FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, D.C. 20004-1710

Telephone: (202) 434-9958

Fax: (202) 434-9949

June 3, 2013

DECISION

Appearances:   Alisha I.Wyatt-Bullman, Esq.; Leslie Brody, Esq., U.S. Department of Labor, Atlanta, Georgia, on behalf of the Secretary

Noelle True, Esq., Rajkovich, Williams, Kilpatrick, & True, Lexington, Kentucky, on behalf of Leeco, Inc.

Before:            Judge David F. Barbour

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA) against Leeco, Inc. (“Leeco”), pursuant to sections 105(d) and 110 of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. §§ 815(d), 820. The Secretary alleges that Leeco is liable for two violations of § 75.370(a)(1), a mandatory safety standard that requires a mine operator to develop and follow a ventilation plan that is approved by the MSHA district manager. Once the plan is approved, an operator must comply with all of its provisions. Wyoming Fuel Company n/k/a Basin Resources, Inc., 16 FMSHRC 1618, 1624 (Aug. 1994) (citing UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); Ziegler v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976); Freeman United Coal Mining Co., 11 FMSHRC 161, 164 (Feb. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987)). The Secretary proposes the assessment of $107,716.00 for the violations. The parties presented testimony and documentary evidence at a hearing in Hazard, Kentucky. They also filed post-hearing briefs. One alleged violation of section 75.370(a)(1), set forth in Order No. 8346197, was settled shortly before the hearing. Details of the settlement are discussed at the end of this decision. The Secretary asserts that the remaining alleged violation, which is cited in Order No. 8346316, is correctly characterized as a significant and substantial contribution to a mine safety hazard ("S&S"), is the result of Leeco's high negligence and unwarrantable failure to comply with the standard and that the penalty proposed – $47,716.00 – is appropriate.

STIPULATIONS

            Before presenting testimony regarding the contested violation the parties stipulated as follows:

                        1.         At all times relevant to this matter, Leeco was the

                                    operator of Mine # 68.

            2.         The Respondent’s operation at Mine # 68 involved

[products] which entered commerce or products

which affected commerce.

                        3.         Respondent admits that Order No. 8346316[, the

                                    order in which the contested violation is alleged,]

                                    was properly issued.

                        4.         Respondent admits to the fact of the violation in

                                    Order No. 8346316.

5.         Mine # 68 produced 715,374 tons of coal

in 2010.

            6.         Leeco terminated the conditions giving rise to the

                                    [settled and contested] orders in a timely,

                                    effective, and good manner.

            7.         The proposed penalties for the [settled and contested] orders

will not affect Leeco's ability to continue in business.

            8.         The MSHA inspectors' methane detectors and

                                    anemometers, used to obtain methane and air

                                    readings on November 4, 2010 [,] at Leeco's

                                    Mine # 68[,] were properly calibrated. 

            See Tr. 18-20.

BACKGROUND

            Mine # 68 is an underground bituminous coal mine located in Perry County, Kentucky. On November 4, 2010, MSHA inspectors James Daniels and Gary Oliver were sent to the mine. The inspectors’ visit was the result of an anonymous complaint filed with MSHA by a Leeco miner. The complaint alleged “poor ventilation.” Tr. 77. On November 4 the mine was on a 15-day spot inspection schedule and an approved ventilation plan was in place. Tr. 41, 47-48; Ex. S-5. The mine also was subject to the provisions of section 104(d)(2) of the Act. 30 U.S.C. §814(d)(2). As a result, any alleged violation found by an inspector to be S&S and caused by the unwarrantable failure of Leeco to comply was cited in a section 104(d)(2) withdrawal order. Id.; see Tr. 65. The inspectors’ November 4 investigation resulted in the issuance of the following order:

                        ORDER NO.             DATE            30 CFR §

                        8346316                      11/4/10           75.370(a)(1)

                                    The operator is not complying with the provisions of

                                    the methane and dust control portions of the approved

                                    ventilation plan for the 014 MMU. The Joy

                                    continuous miner is observed mining in the No.4

                                    heading without a properly installed line curtain for

                                    methane and dust control. An attempt to take an air

                                    reading with a properly calibrated anemometer

                                    indicated that there was not enough air movement to

                                    turn the blades to obtain an air reading. The currently

                                    approved plan requires a velocity of 6,150 CFM of

                                    air movement behind the line curtain. The installed

                                    curtain was located approximately 25 feet from the

                                    back of the miner and was not installed out into the

                                    last open crosscut to deflect and move air up into

                                    the entry where the miner is cutting and loading.

                                    Additionally dust was suspended in the air so thick

                                    that the lights on the miner and shuttle car were

                                    [barely] visible from approximately 70 feet away.

                                    These conditions expose the miners working in

                                    the 014 MMU to the risk of fatal injuries if a

                                    methane explosion were to occur and to

                                    permanently disabling lung diseases from dust

                                    inhalation. This mine is currently on a 15 day

                                    103(I) spot inspection schedule due to methane

                                    liberation[,] and methane explosions have historically

                                    caused serious injuries and death to miners.

                                    Exposure to respirable dust is the leading cause of

                                    Black Lung and Silicosis disease in coal miners.

                                    The section foreman was observed walking across

                                    the last open crosscut and the amount of dust

                                    suspended in the air would be recognized as a

                                    hazard to miners by the most casual observer and

                                    is a clear indication of problems with the

                                    ventilation controls.

                                    This failure to comply with the ventilation plan

                                    constitutes more than ordinary negligence and is an

                                    unwarrantable failure to comply with a mandatory

                                    health and safety standard. 

                        Ex. S-1.

            Prior to entering Mine # 68 on November 4 Oliver reviewed the mine’s records. Tr. 79. He found that the required pre-shift examinations were being conducted. Id. There were no recorded hazardous conditions reported by the pre-shift examiners. Id.. Oliver then proceeded underground and traveled to the No. 14 Section. Id. He was accompanied by Ricky Wells. Tr. 79-80. The men arrived at the last open crosscut in the No. Four entry of the No.14 section and Oliver noticed what he thought was an excessive amount of dust in the air coming from the entry. Tr. 79, 81-82; Ex. S-1. He also saw the section foreman, Bobby Meade, coming from the No. Five entry to the last open crosscut of the No. Four entry. Tr. 83-84. Meade did not immediately recognize Wells and Meade did not know Oliver. He therefore walked directly up to the men, saw that one was Wells and introduced himself to Oliver. Wells explained to Meade why he and Oliver were in the section. Tr. 158, 235, 301.

            Oliver then walked toward the face of the No. Four entry where a continuous mining machine (“continuous miner”) and a shuttle car were operating. Tr. 84-85. As he traveled toward the face, he noticed what seemed to be an increasingly thick concentration of dust suspended in the air, some of which he asserted was respirable. Tr. 129. Oliver flagged the operator of the continuous miner who shut down the machine. Tr. 84-86. Oliver then approached the continuous miner. He noticed that the middle part of the line curtain that was used to direct air into the entry (the “deflector curtain”) was hanging from the mine roof while the inby and outby parts of the curtain were lying on the mine floor. Tr. 86, 100. Oliver tried to take an air reading inby the hanging part of the curtain but there was no air flow to turn the blades of his anemometer. Tr. 86. The suspended dust and his inability to obtain an air reading were indications to Oliver that there was no ventilation at the face or in the area of the continuous miner. Tr. 87.

            One of the sections of the mine’s approved plan is titled “Safety Precautions for Scrubbers and Extended Line Curtains.” Ex. S-5 at 6. Part 3 of the section requires an air flow of 6,150 cubic feet per minute (“cfm”) on the 014 mechanized mining unit. Tr. 87; Ex. S-5 at 6. To achieve the required air flow the plan states:

                                    Deflector curtains will be maintained, in all idle

                                    places and places where work is being performed,

                                    to provide air movement. The deflector curtain

                                    will extend to within 40 feet of the face. Curtains

                                    will extend [outby] the corner, into the intersection

                                    a minimum of 4 feet.

                        Ex. S-5 at 2; see Tr. 178.

            In addition, the plan requires that the curtain be maintained within 10 feet of the shuttle car at all times. Tr. 102; Ex. S-5 at 2.

            Meade testified that prior to seeing Oliver and Wells, the last time he was in the No. Four entry, he saw Tom Hensley, the continuous miner operator, taking a first cut. Tr. 283. Meade maintained that at that time the curtain was hung within 10 feet of the shuttle car and extended into the crosscut as required. Tr. 286-87, 289-90. However, when Oliver saw the curtain it was approximately 25 feet from the shuttle car and part of it was lying by the corner of the crosscut, not in the crosscut. Tr. 102-103, 179; Ex. S-6. Oliver testified that it was possible the curtain had once extended four feet into the crosscut as Meade claimed, but Oliver did not think it was likely. Tr. 179.

            Oliver asked Hensley why all but the middle part of the curtain was lying on the mine floor. Tr. 90-91. Hensley replied that he accidentally tore down the curtain with the trailing cable of the continuous miner when he was backing up. Tr. 90, 244-45. However, Oliver did not see the trailing cable lying on top of the downed curtain. Tr. 168, 201. Also, if the curtain had been pulled down by the trailing cable as Hensley maintained, Oliver believed the curtain would not have come down at both ends with its middle part still hanging. Tr. 114, 168, 169. Therefore, in his opinion, the curtain was most likely not properly installed in the first place. Tr. 90.

            Wells countered that after Oliver spoke with Hensley, he attempted to rehang the curtain. Wells stated that he had to pick up the curtain from underneath the cable. Tr. 241, 244-45. Wells explained that trailing cables frequently became tangled in curtains, and it was the responsibility of continuous miner operators to rehang the downed curtains. Tr. 273. Meade also asserted it was possible for a cable to become tangled with a curtain in such a way that the curtain’s outby and inby ends are torn down. Tr. 303-04, 306.

            After inspecting the area where the continuous miner was operating, Oliver had Wells gather all eight miners who worked on the No. 14 section for a safety meeting. Tr. 115, 277. At the meeting, Oliver told the miners that running the continuous miner without ventilation was inexcusable and that he did not want a situation where he had to explain to families that miners died in a coal mine explosion because a curtain was not hung properly. Tr. 115.

            Following the meeting, the miners rehung the curtain. Tr. 116. At first, the miners hung the parts of the curtain lying on the ground, but when the curtain was rehung, it did not direct a sufficient air volume to meet the requirements of the ventilation plan. Tr. 117. The miners then added an additional 12-16 feet of curtain to the outby end of the original rehung curtain. Tr. 109. The augmented curtain achieved the proper air flow. Tr. 108. The fact that a fairly large piece of curtain had to be added to meet the requirements of the ventilation plan indicated to Oliver that even if the curtain was hung before mining commenced in the entry, the curtain was not long enough to extend into the crosscut and direct the air necessary to comply with the ventilation plan. Tr. 117.

THE VIOLATION

            Section 75.370(a)(1) states, “[t]he operator shall develop and follow a ventilation plan approved by the district manager. The plan shall be designed to control methane and respirable dust and shall be suitable to the conditions and mining system at the mine.” 30 C.F.R. § 75.370(a)(1). The order alleges that the plan in effect on the day of the inspection required 6,150 cfm of air behind the line curtain and Oliver testified that not only was the curtain down at both ends, he could detect no air traveling in the entry. Tr. 86-77, 184. The parties stipulated that Leeco violated section 75.370(a)(1) as charged, and I so find. Tr. 20; Stip. 4; Tr. 20.

            Oliver determined that the violation was reasonably likely to cause fatal injuries, that it was S&S, and that it was due to Leeco’s high negligence and unwarrantable failure to comply with the cited standard. Ex. S-1.

S&S

            An S&S violation is a violation "of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard." 30 U.S.C. § 814(d). A violation is properly designated 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." Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, the Secretary must prove: (1) the underlying violation; (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 will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also, Buck Creek Coal Co., Inc. v. MSHA, 52 F.3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y of Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).

            It is the third element of the S&S criteria that is the source of most controversies regarding S&S findings. The element is established only if the Secretary proves "a reasonable likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the violation and must be made in the context of continued normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).

            The parties agree, and I have found, that the violation existed as charged. Tr. 20; Stip. 4. infra. The Secretary charges that a total lack of ventilation led to the excessive atmospheric coal dust noted by Oliver and contributed to the discrete safety hazards of a build up of methane to explosive levels, a possible methane/coal dust explosion, and to the possibility of miners contracting pneumoconiosis. Tr. 129-31, 133. The issue of whether the violation was

S&S turns on whether an explosion hazard was established by the Secretary and, if so, whether the hazard was reasonably likely to cause an injury or injuries of a reasonably serious nature.

            Oliver, an experienced miner and mine inspector, believed that the lack of ventilation was reasonably likely to result in an explosion. Tr. 129. The Commission has stated that in:

                                    [E]valuating the reasonable likelihood of a

                                    fire, ignition, or explosion, the Commission has

                                    examined whether a 'confluence of factors' was

                                    present based on the particular facts surrounding

                                    the violation. Texasgulf, Inc., 10 FMSHRC 498,

                                    501 (April 1988). Some of the factors include

                                    the extent of accumulations, possible ignition

                                    sources, the presence of methane, and the type

                                    of equipment in the area. Utah Power & Light Co.,

                                    12 FMSHCR 965, 970-71 (May 1990) (“UP&L”);

                                    Texasgulf, 10 FMSHRC at 500-03.

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). Oliver explained that for an explosion to occur, oxygen, ignition, and fuel (coal dust, methane, or both) must be present. Tr. 189. I credit Oliver’s testimony that a significant amount of coal dust was suspended around the continuous miner and throughout the entry. Tr. 85. Oliver’s description of the dust as being so thick that the continuous miner’s lights were barely visible from 70 feet is compelling, and Oliver’s extensive experience in the mining industry gives added credence to his determination that the dust was “excessive.” Ex. S-1.

            Testimony from Wells and Meade indicated that Hensley left a brow standing and that at the time of the inspection, Hensley was using the continuous miner to remove the brow. Tr. 245-46, 248. Leeco contended that the dust Oliver saw suspended in the entry’s atmosphere was rock dust from the cut brow, not coal dust, and that the suspended dust could not have led to an explosion. Tr. 190. I reject this contention and find that a significant amount of the suspended dust was in fact coal dust. Coal was being cut in the No. Four entry on November 4. As Oliver explained, “[I]t’s a coal mine. As they mine, they have to mine coal.” Tr. 202. It is reasonable to assume that the large amount of dust came from the ongoing mining at the face, not from cutting a single brow. In addition, and as I already have noted, Oliver, an inspector with considerable experience as an inspector and a miner, believed the dust was coal dust. Tr. 70-74.

            I take note of the fact that coal dust can be highly explosive in and of itself and that a continuous miner’s bits can cause sparks when they strike naturally occurring rock in a coal

seam. See Tr. 130. In addition, even though Oliver did not detect methane prior to issuing the order, he posited that if mining continued, methane could have been suddenly released. Tr. 127, 130-31. This scenario was not unlikely. The mine is gassy and at the time of the inspection it was liberating at least 200,000 cfm of methane in a 24 hour period. Tr. 41, 75. Ongoing mining would have released even more methane. Without ventilation, methane would not have been diluted and the concentration of methane would have increased. Tr. 127. Moreover, when methane interacts with coal dust, coal dust can lower the explosive range of methane making the gas even more likely to explode. Tr. 128, 129-30. While there were methane sensors on the continuous miner to give the continuous miner operator a warning when methane levels reached 1% and to shut down the machine when methane levels reached 1.5-2%, Oliver credibly asserted that the sensors would not necessarily have prevented an explosion and that there have been explosions in the past where sensors worked properly. Tr. 131-32.

            Oliver also determined that an explosion was reasonably likely to result in fatal or serious injuries. Tr. 136. There were eight miners working in the No. 14 section at the time the violation was cited, and Oliver believed that all of them could have been affected. Tr. 135, 137. Given the devastating potential of an explosion, I find that Oliver correctly determined that eight miners were reasonably likely to have been severely injured or killed because of the violation.

            Based on the amount of coal dust that was in the air, the large amount of methane that was liberated and the large amount that reasonably could have been expected to be liberated as mining continued, and based on the fact that as mining continued the continuous miner represented an ongoing potential ignition source, I find that the lack of compliance with the approved ventilation plan in the No. Four entry was reasonably likely to result in an explosion causing fatalities and/or other injuries of a serious nature and that the violation was properly found to be S&S.

            GRAVITY

            The S&S nature of a violation and the gravity of a violation are not synonymous. 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 (Sept. 1996). Here, the lack of ventilation due to Leeco’s noncompliance with its approved ventilation plan could have resulted in an explosion which almost surely would have killed and/or injured up to eight miners. The violation was very serious.

UNWARRANTABLE FAILURE

            In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission summarized the legal principles applicable to determining whether a violation is the result of an unwarrantable failure:

                        The unwarrantable failure terminology is taken from

                                    section 104(d) of the Act, 30 U.S.C.§ 814(d), and

                                    refers to more serious conduct by an operator in

connection with a violation. In Emery Mining Corp.,

                                    9 FMSHRC 1997 (Dec. 1987), the Commission

                                    determined that unwarrantable failure is aggravated

                                    conduct constituting more than ordinary negligence.

                                    Id. at 2001. 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,

                                    194 (Feb. 1991) ("R&P"); see also

                                    Buck Creek Coal, Inc. v. FMSHRC,

                                    52 F.3d 133, 136 (7th Cir. 1995) (approving

                                    Commission's unwarrantable failure test). Whether

                                    conduct is "aggravated" in the context of

                                    unwarrantable failure is determined by looking at

                                    all the facts and circumstances of each case to see

                                    if any aggravating factors exist, such as the length

                                    of time that the violation has existed, the extent of

                                    the violative condition, whether the operator has

                                    been placed on notice that greater efforts are

                                    necessary for compliance, the operator's efforts

                                    in abating the violative condition, whether the

                                    violation is obvious or poses a high degree of

                                    danger, and the operator's knowledge of the

                                    existence of the violation. See

                                    Consolidation Coal Co., 22 FMSHRC 340, 353

                                    (Mar. 2000) ("Consol");

                                    Cyprus Emerald Res. Corp., 20 FMSHRC 790,

                                    813 (Aug. 1998), rev'd on other grounds,

                                    195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co.,

                                    19 FMSHRC 30, 34 (Jan. 1997);

                                    Mullins & Sons Coal Co., 16 FMSHRC 192, 195

                                    (Feb. 1994); Peabody Coal Co.,

                                    14 FMSHRC 1258, 1261 (Aug. 1992);

                                    BethEnergy Mines, Inc., 14 FMSHRC 1232,

                                    1243-44 (Aug. 1992); Quinland Coals, Inc.,

                                    10 FMSHRC 705, 709 (June 1988). All of the

                                    relevant facts and circumstances of each case must

                                    be examined to determine if an actor's conduct is

                                    aggravated, or whether mitigating circumstances exist.

                                    Consol, 22 FMSHRC at 353. Because supervisors

                                    are held to a high standard of care, another important

                                    factor supporting an unwarrantable failure

                                    determination is the involvement of a supervisor in

the violation. REB Enters., Inc., 20 FMSHRC 203,

                                    225 (Mar. 1998).

                        Lopke Quarries, 23 FMSHRC at 711.

            Oliver found that the violation was the result of high negligence and an unwarrantable failure because of the amount of dust that was present, the failure of Meade to take corrective measures despite the presence of the dust, the fact that the curtain was not rehung after Oliver thought it was torn down, and because he believed that the curtain was likely never installed correctly in the first place. Tr. 137-38.

Obviousness

When Oliver and Wells stepped into the last crosscut of the No. Four entry to take the first set of air readings, Oliver looked up and noticed that there was “a lot of dust in the air.” Tr. 82. While there is always some dust in the air when mining is underway, the dust Oliver saw caught his attention because the amount seemed much more than normal. Tr. 82, 83. This signaled to Oliver that the ventilation in the entry was defective. However, when Meade approached Oliver and Wells, he was coming from the No. Five entry into the last open crosscut of the No. Four entry. Tr. 83-84; Ex. S-10. Wells stated without contradiction that coming from this direction, Meade would not have been in, nor seen, an abnormal amount of dust. Tr. 234. Meade testified that he did not look toward the face of the No. Four entry as he was walking up to Oliver and Wells, and Oliver did not ask Meade what he observed when walking towards them. Tr. 165, 300-01. Moreover, at the time he approached the men, Meade was not on notice that he should look for signs of defective ventilation in the entry. He credibly testified that when he visited the No. Four entry earlier in the shift, he was “110 percent certain” that the curtain was properly hung and the ventilation “was working properly.” Tr. 290-291. While there was “a little dust” at the face, it was, he stated, no more than is always present when a continuous miner cuts coal. Tr. 291. Meade’s testimony was logical and believable, and I conclude that Meade was not on notice to look for excessive dust when he approached Oliver and Wells. In other words, I conclude that while the amount of dust signaling the lack of ventilation was visually obvious, the dust when first seen by Meade did not indicate that he should have been aware of the violation and should have reacted to it in the short time that Oliver allotted to him. In fact, all three of the men had to look toward the face in the No. Four entry to see that excessive dust was present in the area of the continuous miner. Tr. 82, 234, 299-301. Further, all of the men had to walk toward the area where mining recently occurred to see that the deflection curtain was down. Tr. 86, 240-41, 301. It was in this area that Oliver confirmed there was no ventilation in the vicinity of the miner. Therefore, I find that as Meade approached and reached Oliver the thick dust in the atmosphere and the downed curtain were not so obvious as to alert Meade that there was a ventilation problem that needed correcting. I also find the evidence does not establish that the condition was known or should have been known to Meade earlier in the shift.

Degree of Danger

            There was excessive dust and no ventilation in the area of the continuous miner. Tr. 84-86. Although the record does not support a finding that methane was then present in the No. Four entry (see e.g. Tr. 127), as stated above, methane was reasonably likely to be released as mining continued based on the mine's history of liberating large amounts of methane. Tr. 127, 130-31. At the same time, the continuous miner could have caused sparks, an obvious ignition source, and once the methane ignited, the concentrated coal dust could likely have propagated an explosion resulting in the death and/or serious injury of up to eight miners. Tr. 132. There is no gainsaying the fact that the violation posed a high degree of danger, one that required a heightened level of awareness.

Length of Time

            Oliver believed that the lack of required ventilation existed for “[p]robably close to 30 minutes” because he thought the entire cut had been mined while there was a lack of ventilation and that “it would’ve taken approximately 30 minutes to mine what they had mined.” Tr. 120. However, Oliver also testified that if Meade had stopped the continuous miner when Meade came up to Oliver and Wells in the crosscut, Oliver would not have regarded the violation as caused by Leeco’s unwarrantable failure. Speaking of Meade, Oliver stated:

                                    [O]nce he observed that dust, that indicated

                                    there was a problem with the ventilation.

                                    And he [should have] stopped the miner

the same way I stopped the miner when

I entered that area. . . . [If he had stopped

the miner] [t]hat would’ve been a mitigating

factor and I would’ve considered that

he took . . . corrective action, and it

would’ve probably been moderate

negligence.

                        Tr. 121-22.

            When Oliver was asked how much time elapsed between when he thought Meade should have shut down the miner and when Oliver shut it down, Oliver replied. “[O]ne to two minutes. From the time that he walked across over to where me and Rick Wells was and we kind of exchanged hello . . . and I asked him where the miner was cutting, a minute, a minute and a half.” Tr. 123. Oliver felt that Meade “could have signaled [the continuous miner operator] with his cap light. He could’ve went over to the entry [and] hollered at him . . . to shut off [the continuous miner.]” Tr. 123-24. Asked if there was a policy that required a section foreman to go directly to an MSHA inspector, Oliver replied, “I don’t know that there [is] a policy that you go immediately to an inspector. I mean, you talk to the inspector and you see what they want and you assist them, yes there is that.” Tr. 124.

            Oliver’s testimony indicates that his finding of unwarrantable failure was heavily influenced by the fact that Meade did not take any action in the minute or two that it took Meade to reach and to identify Oliver and Wells. Also factoring into his uwarrantable failure finding was Oliver’s suspicion that the deflector curtain was not installed properly or, perhaps, was never hung. Tr. 126-27. In Oliver’s view, Meade should have known that the curtain was either improperly installed, that it had been torn down, or that it never was hung in the first place. Tr. 127. Although the continuous miner operator maintained that the curtain was properly hung but was torn down when he backed up, Oliver questioned this. He testified that he asked Hensley why he had not rehung the curtain. He stated that Hensley did not answer. Tr. 138-39. If the curtain had in fact been torn down, Oliver believed it had been down for approximately 30 minutes. Tr. 139.

            Having considered all of the testimony, I reject Oliver’s rationale that Meade’s failure to stop the continuous miner before Oliver stopped it was indicative of an unwarrantable failure to comply with the approved ventilation plan. As noted, Oliver’s testimony gave Meade one to two minutes to take the action that Oliver thought was required. Tr. 123-24, 155-57. However, the testimony made clear that Meade was confronted with a situation wherein two people whom he did not recognize were unexpectedly present on a section for which he was responsible. It was a natural thing for Meade to want to understand why the people were present. Failure to give immediate priority in the very short time under consideration to the dust in the entry did not represent aggravated conduct or more than ordinary negligence. Rather, I find the fact that Meade first determined who was unexpectedly on the section represented normal conduct by a responsible supervisor.

            I also conclude that the Secretary did not establish that Meade knew or should have known that the curtain was not hung or was improperly hung. If the Secretary had established that mining began with the curtain down or mostly down, then Meade either knew or should have known about the defect because as section foreman he was required to check the section for compliance with all safety standards prior to mining beginning. The downed or improperly hung curtain would have been a sign that non-compliance with the ventilation plan was likely. However, the Secretary did not prove that the curtain was down or was improperly hung when mining began. Oliver suspected that either might have been the case, but an unwarrantable failure finding cannot be based on a suspicion. In fact, Oliver acknowledged his lack of certainty. Asked if he thought Meade was aware the curtain was improperly hung, Oliver replied, “I don’t know that he knew one way or the other.” Tr. 122.

            Further, Wells testified that after Hensley had mined a cut in the No. Four entry and started to clean up on the left side of the entry, the cable was thrown to one side where it caught and pulled down the deflector curtain. Tr. 245, 246. In the meantime, as he was cleaning up Hensley noticed a brow and chose not to rehang the curtain before removing the brow with the continuous miner. Tr. 246, 259-60. This scenario is just as likely to have occurred as the curtain being improperly hung to start with, and under the “pulled down” scenario there was no showing by the Secretary that Meade should have known about the curtain’s defective placement. Under these circumstances, I find that the length of time the violation existed is too speculative to be part of the basis for an unwarrantable finding.

Extent of the Violation

            The extensiveness factor involves consideration of the scope or magnitude of a violation. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). The lack of required ventilation existed in a relatively small area. The heavy concentration of suspended dust was contained mostly in the No. Four entry, at the face and around the continuous miner, with some dust traveling farther down to the last crosscut. The lack of ventilation was localized, which means that Meade’s duty of care is judged on the knowledge he had or should have had of the conditions in the No. 4 entry where the continuous miner was cutting. This is not a situation where the scope of the violation was so extensive that management officials were apprised of or should have been apprised of the situation numerous times before the violation was cited.

Operator's Knowledge of the Existence of the Violation

            As noted, Oliver believed that Meade should have known about the violation because the amount of dust should have caught his attention. Tr. 118. Oliver posited that if Meade was a prudent foreman, it would have only taken him a few seconds to be alerted to a ventilation issue when he reached the No Four entry. Tr. 118-19. Oliver did not believe that there were any mitigating circumstances as to why Meade did not shut down the miner very shortly after entering the entry. Tr. 121. If Meade had immediately shut down the machine, Oliver stated that he most likely would have issued a 104(a) citation and marked the negligence level as moderate. Tr. 122. I note, however, that as Mead approached the entry, there was no showing he looked toward the face and saw the dust, the visual sign of the violation. I have found that Meade acted as a responsible supervisor and that his failure to take corrective action in the very short time given to him by Oliver was excusable.

            Oliver also believed that the addition of 12-16 feet of curtain needed to abate the violation suggested that the curtain was insufficient before mining started and that Meade should have known about the lack of ventilation. Tr. 116-17, 120,127. However, prior to Oliver’s arrival on the section, Meade examined all of the section’s entries and took air readings in each entry to make sure the ventilation was working properly. Tr. 286-87, 289-90, 292, 295. Nothing alerted him that there was an actual or potential problem with the ventilation in the No. Four entry and Meade was a credible witness. Id. It is also highly unlikely that Meade would have been able to examine all of the other entries in the No. 14 section and return to the No. Four entry before Oliver arrived. In addition, Oliver acknowledged it was possible that the curtain had been up and had extended four feet into the No. Four intersection. Tr. 179.

            I find the evidence does not establish that Meade had a reason to believe there was a violation in the No. Four entry and that Leeco had no reason to have, and in fact did not have, prior knowledge of the violation.

Operator Placed on Notice that Greater Efforts at Compliance are Necessary

            At the time of the inspection, Leeco was on a “section 104(d)” sequence. Tr. 42, 257. Specifically, Mine # 68 received five 104(d) citations and orders for failure to maintain ventilation between February 2010 and November 4, 2010. Exs. S-8-11; Tr. 207, 264-65. Although Wells stated that to his recollection, the No. 14 section was never issued citations or orders for violating the ventilation plan (Tr. 232), the citations and orders issued in other areas of the mine in the nine months before November 4, 2010 should have put Leeco on notice that greater compliance efforts were necessary to ensure required ventilation at the mine.

Operator's Efforts in Abating the Violation

            The focus of the abatement effort factor is on the efforts (if any) that Leeco made prior to November 4 to prevent violations of its ventilation plan. In general, the factor measures an operator's response to violative conditions that were known to it or that should have been known to it. Enlow Fork, 19 FMSHRC at 17. The record reveals that Leeco made efforts to prevent violations of the approved plan by reminding its miners of the importance of adequate ventilation. Wells stated that after receiving a citation or order for a ventilation plan violation, his practice was to conduct a safety meeting with miners to discuss the violation and the proper safety procedures to take to avoid future similar citations or orders. Tr. 257, 259. The miners were also trained and required to take air readings if they thought ventilation had ceased. Tr. 320-21. According to Wells, continuous miner operators knew that when they knocked down a ventilation curtain they should immediately rehang it. Tr. 260. Testifying about Hensley in particular, Wells stated that Hensley had been trained and knew the requirements of the ventilation plan, including the need to rehang torn down curtains prior to continuing mining. Tr. 257-58. Specifically, in this instance, Hensley was “written up” and “sent home” for failing to rehang the curtain. Tr. 261-62. Moreover, in regard to action taken in other areas of the mine to prevent ventilation violations, Wells testified that Leeco fired the foreman of the No. 10 Section after two orders were issued for ventilation violations on February 10, 2010. Tr. 267. Further, Wells testified that he personally tried to prevent violations by always visiting at least one of the three sections for which he was responsible during his shift, and as mentioned above, the section bosses, including Meade, examined all of the entries on their sections. Tr. 270.

            Wells was a credible witness, and I find that much of his testimony mitigates Leeco’s level of negligence. While Leeco’s post-citation discipline of Hensley is not relevant to the issue of Leeco’s aggravated conduct (Enlow Fork, 19 FMSHRC at 17) and while the required examinations of its section bosses are not the kind of “extra effort” that ameliorates unwarrantable failure, the company’s additional safety meetings following previously cited ventilation violations qualify as efforts to address the problem over and above what was required, as does its disciplining of those responsible for prior ventilation violations.

Conclusion and Negligence Finding

            As is almost always the case when considering an unwarrantable failure allegation, all of the determinative factors do not point in one direction. While the violation was very serious, the violation was localized and Meade’s lack of knowledge of the violation until very shortly before it was cited and his failure to take action in the very short time afforded him by Oliver was excusable. In addition, although they were unsuccessful in this instance, Leeco’s ongoing efforts to prevent the kind of violation that occurred were laudatory. After considering and weighing all of the factors, I conclude that a finding of unwarrantable failure is inappropriate. In reaching this conclusion I have especially noted Oliver’s testimony that he most likely would have issued a 104(a) citation with a finding of moderate negligence if Meade had shut down the continuous miner down in the less than 2 minutes before Oliver acted. Tr. 123-24, 156-57. It is clear from the testimony that Oliver did not account for the impact on Meade of seeing two persons he did not recognize on the No. 14 section. Meade gave priority to finding out who the strangers were and what they were doing on the section. His immediate failure to act with regard to the continuous miner was understandable and the reason why he failed to act immediately substantially undercuts Oliver’s unwarrantable finding. For all of these reasons I find that the violation was not caused by Respondent's unwarrantable failure to comply with its ventilation plan and that the company’s negligence was moderate.

OTHER CIVIL PENALTY CRITERIA

            History of Previous Violations

            Mine # 68’s history of violations is reflected in a report from MSHA's database. Ex. S-13. The report lists violations issued at the mine and indicates that 755 violations became final between May 2009 and November 2010. I accept the figures in the report as accurate and find that the exhibit reflects a large history.

Size of the Operator

            The parties did not agree on a characterization of the size of the operator, however they stipulated that in 2010 the mine produced 715,373 tons of coal (Tr. 19; Stip. 5), and on the form reflecting his calculation of the proposed penalty (MSHA Form 1000-179), the Secretary assigned 13 out of a possible 15 points for the size of the operator. I find that Leeco is a large operator.

Ability to Continue in Business

            The parties stipulated that the proposed penalties will not affect Leeco’s ability to continue in business, and I find that the same is true for the penalties assessed below. Tr. 20; Stip 7.

Good Faith Abatement

            The parties stipulated that Leeco terminated the conditions giving rise to violation in a timely, effective, and good manner. Tr. 19, Stip. 6.

CIVIL PENALTY ASSESSMENTS

            ORDER NO.              DATE              30 CFR §              PROPOSED PENALTY              ASSESSMENT

            8346316                     11/4/10              75.370(a)(1)          $47,716.00                                     $20,000.00

            I have found that the violation was very serious and was caused by Leeco’s moderate negligence. In all, eight miners were reasonably likely to suffer death and/or severe injuries as a result of the violation. Given these findings and Leeco’s large size and large history of previous violations, I find that a civil penalty of $20,000.00 is appropriate.

SETTLED VIOLATION

            As stated at the outset, the parties settled the contested violation of section 75.370(a)(1) set forth in Order No. 8346197. Tr. 14, 329-30. Counsels assert that the purposes of the Act will be furthered if the company agrees it violated the standard as alleged and pays a penalty of $50,000 for the violation. Tr. 329-30. I concurred and approved the settlement. Tr. 330.

            ORDER NO.              DATE             30 CFR §              PROPOSED PENALTY             ASSESSMENT

            8346197                     11/4/10             75.370(a)(1)          $60,000.00                                    $50,000.00

ORDER

            It is ORDERED that Order No. 8346316 be MODIFIED from an order issued pursuant to section 104(d)(2) of the Act (30 U.S.C. § 814(d)(2)) to a citation issued pursuant to section 104(a) of the Act (30 U.S.C. § 814(a)) and that the inspector’s negligence finding be changed from “high” to “moderate.” It is also ORDERED that within 30 days of the date of this decision, Leeco SHALL PAY a civil penalty in the total amount of $70,000.00. Upon payment of the penalty, this matter IS DISMISSED.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

Distribution (Certified Mail):

Alisha Wyatt, Esq., Leslie Brody, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, SW, Room 7T10, Atlanta, GA 30303

Noelle True, Esq., Rajkovich, Williams, Kilpatrick, & True, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

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