Island Creek Coal Company

Plain-English summary

Island Creek Coal Company and two employees were involved in consolidated proceedings at the Ohio 11 Mine. Judge T. Todd Hodgdon dismissed the individual matters in KENT 95-502 and KENT 95-519, vacated and dismissed two company actions in KENT 95-214, modified one order by reducing negligence and removing the unwarrantable-failure designation, and affirmed two citations. He ordered Island Creek to pay a $352 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10
• Outcome: Two company actions were vacated, one was affirmed as modified, two citations were affirmed, and the individual matters were dismissed. The total penalty was $352.
• Key point: The judge distinguished a localized gas release from a reportable mine-wide inundation under the rule then at issue.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA 22041



                        August 28, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-214
Petitioner : A.C. No. 15-03178-03789
v. :
: Mine: Ohio 11
ISLAND CREEK COAL COMPANY, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-502
Petitioner : A.C. No. 15-03178-03800 A
v. :
: Mine: Ohio 11
WILLIAM THOMASON, Employed :
by ISLAND CREEK COAL CO., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-519
Petitioner : A.C. No. 15-03178-03799 A
v. :
: Mine: Ohio 11
JOHN CAMBRON, Employed by :
ISLAND CREEK COAL CO., :
Respondent :

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                              DECISION

Appearances: Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
John T. Bonham, II, Esq., David J. Hardy, Esq.,
(on brief), Jackson & Kelly, Charleston, West
Virginia, for Respondent.

Before: Judge Hodgdon

 These consolidated cases are before me on Petitions for

Assessment of Civil Penalty filed by the Secretary of Labor,
acting through his Mine Safety and Health Administration (MSHA),
against Island Creek Coal Company, William Thomason and John
Cambron, pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820. The
petitions allege that the company violated five of the
Secretary’s mandatory health and safety standards and that
Thomason and Cambron, as agents of the company, knowingly
authorized, ordered or carried out one of the violations.

 For the reasons set forth below, I find that the company did

not violate section 50.10, 30 C.F.R. § 50.10, and vacate Citation
No. 3859779. In accordance with a negotiated settlement of the
remaining petitions, orders and citations, I dismiss the
petitions against Thomason and Cambron, vacate and dismiss Order
No. 3859663, modify Order No. 3859662 to a citation and assess a
penalty against the company of $352.00.

 A hearing was held on April 10, 1996, in Henderson,

Kentucky. In addition, the parties filed post-hearing briefs in
these matters.

Settled Matters

 At the beginning of the hearing, counsel for the Secretary

stated that all but one citation in these cases had been settled.
With regard to Docket Nos. KENT 95-502 and KENT 95-519, the
Secretary moved to dismiss the petitions because the evidence did
not demonstrate the aggravation necessary to support the cases
against Thomason and Cambron under section 110(c), 30 U.S.C.
§ 820(c). For Docket No. KENT 95-214, the parties agreed that
the Respondent would pay the assessed penalty of $50.00 each for
Citation Nos. 3859614 and 4067100, that Order No. 3859663 would
be vacated for lack of proof and that Order No. 3859662 would be
modified from a section 104(d)(1) order, 30 U.S.C. § 814(d)(1),
to a 104(a) citation, 30 U.S.C. § 814(a), by reducing the level
of negligence from “high” to “moderate” and deleting the
“unwarrantable failure” designation and that the penalty would be
reduced from $2,500.00 to $252.00.

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 After considering the parties’ representations, I concluded

that the settlement was appropriate under the criteria set forth
in section 110(i), 30 U.S.C. § 820(i), and informed the parties
that I would accept the agreement. (Tr. 5-22.) The provisions
of the agreement will be carried out in the order at the end of
this decision.

Contested Citation

 The Island Creek Ohio No. 11 mine is an underground coal

mine employing 231 miners and producing 8,000 tons of coal daily
from four working sections. During the second shift on April 7,
1994, a continuous mining machine cut through a “core drill
hole”1 while mining a crosscut between the numbers five and six
entries on the 004 section. The core drill hole went through the
No. 11 seam, where the work was being done, down into the No. 9
seam which had been sealed for some time and contained gas under
pressure. As a result, gas from the No. 9 seam flowed into the
No. 11 seam.

 Concentrations of between three and three and one half

percent methane were detected in the return adjacent to the
continuous miner. Within two or three minutes, ventilation
curtains were set up and the methane concentration was reduced to
below one percent. The continuous miner was removed from the
crosscut and attempts were made to seal the hole.

 Around 7:00 a.m. on April 8, the local MSHA office was

notified of the situation as a “courtesy.” On receiving the
notification, a 103(k) order, 30 U.S.C. § 813(K), was issued to
preserve the scene and MSHA inspectors traveled to the mine.

 After the inspectors reviewed the situation, Citation No.

3859779 was issued, alleging a violation of section 50.10. The
citation stated that “[m]ine management failed to notify MSHA
immediately after the mine experienced a non-injury accident on
April 7, 1994 at 1845 hrs. A core drill hole was cut through on
the 004-0 MMU. MSHA was notified by phone on April 8, 1994 at
0700 hrs.” (Jt. Ex. 1.)

 The gas leak was finally completely solved when a hole was


 1
   A “core drill” is “ a mechanism designed to rotate and

cause an annular-shaped rock cutting bit to penetrate rock
formations, produce cylindrical cores of the formations
penetrated, and lift such cores to the surface, where they may be
collected and examined.” Bureau of Mines, U.S. Department of
Interior, A Dictionary of Mining, Mineral, and Related Terms 266
(1968) (DMMRT). Thus, a “core drill hole” is the hole remaining
after the core has been removed.

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drilled to the surface on April 13, venting the pressurized gas
to the surface. Mining operations on the other sections of the
mine were not affected by the gas leak. Consequently, all other
mining operations continued.

 Section 50.10 requires that “[i]f an accident occurs, an

operator shall immediately contact the MSHA District or
Subdistrict Office having jurisdiction over its mine.” Section
50.2(h), 30 C.F.R. § 50.2(h), sets out 12 types of incidents when
an “accident” is deemed to have occurred. Section 50.2(h)(4)
states that “[a]n unplanned inundation of a mine by a liquid or
gas” is an accident.

 It is undisputed that this incident was not immediately

reported to MSHA. Therefore, if this was an unplanned inundation
of the mine by gas, Island Creek violated the regulation. I
find, however, that what occurred was not an inundation of the
mine. Consequently, it was not a reportable accident under
section 50.10.

 If there is any doubt as to whether a regulation provides

“adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the
reasonably prudent person test.” BHP Minerals International
Inc., No. CENT 92-329 et al, slip op. at 4 (August 19, 1996).
That test is “whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of
the standard. Ideal Cement Co., 12 FMSHRC 2409, 2416 (November
1990).” Id.

 The regulation speaks of the inundation of a mine, not a

part, sections, entries or crosscuts of a mine. Thus, on its
face it appears that this type of accident has to be mine wide.
That this is the case, is further indicated by the use of the
word “inundation.”

 As the Commission has previously noted, the DMMRT at 587

defines “inundation” as an “inrush of water on a large scale
which floods the entire mine or a large section of the workings.”
Aluminum Company of America, 15 FMSHRC 1821, 1825 n.8 (September
1993). Under the regulations, inundation can also be an inrush
of gas. Id.

 Clearly, what occurred here was not an inundation. The

gases released did not flood the entire mine or even a large
section of the workings. Three of the four working sections were
unaffected. In fact, only the numbers five and six entries and

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the crosscut between them in the 004 section were impacted at all
by the release of gas.

 I find that a reasonably prudent person familiar with the

mining industry would not have concluded that this incident was
an accident required to be immediately reported under section
50.10. Therefore, I conclude that the company did not violate
the regulation when this incident was not immediately reported.

                          ORDER

 Docket Nos. KENT 95-502 and KENT 95-519 are DISMISSED. In

Docket No. KENT 95-214, Order No. 3859663 and Citation No.
3859779 are VACATED and DISMISSED, Order No. 3859662 is MODIFIED
by reducing the level of negligence from “high” to “moderate” and
deleting the “unwarrantable failure” designation and is AFFIRMED
AS MODIFIED, and Citation Nos. 3859614 and 4067100 are AFFIRMED.
Island Creek Coal Company is ORDERED TO PAY a civil penalty of
$352.00 within 30 days of the date of this decision. On receipt
of payment, these proceedings are DISMISSED.

                                T. Todd Hodgdon
                                Administrative Law Judge

Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville,
TN 37215-2862 (Certified Mail)

John T. Bonham, III, Esq., Jackson & Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)

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