Martin County Coal Corporation and Geo/Environmental Associates

Read the official release (fmshrc.gov)

Plain-English summary

This consolidated case arose from a slurry spill and breakthrough at Martin County Coal's Big Branch Slurry Impoundment. The Commission vacated and remanded findings involving the impoundment sealing plan, reporting of water-flow changes, and the related negligence, S&S, unwarrantable-failure, and penalty analyses. It reversed the dismissal of a seven-day report citation against Geo/Environmental Associates, found a violation, and remanded for a civil penalty, while reversing and dismissing a certification citation against Geo. The Commission also affirmed the dismissal of a citation concerning readings from an uninstalled measuring device.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.216(d); 30 C.F.R. § 77.216-3(d); 30 C.F.R. § 77.216-4(a)
• Outcome: The decision affirmed one dismissal, reversed and dismissed one citation, reversed another dismissal and remanded for a penalty, and vacated and remanded additional findings and penalties.
• Key point: Mine-plan and impoundment reporting violations require explicit findings that identify the applicable regulatory test, weigh the evidence, and explain the penalty criteria.

Full text (FMSHRC public release)

FMSHRC

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

601 NEW JERSEY
AVENUE, NW

SUITE
9500

WASHINGTON, DC
20001

May 30, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MARTIN COUNTY COAL CORPORATION and GEO/ENVIRONMENTAL ASSOCIATES

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Docket Nos. KENT 2002-42-R

KENT 2002-43-R

KENT 2002-44-R

KENT 2002-45-R

KENT 2002-251

KENT 2002-261

KENT 2002-262

BEFORE: Duffy, Chairman; Jordan, Young, Commissioners[1]

DECISION

BY: Young, Commissioner[2]

This civil penalty proceeding, which arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (“Mine Act” or “Act”), involves citations and an order
that were issued as a result of a slurry spill and a breakthrough at a
coal waste impoundment owned and operated by Martin County Coal
Corporation (“MCC”) on October 10, 2000.
Administrative Law Judge Irwin Schroeder affirmed four citations and
dismissed four citations/orders issued by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) that were contested by MCC and its
independent contractor, Geo/Environmental Associates (“Geo”). 26 FMSHRC 35 (Jan. 2004) (ALJ).
The Secretary of Labor, MCC and Geo filed petitions for discretionary
review appealing the judge’s
decision, which the Commission granted. For the reasons that follow, we
affirm in part, reverse in part, vacate and remand in part.[3]

I.

Factual and Procedural Background

MCC, a wholly owned subsidiary of A.T. Massey Coal Company, Inc.,
operated the Big Branch Slurry Impoundment located near Inez, in eastern
Kentucky. 26 FMSHRC at 36; Jt. Stips. 1 & 3; Tr. 4-5.[4] MCC developed the
impoundment in the mid-1980s for storage of both coarse refuse and slurry
(fine refuse). 26 FMSHRC at 37; Gov’t Ex. 1, at 2. Prior to the 2000
breakthrough, the impoundment had a depth of 221 feet and a surface area
of 68 acres. Gov’t Ex. 1, at 2.
It held 2.125 billion gallons of water. Id.

The impoundment was located adjacent to a preparation plant and two
underground mines. Id. The preparation plant employed 23 persons
and processed approximately 7,500 tons of clean coal daily from MCC’s underground and surface mines.
Id. An overland belt conveyor transported the coarse coal refuse
from the preparation plant to the impoundment, where it was then pumped
into the impoundment as slurry. Id.

MCC operated two underground mines adjacent to the impoundment, the 1-S
(Stockton Seam) Mine and 1-C (Coalburg Seam) Mine. Id. The 1-S
Mine had ceased mining by the time of the 2000 impoundment breakthrough
and was not involved in the breakthrough accident. Id. The 1-C
Mine employed six underground miners and two surface miners. Id.
At the time of the breakthrough, most of the 1-C mine had been abandoned,
and coal was not being produced. Id. The only active portions of
the 1-C Mine were the Nos. 1-3 North Mains through which belt conveyors
transported coal from various MCC mines to the preparation plant.
Id. These mains were isolated from the abandoned workings in the
1-C Mine by seals. Id.; Jt. Ex. 3.

A. 1994 Breakthrough

On May 22, 1994, water and slurry broke into the abandoned mine workings
of the 1-C Mine. 26 FMSHRC at 37-38; Gov’t Ex. 1, at 13-14; MCC Ex. P. The
water drained through the mine and resulted in discharges from the mine
at three locations, including the South Mains Portal on the west side of
the mine. MCC Ex. A1, at 012291; Gov’t Ex. 1, at 14, Fig. 25. Nearly 112
million gallons of slurry and water were discharged. Gov’t Ex. 1, at 14. The outflow in the
1994 breakthrough was mostly water and caused no significant downstream
damage. Id. The void was filled with spoil material from the
surrounding hillside, and the failure was plugged. Id.; MCC Ex.
A1, App. 1 at 012302. According to the 1994 MSHA accident investigation
report, the breakthrough occurred through an opening created by a
collapse of the mine roof or by water from the impoundment penetrating a
natural hill seam in the roof rock. Gov’t Ex. 14, at 14-15. The report
recommended that the impoundment plan be modified to prevent a
recurrence. Id. at 15.

B. 1994 Impoundment Sealing Plan

On May 23, 1994, the day after the breakthrough, Ogden Environmental
& Energy Services (“Ogden”), a geotechnical engineering
consulting firm hired by MCC, prepared an Impoundment Sealing Plan with
remedial measures (the “May
Plan”). 26 FMSHRC at 38; MCC
Ex. 1, App. 1. MCC then submitted an Impoundment Sealing Plan to MSHA on
August 10, 1994 (the “August
Plan”), which incorporated the
May Plan. Gov’t Ex. 2; MCC Ex.
A1, at 012289 & App. 1. After MSHA first reviewed the August Plan, it
did not approve the plan. See Gov’t Ex. 2A (letter of Sept. 9, 1994);
MCC Ex. J. MCC provided additional information to MSHA on October 5,
1994, and the revised Impoundment Sealing Plan was approved by MSHA on
October 20, 1994. 26 FMSHRC at 38; Gov’t Ex. 2A.

The May Plan, under the heading of “Short Term Plan,” stated:

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.

MCC Ex. A1, App. 1 at 012303. The August 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. 26 FMSHRC at 38. The
seepage barrier was to be constructed using the spoil material from the
Stockton Seam, which consisted of highly permeable shot sandstone
material. Id.; Gov’t Ex.
1, at 16-17; MCC Ex. A1, at 012295. The plan contemplated that once the
seepage barrier was constructed, fine refuse material would be deposited
on the barrier to decrease permeability of the barrier. 26 FMSHRC at 38.
The plan provided that “fine
refuse shall be directed along the barrier by periodically redirecting
the discharge of fine refuse slurry.” MCC Ex. A1, at 012297. Construction
of the seepage barrier occurred between February and September of 1995.
26 FMSHRC at 39; Gov’t Ex. 1,
at 16.

The August Plan also required installation of reinforced seals separating
the abandoned workings, which had been flooded by the 1994 breakthrough,
from the active areas of the mine to protect miners in the event of
another breakthrough. MCC Ex. A1, at 012297. However, because of
construction difficulties, the seals were not constructed in accordance
with that plan. Gov’t Ex. 1, at
18; Tr. 436-38. On September 7, 1995, MCC submitted a revised seal plan
that called for strengthening the existing seals with gunite and steel
reinforcement. Gov’t Ex. 1, at
18-19; Gov’t Ex. 7. The revised
plan was approved by MSHA on September 29, 1995. Gov’t Ex. 1, at 18-19; Gov’t Ex. 7; Tr. 437-39. The reinforced
seals were constructed in February and March of 1996. Gov’t Ex. 1, at 18.

C. Hiring of Geo to Monitor Impoundment, Including the South Mains
Portal

In February 1996, MCC hired Geo, an engineering consulting firm employing
several former Ogden engineers, to perform weekly impoundment monitoring
and to prepare impoundment annual reports and certifications. Gov’t Ex. 6; Tr. I 684-85, 693-95, 757,
762-63. Generally, the weekly inspections of the impoundment were
performed and recorded by Eddie Howard, a field technician for Geo. 26
FMSHRC at 39, 41; Gov’t Ex. 6.
Howard provided the results of his inspection to both MCC and to his
supervisors at Geo. 26 FMSHRC at 39, 41. One of the weekly measuring
points was the flow of water from the South Mains Portal, which had been
a discharge point in the 1994 breakthrough. Id.; MCC Ex. A1, at
012292, App. V (plan view showing South Mains as discharge point);
Gov’t Ex. 6. The amount of
water from the South Mains area of the mine was determined by measuring
the height of water in the outflow pipe from a small pond constructed at
the foot of the South Mains Portal. 26 FMSHRC at 40. Howard recorded the
flow in inches with a ruler. Id. at 40, 48-49.

D. 2000 Breakthrough

On October 10, 2000, at approximately 4:00 p.m., belt examiner Mathias
Simpkins entered the 1-C Mine to examine and clean the belts. Gov’t Ex. 1, at 3; Tr. 359-61. He
remained in the mine until 11:50 p.m. Gov’t Ex. 1, at 3. He then radioed the
dispatcher to report that he had just left the mine. Id. While
Simpkins was still talking to the dispatcher, Lovell Tony Bowen, an
electrician who was working on an overland belt, radioed the dispatcher
at 12:05 a.m. that the belt had stopped. Id. The dispatcher
displayed the belt monitor screen on his computer, which indicated that
the 2 North belt was off. Id. Simpkins unsuccessfully attempted to
restart the belt. Id. Bowen traveled in his truck to the 2 North
Portal where he observed slurry flowing out of the portal at high
velocity and at a height of approximately 3 feet. Id. & Fig.

8. Bowen reported his findings to the radio dispatcher. Gov’t Ex. 1, at 3. Bowen and Simpkins
   traveled to the South Mains Portal where they observed an outpouring of
   slurry greater than at the North Portal, creating a large gully just
   below the portal. Id. at 4 & Fig. 9; Tr. 351-52, 373-74.
   Simpkins reported the impoundment breakthrough to the foreman of the
   preparation plant. Gov’t Ex. 1,
   at 4.

The dispatcher contacted the President of MCC, Dennis Hatfield, at
approximately 1:15 a.m. Id. At 1:40 a.m., all miners were
withdrawn from the preparation plant and it was closed. Id.
Bulldozers began to push soil material into the breakthrough at
approximately 2:00 a.m. and the breakthrough was plugged at approximately
4:30 a.m. Id. MSHA was contacted at 3:00 a.m. Id. As a
result of the breakthrough, more than 300 million gallons of slurry-laden
water had rushed out of the impoundment and into adjacent streams,
eventually reaching the Ohio River. 26 FMSHRC at 41; Gov’t Ex. 1, at 4, Figs. 10, 11. Some
families were evacuated from their homes, but no lives were lost.
Gov’t Ex. 1, at 4; 26 FMSHRC at
41.

MSHA assembled a team of investigators and sent them to the scene. 26
FMSHRC at 42. An extensive investigation ensued, and one year later MSHA
issued the following citations and order:

Citation No. 7144401, alleging a significant and substantial (“S&S”) and unwarrantable failure
violation of 30 C.F.R. §
77.216(d) for failure to follow the approved plan because MCC failed to
report to MSHA any unusual change in flow quantity or quality from the
South Mains Portal;

Order No. 7144402, alleging an S&S and unwarrantable failure
violation of section 77.216(d) for not following the approved plan that
required MCC to periodically direct the fine refuse slurry discharge
along the seepage barrier;

Citation No. 7144403, alleging a violation of section 77.216(d) because
MCC failed to construct the underground mine seals in accordance with the
approved plans;

Citation Nos. 7144404 and 7144408, alleging that MCC and Geo,
respectively, failed to include reference to the underground seals in the
annual report and certifications in violation of 30 C.F.R. § 77.216-4(a)(7);

Citation No. 7144409, alleging a violation of 30 C.F.R. § 77.216-3(d) for Geo’s failure to indicate the actions
taken to abate the hazardous conditions after the impoundment
breakthrough on the required 7-day examination report;

Citation No. 7144410, alleging that the annual reports prepared by Geo
failed to include the maximum and minimum readings for the South Mains
Portal outflow pipe in violation of 30 C.F.R.§ 77.216-4(a)(2);

Citation No. 7144411, alleging that the weekly examinations conducted by
Geo were performed by an unqualified inspector who had not received
annual refresher training in violation of 30 C.F.R. § 77.216-3(a)(4).

E. Proceedings Before the Administrative Law Judge

A hearing was held in two parts before Judge Schroeder. A majority of the
lay witnesses were heard during the week of June 9, 2003. 26 FMSHRC at

36. The expert witnesses and the remaining lay witnesses were heard
    during the week of August 4, 2003. Id. Prior to issuing his
    decision, the judge dismissed two of the Secretary’s claims: (1) Order No. 7144402,
    alleging that MCC violated section 77.216(d) for its failure to direct
    the slurry along the seepage barrier on the impoundment; and (2) Citation
    No. 7144409, alleging that Geo violated the requirement in section
    77.216-3(d) to note the abatement measures on the 7-day examination
    report. 8/28/03 Order.[5]

The judge issued his decision on January 14, 2004. 26 FMSHRC at 35. As a
preliminary matter, the judge noted that he did not make a determination
of the cause of the impoundment failure because it was not at issue in
any of the citations or orders before him. Id. at 42. The judge
found that MCC violated section 77.216(d) by not complying with the
impoundment plan provision governing the reporting of unusual changes in
water flow quantity from the South Mains Portal during September 1999.
Id. at 46-47. He did not discuss the related S&S designation
and also determined that the violation was not a result of unwarrantable
failure. Id. at 47. The judge found that both MCC and Geo violated
section 77.216-4(a)(7) by not including a reference to the underground
seals construction in the annual certification reports.[6] Id. at 48. The judge
dismissed Citation No. 7144410, which alleged that Geo failed to include
the readings for the South Mains Portal outflow pipe in the annual
reports under section 77.216-4(a)(2). Id. at 48-49. The judge
directed MCC to pay a civil penalty of $5,600 and Geo to pay a civil
penalty of $100 for all of its violations. Id. at 50.

II.

Disposition

A. Summary Dismissal of Order No. 7144402[7]

The judge vacated the Secretary’s order alleging a violation of
section 77.216(d)[8]
for
MCC’s failure to comply with a
provision of the Impoundment Sealing Plan that requires the operator to
“periodically redirect” the coal refuse discharge along the
seepage barrier. 26 FMSHRC at 51. In that order, the Secretary maintained
that the failure to perform the task resulted in an inadequate seepage
barrier which, in turn resulted in the impoundment failure. Id.
The judge found that the Secretary never established a prima facie case.
Id. He reasoned that the Secretary failed to establish that
prudent mining engineers in 1994 would have understood the provision to
require what the Secretary contended was necessary and that the slurry
discharge methods that the Secretary alleged were required under this
provision were “far from
standard industry practice.”
8/28/03 Order, at 4; see also 26 FMSHRC at 51.

The Secretary alleges that the judge prematurely dismissed Order No.
7144402 without considering documentary evidence and deposition testimony
directly related to the violation. She further maintains that the judge
failed to engage in any analysis with respect to the plain meaning or
ambiguity of the “seepage
barrier” provision that the
Secretary advanced and with which MCC agreed. Additionally, the Secretary
asserts that if the provision is ambiguous, her interpretation of the
plan provision is reasonable and thus entitled to deference. MCC counters
that the judge correctly dismissed the order at the proper time in the
proceedings. It argues that the judge correctly found that it complied
with the plain meaning of the provision. Additionally, MCC asserts that
the Secretary is not entitled to deference in interpreting the plan
provision.

Preliminarily, the first question we consider is whether the Secretary
was fully heard on Order No. 7144402. Commission Rule 63(b) states in
pertinent part: “A party shall
have the right to present his case or defense by oral or documentary
evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of
the facts.” 29 C.F.R. § 2700.63(b). Federal Rule of
Civil Procedure 52(c) entitled “Judgment
on Partial Findings” states in
part: “If during a trial
without a jury a party has been fully heard on an issue and the court
finds against the party on that issue, the court may enter judgment as a
matter of law against that party with respect to a claim . . . that
cannot under the controlling law be
maintained . . . . Such a judgment shall be supported by findings of fact
and conclusions of
law . . . .”[9]

The judge initially dismissed the Secretary’s claim prior to the time that all
her evidence was presented (Tr. 1221, 1245, 1247; 7/2/03 Order). On June
12, 2003, at the hearing, the Secretary offered the deposition testimony
of Steven Gooslin, the preparation plant foreman, which was admitted only
minutes before the judge directed a verdict dismissing the Secretary’s claim. Tr. 1220, 1245.
Nonetheless, on August 4, 2003, the judge agreed to hear the testimony of
the Secretary’s remaining
expert witnesses. Tr. I 36. Therefore, on balance, the judge had an
opportunity to hear and address the Secretary’s entire case. The Secretary also
faults the judge for failing to specifically address the evidence raised
after his initial dismissal rulings. A judge, however, does not need to
address every point of evidence and must only include findings and
conclusions on “material issues
of fact [and] law.” 29 C.F.R.
§ 2700.69(a). Accordingly,
although the judge’s rulings
were somewhat disjointed, he heard all the evidence presented relating to
Order No. 7144402 and, under Rule 63, the Secretary was heard on all the
facts.[10]

With regard to the plan provision at issue, the Impoundment Sealing Plan
states “Following the
completion of the >seepage
barrier’ fine refuse shall be
directed along the barrier by periodically redirecting the discharge of
fine refuse slurry.” MCC Ex.
A1, at 012297. It is well established that plan provisions are
enforceable as mandatory standards. UMWA v. Dole, 870 F.2d 662,
671 (D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d 398,
409 (D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317
(Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987)
(“JWR”). As such, the law governing the
interpretations of regulatory standards is applicable to plan provisions.
Energy West, 17 FMSHRC at 1317.[11]

The “language of a regulation .
. . is the starting point for its interpretation.” Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety
Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the language of a
regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the
words to have a different meaning or unless such a meaning would lead to
absurd results. See id.; Utah Power & Light Co., 11
FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that
deference to the Secretary’s
interpretation is accorded. See Udall v. Tallman, 380 U.S. 1,
16-17 (1965) (finding that reviewing body must “look to the administrative
construction of the regulation if the meaning of the words used is in
doubt”) (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)).

As the Secretary correctly asserts, the judge failed to evaluate what the
provision plainly means and then to determine whether there was a
violation of the provision. In dismissing the violation, the judge simply
pointed to the fact that the Secretary failed to prove that the phrase
“periodic redirecting” of slurry would have been
understood by prudent mining engineers in 1994 to mean re-locating the
slurry pipe. 26 FMSHRC at 51; 8/28/03 Order, at 4. The judge seemed to
suggest that the Secretary was arguing that the slurry discharge pipe had
to be re-located along the seepage barrier in order to fulfill the
requirements of the plan provision. However, the Secretary’s argument was not so narrow. Her
motion to reconsider the dismissal order states that the phrase “periodic re-directing” of slurry, in the circumstances of
this impoundment, would mean to move the slurry discharge pipe or take
“some equivalent action so that
fine refuse is deposited between the impoundment pool . . . and the
seepage barrier.” S. Mot. to
Reconsider Orders of Dismissal (6/20/03), at 9. See also S. Br. at
20 (“To MSHA, physically moving
the discharge pipe was the obvious and effective option to achieve
coverage of the seepage barrier with fine refuse, but MCC could have used
any other effective means to cover the seepage barrier.”); Tr. 9 (Secretary’s Opening Argument asserting that
MCC “failed to ensure that fine
coal refuse was deposited along the impoundment seepage barrier.”); see also Tr. I 20. Thus,
the judge’s focus was incorrect
and his analysis incomplete.[12]

“In determining the meaning of
regulations, the Commission . . . utilizes >traditional tools of . . .
construction,’ including an
examination of the text and the intent of the drafters.” Amax Coal Co., 19 FMSHRC
470, 474 (Mar. 1997) (quoting Local Union 1261, UMWA v. FMSHRC,
917 F.2d 42, 44-45 (D.C. Cir. 1990)). In a plain meaning analysis, the
Commission also looks to the language and design of the Secretary’s regulations as a whole. New
Warwick Mining Co., 18 FMSHRC 1365, 1368 (Aug. 1996).

Based on its plain language, the plan provision requires the operator to
place or cause to move fine refuse over the length of the seepage barrier
by regularly changing the course of the slurry discharge. This plain
meaning was also recognized by both MSHA and MCC. MCC Superintendent
Larry Muncie testified that the Impoundment Plan required that the slurry
be “repositioned and
redistributed” so that it
became part of the seepage barrier. Tr. 1170-75. MCC President and
General Manager Dennis Hatfield also testified that one plan provision
stated “as slurry was pumped
into the impoundment . . . it would be redirected throughout the
impoundment pool and effectively coat the seepage barrier.” Tr. 1312-13. Likewise, MSHA
engineers who were part of the investigation team testified that the plan
required the slurry fines to be distributed along the seepage barrier.
Tr. 192, 486-87. The primary MSHA inspector for the impoundment, Robert
Bellamy, testified that the plan required the operator to use whatever
means necessary to direct the slurry discharge along the seepage barrier.
Tr. I 639-41.

The Impoundment Plan clearly states the purpose of the seepage barrier.
The plan provides that:

The purpose of the “seepage
barrier” is twofold. The
primary purpose for the barrier will be to reduce, to the extent
practical, seepage from the impoundment that could contribute to the
occurrence of another “breakthrough.” Secondarily, the barrier will
provide bulk that will collapse into the subsided area in the event
another “breakthrough” occurs and should form a “plug,” limiting the amount of fine coal
refuse and water entering the mine.

MCC Ex. A1, at 012294. Inherent in the language of the impoundment plan
is the requirement that the operator take the necessary measures to
fulfill the purpose of the action mandated, as clearly set forth in the
plan. Here, the plan required MCC to ensure that fine slurry was
distributed along the length of the seepage barrier so as to prevent and
limit the impact of another breakthrough.

Reading the provision at issue within the context of the overall plan is
consistent with the Commission’s construction of mine plans in
accordance with well-settled rules of construction. Mettiki Coal
Corp., 13 FMSHRC 3, 7 (Jan. 1991) (“a written document must be read as a
whole, and . . . particular provisions should not be read in
isolation”). Because the plan
contains an express purpose and the meaning of the provision is apparent,
the operator, as we have previously held in RAG Cumberland Resources,
LP, must carry out the activities required under the plan in an
effective manner. See 26 FMSHRC 639, 647-48 (Aug.
2004),aff’d, Cumberland Coal
Res., LP, 2005 WL 3804997, at *2 (D.C. Cir. 2005) (unpublished)
(requiring compliance to be undertaken in an “effective manner.”). It is incumbent upon MCC to
ensure that its compliance with the plan is effective, especially given
its past history with impoundment failures.[13] MCC does not sufficiently comply
with the impoundment plan by merely pumping fine slurry into the
impoundment without ensuring that the fines have accomplished the stated
purpose, which is to adequately cover the seepage barrier “to reduce, to the extent practical,
seepage from the impoundment that could contribute to the occurrence of
another >breakthrough.’” MCC Ex. A1, at 012294. This
interpretation of the plan provision is also consistent with the purpose
of section 75.216, which governs impoundment plans. As the Commission
found, the purpose of section 75.216 “is to assure the safety of
impoundments and minimize the risk and effect of failure.” Monterey Coal Co., 5 FMSHRC
1010, 1017 (June 1983).

According to the plain meaning of the plan provision, MCC was required to
cover the seepage barrier with fines in order to fulfill the purpose of
the provision. The judge, however, never addressed whether MCC adequately
complied with the provision. The evidence in the record is not conclusive
on this issue. Compare Tr. I 565 with Tr. 479 (Inspector
Bellamy testifying that he saw the slurry discharge pipe being moved,
whereas the MSHA investigation revealed that water level in the
impoundment was above the slurry fines indicating inadequate fines
against the barrier); MCC Foreman Gooslin Dep. Tr. 56-57 (testifying that
there was clear water up against the seepage barrier in the pump area).
Accordingly, we vacate the judge>s dismissal of Order No.7144402.
Furthermore, because fact-finding is not the province of the Commission,
we remand the question of whether MCC provided effective coverage of the
seepage barrier under the terms of the Impoundment Plan. See
Mid-Continent Res., 16 FMSHRC 1218, 1222-23 (June 1994) (holding
that remand appropriate when judge failed to adequately address
evidentiary record); RAG Cumberland Res., 26 FMSHRC at 647-48.
See also Wyoming Fuel Co., 16 FMSHRC 19, 21 (Jan. 1994) (providing
that attempting to comply with the provisions of a plan does not allow
one to escape from liability). If the judge on remand finds a violation,
it will then be necessary to determine whether the violation is S&S
and the result of unwarrantable failure.

B. Summary Dismissal of Citation No. 7144409[14]

The judge found that there was insufficient evidence to establish a
violation of section 77.216-3(d)[15] for Geo’s alleged failure to record the
abatement of hazards in the 7-day impoundment examination report. 7/2/03
Order. He determined that Geo’s
impoundment inspector “very
tersely” noted “that the impoundment breakthrough
had been plugged.” 8/28/03
Order, at 5. The judge found that this notation sufficiently met the
requirement that a 7-day inspection report include, among other things, a
report of the action “taken to
abate hazardous conditions.”
Id. at 4-5.

The Secretary asserts that the judge erroneously dismissed Citation No.
7144409 because he found that the Geo inspector’s report stated that the impoundment
breakthrough had been plugged when it simply did not mention any
abatement measure. Geo responds that the judge correctly dismissed the
citation.

The 7-day report does not state that the impoundment breakthrough had
been plugged, as the judge incorrectly held. Gov’t Ex. 10. The report makes no
mention of plugging or stopping the breakthrough that had occurred a day
earlier. Id. The report only indicates that “all water and some fines were lost
from slurry pool due to mine breakthrough.” Id. Therefore, we conclude
that the judge erred.[16]

We are not persuaded by Geo’s
assertion that its inspector did not have to mention any abatement
measure because there was no hazard at the time of the inspection.
Section 77.216-3(d) requires that the monitoring report include “the action taken to abate hazardous
conditions.” The plain language
of the standard requires a reporting of “the action taken.” Thus, under the standard’s plain meaning, actions in the
past, or at least since the last report 7 days ago, should be recorded.
Additionally, the Secretary’s
interpretation of reporting actions taken since the last 7-day report
provides a comprehensive picture of the impoundment from week to week. If
one were to accept Geo’s
interpretation that it was required to report only hazards that existed
at the time of the inspection, significant events would not have to be
mentioned. Such a result would thwart the safety-promoting purpose of the
standard and the Mine Act and must be avoided. Consolidation, 15
FMSHRC at 1557.

Of course, here, we note that MSHA issued an order pursuant to section
103(k), 30
U.S.C. § 813(k), at 9:00 on
the morning following the breakthrough, and issued nine modifications of
that order over the next several days. MCC Ex. CC. Consequently, not only
was MSHA apprised of the ongoing abatement activity during the operative
time period, the order required MCC to seek permission from the agency
before each phase of the abatement could proceed. Thus, MCC was complying
with the spirit, if not the letter, of the requirements of section
77.216.

Nevertheless, because the inspection report does not state that the
impoundment breakthrough was abated, we reverse the judge and find a
violation based on undisputed evidence. American Mine Services,
Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand unnecessary because
evidence justified only one conclusion). In remanding the matter for an
assessment of a civil penalty under Mine Act section 110(i), 30 U.S.C.
§ 820(i), we note that this
is a bookkeeping violation of a de minimis nature, given that MSHA was at
the scene the day after the failure, and because of the agency’s ongoing awareness of all abatement
efforts undertaken under the aegis of the section 103(k) order in force
when this report was required to be written.

C. Citation No. 7144401

1. Violation[17]

The judge found that MCC violated section 77.216(d) by failing to report
unusual changes in water flow quantity from the South Mains Portal during
September 1999, as required by the Impoundment Sealing Plan. 26 FMSHRC at
46-47. He determined that the Impoundment Sealing Plan required the
operator to report unusual flows to MSHA. Id. at 38, 46. He
reasoned that the record was clear that there was a large increase in
flow that occurred approximately a year prior to October 2000 and that
neither MCC nor Geo evaluated or reported the flow data. Id. at

47. The judge determined that a “prudent” look at the data would have
    provided a warning that further study of the condition was warranted and
    that “much more could and
    should have been done here.”
    Id. He also found that the failure to evaluate the South Mains
    Portal flow data contributed in some measure to the magnitude and timing
    of the impoundment failure. Id.

MCC asserts that the judge committed error in finding that the reporting
provision, which was part of the short-term May Plan, was a requirement
of the permanent Impoundment Sealing Plan. It also argues that the
judge’s determination of
violation is not supported by substantial evidence. The Secretary
responds that substantial evidence supports the judge’s finding that MCC failed to report
an “unusual” change in water flow. She maintains
the text of the Impoundment Sealing Plan plainly requires monitoring of
the South Mains. Additionally, the Secretary urges that her
interpretation, that such monitoring was required under the Impoundment
Sealing Plan, was reasonable and entitled to deference.

Turning to MCC’s first
argument, we address whether the South Mains reporting requirement is
part of the Impoundment Sealing Plan. The South Mains reporting
requirement is found under the heading “Short-Term Plan” in the May Plan, which is
incorporated into and designated as an appendix to the August Plan. MCC
Ex. A1, at 012303. The judge found that the May Plan was part of the
August Plan when he stated that the May 1994 plan “became an Impoundment Sealing Plan
that was approved by MSHA on October 20, 1994.” 26 FMSHRC at 38. Substantial
evidence supports this preliminary determination.[18]

MSHA Inspector John Fredland, who has reviewed impoundment plans for 20
years, testified that “when a
plan is approved in stages, the previous plan stays in effect and the new
plan just covers changes” (Tr.
25, 223, 306), and that a long-term plan does not supercede a
shorter-term plan, unless express changes are submitted. Tr. 305-06.
Inspector Bellamy also considered the May short-term plan in effect and
advised MCC to continue taking readings of the South Mains when he
noticed that it had missed a few in 1999. Tr. I 592, 599-601, 627-28. In
addition, MCC’s actions support
the view that the plan required South Mains monitoring because MCC
continued to monitor the point after the August Plan was in place.
Gov’t Ex. 6.

It was within the judge’s
province to weigh the evidence and make any credibility
determinations. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp.
v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)). The judge found, in
agreement with the testimony of the MSHA inspectors, that “since the monitoring requirement has
never been removed from the Impoundment Sealing Plan, the requirement is
still present.” 26 FMSHRC at

38. See Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984)
    (providing that when a judge’s
    finding rests on credibility determination, Commission will not
    substitute its judgment for that of judge absent clear indication of
    error), aff’d, 766 F.2d 469 (11th
    Cir. 1985).

The judge also determined that the plain language in the May Plan
required weekly monitoring of the South Mains to continue. 26 FMSHRC at

38. He pointed to the text, which said: “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.” Id. (emphasis
    original). He reasoned that the phrase “after that” indicated monitoring was to
    continue after the short-term remedial measures and, since the monitoring
    requirement was never removed from the Impoundment Plan, the requirement
    remained. Id. This holding is supported by the aforementioned
    testimony of MSHA witnesses.

The judge’s holding is
consistent with other language in the plan, which states that MCC was to
continue to monitor the area of the breakthrough and the discharge
points. MCC Ex. A1, at 012292. The South Mains was the major discharge
location in the 1994 breakthrough and, as MCC witness Muncie testified,
it was “the lowest elevation
point of the Impoundment so if anything was amiss the South Mains
discharge would be a good indicator of a problem that needed
investigation.” Tr. 1180. Thus,
from a practical standpoint it made sense to continue to monitor this
point.

As the judge found: “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 South Mains Portal was included in the Plan for the
purpose of alerting responsible parties to the level of risk posed by the
impoundment as time passed.” 26
FMSHRC at 46. Thus, we agree with the judge that the requirement to
monitor the South Mains and to report any unusual changes in flow quality
or quantity that would indicate possible impoundment leakage to MSHA was
part of the permanent Impoundment Sealing Plan.

With regard to the judge’s
conclusion that MCC violated the plan provision by failing to report
unusual changes in water flow to MSHA, we believe that a remand is
necessary. At the outset, we agree in large part with the basic approach
taken by the judge to address the issue of whether a violation occurred.
In particular, we agree with the judge that MCC should have assessed the
water flow levels at the South Mains Portal with a heightened degree of
scrutiny given the prior impoundment failure and the fact that “as the pool level rose the risk of
failure rose.” Id. at

47. As the judge stated, “[i]n
    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.”
    Id.

However, we cannot uphold the judge’s decision because he failed to
explain what test he applied in determining whether “unusual changes” took place, to explain how he
weighed competing testimony in the record, to make explicit findings to
support his conclusion that a violation occurred, and to set forth a
discernible path that allows the Commission to perform its review
function.

The Commission requires that a judge analyze and weigh all probative
record evidence, make appropriate findings, and explain the reasons for
his or her decision. Mid-Continent, 16 FMSHRC at 1222. The D.C.
Circuit has explained that, “[p]erhaps the most essential purpose
served by the requirement of an articulated decision is the facilitation
of judicial review.”
Harborlite Corp. v. ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979).
Without findings of fact and adequate justification for the conclusions
reached by a judge, we cannot perform our review function effectively.
Anaconda Co., 3 FMSHRC 299, 300 (Feb. 1981) (citations omitted).

As an initial matter, the judge does not clearly
explain what test he used to determine whether the Impoundment Plan was
violated and how he applied any such test. In particular, he does not
define the key phrase “unusual
changes” in the context of the Impoundment Plan and does not explain
how this definition is linked to his ultimate conclusion that MCC
violated the Plan. The closest that he comes to setting forth a
definition of “unusual changes” is his
statement that “[w]eekly 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.”26 FMSHRC at 47 (emphasis added). However, the judge does
not explicitly apply this formulation as his test. Moreover, he states
that “[i]t 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”(id. at
40-41), and he nowhere finds that any increases in water flow were
“catastrophic,”nor does he
explain or define that term. This language appears to be dicta, as the
standard merely requires reporting of “unusual”changes,
not “catastrophic”shifts. The
judge’s observation concerning the meaning attached to
“[w]eekly
and . . . monthly changes in the flow amount” is at odds with
his conclusion that he would have expected a reasonably prudent mining
engineer to more closely observe the flow data from the South Mains
Portal. Id. at 47.

Beyond this, the judge failed to adequately address
the evidence before him, to explain how he weighed the competing
testimony in the record, and to make necessary factual findings. The
relevant part of the judge’s opinion
discussing the question of whether a violation occurred (id. at
46-47) contains no citations to any testimony, contains no credibility
determinations, does not attempt to resolve the competing testimony in
the record, and contains no findings that provide a clearly discernible
basis for the conclusion that a violation occurred. In particular,
although the judge concluded that the plan had been violated in some
manner, he never explicitly found anywhere in his opinion that MCC had
failed to report “unusual changes” in water flow
to MSHA, which is the precise matter at issue here.

Similarly, while there is extensive documentary and
testimonial evidence showing a sharp and sustained increase in flows from
the South Mains Portal, and while the judge noted the context created by
the 1994 breakthrough, the judge does not otherwise adequately explain
what path he followed to reach his conclusion that a violation occurred.
It is highly significant that perhaps the most important sentence in his
opinion is badly garbled and is not even a complete sentence. The judge
states at one point: “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 [sic].” Id. at

47. Key words were obviously omitted from this “sentence,”but we can only
    guess what they were and what the judge intended to say. Because of the
    uncertainty of what the judge attempted to say in this pivotal sentence
    and the surrounding text, a remand is warranted.

In summary, because the judge’s opinion fails
to articulate the basis for his conclusion and omits necessary findings,
we cannot affirm it. Although we take no position on whether the record
demonstrates that there were “unusual
changes” in water flow that should have been reported by MCC, the
judge’s opinion falls far short of providing adequate support for
his conclusion that the Plan was violated. We hereby remand this issue so
that another judge can review the evidence in detail and provide a
coherent discussion of the legal issues involved.

If the judge finds a violation, further analyses of
the S&S nature and the unwarrantable failure of the violation will be
warranted. The judge erred in his discussion of both the S&S and
unwarrantable failure issues, and so we provide the following
instruction.

2. S&S[19]

Although the Commission’s test
for an S&S violation is mentioned in a preliminary discussion in the
decision, the judge did not address the S&S designation for the
violation. 26 FMSHRC at 43-44, 47 (citing Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984)). He merely stated that the failure to evaluate
the South Mains Portal flow data contributed in some measure to the
magnitude and timing of the impoundment failure. Id. at 47.

The S&S terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers
to more serious violations. A violation is S&S if, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In Mathies, the Commission further
explained:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard C that is, a measure of danger to
safety C 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.

6 FMSHRC at 3-4 (footnote omitted).

The judge never made findings as to whether the violation was S&S.
Under Commission Rule 69(a), the judge is responsible for addressing
“all findings of fact and
conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the record.” The parties contend that the judge
made findings that support each of their respective views. The Secretary
states that the judge found the first two elements of the Mathies
test whereas MCC argues that the judge did not find the violation to be
S&S. Without explicit findings by the judge, it is impossible to
evaluate his decision on this issue.

The Commission requires that a judge analyze and weigh all probative
record evidence, make appropriate findings, and explain the reasons for
his or her decision. Mid-Continent, 16 FMSHRC at 1222. “Without findings of fact and some
justification for the conclusions reached by a judge, we cannot perform
our review function effectively.” Anaconda, 3 FMSHRC at 300.
Accordingly, if the judge newly assigned to this case finds a violation
of section 77.216(d), we remand for a full Mathies analysis of
whether the violation of section 77.216(d) contained in Citation No.
7144401 is S&S.

3. Unwarrantable Failure, Negligence, and Penalty[20]

The judge found that the violative conduct did not amount to an
unwarrantable failure “in the
sense of wanton or reckless disregard for the risks to life and
property.” 26 FMSHRC at 47. He
assessed the negligence as moderate, found the $55,000 penalty proposed
by the Secretary to be excessive and assessed a penalty of $5,500.
Id. at 47, 49-50.

The Secretary argues that the judge erred in finding that the violation
of section 77.216(d) was a result of moderate negligence and not an
unwarrantable failure. She contends that, instead of applying the
Commission’s test, the judge
applied an incorrect unwarrantable failure test when he stated that
MCC’s conduct was not “wanton or reckless disregard for the
risks to life and property.”
Id. at 47. The Secretary also asserts that the judge erred in
assessing the penalty for the violation because he failed to: (1) make
findings with respect to three of the six statutory criteria under
section 110(i) of the Mine Act; and (2) explain why he reduced the
proposed penalty by 90%. MCC submits that the judge’s moderate negligence finding is
erroneous, as MCC was not negligent with regard to this violation. It
also argues that the Commission should not overturn the judge’s determination of no unwarrantable
failure and that the Secretary’s argument is hypertechnical. In
addition, MCC contends that the judge’s penalty reduction is supported by
the evidence.

The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d),
and refers to more serious conduct by an operator in connection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable
care.” Id. at 2002-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991); see also Buck Creek, 52 F.3d 133, 136 (7th Cir. 1995)
(approving Commission’s
unwarrantable failure test). The Commission examines various factors in
determining whether a violation is unwarrantable, including the extent of
a violative condition, the length of time that it has existed, whether
the violation is obvious or poses a high degree of danger, whether the
operator has been placed on notice that greater efforts are necessary for
compliance, and the operator’s
efforts, made prior to the issuance of the citation or order, in abating
the violative condition. Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988);
Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); Midwest
Material, 19 FMSHRC at 34; Enlow Fork Mining Co., 19 FMSHRC 5,
11-12, 17 (Jan. 1997). All of the relevant facts and circumstances of
each case must be examined to determine if an actor’s conduct is aggravated, or whether
mitigating circumstances exist. Consolidation Coal Co., 22 FMSHRC
340, 353 (Mar. 2000).

The judge failed to utilize the Commission’s established test for unwarrantable
failure. Notwithstanding MCC’s
argument, the judge’s error was
more than semantic. “Wanton” is defined as “[u]nreasonably or maliciously
risking harm while being utterly indifferent to the consequences. In
criminal law, wanton usu[ally] connotes malice . . . , while reckless
does not.” Black’s Law Dictionary 1613
(8th ed. 2004). “Wanton” involves an element of malice,
which is simply not required for a finding of unwarrantable failure.
Malice denotes much more than aggravated conduct. Thus, the judge
utilized too demanding a standard for unwarrantable failure.

In addition, the judge failed to examine any of the factors referred to
above that the Commission reviews when determining whether a violation is
a result of unwarrantable failure. As we noted earlier, the Commission
requires that a judge analyze and weigh all probative record evidence,
make appropriate findings, and explain the reasons for his or her
decision. Mid-Continent, 16 FMSHRC at 1222. Given the absence of
any meaningful findings, we remand the determination of negligence and
unwarrantable failure, again, should a violation of the standard be
found.[21]

As to the penalty, the Commission’s judges are “accorded broad discretion in
assessing civil penalties under the Mine Act.” Westmoreland Coal Co., 8
FMSHRC 491, 492 (Apr. 1986). Such discretion is not unbounded, however,
and must reflect proper consideration of the penalty criteria set forth
in section 110(i) and the deterrent purpose of the Act.[22] Id. (citingSellersburg
Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), aff’d, 736 F.2d 1147 (7th
Cir. 1984)). The judge must make “[f]indings of fact on each of the
statutory criteria [that] not only provide the operator with the required
notice as to the basis upon which it is being assessed a particular
penalty, but also provide the Commission and the courts . . . with the
necessary foundation upon which to base a determination as to whether the
penalties assessed by the judge are appropriate, excessive, or
insufficient.”
Sellersburg, 5 FMSHRC at 292-93. “[A]ssessments lacking record
support, infected by plain error, or otherwise constituting an abuse of
discretion are not immune from reversal.” U.S. Steel Corp., 6 FMSHRC
1423, 1432 (June 1984). In reviewing a judge’s penalty assessment, we must
determine whether the judge’s
findings with regard to the penalty criteria are in accord with these
principles and supported by substantial evidence.

The judge analyzed only three of the penalty criteria, finding that MCC
is a large operator; that the $55,000 penalty MSHA proposed would not
hinder MCC’s ability to stay in
business; and that MCC’s
negligence in failing to report changes in the South Mains water flow
quantity was moderate. 26 FMSHRC at 36, 47. Because we are remanding the
issue of unwarrantable failure, we vacate the judge’s finding on negligence. In
addition, the judge failed to address three other penalty criteria: the
gravity of the violation; MCC’s
history of violations; and MCC’s demonstrated good faith in
attempting to achieve rapid compliance after notification of the
violation.[23]

Accordingly, if a violation is found, we direct the judge on remand to
address fully all six elements of the penalty criteria.

D. Citation No. 7144408[24]

The judge found that both MCC and Geo violated section
77.216-4(a)(7)[25]
by not referring to the underground seals construction in the annual
reports and failing to provide certifications for the seals in those
reports. The judge rejected Geo’s argument that it had no
certification responsibility since it did not perform underground
engineering. 26 FMSHRC at 48. The judge reasoned that even though Geo did
not work underground, that was not a reason to omit underground features
in the annual certification and that a certifying engineer should have at
least noted the exclusion of the underground seals so that a
supplementary certification of the seals could have been obtained.
Id. The judge concluded that the degree of negligence was very low
and assessed a civil penalty of $100 each for both MCC and Geo.
Id. at 48-50. MCC did not appeal the determination that it
violated the certification requirement.

Geo argues that the judge erred in finding a violation against it because
it was cited for a task, i.e., certifying the seals, that it was not
hired to do and for something over which it had no control. It contends
that the Secretary abused her enforcement discretion in citing it for the
violation, when it is not “the
person owning, operating, or controlling a water, sediment, or slurry
impoundment” under section
77.216-4(a).[26]
The Secretary responds that Geo, as an independent contractor, qualifies
as a person operating an impoundment under the plain language and meaning
of section 77.216-4(a). The Secretary asserts that if the standard is
deemed ambiguous, her interpretation is reasonable and entitled to
deference. Additionally, the Secretary argues that substantial evidence
supports the judge’s finding
that Geo was properly cited for the violation.

The threshold question with regard to this violation is who was required
to file the annual report mandated by section 77.216-4(a). The judge
erred by never analyzing the plain terms of section 77.216-4(a) to answer
this question. Dyer, 832 F.2d at 1066 (citing Consumer Products
Safety Comm’n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (holding that the “language of a regulation . . . is
the starting point for its interpretation”). The language of the standard
imposes the annual reporting requirement on “the person owning, operating, or
controlling” an impoundment and
states that this person will submit “a report” to the MSHA District Manager. 30
C.F.R. § 77.216-4(a)
(emphasis added). Thus, the standard itself contemplates that a single
person B the one owning,
operating, or controlling the impoundment B is responsible for the submission
and validity of a single annual report.

Further examining the regulatory language, we note that the phrase “owning, operating or
controlling” is not defined in
the regulation. Thus, we consider the ordinary meaning of the words.
Lopke Quarries, Inc., 23 FMSHRC 705, 708 n.2 (July 2001). “Own[ing]” is defined as having “rightful title to.” Webster’s Third New
Int’l
Dictionary (Unabridged) (1993) at 1612. “Operating” is defined as “perform[ing] a work or labor; . . .
manag[ing] and . . . keep[ing] in operation; . . . engaged in active
business.” Id. at
1580-81. “Controlling” is “exercis[ing] restraining or
directing influence over.”
Id. at 496-97. Because we determine that the language of the
regulation is plain, we need not address the Secretary’s arguments that her interpretation
of the standard is entitled to deference. Exportal, 902 F.2d at
50.

It is undisputed that MCC owned the Big Branch Slurry Impoundment. The
record demonstrates that MCC was also responsible for managing the
impoundment, for keeping it in operation on a day-to-day basis, and for
controlling it. For example, the record reveals that the Superintendent
of the adjacent MCC preparation plant, an MCC official, was responsible
for the daily operation of the impoundment and the disposal of refuse
from the plant into the impoundment. Tr. 1257. Among other things, the
MCC Superintendent, Larry Muncie, had overall responsibility for carrying
out the Impoundment Sealing Plan (Tr. 1167), for monitoring the condition
of the impoundment (Tr. 1150), and for ensuring that the refuse went to
the proper locations (Tr. 1150). He also decided whether and when to pump
clear water from the impoundment to the preparation plant. Tr. 1188-90.
He assigned each shift foreman to inspect the impoundment during each
shift and to look for leakage, boils, erosion, or anything else abnormal.
Tr. 1178. Muncie also personally inspected the impoundment at least once
during each shift that he worked (Tr. 1206-07) and personally
inspected the South Mains Portal at least three times per week (Tr.
1178). In addition, he reviewed the 7-day monitoring reports submitted to
him by Eddie Howard, a Geo employee; signed the reports to finalize them;
and was responsible for deciding whether problems raised by the reports
needed to be addressed. Tr. 1151-1154. Thus, under the plain terms of
section 77.216-4(a), MCC was clearly “the person owning, operating, or
controlling” the impoundment.
As a result, MCC was solely responsible under section 77.216-4(a) for
submitting the annual report to MSHA.[27]

The record also reveals that Geo was hired by MCC as an engineering
consultant to monitor the condition of the impoundment and to provide
annual certifications covering the Impoundment Sealing Plan. Tr. I
693-694, 762-763; Gov’t Ex. 9.
Geo, as the engineering consultant, prepared the annual reports for 1995
through 2000 on behalf of MCC. Gov’t Ex. 9. Each report contained a
description of the construction that MCC had undertaken during the
preceding year, certain monitoring results from the impoundment, and
certification by a registered engineer from Geo that, during the
preceding year, all construction and maintenance activities had been
carried out in accordance with approved plans. Tr. I 110-111; Gov’t Ex. 9. Each year the reports,
which expressly stated that they were prepared “on behalf of” MCC (Gov’t Ex. 9), were initially submitted
by Geo to MCC. Tr. I 117. Subsequently, MCC would either submit the
report to MSHA itself or request that Geo send it directly to MSHA on its
behalf. Tr. I 117-118. Accordingly, Geo’s duties encompassed far less than
controlling or operating the impoundment itself as contemplated by the
standard. Geo, the registered engineer hired by MCC
to conduct certain monitoring and to make certifications, was not “the person owning, operating, or
controlling” the impoundment.
Thus, section 77.216-4(a) is inapplicable to Geo in this case.[28]

We also reject the Secretary’s
argument that Geo is covered by the standard because as an independent
contractor, it is generally considered an “operator” under the Mine Act. Section 3(d) of
the Mine Act defines an “operator” as including an “independent contractor performing
services” at a mine. 30 U.S.C.
§ 802(d). The
Secretary’s argument lacks
merit because section 77.216-4(a) does not contain the word “operator.”[29] Instead, the regulation applies to “the person owning, operating, or
controlling” the impoundment.
If the Secretary intended for the statutory definition to apply, she
could have simply used the term “operator” or defined the term “operating” in section 77.216-4(a) to include
independent contractors. Indeed, the fact that the Secretary did not
expressly include those terms in light of the well-known definition of
“operator” leads us to conclude that something
other than the statutory definition of “operator” applies in section 77.216-4(a).

Likewise, the Secretary’s use
of the term “operator” in the preamble to the rule does
not establish that all independent contractors fall under the reach of
the standard. 57 Fed. Reg. 7468, 7469-70 (Mar. 2, 1992). First, a
preamble is “not officially
promulgated” and does not take
precedence over the express words of the regulation. See King Knob
Coal Co., Inc., 3 FMSHRC 1417, 1420 (June 1981) (quoting H.B.
Zachry v. OSHRC, 638 F.2d 812, 817 (5th Cir. 1981) (providing that
“the express language of a
statute or regulation >unquestionably controls’ over material like a . . .
manual”). Under the plain terms
of section 77.216-4(a), only “the person owning, operating, or
controlling” the impoundment
would be subject to the annual reporting
requirement. Second, nowhere does the preamble expressly state or even
imply that the rule applies to independent contractors.

Finally, the position that Geo could be cited as an independent
contractor for violating section 77.216-4(a) ignores the specific nature
of that standard. Section 77.216-4(a) creates an annual reporting
requirement that, by its terms, is applicable to “the person owning, operating,
or controlling” the impoundment
(emphasis added). For purposes of this case, such a narrowly prescribed
reporting requirement is very different from a more broadly worded,
non-reporting safety standard. With regard to such a general safety
standard (e.g., “Machinery and
equipment shall be operated only by persons trained in the use of and
authorized to operate such machinery or equipment”),[30] the responsibility for complying with the
standard can rest with the production operator, an independent
contractor, or both, depending on the circumstances. But the
responsibility for complying with a specific reporting requirement such
as that in section 77.216-4(a) rests solely with the person designated by
the standard to submit the report, absent explicit regulatory language
providing otherwise.

Under section 77.216-4(a), MCC was solely responsible for submitting the
annual report, including engineering certifications, as “the person owning, operating, or
controlling” the Big Branch
impoundment. Therefore, we reverse the judge’s finding of violation against Geo
and vacate Citation No. 7144408.

E. Citation No. 7144410[31]

The judge dismissed Citation No. 7144410, which alleged that Geo failed
to include the readings for the South Mains portal outflow pipe in the
annual reports under section
77.216-4(a)(2).[32] 26 FMSHRC 48-49. He reasoned that the
critical issue was whether the South Mains portal outflow pipe combined
with a ruler constituted an “instrument” for purposes of this regulation,
and therefore the readings had to be listed in an annual report submitted
to MSHA.
Id. The judge found that the pipe was not an “instrument” as it was not identified as such on
the plan view.[33]
Id.

The Secretary argues that the judge erred because he ignored the ordinary
dictionary meaning of the term “instrument,” and because he failed to accord
deference to the Secretary’s
interpretation of her own standard. Geo responds that the judge should be
affirmed because the drainage pipe was not an “instrument,” as it was not listed as an “instrument” in the plan view.

Section 77.216-4(a) requires that the annual report to MSHA contain the
“[l]ocation and type of
installed instruments and the maximum and minimum recorded readings of
each instrument for the reporting period.” Both the parties and the judge
overlook one of the plain requirements of the standard: the instrument
must be “installed.” See Dyer, 832 F.2d at 1066
(providing that where the language of a regulatory provision is clear,
the terms of that provision must be enforced as they are written).

The evidence was undisputed that the Geo examiner utilized a ruler
within a drainage pipe to measure the outflows from the South Mains. This
type of measuring device would seem to fit the common definition of “instrument.” However, it clearly does not
trigger the reporting requirement of section 77.216-4(a)(2) because the
ruler, which was carried by the examiner, was not “installed” in any manner. Therefore, because
only “installed” instruments are covered under
section 77.216-4(a)(2), we reject as unreasonable the Secretary’s interpretation that the pipe and
ruler should be listed in the annual report and the resultant readings
should be included in the report. Accordingly, although we employ
different reasoning, we affirm the judge’s dismissal of Citation No. 7144410
in result.

III.

Conclusion

With respect to Order No. 7144402 (redirecting the fines) against MCC, we
vacate the judge’s dismissal of
the order and remand consistent with the instructions in this decision.
If the judge finds a violation, additional analyses of whether the
violation is S&S and a result of unwarrantable failure will be
necessary. As to Citation No. 7144409 (7-day report) against Geo, we
reverse the dismissal, find a violation, and remand for the assessment of
a civil penalty. With respect to Citation No. 7144401 (reporting of
unusual changes in water flow) against MCC, we vacate and remand the
finding of a violation, the negligence finding, the S&S
determination, the unwarrantable failure determination, and the penalty
determination. As to Citation No. 7144408 (certification of seals)
against Geo, we reverse and dismiss. With respect to Citation No. 7144410
(inclusion of flow readings in the annual report) against Geo, we affirm
in result the judge’s
dismissal. On remand, the judge may re-open the record to take additional
evidence or for further briefing, as needed.

---

Michael G. Young, Commissioner

Chairman Duffy, concurring:

I join Commissioners Young and Jordan in vacating the judge’s dismissal of Citation No. 7144402
and remanding the matter for further fact-finding. I would remand the
“redirecting the fines” issue to the newly assigned judge
because it is unclear what analysis the judge below used to conclude that
no violation occurred. The judge concluded that the Secretary had failed
to make a prima facie case on this issue, but the judge’s discussion is so incomplete and
confused that we can only guess as to the precise reasoning he used.
Similarly, although it appears that the judge attempted to apply the
“reasonably prudent person” test, there is no adequate
explanation of how he concluded that the operator lacked sufficient
notice of the interpretation relied upon by the Secretary.

While I agree that this matter should be remanded, I am concerned about
the majority’s approach to
interpreting the provisions of the Impoundment Sealing Plan in addressing
this issue. For example, the majority decision argues that the words of
the plan provision in question are clear and therefore that a “plain meaning” approach must apply here. Slip op.
at 9-11. However, the question is not whether each discrete word within
the provision has a plain meaning based upon a review of dictionary
definitions. Instead, the key question is whether it is clear what the
statement “fine refuse shall be
directed along the barrier by periodically redirecting the discharge of
fine refuse slurry” meant in
the context of this case where each side believes that its interpretation
is consistent with the plain meaning of the words in a mutually agreed
upon plan provision.

Although it is undisputed that the fines had to be periodically
redirected, it is not clear from the words alone precisely what the
phrase “periodically
redirect” means here: Did MCC
have to periodically move the outlet pipe itself? Was it sufficient if
MCC instead periodically changed the direction in which the pipe was
aimed without actually moving it? Was it sufficient if fines were being
periodically redirected by the natural water flows within the
impoundment? The issue is made even more complicated by the
Secretary’s position that the
plan should be interpreted as requiring compliance by “either physically moving the
discharge pipe or using some other method which covered the
barrier with an adequate amount of fines to limit seepage from the
impoundment into the mine.” S.
Br. at 25 (emphasis added). What is an adequate amount of fines? Were the
fines required to cover every square inch of the seepage barrier? How
high along the rim of the impoundment were the fines required to reach? A
plain meaning analysis simply cannot resolve these kinds of
questions.[34]

Based on the foregoing, I think the conclusion is inescapable that the
relevant words of the plan provision are ambiguous and/or silent with
regard to key issues raised by this case. Because the plan provision is
ambiguous and/or silent, the question is what is the correct approach for
the Commission to take in interpreting the provision. The majority
opinion incorrectly states that, because a plan provision is enforced as
a mandatory standard, the same rules of deference apply in interpreting a
plan provision as would apply in interpreting a mandatory standard
promulgated by the Secretary, i.e., the Secretary’s interpretation should be upheld if
it is reasonable. Slip op. at 8-9. As shown below, the majority’s interpretive approach directly
contradicts established Commission case law and ignores the fact that
plan provisions are measures negotiated between MSHA and the
operator,[35] not
regulations promulgated by the Secretary.

The Commission has made clear that, in interpreting plan provisions, it
will treat plan provisions very differently from mandatory standards
promulgated by the Secretary. With regard to plan provisions, the
Secretary has the burden of showing that a plan provision applies to an
operator and that the condition or practice in question violated the
provision.[36]
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280-81 (Dec. 1998);
Jim Walter Res., Inc., 9 FMSHRC 903, 906-08 (May 1987) (“JWR”). As stated in Harlan
Cumberland, “When a plan
provision is ambiguous, the Secretary may establish the meaning intended
by the parties by presenting credible evidence as to the history and
purpose of the provision, or evidence of consistent enforcement.” 20 FMSHRC at 1280 (footnote and
citation omitted). In JWR, the Commission ruled that the Secretary
had failed to meet his burden in upholding his interpretation of a plan
provision, where (1) the record contained “no detailed and consistent testimony
from the Secretary’s witnesses
illuminating the meaning of the . . . provision” and (2) “the Secretary presented no evidence
of any prior consistent enforcement of the . . . provision that might
have established that [the operator] was on notice regarding the
Secretary’s interpretation of
the
meaning of the provision.” 9
FMSHRC at 907-08. See also Harlan Cumberland, 20 FMSHRC at 1281.

Accordingly, on remand, I believe the judge must determine whether the
Secretary has met her burden of demonstrating the meaning of the plan
provision in question through evidence of the history of the provision,
e.g., contemporaneous memos or letters, testimony of persons involved in
the negotiating and approval process, opinions from experts regarding
whether the words had a generally accepted technical meaning, or evidence
of consistent enforcement. Furthermore, as explained in JWR, 9
FMSHRC at 908, the operator must have been adequately put on notice as to
MSHA’s intended meaning. Thus,
a proper analysis based on the “reasonably prudent person” test (see U.S. Steel Mining
Co., 27 FMSHRC 435, 438-44 (May 2005)) should be conducted in
conjunction with the analysis set forth in Harlan Cumberland and
JWR. Once the meaning of the plan provision has been properly
determined, the judge should engage in fact-finding to ascertain whether
MCC complied with the provision.

Finally, I am also concerned about certain language in the majority
decision stating that compliance with the plan provision in question must
be carried out in “an effective
manner.” Slip op. at 10-11.
Although I agree that the fines had to be redirected in a way that was
fully consistent with the intent of the plan provision B once that intent is determined
B I believe that there is a
danger that “effectiveness” might be equated with whether or
not a breakthrough of the seepage barrier occurred. It is important to
recognize that a breakthrough might have occurred through natural forces
even though the fines were distributed along the seepage barrier as well
as humanly possible. Conversely, the operator might have failed to comply
with the plan provision even though no breakthrough occurred. Moreover,
the plan itself stated that the seepage barrier served two separate
purposes: (1) to reduce seepage from the impoundment that could
contribute to the occurrence of another breakthrough; and (2) to provide
bulk that would collapse if another breakthrough were to occur and form a
“plug” that would limit the amount of
refuse and water entering the mine. MCC Ex. A1, at 012294. Thus, the plan
itself recognized that a breakthrough might occur even if fines were
“effectively” distributed along the seepage
barrier.

In summary, I agree with my colleagues that the judge’s decision vacating Citation No.
7144402 should be reversed and remanded to the newly assigned judge.
However, I would direct that judge not to use a “plain meaning” approach to interpreting the plan
provision and instead to follow established Commission precedents in
ascertaining the meaning of the plan provision intended by the parties.

---

Michael F. Duffy, Chairman

Commissioner Jordan, concurring in part and dissenting in part:

Although I join in the remainder of the majority opinion, I do not agree
with the decision of my colleagues to remand to the judge the issue of
whether MCC violated the plan provision by failing to report unusual
changes in water flow to MSHA, nor in their reversal of the judge’s finding of violation against Geo
for its failure to include references to the underground seals
construction in the annual certification reports.

A. Citation No. 7144401 - Failure to Report Unusual Changes in Water
Flow

I agree with the majority’s
ruling that the requirement to monitor the South Mains and to report any
unusual changes in flow or quality or quantity that would indicate
possible impoundment leakage to MSHA was part of the permanent
Impoundment Sealing Plan. The next question is whether substantial
evidence supports the judge’s
finding that MCC violated the provision by failing to report unusual
changes in water flow to MSHA and by failing to implement necessary
remedial measures. The record revealed that from 1994 to September 1999,
the average flow measurement from the South Mains was 5.5 inches.
Gov’t Ex. 1, at 26 and Fig. 38;
Tr. 298. In September 1999, the average flow rose to 8.6 inches. Gov’t Ex. 1, at 26 and Fig. 38; Tr.
298-99, 811-15. The increase in flow represented a 56% increase in flow
depth.[37] Tr.
502-03, 980-81. MSHA engineering expert Richard Almes testified that this
change represented a marked increase and was unusual. Tr. I 333-36;
see also Tr. 1067-70. MSHA Technical Support Inspector Fredland
testified that the flow increase was significant and had roughly doubled.
Tr. 131. He also explained that, as the increase was not accounted for by
rainfall or other factors, the increase could indicate a possible leak in
the impoundment. Tr. 131-32, 244-45. I conclude that a 56% increase in
flow that occurred approximately a year prior to the October 2000
impoundment failure should be viewed as out of the ordinary, or “unusual.”

It is true that evidence was introduced that calls this finding into
question. MCC Preparation Plant Superintendent Muncie and the weekly Geo
examiner Howard testified that the weekly data did not give them any
indication of an unusual change, and its expert discerned no changes that
would have been cause for concern. Tr. 1218-19; Tr. I 222-24. MCC expert
engineer Chris Lewis reviewed the data and discerned no changes that
would have given him concern. Tr. I 889-90. Barry Thacker, President of
Geo, also testified that the increase in flow would have naturally
occurred as the impoundment level increased. Tr. I 698-703, 780-81. MCC
introduced evidence that showed that other factors, such as surface
run-off from the surrounding watershed, affected the flow in the South
Mains. MCC Br. at 9-10. MCC witnesses testified that for an unusual
change to happen, the color of the water had to darken, which did not
occur. Tr. I 68-69, 224, 464; 26 FMSHRC 35, 40-41 (Jan. 2004) (ALJ).
Additionally, MSHA Inspector Bellamy, who regularly inspected the
impoundment, also did not detect an unusual
change in the weekly data and no citations were ever issued for failing
to report an unusual change to MSHA. Tr. I 568-69.

However, the Secretary effectively rebutted this evidence. For example,
as to the South Mains flow stemming from surface run-off, MSHA Inspector
Fredland testified that the main contributor to the South Mains Portal
pond was the impoundment, and there was only a small percentage of water
coming from the mine or surface run-off. Tr. 226-28. MSHA witnesses also
testified that an unusual change would not necessarily involve darker
water or particles in the outflow because of the far distance between the
impoundment and the South Mains portal and because the solids would
settle out before arriving at the South Mains. Tr. 601-03. The record
revealed, and the judge found, that MCC and Geo personnel never evaluated
the readings over time and so never perceived any change in the data. Tr.
300-02, 504; 26 FMSHRC at 47. MSHA engineer Patrick Betoney testified
that unless MCC or Geo monitored the flow by simply plotting the data,
there would be no way to monitor the flow accurately. Tr. 505, 626-28. He
believed this was especially important given the earlier breakthrough and
one of the key items in the plan was monitoring the flow data. Tr. 505.
Similarly, MSHA expert Almes testified that “any competent dam engineer . . . is
very sensitive to seepage flows related to impoundments” and even more “particularly” “because of a history of a major
breakthrough.” Tr. I 338.

As to the fact that the MSHA inspector also did not notice an unusual
change, MSHA engineer Betoney testified that Inspector Bellamy was at the
impoundment on a very infrequent basis B perhaps yearly. Tr. 628. He stated
that the inspectors did not graph the flow, as they were not there on a
daily or weekly basis. Tr. 626. He testified that an inspector ensures
that the weekly inspection is performed in the first place and might look
a few months back at the data, but the inspector is not familiar enough
with the impoundment to make an overall assessment of the flow. Tr.
627-29. In addition, the Commission has repeatedly held that lack of
previous enforcement of a safety standard does not constitute a defense
to a violation, and that estoppel does not generally apply against the
Secretary. U.S. Steel Mining Co., 15 FMSHRC 1541, 1546-47 (Aug.
1993) (citing King Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June
1981); Bulk Transp. Serv., Inc., 13 FMSHRC 1354, 1361 n.3
(Sept. 1991)).

Because the judge’s
determination that MCC violated the plan provision requirements to
monitor the South Mains and report unusual changes to MSHA (26 FMSHRC at
38, 47) is supported by substantial evidence, I would affirm his finding.
See Island Creek Coal Co., 15 FMSHRC 339, 347 (Mar.
1993) (providing that Commission cannot overturn judge’s findings that are supported by
substantial evidence). Consequently, I believe that a remand is
unnecessary. A remand to a new judge (which will be necessary because
Judge Schroeder is no longer with the Commission) is particularly
inappropriate in this case, as the second judge did not hear the live
testimony of the witnesses, so he or she is in no better position than we
are in that regard, and will simply have to comb the record for relevant
evidence, as has already been done here.

I also disagree with the majority’s view that a remand is necessary
because the judge “never
explicitly found anywhere in his opinion that MCC had failed to report

unusual changes’ in water flow to MSHA, which is the
precise issue at question here.” Slip op. at 16. On the contrary,
MCC conceded, and the judge found, that “[n]o unusual flows were reported to
MSHA.” 26 FMSHRC at 46; Tr. 7.
Furthermore, the judge explicitly found that “[o]f particular significance is the
large increase in flow that occurred approximately a year prior to the
October 2000, impoundment failure.” 26 FMSHRC at 47.

Moreover, the majority insists on a remand because the judge did not
clearly explain what test he used to find a violation, and did not define
the phrase “unusual
changes.” Slip op. at 16. I
believe my colleagues are unnecessarily complicating this issue. I do not
believe that any “test” need be applied here, and I believe
that the judge need not have defined “unusual changes” because the plain meaning of the
term is fairly obvious to any reader.[38]

B. Citation No. 7144408 - Failure to Reference Underground Seals
Construction in the Annual Certification Reports

The majority’s view that 30
C.F.R. § 77.216-4(a) does
not apply to Geo is not consistent with the wording of the regulation,
nor with the evidence in the record. The standard at issue provides in
pertinent part that:

[E]very twelfth month following the date of the initial plan approval,
the person owning, operating, or controlling a water, sediment, or slurry
impoundment . . . 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).
Even under the dictionary definition of the term “operating” employed by the majority, Geo fits
squarely within the purview of this regulation.

The majority defines “operating” as “perform[ing] a work or labor; . . .
manag[ing] and
. . . keep[ing] in operation; . . . engaged in active business.” Slip op. at 21. Its own description
of Geo’s actions at the
impoundment demonstrate that Geo was managing the operation there. MCC
hired Geo to take over the engineering consultant role, to perform weekly
impoundment monitoring, and to prepare impoundment annual reports and
certifications. Slip op. at 4. Furthermore, the majority recognizes that
“Geo was hired . . . to monitor
the condition of the impoundment and to provide annual certifications
covering the Impoundment Sealing Plan.” Slip op. at 22. Yet in the next
breath, and with no explanation or discussion whatsoever, it simply
offers the conclusory statement that “Geo’s duties [were] far less than
controlling or operating the impoundment itself as contemplated by the
standard.” Id.

The evidence in the record does not support this assertion. As Geo itself
explains, G. Br. at 2, it performed weekly inspections from early 1996
through October 2000 (Gov’t Ex.
6) and prepared annual reports for the impoundment for 1996, 1997, 1998,
1999 and 2000. Gov’t Ex. 9. The
weekly inspections covered a wide variety of conditions at the
impoundment (Gov’t Ex. 6), and
Geo performed on a weekly basis periodic observation of construction,
density testing of the compacted coarse refuse, and monitoring of the
existing piezometers. Gov’t Ex.

9. In particular, Geo monitored the condition of the structure in regard
   to erosion, slope stability, cracks and problems with the dam structure
   itself; monitored flows discharged from the internal drains to see if
   there were changes indicating a problem, monitored the elevation of the
   pool and the fines around the embankment, and monitored the conditions of
   the impoundment itself along the barrier. Tr. I 93-94. Geo’s inspector was instructed to call
   Geo immediately if a change in the water flow occurred so that Geo could
   implement a plan for further investigation. Tr. I 95-96. In sum, Geo’s “function was to look after the
   impoundment.” Tr. 508. Geo’s extensive duties thus consisted of
   “manag[ing] and . . . keep[ing]
   in operation” the impoundment,
   consistent with the majority’s
   definition of “operating.”[39] In fact, the record does not reveal in any
   similar detail oversight at the impoundment by MCC during that time frame
   that would constitute management or operation of the facility. The tasks
   performed by Geo at the impoundment also support the view that Geo was
   “controlling” the impoundment. See Bituminous
   Coal Operators’
   Assoc., Inc. v. Sec’y of Interior, 547
   F.2d 240, 246 (4th Cir. 1977) (“[W]hen a construction company is
   sinking a shaft, excavating a tunnel, or building a tipple, it is
   controlling or supervising a coal mine . . .”). In sum, the record reflects that
   MCC had, for the most part, delegated oversight of the impoundment to
   Geo.

In addition, I reject Geo’s
argument, G. Br. at 11-15, that it should not have been cited for its
failure to certify the seals because it was not hired to do this task and
was not permitted to work underground. The judge correctly ruled that
simply because Geo did not work underground did not provide a valid
reason for excluding underground features of an impoundment plan from the
annual certification if the features (in this case, the seals) were part
of the plan.[40]
26 FMSHRC at 48. In its annual report and certification, Geo stated:
“[W]e hereby certify that for
the [relevant] period . . . the Big Branch Slurry Impoundment was
constructed and maintained in general accordance with the approved plans
and any recommended changes required to suit field conditions consistent
with the disposal concept.”
Gov’t Ex. 9, at MCC004261. This
broad statement could certainly lead any reasonable reader to assume that
the seals had been examined. I agree with the judge that a certifying
engineer should have, at a minimum, noted the exclusion of a feature from
a submitted certification so that a supplement by another entity could
have been submitted. 26 FMSHRC at 48.

In any event, the importance of the seals in ensuring the integrity of
the impoundment was not a foreign concept to Geo. Although Geo attempts
to distance itself from any involvement with the seals, in fact the
record presents a different picture. For example, Scott Ballard, a senior
project manager for Geo, Tr. I 40, had previously worked for Ogden (the
predecessor to Geo, slip op. at 3-4). Tr. I 45. While employed by Ogden,
he wrote the August 1994 Impoundment Sealing Plan, Tr. I 191, in which
seals had initially been proposed. Tr. I 167. When the proposed seals
were not accepted by MSHA, Ballard wrote to MCC, providing detailed
comments about the seals, Gov’t
Ex. 2A (October 3, 1994 letter) and MCC forwarded those comments to MSHA.
Gov’t Ex. 2A (October 5, 1994
letter). Ballard testified that MCC contacted him and requested that he
provide calculations for an alternative plan for the seals, which he did.
Tr. I 90-91. See also Tr. 1297; Gov’t Ex. 7 (attachments to Campoy
letter of September 7, 1995). Accordingly, given Ballard’s significant involvement with the
impoundment and the issues involving the seals, the statement by Geo’s counsel at oral argument that
“Geo actually didn’t even know the seals were
built,” Oral Arg. Tr. 84,
appears somewhat farfetched.

The judge’s finding that the
annual reports and certifications did not include a reference to the
underground seals is undisputed. Accordingly, for the reasons stated
above, I would affirm the finding of a violation.

For the foregoing reasons, I respectfully dissent.

---

Mary Lu Jordan, Commissioner

Distribution

Jack Powasnick, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Mark E. Heath, Esq.

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East

P.O. Box 273

Charleston, WV 25321

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

2333 Alumni Park Plaza, Suite 310

Lexington, KY 40517

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

[1] Commissioner
Suboleski recused himself in this matter.

[2] A majority of the
Commissioners joins in each section of Commissioner Young’s opinion, and therefore it
constitutes the Commission’s
decision in this case. A footnote at the beginning of each section
explains which Commissioners join in that section.

[3] Administrative Law
Judge Schroeder is no longer with the Commission. We therefore remand the
proceeding to the Chief Administrative Law Judge for reassignment.

[4] The transcript
from the hearings held on June 9 through June 12, 2003 is referred to as
“Tr.” and the transcript from the
hearings on August 4 through August 7, 2003 is referred to as “Tr. I.”

[5] At the end of the
Secretary’s case on June 12,
2003, MCC and Geo moved to dismiss the Secretary’s case and the judge initially
orally dismissed Order No. 7144402 and Citation No. 7144409. Tr. 1221,
1245, 1247. On July 2, 2003, the judge issued an Order Granting Partial
Motion to Dismiss, memorializing his earlier ruling and dismissing the
two claims. On

August 4, 2003, in response to the Secretary’s motion for reconsideration, the
judge agreed to hear the testimony of the Secretary’s expert witness. Tr. I 36. On
August 7, after hearing the Secretary’s witness, the judge again stated
that the Secretary had not established a claim as to Order No. 7144402,
regarding the redirecting of the slurry discharge along the seepage
barrier. Tr. I 990-92. On August 28, 2003, the judge issued an Order
Denying Motion to Reconsider Dismissal of Citations, which dismissed the
order and the citation. Appendix A of the judge’s decision also sets forth his
reasoning for dismissing Order No. 7144402. 26 FMSHRC at 51.

[6] Although Geo has
filed an appeal of this violation, MCC has not. In addition, two other
citations that are discussed in the judge’s decision have not been appealed
and are no longer at issue before the Commission. See 26 FMSHRC at
47-49 (Citation No. 7144403, in which the judge found a violation of
section 77.216(d) for seals that were not constructed in accordance with
the approved plan; Citation No. 7144411, in which the judge dismissed a
violation of section 77.216-3(a)(4) for inspections by an unqualified
inspector).

[7] Commissioner
Jordan joins Commissioner Young in Part. II.A of this opinion.

[8] 30 C.F.R. § 77.216(d) provides:

The design, construction, and maintenance of all water, sediment, or
slurry impoundments and impounding structures . . . shall be implemented
in accordance with the plan approved by the District Manager.

[9] Commission Rule
1(b) states:

On any procedural question not regulated by the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801 et seq. (“the Act”), these Procedural Rules, or the
Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the
Commission and its Judges shall be guided so far as practicable by the
Federal Rules of Civil Procedure and the Federal Rules of Appellate
Procedure.

29 C.F.R. § 2700.1(b).

[10] MCC
incorrectly argues that the issue was not properly preserved for appeal
under Federal Rule of Civil Procedure 59 because the Secretary failed to
raise the argument that further proof was necessary prior to the
judge’s June 12, 2003
dismissal. MCC Resp. Br. at 5. Rule 59 provides for new trials and the
amendment of final judgments. Building Indus. Ass’n of Superior CA v.
Sec’y of
Interior, 247 F.3d 1241, 1245 (D.C. Cir. 2001) (providing that Rule
59 applies only to final judgments). However, the judge did not enter a
decision in this case until January 14, 2004. 26 FMSHRC at 35. The
Secretary properly brought her June 20, 2003 motion to reconsider the
judge’s orders of dismissal at
the interlocutory stage of the proceedings, and appropriately sought
review of the issue by filing a petition for discretionary review with
the Commission within 30 days of the judge’s decision. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R.

§ 2700.70(a).

[11] We dispute the concurrence’s assertion that
our “interpretative approach directly contradicts established
Commission case law.”
Slip op. at 28. See Energy West, 17
FMSHRC at 1316-17 (applying controlling Commission case law on regulatory
interpretation to interpretation of ventilation plan). We need not
address the concurrence’s assertion that
plan provisions are treated “very differently
from mandatory standards,” Slip op. at 28 (citing Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280-81
(Dec. 1998) and JWR, 9 FMSHRC at 906-08), or the deference
arguments raised by the parties because we determine that the plan
provision is plain. See Exportal Ltda v. United
States, 902 F.2d 45, 50 (D.C. Cir. 1990) (quoting Pfizer, Inc. v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (“Deference . . . is not in order if
the rule’s meaning is clear on
its face.”)

[12] Our concurring
colleague is similarly focused on the means used to comply with the clear
mandate of the plan provision at issue. Slip op. at 27.

[13] The questions
relied on by our concurring colleague (e.g., must the fines “cover every square inch of the
seepage barrier?” Slip op. at
27), to reach the conclusion that the provision is ambiguous are simply
evidentiary matters best left to the judge on remand.

[14] Chairman Duffy
and Commissioner Jordan join Commissioner Young in Part II.B of this
opinion.

[15] 30 C.F.R.
§ 77.216-3(d) provides in
pertinent part: “All
examination and instrumentation monitoring reports . . . shall include a
report of the action taken to abate hazardous conditions.”

[16] As discussed
in the preceding analysis, the judge did have an opportunity to hear all
of the Secretary’s evidence
relating to Citation No. 7144409 prior to finally dismissing the claim on
August 28, 2003. Accordingly, we reject the Secretary’s assertion that the judge committed
a procedural error in granting the partial dismissal.

[17] Chairman Duffy
joins Commissioner Young in Part II.C.1 of this opinion.

[18] When reviewing
an administrative law judge’s
factual determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test. 30 U.S.C.

§ 823(d)(2)(A)(ii)(I).
“Substantial evidence” means “>such relevant evidence as a
reasonable mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal
Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). In reviewing the whole
record, an appellate tribunal must consider anything in the record that
“fairly detracts” from the weight of the evidence
that supports a challenged finding. Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).

[19] Chairman Duffy
and Commissioner Jordan join Commissioner Young in Part II.C.2 of this
opinion.

[20] Chairman Duffy
and Commissioner Jordan join Commissioner Young in Part II.C.3 of this
opinion.

[21] Because of the
close relation between unwarrantable failure and negligence, on remand,
if the judge finds a violation, he must make a complete analysis of
unwarrantable failure under the correct standard and determine the proper
level of negligence attributable to the violation. See Emery, 9
FMSHRC at 2001 (reasoning that unwarrantable failure constitutes more
than ordinary negligence).

[22] Section 110(i)
sets forth six criteria to be considered in the assessment of penalties
under the Act:

[1] the operator’s history of
previous violations, [2] the appropriateness of such penalty to the size
of the business of the operator charged, [3] whether the operator was
negligent, [4] the effect on the operator’s ability to continue in business,
[5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after
notification of a violation.

30 U.S.C. § 820(i).

[23] The judge also
failed to explain in any detail why he reduced the penalty significantly
from $55,000 to $5,500. As stated in Douglas R. Rushford Trucking,
22 FMSHRC 598, 601 (May 2000), an explanation for a substantial
divergence between the Secretary’s original penalty proposal and the
judge’s penalty assessment is
“particularly essential.”

[24] Chairman Duffy
joins Commissioner Young in Part II.D of this opinion.

[25] Section
77.216-4(a) provides in pertinent part that “every twelfth month following the
date of the initial plan approval, the person owning, operating, or
controlling a water, sediment, or slurry impoundment . . . 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.”

[26] The Secretary
argues that Geo failed to raise before the judge the contention that
section 77.216-4(a) does not apply to it because Geo is not a “person owning, operating or
controlling” an impoundment.
Although it is true that Geo did not explicitly raise the argument below,
the argument is sufficiently intertwined with Geo’s assertions to the judge that it
was not the operator of the impoundment and should not be cited under the
standard, such that the issue is properly the subject of review. Beech
Fork Processing, Inc., 14 FMSHRC 1316, 1319-21 (Aug. 1992).

[27] Indeed, as
mentioned above, MSHA issued a citation to MCC alleging that the annual
report was deficient because it did not contain a certification
addressing the underground seals as required by section 77.216-4(a)(7).
Citation No. 7144404. MCC did not appeal the judge’s decision upholding that citation.
We note that the judge incorrectly stated that Citation Nos. 7144404
(against MCC) and 7144408 (against Geo) pertained to the seal
certification for 1995, when, in fact, the citations covered all
reporting periods after the mine seal work was completed in 1996. 26
FMSHRC at 48.

[28] Our dissenting
colleague discusses Geo’s
monitoring and certification duties and then concludes, without
elaboration, that these duties constituted “manag[ing] and . . . keep[ing] in
operation” the impoundment.
Slip op. at 32. Among other things, this conclusion ignores the fact, as
discussed above, that MCC owned the impoundment, operated it on a
day-to-day basis, and made all final decisions regarding what actions
should be taken at the impoundment. Moreover, the case cited by the
dissent, Bituminous Coal Operators’ Assoc., Inc. v.
Sec’y of
Interior, 547 F.2d 240, 246 (4th Cir. 1977), does not support the
position that Geo was operating or controlling the impoundment. In that
decision, the court held that construction companies that are excavating
and constructing portions of an underground mine are “controlling or supervising” a mine within the meaning of the
Mine Act. Id. By contrast, the record in this case contains no
evidence that Geo, an engineering consultant, engaged in any excavation
or construction activities, supervised any MCC employees who were doing
so, or otherwise supervised the operation of the impoundment.

[29] Even if
section 77.216-4(a) applied to “operators” of an impoundment, which it does
not, MSHA apparently did not cite Geo because it was the “operator” of the Big Branch impoundment. MSHA
Engineer Theodore Betoney, the MSHA official who issued Citation No.
7144408 to Geo, was asked by the judge if he was suggesting that Geo was
the “operator” of the Big Branch impoundment.
Betoney answered “No.” Tr. 647.

[30] 30 C.F.R.
§ 77.404(b).

[31] Chairman Duffy
and Commissioner Jordan join Commissioner Young in Part II.E of this
opinion.

[32] Section
77.216-4(a) provides in pertinent part:

[E]very twelfth month following the date of the initial plan approval,
the person owning, operating or controlling a . . . slurry impoundment .
. . 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.

[33] A plan view is
a detailed dimensional drawing of an impoundment. See, e.g., Jt.
Ex. 2. Plan views must accompany a proposed impoundment plan and be
submitted to MSHA. 30 C.F.R. §§ 77.216 & 77.216-2.

[34] My purpose in
writing a separate concurring opinion in this case is not to endorse any
particular answers to the questions I have raised above. Instead, my
purpose is to demonstrate that a “plain meaning” approach to the words of the plan
provision simply cannot be stretched to work in this case.

[35] As explained
by the Commission, “[t]he
ultimate goal of the approval and adoption process is a mine-specific
plan with provisions understood by both the Secretary and the operator
and with which they are in full accord.” Jim Walter Res., Inc.
9 FMSHRC 903, 907 (May 1987) (“JWR”).

[36]The majority
decision cites Energy West Mining Co., 17 FMSHRC 1313, 1317
(Aug. 1995), for the proposition that plan provisions are interpreted in
the same way as regulatory standards. Slip op. at 9. However, the
majority greatly overstates the authority of Energy West, which
simply states that plan provisions are “enforceable” as mandatory standards, but does
not discuss the controlling Commission case law on burden of proof and
deference in the context of plan provisions. The principle that the
Commission should not defer to the Secretary’s interpretation of plan provisions
as though they were promulgated standards is underscored by the nature of
the plan provision involved here. The provision was set forth in a bid
proposal by an independent contractor that was subsequently submitted to
MSHA and ultimately approved as the Impoundment Plan. Obviously much less
deference is due to the Secretary’s interpretation of a bid proposal
drafted by a third party than in the case of a regulatory standard that
is drafted and proposed by the Secretary, subjected to notice and comment
rulemaking, and published as a provision of the Code of Federal
Regulations.

[37] The judge
excluded evidence of converting the flow measurements from inches to
gallons per minute, which would establish an even greater increase in
flow at the time of September 1999. Tr. 838-39, 981.

[38] I believe my
colleagues confuse the judge’s
use of the term “catastrophic
increases” in his opinion. The
judge stated that “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.” 26 FMSHRC at 47. I believe he
simply meant that the water flow data reviewed by MCC and Geo were
probably meaningless viewed in a vacuum, and were only useful when
compared to a long-term analysis of changes in flow over a period of
time, and that absent such a long-term analysis, the reviewers would only
have been alerted to problems if the water quality changed or if there
were a catastrophic increase in quantity. Nowhere did he indicate that a
change in water flow would only be considered “unusual” if it were “catastrophic.”

[39] In light of
this conclusion, I reject Geo’s
argument, G. Br. at 20-21, that the Secretary abused her discretion in
citing Geo, an independent contractor, as well as proceeding against the
owner-operator, MCC.

[40] Although Geo
asserts that the seals were not part of the Impoundment Plan, G. Br. at
7-11, the evidence does not support this contention. The seals were
included in the plan submitted on August 10, 1994, as part of the
protection of miners against possible impoundment break through. MCC Ex.
A1, at 012293 (construction of the hydraulic seal will protect miners
along the balkline from a slurry release). Although MSHA required some
additional information relating to those seals, the entire Impoundment
Plan, including the seal provisions, was approved on October 20, 1994.
Gov’t Ex. 2A; Tr. 436-37.
However, the hydraulic cement seal was never constructed. Tr. 436-38.
Instead, on September 7, 1995, MCC submitted a modification to the plan
to strengthen the existing mine seals using 1-foot-thick steel reinforced
gunite material. Gov’t Ex. 7.
MSHA approved this proposal and referred to the seals as modifications to
the “previously approved
impoundment seal plan.”
Gov’t Ex. 7; Tr. I 204.