Martin County Coal Corporation

Plain-English summary

Martin County Coal and its engineering consultant GEO/Environmental Associates were cited after the Big Branch refuse impoundment failed and released waste-laden water in October 2000. Judge Irwin Schroeder found that Martin County failed to report unusual South Mains Portal flow changes, that underground seals were not built exactly as the approved plan required, and that annual reports failed to include the underground seals. He dismissed citations alleging that flow readings were missing from annual reports and that the weekly inspector lacked required refresher training. The judge also dismissed a separate plan-implementation citation for lack of proof, reduced the proposed penalty for Citation No. 7144401 to $5,500, and assessed total penalties of $5,600 against Martin County and $100 against GEO. The Commission later remanded portions of the findings and penalties for further analysis.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.216(d), 77.216-3(a)(4), 77.216-4(a)(2), and 77.216-4(a)(7)
• Outcome: Several impoundment citations were sustained with reduced or minimal penalties, while Citations Nos. 7144410 and 7144411 and one additional plan citation were dismissed.
• Subsequent review: The Commission later vacated and remanded parts of the decision in kent-2002-42-r-commission.
• Key point: An approved impoundment plan can create enforceable obligations, but the Secretary still must prove the alleged condition and the applicable plan requirement.

Full text (FMSHRC public release)

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MARTIN COUNTY COAL CORPORATION -- January 14, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001

January 14, 2004

MARTIN COUNTY COAL : CONTEST PROCEEDINGS
CORPORATION, :
Contestant : Docket No. KENT 2002-42-R
: Citation No. 7144401;10/17/01
v. :
: Docket No. KENT 2002-44-R
SECRETARY OF LABOR, MINE : Citation No. 7144403; 10/17/01
SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2002-45-R
Respondent : Citation No. 7144404; 10/17/01
:
: Preparation Plant
: Mine ID No. 15-05106
:
:
SECRETARY OF LABOR, MINE : CIVIL PENALTY PROCEEDINGS
SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2002-261
Petitioner, : A.C. No. 15-05106-03570
:
v. : Docket No. KENT 2002-262
: A.C. No. 15-05106-03571
MARTIN COUNTY COAL :
CORPORATION, : Preparation Plant
Respondent. :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2002-251
Petitioner : A.C. No. 15-05106-03501 WNH
v. :
:
GEO/ENVIRONMENTAL ASSOCIATES, :
Respondent : Preparation Plant

DECISION

Appearances:  Melanie J. Kilpatrick, Esq., Marco Rajkovich, Esq., Wyatt, Tarrant, & Combs, LLP, Lexington, Kentucky, for Martin County Coal Corporation;
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West Virginia for GEO/Environmental Associates;
James B. Crawford, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington, Virginia, for the Secretary.

Before:  Judge Schroeder

INTRODUCTION

These cases are before me as a result of citations written following the failure of a
processing plant impoundment at the Martin County Coal mine near Prestonsburg, Kentucky.
Of the seven dockets, three were filed as contests of the citations and the four remaining were
Petitions for the Assessment of Civil Penalties. The impoundment failure occurred on
October 11, 2000. GEO/ENVIRONMENTAL ASSOCIATES is a consultant hired by Martin
County Coal to inspect the impoundment and to prepare certifications of compliance with
regulatory requirements.

PROCEDURAL HISTORY

The seven dockets heard in a combined proceeding involve a total of eight citations.
After completion of discovery, the hearing was scheduled in two parts. The majority of the fact
witnesses were heard during the week of June 9, 2003, and the expert witnesses along with the
remainder of the fact witnesses were heard during the week of August 4, 2003.1 At the
conclusion of the Secretary's case in chief (except for expert witnesses), I granted a motion to
dismiss two of the eight citations for a failure of proof. A summary of my ruling on that motion
is attached as Appendix A to this Decision. The Secretary's motion to reconsider my dismissal
was denied. The reasons for my denial of that motion are summarized in Appendix A.

After the completion of testimony and presentation of documentary evidence, the parties
were given time to submit written arguments. I have considered all of this material with some
care and reached the conclusions stated below.

FINDINGS OF FACT

Jurisdictional Findings

The parties have stipulated to the facts essential to jurisdiction in this case. (Tr. 5) Martin
County Coal Corporation (hereafter MCCC) is a large operator of both surface and underground
mine in eastern Kentucky. It is sufficiently large that the Civil Penalties proposed by the
Secretary would not hinder the ability of MCCC to stay in business. GEO/Environmental
Associates (hereafter GEO) is an independent contractor providing engineering services to
MCCC in connection with the operation of the mine refuse impoundment that is the genesis of
this case. GEO is sufficiently large that the Civil Penalties proposed by the Secretary would not
hinder the ability of GEO to stay in business.

Big Branch Impoundment History

This case is about a fairly large impoundment created at the headwaters of Big Branch
Creek by MCCC in the early 1980s. With the agreement and assistance of all counsel, I had the
opportunity to visit the impoundment at the conclusion of the first day of testimony in the
hearing.

Any impoundment is designed and built to contain liquids. What is striking about the
MCCC impoundment is that it was not designed and built to contain water, but rather to contain
a combination of water and wastes from the coal processing plant used by MCCC to get mined
coal ready to ship to market. This storage is an alternative to dumping these wastes into nearby
streams, an alternative obviously not acceptable in current society. The impoundment also serves
as a supplemental source for water to be used by the processing plant. To that extent, the coal
processing system is an example of both recycling and safe waste disposal. All of those positive
sentiments, however, are dependent upon the impoundment working as it was designed to work.
At least twice in its history the impoundment failed and large quantities of waste laden water
were released into the surrounding community.

This kind of impoundment has another important difference from the typical water
impoundment. In this impoundment the water enters the impoundment at the downstream end
and is removed from the upstream end. This is the opposite of a flood control impoundment, for
example, where silt laden water enters the impoundment at the upstream end and somewhat
clarified water exits the dam at the downstream end. This difference has important consequences
on the operation and maintenance of the impoundment. When water flows into the upstream
end of most impoundments it begins to drop silt to form a delta. Most of the silt has been
removed by the time the water has reached to containment structure. Water penetration and
leakage are an issue of adequate design and maintenance of the dam. When water flows into the
downstream end of a coal refuse impoundment it begins to drop first the big pieces and then the
smaller pieces of material. The big pieces are used to heighten and expand the dam. The dam
grows as the water level becomes higher. The water level becomes higher as silt fills the storage
capacity of the impoundment. Since water is being removed from the upstream end of the pool,
fine silt is eventually deposited on the upstream edges of the pool. To the extent the water level
fluctuates, the deposited silt covers an area of the banks of the impoundment that is over the
water level. The water near the upstream end of the pool is clearer and more capable of
penetrating porous rock in the banks.

In 1994, the Big Branch Refuse Impoundment was operated in the general manner
described above. It was known that the impoundment rested against banks which covered
underground mines that had been abandoned but which honey-combed the hills. A portion of the
bank "subsided" into the abandoned mines and the pool began to flow through the mine and out
the other side. This leak was contained by pushing rock and coal refuse into the "subsided" hole
until the water flow stopped.

It was obvious that the impoundment needed some corrective measures to both
permanently close the leak and to attempt to prevent leaks in the future. An engineering
consultant prepared a plan that was submitted to MSHA for review and approval. Ogden
Environmental & Energy Services, a geotechnical engineering consulting firm hired by MCCC,
prepared a report with remedial measures. This became an Impoundment Sealing Plan that was
approved by MSHA on October 20, 1994. (Gov. Exh. 1, page 11; Gov. Exh. 2, 2a, 2b, & 5;
June Tr. 56). The plan called for the construction of a "seepage" barrier around the perimeter of
the impoundment except for those portions which did not have mine works below. The barrier
was constructed of material that needed to be moved to surface mine another coal seam in the
impoundment area. The material was primarily blasted sandstone of random sizes and slate, both
pushed into the impoundment and leveled by dozer. The plan contemplated that fine refuse
material would be deposited by the water on the barrier to decrease permeability of the barrier.
The plan also included the construction of underground seals to limit the flow of water into
active areas of the mine.

In the plan, some portion of the work was labeled "short term" and the remainder was
characterized as "long term." Included in the discussion of "short term" measures is a
requirement to monitor the flow of water from the South Mains Portal as to both color and
quantity. The monitoring would be initially on a daily basis and later on a weekly basis as part of
regular impoundment inspections. The parties profoundly disagree on whether weekly
monitoring was intended to be a part of the Impoundment Sealing Plan as approved in 1994 or
was simply prudent management by MCCC. The critical language appears only in the Plan as it
was submitted the day after the impoundment failure, May 23, 1994. (Exh. MCC A1 at page
MCC 12303). The text reads as follows:

4) Flow from the South Mains entry will be monitored daily until remedial
work at the seepage point is completed. Monitoring will be done during regular
impoundment inspections after that. Any unusual change in flow quantity or
quality that would indicate possible impoundment leakage will be reported
immediately to MSHA and the appropriate mine management. All necessary
remedial measures will be implemented. (Emphasis added)

The critical phrase is "after that." After what? Obviously, after the completion of
remedial work at the seepage point. That completion of work is the end of the short term
measures. After the short term measures came the long term measures. Hence, monitoring of the
flows at the South Mains entry on a weekly basis is a part of the long term measures. Since the
monitoring requirement has never been removed from the Impoundment Sealing Plan, the
requirement is still present. The requirement for weekly monitoring of the flow from the South
Mains Portal is, and has been since 1994, a part of the Big Branch Impoundment Sealing Plan.
Almost without interruption between Summer 1994 and Fall 2000, the flows from the South
Mains Portal was monitored, recorded and reported as a part of the weekly impoundment
inspection.

Construction of the seepage barrier was promptly completed and the underground seals
were built shortly thereafter. The record indicates that MSHA, for reasons best described as ease
of administration, made these two elements of the Impoundment Sealing Plan the responsibility
of two different units of its District Office for purposes of routine inspection. The underground
seals construction and operation was made the responsibility of underground inspectors while the
seepage barrier and related structures were made the responsibility of the impoundment
inspector. The parties disagree on the legal significance of this division of responsibility. It is
clear that the operator and its consultant understood this action as a reduction in the scope of the
Impoundment Sealing Plan. Annual certifications of compliance with the Impoundment Sealing
Plan by MCCC and GEO did not include evaluations of the underground seals.

The flow of water from the South Main Portal, both in terms of quantity and quality, was
measured on a weekly basis from 1965 to the day of the 2000 impoundment failure.
GEO/Environmental, the engineering consultant to MCCC, had an inspector visit the
impoundment each week and complete a data form that included water flow amount and color.
On most occasions the inspector was Mr. Eddie Howard, whose training to perform this function
is an issue in this case. Mr. Howard testified he followed a standard routine in his inspections,
making observations are defined points and delivering the resulting form to MCCC officers. He
also returned a copy of his report to GEO where he summarized the contents for his supervisor.
The information in these reports was quickly available to MCCC and GEO engineers for analysis
as to any change in the condition of the impoundment.

The construction of the underground seals was the subject of testimony by several
witnesses.2 The Secretary relied on the testimony of Mr. Betony (Tr. June Session pg. 408) while
MCCC relied on the testimony of Mr. Hatfield (Tr. June Session pg 1249) and Mr. Branham.
(Tr. August Session pg. 516). The witnesses agreed on all significant points except the intended
spacing of anchor bolts into the floor and top. They agreed the seals were constructed of cement
block covered with gunite and laced with steel reinforcing bars. The seal wall was notched into
the rock of the ribs. The wall was anchored to the floor and top with steel bolts driven a foot into
the rock. The spacing of anchors was given as four- foot on centers in the floor and five- foot on
centers in the top. The issue dividing the parties was where such an instruction required the
anchors be placed. Mr. Betony testified that in his experience an instruction to place anchors at
four- foot on centers required the first anchor to be two- feet from the rib. Mr. Branham testified
that in his experience the instruction required the first anchor to be placed four feet from the rib.

The purpose of an "on center" specification is to define the maximum unsupported length
of load bearing member. This maximum unsupported length is calculated from the maximum
expected load the member is intended to support. The specification of four- foot on center
defines a maximum unsupported length of two feet. Under the MCCC approach to this
specification, the sealing wall has a four foot span from rib to floor anchor. That would be
consistent with the design specifications for the sealing wall only if the inset of the sealing wall
into the rib creates another anchor point at the edge of the rib. I find nothing in the testimony or
the written record that supports a conclusion that an anchor point is created by an inset of the
sealing wall. Since the holding strength of the rib is difficult to calculate, and the point of most
engineering calculations is to rely upon ascertainable values to determine structural sufficiency, I
conclude the edge of the rib is not an appropriate anchor point. Therefore, the underground
sealing wall was not constructed in accordance with the approved specifications.

Three other subjects need to be discussed in the context of events which occurred in the
period between the approval of the Impoundment Sealing Plan and the second impoundment
failure: (1) changes in water flows from the South Mains Portal; (2) rainfall data for the period;
and (3) the training program for the impoundment inspector, Eddie Howard.

The Impoundment Sealing Plan requires the weekly monitoring of water flows from the
South Mains Portal but does not specify how the monitoring should be conducted. The decision
on the method of monitoring was apparently made by GEO/Environmental, the original author of
the Plan. GEO supplied the person that conducted the monitoring and designed a form upon
which the result was recorded. At least until the second impoundment failure, MSHA acquiesced
in the monitoring and data recording methods.

The amount of water outflow from the South Mains was determined by examining a
small erosion control pond constructed at the foot of the South Mains Portal. The pond collects
water from the mine entrance as well as the small hollow in which the South Mains Portal is
situated. The pond has a weir to allow water to exit after sediment has settled. The GEO
inspector made a weekly visit to that weir and recorded the depth of water in the outflow stream
using a ruler. He recorded the flow in inches even though all other water flows from the
impoundment were measured and recorded in gallons per minute. During the course of the
hearing I rejected an attempt by the Secretary to recalculate gallons per minute from the weir
depth readings. I concluded the recalculation was irrelevant to the issue of compliance with a
regulation that contemplates reporting of unusual water flows based on the available information.
The South Mains Portal water flow data was not available in gallons per minute at the critical
times. Mr. Howard also carefully measured the elevation of the surface of the impoundment.

The Secretary did present a graphic representation of the available information on water
flows from the South Mains Portal during 1995 to 2000. This graph included the usual spikes
and dips but showed-particularly given the limited scale of the data based on the units of
measurement used-a portentous increase in flow roughly a year before the second impoundment
failure. It is significant that there was no change in the water quality, i.e., no coal refuse fines
were being transported by the increased water flow. All the witnesses testified that a significant
increase in the number of transported fines would have indicated a major failure was likely.

The parties disagreed at great length as to the significance of the changes in South Mains
Portal water flows, particularly in light of changes in rainfall patterns. The choice of rain gauge,
the probable lag time between fall and flow, and similar issues consumed a great deal of energy.
It is my conclusion that while a prudent mining engineer reviewing the South Mains Portal water
flow data should have considered the influence of rain data from the general vicinity, such a
prudent engineer would not have given controlling importance to rainfall data regardless of
source in deciding whether an impoundment failure was a sufficient risk to alter the method of
operation of the impoundment to investigate that risk.

The source of much of the data in controversy in this case originated with Eddie Howard,
the impoundment inspector employed by GEO/Environmental. Mr. Howard testified as to his
activities. (Tr. August Session pg. 214 et seq.) Mr. Howard is not an engineer, he is a field
technician. His function is to observe and collect data that he reports to others. He began
visiting the Big Branch impoundment in 1996 to do inspections and continued on a weekly basis
after that until 2001. Mr. Howard testified he was certified by MSHA as an impoundment
inspector in 1991. (Tr. August Session pg 233). He received refresher training on impoundment
inspection in subsequent years but the documentation as to when, by whom and for how long he
received refresher training was very confused. Attempts to clarify the record by testimony did
not make the precise amounts and sequence of refresher training very clear. It is clear, on the
other hand, that he took some classes and received some on-the-job training in impoundment
inspection from engineers working for his employer.

Mr. John Grabeel testified as an impoundment inspection trainer employed by
GEO/Environmental. (Tr. August Session, pg. 644 et seq.) He stated he had provided training
for Mr. Howard. He indicated the refresher training took the form of an eight hour class day
supplemented with on-the-job field trips. Of the eight hours in class, four hours were devoted to
impoundment inspection and four hours were devoted to surface mining and safety issues,
including the proper operation of a nuclear density gauge. (Tr. August Session, pg 651).

Impoundment Failure in October 2000

The second failure of the Big Branch Coal Refuse Impoundment occurred in the dark of
night with few people close enough to observe the events. A maintenance worker noticed the
increased flow of water and went to alert others. As others came to the scene a swirl of escaping
water was seen in the impoundment. The escaping waters were black with refuse fines.
Equipment was rushed to the assumed site of the break through and soil was pushed into the
hole. Within a few hours the hole was plugged, but in that time more than three hundred million
gallons of silt laden water had rushed out of the impoundment and down adjacent streams toward
the Ohio River. No lives were lost. Recovery from the failure was still in…1573 tokens truncated…der to establish that a violation of a mandatory safety standard is
significant and substantial [citation omitted] the Secretary of Labor 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 in question will be of a reasonably
serious nature.

The term "unwarrantable failure" has long been characterized by the Commission as
involving conduct that can be described as "reckless disregard, " "intentional misconduct,"
"indifference, "or a "serious lack of reasonable care." It is also clear that these descriptors take
on different significance when viewed in the light of the risk on injury inherent in the activity.
There can be no doubt, for example, that greater care is expected of a person handling explosives
that is expected of a person handling signal flares. In deciding this case, I was particularly
mindful of the risks associated with gathering a large quantity of industrial fluid at a reasonably
great height with limited controls.

It is also agreed that the following regulations are mandatory safety standards applicable
to the MCCC operation on Big Creek.

30 C.F.R. 77.216(d)

(a) Plans for the design, construction, and maintenance of structures which impound
water, sediment, or slurry shall be required if such an existing or proposed impounding
structure can:

(1) Impound water, sediment, or slurry to an
elevation of five feet or more above the upstream
toe of the structure and can have a storage volume
of 20 acre-feet or more; or

(2) Impound water, sediment, or slurry to an elevation of 20 feet
or more above the upstream toe of the structure; or

(3) As determined by the District Manager, present a hazard
to coal miners.

(d) The design, construction, and maintenance of all water, sediment, or slurry
impoundments and impounding structures which meet the requirements of
paragraph (a) of this section shall be implemented in accordance with the plan
approved by the District Manager.

30 C.F.R. 77.216-4(a)(7)

(a) Except as provided in paragraph (b) of this section, every twelfth month following the
date of the initial plan approval, the person owning, operating, or controlling a water,
sediment, or slurry impoundment and impounding structure that has not been abandoned
in accordance with an approved plan shall submit to the District Manager a report
containing the following information:

(7) A certification by a registered professional engineer that all construction,
operation, and maintenance was in accordance with the approved plan.

30 C.F.R. 77.216-4(a)(2)

(a) Except as provided in paragraph (b) of this section, every twelfth month following the
date of the initial plan approval, the person owning, operating, or controlling a water,
sediment, or slurry impoundment and impounding structure that has not been abandoned
in accordance with an approved plan shall submit to the District Manager a report
containing the following information:

(2) Location and type of installed instruments and the maximum and minimum
recorded readings of each instrument for the reporting period.

30 C.F.R. 77.216-3(a)(4)

(a) All water, sediment, or slurry impoundments that meet the requirements of
�77.216(a) shall be examined as follows:

(2) All instruments shall be monitored at intervals not exceeding 7 days,
or as otherwise approved by the District Manager

(4) All inspections required by this paragraph (a) shall be performed by
a qualified person designated by the person owning, operating, or
controlling the impounding structure

Specific Citations

Citation No 7144401

This citation alleges that MCCC violated 30 C.F.R.� 77.216(d) by failing to report
changes in water flow quantity from the South Mains Portal during September 1999, as required
by the Impoundment Sealing Plan approved by the District Manager. The Plan as approved
became the regulation applicable to this facility. Everything required by the Plan became a
mandatory safety standard. I concluded above that the requirement to report unusual flows to
MSHA was a requirement of the Plan. No unusual flows were reported to MSHA. The issue is
whether the Secretary has established that in September 1999, the South Mains Portal had
unusual flows that should have been reported. Assuming the unusual flows were present, was
the failure to report those flows unwarrantable negligence that was significant and substantial?

I begin with what I hope is the undisputed premise that the degree of care demanded of a
reasonably prudent mining engineer in management of a mining facility varies with the degree of
risk to life and property at the time action is required. Where the lives of hundreds of miners are
at risk, a manager must examine the available options much more carefully than the manager
would if only the condition of mining equipment might be affected. This premise is particularly
important in evaluating over a period of years the actions taken at the Big Branch Refuse
Impoundment. In 1991, when the pool level was below the level of the abandoned mine, very
little care in management of the impoundment was required. The only risk at that point was a
failure of the coarse refuse embankment, through structural failure or a rain event beyond the
designed capacity of the embankment and spillway feature. The record does not indicate that
these aspects of the impoundment ever posed a problem.

Between 1991 and 1994, the pool level rose over the abandoned mine level and the risk
of failure of the walls of the pool increased. In May 1994, the pool experienced a leak from a
structural failure that highlighted the increasing risk. The operator, its consultant, and MSHA
responded to that increased risk by development of an Impoundment Sealing Plan. The purpose
of the Plan was to contain the risk of failure of the pool structure as the pool level increased. The
requirement for monitoring the flow of water from the South Mains Portal was included in the
Plan for the purpose of alerting the responsible parties to the level of risk posed by the
impoundment as time passed.

Following approval of the Impoundment Sealing Plan, mining operations caused the
impoundment pool level to rise. The experts seem in agreement that even without flaws in the
impoundment seal, the rise in the pool level could be expected to result in increased water flow
from the South Mains Portal. As long as the increases were within reasonable limits, the
increases were not evidence of problems with the impoundment but rather were evidence that the
impoundment was working as predicted. Some spikes and valleys should also be expected
because of variations in rain fall, particularly since the measuring point for the South Mains
Portal flow was after collection of runoff water in the settling pond. Weekly and even monthly
changes in the flow amount, in the absence of water quality changes or catastrophic increases in
quantity, were probably meaningless to the people who reviewed the information. But as the
pool level rose the risk of failure rose.

In the context of this increasing risk of impoundment failure, I would expect a reasonably
prudent mining engineer to pay increasing attention to warning which might have been derived
from the South Mains Portal flow data properly appreciated. While weekly or monthly changes
would be meaningless, longer term changes related to other obtainable data could have provided
valuable signs. The record is clear that no effort was made by either MCCC or GEO to conduct
any of these kinds of evaluation of the data. Of particular significance is the large increase in
flow that occurred approximately a year prior to the October 2000, impoundment failure. While I
am persuaded by the testimony that the Fall 1999, flow data (even when related to various
sources of rain fall information) does not prove that the failure began then or even at any
particular time. What could have been derived from a "prudent" look at the data would have
been a warning that further study of the condition of the impoundment was warranted. At the
very least, the report of the flow changes would have provided MSHA with the opportunity to
clarify its intention with respect to the distribution of fine refuse on the upstream edges of the
impoundment pool.

The data gathering and analysis requirements of the Impoundment Sealing Plan that form
the foundation for this citation were not carefully drafted to articulate these concepts. The
authors of the Plan were relying on the professional training and good sense of the people that
would be managing the Impoundment as the years went on. I am persuaded that while the
technical area of predicting impoundment failure is still in the development stage, much more
could and should have been done here. I am also persuaded that the failure to take advantage of
available opportunities to evaluate the South Mains Portal flow data contributed in some measure
to the magnitude and timing of the impoundment failure. On the other hand, I am not persuaded
that the failure to take advantage of these opportunities was an unwarrantable failure in the sense
of wanton or reckless disregard for the risks to life and property. I would assess the negligence
as moderate. The Civil Penalty proposed by the Secretary, $55,000.00, seems to me to be
excessive under the circumstances.

Citation No. 7144403

This citation alleges that the underground mine seals included in the original
Impoundment Sealing Plan were not constructed in accordance with the approved plans in
violation of 30 C.F.R. �77.216(d). My interpretation of the approved plan for the seals as
discussed above would require the first anchor bolt to be set in the floor two feet from the rib and
a similar spacing for the bolt in the roof. The testimony was clear that the actual construction did
not meet those requirements. Therefore, the seals were not constructed in accordance with the
approved plan. While the difference in placement of the anchor bolt might have significant
consequences in some circumstances (generally in situations in which the load on the seals would
be in a range such that the seals would fail with one spacing but hold with a closer spacing) there
is no evidence in this record that indicates the bolt spacing on the seals contributed to the
October 2000, impoundment failure in any way. The change in bolt spacing cannot be said to be
anything more than very low negligence. The Civil Penalty appropriate to such a violation would
be minimal at best.

Citation Nos. 7144404 and 7144408

These citations allege that the Annual Report and Certification on the Big Branch
Impoundment for 1995, did not include reference to the underground seals constructed as part of
the Impoundment Sealing Plan in violation of 30 C.F.R. �77.216-4(a)(7). The Annual Report did
not include reference to the underground seals construction. MCCC contends the underground
seals were not part of the Impoundment Sealing Plan by the time of the construction. GEO
contends that not only were the underground seals not a part of the Impoundment Sealing Plan
but also that GEO had no responsibility for Certification of the underground seals since it does
not perform underground engineering.

That GEO does not work underground is certainly not a reason for excluding
underground features of an impoundment plan from an Annual Certification if the features are a
part of the plan. The requirement on the impoundment operator is to have a qualified person
make the necessary certification, either with its own staff or by hiring someone. A certifying
engineer would need to at least note the exclusion of a feature from a submitted certification so
that a supplement to the certification by someone else would be appropriate.

There is no evidence in this record that the failure to include the underground seals in the
Annual Certification contributed in any way to the October 2000, impoundment failure. The
degree of negligence involve was very low at best and the Civil Penalty for the violation should
be minimal.

Citation No. 7144410

This citation alleges that the Annual Reports prepared by GEO in 1996 to 1999, failed to
include the maximum and minimum readings for the South Mains Portal outflow pipe considered
as in instrument in violation of 30 C.F.R. �77.216-4(a)(2). The critical issue here is whether the
South Mains Portal outflow pipe combined with a ruler constitutes an instrument for purposes of
this regulation. The regulations, and their apparent application to the industry by MSHA, are
somewhat confusing on this point. The regulation does not have a clear definition of an
instrument. The testimony was clear that not all sources of information about an impoundment
are considered instruments. The regulation provides that all instruments must be identified on a
plan view of the impoundment submitted with the Annual Certification. The South Mains Portal
outflow pipe was not on the plan view submitted with the Big Branch Impoundment Annual
Certifications, much less be identified as an instrument on the plan view. The readings of the
flows from the South Mains Portal were taken every seven days as a requirement of the
Impoundment Sealing Plan and the regulation requires that all instruments shall be monitored at
intervals of not exceeding seven days. It does not logically follow, however, that since all
instruments must be monitored every seven days, therefore all things that are monitored every
seven days are instruments.

I am persuaded by the testimony, particular that of Dr. Thacker, that the word
"instrument" has a unique technical meaning within the professional subgroup of impoundment
engineers as a data source identified and designated in a particular document. That a data source
is or is not identified and designated as an "instrument" is independent of the question of the
importance of the data. As I indicated above, the flow readings from the South Mains Portal
constituted important data. But it was not data from an "instrument" for the purposes of
30 C.F.R. �77.216-4(a)(2). This citation must be dismissed.

Citation No. 7144411

This citation alleges that the weekly examinations of the Big Branch Impoundment were
performed by an unqualified inspector that had not received required annual refresher training in
violation of 30 C.F.R. � 77.216-3(a)(4). There is no question in this case that the inspector,
Eddie Howard, was a very experienced inspector who received both classroom and on-the-job
refresher training in the period prior to the October 11, 2000, impoundment failure. It is further
very clear that no evidence has been offered to connect Mr. Howard's qualifications as an
inspector to the occurrence of the impoundment failure. All parties have used his observations
and measurements in their presentations without any question as to reliability or accuracy. The
issue here is limited to whether Mr. Howard spent the required number of hours in training on the
required subjects.

The burden is on the Secretary to establish the record elements of this alleged violation.
While the record does cast doubt on the sufficiency of the documentation of Mr. Howard's
refresher training, I am unable to conclude that the Secretary has established that Mr. Howard did
not receive a total of eight hours of appropriate impoundment inspection refresher training. This
citation must be dismissed.

Civil Penalty Amounts

In light of the forgoing discussion, it is my judgement that an appropriate Civil Penalty
for the violation in Citation No 7144401, is one-tenth of that proposed by the Secretary or
$5,500.00. The remainder of the citations not dismissed require a Civil Penalty of $100.00,
against each Respondent.

ORDER

Respondent Martin County Coal Company is directed to pay a Civil Penalty of $5,600.00
within 40 days of the date of this Order. Respondent GEO/Environmental Associates is directed
to pay a Civil Penalty of $100.00 within 40 days of the date of this Order. Citation Nos. 7144410
and 7144411 are dismissed.

Irwin Schroeder

Administrative Law Judge

Distribution: (Certified Mail)

Melanie J. Kilpatrick, Esq., Marco Rajkovich, Esq., Wyatt, Tarrant & Combs, 1700 Lexington
Financial Center, Lexington, KY 40507

James B. Crawford, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard,
22nd Floor West, Arlington, VA 22209-2247

Mark E. Heath, Esq., Spilman, Thomas & Battle, LLP, 300 Kanawha Blvd., P.O. Box 273,
Charleston, WV 25321-0273

Appendix A

Summary of Dismissal of Citation

The Secretary alleged MCCC violated 30 C.F.R. �77.216 by failing to comply with a
provision of the Impoundment Sealing Plan that requires the operator to "periodically redirect"
the coal refuse discharge stream. The Secretary maintained the failure to perform this task
resulted in an inadequate seepage barrier which resulted, in turn, in the impoundment failure on
October 2000.

This argument requires, for it to be effective, that the phrase "periodically redirecting"
had a meaning well understood by prudent mining engineers in 1994 that would require actions
by the mine operator as now thought necessary by the Secretary. This is not a question of
"notice" of the meaning asserted by the Secretary. Lack of notice would be an affirmative
defense by the operator if the Secretary successfully completed a prima facie case. My
conclusion was that the Secretary never completed a prima facie case because the Secretary never
established that prudent mining engineers in 1994 would have understood "periodically
redirecting" the fine coal slurry discharge to mean the kind of impoundment operation which the
Secretary now contends was necessary to prevent impoundment failure in the manner it occurred
here.

It is important that the Secretary's theory of how the impoundment failure of October 11,
2000, occurred implies a deficiency in the impoundment seepage barrier. But there was no
evidence that anyone was contemplating this particular failure mechanism at the time the
impoundment sealing plan was approved. Even the Secretary's impoundment design expert,
Richard Almes, testified that the phrase "periodically redirect the slurry discharge" had no
technical meaning in 1994 or in 2000. The slurry discharge methods that the Secretary alleges
were required under the 1994 plan were far from standard practice in impoundment management.
His testimony is consistent with that of the MSHA impoundment inspector. He testified he was
familiar with the 1994 plan and had visited the impoundment 3 or 4 times a year between 1994
and 2000. It never occurred to him that the slurry discharge methods used by Martin County
Coal Company were insufficient. This testimony represents interpretation of the 1994 plan
through conduct rather than an attempt to estop the Secretary as a result of long delay in asserting
an argument. The Secretary is not subject to estoppel in her pursuit of public safety. The
Secretary failed to adequately establish a violation of those requirements and I have no choice but
to dismiss the claim and vacate the Citation.

FOOTNOTES:

1 Because of the split in hearing schedule the record of the June hearing will be cited as (Tr. June Session, pg nn) while the August hearing will be cited as (Tr. August Session, pg nn).

2 There is no evidence the underground seals survived the October 11, 2000, impoundment failure or even made any difference in how the released waters flowed from the mine.