Marshall Mining, Inc.

Plain-English summary

Marshall Mining advanced an underground coal entry within 200 feet of an abandoned, water-filled mine. Its approved plan required 30-foot boreholes and limited mining cuts to 20 feet so at least a 10-foot drilled buffer remained ahead of the face. MSHA found only two boreholes about three feet deep, and a later 60-foot test hole released water at five to eight gallons per minute. Judge Jacqueline R. Bulluck found that the company took an excessive cut, violated its approved plan, and created a serious inundation hazard. She affirmed the S&S citation, found high negligence, and increased the penalty from the proposed $8,893 to $15,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.388(g)
• Outcome: The S&S citation was affirmed as issued, and a $15,000 penalty was assessed.
• Key point: A mine approaching water-filled abandoned workings must preserve the drilled buffer required by its approved borehole plan, even when other pumping safeguards are available.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA VE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 6, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

MARSHALL MINING, INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. KENT 2008-1122

A.C. No. 15-19131-148988

Mine: 4A

DECISION

Appearances:  Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner;

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, Lexington, Kentucky,

on behalf of the Respondent.

Before:            Judge Bulluck

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor on behalf of her Mine Safety and Health Administration (“MSHA”), against Marshall
Mining, Inc. (“Marshall Mining”), pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary seeks civil penalties in the
amount of $8,893.00 for one alleged violation of the Act and her mandatory safety standards.

A hearing was held in Ashland, Kentucky. The parties’ Post-hearing Briefs are of record.
For the reasons set forth below, I AFFIRM the citation and assess a penalty against Marshall
Mining.

I.         Stipulations

At the hearing, the parties stipulated as follows:

1. On January 30, 2008, Marshall Mining was the operator of the No. 4A Mine, Mine
I.D. No. 15-19131.

2. The No. 4A Mine is a “mine” as that term is defined in section 3(h) of the Mine Act,
30 U.S.C. § 802(h).

3. On January 30, 2008, products of the No. 4A Mine entered commerce or the
operations or products thereof affected commerce within the meaning and scope of section 4 of
the Mine Act, 30 U.S.C. § 803.

4. In 2008, the No. 4A Mine produced 169,502 tons of coal, and had 43,392 hours
worked.

5. A copy of Citation No. 6649707 was served on Marshall Mining by an authorized
representative of the Secretary.

6. Marshall Mining timely contested Citation No. 6649707.

7. Marshall Mining is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission, and the presiding Administrative Law Judge has the authority to hear and
issue a decision regarding this case.

8. The proposed penalty will not affect Marshall Mining’s ability to continue in business.

II.       Factual Background

Marshall Mining operates the 4A Mine, an underground coal mine, in Pike County,
Kentucky. On January 30, 2008, Entry No. 1 of the 4A Mine was being advanced using
continuous mining machines adjacent to and within 200 feet of an abandoned coal mine that was
filled with water. Tr. 22, 26, 30, 87-88, 177; Ex. G-1. Under such conditions, the operator was
required to drill boreholes in advance of mining.

Section 75.388 of the Secretary’s regulations requires that when any working place
approaches to within 200 feet of an adjacent mine in the same coalbed, and the adjacent mine has
not been preshift examined, i.e., it is inactive, boreholes “shall be drilled.” 30 C.F.R.
§ 75.388(a)(3).

The area where boreholes must be drilled is called the “drill zone.” Tr. 8,
111-14. Boreholes are drilled with drill steel that comes in 10-foot sections, in advance of and
perpendicular to the working face, as well as at perpendicular 20 degree angles from the ribs
closest to the inactive mine workings. Ex. G-4; Tr. 149-51. The boreholes are designed to detect
any potentially dangerous conditions that exist in an adjacent inactive mine, including water,
which, if mined into, could inundate an active working place, and cause potentially lethal
consequences. Tr. 126. In order to increase the probability of hitting water in adjacent inactive
workings, boreholes are drilled close to the mine floor. Tr. 149-51.

Detailed requirements as to how boreholes must be drilled when a working place is
within a drill zone are set forth in section 75.388. 30 C.F.R. § 75.388(b)-(c). An operator may
also drill boreholes in alternative patterns under an MSHA approved plan that provides the same
protection to miners as do the requirements of paragraphs (b) and (c) of section 75.388.
30 C.F.R. § 75.388(g). Before Citation No. 6649707 was issued, Marshall Mining had submitted
two alternative borehole drilling plans to MSHA. The agency approved the first plan on
November 9, 2007, and approved the second plan on December 13, 2007. Ex. G-4, G-5.

The November Plan required Marshall Mining to drill five 40-foot boreholes at the active
face in advance of mining, three perpendicular to the face, and two into each rib at 20 degree
angles. The Plan then limited the amount of coal the company could cut to 30 feet. This would
leave a 10-foot buffer between the face and the maximum extent to which the boreholes were
drilled. Ex. G-5. This would also ensure, at all times, a 10-foot buffer in advance of active
mining.

The December Plan included two options. Under the first option, Plan A, 16-20 foot
deep cuts made off the main entry called buttoffs would be made, and a 200 foot borehole would
be drilled from the buttoff parallel to main entry. Tr. 37-42. Plan A was not included in the
November Plan. Plan B of the December Plan was similar in most respects to the November
Plan. It required that five boreholes be drilled in advance of mining from the face and ribs, with
three of the boreholes drilled perpendicular to the face, and two other boreholes drilled into the
ribs at 20 degree angles. Under Plan B, however, 30-foot boreholes would be drilled in advance
of mining, and the company was limited to taking 20-foot cuts of coal. As in the November Plan,
the December Plan required that the boreholes extend at least 10 feet beyond the face at all times,
creating a 10-foot buffer in advance of active mining. Tr. 50-51; Ex. G-4. The parties agree that,
on January 30, 2008, when Citation No. 6649707 was issued, Marshall Mining was advancing
Entry No. 1 within a drill zone under Plan B of the alternative borehole pattern approved by
MSHA on December 13, 2007. Tr. 32, 171-72, 176-77.

On January 30, 2008, MSHA Inspector Alan Howell was in the process of conducting a
regular quarterly inspection of the 4A Mine. Tr. 21. Howell was accompanied by an MSHA
trainee, Steven Caudill, and the 4A Mine superintendent, James Kilgore. Tr. 29. When Howell
arrived at the working face of Entry No. 1, he and Caudill searched for boreholes in the face and
found two. Tr. 51-52. Howell measured the depth of these holes to be approximately 3 feet
deep. Tr. 63. Caudill corroborated Howell’s testimony on this point, testifying that he was
present when Howell measured the boreholes, and confirmed that both of the boreholes were two
to three feet deep. Tr. 213-14. Using a fiberglass pry bar, Caudill also measured one of the two
boreholes and found it to be “[t]wo and a half, maybe three feet” deep. Tr. 211-13.

III.      Findings of Fact and Conclusions of Law

Based on the depth of the holes, Howell concluded that a cut of coal had been taken from
Entry No. 1 in excess of the 30-foot requirement set forth in Plan B of the December Plan. As
Howell testified, “[i]f they were using this plan [B], and they were taking 20 foot . . . cuts with
the [continuous] miner, there would be a 10 foot [bore]hole here at all times, a buffer . . . [i]n
front of the mining.” Tr. 50. In other words, if Marshall Mining had been following its
alternative borehole drilling plan, it would have drilled 30-foot boreholes, then mined a 20-foot
cut of coal, leaving a “buffer” of boreholes at least 10 feet deep. Before proceeding with another
20-foot cut, these 10-foot boreholes would have had to have been drilled again to a depth of at
least 30 feet in advance of the working face. Tr. 50-51.

Although mine superintendent Kilgore testified that “sometimes holes are hard to find”
(Tr. 151), he admitted on cross-examination that he had no personal knowledge as to whether the
boreholes in Entry No. 1 were being kept 10 feet in advance of mining on the day that the citation
was issued:

Q:        Do you have any independent knowledge, firsthand
knowledge, of whether those boreholes were drilled,
and if so how deep those boreholes were drilled in
the No. 1 entry on January 30, 2008?

*     *     *

A:        No, I can’t say that I did.

Q:        You weren’t there when they were drilling those
boreholes, were you, Mr. Kilgore?

A:        Not that day, no, not at that time.

Tr. 178-79.

Howell issued Citation No. 6649707 to Marshall Mining for violating its alternative
borehole drilling plan. The citation describes the “Condition or Practice” as follows:

The operator has failed to comply with the alternative drill plans A
and B approved by the District manager in that:

1 -- No butt offs are being cut so [as] to allow the 200 foot
advanced drilling of bore holes as described in plan A of the
Alternative Bore Hole Plan.

2 -- 30 foot cuts are being cut in the # 1 entry which violates Plan
B of the Alternative Bore Hole Plan that requires no more than 20
foot cuts be taken.

3 -- The outside entry (number 1) is not being kept 60 [feet] in
advance of other entries as required in Alternative Bore Hole
Plan B.

4 -- The operator has previously been [cited] for non-compliance of
the approved bore hole plan on 1-9-2008 (citation #6649484).

Ex. G-2. Howell concluded that the violation was the result of Marshall Mining’s high
negligence, and was of a significant and substantial (“S&S”) nature.

After issuing the citation, Howell required that the operator drill a 60-foot borehole
towards the adjacent inactive workings. Tr. 86. As this borehole was being drilled, water began
gushing out of it at a rate of five to eight gallons per minute. Tr. 87. Water continued pouring
from the hole the following day. Tr. 90. This led Howell to issue imminent danger closure
Order No. 6649710 on January 31, 2008, under section 107(a) of the Mine Act, 30 U.S.C.
§ 817(a). Tr. 88; Ex. G-11. Howell concluded that the maps Marshall Mining was using were
inaccurate as to the location of the inactive workings adjacent to Entry No. 1. Tr. 90-91; Ex.
G-11. Howell testified, “We knew that there was water coming out of the holes, and it was
unknown where it was actually coming from.” Tr. 90-91.

On February 4, 2008, Citation No. 6649707 was terminated. The notice of termination
stated as follows:

The operator has requested that the Alternate Drill Plans (A&B)
approved December 13, 2007 be withdrawn. The request has been
approved by the District Office. The Alternate Plan for drilling
bore holes which was approved on November 9, 2007 is still in
[effect] and does not require the conditions cited in the violation[,]
therefore the citation is hereby terminated.

Ex. G-12.

Fact of Violation

The first allegation set forth in Citation No. 6649707, that Marshall Mining was not
cutting any buttoffs according to Plan A of the December Plan, establishes that Plan A was not
being followed by the company on January 30, 2008, and therefore, that Plan B was in effect. As
I have previously noted, this point is not in dispute. At the hearing, the Secretary conceded that
the third allegation set forth in the citation is not valid. Tr. 118-19. Respecting the fourth
allegation, it is also undisputed, because it refers to a past violation, and does not, by itself,
establish that Marshall Mining violated section 75.388(g) on January 30, 2008, as alleged.

The gravamen of the Secretary’s case is thus the second allegation set forth in the citation,
that Marshall Mining was taking 30-foot cuts in violation of Plan B, which required that no more
than 20-foot cuts be taken. As to this allegation, I find no evidence in the record that contradicts
the testimony of Howell or Caudill as to the depth of the two boreholes that they were able to
discover. I also find credible and convincing Howell’s conclusion that the depth of the two
boreholes indicated that Marshall Mining took an excessive cut of coal. The operator’s cut of
coal from Entry No. 1 effectively destroyed the 10-foot buffer that it was required to maintain in
advance of mining, and reduced it to approximately 3 feet.

Marshall Mining argues that “[t]he citation at issue does not mention an alleged violation
of the 10 foot buffer, which was required in the November Plan and the December Plan. . . . The
citation was never modified to include an allegation that Marshall was not maintaining the 10
foot buffer.” Resp. Br. at 10. This argument puts the cart before the horse. Marshall Mining’s
failure to maintain a 10-foot buffer is compelling evidence of its concomitant failure to limit
itself to taking a 20-foot cut, which is the violation that the citation clearly alleges. Marshall
Mining’s attempt to find fault with the language of the citation is unavailing. Based on Howell’s
credible and well-corroborated testimony, I conclude that Marshall Mining was not following its
December 2007 Plan.

Likewise, I find the rebuttal testimony of the operator’s witness lacking in credibility.
Mine superintendent Kilgore asserted that “we always drill that buffer zone” (Tr. 151), but he
admitted on cross-examination that he had no first hand knowledge of borehole drilling
operations on Entry No. 1 at the time of the citation. Tr. 178-79. The basis of his belief that a
10-foot borehole buffer was in place appears to have been past practice:

Q:        Okay. So your testimony that you always kept the
buffer zone is based upon just something you
always did, correct?

A:        Uh-huh, (affirmative).

Tr. 179.

Both Howell, for the Secretary, and Kilgore, for Marshall Mining, testified that, on
January 30, 2008, Marshall Mining was operating in the Entry No. 1 of the 4A Mine under Plan
B of the alternate borehole plan approved by MSHA on December 13, 2007. In its brief,
however, Marshall Mining repudiates this point, stating that it “was in compliance with an
approved and in effect plan, the November plan, on January 30, 2008.” Resp. Br. at 10
(emphasis added). In support of this about-face, the company points to the notice terminating
Citation No. 6649707, arguing that when Howell “became aware that the November plan was
also in effect on January 30, 2008, he terminated the citation due to the fact that the November
plan did not require items cited in the citation.” Resp. Br. at 9. This position misconstrues both
the plain meaning and effect of the termination notice.

The termination notice states that Marshall Mining requested that its December Plan be
withdrawn, that MSHA approved this action, and that the November Plan “is still in [effect] and
does not require the conditions cited in the violation.” Ex. G-12. Marshall Mining would have
the terms of this termination apply retroactively to the conditions that existed on January 30,
2008, which the termination notice clearly does not do. To the contrary, the notice has obvious
prospective effect; a reasonable reading of the notice of termination indicates that it reinstates the
earlier, November Plan and nullifies the later, December Plan as of the date of the notice,
February 4, 2008. Id.

The notice also states the obvious, that the 30-foot cut for which Marshall Mining was
cited would have been allowed under the November Plan, although even under the November
Plan, cuts had to be made so as to maintain a 10-foot buffer of boreholes in advance of mining.
In fact, Marshall Mining’s failure to maintain boreholes in advance of mining as a result of
taking an unauthorized deep cut, as evidenced by the 3-foot boreholes Howell discovered, would
also have violated the November Plan. Tr. 60, 63-64. Marshall Mining’s argument is at odds
with the termination notice, the testimony of its own witness, Kilgore, and the overwhelming
weight of the evidence as to the conditions that existed in Entry No. 1 when the citation was
issued. I find the company’s position untenable and singularly unpersuasive. The evidence
compels a finding that Marshall Mining was endangering it miners by taking cuts of coal that
were too deep, regardless of which plan applied. I find, however, that consistent with the
testimony of both Howell and Kilgore, Plan B of the December Plan was in effect in Entry No. 1
of the 4A Mine on January 30, 2008, and that Marshall Mining failed to comply with its
requirements.

Accordingly, I find that Marshall Mining violated section 75.388(g), as alleged, by the
Secretary.

Significant and Substantial

The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as
more serious any violation that “could significantly and substantially contribute to the cause and
effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 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. Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 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 – that is, a
measure of danger to safety – contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria).

The “discrete safety hazard” created by the operator in this case is obvious. As the
Commission stated in Kellys Creek Resources, Inc., the “legislative history [of 30 C.F.R. 75.388]
is short, but telling: ‘The necessity of maintaining drill holes in advance of the face in any
working place approaching abandoned mine openings known or suspected to contain dangerous
quantities of water or noxious or explosive gases is obvious and such holes are required by law in
many coal-mining States.’ S. Rep. No. 411, 91st Cong., 1st Sess. 84 (1969), reprinted in Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 210 (1975).” 19
FMSHRC 457, 461 (Mar. 1997) (emphasis added).

When Marshall Mining took too deep a cut in Entry No. 1 of the 4A Mine, and in so
doing, failed to keep boreholes at least 10 feet in advance of mining, the company created
conditions under which a major disaster may very well have occurred, given continued normal
mining operations. Howell testified that failure to maintain an adequate buffer of boreholes
created “a possibility of cutting into those old works and flooding the mine,” which would very
likely have resulted in fatalities. Tr. 60. This is especially true because the elevation of the
working section in Entry No. 1 had dropped by approximately 12 feet just before the citation was
issued, leaving the working section particularly vulnerable to an inundation from inactive
workings at a higher elevation. Tr. 30. Moreover, after Howell issued the citation, he required
that Marshall Mining drill a 60-foot borehole from which 5 to 8 gallons of water per minute
gushed up to 2 to 3 feet into Entry No. 1. Tr. 86-88.

The events of July 2002 at the Quecreek No. 1 Mine in Somerset, Pennsylvania should
have provided Marshall Mining ample warning of the potentially disastrous consequences of
mining into inactive workings. Nine miners were trapped underground in the Quecreek Mine for
approximately 76 hours after an adjacent inactive mine was cut into, which liberated a massive
deluge of water that inundated the Quecreek Mine and trapped the miners. Tr. 60; see Black
Wolf Coal Co., 28 FMSHRC 699 (July 2006) (setting forth the facts of the Quecreek
innundation). Marshall Mining was operating perilously close to conditions which, like those at
Quecreek, had the potential of killing the miners working in its mine.

For purposes of determining whether Marshall Mining’s violation was S&S, I find the
Commission’s decision in Cumberland Coal Resources, LP, particularly instructive. The
Cumberland case involved a defective system of emergency lifelines in a mine’s escapeways. 33
FMSHRC 2357, 2358-61 (Oct. 2011). In determining whether Cumberland’s violation of the
applicable standard was S&S, the Commission stated:

Evacuation standards are different from other mine safety
standards. They are intended to apply meaningfully only when an
emergency actually occurs. When the citation for a violation of an
evacuation standard is issued, presumably no emergency exists at
that moment. While it is the hope and objective of all who work in
mine safety that no emergency will ever occur in the future, if an
emergency does occur, it is imperative that the requirements of the
evacuation standard be met at that time.

Id. at 2367. The Commission concluded that, “with regard to evacuation standards, the
applicable analysis under Mathies involves consideration of an emergency,” and went on to find
Cumberland’s violation S&S. Id. at 2366.

Here, the situation is slightly different, in that the borehole requirements of section
75.388(g) are designed to prevent an emergency from occurring. However, consistent with
Cumberland, I must consider the potentially catastrophic consequences that would occur in the
4A Mine if the protections against innundation afforded by boreholes were rendered ineffective
by the operator’s actions.

The operator argues that a safeguard it had in place, “a pump with a capacity of 200 to
300 gallons per minute,” would have adequately addressed any innundation that might have
occurred. Resp. Reply Br. at 5. The Commission rejected such a defense to an S&S finding in
Cumberland, noting that one court had “rejected the operator’s reliance on the additional safety
measures as factors that would prevent an S&S finding.” Cumberland, 33 FMSHRC at 2369
(citing Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995), and other cases with
similar holdings). The Commission explained further that adopting Cumberland’s argument that
redundant, mandatory safety protections provide a defense to a finding of S&S would lead to the
anomalous result that every protection would have to be nonfunctional before a S&S finding
could be made. Such an approach directly contravenes the safety goals of the Act.” 33
FMSHRC at 2369-70.

Accordingly, I find that Marshall Mining’s violation of section 75.388(g) was S&S.

Gravity

In a 1996 Consolidation Coal Company decision, the Commission stated: “The gravity
penalty criterion under section 110(i) of the Mine Act . . . is often viewed in terms of the
seriousness of the violation. . . . The focus of the seriousness of the violation is . . . on the effect
of the hazard if it occurs.” 18 FMSHRC 1541, 1549-50 (Sept. 1996) (emphasis added)
(affirming a judge’s finding that a violation was “serious” based upon evidence of what could
have occurred given the conditions present).

Respecting Citation No. 6649707, Howell concluded that Marshall Mining’s violation of
section 75.388(g) was reasonably expected to result in “lost workdays of restricted duty.” I find,
however, as set forth in my discussion of S&S above, that the more likely result of an accident
occurring as a result of the operator’s violation would have been fatal injuries to the nine miners
working in Entry No. 1. See Tr. 60, 91-92.

Accordingly, I find that Marshall Mining’s violation of section 75.388(g) was very
serious.

Negligence

Marshall Mining knew that it was mining near inactive workings that were filled with
water. Tr. 87-90, 164-65; Ex. G-1. The operator was well aware of the dangers associated with
such conditions. As mine superintendent Kilgore testified, “I was actually scared of the place
because, you know, the water.” Tr. 160. Furthermore, Kilgore testified that he did not know
whether the mine map was accurate. Tr. 167. In fact, he was aware that on January 17, 2008,
approximately two weeks before the citation was issued, a borehole had been drilled into the
adjacent inactive workings, which indicated that the mine map was inaccurate. Tr. 43, 78-80,

168. Indeed, Howell had cited the operator for violating its alternative borehole drill plan on two
     prior occasions, December 3, 2007, and January 9, 2008. Clearly, Marshall Mining was on
     notice that it needed to make more diligent efforts to protect the safety of its miners.

Accordingly, I find that Marshall Mining’s violation of section 75.388(g) was the result
of the operator’s high negligence, as alleged by the Secretary.

IV.      Penalty

Secretary’s Penalty Proposal

While the Secretary has proposed a civil penalty of $8,893.00, she argues that, in light of
having established the probability of multiple fatalities resulting from an innundation at the 4A
Mine, the penalty assessed against Marshall Mining should be increased. Sec’y Br. at 14-16
(citing Tr. 91-92). The Secretary states that “[i]f the citation would have been marked fatal, the
citation would have been assessed at $29,529 (131 points).” Sec’y Br. at 16.

Marshall Mining argues that “[t]he facts and testimony at trial certainly does [sic] not
support an increase in the civil penalty as suggested by MSHA.” Resp. Reply Br. at 5. The
company points to the fact that it “had a pump with a capacity of 200 to 300 gallons per minute
pumping water from the area in question. As a result of the pumping, there was less than one
foot of water across the Number One entry.” Resp. Reply Br. at 5 (citing Tr. 133-34). This
argument ignores just how massive an innundation of water from abandoned workings can be, as
occurred at Quecreek. The company also argues, without citing the record, that “[t]he mere fact
that there may have been some confusion over the requirements of the November and December
drill plans clearly show[s] that Marshall [Mining’s] action[s] were not egregious.” Resp. Reply
Br. at 5. To the contrary, I find the company’s actions to have been highly negligent.

Section 110(i) Criteria

In assessing a penalty, I must independently determine the appropriate amount by proper
consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(j).
See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1993), aff’d, 763 F.2d 1147 (7th Cir. 1984).

Applying the penalty criteria, I find that Marshall Mining is a medium-sized operator,
with a history of prior violations that is not an aggravating factor in assessing an appropriate
penalty. Stip. 4; Ex. G-13. As stipulated by the parties, the total proposed penalty will not affect
Marshall Mining’s ability to continue in business. Stip. 8. I also note that Marshall Mining
raised no objection concerning its ability to pay, in light of the Secretary’s request that a higher
penalty be imposed. Marshall Mining demonstrated good faith in achieving rapid compliance
with the standard after notice of the violation. The remaining criteria involve consideration of
the gravity of the violation and Marshall Mining’s negligence in committing it. These factors
have been fully discussed above.

Assessment

The Secretary has established a very serious violation of 30 C.F.R. § 75.388(g) that was
the result of the operator’s high negligence. The Secretary petitioned the Commission to assess a
penalty of $8,893.00 for this violation, which she amended in her Posthearing Brief to
$29,529.00. Applying the civil penalty criteria, and in consideration of my findings that the
violation was very serious and Marshall Mining was highly negligent, I find that a penalty of
$15,000.00 is appropriate.

ORDER

ACCORDINGLY, it is ORDERED that Citation No. 6649707 is AFFIRMED, as
issued, and that Marshall Mining, Incorporated, PAY a civil penalty of $15,000.00 within 30
days of this Decision.

ACCORDINGLY, this matter is DISMISSED.

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

Distribution: (Certified Mail)

Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Nashville, TN 37219-2456

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 North Eagle Creek Drive,
Suite 310, Lexington, KY 40509

/tas