FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

December 27, 2011

DECISION

Appearances:  Angele Gregory, Esq., and Alisha Wyatt, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, on behalf of the Petitioner;

                        Gary D. McCollum, Esq., Lexington, Kentucky, on behalf of the Respondent.

Before:            Judge Melick

            This case is before me upon a petition for a civil penalty filed by the Secretary of Labor (“Secretary”), pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq., (“Act”) charging Excel Mining, LLC. (“Excel”) with two violations of mandatory standards and proposing civil penalties of $49,039.00 for those violations. Since Excel admits the violations, the general issue remaining is the appropriate civil penalty to be assessed for those violations. Additional specific issues are addressed as noted herein.

            Citation Number 8224945, issued at 12:30 p.m. on May 11, 2009 pursuant to section 104(d)(1) of the Act, alleges a “significant and substantial” violation of the standard at 30 C.F.R. §75.507-1(a) and charges as follows:

The explosion proof enclosure for the #3 P-40 de-watering pumps located in the return air course approximately 60 feet from the VL-2 seals is not being maintained in a permissible condition. The following conditions exist. 1. No packing material is provided in the stuffing box of the packing gland for the 8/5 awg cable being used to supply power of 575 volts to this explosion proof enclosure, allowing the power cable to move freely through the packing gland thus exposing the electrical circuits in this explosion proof enclosure to the mine atmosphere. 2. A device is not provided to secure the packing nut of the stuffing box from loosening. These conditions exposes [sic] miners to dangers of burns and /or smoke inhalation from a methane explosion. A agent of the operator has been making the weekly examinations of this pump installation and this installation has been in service for at least a month. The examiners (who are agents of the operator) engaged in aggravated conduct constituting more that [sic] ordinary negligence in that the packing glands on the explosion proof enclosure were not packed with packing material. This violation is an unwarrantable failure to comply with a mandatory standard. This mine has a history of methane gas and this pump installation is located approximately 60 feet from a sealed area.

            Order Number 8224946, issued at 12:41 p.m. on May 11, 2009 pursuant to section 104(d)(1) of the Act, also alleges a “significant and substantial” violation of the standard at 30 C.F.R. §75.507-1(a). The order charges as follows:

The explosion proof enclosure for the #2 P-70 de-watering pump located in the return air course approximately 60 feet from the VL-2 seals is not being maintained in a permissible condition. The following conditions exist. 1. No packing material is provided in the stuffing boxes of the packing glands for the cables being used to supply power of 575 volts to this explosion proof enclosure and the P-70 pump, allowing the power cable to move freely through the packing gland thus exposing the electrical circuits in this explosion proof enclosure to the mine atmosphere. 2. A device is not provided to secure the packing nuts of the stuffing boxes from loosening. These conditions exposes [sic] miners to the dangers of burns and/or smoke inhalation from a methane explosion. An agent of the operator has been making the weekly examination of this pump installation and this installation has been in service for at least one month. These conditions exposes [sic] miners to the dangers of burns and/or smoke inhalation from a methane explosion. An agent of the operator has been making the weekly examination of this pump installation and this installation has been in service for at least one month. The examiners (who are agents of the operator) engaged in aggravated conduct constituting more that ordinary negligence in that the packing glands on the explosion proof enclosure were not packed with packing material. This violation is an unwarrantable failure to comply with a mandatory standard. This mine has a history of methane gas and this pump installation is located approximately 60 feet from a sealed area.

            The cited standard, 30 C.F.R. §75.507-1(a), provides that “[a]ll electric equipment, other than power-connection points, used in return air outby the last open crosscut in any coal mine shall be permissible except as provided in paragraphs (b) and (c) of this section.” There is no contention that paragraphs (b) or (c) are applicable herein.

            As previously noted, Excel admits the violations. It disputes only the “significant and substantial” (gravity) and unwarrantable failure (negligence) findings as well as the amount of proposed civil penalties. Dale Howell is an electrical inspector for the Department of Labor’s Mine Safety and Health Administration (MSHA) and had been working for MSHA since 2007. He had previously been a mine inspector for the State of Kentucky and has more than 30 years of coal mine industry experience. On May 11, 2009, Inspector Howell conducted an electrical inspection of the subject Van Lear Mine. As part of that inspection, he examined two de-watering pumps located near the mine’s seals. The pumps were located in a low spot where water gathers. Howell explained that, without the pumps to remove built-up water from the area, the water could block the air current in the return air course and also impede travel through the area.

            Howell testified that during an earlier visit to the mine that same week he found that the pumps had not been working and approximately three feet of water had built up in front of the seals. Only two feet of air space remained in the area and Howell explained that he was concerned that the ventilation would become blocked by the water. Excel’s Assistant Chief Electrician Jake Bowen told Howell that the power had been off and the water had built up. Because of the amount of water in the area, Howell was unable to inspect the pumps. He told Bowen that he would return after the water was removed.

            A de-watering pump consists of the pump itself, which sits on the mine floor usually in water, and a starter box, which is located 20-30 feet away in a dry location, usually suspended from the roof. The two are connected by an inner machine cable. Where the cable enters the starter box, it is insulated and secured by packing glands, which are filled with fiberglass-type rope.

            Howell testified that when examining a de-watering pump, he checks for permissibility by using a feeler gauge and pulling on the cable entering the box to “see if it moves.” If the cable moves, that indicates that the cable is not properly packed. According, to Howell, when a stuffing box is not properly packed, it is not permissible because, in the event of an explosion, the flames can escape the container by traveling past the unsecured cable.

            When Howell returned to the mine on May 11^th to inspect the P-40 and P-70 pumps located in front of the Number 8 seal, he found about a foot of water surrounding the area. Howell testified that he found that the packing glands were missing from both pump starter boxes and that there was a problem with the handle on one of the boxes. According to Howell, when he pulled on the cable to the starter box, it moved back and forth, and when he looked into the stuffing box, he did not see any stuffing. Howell opined that the cable to one of the boxes had been “whittled down with a knife so it would fit into the pump,” and the stuffing boxes did not have proper lead ties to keep the packing glands from loosening.

            Inspector Howell found that the condition of the pumps constituted a violation of 30 C.F.R. §75.507-1(a). He wrote Citation Number 8224945 based on the condition of the P-40 de-watering pump and he wrote Order Number 8224946 based on the condition of the P-70 pump. As previously noted these findings are not disputed.

            The Secretary also maintains however that these violations were “significant and substantial.” A violation is properly designated as "significant and substantial" if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained:

In order to establish that a violation of a mandatory standard is significant and substantial under National Gypsum the Secretary 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 injury and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

            See also Austin Power Co. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

            The third element of the Mathies formula requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984), and also that the likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986); Southern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991).

            In this regard, Howell found that the condition of the pumps was likely to result in “[s]moke inhalation, or burns or even crushing injuries, concussion” to miners because of the proximity of the pumps to the seals, which in-gas and out-gas methane. According to Howell during periods of low barometric pressure, methane is liberated from the seals. Howell, explained that, because the starter box was not permissible, any spark would not be contained within the box and that it was likely that a spark from the box would be ignited by methane released from the nearby seals during a period of low pressure.

            In this regard it is undisputed that the Van Lear Mine liberates 295,000 cubic feet of methane in a 24-hour period from one split of air. At the time of the citation, the mine was on a 15-day spot inspection for methane. Inspector Howell explained that, in addition to the seals, methane can escape from cracks in mine strata, particularly in areas where there has been a roof fall and that the mine had experienced a roof fall only one break inby the seals.

            Howell credibly concluded that he would expect to see fatal injuries from a resulting methane explosion and injuries from burns or smoke inhalation from a mine fire. He further opined that 10 people would be affected by a methane explosion, and up to 50 or 60 people would be affected in the event of a disruption in the mine’s ventilation system. Howell explained that up to 60 men travel to the bottom of the mine slope, which is 1500-2000 feet from the seals.

            MSHA ventilation expert and supervisor, Craig Plumley, explained that he is familiar with the VL2 seals at Van Lear Mine and noted that behind the VL2 seals, are an initial set of seals. He testified however that there is no way to determine the current condition of the initial seals. Moreover, it is not disputed that before the installation of the current seals, an explosive mixture of methane was detected behind the seals. Mr. Plumley opined that considering the location of the non-permissible starter box in the return air course in a mine with this history of methane liberation there was a concern for an explosive hazard. Plumley further explained that, in addition to the location of the pumps in front of the VL2 seals, they were also in an area where four entries were compressed into one entry causing the air from five returns from active sections, which are also a source of methane, to move past the non-permissible pumps.

            Plumley also confirmed Inspector Howell’s opinion that the build-up of water around the pumps would put more pressure on the ventilation system behind the water build-up, which would reduce the airflow and allow a build-up of methane in front of the non-permissible starter boxes. In summation, Plumley stated as follows:

In my opinion and my experience through mining history that I’ve been involved with, there is a high expectation of an explosive mix being generated outby seals that have been in an explosive range in the past and we have record of such that could liberate into the active workings over top of a non-permissible pump, two non-permissible pumps that would create a situation of an explosive atmosphere in conjunction with an ignition source. And the hazard, in my view, is the potential that this exposed the miners to an explosion throughout the mine that would cause fatal injuries.

(Tr. 98)

            Considering the credible testimony of these expert witnesses and the reasonable inferences therefrom, I conclude that the Secretary has met her burden of proving that the cited violations were “significant and substantial” and of high gravity. In reaching these conclusions, I have not disregarded Excel’s arguments that, at the time the charging documents were issued, no methane was detected and that no deficiency in air volume or velocity was found at the site of the violative conditions In addition, I note Excel’s argument that there has been no evidence of explosive methane ever found in the subject entry. Excel also notes that its ventilation has always been maintained with “a lot of air.” I nevertheless note that continued mining operations must be considered in determining whether a violation is “significant and substantial” and I give persuasive weight to the existence of serious existing ignition sources in a mine liberating significant amounts of methane.

            The Secretary also maintains that the admitted violations were the result the operator’s unwarrantable failure and high negligence. Unwarrantable failure is “aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act.” Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); see also Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7^th Cir. 1995) (approving Commission’s unwarrantable failure test).

            In this regard, Inspector Howell found that the condition of the pumps resulted from high negligence on the part of the operator. After writing the citation, Howell spoke to electrician Jake Bowen, who said that he had worked at the mine for one month and, as far as he knew, the pumps had not been changed out in that time. The record books also did not indicate that the pumps had been changed in the week preceding Howell’s inspection. Howell opined that this condition constituted an unwarrantable failure to comply with a mandatory safety standard because of the length of time the condition existed and the fact that “if you do an electrical exam, you can’t miss these deficiencies.” Howell explained that, as agents of the operator, the examiners should have known or did know of the cited conditions.

            In addition to Mine Electrician Bowen’s statement to Inspector Howell that the pumps had not been changed out in the month that he had worked at the Van Lear Mine, the mine’s own records demonstrate that neither of the pumps was repaired between March 28, 2009 and May 11, 2009. This evidence is contrary to Chief Electrician Rick James’ unsupported testimony that the pumps must have been changed sometime between the time of the last electrical examination and Howell’s inspection. In addition, James acknowledged that “he didn’t know that they [the pumps] had been changed or if anybody had changed them.” I find however that the credible evidence supports the conclusion that no one had changed out the pumps in the weeks prior to the citation and order. The evidence also supports Howell’s conclusion that the examiners were in a position to have seen these conditions for at least a month and failed to report those conditions or have taken the pumps out of service.

            The violative conditions were also extensive. Neither pump located near the VL2 seals contained packing material. As Inspector Howell described, the citation was not due to an insufficient amount of packing material in the stuffing boxes; but rather, the complete absence of stuffing material in the boxes. The extent of the condition was obvious because, without any stuffing in the box, the cables moved back and forth freely. Inspector Howell credibly opined that the non-permissible condition of the pumps was obvious and could not have been overlooked during an electrical exam.

            The evidence supports Inspector Howell’s conclusion that the operator had knowledge of the violative conditions which, as previously noted, were of high gravity. Here, the operator’s failure to correct the conditions is particularly egregious given that one of the starter boxes had a note written directly on top of its cover, which contained an expletive and referred to the functionality of the starter box. The note indicated that the breaker handle was not working properly and could not be reset from outside of the box. This note was sufficient to put the electrical examiner on notice that there was a problem with that pump. Moreover, a simple examination of the starter boxes, i.e. by pulling on the cable entering the boxes, would have clearly demonstrated to the examiner that the boxes contained no stuffing. Either the examiner failed to conduct that simple examination or conducted the examination but ignored the results. Either way, the operator is responsible for the intentional misconduct or gross negligence of the examiner. Under the circumstances, I find that the Secretary has met her burden of proving that the violations herein were the result of Excel’s unwarrantable failure and high negligence.

            In reaching these conclusions, I have not disregarded Excel’s claim that the electrical examiners were not its agents so that their actions were not imputable to Excel. Clearly however, miners conducting permissibility examinations of electrical pumps are agents of the operator. Rochester & Pittsburgh Coal Company, 13. FMSHRC 189, 197 (February 1991). I further find that I can give but little weight to Mr. James’ hearsay interviews with the examiners and electricians. Those miners could have suffered disciplinary action if they had admitted to working on the pumps, for failing to have conducted proper examinations or for failing to correct the violative conditions.

Civil Penalties

            Under Section 110(i) of the Act, the Commission and its judges must consider the following factors in assessing a civil penalty: the history of violations, the negligence of the operator in committing the violation, the size of the operator, the gravity of the violation, whether the violation was abated in good faith and whether the penalties would affect the operator’s ability to continue in business.

            The record shows that Excel is a medium to large size operator, has a significant history of violations and abated the violative conditions in good faith. There is no evidence that the penalties herein would affect the operator’s ability to remain in business. The gravity and negligence criterion have previously been discussed. 

Order

            Citation No. 8224945 and Order No. 8224946 are hereby affirmed and Excel Mining, LLC is directed to pay civil penalties of $23,200.00 and $25,800.00 respectively for the violations charged therein within 40 days of the date of this decision.

                                                                                     /s/ Gary Melick

                                                                                    Gary Melick

                                                                                    Administrative Law Judge

                                                                                    (202) 434-9977 

Distribution:

Angele Gregory, Esq., and Alisha Wyatt, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219

Gary McCollum, Esq., Excel Mining, LLC, 771 Corporate Drive, Suite 500, Lexington, Kentucky 40515

/to