FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER
TELEPHONE: (412)
920-2682
FAX: (412) 928-8689
May 8, 2012
|
SECRETARY OF LABOR, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING |
AMENDED DECISION
Appearances: F. Thomas Rubenstein, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310, Morgantown, WV for Respondent
Lucy C. Chiu, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, VA for the Secretary
Before: Judge Andrews
STATEMENT
OF THE CASE
This civil penalty proceeding is
pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or
“Act”). This matter concerns Order No.
8109413 issued under Section 104(d)(1) of the Act and served on Coal River
Mining, LLC (“
JOINT
STIPULATIONS
1. Coal River Mining, LLC was and is an “operator” as defined in § 3 of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. § 803(d), a coal or other mine at which the citation and order at issue in this proceeding were issued.
2. Coal River Mining, LLC is the owner of Fork Creek No. 1 mine.
3. Operations of Coal River Mining, LLC at the Fork Creek No. 1 mine are subject to the jurisdiction of the Mine Act.
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judge pursuant to §§ 105 and 113 of the Mine Act.
5. For purposes of 30 U.S.C. § 820(i), for the year 2010, Coal River Mining, LLC, Fork Creek No. 1 Mine produced 662,319 tons of coal, and its employees worked a total of 439,228 hours. Under 30 C.F.R. § 100.3, Table I – Size of Coal Mine, a coal mine producing 662,319 tons of coal would be assessed 12 out of a possible15 penalty points.
6. The products of the mine at which the citation and order at issue in this proceeding were issued entered commerce, or the operation or products thereof affected commerce, within the meaning and scope of Section 4 of the Act.
7. Operations of Coal River Mining, LLC at the coal mine at issue are subject to the jurisdiction of the Act.
8. Inspector John S. Crawford was acting in his official capacity and as an authorized representative of the Secretary of Labor when Citation No. 8109413 was issued.
9. A true copy of Citation No. 8109413 was served on Coal River Mining, LLC, or its agent as required by the Mine Act.
10. A total proposed penalty of $34,652 in these proceedings will not affect Coal River Mining, LLC’s ability to continue in business.
11. At all times relevant to these proceedings, Coal River Mining, LLC is and was a limited liability company.
Submitted with the joint stipulations, and also of record, is a chart listing both the Secretary’s and Respondent’s exhibits with descriptions of the contents of each.
THE
REGULATION
Pertinent to the matter at issue here is 30 CFR § 75.364 entitled “Weekly Examinations.” It explains that:
At least every 7 days, a certified person shall examine unsealed worked-out areas where no pillars have been recovered by traveling to the area of deepest penetration; measuring methane and oxygen concentrations and air quantities and making tests to determine if the air is moving in the proper direction in the area. The locations of measurement points where tests and measurements will be performed shall be included in the mine ventilation plan and shall be adequate in number and location to assure ventilation and air quality in the area. Air quantity measurements shall also be made where the air enters and leaves the worked-out area. An alternative method of evaluating the ventilation of the area may be approved in the ventilation plan.
30 C.F.R. § 75.364(a)(1).
As cited in the original Order No. 8109413, 30 C.F.R. § 75.364(f)(2) states, “Except for certified persons required to make examinations, no one shall enter any underground area of the mine if a weekly examination has not been completed within the previous 7 days.”
SUMMARY
OF THE TESTIMONY
A.
Testimony of Inspector John Crawford
Inspector John S. Crawford (“Crawford”) has been a coal mine inspector for the Mine Safety and Health Administration (“MSHA”) for four years. Tr. 30. He graduated from high school in 1972 and college in 1988, and worked in coal mines for approximately thirty years, earning his foreman’s certification in 1980. Tr. 30-31. As part of this mining work, Crawford has ten years of experience conducting weekly examinations in mines. Tr. 31.
In his testimony, Crawford explained the ventilation plan, highlighting the following requirements set forth in the plan: (1) that at least two safe travelways are maintained to each evaluation point; (2) that accumulations of water will be controlled so as not to affect the bleeder evaluation system; and (3) that at least every seven days methane, oxygen, air flow and air quantity measurements shall be taken at bleeder evaluation points. Tr. 38-43. This testimony mirrors the regulatory language of 30 C.F.R. § 75.364(a)(1). Crawford asserted on cross-examination that if you do not get good air quantity readings each week, it is difficult to develop a trend so that you can understand what is going on in a particular panel. Tr. 158. And, the monitors carried while conducting an examination are important because human senses are unable to detect low oxygen or the presence of methane. Tr. 41-42.
Crawford testified that the operator’s examination showed that air quantity went down on April 30, 2010 at the 34B and 34C evaluation points (“EP”). Tr. 141. In addition, Crawford explained that the weekly examination log for May 7, 2010 indicated that air was barely flowing out of EP 34B, EP 34C, and another evaluation point labeled A. Tr. 140. According to Crawford, if air quantity begins decreasing, there is usually a problem, and to most inspectors, it would indicate a body of water. Tr. 142-143.
On May 14, 2010, Crawford accompanied an examiner to the area where EP 34B and EP 34C are located. Tr. 58. Before they reached the evaluation points, the alarms worn by the examiner and him went off and they had to back up until they received a “good reading.” Tr. 58. He then issued Citation No. 8109409 due to low oxygen levels in the bleeder entries and at EP 34C. Tr. 131; Exs. G-4-3; D. As a courtesy, Crawford suggested the use of more intake air and reminded Scott Brown, Larry Blackburn, Manasses Hensley, and Gilbert Sada that the low oxygen prevented an examination of EP 34C, and that the oxygen must be up and the weekly examination completed by midnight that night[1] in order to allow people into the mine. Tr. 69-73, 88, 95, 140. Further, Crawford explained to the miners that if the examination could not be completed, they would not be permitted to send people into the mine. Tr. 150. Per Crawford’s testimony, no one disagreed with him regarding EP 34C and each man understood that an examination of EP 34C would be due. Tr. 72, 73, 88, 95. Crawford left under the impression that the low oxygen would be fixed that evening, May 14, 2010. Tr. 81, 82.
Crawford returned to the mine on May 17, 2010, to focus on dust collection, and neither he nor the other members of the dust inspection team were warned that low oxygen was still present. Tr. 84, 199-200. Although he did not necessarily recall the conversation, Crawford’s notes revealed that Larry Blackburn informed him that someone had been to EP 34C. Tr. 199; Ex. I.
On May 18, 2010, Crawford stated, however, that the record books did not indicate an examination of EP 34C for the week ending May 15, 2010 and, upon questioning miners, found that none of them had examined the evaluation point. Tr. 156, 202-203; Exs G-8; B.[2] A conversation with Scott Brown (“Brown”) revealed that the oxygen level was still not at or above 19.5% and that the cause was a water impoundment[3] blocking access to EP 34A-1, which, in turn, blocked air flow to EP 34C. Tr. 87-91. Brown also indicated that the pumps were not working. Tr. 99. Based on this, 104(d)(1) Order No. 8109413 was issued on May 18, 2010, at 8:26 am by Crawford to Brown citing a violation of 30 CFR § 75.364(f)(2). The Order states as follows:
Persons have been allowed to enter the underground areas of this mine although the weekly examination has not been completed within the previous 7 days. Low oxygen content prevented the exam of the EP 34 C area on 5/14/2010 and the exam was due before midnight on 5/15/2010. These requirements were discussed with the operator at the time of issuance of Citation No. 8109409 on 5/14/2010. The operator has engaged in aggravated conduct more than ordinary negligence in allowing persons to enter the mine without a completed weekly examination and was aware of the requirement. This exposes persons to hazards of low oxygen levels and other unfound or unreported hazards. Water has accumulated to the point at EP 34 A1 that access is blocked and the examination cannot be verified.
Exhibit G-6-4.
The
inspector found that the violation was reasonably likely to result in injury
that could reasonably be expected to be fatal. It was further designated as significant and substantial
(“S&S”), affecting all 48 persons working in the mine, and was the result
of high negligence on the part of the operator due to the fact that mine
management had disregarded plain instructions regarding the improvement of the
air quantity and the conducting of a weekly examination. Tr. 95-97, 196-198. Because the oxygen was still low and no
weekly examination had been conducted, Crawford evacuated the mine. Tr. 92-93, 95-96. The Secretary proposed a penalty of
$34,652.00. The violation was abated
when, after four days, the decreased oxygen quantity was moved out of the panel
per a revision to the ventilation plan approved on May 20, 2010. Tr. 136-137.
The hazard at EP 34C remained until that time. Tr. 136-137.
On August 11, 2010, the Order was modified to a 104(d)(1) citation. Ex. G-6-4.
B. Testimony of Larry
Blackburn
Larry Blackburn (“Blackburn”) has been a Production Manager for three underground mines owned by Respondent, including the Fork Creek No. 1 mine. Tr. 210. Blackburn has more than thirty-eight years of experience in the mining industry and currently has a West Virginia Foreman’s Certification. Tr. 209. Blackburn testified that on May 14, 2010, four days prior to the issuance of Order No. 8109413, he and Brown met up with Crawford as well as Manasses Hensley (“Hensley”), who had found a low oxygen spot at one of the bleeders at EP 34C. Tr. 211.
According to Blackburn, upon
discovering the point of low oxygen, Crawford asked Blackburn if he could add
additional ventilation to “sweep out” the low oxygen, and, in response,
With respect to water issues near the area in which low oxygen was discovered, Blackburn testified that as of May 14, 2010, pumps were operating in the top end of the first bleeder, and prior to that day, new discharge lines had been laid and a step-up transformer purchased. Tr. 220-221. In addition, a new water line had been installed. Tr. 227.
Blackburn also stated in his
testimony that on May 14, he and Hensley inspected EP 34A-1, where the
above-referenced pumps were operating, as well as EP 37A, 37B, and 37C, which
were also tied to the ventilation of the grouping that included EP 34C. Tr.
228-231.
On cross-examination, Blackburn
explained that he did not recall the reading on that spotter because he did not
note it at the time and did not record his observations in the weekly
examination book. Tr. 247-248. In
addition,
Though Blackburn testified that he thought EP 34C had been checked, he admitted on cross that he was not aware that Hensley could not reach the EP due to low oxygen and instead only got as near as fifty or seventy-five feet away. Tr. 249. Blackburn admitted that he did not know if EP 34C was checked at any time after the incident on Friday, May 14, 2010. Tr. 252.
C. Testimony of Scott
Brown
Brown is a Superintendent at Coal River’s Fork Creek No. 1 mine. Tr. 260. Brown graduated in 1987, received an Associate’s Degree in Electronics, and has been working in coal mines since 1989. Tr. 261. He has held various positions within the mine and is now superintendent. Tr. 262. Brown received his West Virginia Foreman’s Certification in 2001. Tr. 262.
Brown testified that he was contacted on May 14, 2010, after Crawford accompanied Hensley on Hensley’s weekly examination, during which they discovered low oxygen in the area of the EP 34A, 34B, and 34C. Tr. 263. Brown was contacted because Crawford wanted to pull out the miners in that area, which he subsequently did. Tr. 263. After fixing an airlock door that had been knocked down, the miners were allowed to return to the area and to run coal in the A section. Tr. 264, 270. Brown also testified that Crawford would not let anyone go near the EP 34C because of the low oxygen. Tr. 264. Brown went on to explain that even with the damaged door, the air in that area was moving in the proper direction. Tr. 268. He admitted that he never entered the area of EP 34C, but, to his knowledge, there was still low oxygen there after the door was repaired. Tr. 270.
Brown also testified that Crawford did not inform him that an examination of EP 34C was required by midnight on May 15, 2010. Tr. 272. Brown was under the impression that his responsibility relative to EP 34C was to take care of the low oxygen by adding more fresh air to the area, which was done by closing the regulator to put more air into the first bleeder to let it exit at the EP 34C. Tr. 273. This process began on May 14, 2010. Tr. 274.
According to Brown, the next examination at 34C was due on May 21, 2010, but he admitted that Hensley keeps track of the weekly examination requirements in his capacity as fire boss. Tr. 274. Brown explained that he did not discuss the weekly examination of EP 34C with Hensley, but that on the evening of May 14, Hensley shared with him the examination book, which read “could not exam due to low oxygen” for the EP 34C. Tr. 275-276.
Brown testified that on May 15, 2010, he returned to the mine and the area around the EP 34A, 34B, and 34C and found that the oxygen level was improving, but had not reached 19.5%, stating that when he neared 34C, his spotter went off. Tr. 277-278. However, he made no record of his observations. Tr. 280. Reiterating that he did not believe the next examination was required until the following Friday, May 21, 2010. Tr. 281.
Brown explained that on Monday, May 17, 2010, when work resumed at the mine, pre-shift and on-shift examination were conducted and did not uncover issues with oxygen, methane, or carbon monoxide and that the pumps at EP 34A-1 were monitored. Tr. 283. Brown continued that on May 18, 2010, Crawford asked him if an examination of EP 34C had been conducted, and when Brown said that they couldn’t get to it but that they go near the corner, Crawford threatened that everyone would have to be pulled out of the mine if they could not get to the actual EP. Tr. 287.
Brown also explained that the withdrawal order was issued that day, May 18, 2010, at 8:26 am and that mine foreman Gilbert Saba checked the oxygen at EP 34C at 9:02 am and verified that it was above 19.5%. Brown also testified that the time elapsed between the issuance of the withdrawal order and the verification of the oxygen level was not enough to have improved a low oxygen condition if one had existed. Tr. 288-289.
D. Testimony of
Manasses Hensley
Hensley is Coal River’s Mine Examiner at the Fork Creek No. 1 Mine. Tr. 311. Hensley is a high school graduate with thirty-eight years of coal mining experience and a long personal history with mining. Tr. 309. Hensley received his West Virginia Foreman’s Certification in 1976 and has maintained it ever since. Tr. 310-11. Testifying that he traveled with MSHA Inspector Crawford on May 14, 2010 while making one of his weekly examinations, Hensley explained that it takes five days to examine the entire mine, so a particular area is inspected on each of the five working days. Tr. 312. On May 14, he was examining the area of the mine known as the ABCD split. Tr. 313.
In reference to the events of May 14, 2010, Hensley explained that he traveled with Crawford up to EP 34A, and as they continued on toward EP 34C, the alarm on one of the detectors went off at the mouth of that evaluation point. Tr. 314-315. Hensley testified that though the alarm went off, he proceeded toward the checkpoint of EP 34C, during which time his oxygen reading was 17.9%. Tr. 316. At that point, Crawford and Hensley withdrew back out through the door, discovering that one of the doors had been torn out. Tr. 317. Upon this discovery, Hensley stated that Crawford told him to contact Brown and withdraw the men in the mine, which Hensley proceeded to do. Tr. 317-18. Following this action, they reinstalled, plastered and sealed the doors to make the repair. Tr. 317-18.
According to Hensley, after they repaired the door, Crawford had to leave, but on leaving told Hensley he would have until 12:00 am to finish the weekly examination. Tr. 319. Hensley testified that Crawford never explicitly stated that they would need to re-examine EP 34C, and for this reason Hensley took his earlier examination as the required examination. Tr. 320. However, on cross-examination, Hensley testified that he could not recall how close to the exact evaluation point at 34C he was able to reach, and that he had not taken a methane or air quantity reading near the 34C evaluation point. Tr. 333-335.
Hensley affirmed that it is his responsibility to keep track of the examination requirements for this mine, and that when an inspector travels with him during his examination he consults with them on what he writes into the log book. Tr. 324-25. Hensley recalled that on May 14, 2010, Crawford told him to write for EP 34C that they could not conduct an examination at that point. Tr. 324-25. Hensley testified repeatedly that despite what he wrote in the log book, he believed his next examination of EP 34C was not due until the following Friday, May 21, 2010. Tr. 330.
E. Testimony of Kenny
Workman
Kenny Workman (“Workman”) is an Outby Foreman at Coal River and has been working in mines since 1992. Tr. 342. Workman received his West Virginia Foreman’s Certification in 2008, at which point he was allowed to conduct examinations. Tr. 343. On May 14, 2010, Workman monitored and examined the pumps at EP 34A to ensure that water was not gaining in that area. Tr. 345-346. Workman testified that on that day, May 14, he wore waders and waded up to within fifteen or twenty feet of EP 34C to examine the pumps. Tr. 347-348. Because he could tell that Hensley had not made it that far, Workman explained that he conducted a weekly examination while checking the pumps, but on cross-examination admitted that he did not record air quantity readings as part of this examination. Tr. 353, 363.
CONTENTIONS
OF THE PARTIES
Respondent argues that on May
14, 2010, an examination of EP 34C was properly conducted pursuant to 30 C.F.R.
§ 75.364(f)(2) because Hensley,
The Secretary argues that no weekly examination at EP 34C had been conducted for the week ending May 15, 2010, as was required under 30 C.F.R. § 75.364(f)(2), even though Respondent was reminded to do so prior to letting anyone into the mine by Crawford. The Secretary contends that persons were allowed in the mine on Saturday, Sunday, Monday and Tuesday even though the weekly examination was not complete. Further, the Secretary claims that Respondent’s violation of the weekly examination requirement was properly designated as S&S because it exposed miners to serious harm from low oxygen levels and unreliable methane levels near the EP 34C. In addition, the Secretary argues that failure to complete the required weekly examination is presumptively S&S because it is a prophylactic standard designed to detect and correct potential unknown hazards and, therefore, the Mathies test does not apply. The Secretary further argues that allowing post violation evidence to rebut the S&S presumption would eviscerate the prophylactic purpose of the weekly examination and such evidence is not determinative of the condition that existed when the weekly examination should have been completed. The Secretary likewise contends that Respondent’s negligence with respect to its violation of 30 C.F.R. §75.364(f)(2) does amount to unwarrantable failure because the violative condition was extensive, existed for a significant length of time, posed a high degree of danger, and the order could have been written as reckless disregard.
BRIEF OVERVIEW OF
EXAMINATION SCHEME
MSHA is taking an increasingly proactive approach to mine health and safety by imposing examination requirements for underground coal mines. 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.
The examinations required for
underground coal mines include preshift, on-shift, and weekly examinations. 30
C.F.R. §§ 75.360, 75.362, 75.364. These
examinations are designed to create a multi-layer, prophylactic approach to the
identification and correction of hazardous or unsafe conditions in the mine. See 75 FR 81165, “Examinations of Work
Areas in Underground Coal Mines for Violations of Mandatory Health or Safety
Standards,” December 27, 2010. The
preshift examination helps to ensure that any hazardous or unsafe condition that
has manifested since the last examination can be abated before anyone enters
the mine.
In addition to the preshift and on-shift examinations, a weekly examination must be conducted in the less-traveled areas of the mine. 30 CFR § 75.364. The weekly examination must be conducted at least every seven days unless no one enters any underground area. 30 CFR § 75.364(f)(2). If at any time during a preshift, on-shift, or weekly examination a hazardous condition is observed, a conspicuous DANGER sign must be posted and the condition must be corrected immediately, or everyone is to be withdrawn. 30 CFR § 75.363(a).
The weekly examinations must also include examination for violations of mandatory health and safety standards that could result in hazardous conditions while, until recently, the preshift and on-shift examinations did not.[6] It is particularly important to note that hazardous conditions, when found, must be corrected immediately. 30 CFR §§75.363(a), 75.364(d) (emphasis added).
Weekly examinations serve different purposes than preshift and on-shift examinations. While the preshift and on-shift examinations are focused on identifying and correcting conditions that are potentially hazardous to miners in those areas of the mine most accessed, the weekly examination supplements these examinations by requiring examiners to assess not only hazards, but also mandatory health or safety standard violations, in areas of the mine that are not as frequently accessed. Preshift or on-shift examinations, then, are not an adequate substitute for the weekly examination because they focus on different areas of the mine.
ANALYSIS
AND CONCLUSIONS
A. Validity of Citation No. 8109413
In meeting the requirements of 30 C.F.R. § 75.364, Respondent must measure and record four criteria at each evaluation point on a weekly basis. First, it must measure the methane level. Second, it must measure the level of oxygen saturation. Third, it must measure the air quantity flowing at the EP and, fourth, it must test to ensure that air is moving in the proper direction according to the ventilation plan. See 30 C.F.R. § 75.364. This four-step examination serves an important function in the protection of miners from the buildup of hazardous conditions in less-traveled parts of the mine since methane could accumulate in those areas and result in an explosion if not detected and corrected. If these requirements are not met for each EP in the ventilation plan every seven days, 30 C.F.R. § 75.364(f)(2) prevents the entrance of miners into the mine.
In examining the facts, circumstances and issues raised at hearing, the undersigned lends credibility to Crawford over the witnesses of Respondent. Although Crawford only has four years of experience as an inspector, he has over thirty years of experience in the mining industry, including ten years of experience conducting weekly examinations. Tr. 30, 31. Further, his testimony at hearing was clear, consistent and uncontroverted.
Respondent’s
witnesses, on the other hand, were not as credible. Each witness stuck to the same rehearsed story
about completion of the weekly examination at EP 34C even when the facts
surrounding the story completely contradicted the testimony. First, although Brown testified that Crawford
did not advise the operator that the weekly examination had to be conducted by
midnight on May 15, 2010, Hensley specifically admitted that he was warned by
Crawford that the weekly examination had to be conducted by this time. Tr. 272, 320.
Second, while
Based
on all the testimony and evidence presented at hearing, the undersigned finds
that the Secretary has shown a violation of 30 C.F.R. § 75.364(f)(2) for
failure to conduct a weekly examination at EP 34C. Although several of Respondent’s witnesses
claim that a weekly examination was conducted, each admits that his own
examination was lacking in at least one of the requirements.
Respondent
argues that the weekly examination was conducted since the hazard of low oxygen
was discovered. It contends that no ALJ
or Commission precedent states that the identification of a hazardous condition
invalidates the examination. Aside from
the fact that the requirements for the examination where not even met,
Respondent misses the fact that a weekly examination cannot be conducted if the
evaluation point cannot even be reached.
In Williams Brother Coal Co.,
the operator argued that there could be no violation of the weekly examination
requirements because the area was inaccessible.
24 FMSHRC 110, 117 (Jan. 2002)(ALJ).
However, the ALJ upheld the citation as issued.
Second, Respondent argues that since appropriate measures were being taken in adjusting the ventilation controls to abate the condition, it was inappropriate for the inspector not to provide additional time for abatement. However, Respondent had until midnight on May 15, 2010 to conduct its examination as required by the regulation, i.e. when the examination was, in fact, due. It would be impossible for Crawford to provide additional time for abatement when the violation had not yet occurred at the time he provided specific guidance to mine personnel, including Superintendent Brown. Further, it was the responsibility of mine officials to request additional time if, despite immediate and concerted efforts to correct the hazard by properly ventilating EP34C, they found that restoration of air flow could not be accomplished by midnight on the 15th. The mine did not submit such a request prior to the order, on this record. As such, this argument cannot be accepted.
Third, Respondent contends that the Order No. 8109413 was improperly issued because Crawford did not direct or advise mine management that the weekly examination had to be conducted by midnight on May 15, 2010. This argument fails for two reasons. First, it is Respondent’s responsibility to know the regulations and to follow them accordingly. At the hearing, Crawford emphasized that he advised Respondent of the need to conduct the weekly examination as a courtesy. Tr. 73(emphasis added). To be sure, Respondent understood that it had to conduct a weekly examination; it just did not do so properly. This would indicate that either the examiners had an inherent misunderstanding of the regulation and, thus, their job, or that Respondent had provided inadequate or even improper training in the conduct of the weekly examination, or both. Second, Respondent’s argument flies in the face of its own testimony. Both Blackburn and Hensley specifically testified that Crawford stated that the examination of EP 34C would have to be completed by midnight on May 14 or 15, 2010[7], but, for some unknown reason, each still believed that the next weekly examination was not due until May 21, 2010. Based on all the foregoing, the undersigned finds a violation of 30 C.F.R. § 75.364(f)(2).
Finally, Respondent argues that this is, at most, a minor record-keeping violation. The testimony and evidence contradict this assertion. If Respondent had, in fact, conducted the examination and simply forgot to record it in the examination book, this could be considered a record-keeping violation. However, Respondent’s witnesses each testified that, although there was some type of examination in the vicinity of EP 34C, each was deficient in the requirements found in 30 C.F.R. § 75.364. Therefore, this argument fails.
B. S&S
A 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,
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).
The undersigned finds that the violation at issue is S&S in nature. The Secretary has proven that Respondent did not conduct a full weekly examination within the seven days mandated by the regulation. During this time, the oxygen levels had become dangerously low at EP 34C, due to a water impoundment near EP 34A-1. Tr. 87-91. This contributed to a hazard of a miner walking into the area, being overcome by low oxygen and suffering fatal injuries. The oxygen levels reached levels as low as 17.9%, of which we are aware. It has been established that over exposure to oxygen deficient air could have adverse psychological affects and can result in serious, and potentially fatal, injuries. See generally, McElroy Coal Company, 30 FMSHRC 45, 64-65 (Jan. 2008)(ALJ); Jim Walter Resources, 29 FMSHRC 212, 218 (Mar. 2007)(ALJ). As such, the undersigned finds that the four prongs of the Mathies test have been met and the violation is S&S.
Oak
Grove Resources, LLC., involved a nearly identical situation where the
mine’s examination records indicated that a weekly examination could not be
conducted at certain locations in the mine due to high water.
Respondent argues that this violation does not rise to the level of S&S because there were no ventilation problems within the bleeder system and, also, due to a lack of likely exposure to the low oxygen. This is unpersuasive in the fact that the weekly examination is the only way for an operator to identify a problem in a worked-out area before it spreads to other parts of the mine. During the week in which the weekly examination was to be conducted, the pumps had gone down in a particular part of the mine, allowing water to accumulate impeding ventilation to that part of the mine affecting EP34C. Under normal continued mining conditions, water could continue to accumulate, making the lack of ventilation a much more pervasive problem by spreading to working areas of the mine or by allowing oxygen levels to drop low enough to cause rapid serious injury to those entering that section for even a brief period of time. As acknowledged by MSHA, a proactive examination scheme is the only way to prevent conditions from becoming worse. For these reasons, this argument cannot be accepted.
The Secretary has also argued
that, given the prophylactic nature of the examination scheme, this violation
is presumptively S&S. The
undersigned declines to find that this is the case. The theory of presumptive S&S violation
was first considered in Consolidation
Coal Co., 8 FMSHRC 890 (June 1986).
The Commission recognized that the facts and circumstances presented by
the Secretary in each of these cases involving respirable dust violations would
be essentially identical and that, once the Secretary proved overexposure, it
could be presumed that the violation was S&S.
As of this time, the
Commission and its ALJs have been more reluctant to expand the presumption of
S&S to examinations. In Manalapan Mining Company, the Commission
found that, based on the facts argued by the Secretary, the presumption of an
S&S violation would actually produce absurd results because the presumption
raises the operator’s defense of producing evidence that no hazardous
conditions existed.
C. Negligence and Unwarrantable Failure to Comply with a Mandatory
Standard
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.”
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. Consol, 22 FMSHRC at 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 340, 353 (Mar. 2000) (“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 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.
The
undersigned finds that the negligence attributable to the operator was
correctly designated as high, as well as an unwarrantable failure to comply
with a mandatory standard. The record
and testimony shows that Respondent knew that the oxygen levels were low at EP 34C
on May 14, 2010, when it failed to be able to conduct an appropriate weekly
examination. Crawford warned mine
officials that the weekly examination would have to be completed or no one
would be permitted to enter the mine.
Tr. 150. Although its witnesses
testified that an examination was conducted, each admitted that he did not
fulfill at least one requirement of the regulation. Moreover, the record book specifically stated
that the weekly examination could not be conducted. Tr. 325.
Despite this, and the fact that Respondent was aware that the oxygen
levels were still too low to reach EP 34C to conduct the weekly examination on
May 17, 2010, three days later, it still permitted miners to enter the underground
areas of the mine. 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.
The Secretary makes the argument that, given the facts and circumstances surrounding the violation, this Order actually could have been designated as reckless disregard. While the undersigned declines to make such a finding, it should be noted that the Secretary makes a very good argument in this respect. During a weekly examination, 30 C.F.R. § 75.364(d) mandates that “[h]azardous conditions shall be corrected immediately.” (emphasis added). But the correction of the low oxygen condition at EP34C was anything but immediate, as required by Sections 75.363(a) and 75.364(d). Respondent’s immediate action was only to adjust the regulator, which did not solve the problem, likely due to the water impoundment. Additionally, Respondent had the entire weekend when no work was scheduled in the mine to correct the condition. It could have easily assigned a crew to accelerate the pumping and de-water the affected area of the mine. This should have been the most obvious course of action and, while not immediate, it would have been prudent. However, although Brown claimed to have come into the mine on Saturday in order to monitor the problem, on Tuesday, May 18, 2010, he stated to Crawford that he believed that the problem still existed, and, in fact, had no idea whether the problem persisted. Respondent’s conduct does very nearly rise to the level of reckless disregard. But a total absence of care is not shown.
Respondent contends that due to extensive mitigating circumstances and a lack of aggravated conduct, the citation does not constitute an unwarrantable failure. It sites its actions to adjust the regulator and attempts to conduct the examination. The undersigned is not persuaded by these arguments. First, Respondent was aware on May 14, 2010, that the low oxygen levels were the result of a water impoundment near EP 34A-1 that was blocking air flow. At best, adjusting the regulators to pump more air through the ventilation system was a token effort to appease the inspector. It was probable that, until de-water pumping could be accomplished, the air quality was not going to improve. Second, as stated many times before, each miner who testified to conducting an examination of EP 34C also admitted to omitting one or more of the four examination requirements. The only conclusion that can be reached is that Respondent knew that a hazardous condition existed at EP 34C, preventing it from conducting a weekly examination that was required prior to allowing miners into the underground areas of the mine. Despite this, it allowed them to enter anyway in direct violation of the clear prohibition expressed in Section 75.364(f)(2). This is exactly the type of aggravated conduct contemplated by an unwarrantable failure.
D. Penalty
The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission [ALJ] shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
The undersigned has considered all six statutory penalty criteria and finds that $34,652.00 is a reasonable penalty for the violation at issue. The criteria in particular concern are the operator’s negligence, the gravity of the violation and the demonstrated good faith in attempting to achieve rapid compliance. Although Respondent had warning on May 14, 2010, that the weekly examination would need to be conducted by midnight that night, it, instead, made a token effort to correct the underlying issue preventing the weekly examination and had not corrected the problem by the time the Order was issued on May 18, 2010, three days later. This illustrates, at least, a lack of mitigating circumstances and, at most, an absence of care. Further, it certainly does not evidence immediate correction of a known safety hazard. Respondent ignored this hazard when it allowed miners into the underground areas on Sunday, Monday, and Tuesday. This is underscored by the fact that on May 18, 2010, Brown admitted to Crawford that he did not even know whether the hazard had been corrected and the weekly examination completed. Considering the stipulation that the penalty would not affect the operator’s ability to continue to in business and the history of violations entered as evidence at hearing, the penalty as assessed is reasonable and is affirmed.
ORDER
It is hereby ORDERED that Order No. 8109413 is AFFIRMED as written on May 18, 2010. It is further ORDERED that Coal River Mining, LLC, PAY the Secretary of Labor the sum of $34,652.00 within 30 days of the date of this Decision.[9]
/s/
Kenneth Andrews
Kenneth Andrews
Administrative Law Judge
Distribution:
F. Thomas Rubenstein, Esq.,
Dinsmore & Shohl, LLP,
Lucy Chiu, Esq., U.S. Dept. of
Labor, Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor West,
[1] Inspector Crawford may have calculated the 7-day
period from the last inspection of EP 34C, on May 7, 2010, or was mistaken in
his testimony and the actual day and time was 12:00am on May 15, 2010.
[2] The record book states that, for the week ending May
15, 2010, EP 34C could not be examined due to low oxygen.
[3] Crawford testified that the water was deep enough
that it prevented him from accessing EP 34A-1.
Tr. 90-91.
[4] 30 C.F.R. § 75.360 demands that an examination for
hazardous conditions, methane and oxygen deficiencies and proper air movement
be conducted in areas of the mine where work will be conducted, equipment will
be energized, ventilation may be affected or miners will travel at least three
hours prior to the start of the shift.
Until this examination is conducted, no one may enter the mine.
[5] This regulation mandates that a certified person must
conduct an on-shift examination of each section where anyone is assigned to
work during shift and where mechanized mining equipment is being installed or
removed. The examiner must check for
hazardous conditions, methane and oxygen deficiencies and proper air movement.
[6] The new rule, passed April 6, 2012, does require
operators to examine for violations of mandatory health and safety standards
during the preshift and onshift examinations.
75 FR 20702, April 6, 2012. It
further requires examiners conducting weekly examinations to pay particular
attention to nine categories of violations: mine support, roof control plans,
maintenance of ventilation controls and mine
ventilations plans, accumulations of combustible materials, application of
rock dust, other safeguards – limited to travelways […], guarding moving
machine parts and maintenance of belt conveyor components.
[7] There is some dispute as to whether Crawford meant
that it was due on May 14, 2010, before midnight or by midnight on May 15, 2010.
[8] Given the revisions to the regulations and the
legislative history that has been generated in their wake, it may be more
likely that new rules would make a violation presumptively S&S. These revisions, however, would not apply
retroactively to the instant case.
[9] Payment should be sent to: MINE SAFETY AND HEALTH
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390,