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[DOCID: f:wv9839x.wais]
EAGLE ENERGY INCORPORATED
October 4, 2001
WEVA 98-39
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 4, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-39
Petitioner : A. C. No. 46-07711-03660
v. :
:
EAGLE ENERGY INCORPORATED, :
Respondent : Mine No. 1
DECISION ON REMAND
Before: Judge Feldman
The initial decision in this matter held that the violative
water accumulations in Eagle Energy Inc.'s (Eagle Energy's) 10
Left escapeway of its Mine No. 1 cited in Citation No. 7163242
were not attributable to an unwarrantable failure. 21 FMSHRC
1235 (November 1999) (ALJ). While the initial decision determined
Eagle Energy's degree of negligence was high, it was determined
that Eagle Energy's conduct did not rise to the level of
unjustifiable or inexcusable conduct necessary for the
Secretary to prevail on the unwarrantable failure issue. Id. at
1249 n.5, 1251 n.7 (November 1999) (ALJ). On August 30, 2001,
the Commission vacated the negative unwarrantable failure
determination and the civil penalty assessment, and remanded for
further analysis consistent with its opinion. 23 FMSHRC 829
(August 2001).
For the reasons discussed herein, I have determined that
Eagle Energy's violation of 30 C.F.R. � 75.380(d)(1) was
attributable to its unwarrantable failure.[1] However, given
the Secretary's failure to prove the special findings made in
connection with the alleged duration of the subject violation,
there is an inadequate basis for increasing the civil penalty
above the $2,500.00 assessed in the initial decision. 21 FMSHRC
at 1251.
**FOOTNOTES**
[1]: Section 75.380(d)(1) provides, in pertinent part:
"(d) each escapeway shall be -- (1) maintained in a safe
condition to always assure passage of anyone, including
disabled persons . . . ." 30 C.F.R. � 75.380(d)(1).
I. Background
Eagle Energy's Mine No. 1 is an extremely wet mine with
recurring water problems. Water flows down to the mine from the
surface and seeps in from an adjacent abandoned mine which is
inundated with water. 23 FMSHRC at 830. There are over 100
pumps at locations throughout the mine where water chronically
accumulates. Id. Approximately 5 million gallons of water are
pumped out of the No. 1 Mine every day. Id. In areas of chronic
accumulation, water can accumulate at depths of up to
approximately eight inches per day. 21 FMSHRC at 1245. In short,
areas of the mine floor are always wet, frequently with
accumulations of several inches of water, because of slopes or
irregularities in the mine floor, and, as discussed below,
because of the cyclical nature of the pumping cycle.
While the 10 Left section was in production, water was
removed from the escapeway by pumping it on to the belt line
through discharge hoses. 23 FMSHRC at 830. The water was
absorbed by the coal on the belt line and carried to the surface.
Id. On July 9, 1997, Eagle Energy suspended production in the 10
Left section in anticipation of assembling a longwall that was to
be relocated from another area of the mine. Id. Converting
the 10 Left section to longwall operations required dismantling
the belt line in order to move it from the No. 2 to the No. 1
entry. Id. In so doing, Eagle Energy lost its ability to
discharge water on the belt line. Id. Consequently, on July
10, 1997, at the suggestion of Mine Safety and Health
Administration (MSHA) Inspector Albert "Benny" Clark, Eagle
Energy converted the section's incoming fresh water line,
ordinarily used for dust suppression during mining operations, to
a discharge line through which water could be pumped from the
escapeway. Id. at 831.
At 4:00 p.m. on August 31, 1997, Eagle Energy converted the
discharge line back to an incoming fresh water line to facilitate
the anticipated longwall operations. Id. at 832-33. Eagle Energy
anticipated completing the belt line installation on the morning
of September 1, 1997. Id. at 832. However, the belt pulled apart
when it was started on the morning of September 1. Id. Initial
attempts to repair the belt were unsuccessful and the belt could
not be successfully repaired until approximately 1:30 p.m. on
September 2.[2] These events occurred during Labor Day weekend
at a time when Eagle Energy's mine was short-staffed with only
management personnel. Id. 831.
In its remand, the Commission concluded my disposition of
the unwarrantable failure question placed too much emphasis on
why Eagle Energy was unsuccessful in preventing hazardous water
accumulations. 23 FMSHRC 837 n.8. Rather, the Commission stated
the proper inquiry was whether ". . . Eagle Energy's failure to
have an alternative method of discharging water readily available
in case of problems in assembling the belt . . . ." constituted
an unwarrantable failure. Id. In this regard, the Commission
stated Eagle Energy's elimination of all means of pumping from
the afternoon of August 31 to the afternoon of September 2 was,
as a matter of law, an aggravating circumstance for unwarrantbale
failure purposes. Id. at 837. In addition, the Commission
determined that Eagle Energy's conduct was "highly negligent."
Id. at 839.
II. Unwarrantable Failure
The Commission's determination that Eagle Energy's
underlying conduct was aggravated in nature is the law of the
case. It is well settled that unwarrantable conduct is
aggravated conduct. Emery Mining Corp., 9 FMSHRC 1997, 2001,
2003-04(Dec. 1987); Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (Feb. 1991); Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 136 (7TH Cir. 1995) (approving Commission's unwarrantable
failure test). Accordingly, in view of the Commission's
determination that the underlying conduct that gave rise to this
case is aggravated, as well as the Commission's finding
that Eagle Energy was highly negligent in allowing the water
accumulations to occur, I am constrained to conclude that
Eagle Energy's violation of section 75.380(d)(1) was attributable
to its unwarrantable failure. 23 FMSHRC at 839 [citing Eastern
Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991) (holding
that highly negligent conduct on its face suggests an
unwarrantable failure)]. The conclusion that Eagle Energy's
conduct was unwarrantable also is consistent with the Commission's
findings that Eagle Energy's previous history of violations,
and its failure to run a discharge hose to the Mudlick
Mains, were aggravating factors. Id. at 837, 839.
The Commission directed that I reconsider Eagle Energy's
history of previous violations. Eagle Energy received seven
citations for water accumulations in the 10 Left Escapeway
between May and August 1997. Id. at 838. The No. 1 Mine is an
extremely wet mine. As discussed infra, since a period of water
accumulations must occur before the pumping cycle can resume,
it is apparent that, at the discretion of MSHA inspectors, Eagle
Energy can face section 75.380(d)(1) liability on a daily basis.
It is in this context that Eagle Energy's conduct was not
unwarrantable per se solely because of its history of prior
violations. 21 FMSHRC at 1249; Consolidation Coal Co., 22 FMSHRC
340, 353 (Mar. 2000), appeal docketed, No. 01-1228 (4th Cir.
Feb. 21, 2001). (factors relevant to the unwarrantable failure
issue must be viewed in the context of the factual circumstances
in a particular case). With respect to notice, given the daily
pumping of approximately 5 million gallons of water, irrespective
of its history of previous violations, Eagle Energy was on notice
that diligent compliance efforts were required.
The Commission also directed that I reconsider Eagle
Energy's failure to run a 1000 feet long discharge line to the
Mudlick Mains. As discussed infra, although the discharge
waterline was converted to fresh water on August 31, pumping
was not supposed to resume until September 1. The Secretary
has not shown that the time and man hours necessary to run and
connect discharge lines from each pump into a new Mudlick Mains
discharge hose, given the holiday weekend shortage of workers,
was significantly less than the time it took to fix the belt
after it initially broke down on September 1. Moreover,
the Mudlick Mains discharge hose was not suggested by MSHA as
a solution to the cited water accumulations of September 2, 1997.
The Mudlick Mains discharge hose was suggested by MSHA
inspector Clark on July 10, 1997, as an alternative to
converting the fresh water line to a discharge line. Tr. III
90, V 290-92.[3] This alternative method of discharging water
was rejected by Eagle Energy because it was too far to run a
discharge line. 23 FMSHRC at 835. The efficacy of a Mudlick
Mains discharge line has not been demonstrated.
III. Civil Penalty
I now revisit my initial imposition of a $2,500.00 civil
penalty for this violation. It is noteworthy that the Secretary
also initially proposed a $2,500.00 civil penalty for this
violation. Ordinarily, I would be inclined to raise the civil
penalty in a remand decision where the citation has been modified
to reflect that the cited violation is attributable to an
unwarrantable failure. However, the facts of this case fail to
justify an increase in penalty.
Citation No. 7163242 states:
The intake escapeway for the 10 Left has
water in depths of 1 inches (sic) to 15
inches between cross cut 70 and 71 for a
distance of 110 ft., water between 59 and 60
cross cuts in depths of 1 inch to 15 inches
for a distance of 90 ft., water in depths of
1 inch to 12 inches between 51 and 52 cross
cuts for a distance of 40 ft., and water in
depths of 1 inch to 15 inches between
beginning 20 ft. inby cross cut No. 49 and
extending to cross cut 48 for distance of 120
ft. The water in all areas are (sic) muddy
with loose coal and slick bottom. This
condition was reported [in the weekly
examination book] on 8-15-97, 8-22-97 and 8-
29-97. (Emphasis added).
The Secretary's proposed $2,500.00 civil penalty was based
on special findings under Part 100 of her civil penalty
regulations. 30 C.F.R. Part 100. Section 100.5(h) of those
regulations provides for special assessments for "[v]iolations
involving an extraordinarily high degree of negligence or gravity
or other unique circumstances." In this regard, in the special
findings in Citation No. 7163242, in substantial testimony
presented by the Secretary at trial, and in her appeal, an
important, if not crucial, element of the Secretary's
unwarrantable failure case has been that these cited water
conditions existed for more than two weeks, i.e., from August 15
through September 2, 1997, because the weekly examination book
lacked notations reflecting remedial pumping.[4] However, the
Commission, in its remand, has affirmed the determination that
the evidence fails to establish that the cited conditions existed
for more than two days, i.e., from August 31 through September 2,
1997. 23 FMSHRC at 839.
In analyzing the significance of Eagle Energy's inability to
pump water for two days, it is essential to focus on the water
pumping process. As noted in the initial decision, pumping water
requires an alternating cycle of water accumulation and pumping,
in that water must be allowed to accumulate to levels significant
enough to pump. Tr. V 303-04, 306; 21 FMSHRC at 1236-37, 1247-
48. When adequate accumulations occur, the pumps are turned on
until the water is drained, at which time the pumps
are turned off. Significantly, pumps cannot operate continuously
because "dry pumping" would burn out the pump motors. Id. at
1237; Tr. III 119, 146-48. Even the Secretary does not assert
that the pumps were required to run continuously. In this regard,
Eagle Energy's production director John Adkins testified that
the large-type portable commercial pumps used in Mine No. 1 do
not have floats that automatically turn the pumps on and off.
Tr. V 50-1. Adkins' testimony that the pumps must be manually
turned on was corroborated by MSHA inspector Terry Price.
Id. Inspector Clark conceded that water accumulation is
an unavoidable consequence of the pumping cycle. Tr. V 306.
Under such circumstances, the evidence suggests Eagle Energy
could not have pumped water from the afternoon of August 31, when
it converted its discharge water line, until the following
afternoon on September 1, 1997, when the water would have first
reached depths that were adequate to pump. Although it should
have started pumping on September 1, despite efforts by
experienced belt assemblers, Eagle Energy was unable to resume
pumping until September 2 because the belt broke when it was
started on the morning of September 1. Thus, in the final
analysis, Eagle Energy's conduct resulted in its inability to
pump water for approximately 2-1/2 shifts, from 4 p.m. on
September 1 until 1:30 p.m. on September 2. It bears repeating
that the duration of the violation was no more than several
shifts rather than the duration of more than two weeks alleged
by the Secretary in her special findings, at trial and on appeal.
In addressing the duration issue as it impacts on the
Secretary's failure to support her special findings, I am
cognizant that, in assessing penalties, this Commission makes de
novo findings based on the record in adjudicatory proceedings,
and it is not bound by Part 100 of the Secretary's penalty
regulations. Dolese Brothers Company, 16 FMSHRC 689, 694 (April
1994) citing Sellersburg Stone Co., 5 FMSHRC 287, 291 (March
1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Although Commission
judges are not bound by the Secretary's special findings,
". . . consideration of all incidents of a violation, including
the special findings, is appropriate." Quinland Coals, Inc., 9
FMSHRC 1614, 1622 (September 1987). In Quinland, the Commission
stated:
The validity of the allegation of violation
and of any special findings made in
connection with the alleged violation, all
bear upon the appropriate penalty to be
proposed by the Secretary prior to
adjudication and to be assessed by the
Commission if a violation is ultimately found
. . . .
Id. (emphasis in original), citing Old Ben Coal Co., 7 FMSHRC
205, 207-08 (February 1985).
In sum, the Secretary has failed to support her assertion
that the violative water accumulations existed for more than two
weeks. It follows that the evidence, establishing that the
violative water accumulations existed for no more than several
shifts, during a period when short-staffed management personnel
were focused on repairing the belt that would alleviate the cited
violative condition, does not warrant an increase in the
$2,500.00 penalty assessed in the initial decision. Accordingly,
a $2,500.00 civil penalty shall be assessed for 104(d)(1)
Citation No. 7163242.[5]
ORDER
In view of the above, IT IS ORDERED that 104(d)(1) Citation
No 7163242 reflecting that the cited violation of section
75.380(d)(1) is attributable to Eagle Energy Inc.'s unwarrantable
failure IS AFFIRMED.
IT IS FURTHER ORDERED that Eagle Energy Inc. shall pay a
$2,500.00 civil penalty in satisfaction of 104(d)(1) Citation No.
7163242. Payment is to be made within 40 days of the date of
this decision. Upon timely receipt of payment this matter IS
DISMISSED.[6]
Jerold Feldman
Administrative Law Judge
**FOOTNOTES**
[2]: The initial decision determined the belt was repaired
by the afternoon of September 2, 1997, between 12 noon and 3:00
p.m. 21 FMSHRC at 1243. For the purposes of this decision
I have concluded that the belt repair was completed by
approximately 1:30 p.m.
[3]: The transcript contains a separate volume for each day
of the six day hearing. Transcript references note the volume by
Roman numeral I through VI followed by the
pertinent page number.
[4]: Citation No. 7163242 does not rely on Eagle Energy's
conversion of its waterline to fresh water on August 31 as a
basis for its unwarrantable failure designation. In fact, the
testimony reflects that the Secretary first became aware that the
discharge hose had been converted to fresh water when it was
raised by Eagle Energy at trial. See Tr. V 290-92.
[5]: While I have not increased the $2,500.00 civil penalty
assessed in the initial decision,
I emphasize that the unanticipated problems it encountered in
converting to longwall operations did not relieve Eagle Energy of
its obligation to maintain its escapeways in this wet mine in a
passable condition. See 21 FMSHRC at 1251.
[6]: The parties have reached a settlement agreement with
respect to two other citations that were the subjects of this
civil penalty proceeding. Eagle Energy has agreed to pay civil
penalties of $50.00 in satisfaction of Citation No. 7158529, and
$300.00 for Citation No. 7163240. Thus, the total civil penalty
owed by Eagle Energy in this matter is $2,850.00.
Distribution:
Robin Rosenbluth, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Julia K. Shreve, Esq., Maris E. McCambley, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322
(Certified Mail)
/hs