FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
TELEPHONE:
(412) 920-2682
FAX: (412)
928-8689
May 7, 2013
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MAPLE CREEK MINING, INC., v. SECRETARY OF LABOR, |
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CONTEST PROCEEDING Docket No. PENN 2012-369-R
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DECISION
Appearances: Jennifer L. Klimowicz, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor
Jason D. Witt, Esq., for Maple Creek Mining, Inc., Murray Energy Corp.
Before: Judge Harner
This
case is before me on a Notice of Contest filed by Maple Creek Mining, Inc.
under Section 105 of the Federal Mine Safety and Health Act of 1977. The case involves one citation. The parties presented testimony and
documentary evidence at the hearing held in
I.
BACKGROUND AND SUMMARY OF EVIDENCE
The parties submitted the following joint stipulations, at Joint Exhibit 1 (JX -1)[1] :
1. High Quality Mine is owned by Contestant, Maple Creek Mining, Inc.
2. Contestant is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
3. The presiding Administrative Law Judge has jurisdiction over the proceedings pursuant to Section 105 of the Act.
4. The citation involved herein was properly served by a duly authorized representative of the Secretary of Labor upon an agent of the Respondent at the dates, times, and places stated therein, and may be admitted into evidence for the purpose of establishing its issuance.
5. The proposed penalty will have no effect upon Contestant’s ability to remain in business.
6. The parties stipulate to the authenticity of their exhibits.
7. Contestant operated High Quality Mine for approximately three years before closing and sealing the mine in 2005.
8. On August 1, 2008, Contestant requested that the mine’s status be changed from abandoned to active so that it could “obtain information regarding the current conditions in the slope entry and mine entries proximate to the slope bottom.”
9. William Ponceroff, the District 2 Manager at the time, notified Contestant in a letter dated August 14, 2008, that it was required to submit for his approval various plans, including a mine ventilation plan, prior to beginning work underground.
10. In September 2008, Contestant submitted guidelines for the removal of the cap on Bassi return shaft for MSHA’s approval. The parties discussed and modified these proposed guidelines during September and the beginning of October 2008. The District Manager approved Contestant’s plan for removing one of the three slabs forming the cap over the Bassi Intake Shaft on October 9, 2008.
11. In a letter dated November 17, 2008, Complainant requested approval to remove the seal from the slope at High Quality Mine. The District Manager approved this request on November 19, 2008.
12. Contestant requested approval to explore the slope of High Quality Mine in a letter dated March 31, 2009. Contestant’s Slope Exploration Plan was approved by the District Manager April 24, 2009.
13. On October 31, 2009, Contestant notified MSHA of its intent to idle High Quality Mine and requested permission to cease ventilation of the mine during its idle status.
14. The mine remained idle through May 1, 2010, at which time Contestant notified MSHA that it intended to re-start the fan at the Bassi Shaft so that exploration could begin later that year. District Manager Tom Light approved this action in a letter dated May 6, 2010.
15. On May 12, 2010, Contestant resubmitted its previously approved Slope Exploration Plan for MSHA’s approval. The plan was approved on May 21, 2010. Contestant requested MSHA’s approval to modify this plan to include the use of a permissible pager system, and approval was granted on June 3, 3010.
16. Contestant discovered a roof fall at the 1220 foot marking on the slope on July 22, 2010. It submitted a plan for the “Re-Exploration of the Slope Entry,” which was approved by the Acting District Manager on August 2, 2010. Contestant submitted amendments to this plan on February 18, 2011. The revised plan was approved by the District Manager on February 23, 2011.
17. Contestant’s “Addendum to Slope Rehabilitation Plan” was submitted on April 6, 2011 and approved on April 7, 2011.
18. Contestant submitted its Mine Exploration Plan for MSHA’s approval on July 7, 2011. The District Manager approved Contestant’s Mine Exploration Plan on August 16, 2011.
19. Between September 21 and November 9, 2011, Contestant submitted three addendums/revisions to its Exploration Plan regarding the use of permissible water pumps to remove standing water in the mine, and submitted one plan detailing safeguards to be implemented prior to reenergizing two pumps, all of which were approved by the District Manager.
20. Sometime in November 2011, Contestant called the MSHA District 2 Office to report that it had discovered a large roof fall across all entries of the mine at the No. 18 Crosscut of the No. 1 Mains.
21. On November 19, 2011, Contestant submitted a proposed plan to change the ventilation in the 1 East Bleeder, Slope and Intake Shaft Air Change. The proposed changes were approved by the District Manager on November 23, 2011.
22. As the roof fall at No. 18 crosscut has prevented further exploration of the mine, Contestant has decided to seal off the inaccessible areas of the mine. On December 3, 2011, Contestant submitted a proposed plan to Rehabilitate Entries to Facilitate Seal Installation.
23. In a letter dated December 7, 2011, the District Manager informed Contestant that he could not approve the proposed plan to Rehabilitate Entries to Facilitate Seal Installation because it did not provide reasonable assurances that certain areas of the mine were being adequately ventilated.
24. On January 4, 2012, the District Manager issued a letter notifying Contestant that its Exploration Plan was no longer acceptable, and that Contestant was required to submit a suitable ventilation plan for MSHA’s approval within 10 days.
25. Contestant submitted for approval a proposed Ventilation Plan on January 13, 2012. However, the District Manager notified Contestant that he could not approve the proposed plan in a letter dated February 16, 2012.
26. In a letter dated April 25, 2012, the District Manager again advised Contestant that its plan was no longer suitable, and that it was required to submit a complete ventilation plan for approval within 10 days.
27. The parties participated in a meeting on June 12, 2012, to discuss their differences regarding the proposed ventilation plan, but no agreement was reached. The parties agreed that MSHA would issue a citation so that a hearing could be held to resolve the impasse between the parties regarding the ventilation of High Quality Mine.
28. On June 25, 2012, the District Manager reminded Respondent that its previously approved plan was no longer acceptable and that it was required to submit a complete ventilation plan. This letter also notified Contestant that, if no additional information was submitted and approved by July 6, 2012, MSHA’s approval for its plan would be revoked. In its July 12, 2012 response, Contestant stated that it did not believe approval of its ventilation plan was required and requested that a citation be issued so that it could “seek resolution through the legal system.”
29. Contestant’s Exploration Plan was formally revoked on July 6, 2012. Contestant has continued its limited underground activities while awaiting judicial review.
30. The parties engaged in multiple meetings and telephone calls since the massive roof fall was discovered in November 2011 regarding the contents of Contestant’s ventilation plan, in addition to the correspondence described above, but they remain unable to reach any agreement regarding Contestant’s ventilation plan.
31. Contestant is unable determine whether areas of the mine inby the roof fall are being ventilated because the areas inby the roof fall are inaccessible and cannot be examined.
32. Contestant is also unable to determine whether the East Bleeder Entries are being ventilated. The bleeder entries are not being examined because it has not been determined that it would be safe for miners to travel them.
33. High Quality Mine is a gassy mine, as defined by Section 103(i) of the Mine Act.
34. The parties agree that they each engaged in good faith negotiations to resolve their disputes regarding 1) the revocation of Contestant’s Exploration Plan and 2) whether Contestant is required to have an approved Ventilation Plan prior to sealing the area of the mine that can’t be traveled or explored. Contestant also agrees that MSHA complied with the “Bishop” process, and that each party was provided ample opportunity to explain its position. See Bishop Coal Company, 5 IBMA 231, 1BNA MSHC 1367 (1975).
The docket at issue contains one citation (No. 7023028) that is alleged to be a violation of the Secretary’s mandatory health and safety regulations. GX-8.
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 (8th 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).
A. The Citation
After MSHA and the coal operator reached an impasse over the interpretation of the regulations, the operator requested that MSHA issue a citation in order to bring the matter before a court. Tr. 170-171. On July 17, 2012, Inspector Steve Davidovich issued a 104(a) citation -- Citation No. 7023028 -- to Maple Creek Mining for a violation of Section 75.370(a)(1) of the Secretary’s regulations. The citation alleges that:
The mine operator does not have a mine ventilation plan approved by the District Manager. The Operator submitted a plan, in accordance with 30 CFR 75.1721, which was approved for exploration activities on August 16, 2011. However, after the Operator reported that it had discovered a massive roof fall across all entries, MSHA notified the Operator in writing on January 4, 2012 that the previously approved plan was no longer acceptable and that the mine had to have an approved ventilation plan. The parties were unable to reach an agreement regarding the contents of a ventilation plan. On July 6, 2012, the August 2011 plan was formally revoked. On July 17, 2012, during an inspection it was determined that activities underground are continuing. Continued underground activity without an approved ventilation plan is a violation of the standard.
The inspector found that an injury was unlikely to occur, that the injury could reasonably be expected to result in no lost workdays, that the violation was not significant and substantial, that one person was affected, and that the violation was the result of low negligence on the part of the operator. GX-8.
B. The Regulations at Issue:
The regulation alleged to be violated is 30 C.F.R. §75.370(a)(1), which provides as follows:
Mine ventilation plan; submission and
approval
(a)(1) 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. The ventilation plan shall consist of two parts, the plan content as prescribed in § 75.371 and the ventilation map with information as prescribed in § 75.372. Only that portion of the map which contains information required under § 75.371 will be subject to approval by the district manager.
The body of the citation references 30 C.F.R. §75.1721, which provides in relevant part as follows:
(a) Each operator of a new underground coal mine, and a mine which has been abandoned or deactivated and is to be reopened or reactivated, shall prior to opening, reopening or reactivating the mine notify the Coal Mine Health and Safety District Manager for the district in which the mine is located of the approximate date of the proposed or actual opening of such mine. Thereafter, and as soon as practicable, the operator of such mine shall submit all preliminary plans in accordance with paragraphs (b) and (c) of this section to the District Manager and the operator shall not develop any part of the coalbed in such mine unless and until all preliminary plans have been approved.
The facts of this case are largely not in dispute. It is in the interpretation of the regulations that the parties differ.
C. The High Quality Mine Reopening:
The High Quality Mine was closed from 2005-2008. Tr. 32-33. At that time, the intake and return shafts were capped and the slope seal was built in the slope in order to prevent access. Tr. 32-33. As a result, there was no ventilation in the mine during those years. Tr. 33. The High Quality Mine is a gassy mine and when ventilation ceases, methane levels build up, oxygen levels decrease and, without pumping, water begins to flood the mine. Stip. 33; Tr. 33, 51. Prior to reopening, the atmosphere was “inert,” meaning that there were methane levels beyond the explosive range, and there was little oxygen. Tr. 33-34. During the reopening of a mine, one of the dangers is that the ventilation process brings methane levels back into the explosive range. Tr. 34.
The High Quality Mine has five longwall areas, with four of them having been mined out. Tr. 27-28. There is also a sixth area that was begun, but not completed, and has not been mined out with the longwall. Tr. 30. The mine is a medium sized coal mine that is approximately two to two and a half miles from the slope to the back. Tr. 160. MSHA inspector, Steve Davidovich, estimated that it is approximately 2,000-2,500 feet from the bottom of the slope to the 18 crosscut where the massive roof fall, discussed below, is located.[2] Tr. 160.
Access to the mine is gained by way of the slope, which is located at the top left hand corner of the map. Tr. 28; GX-1. This is also where fresh air enters the mine through a negative pressure system. Tr. 28, 32. There are three mains coming off the slope, and they are used to access the rest of the mine and provide ventilation through intake and return air forces. Tr. 29.
In order to have a methane explosion hazard three elements must be present: methane in the explosive range of 5-15%, at least 12% oxygen, and an ignition source. Tr. 126, 127. MSHA Inspector Jeremy Williams testified that ignition sources in worked-out areas of the mine could include a variety of causes, including roof bolts snapping off and sparking or lightning.[3] Tr. 146. Williams did not know the mine roof’s composition or whether a roof fall would necessarily cause a spark. Tr. 146.
On August 1, 2008, the Contestant requested that the mine’s status be changed from abandoned to active. Stip. 8. District 2 Manager, William Ponceroff, notified the Contestant on August 14, 2008 that it was required to submit various plans, including a ventilation plan. Stip. 9. In September 2008, the Contestant worked with MSHA to develop guidelines in order to remove the cap on the Bassi return shaft and begin pumping down the water levels in the mine. Tr. 35-36; Stip. 10. The plan, which was approved by the district manager on November 17, 2008, allowed the Contestant to breach the seal on the slope. Stip. 11. The Contestant submitted a Slope Exploration Plan, which would allow it to ventilate for a period of time, and then proceed with a plan for exploration at the bottom of the slope. Tr. 36. The Exploration Plan was approved by the district manager on April 24, 2009. Stip. 12.
On July 22, 2010, the Contestant discovered a roof fall on the slope, so the Contestant submitted a plan to rehabilitate the slope and support the area in order to clean up the fall. Tr. 37. The Contestant submitted a Re-Exploration Plan, along with amendment, which were approved by the district manager on February 23, 2011. Stip. 16.
Inspector Williams testified that 30 C.F.R. 75.1721 required Maple Creek to submit a plan to MSHA in order to rehabilitate the slope. [4] Tr. 37. After the Contestant cleaned the fall, it requested approval to travel to the bottom of the slope in order to begin pumping the bottom of the slope area. Tr. 38. These plans were all submitted by the Contestant to the MSHA ventilation department, and the ventilation department recommended to the district manager that each be approved. Tr. 38. The district manager approved each of them. Tr. 38; Stip. 16-19.
In order to rehabilitate the slope, the Contestant went in and resupported the roof with roof bolts and gunite. Tr. 161. They then brought in a mucking machine and loaded the fallen material onto a car and hauled it out. Tr. 161. The Contestant was required to have safety precautions in place, including temporary supports prior to anyone entering, as well as installing permanent supports and ensuring that fresh air was going over miners’ backs. Tr. 161-162.
During conversations between MSHA and the Contestant, MSHA insisted on knowing if the area down to 10 east, and the full extent of 9 east and 8 east, all the way up to the corner between the 60s and 5 east, was ventilated. Tr. 39. MSHA did not think that the mine would be able to be traveled because the mine had a lot of bottom hooving prior to its sealing. Tr. 39-40. Therefore, the plan was to travel down the mains to the bottom of the incompletely developed panel. Tr. 40. The Contestant planned to make sure the area was safe, and then seal off the areas in order to mine the other side of the mains. Tr. 41, 245. There were 10 stages to the plan and 10 different zones in the exploration plan. Tr. 41-42. Williams explained that exploring before reopening a mine is important to make sure all the areas are ventilated properly in order to mitigate or limit hazards. Tr. 42.
The Contestant’s activity in the mains since the exploration plan was approved has consisted primarily of pumping the water out of the mains. Tr. 162. They have also repaired some stoppings and patched some holes, and they may have set up some posts and jacks. Tr. 162. The Contestant replaced mandoors in stoppings that were rusted out and repaired some overcasts. Tr. 162-163. In order to make the air change in 2011 by the east bleeders, the Contestant had to build one or two stoppings. Tr. 163. This required examinations of the area for methane and oxygen, as well as the roof. Tr. 163.
The Contestant also submitted a plan for approval to explore the mine on July 11, 2011 after the slope had been rehabilitated. Tr. 43-46; GX-2. The mine’s representative, Mr. Taylor, was working with the MSHA ventilation department, sending in drafts of the plan and working through various issues. Tr. 46. The July 11 plan was submitted as the final plan. Tr. 47. It dealt with various issues, including ventilation of roof controls, gas levels, action levels, and air qualities. Tr. 47. The plan outlined action levels associated with different possible gas concentrations encountered. Tr. 48. It also addressed ventilation requirements for the mine while the operator was in the exploration phase. Tr. 48.
Williams testified that 30 C.F.R. §75.1721 requires the operator to have a plan that addresses ventilation and roof control issues as the mine is explored. Tr. 48. He described the required plan as “a preliminary plan to reenter the mine, to go in and set up guidelines...[and] what safety precautions are going to be taken while doing it.” Tr. 49. The plan was required to be approved by the district manager prior to developing the coal bed, a phrase which MSHA interprets to encompass rehabilitating the area, ventilating the area, and exploring the area while persons are traveling underground. Tr. 49. Williams described these activities as prerequisites to the actual mining process. Tr. 50. It is MSHA’s position that the phrase “developing a coal bed” in §1721 is synonymous with “developing the mine.” Tr. 138-139. Williams testified that he was not aware of a written policy by MSHA that defines the phrase “developing the coalbed.” Tr. 148. However, he stated that the development of a new mine is different than the development of a mine being reopened. Tr. 152. A closed mine that is being reopened must be reventilated, resupported, and pumped out, which MSHA interprets as redevelopment. Tr. 152.
The Contestant planned to repair damaged ventilation controls, stoppings, and overcasts as it came across them in order to keep air flowing in the proper direction. Tr. 51. Ideally, the air should have been drawn in through the Bassi return shaft down the slope and through the ventilation controls using negative pressure. Tr. 52. With regard to the bleeders, air should be coming in through the inlet evaluation points (“IEPs”), course around the perimeter, and return out the 1 east exit. Tr. 52. The air would then exhaust at the bleeder evaluation point (“BEP”) at 1 east and travel across the bank of the overcasts and the Bassi return shaft. Tr. 52. Williams testified that at the time of the early exploration period he believed that air was coursing properly, even if travel was not possible. Tr. 53.
MSHA approved the exploration plan in August 2011 because the agency believed it was a safe way to explore and reventilate the mine. Tr. 53. However, MSHA’s position was that in order to seal off the area, there would need to be assurances that the area inby the slope fall was safe. Tr. 54. Williams stated that “[w]e didn’t feel comfortable approving something and just go in and build seals without knowing what is a hundred feet away.” Tr. 54. Williams believed that the Contestant wanted to install 120 PSI seals, so that, according to the regulations, it would not be necessary to sample the atmosphere behind it. Tr. 55. However, in order to install these seals, the Contestant would have to introduce men and energized equipment into the area, as well as change ventilation, all of which would create an increased exposure to the hazards of methane. Tr. 56. The process would involve removing loose dirt and coal, as well as possibly having to re-support the areas. Tr. 163-164. The Contestant may also have to re-support the roof with either bolts or posts, and support the ribs to ensure safety for miners. Tr. 164.
D. The Roof Fall at 18 Crosscut and the
Subsequent Plans:
In early November 2011, the Contestant submitted requests for approval to install additional pumps. Tr. 81-82; Stip. 19; GX-4. In the November 2 letter, a second addendum is attached which requests approval to install two additional portable pumps to deal with water encountered while exploring. Tr. 84. Inspector Williams testified that approval for these pumps was required because MSHA wanted to know the different safety precautions in place while there was use of energized equipment. Tr. 84-85.
On November 10, 2011, the Contestant submitted a letter concerning safety precautions to be taken prior to reenergizing the pumps at the No. 9 entry in the 14 crosscut and the No. 1 entry in the 0 crosscut, which included the use of alarms and continuous methane monitors. Tr. 85. These pumps could function as ignition sources if the methane were at an explosive concentration. Tr. 85-86. Therefore, the Contestant planned to set the methane monitors so that if methane levels reached 1% or greater, an alarm would sound at the surface and a man at the surface would deenergize the power underground. Tr. 85.
At some point in November 2011, the Contestant called the MSHA District 2 office to report that it had discovered a large roof fall across all entries of the mine at the No. 18 crosscut of the No. 1 Mains. Stip. 20. Inspector Davidovich has traveled to the roof fall and testified that, at entries 4 through 10, the fall appears as an area that has been sheared straight. Tr. 166. Only at number 1 entry was there rubble. Tr. 166. However, even there, Davidovich could not determine the height of the fall. Tr. 167. Davidovich was concerned because it was likely that the roof fall destroyed the stopping between the 3 and 4 entries, which was part of a line of stoppings to separate intake and return air. Tr. 168. If this was the case, then it was likely that air was being short-circuited. Tr. 168.
MSHA had discussions with the Contestant about the explosive levels of methane that were being encountered at the 1 east bleeder. Tr. 64. On November 19, 2011, the Contestant submitted a proposed plan to change the ventilation in the 1 East Bleeder, which was approved by the district manager on November 23, 2011. Stip. 21. The Contestant switched the air direction so that rather than air with high levels of methane going over the energized pumps, the air would go into the 1 east area to a BEP. Tr. 65. Around this time, in November, the Contestant was able to see the full extent of the roof fall, and that it extended all of the way across all 9 entries. Tr. 68.
After the Contestant changed the air flow into the 1 east bleeder, there were no explosive levels of methane detected. Tr. 68-69. Williams testified that this air change would reduce the likelihood of being overcome by low oxygen or moving explosive levels of methane over the energized equipment. Tr. 133. Oxygen deficient air could lead to miners being overcome and passing out or dying from exposure to oxygen deficient environments. Tr. 134. Williams testified that miners would begin to feel these problems at 16% oxygen and then risk death at 12% oxygen. Tr. 135. Between 16-19.5% oxygen miners may or may not be exposed to a hazard. Tr. 135. Due to the other unknowns, Williams could not state whether the air change would be an appropriate way to ventilate the area in order to build seals. Tr. 134.
During this time, Contestant’s employee Van Horne[5] was providing MSHA different maps with air readings. Tr. 69. In the course of discussions with Van Horne, Williams was told of methane readings in excess of 5% at the 1 east BEP location. Tr. 69-70. The air readings from November 29-December 15, which MSHA requested for the approval process, were admitted as GX-3. Tr. 72-73, 78. Reviewing these documents, Williams testified that the air readings from November 29 gave him some cause for concern because the methane levels were a little elevated and they were rising and falling. Tr. 74. The oxygen levels also concerned Williams because they were at 19.5% on November 29-30, which is the minimum that is required to allow travel in the mines. Tr. 74-75. Williams testified that these air readings did not provide an accurate indication of the atmosphere in the areas not being traveled because it is being “sweetened”—or having fresh air added—by the air coming up from the examiner’s back. Tr. 75-76.
Based on the air readings submitted by the Contestant, Williams stated that the air change was instituted some time between November 29 and December 3. Tr. 77-78. From December 5 until December 15, the readings indicate that the methane levels were decreased, while the oxygen levels still fluctuated. Tr. 77-78. Based on the pump the Contestant was using, methane levels up to 2% were permissible. Tr. 79.
The roof fall at No. 18 crosscut has prevented further exploration of the mine, so the Contestant decided to seal off the inaccessible areas of the mine. Stip. 22. The air directions represented on the map as going around the perimeter of the bleeder cannot be verified because no one can travel that area. Tr. 25-26. The bleeder entries are used to ventilate the worked-out area. Tr. 30. Williams located the bleeder entries as going around the perimeter of the longwall area, because the mine used a wrap-around system. Tr. 27, 30. Therefore intake air would be introduced into the front end of each of the panels and the air would also be directed up and around the outside perimeter of the panel, and then carried back to the Bassi return shaft. Tr. 30-31. That shaft leads to a fan on the surface that draws the air out of the mine. Tr. 31.
MSHA was concerned about letting the Contestant seal off the area without knowing what the atmosphere was beyond the roof fall because there was no assurance of ventilation inby the roof fall. Tr. 57. The Contestant was measuring the air on the intake side of the roof fall, from 4 through 9 entry, and it was at 20.8% oxygen and zero methane. Tr. 57. However, it is unknown if the air is traveling across the roof and just reporting back to the number 1, 2, and 3 entries. Tr. 58. The air may be short-circuiting and coming back, and there is no assurance that the air is reaching the furthest point. Tr. 58. The proposed seal location was just outby the roof fall, so the return air coming from the worked-out area inby the roof fall, which may have a dangerous combination of low oxygen and explosive levels of methane, would be coming over the top of miners where energized equipment would be present. Tr. 58-59. The energized equipment would be used to rehabilitate the roof bolt, scoop silt and fines from flooding, pump water, and for the cementitious material for the seals or glue being used to build the seal. Tr. 59.
Miners working outby the roof fall would be at risk if an explosion or catastrophic event occurred inby the roof fall. Tr. 60. Even if the methane was in an inert state, the low oxygen levels could overcome miners installing the seals and make them unable to breathe. Tr. 60. Additionally, the introduction of oxygen would change the ventilation and bring methane levels down into an explosive range. Tr. 61.
After the massive roof fall was discovered in November 2011, MSHA changed its view as to the acceptability of the ventilation provisions in the approved exploration plan. Tr. 67, 86. At that time, the Manager of Safety and Regulatory Affairs for Murray Energy Corporation, Edwin Patrick Brady was asked by the Contestant for technical advice on the work being performed and in getting commitments from MSHA for plans to seal the mine.[6] Tr. 228, 241. In this capacity, Brady solicited information from operations concerning plans and goals, including ventilation plans. Tr. 242. He also went to MSHA meetings to negotiate a plan that could be approved. Tr. 242.
Under the exploration plan previously approved by MSHA on August 16, 2011, and its subsequent amendments, the mine was to be systematically explored according to 10 stages; however the roof fall in early November 2011 made it so that they could not proceed beyond the first stage. Tr. 86. Because further exploration of the mine was impossible and the intent of the plan could not be fulfilled, the plan would not longer be functioning as an exploration plan. Tr. 87. Therefore, in January 2012, MSHA notified the Contestant that the approved plan was no longer suitable. Tr. 87.
The Contestant proposed installing seals in the 1 main, 2 east, and 1 east locations. Tr. 87. Additionally, in the area outby the fall, the bottoms would need to be scooped, roof bolts may need to be installed, and there may be necessary maintenance of the ribs and roof. Tr. 88. The Contestant submitted a seal rehabilitation plan on December 3, 2011. Tr. 88-89; GX-5. The first page of the document is a letter from MSHA, stating that MSHA could no longer approve the plan because the plan did not provide a reasonable assurance that the area inby 1 east through 6 east and inby the roof fall were adequately ventilated. Tr. 91. Furthermore, it states that a request to approve an alternate method would require approval by the district manager. Tr. 92.
It is MSHA’s position that the process of getting the area ready for seals to be installed there would result in an increased exposure of hazards to miners because there would be more miners and energized equipment going into the area. Tr. 92-93. These include roof bolting machines, scoops, battery-powered locomotives, and supply cars going into the area. Tr. 93. There appears to be no reliable remote means to install approved seals. Tr. 56-57. To access the areas inby the roof fall, the Contestant could drill bore holes and go down to the angled reposts that were built up and isolate the area inby, but the testimony indicates that the process is prohibitively expensive. Tr. 57.
During this time the intake shaft was providing fresh air and the return shaft was ventilating methane out to the surface. Tr. 95. The low oxygen or high methane air would travel outby a bank of overcasts that crossed over the mains and went out to the Bassi return shaft. Tr. 96. At different locations on the return side outside air would have to pass miners working to rehabilitate the area. Tr. 96. MSHA was not concerned with the seals, but rather with the hazards involved in the process of installing the seals. Tr. 98.
MSHA supervisory mining engineer, Thomas Morley, reviewed the Contestant’s proposed rehabilitation sealing plan and testified that the plan was insufficient because it did not address the worked-out areas, which comprised the majority of the mine.[7] Tr. 201; GX-5. Morley agreed with the district manager’s assessment that the plan did not provide a reasonable assurance of ventilation for areas of the mine inby 1 east through 6 east longwall panels, and inby the roof fall, from number 1 entry through number 9 entry at crosscut 18. Tr. 202. Morley testified that the August 15, 2011, plan and the district manager’s August 16, 2011, letter do not indicate what regulation the district manager is applying. Tr. 215-216. However Morley believed that the proper regulation to be applied is Part 75, Section 1721. [8] Tr. 216.
Morley reviewed the Contestant’s proposed ventilation plan dated January 13, 2012, and testified that it was not sufficient to insure the safety of miners working underground at the mine because it provides no assurances of ventilation past crosscut 18. [9] Tr. 182, 183, 203. Morley testified that it would not be safe for miners to install seals prior to having assurances that the rest of the mine is properly ventilated because constructing seals is a substantial project that involves numerous people for extended periods of time. Tr. 203-204. Additionally, in the course of installing seals, there is always the possibility of moving methane from the worked-out area into the working area. Tr. 204. Bringing additional mobile equipment to construct the seals also increases the risk of an ignition source. Tr. 204-205.
MSHA sent the Contestant a letter in January 2012, notifying it that the previously approved Exploration Plan was no longer acceptable. Tr. 100; Stip. 24. The reason provided was that the original intent of the plan—to exlore inby the roof fall—could no longer be accomplished. Tr. 100. The letter requested that a complete ventilation plan that complied with 370(a)(1) be submitted within 10 days. Tr. 101; GX-6. Although the Contestant submitted a new plan after that, it was not acceptable to MSHA. Tr. 101; GX-7; Stip. 25.
On the first page of GX-7 is the rejection letter from MSHA, stating that the reason for not approving the plan was that the alternative method of evaluation of the worked-out area was not sufficient to provide reasonable assurance that the area inby the 1 east through 6 east longwall panel and inby the roof fall were being ventilated. Tr. 103; GX-7. The 1 east and 2 east areas at the intake evaluation points, and the 18 crosscut, were the furthest point of travel that was being conducted at the time. Tr. 104-105. It was from these points that the Contestant proposed evaluating the entire mine. Tr. 105. MSHA did not feel comfortable with this proposal because there was a chance that the air was entering the 4 through 9 entries and short-circuiting at the roof fall or inby the roof fall and not ventilating the rest of the mine. Tr. 105, 109. Similarly, MSHA was concerned that the air entering the 1 east and 2 east areas of the mine were short-circuiting, and had no idea what paths they may be taking. Tr. 105.
Pages 2 and 3 of GX-7 were the pages sent by the Contestant to MSHA requesting approval of the mine ventilation plan. Tr. 103; GX-7. The plan included provisions such as ventilation, dust control, and operating sprays for the miners. Tr. 103-104. This plan was more detailed than the original mine exploration plan because it included dust control and ventilation control parameters that would be used for mining coal. Tr. 110. Williams described the plan as being geared more towards operating the coal mine. Tr. 110. Williams also testified that the use of polyurethane foam sealants detailed on page 7 of the submission would not be sufficient for sealing the mine. Tr. 111; GX-7. He further stated that although page 5 of the plan states that there is no bleeder system projected, there was in essence a bleeder system at 1 through 6 east areas of the mine that introduces air into the worked-out area. Tr. 112.
Inspector Williams specified that the plan was not rejected because there was no seal projected, but rather because the areas inby the fall could not be evaluated. Tr. 112-113. He stated that MSHA’s stance did not change between December 7 and February 16 with regard to the dangers associated with sending miners and energized equipment to begin construction of the seals. Tr. 113.
MSHA has neither told the Contestant they must drill bore holes for the plan to be approved, nor has it demanded bore holes in specific locations. Tr. 116. In the meetings MSHA wanted reasonable assurance that the worked-out area of the mine was ventilated and contained no hazards. Tr. 248. MSHA and the operator discussed several scenarios, including the idea of removing the materials and putting a fan on a shaft that was partially constructed in the back of the mine. Tr. 248. Another scenario that was discussed involved directional drilling of bore holes into the abandoned area and injecting nitrogen into the holes. Tr. 248. Each of these ideas was ruled out as not economically feasible. Tr. 117. Williams testified that MSHA suggested bore holes as an acceptable means of alternate evaluation. Tr. 118. There were discussions of drilling bore holes and reversing the fans in order to blow air out of the holes and sample the atmosphere. Tr. 119.
Williams testified that a plan incorporating bore holes could either pull air out of the mine or into the mine, depending on the type of system employed. Tr. 129. If the bore hole hit a mine working, coal block, or collapsed area, there would likely be no air movement in or out. Tr. 130. There would be no way of knowing at the outset whether a bore hole would create air movement. Tr. 130. The bore hole option would not solve the problem, but it would give the district manager an alternative means of evaluating the atmosphere in the area.[10] Tr. 143, 222-223. MSHA has neither provided a precise number of bore holes necessary nor has it insisted on specific placement. Tr. 145, 250-253. However, it did suggest 6-8 inch holes and made suggestions for locations. [11] Tr. 252-253.
Brady, the safety manager at Murray Energy, believes that introducing bore holes or open air shafts would introduce additional hazards into the mine because they will disrupt whatever equilibrium that the mine has established. Tr. 250-251. He has reached the conclusion that the mine is stable because it has not acted in any way other than what was expected. Tr. 259-260. He testified that the operator could drill as many as 20 holes in the mine and, if they are not placed properly, they will not provide the needed information. Tr. 253. Furthermore, because the conditions of the abandoned area are unknown, he would not know how to determine proper placement of the bore holes. Tr. 253.
Brady testified that he did not believe it was possible to provide MSHA with reasonable assurances concerning the atmosphere in the worked-out area of the mine, and therefore it was proper to seal the area. Tr. 254-255. This was because no one knows what is in the worked-out areas of the mine. Tr. 270-271. He stated that, based on his conversations, sinking three bore holes would probably satisfy MSHA, but it wouldn’t reveal anything about the atmosphere in the worked-out area. Tr. 271-272. He described it as simply “going through an exercise.” Tr. 272. Brady does not believe anything short of removing the roof fall and traveling to the worked-out area would provide information of what is inby the roof fall. Tr. 272. Brady proposed placing seals at 1 east to 2 east and some place in front of the fall. Tr. 255, 272. He testified that a satisfactory plan could be designed that would safely keep fresh air on the working area while the seals were being installed. Tr. 256. At the time of hearing, the Contestant had not pursued such a satisfactory plan with MSHA. Tr. 276-278.
Inspector Davidovich issued a citation on July 17, 2012 after the mine operator requested a citation in order to get past the impasse with MSHA. Tr. 170; GX-8. At that time, he observed miners working underground. Tr. 171. Davidovich stated that he determined the gravity in the citation as unlikely that injury or illness would occur, no lost work days, and non-S&S. Tr. 171-172. Davidovich testified that Title 30, Part 75 of the regulations requires the mine operator to have an approved ventilation plan to seal the mine. Tr. 172-173, 176-177. In the body of the citation, Davidovich referenced § 75.1721, but in the box for the section violated he wrote 75.370(a)(1). Tr. 173. Davidovich testified that §75.364 is the regulation that allows an operator to seal a mine instead of exploring it, but he did not agree with the interpretation that the operator has an option between sealing and exploring. Tr. 174-175. Davidovich testified that he has never been in a situation where an operator decided to seal a mine rather than explore it. Tr. 175.
CONTENTIONS OF THE PARTIES
The Secretary argues that the Contestant had an approved mine ventilation plan prior to engaging in exploratory and rehabilitative activities because it was required to have such a plan under 30 C.F.R. §75.1721. The phrase “develop the coalbed” is not defined in Title 30 and the Secretary defines the phrase as synonymous with “develop the mine.” Though there is scant caselaw on §1721, the Secretary cites two ALJ decisions (Apex Minerals, Inc., 19 FMSHRC 796 (ALJ) (Apr. 1997) and Richard Klippstein & W.O. Pickett, Jr., 5 FMSHRC 1424, 1430 (ALJ) (Aug. 1983)) to argue that operators must have approved preliminary plans prior to rehabilitating or developing the mine.
The Secretary argues that the Contestant’s contention that the phrase “develop the coalbed” is synonymous with “to mine coal” is unsustainable. According to the Operator’s reading of the regulation, the Secretary would have to show that coal was mined in order to establish a violation. Whereas in cases such as Stansbury Coal Co., 1 FMSHRC 404, 412-413 (ALJ) (May 1979), the inspector issued the citation after the operator performed roof bolting, blasted the coal seam and bottom rock, and installed ventilation controls. The Secretary argues that even though the ALJ relied on evidence that the operator had gone beyond its rehabilitation plan and developed a solid block of coal in a working face, the other activities cited by the inspector would have been enough to uphold the violation. She argues that the Contestant engaged in similar activities as the operator in Stansbury Coal.
The Secretary contends that the Contestant’s rehabilitative activities constitute development of the coalbed under the regulation, and therefore it was required to have an approved ventilation plan. She cites to Richard Klippstein & W.O. Pickett, Jr., where an operator was found to have violated §1721 by drilling and blasting in order to evaluate the feasibility of mining the coal deposits. Additionally, in Apex Minerals, the ALJ held that §1721 requires “that MSHA approve any proposal for the rehabilitation of a mine.” 19 FMSHRC at 802. The Secretary argues that the activities engaged in by the operator, including repairing and building stoppings, installing mandoors, repairing overcasts, setting posts for roof support, setting jacks to support an overcast, and pumping down large accumulations of water constitute development of the mine.
The Secretary further argues that the Contestant was aware of the requirement to submit ventilation plans. The Secretary notes that the Contestant submitted over the course of four years approximately 15 plans, addendums, safeguards, guidelines, and revisions, each specifically requesting MSHA’s approval. Moreover, the proposed ventilation plan that was submitted on January 13, 2012, specifically recognizes that 30 C.F.R. §75.1721(b)(7) requires MSHA approval of the plan. GX-7. The Secretary also points to the requirements under §75.334(e) and §75.335(c), which state that approved ventilation plans are required to construct seals.
Finally, the Secretary argues that the District Manager’s actions were not abuses of his discretion when he revoked the Contestant’s previously approved plan and refused to approve subsequent plans that failed to ensure the safety of the miners underground. Citing C.W. Mining Co., 18 FMSHRC 1740 (Oct. 1996), she asserts that the Commission has long recognized the Secretary’s authority to revoke approval of a plan that is no longer suitable for the current conditions of the mine. She maintains that it is within the Secretary’s discretion to insist upon specific provisions as a condition of a plan’s approval. In the instant case, the discovery of the massive roof fall in November 2011 made the previously approved plan no longer suitable. The Secretary argues that with the atmosphere inby the roof fall unknown and unknowable, the District Manager was within his discretion to require a plan that provides reasonable assurances that the worked-out areas are being ventilated. This is especially true where, as here, all the elements for a methane explosion—an explosive level of methane, oxygen, and an ignition source—may be present.
The Contestant argues that the High Quality Mine is currently in a “non-producing and non-developing” status, and was not required to have approved ventilation plans for its activities. It states that the plans were submitted to the District Manager as a courtesy, rather than as a requirement. The Contestant reads 30 C.F.R. §75.1721 as requiring an operator to submit to MSHA a ventilation plan, but does not require approval until the coalbed is developed. The Contestant interprets the phrase “development of the coalbed” to mean that “mining equipment consisting of a mining unit must be installed in the mine, and must be in operation.” Contestant Post-Hearing Brief, 2. According to the Contestant, the term “coalbed” is synonymous in the industry with “coal seam,” and developing the coalbed means mining coal. Applying this definition, the exploration, rehabilitation, and ventilation did not constitute development of the coalbed at the High Quality Mine, and therefore there was no violation of §1721.
The Contestant argues that after discovering the massive roof fall, further exploration became impossible, it petitioned MSHA to seal the worked-out areas in accordance with 30 C.F.R. §75.334(d), which requires an operator to seal off inaccessible worked out areas. The Contestant maintains that its examinations and precautions will adequately protect miners who are installing the seals. It argues that MSHA’s suggested drilling of bore holes would provide no conclusive evidence of the atmosphere in the worked out areas, and carries with it the potential of introducing new hazards, such as oxygen, into the mine. Therefore, the Contestant argues that the District Manager abused his discretion and acted beyond his authority by refusing to approve the seal plan without an approved ventilation plan.
ANALYSIS
1. An Approved Ventilation Plan is Required
Under the Regulations
At the heart of this case is the
meaning of the phrase “develop any part of the coalbed” in 30 C.F.R. §75.1721. Neither the exact phrase, nor any similar
permutation of it is used elsewhere in the Mine Act or regulations. Furthermore, it has not been directly
interpreted by the Commission or its judges.
The Secretary interprets the phrase to mean “developing the mine,” which
would include activities taken in preparation of mining. The Contestant interprets the phrase to mean
actual mining, and contends that anything short of actual mining is not
comprehended by the phrase.
In order to interpret the meaning of the
regulation, it is necessary to begin by looking at the language of the
regulation. Sedgman, 28 FMSHRC 322, 329 (June 2006).
The Commission has stated:
Where the language of a regulatory provision is clear, the terms of
that provision must be enforced as they are written unless the regulator
clearly intended the words to have a different meaning or unless such a meaning
would lead to absurd results. It is only
when the meaning is ambiguous
that deference to the Secretary's interpretation is accorded.
Nally & Hamilton Enterprises, 33 FMSHRC 1759, 1762
(Aug. 2011) (citations omitted).
The regulation states in relevant part:
Each operator of a new underground coal mine, and a
mine which has been abandoned or deactivated and is to be reopened or
reactivated, shall prior to opening, reopening or reactivating the mine notify
the Coal Mine Health and Safety District Manager for the district in which the
mine is located of the approximate date of the proposed or actual opening of
such mine. Thereafter, and as soon as
practicable, the operator of such mine shall submit all preliminary plans in
accordance with paragraphs (b) and (c) of this section to the District Manager
and the operator shall not develop any part of the coalbed in such mine unless
and until all preliminary plans have been approved.
30
C.F.R. 75.1721(a).
The clear meaning of the phrase “develop any part of the coalbed,” as it is used in §75.1721, is to prepare the mine. The term “develop” indicates steps taken in preparation. The dictionary defines “develop” in this context as: “to prepare (a mineral-bearing deposit) for the extraction of ore (as by driving mine workings and passageways and providing power, ventilation, and other equipment).” Webster’s Third New International Dictionary, Unabridged. The term “coalbed” is defined in an unhelpful and tautological fashion in the Dictionary of Mining, Mineral, and Related Terms as “a bed or stratum of coal.” Dictionary of Mining, Mineral, and Related Terms (1968), quoted in Eastover Mining Co., 4 FMSHRC 1207, 1209 (July 1982).[12] However, the Commission has interpreted the term “coalbed” in the regulations as being broader than the bed or stratum of coal.
Interpreting the meaning of the
phrase “height of the coalbed” in 30 C.F.R. §75.1710, the Commission has held
that the term “coalbed” is not limited to coal, but refers more generally to
all the material that has been extracted.
Eastover Mining Co., 4 FMSHRC
1207. In Eastover Mining, the
Commission rejected the argument that “coalbed” should be interpreted according
to a technical meaning limited to the stratum of coal.
As the judge noted, the word “coalbed” may be used in mining parlance to mean bed or stratum of coal. We conclude, however, that when the drafters used the word “coalbed” as a benchmark for the canopy requirement, they were not referring literally to the height of the coal bed, but were conditioning installation on the actual height of the material being extracted. Although the legislative history does not contain an express explanation as to why the phrase was used, Congress was concerned with [] protecting miners under actual mining conditions. In practice, sound mining methodology and safety considerations often dictate extraction of more or less than the entire coal seam itself. Common sense suggests that in practice it is the actual extracted height in the entry rather than the coal seam height that provides the space in which to accommodate a canopy. Thus, given Congress' expressed desire to protect life and limb, we conclude that the drafters used the term “height of the coalbed” to indicate that the Secretary could require canopies where the actual extracted or mined height permitted.
I find the phrase “develop the coalbed” to be
synonymous with “develop the mine”; however the Secretary’s interpretation
would stand even if I found the phrase ambiguous. According to well-established rules of
administrative law, if an administrative regulation is ambiguous the
Secretary’s reasonable interpretation of the regulation is entitled to judicial
deference. Bowles v. Seminole Rock & Sand Co.,
325
In situations in which “the meaning of [regulatory] language is not free from doubt,” the reviewing court should give effect to the agency's interpretation so long as it is “reasonable,” that is, so long as the interpretation “sensibly conforms to the purpose and wording of the regulations.” Because applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers.
Martin, 599
The
Secretary’s interpretation of “develop the coalbed” is reasonable. The Commission has cautioned against reading
regulations in a vacuum, and has stated that they should be “harmonized” with
the statute and other regulations. Consolidation
Coal Co., 14 FMSHRC 956, 969-970 (June 1992); See also Emery Mining Corp. v. MSHA, 744 F.2d 1411, 1414 (10th
Cir. 1984). The Mine Act states as its
first finding that “the first priority and concern of all in the coal or other
mining industry must be the health and safety of its most precious resource—the
miner.” 30 U.S.C. §801(a). The
legislative history of the Mine Act indicates that ventilation plans were a
chief concern to the drafters in ensuring the health and safety of miners. In the Senate Report accompanying the Act, it
states, “In terms then of the safety of miners, the requirement that a mine be
adequately ventilated becomes one of the more important safety standards under
the Coal Act.” S. REP. 95-181, reprinted in 1977
U.S.C.C.A.N. 3401, 3441. The drafters
recognized the importance of the plan approval process, stating, “Such
individually tailored plans, with a nucleus of commonly accepted practices, are
the best method of regulating such complex and potentially multifaceted
problems as ventilation, roof control and the like.”
The
regulations rely heavily on the plan development and approval process, with
numerous regulations in Part 75 alone referencing approved ventilation or roof
control plans.[13] Based on the regulations and legislative history,
it is clear that the purpose of ventilation plans is to protect miners who
might be exposed to the hazards of an improperly ventilated area. Though actual mining activity would likely
involve more miners and machinery, there is no health or safety reason why the
drafters would have excluded development of the mine from the requirements of
approved ventilation plans. The
Secretary’s interpretation of the regulation harmonizes well with the language
and purpose of 75.1721, as well as the other regulations in Part 75.
No cases have engaged this issue, and the cases
cited by the Secretary are either inapposite, irrelevant, or
misinterpreted. The Secretary’s use of Stansbury Coal
is premised on the inspector’s notice stating that “no coal has yet been mined
or taken out of the mine.” 1 FMSHRC at 412.
However, it appears that the Secretary overlooked a crucial footnote in
the case, which states:
By virtue of a subsequent modification, the last paragraph of the
notice was amended (Exh. P-5) to indicate “coal was being mined in that an
entry was driven approximately 175 feet for a future belt installation by
drilling and blasting method. The coal was then hauled to the surface along
with the muck from the slope sinking projects.”
Similarly, the Secretary’s use of Richard
Klippstein & W.O. Pickett, Jr., is misplaced.
Though the Secretary is correct that the ALJ in Klippstein &
Pickett
found a violation of §1721 for exploratory activities, including drilling and
blasting, those violations were of a provision in the regulation that is not at
issue in this case. At issue in Klippstein
& Pickett
was the provision in §1721 that requires an operator to provide notice to MSHA
prior to reopening a mine. 5 FMSHRC at 1429-1430. The ALJ analyzed these exploratory activities
in order to determine that the mine had been reopened, not whether the coal bed
was being developed.
The Secretary quotes Klippstein
& Pickett
for the proposition that the operator “must submit preliminary mining plans for
approval before commencing with mine development.” Sec. Post-Hearing Brief,
8. Similarly, she quotes Apex
Minerals
for the proposition that “30 C.F.R. §75.1721 requires ‘that MSHA approve any
proposal for the rehabilitation of a mine.’” Sec. Post-Hearing Brief, 9. Though both these quoted passages are
accurate, they are both unreasoned dicta, briefly mentioning a provision of a
regulation that was not at issue in either case. The passage appears in Apex Minerals in the context of a
discussion of 30 C.F.R. §75.334(b)(2), and says nothing more on the issue
beyond the sentence quoted by the Secretary.
19 FMSHRC at 02. In Klippstein
& Pickett,
the quoted passage is the extent of the discussion on that portion of §1721
because that part of the regulation is not at issue in the case. 5 FMSHRC at
1430. As one-sentence pieces of dicta,
these quotes have little persuasive authority here.
Though the phrase “develop the
coalbed” is not used elsewhere in the Act or the regulations, the phrase “mining
operations,” which the Contestant argues is synonymous, is used elsewhere in
the regulations. Specifically, it is
used in a similar regulation concerning the reopening of mines. The regulation states: “After a mine is
abandoned or declared inactive, and before it is reopened, mining operations
shall not begin until MSHA has been notified and has completed an inspection.”
30 C.F.R. §75.373. The Secretary has
stated that “mining operations” occur later in the process than “developing the
coalbed.” Safety Standards for Underground Coal Mine Ventilation, 57 FR
20868-01, Final
Rule (May 15, 1992) (Under the rule requiring notification prior to mining
operations, “MSHA receives notification of the commencement of
mining operations much closer to the actual start of these operations than
under § 75.1721.”) Had the drafters of
§1721 wished to require operators to have approved plans only prior to engaging
in mining operations, the regulation would have included the phrase “mining
operations,” rather than “developing the coalbed.”
The citation issued on July 17, 2012 by Inspector Davidovich, alleged that underground activities are being conducted without a ventilation plan. GX-8. The Contestant argues that it is allowed to engage in underground activities without an approved ventilation plan up until the moment when a mining unit is installed and in operation at the mine. Contestant Post-Hearing Brief, 2. However, I find that the Secretary’s interpretation of §1721 is correct and reasonable, meaning that Contestant’s rehabilitation and exploratory activities require an approved ventilation plan.
The parties stipulated that the High Quality Mine is a gassy mine as defined under Section 103(i) of the Act. Stip. 33. The importance of an approved ventilation plan was emphasized by several of the witnesses that testified at hearing. MSHA engineer Morley testified that without proper ventilation, methane and other hazardous gases can accumulate. Tr. 184. As a result, explosions can occur if there is an explosive mixture of methane and oxygen and an ignition source is introduced. Tr. 126. The ignition can result from a number of sources, including roof bolts snapping off and sparking, lightning, or roof falls. Tr. 126, 146. The Sago mine explosion is a recent example of a mine explosion in an unventilated sealed off area where no ignition source was thought to be present. Tr. 216-217. Morley provided his expertise at the Sago mine following the explosion and testified that it was caused by electromagnetic energy from lightning traveling through the earth and energizing conductors that had been abandoned in the sealed area of the mine. Tr. 180, 217. Morley testified that without proper ventilation, a similar explosion could occur inby the roof fall at the High Quality Mine. Tr. 217-218. Such an explosion inby the roof fall would affect those working outby the roof fall. Tr. 200-201.
Davidovich testified that the Contestant’s activities underground include repairing stoppings, patching holes, and setting up posts and jacks. Tr. 162. He also testified that the Contestant replaced mandoors in stoppings, built stoppings, and repaired overcasts. Tr. 162-163. In order to conduct these activities, the Operator must have an approved ventilation plan. Though the Contestant argues that MSHA approval of a plan at this stage is neither “proper [n]or necessary under the applicable regulations,” the multiple submissions of plans for approval belie this position. Contestant Post-Hearing Brief, 1. To now contend that approval of plans is not required, just because Contestant cannot obtain approval, is disingenuous.
In this regard, the record contains
numerous examples of the Contestant submitting plans for approval, with the
District Manager either approving or refusing to approve them. In the July 7, 2011 letter to MSHA
accompanying the Mine Exploration Plan, the Contestant wrote, “Please find
attached for your approval…” GX-2, 2.
District Manager, Thomas Light, responded by letter dated August 16,
2011, stating that the plan was approved. GX-2, 1. In the October 11, 2011
letter accompanying the addendum to the Mine Exploration Plan, the Contestant
wrote, “Please find attached for your approval…” GX-4, 2. In a letter dated October 18, 2011, Light
approved the addendum. GX-4, 1. In the
October 31, 2011 letter accompanying an addendum to the Mine Exploration Plan,
the Contestant wrote, “Please find attached request for your approval.” GX-4, 6.
It also concluded the letter by writing, “Your prompt attention to this
matter is greatly appreciated, please send the approved letter to…”
Based on all of the above, I find that 30 C.F.R. §75.1721 required the Contestant to have an approved ventilation plan in accordance with §§ 75.370-75.372.
2. The District Manager Did Not Abuse his
Discretion
The Contestant recognizes that it is required to have an approved ventilation plan prior to installing seals in the mine. Tr. 244-245. It argues that the District Manager abused his discretion “by preemptively denying MCMI’s seal plan without a corresponding mine ventilation plan simply because the plan that was submitted did not include boreholes or shafts for evaluating atmospheres from the worked-out areas of the mine.” Contestant Post-Hearing Brief, 4.
The Commission has held that review of a District
Manager’s denial of approval of a ventilation plan should be under an
“arbitrary, capricious or abuse of discretion” standard. Mach Mining, LLC, 2012 WL 4471152, *4 (Aug. 2012). The Commission has stated that “[A]bsent bad
faith or arbitrary action, the Secretary retains the discretion to insist upon
the inclusion of specific provisions as a condition of the plan's approval.”
[The arbitrary and capricious standard] requires an agency to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.”’ The “agency must cogently explain why it has exercised its discretion in a given manner,” and that explanation must be “sufficient to enable us to conclude that the agency's action was the product of reasoned decisionmaking.”
Twentymile Coal Co.,
30 FMSHRC 736, 754-755, quoting Motor Vehicle Mfr's Ass'n v. State
Farm Mut. Auto. Ins. Co., 463
The
Commission has held that when the Secretary insists on a specific provision in
a plan as a condition of approval, the Secretary bears the burden of showing
that the provision is “suitable” to the mine in question. Peabody Coal Co., 18 FMSHRC 686, 688 (May 1996). The Commission denied the Respondent’s
argument that “suitability” required the Secretary to show the existence or
likelihood of specific hazards, and instead interpreted the term according to
the dictionary, as: “‘matching or correspondent,’ ‘adapted to a use or purpose:
fit,’ ‘appropriate from the viewpoint of ... convenience, or fitness: proper,
right,’ ‘having the necessary qualifications: meeting requirements.’” Peabody Coal Co., 18 FMSHRC at 690. The Commission has found that the Secretary
carries her burden when she “identified a specific mine condition not addressed
in the previously approved ventilation plan and addressed by the new
provision.”
In the instant case, the Contestant has not submitted seal plans, so the District Manager has not denied approval of the seal plan. Tr. 277. Murray Energy safety manager Brady testified that if the Contestant is told that it is permitted to construct the seals, it will submit a plan. Tr. 278. He also testified that the Contestant is unable to submit plans because it is not permitted to have contractors enter the mine to give estimates for the seals. Tr. 278-279. The Contestant refers to this situation as a preemptive denial. Contestant Post-Hearing Brief, 4. The Contestant’s description of the District Manager’s denial is incorrect. If an approved ventilation plan is a prerequisite for an approved seal plan, then the denial of the ventilation plan is just that; it is not a preemptive denial of the seal plan.
With regard to the rehabilitation plan, the District Manager provided sufficient reasons for his denial of the December 3, 2011 plan in the December 7, 2011 letter.
The plan does not provide a reasonable assurance that areas of the High Quality Mine, inby 1 East through 6 East Longwall panels and inby a roof fall, that extends across 1-Main from #1 entry through #9 entry at cross-cut 18, are adequately being ventilated. To assure adequate ventilation, either an examination of these areas in their entirety, as required by 30 CFR 75.364 or an alternative method of evaluation is required. A request to approve an alternative method would require MSHA District Manager approval.
In addition, the projected water levels, as indicated by your submittal, approved on November 23, 2011, does not provide evidence that supports a water separation isolating inaccessible areas from accessible areas of the mine.
GX-5, 1. Williams and Morley testified that after the massive roof fall was discovered in November 2011, MSHA changed its view as to the acceptability of the ventilation provision in the previously approved exploration plan. Tr. 67, 86, 186-187. The roof fall made further exploration impossible, so the plan could no longer function as an exploration plan. Tr. 87. Inspector Williams testified that this plan was denied because it would require additional miners and energized equipment traveling in an area that MSHA viewed as unsafe. Tr. 92-93. Morley testified that the submitted plans were inadequate because they did not address the worked-out areas, which comprised the majority of the mine. Tr. 201.
In the January 4, 2012 letter, the District Manager similarly provided sufficient reason for the denial, stating that the plan, approved on August 16, 2011, “depicting the procedures and guidelines to be implemented during mine exploration activities for the High Quality mine, I.D. No. 36 08375, is no longer suitable based on an extensive roof fall across all entries, preventing further exploration and ventilation of the mine as projected.” GX-6, 1.
In the February 16, 2012 letter, Light provided specific reasons for denial of the plan submitted on January 13, 2012 (and updated on February 13, 2012).
The plan, specifically the proposed alternative method of evaluation of the worked out areas, “Item G. Mine Ventilation Monitoring Points” on Page 9 and the mine map as required by CFR 75.372, does not provide a reasonable assurance that areas of the High Quality Mine, inby 1 East through 6 East longwall panels and inby a roof fall that extends across 1 Main from No. 1 entry through No. 9 entry at No. 18 crosscut, are being ventilated.
GX-7, 1. Williams testified that the plan was denied because the areas inby the fall could not be evaluated. Tr. 112-113. MSHA did not feel comfortable with this proposal because there was a chance that the air was entering the 4 through 9 entries and short-circuiting at the roof fall or inby the roof fall and not ventilating the rest of the mine. Tr. 105, 109. Similarly, MSHA was concerned that the air entering the 1 east and 2 east areas of the mine were short-circuiting, and had no idea what paths the air may be taking. Tr. 105. Morley explained that the reason for denial was that MSHA had no way of determining if air or methane was traveling across the roof fall. Tr. 188-189. He reviewed the Contestant’s submitted plans and determined that they were inadequate because they provided no assurances of ventilation past crosscut 18.
With regard to “suitability,” the instant case is significantly different than Mach Mining and Peabody Coal, in that it is not clear from the record that MSHA insisted on any specific provision as a condition of approving the ventilation plan. The record reflects discussions between District 2 and the Contestant where MSHA stated that reasonable assurances concerning the atmosphere inby the roof fall would have to be a part of any approved plan. Tr. 91, 247-248. In these discussions, MSHA provided several options that would be acceptable to provide such assurances, including placing a fan on the shaft at the back of the mine and drilling bore holes. Tr. 248-249, 143. Though MSHA stated that bore holes would be an acceptable method of providing assurances, it never stated that bore holes were a prerequisite for approval of the plan. Tr. 116-117. Therefore I conclude that MSHA did not require the Contestant to include bore holes in its plan, but rather suggested it as an example of a suitable option.
Even if one were to find that MSHA required a bore hole provision as a prerequisite to approving the ventilation or seal plan, I find such a requirement suitable under the circumstances. Everyone agrees that the atmosphere inby the roof fall is currently unknown. Tr. 112-113, 186-190, 253-255. This creates a hazard for miners working underground, because dangerous levels of methane inby the roof fall could lead to an explosion. Tr. 200-201, 191-192. Drilling bore holes into parts of the worked-out areas of the mine would provide the District Manager an alternative means of evaluating the atmosphere in those areas and ensure the safety of miners. Tr. 143, 211, 223. Though the parties have discussed this issue at length, the Contestant has not submitted an alternative plan that offers reasonable assurances of the atmosphere inby the roof fall. Therefore, even if one considers MSHA’s discussion of bore holes here as a required provision, I find that it is suitable.
CONCLUSION
The District Manager acted within his discretion in revoking the Contestant’s previously approved plan and in declining to approve Contestant’s proposed plan. For the foregoing reasons, Citation No. 7023028 is affirmed as issued for violations of 30 C.F.R. §75.370(a)(1) and 30 C.F.R. §75.1721(a).
/s/
Janet G. Harner
Janet G. Harner
Administrative Law Judge
Distribution:
Jennifer L. Klimowicz, Esq.,
Jason D. Witt, Esq., Murray Energy Corp.,
[1] JX or Stip. followed by a number indicates a reference to the 34 numbered stipulations agreed to by the parties in their joint exhibit. GX followed by a number(s) indicates a reference to the appropriate Government exhibit. Tr. followed by a number(s) indicates a reference to the appropriate page numbers of the official Transcript of the hearing.
[2] Steve
Davidovich has worked continuously in coal mining since January 1977. Tr. 157.
He has been a ventilation specialist and coal mine inspector for MSHA District
2 for approximately two and a half years. Tr. 155. In this position his duties include
inspecting coal mines, reviewing mine ventilation plans and addendums,
requesting corrections and additions from operators, and recommending approval
or disapproval to the district manager. Tr. 156. With regards to ventilation training,
Davidovich has attended annual ventilation specialist training from MSHA for
three years. Tr. 156. Prior to working
as a ventilation specialist, Davidovich was a mine inspector since February
2006. Tr. 156. In this capacity, he received
initial coal mine inspector training from the
Prior to working at MSHA, Davidovich worked at the
Ohio Valley Coal Company, Powhatan No. 6 mine as co-safety director for a year
and a half. Tr. 157-158. His duties
included escorting state and federal mine inspectors, conducting inspections,
making recommendations, and conducting respirable dust surveys. Tr. 158. Prior to that, Davidovich worked at the High
Quality Mine as a safety director with the same duties as with Ohio Valley
Coal. Tr. 158. Prior to the High Quality Mine, Davidovich
worked at Maple Creek Mine in the safety department, as a section foreman, a
construction foreman, and a mine examiner for 7 to 8 years. Tr. 158-159.
Davidovich has a State of
[3] Jeremy Williams has been employed by MSHA as a supervisory mine safety and health specialist in the ventilation department since July 2012. Tr. 20. In this position, his duties include supervising the ventilation group, reviewing plans recommended for approval by specialists, and conducting inspections at mines. Tr. 20. Prior to this position, Williams was a ventilation specialist in District 2 from 2008 to 2012, where he reviewed ventilation and firefighting evacuation plans and inspected mines and gas wells. Tr. 21. Prior to that position, Williams was a health specialist with MSHA from 2005 to 2008. Tr. 21. Prior to working for MSHA, Williams worked for Consol from 1998 to 2005, first in the engineering department at the Bailey Mine from 1998 to 2001, then in the safety department of Mine 84 from 2002 to 2003, and lastly as a foreman in the Shoemaker Mine from 2003 to 2005. Tr. 22-23.
Williams has a bachelor’s degree in mining engineering
from West Virginia University and has West Virginia mine foreman’s papers as
well as Pennsylvania assistant mine foreman’s papers. Tr. 23. While employed with MSHA, Williams has
received entry level inspector training at the Academy, ventilation specialist
training, health specialist training, mine rescue training, and accident
investigation training. Tr. 22. With
regard to ventilation, Williams has received training in ventilation one week
every year for the past four years. Tr. 22.
[4] Murray Energy safety manager, William Brady testified that ventilation plans listed under Section 1721 are primarily developed for mining operations. Tr. 257. However, in this instance there was no mining taking place, so he believed such a plan would be unnecessary. Tr. 257. He admitted that an approved ventilation plan is necessary in order to install the seals. Tr. 258.
[5] Mr. Van Horne’s position with the Contestant was not identified.
[6] Edwin Patrick Brady has worked for over five
years as the Manager of Safety and Regulatory Affairs for Murray Energy
Corporation. Tr. 228. At Murray Energy,
Brady is involved with assisting operations with the technical and inventory
aspects of ventilation plans. Tr. 238.
Prior to this position, Brady worked for MSHA as the Superintendent of
the
Prior to working at the Academy, he was the District
Manager for MSHA, District 4, in
Prior to serving as District Manager, Brady was the
Assistant District Manager for Technical and Engineering Programs for MSHA,
District 3, in
[7] Thomas
Morley is a supervisory mining engineer for MSHA tech support in the
ventilation division located in the Pittsburgh Safety and
[8] Brady testified that he interprets §75.1721 as imposing a requirement only to notify, not seek approval from, the district manager before entering a mine that has been abandoned and subsequently to submit preliminary plans concerning mining for coal as soon as possible. Tr. 243. Sections 75.335 and 75.336 require the operator to have an approved ventilation plan in order to install seals. Tr. 244-245. Brady testified that Section 75.334 states that if the operator cannot reasonably evaluate an area of the mine, it had to seal off that area of the mine in accordance with the weekly examinations. Tr. 246-247.
[9] Williams testified that the quality of the air on December 15, 2011, where the proposed seals were to be built, would not pose a hazard to miners. Tr. 137; GX-3. However, he emphasized that because the quality of the air inby the roof fall was unknown, miners in the area would be exposed to hazards. Tr. 182, 183, 203. He further stated that MSHA’s previously approved plan could have potentially exposed mine examiners or miners conducting the air change to hazards. Tr. 138.
[10] Brady does not believe that drilling bore holes would provide reasonable assurance of the atmosphere in the worked-out area of the mine because it is unclear whether there are additional roof falls, how many bore holes would be necessary, or where the ventilation controls are in the abandoned part of the mine. Tr. 249. Furthermore, there is a large body of water in this mine that makes it more difficult to eliminate gases and bad atmosphere. Tr. 250. Brady concluded that there were too many variables that could not be answered by simply drilling bore holes. Tr. 250. He testified that he asked MSHA several times about the number and placement of the bore holes, as well as the rationale for how they were superior to the current precautions, and he received no response. Tr. 250. However he also testified that MSHA did provide several suggestions for locations for the bore holes, and that they suggested six and eight inch holes. Tr. 252, 253. Brady testified that the underlying disagreement was that the operator does not want to drill bore holes, do directional drilling, or inject nitrogen. Tr. 269.
[11] Williams testified that he does not know how many bore holes would be necessary to provide necessary assurances, because potential roof falls could hinder accurate readings. Tr. 145.
[12] The term “coalbed” is not included in the Second Edition of the Dictionary of Mining, Mineral, and Related Terms (1996).
[13] These include §§ 75.336, 75.325, 75.337, 75.220, 75.370, 75.338, 75.330, 75.350, 75.326, 75.334, 75.311, 75.333, 75.362, 75.352, 75.380, 75.302, 75.342, 75.364, 75.313, 75.360, 75.351, 75.335, 75.222, 75.323, and 75.310.