Target Industries, Inc.
Target Industries, Inc. (FMSHRC PENN 98-104): Multiple fan violations affirmed and penalties assessed
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Target Industries operated the Target No. 1 Mine, where MSHA cited ventilation and fan conditions across six consolidated dockets. Judge David Barbour found multiple violations involving fan signals, testing, continuous operation, methane ventilation, and withdrawal of miners, and found several violations significant and substantial and unwarrantable. He assessed penalties against Target Industries and individual agents Phillip K. Peterson and Gregory L. Golden, while approving settlements for three other violations. The order assessed $600 in PENN 97-170, $1,050 in PENN 97-190, $3,700 in PENN 97-194, $3,000 in PENN 98-8, $300 against Peterson, and $1,000 against Golden. The Commission later reviewed this consolidated decision.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 75.310(a)(3), 75.311(a), 75.311(d), 75.312(a), 75.312(c), 75.313(c)(1), 75.361(a), 75.370(a)(1), and 75.400
- Outcome: The judge assessed penalties across six consolidated dockets and approved settlements for three violations.
- Subsequent review: The Commission later reviewed the consolidated decision in penn-97-170-commission.
- Key point: Ventilation failures that leave miners underground while a methane-producing mine lacks a functioning main fan can support S&S and unwarrantable-failure findings.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 23, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 97-170
Petitioner : A. C. No. 36-06873-03656
v. :
: Docket No. PENN 97-190
TARGET INDUSTRIES, INC., : A. C. No. 36-06873-03657
Respondent :
: Docket No. PENN 97-194
: A. C. No. 36-06873-03658
:
: Docket No. PENN 98-8
: A. C. No. 36-06873-03660
:
: Target No. 1 Mine
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 98-98
Petitioner : A. C. No. 36-06873-03664 A
v. :
: Target No. 1 Mine
PHILLIP K. PETERSON, :
employed by :
TARGET INDUSTRIES, INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MHSA) : Docket No. PENN 98-104
Petitioner : A. C. No. 36-06873-03665 A
v. :
: Target No. 1 Mine
GREGORY L. GOLDEN, :
employed by :
TARGET INDUSTRIES, INC., :
Respondent :
DECISION
Appearances: Richard T. Buchanan, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania
for Respondent.
Before: Judge Barbour
These consolidated contest and civil penalty cases arise
under sections 105(d) and 110(c) of the Federal Miner Safety
and Health Act of 1977 (30 U.S.C. §§ 815(c), 820(c)) (Mine Act
or Act). The Secretary of Labor (Secretary) on behalf of her
Mine Safety and Health Administration (MSHA) seeks the
assessment of civil penalties against Target Industries, Inc.
(Target or the company), Phillip K. Peterson, and Gregory L.
Golden for violations of mandatory safety standards that
allegedly occurred at Target's No. 1 Mine. In addition, the
Secretary alleges certain of the violations were significant
and substantial contributions to mine safety hazards (S&S),
were the result of the company's unwarrantable failure to
comply, and were the result of "knowing" actions by the
individuals.
The company and the individuals respond by challenging
the legal and factual basis of the Secretary's allegations.
They also argue that even if the violations occurred, the
penalties proposed by the Secretary are excessive.
The matters were consolidated for hearing and decision,
and the cases were tried in Morgantown, West Virginia. At the
hearing, counsels advised me that three of the contested
violations had been settled (see Tr. 21). The settlements
were read into the record (Tr. 412-421). I will approve them
at the end of the decision. Subsequent to the hearing
counsels submitted very helpful briefs.
THE ISSUES
The issues are the existence of the violations, their
S&S and unwarrantable natures, whether Peterson and Golden
knowingly violated the cited standards, and the amounts of any
civil penalties that must be assessed against the company and
the individuals, taking into consideration the statutory civil
penalty criteria set forth in section 110(i) of the Act (30
U.S.C. §820(i)).
STIPULATIONS
At the hearing and on brief the parties stipulated as
follows:
1. The Target No. 1 Mine is owned and
operated by Target Industries, Inc.
2. Target is subject to the jurisdiction
of the Mine Act, and the Commission has
jurisdiction over the proceedings.
3. Target is a corporation chartered
under the laws of the Commonwealth of
Pennsylvania.
4. The subject citations and orders
were properly served by a duly authorized
representative of the Secretary upon an agent
of Target at the date, time, and place stated
therein, and may be admitted into evidence
for the purpose of establishing their
issuance, but not for the truthfulness or
relevancy of any statements asserted therein.
5. The documents offered as evidence
are authentic, but the parties do not agree
as to their relevance, or to the truth of the
matters asserted therein.
6. The applicable history of previous
violations of Target is reflected in
Government Exhibit 32 .
7. The allegations of Citations No.
7013512 and No. 7013513 are at issue only if
the No. 2 and the No. 3 fans are found to be
"main mine fans" as that term is used in 30
C.F.R. Part 75.
8. Should the Judge find either Phillip
Peterson or Gregory Golden liable under
section 110(c) of the Act, they will be able
to pay the penalties assessed by the
Secretary provided the payments are made in
installments over a period of time (See Tr.
17; Sec. Br. 2-3; Additional Stipulations of
the Parties 1-2).
THE CENTRAL CONTROVERSY
The central controversy involves two bleeder fans at
the mine, the No. 2 fan and the No. 3 fan .[1] The
fundamental question is whether the fans were "main mine
fans" as that term is used in Subpart B of 30 C.F.R. Part
75 (Mandatory Safety Standards - Underground Coal Mines).
THE MINE AND ITS VENTILATION SYSTEM
The Target No. 1 Mine is an underground bituminous coal
mine, located in Greene County, Pennsylvania. At the mine,
the extraction of coal is conducted using the room and pillar
method. Continuous mining machines drive the entries and
remove the coal. Then, the coal is transported to the surface.
The mine is ventilated by three surface fans, the largest
of which is the No. 1 fan. The No. 1 fan exhausts air from the
active workings via the return entries. On the mine map (Gov.
Exh. 25) the No. 1 fan bears the designation "main mine
fan". The No. 1 fan has the capacity to pull approximately
120,000 cubic feet of air per minute (cfm). The air travels up
and through a borehole and out of the mine (Tr. 187). The
diameter of the borehole is approximately 89 inches (Tr. 116).
The mine also is ventilated by the two bleeder fans. The
No. 2 fan and the No. 3 fan exhaust air from the bleeder
entries and the gob. On the mine map the No. 2 fan bears the
designation "Ventilation Borehole #2" (Gov. Exh. 25). It
ventilates the three-left gob (Tr. 32, 39). It pulls
approximately 4,000 to 5,000 cfm of air. The air travels
through the bleeder entries, over the gob, up a borehole, and
out of the mine. The diameter of the borehole is
approximately 12 inches (Tr. 111, 116).
On the mine map the No. 3 fan bears the designation
"Ventilation Borehole #3" (Gov. Exh. 25). The fan ventilates
the four-left gob (Tr. 32). It pulls approximately the same
quantity of air as the No. 2 fan through the bleeder entries,
over the gob, and up a similarly bore hole (Tr. 111, 116).[2]
All of the fans are equipped with pressure charts (also
known as pressure gauges). he charts record the operation,
or the lack of operation, of the fans over seven consecutive
days by constantly recording the pressure of the air the fans
are pulling (Tr. 44). If a fan ceases to function, its chart
indicates that no pressure is being produced. Likewise, if a
fan slows and draws less air, its chart records a diminution
of pressure.
At the time the subject violations were issued, between
35 and 38 persons were employed at the mine (Tr. 387). As a
general rule, they worked on three shifts - two production
shifts and one maintenance shift. Thus miners usually were
underground around-the-clock. The entire mine was inspected
by MSHA once every three months (Tr. 104).
THE INSPECTIONS OF MARCH 3 AND MARCH 4, 1997
Ronald Hixson is a MSHA inspector and ventilation
specialist. He is assigned to MSHA's Rough Creek Field Office.
The office is located in southwestern Pennsylvania and is
responsible for the administration of the Mine Act in the
region. Hixson has worked in the office since 1989. He has
been a ventilation specialist since 1993. (Tr. 23-24). As a
ventilation specialist, he reviews and investigates new
ventilation plans, existing plans submitted for reapproval,
and addendums to existing plans. The plans are submitted to
MSHA by mine operators (Tr. 24).[3]
In early 1977, the Target No. 1 Mine was operating under
a MSHA approved ventilation plan when Target proposed moving a
bleeder evaluation point (BEP). (Tr. 304-305; Gov. Exh. 22)[4]
The move required Target to amend its plan, and on March 3,
Hixson went to the mine to evaluate the proposal (Tr. 41).
Upon arriving at the mine, Hixson met Phillip Peterson.
Peterson had worked at the mine since March 1996. Prior to
that, he owned his own surveying company. Peterson was
responsible for drafting the mine's ventilation plan and its
addenda and for submitting the proposals to MSHA. Peterson had
a thorough understanding of the mine's ventilation system
(Tr. 304).
Peterson also had another responsibility. In 1996,
Peterson was told to conduct daily examinations of the No. 2
and No. 3 bleeder fans (Tr. 305-307). A mine foreman told
Peterson to examine the fans after the foreman spoke with a
state mine inspector and after the state inspector advised
the foreman the fans had to be examined daily. Because the
foreman's directive followed the conversation with the state
inspector, Peterson testified he understood the examinations
had to be made in compliance with state, rather than with
federal requirements (Tr. 306, 311-313).
After meeting Peterson, Hixson explained why he was at
the mine and told Peterson that he (Hixson) needed to take
air readings underground at the four-left gob and on the
surface at the No. 3 fan (Tr. 41). The men decided to visit
the surface installation first, and they drove Peterson's
Jeep to the fan.
The fan was located in a fan house - a metal building
measuring approximately 10 feet by 10 feet. The fan house
was surrounded by a locked fence. As Hixson and Peterson
stopped at the fan house, Hixson could not hear the fan
(Tr. 42). A production crew was underground. The crew had
entered the mine around 7:00 a.m. (Tr. 310).
The men got out of the Jeep, and Peterson unlocked the
gate. Hixson and Peterson went into the fan house and found
that the fan was not operating. Peterson restarted it by
pressing the fan's restart buttons. Meanwhile, Hixson looked
at the fan's pressure chart (Tr. 42-43; Gov. Exh. 26). Hixson
saw that at approximately 2:00 p.m., on Thursday, February 27,
the fan began to record "no pressure", and that it continued
to record a lack of pressure until Peterson restarted the
fan on March 3 (Tr. 41-45; Gov. Exh. 26). (An indication of
"no pressure" meant that the fan was not operating.)
Hixson knew that Peterson was supposed to examine the
fan on a daily basis. Therefore, Hixson asked Peterson if he
had conducted an examination of the fan on February 28, the
first full day the fan would have had to be examined after it
shut down (Tr. 46-47). According to Hixson, Peterson replied
that he did not have a key to the fan house gate on February 28,
but that he had seen and heard indications from outside the
gate that the fan was running (Tr. 47-48).
Hixson also knew that Target had contracted with an
off-site security firm, Commonwealth Security Company
(Commonwealth), to maintain an alarm system to monitor the
mine's fans. When a fan's pressure gauge showed a significant
drop in air pressure, the firm received a signal from the fan.
Commonwealth then was supposed immediately to contact the mine,
which meant that a Commonwealth representative usually called
either Junior Golden, the company's president, or Gregory
Golden, its maintenance foreman, to report the problem (Tr.
48-49, 76-77). This system of reporting fan slowdowns and
outages was accepted by MSHA while Target was in the process
of installing a direct line from the fans to the mine office
in order to provide an immediate signal to the office when the
fans slowed or stopped (Tr. 89-90, 189, 194, 224).[5]
Because Hixson was aware of the procedures involving
Commonwealth, he asked Peterson if the company had received
an indication from Commonwealth that the No. 3 fan had stopped,
and Peterson told him that it had not (Tr. 49).
Hixson and Peterson then left the fan house and traveled
back to the mine office, where Hixson reviewed the mine
examination books (Tr. 49). In particular, Hixson looked at a
book entitled Daily and Monthly Examination of Ventilation
Equipment (Gov. Exh. 15; Tr. 119). Hixson noted that on
February 28, at 6:40 a.m., Peterson signed the book and
recorded the pressure gauge at the No. 3 fan as registering
8.6 inches (Tr. 52-53; Gov. Exh. 15 at 3). Hixson was
surprised, since he had read the gauge as registering zero
not 8.6 inches, and since a reading of 8.6 inches indicated
the fan was in fact operating.
Hixson left the mine and returned to his office, where
he discussed the situation involving Peterson and the fan
with his supervisor. Hixson returned to the mine the next
day, March 4, accompanied by his supervisor and by MSHA
electrical inspector, Gene Kelly. The men wanted to
investigate further the status of the No. 3 fan (Tr. 65). To
do so, they intended to test the Target/Commonwealth signal
system. They also wanted to speak again with Peterson.
Upon arriving at the mine, Hixson met Peterson and the
men traveled to the No. 3 fan. They entered the fan house,
and they pulled the lines from the pressure gauge to the fan
chart. When the lines were pulled, the air pressure fell to
zero, and a signal was sent immediately to Commonwealth. In
turn, Commonwealth called the mine office and reported the
No. 3 fan had sent a signal indicating it was "down" (Tr. 66).
Peterson and Hixson went back to the office, and
Hixson again reviewed the ventilation equipment examination
books. He repeated his questions to Peterson about whether
Peterson had examined the No. 3 fan on February 28, and this
time Peterson told Hixson "he did not want to lie", that
actually he had not made the examination on February 28, even
though he indicated in the examination book that he had
(Tr. 67). He meant to do the examination, but he "just forgot"
(Tr. 314). He entered 8.6 inches of pressure in the book
because that was the pressure the chart usually recorded. He
feared if he did not make an entry in the book, he would "get
in trouble" (Tr. 313, see also Tr. 315).
Meanwhile, Kelly who also looked at the examination
books, found that Peterson had not conducted an examination
of the No. 2 fan on February 28, March 1, or March 2, 1997.
He based his finding upon the fact the examination book for
the No. 2 fan was blank for those dates (Tr. 70-71).
As a result of the inspections on March 3 and March 4,
and the discussions with Peterson, Hixson and Kelly issued
several citations and an order to Target, charging the
company with various violations of the standards relating to
main mine fans.
THE EVENTS OF APRIL 7, APRIL 8, AND APRIL 9, 1997
Due to the events in March, Target and Commonwealth
agreed in writing to certain additional procedures to be
followed when Commonwealth received a signal that a fan at
the mine had slowed or stopped. The agreement stated that
fan failure signals were not to be disregarded, that when
Commonwealth received a signal it would find and notify the
mine site. If it could not reach anyone at the mine, it would
notify Gregory Golden. If it could not reach Gregory Golden,
it would find and notify Junior Golden (Gov. Exh. 23). MSHA
did not consider the agreement to be part of the mine
ventilation plan, but MSHA accepted the agreement until such
time as Target completed work on fully complying with
section 75.310(a)(3) (Tr. 194).
In addition to the agreement, Target, through Gregory
Golden, hired several new employees to monitor the fans'
operations. The new miners were stationed around-the-clock
at the No. 2 and No. 3 fans (Tr. 322-323). One of the employees
was Donte Soucy, who described his job as "check[ing]
periodically and listen[ing] consistently . . . [to] the [No.
3] fan" (Tr. 237). He worked from 3:00 p.m. to 11:00 p.m.
According to Gregory Golden, if the fan ceased to operate
Soucy's responsibility was to restart it. If he was
unsuccessful, Soucy was to call Gregory Golden's office at the
mine to tell Golden, or someone else, that the fan was not
operating (Tr. 401).
On April 7, 1997, Soucy was at the No. 3 fan when he
heard it slow down. Soucy tried to determine what was wrong,
but the fan "picked back up" and resumed working properly
(Tr. 235). Then, at 9:40 p.m., the fan completely stopped.
Soucy could not restart it. Soucy claimed that he tried to
call the mine office several times to report that the fan was
"down", but he was unable to get through. He also claimed
that while the fan was stopped no one called him (Tr. 236).
The Secretary offered into evidence the logs and a
transcript of the conversations between the Commonwealth
representative and the Goldens regarding the No. 3 fan. They
revealed that at 9:45 p.m., the Commonwealth representative
called Gregory Golden, reported the fan was down and told
Golden that she (the representative) would try to restart it
(Id., Gov. Exh. 18 at 29-1, Tr. 169, 173). At 9:47 p.m., the
representative called Junior Golden and notified him about the
fan about the fact that she had called Gregory (Gov. Exh. 17 at
21-32, Gov. Exh. 18 at 29-2; Tr. 169-170, 172-175). The
representative asked Junior Golden if he wanted to be called
back when the fan was restarted, and he responded "No, call
Greg" (Gov. Exh. 18 at 29-2 ). At 10:35 p.m. the representative
again called Gregory Golden to report the fan had not been
restarted. At 10:51 p.m., the representative made a final call
to Gregory Golden stating that she could not restart the fan.
She added, "Someone there needs to check the fan to make sure
there is not some kind of equipment malfunction with the fan",
and Gregory Golden replied, "Okay. I'll have somebody up
there in the morning" (Gov. Exh. 18 at 29-3 - 29-4; Tr. 173-174).
Immediately after the representative first notified
Gregory Golden, Gregory Golden called Junior Golden to tell
him the fan was not working. Gregory Golden maintained that
Junior Golden told him to "take care of it. To take care of
the call" (Tr. 164). Junior Golden, claimed he told his son
more, that he also told Gregory if he could not contact the
mine, he should go to the mine (Tr. 295-98, 391, 394). Gregory
Golden believed that it would have taken him 30 to 40 minutes
to reach the mine from his home (Tr. 402).
There were three separate telephone lines into the mine
office and a separate line to each of the borehole fans.
Gregory Golden testified that he tried to call the mine office
on all three of its telephone lines. In addition, he tried to c
all his cellular telephone, which he had left at the mine. One
line was busy. No one answered the other lines (Tr. 399-400,
407-408). He also maintained that he tried to call the No. 3
fan, that the telephone rang, and that no one answered (Tr.
400, 405, 408).
Gregory Golden understood that if miners were working
underground when a main mine fan shut down, they had be
withdrawn from the mine beginning at least 15 minutes after
the fan shut down. He further understood that he was
responsible for insuring the miners were withdrawn, and that
he was responsible for notifying the mine if the fan shut down
(Tr. 406-407). Despite this, Gregory Golden did not travel to
the mine when he could not reach anyone by telephone (Tr. 408).
When asked why he did not go to the mine, he testified "I hired
. . . [Donte Soucy] to be there to watch the fans and report
to the mine site or to call me if something happened to it"
and "I assumed that the fan was running, that . . . [Soucy]
was there and everything was all right" (Tr. 400-410, 409).
When the fan shut down at 9:40 p.m. on April 7, a
production crew was working underground. It would have taken
between 30 and 45 minutes for all of the miners to leave the
mine. If the crew had left within 15 minutes of the fan
ceasing to function, it would have been out of the mine before
its normal quitting time. As it was, the crew left at it its
normal time and therefore was underground for slightly more
than an hour while the fan was not running (Tr. 163-163, 177,
410). Gregory Golden knew that the crew was in the mine.
He also knew that another shift was scheduled to enter the mine
at 11:00 p.m. (Tr. 410).
On April 8, MSHA Inspector Dickie traveled to the mine
to check on Target's progress in developing information about
the mine's fans, information that would be incorporated into
the mine's ventilation plan (Tr. 154, see also Tr. 155). When
Dickie reached the mine office he spoke with Peterson who told
him the mine telephone system was out of order due to a
transformer problem (Tr. 155). State mine inspector Larry
Miller also was in the office. Miller told Dickie that when
he, Miller, arrived at the mine at approximately 7:30 a.m.
that morning, all of the miners were above ground because the
No. 3 fan was not operating (Tr. 156).
Dickie then looked at the mine fan examination book and
saw a notation indicating the No. 3 fan was "down" (Tr. 158;
Gov. Exh. 27 at 32). Subsequently, Dickie also looked at the
fan's pressure chart (Gov. Exh. 13). The chart revealed that
around 7:30 p.m. on Monday, April 7, the fan went off, then
came back on. Later that evening it stopped for good (Tr.
161-162).
Dickie spoke with Carl Betchey, the foreman of the crew
that was underground when the fan ceased operating (Tr. 163).
Betchey told Dickie that the miners had come out of the mine
at 10:50 p.m. (Tr. 163). This was the time the second shift
crew normally left the mine.
Dickie also spoke with Gregory Golden. Dickie asked him
what he had done as a result of the calls from Commonwealth,
and Gregory Golden replied, "I didn't do anything" (Tr. 165).
Dickie then asked Gregory Golden if he notified anyone at the
mine that the fan was off or that the fan had a problem and
needed to be checked, and Gregory Golden replied that he had
not. Finally, he asked Gregory Golden if he "traveled to the
mine to find out for [himself] if there was a problem with
the fan", and Golden stated he did not (Id.; see also Tr. 166).
On April 9, Dickie returned to the mine where he spoke
with Junior Golden about management's response to the shut
down of the No. 3 fan. According to Dickie, Junior Golden
told him that he, Golden, was "tired of people not doing what
they were supposed to do" (Tr. 181). Dickie asked Golden if
he was referring to anyone in particular, and Golden said he
was referring to Gregory Golden (Id.). No one else was
present during this conversation (Tr. 182), and at the hearing
Junior Golden denied he stated that he was referring to his
son. Rather, he was indicating his unhappiness with the new
employees whom Target hired to monitor the operating status
of the borehole fans (Tr. 391-392).
WERE THE NO. 2 FAN AND THE NO. 3 FAN "MAIN MINE FANS"
A definition of the term "main mine fan" is found neither
in the Act nor in the regulations, even though sections
75.310, 75.311, 75.312, and 5.313 apply only to such fans
and even though the regulations repeatedly use the term.
Lacking a statutory or a regulatory definition, I must consider
whether the Secretary elsewhere has set forth and made
available to operators what she believes the term to mean
and/or whether the meaning of the term is clear from the
context within which it is used.
The Secretary's Program Policy Manual (PPM) is a
publication authored by the Secretary to explain to miners,
operators, and the interested public the Secretary's
interpretation and application of her regulations. Like the
Act and the regulations, the PPM lacks a definition or
explanation of the term "main mine fan" (see V PPM Part 75
at 33-34). However, the PPM is not the sole repository of
the Secretary's interpretations. MSHA makes available other
publications that explain how the agency views her regulations
(see e.g. Department of Labor: MSHA MSHA'S Equipment Guide
for Metal and Nonmetal Mining (1992)).
Denis Swentosky, an MSHA ventilation supervisor,
identified a passage from a booklet entitled Ventilation [--]
Questions and Answers (Tr. 266-267; Gov. Exh. 20). The
booklet, in which information is presented in the form of
questions and answers, was published in 1996. It states that
on May 15, 1992, MSHA amended the s tandards for the
ventilation of underground coal mines, that prior to final
promulgation of the amended standards, training sessions in
the standards were held for MSHA's inspectors, and that
public informational meetings also were held "to introduce
the new standards to the industry and labor organizations"
(Gov. Exh. 20 at 2). The questions and answers in the
publication are described as a compilation based on the
sessions, meetings, and subsequent discussions (Id.). The
publication's purpose is described as providing "guidance
and assistance to the mining community applying the new
standards in the specific cases represented by the questions."
While the booklet states that it is "not a policy document and
cannot be enforced as such," it also states that its
"questions and answers should be considered an educational
tool and an additional source of information" (Id. at 2).
According to Swentosky the booklet was "made available to
operators of coal mines" (Tr. 298).
The booklet makes clear that the Secretary considers the
status of a "main mine fan" to be determined by the impact of
the fan on a mine's overall ventilation system. At page 6 of
the booklet, under questions regarding section 75.310, the
following exchange appears:
Q. Is a small, surface bleeder fan (i.e.,
50,000 cfm) considered
a "main mine fan"?
A. The determination of what is a main
fan depends on the impact a shutdown of
the fan would have on the overall
ventilation system. If the impact of a
shutdown on mine or section ventilation
is immediate and perceptible, the fan is
a main mine fan (Gov. Exh. 20 at 6).
The emphasis upon an "immediate and perceptible" impact
on the ine's overall ventilation system is consistent with
the purpose of the regulations, as implied from the
regulations themselves. The inescapable conclusion drawn
from Sections 75.310, 75.311, 75.312, and 75.313 is that
main mine fans serve dual and overlapping purposes. They are
the primary mechanisms which ventilate a mine, and through
that ventilation they eliminate explosive and toxic gases.
In her regulatory comments, the Secretary emphasized
these purposes. She characterized the fans regulated by
sections 75.310, 75.311, 75.312 and 75.313 as "controlling
the ventilation at the [mine] and help[ing] assure that the
miners have uncontaminated air at all times" (61 Fed. Reg.
9765 (1996)). The Secretary also spoke of them as "providing
ventilation to prevent methane accumulations and possible
explosions as well as providing miners with a healthful
working environment" (Id. at 9767). In addition, she noted
that a main mine fan "provides the pressure that causes air
to move through the mine to dilute and carry away explosive
and toxic gases, dusts and fumes" (Id. at 9769). Thus, in
the Secretary's view, a main mine fan was "critical to mine
ventilation and the prevention of methane accumulations and
possible methane explosions" (Id. at 9770), and the hazard
of such a fan stopping was that it could "result in the
existence of unventilated areas and . . . highly hazardous
methane accumulations" (Id. at 9773).
The testimony confirms the No. 2 and No. 3 fans in fact
played an important roll in "controlling the ventilation
at the [mine] and help[ed] assure that miners [had]
uncontaminated air at all times" and that they "provid[ed]
ventilation to prevent methane accumulations and possible
explosions" (61 Fed. Reg. 9765 (1996)). In other words, the
testimony confirms the No. 2 and No. 3 fans had an
"immediate and perceptible" impact on the mine's overall
ventilation system (Gov. Exh. 20 at 6).
Hixson emphasized that the fans pulled air and gases
from the bleeder entries, across the gob, and out of the
mine (Tr. 55). Without the fans, the gobs would not have
been sufficiently ventilated (Tr. 112). There would not
have been enough pressure to force sufficient air from the
mine and prevent methane from accumulating in the gobs. As
a result, the ventilation system could have reversed, and
methane could have seeped into active areas where men
worked (Tr. 114-115, 134-135).
Dickie's testimony mirrored Hixson's but was more
detailed. Dickie essentially confirmed that Hixson's
understanding of the fans' roll in the mine's overall
ventilation system was correct. Dickie persuasively described
the No. 3 fan as pulling air that traveled over the four-left
gob. In addition, because the three-left and four-left gobs
were not totally separated, he explained how some of the air
from three-left gob also was pulled over the four-left gob by
the No. 3 fan (Tr. 205, 209-211). If the No. 3 fan failed
there would be a "dead air space over . . . [the four-left]
gob" (Tr. 211). Methane and carbon dioxide could accumulate
and migrate back to the working section (Tr. 212, 215). His
testimony that the four left gob was producing approximately
eight cfm of methane per minute was not disputed (Tr. 212) nor
was his testimony that when the fan was operating the area
stayed "fairly clear" (Tr. 212). However, if the fan was not
running, the gas would build until the volume got to the
point where methane would migrate toward the bleeder entries
and, if the stoppings had cracks, or the floor heaved, or if
man doors were left open, the methane could travel to the
working sections (Tr. 212, 215).
Further, John Urosek, chief of the ventilation division
of MSHA's Safety and Health Technologies Center, amplified on
what could happen if the fans failed in that methane which
accumulated in the gob areas could be ignited by various
potential ignition sources (Tr. 353-354). Any resulting
explosion could damage the ventilation controls, and
potentially lethal gases could endanger all of those in the
active working sections (Tr. 354-355, 358-359, see also Tr.
361).[6]
Based upon this testimony, I am persuaded the No. 2 and
No. 3 fans were "main mine fans". Because they had an
immediate and perceptible impact on the mine's overall
ventilation system they were subject to the main mine fan
regulations.
NOTICE
Target contends that if this was so, the subject citations
and orders nevertheless should be vacated because the company
was deprived of adequate notice of the meaning of term (Tar.
Br. 18-21). According to Target, it was not until March 3 and
4, 1997, the dates when the first of the subject citations and
orders were issued, that MSHA viewed the fans as main mine fans.
Prior to that, MSHA inspectors did not serve Target with any
citations or orders for violations of the main mine fan
regulations. Target especially notes that although Swentosky
visited the mine on June 21, 1996, and although the No. 2 fan
and the No. 3 fan then did not comply in several ways with the
regulations governing main mine fans, Swentosky did not cite
the fans (Tar. Br. 19-20). Target asserts that "[t]he only
conclusion that can be drawn from this is that MSHA did not
consider the fans to be main mine fans" and that "[a] reasonably
prudent person would not have believe, after . . . Swentosky's
visit[,] . . . that MSHA considered the fans as main mine
fans" (Id. 20).
I disagree. In my view, a reasonably prudent person
familiar with the mining industry and with the ventilation
system at the mine would have known from the Secretary's
regulatory comments and from the purpose of the main mine fan
regulations, that the fans were subject to the sections 75.310
through 75.313.
Moreover, and contrary to Target's assertion, the record
supports the conclusion that MSHA advised Target that MSHA
considered the fans to be main mine fans. I credit Swentosky's
testimony that around April 1996, he spoke over the telephone
with Junior Golden about MSHA's requirements for the No. 2 and
No. 3 fans and told Junior Golden that the fans would have to
meet the main mine fan requirements mandating the installation
of explosion and automatic closing doors and requiring a 15
feet offset (Tr. 260).[7] Further, I credit his testimony
that on June 21, 1996, he followed up on the conversations by
going to the mine and by speaking with Junior Golden. The two
discussed work Golden had started to install an explosion door
for one of the fans and whether there was enough room to offset
a fan from the mine opening by at least 15 feet (Tr.264, see
also Tr. 285-286). Swentosky testified that during this visit
he also told Junior Golden that the fans were main mine
fans (Tr. 392). Junior Golden could not recall the latter
conversation, but he did not deny that it occurred, and
since the purpose of Swentosky's visit was to check on
specific things that are required for main mine fans,
Swentosky's recollection of what he told Golden rings true.
It is a fact that at the time of Swentosky's visit, the
fans were not in compliance with many of the main mine fan
requirements and that Swentosky issued no citations (See Tr.
271). When asked why, Swentosky stated that Junior Golden
complained the previous owner of the mine had not been made
to comply with the requirements and that Golden took exception
to Target being made "suddenly" to "upgrade the fans" (Tr.
287). Swentosky candidly testified he believed Golden had a
"legitimate beef" and that MSHA decided to work with Golden
to, in effect, "phase in" compliance with the regulations
(Tr. 287).
The problem is that the Act and the regulations do not
provide for a gradual approach to compliance with egard to
sections 75.310 through 75. 313. If there are violations of
the regulations, either MSHA must cite the operator, or the
operator must apply for a modification of the applicable
standard or standards (30 U.S.C. §§814(a), 811(c)). This is
not to say that MSHA's decision to "go slow" on mandating
compliance was wrong. There are many considerations that
come into play when administering the Act. However, the fact
that MSHA decided to forego enforcement of the main mine fan
regulations, while not reflecting a lack of notice, may
impact on the company's negligence and hence upon any
penalties assessed should I find the company failed to comply.
CONTESTED CITATIONS
DOCKET NO. PENN 97-170
Citation No. Date 30 C.F.R. § Proposed Penalty
7013405 3/3/97 75.310(a)(3) $235
7013408 3/4/97 75.310(a)(3) $204
Citation No. 7013405 states in part:
The fan signal device installed on
the No. 3 borehole fan . . . did not
function as designed. [Commonwealth]
either did not get the required signal
that the fan was not running or failed
to communicate to the person on duty at
the mine that the fan was not operating.
This allowed men to be working
underground with the #3 borehole fan
not operating. The system installed does
not give an audible or visual signal at
the mine (Gov. Exh. 3).
The following day, the citation was modified to allege
"the system failed to give a proper signal that the fan was
not operating from [2:00 p.m.] on 2/27/97 till 3/3/97 at
[8:00 a.m.]. . . . The fan also does not have a signal
system installed that reports to a surface location at the
mine" (Gov. Exh. 3).
Citation No. 7013408 states in part:
The No. 2 borehole fan on the
surface . . . is not equipped with a
signaling device that will give a signal
at the mine when the fan either slows or
stops. The signaling device that is
currently installed is monitored at a
location away from the mine. Any signal
is received by [Commonwealth] and they
in turn phone the mine site and alert
them of the problem (Gov. Exh. 4).
The citations also allege that the violations were S&S.
Section 75.310(a)(3) requires in part that each main
mine fan shall be "[e]quipped with an automatic device that
gives a signal at the mine when the fan either slows or
stops[, and that a] responsible person designated by the
operator shall always be at a surface location at the mine
where the signal can be seen or heard while anyone is
underground." Hixson maintained he issued the citation
regarding the No. 3 fan because "the company did not get a
signal" and therefore was "not alerted to the fact that the
fan was down" (Tr. 76), and that he issued the citation
regarding the No. 2 fan because the "fan signaling system
[did] not give an alarm at the mine" (Tr. 101).
There is no dispute that each fan lacked "an automatic
device that gives a signal at the mine when the fan either
slows or stops" (section 75.310(a)(3)). Rather than an
automatic device, Target relied on Commonwealth to act as a
"middle man" by receiving the signal and by then alerting
Target officials. This system did not comply with the
mandate of the standard that each fan be equipped with a
device that gives a signal "at the mine". Therefore, I find
that in each instance Target violated the standard.
A violation is significant and substantial, if based on
the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature (Arch of Kentucky, 20 FMSHRC 1321, 1329 (December 18,
1998); Cyprus Emerald Resources, Inc., 20 FMSHRC 790, 816
(August 1998); National Gypsum Co., 3 FMSHRC 822, 825 (April
1981)). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission held that in order to establish a S&S violation
of a mandatory standard the Secretary must prove: (1) the
existence of an underlying violation; (2) a discrete safety
hazard - that is, a measure of danger to safety contributed
to by the violations; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a
reasonable likelihood the injury in question will be of a
reasonable serious nature.
I conclude both violations posed a safety hazard that
was reasonably likely to result in injuries or death. First,
there are few situations in mining more potentially
dangerous than those which can develop if a main mine fan
slows or stops. As the Secretary's witnesses repeatedly
explained, in a mine that liberates methane, the gas can
begin to build as soon as the fan malfunctions and an
explosion and fire can result. Indeed, the need to protect
miners from the hazard is the driving force behind the main
mine fan regulations. ("The main mine fans serve a vital
role in providing ventilation to prevent methane
accumulations and possible explosions" (61 Fed. Reg 9767
(1996).)
Without a signal to the mine, there is a greatly
diminished possibility a person in authority at the mine will
know if a main mine fan is defective and will take corrective
action, including ordering miners to leave if the fan cannot
timely be repaired. In fact, the circumstances surrounding
Citation No. 7013405 exemplify the hazard inherent in these
violations. The No. 3 fan was off, yet miners repeatedly
were underground between February 27 and March 3, despite
the fact the mine was liberating approximately 55,000 cfm of
methane and was without the capacity fully to exhaust the
accumulating methane (Tr. 133).[8] Even without defective
equipment underground that could serve as an ignition
source, methane that has built to explosive levels still
could be ignited by a roof fall or by current produced by
lightening (Tr. 353-354). I therefore conclude the
violations were S&S.
In addition, because the violations created the
possibility that an entire work crew would be injured or
killed, the violations were very serious.
Finally, I conclude that the violations were the result
of less than ordinary negligence on Target's part. The
testimony of Swentosky and Dickey makes clear that MSHA was
"going along" with the Target/Commonwealth system of
notification until such time as a signal at the mine could
be installed (Tr. 271,197). While an operator exercising
reasonable care would have been in compliance or would have
sought a modification of the standard, I believe that MSHA
made it appear to Target that the agency -- to some extent
at least -- was willing to acquiesce in the violation.
Citation No. Date 30 C.F.R. § Proposed Penalty
7013512 3/4/97 75.312(c) $50
7013513 3/4/97 75.312(c) $50
Citation No. 7013512 states "The No. 2 . . . fan was not
stopped for testing of the automatic fan signal device as
required by . . . [section] 75.312(c)", and Citation No.
7013513 alleges the No. 3 fan similarly was in violation (Gov.
Exh. 5, Gov. Exh. 6).
The citations also allege that the violations were S&S.
The parties stipulated that the facts alleged in the
violations are true and that the existence of the violations
depends upon whether the fans were "main mine fans" (Stip.
4). Having found that Fan No. 2 and Fan No. 3 were "main
mine fans", I further find the violations existed as
charged.
I also find that the violations were S&S and very
serious. The standard requires an automatic fan signal device
to be tested "[a]t least every 31 days". A functioning,
automatic signal device is a nearly certain way to alert an
operator if a main mine fan falters or fails. Testing the
device assures the operator the device is working as it
should. Without a properly working device, the chance of
repairing a defective or failed fan or of removing miners
from the hazards attending such a fan are greatly lessened.
When, as here, the mine liberates 55,000 cfm of methane a day
and the cited fans are among those removing that methane from
the mine, it is reasonably likely the failure to test the
signal devices can lead to the serious injury or death of
miners who are underground.
As with Citation No. 703450 and Citation No. 7013408, I
find that the violations were due to Target's low negligence.
The company could hardly test a system it did not have, and
it did not have the required system because MSHA chose not
to press the issue.[9]
Citation No. Date 30 C.F.R. § Proposed Penalty
7013514 3/4/97 75.312(a) $690
Citation No. 7013514 states:
The operator was unable to provide any
evidence that the daily examination had been
conducted at the No. 2 bleeder fan on
[February 28, 1997, March 1, 1997, or March
2. 1997.] Miners were working underground on
[February 28, 1997 and March 1, 1997]. A
mine examiner entered the underground
workings to conduct the preshift examination
on [March 2, 1997] without the No. 2 bleeder
fan having been examined prior to his
entrance (Gov. Exh. 10).
The citation also alleges that the violation was S&S.
Section 75. 312(a) requires in pertinent part that "each
main mine fan and its associated components. . . .shall be
examined for proper operation by a trained person designated
by the operator[,] . . . at least once each day that the fan
operates" except "when no one . . . goes underground".
Hixson, who discussed the citation with Kelly, testified
that Citation No. 7013514 was based upon an inspection of
the fan examination books at the mine. The inspection
revealed "no entry or no record" indicating the examinations
had been made (Tr. 71). Inspector Kelly inferred from this
that the examinations had not been made (Id.). Target
offered no evidence to counter the inference. Moreover, the
record is clear that on Feburary 28, March 1, and March 2,
miners were underground (See n. 8 infra). I find,
therefore, that the violation existed as charged.
In addition, I find that it was S&S. As Hixson explained,
the reason the law requires the daily examination of main
mine fans when miners are underground is "to insure that
[the fans] . . are running properly" (Tr. 71). The
ventilation "pulls . . . the bad air out [of] the entries to
the returns and to the surface and get[s] rid of it and
keeps it off the miners" (Id.). Without the examination,
the safety of miners underground cannot be assured because,
as the experience with the No. 3 fan revealed, the fan may
slow and/or stop and miners may be left underground despite
the fact that methane continues to accumulate. Serious
injury or death is reasonably likely to follow.
Further, the violation was very serious. It created the
potential for multiple fatalities in that it endangered up
to a full production crew of miners.
I also find that Target was negligent in allowing the
violation to exist because the violation was caused by the
company's failure to exercise the care required to insure
the examinations were made. I believe the company knew the
Secretary considered the fans to be main mine fans. I have
credited Swentosky's testimony concerning his April 1996
discussion with Junior Golden and his June 21, 1996 visit to
the mine. It is clear that during the discussion and visit,
the men conferred about explosion door and offset
requirements (Tr. 260-264). It is inconceivable to me that
Junior Golden did not understand that these were regulatory
requirements for main mine fans. Knowing the No. 2 fan was
a main mine fan, the company should have made sure it was
examined as required. Target delegated the duty of
examining the fans to Peterson (Tr. 51-53), but there is
nothing in the record to indicate Target took any steps to
make certain Peterson fulfilled his duty.
DOCKET NO. PENN 97-194
Citation No. Date 30 C.F.R. § Proposed Penalty
7013407 3/3/7 75.312(a) $1800
Citation No. 7013407 states in part:
The No. 3 borehole fan was examined on
Monday, March 3, 1997. At the time of the
exam the fan was found to be not running.
The pressure recording chart in the fan
building indicated the fan stopped at
approximately . . . [2:00 p.m.] on Thursday,
February 27, 1997. The No. 3 borehole fan
was not examined daily as required on
February 28, March 1, and March 2, 1997.
However, the men worked underground on those
days. Citations No. 7013403 and 7013405 were
issued in conjunction with this citation. A
proper daily exam of the fan and the pressure
recording chart would have shown the fan not
operating and the signaling device not
working (Gov. Exh. 2).
On March 4, 1997, Hixson modified the citation by adding
February 27, 1997, and March 3, 1997, as days when men worked
underground due to the cited condition (Gov. Exh. 2 at 2).
On March 5, 1997, Hixson again modified the citation to state:
The record book located on the surface at the
mine office for February 28, 1997 indicated
that the fan was operating properly at 8.6
[inches] of pressure . . . The evidence
indicated that the fan was not operating
during that time period (Gov. Exh. 2 at 3).
The citation also alleges that the violation was S&S and
the result of Target's unwarrantable failure.
Section 75.312(a) requires in part that "[E]ach main mine
fan and its associated components, including devices for
measuring or recording the ventilation pressure, shall be
examined for proper operation by a trained person designated
by the operator." Section 75.312(f)(1) requires persons making
the required examinations to certify that the examinations
have been made.
There is no doubt the violation occurred. The company
did not challenge Hixson's assertion that the fan was not
examined as required (Tr. 45; Gov. Exh. 26). I fully credit
Hixson's testimony, based on his conversation with Peterson,
that Peterson he did not examine the fan on February 28
and that the entry Peterson made in the examination book
purposefully was misleading (Tr. 67). While Peterson may
indeed have believed he would "get in trouble" if he did not
indicate he examined the fan, his fear is no excuse for
failing to comply with the standard (Tr. 313, see also Tr.
315). Indeed, his false certification of an examination, no
matter what its motivation, was as much of a violation of
section 75.312 (albeit of a different subsection of the
standard) as was his failure to conduct an examination.
I also conclude the violation was S&S and extremely
serious. As the standard states, the reason the law requires
a main mine fan to be examined daily is to assure the
electrical and mechanical reliability of the fan. Without
the examination, the fan can falter or fail and the operator
can be unaware of the defect. As a result, miners may continue
to work underground while methane builds to a hazardous level.
When, as in the case of the Target No. 1 Mine, a mine is
liberating approximately 55,000 cfm of methane every 24 hours
and the No. 3 fan is one of the instruments that draw the
methane from the mine, the failure to examine the fan is
reasonably likely to result in the serious injury or deaths of
miners who are working underground. Because proper operation
of a main mine fan is critical to the effective functioning
of the mine's ventilation system, the violation can be a
significant factor in creating the potential for a full blown
mine disaster.
The Commission has defined unwarrantable failure as
aggravated conduct constituting more than ordinary
negligence (Emery Mining Corp., 9 FMSHRC 1997, 2001 (December
1987)). The Commission also has stated that unwarrantable
failure is conduct that is characterized by reckless
disregard, intentional misconduct, indifference or a serious
lack of reasonable care (Emery, 9 FMSHRC at 2003-04; Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991)).
The Commission has identified several factors to be
considered in analyzing whether a violation resulted from
unwarrantable failure: among these are "the extensiveness of
the violation, the length of time the violative condition
has existed, the operator's efforts to eliminate the
violative condition, and whether the operator has been placed
on notice that greater efforts are necessary for compliance"
(Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February
1994)). The culpability determination required for a finding
of unwarrantable failure is similar to gross negligence or
recklessness. It is more than a "knew or should have known"
test (Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (October
1993)).
Peterson was responsible for the daily inspection of the
fans. He had been assigned the task by Target. He acted for
Target. Not only did he fail to inspect the fan on February 28,
he purposefully falsified the examination book to indicate the
examination was made. Peterson's belief that he would "get in
trouble" if he did not indicate he examined the fan suggests
Peterson knew full well the No. 3 fan had to be examined daily
(Tr. 313, see also Tr. 315), and whether or not he believed
the examinations were required by state or federal authority
is beside the point. Therefore, I find that Peterson either
purposefully failed to examine the fan or was recklessly
indifferent to his duty to do so, and I conclude that
Peterson, and through Peterson, Target, exhibited a serious
lack of reasonable care and unwarrantably failed to comply
with the standard.
In making this finding, I am mindful that the Commission
previously has considered a high degree of danger presented
by the violation as a relevant consideration when determining
the existence of unwarrantable failure (see e.g., Midwest
Material Co., 19 FMSHRC 30, 34-35 (January 1997)), and in my
view, the violation was a critical factor in subjecting
miners underground to a situation that was potentially very
hazardous.
I also believe the company was highly negligent. Peterson's
lack of action in examining the fan and his action in misleading
others by making it appear otherwise are attributable to Target.
Citation No. Date 30 C.F.R. § Proposed Penalty
7013403 3/3/7 75.311(a) $2000
Order No. 7013403 states in part:
The No. 3 borehole fan located on the
surface of Target No. 1 Mine was not
continuously operated while men were
underground. When we arrived at the [No.] 3
fan[,] the fan was not running. The pressure
recording chart showed the fan went down at
approximately 2 PM on Thursday[,] February
27, 1997. The fan was restarted by Phil
Peterson at approximately [8:00 a.m.] on
March 3, 1997. The mine operator was
instructed that due to the signal system's
failure to signal that the fan was down a fan
attendant would have to monitor the fan until
the system could be checked out and verified
to be working properly (Gov. Exh. 1).
The order originally was issued as a citation. The next
day it was modified to an order issued pursuant to section
104(d)(1) of the Act (30 U.S.C. § 814(d)(1)). As modified,
the order noted that men were working underground from the
time the fan went down until it was restarted. The order
also alleged that the violation was S&S and the result of
Target's unwarrantable failure (Gov. Exh. 1 at 2).
Section 75.311(a) requires the continuous operation of
each main mine fan, except as otherwise approved in the
ventilation plan or when the fan is being tested or when it
is being repaired underground. There is no dispute that the
No. 3 fan was not continuously perated during the periods
asserted, that its stoppage was not approved in the
ventilation plan, and that it was not being tested or
repaired. Therefore, the Secretary established the violation.
Because the fan was not operating, methane was not being
removed from the bleeder entries and from the gob as
contemplated under the mine's ventilation plan. In addition,
miners were working underground while the methane was
accumulating. On February 28, at least, the methane was
building while some of the miners were extracting coal, and
the extraction of coal involves the use of many potential
ignition sources. Moreover, even without an electrical
malfunction of mining equipment to serve as an ignition source,
accumulated methane could have been ignited by other sources
(Tr. 353-354). Given these factors, I find the violation was
reasonably likely to have result in the injury or death of
those underground. Accordingly, I find that the violation was
S&S.
Also, because of the gravity of the hazard engendered by
the violation and the number of miners endangered, I find
that the violation was very serious.
As stated, I believe Peterson understood he was supposed
to examine the fan. He was the agent to whom Target assigned
the task. He failed in this regard, and he purposefully
falsified the examination book to indicate he acted otherwise.
It is reasonable to infer that if he had made the examination,
the fact that the fan was not working would have been
detected and corrected. I therefore find the violation was
due to Peterson's reckless indifference to the requirements
of Section 75. 311(a) and to his serious lack of reasonable
care. Since Peterson was acting for Target, I conclude that
Target unwarrantably failed to comply as charged.
I also conclude that Target, through Peterson, was
highly negligent in allowing the violation.
FOOTNOTES
[1] Bleeder fans are surface fans which pull air from
the bleeder entries, over the gob, and up and out of the
mine. "Bleeder entries" are defined as "Panel entries driven
on a perimeter of a block of coal being mined and
maintained as exhaust airways to remove methane promptly from
the working faces to prevent buildup of high concentrations
either at the face or in the main intake airways" (American
Geological Institute Dictionary of Mining, Mineral, and
Related Terms 55 (2nd ed. 1997)).
[2] The mine liberates approximately 55,000 cfm of
methane every 24 hours (Tr. 133). The parties do not dispute
that air in the bleeder entries and the gobs contains methane
and that ventilation of the bleeder entries and gobs reduces
methane in the mine.
[3] Mandatory safety standard 30 C.F.R. §75.370 requires
a mine operator to develop and follow a ventilation plan
approved by the MSHA district manager.
[4] Hixson described a BEP as a point where an operator
can evaluate the direction and content of the air in a bleeder
(Tr. 40).
[5] According to MSHA Inspector James Dickie, the system
Target/Commonwealth was accepted even though the Secretary's
regulations required a signal "at the mine when the fan slowed
or stopped" (30 C.F.R. § 75.310(a)(3)). The system was allowed
to continue while Target completed technological changes at
activate a signal to the mine (Tr. 186-187). (As of the date
of the hearing, a direct signal system was not yet in place
for the No. 2 and the No. 3 fans and MSHA was still
accepting the arrangement (Tr. 192-193).)
[6] While Urosek's focused his testimony on the hazards
of methane, he noted as well that if the fans ceased, the
level of oxygen in the mine would start to decrease and carbon
dioxide would increase (Tr. 366-367).
[7] Section 75.310(a)(5) requires main mine fans to be
protected by weak walls or explosion doors, and section
75.310(a)(6) requires main mine fans to be "offset by at least
15 feet from the nearest side of the mine opening".
[8] Hixson described the miners who worked underground
while the No. 3 fan was off. On Thursday, February 27, when
the fan ceased to function, the day shift, a shift that
mined coal from 7:00 a.m. to 3:00 p.m., was in the mine.
The day shift was followed by the afternoon shift (another
production shift) which worked from 3:00 p.m. to 11:00 p.m.
Then, the midnight shift, a maintenance shift, entered the
mine, and the midnight shift worked until 7:00 a.m. on
February 28. The midnight shift was followed by the day shift
and an afternoon shift on February 28. Then, on Saturday,
March 1, a rock-dusting crew was in the mine. On Sunday,
March 2, a midnight shift entered at 11:00 p.m. and the
midnight shift stayed until the day shift entered on Monday
morning, March 3 (Tr. 62-63).
[9] Although this finding departs from the inspector's
(Gov. Exh. 6), the parties stipulated to the facts stated on
the citations, not to the inspector's evaluation of the facts.
DOCKET NO. PENN 98-8
Order No. Date 30 C.F.R. § Proposed Penalty
7074002 4/8/97 75.313(c)(1) $3,000
Order No. 7074002 states in part:
The No. 3 Bleeder Fan, which is a main
mine fan, began to experience mechanical
problems and initially shut down at
approximately 7:30 p.m. on 4/7/97. Men
were in the mine producing coal on the 4
left section . . . . Commonwealth
Security, which is contracted to monitor
the fan operation, contacted the Mine
Operator by phone, and informed him that
they received a signal that the No. 3
fan was not operational. The operator,
Junior Golden, talked to his son, Greg
Golden about the signal received by
Commonwealth . . . Discussion with Greg
[Golden] revealed that he decided not to
travel to the mine or contact anyone at
the mine to inform them of these
findings. No action was taken as a
result (Gov. Exh. 28).[[10]]
The order also alleges that the violation was S&S and the
result of Target's unwarrantable failure.
Section 75. 313(c)(1) requires that miners be withdrawn
from the mine "[i]f ventilation is not restored within 15
minutes after a main mine fan stops". On April 7, miners were
not withdrawn within 15 minutes of 9:40 p.m. In fact, the 10
miners who were underground were not withdrawn at all in
response to the fan's failure. Rather, they left the mine
because their shift ended. They left almost an hour after
they should have started to leave when ventilation was not
restored. (Tr. 162-163, 177, 410). Therefore, I find that
the violation existed as charged.
The failure to begin the withdraw the miners after 15
minutes when the No. 3 fan was not restarted, subjected the
miners to those obvious hazards attending accumulating
methane, hazards which can culminate in an explosion or
fire. The failure to withdraw the miners meant that such
consequences were reasonably likely to occur, given the
propensity of the mine to liberate methane. It can not be
argued seriously that this particular violation at this
particular mine was not S&S.
In addition, given the number of miners subjected to the
hazard and the gravity of the hazard (serious injury or
death from an explosion and/or fire) the violation was
extremely serious.
The violation also was the result of the
unwarrantable failure of Target to comply with the standard.
Gregory Golden was a foreman and an agent of Target. He was
alerted within 5 minutes after the fan ceased to function (Tr.
169). He was the person Target designated as the first to be
contacted in the event the fan shut down (Gov. Exh. 23).
Commonwealth understood this, Target understood this, and
MSHA understood this (Tr. 194, 318-319). The arrangement
was agreed to in order to prevent a repetition of the events
of February 27 through March 3, when miners had been
left underground after the fan failed. While Target hired
employees, including Soucy, to monitor the bleeder fans
around-the-clock, the Goldens, especially Gregory, bore the
ultimate responsibility to insure compliance.
I believe that Junior Golden told Gregory to go to
the mine if he could not reach anyone there by telephone
(Tr. 295-98, 391, 394). I also believe that although
Gregory Golden tried to telephone the mine about the
fan's failure, he deliberately chose not to go to the
mine when he could not get through by telephone. He
attempted to shift the responsibility to Soucy, because
Soucy was hired "to be there to watch the fans and
report to the mine site or to call . . . if something
happened to [the fan]", but, as stated, Golden, not
Soucy, was responsible (Tr. 400-401).
As a result of Gregory Golden's decision to forego
a trip to the mine, the miners remained underground after
they should otherwise have started to leave. While
Golden estimated it would have taken him 30 to 40
minutes to reach the mine from his home, even if it had
taken him 40 minutes, he would have been at the mine
before the miners left of their own accord at the end of
the shift.
Given the fact Gregory Golden knew miners were
underground when the fan failed and that he also knew
another crew of miners would enter the mine when the
present crew left, his failure to insure that miners
were exiting the mine can be attributed to his, and thus
to Target's, reckless indifference to the requirements
of the standard.
I also conclude the company, through Golden, was highly
negligent in allowing the violation to exist.
Order No. Date 30 C.F.R. § Proposed Penalty
7074003 4/9/97 75.311(d) $3,000
Order No. 7074003 states in part:
Commonwealth Security, the company which is
contracted to monitor the [b]leeder [f]ans
operation of this mine, received a signal at
approximately 7:30 P.M. on 4/7/97, that the
No. 3 Bleeder Fan, which is a main mine fan,
was not operational. At this time
Commonwealth Security contracted the Mine
Operator, by phone, and informed him that
they received the signal of the problem with
the fan.
Discussion with Greg Golden . . . revealed
that he decided not to travel to the mine or
contact anyone at the mine to inform them of
this information received from Commonwealth
Security. No action was taken as a result.
The mine operator failed to notify the [m]ine
[f]oreman at the mine, of the problem with
the fan. Men were working in the mine
producing coal at this time (Gov. Exh. 29).
The order also alleges that the violation was S&S and the
result of Target's unwarrantable failure.
Section 75.311(d), requires in part: "If an unusual
variance in the mine ventilation pressure is observed, or if
an electrical or mechanical deficiency of a main mine fan is
detected, the mine foreman or equivalent mine official
. . . shall be notified immediately, and appropriate action
or repairs shall be instituted promptly."
Dickie testified without dispute that on April 7, Carl
Betchey was acting as the mine foreman when the fan stopped
and that Betchey was not notified immediately (Tr. 183).
Further, repairs of the fan were not instituted promptly
(Tr. 184). On the basis of Dickie's uncontradicted testimony,
I find that the violation existed as charged.
The purpose of the notification requirement is, as the
standard states, that "appropriate action or repairs . . . be
instituted promptly" (30 C.F.R. §75.311(d)). The goal is to
minimize to the greatest extent possible the amount of time a
fan is malfunctioning. Failure to notify the foreman or others
means that in all likelihood timely repairs will not be
initiated. (Foremen and other mine officials are not
clairvoyant and they cannot act in response to a situation of
which they are ignorant.) In turn, this means that miners will
be subjected to rising levels of methane and the previously
discussed hazards attending such a situation.
In view of the methane liberated by this mine, in view
of the fact the fan's failure diminished the capacity of the
mine's ventilation system to remove the methane, in view of
the fact miners were working underground when the foreman
was not notified, and in view of the fact another crew
shortly was scheduled to replace those underground, I find
that the failure to notify the foreman or other equivalent
official meant that it was reasonably likely miners would
continue to work in the presence of the accumulating methane,
and that the miners were subjected to the reasonable
possibility of a mine explosion or fire. The violation was S&S.
Also, and for the same reasons as stated regarding Order
No. 7074002, the violation was extremely serious.
Further, the violation was the result of Target's
unwarrantable failure to comply with the standard. The record
does not contain the slightest indication that anyone acting
on Target's behalf tried immediately to notify Betchey or an
"equivalen mine official". While Gregory Golden testified
he attempted to telephone Soucy, Soucy certainly did not hold
a position of authority. Rather, as Dickie correctly stated,
Gregory Golden "was the person that had the information to
affect [the withdrawal of miners] . . . and he chose not todo
anything about it" (Tr 184-185). Golden's inaction was
attributable to Target. Therefore, I conclude that Target
was recklessly indifferent to its notification responsibilities
as well as to its concomitant responsibility to promptly
institute remedial measures. In making this finding, I also
have considered the high degree of danger to which Target's
lack of action subjected its miners.
Finally, I conclude that Target, through Golden, was
highly negligent in allowing the violation to exist.
SECTION 110(C) CASES
THE LAW
Section 110(c) of the Act provides for the assessment
of a civil penalty when an agent of a corporation "knowingly
[has] authorized, ordered, or carried out" a violation of a
mandatory health or safety standard (30 U.S.C. §820(c)). In
order to sustained her allegations, the Secretary must prove
that Target is a corporation, Peterson and Gregory Golden
were Target's agents, and that they "knowingly" violated the
standards.
The parties have stipulated that Target is a
Pennsylvania corporation (Stip. 3), and the record supports
the conclusion that Peterson and Golden were its agents.
Peterson acknowledged that he was responsible for "drawing
up the mine's ventilation plan and submitting . . . [the plan]
to . . . [MSHA]" (Tr. 304). He also agreed that he reviewed
the plan to assure it was in compliance with MSHA's
requirements as he understood them (Tr. 305). Further, from
the fall of 1996, he was responsible for the daily examination
of the No. 2 and No. 3 fans at the mine (Tr. 306).
Target argues that Peterson could not have been its
agent because he was "not directed to make fan examinations to
satisfy federal requirements" (Target Br. 25). I do not agree.
Rather, as the testimony shows, Peterson's function at the mine
was that which "involved a level of responsibility normally
delegated to management personnel" (Ambrosia Coal &
Construction Co., 18 FMSHRC 552, 1560 (September 1996) (quoting
U.S. Coal, Inc. 17 FMSHRC 1684, 1688 (October 1995)) Peterson's
understanding as to which authority required the examinations
is irrelevant to whether he acted at such a level.
As for Gregory Golden, who was the maintenance foreman
at the mine (Tr. 318), and who had authority to hire other
employees (Tr. 294-295), he too was an agent.
The questions then are whether the agents knowingly
ordered, authorized, or carried out violations of section
75.312(a), section 75. 313(c)(1), and section 75. 311(d).
The Commission has approved the description of
"knowingly" found in U.S. v. Sweet Briar, Inc., 92 F. Supp.
777 (W.D.S.C. 1950), wherein the court stated that the word:
does not have any meaning of bad faith or
evil purpose or of criminal intent. Its
meaning is rather that used in contract law,
where it means knowing or having reason to
know. A person has reason to know when he
has such information as would lead a person
exercising reasonable care to acquire
knowledge of the fact in question or to infer
its existence (92 F. Supp. At 780).
The Commission has found that this interpretation "is
consistent with both the statutory language and the remedial
intent of the . . . Act" (Kenny Richardson, 3 FMSHRC 8, 16
(January 1981) (aff'd on other grounds, 689 F.2d 623 (6th
Cir. 1982), cert denied, 461 U.S. 928 (1983)). The Commission
has explained:
If a person in a position to protect
employee safety and health fails to act on
the basis of information that gives him
knowledge or reason to know of the existence
of a violative condition, he has acted
knowingly and in a manner contrary to the
remedial nature of the statute (Kenny
Richardson, 3 FMSHRC at 16).
In addition, the Commission has held that to violate
section 110(c), the person's conduct must be "aggravated",
i.e., it must involve more than ordinary negligence
(Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August 1994);
Beth Energy Mines, Inc., 14 FMSHRC 1232, 1245 (August
1992)).
DOCKET NO. PENN 98-98
Order No. Date 30 C.F.R. § Assessment
7013407 3/3/97 75.312(a) $500
The Secretary alleges that Peterson knowingly violated
section 75.312(a) when he failed to examine the No. 3 fan on
February 28, March 1, and March 2. I have found that the
violation occurred. I also find that Peterson acted
knowingly. Target again argues that Peterson did not
understand the examination was required by federal regulation
(Target Br. 25), but even if this was so, ignorance of a
standard is not a valid defense. Rather, as the Secretary
correctly points out, "[T]he Secretary must prove . . .
that an individual knowingly acted, not that the individual
knowingly violated the law (Warren Steen Construction, Inc.,
14 FMSHRC 1125, 1131 (July 1992)).
For section 110(c) purposes a violative omission is
equivalent to a violative commission. Peterson did not
conduct the daily examination of the No. 3 fan as charged,
and I conclude his attempt to conceal his failure of
February 28 permits the inference that Peterson realized he
failed to act as he should (Tr. 313, see also Tr. 315).
DOCKET NO. PENN 98-104
Order No. Date 30 C.F.R. § Proposed Penalty
7074002 4/9/97 75.313(c)(1) $500
7074003 4/9/97 75.311(d) $1,000
The Secretary alleges that Gregory Golden knowingly
violated section 75.313(c)(1) when he failed to go to the
mine upon being notified by Commonwealth that the No. 3 fan
had ceased to function and that he knowingly violated section
75.311(d) when he failed to otify Betchey (or a designated
person acting for Betchey) that the No. 3 fan had ceased to
function.
I have found both violations occurred, and I conclude
that the Secretary has established that they were knowing.
Gregory Golden was alerted within 5 minutes after the fan
stopped (Tr. 169). He was the person designated the primary
official to be contacted in the event a fan shut down (Gov.
Exh. 23). I have credited the fact that Junior Golden told
his son if a fan failed he should go to the mine provided
he could not reach the mine by telephone (Tr. 295-98, 391,
394). Gregory Golden's own testimony is that he tried to
call the mine and that no one answered. Gregory Golden knew
miners were underground, yet when he could not reach the
mine he deliberately chose to stay home. He was, to paraphrase
the Commission, a person in a position to protect employee
safety who failed to act on the basis of information that
gave him reason to know of the existence of a violative
condition (see Kenny Richardson, 3 FMSHRC 8,16 (January
1981), aff'd 689 F.2d 632 (6th Cir. 1982, cert. denied, 461
U.S. 928 (1983)).
In addition, although Gregory Golden knew the fan had
stopped, he did not know if Betchey or another designated
person had been notified. Just as with the violation of
section 75.313(c)(1), I conclude the violation of section
75.311(d) was the result of Gregory Golden's deliberate
decision to stay home. Had he gone to the mine, Betchey or
someone else in authority, would have been alerted to the
condition of the fan. In the face of what he knew, Gregory
Golden knowingly violated section 75.311(d).
CIVIL PENALTY ASSESSMENTS
In assessing a civil penalties for the violations, the
Act mandates that I consider all of the criteria enumerated
in section 110(i) (30 U.S.C. §820(i)). I have made findings
regarding the gravity and negligence of the violations. I
also find that Target had an applicable history of 84
violations at its No. 1 Mine (Tr. 17; Gov. Exh. 32). The
Secretary did not characterize this previous history, but in
proposing penalties the Secretary, through her penalty point
system, indicated that she regarded the number as moderate.
Further, the Secretary indicated that Target is of a medium
size. For its part, Target does not maintain that the size
of any penalty assessment will effect its ability to continue
in business, and the parties have stipulated that Peterson
and Gregory Golden will be able to pay any penalties assessed,
provided such payments are made over time (Additional
Stipulations 2).
DOCKET NO. PENN 97-170
Citation No. Date 30 C.F.R. § Proposed Penalty
7013450 3/3/97 75.310(a)(3) $235
7013408 3/4/97 75.310(a)(3) $204
I have found the violations were very serious. I also
have found they were the result of less than ordinary
negligence on Target's part. Given these factors, the medium
size of the company, its moderate history of previous
violations, and its rapid abatement of the violations, I
conclude an assessments of $100 is appropriate for each
violation.
Citation No. Date 30 C.F.R. § Proposed Penalty
7013512 3/4/97 75.312(c) $50
7013513 3/4/97 75.312(c) $50
I have found the violations were very serious. I also
have found they were the result of less than ordinary
negligence on Target's part. Given these factors, the medium
size of the company, its moderate history of previous
violations, and its rapid abatement of the violations, I
conclude an assessment of $100 is appropriate or each
violation.
Citation No. Date 30 C.F.R. § Proposed Penalty
7013514 3/4/97 75.312(a) $690
I have found the violation was very serious. I also have
found it was due to Target's ordinary negligence. Given these
factors, the medium size of the company, its moderate history
of previous violations, and its rapid abatement of the
violation, I find an assessment of $200 is appropriate for
the violation.
FOOTNOTES
[10] In further explaining the order, Dickie testified
that on April 7, the No. 3 fan started to experience problems
at 7:30 p.m. and "went down around 9:30, 9:45 [p.m.]". The
parties stipulated that, in fact, the fan shut down at 9:40
p.m. and that at 9:45 p.m. a representative of Commonwealth
spoke with Gregory Golden (Tr. 169). Because there is no
disagreement about the fact that the fan shut down for good
at 9:40 p.m., the Secretary's motion to amend Order No.
7074002 and Order No. 7074003 (discussed below) to reflect
this fact is granted (see Sec. Br. 16 n.1)
DOCKET NO. PENN 97-194
Citation/Order No. Date 30 C.F.R. § Proposed Penalty
7013407 3/3/7 75.312(a) $1800
7013403 3/3/7 75.311(a) $2,000
I have found the violations were extremely serious. I
also have found they were due to Target's reckless
disregard of the standards. Given these factors, the medium
size of the company, its moderate history of previous
violations, and its rapid abatement of the violations, I find
an assessment of $1,500 is appropriate for each violation.
DOCKET NO. PENN 98-8
Order No. Date 30 C.F.R. § Proposed Penalty
7074002 4/8/97 75.313(c)(1) $3,000
7074003 4/9/97 75.311(d) $3,000
I have found the violations were extremely serious. I
also have found they were due to Target's reckless disregard
of the standard. Given these factors, the medium size of
the company, its moderate history of previous violations,
and its rapid abatement of the violations, I find an
assessment of $1,500 is appropriate for each violation.
DOCKET NO. PENN 98-98
Citation No. Date 30 C.F.R. § Proposed Penalty
7013407 3/3/97 75.312(a) $500
I have found the violation was extremely serious
violation and that Peterson exhibited more than ordinary
negligence in violating the standard. The violation was abated
in good faith. There is no indication that Peterson has a past
history of violating the standards. Further, the parties
agree Peterson is able to pay a civil penalty, provided
payments are ordered on a structured basis. I find that an
assessment of $300 is appropriate for the violation.
DOCKET NO. PENN 98-104
Order No. Date 30 C.F.R. § Proposed Penalty
7074002 4/9/97 75.313(c)(1) $500
7074003 4/9/97 75.311(d) $1,000
I have found that the violations were extremely serious
and that Gregory Golden exhibited more than ordinary
negligence in violating the standards. The violations were
abated in good faith. There is no indication that Gregory
Golden has a past history of violating the standards. Further,
the parties agree Golden is able to pay a civil penalty,
provided payments are ordered on a structured basis. As a
foreman at the mine, Gregory Golden's duty of care was more
than Peterson's, and I find an assessment of $500 is
appropriate for each violation.
SETTLED VIOLATIONS
DOCKET NO. PENN 97-190
Citation No. Date 30 C.F.R. § Assessment Settlement
7013386 3/7/97 75.361(a) $900 $630
7013388 3/7/97 75.370(a)(1) $600 $420
DOCKET NO. PENN 97-194
Order No. Date 30 C.F.R. § Assessment Settlement
7013384 3/7/97 75.400 $1,000 $700
These settlements were explained on the record and they are
APPROVED (Tr. 412-421).
ORDER
DOCKET NO. PENN 97-170
Citation No. Date 30 C.F.R. § Assessed Penalty
7013450 3/3/97 75.310(a)(3) $100
7013408 3/4/97 75.310(a)(3) $100
7013512 3/4/97 75.312(c) $100
7013513 3/4/97 75.312(c) $100
7013514 3/4/97 75.312(a) $200
Target IS ORDERED to pay a civil penalty of $600 within
30 days of the date of this decision.
DOCKET NO. PENN 97-190
Citation No. Date 30 C.F.R. § Settlement
7013386 3/7/97 75.361(a) $630
7013388 3/7/97 75.370(a)(1) $420
Target IS ORDERED to pay a civil penalty of $1,050 within
30 days of the date of this decision.
DOCKET NO. PENN 97-194
Citation/Order No. Date 30 C.F.R. § Assessed Penalty
7013407 3/3/7 75.312(a) $1,500
7013403 3/3/7 75.311(a) $1,500
Order No. Date 30 C.F.R. § Settlement
7013384 3/7/97 75.400 $700
Target IS ORDERED to pay a civil penalty of $3,700 within
30 days of the date of this decision.
DOCKET NO. PENN 98-8
Order No. Date 30 C.F.R. § Assessed Penalty
7074002 4/8/97 75.313(c)(1) $1,500
7074003 4/9/97 75.311(d) $1,500
Target IS ORDERED to pay a civil penalty of $3,000 within
30 days of the date of this decision.
DOCKET NO. PENN 98-98
Citation No. Date 30 C.F.R. § Assessed Penalty
7013407 3/3/97 75.312(a) $300
Peterson IS ORDERED to pay a civil penalty of $300 by
paying $75.00 on November 1, 1999; $75.00 on December 1, 2000;
$75.00 on January 2, 2000; and $75.00 on February 1, 2000.
DOCKET NO. PENN 98-104
Order No. Date 30 C.F.R. § Assessed Penalty
7074002 4/9/97 75.313(c)(1) $500
7074003 4/9/97 75.311(d) $500
Gregory Golden IS ORDERED to pay a civil penalty of $1,000
by paying $250 on November 1, 1999; $250 on December 1, 1999;
$250 on January 2, 2000; and $250 on February 1, 2000.
All payments shall be made to MSHA and upon receipt of
full payment for each case, each case will be DISMISSED.
David Barbour
Administrative Law Judge
Distribution:
Richard T. Buchanan, Esq., Office of the Solicitor, U. S.
Department of Labor, 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, Barnesboro, PA
15714 (Certified Mail)
Find out what applies today
This decision wasn't the final word: the Commission reviewed the case, and its decision is the one that controls. Ezel starts from the controlling decision and answers your specific situation under current law, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.