FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 28, 2011

Appearances:  Najah A. Farley, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, on behalf of the Petitioner/Respondent;

Christopher D. Pence, Esq., Allen Guthrie & Thomas PLLC, Charleston, West Virginia, on behalf of the Respondent/Contestant.

Before:            Judge Lesnick

DECISION

            This case is before me on a Petition for the Assessment of Civil Penalty filed by the Secretary of Labor on behalf of her Mine Safety and Health Administration (“MSHA”), against Dana Mining of Pennsylvania LLC (“Dana Mining”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary seeks civil penalties in the amount of $12,455.00 for three alleged violations of the Act and her mandatory safety standards. Two of the alleged violations at issue (as set forth in Order Nos. 8007789 and 8007790) were contested by Dana Mining, and were the subject of an expedited hearing held in Washington, D.C. on April 30 and May 1, 2009. The parties’ Post-hearing Briefs are of record.

            While awaiting proposed penalties for the contested orders, I referred the contest proceedings to the Commission’s Settlement Attorney. Settlement negotiations were unsuccessful. On May 27, 2010, just over a year after MSHA issued the orders that were the subject of the expedited hearing, the Secretary filed the Petition for the Assessment of Civil Penalty that is before me in Docket No. PENN 2009-617, and which includes proposed penalties for Order Nos. 8007789 and 8007790, and an additional Order No. 8007570. On April 21, 2011, I noticed the consolidated proceedings for a hearing. On June 10, 2011, the parties filed a Joint Motion for Decision Based on Stipulations and Evidence, and on July 7, 2011, filed a Motion for Decision and Order Approving Settlement as to Order No. 8007570.

            For the reasons set forth below, I GRANT the Motion for Decision and Order Approving Settlement as to Order No. 8007570, and I VACATE Order Nos. 8007789 and 8007790.

Stipulations

            Before the hearing, the parties stipulated as follows:

            1. At all relevant times, Dana Mining was the “operator” of the 4 West Mine (Mine Identification No. 36-09326) within the meaning of the Act, 30 U.S.C. § 802(d).

            2. At all relevant times, the 4 West Mine was a “coal or other mine” within the meaning of the Act, 30 U.S.C. § 802(h).

            3. At all relevant times, the products of the 4 West Mine facility entered commerce, or the operations or products of the 4 West Mine affected commerce, within the meaning of the Act, 30 U.S.C. §§ 802(b) and 803.

            4. Dana Mining is subject to the jurisdiction of the Act.

            5. The orders at issue, as well as any modifications thereto, were properly served by a duly authorized representative of the Secretary upon an agent of Dana Mining on the date and place stated therein.

            In their Joint Motion for Decision Based on Stipulations and Evidence, the parties further stipulated as follows as to Order Nos. 8007789 and 8007790:

            6. The parties adopt their respective evidence, arguments, and positions adduced at the hearing on April 30 and May 1, 2009, and in subsequent briefs, motions, and pleadings filed with the Court.

            7. Dana Mining demonstrated good faith in the abatement of the violations.

            8. The Assessed Violation History Report provided by the Secretary is authentic, and accurately reflects the history of violations at each of Dana Mining’s three mines during the time period that Dana Mining operated such mines.

            9. The proposed civil penalty of $10,455.00 was based on a consideration of the factors set forth in section 110(i) of the Mine Act, 30 U.S.C. § 810(i), and imposition of the proposed penalties will not affect Dana Mining’s ability to remain in business.

            10. In 2009, Dana Mining produced 1,820,595 tons of coal, of which 895,034 were produced from the 4 West Mine.

Order No. 8007570

            As a preliminary matter, I shall dispose of the joint motion to approve a partial settlement of Docket No. PENN 2009-617 the parties have filed. The parties request that Order No. 8007570 be modified from a section 104(d)(1) order to a section 104(a) citation, and from high to moderate negligence. As a basis for these modifications, the parties state that Dana Mining “could produce evidence tending to demonstrate reduced negligence, based on the Operator’s allegation that Management was unaware that the escapeway maps [at issue] in those particular locations had not been updated in a timely fashion, and as such, the Operator’s actions did not rise to the level of aggravated conduct.” The parties agree that the proposed penalty of $2,000.00 remain as proposed.

            I have considered the representations and documentation submitted as to Order No. 8007570, and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act, 30 U.S.C. § 810(i). The motion for approval of settlement is therefore GRANTED.

Summary of the Evidence

            Dana Mining operates the 4 West Mine, an underground coal mine located in Greene County, Pennsylvania. On April 15, 2009, MSHA Inspector Walter Young conducted a regular inspection of the 4 West Mine. Young was accompanied by his supervisor, Russell Riley, MSHA District 2 Manager Bill Poncerof, MSHA Inspector Trainee, Mark Anderson, and the foreman of the 4 West Mine, Jim Moreau. (Tr. 31, 533.) The group traveled to the working section from the loading point inby at the number 37 crosscut. (Tr. 39-40.) Upon arriving, Young began his inspection there. (Tr. 284.)

            Young walked across the tailpiece and observed what in his opinion were excessive accumulations of combustible material, particularly in the number 3 entry from the tailpiece and extending inby. (Tr. 29–30.) Young observed accumulations throughout the section, “to the point . . . where it was compacted in the ruts. It was loose on the sides[,] and [he] felt it created a hazard.” (Tr. 30–31, 62.) According to Young, the accumulations “were ground up fine” and “pulverized” as a result of equipment running over them for an extended period of time. (Tr. 35–36.) Young testified that the accumulations were comprised mostly of coal. Referring to one of many photographs of the accumulations he took (Ex. G-4), Young stated: “there’s about six inches of fine coal dust and loose coal fines on the mine floor in this picture.” (Tr. 71.) He also testified:

I’m not saying that there isn’t a small amount of rock [in it] which you can see by these pictures and by other areas that I’ve dug in there, that is my opinion as a miner with 25 years experience. That . . . is crushed up fine coal. There’s a small amount of rock dust on the top of it which you can see.

(Tr. 72.) Young measured the depth of the accumulations, which ranged from one to 11 inches deep. (Tr. 82, 86.)

            Young also found a damaged splice in a power cable that, in his opinion, was a potential ignition source because it posed a danger of sparking or arcing. (Tr. 141-149.) Riley used his foot to roll the cable over and saw that where the cable had been spliced, the red phase lead was exposed. (Tr. 286-288.) Riley, a certified electrician (Tr. 268), believed this was a “very dangerous” condition because of the threat of electrical shock and ignition of combustible materials from sparks. (Tr. 287-288.)

            Dana Mining’s witnesses hotly disputed the nature of the accumulations which Young found. Greg Miller, the production coordinator at the 4 West Mine, was present during much of Young’s inspection on April 15. (Tr. 315, 317.) He explained that the floor (or “bottom”) of the 4 West Mine is composed of shale rock that is black like coal and noncombustible, along with dark gray “fireclay.” (Tr. 429-430.) Asked to explain the difference between coal and shale rock, Miller testified: “Shale rock will have - - you will see a lot of triangle shapes. [Referring to Ex. G-4, photo 157, item 11:] I can see a piece right here now and I’m pretty certain that’s not coal in this snapshot with the rock dust all over it.” (Tr. 452.) He stated that the combination of shale and clay on the mine floor led to “[t]hat bottom being soft by nature[.] I could dig you a [hole in it] probably two feet [deep] if you want me to with the clay and the black rock. I could probably dig deeper than that.” (Tr. 434.) Although Miller also testified that some coal was present in the bottom along with the noncombustible materials (Tr. 435, 437), he did not see any accumulations of combustible coal as described by Young (Tr. 431, 489). Miller opined that Young could have misidentified the black shale rock and fireclay as coal. (Tr. 431.)

            Miller also testified that the cited area was “well dusted, well cleaned.” (Tr. 318.) He also stated that there was “no spillage whatsoever” in the feeder area. (Tr. 328.) Miller explained further that the cited area had not been in use for the five production days before the inspection. (Tr. 320-321.) In addition, the area had been cleaned and dusted several times since the last production shift. (Tr. 322.)

            Miller’s testimony on the mine floor was corroborated by mine foreman James Moreau, who testified that the floor of the 4 West Mine consists of black or gray shale and gray fireclay. (Tr. 535-536.) Moreau also testified that the cited area contained no accumulations of combustible materials, and that he did not believe that the spliced cable posed any threat of arcing. (Tr. 537, 547.)

            Greg Miller’s son, Justin Miller, a section foreman at the 4 West Mine (Tr. 570), also testified as to the composition of the floor of the 4 West Mine:

You may have a little bit of coal and the nature of what we are seeing right now, and at that time especially, is we have real thin layers of shale rock. It’s dark gray and black and it breaks up very easily during the production of coal.

                                    . . .

With the bottoms breaking up how they have been, you know, that is basically the consistency you have with those real thin like shelf rock. It just breaks very easily. A shuttle car breaks up that bottom.

(Tr. 581, 593.) When asked whether shale can mimic the appearance of coal, Justin Miller responded “Oh, yes.” (Tr. 593.) He further testified that he saw no accumulations of combustible material in the cited area “knowing the bottoms we have at the 4 main section [i.e., the cited area] . . . [a]fter watching him dig through those areas I know what the bottom consist[s] of with the gray shale, the black shale rock in the bottom.” (Tr. 597-598.)

            When called as a rebuttal witness, MSHA Inspector Young testified only that no one from Dana Mining told him that the material he found was stone, shale, or fireclay. (Tr. 622.) Young neither reiterated nor elaborated upon any of his earlier testimony. He did not, for instance, state any basis for his belief that the accumulations he cited were composed of combustible amounts of coal.

            Based upon his observations during his inspection, Young issued a section 104(d) order for a violation of section 75.400. The order includes sixteen numbered items, each corresponding to a specific area in the cited section of the mine where Young observed what he believed were accumulations. Order No. 8007789. Young testified that the mine personnel responsible for conducting preshift examinations of the cited area for the several shifts prior to the inspection, as well as mine management, should have been aware of the presence of excessive accumulations in the section, but that there were no notations of any such accumulations in the examination book. (Tr. 186-187.) Young stated his belief that the accumulations were present for “several shifts.” (Tr. 187.) Paul Sebesky, the mining examiner who preshifted the cited area, testified that during his preshift examination, he found no hazardous conditions. (Tr. 504-516.) Sebesky specifically testified that he did not find any accumulations of combustible materials during his preshift examination. (Tr. 517.)

            Based upon the combustible accumulations he believed existed, as well as the failure of any notation being made of them in any examination book, Young issued a second section 104(d) order for a violation of the preshift examination requirements of section 75.360(b)(3).

Findings of Fact and Conclusions of Law

            The Commission has held that under section 75.400, “an accumulation exists where the quantity of combustible materials is such that, in the judgment of the authorized representative of the Secretary, it likely could cause or propagate a fire or explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2807-08 (Oct. 1980). The judgment of an MSHA inspector as to whether a violation existed is subject to review under “an 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 Co., 12 FMSHRC 965, 968 (May 1990), aff'd, 951 F.2d 292 (10th Cir. 1991) (citation omitted).

            In addition to these legal standards is the more general rule that the Mine Act imposes on the Secretary the burden of proving an alleged violation by a preponderance of the credible evidence. In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff'd sub nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998) (quoting Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). The preponderance standard means proof that something is more likely so than not so. In re: Contests of Respirable Dust, 17 FMSHRC at 1838.

            Here, I find the evidence in equipoise. On the one hand, the Secretary offered the testimony of Inspector Young that the floor of the 4 West Mine in the area he cited consisted largely of “crushed up fine coal,” with only a small amount of rock in it. (Tr. 71-72.) In fact, there is no dispute that some coal was present in the floor on the day Young conducted his inspection. (Tr. 435, 437, 581.) Moreover, the Secretary established that a potential ignition source was present – the spliced cable. (Tr. 145-149, 287-288.) Had the hearing ended at the close of the Secretary’s case in chief, clearly, I could easily have concluded that a violation of section 75.400 existed.

            However, the Secretary’s “she said” was followed by Dana Mining’s equally convincing “he said” which cast considerable doubt on the Secretary’s allegations. The operator introduced credible, corroborated, and largely uncontradicted evidence that most of the material Young found was shale rock and fireclay. (Tr. 429-430, 535-536, 581, 593.) I find the operator’s evidence particularly compelling because of the specificity with which Greg Miller, Justin Miller, and James Moreau described the constituents of the mine floor. For example, Greg Miller described how “[s]hale rock will have - - you will see a lot of triangle shapes,” then proceeded to point out an example of shale in one of the Secretary’s photographs. (Tr. 452.) He also highlighted the “soft” nature of the floor. (Tr. 434.) Justin Miller explained how the floor of the cited area became so pulverized, testifying to the brittle nature of shale, and how it is broken up by equipment passing over it. (Tr. 581, 593.)

            I am also persuaded by the operator’s assertions that before Young’s inspection, the cited area had been cleaned and dusted several times, and that at the time of the inspection, the area was “well dusted, well cleaned,” and free of any spillage. (Tr. 318-328.)

            On rebuttal, the Secretary had every opportunity to contradict the operator’s evidence. But Young merely stated that no one told him that the floor of the cited area consisted mainly of shale and fireclay. (Tr. 622.) I find that Young’s rebuttal testimony was singularly inadequate for the Secretary to carry her burden of proof in light of the case put on by the operator. I note that the Secretary did not introduce any evidence, testimonial or otherwise, explaining why Inspector Young determined that what he found were combustible accumulations of coal. On rebuttal, the Secretary needed to do more than simply stand by Young’s belief that what he cited were combustible accumulations, and that no one told him otherwise – even though the record contains testimony that Dana Mining personnel expressed their incredulity when informed about the orders Young issued. (Tr. 328, 331-332, 348, 538-539.) The effect of the Secretary’s choice to stand primarily on her case in chief and forego any attempt to rebut the operator’s evidence is that she has not met her burden to prove her case – to prove that her allegations were more likely so than not so. In re: Contests of Respirable Dust, 17 FMSHRC at 1838.

            I am therefore compelled to conclude that the Secretary has not provided enough evidence to support the violation of section 75.400 as alleged. Because she has not proven that the hazard alleged existed, I am also compelled to conclude that the Secretary has not met her burden of proving that the cited preshift examination was inadequate.

Order

            Consistent with this Decision, IT IS ORDERED that Order Nos. 8007789 and 8007790 are VACATED.

            The motion for approval of settlement is GRANTED.

            IT IS FURTHER ORDERED that Order No. 8007570 be MODIFIED from a section 104(d)(1) order to a section 104(a) citation, and from high to moderate negligence, and that Dana Mining Company of Pennsylvania, LLC pay a penalty of $2,000.00 within 30 days of this order. Upon receipt of payment, this case is DISMISSED.

                                                                        /s/

                                                                        Robert J. Lesnick

                                                                        Chief Administrative Law Judge

Distribution (Certified): 

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

Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, 500 Lee Street, East, Suite 800, P.O. Box 3394, Charleston, WV 25333-3394 

Ronald M. Miller, Dana Mining Company of Pennsylvania, LLC, 308 Dents Run Road, Morgantown, WV 26501