Emerald Coal Resources, LP

Read the official release (fmshrc.gov)

Plain-English summary

MSHA brought 28 alleged violations against Emerald Coal Resources at its Emerald Mine No. 1, and the parties resolved all but one through settlements or vacatur. Judge David F. Barbour upheld the remaining order under 30 C.F.R. § 75.400 after finding extensive dry coal dust along a shuttle-car roadway. He found the violation significant and substantial, serious, highly negligent, and an unwarrantable failure because the accumulation was extensive, management knew of it, and the mine had repeated prior notice about coal-bottom cleanup. The judge assessed $44,500 for that order and approved settlements totaling $83,031 for the remaining matters. Emerald was ordered to pay $127,531 in total penalties.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400 and the additional coal-mine safety standards resolved in settlement
• Outcome: One coal-dust order was affirmed with a $44,500 penalty, other citations and orders were modified, settled, or vacated, and total penalties of $127,531 were assessed.
• Key point: Extensive dry coal dust in a gassy active section supported S&S, high-negligence, and unwarrantable-failure findings where management knew of the condition and had repeated notice to improve cleanup.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

November 10, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

EMERALD COAL RESOURCES, LP,

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. PENN 2009-41

A.C. No. 36-05466-164329-02

Docket No. PENN 2009-42

A.C. No. 36-05466-164329-03

Mine: Emerald Mine No. 1

DECISION

Appearances:  John M. Strawn, Esq., U.S. Department of Labor, Philadelphia, PA on behalf of
the Secretary

R. Henry Moore, Esq., Jackson Kelly, Pittsburgh, PA on behalf of Emerald Coal
Resources, LP

Before: Judge David F. Barbour

These cases are before me upon petitions for assessment of civil penalties filed by the
Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration
(“MSHA”) against Emerald Coal Resources (“Emerald”), pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977 (the “Mine Act” or “Act”), 30 U.S.C. § 815 (2006). In
Docket No. PENN-2009-41, the Secretary petitions for the assessment of civil penalties totaling
$20,597.00 for eight alleged violations of mandatory safety standards set forth in 30 C.F.R. Parts
75 and 77.

In Docket No. PENN-2009-42, the Secretary seeks the assessment of civil penalties
totaling $179,812.00 for twenty alleged violations of mandatory safety standards for underground
coal mines at its Emerald Mine No. 1 located in Greene County, Pennsylvania.  

After the Secretary’s petitions were filed, Emerald answered by admitting the
Commission’s jurisdiction, but by denying the company’s liability for any of the proposed
penalties. The cases were assigned to me by the Chief Judge. Following several conferences,
counsels ultimately settled all of the violations alleged in the two dockets, except for an alleged
violation of 30 C.F.R. § 75.400 as set forth in Order No. 4165192.

The order was issued pursuant
to section 104(d)(2) of the Act and in addition to the alleged violation charged that the violation
was a significant and substantial contribution to a mine safety hazard (“S&S” violation) and was
the result of Emerald’s unwarrantable failure to comply with the standard.

Order No. 4165192 is
contained in Docket No. PENN 2009-42. The matter was heard in Morgantown, West Virginia.

STIPULATIONS

The parties agreed to the following stipulations:

1.         Emerald is an “operator” as defined in section 3(d) of the Federal Mine Safety and
Health Act of 1977, as amended, (hereinafter the “Act”), 30 U.S.C. § 802(d), at
the Emerald Mine No. 1 (the “Mine”), where the Order at issue in this proceeding
was issued.

2.         The Mine is subject to the jurisdiction of the Act.

3.         The Mine is owned and operated by Emerald.

4.         The Federal Mine Safety and Health Review Commission (“Commission”) and
the presiding Administrative Law Judge have jurisdiction over the above-captioned proceedings pursuant to sections 104, 105 and 113 of the Act.

5.         The subject Order and termination were properly served by duly authorized
representatives of the Secretary upon agents for Emerald on the dates and times
and at the places stated therein and may be admitted into evidence for the purpose
of establishing their issuance. 

6.         The parties stipulate to the authenticity of their exhibits, but not to the relevance
or truth of the matters asserted therein.

7.         Emerald demonstrated good faith in attaining compliance after the issuance of the
Order.

8.         Payment of the total proposed penalty of $44,645 in this matter will not affect
Emerald’s ability to continue in business.

9.         The appropriateness of the penalty, if any, to the size of Emerald’s business
should be based on the fact that Emerald’s controller produced over 10,000,000
tons of coal in 2007, including 5,674,111 tons at the Mine.  

10.       The appropriateness of the penalty, if any, to Emerald’s violation history should
be based on the fact that Emerald had 327 assessed violations that were paid,
finally adjudicated, or became final orders of the Commission during the 15
month period preceding issuance of Order No. 4165192.

11.       In 2008, 30 C.F.R. § 75.400 was the most frequently cited standard and made up
12.18% of all violations issued in underground coal mines. In 2007, 30 C.F.R. § 75.400 was also the most frequently cited standard and made up
12.25% of all violations.

12.       If the Administrative Law Judge upholds Order No. 4165192 as an unwarrantable
failure to comply with the Act, the Order should be characterized as a section
104(d)(2) order. The original D chain on which Order No. 4165192 was issued,
however, was broken. The predicate order referenced as the initial action,
Order No. 7069052, was issued October 02, 2007. There were 12 enforcement
actions taken under section 104(d) during that period. All section 104(d)
enforcement actions during that period were contested. Of those, two have been
resolved, section 104(d)(2) Order Nos. 7024630 and 7024915. Both were
reclassified as section 104(a) citations in settlements and the unwarrantable failure
chain was broken between November 29, 2007 and July 23, 2008, i.e. there was
an intervening clean inspection. On July 23, 2008, Order No. 7077232 was issued
as a section 104(d)(2) order with an S&S designation. That order is part of
[D]ocket No. PENN 2009-41 herein and now becomes a section 104(d)(1) citation
in the partial settlement. Order No. 7077238 was issued on July 30, 2008 pursuant
to section 104(d)(2). That order is also part of Docket No. PENN 2009-41 and
now becomes a section 104(d)(1) order in the partial settlement.

ORDER NO. 4165192

13.       On August 9, 2008 the C-2 section of the mine was a continuous miner
development section.

14.       A preshift examination of the section was performed by Bill Grey on
August 9, 2008 for the oncoming dayshift. He did not record that any hazards
existed in the working section. No enforcement action was taken with respect to
his preshift examination.

Jt. Ex. 1.

THE TESTIMONY

On August 09, 2008, at approximately 8:00 a.m., the beginning of Emerald’s dayshift, a
103(i) spot inspection for methane was conducted by MSHA’s Supervisory Coal Mine Inspector
Robert Newhouse at the C-2 section of Emerald Mine No. 1.

Tr. 35-36. Emerald Mine No. 1 is a
large mine. Tr. 31. It is a gassy mine and liberates more than 8 million cubits of methane every
24 hours. See Tr. 32-33. Under Section 103(i), gassy mines are subject to a minimum of one spot
inspection every five working days at irregular intervals. 30 U.S.C. § 813 (i) (2006).

At the time of the August 09, 2008 inspection the C-2 section was in active development.
Jt. Ex. 1. The C-2 section is a three-entry long wall development section with coal bottoms. Tr.
41, 46.

The section’s Number Three entry is located near the 27 cross cut. Tr. 41, 46-48. The
Number Three entry is used as a haul road for shuttle cars transporting coal from the continuous
miner to the feeder on the conveyor belt. Tr. 48. Air flows through the Number Three entry to the
face. Tr. 63.

After arriving at the mine Newhouse traveled with Larry Becker, a union representative,
to the C-2 section where he met with the midnight shift foreman, William Grey. Tr. 35-36. When
Newhouse arrived at the C-2 section at approximately 8:30 a.m., the midnight shift production
crew had already left, but the dayshift crew had not arrived and mining had not started. Tr. 36,

78. Newhouse traveled through the entries to inspect the faces and take methane readings. Tr. 37,
    Tr. 42. Grey did not accompany Newhouse because his cap light was not working. Tr. 37.
    Newhouse measured five hundredths of a percent methane at the Number Three face. Tr. 92-93, Gov. Ex. 3. When Newhouse proceeded through the Number Three entry toward
    the belt feeder he observed an “extensive” accumulation of coal dust on the shuttle car

roadway. Tr. 37.

Newhouse noticed that the accumulation was dry, dusty and black. Tr. 46, 51. He found
no evidence that any clean up or rock-dusting had occurred. Tr. 68. Newhouse measured up to
eight inches of coal dust accumulated on top of the coal bottom in the center of the roadway and
up to 14 inches accumulated by the ribs. Tr. 46, 80-81. The accumulation measured
approximately 26 feet across from the feeder inby and extended a distance of approximately 244 feet. Tr. 52. Newhouse recorded his measurements in his contemporaneous notes. See Gov. Ex. 3. Newhouse believed the coal dust accumulation was caused by shuttle car
traffic traveling over the coal bottoms. Tr. 50-51. He went to the load center to question Grey
about the accummulation, but Grey was gone. Tr. 43. Newhouse showed the accumulation to Fed
McManis, Continuous Mining Machine Coordinator (“CM Coordinator”) for the

C-2 section. Tr. 43. When Newhouse showed McManis the accumulation McManis explained
that neither Grey nor the crew ordinarily worked in the area, and that another crew, the crew
normally assigned to the C-2 section, usually kept the area clean. Gov. Ex. 3 pg. 11-12. McManis
had the area scooped and rock-dusted and the roadways watered. Tr. 169. As a result of what he
saw and learned Newhouse found that the accumulation violated section 75.400 and he issued
Order No. 4165192.

On Monday, August 11, 2008 Newhouse returned to the mine to conduct interviews with
several miners, including Grey. Tr.75. During his interview Grey told Newhouse he had the
roadway scooped early in the midnight shift. Tr. 76. Grey stated the roadway was fine when he
checked it at 5:17 a.m.

Id.

Newhouse found that the violation of section 75.400 was reasonably likely to result in an
explosion. Tr. 65-66. The block of coal in the C-2 section was virgin coal with rock intrusions
containing clay veins, which trap methane. Tr. 61-62, 65. Newhouse believed that due to the
geology of the coal being mined, if the continuous miner cut into a clay vein it could cause a
release of methane sufficient to bring the methane level to the explosive range. Tr. 61. Newhouse
acknowledged Emerald was using horizontal degasification to reduce the methane level in the
block of coal.

Tr. 100. However, he still believed the level of methane was likely to reach the
explosive range.

Newhouse also believed that as mining continued the accumulated dust would be placed
into suspension by shuttle car traffic and carried through the intake inby to the continuous miner
at the face. Tr. 63. He testified a methane ignition at the face would ignite the suspended coal
dust and the resulting explosion would propagate back through the C-2 section and continue to
expand. Tr. 55-58; 61-64. Newhouse determined an ignition could be caused by the cutter head
striking a sulfur ball and testified that miners often strike sulfur balls on the face.

Tr. 57.
Newhouse testified that in his 33 years of experience inspecting the mine single and even
multiple face ignitions had occurred “from time to time,” depending on the geology of the coal
being mined. Tr. 61-62.

Newhouse also believed that the shuttle car cables could become abraded by equipment
running over them, fault and ignite the coal dust. Tr. 64-65. However, Newhouse admitted he did
not inspect the shuttle car cables for signs of abrasion. Tr. 84. Newhouse stated the shuttle car
cable wheels can produce significant heat when energized cords are rolled up and could become
ignition sources. Tr. 65.

Newhouse testified that if an ignition and explosion occurred it was reasonably likely that
numerous miners could be fatally injured: the miner operator, the cable holders for the machine,
a load operator, a mechanic, a foreman and several shuttle car operators and center holders. Tr. 66.

Newhouse determined that Emerald’s negligence in allowing the condition to exist was
“high.” Tr. 66. Newhouse found that the coal accumulation was “very obvious and extensive”
and that it existed when Grey did his pre-shift exam. Tr. 67. In fact, given the extensive nature of
the accumulation, Newhouse believed it had probably existed for several shifts. Tr. 67. Further,
the shift foreman frequently visits each section and had cause to go down the Number Three
entry. Tr. 67. Emerald’s clean-up plan also states that extra attention is needed to keep coal
bottoms clean. Tr. 69, Gov. Ex. 6. The plan requires that shuttle car roadways be kept free of
loose coal accumulations and either kept wet, using water or calcium, or “very heavily” rock- dusted. Gov. Ex. 6. Moreover, on a number of occasions Newhouse had discussed the extra attention needed to keep coal bottoms clean with members of mine management, including
William Shiftko, and the mine foreman. Tr. 70.

William Grey testified that on the night of August 8-9, 2008, he was acting as the
midnight shift foreman for the C-2 section.

Gov. Ex. 3. Grey had noticed the cited accumulation
when he did his preshift examination of the section prior to the August 9 oncoming dayshift, but
he did not record any hazards. Jt. Ex. 1. Grey stated his cap light was working when he did his
preshift exam. Tr. 120. In Grey’s opinion, the accumulated material was not enough to pose a
hazard. Tr. 128. Grey testified that he did not notice any sulfur balls at the faces. Tr. 119. Grey
stated the company’s normal practice is to clean during the shift, between cycles and after the
section has been advanced. Tr. 114, 150, 153. Grey initially testified that the coal bottom was wet
and had been rock-dusted, but later stated he did not water the roads that night because the roads
are naturally wet. Tr. 141-142, 157.

Fred McManis, the CM coordinator for the C-2 section, supervises the section foreman.

Tr. 159, 168. As the CM coordinator McManis is on the section every day except Sunday, and
he was there when the alleged violation occurred. Tr. 161, 168. He testified that generally shuttle
car operators will water the roadways at the beginning of the shift to control float coal  dust. Tr. 162-163. Preferably within two hours of the end of the shift, the company will scoop
away any accumulated coal. Tr. 164. McManis testified his normal routine as face boss is to
examine the working place before the miners start loading coal then examine the other faces. Tr. 162. McManis testified Newhouse arrived before he had the opportunity to check the
C-2 section. Tr. 165. Newhouse showed McManis the coal accumulation. Tr. 165. McManis took
his own measurements and recorded them in his notes, as was his practice whenever an order was issued. Tr. 183. McManis noted that the accumulated coal dust was 12 inches deep
at the feeder, 18 inches deep near the ribs, 12 feet wide and extended approximately 20 feet. Gov. Ex. 7. He also noted 3 to 4 inches of coal dust between the 24 ½ room and the  27 room. Id.    

McManis then spoke to Grey who reported on the conditions at the face and on mining
operations, per normal operating procedure. Tr. 167-168. McManis testified it was unlikely there
would be a face ignition that would propogate back through the C-2 section because little
methane had accumulated, the coal bottoms were kept damp and the area was rock-dusted. Tr. 171. However, McManis later admitted on cross-examination that when the
citation was issued the coal accumulation was black and that the roadway was dry and tends to
get dry toward the end of a shift. Tr. 173-174, 179. He also admitted that shuttle car traffic would
put accumulated coal dust into suspension. Tr. 179.

William Shiftko is a compliance foreman in the safety department at Emerald mine. Tr. 192.

Shiftko testified he occasionally enters the C-2 section. Tr. 195. He testified that
to the best of his knowledge there have never been any ignitions in the area where the section
was located, that the degasification system that was in place when the order was issued was
effective in reducing methane levels and that the ventilation system was working properly when
the order was issued. Tr. 196, 205.

THE VIOLATION

DOCKET NO. PENN 2009-42

ORDER NO.             DATE                        30 C.F.R. §     

4165192                      08/09/08                     75.400

The order states:

Loose coal and black float coal dust was permitted to accumulate on the active
shuttle car roadways in the number 3 entry of the C-2 section MMU no. 022, from
the feeder located inby 24 crosscut to the intersection at 26 crosscut, a[n]
approximate distance of 244 feet. The accumulation measured from 0 to 14 inches
deep along both ribs and from 0 to 8 inches deep in the center of the roadway. The accumulation was dry and dusty. This section of law has been cited 73 times in the
previous 24 months.

Gov’t. Ex. 2.   

For almost as long as the Commission has existed, it has been accepted that section 75.400
is violated “when an accumulation of combustible materials exists” (Old Ben Coal Co.,
1 FMSHRC 1954, 1958 (Dec. 1979)(“Old Ben I”)) and that a violative accumulation exists
“where the quantity of combustible materials is such that, in the judgement of the authorized
representative of the secretary, it likely could cause a fire or explosion if an ignition source were
present.” Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 1980)(“Old Ben II”). Since some
combustible material is inevitable in mining operations, the inspector's judgement as to what
constitutes a mass of combustible materials which could cause or propagate a fire or explosion is
subject to challenge before a Commission administrative law judge (Old Ben II, 2 FMSHRC at
2808, n.7), and the judge is required to review the inspector's judgement by applying the objective
test of whether a “reasonably prudent person, familiar with the mining industry and the protective
purposes of the standard, would have recognized the hazardous condition that the regulation seeks
to prevent.” Utah Power & Light, Mining Division, 12 FMSHRC 965, 968 (May 1990)(“UP&L”);
aff'd 951 F.2d 292 (10th Cir. 1991). The Commission has explained, “[T]he reasonably prudent
person test must be based on conclusions drawn by an objective observer with knowledge of the
relevant facts. It follows that the facts to be considered must be those which were reasonably
ascertainable prior to the alleged violation." U.S. Steel Mining Co., 27 FMSHRC 435, 439  (May 2005)(citing U.S. Steel Corp., 5 FMSHRC 3, 4-5 (Jan. 1983)).

Further, the Commission has repeatedly held that violations of Section 75.400 can be
established by an inspector’s observations. See e.g., Coal Processing Corporation, 2 IBMA 336 (1973); Amax Coal Co., 19 FMSHRC 846 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5 (Jan. 1997); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1290 (Dec. 1998) (stating the Commission has
never found and does not find that section 75.400 requires a physical test to determine the
particular combustible material present).

The C-2 section was an active development area (Tr. 31) where mining crews
worked (Tr. 35), which makes it an active working under the Act. I find that the order reflects the
reasonable exercise of Inspector Newhouse’s judgement. Newhouse is an MSHA inspector with
more than 33 years of experience trained to recognize hazardous dust conditions. I fully credit his
description of the existence, quantity and quality of the coal dust he observed, and I find that the
company violated the standard.

Newhouse credibly testified he observed extensive dry dusty coal accumulation of up to
eight inches in the center of the shuttle car roadway and accumulation of up to 14 inches near the
ribs extending inby from the feeder for a distance of approximately 244 feet as well as low coal
dust. Tr. 52-53, Gov. Ex. 3. McManis admitted upon cross-examination that the accumulation was
black and dry. Tr. 173, 179. Newhouse’s measurements and observations were recorded in his
contemporaneous notes. I credit Newhouse’s testimony as to the quantity of the accumulation over
that of McManis. McManis’ testimony lacked the degree of certitude that characterized
Newhouse’s testimony. 

The coal accumulation was extensive, and I fully credit Newhouse’s belief that the loose
coal dust was dangerous and posed an explosion hazard. Tr. 60. Black, dry, float coal dust can
result in a self-propagating explosion. Newhouse was trained by MSHA to recognize hazardous
dust conditions. I fully credit his belief that the loose coal dust would be placed into suspension by
the shuttle car traffic and carried to the face by the mine’s ventilation system. Tr. 63. Shiftko testified the C-2 section had a working ventilation system and coal
degasification system that would reduce the likelihood of a methane explosion. Tr. 196, 205.
However, Emerald Mine No. 1 is a gassy mine and I credit Newhouse’s belief that since Emerald
was mining virgin coal a sudden release of methane sufficient to bring the methane level to the
explosive range was likely to occur. A reasonable person familiar with 75.400 and its protective
purposes would have been aware that this was a hazardous accumulation.

S&S AND GRAVITY

An S&S violation is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814 (d)
(2006). A violation is properly designated S&S, “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822,
825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, the
Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co.,
6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir.
1995); Austin Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).

It is the third element of the S&S criteria that is the source of most controversies regarding
S&S findings. The element is established only if the Secretary proves “a reasonable likelihood the
hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular
facts surrounding the violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood
that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC __, slip op. at 9, PENN 2008-189 (October 05, 2011).

Further, the S&S nature of a violation and the gravity of a violation are not synonymous.
The Commission has pointed out that the “focus of the seriousness of the violation is not
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry,
but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept. 1996). The Commission has explained further that the third element of the Mathies
formulation "requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The Commission has emphasized that, in accordance with
the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1573, 1575 (July 1984). In addition, the evaluation of reasonable likelihood should be
made in terms of "continued normal mining operations." Id. at 1574. The question is whether
there was a confluence of factors that made an injury producing fire and/or explosion reasonably
likely. UP&L, 12 FMSHRC 965, 970-971 (May 1990). Factors that have been considered include
the extent of the accumulation, possible ignition sources, the presence of methane, and the type of
equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-503.  

I have found a violation of the cited safety standard. I further find that the accumulated
coal dust contributed to a distinct safety hazard, i.e., that the accumulation would propagate a
mine explosion. Moreover, I find that the necessary confluence of factors existed to make an
injury producing explosion reasonably likely. The cited accumulation were extensive, dry and
dusty. Tr. 52-53. I find that the Secretary has proven the cutter head could serve as an ignition
source. Newhouse believed it was likely that if the continuous miner cut into a clay vein enough
methane would be released from the virgin coal to reach a combustible level, that the methane
would be ignited by a spark from the cutter head, and that the exploding methane would ignite the
accumulated coal dust leading to a greatly magnified explosion and I credit his belief. He testified
that methane explosions had occurred in the past at the Emerald No. 1 mine.

Tr. 61-62. 

I conclude that as normal mining continued it was reasonably likely that the coal dust
accumulation would propagate a methane explosion through the section causing fatal injury to
miners working in the area. Thus, the violation was S&S. It also was serious. I find that should
such an accident occur the likely result would be deadly.

NEGLIGENCE

In her regulation the Secretary defines conduct that constitutes negligence under the Act.

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. Under the Mine Act, an operator is held to a high standard of care. 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. The failure to exercise a high standard
of care constitutes negligence.

30 C.F.R. § 100.3 (d) (2011).

An operator exhibits no negligence where the “operator exercised diligence and could not
have known of the violative condition or practice.” 30 C.F.R. § 100.3(d) (2011) (Table X). An
operator displays low negligence if the operator “knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances.” Id. An operator shows
moderate negligence if it “knew or should have known of the violative condition or practice, but
there are mitigating circumstances.” Id. An operator exhibits high negligence when the operator
“knew or should have known of the violative condition or practice, and there are no mitigating
circumstances.” Id. An operator shows reckless disregard when it displays “conduct which
exhibits absence of the slightest degree of care.” Id. MSHA considers mitigating circumstances
which may include actions taken by the operator to prevent or correct hazardous conditions when
determining negligence. 30 C.F.R. § 100.3 (d) (2011).

Newhouse found that the violation was due to Emerald’s high negligence, and I agree. The
operator had actual knowledge of the violative condition. Grey admitted he noticed the coal dust
accumulation when he did his pre-shift exam. Jt. Ex. 1. Newhouse believed that the hazard had
probably existed for several shifts. Tr. 67. McManis testified that his normal routine was to inspect
the working place before the miners started loading coal. Tr. 162. Therefore, even if Grey did not
note the hazard on his pre-shift exam, McManis should have identified the hazard when he
checked the working place before the prior shifts. Moreover, Emerald’s clean up program
identified the additional attention needed to keep coal bottoms clean. Gov. Ex. 6. Newhouse gave
undisputed testimony that he had spoken to mine management about the extra attention needed for
coal bottoms on several occasions. Tr. 70. The hazard created by the violation reasonably could be
expected to cause a fatal injury. I do not find the fact that Grey believed the accumulation was not
hazardous or the fact that Grey ordinarily worked in a section without coal bottoms to be indicative
of a lack of negligence on the company’s part. Mine management was aware of the hazards posed
by coal bottoms and had a duty to take the steps necessary to prevent coal dust accumulation. The
danger of the violation meant that management had a high standard of care. The company fell short
of this standard, and I therefore find that it was highly negligent. 

UNWARRANTABLE FAILURE

The Commission has defined an unwarrantable failure as aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).
Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference” or a “serious lack of reasonable care.”Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d. 133, 136 (7th Cir.
1995). The following factors may be considered when making an unwarrantable failure
determination: (1) the extent of the violative condition, (2) the length of time the condition existed,
(3) whether the violation was obvious or posed a high degree of danger, (4) whether the operator
has been placed on notice that greater efforts are necessary for compliance and (5) the operator’s
efforts in abating the violative condition. Mullins and Sons Co., 16 FMSHRC 192, 195 (Feb.
1994). Repeated similar violations are relevant to an unwarrantable failure determination to the
extent that they serve to put an operator on notice that greater efforts are necessary for compliance
with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

I find that the violation was an unwarrantable failure to comply with a mandatory standard. The violative condition was extensive. Newhouse measured up to eight inches of accumulated coal
dust in the center of the shuttle car roadway and up to 14 inches near the ribs extending inby from
the feeder for a distance of approximately 244 feet. Tr. 52-53. Newhouse credibly testified that the
accumulation had existed for several shifts. Tr.67. The violation was obvious and posed a high
degree of danger to miners. The operator was on notice that greater efforts were necessary for
compliance with the standard. The mine’s clean up plan identified the additional attention
necessary to keep coal bottoms clean and Newhouse had spoken with mine management about
keeping coal bottoms clean on several occasions. Further, the company paid civil penalties for 44
violations of section 75.400 in the 15 month period prior to the August 09, 2008 inspection. Gov. Ex. 1. When the order was issued there was no evidence that any clean up had
occurred or was in progress.

HISTORY OF PREVIOUS VIOLATIONS

In the 15 month period prior to the inspection at issue the company paid civil penalties for
327 violations, 44 of which were violations of section 75.400. Gov. Ex. 1, Jt. Ex. 1. This is a large
history of prior violations.  

SIZE AND ABILITY TO CONTINUE IN BUSINESS

Emerald is a large mine. The operator’s controller produced over 10,000,000 tons of coal in
2007 and 5,674,111 tons of coal at the Emerald No. 1 mine. Jt. Ex. 1. The parties agreed that the
proposed penalties will not adversely affect the company’s business. Jt. Ex. 1.

GOOD FAITH ABATEMENT

McManis’ timely and effective efforts to clean up the accumulation constituted good faith
abatement of the violation. See Jt. Ex. 1. He promptly had the area scooped, applied rock-dust and
watered the roadways. Tr. 169.

CIVIL PENALTY ASSESSMENT

DOCKET NO. PENN 2009-42

ORDER NO.             DATE            30 C.F.R. §            PROPOSED ASSESSMENT

4165192                      08/09/08         75.400                    $44,645.00

The Secretary proposed a large penalty of $44,645.00 for the alleged violation primarily
due to the large number of points assessed for repeat violations of the standard, for negligence, for
the likelihood of injury, for the severity of any resulting injury and for the number of persons
affected. I have found that the violation existed, that it was serious, that the negligence of the
company was high and that the violation was an unwarrantable failure to comply with a mandatory
standard. I have found that the mine and the company’s controller are large and that the proposed
penalty will not effect Emerald’s ability to continue in business. Also, I have found that the
operator exhibited good faith in abating the violation, which warrants a modest reduction in the
penalty. Given these findings and the other civil penalty criteria, I assess a penalty of $44,500 for
this violation.

SETTLEMENT

The rest of the violations in Docket Nos. PENN 2009-41 and PENN 2009-42 were settled.
A Decision Approving Partial Settlement was issued for Docket No. PENN 2009-41 on May 18, 2010, disposing of six of the eight violations at issue in the docket. One citation was
previously vacated and the settlement agreement for the remaining violation in PENN 2009-41 was submitted at hearing. Nineteen of the twenty violations at issue in Docket No. PENN 2009-42
settled prior to the hearing and were placed on the record at the hearing. The final violation in Docket No. PENN 2009-42 was tried and is the subject of this decision. I have considered the
representations made at the hearing and I conclude that the proffered settlement is appropriate
under the criteria set forth in section 110 (i) of the Act. The terms of the settlement are set forth
below.

PENN 2009-42

Citation No. 7021323 - The Respondent argued that the electrical exam conducted three weeks
prior to the citation did not show any defects. In light of the Respondent’s argument the Secretary
proposed at hearing that Citation No. 7021323 be modified to reduce the degree of negligence to
“low” and reduce the penalty from $2,106.00 to $1,052.00.

Citation No. 7021425 - The parties agreed to settle this violation because there were no exposed
live parts, only electricians have access to the area and a miner would only be exposed to live parts
if the miner used a wrench to open up the cabinet. The parties requested that Citation No. 7021425
be modified to remove the inspector’s significant and substantial (“S&S”) finding and that the
penalty be reduced, based on the penalty points, from $634 to $142, based on a corresponding
reduction in the points.

Citation No. 7021427 - The parties request that this citation be modified for the same reasons as
Citation No. 7021425. Specifically, the parties propose that Citation No. 7021427 be modified to
remove the inspector’s significant and substantial (“S&S”) finding and that the penalty be reduced
from $2,106.00 to $473.

Citation No. 7070999 - The parties determined that during the last weekly exam conducted the
welder was in good condition. Consequently, the parties request Citation No. 7070999 be modified
to reduce the degree of negligence to “low” and that the penalty be reduced, based on the penalty
points, from $2,282 to $1,140.

Citation No. 7071000 - The parties agreed to settle this violation in light of the fact that the cited
area was dangered off, the long wall blockage plan was in effect and extra safety precautions had
been taken. The parties request that Citation No. 7071000 be modified to reduce the number of
persons affected to “five.” The parties propose the penalty be reduced, based on the penalty points,
from $8,209 to $6,209.

Citation No. 7077230 - The parties determined that miners would have been able to use the escape
way to escape safely if necessary because most of the reflectors were free from rock-dust and the
lifeline had directional cones in it. As a result, the parties request that Citation No. 7077230 be
modified to reduce the gravity of injury to “permanently disabling,” to reduce the degree of
negligence to “low” and to reduce the number of persons affected to “five.” The parties also
propose that the penalty be reduced, based on the penalty points, from $1,657 to $165.

Order No. 7077232 - The parties determined that fewer miners would be affected by the alleged
violation than the inspector believed. One employee was already cleaning outby the site of the
accumulation. In addition, the pre-shift and on shift reports both show the operator was aware of
the condition and was addressing it. Consequently, the parties propose that Order No. 7077232 be
modified to a 104(d)(1) citation and that it be modified to reduce the number of persons affected to
“four.” In addition, the parties request that the penalty be reduced, based on the penalty points,
from $47,716 to $37,716.

Citation No. 7077237 - The parties request that this citation be modified in light of the fact that the
inspector had cited the lifeline seven days earlier, but did not cite the company for improperly
hanging the lifeline. The parties request that Citation No. 7077237 be modified to remove the
inspector’s S&S finding. The parties also propose the penalty be reduced, based on the penalty
points, from $8,209 to $1,842.

Order No. 7077238 - The parties have agreed to modify the order since it was not issued until
seven days after the initial order. Further, the violative condition had already been abated and the pre-shift report had noted that the company was in the process of correcting several conditions. The
parties propose Order No. 7077238 be modified to a 104(d)(1) order and that it be modified to
reduce the number of persons affected to “four.” The parties also request the penalty be reduced,
based on the penalty points, from $30,288 to $23,288.

Citation No. 7077240 - The parties propose this citation be modified because they have determined
that exposure to the hazard was limited to the weekly examiner. In addition, the hazard may have
occurred less than a week after the last weekly inspection. The parties propose Citation No. 7077240 be modified to reduce the degree of negligence to “low,” with a
corresponding reduction in the penalty points and a reduction in the penalty from $1,026 to $512.

Citation No. 7084495 - The parties have settled this citation in light of the fact that there was only
a small amount of dust in the area, which was not in contact with the belt or rollers; and the area
was wet. The parties request that Citation No. 7084495 be modified to remove the inspector’s S&S
finding, to reduce the likelihood of injury to “unlikely” and change the gravity of injury to “lost
workdays” and to reduce the penalty, based on the penalty points, from $4,689 to $317.

Citation No. 8006502 - The Secretary stated at hearing that MSHA the citation had been vacated
because Citation No. 8006503 was issued for the same violative condition.

Citation No. 8006503 - The parties have agreed to modify the citation since the area at issue had
been dangered off and the blockage plan provided additional protection. The primary and
alternative escape way were still available to the miners to allow them to escape safely. The parties
propose that Citation No. 8006503 be modified to reduce the gravity of injury to “permanently
disabling,” to reduce the degree of negligence to “low” and to reduce the number of miners
affected to “four.” The parties also request a corresponding reduction in the penalty, based on a
reduction in the penalty points, from $5,080 to $705.

Citation No. 8006505 - The parties request the citation be modified in light of the fact that the cited
condition occurred after the pre-shift examination and had only existed for a short time. In
addition, the charger at issue was reported to be in good condition during the last electrical
examination. The parties propose Citation No. 8006505 be modified to reduce the degree of
negligence to “low” and to reduce the gravity of injury to “permanently disabling.” The parties also
propose the penalty be reduced, based on a reduction in the penalty points, from $6,996 to $1,569.

Citation No. 8006506 - The parties have settled this violation in light of the fact that there was no
one working in the area at issue and the doors referenced in the citation still provided some
separation. Further, the air leakage in the area was minimal. The parties request that Citation No. 8006506 be modified to reduce the gravity of injury to “lost workdays” and to reduce
the number of persons affected to “two.” The parties also request a penalty reduction, based on a
reduction in the penalty points, from $1,203 to $154.

Citation No. 8006581 - The parties have determined that at the time the citation was issued there
were no bad splices or hot rollers and only one belt cleaner would have been exposed to the hazard.
As a result, the parties propose Citation No. 8006581 be modified to remove the inspector’s S&S
finding, to reduce the likelihood of injury to “unlikely” and to reduce the degree of negligence to
“low.” The parties also request a corresponding reduction in the penalty, based on a reduction in
the penalty points, from $3,996 to $403.

Citation No. 8006582- The parties have agreed to modify this citation since the cited condition
only existed for a short period of time, the belt structure was not hot, there were no ribbons on bad
rollers, only one belt cleaner was affected, there was a carbon monoxide monitoring system in
place and the condition likely only existed since the last pre-shift. The parties request that
Citation No. 8006582 be modified to reduce the degree of negligence to “low” and reduce the gravity of injury to “permanently disabling.” The parties propose a reduction in the penalty, based
on a reduction in the penalty points, from $2,678 to $601.

SETTLEMENT

PENN-2009-41

CITATION/

ORDER NO.

30 C.F.R.

ASSESSMENT

SETTLEMENT

8006587

75.364(a)(2)(iii)

$2,106.00

$2,106.00

Subtotal

$2,106.00

$2,106.00

PENN-2009-42

CITATION/

ORDER NO.

30 C.F.R.

ASSESSMENT

SETTLEMENT

7021323

77.502

$2,106.00

$ 1,052.00

7021327

77.1110

$ 946.00

$ 946.00

7021425

77.509(c)

$ 634.00

$ 142.00

7021427

77.516

$ 2,106.00

$ 473.00

7070999

75.517

$ 2,282.00

$ 1,140.00

7071000

75.400

$ 8,209.00

$ 6,209.00

7077230

75.380(d)(2)

$ 1,657.00

$ 167.00

7077231

75.1725(a)

$ 3,689.00

$ 3,689.00

7077232

75.400

$47,716.00

$37,716.00   

7077237

75.380(d)(7)(iv)

$ 8,209.00

$ 1,842.00

7077238 

75.363(a)

$30,288.00

$23,288.00

7077240

75.202(a)

$ 1,026.00

$ 512.00

7084495

75.400

$ 4, 689.00

$ 317.00

8006502

75.380(h)

$ 1,657.00

Vacated

8006503

75.380(f)(1)

$ 5,080.00

$ 705.00

8006505

75.340(a)(1)(i)

$ 6,996.00

$ 1,569.00

8006506 

75.333(c)

$ 1,203.00

$ 154.00

8006581

75.400 

$ 3,996.00

$ 403.00

8006582

75.1725(a)

$ 2,678.00

$ 601.00

Subtotal

$135,167.00

$80,925.00

TOTAL

$137,273.00

$83,031.00

ORDER

WHEREFORE, the proposed settlement is GRANTED.

It is ORDERED that Citation No. 7021323 be MODIFIED to reduce the degree of negligence to
“low.”

It is ORDERED that Citation No. 7021425 be MODIFIED to remove the inspector’s significant
and substantial (“S&S”) finding.

It is ORDERED that Citation No. 7021427 be MODIFIED to remove the inspector’s S&S
finding.

It is ORDERED that Citation No. 7070999 be MODIFIED to reduce the degree of negligence to
“low.”

It is ORDERED that Citation No. 7071000 be MODIFIED to reduce the number of persons
affected to “five.”

It is ORDERED that Citation No. 7077230 be MODIFIED to reduce the gravity of injury to
“permanently disabling,” to reduce the degree of negligence to “low” and to reduce the number of
persons affected to “five.”

It is ORDERED that Order No. 7077232 be MODIFIED to a 104(d)(1) citation and that it be
modified to reduce the number of persons affected to “four.”

It is ORDERED that Citation No. 7077237 be MODIFIED to remove the inspector’s S&S
finding.

It is ORDERED that Order No. 7077238 be MODIFIED to a 104(d)(1) order and that it be
modified to reduce the number of persons affected to “four.”

It is ORDERED that Citation No. 7077240 be MODIFIED to reduce the degree of negligence to
“low.”

It is ORDERED that Citation No. 7084495 be MODIFIED to remove the inpector’s S&S
finding, to reduce the likelihood of injury to “unlikely” and to reduce the gravity of injury to “lost workdays.”

It is ORDERED that Citation No. 8006503 be MODIFIED to reduce the gravity of injury to
“permanently disabling,” to reduce the degree of negligence to “low” and to reduce the number of
miners affected to “four.”

It is ORDERED that Citation No. 8006505 be MODIFIED to reduce the degree of negligence to
“low” and to reduce the gravity of injury to “permanently disabling.”

It is ORDERED that Citation No. 8006506 be MODIFIED to reduce the gravity of injury to
“lost workdays” and to reduce the number of persons affected to “two.”

It is ORDERED that Citation No. 8006581 be MODIFIED to remove the inspector’s S&S
finding, to reduce the likelihood of injury to “unlikely” and reduce the degree of negligence to
“low.”

It is ORDERED that Citation No. 8006582 be MODIFIED to reduce the degree of negligence to
“low” and to reduce the gravity of injury to “permanently disabling.”

Within 30 days of the date of this decision, Emerald IS ORDERED to pay civil penalties totaling
$127,531.00 for the violations found above.

This decision resolves all outstanding issues with regard to Docket Nos. PENN 2009-41 and
PENN 2009-42.

Upon payment of the penalties these proceedings ARE DISMISSED.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

Distribution:

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

/ca