Secretary of Labor v. Peabody Midwest Mining, LLC and Secretary of Labor v. Michael Butler

Plain-English summary

A drill breached old mine workings at Peabody's Francisco Mine, releasing methane that repeatedly exceeded the drill's two-percent shutdown point and registered at least five percent on personal detectors. Mine manager Michael Butler allowed miners to keep an energized drill operating for about half an hour while they pulled rods and tried to plug the borehole. The Commission held that the plain language of 30 C.F.R. § 75.323(c)(2) requires withdrawal, de-energization, and cessation of other work when return-air methane reaches 1.5 percent, so using the energized drill was prohibited even if intended to control the leak. It affirmed the significant-and-substantial and unwarrantable-failure findings because the violations were known, obvious, extensive, and highly dangerous, and it found Butler's asserted good-faith safety judgment unreasonable. The Commission also affirmed Butler's personal liability, the operator's two $38,000 penalties, and Butler's two $3,000 assessments.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.323(c)(2)(ii) and 75.323(c)(2)(iii); 30 U.S.C. § 820(c)
• Outcome: Both orders, their S&S and unwarrantable-failure designations, the personal-liability findings, and all penalties were affirmed.
• Key point: Work intended to control methane cannot use energized equipment when the standard expressly requires de-energization and cessation of other work.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,                            
 :

MINE SAFETY AND HEALTH                    
 :

ADMINISTRATION (MSHA)                       
 :

:        Docket Nos. LAKE 2019-0023

v.                                              
 :                         LAKE 2019-0122                                                                                       
 :                         

PEABODY MIDWEST
MINING, LLC          :

:

:

SECRETARY OF LABOR,                            
 :

MINE SAFETY AND HEALTH                    
 :

ADMINISTRATION (MSHA)                       
 :

:        Docket No. LAKE 2019-0361

v.                                              
 :                                 

:

MICHAEL BUTLER,
employed by                  :

PEABODY MIDWEST
MINING, LLC          :

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

DECISION

BY THE
COMMISSION:

This
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2018) (“Act” or “Mine Act”). It involves two orders issued to
Peabody Midwest Mining, LLC (“Peabody”) and two personal liability assessments issued
to Peabody employee Michael Butler. [1]
All four issuances arise from a methane event at Peabody’s Francisco Mine.

Order
Nos. 9106663 and 9106664 allege that a drill team continued to operate
energized equipment after 5% methane was detected, in violation of requirements
to de-energize equipment and stop prohibited work if at least 1.5% methane is
present. 30 C.F.R. §§ 75.323(c)(2)(ii), (iii). Both were issued as significant
and substantial (“S&S”) and the result of an unwarrantable failure. [2] Based on the
same conduct, the Secretary of Labor also issued two personal liability
assessments against Mr. Butler, the mine manager and shift supervisor during
the event, pursuant to section 110(c) of the Act. [3] The
Administrative Law Judge affirmed both orders including the S&S and
unwarrantability findings, and both personal liability assessments. 44 FMSHRC
377 (May 2022) (ALJ) (previously unpublished decision initially issued on May
28, 2021).

On
appeal, Peabody challenges the finding of a violation for Order No. 9106664 on
grounds that the work undertaken by the drill team was not prohibited under the
terms of the standard. Respondents also challenge the unwarrantability
determinations for both orders and both findings of personal liability. For the
reasons below, we affirm the Judge’s decision.

I.

Factual and Procedural Background

A.     Factual Background

In
July 2018, Peabody contracted with REI Drilling to perform horizontal longhole
drilling in the return “0” entry for Unit 3, in order to identify old works, or
previously mined areas, that might be intersected when the continuous mining
machine advanced. Jt. Stip. 19. This was the fourth time such drilling had been
conducted at Francisco mine, with no old works previously encountered. Jt.
Stip. 21-22. During the relevant quarter, Francisco Mine liberated more than 1.7
million cubic feet of methane in a 24-hour period and was on a 5-day
ventilation spot inspection. [4]
Jt. Stip. 31-32.

REI
driller Robert Ferrin and Peabody hourly employee John Stevens arrived at the
drill site at approximately 9:00 p.m. on July 22. Jt. Stip. 25. About five
hours later, at 1:49 a.m. on July 23, the drill hit a void and air began to
exit the bore hole at significant pressure. Jt. Stip. 26. Stevens testified
that his personal multi-gas detector (“spotter”) showed elevated methane levels
moments after the drill hit the void. [5]
Tr. 253-55. Stevens immediately phoned the tracker and asked him to contact
mine manager Michael Butler, who was on Unit 3. Jt. Stip. 27; Tr. 252-54.

After
Stevens returned from the phone, Ferrin directed Stevens to engage a blowout
preventer (“BOP”) to seal the hole. However, the pressure buildup was so great
that methane began seeping out of the rib. Ferrin was concerned that closing
the BOP would blow out the drill casing and they would lose control over the
escaping gas, so he directed Stevens to open the BOP back up. Ferrin decided
that they would instead attempt to seal the borehole by pulling out the drill
rods and installing a plug (“packer”) into the hole. Tr. 60-63, 252-54. Unlike
the BOP, this process required the drill to be energized. Tr. 51.

The
tracker contacted Butler at approximately 1:50 a.m. and stated that he was
needed at the drill site. Tr. 376-7. Butler and maintenance foreman Bradley
Cary arrived at approximately 1:53 a.m., at which point Ferrin and Stevens had
already started pulling drill rods. Tr. 99, 335, 339, 377. Stevens met Butler
by the tender [6]
and informed him that they had hit old works.    Tr. 336. As Butler approached
the drill to speak with Ferrin, Butler’s spotter went over range (“OR”)
indicating the presence of at least 5% methane. Tr. 256, 337-38. Butler asked
Ferrin about the normal procedure after breaching old works, as Butler did not
have relevant experience with this type of drilling operation. Ferrin stated
that the normal response was to pull the drill rods and seal the hole. Butler
agreed to the plan, let them continue, and went to call the tracker. Tr. 38-39,
51-52, 56-57, 336, 339-40.

Butler
then directed Cary to return to Unit 3 to kill power to the equipment and
prepare to evacuate, with specific instructions not to kill power to the
drill. Tr. 278, 290-92, 340, 375. Cary returned to Unit 3 and enlisted the aid
of production supervisor James Ford in shutting down the equipment and
preparing for evacuation. Tr. 278, 317. Evacuation of Unit 3 began at
approximately 1:57 a.m. Tr. 377. While Cary remained at Unit 3, Ford then
headed to the drill site, where Butler instructed him to find some curtains and
improve ventilation over the drill.  Tr. 317-18, 344. At approximately 2:22
a.m., Ford went back to the unit to get curtains. Tr. 322. He then placed a
curtain by the man door at crosscut 66 to push air into the 0 entry and a
curtain at crosscut 67 to put intake air across the drill. Tr. 318-21.

While
Cary and Ford were traveling back and forth from Unit 3, Stevens and Ferrin
continued pulling drill rods. The drill had a methane detector which would shut
down power to the drill (“kick”) if methane levels reached 2%. The drill kicked
and then restarted two to three times over the relevant period, indicating that
methane levels were fluctuating above and below 2%. Tr. 43-44, 70, 101, 119-20,
182, 260-64, 378-79. The record also establishes that Butler, Stevens and
Ferrin’s personal spotters each went over range at least twice during the
relevant period, though the exact timing is unclear. See Tr. 118-19,
253-55, 371-72; Gov. Exs. 9(b), 9(c) (readouts of methane levels).

Meanwhile,
general manager Brad Rigsby had been contacted by the tracking office and
informed of the breach and the methane. Tr. 399-401. He instructed the tracker
to have Unit 3 cease operations and pull the miners out. Rigsby then made a
call to the District Manager for the Department of Labor’s Mine Safety and Health
Administration (“MSHA”), who told him that he needed to evacuate. Rigsby first
interpreted this as an instruction to evacuate Unit 3 but later clarified that the
District Manager had meant evacuation of the entire mine. Tr. 401-02. Rigsby
headed to the mine, where he spoke to Butler (by phone) and learned that the
drill team had been pulling rods and was about to insert the packer plug. Rigsby
ordered Butler to stop, shut everything down, “let it bleed,” i.e., let the
methane dissipate, and bring everyone out of the unit. Tr. 404-05, 415.

Butler
informed Ferrin and Stevens that they were to stop their work and prepare to
evacuate. Tr. 258, 282-83, 350-53. At this point, Ferrin and Stevens had
finished pulling the drill rods and were about to start pushing the packer into
the casing. Tr. 73-74, 257, 350, 381.  It appears that approximately half an
hour passed between Butler’s arrival at the drill site and Rigsby’s evacuation
order, and Ferrin and Stevens were pulling drill rods for a significant portion
of this time. See Tr. 102, 216, 377-78.

Butler
directed Cary to go shut down power to the drill, which he did with the
assistance of mechanic Jesse Mitchell. [7]
Tr. 280-83, 350-53. Butler, Stevens, Ferrin, Cary, Mitchell and Ford (who had
just finished placing curtains) then left together at approximately 3:11 a.m.  
 Tr. 105-06, 293; Gov. Ex. 8, at 2. Cary put a lock on the substation once he
reached the surface. The borehole was eventually sealed on July 24. Jt. Stip. 28.

MSHA
Inspector Keith Duncan was assigned as the accident investigator on July 26. After
conducting interviews and collecting data from the spotters, he issued the
relevant orders on August 16, 2018. Gov. Ex. 2-3; Tr. 83, 87-89. MSHA Special
Investigator Phillip Stanley subsequently notified Butler of section 110(c)
personal assessments based on the same underlying conduct.

B.      Judge’s Decision

The
Judge found that Peabody violated sections 75.323(c)(2)(ii) and (iii) because the
drill remained energized and miners continued to pull drill rods for at least
half an hour despite the presence of methane levels in excess of 1.5%. 44
FMSHRC at 383, 389-90. With regard to Order No. 9106664, he found that removing
the drill rods was remedial action meant to address the methane source and was
therefore prohibited “other work.” Id. at 390.

The
Judge affirmed the S&S designation for both orders, reasoning that the
combination of high methane levels, an energized drill, and the presence of
miners was reasonably likely to result in an explosion and serious injury. Id.
at 384, 390-91. He also affirmed the high negligence and unwarrantable failure
designations for both orders. Conceding that the drill team worked in good
faith to address a dangerous condition, he nevertheless found that the
violations were obvious, known and highly dangerous, and of an extent and
duration sufficient to support an unwarrantability finding. Id. at
385-88, 391.

Finally,
the Judge found Butler personally liable for the operator’s violations of
sections 75.323(c)(2)(ii) and (iii). He explained that Butler was aware of at
least two OR readings and had authority to shut down the drill and evacuate
miners, but instead oversaw the continued operation of the energized drill for
at least half an hour. Accordingly, he found that Butler was an agent of the
operator who knew of the violative conditions and was in a position to remedy
the situation but failed to act. Id. at 392.  

Balancing
findings of high gravity and negligence against Peabody and Butler’s efforts to
swiftly abate the methane hazard, the Judge assessed $38,000 per order to
Peabody, and $3,000 per assessment to Butler. Id. at 396.

C.      Arguments on
Appeal

Peabody
concedes that it failed to de-energize in violation of section 75.323(c)(2)(ii)
(Order No. 9106663) but challenges the Judge’s finding that the miners were
engaged in work that was prohibited under section 75.323(c)(2)(iii) (Order No.
9106664). Peabody claims the Judge’s interpretation of “other work” was overly
restrictive, and section 75.323(c)(2) should be read to allow ventilation control
and other work intended to manage methane. As Ferrin and Stevens were working
to prevent methane from escaping, Peabody states there was no violation. P. Br.
at 12-18. The Secretary counters that the standard prohibits anything other
than work necessary to deenergize equipment or withdraw miners, and explicitly
prohibits work with energized equipment. S. Br. at 18-20.

Peabody
also challenges the Judge’s findings of unwarrantable failure for both orders. Peabody
takes issue with the Judge’s findings on the extent, duration, and degree of
danger associated with the violations. P. Br. at 20-29. Peabody also contends
more generally that the Judge failed to give sufficient weight to Butler’s good
faith belief that he was acting appropriately and in the interests of safety. Id.
at 20-21. The Secretary counters that any good faith belief was unreasonable in
this instance. S. Br. at 27.

Finally,
Respondents claim that Butler’s conduct did not meet the level of culpability
required for personal liability because Butler reasonably believed the cited
conduct was safe.   P. Br. at 29-33. Alternatively, Peabody claims Butler was
trying to address the methane hazard and therefore did not fail to act to
correct the condition. Id. at 31. The Secretary reiterates that any good
faith belief in the safety of such conduct was not reasonable. S. Br. at 31-32.

II.

Disposition

As
discussed below, we affirm the finding of a violation for Order No. 9106664 on
narrow grounds, concluding that the specific energized work undertaken by the
miners was plainly prohibited by the cited standard. We also find the Judge’s
unwarrantable failure and personal liability determinations are supported by substantial
evidence. [8]
Finally, we reject Respondents’ argument that culpability should not attach due
to Butler’s reasonable and good faith belief that the cited conduct was in the
interests of miner safety, because we find the belief was not reasonable in
this instance.

A.     The Finding of a Violation
for Order No. 9106664 is Affirmed

Order
No. 9106664 alleges a violation of section 75.323(c)(2)(iii), which prohibits
“other work” when methane levels exceed 1.5%. Section 75.323(c)(2) provides
that, when 1.5% or more methane is present in a return air split:

(i)                 
Everyone
except those persons referred to in § 104(c) of the Act shall be withdrawn from
the affected area;

(ii)              
Other
than intrinsically safe AMS, equipment in the affected area shall be
deenergized, electric power shall be disconnected at the power source, and
other mechanized equipment shall be shut off; and

(iii)            
No
other work shall be permitted in the affected area until the methane
concentration in the return air is less than 1.0 percent.

30 C.F.R. §
75.323(c)(2) (emphasis added).

The
basic facts relevant to this determination are straightforward and effectively undisputed:
In an area where methane levels were fluctuating above 1.5%, miners were engaged
in efforts to reduce methane levels by pulling drill rods with an energized
drill. [9]
See, e.g. , Tr. 42-44, 51, 70, 74, 101-02, 182, 253-55, 260-64, 338-39, 371-72.
Work occurred where more than 1.5% methane was present. Accordingly, this matter
turns on the legal question of whether the work was prohibited by the standard.
The definition of “other work” for purposes of section 75.323(c)(2)(iii) is a
matter of first impression. For the reasons below, we find this work—using an
energized drill to remove drill rods—was prohibited.

The
“language of a regulation . . . is the starting point for its interpretation.” Dyer
v. United States , 832 F.2d 1062, 1066 (9th Cir. 1987). Where the language
of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to
have a different meaning or unless such a meaning would lead to absurd results.
See id. ; Dynamic Energy Inc. , 32 FMSHRC 1168, 1171 (Sept. 2010).

We
find the plain language of the safety standard unambiguously prohibits the
specific conduct at issue. Section 75.323(c)(2) has three requirements:
operators must (i) withdraw miners from the affected area, (ii) deenergize
equipment and disconnect power sources, and (iii) permit no other work
until methane levels drop. Critically, the “and” clarifies that operators must
comply with all three paragraphs. The plain language of the standard prohibits
energized work, and the miners were using an energized drill. Therefore, Ferrin
and Stevens’ efforts with the drill constituted “other work” prohibited by the
standard.

While
the language of the standard speaks for itself, we note that the preamble to
the final rule for section 75.323 also supports reading the three paragraphs in
concert. The preamble states that “other work” in paragraph (b)(1)(i) should be
“considered in context of the preceding requirement in paragraph (ii).” 61 Fed.
Reg. 9764, 9778 (March 11, 1996). In other words, “other work” should be
interpreted within the context of the other paragraphs within the subsection. “Other
work” in paragraph (c)(2)(iii) should be interpreted consistent with the
requirement in paragraph (c)(2)(ii) that equipment be deenergized.

Interpreting
section 75.323(c)(2) to prohibit energized work is consistent with the intent
of the standard as well as the plain language. The preamble clearly articulates
and emphasizes the ignition hazard posed by allowing energized equipment in a
high-methane environment. In discussing subsection (b)(2), the preamble
explains that requiring power to be disconnected at the power source “prevents
accidental energization of equipment and removes power from cables and circuits
which may also be ignition sources.” Id. Similarly, the preamble
rejected a suggestion that certain equipment be permitted to run on battery
power, stating that any benefits “would not outweigh the potential ignition
hazard” and such a course “would be a departure from accepted, effective, and
long-standing safety practice.” Id . The standard does envision some work,
as it “permit[s] appropriate actions to be taken . . . in order to prevent
an explosion .” Id. at 9777 (emphasis added). However, actions which increase
the likelihood of an explosion by introducing a possible ignition source clearly
would not be “appropriate” under this framework. The standard is not intended
to permit energized work.

The
Judge and the parties reach differing conclusions as to the full scope of
“work” permitted by section 75.323(c)(2). The Secretary takes the narrowest
approach, arguing that the standard only permits those tasks explicitly listed
in the surrounding subsections, i.e., work related to evacuation or
de-energizing. The Judge defines permissible work more broadly, looking to the preamble
to conclude that ventilation work is permitted but remedial work to correct the
underlying methane hazard is not. 44 FMSHRC at 390. Peabody’s definition is
broader still, arguing that the standard implicitly allows for both ventilation
work and other forms of methane control. [10]

For
purposes of this decision, it is unnecessary to fully define the categories of
work permitted by the standard or address the reasonableness of the parties’
definitions. [11]
Irrespective of whether the standard permits ventilation work or other forms of
methane control, the work cannot conflict with the plainly stated
requirement in subsection (c)(2)(ii) that all equipment be de-energized. Because
Ferrin and Stevens were engaged in work with an energized drill, that work was
not permissible. We affirm Judge’s finding of a violation on different grounds.

As
a final matter, Peabody suggests there should be no violation where compliance
is less safe than non-compliance, and that allowing the drill team to continue attempting
to plug the methane leak was safer than de-energizing and stopping work. P. Br.
at 17 n.4, 18. The Commission has long held that diminution of safety may not
be raised as a defense in an enforcement proceeding unless the operator has
first petitioned for modification of the relevant safety standard. [12] Clinchfield
Coal Co. , 11 FMSHRC 2120, 2130 (Nov. 1989). No such petition has been filed
here. Insofar as Peabody is raising a “diminution of safety” defense, it is
rejected.

B.      The Unwarrantable
Failure Determinations for Both Orders are Affirmed

The Commission
has determined that unwarrantable failure means aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp. , 9 FMSHRC 1997, 2001
(Dec. 1987). Whether conduct is “aggravated” in the context of unwarrantable
failure is determined by looking at the facts and circumstances of each case to
see if any aggravating factors exist, such as the operator’s knowledge of the
existence of the violation, whether the violation was obvious, whether the
violation posed a high degree of danger, the extent of the violative condition,
the length of time that the violative condition has existed, the operator’s
efforts in abating the violative condition, and whether the operator has been
placed on notice that greater efforts are necessary for compliance. See Manalapan
Mining Co. , 35 FMSHRC 289, 293 (Feb. 2013);  IO Coal Co. ,
31 FMSHRC 1346, 1350-57 (Dec. 2009).

The Judge
affirmed the unwarrantable failure designations for both orders. [13] He acknowledged
Peabody’s good faith efforts to address the underlying methane hazard but found
that the violative conditions were known, obvious, extensive, extremely
dangerous, and of sufficient duration to support a finding of aggravated
conduct. 44 FMSHRC at 385-88, 391.  As discussed below, the Judge’s findings
are sufficiently supported by substantial evidence to affirm the unwarrantable
failure determinations.

The record
establishes that the violations were known and obvious. Butler arrived at the drill
site within minutes of the initial methane event, was informed of the plan to
use the drill, approved of the plan, and remained nearby until the final order
for evacuation. Tr. 338-40, 345, 376-79. During this time, the drill kicked at
least twice indicating the presence of 2% methane, and his own spotter gave an
“over range” reading at least twice indicating the presence of 5% methane. Tr.
182-83, 338, 370-71, 378. It was obvious and known to an agent of the operator that
equipment was energized and in use with methane fluctuating above 1.5%. [14]

With respect to
extensiveness, the Judge found that “no less than six miners were allowed to
remain” in an area with high methane levels and an energized drill. [15] 44 FMSHRC at

386. The record clearly shows that six miners remained in the general area,
     with at least two directly by the drill; Ferrin and Stevens worked the drill,
     Butler oversaw their work, and Cary, Ford and Mitchell traveled between the
     drill site and nearby areas to assist in evacuation and ventilation control. See
     Tr. 277-78, 280-81, 293, 344, 377-78. Extensiveness is not simply a matter
     of affected area, but “the material increase in the degree of risk to miners
     posed by the violation.” Eastern Associated Coal Corp ., 32 FMSHRC 1189,
     1196 (Oct 2010). In some situations, extensiveness may turn on the number of
     persons affected by a violation. Dawes Rigging & Crane Rental , 36
     FMSHRC 3075, 3079-80 (Dec. 2014) (finding a violation non-extensive where the
     conduct only endangered one individual). The Judge’s extensiveness determination
     is consistent with Commission precedent and substantially supported by the
     record.

The Judge
“unequivocally” found a high degree of danger sufficient for aggravated
conduct, based on a central finding that the drill “remained energized even
while methane levels nearby exceeded five percent, creating the conditions that
could have led to combustion and a major accident.” 44 FMSHRC at 387. The
record supports the Judge’s factual finding that equipment was energized while methane
reached combustible levels. Butler, Stevens and Ferrin’s spotters each gave
“over range” readings at least twice during the half hour that Stevens and Ferrin
were engaged in pulling drill rods. Tr. 118-19, 183, 253-55, 371-72, 377-78;
Gov. Ex. 9(b), 9(c). The danger inherent in combining elevated methane levels
with a possible ignition source (energized equipment) is well recognized. [16] See 61
Fed. Reg. at 9777-78; Tr. 219. We accept the Judge’s determination that working
with an energized drill while methane reached combustible levels posed a high
degree of danger. See, e.g. , Warren Steen Constr., Inc. , 14
FMSHRC 1125, 1129 (July 1992) ( finding aggravated
conduct based on “common knowledge that power lines are hazardous”).

Ferrin and
Butler suggest there was no risk of ignition because methane is combustible at
5% but the drill would shut off when methane levels reached 2%. Tr. 77, 349. Significantly,
however, section 75.323(c)(2)(ii) requires equipment to be deenergized and power
to be shut off at the power source whenever methane reaches 1.5%. The standard envisions
possible ignition where methane levels are below 2%, and where equipment is
“off” but there is still some power in the system. See 61 Fed. Reg. at
9778 (disconnecting power at the source “prevents accidental energization . . .
and removes power from cables and circuits which may also be ignition
sources”). Moreover, moments when the drill had kicked (and was therefore “off”
but not fully de-powered) would naturally be the moments with higher methane
levels. The fact that the drill was not in active operation when methane went
above 2% does not eliminate the risk of ignition. [17]

Peabody also
claims the Judge failed to consider that the work Ferrin and Stevens were
engaged in would have eliminated the danger posed by the methane. P. Br. at 28.
However, the question is not whether the conduct would have eventually
eliminated an underlying hazard, but whether the violation itself posed
a high degree of danger. E.g., IO Coal , 31 FMSHRC at 1355. The violative
conduct here may have eventually reduced methane levels, but it also introduced
an ignition source before methane levels had been reduced. Peabody’s
efforts to mitigate one hazard introduced another, more immediate hazard. Thus,
the Judge reasonably found that introducing a potential source of ignition into
an environment with periodically combustible levels of methane posed a high
degree of danger.

With respect to
duration, the Judge considered testimony that the drill was energized for half
an hour and testimony that the six miners exited an hour after the inundation
and concluded that “the drill remained energized for 30-60 minutes.” 44 FMSHRC
at 386. Peabody suggests that the Judge overestimated the length of exposure by
focusing on the evacuation time rather than the period that the drill was
energized. P. Br. at 22-23. We agree. The violative condition was the presence
and use of energized equipment, and substantial evidence only supports a
finding that energized work was ongoing for approximately half an hour. [18] However, we
note that the Judge provided a range, and substantial evidence supports the
lower end of that range.

Peabody also
claims the Judge’s duration analysis failed to account for the intermittent
nature of the elevated methane. The Judge conceded that methane levels dipped
below 1.5% but emphasized that the methane also reached combustible levels multiple
times. 44 FMSHRC at 386-87. As the Judge reasoned, the Commission has held that
brief duration does not militate against a finding of unwarrantable failure
where the condition is distinguishable by its high degree of danger and obvious
nature, as is the case here. Id. at 386 (citing Knight Hawk Coal LLC ,
38 FMSHRC 2361, 2371 (Sept 2016)); Midwest Material Co. , 19 FMSHRC 30,
36 (Jan. 1997). Given the weight of other factors indicating aggravated conduct,
in particular the high degree of danger, the evidence that duration was
intermittent and on the lower range of the Judge’s estimation is not fatal to a
determination of unwarrantable failure.

The
Judge found five aggravating factors—obviousness, knowledge, extent, degree of
danger and duration—with particular emphasis on degree of danger. [19] See San
Juan Coal Co. ,   29 FMSHRC 125, 129-30 (Mar. 2007) (finding that judges have
discretion to reasonably give all relevant factors more or less weight). The
Judge’s factual findings are supported by substantial evidence, and his overall
weighing of factors is reasonable. Respondent’s actions in allowing the
presence and use of energized equipment with methane levels fluctuating above
2% and 5% constitutes aggravated conduct.

As
a final matter, Peabody claims there was no aggravated conduct because Butler (as
Peabody’s agent) reasonably believed the chosen course of action was proper. P.
Br. at 20-21.  The Commission has held that an operator’s reasonable and good
faith belief that cited conduct complied with applicable law can be a defense
to an unwarrantable failure allegation. IO Coal , 31 FMSHRC at 1357-58; Cypress
Plateau Mining Corp. , 16 FMSHRC 1610, 1614–16 (Aug. 1994). We concur with
the Judge’s finding that any such belief was unreasonable in this instance. [20]

There
is evidence to suggest that Butler genuinely believed the chosen course of
action was compliant with safety regulations. Ferrin told Butler that it was
normal protocol to pull the drill rods in the event of a breach, and Butler
chose to defer Ferrin’s expertise. [21]
Tr. 339-40, 345, 366. However, as discussed above, the standard plainly
prohibits work with energized equipment where methane levels are above 1.5%. A supervisor
familiar with the regulations would not reasonably have followed advice
contrary to the plain language of the standard. [22] Notably, as
soon as General Manager Rigsby learned that miners had been working with an
energized drill, he immediately ordered Butler to shut everything down, stop
work and evacuate. Tr. 404-05, 415, 418-19. Assuming Butler believed Ferrin’s
recommended course of action was compliant with the Secretary’s regulations,
such a belief was not reasonable. The defense fails, and the Judge’s findings
of unwarrantable failure stand.

C.      The Personal
Liability Assessments are Affirmed

Section 110(c)
of the Act provides that “[w]henever a corporate operator violates a mandatory
health or safety standard,” any agent of the operator “who knowingly
authorized, ordered or carried out such violation” shall be subject to
penalties. 30 U.S.C. § 820(c). An individual acts knowingly where he is “in a
position to protect employee safety and health [and] fails to act on the basis
of information that gives him knowledge or reason to know of the existence of a
violative condition.” LaFarge Constr. Materials , 20 FMSHRC 1140, 1148
(Oct. 1998); Kenny Richardson , 3 FMSHRC 8, 16 (Jan. 1981). Consistent
with this caselaw, the Judge outlined a three-part test attaching liability
where an agent (1) knew or had
reason to know of, (2) was in a position remedy, and (3) failed to act to
correct a violative condition. 44 FMSHRC at 391. The Judge concluded that
Butler met all three requirements. Substantial evidence, including testimony
from Butler himself, supports the Judge’s personal liability finding. 

Butler testified that he learned of Stevens’
OR reading when he arrived at the drill site, and his own spotter gave an OR reading
shortly thereafter. Tr. 337-39, 351. He then approved the plan to pull the
drill rods and stayed at the drill site as the work continued. Tr. 339-40. While
he was at the drill site, the drill kicked two or three times and Butler’s
spotter gave another OR reading. Tr. 370-71, 378. In other words, Butler knew
that methane was fluctuating above 2% and 5%, and that energized work was
occurring. Butler had knowledge that work on energized equipment was
occurring where more than 1.5% methane was present. [23]

Butler was also
in a position to remedy the violative conduct. He testified that he was the
“number one man” on site and had the authority to direct work. Tr. 364-65. Ferrin
and Stephens agreed that they would follow Butler’s instructions. Tr. 48-49,
258-59, 268. Remedying the violative conduct would have involved shutting down
equipment and stopping work, and Butler had the authority to do so. Instead,
Butler allowed the drill team to continue . [24] Tr. 292, 339-40, 345-46.
Butler knew of work with energized equipment in a high-methane environment, had
the power to stop it, and did not do so. The requirements for personal
liability are met.

Respondents contend that Butler’s actions
do not meet the level of culpability required for personal liability because he
believed his chosen course of action best served miner safety.  P. Br. at
29-34. As with unwarrantable failure, the Commission has held that personal
liability is predicated on aggravated conduct constituting more than ordinary
negligence. BethEnergy Mines, Inc. , 14 FMSHRC 1232, 1245 (Aug.
1992); Austin Powder Company and Eaton , 21 FMSHRC 18, 26-27 (Jan. 1999).
Accordingly, a reasonable and good faith belief in the safety of the cited conduct
may provide a defense against personal liability. [25] Lafarge ,
20 FMSHRC at 1150 ;  cf. Cyprus
Plateau,  16 FMSHRC at
1615-16 (addressing unwarrantable failure). Here, we find that any belief that
the cited conduct was safe was unreasonable. [26]

As a preliminary matter, we echo the
Judge’s sentiment that Butler’s good faith efforts to address the source of the
methane hazard would be “laudable” in different circumstances. 44 FMSHRC at 389.
Testimony from Butler and others indicate Butler genuinely believed allowing
Ferrin and Stevens to pull drill rods and plug the borehole was the best way to
reduce the risk of a methane explosion. Tr. 311-12, 345-46, 384, 386. Substantial
evidence indicates that Butler had a good faith belief that he was acting in
the interest of miner safety.

However, we are
unconvinced that the cited conduct could reasonably be considered safe. By
permitting miners to work with energized equipment, Butler risked incurring the
very hazard section 75.323(c)(2) is intended to address, i.e., potential
ignition a in high-methane environment. Peabody argues that ignition was
unlikely because methane was below 2% whenever the drill was operating. P. Br.
at 33; Tr. 77, 349. However, as discussed above, the standard envisions a risk
of ignition below 2% and where equipment is “off” but there is still power in
the system.

Respondents also
point out that there had been no ignition up to the point at which Rigsby
ordered evacuation, and the methane hazard could have been resolved with just a
few more minutes of energized work. P. Br. at 33; Tr. 345, 386. However, safety
requires more than luck and optimism. Just as the occurrence of an ignition is
not necessary to prove an ignition hazard existed, the absence of an ignition
does not prove that an ignition hazard did not exist. Cf. Arch of
Kentucky , 20 FMSHRC 1321, 1330 (Dec. 1998) (the Secretary need not show
that a violation caused an accident to prove that the violation was S&S). The
energized drill introduced a potential ignition source, which fortunately did
not result in an ignition in this instance. Further extending the period to
allow Ferrin and Stevens to finish their work was a risk. Incurring a risk of
ignition is not a reasonably safe method of addressing an ignition hazard.

Nor could the
cited conduct reasonably be considered the safest option of addressing the more
general hazard of a methane explosion. Combustion requires both elevated
methane levels and an ignition source. The compliant method of addressing the
combustion hazard would have been to stop work, de-energize equipment, let the
methane bleed out and evacuate. Butler was aware of this option, and this was
the course of action ultimately taken by the mine manager.  Tr. 345-46, 393, 404-05,

415. Under this approach, methane levels would have taken some time to abate,
     but risk of ignition would have been significantly reduced and miners would
     have been removed from danger.

Instead, Butler
approved energized work to plug the borehole. Essentially, Butler determined
that the benefit of rapidly reducing methane levels outweighed the risk of
incurring ignition. Butler’s approach may have been more efficient with respect
to reducing methane levels, but in the short term it increased the chances of
combustion. Reducing excessive methane is a worthwhile goal, but not if the
mine explodes first. [27]
Butler’s course of action was not the reasonable choice for miner safety. The
defense is rejected, and the personal liability assessments stand.

IV.

Conclusion

For the reasons
above, the Judge’s decision is affirmed.

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Chair

/s/ William I. Althen

William
I. Althen, Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco
M. Rajkovich, Jr., Commissioner

Distribution:

R. Henry Moore

Fisher &
Phillips LLP

6PPG Place,
Suite 830

Pittsburgh, PA
15222

[email protected]

Susannah M.
Maltz

Office of the
Solicitor, U.S. Department of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401, Arlington, VA 22202

[email protected]

Emily Toler
Scott, Esq.

Counsel for
Appellate Litigation

Office of the
Solicitor, U.S. Department of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

April Nelson,
Esq.

Associate
Solicitor

Office of the
Solicitor, U.S. Department of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Melanie Garris

Civil Penalty
Compliance Division Chief

U.S. Department
of Labor, Office of Assessments

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine
Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative
Law Judge David Simonton

Federal Mine
Safety & Health Review Commission

721 19 th
Street, Suite 443

Denver, CO
80202-2500

[email protected]

[1] A third order involving a violation of the
examination requirements at 30 C.F.R.

§ 75.512-2 has not been appealed. 

[2] The S&S and unwarrantable failure 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” and establishes more
severe sanctions for any violation caused by “an unwarrantable failure of [an]
operator to comply with . . . mandatory health or safety standards.” 30 U.S.C.
§ 814(d)(1).

[3] If a corporate operator has violated a mandatory
standard, section 110(c) of the Act provides for the imposition of penalties
for “any director, officer, or agent of such corporation who knowingly
authorized, ordered or carried out such violation.” 30 U.S.C. § 820(c).

[4] Pursuant to section 103(i) of the Act, if the
Secretary finds that a mine liberates more than one million cubic feet of
methane in a 24-hour period, an authorized representative of the Secretary
“shall provide a minimum of one spot inspection . . . of all or part of such
mine during every five working days at irregular intervals.” 30 U.S.C. §
813(i).

[5] All
individuals present during this event were wearing personal detectors
(“spotters”) set to indicate “over range” (“OR”) at 5.1% methane. Tr. 86, 183. Once
the spotter had an OR reading, it would have to be cleared (turned off) before
it could get an accurate reading again. Tr. 254-55, 261-62, 390.

[6] The tender is
a hydraulic pump with an electric motor that runs the drill. Tr. 445-46. The tender
is located approximately 10 feet from the drill. Tr. 360-61. Butler and Stevens
testified that OR readings only happened next to or downwind from the drill, as
opposed to the area near the tender. Tr. 256, 341, 351.

[7] The record is inconsistent as to how many trips Cary
made to the drill site in total. Butler’s testimony suggests three (Tr. 347,
375-76) while Cary’s testimony indicates only two (Tr. 280-84).

[8] When reviewing a judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means
“‘such relevant evidence as a reasonable mind might accept as adequate to
support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co. ,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB ,
305 U.S. 197, 229 (1938)).

[9] Peabody has not contested the violation for Order No.
9106663, i.e., that the drill was energized when more than 1.5% methane was
present. Peabody does not claim that no work was occurring in the presence of elevated
methane, only that it was not prohibited “other work.” See P. Br. at
3-5, 14-18.

[10] Section 75.323(c)(2)(i) references section 104(c) of
the Mine Act, which exempts from evacuation requirements “any person whose
presence in such area is necessary . . . to eliminate the condition described
in the order.” 30 U.S.C. § 814(c).

[11] We note, however,
that Inspector Duncan’s understanding of permissible work differs from the
Secretary’s litigation position. He testified that ventilation control is
permitted so long as it does not involve the use of powered equipment. Tr. 127,
148-49.

[12] Section 101(c) of the Act states that, upon petition
by an operator, the Secretary may modify a mandatory safety standard if
“application of such standard to such mine will result in a diminution of
safety to the miners.” 30 U.S.C. § 811(c). An operator may raise this affirmative
defense without a modification petition if it can show that a
modification proceeding would have been inappropriate. Westmoreland Coal Co. , 7 FMSHRC 1338, 1341 (Sept. 1985). Here, Peabody’s
statement that the modification process is lengthy and “has no application
here”    (P. Reply Br. at 13) is insufficient to establish the impropriety of
the more traditional route.

[13] The two orders at issue in this proceeding describe
two aspects of related conduct (having and using energized equipment) arising
from the same event and occurring under the same conditions. The Judge
reasonably incorporated the bulk of his unwarrantable failure analysis of Order
No. 9106663 into his analysis of Order No. 9106664 by reference. 44 FMSHRC at
391 n.3. We also jointly address the unwarrantability of both issuances.

[14] At the time of
these events, Butler was a mine manager and shift supervisor with authority to
direct work. Jt. Stip. 7, 30; Tr. 364-65. Accordingly, his conduct may be
imputed to Peabody for unwarrantable failure purposes. E.g. , Newtown Energy Inc. , 38 FMSHRC 2033, 2046 (Aug. 2016).

[15] The Judge noted that 60 miners would initially have
been at risk in the event of an explosion, but he conceded that the evacuation
of Unit 3 significantly lowered the number of affected miners and acknowledged that
the affected area was limited to the drill site. 44 FMSHRC at 385-86. Peabody’s claim that the Judge failed to consider the
limited physical area or the effect of the evacuation (P. Br. at 21-22)
mischaracterizes the Judge’s determination.

[16] We note that Peabody has not contested the Judge’s S&S
finding that the presence of an ignition source such as an energized drill in
conditions of 5% methane is reasonably likely to cause an explosion. 44 FMSHRC
at 384.  

[17] This analysis holds for Order No. 9106664 as well as
Order No. 9106663. Although miners were not actively engaged in pulling
drill rods during moments when the drill kicked power, they remained engaged in
ongoing work that kept them by the drill. And as discussed above, the drill
posed a potential ignition hazard even when not in operation. The fact that the
miners were engaged in the work of pulling drill rods resulted in exposure to a
dangerous hazard.

[18] Energized work began shortly before Butler’s 1:53 a.m.
arrival and ended shortly before Rigsby’s 2:25 a.m. evacuation order. See Tr.
185, 237, 339, 350, 377, 381.

[19] In addition
to the five factors discussed above, the Judge found that the operator’s
efforts to abate the methane hazard were a mitigating factor, and there was no
evidence to suggest that the operator had been given notice that greater
efforts were necessary for compliance. 44 FMSHRC at 388. Regarding abatement, we
generally agree that the instinct to address the underlying methane hazard was
laudable. However, the question is whether the operator made efforts to abate
the violative condition , and the violative condition here is the existence
and use of energized equipment. Abatement would consist of stopping work and
de-energizing. Regardless, any error in the Judge’s analysis on this point is
harmless, as giving less weight to a mitigating factor only strengthens the
finding of unwarrantable failure.

[20] Although the
Judge did not explicitly conduct an analysis of this “reasonable and good faith
belief” defense, his finding on the issue is clear. He states in his
unwarrantable failure analysis that, in light of MSHA’s safety standards, “no
prudent operator would have believed that it was reasonable” to continue
powering the drill or permit miners to continue working in a high-methane
environment. 44 FMSHRC at 388, 391.

[21] Peabody
argues that it was reasonable for Butler to trust Ferrin’s expertise because
Butler had no experience with this type of methane event. P. Br. at 21; Tr.

366. This argument appears to suggest ignorance as a defense, which the
     Commission has rejected in the negligence context. Oak Grove Res LLC &
     Bienia , 38 FMSHRC 1273, 1279-80 (June 2016). Regardless, the question is
     not whether it was reasonable for Butler rely on Ferrin, but whether the belief
     was reasonable, i.e., that a reasonable person would believe pulling drill
     rods using energized equipment in an environment with periodic high methane was
     permissible.

[22] As noted
above, we do not decide here the full scope of “other work” prohibited by the
standard, only that the standard clearly prohibits work with energized
equipment. If different, non-energized conduct had been at issue—for example,
if Peabody had been cited for pulling drill rods by hand—an argument for
reasonable belief in compliance might have produced a different result.

[23] The record
need not establish that Butler knew the conduct violated the standard, only
that he knew of the conduct. See Kenny Richardson , 3 FMSHRC at
16; Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 363 (D.C.
Cir. 1997). Peabody’s argument that there was no knowing violation because
Butler trusted Ferrin’s advice (P. Br. at 32) fails.

[24] Peabody claims Butler was acting
to correct the violative condition, by having Ferrin and Stevens plug the borehole
to reduce methane levels. P. Br. at 31. As noted, see n.19 supra ,
the violative conditions requiring correction were the presence and use of
energized equipment in a high-methane environment, not the presence of high
methane itself.

[25] In the
unwarrantable failure context, the focus of this defense is belief in
compliance with the cited standard. See, e.g. , Oak Grove , 38
FMSHRC at 1279-80 (finding it unreasonable to believe a method of moving supply
cars was compliant). This is consistent with the unwarrantable failure
analysis’ interest in whether an operator knew of the violation . Personal
liability, however, turns on knowledge of the condition . See n. 23
supra . Accordingly, weight may be given to a belief in safety. See Lafarge , 20 FMSHRC at 1150 (“An unreasonable belief that a practice
is safe . . . is not a defense to liability. . . .”); see Wyoming
Fuel Co. , 16 FMSHRC 1618, 1629-30 (Aug. 1994) (where a
manager reasonably believed his actions would correct methane problems and comply
with the Secretary’s regulations, the manager was not subject to personal
liability and the violation was not unwarrantable).

[26] The Judge did not directly address this
defense in his personal liability analysis.  However, he found in his
unwarrantable failure analysis that allowing miners to work with energized
equipment in a high-methane environment was unreasonable given the significant
risk it posed to miner safety. 44 FMSHRC at 388, 391. In other words, it was
not reasonable to believe the cited conduct was safe. The failure to explicitly
reiterate this finding is at most harmless error.

[27] Cary
testified that working to quickly resolve the methane leak was safer than
allowing methane to build up during the 45 minutes it would take to evacuate. Tr.
311-12. However, assuming arguendo that circumstances exist where it
would be appropriate to incur a risk of ignition, Cary’s math does not add up. Ferrin
stated that he and Stevens could have plugged the methane leak with another
15-20 minutes of work. Tr. 71. However, they had already been working for
approximately half an hour when they were ordered to stop and evacuate. In
other words, miners could spend 45 minutes evacuating with elevated methane levels
but no potential ignition sources, or 45 minutes working with elevated methane
levels and potential ignition sources (followed by 45 evacuating in high
methane if the attempt to plug the leak failed). Cary’s testimony fails to
convince that the chosen course of action was safer than simply getting

out of the
mine.