The test report, entitled “Hazards of Radio Frequency (RF) Communication Equipment Operating Near Blasting Circuits at Anthracite Mines,” was issued on August 27, 2009. The results of the test generally established that the equipment could safely be used in typical anthracite mining conditions.

None of the recorded measurements exceeded the Institute of Makers of Explosives (IME) Addendum to SLP-20 “Acceptable Field Strength for a One Ohm Electric Detonator” chart under a variety of conditions, nor did any induced currents, calculated from the recorded measurements, exceed 50mA. The highest readings of either measuring method were 11.76 V/m . . . and . . . 23mA . . . . These maximum numbers are below the IME acceptable limit of 20 V/m at 900 MHz and the MSHA maximum allowable current of 50mA (ref. 30CFR section 75.1316).

Ex. P-5 at 5.

            Following the test, it was agreed that testing of the Matrix system was not needed, because its components operated at substantially lower power levels. Tr. 62, 74, 159-60. The highest powered component of the L-3 system is the node, with a power output of 5000mW. In contrast, the highest powered component of the Matrix system is the 2-way text communicator, with a power output of 15 mW. Ex. P-24.

            On August 28, Kuzar forwarded a copy of the test report to RS&W, advised that the testing established that the L-3 system components could safely be operated in anthracite mines, and that RS&W was required to submit a revised ERP that provided for updated C&T capabilities. On September 10, RS&W submitted an ERP revision addressing post-accident communications and tracking. Ex. P-8. The ERP specified that no totally wireless communication or electronic tracking system had yet been developed, that the currently approved wireless C&T systems emit RFs which could inadvertently detonate explosives in the mine, and that none of the currently approved wireless C&T systems had been tested in an anthracite mine, most of which are configured differently than bituminous coal mines. Ex. P-8. RS&W proposed, as an alternative, enhancements to its existing hardwired intercom system, pledging to install additional intercoms at 100 foot intervals along the gangway, and a permissible phone system at 100 foot intervals along the secondary escapeway. RS&W also sought to continue use of its existing magnetic tracking board, which reflects miners’ locations with color-specific markers on a copy of the mine map, as called in on the intercom system. Ex. P-8.

            On October 5, 2009, Kuzar sent RS&W written notification that its current C&T provisions did not provide the level of protection mandated under the Act, and therefore, he would not approve the revised ERP. Ex. P-9. Kuzar acknowledged that although totally wireless communication and/or electronic tracking systems had yet to be developed, there were several agency-approved “communication systems that closely approximate the degree of functional utility and safety protection provided by a wireless two-way communications system . . . . Thus, operators may not rely on traditional, hard-wired intercom systems in lieu of more advanced systems that provide greater miner protection . . . ” Ex. P-9. Kuzar went on to point out that MSHA believed that updated C&T systems could be used safely in anthracite mines, provided that sufficient separation distances were specified. He ordered RS&W to either specifically identify limitations with particular communication and tracking systems that would prohibit use in its mine, or update its ERP to include such systems no later than October 28, 2009.

            On October 27, 2009, RS&W’s President, Randy Rothermel, responded to Kuzar’s October 5 letter stating that he was unable to find a system safe enough for its mine, and requested that Kuzar issue a citation for RS&W’s failure to provide approved C&T systems. Ex. P-10. Consequently, MSHA issued Citation No. 7000435 on November 6, 2009, alleging a violation of Section 316(b) of the Act for RS&W’s failure to develop, adopt, and submit an updated ERP that provided for wireless communications and electronic tracking systems and failed to state sufficient reasons for not adopting such systems. Ex. P-11. On November 10, 2009, pursuant to the Act, and Commission Procedural Rule 24, 29 C.F.R. § 2700.24, the Secretary referred the plan content dispute to the Commission. The referral prays that the citation be affirmed and that Respondent be ordered to submit a compliant revised ERP within 10 days of issuance of an order affirming the citation. Respondent prays that the citation be vacated and that the Secretary be directed to approve alternate C&T systems until such time that wireless C&T systems have been thoroughly tested and deemed safe for use in anthracite coal mines with a “100% confidence level.” Resp. St. for Hearing Req. at 1.

Conclusions of Law - Further Factual Findings

The Applicable Law

            The framework for resolution of Emergency Response Plan Disputes under the MINER Act was established by the Commission in its initial decision involving MSHA’s refusal to approve an ERP provision. Emerald Coal Res. LP, 29 FMSHRC 956, 965 (Dec. 2007); see also Twentymile Coal Co., 30 FMSHRC 736, 747 (Aug. 2008).

            One of the cornerstone principles with regard to plan formulation under the Mine Act is that MSHA and the affected operator must negotiate in good faith for a reasonable period concerning a disputed plan provision. Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985). The Commission has noted, “Two key elements of good faith consultation are giving notice of a party's position and adequate discussion of disputed provisions.” C.W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 1996).

While the contents of a plan are based on consultations between the Secretary and the operators, the Commission has recognized that “the Secretary is [not] in the same position as a private party conducting arm's length negotiations in a free market.” Id. at 1746. As one court has noted, “the Secretary must independently exercise [her] judgment with respect to the content of … plans in connection with [her] final approval of the plan.” UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate Subcom. on Labor, Com. on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978). Ultimately, the plan approval process involves an element of judgment on the Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692 (May 1996) (“Peabody II”). “[A]bsent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the inclusion of specific provisions as a condition of the plan's approval.” C.W. Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of approval of water impoundment plan was not arbitrary or capricious where MSHA's conduct throughout the process was reasonable).

Emerald, 29 FMSHRC at 966.

            The Commission went on to hold that the appropriate standard of review in ERP dispute proceedings is whether the Secretary’s refusal to approve a proposed ERP provision was arbitrary and capricious.

The standard involves a review of the record to determine whether the Secretary properly exercised her discretion and judgment in the plan approval process. In this regard, the Commission's decision in Monterey Coal is instructive. In affirming a citation for failing to supply data relating to impoundment pond construction, the Commission applied the “arbitrary and capricious” standard in reviewing MSHA's withdrawal of its approval of an impoundment plan:

We cannot conclude that MSHA's use of the Table [of recommended minimum design storm criteria] or its act of withdrawing the plan approval was arbitrary and capricious…. [P]rior to issuance of the citation Monterey was given unequivocal notice of and a reasonable opportunity to comply with MSHA's interpretation and use of the Table. In sum, we find the course of action taken by MSHA to have been a reasonable approach, and not arbitrary or capricious.

Monterey Coal, 5 FMSHRC at 1019 (citation and footnote omitted); accord Peabody II, 18 FMSHRC at 692 n.6 (in reviewing the Secretary's refusal to approve a ventilation plan provision, Commission noted that the plan approval process involves an element of judgment on the part of the Secretary that is reviewed under an arbitrary and capricious standard). This standard appropriately respects the Secretary's judgment while allowing review for abuse of discretion, errors of law, and review of the record under the substantial evidence test. See Energy West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (“abuse of discretion” has been found when “there is no evidence to support the decision or if the decision is based on an improper understanding of the law”) (citations omitted). We therefore affirm the judge's application of the arbitrary and capricious standard to the plan review. (footnote omited).

Emerald, 29 FMSHRC at 966.

Whether MSHA’s Decision was Arbitrary, Capricious, or an Abuse of Discretion

            As evidenced by the numerous communications from MSHA’s district manager, RS&W was repeatedly requested to provide information regarding its evaluation of specific wireless C&T systems and problems or difficulties such systems would pose if operated in its mine. In response to RS&W’s initial cursory “Addendum” to its ERP, Kuzar promptly advised on July 1, 2009, that because virtually no “essential details” had been provided, evaluation of the plan was impossible, and provided copies of PPL P09-V-01 and a list of Questions and Answers specific to the wireless C&T system ERP requirement. That letter advised RS&W that if an updated ERP was not recieved by July 16, 2009, a citation would be issued. However, no citation was issued. Rather, in conjunction with representatives of an association of anthracite miners and the State of Pennsylvania, MSHA conducted the July 21 test of the approved L-3 wireless C&T system in the Alfred Brown Anthracite Mine. The testing established that the system could be safely operated in anthracite mines, provided that separation distances could be maintained and administrative controls could be developed to address situations where miners could not maintain such separations. The test report, which was issued on August 27, was forwarded to RS&W the following day. The forwarding letter noted that the requirement for submission of a revised ERP had been delayed to allow completion of the testing, and instructed that an updated ERP must be submitted no later than September 11, 2009. Ex. P-6. On September 4, Kuzar forwarded a second copy of PPL P09-V-01 and an ERP checklist to assist RS&W in developing its plan.

            On September 11, RS&W submitted updated ERP provisions for post-accident communications and tracking, however, no wireless C&T system was included. RS&W asserted that no “safe distance tables” could be accurately proposed by MSHA or the manufacturers, and that installation of the systems would be impossible due to the “small narrow entries in our mine,” which would threaten the safety of miners by subjecting them to premature detonation of explosives. Alternative plans were presented that enhanced existing hard-wired C&T systems. On October 5, Kuzar responded, advising RS&W that its submission did not provide the level of protection mandated by the Act, and could not be approved. Each of RS&W’s asserted concerns was addressed. RS&W was referred to lists of MSHA-approved semi-wireless C&T systems that were commercially available. The test results were cited as establishing the safety of MSHA-approved systems, provided that sufficient separation distances were maintained “when tracking/communication components are operating (i.e., turned on or active) in the proximity of explosives and detonators,” and proper procedures were established for situations when required separation distances must be breached to work with explosives.

            Kuzar specifically requested that, to the extent that RS&W continued to contend that it was not feasible to safely conduct mining operations with any available wireless C&T system, it needed to provide the following information:

(1) specifically identify MSHA approved systems that you have considered;

(2) specify the separation distances that are needed to safely use such systems in the proximity of explosive devices;

(3) detail each of the anthracite mining tasks that cannot be performed given these separation distances; and

(4) explain why procedures cannot be adopted (e.g., leaving the tracking/communication component at the minimum separation distance) that would allow miners to safely perform these tasks.

Ex. P-9 at 3.

            With respect to RS&W’s protest that no testing had been done to determine whether approved systems would work in anthracite mines that “twist/turn and pitch upward towards the surface and contain severe undulations within the coal seams,” Kuzar requested that RS&W specify limitations that were determined to exist with respect to existing systems in light of RS&W’s particular mine features and/or conditions. Ex. P-9 at 4.   On October 27, RS&W responded by requesting that a citation be issued, asserting that no system could be found that was “safe enough” for the RS&W mine. Ex. P-10.

            It is apparent, from the above, that MSHA fulfilled its obligation to negotiate in good faith over the disputed ERP provisions. It clearly stated its position on RS&W’s submissions, provided or referred to extensive relevant materials, and requested specific information to evaluate RS&W’s claim that no approved wireless C&T system could safely function in its mine. MSHA attempted to engage in a dialogue with RS&W, similar to the dialogue that it apparently was engaged in with other anthracite miners as of the time of the hearing. However, it was rebuffed by RS&W, which clearly indicated that it would not include post-accident wireless C&T systems in its ERP.

            In contrast, RS&W provided only cursory information about its safety concerns, and did not describe any specific problems posed for its operations by the subject C&T systems. Nor did it attempt to explain how the testing that had been done in the Alfred Brown mine could not be related to its mine. MSHA no doubt anticipated some of RS&W’s objections because it had considerable knowledge of RS&W’s operations and was engaged in discussions with other anthracite miners. The task of attempting to maintain a crucial safe separation distance when traveling through a four, five or even a 10-foot wide entry that a blasting circuit also runs through poses obvious difficulties. Such difficulties might not be insurmountable, however, if proper administrative controls could be developed that took into account that C&T equipment may not emit RF energy when not activated, that separation from blasting circuits need be maintained only when they are wired to detonators, and how such factors interfaced with RS&W’s specific blasting procedures. Only by making a good faith effort to design wireless C&T systems, could it be demonstrated whether or not such systems could be used in the mine consistent with the Act’s mandate. RS&W’s intimate knowledge of its operations was essential to development of wireless C&T ERP provisions, and it was RS&W’s statutory obligation to do so, or to “set forth within the plan the reasons such provisions can not be adopted.”

            RS&W’s concerns about the hazards posed by introducing RF sources into the mine’s blasting environment were, and are, understandable and well-founded. Cindy Rothermel, RS&W’s representative and wife of its president, represented at the hearing, that her father was killed by a premature detonation likely due to stray current in a blasting circuit. RS&W’s concerns were understandably heightened by the manner in which some of the technical information has been stated. A “no-fire” level, expressed as a 0.1% chance of firing, with a confidence level of 95%, suggests that there is a one in one thousand chance of a detonation, as RS&W appears to have understood it. The fact that the actual statistical probability of firing is several orders of magnitude lower, does not completely dispel that understanding. Moreover, statements in authoritative technical literature, such as SLP-20, to the effect that the “probability of an accidental firing from RF energy is practically nil,” or “extremely remote,” could easily not be very reassuring to a miner who has to connect detonator leg wires in close proximity to high explosives.

            The fact that negotiations concerning C&T provisions apparently continue with other anthracite miners, is evidence that MSHA is sensitive to such concerns. Garcia acknowledged that such concerns were legitimate, and stated that MSHA was intent on working with operators of anthracite mines to satisfy their concerns. He explained that, in requesting specific information from operators, as in Kuzar’s October 5 letter, MSHA was looking for explanations of tasks that could not be performed because of the C&T equipment, and why procedures could not be adopted to address such problems. “If they were uncomfortable with the system . . . are there other administrative controls that they could possibly take to assure that it’s – instead of 100 percent sure, it would be 150 percent [sure that] nothing could happen?” Tr. 64. He later added, “if they’re reluctant to use the system, they felt that they were in danger because of these radio frequency waves, I’m sure there’s something that could be worked out that would be appropriate – justified for both sides.” Tr. 85-86. The give and take process described by Garcia never occurred, because RS&W did not fulfill its obligation under the Act to design systems for its mine, or submit a detailed statement of reasons why such systems could not be used, as Kuzar had requested.

            MSHA was left with virtually no choice but to issue the citation that RS&W invited. It believed that wireless systems provide a more effective means of post-accident communication and tracking than conventional hardwired systems, and that Congress’ mandate for such systems was well-directed. RS&W apparently has no quarrel with that assessment. Head agreed that “radios are the preferred means of communication if they can be used safely.” Tr. 261. MSHA’s testing in an anthracite drift mine had demonstrated that approved wireless C&T systems could be operated in that environment within safety parameters recognized within the blasting community and MSHA’s own long-standing safety standards, provided that appropriate safe separation distances were maintained and appropriate administrative controls could be developed and implemented. RS&W did not submit sufficient reasons why such systems could not be used in its mine.

            RS&W argues that the MINER Act requires that approved ERPs must “afford miners a level of safety consistent with existing standards, including standards mandated by law and regulation,” and that requiring the introduction of RF sources into its mine would violate that provision. 30 U.S.C. 376(b)(2)(C)(ii). There is no question that requiring RF sources in its mine would create hazards that did not exist under RS&W’s currently approved plan. MSHA’s October 23, 2009, PPL P09-V-13, confirms that, “Communications and electronic tracking systems are sources of RF energy that can interfere with blasting circuits,” and that “RF fields from tags and other electronic devices may or may not pose a threat to the detonator and its circuit.” Ex. P-19 at 2. However, those hazards must be balanced against improvements to miner safety provided by enhanced post-accident communication and tracking systems. That critical evaluation can be made only by considering the details of ERP provisions specifying precisely how such systems would be used in RS&W’s mine.

            The Secretary argues that it has been conclusively demonstrated that currently approved systems can be used safely in RS&W’s mine. Whether or not the additional hazards posed by those systems’ RF components can be maintained within acceptable limits is only one factor to be considered. One of the administrative controls recognized as necessary to protect blasting circuits from RF sources is to require that the devices be deactivated and/or removed a safe distance away. Development of specific plan provisions would clarify how often such devices would have to be “shelved,” and could identify other procedures necessary to accommodate mining operations that would detract from the effectiveness of such systems. Another factor that could impact the systems’ effectiveness would be any measures necessary to minimize the effect of inadvertent non-compliance with administrative controls. Head was very concerned about the management issues associated with trying to use such systems safely, and observed that if, because of safe separation or other requirements, miners were disconnected from the system more often than not – “what’s to be gained.” Tr. 261-62. Another critical factor in the balancing exercise is the consideration that the hazards posed to miners by the introduction of RF sources will exist on a day-to-day basis, whereas, the enhancements to safety provided by wireless C&T systems would be realized only following an accident.

            I find that the Secretary has carried her burden of proving that MSHA’s refusal to approve RS&W’s revised ERP provisions addressing updated C&T systems, which did not include such systems in its plan or state sufficient reasons why such provisions could not be included, was not arbitrary and capricious.

ORDER

            I find that RS&W violated the MINER Act as alleged in Citation No. 7000435. Respondent is directed to submit to MSHA on or before January 15, 2010, proposed revisions to its Emergency Response Plan that comply with the MINER Act’s mandate. Included in its submission must be provisions for MSHA-approved wireless communications and tracking systems for use in its mine, complying with all MSHA instructions on the contents of such provisions, including separation distances for system components and specific administrative controls to assure safe operation of the systems. RS&W may also include reasons why such provisions can not be adopted, and propose alternative means of compliance. RS&W is further directed to engage in good faith negotiations with MSHA over the content of any disputed plan provisions.

            The time specified for submission recognizes that development of comprehensive ERP provisions will not be a simple task, and that Respondent may need to secure from manufacturers any needed justifications for separation distances that are not specified in MSHA approvals. Ongoing discussions between MSHA and anthracite coal mine operators, hopefully, including RS&W, may result in reevaluation by either or both parties of the hazards posed by the introduction of RF devices in such mines and/or the enhancements to safety provided by wireless systems over alternative measures.

Michael E. Zielinski

Senior Administrative Law Judge

Distribution (by electronic and first class mail):

Stephen Turow, Esq., Lynne Bowman Dunbar, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor, Arlington, VA 22209-2296

Cindy Rothermel, Randy Rothermel, R S & W Coal Company, Inc., 207 Creek Pond Road, Klingerstown, PA. 17941