FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412) 920-7240

FACSIMILE: (412) 928-8689

December 20, 2011

DECISION

Before:            Administrative Law Judge John Kent Lewis

Appearances:  Patrick M. Dalin, Esq., United States Department of Labor, Office of the Solicitor, Region III, 170 S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106

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

STATEMENT OF THE CASE

A hearing in this civil penalty proceeding was held pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802 et seq., (the “Mine Act”). This matter concerns an alleged violation of the mandatory safety standards 30 C.F.R. § 75333(b)(1) and 30 C.F.R. § 75.333(h). Order No. 7067830, citing a violation of section 104(d)(2), was served on

Respondent on October 7, 2008. Respondent filed a pre-penalty contest with respect to Order No. 7067830 on November 3, 2008. The alleged violation was found to be significant and substantial (“S&S”) in nature, as well as an unwarrantable failure to comply with mandatory safety standards. On January 26, 2010, the Secretary filed a petition to assess a $30,288.00 penalty for the one violation. A hearing was held in Pittsburgh, Pennsylvania on June 14, 2011, and the parties participated fully therein. The parties later submitted post-hearing briefs.

STIPULATIONS AT HEARING

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

2.   Operations of Cumberland at the Cumberland Mine (“the Mine”), at all times relevant hereto, were subject to the jurisdiction of the Mine Act.

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

4.   A true copy of Order No. 7067830 was served on Cumberland or its agents as required by the Mine Act.

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

6.   The total proposed penalty for the orders in this proceeding will not affect Cumberland’s ability to continue in business.

7.   The appropriateness of the penalty, if any, to the size of Cumberland’s business should be based on the fact that in 2007, Cumberland, the operator of the mine, mined 7,264,244 tons of coal from the mine, and that, in 2007, the controller of the mine mined in excess of 10,000,000 tons of coal.

8.   Cumberland was assessed a total of 325 citations based on 943 inspection days in the fifteen months immediately preceding the issuance of the order in this case.

9.   The Secretary’s copy of Order No. 7067830 is an authentic copy of the order at issue in this preceding, and may be admitted into evidence for the purpose of establishing their issuance.

10. For the purposes of a finding with respect to a “clean” inspection, in Order No. 7067830, the initial action is identified as Order No. 7025409 issued on October 4, 2007. The MSHA website shows twenty-one other Section 104(d) enforcement actions during this period between the initial action and the order at issue. Seven of those are final and closed; one of those was modified to a Section 104(a) citation. One has recently been settled with the Section 104(d) designation remaining intact. The rest are still in contest. It does not appear that even if some of those 104(d) actions were resolved favorably to Cumberland that there was an “intervening clean inspection” at the Mine during the relevant time period.

11. There were seventeen miners working in the Cumberland West section of the Mine at the time that the order in this case was issued.

12. Cumberland stipulates to the authenticity of all exhibits that the Secretary identified in her Pre-Hearing Statement. Cumberland further stipulates that the Continuous Mining Section Reports, Continuous Section Call Out Sheets, and General Work Accomplished Reports that it produced in response to the Secretary’s discovery requests are admissible.

13. The Secretary stipulates to the authenticity of all of the exhibits that Cumberland identified in its Pre-Hearing Statement.

14. The Report “Mine Citations, Orders, and Safeguards” is authentic and admissible. Cumberland does not stipulate to the relevancy of any violations that occurred prior to fifteen months before the issuance of the Order at issue. (See Joint Exhibit 1).

SUMMARY OF THE TESTIMONY

Inspector Walter R. Young

On October 6, 2008, Inspector Young conducted an inspection of Cumberland West and 89 Mains South sections. Inspector Young has been a Coal Mine Safety Health Inspector for MSHA for the past six years. (Tr. 24). Prior, he worked in coal mining for twenty-two years as a longwall foreman, shift foreman, and construction foreman. Id. As an MSHA Inspector, he attended the Mine Academy and took two courses, amongst others, on mine ventilation. (Tr. 25).

The Cumberland West section was a group of six entries, numbered 1 through 6 from left to right, that were driven forward in an east-to-west direction. (Tr. 30-31). The six entries in the Cumberland West section were connected by many crosscuts that were driven in a north-south direction. The second mining area was a new section that Respondent was preparing to develop called 89 Mains South. (Tr. 78-79). The 89 Mains South section consisted of ten entries, numbered 1 through 10, left to right. (Tr. 30-32). The 89 Mains South section connected to the south side of the Cumberland West section at a ninety-degree angle and was planned to be developed in a north-to-south direction. (GX -2; GX-4).

The Cumberland West section was ventilated by intake air (fresh air) coming into the mine by Entry No. 3, the track entry, and Entry No. 4, the neutral entry. (Tr. 32). According to Respondent’s approved ventilation plan, most of the intake air should have traveled up to the face of the Cumberland West section. Some of the air was then supposed to split right across some of the West faces and travel out of the Mine along the right return air course which was the entry at the far-right end of the Cumberland West section. (Tr. 32-33). Another portion of the air should have split to the left across some of the West faces and all the 89 Mains South faces, then traveled out of the Mine along the left return air course, which was located in 89 Mains South. (Tr. 32). The left return was also designated as the alternate escapeway after the air had traversed the 89 Mains South faces. (Tr. 32). Some of the intake air was also diverted to the No. 2 Entry (the “belt entry”) to ventilate the conveyor belt. (Tr. 33). On October 6, 2008, the ventilation system was still intended to ventilate the face of the Cumberland West section. (Tr. 134).

An addendum to the ventilation plan (“Vent Plan Addendum”) for the construction and installation of a beltline was submitted to the Mine Safety and Health Administration (“MSHA”) and approved on July 29, 2008. (Tr. 59-62). This plan was developed to address the construction of the belt drive/take-up system that was going to connect the future conveyor belt of the 89 Mains South section to the existing conveyor belt in the Cumberland West section. (Tr. 61, 85, 124). The plan provided that air from the West conveyor would ventilate the belt construction site and exit the area through a regulator (ventilation control device) into the left return (which was also the alternate escapeway). The Vent Plan Addendum included a map of the Cumberland West section, which also showed the beginning of the 89 Mains South section. (GX-4).

Initially, the faces of Cumberland West were mined to the west. By July 2008, Respondent had mined entries 2, 3, 4, 5, and 6 of the Cumberland West section to Crosscut No. 4, and had mined Cumberland West section Entry No. 1 to Crosscut No. 2. (Tr. 103). By October 2008, Respondent had mined entries 1, 2, 3, 4, and 6 to Crosscut No. 8, and Entry No. 5 to Crosscut No. 6; and by this time, mining of the faces of Cumberland West had stopped. (Tr. 63). One continuous miner was pulled back from the faces and was not in use; the other was being used to grade the bottom. (Tr. 75). Respondent began grading the bottom in the West area in preparation for a new portal where miners would enter and exit the mine. (Tr. 66). Cumberland was grading this area to ensure a sufficient and reasonable amount of clearance for the prospective portal area. (Tr. 66).

In addition to grading in the West area, Respondent was also preparing to go back to mining all the faces in 89 Mains South. (Tr. 124-26). Mining had been done at the faces in 89 Mains South also. (Tr. 153, 163). Respondent began moving equipment, including an auxiliary fan, to the 89 Mains South faces. (Tr. 63, 72, 125, 164-65). A continuous miner was moved to the 89 Mains South faces on October 8, 2008. (Tr. 164). Respondent was also installing a new belt conveyor in the No. 4 Entry of 89 Mains South. (Tr. 85). Respondent had mined coal bottoms in Entry No. 2 of the Cumberland West section on the shift prior October 6, 2008. (Tr. 39).

Between October 3-6, 2008, in anticipation of mining the faces in the 89 Mains South and for the purpose of installing the belt tailpiece, Respondent removed four metal stoppings. (Tr. 51). The first stopping was removed on Friday, October 3, two more stoppings were removed on Saturday, October 4, and the last stopping was removed on Monday, October 6, prior to the inspection at issue. (Tr. 52). Respondent’s managers ordered the four permanent stoppings be removed so that the crew could bring a fan and other equipment over to the 89 Mains South section from the Cumberland West section. (Tr. 50-51). The metal stoppings were replaced with check curtains to facilitate access to the belt conveyor entry of 89 Mains South. (Tr. 51).

Inspector Young testified that while he was inspecting the faces of the 89 Mains South section on October 6, he discovered that three permanent ventilation controls were missing from Cumberland West section’s left return air course. (Tr. 36). Where there was once a permanent stopping in the No. 1 Crosscut, there was an unsecured line curtain that was blown open by the intake air rushing into the return air course. (Tr. 36, 44). Inspector Young then noticed two more permanent stoppings were missing from the vicinity of the No. 89 Crosscut. Inspector Young performed a chemical smoke test at the locations of these three missing stoppings and confirmed that air was flowing from the intake into the return. (Tr. 47-48).

Inspector Young testified that he discussed the three missing stoppings with Safety Representative Perry and Foreman Andy Jellots. (Tr. 37). Inspector Young was told by Foreman Jellots that the removal of these permanent stoppings was ordered by continuous mining section coordinator Dan Fraley. (Tr. 51). Inspector Young told Safety Representative Perry and Foreman Jellots that the removal of these stoppings was not allowed and ordered them to remove the crew outby the tailpiece and to repair the missing stoppings. (Tr. 37-38). The miners were brought outby to repair the missing stoppings because the stoppings were essential for maintaining two escapeways from the working section, a primary and an alternate. (Tr. 38).

Inspector Young testified that he instructed Respondent to rebuild the two permanent stoppings at the No. 89 Crosscut (GX-2) and secure and tighten the curtains in Crosscut No. 1 (GX-2) and Crosscut No. 3 (GX-2) in order to terminate the violation. (Tr. 58-59, 127-128). It took nine to ten men over five hours to terminate the violation. (Tr. 58).

Inspector Young testified that he resumed his inspection and found that a fourth permanent ventilation control that had been installed to isolate the return air course was removed from the No. 3 Crosscut. (Tr. 44). This location also had a loose curtain. (Tr. 44).

Inspector Young testified that as part of his inspection he took air quantity readings for the left return air course and the left last-open crosscut. Inspector Young took his left return reading in the No. 86 Crosscut of Cumberland West, between the No. 2 and No. 3 block of the 89 Mains South section and found the air to be moving at 76,440 cubic feet per minute. (Tr. 42). Inspector Young took his left last-open crosscut reading in the No. 8 Crosscut between Entries Nos. 1 and 2 of the Cumberland West section and found the air quantity there to be 16,016 cubic feet per minute. (Tr. 43). Inspector Young noticed that his left last-open crosscut reading was significantly lower than the reading recorded by Respondent’s most recent pre-shift examination. (CX -H).

On cross examination, Inspector Young stated that the ventilation over the continuous miner and in the cited areas was more than sufficient. (Tr. 76-77, 179-180). Inspector Young testified that at the time he found the condition, the ventilation would have served to render any harmful or explosive gases harmless. (Tr. 78).

Inspector Young testified that after he finished his imminent danger run of the section, Respondent’s Manager of Safety, Robert Bohach, requested to speak with him on the telephone located at the section’s load center. (Tr. 55). Manager Bohach and other mine managers wanted to discuss the verbal order that Inspector Young had issued. (Tr. 55). After some discussion on the telephone, Manager Bohach requested Inspector Young to come above ground and discuss his order with mine management. (Tr. 57). Manager Bohach also requested that Inspector Young’s supervisor participate in the conversation. (Tr. 55).

Inspector Young testified that he ordered two of the metal stoppings that had been replaced with temporary check curtains between October 4, 2008, and October 6, 2008, to be rebuilt in their original positions. (Tr. 87). He did not require the other two stoppings that had been removed to be rebuilt. (Tr. 57-58, 87). After Cumberland rebuilt two of the stoppings, Inspector Young left the mine but issued no written order. (Tr. 58-59).

Inspector Young testified that at Respondent’s request he deferred the issuance of the written order until he was able to discuss the matter with his supervisor. (Tr. 57). Inspector Young’s supervisor, Dave Severini, was not at the mine on that day and was unable to come there until the morning of October 7. (Tr. 57). On the morning of October 7, Inspector Young and Supervisor Severini discussed the prior day’s order with members of the mine’s management, including Manager Bohach, and concluded that the written order should be issued. (Tr. 57).

According to Inspector Young, the removed permanent stoppings violated multiple standards and presented multiple hazards to safety. Inspector Young stated to mine management that the two stoppings at the No. 89 Crosscut should have remained in place to keep the alternate escapeway (which was the same entry as the return air course) isolated so that it would not be contaminated with smoke in the event of a fire or explosion. (Tr. 68).

Inspector Young testified that throughout the course of the inspection, and his discussions with mine management about the order, that the removed permanent stoppings violated multiple standards and presented multiple hazards to safety. Inspector Young stated to mine management that the two stoppings at the No. 89 Crosscut should have remained in place to keep the alternate escapeway (which was the same entry as the return air course) isolated so that it would not be contaminated with smoke in the event of a fire or explosion. (Tr. 68). Inspector Young also told Respondent that permanent stoppings needed to be installed along the return air course up to and including the third connecting crosscut outby the working face. (Tr. 69). Inspector Young identified the missing stoppings as the reason for the significant air loss at the left last-open crosscut and had Respondent repair the leaks from these locations in order to correct the “short circuit” that these leaks were causing in the ventilation of the left side of the Cumberland West section. (Tr. 44-45, 127-128). The notes made by Safety Representative Perry and Manager Bohach on October 7 confirm that Inspector Young discussed these concerns with them, as well as his concern that Respondent’s pre-shift examiners were taking their air quantity measurements in the wrong locations on the left side of the Cumberland West section. (GX-9 and CX-H).

Inspector Young testified, and his notes show, that Coordinator Fraley, who ordered the removal of the stoppings, told Inspector Young that Respondent could remove the stoppings to prepare 89 Mains South for mining because the tailpiece had not moved and because the unit was a super section. (Tr. 95). Significantly, Inspector Young also testified and his notes show that he did not believe that Respondent intentionally subverted the law. (Tr. 99-100). Instead, Inspector Young believed that Respondent had simply “gotten ahead of themselves” in anticipation of mining the 89 Mains South area of the super section. (Tr. 99-100).

Inspector Young returned to the mine on October 7, 2008, with his supervisor and issued a written Section 104(d)(2) Order citing a violation of 30 C.F.R. § 75.380(a). The Order was designated as S&S, reasonably likely to cause a fatal injury, affecting seventeen persons, with high negligence and as a result of an unwarrantable failure to comply with a mandatory safety standard.

Safety Representative John W. Perry

Cumberland Safety Representative John Perry accompanied Inspector Young on his October 6, 2008 inspection of the Cumberland West and 89 Mains South sections (Tr. 35-36). As Safety Representative, Mr. Perry escorted inspectors when they came to the Mine, made independent safety examinations, controlled respirable dust, and conducted task training. (Tr. 116). He had worked in Cumberland’s Safety Department for five years at the date of the inspection. Id. Representative Perry holds a four-year degree from the University of Pittsburgh in mining engineering and has over twenty years experience in mining. (Tr. 118-19).

During testimony, Representative Perry stated that the check curtains were intended to maintain the integrity of the ventilation in the Cumberland West and 89 Mains South sections. (Tr. 179-80). He also admitted that the corrections ordered by Inspector Young stopped the leakage of intake air into the return air course and “significantly improved” the amount of air reaching the face of the Cumberland West section. (Tr. 128).

Representative Perry testified that he had a discussion with Inspector Young on October 6 as to whether or not there was a violation of the escapeway standard. (Tr. 128). Representative Perry contended that the whole area was one super section. (Tr. 129). Such a super section would have the advantageous effect of moving the left last-open crosscut from the No. 8 Crosscut of the Cumberland West section all the way back to the east end of the 89 Mains South section. Id.

Representative Perry also testified that he had never had an inspector issue a citation under 75.333(h) when a stopping was completely removed and that this standard was typically cited for holes in stoppings. (Tr. 130). Representative Perry also testified that he believed that it was not reasonably likely that somebody would have been injured because of the curtains’ condition. (Tr. 131). Representative Perry testified that it was not reasonably likely because there was very little methane in the section, with the highest reading being 0.2 at one of the faces. Id.

Manager of Safety Robert Bohach

Cumberland’s Manager of Safety Robert Bohach also accompanied Inspector Young on the October 6, 2008 inspection of the Cumberland West and 89 Mains South sections. (Tr. 35-36). As Cumberland’s Safety Manager since 1995, Manager Bohach oversees the health and safety of the miners, he ensures that Cumberland complies with regulations, develops emergency preparedness plans, and provides advice to mine management. (Tr. 172). Manager Bohach holds a Bachelor of Science Degree in Mining Engineering from Pennsylvania State University and a Master’s Degree in Safety Management from West Virginia University; he has over twenty years experience in mining. (Tr. 171).

Manager Bohach testified that metal stoppings are accepted by MSHA as a permanent ventilation control and are used by Cumberland in lieu of curtains as a temporary stopping. (Tr. 175). Manager Bohach testified that he did not think the loose curtains would have created a situation reasonably likely to cause an injury because there was plenty of air coursed through the area. (Tr. 179-180). Similarly, it was not reasonably likely that an injury could have occurred because there was ample air going over the top of the continuous miner where the coal was being extracted and there was not any methane accumulation in any of the working places. (Tr. 180). The amount of air going over top of the miner was approximately 60,000 cubic feet per minute, about ten times more than what the ventilation plan required. (Tr. 181).

Manager Bohach also testified that over the course of his career he had never seen a citation issued under 75.333(h) for intentionally removing a stopping. (Tr. 183). The times that Manager Bohach had seen a citation issued under 75.333(h) was when there was a hole in a permanent stopping, a cable passing through a stopping, door sprung or left open, or a crushed metal stopping. (Tr. 189-190).

LAW AND REGULATIONS

Section 75.333(b)(1) requires “Permanent stoppings or other permanent ventilation control devices constructed after November 15, 1992 shall be built and maintained…[b]etween the intake and return air courses…”

Section 75.333(h) requires “All ventilation controls, including seals, shall be maintained to serve the purpose for which they were built.”

ISSUES

1.   Has the Secretary proved by a preponderance of the evidence that Respondent violated 30 C.F.R. § 75333(b)(1) and/or 30 C.F.R. § 75.333(h)?

2.   If so, was the violation significant and substantial (“S&S”) in nature?

3.   Was Respondent’s violative conduct so aggravated in nature as to constitute an unwarrantable failure?

DISCUSSION AND CONCLUSION

I. 30 C.F.R. § 75.333(b)(1)

The mandatory safety standard 30 C.F.R. § 75.333(b)(1) is one component of a comprehensive regulatory scheme, codified at Subpart D of 30 C.F.R. Part 75, that aims to ensure the proper ventilation of underground coal mines. Ventilation is necessary to “(1)…dilute, render harmless and carry away the hazardous components of mine air, such as potentially explosive methane; and (2) to provide necessary levels of oxygen to the miners’ working environment.” Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764-01, 9764 (Mar. 11, 1996). Because “[t]he primary means for directing air from the outside, through the mine openings, to the working areas and back to the surface is through the use of ventilation controls,” the Secretary issued the specific directives codified at § 75.333 to specify “where each type of control can be used and how each permanent control is to be constructed.” Id. at 9782. As such, § 75.333(b)(1) requires that permanent stoppings be installed to separate intake and return air courses up to and including the third connecting crosscut outby the working face, unless the operator’s approved ventilation plan authorizes otherwise.

The active working area of the Cumberland West section on October 7, 2008, was in the No. 2 Entry between the No. 5 and No. 8 Crosscut. (GX-1). Respondent was required by § 7533(b)(1) to install permanent ventilation controls along the return air courses to separate the miners from the intake air up to and including the third connecting crosscut outby the face of the Cumberland West section. As this is the area where miners were working, this area required the delivery of “necessary levels of oxygen” and sufficient air to “dilute, render harmless and carry away the hazardous components of the mine air.” 61 Fed. Reg. at 9764. Respondent had initially installed a line of permanent stoppings to isolate the left return air course, but chose to remove four of those stoppings from Friday, October 3, to Monday, October 6, in order to allow men and equipment to travel to the 89 Mains South section.

Section 75.333(b)(1) contains an exception that allows temporary ventilation controls to be used in place of permanent ventilation controls in rooms that are six hundred feet or less from the centerline of the entry from which the room was developed. 30 C.F.R. § 75.33(b)(1). On the day of the inspection, Respondent’s representatives argued to Inspector Young that they were not required to have the missing permanent ventilation controls installed because they were “rooming.” (Tr. 55; GX-3). A room is a “place abutting an entry or air way where coal has been mined and extending from the entry or airway to a face.” Broken Hill Mining Co., Inc., 17 FMSHRC 1539, 1541 (Sept. 1995) (ALJ). Respondent was mining at the head of the No. 2 Entry of the Cumberland West section. By definition, a room cannot be at the head of an entry, so this exception does not apply to Respondent’s ventilation of the face of the Cumberland West section. Id.

Further, Respondent argued at trial that permanent ventilation controls were not required because the Cumberland West section and the 89 Mains South section combined to form one “super-section,” which then had the advantageous effect of moving the left last-open crosscut from the No. 8 Crosscut of the Cumberland West section back to the east end of the 89 Mains South section. (Tr. 128). Such a super-section arrangement is not illustrated, or supported, by Respondent’s Vent Plan Addendum submitted on July 29, 2008. Also, Respondent was not attempting to maintain a super-section one week prior to the October 6 inspection, as Inspector Young was present at the Cumberland West section and had observed that the line of permanent stoppings along the left return air course “was solid to the 4 xcut.” (GX-3 p. 13). This explanation must also be rejected so that compliance with the standard can not be easily circumvented by an operator’s ability to simply redefine the boundaries of its sections.

The removal of these permanent stoppings resulted in a decrease in the quantity of air that was reaching the left side of the Cumberland West section’s face. Thus, the standards have not been met and, therefore, the Secretary has established a violation of this safety standard.

II. 30 C.F.R. § 75.333(h)

All ventilation controls are required to be maintained for the purpose for which they were built. 30 C.F.R. § 75.333(h). Respondent admits that it is a violation of § 75.333(h) to have an open airlock door, to have a hole in a stopping, or for a stopping to be crushed or bent. (Tr. 189-190). The existence of any of these defects would be a failure to maintain a stopping in an adequate manner to control for leakage, and, therefore, would be a violation of the standard. Respondent argues that the standard only applies when a stopping has been damaged and does not apply when a stopping has been intentionally removed. (Tr. 130-31, 182-83).

Respondent’s proposed readings of the standard would result in an outcome where a small hole drilled in a permanent stopping would be a failure to maintain that stopping for its intended purpose (which is to control air leakage), but removing a permanent stopping altogether, thereby allowing a much greater amount of air leakage, would not be a failure to maintain that stopping for its intended purpose. This contradictory outcome vitiates the intention of the standard.

The permanent stoppings at issue were built for the purposes of preventing intake air from leaking into the return air course before it reached the face of the Cumberland West section. When Respondent removed these permanent stoppings and replaced them with unsecured curtains it failed to maintain the permanent stoppings for the purpose for which they were built. Thus, the standards have not been met and, therefore, the Secretary has established a violation of this safety standard.

III. Significant and Substantial

A violation is properly designated as significant and substantial (“S&S”) if “based upon 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.” National Gypsum Co., 3 FMSHRC 822, 825 (1981). The Commission has emphasized that an S&S finding is made in addition to the finding of the violation, noting that “something more than the violation of a standard itself is required.” Id., 3 FMSHRC at 826. To meet this definition, the Secretary must show: 1) an underlying violation of a mandatory safety standard; 2) a discrete safety hazard contributed to by the violation; 3) a reasonable likelihood that the hazard contributed to will result in 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 (1984).

As noted above, the first element of the Mathies test has been proven. Respondent intentionally removed four permanent stoppings that were required by § 75.333(b)(1) to be in place to isolate the intake air from the left return air course. The stoppings were also required by § 75.333(h) to be maintained to serve the purpose for which § 75.333(b)(1) required them to be built.

The second element of the Mathies formula requires that the Secretary prove a discrete safety hazard, that is, a measure of danger to safety, contributed to by the violation. In enacting the ventilation requirements of the Mine Act, Congress mandated that “the volume and velocity of the current of air shall be sufficient to dilute, render harmless, and to carry away flammable, explosive, noxious, and harmful gases, and dust and smoke and explosive fumes” from all active workings. 30 U.S.C. § 863(b). The Commission has stated that “the hazards associated with inadequate ventilation, especially at working faces, are among the most serious in mining.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). In support of this statement, the Commission has referred to Congress’ finding that “[v]entilation of a mine is important not only to provide fresh air to miners, and to control dust accumulation, but also to sweep away liberated methane before it can reach the range where the gas could become explosive” and thus “the requirements that a mine be adequately ventilated becomes one of the more important standards under the …Act.” Monterey Coal Co., 7 FMSHRC 996, 1000-01 (July 1985) (quoting S. Rep. NO. 95-181, at 41 (1977)). Here, Respondent’s removal of the permanent ventilation controls resulted in a significant leakage of intake air into the left return air course before the intake air could reach the face of the Cumberland West section. The significant leakage of air resulted in a substantial decrease in the amount of intake air that was reaching the left last-open crosscut, which was the face of the Cumberland West section. A substantial decrease in the amount of intake air reaching the face decreased the amount of fresh air reaching the miners which could lead to unconsciousness or asphyxiation. Such a decrease also allows methane and coal dust to accumulate, which creates the risk of a catastrophic ignition and explosion. Thus, there were clearly discrete safety hazards and measures of danger to safety contributed to by the violation of 30 C.F.R. § 75.333.

For the third element of the Mathies test, the Secretary must establish that, in the course of continued normal mining operations, there is a reasonable likelihood that the hazard contributed to will result in an injury. U.S. Steel Mining Co., 6 FMSHRC 34, 36 (Jan. 1984); Consolidation Coal Co., 6 FMSHRC 34, 36 (Jan. 1984). A coal mine’s ventilation plan must be “suitable to the conditions” of the mine. U.S. Steel Mining Co., 7 FMSHRC at 1129 n. 5. Therefore, the ventilation plan of a gassy mine may require a greater amount of air quantity to be coursed through the mine than the minimum amount required by law. Id. The Commission has held that a violation that creates a significant decrease in the quantity of air reaching a working face is significant and substantial, even when low levels of methane and coal dust are present at the time the violation is found, because a buildup of methane could occur in a relatively short period of time in a gassy mine during normal mining operations. Id; see also Broken Hill Mining Co., 17 FMSHRC at 1543-44 (ALJ Sep. 1995) (finding a violation of § 75.333(b)(1) to be S&S where no methane was detected): Beech Fork Processing, Inc., 16 FMSHRC 1346, 1353 (ALJ June 1994) (finding a violation of 75.333(b)(1) to be S&S without any findings with regard to the level of methane, dust, or oxygen present).

At the time of the violation the Mine liberated in excess of seven million cubic feet of methane in a twenty-four hour period. (Tr. 65). The Mine has had face ignitions in the past (Tr. 5-6), and at the time of the violation a continuous miner was extracting coal at the face of the Cumberland West section. The crew at the Cumberland West section was engaged in a form of mining called “taking bottoms” at the time of the violation, which created the possibility that the drill bits of the continuous mining machine will strike rock and produce sparks. (Tr. 67). Respondent’s own safety representative, John Perry, admitted that there was a “distinct loss of air” in the left return (Tr. 122), and that there was “a lot of leakage” in at least one of the curtains that was installed to replace the permanent stoppings. (Tr. 128). Inspector Young measured the air quantity in the left last-open crosscut to be 16,016 cubic feet per-minute, and the air quantity in the left last return to be 76,440 cubic feet per-minute. Therefore, 79% of the intake air being coursed up through the left side of the Cumberland West section was leaking to the return before it reached the face of the section. The amount of air that was reaching the left last-open crosscut was less than the 18,000 cubic feet per minute that was required by Respondent’s approved ventilation plan. (Tr. 44). The significant reduction in air reaching the left side of the Cumberland West section, while mining was being conducted in the section, was reasonably likely to result in a serious injury or illness from loss of oxygen and/or the accumulation of noxious and explosive gas and dust if normal mining operations continued.

In addition, the likelihood of an injury or illness from this violation was increased by Respondent’s failure to test the air quantity in the left last-open crosscut of the Cumberland West section. The Mine began removing permanent stoppings from the left return on Friday, October 3. (GX-1). All three pre-shift examinations conducted on October 3, and the one pre-shift examination conducted on Saturday, October 4, took a left last-open crosscut air quantity reading in locations in the 89 Mains South section that were in close proximity to the location of their left return readings. (Tr. 146-147). Because Respondent’s pre-shift examiners took the left last-open crosscut reading and the left return reading in such close proximity, no air leakage was detected. The pre-shift examiners did not test the quantity of air on the left side of the face of the Cumberland West section. For the remainder of Saturday, October 4, and Sunday, October 5, the section was idle and only left return readings were taken. On Saturday, October 5, and Monday, October 6, Respondent removed additional permanent stoppings from along the left return entry. (GX-1). When mining resumed on Monday, October 6, Respondent’s pre-shift examiner again took his left last-open crosscut air-quantity reading near the location where he took his left return reading. (Tr. 148). It was not until the shift after Inspector Young’s inspection that Respondent’s pre-shift examiners began taking left last-open crosscut readings at the face of the Cumberland West section. (Tr. 149).

The Commission has held that it was an error for an ALJ to tie the S&S determination to solely “an analysis of the reasonable likelihood of injury resulting from low oxygen or methane ignition” for a violation of the borehole drilling standard, as the standard promotes the timely ascertainment of hazards. Kelly’s Creek Resources, Inc., 19 FMSHRC 457, 460-61 (Mar. 1997). However, the Commission held that ALJ erred in finding a violation non-S&S where miners entered a section of the mine that did not receive a pre-shift report inspection because the previous inspection occurred two days prior and methane may have built-up in that time. Buck Creek Coal, Inc., 17 FMSHRC 8, 14 (Jan. 1995).

Air quantity readings by the pre-shift examiners are intended to protect miners from exposure to hazards of which they would otherwise be unaware. Because it failed to take readings of the air quantity on the left side of the Cumberland West face, Respondent, and its miners, were completely unaware of the significant loss of air from the leaks along the left return air course. Respondent’s failure to take the preventative step of testing air quantity in the left side of the section’s face, increased the likelihood that, under continued normal mining operations, miners would be unknowingly exposed to either low oxygen, noxious gases, respirable dust, or the hazard of an explosion from an accumulation of methane and coal dust. Accordingly, I find that the Secretary has established the third Mathies element.

The fourth Mathies element requires that the Secretary establish a reasonable likelihood that the injury in question would be of a reasonably serious nature. The particular standards violated were implemented to prevent highly serious dangers to miners, such as a loss of oxygen, the inhalation of respirable dust and explosions caused by the accumulation of methane and/or coal dust. The occurrence of any one of these scenarios would be gravely dangerous to miners and would likely result in fatal injuries. Mathies’ fourth prong is clearly met. For all of these reasons, the gravity of Respondent’s violation was properly classified as significant and substantial, and shall be sustained.

IV. Unwarrantable Failure

According to the regulatory guidelines, an operator’s negligence is high if it “knew or should have known of the violative condition or practice and there are no mitigating circumstances.” 30 C.F.R. § 100.3(d). Mitigating circumstances may include, but are not limited to, actions which an operator has taken to prevent, correct, or limit exposure to mine hazards. Id. However, where the actions taken to prevent, correct, or limit exposure to hazards are grossly inadequate, such actions should not be considered as mitigating circumstances. Maple Creek, 26 FMSHRC 539, 553 (June 2004) (ALJ), aff’d in part & rev’d in part on other grounds, 27 FMSHRC 555 (Aug. 2005).

Within the meaning of § 104(d) of the Act, an “unwarrantable failure” involves “aggravated conduct constituting more than ordinary negligence.” Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (quoting Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1997). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Emery, 9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). In Emery, the Commission distinguished between “negligence,” which it defined as “inadvertent,” “thoughtless,” or “inattentive;” and conduct constituting an unwarrantable failure, which is “not justifiable” nor “excusable.” 9 FMSHRC at 2001. Demonstrating aggravated conduct that constitutes an unwarrantable failure requires a showing that a violative condition or practice was not corrected prior to the issuance of a citation or order because of “indifference, willful intent, or serious lack of reasonable care.” Emry, 9 FMSHRC at 2003 (citing U.S. Steel Corp., 6 FMSHRC 1423, 1437 (June 1984)); Westmoreland Mining Co., 7 FMSHRC 1342 (Sept. 1985)). The Secretary bears the burden of proving that the violation resulted from an unwarrantable failure. Midwest Minerals, Inc., 21 FMSHRC 301, 306 (March 1999) (ALJ).

The Commission has recognized various factors as relevant to the unwarrantable failure determination, including the extent of the violative condition, the length of time that it has existed, whether the violation is obvious or poses a high degree of danger, whether an operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts to abate the condition, and the operator’s knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353 (March 2000); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). Each of the factors must be viewed in the context of the factual circumstances of a particular case, and some may be irrelevant to the specific situation. IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). It has been established that “all of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether the level of the actor’s negligence should be mitigated.” Consolidation Coal Co., 22 FMSHRC at 353; accord Windsor, 21 FMSHRC at 1001 (noting that extensiveness alone is insufficient to sustain a finding of unwarrantable failure.) It is necessary for a judge to consider all relevant factors, rather than relying on one to the exclusion of others. IO Coal, 31 FMSHRC at 1351.

A violation may only be deemed the result of an unwarrantable failure if all relevant facts and circumstances of the case demonstrate that the operator’s conduct was aggravated. See Consolidation Coal Co., 22 FMSHRC at 353. Here, considering all of the facts and circumstances surrounding this order, the Secretary has failed to establish that aggravated conduct was present.

A. Extent and Duration of the Cited Condition

The Commission has viewed the extent of the violative condition as an element in the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC at 1351. The Commission has also emphasized that duration of a violative condition is a necessary element of the unwarrantable failure analysis. Id. at 352. Moreover, determination of the extensiveness of a condition must be made assuming continued normal mining operations, and must consider both the timeframe the condition existed prior to the issuance of the citation and the time it would have existed if normal mining operations had continued. See U.S. Steel Mining, 7 FMSHRC at 1130; Maple Creek Mining, 22 FMSHRC 742, 754 (ALJ Feldman June 2000).

The cited condition had only existed for a few days at the most. (GX-9). There were only two of the four locations that concerned the inspector so the extent was likewise limited. The ventilation over the continuous miner and in the cited areas was more than sufficient. Inspector Young testified that at the time he found the condition, the ventilation would have served to render any harmful or explosive gases harmless. Thus, the extent and duration of the cited condition was not unwarrantable.

B. There is No Evidence That Greater Efforts Were Required with Respect to Ventilation

The Secretary argues that Respondent was on notice that greater enforcement efforts were necessary. Respondent had no reason to believe that greater efforts were required with respect to the ventilation of the cited area. To show that past violations put an operator on “notice” for purposes of establishing an unwarrantable failure, the Secretary must also establish the similarity of the prior violations to the condition at issue. See Cantera Green, 21 FMSHRC 310, 312 (ALJ Melick March 1999); see also Mountain Coal Co. LLC, 26 FMSHRC 853, 869-70 (ALJ Manning Nov. 2004). To do so, the Secretary must establish the nature of the prior violations to show that they would be relevant to place the operator on notice regarding the violation at issue. See Cantera Green, 21 FMSHRC at 312.

The Secretary’s reliance on past violations of 75.333(h) or 75.333(b)(1) is not appropriate. Inspector Young relied upon one previous violation of Section 75.380. This is a moot point as Section 75.380 is no longer at issue. Inspector Young did not rely on any violations of Section 75.333(b)(1) or 75.333(h) in designating the cited condition as an unwarrantable failure during the inspection. The Secretary introduced past violations of Section 75.333 as evidence to provide a basis for an unwarrantable failure that the inspector did not. All of the previous Section 75.333(h) violations were Section 104(a), Non-S&S, citations issued for actual maintenance issues with respect to stoppings, but not for removal of stoppings. (Tr. 70-71; GX-7). Additionally, there was only one citation relative to Section 75.333(b)(1), the other standard that the Secretary relies upon. (Tr. 71; GX-6). This hardly represents a significant history.

Further, the purpose of evaluating the number of past violations is to determine the degree to which those violations have “engendered in the operator a heightened awareness of a serious problem.” IO Coal, 31 FMSHRC at 1353, citing San Juan, 29 FMSHRC at 131. Respondent had no such problem because the existence of a limited number of non-S&S citations does not support the concept that a problem is occurring.

C. Respondent’s Good-Faith Belief That the Condition was not a Hazard was Objectively Reasonable

An operator’s knowledge of the existence of a violation and whether the violation is obvious are important elements of an unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1356. If an operator acted on a good-faith belief that its cited condition was actually in compliance with applicable law, and that belief was objectively reasonable under the circumstances, the operator’s conduct will not be considered to be the result of an unwarrantable failure, even when it is determined later that the operator’s belief was in error. IO Coal, 31 FMSHRC at 1356, (citing Kellys Creek Resources, Inc., 19 FMSHRC 457, 463 (Mar. 1997)).

Inspector Young testified and his notes show that Coordinator Fraley, who ordered the removal of the stoppings, told Inspector Young that he believed Respondent could remove the stoppings to prepare 89 Mains South for mining because the tailpiece had not moved and because the unit was a super section. (Tr. 95). Inspector Young also testified and his notes show that he did not believe that Respondent intentionally subverted the law. (Tr. 99-100). Instead, Inspector Young believed that Respondent had simply “gotten ahead of themselves” in anticipation of mining the 89 Mains South area of the super section. (Tr. 99-100).

Finally, the Secretary’s amendment of Inspector Young’s Order regarding what standard the condition violated serves to illustrate that reasonable disagreements pertaining to mining standards and conditions exist. Respondent had a good-faith belief that there was no violation of the cited standards and evidence shows that this belief was objectively reasonable under the circumstances. Therefore, a violation cannot be considered the result of an unwarrantable failure.

D. Respondent Took Reasonable Steps to Abate the Purported Violation

An operator’s effort in abating the violative condition is one of the factors established by the Commission as determinative of whether a violation is unwarrantable. IO Coal, 31 FMSHRC at 1356. Where an operator has been placed on notice of a problem, the level of priority that the operator places on the abatement of the problem is relevant. Id. The focus on the operator’s abatement efforts is on those efforts made prior to the citation or order. Id.

Respondent had not been put on notice that a problem existed, but Respondent had taken significant efforts to maintain the integrity of the ventilation in both the Cumberland West and 89 Mains South sections. The metal stoppings were all replaced with temporary check curtains, which isolated the respective areas and kept the airflow velocity and direction substantially the same. (Tr. 73-77, 97, 121, 131, 179-80). The curtains allowed the air to ventilate into the return, as it had previously. (Tr. 85-89, 111-12). The continuous miner grading the coal bottoms had nine to ten times the airflow required. (Tr. 76-78, 181). The fact that the airflow maintained continuity throughout the removal of the stoppings in this area shows that Respondent took care and consideration in the changes made to the ventilation.

While Respondent did fail to take the preventative step of testing air quantity in the left side of the section’s face, Respondent was conducting examinations regularly and monitoring the ventilation at other points to ensure the integrity of the system. (Tr. 73). The October 3 and 4 pre-shift examinations took the left last-open crosscut air quantity reading in locations in the 89 Mains South section that were in close proximity to the locations of their left return readings. It was not until Inspector Young’s inspection that Respondent began taking left last-open crosscut readings at the face of the Cumberland West section. This creates a situation where Respondent could have been unaware that the air quantity in the left last-open cross-cut was 16,000 cubic feet per-minute while the approved ventilation plan required 18,000. Therefore, Respondent’s placement of metal stoppings and check curtains were reasonable attempts to maintain a safe working environment.

E. The Cited Condition did not Present a High Degree of Danger

            The Commission has relied upon the high degree of danger posed by a violation to support an unwarrantable failure finding. IO Coal, 31 FMSHRC at 1356; see also Beth Energy Mines Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where unsaddled beams “presented a danger” to miners entering the area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding violation to be aggravated and unwarrantable based upon “common knowledge that power lines are hazardous, and…that precautions are required when working near power lines with heavy equipment”).

            There was little to no methane found at the time the Order was issued. (Tr. 129-30; GX-1). While there was the possibility that the continous miner could strike rock and produce sparks, the Secretary presented no evidence of actual ignitions. For these reasons, and based upon the totality of the circumstances, the condition did not present a degree of danger high enough to necessitate a finding of unwarrantable failure.

F. All Relevant Facts and Circumstances

A violation may only be deemed the result of an unwarrantable failure if all relevant facts and circumstances of the case demonstrate that the operator’s conduct was aggravated. See Consolidation Coal Co., 22 FMSHRC at 353. Here, considering all of the facts and circumstances surrounding this Order, the Secretary has failed to establish that aggravated conduct was present.

The Commission outlined its authority assessing civil penalties in Douglas R. Rushford Trucking, stating that “the principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established.” 22 FMSHRC 598, 600 (May 2000). While the Secretary’s system for points in part 100 of 30 C.F.R. provides a recommended penalty, the ultimate assessment of the penalty is solely within the purview of the Commission. Id. Thus, a Commission judge is not bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The de novo assessment of civil penalties does not require each of the penalty assessment criteria to be given equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

ORDER

After reviewing all the relevant facts and weighing the § 110(c) factors applicable to such and considering the above findings as to gravity and level of negligence associated with the citation and order, the Undersigned concludes that a penalty of $12,500 for the one violation is warranted.

/s/ John Kent Lewis

                                                                                     John Kent Lewis

                                                                                     Administrative Law Judge

Distribution: (Certified Mail)

Patrick M. Dalin, U.S. Dept. of Labor, Office of the Solicitor, 170 S. Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106

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

/smg