Secretary of Labor v. Leeco, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA found a continuous miner operating with most of its ventilation curtain on the floor, no measurable airflow at the face, and thick suspended dust. Leeco admitted violating its approved ventilation plan, and Judge David F. Barbour found the condition significant and substantial because continued mining could release methane and ignite a coal-dust explosion affecting eight miners. He rejected the unwarrantable-failure allegation because the section foreman did not know about the downed curtain, had only a minute or two to recognize the problem, and reasonably first identified unexpected visitors on the section. The judge reduced negligence from high to moderate and modified the section 104(d)(2) order to a section 104(a) citation, assessing $20,000. A second ventilation-plan order was settled for $50,000. Leeco was ordered to pay $70,000 in total.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.370(a)(1)
• Outcome: One ventilation order was modified to a section 104(a) citation with moderate negligence and a $20,000 penalty; the other was settled for $50,000.
• Key point: A highly dangerous ventilation failure was significant and substantial, but it was not unwarrantable when management lacked prior knowledge and had made meaningful compliance efforts.

Full text (FMSHRC public release)



FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
Pennsylvania Avenue, NW, Suite 520N

Washington, D.C. 20004-1710

Telephone:
(202) 434-9958

Fax: (202)
434-9949

June 3, 2013

SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH
ADMINISTRATION (MSHA),
Petitioner,

v.

LEECO,
INC.,
Respondent
:
:
:
:
:
:
:
:
:

CIVIL PENALTY PROCEEDINGS

Docket
No. KENT 2011-1093
A.C. No. 15-17497-255229

Mine: # 68

DECISION

Appearances:   Alisha
I.Wyatt-Bullman, Esq.; Leslie Brody, Esq., U.S. Department of Labor, Atlanta,
Georgia, on behalf of the Secretary

Noelle True, Esq., Rajkovich,
Williams, Kilpatrick, & True, Lexington, Kentucky, on behalf of Leeco,
Inc.

Before:            Judge
David F. Barbour

This
case is before me on a petition for assessment of civil penalty filed by the
Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA)
against Leeco, Inc. (“Leeco”), pursuant to sections 105(d) and 110 of the
Federal Mine Safety and Health Act of 1977.

30
U.S.C. §§ 815(d), 820. The Secretary alleges that Leeco is liable for two
violations of § 75.370(a)(1), a mandatory safety standard that requires a mine
operator to develop and follow a ventilation plan that is approved by the MSHA
district manager. Once the plan is approved, an operator must comply with all of
its provisions. Wyoming Fuel Company n/k/a Basin Resources, Inc., 16
FMSHRC 1618, 1624 (Aug. 1994) (citing UMWA v. Dole, 870 F.2d 662, 671
(D.C. Cir. 1989); Ziegler v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976);
Freeman United Coal Mining Co., 11
FMSHRC 161, 164 (Feb. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903,
907 (May 1987)). The Secretary proposes the assessment of $107,716.00 for
the violations. The parties presented testimony and documentary evidence at a
hearing in Hazard, Kentucky. They also filed post-hearing briefs. One alleged
violation of section 75.370(a)(1), set forth in Order No. 8346197, was settled
shortly before the hearing. Details of the settlement are discussed at the end
of this decision. The Secretary asserts that the remaining alleged violation,
which is cited in Order No. 8346316, is correctly characterized as a significant
and substantial contribution to a mine safety hazard ("S&S"), is the result
of Leeco's high negligence and unwarrantable failure to comply with the standard
and that the penalty proposed – $47,716.00 – is
appropriate.

STIPULATIONS

Before
presenting testimony regarding the contested violation the parties stipulated as
follows:

1.         At
all times relevant to this matter, Leeco was the

operator
of Mine # 68.

2.         The
Respondent’s operation at Mine # 68 involved

[products] which entered commerce
or products

which affected
commerce.

3.         Respondent
admits that Order No. 8346316[, the

order
in which the contested violation is alleged,]

was
properly issued.

4.         Respondent
admits to the fact of the violation in

Order
No. 8346316.

5.        
Mine # 68 produced 715,374 tons of coal

in 2010.

6.         Leeco
terminated the conditions giving rise to the

[settled
and contested] orders in a timely,

effective,
and good manner.

7.         The
proposed penalties for the [settled and contested] orders

will not affect Leeco's ability to
continue in business.

8.         The
MSHA inspectors' methane detectors and

anemometers,
used to obtain methane and air

readings
on November 4, 2010 [,] at Leeco's

Mine

68[,] were properly calibrated.

See
Tr. 18-20.

BACKGROUND

Mine

68 is an underground bituminous coal mine located in Perry County, Kentucky.

On November 4, 2010, MSHA inspectors James Daniels and Gary Oliver were sent to
the mine.

The
inspectors’ visit was the result of an anonymous complaint filed with MSHA by a
Leeco miner.

The
complaint alleged “poor ventilation.” Tr. 77. On November 4 the mine was on a
15-day spot inspection schedule and an approved ventilation plan was in
place.

Tr.
41, 47-48; Ex. S-5. The mine also was subject to the provisions of section
104(d)(2) of the Act. 30 U.S.C. §814(d)(2). As a result, any alleged violation
found by an inspector to be S&S and caused by the unwarrantable failure of
Leeco to comply was cited in a section 104(d)(2) withdrawal order. Id.;
see Tr. 65. The inspectors’ November 4 investigation resulted in the
issuance of the following order:

ORDER
NO.             DATE            30 CFR §

8346316
                     11/4/10
          75.370(a)(1)

The
operator is not complying with the provisions of

the
methane and dust control portions of the approved

ventilation
plan for the 014 MMU. The Joy

continuous
miner is observed mining in the No.4

heading
without a properly installed line curtain for

methane
and dust control. An attempt to take an air

reading
with a properly calibrated anemometer

indicated
that there was not enough air movement to

turn
the blades to obtain an air reading. The currently

approved
plan requires a velocity of 6,150 CFM of

air
movement behind the line curtain. The installed

curtain
was located approximately 25 feet from the

back
of the miner and was not installed out into the

last
open crosscut to deflect and move air up into

the
entry where the miner is cutting and loading.

Additionally
dust was suspended in the air so thick

that
the lights on the miner and shuttle car were

[barely]
visible from approximately 70 feet away.

These
conditions expose the miners working in

the
014 MMU to the risk of fatal injuries if a

methane
explosion were to occur and to

permanently
disabling lung diseases from dust

inhalation.
This mine is currently on a 15 day

103(I)
spot inspection schedule due to methane

liberation[,]
and methane explosions have historically

caused
serious injuries and death to miners.

Exposure
to respirable dust is the leading cause of

Black
Lung and Silicosis disease in coal miners.

The
section foreman was observed walking across

the
last open crosscut and the amount of dust

suspended
in the air would be recognized as a

hazard
to miners by the most casual observer and

is
a clear indication of problems with the

ventilation
controls.

This
failure to comply with the ventilation plan

constitutes
more than ordinary negligence and is an

unwarrantable
failure to comply with a mandatory

health
and safety standard. 

Ex.
S-1.

Prior
to entering Mine # 68 on November 4 Oliver reviewed the mine’s records. Tr. 79.
He found that the required pre-shift examinations were being conducted.
Id. There were no recorded hazardous conditions reported by the pre-shift
examiners. Id.. Oliver then proceeded underground and traveled to the No.
14 Section. Id. He was accompanied by Ricky
Wells.

Tr.
79-80. The men arrived at the last open crosscut in the No. Four entry of the
No.14 section and Oliver noticed what he thought was an excessive amount of dust
in the air coming from the entry. Tr. 79, 81-82; Ex. S-1. He also saw the
section foreman, Bobby Meade, coming from the No. Five entry to the last open
crosscut of the No. Four entry.

Tr.
83-84. Meade did not immediately recognize Wells and Meade did not know Oliver.
He therefore walked directly up to the men, saw that one was Wells and
introduced himself to Oliver. Wells explained to Meade why he and Oliver were in
the section. Tr. 158, 235, 301.

Oliver
then walked toward the face of the No. Four entry where a continuous mining
machine (“continuous miner”) and a shuttle car were operating. Tr. 84-85. As he
traveled toward the face, he noticed what seemed to be an increasingly thick
concentration of dust suspended in the air, some of which he asserted was
respirable.

Tr.

129. Oliver flagged the operator of the continuous miner who shut down the
     machine. Tr. 84-86. Oliver then approached the continuous miner. He noticed that
     the middle part of the line curtain that was used to direct air into the entry
     (the “deflector curtain”) was hanging from the mine roof while the inby and
     outby parts of the curtain were lying on the mine
     floor.

Tr.
86, 100. Oliver tried to take an air reading inby the hanging part of the
curtain but there was no air flow to turn the blades of his anemometer. Tr. 86.
The suspended dust and his inability to obtain an air reading were indications
to Oliver that there was no ventilation at the face or in the area of the
continuous miner. Tr. 87.

One
of the sections of the mine’s approved plan is titled “Safety Precautions for
Scrubbers and Extended Line Curtains.” Ex. S-5 at 6. Part 3 of the section
requires an air flow of 6,150 cubic feet per minute (“cfm”) on the 014
mechanized mining unit. Tr. 87; Ex. S-5 at 6. To achieve the required air flow
the plan states:

Deflector
curtains will be maintained, in all idle

places
and places where work is being performed,

to
provide air movement. The deflector curtain

will
extend to within 40 feet of the face. Curtains

will
extend [outby] the corner, into the intersection

a
minimum of 4 feet.

Ex.
S-5 at 2; see Tr. 178.

In
addition, the plan requires that the curtain be maintained within 10 feet of the
shuttle car at all times. Tr. 102; Ex. S-5 at 2.

Meade
testified that prior to seeing Oliver and Wells, the last time he was in the No.
Four entry, he saw Tom Hensley, the continuous miner operator, taking a first
cut. Tr. 283. Meade maintained that at that time the curtain was hung within 10
feet of the shuttle car and extended into the crosscut as required. Tr. 286-87,
289-90. However, when Oliver saw the curtain it was approximately 25 feet from
the shuttle car and part of it was lying by the corner of the crosscut, not in
the crosscut. Tr. 102-103, 179; Ex. S-6. Oliver testified that it was possible
the curtain had once extended four feet into the crosscut as Meade claimed, but
Oliver did not think it was likely. Tr. 179.

Oliver
asked Hensley why all but the middle part of the curtain was lying on the mine
floor. Tr. 90-91. Hensley replied that he accidentally tore down the curtain
with the trailing cable of the continuous miner when he was backing up. Tr. 90,
244-45. However, Oliver did not see the trailing cable lying on top of the
downed curtain. Tr. 168, 201. Also, if the curtain had been pulled down by the
trailing cable as Hensley maintained, Oliver believed the curtain would not have
come down at both ends with its middle part still hanging. Tr. 114, 168, 169.
Therefore, in his opinion, the curtain was most likely not properly installed in
the first place. Tr. 90.

Wells
countered that after Oliver spoke with Hensley, he attempted to rehang the
curtain. Wells stated that he had to pick up the curtain from underneath the
cable. Tr. 241, 244-45. Wells explained that trailing cables frequently became
tangled in curtains, and it was the responsibility of continuous miner operators
to rehang the downed curtains. Tr. 273. Meade also asserted it was possible for
a cable to become tangled with a curtain in such a way that the curtain’s outby
and inby ends are torn down. Tr. 303-04, 306.

After
inspecting the area where the continuous miner was operating, Oliver had Wells
gather all eight miners who worked on the No. 14 section for a safety meeting.
Tr. 115, 277. At the meeting, Oliver told the miners that running the continuous
miner without ventilation was inexcusable and that he did not want a situation
where he had to explain to families that miners died in a coal mine explosion
because a curtain was not hung properly. Tr. 115.

Following
the meeting, the miners rehung the curtain. Tr. 116. At first, the miners hung
the parts of the curtain lying on the ground, but when the curtain was rehung,
it did not direct a sufficient air volume to meet the requirements of the
ventilation plan. Tr. 117. The miners then added an additional 12-16 feet of
curtain to the outby end of the original rehung curtain. Tr. 109. The augmented
curtain achieved the proper air flow. Tr. 108. The fact that a fairly large
piece of curtain had to be added to meet the requirements of the ventilation
plan indicated to Oliver that even if the curtain was hung before mining
commenced in the entry, the curtain was not long enough to extend into the
crosscut and direct the air necessary to comply with the ventilation plan. Tr.
117.

THE
VIOLATION

Section
75.370(a)(1) states, “[t]he operator shall develop and follow a ventilation plan
approved by the district manager. The plan shall be designed to control methane
and respirable dust and shall be suitable to the conditions and mining system at
the mine.” 30 C.F.R. § 75.370(a)(1). The order alleges that the plan in effect
on the day of the inspection required 6,150 cfm of air behind the line curtain
and Oliver testified that not only was the curtain down at both ends, he could
detect no air traveling in the entry. Tr. 86-77, 184. The parties stipulated
that Leeco violated section 75.370(a)(1) as charged, and I so find. Tr. 20;
Stip. 4; Tr. 20.

Oliver
determined that the violation was reasonably likely to cause fatal injuries,
that it was S&S, and that it was due to Leeco’s high negligence and
unwarrantable failure to comply with the cited standard. Ex.
S-1.

S&S

An
S&S violation is a violation "of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard." 30 U.S.C. § 814(d). A violation is properly designated S&S,
"if, based upon 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). As is well recognized, in order to establish the
S&S nature of a violation, the Secretary must prove: (1) the underlying
violation; (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 will be of a reasonably serious nature. Mathies Coal Co., 6
  FMSHRC 1, 3-4 (Jan. 1984); see also, Buck Creek Coal Co., Inc.
  v. MSHA, 52 F.3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v.
  Sec'y of Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies
  criteria).

It
is the third element of the S&S criteria that is the source of most
controversies regarding S&S findings. The element is established only if the
Secretary proves "a reasonable likelihood the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining Co., Inc., 7
FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the
particular facts surrounding the violation and must be made in the context of
continued normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984).

The
parties agree, and I have found, that the violation existed as charged. Tr. 20;
Stip. 4. infra. The Secretary charges that a total lack of ventilation
led to the excessive atmospheric coal dust noted by Oliver and contributed to
the discrete safety hazards of a build up of methane to explosive levels, a
possible methane/coal dust explosion, and to the possibility of miners
contracting pneumoconiosis. Tr. 129-31, 133. The issue of whether the violation
was

S&S turns on whether an
explosion hazard was established by the Secretary and, if so, whether the hazard
was reasonably likely to cause an injury or injuries of a reasonably serious
nature.

Oliver,
an experienced miner and mine inspector, believed that the lack of ventilation
was reasonably likely to result in an explosion. Tr. 129. The Commission has
stated that in:

[E]valuating
the reasonable likelihood of a

fire,
ignition, or explosion, the Commission has

examined
whether a 'confluence of factors' was

present
based on the particular facts surrounding

the
violation. Texasgulf, Inc., 10 FMSHRC 498,

501
(April 1988). Some of the factors include

the
extent of accumulations, possible ignition

sources,
the presence of methane, and the type

of
equipment in the area. Utah Power & Light Co.,

12
FMSHCR 965, 970-71 (May 1990) (“UP&L”);

Texasgulf,
10 FMSHRC at 500-03.

Enlow Fork Mining Co., 19
FMSHRC 5, 9 (Jan. 1997). Oliver explained that for an explosion to occur,
oxygen, ignition, and fuel (coal dust, methane, or both) must be present. Tr.

189. I credit Oliver’s testimony that a significant amount of coal dust was
     suspended around the continuous miner and throughout the entry. Tr. 85. Oliver’s
     description of the dust as being so thick that the continuous miner’s lights
     were barely visible from 70 feet is compelling, and Oliver’s extensive
     experience in the mining industry gives added credence to his determination that
     the dust was “excessive.” Ex. S-1.

Testimony
from Wells and Meade indicated that Hensley left a brow standing and that at the
time of the inspection, Hensley was using the continuous miner to remove the
brow.

Tr.
245-46, 248. Leeco contended that the dust Oliver saw suspended in the entry’s
atmosphere was rock dust from the cut brow, not coal dust, and that the
suspended dust could not have led to an explosion. Tr. 190. I reject this
contention and find that a significant amount of the suspended dust was in fact
coal dust. Coal was being cut in the No. Four entry on November 4. As Oliver
explained, “[I]t’s a coal mine. As they mine, they have to mine coal.” Tr. 202.
It is reasonable to assume that the large amount of dust came from the ongoing
mining at the face, not from cutting a single brow. In addition, and as I
already have noted, Oliver, an inspector with considerable experience as an
inspector and a miner, believed the dust was coal dust. Tr.
70-74.

I
take note of the fact that coal dust can be highly explosive in and of itself
and that a continuous miner’s bits can cause sparks when they strike naturally
occurring rock in a coal

seam. See Tr. 130. In
addition, even though Oliver did not detect methane prior to issuing the order,
he posited that if mining continued, methane could have been suddenly released.
Tr. 127, 130-31. This scenario was not unlikely. The mine is gassy and at the
time of the inspection it was liberating at least 200,000 cfm of methane in a 24
hour period. Tr. 41, 75. Ongoing mining would have released even more methane.
Without ventilation, methane would not have been diluted and the concentration
of methane would have increased. Tr. 127. Moreover, when methane interacts with
coal dust, coal dust can lower the explosive range of methane making the gas
even more likely to explode. Tr. 128, 129-30. While there were methane sensors
on the continuous miner to give the continuous miner operator a warning when
methane levels reached 1% and to shut down the machine when methane levels
reached 1.5-2%, Oliver credibly asserted that the sensors would not necessarily
have prevented an explosion and that there have been explosions in the past
where sensors worked properly. Tr. 131-32.

Oliver
also determined that an explosion was reasonably likely to result in fatal or
serious injuries. Tr. 136. There were eight miners working in the No. 14 section
at the time the violation was cited, and Oliver believed that all of them could
have been affected. Tr. 135, 137. Given the devastating potential of an
explosion, I find that Oliver correctly determined that eight miners were
reasonably likely to have been severely injured or killed because of the
violation.

Based
on the amount of coal dust that was in the air, the large amount of methane that
was liberated and the large amount that reasonably could have been expected to
be liberated as mining continued, and based on the fact that as mining continued
the continuous miner represented an ongoing potential ignition source, I find
that the lack of compliance with the approved ventilation plan in the No. Four
entry was reasonably likely to result in an explosion causing fatalities and/or
other injuries of a serious nature and that the violation was properly found to
be S&S.

GRAVITY

The
S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the "focus of the seriousness of the
violation is not necessarily on the reasonable likelihood of serious injury,
which is the focus of the S&S inquiry, but rather on the effect of the
hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996). Here, the lack of ventilation due to Leeco’s noncompliance with its
approved ventilation plan could have resulted in an explosion which almost
surely would have killed and/or injured up to eight miners. The violation was
very serious.

UNWARRANTABLE
FAILURE

In
Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission
summarized the legal principles applicable to determining whether a violation is
the result of an unwarrantable failure:

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 2003-04;

Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189,

194
(Feb. 1991) ("R&P"); see also

Buck
Creek Coal, Inc. v. FMSHRC,

52
F.3d 133, 136 (7th Cir. 1995) (approving

Commission's
unwarrantable failure test). Whether

conduct
is "aggravated" in the context of

unwarrantable
failure is determined by looking at

all
the facts and circumstances of each case to see

if
any aggravating factors exist, such as the length

of
time that the violation has existed, the extent of

the
violative condition, whether the operator has

been
placed on notice that greater efforts are

necessary
for compliance, the operator's efforts

in
abating the violative condition, whether the

violation
is obvious or poses a high degree of

danger,
and the operator's knowledge of the

existence
of the violation. See

Consolidation
Coal Co., 22 FMSHRC 340, 353

(Mar.
2000) ("Consol");

Cyprus
Emerald Res. Corp., 20 FMSHRC 790,

813
(Aug. 1998), rev'd on other grounds,

195
F.3d 42 (D.C. Cir. 1999); Midwest Material Co.,

19
FMSHRC 30, 34 (Jan. 1997);

Mullins
& Sons Coal Co., 16 FMSHRC 192, 195

(Feb.
1994); Peabody Coal Co.,

14
FMSHRC 1258, 1261 (Aug. 1992);

BethEnergy
Mines, Inc., 14 FMSHRC 1232,

1243-44
(Aug. 1992); Quinland Coals, Inc.,

10
FMSHRC 705, 709 (June 1988). 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.

Consol,
22 FMSHRC at 353. Because supervisors

are
held to a high standard of care, another important

factor
supporting an unwarrantable failure

determination
is the involvement of a supervisor in

the violation. REB Enters.,
Inc., 20 FMSHRC 203,

225
(Mar. 1998).

Lopke
Quarries, 23 FMSHRC at 711.

Oliver
found that the violation was the result of high negligence and an
unwarrantable failure because of
the amount of dust that was present, the failure of Meade to take corrective
measures despite the presence of the dust, the fact that the curtain was not
rehung after Oliver thought it was torn down, and because he believed that the
curtain was likely never installed correctly in the first place. Tr.
137-38.

Obviousness

When Oliver and Wells stepped into
the last crosscut of the No. Four entry to take the first set of air readings,
Oliver looked up and noticed that there was “a lot of dust in the air.” Tr. 82.
While there is always some dust in the air when mining is underway, the dust
Oliver saw caught his attention because the amount seemed much more than
normal. Tr. 82, 83. This signaled to Oliver that the ventilation
in the entry was defective. However, when Meade approached Oliver and Wells, he
was coming from the No. Five entry into the last open crosscut of the No. Four
entry. Tr. 83-84; Ex. S-10. Wells stated without contradiction that coming from
this direction, Meade would not have been in, nor seen, an abnormal amount of
dust. Tr. 234. Meade testified that he did not look toward the face of the No.
Four entry as he was walking up to Oliver and Wells, and Oliver did not ask
Meade what he observed when walking towards them. Tr. 165, 300-01. Moreover, at
the time he approached the men, Meade was not on notice that he should look for
signs of defective ventilation in the entry. He credibly testified that when he
visited the No. Four entry earlier in the shift, he was “110 percent certain”
that the curtain was properly hung and the ventilation “was working properly.”
Tr. 290-291. While there was “a little dust” at the face, it was, he stated, no
more than is always present when a continuous miner cuts coal. Tr. 291. Meade’s
testimony was logical and believable, and I conclude that Meade was not on
notice to look for excessive dust when he approached Oliver and Wells. In other
words, I conclude that while the amount of dust signaling the lack of
ventilation was visually obvious, the dust when first seen by Meade did not
indicate that he should have been aware of the violation and should have reacted
to it in the short time that Oliver allotted to him. In fact, all three of the
men had to look toward the face in the No. Four entry to see that excessive dust
was present in the area of the continuous miner. Tr. 82, 234, 299-301. Further,
all of the men had to walk toward the area where mining recently occurred to see
that the deflection curtain was down. Tr. 86, 240-41, 301. It was in this area
that Oliver confirmed there was no ventilation in the vicinity of the miner.
Therefore, I find that as Meade approached and reached Oliver the thick dust in
the atmosphere and the downed curtain were not so obvious as to alert Meade that
there was a ventilation problem that needed correcting. I also find the evidence
does not establish that the condition was known or should have been known to
Meade earlier in the shift.

Degree of
Danger

There
was excessive dust and no ventilation in the area of the continuous miner. Tr.
84-86. Although the record does not support a finding that methane was then
present in the No. Four entry (see e.g. Tr. 127), as stated above,
methane was reasonably likely to be released as mining continued based on the
mine's history of liberating large amounts of methane. Tr. 127, 130-31. At the
same time, the continuous miner could have caused sparks, an obvious ignition
source, and once the methane ignited, the concentrated coal dust could likely
have propagated an explosion resulting in the death and/or serious injury of up
to eight miners. Tr. 132. There is no gainsaying the fact that the violation
posed a high degree of danger, one that required a heightened level of
awareness.

Length of
Time

Oliver
believed that the lack of required ventilation existed for “[p]robably close to
30 minutes” because he thought the entire cut had been mined while there was a
lack of ventilation and that “it would’ve taken approximately 30 minutes to mine
what they had mined.” Tr. 120. However, Oliver also testified that if Meade had
stopped the continuous miner when Meade came up to Oliver and Wells in the
crosscut, Oliver would not have regarded the violation as caused by Leeco’s
unwarrantable failure. Speaking of Meade, Oliver stated:

[O]nce
he observed that dust, that indicated

there
was a problem with the ventilation.

And
he [should have] stopped the miner

the same way I stopped the miner
when

I entered that area. . . . [If he
had stopped

the miner] [t]hat would’ve been a
mitigating

factor and I would’ve considered
that

he took . . . corrective action,
and it

would’ve probably been
moderate

negligence.

Tr.
121-22.

When
Oliver was asked how much time elapsed between when he thought Meade should have
shut down the miner and when Oliver shut it down, Oliver replied. “[O]ne to two
minutes. From the time that he walked across over to where me and Rick Wells was
and we kind of exchanged hello . . . and I asked him where the miner was
cutting, a minute, a minute and a half.” Tr. 123. Oliver felt that Meade “could
have signaled [the continuous miner operator] with his cap light. He could’ve
went over to the entry [and] hollered at him . . . to shut off [the continuous
miner.]” Tr. 123-24. Asked if there was a policy that required a section foreman
to go directly to an MSHA inspector, Oliver replied, “I don’t know that there
[is] a policy that you go immediately to an inspector. I mean, you talk to the
inspector and you see what they want and you assist them, yes there is that.”
Tr. 124.

Oliver’s
testimony indicates that his finding of unwarrantable failure was heavily
influenced by the fact that Meade did not take any action in the minute or two
that it took Meade to reach and to identify Oliver and Wells. Also factoring
into his uwarrantable failure finding was Oliver’s suspicion that the deflector
curtain was not installed properly or, perhaps, was never hung. Tr. 126-27. In
Oliver’s view, Meade should have known that the curtain was either improperly
installed, that it had been torn down, or that it never was hung in the first
place. Tr. 127. Although the continuous miner operator maintained that the
curtain was properly hung but was torn down when he backed up, Oliver questioned
this. He testified that he asked Hensley why he had not rehung the curtain. He
stated that Hensley did not answer. Tr. 138-39. If the curtain had in fact been
torn down, Oliver believed it had been down for approximately 30 minutes. Tr.
139.

Having
considered all of the testimony, I reject Oliver’s rationale that Meade’s
failure to stop the continuous miner before Oliver stopped it was indicative of
an unwarrantable failure to comply with the approved ventilation plan. As noted,
Oliver’s testimony gave Meade one to two minutes to take the action that Oliver
thought was required. Tr. 123-24, 155-57. However, the testimony made clear that
Meade was confronted with a situation wherein two people whom he did not
recognize were unexpectedly present on a section for which he was responsible.
It was a natural thing for Meade to want to understand why the people were
present. Failure to give immediate priority in the very short time under
consideration to the dust in the entry did not represent aggravated conduct or
more than ordinary negligence. Rather, I find the fact that Meade first
determined who was unexpectedly on the section represented normal conduct by a
responsible supervisor.

I
also conclude that the Secretary did not establish that Meade knew or should
have known that the curtain was not hung or was improperly hung. If the
Secretary had established that mining began with the curtain down or mostly
down, then Meade either knew or should have known about the defect because as
section foreman he was required to check the section for compliance with all
safety standards prior to mining beginning. The downed or improperly hung
curtain would have been a sign that non-compliance with the ventilation plan was
likely. However, the Secretary did not prove that the curtain was down or was
improperly hung when mining began. Oliver suspected that either might have been
the case, but an unwarrantable failure finding cannot be based on a suspicion.
In fact, Oliver acknowledged his lack of certainty. Asked if he thought Meade
was aware the curtain was improperly hung, Oliver replied, “I don’t know that he
knew one way or the other.” Tr. 122.

Further,
Wells testified that after Hensley had mined a cut in the No. Four entry and
started to clean up on the left side of the entry, the cable was thrown to one
side where it caught and pulled down the deflector curtain. Tr. 245, 246. In the
meantime, as he was cleaning up Hensley noticed a brow and chose not to rehang
the curtain before removing the brow with the continuous miner. Tr. 246, 259-60.
This scenario is just as likely to have occurred as the curtain being improperly
hung to start with, and under the “pulled down” scenario there was no showing by
the Secretary that Meade should have known about the curtain’s defective
placement. Under these circumstances, I find that the length of time the
violation existed is too speculative to be part of the basis for an
unwarrantable finding.

Extent of the
Violation

The
extensiveness factor involves consideration of the scope or magnitude of a
violation. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct.
2010). The lack of required ventilation existed in a relatively small area. The
heavy concentration of suspended dust was contained mostly in the No. Four
entry, at the face and around the continuous miner, with some dust traveling
farther down to the last crosscut. The lack of ventilation was localized, which
means that Meade’s duty of care is judged on the knowledge he had or should have
had of the conditions in the No. 4 entry where the continuous miner was cutting.
This is not a situation where the scope of the violation was so extensive that
management officials were apprised of or should have been apprised of the
situation numerous times before the violation was cited.

Operator's
Knowledge of the Existence of the Violation

As
noted, Oliver believed that Meade should have known about the violation because
the amount of dust should have caught his attention. Tr. 118. Oliver posited
that if Meade was a prudent foreman, it would have only taken him a few seconds
to be alerted to a ventilation issue when he reached the No Four entry. Tr.
118-19. Oliver did not believe that there were any mitigating circumstances as
to why Meade did not shut down the miner very shortly after entering the entry.
Tr. 121. If Meade had immediately shut down the machine, Oliver stated that he
most likely would have issued a 104(a) citation and marked the negligence level
as moderate. Tr. 122. I note, however, that as Mead approached the entry, there
was no showing he looked toward the face and saw the dust, the visual sign of
the violation. I have found that Meade acted as a responsible supervisor and
that his failure to take corrective action in the very short time given to him
by Oliver was excusable.

Oliver
also believed that the addition of 12-16 feet of curtain needed to abate the
violation suggested that the curtain was insufficient before mining started and
that Meade should have known about the lack of ventilation. Tr. 116-17, 120,127.
However, prior to Oliver’s arrival on the section, Meade examined all of the
section’s entries and took air readings in each entry to make sure the
ventilation was working properly. Tr. 286-87, 289-90, 292, 295. Nothing alerted
him that there was an actual or potential problem with the ventilation in the
No. Four entry and Meade was a credible witness. Id. It is also highly
unlikely that Meade would have been able to examine all of the other entries in
the No. 14 section and return to the No. Four entry before Oliver arrived. In
addition, Oliver acknowledged it was possible that the curtain had been up and
had extended four feet into the No. Four intersection. Tr.
179.

I
find the evidence does not establish that Meade had a reason to believe there
was a violation in the No. Four entry and that Leeco had no reason to have, and
in fact did not have, prior knowledge of the violation.

Operator
Placed on Notice that Greater Efforts at Compliance are
Necessary

At
the time of the inspection, Leeco was on a “section 104(d)” sequence. Tr. 42,

257. Specifically, Mine # 68 received five 104(d) citations and orders for
     failure to maintain ventilation between February 2010 and November 4,
     2010.

Exs.
S-8-11; Tr. 207, 264-65. Although Wells stated that to his recollection, the No.
14 section was never issued citations or orders for violating the ventilation
plan (Tr. 232), the citations and orders issued in other areas of the mine in
the nine months before November 4, 2010 should have put Leeco on notice that
greater compliance efforts were necessary to ensure required ventilation at the
mine.

Operator's
Efforts in Abating the Violation

The
focus of the abatement effort factor is on the efforts (if any) that Leeco made
prior to November 4 to prevent violations of its ventilation plan. In general,
the factor measures an operator's response to violative conditions that were
known to it or that should have been known to it. Enlow Fork, 19 FMSHRC
at 17. The record reveals that Leeco made efforts to prevent violations of the
approved plan by reminding its miners of the importance of adequate ventilation.
Wells stated that after receiving a citation or order for a ventilation plan
violation, his practice was to conduct a safety meeting with miners to discuss
the violation and the proper safety procedures to take to avoid future similar
citations or orders. Tr. 257, 259. The miners were also trained and required to
take air readings if they thought ventilation had ceased. Tr. 320-21. According
to Wells, continuous miner operators knew that when they knocked down a
ventilation curtain they should immediately rehang it. Tr. 260. Testifying about
Hensley in particular, Wells stated that Hensley had been trained and knew the
requirements of the ventilation plan, including the need to rehang torn down
curtains prior to continuing mining. Tr. 257-58. Specifically, in this instance,
Hensley was “written up” and “sent home” for failing to rehang the curtain. Tr.
261-62. Moreover, in regard to action taken in other areas of the mine to
prevent ventilation violations, Wells testified that Leeco fired the foreman of
the No. 10 Section after two orders were issued for ventilation violations on
February 10, 2010. Tr. 267. Further, Wells testified that he personally tried to
prevent violations by always visiting at least one of the three sections for
which he was responsible during his shift, and as mentioned above, the section
bosses, including Meade, examined all of the entries on their sections. Tr.
270.

Wells
was a credible witness, and I find that much of his testimony mitigates Leeco’s
level of negligence. While Leeco’s post-citation discipline of Hensley is not
relevant to the issue of Leeco’s aggravated conduct (Enlow Fork, 19
FMSHRC at 17) and while the required examinations of its section bosses are not
the kind of “extra effort” that ameliorates unwarrantable failure, the company’s
additional safety meetings following previously cited ventilation violations
qualify as efforts to address the problem over and above what was required, as
does its disciplining of those responsible for prior ventilation
violations.

Conclusion
and Negligence Finding

As
is almost always the case when considering an unwarrantable failure allegation,
all of the determinative factors do not point in one direction. While the
violation was very serious, the violation was localized and Meade’s lack of
knowledge of the violation until very shortly before it was cited and his
failure to take action in the very short time afforded him by Oliver was
excusable. In addition, although they were unsuccessful in this instance,
Leeco’s ongoing efforts to prevent the kind of violation that occurred were
laudatory. After considering and weighing all of the factors, I conclude that a
finding of unwarrantable failure is inappropriate. In reaching this conclusion I
have especially noted Oliver’s testimony that he most likely would have issued a
104(a) citation with a finding of moderate negligence if Meade had shut down the
continuous miner down in the less than 2 minutes before Oliver acted. Tr.
123-24, 156-57. It is clear from the testimony that Oliver did not account for
the impact on Meade of seeing two persons he did not recognize on the No. 14
section. Meade gave priority to finding out who the strangers were and what they
were doing on the section. His immediate failure to act with regard to the
continuous miner was understandable and the reason why he failed to act
immediately substantially undercuts Oliver’s unwarrantable finding. For all of
these reasons I find that the violation was not caused by Respondent's
unwarrantable failure to comply with its ventilation plan and that the company’s
negligence was moderate.

OTHER CIVIL
PENALTY CRITERIA

History of
Previous Violations

Mine

68’s history of violations is reflected in a report from MSHA's database. Ex.

S-13. The report lists violations issued at the mine and indicates that 755
violations became final between May 2009 and November 2010. I accept the figures
in the report as accurate and find that the exhibit reflects a large
history.

Size of the
Operator

The
parties did not agree on a characterization of the size of the operator, however
they stipulated that in 2010 the mine produced 715,373 tons of coal (Tr. 19;
Stip. 5), and on the form reflecting his calculation of the proposed penalty
(MSHA Form 1000-179), the Secretary assigned 13 out of a possible 15 points for
the size of the operator. I find that Leeco is a large operator.

Ability to
Continue in Business

The
parties stipulated that the proposed penalties will not affect Leeco’s ability
to continue in business, and I find that the same is true for the penalties
assessed below. Tr. 20; Stip 7.

Good Faith
Abatement

The
parties stipulated that Leeco terminated the conditions giving rise to violation
in a timely, effective, and good manner. Tr. 19, Stip.
6.

CIVIL PENALTY
ASSESSMENTS

ORDER
NO.

DATE

30 CFR
§

PROPOSED PENALTY

ASSESSMENT

8346316                    
11/4/10

75.370(a)(1)         
$47,716.00                                    
$20,000.00

I
have found that the violation was very serious and was caused by Leeco’s
moderate negligence. In all, eight miners were reasonably likely to suffer death
and/or severe injuries as a result of the violation. Given these findings and
Leeco’s large size and large history of previous violations, I find that a civil
penalty of $20,000.00 is appropriate.

SETTLED
VIOLATION

As
stated at the outset, the parties settled the contested violation of section
75.370(a)(1) set forth in Order No. 8346197. Tr. 14, 329-30. Counsels assert
that the purposes of the Act will be furthered if the company agrees it violated
the standard as alleged and pays a penalty of $50,000 for the violation. Tr.
329-30. I concurred and approved the settlement. Tr. 330.

ORDER
NO.

DATE            
30 CFR
§

PROPOSED
PENALTY            
ASSESSMENT

8346197
                    11/4/10            
75.370(a)(1)          $60,000.00                                   
$50,000.00

ORDER

It
is ORDERED that Order No. 8346316 be
MODIFIED from an order issued pursuant to
section 104(d)(2) of the Act (30 U.S.C. § 814(d)(2)) to a citation issued
pursuant to section 104(a) of the Act (30 U.S.C. § 814(a)) and that the
inspector’s negligence finding be changed from “high” to “moderate.” It is also
ORDERED that within 30 days of the date
of this decision, Leeco SHALL PAY a civil
penalty in the total amount of $70,000.00.

Upon
payment of the penalty, this matter IS
DISMISSED.

/s/ David F. Barbour

David F. Barbour

Administrative Law
Judge

Distribution (Certified
Mail):

Alisha Wyatt, Esq., Leslie Brody,
Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, SW,
Room 7T10, Atlanta, GA 30303

Noelle True, Esq., Rajkovich,
Williams, Kilpatrick, & True, 3151 Beaumont Centre Circle, Suite 375,
Lexington, KY 40513

/db