FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20001

March 5, 2010

DECISION

Appearances:John Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, on behalf of the Secretary of Labor; Randy Rothermel Sr., President, RS&W Coal Company, Inc., Klingerstown, Pennsylvania, pro se, on behalf of the Contestant.

Before:Judge Paez

These cases are before me on a request for expedited hearing by RS&W Coal Company, Inc. (“RS&W”), to contest Citation No. 7000438 and Withdrawal Order No. 7000439, both issued on January 19, 2010, pursuant to sections 104(a) and 104(b), respectively, of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”). The general issues before me are whether RS&W violated 30 C.F.R. § 75.370(a)(1) for operating a mine without an approved ventilation plan, as alleged by the Secretary; and whether the Secretary properly issued a withdrawal order under section 104(b) of the Act for RS&W’s alleged failure to abate the citation.

A hearing was held on February 18, 2010 in Harrisburg, Pennsylvania, pursuant to section 105 of the Act, 30 U.S.C. § 815. At the hearing, the parties stipulated that RS&W is subject to the jurisdiction of the Act, the RS&W Drift mine is owned and operated by RS&W, and the Commission judge has jurisdiction pursuant to section 105 of the Act, and further stipulated to the authenticity of their exhibits but not to the relevance or truth of the matters asserted therein. (Joint Ex. 1.) At the conclusion of the hearing, the parties were permitted to submit written closing arguments and additional documentation.

For the reasons stated below, Citation No. 7000438 is affirmed, except that the operator’s negligence is reduced to “low”, and Withdrawal Order No. 7000439 is accordingly affirmed.

Findings of Fact

            RS&W operates the RS&W Drift anthracite mine located near Klingerstown, Pennsylvania. The mine is not mechanized. (Tr. 21-22.) The operator engages in conventional mining where coal is loaded by hand and gravity loaded, and explosives are used to blast the rock to reach the coal. (Tr. 142, 170.)

            Citation No. 7000438 alleges a violation of 30 C.F.R. § 75.370(a)(1), which requires that operators develop and follow a ventilation plan approved by the MSHA district manager, which consists of a written document and a mine map. (Ex. G-11.) RS&W’s written plan generally remains the same, but an accompanying map – reflecting changes in the working areas and mined out areas – is resubmitted every year on the plan anniversary date, which for RS&W happens to be in November, and the map becomes part of the ventilation plan if approved by the district manager. (Exs. G-4, G-5, C-1; Tr. 24-25.)

Citation No. 7000438, issued on January 19, 2010 by Gregory Mehalchick, an authorized representative of the Secretary (Tr. 18), alleges a non-“significant and substantial” violation of the standard at 30 C.F.R. § 75.370(a)(1), and charges as follows:

The operator is working without a ventilation plan approved by the district manager. The ventilation plan shall consist of two parts, one part being the ventilation map with information prescribed in Sec. 75.372. The operator submitted a mine ventilation map to the District Office on November 16, 2009. Upon review by the district, deficiencies were found on the map and the map was returned to the operator with a letter of non-approval, listing the deficiencies that had to be corrected. The operator, Randy Rothermel, met with this inspector in the District’s Pottsville Field Office on December 29, 2009 to address all deficiencies. During this meeting, the operator insisted that a permanent ventilation control, that being an evaluation point (EP), was going to be removed from the map and that one deficiency, that being the airflow direction in an area of the mine, was not going to be added to the map. The operator was informed at

 this meeting that the mine ventilation map would not be approved by the district if these two edits were made. However, the operator removed the EP and did not add the airflow directions. The operator was called twice since this December meeting, January 4, 2010 and January 6, 2010 and was left messages regarding the necessity to meet again and resolve the two items. A return call was not received.

(Ex. G-11.) Mehalchick determined the operator’s negligence to be high. Section 75.370(a)(1) provides in relevant part:

The operator shall develop and follow a ventilation plan approved by the district manager. The plan shall be designed to control methane and respirable dust and shall be suitable to the conditions and mining system at the mine. The ventilation plan shall consist of two parts, the plan content as prescribed in § 75.371 and the ventilation map with information as prescribed in § 75.372. Only that portion of the map which contains information required under § 75.371 will be subject to approval by the district manager.

30 C.F.R. § 75.370(a)(1).

The parties agree, and the evidence introduced at hearing establishes, that the May 13, 2009 prior-approved ventilation map – which is part of the overall ventilation plan in conjunction with the written plan (Ex. G-5) – contained an evaluation point (“EP”) near the Skidmore section of the mine (“Skidmore EP”), as well as directional arrows indicating airflow in an inby direction along the Skidmore section. (Ex. C-1.) As part of the process, RS&W submitted its ventilation map for annual review on November 11, 2009, which was received by MSHA on November 16, 2009. (Exs. G-3, G-4.) This submission included the Skidmore EP but did not include arrows indicating airflow along the Skidmore section. (Ex. G-4.) MSHA issued a deficiency letter on December 9, 2009, which included, among other things, approval of the Skidmore EP and MSHA’s request to add directional airflow arrows on the mine map along the Skidmore section. (Ex. G-6.) Randy Rothermel Sr. testified that he wrote to MSHA District Manager John Kuzar on December 17, 2009 requesting a meeting on the ventilation plan. (Tr. 181; Ex. C-3.) Randy Rothermel Sr. and MSHA District Mining Engineer Greg Mehalchick, who was Acting Supervisory Specialist at that time, met at the MSHA Pottsville field office on December 29, 2009 to resolve the outstanding issues on the proposed ventilation map. (Tr. 15-16, 33.)

At the December 29, 2009 meeting, Rothermel Sr. deleted the Skidmore EP from the map and would not add the airflow directional arrows along the Skidmore section of the mine, which had been identified as a deficiency. (Exs. G-6, G-8.) During the meeting, Mehalchick told Rothermel Sr. that the ventilation plan would in all probability not be approved by the district manager with those two items missing, thus compelling Mehalchick to return over these same issues. (Tr. 85-86, 222-23.) Thereafter, in early January, Mehalchick left a voice mail message for Rothermel Sr. informing him that the ventilation plan would not be approved without those two changes. (Tr. 86.) Rothermel Sr. called back Mehalchick the next day and left a message asking to have a meeting with the district manager. (Tr. 86-87, 194-96.) Mehalchick testified at the hearing that he returned that call, though he could not state when, and left another voice mail message indicating that Rothermel Sr. would have to arrange a meeting in the MSHA Wilkes-Barre district office if he wanted to meet about resolving the ventilation plan. (Tr. 87.) The parties exchanged no further communications until January 19, 2010.

On January 19, 2010, Mehalchick went to the RS&W Drift mine specifically to determine if the ventilation plan was in compliance. He met with Foreman Steve Rothermel to notify him that the two missing items – the Skidmore EP and the directional airflow arrows along the Skidmore section – on the ventilation map were grounds for a citation. Steve Rothermel contacted Randy Rothermel Sr. who told Mehalchick by telephone that RS&W would not add those two items to the ventilation map, even when warned the mine would be subject to a section 104(b) withdrawal order. Mehalchick then issued Citation No. 7000438 and Withdrawal Order No. 7000439.

General Legal Principles - Standard of Review

            The law applicable to plan disputes was recently explained by the Commission in Twentymile Coal Company, where the Commission stated as follows:

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 Coal [Res., LP], 29 FMSHRC [956,] 965 [(Dec. 2007)].

Twentymile Coal Company, 30 FMSHRC 736, 747-48 (Aug. 2008). 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 the event a plan provision is challenged by an operator, the Commission has held that the Secretary carries the burden of proving the disputed provision is “suitable” to the particular mine in question. Peabody II, 18 FMSHRC at 690 (applying the ordinary meaning of the word “suitable”).

Further Factual Findings and Conclusions of Law

This case involves the removal of the very same evaluation point for the Skidmore area of the mine that RS&W itself included in its November 11, 2009 ventilation map and had submitted to MSHA for approval. However, over a month later at the December 29, 2009 meeting between Randy Rothermel Sr. and Mehalchick, RS&W proposed eliminating this EP for the Skidmore area of the mine, an area that had been worked out and which was some 2400 feet from the current working face. (Ex. G-4; Tr. 56, 78, 145.) In addition, RS&W would not indicate with arrows the airflow direction on the Skidmore section of the map. These two issues are what led to the dispute over approval of the ventilation plan resulting in MSHA’s issuance of the citation and withdrawal order.

1.         Good Faith Negotiations

            Denying an operator’s proposed ventilation plan must be done in writing from the district manager with an opportunity for the operator to discuss the denial, as noted in 30 C.F.R 75.370(c). Technically, MSHA did provide the written denial of the operator’s November 11 submission in its December 9, 2009 letter, along with an opportunity to discuss those deficiencies on December 29, 2009. I do not find RS&W’s suggested change to eliminate the Skidmore EP or its continued refusal to place airflow arrows bad faith negotiating. The testimony by RS&W’s witnesses provided a rationale for the positions the operator took on these two issues, and testimony from Rothermel Sr. and Mehalchick himself indicates that Rothermel Sr. did communicate his rationale to Mehalchick at that time. (Tr. 38-39, 50, 183-85, 190, 193.) Nevertheless, Mehalchick informed Rothermel Sr. at the December 29 meeting of the unlikelihood that this change would be accepted, as the December 9 deficiency letter had required the Skidmore EP to be in the plan and stated the plan would not be approved with the absence of the airflow arrows. (Tr. 85-86.) At this point, disapproval by the MSHA district manager of RS&W’s ventilation plan was inevitable, and for all intents and purposes the parties were at an impasse. I find that both sides had given notice of their positions and had adequate negotiations. Thus, I conclude that the parties had met their duty to negotiate in good faith and had done so over a reasonable period of time.