FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N. W., SUITE 9600

WASHINGTON, DC 20001

October 26, 2011

DECISION

Appearances:  A. Scott Hecker, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington, Virginia, for the Petitioner

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, Lexington, Kentucky, for the Respondent

Before: Judge Koutras

STATEMENT OF THE CASE

This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802, et. seq. (2000), hereinafter the “Mine Act,” concerns two Section 104(a), significant and substantial, hereinafter “S&S,” citations served on the respondent on February 2, 2010, and one Section 104(d)(1) S&S unwarrantable failure order served on February 18, 2010.

The parties agreed to settle the two Section 104(a) citations and I have approved it. The hearing regarding the contested order was held in Abingdon, Virginia, on June 14, 2011. The parties waived the filing of written briefs and made closing arguments on the record after the close of testimony and I have considered arguments in the course of this decision.

The issues presented are whether a violation of the cited mandatory safety standard has been established by a preponderance of the credible evidence, and if so, whether the cited condition or practice presented a reasonable likelihood that the hazard contributed to or will result in an injury of a reasonably serious nature, S&S; and if so, whether it resulted from the respondent’s unwarrantable failure to comply with the cited regulation.

The Alleged Violation

MSHA Inspector Buddy Jack Stanley issued the Section 104(d)(1) S&S Order No. 8170840, on February 18, 2010, during an inspection at the No. 1 entry of the active 14-right mining section of the mine (Ex. P-l). He cited a violation of mandatory safety standard 30 C.F.R. § 75.370(a)(1), which requires a mine operator to develop and follow a ventilation plan approved by the MSHA district manager. The regulation further requires that the plan be designed to control methane and respirable dust and be suitable to the mine conditions and mining system.

Inspector Stanley testified that the specific ventilation plan requirement he cited as a violation is safety precaution No. 5, listed on an addendum to the plan submitted on MSHA’s district manager for approval on November 30, 2009, (Tr. 22; Ex. P-5). That precaution requirement is part of the exhausting auxiliary fan tubing scheme used to ventilate the mine working faces, and states, “A reliable indicator (ribbon) will be positioned to alert persons if the fan stops” (emphasis added). He confirmed that the approved plan was actually put in place shortly before February 1, 2010, when he issued his first citation (Tr. 35).

Mr. Stanley described the indicator he found when he issued the order as a five-inch heavy plastic ribbon reflector hanging approximately one inch above the top of the ventilation tubing at the second row back from a 20 foot cut of coal that had been taken. He did not consider the indicator to be effective because “it was not moving and did not indicate anything” while the ventilation was in place (Tr. 26 - 27).

Mr. Stanley stated that the use of a plastic indicator is permitted as long as it was installed closer to the end of the tubing. However, when he observed the indicator he did not consider it to be reliable because it had no movement. In the absence of any movement, the indicator does not provide a reliable means of alerting anyone of any fan stoppage. A reliable indicator must show movement at all times regardless of whether the area is active or idle (Tr. 54, 59-61, 70).

In his closing argument, respondent’s counsel did not rebut the inspector’s testimony that at the time he observed the cited indicator it was not moving. Counsel relied on the uncontradicted testimony of section foreman, Keith Smith, that when he viewed the indicator he observed movement and considered it to be reliable. Counsel did not assert that the violation should not have been issued, but took the position that it should not have been issued as an unwarrantable failure order (Tr. 172).

I conclude and find the evidence establishes that the absence of any indicator movement, when Inspector Stanley observed it, when he initially arrived at the idle place where the equipment was parked, supports his conclusion that the indicator was not at that time a reliable indicator, as required by ventilation plan precaution No.5 and constituted a violation of 30 C.F.R. § 75.370(a)(1). Accordingly, the violation IS AFFIRMED.

Significant and Substantial Issues

A significant and substantial (“S&S”) violation is described in Section 104(d)(1) of the Mine Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” A violation is properly designated S&S “if based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard that is, a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); US Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-1575 (July 1984).

This evaluation is made in terms of “continued normal mining operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

Inspector Stanley testified that he was appointed as an MSHA inspector in October, 2009, and when he issued the order on February 18, 2010, he only had three months of experience in that position. He confirmed that most of his inspection time was at the same mine location, and that he had no prior experience regarding working face exhaust fans like the ventilation plan he cited. He confirmed that the new approved plan process was put in place shortly before he issued his February 1, 2010, citation (Tr. 34-35).

Mr. Stanley testified that he conducted his February 18, 2010 inspection during the “owl shift” between ll:30 PM and 7:30 AM. He stated that the time 0121, (1:21 AM), shown on the face of the order as the time it was issued is in fact the time that he observed that the cited indicator was not moving, and that he actually issued the order two or three hours later (Tr. 49).

In explaining why he did not issue his order when he immediately observed the cited condition, Mr. Stanley explained that he needed to gather all of the mitigating circumstances and that section foreman Smith “was a little bit on the hostile side,” and since he was trained to “walk away from hostile environments,” he left the area to continue his inspection and returned when Mr. Smith “calmed down.” He denied the incident with Mr. Smith influenced his decision to issue an order (Tr. 50).

Mr. Stanley stated that after returning to the area, he discussed the matter with Mr. Smith and considered the criteria for issuing the order that he learned during his MSHA training. He believed that the cited condition was obvious and extensive, that Mr. Smith was an agent of the operator and had examined the area, and that the condition had extended “for a period of time.” Taking into account the prior citations and Mr. Smith’s statement that he intended to continue using the cited indicator that he believed was reliable, Mr. Stanley concluded that he had no other choice but to issue the order (Tr. 20-21, 33). He confirmed that he did not issue a citation for any inadequate examination of the area (Tr. 93).

Mr. Stanley testified that at the time he issued the order the miner machine was backed out of the area and parked. He stated that “this place had the full amount of ventilation that it had when the miner was cutting” (Tr. 88). The indicator was not moving and Mr. Smith did not inform him that he had observed the indicator moving (Tr. 89). Mr. Stanley assumed that there was more than 3,500 C.F.M. of air in the idle places that are usually ventilated more than the minimum requirement and usually more than 5,000 C.F.M. of air (Tr. 38, 50-51).

Although Mr. Stanley stated that the prior shift had cut most of the coal, and that Mr. Smith’s crew finished the cut (Tr. 50), the fact remains that the mining machine was backed out and parked when he arrived at the area, and Mr. Stanley previously testified that “the entire cut was taken” (Tr. 27). I credit the testimony of section foreman Smith that no remaining coal was cut on his shift and that the mining machine was already backed out and the cut was completed (Tr. 111-112).

Mr. Stanley stated that he did not take an air velocity reading at the ventilation tube when he arrived at the area. He took a methane reading at the last row of roof bolts, and while he could not recall the results, he stated that they were generally from .3 to .4 percent. He agreed that the mine is well maintained and that the methane monitors installed on the miner machines and roof bolters will sound an alert at a 1.0 percent methane level and will shut down the equipment at the 1.5 percent methane level, and that procedures were in place to ensure that the warning devices would provide warnings in the event of elevated methane levels (Tr. 51-52).

The parties stipulated that the mine is a gassy mine, and petitioner’s counsel stated that it liberates 12 million C.F.M. of methane in a 24-hour period (Tr. 75). Inspector Stanley testified that a reliable indicator ribbon is an important part of the ventilation plan because it is the only method to determine whether ventilation may be interrupted and inundate the face areas with methane gas (Tr. 22). He explained that the methane monitors are located ten feet from the continuous miner ripper head and that methane can inundate the area in front of the monitors without being detected (Tr. 26).

Mr. Stanley described the hazards that he believed existed as a result of the conditions described in his order as “Burns,” explosion type severe injuries (Tr. 33). He also explained that his gravity finding of “lost work days or restricted duty” was based on “the least probability of what would happen” (Tr. 91).

Mr. Stanley’s testimony regarding incidents of mine ignitions is inconsistent without further explanations. He testified that the mine has had 76 ignitions and “just recently had an ignition” (Tr. 52), “a month or two ago” (Tr. 85). He also confirmed that prior to the issuance of his order, the most recent ignition prior to that time was three or four years prior to the current exhausting fan ventilation system that assists and increases airflow into both active and idle mine areas and provides a benefit that did not previously exist as it relates to the potential for any ignition (Tr. 53). His inspection notes of February 18, 2010, reflect at least four ignitions in the last four years (Ex. P-2). In the absence of any information or evidence regarding these events, the existence of an ignition, in and of itself, without regard to the existing circumstances or conditions is of little, or no, evidentiary value with respect to the conditions that existed at the time the order was issued.

Mr. Stanley confirmed that he found no problem with hanging the cited indicator at the second row of roof bolts, or use of a plastic reflector, as long as it was located closer to the end of the ventilation tubing. However, his principal concern was that the indicator was hanging above the tubing and that the indicator material was heavy and only five inches long, and even though it was intact, he observed no movement when he observed it at the idle area. Since there was no movement, he concluded that it was not a reliable effective indicator according to the ventilation plan (Tr. 26, 55-56). He made this determination notwithstanding his agreement that the two word “reliable indicator” safety precaution does not specify any particular type of material, its dimensions, or where it should be located (Tr. 38-39).

Mr. Stanley stated that he did not take an air velocity reading at the ventilation tube when he arrived at the area. He took a methane reading at the last row of roof bolts, and while he could not recall the results, he stated that they were generally from .3 to .4 percent. He agreed that the mine is well maintained and that the methane monitors installed on the miner machines and roof bolters will sound an alert at a 1.0 percent methane level and will shut down the equipment at the 1.5 percent methane level, and that procedures were in place to ensure that the warning devices would provide warnings in the event of elevated methane levels (Tr. 51-52).

With respect to the inspector’s testimony that the absence of an indicator will not enable the miner operator to know that the ventilation has been interrupted, I take note of the fact that Mr. Stanley’s February 1, 2010, citation was issued because of the absence of any indicator, and his February 2, 2010, citation was issued because the indicator ribbon was installed inside the ventilation tubing where it could not be seen by the miner operator (Ex. P-3 and P-4, Tr. 64). Both citations were issued as non-S&S violations. In view of Mr. Stanley’s testimony that the only method for determining when the ventilation may be interrupted is to locate the indicator where it can be observed by the miner operator, I find his non-S&S finding in those instances to be contradictory. In both instances, since the indicators were not located where they could be observed, they were in effect useless.

Inspector Stanley’s order also includes a reference to a prior citation of February 3, 2010. However, this date appears to be erroneous and there is no evidence of any citation with this date. Mr. Stanley’s 104(a) non-S&S citation of February 2, 2010, was served on a member of the respondent’s safety department and the violation occurred on the 15-right section and is totally unrelated to the 14-right section and foreman Smith. Further, both of the prior citations include “moderate” negligence findings.

There is no evidence of any reliable indicator violations that may have been issued during the interim period between February 1, and 18, 2010. Indeed, Mr. Stanley confirmed that he spent most of his inspection time at the mine and was unsure as to whether he may have inspected the 14-right section during that time or whether foreman Smith would have been present or in a position to install an indicator (Tr. 42-43). He also confirmed that he issued no citations during that time and agreed that the absence of any citations would indicate that the mine was in compliance with the cited ventilation plan, and that his February 2, 2010, 15-right section citation related to an area with a different foreman and crew (Tr. 44-45).

I take note of one recent violation issued by an inspector on January 11, 2011, on the 18-right section of the mine concerning the same reliable indicator ventilation plan was issued because “the indicator was not positioned to alert persons if the fan stops” (Ex. R-4). However, there is no explanation where the indicator was located or why the inspector believed the location was unacceptable. Further, even though the inspector noted that the respondent was cited with 91 unexplained violations of the general requirements of 30 C.F.R. § 75.370(a)(1), and made a gravity finding of “unlikely,” with reasonably expected “fatal” injury exposure to ten (10) persons, he nonetheless issued the violation as a non-S&S Section 104(a) citation.

Section foreman Dallas Keith Smith testified that he has fifteen years of mining experience, including the operation of shuttle cars and scoops, and has first class mine foreman certifications from the states of Virginia and West Virginia, and a Federal dust sampling card (Tr. 104-105). He confirmed that Inspector Stanley issued a prior violation on February 1, 2010, because the indicator ribbon was not present at the exhaust fan tubing, and the violation was terminated when the indicator was replaced with engineering ribbon or a piece of reflective ribbon (Tr. 107).

Mr. Smith stated that he arrived at the 14-right section at 12:00 AM, midnight, on February 18, 2010, and after conducting a twenty minute safety meeting with his crew, he inspected the four entries and found no hazardous conditions. He confirmed that he did not hang the cited indicator, and did not know who did. No remaining coal was actually cut at that time from the number one entry because the continuous miner was backed out and the cut was completed (Tr. 111-112).

Mr. Smith described the cited indicator as a blue colored ribbon that was five and three-quarter inches long. He detected slight movement of the ribbon during his inspection. The fan was operating properly and the place was being ventilated. Since the indicator was in an idle place, the ventilation would be 3,000 C.F.M., to a maximum of 7,500 C.F.M. if it were an active place. If he had not observed any indicator movement, he would have taken an air reading to determine whether to replace the indicator or change its location. During his examination of the faces, before the inspector arrived, he took an air reading of “maybe five-thousand” ventilating the idle area, and any active place could have 7,500 to 12 to 13 thousand C.F.M. of air (Tr. 114).

Mr. Smith stated after the inspector arrived in the area, he told the inspector that he had inspected the face areas, and after proceeding to the number one entry, the inspector found that the indicator ribbon itself was not reliable, and Mr. Smith disagreed with him and told him that if that were the case he would have changed it. The inspector did not inform him that he was issuing an order at that time, but did so two or three hours later into the shift (Tr. 115).

Mr. Smith stated that he was upset because he believed the ventilation plan was followed and reasonable efforts were being made to comply, and it took five to ten minutes to replace the indicator with engineering tape to terminate the violation, and he observed slight indicator movement at that time because the place was idled and the inspector accepted that abatement (Tr. 118-119).

Mr. Smith believed that there are other ways to determine whether an exhaust fan shuts down or is not working properly. He explained that the fan could be heard over noise of cutting and loading machines, and the absence of dust that may be sucked into the tubing or circulating around it (Tr. 116-117). He testified that he was new to the section and that the ventilation plan utilizing auxiliary fan tubing was a new system that replaced the prior ventilation curtain system and was a new experience for him and everyone else at the mine. During this time, mine management was dealing with issues concerning the consistency of the materials to be used for indicators and their location in order to deal with problems that may arise from indicator damage or indicators being sucked into the ventilation tubing by the air (Tr. 107-109).

General mine foreman Eric Smith testified that he has twenty-one years mining experience, and has State of Virginia mine foreman and electrical repair certifications, and supervises approximately 35 foremen and 630 miners (Tr. 127-129). He stated that the current exhausting auxiliary fan ventilation plan is the first one at the mine and it replaced the previous line curtain system because it is easier to maintain and to keep the working area clean and rock dusted (Tr. 130-131).

Mr. Smith believed that the term “reliable” is vague and could refer to indicator durability or whether it clearly shows movement that “jumps out and gives an alert that a fan may be off (Tr. 133). He stated that the plan requirement for a “reliable indicator” is a Virginia State requirement required to be included in any proposed mine plan submitted to MSHA for approval, and he speculated that MSHA would approve a plan without that provision because miners can feel when ventilation is interrupted, and can observe whether rock dust is moving in the air or accumulating on their clothing. He was aware of the fact that MSHA has approved ventilation plans for mines in other states that do not require indicator ribbon (Tr. 134-137).

Mr. Smith disagreed with Inspector Stanley’s designation of the violation as a Section 104(d) order because the underground mining environment is subject to many changes that affect the location of an indicator, including the time interval when a place is cut, bolted, or idled, movement of the miner cutting machine from place to place, and the fan air adjustments that must be made to meet such changes in order to determine whether an indicator may be moving more, or less, or not at all (Tr. 143-144).

I conclude and find that the respondent is expected to comply with the provisions of the specific approved ventilation plan, for the mine in question. I so conclude even though no requirement for a reliable indicator is included as part of auxiliary exhaust fan ventilation plans for three gassy mines operated by the respondent in Pennsylvania and West Virginia, as testified to by the respondent’s compliance manager, Craig Aaron (Tr. 156-159). I am mindful that MSHA’s actions have been inconsistent with regard to its approval of ventilation plans and acknowledge that its choice to ignore reliable indicator requirements in other mines presents a serious safety requirement contradiction that merits MSHA’s attention.

The respondent presented testimony that there are other means of detecting whether or not a fan has shut down, namely sound, the feel of airflow changes, and “smoking the air” to detect any movement or presence of rock dust and other particles in mitigation of the S&S gravity level made by the inspector (Tr. 71 - 73). These suggested alternative methods for detecting fan failure are rejected. They are not included as part of the plan, and while they may be used as a customary method of detection, the approved reliable indicator plan requirement must be followed.

With respect to Mr. Stanley’s testimony that the absence of an indicator will not enable the miner operator to know that the ventilation has been interrupted, I take note of the fact that his February 1, 2010 citation was issued because of the absence of any indicator, and his February 2, 2010 citation was issued because the indicator ribbon was installed inside the ventilation tubing where it could not be seen by the miner operator (Ex. P-3 and P-4, Tr. 64). Both citations were issued as non-S&S violations. In view of his testimony that the only method for determining when the ventilation may be interrupted is to locate the indicator where it can be observed by the miner operator, I find his non-S&S finding in these citations to be contradictory. In both instances, since the indicators were not located where they could be observed, they were in effect useless.

The fact of violation has been established pursuant to the first prong of the Mathies test. With respect to the second prong, requiring a discrete safety hazard contributed to by the violation, I find that the ventilation plan requirement for a reliable indicator is a critical safety precaution that is necessary to provide an alert in the event of any ventilation interruption, and that the failure to position an indicator to provide such an alert presented a discrete safety hazard.

With respect to the third prong of the Mathies test, requiring the establishment of a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury, I take note of the assertion by petitioner’s counsel in the course of the hearing that the failure to provide a reliable indicator “carries far-reaching consequences” (Tr. 169). That being said, I fail to comprehend why the inspector waited two or three hours after he observed the indicator and found that a violation occurred with an expectation of resulting in severe ignition, explosion, or fire type injuries before issuing his order (Tr. 33). Although he explained that he waited to gather more information, I find that had more to do with his unwarrantable failure decision rather than the conditions that prevailed when he initially established a violation.

The expectation of the hazardous events that Inspector Stanley believed would have been the result of the cited condition does not ipso facto establish that the violation was significant and substantial. The reasonable likelihood of the results of the hazardous conditions described by the inspector as “burns or explosion type severe injuries” must be based on the confluence of factors that were present at that time, and in the context of continued mining operations. The relevant time frame for such a determination includes the time that a condition existed prior to the violation and the time it would have existed if normal mining operations were to continue.

Mr. Stanley confirmed that his S&S determination was based on the fact that in the absence of an indicator, there is no way of knowing that ventilation is interrupted. He stated that he and his supervisor, and MSHA’s district manager, have seen ventilation tubing torn down that interrupts ventilation, and if mining were to continue the miner operator would be unaware of any interruption (Tr. 32). However, no further explanations were forthcoming with respect to these alleged events, and there is no evidence in this case of any torn tubing that may have affected the reliability of an indicator, or whether any of those alleged incidents actually involved indicators that were rendered inoperable by torn tubing.

The ventilation plan’s reliable indicator precaution is but one safety precaution that includes additional requirements for a gas check prior to starting the ventilation fan. Other requirements include: procedures to be followed in the event of a fan shut down or failure; the grounding of the ventilation tubing; procedures in the event of damage to the tubing system, including de-energizing all face equipment during repairs; and installing ventilation line curtains if methane levels reach 1%. I assume that all of these procedures were in place and followed when the violation was observed by Mr. Stanley. I further note a comment that he entered in his notes that a baffle curtain was installed at the No. 2 entry where a roof drill was located “to keep the gas out” (Ex. P-2, Pg. 2).

Mr. Stanley’s testimony regarding incidents of mine ignitions is inconsistent. He testified that the mine has had 76 ignitions and “just recently had an ignition” (Tr. 52), “a month or two ago” (Tr. 85). The most recent ignition prior to his order was three or four years before the installation of the current exhausting fan ventilation system that assists and increases airflow into both active and idle mine areas and provides a benefit that did not previously exist as it relates to the potential for any ignition (Tr. 53). His inspection notes of February 28, 2010, reflect at least four ignitions in the last four years (ex. P-2). In the absence of any information or evidence regarding these events, the existence of an ignition, in and of itself, without regard to the existing circumstances or conditions is of little, or no, evidentiary value. Although incidents of past ignitions may be relevant to any S&S determination, the most recent ignition prior to his order of February 18, 2010, was three to four years earlier when the added safety features of the existing ventilation plan were not in effect. With regard to Mr. Stanley’s statement regarding a recent ignition that allegedly occurred “a month or two ago,” approximately sixteen months after the issuance of his order, no further explanations were forthcoming concerning the circumstances of that alleged event.

Mr. Stanley confirmed that he took a methane reading at the last row of roof bolts but could not recall the results. However, he stated that they were generally from .3 to .4 percent and agreed that the mine was well maintained. He further confirmed that the methane monitors on the miner machines and roof bolters will sound alerts at a 1.0 percent methane level and will shut down the machines at a 1.5 percent level and that procedures were in place to ensure that the warning devices would provide warnings in the event of elevated methane levels (Tr. 51-52).

Mr. Stanley testified that the prior shift had cut most of the coal, and that section foreman Keith Smith’s crew finished the cut (Tr. 50). He earlier testified that “the entire cut was taken” Tr. 27). I credit the testimony of Mr. Smith that no remaining coal was cut on his shift and that the mining machine was already backed out and parked when the inspector arrived and determined that there was a violation (Tr. 111-112). Mr. Stanley confirmed that the miner machine was backed out of the entry and parked when he arrived at the area (Tr. 89). He also confirmed that the area was fully ventilated as required by the ventilation plan (Tr. 88-89).

The facts in this case establish that during the interim 17 day period between the issuance of Mr. Stanley’s February 1, 2010, non-S&S citation and his order of February 18, 2010, no reliable indicator violations were issued for the 14-right section and Mr. Stanley agreed that the absence of any citations would indicate that the mine was in compliance with the ventilation plan requirement for a reliable indicator (Tr. 44).

I conclude and find that when Inspector Stanley arrived at the area and initially observed that a violation had occurred, all active mining was completed and the miner machine was backed out of the entry and parked. It is also clear that all of the required air ventilation was in place and operational, that the methane monitors located on the continuous miner machine and roof bolter were operational, that no hazardous methane levels were present, and Inspector Stanley agreed that the mine was well maintained. It is also clear that the cited indicator condition was corrected within 15 minutes by changing the ribbon and re-positioning the indicator. At that point in time, I conclude and find that the evidence establishes the lack of any indicator movement for a relatively short period of time, from the end of the prior shift when the active cutting of coal was completed until Mr. Stanley’s arrival at the place that was idle.

The petitioner has asserted that the prior shift mined with the cited indicator in place and that section foreman Keith Smith planned to do the same thing. Petitioner’s counsel argued that Mr. Smith planned to continue mining “despite the indicator’s demonstrated inadequacies,” and that its “lack of movement was obvious to Inspector Stanley” (Tr. 168-169). While it is true that coal was cut on the prior shift with the cited indicator in place, the question of whether it showed no movement at that time, thereby rendering it unreliable, must be established by a preponderance of the credible evidence and the burden of proof lies with the petitioner. The petitioner must also establish by a preponderance of the credible evidence that section foreman Smith would have continued to mine with an inadequate and unreliable indicator in the absence of any intervention by the inspector’s action in issuing the violation and order.

Petitioner’s argument that the prior shift mined with the cited indicator in place, and that foreman Smith planned to do the same thing despite being present when Inspector Stanley issued one of the two prior similar violations, both of which were issued within three weeks before the subject order, during which time the violations and the ventilation plan requirements were discussed with foreman Smith must be taken in context. There is no evidence to establish any lack of indicator movement on the prior active shift. The violation in this case was issued because Inspector Stanley observed the lack of indicator movement when he observed it while the miner machine was idled and parked.

Mr. Stanley confirmed that he could not determine whether the cited indicator was moving during the active mining cycle because he was not present when the area was in compliance with the required amount of ventilation. Further, Mr. Stanley confirmed that the amount of available ventilation flow through the tubing will determine whether a ribbon indicator or plastic reflector device will show movement with 7,500 C.F.M. of air (Tr. 41). When he initially observed the indicator of the idle place, he assumed that there was more then 3,500 C.F.M. of air (Tr. 38, 50-51). However, he confirmed that he took no air velocity readings at the ventilation tubing to determine the actual amount of air ventilating the place (Tr. 51-52).

Mr. Stanley’s belief that the cited indicator would not show any movement even if the air velocity was from 10,000 to 20,000 C.F.M. of air was based on his mining experience, his study of ventilation, and the tubing that was in use (Tr. 57). His ventilation studies included two weeks of courses at the Beckley Mine Academy and his industry ventilation training (Tr. 17-18). There is no evidence of any defective tubing.

Mr. Stanley acknowledged that when he issued his first citation on February 1, 2010, he had only been on his own inspecting mines for three months, had no prior experience with the newly approved exhaust fan face ventilation at the mine which is the only one with such a system in the District. I find Mr. Stanley’s testimony in support of the violation to be credible with respect to his observation that the indicator showed no movement when the area was idled. However, I cannot conclude that his belief that the cited indicator was incapable of any movement under any circumstances, including the prior shift when coal was cut in the active places is credible. Mr. Stanley could have readily taken an air velocity reading, but did not do so, and it is clear that he had no experience with respect to the newly approved ventilation system which he first encountered when he initially assumed his inspection duties at the mine.

Mr. Stanley agreed that Mr. Smith told him that the cited indicator was his indicator, and he agreed that Mr. Smith knew enough about the ventilation plan to understand that if there was no indicator movement it would not be adequate. He further confirmed that assuming Mr. Smith was truthful about observing indicator movement during his inspection, that fact could be a mitigating factor (Tr. 58). He then stated that even if Mr. Smith told him that he observed indicator movement when he performed his inspection he would still find a violation because the plan provision required the indicator to show movement at all times in both active and idle places, and it was not moving when he observed the violation in the idle place (Tr. 59-60). I also take note of the fact that even though the petitioner asserted that the cited indicator was at all times unreliable, the inspector never issued a citation for any inadequate pre-shift examination of the active section by Mr. Smith.

I credit section foreman Keith Smith’s testimony that during his inspection of the face area, prior to Inspector Stanley’s arrival, he observed slight movement by the cited indicator which he described in detail, which led him to believe that the area was properly ventilated and that the fan was operating properly (Tr. 111-112). I also credit his testimony that he was confident that the indicator was reliable since an air reading that he took while inspecting the faces before Inspector Stanley’s arrival reflected a minimum of 5,000 C.F.M. of air which would increase as the ventilation increased (Tr. 113-114), and that he told Mr. Stanley of his belief that the indicator ribbon was reliable and that he would have changed it if he believed otherwise (Tr. 115).

I have affirmed the violation in this case based on the inspector’s unrebutted testimony that when he first observed the indicator after active mining was completed and the equipment was backed out and parked and saw no indicator movement that was required in that idle area. However, based on the aforementioned findings and conclusions, I cannot conclude that the petitioner has established by a preponderance of any credible evidence that the cited indicator was incapable of any movement during the preceding shift while coal was cut in the active mine area.

Based on section foreman Smith’s credible testimony that he observed some indicator movement in the active area and informed Mr. Stanley that it was his belief that it was reliable, and the fact that Mr. Stanley did not issue any citation for any inadequate inspection by Mr. Smith, I conclude and find that Mr. Smith had a reasonable belief that he could continue to use the indicator. Further, I doubt that Mr. Smith would have continued to use the indicator after Mr. Stanley informed him that he would issue a violation when he first observed the indicator at the idle place before he continued his inspection and issued the order two to three hours later.

After careful consideration of all of the evidence in this case, I cannot conclude that the third and fourth prongs required by the Mathies test have been established by a preponderance of the credible evidence. Given the conditions that prevailed at the idle place where the inspector initially observed the indicator, including the fact that active mining had ceased, the equipment was backed out and parked, the place was well ventilated and maintained, the absence of any ignition sources or unusual levels of methane, and workable methane detectors on the equipment, I find it unlikely that the condition of the indicator would contribute to, or result in, an injury of a reasonably serious nature. I find no credible evidence of any confluence of factors in both the active and idle places that could have come together to produce any ignition, combustion, fire, or other injury producing hazards described by the inspector. Accordingly, his significant and substantial, (S&S) violation finding IS MODIFIED to non-significant and substantial, (non-S&S).

The Unwarrantable Failure Issue

In Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 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); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133,136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

The Commission has recognized that a number of factors are relevant in determining whether a violation is the result of an operator’s unwarrantable failure. Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). These include the extent of the violative condition, the length of time that it has existed, the operator’s efforts at abating the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s knowledge of the existence of the violation, whether the violation is obvious, and whether the violation poses a high degree of danger. Id. See also San Juan Coal Co., 29 FMSHRC 125, 128 (Mar. 2007).

One key factor for determining whether a violation is the result of an operator’s unwarrantable failure is whether or not the violation poses a high degree of danger. In the instant case, I have concluded that the violation was not S&S, and I have modified the violation to a non-S&S violation. Under the circumstances, the unwarrantable failure question need not be addressed and the contested order IS MODIFIED to a Section 104(a) non-S&S citation.

History of Prior Violations

The parties stipulated that the information pertaining to the respondent’s history of previous violations is contained in Exhibit A to the petition for assessment of civil penalty filed in this matter.

Exhibit A reflects six prior Section 104(c) citations for alleged violations of the general mine ventilation plan and approval process requirements of 30 C.F.R. § 75.370(a)(1), issued in February, 2010, three of which are non-S&S, and three of which are S&S. However, there is no evidence of record in this case that any of these citations were issued for alleged violations of the reliable indicator plan requirement, other than the three citations of January and February, 2010 (Exhibits P-3, P-4, and R-4).

Exhibit A reflects a reference to the contested Section 104(d)(2) order no. 8170840, indicating 33 repeat violations of Section 75.370(a)(1), and 744 violations in 1,132 inspection days, which resulted in the proposed penalty assessment of $4,099 for that order.

No further explanations were forthcoming with respect to the aforesaid information, and the petitioner has advanced no argument or suggestion that it warrants any increased civil penalty assessment as a result of the violation. I assume that all of this information was taken into account when the proposed mandatory penalty of $4,000, for the contested order, was increased by $99. In any event, given the size and scope of the respondent’s mining operation, and in the absence of any arguments to the contrary, I cannot conclude that the respondent has such a poor compliance record warranting any additional increase in the civil penalty assessed by me for the violation which has been affirmed.

Good Faith Compliance

The record establishes that the respondent timely abated the violation in good faith. Inspector Stanley’s order reflects the violation was corrected within fifteen (15) minutes and section foreman Keith Smith’s credible testimony reflects that he replaced the existing ribbon with engineering tape within five to ten minutes and the inspector accepted this and terminated the violation (Tr. 117-118).

Gravity

Based on my non-S&S ruling, I conclude and find that the violation was minor.

I find that the inconsistent and subjective “significant and substantial” findings made by Inspector Stanley and other MSHA inspectors with respect to their prior “reliable indicator” non-S&S violations is the result of a vague and subjective ventilation plan addendum that is devoid of any criteria or explanatory information for determining the reliability of an indicator in an underground mining environment with many variances and changed circumstances that routinely occur during the mining process. The inspectors are placed in the difficult position of making judgment calls with little or no regulatory guidance.

Negligence

The ventilation plan requirement for a reliable indicator was approved on or about December 17, 2009 and Inspector Stanley confirmed that it was actually put in place shortly before February 1, 2010, when he issued his first citation (Tr. 35).

Mine foreman Eric Smith testified credibly that the newly installed ventilation system was the first one at the mine and he was engaged in discussions with MSHA and the inspectors after the citation of February 1, 2010, was issued, and that mine management was dealing with the problems of indicator locations and materials and were making adjustments in order to find the best way to comply with the plan (Tr. 132-133). Mr. Smith believed that the term “reliable” is vague and could refer to indicator durability or whether it clearly shows movement that “jumps out and gives an alert that a fan may be off” (Tr. 132-133). Inspector Stanley agreed that the cited plan provision does not specify any particular type of material, its dimensions, or where it should be located (Tr. 38).

Inspector Stanley confirmed his discussions with section foreman Keith Smith and mine foreman Eric Smith, and while I conclude that they both understood that a reliable indicator was required, I cannot conclude that they clearly understand what was specifically required in terms of the construction and location of a reliable indicator. Indeed, the petitioner’s counsel characterized the discussions as a consultation about how to resolve the problem (Tr. 169), and lends support to the respondent’s argument that it was making a concerted effort to find a method that would meet the requirements of the plan, as well as the expectations of the inspectors. Mr. Stanley confirmed that his discussions with mine foreman Eric Smith concerned the use of engineering ribbons or plastic reflector material, the various lengths, the appropriate indicator locations, including hanging them with the second row of roof bolts, and whether they should be hung closer to the end of the tubing (Tr. 54-55). I conclude and find that the discussions were ad hoc discussions rather than specific criteria established for future compliance.

Based on the aforesaid circumstances, and taking into account the vagueness of the cited plan safety precaution, I conclude and find that the respondent’s mine management made a reasonable effort to develop and find a way to construct and position an indicator that would meet the expectations of the inspectors, as well as the plan requirement, and efforts in this regard mitigate the high negligence finding made by Inspector Stanley. Accordingly, his initial finding of high negligence IS MODIFIED to moderate negligence.

Size of Business and Effect of Civil Penalty Assessment on the Respondent’s Ability to Remain in Business

The parties stipulated that the respondent is considered a large mine operator and that the subject mine is a large mine. Exhibit A to the petition for assessment of civil penalty reflects that as of April, 2010, the subject mine employed 621 miners, working three production shifts, seven days a week, with a coal production of 2,845,556 tons, and the respondent’s tonnage is shown as 56,251,603. The parties further stipulated that the maximum civil penalty which could be assessed for the violations will not affect the respondent’s ability to remain in business.

Proposed Settlement of Two Remaining Violations

The parties filed a motion for approval of a proposed settlement of the following two remaining Section 104(a) S&S violations in this docket.

In support of the proposed settlements, the parties are in agreement that due to legitimate questions of fact regarding whether the citations were properly the subject of special assessments, reductions of the proposed civil penalties are appropriate and serve the purposes of the Mine Act. The citations otherwise remain as issued.

I have considered the arguments and documentation submitted by the parties in support of the proposed settlements, and I conclude and find that they are appropriate under the criteria set forth in Section 110(i) of the Mine Act. Accordingly, they are APPROVED.

ORDER

In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(d)(1) S&S Order No. 8170840, February 18, 2010, citing a violation of mandatory safety standard 30 C.F.R. § 75.370(a), IS MODIFIED and AFFIRMED as a non-significant and substantial Section 104(a) citation.

It is FURTHER ORDERED that the initial high negligence finding with respect to the violation IS MODIFIED to moderate negligence.

The respondent IS ORDERED to pay a civil penalty assessment of $500 for the violation that has been affirmed.

Consistent with the settlement agreement regarding Section 104(a) Citation No. 8173641, and Citation No. 8173642, the respondent IS ORDERED to pay a civil penalty assessment of $15,000, for both citations.

Finally, the respondent IS ORDERED to pay the aforementioned civil penalties of $15,500, within thirty (30) days of the date of the decision , and upon receipt of payment this matter is DISMISSED.

George A. Koutras

Administrative Law Judge

Distribution:

A. Scott Hecker, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

Billy R. Shelton, Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive, Suite 310, Lexington, KY 40509