FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 22, 2011

AMENDED DECISION

Appearances:  Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, CO, on behalf of the Secretary of Labor;

R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, PA, on behalf of Respondent, Prairie State Generating Co.

Before:            Judge L. Zane Gill

Procedural History

            This case involves a Petition for Assessment of Civil Penalty filed by the Secretary of Labor pursuant to section 105(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). It alleges that Prairie State Generating Company (Prairie State) is liable for a single violation of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and seeks a civil penalty of $687.00. A hearing was held on January 11, 2011, in St. Louis, MO; the parties filed briefs after receipt of the transcript. For the reasons set forth below, I find that Prairie State committed a violation of 30 C.F.R. § 50.10, but I reduce the negligence to “moderate” and the gravity to “no lost work days.” Further, I conclude that although 30 C.F.R. § 50.10 is a mandatory standard that could support the enhanced enforcement element of S&S, the violation was not significant and substantial. Thus, I impose a civil penalty in the amount of $112.00.

             On June 25, 2010, Inspector Edward Law (“Law”) issued Citation No. 8417269 to Prairie State , alleging a violation of 30 C.F.R. § 50.10 (Exhibit S-3), relating to an alleged failure to immediately notify MSHA of an incident at the Lively Grove mine on June 8, 2009, which involved flooding of a portion of the mine during a heavy rain storm.

Stipulations

            The parties submitted the following stipulations at the hearing, (Joint Exhibit 1):

1. In June 2009, Prairie State was constructing the Lively Grove Mine (Lively Grove) in Washington County, Illinois.

            2. Lively Grove is an underground coal mine.

3. In June 2009, work on the slope from the surface to coal seam was in progress. The work was being conducted by a contractor to Prairie State, Pittman Mine Service, LLC.

            4. By June 8, 2009, the slope had advanced approximately 1,270 feet.

            5. On June 8, 2009, there was a rainstorm in the area of the Lively Grove Mine.

            6. As a result of [the] storm, water accumulated in the pit around the slope area.

7. On June 25, 2009, MSHA issued to Prairie State Citation No. 8417269 alleging a violation of 30 C.F.R. § 50.10 as follows:

On 6/08/09 at 19:00 hours the mine experienced an inundation of water. Torrential rains occurred causing the water to overtake the sumps and pump system located at the bottom of the box cut. A large volume of water flowed into the slope that is being developed currently at the 1270 Foot mark and inundated the slope. There was no immediate notification of the inundation to MSHA as required with in the 15 Minute time frame. The citation was adesignated as significant and substantial, "high" negligence, seven persons affected and "lost work days."

            8. On July 23, 2009, MSHA issued a subsequent action to 8417269 to Prairie State, No. 8417269-02. Subsequent Action No. 8417269-02 states as follows:

MSHA was notified on the inundation on 6/8/09. The parties agree that the inspector did not mean, through this text, that Prairie State or Pittman notified MSHA on June 8, 2009 of the accumulation of water from the rains that occurred on June 8, 2009. The parties agree that MSHA became aware of the accumulation of water on June 9, 2009.

            9. On June 25,2009, MSHA issued to Pittman Citation No. 8417271 alleging a violation of 30 C.F.R. § 50.10 as follows:

On 6/08/09 at 19:00 hours the mine experienced an inundation of water. Torrential rains occurred causing the water to overtake the sumps and pump system located at the bottom of the box cut. A large volume of water flowed into the slope that is being developed currently at the 1270 Foot mark and inundated the slope. There was no immediate notification of the inundation to MSHA as required with in the 15 Minute time frame. The citation was designated as significant and substantial, "high" negligence, seven persons affected and "lost work days."

            10. Prairie State is an "operator" as defined in § 3(d) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter "the Act"), 30 U.S.C. § 803(d), at the coal mine at which the Citation at issue in this proceeding was issued.

            11. Operations of Prairie State at the coal mine where the Citation was issued in this proceeding are subject to the jurisdiction of the Act.

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

            13. The individual whose signature appears in Block 22 of the Citation at issue in this proceeding [Exhibit S-3] was acting in the official capacity and as an authorized representative of the Secretary of Labor when the Citation was issued.

            14. A true copy of the Citation at issue in this proceeding [Exhibit S-3] was served on Prairie State as required by the Act.

Fact Summary

            This case involves an alleged mine inundation resulting from a significant rain storm on June 8 , 2009, at the Lively Grove Mine site, an underground coal mine under construction in Washington County, Illinois (Stipulation Nos. 1 and 2). In June 2009, Prairie State was in the process of constructing the Lively Grove Mine (Lively Grove), but was not yet actively mining coal. (Tr. 195:14) Pittman Mine Services, LLC was doing the mine construction work under contract with Prairie State on the single entry slope from the surface down to the coal seam. (Stip. 3; Tr. 20:1-22; 22:14-23:1; 188:1-6; 192:1-16; 234:1-7)

            By June 8, 2009, Pittman had driven the slope from an open surface pit downward at an angle of eight degrees some 1,270 feet. (Tr. 22:14-23:10; 78:9-79:17; 102:5-103:3; Exhibit PSGS 2, and Stip. 4) Pittman was also in the process of installing a belt structure in the upper half of the slope shaft as it progressed downward toward the coal seam. (Tr. 202:2-15; and Exhibit PSGS 5) The surface pit was open, but Pittman had done some backfill work around the slope shaft, (Tr. 22:14-21; 255:19-257:7) and was doing concrete work around structural arches that were still exposed to the outside. (Tr. 22:22-23)

June 8, 2009 - The Storm

            The worst part of the storm hit around 5:00 PM on June 8, 2009. According to Victor H. Daiber (“Daiber”), Engineering Manager for Prairie State Generating Company Lively Grove Mine, the storm produced approximately 2.36 inches of rain in a short period of time, a number confirmed by data from a weather station at the site. (Tr. 227:24-228:2; 246:19-247:6; 253:5-254:5 and Exhibit PSGC-10). Daiber did not believe that it was “that big an event,” just a “simple rainstorm,” not an inundation. (Tr. 246:12-247:6; 253:16-254:5) In contrast, John Snowden (“Snowden”), Pittman's Safety Manager, later described the rainstorm as "torrential" and estimated that it produced “6-8 inches per hour.” (Tr. 72:1-3; 113:13-21; and Exhibit S-5)

Conditions At The Surface

            The slope down to the coal seam originated in a pit at the surface. (Exhibit PSGC 1 and 2) Various diesel pumps, sump lines, and power control panels were situated in the surface pit, along with a ventilation air portal and fan. (Tr. 199:2-201:2; and Exhibit PSGS 2) There is a dispute as to how much rain water accumulated in the surface pit and how the water made its way down the slope (and other openings) to the face area. For purposes of this decision, exactly how the water got down the slope is of secondary importance to the fact that there was flooding at the face and the ultimate issue of whether the operator had an obligation to report the flooding within fifteen minutes of its discovery. Nonetheless, it is uncontested that at least some of the water entered the slope shaft along its sides in the surface pit area where portions of the shaft structure had yet to be completely backfilled. (Tr. 246:1-11) I credit the evidence that the water at the surface pit did not rise to the level of the electrical equipment located in the pit, including the fan motor. (Tr. 215:5-216:4; 248:3-25; 249:4-13; and Exhibit S-8) The water seeped into the mine behind the liner of the slope and accumulated at the face of the slope. (Tr. 246:1-14) It did not flow into the mine by means of the slope opening but came in around the side and possibly around the ventilation tubing which was on the pit floor. (Tr. 209:20-210:16) Once inside the slope, it flowed steadily down the slope at about one inch in depth. (Tr. 244:23- 246:10)

Conditions Underground 

            Seven Pittman men were working underground during the shift when the flooding started. (Tr. 103:3-7) Preponderant evidence shows that the men noticed water running down the eight percent slope at a depth of about one inch (Tr. 245:14-25) and accumulating at the face at a rate exceeding the capacity of sump pumps to evacuate it (Tr. 83:2-12; 207:21-208:3; 228:24-229:6). The water came in steadily, but it did not rush in with enough force to knock anything down. (Tr. 211:3-7; 247:15-21) The miners became concerned that the ventilation pump in the surface pit might flood and shut down. (Tr. 205:19-206:1) They had time to confer, make the decision to leave the mine, turn off the power underground (Tr. 224:11-16), and reposition some larger equipment to protect it from the rising water (Tr. 209:7-11) before exiting the mine at about 7:00 PM in an orderly manner in a permissible battery-operated transport vehicle. (Tr. 206:3-5; 228:23) No miners were entrapped. (Tr. 245:10-16)

            When they reached the surface, the ventilation fan was still operating, but the decision was made to shut it off as a precautionary move since no one was left in the mine. (Tr. 205:19-25) The ventilation fan was shut off at about 7:00 PM and turned on again about 10:00 PM. (Tr. 71:6-14) The water accumulation at the surface did not shut the ventilation pumps down, as alleged by the Secretary. (Tr. 205:6-8) With the ventilation fan off, no one could be (and no one was) underground. (Tr. 205:6 -206:19; 228:19-22) Pittman miners returned underground at about 10:30 PM, after the mine had been examined. (Tr. 71:6-21; 73:23-75:6; 208:4-20; 229:13-22), and began pumping water out of the mine. (Tr. 71:6-14; 74:5-9) Then, between 3:00 AM and 6:00 AM on June 9, 2009, the ventilation fan motor shorted out (Tr. 72:4-9; 75:14-21; 92:6-15), shutting it off again, which meant that anyone underground would have to come back to the surface. All the miners at the site when the ventilation fan shorted out, except two, went home early, before the end of their shift and before the day shift miners had arrived. Two men stayed at the site to monitor the water situation and pump the pit area. (Tr. 75:22-76:9) Pittman placed an air-driven pump underground near the belt’s tail to catch any water that was accumulating. The water that accumulated underground at the face was pumped out. The flooding prevented mining for approximately two days. (Tr. 76:16-22)

            Paul Krivokuca (“Krivokuca”), Vice President of Mining for Prairie State, was at the Lively Grove site when the storm happened. He called Daiber at around 8:00 PM. Daiber arrived at the site around 8:30 PM. (Tr. 244:17-245:16) Daiber testified that he believed the crew was out of the mine when he arrived. (Tr. 245:14-15) Krivokuca, Bill Jankousky (“Jankousky”), Prairie State's Safety Director, and John Snowden, Pittman's Safety Director, conferred and decided that the circumstances did not fit the definition of an immediately reportable accident because they did not believe the event was an “inundation.” (Tr. 203:15-22; 204:23-207:12; 212:9-213:2) Therefore, they concluded that there was no need to report the event to MSHA within fifteen minutes under 30 C.F.R. Part 50.

June 9, 2009 - Inspector Jones’ Visit To The Mine

            The next day, June 9, 2009, MSHA Inspector Charles Jones (“Jones”) was at the Lively Grove mine to conduct a six-month roof control evaluation unrelated to the events of the prior day. (Tr. 95:3-20) He was accompanied during his inspection by Jankousky. Jankousky told Jones that they could not go down into the mine because the ventilation fan was turned off. (Tr. 119:15-120:9; 213:21-214:7 and Exhibit S-9) Jones asked Jankousky why the fan was off; Jankousky told him that there had been a rainstorm the previous night, the fan motor had shorted out, and was taken away for repair. Jankousky also mentioned that the roof bolter had been under water. (Tr. 213:24-214:14) Jones did not conduct the underground portion of his inspection. He took pictures of the surface pit area, but he did not issue any citations related to the storm water. (Tr. 96:3-16; 120:15-121:12; 214:15-21 and Exhibit S-8) The residual storm water in the pit had been pumped down and the pit was muddy. (Tr. 120:8-22; 214:22-215:4; 251:17-23; and Exhibit S-8) Jones was a Designated Authorized Representative of the Secretary. Jones told his supervisor about the water issue, but did not issue a citation. (Tr. 96:7-16).

June 11, 2009 - Meeting At MSHA District 8 Office

            On June 11, 2009, Jankousky met with a number of MSHA representatives in the MSHA District 8 Office to talk about Lively Grove’s roof control and ventilation plans, again unrelated to the storm. (Tr. 236:1-8) During the meetings, Mark Odum (“Odum”), MSHA Roof Control Supervisor in District 8, and David Whitcomb (“Whitcomb”), Assistant District Manager and the head of enforcement in the district (and Odum’s boss), mentioned that they heard that there was a large amount of rain and subsequent water issues on June 8, 2009. They talked about Jones' visit to the mine on June 9, 2009, and the fact that the mine could not be inspected because of the water, and that the roofbolter was submerged. (Tr. 220:13-223:7) According to Jankousky, neither Odum or Whitcomb told him that the incident should have been reported. (Tr. 220:8-222-24)

June 23, 2009 - Law’s Visit To The Mine And Discussion With Rennie

            On June 23, 2009, MSHA Inspector Law was at the Lively Grove mine to conduct a regular E01 inspection. (Tr. 24:1-9; 28:20-29:13) He was accompanied by Snowden and Jankousky. (Tr. 29:21-31) During the June 23rd inspection, Law observed several things that made him suspect that a large volume of water had gotten into the mine:

•          The fan at the bottom of the surface pit, which sat at ground level on his previous visit a few weeks prior, now appeared to be raised approximately five feet off the ground . (Tr. 44:1-25; 171:18-172:8) Law was told the move was “to keep the fan motor dry" because of "water in the motors." (Tr. 44:1-21; 63:15-66:17)

•          What appeared to be new “dams” were being built in the pit area. (Tr. 45:6-46:5; 67:14-17)

•          Down the slope in the face area, the continuous mining machine and shuttle car were stuck in mud. (Tr. 32:6-33:12)

•          A roofbolter appeared to have been damaged by water at the level of its trays - about twenty-four inches from the ground. Its junction boxes were open and its motors were missing, indicating repairs had been required. (Tr. 35:6-36:10)

•          The roofbolter had been backed away from the face and moved to the side of the slope. (Tr. 33:16-34:2).

•          When Law asked Snowden what had happened to the roofbolter, Snowden responded that it “got some water on the motors, but it’s just a little rain.” (Tr: 35:23-36:3)

•          There was water in the trays on the roofbolter, over four feet off the ground. (Tr. 36:16-37:17)

•          There was a water line on a ventilation duct approximately seven-and-a-half feet above the mine floor, about twenty feet from the face of the mine. (Tr. 38:14-41:8; 173:16-24)

            At this point, Law had not concluded that what he saw constituted a violation, even though it raised questions in his mind. (Tr. 43:18-22) He issued some citations on June 23, 2009, but nothing pertaining to the flooding. (Tr. 43:14-22) These observations concerned him enough that he discussed them on the evening of June 23, 2009, with Rennie, his supervisor. (Tr. 43:18-22; 46:10-49:1; 159:5-25) Law was unaware that Jones had been at the mine on June 9th until after he saw the pictures mentioned below. (Tr. 94:19-25)

June 23 - 25, 2009 - Follow-Up Investigation

            Following the conversation with Law, Rennie independently investigated the water issues with MSHA management. (Tr. 169:8-162:25) Rennie called Mary Jo Bishop, Assistant District Manager of Enforcement and Rennie’s immediate supervisor, and asked her if she knew anything about an incident involving water at Lively Grove. (Tr. 180:13-15) She had Odum call Rennie back later. Odum told Rennie that he and MSHA Jones had taken pictures at lively Grove on June 9, 2009, showing the results of a heavy rain storm the previous night. Odum then emailed the photos to Rennie. (Tr. 160:2-162:4 and PSGC Exhibit 8) Upon learning that Odum and Jones had not done anything after seeing and obtaining evidence of a possible inundation, Rennie decided that further investigation was necessary. He accompanied Law to Lively Grove on June 25, 2009, to complete the E01inspection. (Tr. 50:1-53-4; 53:2-8; 160:5-161:18).

June 25, 2009 - Inspection Performed And Citations Issued

            On June 25, 2009, Law and Rennie re-visited and re-inspected the surface pit area and slope face, factoring into their analysis the photographs showing the water and mud resulting from the rain storm on June 8^th. (Tr. 54:8-67:18; 163:1-17) When Rennie, Law, Snowden and Jankousky went down the shaft on June 25, 2009, construction had resumed on the belt structure (Tr. 55:23-56:4), however, a shuttle car was still stuck in mud, which impeded their permissibility inspection. (Tr. 56:10-25) As he inspected at the slope face, Law noticed a water mark on a ventilation air tube approximately seven feet above the ground that would account for the water in the roof bolter motor compartments and trays that he had seen during his earlier inspection. (Tr. 38:14-41:8; 57:5-58:23; 173:16-24) In Law’s experience, it was very unusual for there to be water that deep near the face of a mine, even if the sump pumps had failed. (Tr. 58:24-59:5)

            What Law saw led him to suspect that there had been an inundation rather than a slow flooding of the mine face. He surmised that had the flooding been slow, the men would have had time to find another sump pump to handle the water. (Tr. 59:8-15) Law and Rennie saw the flooded roof bolter, and the shuttle car and mining machine stuck in the mud. Water still remained in the bolter's four-foot-high trays two weeks after the flood. (Tr. 35:20-22; 37:11-17) Law also inspected the surface ventilation fan, which he believed had been raised after the storm, and brought it to Rennie’s attention. (Tr. 64:1-65:3; 171:18-172:8) Law sensed a disconnect between management’s claim that there had been a “little rain” and what he saw in the mine. (Tr. 60:3-9) He continued with the inspection, but had not yet formed an understanding of what had happened. (Tr. 60:12-63:10).

            Law and Rennie then met with mine management to discuss the water evidence. (Tr. 67:20-70:21; 163:18-164:8) Chris Cross (“Cross”), Pittman's Maintenance Manager, explained that a storm began about five o’clock on the evening of June 8^th, and that it rained so hard that a ventilation fan in the surface pit area shorted out and was shut down between 3:00 and 6:00 AM. (Tr. 71:2-14; 72:1-21) Cross stated further that water was “swirling” by the surface fan such that the fan became an inlet for the water to rush into the mine. (Tr. 72:10-21) Law concluded that the slope itself also allowed water to flow into the mine, entering on the sides of the slope in the open pit, which had not yet been sealed with concrete or backfilled. (Tr. 77:16-79:17; 78:10-25) Law concluded that, at some point, water had overtaken the surface sump pumps to the point where the water was uncontrolled and entering the mine faster than the mine systems could pump it out. (Tr. 72:10-21; 74:10-18; 81:19-25) As Snowden summarized in the Mine Accident Report (Exhibit S-5), the "rain and run-off water eventually flooded the face of the slope." (Tr. 113:13-21)

            After inspecting Lively Grove twice, analyzing the photographs taken the day after the flood, and interviewing mine management, Law and Rennie determined that the flooding events at Lively Grove Mine on June 8, 2009, constituted an inundation (Tr. 80:5-83:12; 164:9-21; 179:11-17; 182:19-184:20) and decided to cite Prairie State for failing to report the alleged innundation within 15 minutes.

The Citations

            On June 25, 2009, Law issued to Prairie State Citation No. 8417269 alleging a section 104(a) violation of 30 C.F.R. § 50.10 as follows:

On 6/08/09 at 19:00 hours the mine experienced an inundation of water. Torrential rains occurred causing the water to overtake the sumps and pump system located at the bottom of the box cut. A large volume of water flowed into the slope that is being developed currently at the 1270 Foot mark and inundated the slope. There was no immediate notification of the inundation to MSHA as required within the 15 Minute time frame. (Exhibit S-3)

            The citation was designated as significant and substantial, "high" negligence, seven persons affected and "lost work days." This was the first citation Prairie State had received since the mine was opened. (Tr. 141:11-18; and Exhibit S-3)

            Also on June 25, 2009, Law issued Citation No. 8417271 a to Pittman alleging a violation of 30 C.F.R. § 50.10 as follows:

On 6/08/09 at 19:00 hours the mine experienced an inundation of water. Torrential rains occurred causing the water to overtake the sumps and pump system located at the bottom of the box cut. A large volume of water flowed into the slope that is being developed currently at the 1270 Foot mark and inundated the slope. There was no immediate notification of the inundation to MSHA as required within the 15 Minute time frame. (Exhibit S-4)

            The citation was designated as significant and substantial, "high" negligence, seven persons affected and "lost work days.” (Exhibit S-4)

            According to Law, his decision to cite the violation at the level discussed above, was based on the following factors and conclusions. Snowden stated that there were seven miners in the mine during the incident. Law concluded that the miners would be confronted with rushing water and debris coming from the face, fan intake, and sides of the slope. Law also believed that there would have been electrical hazards from the equipment powered at the bottom of the shaft, including pumps, lights and the shuttle car (Tr. 102:5-103:10). Law concluded that the two miners who stayed on site to monitor the water were in danger from the electrical hazards in the pit - specifically the electrical panel and pumps in the pit (Tr. 103:18-104:3). Law believed that it would be hazardous for the miners to exit the mine up the eight-degree slope for approximately 1,270 feet with water rushing into the mine (Tr. 104:16-25). Law designated the gravity as reasonably likely to cause injuries because the workers in the area could have been injured either by the rush of water, by the debris the water is carrying, or by the electrocution hazards. (Tr. 106:7-20). Law concluded that the flooding could reasonably be expected to cause lost workdays and restricted duty because while attempting to exit the mine, a miner could have slipped or been hit by debris which could have caused a sprain or broke a bone. (Tr.106:25-107:7) Law designated the violation as significant and substantial because the inundation was reasonably likely to cause an accident and the operator failed to call MSHA, which allowed the condition to persist. (Tr. 108:1-10)

Analysis

            The Secretary approaches liability from two alternate angles: (1) The flooding that occurred at Lively Grove mine satisfies the definition of “inundation” and is, by reference to 30 CFR § 50.2(h)(4), an “accident” that must be reported, and/or; (2) If the flooding does not meet the definition of “inundation,” the circumstances of the event still make out an “accident” that must have been reported. This analysis harmonizes the two theories and concludes that Prairie State should have reported the flooding that happened on June 8-9, 2009.

A.        Was there a reportable inundation?

            Inspector Law cited Prairie State for an alleged violation of 30 CFR § 50.10 which requires a mine operator to notify MSHA within 15 minutes of determining that an “accident” has occurred. “Accident” is a term of art specifically defined at 30 CFR § 50.2(h) (1 through 12) by reference to a list of twelve situations, which includes “inundation.” Specific to this case, 30 CFR § 50.2(h)(4) makes "an unplanned inundation of a mine by a liquid or gas" a reportable “accident.” The lynchpin question for this decision is whether the flooding that occurred at the Lively Grove mine was a reportable event, not just whether it meets the definition of an inundation.

            It is tempting to limit the analysis by searching for a definition of “inundation” that passably fits the facts of the case and then shoe-horning those facts into the definition to reach the conclusion that the event should have been reported. But, these facts do not lend themselves to this ungraceful approach. The problem is that this approach relies too heavily on the connotation of emergency associated with the term “accident” in 30 CFR § 50.10 and tends to blur its technical meaning with the vernacular understanding of the word. In many instances, there is an emergent situation that can easily be described as an “accident” and in which there is no discord between the apparent emergency and the need to report. However, in this case the slow pace of water accumulation at the face and the deliberate, calm, and orderly manner in which the miners dealt with the developing situation make it difficult to treat this as an emergency or to characterize it as an “accident” for purposes of deciding whether it should have been reported. Such was the dilemma faced by Prairie State management as the events unfolded on June 8 and 9, 2009, and such is the case in writing this decision. Use of the term “accident” in 30 CFR § 50.10 is subtly misleading in cases like this. As a result, I will broaden the analysis to consider whether the flooding in this case was a reportable event, first because it fairly meets the definition of the term “inundation” and, second because additional policy reasons require reporting.

            1.         The Definition Approach

                        Reference to 30 CFR § 50.2(h)(4) does not explain clearly what can constitute an inundation other than to specify that it must be “unplanned.” The uncertainty about what is meant by “inundation” is the same here as it was for Judge Zielinski in MSHA v. Randy Pack , Employed by ICG Knott County, LLC, 2011 WL 840799 (FMSHRC), Docket No. KENT 2009-517, February 9, 2011, where he quoted from Island Creek Coal Co., 20 FMSHRC 14 (Jan. 1998), and discussed the Commission’s interpretation of the accident notification standard in the context of an inundation:

In the absence of an express definition or an indication that the drafters intended a technical usage, the Commission has relied on the ordinary meaning of the word to be construed. Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C.Cir. 1997) (table). “Inundate” and “Inundation” are defined as “a rising and spreading of water over land not usu[ally] submerged: FLOOD … DELUGE” and “SUBMERGE … to overwhelm by great numbers or a superfluity of something: SWAMP[.]” Webster's Third New Int'l Dictionary (Unabridged) 1188 (1986). “Flood” is in turn defined, in relevant part, as “an outpouring of considerable extent … a great stream of something … that flows in a steady course … a large quantity widely diffused: superabundance[.]” Id. at 873. “Deluge” is defined as “an irresistible rush of something (as in overwhelming numbers, quantity, or volume) … a forceful jet of water (as from a fire hose)[.]” Id. at 598. 20 FMSHRC at 19. “

Judge Zielinski interpreted the common meaning of “inundation” in reference to the conditions in that case. He ultimately concluded that there had been an inundation and determined an approximate time from which to count the 15-minute mandatory reporting time.

            I agree with the result of Judge Zielinski’s analysis and take it one step farther. “Inundate” generally means to cover with water. There is no certainty in the definition found at 30 CFR § 50.2(h)(4) that the flooding must occur with force or immediacy to constitute an inundation, although it does imply that it must be unplanned. While the flooding in this case was more pronounced than in the Randy Pack case, that is only one factor. The more critical factor for purposes of the reporting requirement at play here is whether a measure of urgency is implied, which lies at the heart of Prairie State’s defense, or whether any unplanned flooding in a mine is a reportable event.

            It is understandable from reading the language of 30 CFR § 50.10 and 30 CFR § 50.2 that one would believe that an event’s urgency is the dominant factor in deciding whether a flooding event should be reported. This is consistent with the overall tone of the definitions in 30 CFR § 50.2(h), which define “accident” in terms of an urgency to evacuate personnel or key equipment. It is also consistent with the overall emphasis on emergency response at the core of the 2006 Miner Act. However, as the facts of this case illustrate, too much emphasis on urgency can result in a myopic assessment of the need to report a non-urgent event. First, it can detract from the one clear guideline found in the language of 50.2(h)(4), i.e., that the flooding be “unplanned,” whether it is urgent or not. Second, it tends to short circuit consideration of an independent, policy-based and non-emergency rationale for event reporting. De-emphasizing the emergency element allows us to evaluate more clearly whether unplanned flooding in a mine must be reported under 30 CFR § 50.10. I conclude that it must.

             With proper emphasis on the unplanned nature of the flooding and the policy underpinnings (discussed below), the differences in the competing definitions of “inundation” become less important. A gradual flooding event which allows for deliberate and calm response on the part of the miners is not an emergency, but it is nonetheless a reportable, unplanned event, which we are constrained by 50.10 and 50.2(h) to call an “accident.” This is important because, when viewed in light of the confusion that comes of using only the definition approach, I am convinced that Prairie State management acted in good faith when they evaluated the circumstances at Lively Grove on June 8 and 9, 2009, and concluded that the flooding was not an inundation and, therefore, need not be reported. This conclusion has bearing on my assessment of liability and S&S, but it does not affect my conclusion that the flooding should have been reported.

            2.         The Policy Approach

                        (a)       The Two-Tier Penalty Protocol

            The Miner Act of 2006 modified 30 CFR § 50.10 to create a two-tier accident reporting protocol.

In the event of any accident occurring in any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof. For purposes of the preceding sentence, the notification required shall be provided by the operator within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred. In the event of any accident occurring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine.

30 USC 813(j) [Italics added.]

            A cursory reading of 30 USC 813(j) or 30 CFR § 50.10 can create confusion about whether the 15-minute reporting requirement applies only to lethal or potentially lethal accidents, or as implied in 30 CFR § 50.10(d), “any other accident.” The legislative history for Section 5 of the 2006 Miner Act does little to resolve the confusion when it speaks of creating a new 15-minute reporting requirement only for a new subset of lethal or potentially lethal accidents corresponding to the definitions at 30 CFR § 50.2(h)(a), (b), and (c). However, the MSHA Procedure Instruction Letter (“PIL”), No. I10-III-01, effective date April 23, 2010, and expiration date March 31, 2012, provides some clarification by explaining how the 15-minute rule works in the context of the new two-tier penalty mechanism.

            The 2006 Miner Act included a change in the 15-minute rule by which the penalty for failure to report an accident within 15 minutes could be enhanced with a minimum penalty of $5,000.00 for accidents covered by 50 CFR § 50.10, subparts (a), (b), or (c), which correspond to accidents defined in subparts (1), (2), and (3) of 30 CFR § 50.2(h). Under the old enforcement scheme, all accidents defined under Sec. 50.10(h) were either handled under the general penalty assessment protocol or manually processed for special assessment if a higher penalty was sought. The changes in the 2006 Miner Act made it so that deadly accidents, i.e., those defined at 50 CFR § 50.10, subsections (1), (2), and (3), could be cited as Sec. 50.10(a), (b), or (c) violations and trigger the higher minimum penalty without the need for special assessment. All other accidents are still subject to the general and traditional penalty process and should be cited as Sec. 50.10(d) violations. MSHA’s case management systems should now be able to automatically detect Sec. 50.10 (a), (b), or (c) violations, thus obviating the need, as before the 2006 Miner Act, to manually separate, process, and specially assess the more lethal incidents in order to seek higher penalties. As a result of this change, MSHA can now seek greater minimum fines for those accidents or entrapments causing death or entailing a reasonable potential to cause death, without having to treat them as special assessments.

                        (b)       The 30 CFR § 50.11 Policy Statement

            It is obvious why lethal and potentially lethal accidents must be reported and why it is imperative to report them within 15 minutes. As for the other accident types defined in 30 CFR § 50.2 (h) (4) through (12) , another regulation, not directly implicated in this case, helps explain why they must also be reported, even if they lack the element of obvious urgency:

30 CFR § 50.11(a) After notification of an accident by an operator, the MSHA District Manager will promptly decide whether to conduct an accident investigation and will promptly inform the operator of his decision. If MSHA decides to investigate an accident, it will initiate the investigation within 24 hours of notification.

            The MSHA District Manager has the authority and responsibility to decide which events should be investigated, including non-emergency but reportable events. Thus, the reason for the two-tier penalty protocol comes into focus. By law, all lethal or potentially lethal accidents must be reported and investigated. They can also now be processed for enhanced penalty without special assessment. All other accidents must also be reported to the MSHA District Manager in order that he/she may exercise his/her review-for-investigation authority. If a mine operator, as in this case, makes an erroneous on-the-scene decision that a mine event is not reportable, the decision can interfere with the statutory duty of the MSHA District Manager to review all accidents for potential investigation. And, in this case this is the crux of the violation the citations seek to address. Prairie State’s management decision that these facts did not make out an inundation was wrong because it focused on the narrow definitional analysis rather than the broader question of whether this unplanned flooding should have been reported to MSHA for the policy reasons discussed here. MSHA’s approach was similarly limited to an attempt to shape these facts to match the definition of inundation, which also failed to factor in the broader policy question.

            For these reasons, I conclude that the decision whether an event is reportable must take into account the broader policy mandate expressed in 30 CFR § 50.11(a) in addition to the customary urgency and definitional assessment implied in 30 CFR § 50.10. This is a supplemental and independent basis to conclude that Prairie State should have reported the flooding and failed to do so.

                        (c)       Deference To The Secretary’s Interpretation

            The Secretary argues that in the absence of clear guidance as to how to define and interpret the term “inundation,” her interpretation should be given deference. Island Creek Coal Co., 20 FMSHRC 14 at 18-19. Even though the definitions of “inundation” cited in the Commission case precedent fall short of a clear, comprehensive, and compelling elucidation, when “inundation” is interpreted in light of both its dictionary definitions and the policy evident in the Secretary’s broad mandate to evaluate all reportable incidents for possible investigation, the deference argument becomes more compelling, albeit for reasons not argued by the Secretary. A debate limited to which definition best fits the facts of a given case can lead to confusion rather than clarity. However, when the discussion is broadened to consider the “why” along with the “when” of the reporting requirement, it becomes easier for the operator to make the report-or-not-report decision in the field and easier for MSHA officials to evaluate that decision after the fact. Thus, as I view the Secretary’s argument from this broader perspective, I am presented with another, and in this instance convincing, reason to defer to the Secretary’s interpretation. I agree that this was a reportable event.

            The flooding at the Lively Grove mine on June 8 - 9, 2009, should have been reported. Because it fits generally under the definition of “inundation,” it should have been reported within 15 minutes, not because of any emergency created by the inundation, but because of the unplanned nature of the flooding and the underlying public policy favoring more - rather than less - reporting to MSHA in order to allow it to properly carry out its duties under 30 CFR § 50.11. The Secretary has proved a violation of 30 C.F.R. § 50.10.

B.        Does Prairie State’s Violation of 30 C.F.R. § 50.10 Support a Finding of S&S?

            1.         Is 30 CFR § 50.10 A Mandatory Standard?

            The Secretary seeks a ruling that this violation is significant and substantial (“S&S”). If an inspector finds, "based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature," then the violation must be classified as significant and substantial (“S&S”). National Gypsum Co., 3 FMSHRC 822, 825 (1981). To establish that a violation of a mandatory safety standard is S&S, the Secretary must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard, i.e., a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).

            Prairie State takes the position that 30 CFR § 50.10 is regulatory only - true to its Part 50 pedigree - despite MSHA’s efforts in the wake of the changes in the 2006 Miner Act to elevate it through rule-making to the status of a mandatory standard. As a result, Prairie State argues that a violation of § 50.10 cannot support a finding of S&S because § 50.10 was not “promulgated” in the Final Rule, but merely “revised,” and, since it was not a mandatory standard prior to the 2006 rule making, it was not converted into one.

            Prairie State argues in particular that there was no clear indication in either the Emergency Temporary Standard (“ETS”), issued on March 9, 2006, 71 Fed. Reg. 71430 (2006), or the December 2006 Final Rule, 71 Fed. Reg. 71452 (2006), to convert § 50.10 from a regulatory provision into a mandatory standard. Prairie State also argues that the Secretary did not provide actual notice that she intended to apply § 50.10 as a mandatory standard subject to enhanced penalty assessment under section 104(d)(1). Prairie State argues that the ETS's revised statement of authority for the Part 50 regulations cites only the Secretary's general rule making authority, and the primary change to § 50.10 was described as a modification that did “not change the basic interpretation of §50.10.” 71 Fed. Reg. 12256, 12260 (2006). Although acknowledging that the citation to section 101 was added to the statement of authority for the Part 50 regulations in the Final Rule, Prairie State argues that the change was made without explanation, and as a result, the rule making was ineffective and did not convert the regulatory provision into a mandatory standard.

            The Secretary argues that the rule-making after passage of the 2006 Miner Act was effective to convert what had previously been a Part 50 regulation that would not support an S&S finding into a mandatory standard that would. In support, the Secretary makes reference to the unpublished decision by Judge Zielinski in Wolf Run Mining Co., WEVA 2008-1417, Order Denying Respondent’s Motion for Partial Summary Judgment, (July 2, 2010).

            The Secretary asserts that the ETS and Final Rule were published pursuant to section 101, the Secretary's statutory authority for the issuance of mandatory standards. The ETS included findings that delays in notification of accidents subjected miners to grave danger, a prerequisite to issuance of a temporary mandatory health or safety standard. 71 Fed. Reg. 71431 (2006). The Secretary further argues that the December 8, 2006 Final Rule was the culmination of the rule making proceeding initiated pursuant to section 101. In fact, a reference to section 101 as authority for the Part 50 regulations was included in the Final Rule. Consequently, because §50.10 was promulgated pursuant to Title I of the Act, the Secretary contends that it is a mandatory standard that can be enforced as an S&S violation.

            Prairie State counters that the Final Rule's addition of a “passing reference” to section 101 in the citation to authority is insufficient to transform § 50.10 into a mandatory standard. But it is not the addition of the reference to section 101 in the Final Rule that rendered the new reporting requirements in § 50.10 a mandatory standard. Rather, the fact that the current text of § 50.10 was promulgated pursuant to a section 101 rule making proceeding brings it within the Act's definition of a mandatory standard. Wolf Run, unpublished Order at 5.

            I am not convinced by Prairie State’s arguments. I find that the Secretary made § 50.10 a mandatory standard by promulgating it pursuant to section 101. I concur with Judge Zielinski’s ruling on this issue in Wolf Run, supra and rely heavily on Judge McCarthy’s thorough treatment of this issue in Sec’y of Labor (MSHA) v. Pine Ridge Coal Co., LLC, 33 FMSHRC 987, April 29, 2011, 2011 WL 1924269:

Carried to its logical extreme, Respondent's argument would mean that the Secretary could never promulgate any new requirement as a “standard” if the Secretary carried over any existing requirements from the regulation. As Senior Judge Zielinski observed, both the ETS and the Final Rule set forth a complete revised text of § 50.10, not piecemeal amendments to the wording of the earlier regulatory provision. Wolf Run, unpublished Order at 5. The ETS and Final Rule incorporated a definitive standard into § 50.10 of what is meant by “immediately contact,” i.e., “at once without delay,” and “within 15 minutes,” which sets a maximum time within which notification to MSHA of a reportable accident must be made. 71 Fed. Reg. 12260.

 Id. at 1008.

            I conclude that § 50.10 is a mandatory standard and will support a finding of S&S.

            2.         Negligence, Gravity And Enhanced Enforcement (S&S)

            Concepts of negligence and gravity apply to all citations and orders under the Miner Act, irrespective of whether the Secretary pursues enhanced enforcement. They are codified and reduced to table form at 30 C.F.R. § 100.3 and form a defined and integral part of the penalty assessment mechanism used by MSHA and its inspectors. The concepts of “significant and substantial” and “unwarrantable failure” are applied, primarily to 104(d) orders , as part of the enhanced enforcement mechanism set forth in the Miner Act.

            Section 110(i) of the Miner Act requires that in assessing penalties the Commission must consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(i). Each mandatory standard thus carries with it an accompanying duty of care to avoid violations of the standard. An operator's failure to meet the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.

                        (a) Negligence

            Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Miner Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.” Id. Reckless negligence is when “[t]he operator displayed conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have known of the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id.

            The Secretary alleges that the degree of negligence associated with Prairie State’s violation in this case is “high.” (Exhibit S-3, Citation 8417269) There are two aspects to the violative condition in this case, the flooding itself and the decision not to report it. Facts more closely related to the flooding event are more relevant to the issue of gravity than negligence in this case, and will be discussed more thoroughly below. There is no question that Prairie State’s management knew of the flooding. There is also no question that MSHA officials knew of or had reason to know of the flooding independent of Prairie State’s decision not to formally report it. (Stipulation 8) I am convinced that Prairie State’s decision not to report the flooding was the result of an honest assessment and seemingly reasonable, though incomplete, analysis of whether the facts dictated a formal report to MSHA per § 50.10. This and MSHA’s imputed knowledge of the violating conditions are mitigating factors which reduce the degree of negligence to “moderate” under the guidance of 30 C.F.R. § 100.3(d), Table X. Other mitigating facts bear on the severity of the violation and are discussed below.

            Under the two prong analysis of both the definition and policy considerations underlying the obligation to report an unplanned inundation, it is relevant that MSHA is imputed with knowledge of the flooding as expressed in the stipulation. While it is of greater overall significance that Prairie State decided not to report the incident, it is nonetheless of some importance to my decision making that MSHA had reason to know of the events that, if properly reported, would have triggered its mandate to decide whether or not to launch a formal investigation. MSHA cannot claim to have been prevented from properly making that decision under these facts. In keeping with the broader analysis applied to whether Prairie State should have reported these events, it is appropriate to address the fact that MSHA’s imputed knowledge from Inspector Jones’ visit to the mine on June 9, 2009 (including photographs used as exhibits in this case) , mitigates any harm associated with MSHA’s loss of opportunity to timely decide whether to investigate the flooding. Prairie State’s responsibility or negligence is mitigated to the narrower issues of whether it should have reported and whether the report should have been made within the 15 minute window, not whether its failure to report cause any loss of opportunity on MSHA’s part. I conclude that Prairie State’s uncontested failure to report at all supports a finding of “moderate” negligence under these circumstances.

                        (b) Gravity (“Seriousness”)

            The gravity penalty criterion under section 110(i) of the Miner Act, 30 U.S.C. § 820(i), is often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (April 1987). However, the gravity of a violation and its S&S nature are not the same. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996). The gravity analysis should focus on factors such as the likelihood of an injury, the severity of an injury, and the number of miners potentially injured. The analysis should not equate gravity, which is an element that must be assessed in every citation or order, with “significant and substantial,” which is only relevant in the context of enhanced enforcement. See Quinland Coals Inc., 9 FMSHRC, 1614, 1622, n.1 (September 1987).

            Gravity is “often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). The seriousness of a violation can be examined by looking at the importance of the standard which was violated and the operator's conduct with respect to that standard, in the context of the Miner Act's purpose of limiting violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be made assuming continued normal mining operations without abatement of the violation. Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).

            The gradual process of the flooding on June 8 - 9, 2009, and the deliberate, calm, and controlled response of the seven underground miners undercut the Secretary’s allegation that injury to the miners was reasonably likely. It is appropriate in assessing gravity to consider the reasonable likelihood of serious injury as limited by the actual facts of this case. The assumptions on which Inspector Law based his decision to charge this violation as he did are set out above at footnote 17 and elsewhere. My findings of fact do not agree with most of the assumptions on which Law based his decision to allege this level of gravity. For instance, the only evidence in the record other than Law’s thoughts about the gravity assessment, that relates to the volume of water coming into the mine at the time the miners were still in the mine was that the flow was limited to about one inch down an 8 percent incline. This is not a sufficient inrush to subject the miners to any significant risk of injury as they exited the mine. In fact, the miners were able to ride out of the mine on a mechanized transport vehicle. Law surmised that there would have been increased electrical hazard, but there is no evidence to support that or to support a reasonable inference. Law concluded that the men who stayed after their shift to monitor the pumping of the surface pit would be subject to increased electrical hazard as well, but the facts do not support his assumption. He believed that the water level in the surface pit had risen above the intake grate on the ventilation fan housing, but the photographic evidence simply does not bear this out. He also believed that the ventilation fan had been raised after the storm to make it less likely that storm water would flow into the mine through the ventilation tube. However, the evidence does not show that the water in the surface pit rose to that level, or that it entered the mine through the ventilation tube at all, or that the ventilation tube was in fact even raised.

            In light of these facts, I conclude that injury to the seven miners was unlikely, therefore there would be no lost work days.

            3.         Do The Facts Support A Finding Of S&S?

            In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health Review Commission (“Commission”) explained that:

In 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.

Id. at 3-4.

            In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125 (Aug. 1985), the Commission held:

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.”... 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.

Id. at 1129 (internal citations omitted) (emphasis in original).

            The question of whether a particular violation is significant and substantial must be based on the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to violations of mandatory standards. Cyprus Emerald Res. Corp. v. FMSHRC. 195F.3d42 (D.C. Cir. 1999)

            As discussed above, § 50.10 is a mandatory standard and will support the enhanced enforcement associated with S&S. In applying the four elements of the Mathies Coal test, supra, it becomes apparent that under these facts and the logic of this decision this violation was not S&S. First, there was a violation of § 50.10 as discussed above. Second, the violation must contribute to a measure of danger to miners. Depending on how one reacts to the facts of this case, it is possible to conceive how such gradual flooding in a mine could result in a dangerous situation. However, such a danger is far from concrete. It is in the gray area in which a fact finder must reach to infer a danger and hypothesize how such a danger could exist. These facts do not convince me that I should lean that far. It is understandable how Inspector Law reached the conclusions on which this citation was based. The evidence he saw was stale, incomplete, and confusing to interpret. The evidence presented at trial was somewhat clearer and easier to comprehend, but it still leaves this fact finder wishing for a clearer picture. As a result, I cannot find that the flooding here resulted in a concrete and discrete danger to the miners involved. Nor can I find that the failure to report caused any concrete and discrete danger. Failure to report is a violation of the standard, but it does not translate into a concrete danger to the miners in the Lively Grove mine. The third element of the test requires a finding that the danger or hazard created by the violation will likely result in injury. The fourth element requires that the injury will be of a reasonably serious nature. Because the second element of the Mathies test is not satisfied, it follows that the third and fourth elements will also fail. In sum, the Secretary has failed to prove that this violation was significant and substantial.

C.        What Penalty Is Appropriate?

            Applying the penalty regulations found at 30 C.F.R. § 100.3 and related tables, I conclude that an appropriate penalty for this violation is $112.00.

ORDER

             It is ORDERED that Citation No. 8417269 be MODIFIED to reduce the negligence assessment from “high” to “moderate,” the gravity assessment from “reasonably likely” to “unlikely,” and to remove the S&S designation.

            It is further ORDERED that Prairie State pay a penalty of $112.00 within 30 days of this order. Upon receipt of payment, this case will be DISMISSED.

                                                                                    /s/ L. Zane Gill

                                                                                    L. Zane Gill

                                                                                    Administrative Law Judge

Distribution: (CERTIFIED MAIL)

R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000

Emily B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, Co 80202-5708