Emerald Coal Resources, LP v. Secretary of Labor

Read the official release (fmshrc.gov)

Plain-English summary

Emerald Coal Resources failed to keep deteriorated structural columns in its preparation plant in good repair and failed to provide a multi-gas detector to a separate group of four contractors working underground. Judge William S. Steele affirmed both citations. He found the structural violation non-S&S because repairs were already underway and reduced its proposed penalty to $5,000, while affirming the detector citation as S&S with a $3,143 penalty. The second amended decision corrected an earlier statement that listed the detector penalty as $3,493. Emerald was ordered to pay a total of $8,143.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1714-7(a) and 77.200
• Outcome: Both citations were affirmed, the structural citation was classified non-S&S with a reduced penalty, and total penalties were corrected to $8,143.
• Key point: Contractors working together in a separate area are their own group for gas-detector protection, while repair work already underway can defeat an S&S finding for structural deterioration.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412)
920-7240 / FACSIMILE: (412) 928-8689

March 24, 2014

EMERALD
COAL RESOURCES, LP,

Contestant,

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION,
(MSHA),

Respondent,

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION,
(MSHA),

Petitioner,

v.

EMERALD
COAL RESOURCES, LP,

Respondent.

CONTEST
PROCEEDING

Docket
No. PENN 2009-383-R

Citation
No. 8007661; 03/06/2009

Mine
ID 36-05466

Mine:
Emerald Mine No. 1

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2009-496

A.C.
No. 36-05466-183943-02

Mine:
Emerald Mine No. 1

SECOND AMENDED DECISION AND ORDER[1]

Appearances:               Patrick W. Dennison, Esq., & Jason
P. Webb, Esq., Jackson Kelly, PLLC, Pittsburgh, PA for Respondent                

Pamela
Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, CO
for the Secretary

Before:                        Judge
Steele

STATEMENT
OF THE CASE

This
proceeding is before me on a petition for civil penalties filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
against Emerald Coal Resources, LP (hereinafter “Respondent” or “Emerald”) at
the Emerald Mine No. 1 pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (hereinafter “the Mine
Act” or “the Act”), the Secretary seeks penalties in the amount of $12, 265 for
two alleged violations of the Secretary’s mandatory safety standards for
underground mines.  The Secretary originally charged Respondent with 10 alleged
violations. Four were settled prior to the hearing, three were settled during
the hearing, and one was dismissed as the Respondent agreed to accept the
violations as written leaving the remaining two alleged violations for decision
in Docket No. PENN 2009-496. The three citations that were settled during the
hearing were Nos. 8006756, 8006758, and 8006759.[2]
The terms of the settlement were set forth in a written motion, which terms
were approved by the court. The parties presented testimony and documentary
evidence at the hearing conducted on November sixth, seventh, and 8th,
2012 in Pittsburgh, PA.

For
the reasons set forth below I affirm Citation Nos. 8006753 and 8007661 and find
a non-S&S violation of the latter. I also assess civil penalties of $3,143.00
and $5,000.00 respectively.

STIPULATIONS

The Secretary and Respondent
agreed that the following stipulations should be included in the record:

1.     
Emerald is an
“operator” as defined in §3(d) of the Mine Act, 30 U.S.C. §803(d), at the coal
mine at which the Citations at issue in this proceeding were issued.

2.     
Operations of
Emerald at the coal mine at which the Citations were issued in this proceeding
are subject to the jurisdiction of the Mine Act.  

3.     
This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designed Administrative Law Judges pursuant to Sections
105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.

4.     
The
individuals who signatures appear in Block 22 of the Citations at issue in this
proceeding were acting in their official capacity and as authorized
representatives of the Secretary of Labor when the Citations were issued.

5.     
True copies
of the Citations at issue in this proceeding were served on Emerald as required
by the Mine Act.

6.     
Emerald
demonstrated good faith in the abatement of the Citations.

7.     
The penalties
that have been proposed will not affect Emerald’s ability to continue in
business.

THE
REMAINING CITED VIOLATIONS

1.     
Citation
No. 8007661

This 104(a) citation was issued
on March 6, 2009 at 5:53 p.m. and was based upon the inspector’s observation of
a violation of 30 C.F.R. §77.200. This safety standard states:

All
mine structures, enclosures, or other facilities (including custom coal
preparation) shall be maintained in good repair to prevent accidents and
injuries to employees.

In his
narrative, the inspector found:

Three
structural support columns located on the sixth floor of the prep plant were
not being maintained in good repair. The second column in the second row from
the MCC room showed approximately 30 percent width loss on the creek side
flange were (sic) a seventh floor beam connects to it. The fourth column in the
same row was found to have 7 areas of width reduction ranging from
approximately 30 to 50 percent. The fifth column in the same row was found to
have approximately 30 to 50 percent reduction on all four sides and two holes
ranging from ½ inch to 1 inch. 2 previous violations of this standard in the
past 2 year.

(Government
Exhibit 1).[3]

The
inspector noted that the risk of injury or illness for this violation was
“reasonably likely,” “fatal,” “S&S,” and would have affected 10 persons. He
further noted that Respondent exhibited “moderate negligence.” The proposed
penalty for this citation was $8,209.00. The citation was extended on four
occasions and was terminated on April 21, 2009 when the repairs were completed
on the three cited columns.[4]
The inspector also issued a 107(a) imminent danger order which was vacated or
terminated following an inspection by an MSHA civil engineer.

ISSUES

Did Respondent violate 30 C.F.R.
§77.200 and, if so, were these violations significant and substantial? What was
the degree of gravity and negligence?

THE
SECRETARY’S EVIDENCE

1.     
Testimony
of Tom McCort

Mr.
McCort is an inspector trainee for MSHA having just returned to MSHA after
approximately four years as a surface and mine inspector. His second stint with
MSHA began approximately one month before this hearing. His private sector
experience includes approximately three and a half years doing shaft and slope
construction maintenance and underground maintenance and repair. Additionally,
Mr. McCort worked for Local 549 of the Ironworkers out of Wheeling for
approximately three to three and a half years doing construction and
maintenance of steel structure, maintenance on building reinforcing bars and
generally anything related to steel and iron. (Tr. 33-37).

Inspector
McCort issued this citation because he found some structural columns on the
sixth floor that had some severe thinning and holes in them and a general
thinning of some of the structural members that he examined. (Tr. 40). The
building examined was a prep plant which is a building that is used to clean
coal. This prep plant was constructed of steel members, concrete floors,
concrete floor beams, and sheeting for siding. He believed the plant had 13
levels. (Tr. 40). The primary focus of the examination was the sixth floor of
the prep plant and McCort was accompanied by Floyd Campbell, a union
representative, and Tim Drone who the inspector believes was the maintenance
manager of the plant at the time. (Tr. 41). Mr. McCort went to the plant on
March 6, 2009 in response to a 103(g) hazard complaint.[5]
(Tr. 42).

The
examination of columns on the sixth floor eventually focused on three columns
and those columns were iron and steel. They were located in the second row and
were identified by McCort as the second, fourth, and fifth columns from the
plant control room on the creek side of the plant. (GX 3). (Tr. 43-46). In
examining the columns, McCort used a hammer to clean off the columns and also
to sound the columns.[6]
In one particular instance the column was so thin that the hammer went through
it. (Tr. 46). The examination of the three columns continued with the taking of
measurements. With the exception of column five, anyplace that McCort saw
noticeable thinning of the columns, he measured the thickest part of the column
and the thinnest part of the column to determine how much structure was lost on
the column. (Tr. 47).

On
column 2 of row 2, McCort saw section loss on the flange at the top of the
column as well as a lot of severe rust. Measurements were taken showing that
the flange measured 3/8 of an inch at the bottom and 1/4 of an inch at the
connection point. (Tr. 50-51). The quarter inch measurement was taken because
it was visibly thinner and appeared to be the thinnest portion in that area. The
3/8 measurement was taken because it appeared to be the thickest part of the
column. The amount of loss to the flange at the top of this column was
approximately 30%. (Tr. 52).

In
the fourth column, McCort observed multiple spots that indicated flange
thinning and web thinning. He also sounded this column with a hammer and could
hear this difference indicating thinning. Again, McCort took measurements of
the thickest and thinnest parts of this column. The thickest part measured 5/8
of an inch and the thinnest part 1/8 of an inch thick, which meant that the
measured flange loss was half an inch. McCort also testified from his notes
that column five showed significant structural loss in five places and severe
structural loss on the hillside above the hub column. (Tr. 53-57).

On
the fifth column of row two, McCort observed conditions similar to column four,
but there were holes in the base of this column and exceedingly severe web and
flange thinning. He observed a 1 ½ inch hole and a ½ inch hole in the web. The
measurement of 1/4 inch to 3/8 of an inch would be compared with the 5/8 of an
inch thickness which McCort found upon his observation and recollection from
earlier measurement. (Tr. 58-60).

If
a flange is thinner that it originally was then it is coming out of design
specs and indicates weakness in that column. (Tr. 61). Because water all over
the sixth floor would have caused the deterioration of the steel columns
following his examination of March 6, 2009, McCort issued an imminent danger
order.[7]

On
the day of his inspection the third column of the row was under construction
and being repaired. McCort noted that at the top of that repair that a hole in
the webbing could be seen. That hole was 12-14 long and 2-3 inches wide. (Tr.
64).

Later
that afternoon following completion of the examination of the sixth floor,
McCort requested that an MSHA engineer evaluate the structure. Bob Newhouse,
McCort’s supervisor, requested the engineer, Jarrod Durig.  Durig, appeared and
sounded columns, took measurements, and did other things with which McCort was
not familiar. Durig concluded that he did not believe there was an imminent
danger but that the columns did need repair. (Tr. 69-70).

The
hazards created by the condition of the prep plant, according to McCort, were
that should the columns fail there would be falling material, falling miners,
and multiple injuries, including fatalities.  Also, in the event of column
failure, the seventh floor could collapse on the sixth floor involving
potential injuries to miners on the seventh floor. (Tr. 71). In explaining why
column failure and partial plant collapse was reasonably likely. McCort opined
that the specific columns cited were all in the same column line, on the same
plane. (Tr. 74-75).

At
the request of McCort, an MHSA engineer, Michael Marawski visited the plant in
August, 2008, examined the plant and prepared a written report which was
admitted as GX 26. Significant section loss was observed in the flanges on the
upper column at the common splice connection in the column adjacent to cyclone
A-5[8]
– Repairs to the column splice at Cyclone A-5 along with any other column
splices on the sixth floor that were in a similar condition were recommended. (GX
26). McCort never saw the plans to repair the columns in the sixth floor, but
the plans were explained to him by Tim Drone, maintenance manager of Emerald
and McCort saw repair work being implemented. (Tr. 105-106).

2.     
Testimony
of Jarrod Durig

Mr.
Durig is a supervisory civil engineer with the Pittsburgh Safety and Health
Technology center, or MSHA technical support group, and is the chief of the
geotechnical branch overseeing the work of seven other engineers. Included in
the types of duties he performs are structural assessments of preparation
plants. Mr. Durig has worked for MSHA from 1995-2000 and from 2003 to the
present. He has a bachelor’s degree in civil engineering from West Virginia University and a master’s degree in civil engineering from the University of Pittsburgh. He is licensed as a professional engineer in the Commonwealth of Pennsylvania. (Tr. 124-126).

Mr.
Durig was called to the Emerald prep plant on March 6, 2009 to provide an
assessment of conditions there and to make a recommendation regarding an
imminent danger order. He was asked to look at three columns on the sixth floor
and looked at a fourth column after inspecting the first three. They were
designated columns 2B, 2C, and 2D. Durig later looked at 3D.[9]
(see GX 5).

In
his examination of the columns, Durig performed a visual examination, used a
chipping hammer for cleaning and sounding purposes, and used a tape measure to
try to size the columns and also to measure the thickness of the flanges of the
columns. After completing the evaluation he felt that the prep plant was not in
imminent danger of collapse. (Tr. 135-136). Durig also felt that the prep plant
was not in good repair based on the columns that he evaluated. (Tr. 136). Column
2D was in the process of repair. However, the area above the repair was in very
poor shape due to substantial holes in the web along with thinning of the
flanges in the same area. Durig would characterize column 2D as failed even
with the repair work that was done. (Tr. 139-150).

Insofar
as column 2B is concerned, Durig did not see any visible deformation but did
recognize thinning of the flanges. He took measurements of that thinning to the
bottom of the column. The flange thickness at 6 inches above the floor was
between 3/8 of an inch and half an inch thick. Measurements were also taken of
the column itself so that by consulting a steel design manual he could determine
that the size of the column at the time it was constructed or at the time it
was put in place. (Tr. 153). By consulting the manual (GX 13) Durig determined
that Column 2B had over a 50% loss in thickness for the flange. (Tr. 161). Durig
took four measurements and all fell within this range, except where those
locations that measured 3/8 of inch would have indicated over 60% flange loss
at that location.

Column
2C was also examined that day and found to be not in good repair due to the
thinning of the flange and the condition of the bottom of the column. Again, by
consulting manual and his measurements, Durig determined that the percentage
loss in thickness of the flanges along the bottom of column 2C would be
approaching 40%. (Tr. 164-166)

RESPONDENT’S
EVIDENCE

1.     
Testimony
of Ralph Layfield

Mr. Layfield is an operational
manager with Alpha Natural Resources and has been at Emerald for 14 years. Prior
to Emerald, Layfield was employed for 22 years by Industrial Resources of
Fairmont, West Virginia as a field manager and construction manager. His duties
as a construction manager included the building of preparation cleaning plants,
coal cleaning plants, rebuilding plants, and operations related with coal
facilities. As such, he has approximately 35 years experience with preparation
plants. (Tr. 222-223).

Mr.
Layfield was part of the inspection party that eventually resulted in the
issuance of citation No. 8007661. He does not remember seeing any holes in the
structure or the beams that McCort was inspecting. He did not see any problems
or issues with the structure. (Tr. 225-226).

2.     
Testimony
of Douglas Montgomery

Mr.
Montgomery is employed at Emerald as a processing engineer and has been
employed there since April 2003. Before that he worked at Cumberland Coal,
Peabody Coal Company, American Electric Power, Southern Ohio Coal Company, U.S.
Steel, and American Bridge. Over the years his various capacities have included
being a foreman, engineer, plant manager, construction estimator, design
draftsman, and detail draftsman. Mr. Montgomery has a master’s degree in metal
process engineering from West Virginia University, a bachelor’s degree in
mining engineering from the University of Pittsburgh, and an associate’s degree
in mechanical engineering from Penn State. (Tr. 230-232).

By
the time of the inspections which resulted in this citation, Emerald was in the
process of repairing columns on the sixth floor.[10]
Lincoln Contracting, whose field man was Mike Yoder, was working with Emerald. (Tr.
235-236). Several exhibits were offered and accepted to show that repairs were
underway: RX-6 – materials used; RX-7 – Time sheets; RX-8 – invoice from
Lincoln Contracting for work performed; RX-4 – Floor plan; RX-5 – time and
materials invoice; summary of time sheets, and a change order; RX-9 – 2009 log
book for completed repairs.

3.     
Testimony
of John Leach

John
Leach is a project manager, estimator, and engineer for Lone Pine Construction,
a construction company that does mine work. He holds a professional engineering
license from the Commonwealth of Pennsylvania. On numerous occasions, Emerald
Mine has called Lone Pine to do several projects, including prep plant
renovations. Lone Pine investigates, prepares an estimate, submits a bid, and
is sometimes awarded the job and sometimes not. (Tr. 270-273). Mr. Leach
believed that this prep plant was one of the better cleaning facilities that he
has seen. (Tr. 273).

On
the day the citation was issued, Lone Pine was performing work at Emerald Mine
and Mr. Leach was asked to evaluate three columns on the sixth floor of the pre
plant, and to prepare a report. He did not believe that the structure was in
any imminent danger of collapse. (Tr. 274-279). Column 14H (2D) was under
construction at the time Leach performed his examination. The repairs involved
adding bent channel plates to form the inside of the flange as well as the web
on both sides of the column and flange plates were added on the outside of the
flange of the column. Mr. Leach believed that this was an exceptional way to
repair that column and the load capacity of that column probably doubled or
tripled by the way construction was performed. (Tr. 281-283).

On
March 6, 2009, Leach observed a quarter-sized hole in the center of the web on
column 12H (2b) and that hole could have been put there for a purpose. While it
was possible that the hole was there because it was a loss of thickness of the
web, it was not likely. (Tr. 297-298).

4.     
Testimony
of William Schifko

Mr.
Schifko works for Emerald Mine, Alpha Resources and began in May or June of
1978. He is currently the manager of compliance. This position involves
educating employees about new laws and new regulations for compliance purposes
and also education about safety and accident prevention. (Tr. 305).

Mr.
Schifko does not believe there was a violation of 30 C.F.R. §77.200 because
hitting the columns with a small sledge hammer did not produce any problems and
there was no danger of an imminent collapse. Money is budgeted for maintenance
and examination by the professionals. (Tr. 319-320). Mr. Schifko fundamentally
disagreed with the degrees of gravity and negligence and thought there were
considerable mitigating factors which should have affected MSHA’s degree of negligence.
(Tr. 324).

CONTENTIONS
OF THE PARTIES

1.     
The
Secretary’s Contentions

a.      
Due to the
deteriorated columns on the sixth Floor, Emerald failed to maintain the prep
plant in good repair and thus violated 30 C.F.R. §77.200

b.     
In reaching
this conclusion the inspector visually inspected the columns, did sounding
tests with a hammer, and performed measurements with a tape measure to
determine the extent of column, flange, and web thinning.

c.      
Additional
confirmation of thinning was provided by an MSHA engineer who contrasted the
present condition of the columns with their original construction or
installation.

d.     
While there
were repairs on the inspector’s third column, such repairs had not been
completed and the column was not in good repair.

e.      
The
percentage of thinning indicates a
column’s loss of ability to support its intended weight.

f.      
The S&S
designation was appropriate because the evidence established that the four core
components of S&S had been met, particularly the reasonable likelihood of
column collapse resulting in injuries of a reasonably serious nature, and
Emerald did not adequately rebut the S&S allegation.

g.     
The degree of
negligence of Emerald was high with no mitigating circumstances.

2.     
Respondent’s
Contentions

a.      
There was no
violation of 30 C.F.R. §77.200 because there was no evidence of disrepair or
that the condition presented a hazard. The conditions of the sixth floor of the
plant were a result of normal wear of steel structures and posed no hazard.

b.     
Emerald was
in the process of retrofitting columns on the sixth floor with one column
having been retrofitted with other columns having been identified as needing
attention, and professional contractors and engineers had been hired to design
and complete the work.

c.      
The
inspector’s measurements of the three columns identified in the citation were
unreliable.

d.     
This case
focuses on the conditions on the sixth floor. However, substantial amount of
weight had been removed on the seventh floor directly above the area in
question and the removed weight was approximately 1,180 tons, less than what
had originally existed. Also, smaller columns were used from above the sixth
floor because of reduced load. Thus the Secretary fails on the hazard arguments
presented.

e.      
The S&S
designation is inappropriate as the evidence does not establish a hazard, or
even meet the test of a reasonable likelihood of an event in which an injury
could occur, and reasonable likelihood of injury should be made assuming
continued mining operations.

f.      
There is no
evidence that Emerald was in any way negligent or aware that the condition of
the columns on the sixth floor posed a hazard and substantial mitigating
circumstances existed.

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1.     
Validity

30
C.F.R. §77.200 requires all mine facilities to be maintained in good repair to
prevent accidents and injuries to employees. The evidence in its totality
requires a conclusion that the columns on the sixth floor were not being
maintained in good repair. Measurements, soundings, and consultation with manuals
all confirmed the visual observations of both Tom McCort, the inspector, and
Jarrod Durig, a professional engineer, that significant thinning had taken
place and in such percentages to indicate that the prep plant was not in good
repair.

Documentary
evidence also leads to that conclusion. For example, Respondent’s Exhibit 11, a
103(g) hazard complaint, states that there were positive findings for the cited
areas in that three structural support items were not being maintained in good
repair. Also, GX 15, a report prepared by Durig, who was called to evaluate the
efficacy of an imminent danger order, noted that the columns in question
displayed extensive corrosion, delaminations, and section loss and recommended
that they be retrofitted or replaced. The Secretary has established by a
preponderance of the evidence that Respondent violated safety standard 30
C.F.R. §77.200.

2.     
Gravity
and S&S Discussion

With
respect to gravity, as noted above, the inspector felt that the risk of injury
or illness for this violation was “reasonably likely,” “fatal,” and would have
affected 10 persons. However, I credit the evidence presented by Respondent
that showed that the possibility of injury from this condition was unlikely. Three
engineers stated that there was no threat of immediate collapse and, further,
that weight had been removed from the seventh floor, limiting the possibility
of collapse.[11]

More
importantly, the burden of proving the likelihood of injury was on the
Secretary. I do not believe that the incomplete and contradictory evidence
regarding the likelihood of collapse provided by the Secretary was sufficient
to show that the risk of injury was anything more than “Unlikely.” For example,
Durig testified that he believed that collapse would occur if 2B, 2C, and 3D
were allowed to deteriorate to the condition seen at the top of 2D. (Tr. 214).
However, he did not testify that those three columns definitely, or even
probably, would deteriorate in the same way as 2D. McCort testified that the
cited conditions were reasonably likely to result in structural failure due to
the fact that the specific columns cited were all in the same column line and
the thinning and damage were all in the same plane of the column. (Tr. 74). However,
he also believed the columns were in imminent danger of collapse, a conclusion
that was not only refuted by Respondent’s witnesses but also by Durig, the MSHA
civil engineer. (Tr. 117, 135-136). Therefore, I believe that the gravity was
more accurately described as possible but “Unlikely.”

However,
given the serious danger posed by the collapse of a building, I find that if
the unlikely event were to occur, the injuries could be fatal.

In
order to establish S&S, the Secretary must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety hazard
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. Mathies Coal
Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

With
respect to the first factor, it has already been established that there was a
violation of a mandatory safety standard. As noted above, Respondent failed to
maintain the prep plant in good repair when it allowed three structural support
columns to deteriorate.

While
the evidence presented by the two witnesses for the Secretary (inspector
trainee McCort and civil engineer Durig) established the violation of the
safety standard, the S&S requirement that the violation contributed to a
hazard has been judged by me and found wanting. Therefore, the Secretary has
failed to establish the second factor of Mathies.

The
evidence presented by the Secretary does not show a realistic hazard existed at
the time of the citation. Further, the evidence shows that no hazard would be
contributed to in this case because, even before this citation was issued,
Respondent had begun repairs on the columns. Respondent’s ability to present
evidence in defense of the charge of S&S is not a new and novel development
in Commission jurisprudence. For example, in Secretary v. Consolidation Coal
Co., 5 FMSHRC 890, 899 (June 1986), the Commission held that, given the
legislative history of the mine Act a presumption of S&S existed when
excessive respirable dust exceeded the minimums established by 30 C.F.R.
§70.100(a). However, the Commission further held that the presumption of
S&S may be rebutted by the operator’s showing that miners were not exposed
to the hazard of excessive dust through the use of personal protective
equipment. In essence, the Commission held that even if there is a presumption
of S&S, the details of the specific situation, including preventative
measures taken, must be considered. In Consolidation Coal, the
Commission found S&S was because the operator could not rebut the
presumption. Here, however, exposure to a hazard was unlikely because
Respondent had already taken preventative measure; specifically it had begun
repairs of the cited columns.

In
U.S. Steel Mining Co., 7 FMSHRC 1135, 1130 (Aug. 1985) the Commission
held that S&S must be resolved in terms of 1) the circumstances as they
existed at the time the violation was cited and 2) as they might have existed
had normal mining operations continued. Here, as has been shown, on the day
Citation No. 8007661 was issued, repairs were underway on one column and
planned for the others. Thus, it was not the citation that triggered the
repairs and, at the time of the citations, Respondent was already eliminating
the possibility of a future hazard. Therefore, the condition was unlikely to
lead to any hazard.

Even
the hazard suggested by the Secretary shows that it was unlikely at the time of
the citation. For example, Inspector McCourt couched his language regarding
column failure and its effect on the seventh floor in terms, “could
collapse on the sixth floor,” and in response to a question of “what might
happen” if any of the columns failed the answer was, “it could
potentially be a domino effect.” (emphasis added) (Tr. 71). McCort did testify
that it was reasonably likely that a portion of at least some of the columns
would fail and a portion of the prep plan would collapse. (Tr. 74). It was
clear that the dangers McCort discussed did not consider repairs already
underway at the time of the citation. However, McCort was aware of these
actions as he characterized the negligence as moderate (or the borderline of
high) due to the implementation of a repair schedule and the fact that what he
found was not plain to the eye. (Tr. 86-87). Further, in extending the original
termination date, Investigator McCort noted that the “operator has a plan in
place to repair all of the columns on the sixth floor and evidently has 7
contractor employees conducting the repairs.”

In
a report submitted by civil engineer Durig dated April 30, 2009, and introduced
and accepted as GX 15, Durig’s focus was to evaluate the imminent danger order
which he vacated or terminated (he was not sure of the requirements of each). (Tr.
177). But his testimony is related to the S&S issue. In response to the
court’s question of what could happen, Mr. Durig answered “…ultimately a
structure failure,” and “there could be tripping, a fall hazard in the
location.” (Tr. 208). Durig further testified that unless conditions were
improved, unless a repair was done, it would collapse. And if columns 2B, 2C,
and 3D had been allowed to deteriorate to the degree 2D had been allowed to
deteriorate it was reasonably likely that over a period of time there would
have been some kind of failure. (Tr. 215). However, the reality here is that
the cited columns had not been allowed to deteriorate in such a way and were in
the process of repair even before the citations were written.  Durig stated
that “the retrofit that was witnessed on column 2D appeared to be adequate in
restoring a sufficient amount of steel to transfer the applied loads through
the Column.” (GX 15)

As
the Secretary has failed to establish that the condition contributed to a
hazard given the repair work already in progress, I do not deem it necessary to
consider the third or fourth Mathies factors. This citation was not
S&S.

3.     
Negligence

Negligence
“is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert
for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions
or practices.” Id. Low negligence exists when “[t]he operator knew or
should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” Id. Moderate negligence is when
“[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Id. High negligence
exists when “[t]he operator knew or should have known of the violative condition
or practice, and there are no mitigating circumstances.” Id. See also
Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ). Finally, an operator
exhibits reckless disregard where it displays “conduct which exhibits the
absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). Mitigating
circumstances may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices. Id.

In
this case, Respondent knew or should have known that it violated C.F.R. §77.200. Respondent was under a continuing
obligation to examine working areas of the prep plant and should have seen the
deteriorating columns. It could not have been particularly difficult to see
that the columns had deteriorated to the point that a hammer could drive
through the metal. Furthermore, on September 25, 2008, MSHA engineer Murawski
issued a report that found serious structural problems with the columns and
Emerald did not adequately correct the conditions before the inspection at issue
here. Respondent suggest that this report did not place it on notice of the
conditions because the report dealt with splice connections, not flange
thinning or holes in webbing. I do not find that argument to be particularly
compelling. The report indicated to Respondent that care and attention was
needed for the supports on the sixth floor.

The
Secretary claimed in his brief that there were no mitigating circumstances in
this instance. However, this position is in direct contradiction to the Inspector’s
testimony. The Secretary acknowledged that McCort found Respondent guilty of
“between” moderate and high negligence, but stated the evidence suggested it
was high. However, with respect to negligence, I found the Inspector’s
testimony to be credible, including his testimony regarding mitigating
circumstances. Specifically, McCort testified that Respondent had implemented a
repair schedule and that the conditions were not apparent to the naked eye. As
a result of these mitigating circumstances, I cannot find high negligence. With
that noted, I would not characterize these mitigating circumstances as
“considerable.” Therefore, I find that Respondent exhibited Moderate
Negligence.

4.     
Penalty

Under
the assessment regulations described in 30 C.F.R. §100, the Secretary proposed
a penalty of $8,209 for Citation No. 8007661. While the Secretary’s proposal
was duly considered, under 30 U.S.C. §820(i), the power to assess a penalty is
vested with the Commission. That law also dictates several factors be
considered before an assessment is made. I will not evaluate each of those
factors in turn with respect to penalty for Citation No. 8007661:

a.      
The
operator’s history of previous violations – Respondent was twice cited under
Section 77.200 in the past two years.

b.     
 The
appropriateness of the penalty compared to the size of the Operator’s business
– Emerald Mine No. 1 produces 6,343,350 tons of coal annually and Respondent
produces 69,624,256 tons of coal annually in all its operations. According to
MSHA’s penalty assessment guidelines this gives Emerald Mine No. 1 15 “mine
size points” out of a possible 15 and Respondent 10 “controller size points”
out of a possible 10. see 30
CFR § 100.3(b). Thus,
Respondent is a very large operator with a very large mine.

c.      
Whether the
Operator was negligent – as previously shown, the operator exhibited moderate
negligence.

d.     
The effect on
the Operator’s ability to remain in business – the parties have stipulated that
the citations at issue here would not affect Respondent’s ability to remain in
business.

e.      
The gravity
of the violation – as previously shown, this violation, given the repair work,
is unlikely to cause injury, but if it did it could result in permanently
disabling or even fatal injuries to ten persons.

f.      
The
demonstrated good-faith of the person charged in attempting to achieve rapid
compliance after notification of a violation – The evidence shows the condition
was rapidly abated in good faith and this was so stipulated.

As
I have decided to modify the gravity of this citation from “Reasonably Likely”
and “S&S” to “Unlikely” and “Non-S&S,” I believe that it is necessary
to also reduce the proposed penalty. Considering all of the factors listed
above, Respondent is ordered to pay $5,000.00 with respect to this citation.

CITATION
NO. 8006753

This
104(a) citation was issued on March 9, 2009 at 9:15 p.m. and was based upon the
inspector’s observation of a violation of 30 C.F.R. §75.1714-7(a). This safety
standard states:

(a) Availability. A mine
operator shall provide an MSHA-approved, handheld, multi-gas detector that can
measure methane, oxygen, and carbon monoxide to each group of underground
miners and to each person who works alone, such as pumpers, examiners, and
outby miners.

In
his narrative, the inspector found:

The
mine operator failed to provide an MSHA-approved, handheld, multi-gas detector
that could measure methane, oxygen, and carbon monoxide to each group of
underground miners and to each miner who works alone. Four miners were observed
working in C-1 (032-0 MMU) number 2 entry, 184’ inby the longwall face without
a multi-gas detector. The longwall was operating at the time of my inspection.

(GX 19).
The inspector noted that the risk of injury or illness for this violation was
reasonably likely, the injury/illness could reasonably be expected to be fatal,
the violation was significant and substantial, and it would have affected four
miners. Negligence was assessed as moderate. The proposed penalty for this
citation was $3,143.00.

This
citation was terminated on March 9, 2009 at 9:30 a.m. as a representative of
the miners was provided with a multi-gas detector for this group of
contractors.

ISSUES

Did Respondent violate 30 C.F.R.
§75.1714-7(a) and, if so, were these violations significant and substantial?
What was the degree of gravity and negligence?

THE
SECRETARY’S EVIDENCE

1.     
Testimony
of Charles Reidmann

Reidmann
is an underground coal mine inspector employed by MSHA for the past seven
years. (Tr. 351). He had over 30 years of experience in coal mining before
joining MHSA. (Tr. 351-354).

On
the day citations were issued, Reidmann saw four miners working on the No. 2
Entry of the C-1 Longwall. Those miners were employed by High Tech, a
contractor that conducted foreman work at Emerald Mine. (Tr. 359-360). Inspector
Reidman spoke to the miners who were there to install pumpable supports. They
were on the day shift, which began at 8 a.m. An MSHA-approved multi-gas
detector was not provided. Inspector Reidmann was told that they usually have a
person who traveled with them as an escort but no escort was provided that day.
(Tr. 360). When questioned, the miners were located at the No. 2 Entry inby the
long wall face. A canvas check was up and the miners were in there about a
block, 180 to 184 feet. (Tr. 361).

The
hazard that the cited standard was intended to prevent was to protect miners in
case of fire or to warn miners in the event of methane or low oxygen. (Tr.
361). A multi-gas detector protects miners who are in the presence of low
oxygen, carbon monoxide, or methane. When within a certain range, a light will
appear and an audible alarm will sound. (Tr. 361). The miners would know to
come out of the area. Oxygen, carbon monoxide, and methane are odorless. Exposure
to low oxygen and carbon monoxide results in the danger of loss of
consciousness. The risk provided by the presence of methane is an explosive
mix. (Tr. 361-363).

The
likelihood of a methane explosion in the mine could have been reasonably likely
as Emerald No 1 mine is on a 5-day methane spot and liberates over a million
cubic feet of methane in 24 hours. Emerald No. 1 is a gassy mine. Face to face
ignitions have occurred before on the longwall. The miners would not have been
safe in their location if there had been an explosion at the longwall face,
where the methane ignition would have been. The methane ignition could also
have been at the head gate. (Tr. 367-368).

Inspector
Reidmann further testified in cross-examination that not everyone needs to wear
a multi-gas detector. (Tr. 374). Anyone working alone would need a multi-gas
detector, but the term “alone” is not defined. Reidmann was instructed in MSHA
training that “alone” means “by yourself.”[12]

Production
was occurring on the longwall face and 5 or 6 miners were on the longwall face.
There was also a headgate operator who works on the headgate side where the
curtain is located. Inspector Reidmann did not check with anyone to see how
many had a multi-gas detector. (Tr. 381).

Respondent
introduced, through Reidmann, Respondent’s Exhibit 22, which were the field
notes Reidmann produced stating that the on the day of the inspection and
citation the methane reading was 0, with 20.8% oxygen and that these were good
readings. (Tr. 383). However, on re-direct examination, Reidmann testified that
the presence of methane at the face or longwall can change in minutes. (Tr.
385). If a person on the longwall had a multi-gas detector that had alarmed, it
could not have been heard by the four contract miners. (Tr. 394).

RESPONDENT’S
EVIDENCE

1.     
Testimony
of Gary Bochna

Gary
Bochna is employed by Emerald Coal Resources as a senior safety representative
and has held that position for 32 years. (Tr. 400).

Bochna
testified that he accompanied inspector Reidmann on an inspection the day
Citation No. 8006753 was issued. The citation was served on Bochna. In the
course of the inspection, Bochna observed four working contractors on the C1
section. More specifically, they were working inby the No. 2 Entry, about one
block inby the longwall face. It takes a minute to walk one block. Production
was occurring at that time and about 12 people were working on the longwall,
and various people on that crew would have had a multi-gas detector. (Tr.
401-402). The four contractors came in with the crew and therefore the crew
would have known that the contractors were there. (Tr. 402-403). Other miners
were near the longwall face in the No. 2 Entry. A headgate operator was in the
No. 3 Entry on the face, about 2 blocks away. It would take about two minutes
to walk two blocks. Various miners, including the headgate operator, mechanics,
and the foreman would have a “gas meter.” (Tr. 403-404).

Bochna
went to the area where the contractors were to check for ventilations and
insofar as the readings were concerned he “did not think we had anything.” (Tr.
405). It is Emerald’s practice to send a miner with a multi-gas detector along
with the contractors depending on where they are working. If they are away from
a group of people they would have someone with a detector with the group and
would not need one. (Tr. 410-411). But if there was a person on the longwall
section with a multi-gas detector, the alarm would not be heard by, in this
case, the four contractors. (Tr. 421). This is also true of the MGD that the
headgate person used. (Tr. 422).

2.     
Testimony
of William Schifko

Schifko
testified for Respondent with respect to Citation No. 8007661 as well.

Schifko
decided to contest this citation due to confusion with regulations promulgated
by MSHA and the portion of the regulations that caused confusion was the
definition of “alone.” Schifko asked for compliance assistance from several
people including MSHA field inspectors and from the District Office. (Tr. 434).
Someone from MSHA referred to a series of questions and answers prepared by
MSHA and specifically question No. 35, which is part of Respondent’s Exhibit

27. Schifko testified that the question stated, “Are several miners who work
    individually but are normally located within a maximum of five minutes walking
    distance from all the miners in this group are each required to have a multi
    gas detector?” And the answer provided is, “No, if it is practical and logical
    for these miners to quickly assemble prior to evacuation, only one gas detector
    to (sic) required for this group.” (Tr. 437).

Schifko
further testified that that in a policy issued to all contractors, that he
expected them to provide their own safety equipment including detectors. In the
past, Emerald had lent detectors out to people and not gotten them back, which
is expensive. (Tr. 438-439). There are a lot of occasions where miners do not
have their detectors or have forgotten them and Emerald has allowed them to
borrow the equipment. Schifko makes them sign for the equipment. (Tr. 439). Loaner
detectors were available. (Tr. 440).

The
High Tech employees typically work at the long wall because that is the only
place where pumpable cribs are built. Pre-shift organizational meetings are
held where assignments are given and everyone is told where to go. The Emerald
“responsible person” knows where everybody is going to go. (Tr. 440-441).

Insofar
as a potential ignition on the longwall face is concerned, Schifko testified
that they had never had any ignition in the C Block. Further, whether or not
there was an ignition would not be influenced based on whether the contractors
had detectors.

Schifko
disagreed with the testimony attributed to inspector Reidmann that if you
cannot see or hear somebody else, that someone was alone. Although he does not
believe that Inspector Reidmann was given a lot of guidance from MSHA. (Tr.
445). There is no question in Schifko’s mind that someone with a multi-gas
detector was within 900-1000 feet and therefore within five minute walking
distance. (Tr. 447-448). Furthermore, it is Schifko’s testimony that the four
contractors were in the same group as the people working on the longwall. (Tr.
450).

SECRETARY’S
ADDITIONAL EVIDENCE

1.     
Testimony
of Robert Newhouse

Following
Respondent’s Final witness, the Secretary moved to re-open the record, which
motion was granted and the Secretary then presented witness Robert Newhouse.

Newhouse
is employed by MSHA as the supervisory coal mine inspector for the Ruff Creek
Field Office and has been as supervisor since 1985. He has been an inspector of
underground coal mines since 1977. (Tr. 501). Newhouse was designated as the
Secretary’s Representative and sat at counsel table for all proceedings.

Newhouse
testified that he read all of the questions and answers regarding multi-gas
detectors in RX 27 and had been involved in the issuance and development of the
standard. He was familiar with the standards, why they were enacted, and their
purpose. In his opinion, the question about distance and a five minute walk is
irrelevant. The key is air pressure. A group of miners or an individual miner
walking in an area that can have bad air, is being inundated with smoke, needs
to be protected with a detector. (Tr. 502-503).

Newhouse
testified that due to the check curtain the intake air was split, creating
different areas where the air pressure was different. In the longwall mining
area, the rock fell back across the shields as mining occurred and normal roof
falls occur. The rock displaces air in that area forcing the air to come out
through the entries as it has to go somewhere. Thus, there is a buildup of
pressure in the areas where there is no fall, creating a void, or a potential
void. That void has methane, low oxygen, dust, and other “things” in it. The
four contractors and the other people in the mine would not necessarily know. They
would know if a roof fall occurred, but their air would not change. That is why
they have a union person with a detector normally assigned to the contractors
who are inexperienced. (Tr. 503-505).

CONTENTIONS
OF THE PARTIES

1.     
The
Secretary’s Contentions

The
four contract miners working underground were a group and Respondent was
therefore obligated to provide a multi-gas detector to the group.

2.     
Respondent’s
Contentions

The
four contractor miners working underground were not a group, but were instead
part of a larger group that was equipped with a multi-gas detector. The fact
that the contract miners were within a five minute walk from Respondent’s
miners satisfies MSHA’s question and answer publication which clarifies the
requirements of 30 C.F.R. §75.1714-7(a).

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1.     
Validity

Respondent
was cited because the inspector found four contractors working together in the
mine without a multi-gas detector. Furthermore, there were other miners within
a five minute walk of the four contractors, though not working directly with
them, who had multi-gas detectors. These facts are not in contest. The cited
standard, 30 C.F.R. §75.1714-7(a) requires all individual miners or groups to
have a working multi-gas detector. Therefore, the primary issue with respect to
this violation is whether the four contractors were members of a discrete
“group” that were not supplied with a multi-gas detector or were part of a
larger “group” that included miners who had the required multi-gas detector. To
a large extent, this topic boils down to the definition of the word “group.”

Under
well-settled Commission precedent, where the language is clear, the terms of
that provision must be enforced as they are written, unless the regulator
clearly intended the words to have a difference meaning or unless such a meaning
would leave to absurd results. Sedgman, 28 FMSHRC 322, 329 (June 2006);
and Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006). In the
absence of a statutory definition or a technical usage of a term, the
Commission applies its ordinary meaning. Id.

Here,
the term “group” is not given a statutory definition. The Merriam-Webster
dictionary defines a group as, “two or more figures forming a
complete unit in a composition” and “a number of individuals assembled together
or having some unifying relationship.” Merriam-Webster Dictionary (11th
Ed. 2003). In the context of the standard, there is no real question as
to the meaning of the term. “Group” in the context of §75.1714-7(a) cannot mean
anything other than two or more workers acting together as
a unit, in a discrete area, with knowledge that they are members of a group. In
this situation, the four contractors functioned as a discrete and separate
unit. They acted together to perform foreman work. There is no other way to
describe the four contractors as anything other than a “group.” At the same
time, it would be absurd to consider other employees, even those employees
working nearby, to be considered a part of their “group.” There is no evidence
in the record that they interacted with Respondent’s direct employees on the
Longwall or in any way coordinated their work. The plain meaning of the word
“group” will not support such a contention.

Beyond the plain meaning of the
word group, considering the four contractors as part of the longwall group
would have a negative effect on the safety of miners. The Commission has
interpreted that the plain meaning of a term along with the overall purpose of
the Act. Local union No. 5817, District 17, United Mine Workers of America
v. Monument Mining Corp. and Island Creek Coal Company, 9 FMSHRC 209,
211-212 (Feb. 1987); see also 30
U.S.C.A. § 801(a) (“the first priority and concern of all in the coal or other
mining industry must be the health and safety of its most precious
resource--the miner.”)
I credit the testimony of Inspector Reidmann that the contractors would not
have heard the multi-gas detector alarm on the longwall. Furthermore, I credit
Newhouse’s testimony that the contractors and the miners on the longwall were
breathing different air, meaning that even if the longwall miners’ multi-gas
detector did not go off, the contractors could be experiencing dangerous
atmosphere. An understanding that miners breathing different air and outside of
the range of the alarm are part of the same “group” as the longwall miners
would place a technical reading of the term “group” over the Act’s primary goal
of miner safety.

As I have decided to apply the
plain meaning of the term “group,” there is no need to consider the level of
deference accorded to the Secretary in this instance. Furthermore, there is no
need to discuss whether Respondent had “fair notice” of the interpretation
because the meaning of the standard was clear.[13]

2.     
Gravity
and S&S Discussion

With
respect to the gravity of this citation, I credit the testimony of Inspector
Reidmann. He presented evidence that if the four contractors encountered
dangerous conditions; they would be unaware of the danger. As a result, those
miners could have been trapped in an area with low oxygen and/or carbon
monoxide and loss of consciousness or even been injured by a methane explosion.
The possibility of low oxygen or carbon monoxide is a real danger in a coal
mine. Furthermore, this was a gassy mine on a five-day spot with a history of
face ignitions, making a face ignition possible. (Tr. 367-368). As a result, I
agree with the Secretary’s findings that this hazard was reasonably likely and
possibly fatal.

As
stated previously, in order to establish S&S, the Secretary must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard 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. Mathies
Coal Co., 6 FMSHRC at 3-4. As shown above, there was an underlying
violation of the mandatory safety standard.

With
respect to the second factor, Respondent argues that the failure to provide the
contractors with a multi-gas detector did not contribute to a safety hazard
because the contractors were not engaged in an activity that risked ignition.[14]
(Respondent’s Post-Hearing Brief at 48-49). It may be true that the
contractors were note engaged in an activity that risked ignition but that does
not change the fact that they were near the face where mining activity was
taking place. In the event of an inundation of methane, those contractors would
have no warning. Further, in order to be S&S, a violation need not be shown
to cause a hazard, it need only contribute to a hazard. The fact that the
miners did not have a multi-gas detector would contribute to the hazard of
explosion in some way, regardless of the possible causes of ignition. Finally,
methane ignition is not the only hazard possible. The miners could enter an
area with carbon monoxide or low oxygen and lose consciousness, regardless of
the presence of explosive gases.

Respondent
also argues that, in the event of an incident, the contractors would have been
among the first warned of danger because of their location. This would only be
true if the contractors happened to be in a location where they could be easily
warned. There is no evidence to suggest that evacuating miners would definitely
come in contact with the contractors. Even if they would, that protection would
only help those contractors if they were in the same atmosphere as the miners
with multi-gas detectors. If the contractors were in an area with methane, low
oxygen, or carbon dioxide while the other miners were not, there would be no
warning. Therefore, the failure to provide multi-gas detectors to the miners
contributed to the hazard of exposure to explosion or to asphyxiation.

With
respect to the third and fourth factors of Mathies, There is no question
that an explosion or asphyxiation would cause an injury to the contractors. Furthermore,
such an injury would be serious, perhaps even deadly. As a result, I hold that
this violation was S&S.

3.     
Negligence

Respondent
knew or should have known that the contractors should have been provided with a
multi-gas detector. In fact, the Secretary presented evidence that Respondent
had always sent the contractors with an escort in the past equipped with a
multi-gas detector. (Tr. 360, 410-411). This shows that Respondent was aware
that these miners were a “group” and that they were required to provide a
multi-gas detector for them. I credit Reidmann’s testimony that Respondent’s
actions were only moderately negligent because they had attempted to comply
with the standard in the past. (Tr. 370-372).

4.     
Penalty

Under
the assessment regulations described in 30 C.F.R. §100, the Secretary proposed
a penalty of $3,143.00 for Citation No. 8006753. While the Secretary’s proposal
was duly considered, under 30 U.S.C. §820(i), the power to assess a penalty is
vested with the Commission. That law also dictates several factors be
considered before an assessment is made. I will not evaluate each of those
factors in turn with respect to penalty for Citation No. 8006753:

a.      
 The
operator’s history of previous violations – Respondent was cited four times
under Section 75.1714-7(a) in the past two years.

b.     
The
appropriateness of the penalty compared to the size of the Operator’s business
– Emerald Mine No. 1 produces 6,343,350 tons of coal annually and Respondent
produces 69,624,256 tons of coal annually in all its operations. According to
MSHA’s penalty assessment guidelines this gives Emerald Mine No. 1 15 “mine
size points” out of a possible 15 and Respondent 10 “controller size points”
out of a possible 10. See 30
CFR § 100.3(b). Thus,
Respondent is a very large operator with a very large mine.

c.      
Whether the
Operator was negligent – as previously shown, the operator exhibited moderate
negligence.

d.     
The effect on
the Operator’s ability to remain in business – the parties have stipulated that
the citations at issue here would not affect Respondent’s ability to remain in
business.

e.      
The gravity
of the violation – as previously shown, this violation was reasonably likely to
cause injury, or illness that could reasonably be expected to be fatal.

f.      
The
demonstrated good-faith of the person charged in attempting to achieve rapid
compliance after notification of a violation – The evidence shows the condition
was rapidly abated in good faith.

I
AFFIRM Citation No. 8006753 as issued as well as the Secretary’s
proposed penalty assessment of $3,143.00.

ORDER

Respondent,
Emerald Coal Resources, LP, is hereby ORDERED to pay
the Secretary of Labor the sum of $8,143.00 within 30 days of the date of this
decision.[15]

/s/ William S. Steele 

William S. Steele

Administrative
Law Judge

Distribution:

Patrick
W. Dennison, Esq., & Jason P. Webb, Esq., Jackson Kelly, PLLC, Three
Gateway Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222

Pamela
Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway,
Suite 800, Denver, Co 80202

[1] The original
decision stated that the assessed penalty for Citation No. 8006753 was $3,493.00
instead of the correct amount, $3,143.00.

[2] A Decision Approving Partial Settlement for these
eight settled citations was issued separately.

[3] Hereinafter Government Exhibits will be cited as “GX”
followed by the number and Respondent’s Exhibits will be cited as “RX” followed
by the number.

[4] The inspector also noted that, “[t]his citation is a
contributing factor to the issuance of the 107(a) Order No. 8007662.” This
imminent danger Order is no longer in contest, but will be discussed as
necessary in this decision.

[5] A 103(g) hazard complaint enables miners to make
complaints on safety or health hazards when there are reasonable grounds to
believe that a violation of the Act or a mandatory health or safety standard
exists. This section of the Act creates a right to an immediate inspection by
the Secretary. 30 U.S.C. §813(g)(1). In this case there were five complaints
about conditions on the sixth floor. All five were investigated and four
resulted in negative findings. One complaint resulted in a positive finding
which noted that seven contractor employees were conducting repairs. (Tr.
109-111). The positive finding concerned three structural support columns
located on the sixth floor of the prep plant which were determined to be not
maintained in good repair. (Respondent Exhibit 11).

[6] Sounding the columns is a way to tell if a column is
solid or if it is thinning.

[7] The order was based on his opinion and a few miners
who said they had noticed excessive plant shaking and vibration not noticed
before. (Tr. 62-65).

[8] This column is
also referred to as the third column in the second row. (Tr. 85).

[9] The column
Durig designated as 2B is McCort’s No. 3, 2C is McCort’s No. 4, and 2D is
McCort’s No. 5. (See Tr. 20 opening statement by counsel for the
Secretary). However, this statement of explanation does not conform to the
citation. The sixth floor of the prep plant was examined by a myriad of
individuals who employed their own methods of identifying the columns which
were the subjects of this citation. The inspector trainee for MSHA, Tom McCort,
identified the columns as being in the second row from the raw coal side, and
he numbered the columns as the second, third, fourth, and fifth columns from the
creek side. (Tr. 45). The MSHA civil engineer, Jarrod During, identified the
columns as 2B, 2C, and 2D. The columns cited in the citation are actually
columns 2, 4, and 5 in McCort’s version. Yet another numbering system is
employed by Emerald and identified as row H that which is McCort’s row 2, and
listed the columns as 12H, 13H, and 14H. McCort’s column 2 is Durig’s 2B and
Emerald’s 12H; McCort’s column 4 is Durig’s 2C and Emerald’s 13H; and McCort’s
column 5 is Durig’s 2D and Emerald’s 14H as represented by counsel for the
Secretary. (Tr. 269-270). There is a slight variation provided by counsel for
Respondent. (see Amended Post-Hearing Brief at p. 3).

[10] Through this witness we learned that a third means of
identifying rows and columns was employed. Row H is McCort’s row 2.

[11] Respondent also argued that it
was in the process of retrofitting the conditions to prevent further
deterioration.

[12] The four miners here were working together, none was
by himself or in any way “alone.”

[13]
Respondent presented several arguments to support its claim that the
Secretary’s interpretation was not entitled to deference. Specifically, it
claimed that the Secretary was inconsistent in his interpretation, that its
current interpretation is a post-hoc rationalization, and that the
interpretation would be absurd. However, it
is only when the meaning is ambiguous that the judge is to consider the
reasonableness of the Secretary’s interpretation. See Udall v. Tallman,
380 U.S. 1, 16-17 (1965) (finding that reviewing body must “‘look to the
administrative construction of the regulation if the meaning of the words used
is in doubt”’) (quoting Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)); Exportal
LTDA v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“‘Deference … is
not in order if the rule's meaning is clear on its face.”’) (quoting Pfizer,
Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984); see also Jim
Walter Res., 28 FMSHRC 983, 987 (Dec. 2006); Jim Walter Res., 19
FMSHRC 1761, 1765 (Nov. 1997); Cannelton Indus., 26 FMSHRC 146, 151
(Mar. 2004). As I found that the meaning of the word “group” in the context of
the standard was not ambiguous, there is not need to consider the deference
accorded to the Secretary.

However, even if this definition
of “group” simply were the Secretary’s interpretation, I do not believe
Respondent’s arguments attacking the reasonableness of that definition are
compelling. For example, Respondent’s argument relies on the 2007 Emergency
Mine Evacuation Final Rule Questions and Answers. That document included a
question asking if individual miners working within a five minute walking
distance were each required to carry a detector. The answer said, “No, if it is
practical and logical for these miners to quickly assemble prior to evacuation,
only one multi-gas detector is required for this group.” Respondent argues that
it this means the four miners were part of the longwall group. However,
Respondent ignores the fact that individual miners are only considered part of
a group if, “it is practical and logical for these miners to assemble quickly
prior to evacuation.” As already shown, the Secretary’s witnesses credibly
testified that the contractors would not have heard the alarm. Therefore, it
would not have been practical for those contractors to quickly assemble in
order to evacuate. Instead, miners on the longwall that heard the alarm would
have had to immediately act as a rescue crew and go searching for the
contractors rather than themselves safely assembling for evacuation. Further,
as those miners were in different air, there was no practical way for the
contractors to know if they were experiencing dangerous atmosphere and were in
need of evacuation.

In a related argument, Respondent
contends that the Secretary’s interpretation of the term “group” has been
inconsistent in light of the above “answer” and that its use of the
interpretation urged at hearing was a post-hoc rationalization. However, as
shown above, the Secretary’s position at hearing, as well as the 2007 Question
and Answer, are consistent with the language of the standard and with one
another. If anything, it appears that the Respondent is the party engaging in
post-hoc rationalization of its position. The evidence clearly showed that at
all other times, Respondent provided an escort with a multi-gas detector to the
contractors. (Tr. 360, 410-411). It was only when they were cited in this
particular instance that it argued that these miners were part of a larger
group.

Finally, Respondent argues that
the Secretary’s interpretation is absurd because it would be unclear whether a
group is determined by “minimum distance” or “common task.” It noted that
miners working on separate tasks but “within arms reach” might not be
considered a group and require a separate multi-gas detectors. I do not believe
there is any uncertainty. The issue is not whether “minimum distance” or
“common task” denotes a group; those are two equal aspects of the definition of
“group.” Miners at a distance from other miners are not part of the same
“group” for the reasons discussed already, namely different air courses and
inability to hear an alarm. At the same time, miners working on a different
task, even if close by, are not part of a “group” because, as they are not part
of a unit working together, they may leave the area without being noticed or
accounted for at any time. In essence, miners working in a group share a known
responsibility towards a particular task and also for one another. A miner outside
of that shared task could easily be left outside of the group’s sense of
reasonability as well. That is why a worker conducting an unrelated task, even
if close, might be considered outside of a “group.” There is nothing absurd
about that result.

[14] Respondent also argues that there was no danger of
ignition because there was no methane was present. (Respondent’s
Post-Hearing Brief at 48). However, as Respondent is apparently aware based
on other arguments in the brief, as an emergency standard, an event is assumed
when considered the S&S nature of the violation. Cumberland Coal
Resources, LP, 33 FMSHRC 2537 (Oct. 2011).

[15] Payment should be sent to: MINE SAFETY AND HEALTH
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390