FMSHRC ALJ Decision

Appearances: John M. Strawn, Esq., U.S. Department of Labor, Philadelphia, PA on behalf of the Secretary

R. Henry Moore, Esq., Jackson Kelly, Pittsburgh, PA on behalf of Emerald Coal Resources, LP

These cases are before me upon petitions for assessment of civil penalties filed by the Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration (“MSHA”) against Emerald Coal Resources (“Emerald”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (the “Mine Act” or “Act”), 30 U.S.C. § 815 (2006). In Docket No. PENN-2009-41, the Secretary petitions for the assessment of civil penalties totaling $20,597.00 for eight alleged violations of mandatory safety standards set forth in 30 C.F.R. Parts 75 and 77.

In Docket No. PENN-2009-42, the Secretary seeks the assessment of civil penalties totaling $179,812.00 for twenty alleged violations of mandatory safety standards for underground coal mines at its Emerald Mine No. 1 located in Greene County, Pennsylvania.

After the Secretary’s petitions were filed, Emerald answered by admitting the Commission’s jurisdiction, but by denying the company’s liability for any of the proposed penalties. The cases were assigned to me by the Chief Judge. Following several conferences, counsels ultimately settled all of the violations alleged in the two dockets, except for an alleged violation of 30 C.F.R. § 75.400 as set forth in Order No. 4165192.

The order was issued pursuant to section 104(d)(2) of the Act and in addition to the alleged violation charged that the violation was a significant and substantial contribution to a mine safety hazard (“S&S” violation) and was the result of Emerald’s unwarrantable failure to comply with the standard.

Order No. 4165192 is contained in Docket No. PENN 2009-42. The matter was heard in Morgantown, West Virginia.

1. Emerald is an “operator” as defined in section 3(d) of the Federal Mine Safety and Health Act of 1977, as amended, (hereinafter the “Act”), 30 U.S.C. § 802(d), at the Emerald Mine No. 1 (the “Mine”), where the Order at issue in this proceeding was issued.

4. The Federal Mine Safety and Health Review Commission (“Commission”) and the presiding Administrative Law Judge have jurisdiction over the above-captioned proceedings pursuant to sections 104, 105 and 113 of the Act.

5. The subject Order and termination were properly served by duly authorized representatives of the Secretary upon agents for Emerald on the dates and times and at the places stated therein and may be admitted into evidence for the purpose of establishing their issuance.

6. The parties stipulate to the authenticity of their exhibits, but not to the relevance or truth of the matters asserted therein.

7. Emerald demonstrated good faith in attaining compliance after the issuance of the Order.

8. Payment of the total proposed penalty of $44,645 in this matter will not affect Emerald’s ability to continue in business.

9. The appropriateness of the penalty, if any, to the size of Emerald’s business should be based on the fact that Emerald’s controller produced over 10,000,000 tons of coal in 2007, including 5,674,111 tons at the Mine.

10. The appropriateness of the penalty, if any, to Emerald’s violation history should be based on the fact that Emerald had 327 assessed violations that were paid, finally adjudicated, or became final orders of the Commission during the 15 month period preceding issuance of Order No. 4165192.

11. In 2008, 30 C.F.R. § 75.400 was the most frequently cited standard and made up 12.18% of all violations issued in underground coal mines. In 2007, 30 C.F.R. § 75.400 was also the most frequently cited standard and made up 12.25% of all violations.

12. If the Administrative Law Judge upholds Order No. 4165192 as an unwarrantable failure to comply with the Act, the Order should be characterized as a section 104(d)(2) order. The original D chain on which Order No. 4165192 was issued, however, was broken. The predicate order referenced as the initial action, Order No. 7069052, was issued October 02, 2007. There were 12 enforcement actions taken under section 104(d) during that period. All section 104(d) enforcement actions during that period were contested. Of those, two have been resolved, section 104(d)(2) Order Nos. 7024630 and 7024915. Both were reclassified as section 104(a) citations in settlements and the unwarrantable failure chain was broken between November 29, 2007 and July 23, 2008, i.e. there was an intervening clean inspection. On July 23, 2008, Order No. 7077232 was issued as a section 104(d)(2) order with an S&S designation. That order is part of [D]ocket No. PENN 2009-41 herein and now becomes a section 104(d)(1) citation in the partial settlement. Order No. 7077238 was issued on July 30, 2008 pursuant to section 104(d)(2). That order is also part of Docket No. PENN 2009-41 and now becomes a section 104(d)(1) order in the partial settlement.

13. On August 9, 2008 the C-2 section of the mine was a continuous miner development section.

14. A preshift examination of the section was performed by Bill Grey on August 9, 2008 for the oncoming dayshift. He did not record that any hazards existed in the working section. No enforcement action was taken with respect to his preshift examination.

On August 09, 2008, at approximately 8:00 a.m., the beginning of Emerald’s dayshift, a 103(i) spot inspection for methane was conducted by MSHA’s Supervisory Coal Mine Inspector Robert Newhouse at the C-2 section of Emerald Mine No. 1.

Tr. 35-36. Emerald Mine No. 1 is a large mine. Tr. 31. It is a gassy mine and liberates more than 8 million cubits of methane every 24 hours. See Tr. 32-33. Under Section 103(i), gassy mines are subject to a minimum of one spot inspection every five working days at irregular intervals. 30 U.S.C. § 813 (i) (2006).

At the time of the August 09, 2008 inspection the C-2 section was in active development. Jt. Ex. 1. The C-2 section is a three-entry long wall development section with coal bottoms. Tr. 41, 46.

The section’s Number Three entry is located near the 27 cross cut. Tr. 41, 46-48. The Number Three entry is used as a haul road for shuttle cars transporting coal from the continuous miner to the feeder on the conveyor belt. Tr. 48. Air flows through the Number Three entry to the face. Tr. 63.

After arriving at the mine Newhouse traveled with Larry Becker, a union representative, to the C-2 section where he met with the midnight shift foreman, William Grey. Tr. 35-36. When Newhouse arrived at the C-2 section at approximately 8:30 a.m., the midnight shift production crew had already left, but the dayshift crew had not arrived and mining had not started. Tr. 36, 78. Newhouse traveled through the entries to inspect the faces and take methane readings. Tr. 37, Tr. 42. Grey did not accompany Newhouse because his cap light was not working. Tr. 37. Newhouse measured five hundredths of a percent methane at the Number Three face. Tr. 92-93, Gov. Ex. 3. When Newhouse proceeded through the Number Three entry toward the belt feeder he observed an “extensive” accumulation of coal dust on the shuttle car

Newhouse noticed that the accumulation was dry, dusty and black. Tr. 46, 51. He found no evidence that any clean up or rock-dusting had occurred. Tr. 68. Newhouse measured up to eight inches of coal dust accumulated on top of the coal bottom in the center of the roadway and up to 14 inches accumulated by the ribs. Tr. 46, 80-81. The accumulation measured approximately 26 feet across from the feeder inby and extended a distance of approximately 244 feet. Tr. 52. Newhouse recorded his measurements in his contemporaneous notes. See Gov. Ex. 3. Newhouse believed the coal dust accumulation was caused by shuttle car traffic traveling over the coal bottoms. Tr. 50-51. He went to the load center to question Grey about the accummulation, but Grey was gone. Tr. 43. Newhouse showed the accumulation to Fed McManis, Continuous Mining Machine Coordinator (“CM Coordinator”) for the

C-2 section. Tr. 43. When Newhouse showed McManis the accumulation McManis explained that neither Grey nor the crew ordinarily worked in the area, and that another crew, the crew normally assigned to the C-2 section, usually kept the area clean. Gov. Ex. 3 pg. 11-12. McManis had the area scooped and rock-dusted and the roadways watered. Tr. 169. As a result of what he saw and learned Newhouse found that the accumulation violated section 75.400 and he issued Order No. 4165192.

On Monday, August 11, 2008 Newhouse returned to the mine to conduct interviews with several miners, including Grey. Tr.75. During his interview Grey told Newhouse he had the roadway scooped early in the midnight shift. Tr. 76. Grey stated the roadway was fine when he checked it at 5:17 a.m.

Id.

Newhouse found that the violation of section 75.400 was reasonably likely to result in an explosion. Tr. 65-66. The block of coal in the C-2 section was virgin coal with rock intrusions containing clay veins, which trap methane. Tr. 61-62, 65. Newhouse believed that due to the geology of the coal being mined, if the continuous miner cut into a clay vein it could cause a release of methane sufficient to bring the methane level to the explosive range. Tr. 61. Newhouse acknowledged Emerald was using horizontal degasification to reduce the methane level in the block of coal.

Tr. 100. However, he still believed the level of methane was likely to reach the explosive range.

Newhouse also believed that as mining continued the accumulated dust would be placed into suspension by shuttle car traffic and carried through the intake inby to the continuous miner at the face. Tr. 63. He testified a methane ignition at the face would ignite the suspended coal dust and the resulting explosion would propagate back through the C-2 section and continue to expand. Tr. 55-58; 61-64. Newhouse determined an ignition could be caused by the cutter head striking a sulfur ball and testified that miners often strike sulfur balls on the face.

Tr. 57. Newhouse testified that in his 33 years of experience inspecting the mine single and even multiple face ignitions had occurred “from time to time,” depending on the geology of the coal being mined. Tr. 61-62.

Newhouse also believed that the shuttle car cables could become abraded by equipment running over them, fault and ignite the coal dust. Tr. 64-65. However, Newhouse admitted he did not inspect the shuttle car cables for signs of abrasion. Tr. 84. Newhouse stated the shuttle car cable wheels can produce significant heat when energized cords are rolled up and could become ignition sources. Tr. 65.

Newhouse testified that if an ignition and explosion occurred it was reasonably likely that numerous miners could be fatally injured: the miner operator, the cable holders for the machine, a load operator, a mechanic, a foreman and several shuttle car operators and center holders. Tr. 66.

Newhouse determined that Emerald’s negligence in allowing the condition to exist was “high.” Tr. 66. Newhouse found that the coal accumulation was “very obvious and extensive” and that it existed when Grey did his pre-shift exam. Tr. 67. In fact, given the extensive nature of the accumulation, Newhouse believed it had probably existed for several shifts. Tr. 67. Further, the shift foreman frequently visits each section and had cause to go down the Number Three entry. Tr. 67. Emerald’s clean-up plan also states that extra attention is needed to keep coal bottoms clean. Tr. 69, Gov. Ex. 6. The plan requires that shuttle car roadways be kept free of loose coal accumulations and either kept wet, using water or calcium, or “very heavily” rock- dusted. Gov. Ex. 6. Moreover, on a number of occasions Newhouse had discussed the extra attention needed to keep coal bottoms clean with members of mine management, including William Shiftko, and the mine foreman. Tr. 70.

William Grey testified that on the night of August 8-9, 2008, he was acting as the midnight shift foreman for the C-2 section.

Gov. Ex. 3. Grey had noticed the cited accumulation when he did his preshift examination of the section prior to the August 9 oncoming dayshift, but he did not record any hazards. Jt. Ex. 1. Grey stated his cap light was working when he did his preshift exam. Tr. 120. In Grey’s opinion, the accumulated material was not enough to pose a hazard. Tr. 128. Grey testified that he did not notice any sulfur balls at the faces. Tr. 119. Grey stated the company’s normal practice is to clean during the shift, between cycles and after the section has been advanced. Tr. 114, 150, 153. Grey initially testified that the coal bottom was wet and had been rock-dusted, but later stated he did not water the roads that night because the roads are naturally wet. Tr. 141-142, 157.

Fred McManis, the CM coordinator for the C-2 section, supervises the section foreman.

Tr. 159, 168. As the CM coordinator McManis is on the section every day except Sunday, and he was there when the alleged violation occurred. Tr. 161, 168. He testified that generally shuttle car operators will water the roadways at the beginning of the shift to control float coal dust. Tr. 162-163. Preferably within two hours of the end of the shift, the company will scoop away any accumulated coal. Tr. 164. McManis testified his normal routine as face boss is to examine the working place before the miners start loading coal then examine the other faces. Tr. 162. McManis testified Newhouse arrived before he had the opportunity to check the C-2 section. Tr. 165. Newhouse showed McManis the coal accumulation. Tr. 165. McManis took his own measurements and recorded them in his notes, as was his practice whenever an order was issued. Tr. 183. McManis noted that the accumulated coal dust was 12 inches deep at the feeder, 18 inches deep near the ribs, 12 feet wide and extended approximately 20 feet. Gov. Ex. 7. He also noted 3 to 4 inches of coal dust between the 24 ½ room and the 27 room. Id.

McManis then spoke to Grey who reported on the conditions at the face and on mining operations, per normal operating procedure. Tr. 167-168. McManis testified it was unlikely there would be a face ignition that would propogate back through the C-2 section because little methane had accumulated, the coal bottoms were kept damp and the area was rock-dusted. Tr. 171. However, McManis later admitted on cross-examination that when the citation was issued the coal accumulation was black and that the roadway was dry and tends to get dry toward the end of a shift. Tr. 173-174, 179. He also admitted that shuttle car traffic would put accumulated coal dust into suspension. Tr. 179.

William Shiftko is a compliance foreman in the safety department at Emerald mine. Tr. 192.

Shiftko testified he occasionally enters the C-2 section. Tr. 195. He testified that to the best of his knowledge there have never been any ignitions in the area where the section was located, that the degasification system that was in place when the order was issued was effective in reducing methane levels and that the ventilation system was working properly when the order was issued. Tr. 196, 205.

Loose coal and black float coal dust was permitted to accumulate on the active shuttle car roadways in the number 3 entry of the C-2 section MMU no. 022, from the feeder located inby 24 crosscut to the intersection at 26 crosscut, a[n] approximate distance of 244 feet. The accumulation measured from 0 to 14 inches deep along both ribs and from 0 to 8 inches deep in the center of the roadway. The accumulation was dry and dusty. This section of law has been cited 73 times in the previous 24 months.

For almost as long as the Commission has existed, it has been accepted that section 75.400 is violated “when an accumulation of combustible materials exists” (Old Ben Coal Co., 1 FMSHRC 1954, 1958 (Dec. 1979)(“Old Ben I”)) and that a violative accumulation exists “where the quantity of combustible materials is such that, in the judgement of the authorized representative of the secretary, it likely could cause a fire or explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 1980)(“Old Ben II”). Since some combustible material is inevitable in mining operations, the inspector's judgement as to what constitutes a mass of combustible materials which could cause or propagate a fire or explosion is subject to challenge before a Commission administrative law judge (Old Ben II, 2 FMSHRC at 2808, n.7), and the judge is required to review the inspector's judgement by applying the objective test of whether a “reasonably prudent person, familiar with the mining industry and the protective purposes of the standard, would have recognized the hazardous condition that the regulation seeks to prevent.” Utah Power & Light, Mining Division, 12 FMSHRC 965, 968 (May 1990)(“UP&L”); aff'd 951 F.2d 292 (10th Cir. 1991). The Commission has explained, “[T]he reasonably prudent person test must be based on conclusions drawn by an objective observer with knowledge of the relevant facts. It follows that the facts to be considered must be those which were reasonably ascertainable prior to the alleged violation." U.S. Steel Mining Co., 27 FMSHRC 435, 439 (May 2005)(citing U.S. Steel Corp., 5 FMSHRC 3, 4-5 (Jan. 1983)).

Further, the Commission has repeatedly held that violations of Section 75.400 can be established by an inspector’s observations. See e.g., Coal Processing Corporation, 2 IBMA 336 (1973); Amax Coal Co., 19 FMSHRC 846 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5 (Jan. 1997); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1290 (Dec. 1998) (stating the Commission has never found and does not find that section 75.400 requires a physical test to determine the particular combustible material present).

The C-2 section was an active development area (Tr. 31) where mining crews worked (Tr. 35), which makes it an active working under the Act. I find that the order reflects the reasonable exercise of Inspector Newhouse’s judgement. Newhouse is an MSHA inspector with more than 33 years of experience trained to recognize hazardous dust conditions. I fully credit his description of the existence, quantity and quality of the coal dust he observed, and I find that the company violated the standard.

Newhouse credibly testified he observed extensive dry dusty coal accumulation of up to eight inches in the center of the shuttle car roadway and accumulation of up to 14 inches near the ribs extending inby from the feeder for a distance of approximately 244 feet as well as low coal dust. Tr. 52-53, Gov. Ex. 3. McManis admitted upon cross-examination that the accumulation was black and dry. Tr. 173, 179. Newhouse’s measurements and observations were recorded in his contemporaneous notes. I credit Newhouse’s testimony as to the quantity of the accumulation over that of McManis. McManis’ testimony lacked the degree of certitude that characterized Newhouse’s testimony.

The coal accumulation was extensive, and I fully credit Newhouse’s belief that the loose coal dust was dangerous and posed an explosion hazard. Tr. 60. Black, dry, float coal dust can result in a self-propagating explosion. Newhouse was trained by MSHA to recognize hazardous dust conditions. I fully credit his belief that the loose coal dust would be placed into suspension by the shuttle car traffic and carried to the face by the mine’s ventilation system. Tr. 63. Shiftko testified the C-2 section had a working ventilation system and coal degasification system that would reduce the likelihood of a methane explosion. Tr. 196, 205. However, Emerald Mine No. 1 is a gassy mine and I credit Newhouse’s belief that since Emerald was mining virgin coal a sudden release of methane sufficient to bring the methane level to the explosive range was likely to occur. A reasonable person familiar with 75.400 and its protective purposes would have been aware that this was a hazardous accumulation.

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) (2006). 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). As is well recognized, in order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in 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); accord Buck Creek Coal Co., Inc., 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. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC __, slip op. at 9, PENN 2008-189 (October 05, 2011).

Further, 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). The Commission has explained further that the third element of the Mathies formulation "requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The Commission has emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C. § 814(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., 6 FMSHRC 1573, 1575 (July 1984). In addition, the evaluation of reasonable likelihood should be made in terms of "continued normal mining operations." Id. at 1574. The question is whether there was a confluence of factors that made an injury producing fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors that have been considered include the extent of the accumulation, possible ignition sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-503.

I have found a violation of the cited safety standard. I further find that the accumulated coal dust contributed to a distinct safety hazard, i.e., that the accumulation would propagate a mine explosion. Moreover, I find that the necessary confluence of factors existed to make an injury producing explosion reasonably likely. The cited accumulation were extensive, dry and dusty. Tr. 52-53. I find that the Secretary has proven the cutter head could serve as an ignition source. Newhouse believed it was likely that if the continuous miner cut into a clay vein enough methane would be released from the virgin coal to reach a combustible level, that the methane would be ignited by a spark from the cutter head, and that the exploding methane would ignite the accumulated coal dust leading to a greatly magnified explosion and I credit his belief. He testified that methane explosions had occurred in the past at the Emerald No. 1 mine.

Tr. 61-62.

I conclude that as normal mining continued it was reasonably likely that the coal dust accumulation would propagate a methane explosion through the section causing fatal injury to miners working in the area. Thus, the violation was S&S. It also was serious. I find that should such an accident occur the likely result would be deadly.

In her regulation the Secretary defines conduct that constitutes negligence under the Act.

Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

An operator exhibits no negligence where the “operator exercised diligence and could not have known of the violative condition or practice.” 30 C.F.R. § 100.3(d) (2011) (Table X). An operator displays low negligence if the operator “knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. An operator shows moderate negligence if it “knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. An operator exhibits high negligence when the operator “knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. An operator shows reckless disregard when it displays “conduct which exhibits absence of the slightest degree of care.” Id. MSHA considers mitigating circumstances which may include actions taken by the operator to prevent or correct hazardous conditions when determining negligence. 30 C.F.R. § 100.3 (d) (2011).

Newhouse found that the violation was due to Emerald’s high negligence, and I agree. The operator had actual knowledge of the violative condition. Grey admitted he noticed the coal dust accumulation when he did his pre-shift exam. Jt. Ex. 1. Newhouse believed that the hazard had probably existed for several shifts. Tr. 67. McManis testified that his normal routine was to inspect the working place before the miners started loading coal. Tr. 162. Therefore, even if Grey did not note the hazard on his pre-shift exam, McManis should have identified the hazard when he checked the working place before the prior shifts. Moreover, Emerald’s clean up program identified the additional attention needed to keep coal bottoms clean. Gov. Ex. 6. Newhouse gave undisputed testimony that he had spoken to mine management about the extra attention needed for coal bottoms on several occasions. Tr. 70. The hazard created by the violation reasonably could be expected to cause a fatal injury. I do not find the fact that Grey believed the accumulation was not hazardous or the fact that Grey ordinarily worked in a section without coal bottoms to be indicative of a lack of negligence on the company’s part. Mine management was aware of the hazards posed by coal bottoms and had a duty to take the steps necessary to prevent coal dust accumulation. The danger of the violation meant that management had a high standard of care. The company fell short of this standard, and I therefore find that it was highly negligent.

The Commission has defined an unwarrantable failure as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.”Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d. 133, 136 (7th Cir. 1995). The following factors may be considered when making an unwarrantable failure determination: (1) the extent of the violative condition, (2) the length of time the condition existed, (3) whether the violation was obvious or posed a high degree of danger, (4) whether the operator has been placed on notice that greater efforts are necessary for compliance and (5) the operator’s efforts in abating the violative condition. Mullins and Sons Co., 16 FMSHRC 192, 195 (Feb. 1994). Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

I find that the violation was an unwarrantable failure to comply with a mandatory standard. The violative condition was extensive. Newhouse measured up to eight inches of accumulated coal dust in the center of the shuttle car roadway and up to 14 inches near the ribs extending inby from the feeder for a distance of approximately 244 feet. Tr. 52-53. Newhouse credibly testified that the accumulation had existed for several shifts. Tr.67. The violation was obvious and posed a high degree of danger to miners. The operator was on notice that greater efforts were necessary for compliance with the standard. The mine’s clean up plan identified the additional attention necessary to keep coal bottoms clean and Newhouse had spoken with mine management about keeping coal bottoms clean on several occasions. Further, the company paid civil penalties for 44 violations of section 75.400 in the 15 month period prior to the August 09, 2008 inspection. Gov. Ex. 1. When the order was issued there was no evidence that any clean up had occurred or was in progress.

In the 15 month period prior to the inspection at issue the company paid civil penalties for 327 violations, 44 of which were violations of section 75.400. Gov. Ex. 1, Jt. Ex. 1. This is a large history of prior violations.

Emerald is a large mine. The operator’s controller produced over 10,000,000 tons of coal in 2007 and 5,674,111 tons of coal at the Emerald No. 1 mine. Jt. Ex. 1. The parties agreed that the proposed penalties will not adversely affect the company’s business. Jt. Ex. 1.

McManis’ timely and effective efforts to clean up the accumulation constituted good faith abatement of the violation. See Jt. Ex. 1. He promptly had the area scooped, applied rock-dust and watered the roadways. Tr. 169.

The Secretary proposed a large penalty of $44,645.00 for the alleged violation primarily due to the large number of points assessed for repeat violations of the standard, for negligence, for the likelihood of injury, for the severity of any resulting injury and for the number of persons affected. I have found that the violation existed, that it was serious, that the negligence of the company was high and that the violation was an unwarrantable failure to comply with a mandatory standard. I have found that the mine and the company’s controller are large and that the proposed penalty will not effect Emerald’s ability to continue in business. Also, I have found that the operator exhibited good faith in abating the violation, which warrants a modest reduction in the penalty. Given these findings and the other civil penalty criteria, I assess a penalty of $44,500 for this violation.

The rest of the violations in Docket Nos. PENN 2009-41 and PENN 2009-42 were settled. A Decision Approving Partial Settlement was issued for Docket No. PENN 2009-41 on May 18, 2010, disposing of six of the eight violations at issue in the docket. One citation was previously vacated and the settlement agreement for the remaining violation in PENN 2009-41 was submitted at hearing. Nineteen of the twenty violations at issue in Docket No. PENN 2009-42 settled prior to the hearing and were placed on the record at the hearing. The final violation in Docket No. PENN 2009-42 was tried and is the subject of this decision. I have considered the representations made at the hearing and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110 (i) of the Act. The terms of the settlement are set forth below.

Citation No. 7021323 - The Respondent argued that the electrical exam conducted three weeks prior to the citation did not show any defects. In light of the Respondent’s argument the Secretary proposed at hearing that Citation No. 7021323 be modified to reduce the degree of negligence to “low” and reduce the penalty from $2,106.00 to $1,052.00.

Citation No. 7021425 - The parties agreed to settle this violation because there were no exposed live parts, only electricians have access to the area and a miner would only be exposed to live parts if the miner used a wrench to open up the cabinet. The parties requested that Citation No. 7021425 be modified to remove the inspector’s significant and substantial (“S&S”) finding and that the penalty be reduced, based on the penalty points, from $634 to $142, based on a corresponding reduction in the points.

Citation No. 7021427 - The parties request that this citation be modified for the same reasons as Citation No. 7021425. Specifically, the parties propose that Citation No. 7021427 be modified to remove the inspector’s significant and substantial (“S&S”) finding and that the penalty be reduced from $2,106.00 to $473.

Citation No. 7070999 - The parties determined that during the last weekly exam conducted the welder was in good condition. Consequently, the parties request Citation No. 7070999 be modified to reduce the degree of negligence to “low” and that the penalty be reduced, based on the penalty points, from $2,282 to $1,140.

Citation No. 7071000 - The parties agreed to settle this violation in light of the fact that the cited area was dangered off, the long wall blockage plan was in effect and extra safety precautions had been taken. The parties request that Citation No. 7071000 be modified to reduce the number of persons affected to “five.” The parties propose the penalty be reduced, based on the penalty points, from $8,209 to $6,209.

Citation No. 7077230 - The parties determined that miners would have been able to use the escape way to escape safely if necessary because most of the reflectors were free from rock-dust and the lifeline had directional cones in it. As a result, the parties request that Citation No. 7077230 be modified to reduce the gravity of injury to “permanently disabling,” to reduce the degree of negligence to “low” and to reduce the number of persons affected to “five.” The parties also propose that the penalty be reduced, based on the penalty points, from $1,657 to $165.

Order No. 7077232 - The parties determined that fewer miners would be affected by the alleged violation than the inspector believed. One employee was already cleaning outby the site of the accumulation. In addition, the pre-shift and on shift reports both show the operator was aware of the condition and was addressing it. Consequently, the parties propose that Order No. 7077232 be modified to a 104(d)(1) citation and that it be modified to reduce the number of persons affected to “four.” In addition, the parties request that the penalty be reduced, based on the penalty points, from $47,716 to $37,716.

Citation No. 7077237 - The parties request that this citation be modified in light of the fact that the inspector had cited the lifeline seven days earlier, but did not cite the company for improperly hanging the lifeline. The parties request that Citation No. 7077237 be modified to remove the inspector’s S&S finding. The parties also propose the penalty be reduced, based on the penalty points, from $8,209 to $1,842.

Order No. 7077238 - The parties have agreed to modify the order since it was not issued until seven days after the initial order. Further, the violative condition had already been abated and the pre-shift report had noted that the company was in the process of correcting several conditions. The parties propose Order No. 7077238 be modified to a 104(d)(1) order and that it be modified to reduce the number of persons affected to “four.” The parties also request the penalty be reduced, based on the penalty points, from $30,288 to $23,288.

Citation No. 7077240 - The parties propose this citation be modified because they have determined that exposure to the hazard was limited to the weekly examiner. In addition, the hazard may have occurred less than a week after the last weekly inspection. The parties propose Citation No. 7077240 be modified to reduce the degree of negligence to “low,” with a corresponding reduction in the penalty points and a reduction in the penalty from $1,026 to $512.

Citation No. 7084495 - The parties have settled this citation in light of the fact that there was only a small amount of dust in the area, which was not in contact with the belt or rollers; and the area was wet. The parties request that Citation No. 7084495 be modified to remove the inspector’s S&S finding, to reduce the likelihood of injury to “unlikely” and change the gravity of injury to “lost workdays” and to reduce the penalty, based on the penalty points, from $4,689 to $317.

Citation No. 8006502 - The Secretary stated at hearing that MSHA the citation had been vacated because Citation No. 8006503 was issued for the same violative condition.

Citation No. 8006503 - The parties have agreed to modify the citation since the area at issue had been dangered off and the blockage plan provided additional protection. The primary and alternative escape way were still available to the miners to allow them to escape safely. The parties propose that Citation No. 8006503 be modified to reduce the gravity of injury to “permanently disabling,” to reduce the degree of negligence to “low” and to reduce the number of miners affected to “four.” The parties also request a corresponding reduction in the penalty, based on a reduction in the penalty points, from $5,080 to $705.

Citation No. 8006505 - The parties request the citation be modified in light of the fact that the cited condition occurred after the pre-shift examination and had only existed for a short time. In addition, the charger at issue was reported to be in good condition during the last electrical examination. The parties propose Citation No. 8006505 be modified to reduce the degree of negligence to “low” and to reduce the gravity of injury to “permanently disabling.” The parties also propose the penalty be reduced, based on a reduction in the penalty points, from $6,996 to $1,569.

Citation No. 8006506 - The parties have settled this violation in light of the fact that there was no one working in the area at issue and the doors referenced in the citation still provided some separation. Further, the air leakage in the area was minimal. The parties request that Citation No. 8006506 be modified to reduce the gravity of injury to “lost workdays” and to reduce the number of persons affected to “two.” The parties also request a penalty reduction, based on a reduction in the penalty points, from $1,203 to $154.

Citation No. 8006581 - The parties have determined that at the time the citation was issued there were no bad splices or hot rollers and only one belt cleaner would have been exposed to the hazard. As a result, the parties propose Citation No. 8006581 be modified to remove the inspector’s S&S finding, to reduce the likelihood of injury to “unlikely” and to reduce the degree of negligence to “low.” The parties also request a corresponding reduction in the penalty, based on a reduction in the penalty points, from $3,996 to $403.

Citation No. 8006582- The parties have agreed to modify this citation since the cited condition only existed for a short period of time, the belt structure was not hot, there were no ribbons on bad rollers, only one belt cleaner was affected, there was a carbon monoxide monitoring system in place and the condition likely only existed since the last pre-shift. The parties request that Citation No. 8006582 be modified to reduce the degree of negligence to “low” and reduce the gravity of injury to “permanently disabling.” The parties propose a reduction in the penalty, based on a reduction in the penalty points, from $2,678 to $601.

SETTLEMENT
PENN-2009-41
CITATION/ ORDER NO.	30 C.F.R.	ASSESSMENT	SETTLEMENT
8006587	75.364(a)(2)(iii)	$2,106.00	$2,106.00
Subtotal		$2,106.00	$2,106.00
PENN-2009-42
CITATION/ ORDER NO.	30 C.F.R.	ASSESSMENT	SETTLEMENT
7021323	77.502	$2,106.00	$ 1,052.00
7021327	77.1110	$ 946.00	$ 946.00
7021425	77.509(c)	$ 634.00	$ 142.00
7021427	77.516	$ 2,106.00	$ 473.00
7070999	75.517	$ 2,282.00	$ 1,140.00
7071000	75.400	$ 8,209.00	$ 6,209.00
7077230	75.380(d)(2)	$ 1,657.00	$ 167.00
7077231	75.1725(a)	$ 3,689.00	$ 3,689.00
7077232	75.400	$47,716.00	$37,716.00
7077237	75.380(d)(7)(iv)	$ 8,209.00	$ 1,842.00
7077238	75.363(a)	$30,288.00	$23,288.00
7077240	75.202(a)	$ 1,026.00	$ 512.00
7084495	75.400	$ 4, 689.00	$ 317.00
8006502	75.380(h)	$ 1,657.00	Vacated
8006503	75.380(f)(1)	$ 5,080.00	$ 705.00
8006505	75.340(a)(1)(i)	$ 6,996.00	$ 1,569.00
8006506	75.333(c)	$ 1,203.00	$ 154.00
8006581	75.400	$ 3,996.00	$ 403.00
8006582	75.1725(a)	$ 2,678.00	$ 601.00
Subtotal		$135,167.00	$80,925.00
TOTAL		$137,273.00	$83,031.00

It is ORDERED that Citation No. 7021323 be MODIFIED to reduce the degree of negligence to “low.”

It is ORDERED that Citation No. 7021425 be MODIFIED to remove the inspector’s significant and substantial (“S&S”) finding.

It is ORDERED that Citation No. 7021427 be MODIFIED to remove the inspector’s S&S finding.

It is ORDERED that Citation No. 7070999 be MODIFIED to reduce the degree of negligence to “low.”

It is ORDERED that Citation No. 7071000 be MODIFIED to reduce the number of persons affected to “five.”

It is ORDERED that Citation No. 7077230 be MODIFIED to reduce the gravity of injury to “permanently disabling,” to reduce the degree of negligence to “low” and to reduce the number of persons affected to “five.”

It is ORDERED that Order No. 7077232 be MODIFIED to a 104(d)(1) citation and that it be modified to reduce the number of persons affected to “four.”

It is ORDERED that Citation No. 7077237 be MODIFIED to remove the inspector’s S&S finding.

It is ORDERED that Order No. 7077238 be MODIFIED to a 104(d)(1) order and that it be modified to reduce the number of persons affected to “four.”

It is ORDERED that Citation No. 7077240 be MODIFIED to reduce the degree of negligence to “low.”

It is ORDERED that Citation No. 7084495 be MODIFIED to remove the inpector’s S&S finding, to reduce the likelihood of injury to “unlikely” and to reduce the gravity of injury to “lost workdays.”

It is ORDERED that Citation No. 8006503 be MODIFIED to reduce the gravity of injury to “permanently disabling,” to reduce the degree of negligence to “low” and to reduce the number of miners affected to “four.”

It is ORDERED that Citation No. 8006505 be MODIFIED to reduce the degree of negligence to “low” and to reduce the gravity of injury to “permanently disabling.”

It is ORDERED that Citation No. 8006506 be MODIFIED to reduce the gravity of injury to “lost workdays” and to reduce the number of persons affected to “two.”

It is ORDERED that Citation No. 8006581 be MODIFIED to remove the inspector’s S&S finding, to reduce the likelihood of injury to “unlikely” and reduce the degree of negligence to “low.”

It is ORDERED that Citation No. 8006582 be MODIFIED to reduce the degree of negligence to “low” and to reduce the gravity of injury to “permanently disabling.”

Within 30 days of the date of this decision, Emerald IS ORDERED to pay civil penalties totaling $127,531.00 for the violations found above.

This decision resolves all outstanding issues with regard to Docket Nos. PENN 2009-41 and PENN 2009-42.

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

John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306