Peabody Coal Company

Plain-English summary

Peabody Coal operated the underground Martwick coal mine in Kentucky. An inspector measured 2,340 cubic feet per minute of air at a continuous miner, below the 5,000 cubic feet per minute required by Peabody's ventilation plan, and the company conceded the violation. The Commission agreed with the judge that the Secretary did not prove a reasonable likelihood that the violation would result in injury or illness because the scrubber and miner were off when the air was measured. The violation was affirmed, but the significant-and-substantial allegation was not established.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.316 and 75.370(a)(1)
• Outcome: The ventilation-plan violation was affirmed, while the S&S finding was not established.
• Key point: An inadequate air reading before the scrubber and continuous miner were started did not, on this record, establish a reasonable likelihood of injury or illness.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                    January 25, 1995

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 93-295
:
PEABODY COAL COMPANY :

BEFORE: Jordan, Chairman; Doyle and Holen, Commissioners

                                              DECISION

BY THE COMMISSION:

   This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1988), presents the issue of whether a violation by Peabody Coal
Company ("Peabody") of its ventilation plan was significant and substantial ("S&S").
Administrative Law Judge Arthur Amchan concluded that the violation was not S&S. 15
FMSHRC 1887 (September 1993) (ALJ). For the reasons that follow, we affirm the result
reached by the judge.

                                            I.

                           Factual and Procedural Background

     Peabody owns and operates the Martwick mine, an underground coal mine in Muhlenberg

County, Kentucky. On November 19, 1992, Darold Gamblin, an inspector from the Department
of Labor's Mine Safety and Health Administration ("MSHA"), observed a continuous mining
machine operating 60 feet inby the last open crosscut in the No. 1 entry. Gamblin instructed the
operator of the continuous miner to shut it down and he then measured the air flow 25 feet behind
its cutting edge at the end of the line brattice. He found the air flow to be 2,340 cubic feet per
minute ("cfm"), less than the 5,000 cfm required by Peabody's ventilation plan. The inspector

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issued a section 104(a), 30 U.S.C. § 814(a), citation to Peabody, alleging an S&S violation of 30
C.F.R. § 75.316 (1991) based on the air flow deficiency.1 Gov't Ex. 3.

   At the hearing, the citation was amended to allege a violation of 30 C.F.R. § 75.370(a)(1),

which superseded section 75.316 three days before the inspection.2 15 FMSHRC at 1891.
Peabody conceded the violation. Id. The judge determined, however, that the Secretary had

1
Section 75.316, which restated 30 U.S.C. § 863(o), provided as follows:

                     A ventilation system and methane and dust control plan and
             revisions thereof suitable to the conditions and the mining system of
             the coal mine and approved by the Secretary shall be adopted by the
             operator and set out in printed form . . . .

30 C.F.R. § 75.316 (1991).
2
Section 75.370(a)(1) states in pertinent part:

                     The 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). This section became effective November 16, 1992. 57 Fed. Reg.
34683 (August 6, 1992).

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failed to prove that the violation was S&S. Id. at 1894. The Commission granted the Secretary's
petition for discretionary review, which challenged this determination.

                                             II.

                                        Disposition

    Peabody's approved ventilation plan required that "[a] minimum of 5000 cfm of air shall be

delivered to the inby end of the line brattice before the scrubber3 [on the continuous miner] is
started and shall be maintained until the cut has been completed." Gov't Ex. 4, at 4, & 2. The
Secretary submits that the judge, in making his S&S determination, improperly focused on the
fact that the continuous mining machine was not running at the time the inspector took his air
flow reading. The Secretary contends that the judge erred in distinguishing U.S. Steel Mining
Co., 7 FMSHRC 1125 (August 1985), in which the Commission found that a violation of a
ventilation plan provision was S&S. The Secretary also argues that the judge erred in rejecting
the inspector's testimony that injury or illness was reasonably likely to result if the violation
continued.

    Peabody responds that the judge's S&S determination is supported by substantial evidence

and is not in conflict with U.S. Steel.

     The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),

and refers to a more serious type of violation. 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, 825-26 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), 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.

3
The scrubber, a fanlike device, vacuums coal dust from the atmosphere by suctioning in air
from behind the continuous miner's cutting head and spraying it with water. The water-laden dust
is collected on a screen; the air is dried and discharged dust-free. See Tr. 88-90, 106-07, 109,
141-42.

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Id. at 3-4. See also Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

    The issue in question is the third element of the Mathies test. Peabody conceded the

violation, establishing the first element. 15 FMSHRC at 1891. As to the second element, a
discrete safety hazard, the judge found that "the lack of 5,000 cfm of air prior to operation of the
scrubber increased the likelihood of serious injury or illness." Id. at 1893. The judge also found
that the fourth element was proven. He concluded that resulting injuries -- from inhalation of
excessive amounts of respirable coal dust as well as from explosions -- would be serious. Id. at
1891. The judge concluded, however, that the Secretary had failed to prove the third element of
Mathies, a reasonable likelihood that the 2,340 cfm air flow prior to the machine being placed in
operation would result in injury or illness. Id. at 1892-93.

     The Secretary bears the burden of proving that a violation is S&S. See, e.g., Union Oil

Co. of Cal., 11 FMSHRC 289, 298-99 (March 1989). We agree with the judge that the Secretary
failed to establish the reasonable likelihood of injury or illness and, thus, failed to meet his burden
of proof.

     The inspector measured the air quantity while both the scrubber and the continuous miner

were off and cited Peabody for its failure to deliver 5,000 cfm before the scrubber was started. At
hearing, the Secretary's case essentially relied upon the testimony of Inspector Gamblin, who
testified that, without 5,000 cfm air flow, a person "could" be exposed to respirable dust and that
pneumoconiosis "can" result. Tr. 93, 97. He also stated that methane ignitions "can" result. Tr.

93. He said that ignition sources "could" still be present when the continuous miner is not
    operational. Tr. 120. The inspector was also concerned with the danger of methane and dust
    recirculation due to inadequate air flow, but he indicated only that recirculation "can" or "could"
    occur. Tr. 122. Gamblin's testimony, as found by the judge, does not establish that delivery of
    2,340 cfm of air before the scrubber is started, when no mining is occurring, would be reasonably
    likely to result in injury or illness. See Union Oil, 11 FMSHRC at 298-99.

     The judge rejected the Secretary's argument that U.S. Steel is controlling here. In U.S.
    

    Steel, the operator was cited for running its continuous miner while its air quantity was below the
    required level of 5,000 cfm and, based on the evidence presented in that case, the Commission
    determined that U.S. Steel's failure to provide the required level of air during mining was S&S. 7
    FMSHRC at 1126-31. Under Commission precedent, however, determination of whether a
    violation is S&S must be based on the facts surrounding the violation as evidenced in the record.
    See, e.g., Texasgulf, Inc., 10 FMSHRC 498, 501-03 (April 1988). The facts giving rise to this
    violation differ significantly from those in U.S. Steel: here, the violation rested on the operator's
    failure to provide a specific quantity of air before either the scrubber or continuous miner was
    started. Thus, we conclude that the judge was correct in distinguishing the Commission's holding
    in U.S. Steel from the issue in this case.

    The Secretary also argues that Peabody was grossly out of compliance with its ventilation
    plan and that there is no evidence that, during production mining, operation of the scrubber would

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have increased the air flow to 5,000 cfm or more.4 Inspector Gamblin conceded that the scrubber
was in operation until he requested that it be shut down. Tr. 108-09. The Secretary presented no
evidence as to the air quantity being delivered prior to the shutdown and the record contains no
evidence that the inspector measured the air prior to the shutdown. Thus, the Secretary did not
provide support for his theory that the air flow during production would also be inadequate. In
fact, Gamblin testified that, with the scrubber running, an air flow of approximately 5,000 to
6,700 cfm could be generated. Tr. 110. In reaching our conclusion that the Secretary failed to
prove that the cited violation was S&S, we do not suggest that there is a threshold of diminished
air flow required for a ventilation plan violation to be considered S&S.4

4
The judge found and the Secretary has conceded on review that, had the air quantity been
measured with the scrubber in operation, the air flow would have been greater than that measured
by the inspector. 15 FMSHRC at 1892-93; PDR at 7 n.5.

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                                   III.

                               Conclusion

For the foregoing reasons, the decision of the Administrative Law Judge is affirmed.

                                 Mary Lu Jordan, Chairman



                                 Joyce A. Doyle, Commissioner



                                 Arlene Holen, Commissioner



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Commissioner Marks, not participating:

    I assumed office after this case had been briefed, considered at a Commission decisional

meeting, and a decision had been drafted. As a new Commissioner, I possess legal authority to
participate in pending cases and such participation is discretionary. In light of these circumstances,
I elect not to participate in this case.

                                         Marc Lincoln Marks, Commissioner



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