amount of accumulation. An accumulation was intentionally created at the face of the No. 2 Entry. Tr. 21-22, 125-127, 200. Although Schifko argued that, in his opinion, an accumulation occurs “where you don’t want it, where you shouldn’t expect it,” I am not persuaded by this argument. Tr. 118. If this definition of an accumulation were allowed to stand, operators could argue that accumulations in basically any location were wanted and could then explain how they do not create a hazard. This would significantly limit the plain language and spirit of the regulation and the Mine Act.

However, I am constrained to find that this citation is non-S&S in the circumstances herein. I do not suggest that an accumulation of this nature can never be S&S; rather, I limit this ruling strictly to the evidence in this particular case. In different circumstances, there could be a confluence of factors that would create an S&S violation, e.g. an ignition source in the area, the size and composition of the accumulation, a disruption to the ventilation, the lack of rock dusting and whether the mine is liberating methane. However, looking at the evidence presented at the hearing as a whole, I find that the Secretary did not satisfy her burden of establishing that an injury was reasonably likely to occur, the required third element of the Mathies formula. Jack admitted that no ignition sources were in the vicinity of the accumulations and no methane was present at the time of the inspection. Tr. 42-43. The Secretary also failed to show that there were any ignition sources in the area or that electrical equipment would pass by the accumulations. Moreover, although the Secretary argued generally that an accumulation could create ventilation blockage, inspector Jack’s air readings; although difficult to obtain, showed that the ventilation was not disrupted by the accumulation and that a methane reading was zero. Tr. 89, 126-127. Thus, the Secretary’s evidence failed to establish an injury was reasonably likely to occur from this particular accumulation. In light of the preceding evidence, I find that the Mathies test has not been met and the violation is non-S&S.

However, I do find that Respondent was highly negligent in establishing and allowing this accumulation to exist. Whether or not the pre-inspection conferences attended by both MSHA and representatives of the Mine specifically discussed the issue of pushing coal to the face, this was not the first time that Respondent had received a citation for this particular activity. Tr. 99-100; Ex. 4. Further, Birt admitted that MSHA had spoken to Mine management at least one time for dumping too much coal at the face. Tr. 140. Even though the warning had been issued, Respondent allowed an accumulation measuring twenty feet long, three to six feet high and sixteen feet wide, which by anyone’s calculation is a large amount of coal, to exist in its No. 2 Entry. Tr. 21-22; Ex. 1. In addition, it admits that it would have existed in that condition for at least one week before being cleaned up. Tr. 145. All of this tends to show not only that Respondent knew of the violative condition, but it did nothing to correct it. In fact, Respondent encouraged the practice. Respondent clearly knew that its practice was in violation of MSHA’s enforcement initiatives.

Respondent’s management argues that its action was not the result of high negligence because through the diligence of management, the Mine’s violations of 30 C.F.R. § 75.400 are less than the national average. Tr. 210. It further states that it initiated discussions with MSHA about altering its cleanup plan to better comply with MSHA’s interpretation of the regulation, but no alternatives were offered. Tr. 213, 225; Ex. A-2. To be sure, attempts at better compliance should be applauded, but Respondent continued to behave in the very way that it had been cited for in the past. Moreover, it is not MSHA’s responsibility to demonstrate how to comply with the regulation, which clearly states that accumulations are not acceptable. I find that there are no mitigating factors present and affirm the Secretary’s high negligence designation.

Based on the penalty criteria found in 30 C.F.R. § 100.3, I find that a reasonable penalty for this cited violation is $8,000.00. This takes into consideration the operator’s size, its history of violations, its level of negligence, the reduced gravity of the violation, the operator’s demonstrated good faith in quickly correcting the violation and the its ability to continue in business.

Order Nos. 7065170 and 7065171

On April 12, 2010, Inspector Ronald Rihaly (“Rihaly”) wrote 104(d)(1) Order No. 7065170 citing a violation of 30 C.F.R. § 75.364(a)(2)(iii) stating:

The weekly examination of the B-7 bleeder system has not been conducted in its entirety to assure ventilation and air quality, including bleeder evaluations points B-5, B-4 and monitoring point No. 2. The last entire examination entered in the Mine Examines (sic) record book was dated 3/16/10. This violation is an unwarrantable failure to comply with a mandatory standard.

3 citations issued under this standard the previous 2 years at this Mine.

This Order was designated as S&S and highly likely to result in fatal injuries to ten miners. The inspector evaluated the operator’s negligence as high and evacuated all personnel from the B-7 bleeder system and the B-7, 021-0 longwall section, except persons making examinations and those persons needed to correct the condition. A penalty of $60,000.00 was assessed for this violation. The Order was terminated four days later when the weekly examination of the B side bleeder system, including all bleeder evaluation points and EP #2, was completed.

Exhibit 7.

30 C.F.R. § 75.364(a)(2)(iii) entitled, “Weekly examination” provides:

At least every 7 days, a certified person shall evaluate the effectiveness of bleeder systems required by § 75.334 as follows:

(iii) At least one entry of each set of bleeder entries used as part of a bleeder system under § 75.334 shall be traveled in its entirety. Measurements of methane and oxygen concentrations and air quantities and a test to determine if the air is moving in the proper direction shall be made at the measurement point locations specified in the mine ventilation plan to determine the effectiveness of the bleeder system.

Also on April 12, 2010, Rihaly wrote 104(d)(1) Order No. 7065171 citing a violation of 30 C.F.R. § 75.370(a)(1) stating:

The Operators Approved Ventilation Plan was not being followed in that water was permitted to accumulate in the B-7 bleeder entry from E-x cut (between B-6 and B-5 longwall bleeder evaluation points) and extending inby as far as cap light would travel. The water was knee deep (approximately 20 inches) at E-x cut and appeared to be deeper inby (from observation on pumpable cans, roof support). This has affected the bleeder system, evaluation points and monitoring station. This violation is an unwarrantable failure to comply with a mandatory standard.

22 citations issued under this standard the previous 2 years at this Mine.

This Order was designated as S&S and highly likely to result in fatal injuries to 120 miners. The operator’s negligence was assessed as high and the entire mine was evacuated, with the exception of those persons needed to correct the conditions and those who conducted examinations. A penalty of $60,000.00 was assessed for this violation. The Order was terminated four days later when the water accumulation was pumped from the bleeder system.

Exhibit 8.

30 C.F.R. § 75.0370(a)(1) entitled, “Mine ventilation plan; submission and approval,” provides in pertinent part, “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.”

As the testimony and evidence for the two Orders are indistinguishable, they will be discussed together. I separate the Orders in the analysis.

Rihaly has worked for MSHA as a coal mine inspector for approximately twenty-two years. [10] Tr. 257. As part of his experience with MSHA over the last seventeen or twenty years, he has inspected longwall mines and bleeders systems, such as those at issue here. Tr. 339-340. Prior to becoming an inspector, he worked in the industry for fifteen or sixteen years at three mines in various positions. Tr. 257-258. He obtained his mine foreman’s certification during this time as well. Tr. 258.

Rihaly testified that when he arrived at the Mine on April 12, 2010, someone informed him that he “ought to look at the B7 weekly examination records.” Tr. 341. While neither he nor Inspector Jack recollected exactly who gave them this information, they had reason to believe that it was an employee of Emerald who stated that he did not want to file a “G”[11] complaint. Tr. 341-342, 574. Upon looking at the examination books, Rihaly and Jack realized that the most recent weekly examination of the B7 bleeder[12] run was not completed in its entirety. Tr. 343; Ex. 12. The entry in the examination stated, “One, H2O over hip boots, inby E crosscut, B6 to B5. H2O knee deep outby B6 sump.” Tr. 347; Ex. 12. He and Jack then continued to work backwards and found that the weekly examination of the B7 bleeder had not been completed in its entirety since March 16, 2010. Tr. 347; Ex. 12.

Rihaly traveled down the B7 bleeder until he reached the water, near the B regulator. Tr. 352; Ex. 17. At that time, he decided to travel back through the water to the furthest point that the mine examiner had. Tr. 352-353. Using a stick in the center of the travelway to determine how deep the water was, his best estimate was that it was two and half to three feet deep. Tr. 353. Upon reaching the furthest point that the examiner traveled, Rihaly testified that “I looked as far as my cap light would see. There was nothing. There was just water.” Tr. 371. He estimated that the water at this point was approximately four and a half feet deep.[13] Tr. 372. Rihaly further testified that the water was murky with yellow boy[14] in it, so any obstructions in the water could not be seen. Tr. 391-392.

Rihaly’s main concern with the water accumulation was that it would prevent ventilation and methane from the gob would be allowed to buildup in the bleeder and travel to the longwall face. Tr. 354-355, 361-362. He admitted, however, that he had no idea whether the air at the longwall was, in fact, affected. Tr. 423. The records showed that, since that water had been allowed to accumulate, air readings had fallen over sixty percent, indicating that the efficiency of the bleeder system and the air quantity was diminishing because the water was restricting air flow to the 7 bleeder fan. Tr. 356-357, 369-370; Ex. 14. He further noted that during the time that the water was allowed to accumulate and the air quantity was diminishing, the longwall was active with equipment and miners were underground with no pumps running. Tr. 365-366.

When Rihaly left to go underground, Inspector Jack discussed the lack of examinations with General Mine Foreman John Hunchuck (“Hunchuck”). Tr. 557. Hunchuck explained that Respondent had discovered a six-inch discharge line that was broken near BEP B5, which it assumed flooded the bleeder. Tr. 557. He stated that the damage had been repaired and pumpers were continuously pumping the water on every shift to get the water to recede. Tr. 557-558. Although the examinations were not being conducted, Jack testified that he was informed by former union representative Randy Hartley that the B7 longwall was operating about three hours each shift. Tr. 558. This was verified in a production report. Tr. 559-560; Ex. 15.

Once the problem was examined and noted, Rihaly discussed the situation with the mine examiners. Tr. 358. Specifically, Rihaly wanted to know why the examiners had observed the water accumulation and dropping air quantity, but had not made any effort to pump the water out of the bleeder. Tr. 358. No real answer was given. Tr. 359. At that point, Rihaly informed mine management that he would be contacting Newhouse, who told him to issue a verbal withdrawal order until Newhouse could drive to the mine to determine the extent of the violation. Tr. 359-360. Upon arrival, Newhouse determined that the entire mine was affected and Rihaly issued the written Order at this time.[15] Tr. 378.

Rihaly testified that he designated Order No. 7065170 as highly likely to result in a fatal injury because of the air quantities at the BEPs and the fact that the intake regulator had gone down two weeks after the condition was reported. Tr. 389; Ex. 7. He designated the operator negligence as high because Respondent knew that the condition had existed for several weeks, but, in Rihaly’s opinion, had not allocated adequate resources to correcting it in a timely manner. Tr. 390; Ex. 7. However, Rihaly did admit that he had no idea whether more miners and equipment was allocated to the bleeder system once the Orders were issued. Tr. 415-416. Further, two sumps and seven or eight air pumps were located in the bleeder system to pump water. Tr. 435-438.

Later that day, Jack returned to the Mine to gather more information upon orders from Newhouse and was informed that the examination had been conducted and no dangerous levels of methane or abnormal air readings were found. Tr. 562-564. Members of management then offered to take him back to the area by boat, which Jack declined testifying, “That is not what we’re about. We’re about health, safety, and that’s not safe.” Tr. 564-565. Jack testified that he was not aware of any mines that used boats to conduct examinations due to buildups of water. Tr. 566.

On April 15, 2010, Emerald contacted the Ruff Creek field office to inform Newhouse and Rihaly that the water accumulation had been corrected, and it was ready to be inspected for the purpose of termination of the orders. Tr. 400. Although the water had receded, Rihaley testified that the water was still about knee deep and the bleeder system was still not safe for travel. Further, several miners exited the bleeder system with hip waders that were wet.[16] Tr. 400-404. Therefore, Rihaly did not lift the withdraw orders. Tr. 401.

The Orders were finally terminated on April 16, 2010 by Steve Davidovich (“Davidovich”), a MSHA inspector and ventilation specialist with approximately five years of experience. Tr. 407-408, 576-577. Davidovich’s notes stated, “Traveled B7 No. 3 entry from 13 crosscut to EP2, NVO[17]. […] At 67 crosscut, there was water measuring 15 inches deep. At the deepest point extending approximately 70 feet inby and outby this point, getting shallower as you go. There is one three-inch and two two-inch air pumps pumping this water and six people manning pumps.” Tr. 579; Ex. 11. Although he testified that he was able to travel safely through the entirety of the bleeder system, he testified that he observed watermarks on the pumpable ribs that looked “fresh” and indicated that the water had been nearly two feet from the roof at some points. Tr. 580. He further observed discharge lines along the gob side rib that had at least three repairs that he observed as new because there was no yellow boy on the them and the bolts were clean. Tr. 581, 583.

Dennis J. Swentosky (“Swentosky”) has been the ventilation supervisor in MSHA’s District 2 since 1996. Tr. 458. He began with MSHA as a regular inspector in 1972 and became a ventilation specialist in 1982. Tr. 459. As ventilation supervisor, Swentosky’s duties include overseeing two ventilation specialists and mine ventilation plan approval as well as other plans that come into the office. Tr. 458. Through his work, he has had a lot of experience reviewing the Emerald Mine’s ventilation plan and is familiar with its bleeder system. Tr. 460-461.

Swentosky explained that “the bleeder system itself controls the air through the worked-out area, and it carries methane to the back end into the internal flow fans and out the back and then in the fan.” Tr. 469. He also testified that the purpose of the evaluation points in the bleeder system is to ensure that the air quantity and quality are sufficient and the air is moving in the correct direction. Tr. 463, 465. Specifically, checking the air direction ensures that methane is carried through the worked-out area, into the worked out area and out through the fan, rendering the methane harmless. Tr. 466. This is particularly important because Emerald is on a spot inspection for the release of methane. Tr. 473.

As for the weekly examinations, Swentosky testified that such examinations give the operator the opportunity to evaluate the system as a whole. Tr. 477. Not only does the examiner check the air direction, quantity and quality, he also evaluates the roof conditions as well as water accumulations that could restrict airflow or cause it to move in different or unwanted directions. Tr. 477, 479, 481. The completion of each examination then creates a history of records, so that the operator can determine any changes in the bleeder system. Tr. 477. Without complete examinations being conducted, the operator cannot accurately evaluate its ventilation system. Tr. 478.

Swentosky stated that failure to complete an examination is not just a technical violation but is an integral part of the examination in determining whether methane is building up or being taken through the course and to the surface. Tr. 484. In reviewing the air quantity readings at the Emerald No. 1 Mine from February 23, 2010 to April 6, 2010, Swentosky opined that the readings revealed that something had occurred in the bleeder system that should be “looked into.” Tr. 486-487. If more than fifty percent of the airflow has been restricted, it has been redirected and the operator must know where the air is going to determine what the problem is and ensure that the air is moving down the longwall where miners are working. Tr. 487-489.

Water accumulations would have an effect on air quantity measurements because it restricts the air. Tr. 492. Air restrictions increase the possibility of methane build-up, especially at the face. Tr. 493. However, Swentosky admitted that he did not know whether Emerald had degasification holes[18] in the particular sections affected by the water. Tr. 517. Further, he stated that methane readings taken from each side of the water would provide some general information concerning the presence of methane; however, these do not show readings of any methane accumulated at the back end. Tr. 521-522. The readings taken by Emerald during this period were less than one percent, which is acceptable. Tr. 522-523. Due to the long history of deep water in the bleeder system contained in the record books, Swentosky concluded that Emerald had not really taken measures to get rid of the condition. Tr. 494-503.

John Hunchuck has worked at the Mine since 1980 and is currently the mine manager. Tr. 667. During the relevant time period, Hunchuck was the general mine foreman and, as such, his main responsibility was to ensure that there was ventilation underground while the men were working. Tr. 667-668. He received his Bachelor’s degree in education from California State University in Pennsylvania and later attended Penn State’s mining technology program for which he is only a few hours short of receiving an Associate’s degree. Tr. 670. He further has certifications as a mine examiner, assistant mine foreman and mine foreman. Tr. 669. Since assuming the position of general mine foreman, he has dealt with examining and evaluating the bleeder system. Tr. 670.

As a possible explanation for the amount of water in the bleeder system, Hunchuck explained that the Mine borders the Robena Mine, which has been previously sealed and basically flooded. Tr. 688-689. In addition, there are other mines that are mined out and flooded near the Emerald Mine. Tr. 692. There is very little that Emerald can do about this except to maintain the pumping system. Tr. 689. He stated that when prior problems with the bleeder system had arisen, MSHA had given the Mine extensions and worked with management to correct the issues. Tr. 707. In this instance, however, he admitted that that he did not call the MSHA field office; rather, he told one of the field inspectors, notably leaving out the fact that the water was chest high. Tr. 733.

On March 24, 2010, Hunchuck was alerted to the fact that the weekly examination could not be fully conducted on March 23, 2010. Tr. 690. He immediately made plans for dayshift to conduct it and contacted the foreman and his pumper, who was also a certified examiner because he suspected a break in the line between B6 and B5. Tr. 690-691. A break was later found in the main six-inch discharge line and a dresser sleeve was placed on it. Tr. 691. The miners reported that the water was flowing at that time. Tr. 691, 694. The next day, however, a two-inch pump had to be repaired as well. Tr. 694. Under cross-examination, Hunchuck admitted that he knew that failure to conduct a weekly examination was a violation; however, he stated that he was simply trying to correct the problems and was operating from the knowledge of MSHA’s prior extensions. Tr. 731-732. As noted, he did not inform the MSHA field office of the water problem prior to April 12, 2010, when the orders were written by Rihaly.

At the hearing, Hunchuck incredibly testified, not withstanding his knowledge that the required weekly examinations could not be accomplished because of high water in the bleeder system, that he was able to monitor the conditions of the bleeder system by monitoring fan charts for any discrepancies and examining the daily foreman’s report and examination books for changes in air and methane readings. Tr. 696-697, 702-703. The fan charts show the water gauge of what the fan is pulling in. Tr. 697. If there is a problem, the chart will spike, indicating, at the least, resistance or a possible stopping or ventilation control that is out. Tr. 697; Ex. N. During the weeks of March 18 and 25, 2010, the charts did not show any signs of the existence of problems, but he acknowledged that the fan will pull in a certain amount air regardless of whether evaluation points are blocked. Tr. 699-700, 702, 747; Ex. N. He further testified that he personally checked the gob and inland evaluation points and found no significant change in the air from the previous readings. Tr. 707. After evaluating the preshift reports, fan charts and weekly examination records and speaking to the section foreman, Hunchuck determined that air was moving as it should be and he did not shut down the longwall because he believed that no danger was present even though the weekly examination had not been conducted and the pooled water spanned approximately one mile.[19] Tr. 705-707, 755. Although he testified that a significant decrease in air quantity would concern him, Hunchuck was somewhat dismissive of the sixty percent drop in air quantity, stating, “Over a period of time, yes, it is, I guess.” Tr. 735.

In light of his evaluation that no danger was present due to the water and without correcting the problem, Hunchuck went on vacation on March 27, 2010 and returned on April 5, 2010. Tr. 709. During this time, retired Emerald employee, Charles Warren (“Warren”) substituted for Hunchuck. Tr. 709. Warren’s instructions were to continue monitoring the water and call Hunchuck at home if anything occurred. Tr. 710. During this time, Warren reported that repairs were made to pumps and additional discharge pipes were taken down to the pumps; however, the examination on March 30, 2010 was unable to be completed. Tr. 711-712. When Hunchuck returned, he was told that the water had receded, but there was still a pool of it. Tr. 710-711. By April 6, 2010, the Mine had lost ground on the water issue and the weekly examination could not be completed again. Tr. 713. Hunchuck explained that the pump problems were actually exacerbated by the water problem, basically creating a cycle of water accumulation and pump breakage. Tr. 727.

As pervasive and serious as the problem was, Hunchuck waited until the midnight shift the next day to address the problem. Tr. 716-718. He testified that there was only one pumper on day shift and he did send a few men down during the afternoon shift. Tr. 721. His explanation for not calling in more pumpers on the day shift was that he did not have enough pumpers to maintain both the bleeders and the rest of the Mine and the men did not want to work overtime if they knew that they had to go back into the bleeders.[20] Tr. 721-722, 742. Further, from all the reading and personal travel through the bleeders, Hunchuck never believed that the bleeder was not functioning properly or that the Mine was unsafe. Tr. 729.

Hunchuck admitted that he had the authority to pull men off the longwall and assign them to the bleeder at any time necessary. Tr. 740. However, he did not do so because he did not feel that the extensive water was a hazard to the men. Tr. 471. After the withdrawal order was issued, the abatement effort was basically “all hands on deck.” Tr. 740. Approximately ten miners, a shift foreman and two pumpers were in the bleeders at one time trying to pump the water out to terminate that withdraw order. Tr. 740. The men found two more line breaks that were previously under water. Tr. 738.

Jason Scott Hustus (“Hustus”) has been the Engineering Manager at the Mine since 2008 and is responsible for ventilation, roof control, surveying, mapping and supervising the engineering staff. Tr. 761-762. He has both a Bachelor’s and Master’s degree in Science and Engineering of Mines from West Virginia University. Tr. 765. Prior to this position, he held numerous positions at Respondent’s Cumberland Mine for approximately twelve years, both in engineering as well as operations. Tr. 762. During his time at the Cumberland Mine, he was responsible for the installation of eighty ventilation seals as well as working air changes[21] and conducting ventilation surveys.[22] Tr. 763. He testified that his oversight at the instant Mine involves these same issues, including those in the bleeder system. Tr. 764.

Hustus was familiar with the bleeder system during the time in question and, after going over Respondent’s documents, he testified that he did not believe that the bleeder system was ineffective due to the water. Tr. 766. He stated that all of the readings indicated that air was coursing in its proper direction and methane was being diluted and rendered harmless.[23] Tr. 766-767. Therefore, he concluded that it was safe to continue working with the water’s existence. Tr. 767. Further, he was not concerned with the water roofing out because the location was the low spot in the bleeder system; therefore, if the water rose, it would level out at the higher elevations. Tr. 768. Moreover, he testified that if the water were to roof out, there would be an immediate increase in the water gauge at the No. 7 bleeder fan, which was being monitored.[24] Tr. 768-769.

Hustus testified that the goal of the bleeder system is to create negative pressure to pull methane away from the active longwall face. Tr. 778. The methane from the gob would report to the back of the bleeder system and exit through the No. 7 bleeder shaft and the gob vent bore holes.[25] Tr. 778. Although he offered no explanation to his assertion, Hustus stated that the bleeder system was doing what it was designed to do in April 2010. Tr. 779, 783. However, he also admitted that he knew that the failure to pump water from the bleeder entry system to a passable level is a violation of Respondent’s ventilation plan and that he was aware of the water problems before Rihaly issued either of the Orders. Tr. 783, 784.

Hustus believed that the bleeder system could be effectively evaluated without BEPs 4 and 5 because the operator must look at how the system as a whole is functioning, not just a few individual points. Tr. 771-772. He further opined that BEPs 6 and 7 were much more critical because they had the most influence over the current longwall panel that was being mined. Tr. 773. He stated that prior to 2009, Respondent was only required to evaluate BEPs 6 and 7, but admits that a letter was issued in 2008, long before this violation, stating that operators must evaluate all of the evaluation points, not just the current and adjacent ones. Tr. 772-776, 789. He further acknowledged that he knew that the failure to conduct a complete examination was a violation. Tr. 783.

As the engineering manager, Hustus attended meetings with former mine superintendent Tom Rager at the district office in which the Mine’s intent was to modify the existing order to change the affected area from the entire mine to just the B district. Tr. 779-780. Hustus and Rager presented the readings from the No. 7 air shaft and the readings from the evaluation points that had previous been obtained. Tr. 780. MSHA explained that it could not simply accept Respondent’s evaluation and the water would have to be pumped down so that an inspector could travel the bleeder. Tr. 781. MSHA also stated that it would work with Respondent if something occurred that caused the water to rise, i.e. a pipe or pump break. Tr. 789-790. Although he was aware that Respondent could have contacted MSHA to discuss the water problem in March and April 2010 and that this initiative had been taken for other problems[26], it did not do so in this instance. Tr. 785-786, 790.

1. Order No. 7065170

I find that this violation is S&S as well as an unwarrantable failure to comply with a mandatory safety standard. However, I find that the violation was the result of reckless disregard rather than high negligence based on the evidence discussed below.

From the facts and testimony at hearing, it is clear that there was a violation of 30 C.F.R. § 75.364(a)(2)(iii). Not only was the weekly examination not completed for one week, it could not be completed for several weeks. Ex. 12. Rather than pulling its miners until the examination could be completed and any hazards could be corrected as required by the regulation, Respondent decided to continue mining. This significantly contributes to the opportunity for miners to be affected by low air quantities, low air qualities or the build up of methane, all of which could result in serious, if not fatal, injuries. Respondent’s own charts reveal that the air quantity in the bleeders had decreased by roughly sixty percent. Ex. N. Further, because Respondent did not complete an examination for several weeks, it had no real knowledge of what conditions actually developed in the bleeder system during that time.

Respondent argues that this violation does not rise to the level of S&S because there were no ventilation problems within the bleeder system. However, other than its fan charts, it has no evidence to support this assertion. Hustus admits that although Respondent examined the adjacent evaluation points, the evaluation points at issue could not be reached. Tr. 767. Further, Swentosky testified that the fan is going to pull in a certain amount of air, regardless of where it comes from, which was corroborated by Respondent. Tr. 553, 770-771. In Coal River Mining, LLC, ALJ Andrews sums up the importance of MSHA’s examination scheme providing, “The examinations required by 30 CFR Part 75 are designed to protect miners from the dynamic conditions in underground coal mines by monitoring for and correcting unsafe conditions before and during shifts. 30 C.F. R. § 75.360; 30 C.F.R. § 75.362. Additionally, a weekly examination is required for less frequently accessed areas of the mine as additional protection for miners. 30 C.F.R. § 75.364. Without these examinations, miners are vulnerable to potentially unsafe conditions and may be unaware of the hazards nearby until it is too late to prevent an accident.” Id., 34 FMSHRC 1087, 1095 (May 2012)(ALJ). As acknowledged by MSHA, a proactive examination scheme is the only way to prevent conditions from becoming worse. As much as Respondent would like to argue that watching a fan chart from an office is sufficient, it simply is no substitute for the required weekly examination of the evaluation points and does not meet any of the requirements of the regulation.

I also find that this violation was an unwarrantable failure to comply with a mandatory safety standard and is the result of Respondent’s aggravated conduct as evidenced by its reckless disregard of the standard. In Oak Grove Resources, LLC, the operator allowed miners to enter the mine despite the fact that weekly examinations could not be conducted in certain locations due to water. Id. 2012 WL 894523 (Mar. 2012)(ALJ). The ALJ found an unwarrantable failure based on the fact that the operator was “on notice” about the failure to conduct the weekly examination. Id. In Pine Ridge Coal Company, LLC, the ALJ found the operator’s failure to conduct an adequate weekly examination to be an unwarrantable failure due to the prophylactic nature of the regulations requiring examinations. Id., 2012 WL 601258 (Jan. 2012)(ALJ).

Here, Hunchuck knew that the examinations were unable to be completed and that this failure constituted a violation of the regulation. Tr. 690, 731. In fact, he signed off on a report that the water in the bleeder system was over the height of hip boots. Tr. 752-752; Ex. 12, pg 91. Instead of alerting MSHA to the problem and assigning an adequate amount of pumpers and miners to correct the water problem in the bleeder system so that a proper examination could be conducted, he continued to allow mining at the longwall and, inexplicably, went on vacation and told another member of management to simply “monitor” the problem. Tr. 709-710. To say that this displayed the absence of any care for the regulation is an understatement. Further, Hustus’s testimony that the operator should be concerned with the system as a whole rather than the individual evaluation points indicates a deep misunderstanding of the regulations. Tr. 771-772. The purpose of the evaluation points is to allow the operator to understand the system as a whole based on these individual points. If the Mine had not been shut down, there is little to suggest that Respondent ever would have placed any emphasis in pumping the water and completing the weekly examination of the bleeder system.

Further, Respondent’s testimony concerning the preshift and onshift examinations at the face is unpersuasive in that the conditions in mines can change quickly and unexpectedly. Rihaly and Swentosky both testified that a storm front or low pressure system could move through, pushing the low air and any accumulated methane down the longwall where miners were working and equipment is running. Tr. 356, 514. This careless attitude toward examinations creates any number of opportunities for a serious, even fatal, accident to occur. Further, Swentosky acknowledged that mines have petitioned for amendments to their ventilation plans so that certain evaluation points did not have to be inspected, but Emerald never asked for any such amendment. Tr. 508-509, 538. Newhouse corroborated this. Tr. 634. Instead, it was content to simply not perform the required weekly examinations.

Based on the above, I find that Respondent’s negligence is more appropriately characterized as reckless disregard. Based on the penalty criteria found in 30 C.F.R. § 100.3, I find the reasonable penalty for this violation is $70,000.00. This takes into account all penalty criteria listed above. Further, I have increased the penalty given Respondent’s cavalier attitude of reckless disregard for the safety of its miners.

2. Order No. 7065171

I find that this violation is S&S as well as an unwarrantable failure to comply with a mandatory safety standard.

The testimony and evidence at hearing clearly confirms a violation of 30 C.F.R. § 75.370(a)(1). The Order states that water extended as far as the cap light would reach and it was approximately twenty inches deep. Ex. 8. However, testimony at the hearing revealed that the water was actually much deeper than this. Tr. 353, 397, 543. Although some water is expected in the bleeder systems, three to four feet of water is not a suitable condition for the bleeder system, especially in light of the fact that it actually was affecting airflow. Tr. 356-357; Ex. 4.

Respondent argues that MSHA’s issuance of this Order is inconsistent with its past acknowledgements that the agency understands that water collects in the bleeders and it expects operators to use reasonable efforts to control it. I find this unpersuasive. Whether MSHA has acknowledged that water tends to collect in the bleeders has no bearing here. This was not an accumulation of a couple inches, or even a couple of feet, of water. At certain points, even Respondent admits that the water was chest high and weeks worth of examination records indicate that the water was high enough to be over the miners’ hip boots. Tr. 800, 806; Ex. E. Common sense leads to the conclusion that this was not the reasonable accumulations to which MSHA referred.

Having found that a violation of the regulation exists, I further find that the violation is S&S in nature. During his testimony, Newhouse[27] testified that several issues could arise due to the presence of the water, including the ventilation changing direction, dropping air pressure and increasing methane. Tr. 615. Further, in his opinion, Bleeder Evaluation Point No. 6 was the most critical evaluation point because it was precisely where gas would be expected to be found. Tr. 617; Ex. 17. He explained that the Pittsburgh seam is noted for intrusions of sandstone, which can cause an ignition if methane is allowed to build and the miner bits strike the sandstone. Tr. 619. In the event of an explosion, Newhouse expected it to travel throughout the entire mine because it would pick up coal dust and loose coal as it traveled through the B and C Districts down to the eastern side of the Mine. Tr. 620-622. Given that Respondent continued its normal mining operations despite the water in the bleeder, it contributed to the hazard of methane accumulating and traveling to the face where it could then be ignited by equipment or a spark. It is reasonably likely that this could result in fatal injuries to any or all of the miners in the Mine, depending upon how the ignition traveled.

During his testimony, Rihaly stated that prior violations had been issued to Respondent for water in this part of the bleeder system, indicating that Respondent knew that it was an ongoing problem. Tr. 394-395. Further, John Balaz[28], who was a pumper for Respondent’s Mine in 2008, testified that the bleeders encountered many flooding problems in the past and when a problem occurred, Respondent’s response was to send someone when “available.” Tr. 594-596. As a whole, this testimony, as well as the record as a whole, repeatedly shows that Respondent was aware that the bleeder system had problems with flooding, but did very little to correct the problem over a period of several weeks. As such, I find that high negligence is the appropriate designation for this violation.

Respondent appears to argue that the violation is not the result of high negligence because several efforts had been made during the initial development of the bleeder system to anticipate any problems that may occur. This included the placement of several pumps and posts to repair bad top, among other measures. Tr. 671-681, 685; Ex. 12. While Respondent made some effort to reduce the water in the bleeder system, the testimony establishes that its efforts were haphazard and not indicative of a concerted effort to correct the problem.[29] The testimony also reveals that this was not Respondent’s first problem with water in the bleeder and the issues of obstacles had been discussed several times with members of management. Tr. 629-630; Ex. 21-1. Further, and telling, Respondent never contacted MSHA about the water, presumably because it knew the longwall would be shut down until the condition was corrected. This behavior shows a general lack of regard for the safety of the miners who could be affected.

The Secretary argues that this Order could have been designated as reckless disregard, but I decline to find such. Although Respondent allocated very few resources to pumping the water, it did make some token efforts. Over the course of two days, a discharge line and at least two pumps were repaired. Tr. 431; Ex. 12. On March 30, 2010, Respondent added an extra pump in the bleeder system. Tr. 429; Ex. 12. Three days later, Respondent also moved the pickups, or suction lines for the pump, to the deeper water in order to continue pumping. Tr. 430; Ex. 12. Although Respondent was aware that these efforts would not be enough to control the problem, they did show that some care uncharacteristic of reckless disregard. Based on the above findings, Order No. 7065170 is affirmed as written, including the $60,000.00 penalty assessment.

CITATION NO. 7065176

As previously noted, during the course of the hearing, the parties agree to settle this citation. The Secretary requests that Citation No. 7065176 be modified to reduce the negligence attributable to the operator from “High” to “Moderate” and the assessed penalty from $33,400.00 to $8,000.00. Based on the testimony heard by the Court, these reductions in the negligence and penalty are appropriate. Tr. 898.

ORDER

It is ORDERED that Citation No. 7065252 be MODIFIED from “Reasonably Likely” to “Unlikely” and to delete the significant and substantial designation. It is ORDERED that Order No. 7065170 be MODIFIED to increase the negligence from “High” to “Reckless Disregard.” It is further ORDERED that Order No. 7065171 is AFFIRMED as written. It is also ORDERED that Citation No. 7065176 be MODIFIED to reduce the negligence attributable to the operator from “High” to “Moderate.” Finally, it is ORDERED that Respondent PAY the Secretary of Labor the sum of $146,000.00 within 30 days of the date of this Decision.[30] Upon receipt of payment, this case is hereby DISMISSED.

/s/ Janet G. Harner

Janet G. Harner

Administrative Law Judge

Distribution:

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106

R. Henry Moore, Esq., and Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222

[1] In her Brief, the Secretary requests that I amend the citation to a Section 104(d)(1) Order alleging an unwarrantable failure. See pages 1 and 16 of her Brief. At no previous time in this proceeding did the Secretary seek to amend her petition. There is no Commission rule regarding amending penalty petitions. Therefore, pursuant to Commission Rule 2700.1(b), I am to be guided so far as practicable by the Federal Rules of Civil Procedure. Rule 15(b) of the Federal Rules permits amendments during and after trial provided certain conditions are met. Since the Secretary did not seek to amend her petition at the hearing, Section 15(b)(1) is inapplicable. Section 15(b)(2) permits amending the pleadings after trial if the issue is tried by the parties’ express or implied consent. Here, it is clear that the Respondent did not consent and in fact objected to the Secretary’s evidence that could have established an unwarrantable failure. In this regard, specific reference is made to the Secretary’s Exhibits 4 and 5 and Respondent’s objection thereto. Tr. 86-87. Further, Commission case law does not permit its judges to create new findings to support a violation not alleged. See e.g. Mettiki Coal Corporation, 13 FMSHRC 760, 764 (1991). Moreover, as to fundamental fairness in allowing such an amendment, I find it is too little, too late. There is no reason why the Secretary could not have alleged a Section 104(d)(1) violation well in advance of the hearing so as to give Respondent fair notice. Therefore, I decline to amend the pleading to allege a Section 104(d)(1) order.

[2] The Secretary’s exhibits are marked as numbers and Respondent’s exhibits are marked as letters. Further, Tr. followed by page numbers is a reference to the official transcript.

[3] The mine is approximately seven and a half to eight feet high in the area of the accumulation. Tr. 27.

[4] Jack first designated this violation as “unlikely,” but changed the designation while writing the citation.

[5] Jack testified that a meeting was held in January 2010 to alert Emerald management to the change in the enforcement of this regulation and to clarify that the acceptable amount of accumulation was no more than what was found under the mining machine. Tr. 31-32; Ex. 32. See also Newhouse’s testimony, Tr. 245.

[6] The amount of coal under a continuous miner would result in an accumulation about sixteen feet wide in a twenty foot entry, but only six to eight inches in depth. Tr. 80.

[7] Newhouse has worked for MSHA for thirty-five years and his overall industry experience amounts to approximately forty-four years. Tr. 63, 65.

[8] A cycle consists of mining the entry completely and then mining the crosscut and hauling the coal into the previous entry. Tr. 123.

[9] The cleanup program is part of the required ventilation plan that is designed by the operator and submitted to MSHA. Tr. 76.

[10] Note that Rihaly was first sworn in to testify to Citation No. 7065176, also part of this docket, which settled after the completion of the testimony. He remained sworn in to testify to the current Orders.

[11] A § 103(g) complaint allows a miner to anonymously report a violation or imminent danger to the Secretary for immediate inspection. Such a complaint must be reduced to writing and served upon the operator prior to the inspection. See 30 U.S.C. § 813(g).

[12] Rihaly explained that the bleeders provide the ventilation for the longwall. Bleeder evaluation points are variously referred to herein as B6, or BEP6, where the number indicates the location of the evaluation point in the bleeder system.

[13] This testimony was corroborated by MSHA ventilation supervisor Swentosky who testified that retired Mine Superintendent Tom Rager admitted at a meeting with the District that there was four and a half feet of water in the B7 bleeder and it was not operating. Tr. 397, 543; Ex. 33.

[14] “Yellow boy is an iron compound that normally occurs in water.” Tr. 629.

[15] Prior citations had been issued to Emerald for failing to conduct weekly examinations and these had only encompassed the longwall. Tr. 544.

[16] Rihaly testified that water accumulations about ankle-deep were often expected in the bleeder systems and were not particularly considered a problem. Tr. 412. Further, he revealed that there is no hard and fast rule for when the depth becomes an issue; rather, it is a combination of depth, color and what is apt to be lying beneath the water that must be considered. Tr. 413.

[17] “NVO” is an abbreviation for “no violations observed.” Tr. 579.

[18] Degasification holes are drilled horizontally into the coal seam to extract methane prior to the seam being mined. Tr. 517.

[19] Hunchuck first testified that the distance was approximately two miles; however, this statement was corrected under redirect. Tr. 739.

[20] This testimony that employees did not want to work overtime shows Respondent’s lack of attention to correcting the problem as management clearly had the power to compel overtime work.

[21] Air changes involve making evaluations and rerouting or redirecting air during ventilation plan changes. Tr. 763.

[22] Ventilation surveys involve obtaining quality pressure and methane readings, typically to build simulation models. Tr. 763-764.

[23] Hustus made this evaluation by looking at readings from the other evaluation points, methane levels in the No. 7 bleeder shaft and readings at the gob vent bore holes. Tr. 767.

[24] The significance of the fan is that it is the collection point of the entire bleeder system and “[a]ll of the area ultimately ends up at the bleeder fan, so it is an accumulation of all of the readings.” Tr. 769.

[25] Gob vent bore holes are horizontal holes drilled into the coal seam to degasify the coal seam prior to mining. Tr. 779.

[26] A separate BEP had previously been eliminated from the ventilation plan due to low oxygen levels. Tr. 790.

[27] It is noted that Newhouse testified that he had been involved with the ventilation plan at the Mine for the previous thirty-five years. Tr. 613.

[28] Balaz is currently an inspector with MSHA.

[29] In this regard, it is significant that, once the withdrawal order was issued on April 12, 2010, it took four days on concerted effort and man power to correct the water problem in the bleeder system before the Order was terminated on April 16, 2010.

[30] Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390

Appearances:	Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA for the Secretary R. Henry Moore, Esq., and Jason P. Webb, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA for Respondent
Before:	Judge Harner