Secretary of Labor v. Drummond Company, Inc.

Plain-English summary

Drummond propped open a ventilation mandoor for at least 90 minutes while a loader pushed a large drainage pipe through it at the gassy Shoal Creek Mine. Judge Thomas P. McCarthy found that this use defeated the door's purpose of separating intake and return air and disrupted the longwall ventilation system. Methane could migrate toward the active face, where an energized longwall and repair work supplied possible ignition sources, so the violation was significant and substantial. The Judge reduced negligence from high to moderate because mine management was urgently repairing drainage after a roof fall, checked airflow, briefed the crew, and considered other routes, although safer methods and better precautions were available. He reduced the proposed $8,893 penalty to $2,678.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.333(h)
• Outcome: The S&S violation was affirmed, negligence was reduced from high to moderate, and a $2,678 penalty was assessed instead of $8,893.
• Key point: A ventilation door can violate the maintenance standard even when undamaged if an extended nonstandard use prevents it from continuously separating air courses.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004

Telephone No.: (202)
434-9958 / Fax No.: (202) 434-9949

SECRETARY OF
LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

DRUMMOND
COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2013-303

A.C.
No. 01-02901-314991

Mine:
Shoal Creek Mine

DECISION AND
ORDER

Appearances:               Angele
Gregory, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for Petitioner

Noelle
Holladay True, Esq., Lexington, Kentucky, and Damon J. Boiles III, Esq.,
Birmingham, AL, for Respondent

Before:
                       Judge McCarthy

I.                  
Statement of the Case

This case is before me
upon a Petition for the Assessment of Civil Penalty filed by the Secretary of
Labor (“Secretary”) under section 105(d) of the Federal Mine Safety and Health
Act of 1977 (“the Mine Act” or “the Act”), 30 U.S.C. §814(d). The parties
agreed to settle 12 of the 13 citations originally included in this docket and
filed a Joint Motion to Approve Partial Settlement.  I issued an Amended Decision
Approving Partial Settlement on August 6, 2014. Only Citation No. 4481323
remains at issue.

On August 16, 2012, MSHA
issued Citation No. 4481323 to Drummond Company, Inc. (“Drummond” or
“Respondent”) for an alleged violation of 30 C.F.R. §75.333(h).  That standard mandates
that in underground coal mines, “all ventilation controls,
including seals, shall be maintained to serve the purpose for which they were
built.” Citation No. 4481323 states:

In the I-1
Longwall Panel Entries, the mandoor between Entry #2 and #1 at Block #34 was not being used to serve the purpose for
which it was installed. At the time of the inspection the mandoor was being
held open by a piece of plastic 14” inside diameter Drisco pipe. The man door
measured 30” by 30.” The air flow was from the #2 entry (intake) to the #1
Entry Return.

The citation was designated as significant and
substantial (“S&S”) because it was reasonably likely to result in a lost-workdays
or restricted-duty injury, with 10 persons affected, as a result of Respondent’s
high negligence. P. Exh. 1.

Specifically, the
Secretary alleges that Drummond violated 75.333(h) when it propped open a man
door with a very large drainage pipe for over 90 minutes. The Secretary argues
that the mandoor was built for the purpose of ventilation control to separate intake
and return air, while allowing miners to travel between air courses. The
Secretary argues that propping open the mandoor with a large pipe in order to
transport the pipe or other large equipment contravenes the standard. P. Br. 6,
16-19.  Respondent contends that MSHA abused its discretion by issuing the
citation because the mandoor was not damaged and was maintained properly. Respondent
also disputes the S&S, gravity, and negligence designations, and the
appropriateness of the $8,893 proposed penalty. R. Br. 1-2.

A hearing was held in
Birmingham, Alabama. The parties introduced testimony and documentary evidence,
and witnesses were sequestered.[1]
The parties submitted post-hearing briefs.  For the reasons set forth below, I
affirm the S&S citation, as modified, to reduce Respondent’s negligence
from high to moderate, and assess a civil penalty of $2,678.

II.               
Stipulations

At hearing, the parties
agreed to the following stipulations:

1.      The
Respondent is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, and the Administrative Law Judge has the authority to hear this
case and issue a decision regarding this case.

2.      Drummond
Company, Inc., has an effect upon interstate commerce within the meaning of the
Federal Mine Safety and Health Act of 1977.

3.      Drummond
Company, Inc., operates Shoal Creek Mine, Mine ID No. 01-02901.

4.      Drummond
Company, Inc. is a large operator.

5.      The
proposed penalty assessments will not affect Respondent’s ability to continue
in business.

6.      The
citation at issue in this case was properly served by a duly authorized
representative of the Secretary upon an agent of the Respondent.

Jt. Ex. 1; Tr. 12-15.

III.            
Findings of Fact

On August 14, 2012, Drummond’s Shoal
Creek Mine experienced a rock fall in the #1 tailgate entry on the I-1 longwall
panel, at cross-cut 35, which impeded travel. The rock fall damaged a piece of
drainage pipe used to pump water. Tr. 322-23, 326-29.[2] Water began
to accumulate in the area.  Tr. 49-50, 56, 106-07, 335-37, 412. The pipe needed
repair, once the roof was re-supported, to maintain ventilation and prevent
flooding. Tr. 324-26, 356.

On August 16, 2012,
MSHA field office supervisor, Edward Boylen, and coal mine inspector, Greg
Willis, arrived at the Shoal Creek Mine to inspect the reported roof fall. Tr.
47-48.[3]
Boylen testified that Shoal Creek is a gassy mine because it liberates 2.9
million cubic feet of methane (“cfm”) every 24 hours. Tr. 46.  

On his way to break #35
to investigate the rock fall, Boylen walked past break #34 and noticed that
several miners were in the area, a scoop was parked in the number 2 (middle) entry,
and Drisco pipe, which was several hundred feet long and 14 inches in diameter,
was lying through the mandoor located between the number 1 and 2 entries, about
two and one-half blocks from the longwall face. Tr. 51, 56-57, 63, 67.  The
mandoor was 30 inches by 30 inches and had a 6.25 square-foot opening. Tr. 92.

When Boylen asked miners
present about the drainage pipe in the mandoor, they said that the mandoor had
been propped open for about an hour and one-half so that Respondent could push
the pipe through the door to replace the damaged drain pipe at the roof fall
area. Tr. 63, 67. A loader was being used to push the large pipe through the
mandoor. Tr. 328-29, 344, 346-47; P. Exs. 4-5.  

Boylen told superintendent
Scott Meadows that the mandoor could not be left open because it would disrupt
ventilation inby and it must be closed as soon as possible. Tr. 94-95. Under MSHA’s
direction, miners put a can bag over the mandoor opening to mitigate
ventilation disruption. Tr. 356-58.

Boylen issued Citation No.
4481323 for a violation of 30 C.F.R. § 75.333(h). Tr. 51-52. Boylen determined
that the mandoor was a ventilation control designed to separate the number 1
entry (return air) from the number 2 entry (intake air) to prevent air from
moving along the wrong course or through the wrong entry. Tr. 64-65. Boylen
testified that the mandoor was designed to allow miners to travel between air
courses and hand carry supplies.  Tr. 64.

Based on experience,
Boylen testified that the air pressure flowing through the mandoor was
excessive, although he did not take an air measurement. Tr. 69, 71.  Boylen explained
that he did not take a measurement because while the pipe was being removed from
the door, miners cut the pipe in half and a piece of pipe swung to the right,
striking Meadows and pinning him against the mine rib. Tr. 69-71. Boylen did,
however, take an air reading outside break # 34. That reading measured 130,000 cubic
feet per minute (cfm), with the mandoor closed. Tr. 73, 89.

Boylen testified that
he was concerned about the effect that a propped-open mandoor would have on the
ventilation system. Specifically, Boylen testified:

All right. By experience I know the
network of this longwall ventilation system. I know that this entire area is being
ventilated with multiple intakes and only one return. The pressure from intake to
the return was excessive simply because the design of this system. And with the
mandoor open it allowed a great amount of air to go from the intake to the
return and in my opinion disrupted the entire ventilation schematic of the
longwall, which includes the entries over on the headgate, which are the main
intake entries, which includes the longwall face and also includes the bleeder
network behind the longwall face.

. . . .

Air will take the path of least
resistance. The network of ventilation controls throughout this entire longwall
panel is designed purposely so that the flow of air can be controlled and can
be controlled continuously allowing normal mining to continue. And with this
door open, that entire schematic, that entire scheme of ventilation was put in
jeopardy.

. . . .

[F]or this personnel door that was
part of the ventilation control to be open for an hour and a half, to be open
normally in any condition based on the air flow disrupted the air of that
entire longwall network to where one couldn't predict now where methane's going
to exist or where there's a potential for problems such as ignitions and/or
explosions.

. . . .

Because of the blue creek coal seam
the methane is being liberated continuously. Greater amounts occur up on the
longwall mining face area and greater amounts are in the bleeders because
that's designed to maintain the ventilation to take care of methane.

Tr.
66-68. Boylen
further testified that the greatest risk of methane accumulation in this gassy
mine occurs on the longwall face and in the bleeder section. Tr. 68.

Boylen reviewed production
reports from August 16, 2012. Those reports indicated that miners were changing
out a trapping shoe on the tailgate side between 7:30 a.m. and 11:00 a.m., an
interval during which the pipe had propped open the mandoor. Tr. 103.  Boylen
testified that this task normally requires cutting and welding, and that such
maintenance on mine equipment has resulted in numerous face ignitions in the
district.  Tr. 103-04.  

On August 20, 2012, four
days after the citation was written, Boylen sent inspector Willis to Shoal
Creek Mine to take an air-pressure reading at the mandoor. Tr. 74. Willis took
a Magnehelic pressure reading at 1.4 pounds per mercury. Tr. 75. Ventilation
specialist, Brandon Russell, was consulted. Based on Willis’s reading, Russell
concluded that 28,093 cfm of air was travelling through the mandoor. Tr. 76.  On
cross examination, Boylen testified that the airflow through the mandoor on
August 16, 2012 was lower than 28,093 cfm because the pipe was lodged through
the mandooor.  Tr. 141. The pipe was approximately 1.2 square feet in diameter
and the door was 6.25 square feet in diameter. Tr. 92, 141.  Taking
this differential into account, Boylen testified that the airflow would have
been closer to 23,000 cfm on August 16. Tr. 141-142.

Ventilation
specialist, Steven Harrison, also testified for MSHA regarding the ventilation
at Shoal Creek Mine. Tr. 170-71.[4]
Harrison testified that air was travelling at about 14,500 to 24,500 cfm through
the open mandoor at the time of the citation. Tr. 229-31. To make his
calculations, Harrison used two formulas, one published and one unpublished. Tr.
197, 229-30, 294-95, 312. Harrison ruled out the possibility that less than 9,000
cfm was travelling through the propped-open mandoor on August 16. Tr. 205. Harrison
emphasized that the August 20 reading was taken after water had been pumped
down. Therefore, according to Harrison, that reading reflected higher pressure
and less air flow than what was present on August 16. Tr. 205, 243.  

A
weekly examination from August 15, 2012 indicated that the water levels at
various breaks were over boot level or waist deep. Tr. 243. Harrison opined
that this amount of water would have obstructed airflow in the number 1 entry
on the upwind side, and increased the pressure drop across the mandoor. Tr.

205. Harrison also reviewed the mine’s weekly examination reports and found
     that on August 15 and 16, the air readings showed a 30,000 to 40,000 cfm spike
     on the intake and return entries. Tr. 228.  Harrison attributed this
     significant increase to a short in the ventilation system, which was likely caused
     by the mandoor being left opened as early as August 15 to transport roof
     supplies. Tr. 229. In fact, Superintendent Meadows testified that between 800
     to 1000 crib blocks were carried through the man door between August 14 and
     August 16. Tr. 377, 378.

At the time the
citation was issued, the Shoal Creek Mine utilized a “wraparound bleeder
system” in which intake air enters the longwall face and travels across the
three headgate entries. Tr. 182, 184.  Some air is lost as it travels back
toward the gob. Tr. 186. This system required that the mine have a t-split, allowing
some air to travel back to the caved area to allow attraction of air on the
face toward the back. Tr. 187. Harrison explained that the pull of air toward
the back of the section allows the mine to control the accumulation of methane
and to maintain oxygen levels at the face. Tr. 187, 189, 190-93. Under this system,
there must be a relative vacuum at the tail gate number three corner to pull
the air. Tr. 190.  Without this pull, air will become stagnant or reverse flow,
allowing methane from the gob to go toward the active face. Tr. 195. Harrison testified
that since Shoal Creek has a single air course to pull three splits, if a
ventilation change affects a single return entry, the other air splits are also
affected. Tr. 192, 195.

Harrison further testified
that the conditions in the mine and the duration of the alleged violation made
it reasonably likely that methane in the area would migrate toward the active
face, and, if an ignition source was present, an explosion could result. Tr.
198-99.  Harrison testified that power on the longwall face would present
potential ignition sources that could ignite the methane that was migrating to
the active face because of the open mandoor. Tr. 201. Harrison further
testified that even if the longwall had been shut down, miners repairing or
replacing parts, and welding with a torch, would create an ignition source. Tr.
252.

IV.            
Legal Analysis

A.    Respondent
Violated Section 75.333(h) by Propping Open a Mandoor with a Large Pipe for at
least 90 Minutes on August 16

Section 75.333 sets
forth mandatory health and safety standards for underground coal mine ventilation
controls. 30 C.F.R. §75.333. As noted, the standard mandates that “[a]ll ventilation
controls, including seals, shall be maintained to serve the purpose for which
they were built.” 30 C.F.R. § 75.333(h). The standard lists personnel doors (or
mandoors) as a type of ventilation control, and directs that they “shall be
constructed on noncombustible material and shall be of sufficient strength to serve
their intended purpose of maintaining separation and permitting travel between
air courses. . . .” 30 C.F.R. § 75.333(c).

Neither party disputes
that the cited mandoor is a ventilation control that separates intake air from
return air. R. Br. 10; P. Br. 16. The parties dispute whether, by leaving the
mandoor open for an hour and a half and pushing a drainage pipe through it, the
mandoor was being maintained for the purpose for which it was built. The
Respondent argues that because the mandoor was not damaged or in disrepair, it
was being maintained properly. R. Br. 10. The Secretary contends, however, that
because the door was propped open with a pipe, the mandoor could not serve its
intended purpose of separating air courses. P. Br. 19.

The
term “maintained” is not defined in the standard or in 30 C.F.R. Part 75. The
Commission applies the ordinary meaning of the term “maintain,” in absence of a
technical usage. Sedgman, 28 FMSHRC 322, 329 (June 2006). The Commission
has held that the term “maintain” means “to keep in a state of repair,
efficiency or validity.” Jim Walter Resources, Inc., 19 FMSHRC 1761,
1765-66 (Nov. 1997), quoting Webster's Third New International Dictionary (unabridged)
1362 (1986)). Elsewhere, the Commission has found that “maintain” means “uphold,”
“keep up,” “continue,” or “preserve from failure or decline.” Lopke
Quarries, Inc., 23 FMSHRC 705, 707-08 (July 2001).  

The
Commission has held that an operator fails to maintain equipment if the equipment is
not capable of “producing the appropriate or designed effect,” or is used in a
manner that defeats its intended purpose. Jim Walter Resources, Inc., 19
FMSHRC 1761, 1766 (Nov. 1997). The Commission has further explained that “[i]nclusion of the
word ‘maintain’ in a standard makes it clear that equipment ‘shall be capable
of performing on an uninterrupted basis and at all times.’” Nally &
Hamilton Enterprises, Inc., 33 FMSHRC 1759 (Aug. 2011).

By
propping open the mandoor for over an hour and a half, and using it as a
passageway to transport a very large pipe with a loader, Drummond did not
maintain the mandoor to serve the purpose for which it was built as contemplated
by the cited standard. The mandoor was not being maintained in a state of
efficiency because it was propped open for an extended period of time thereby
preventing it from fulfilling its intended purpose of separating air courses
and allowing the brief passage of personnel between air courses. Rather, the
mandoor was being used in a manner that defeated its intended purpose
and the door was not able to produce its designed effect of separating
return and intake air. On August 16, if not before, the mandoor was left open
for an extended period of time, which meant that it was not capable of
performing ventilation control on an uninterrupted basis.

Respondent
argues that it did not fail to maintain the mandoor in violation of 75.333(h)
because “[t]he mandoor was not damaged, in disrepair, or in a state of
decline,” and was “fully functional and useable.” R. Br. 10. I reject this
argument as the mandoor was not functioning as intended when it was
propped open and blocked with a drainage pipe.  The Respondent proffered
several cases where Commission judges held that holes or leaks in ventilation
control are indicative of improper maintenance. R. Br. 10; Twentymile Coal
Co., 34 FMSHRC 2293 (Aug. 2012) (ALJ); Twentymile Coal Co., 33
FMSHRC 1885, 1892-93 (Aug. 2011) (ALJ).  Respondent’s reliance on these judges’
decisions is not binding or persuasive because the term “maintain” can and does
require more diligence on the part of the operator than simply ensuring that there
are no holes or leaks in a ventilation control.

Respondent
further argues that the mandoor may be open while it is in use because the ventilation
control standard dictates that “when not in use, personnel doors shall be
closed.” R. Br. 11, citing 30 C.F.R. § 75.333(c)(3). This argument is also
unpersuasive. The mandoor by its very nature must open to allow personnel
through. See ICG Knott Co., KENT 2009-872 (Aug. 2013) (ALJ)( “[m]andoors
are for egress but remain closed otherwise.”). Although the standard is silent about
the exact duration that a mandoor may be open, leaving it open for an extended
period of time, such as 90 minutes, would prevent the mandoor from controlling
ventilation.  

An
operator is tasked with ensuring that the mandoor is in a constant state of
efficiency, i.e., it must be closed when it is not being used for its intended
purpose as a means of brief ingress or egress, without disrupting ventilation. See
Lopke Quarries, Inc., 23 FMSHRC 705, 707-08 (July 2001) (holding that the
word “maintain” in a standard incorporates an ongoing responsibility on the
part of the operator). Section 75.333(c)(3) dictates that a mandoor must be
closed when not in use. Section 75.333(h) requires that a mandoor, as a
ventilation control, be maintained to serve its intended purpose. Even though the
two safety standards impose separate requirements, both can be applicable to the
conduct at issue. Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076,
1084 (10th Cir. 1998). Here, both standards are relevant to the facts
surrounding the citation and Drummond must comply with both simultaneously.  

The
parties disagree about the intended purpose of the mandoor. Respondent contends
that it should be allowed to transport a drainage pipe through the mandoor to
fix the damaged pipe near the roof fall.  R. Br. 11. The Secretary argues that
the mandoor is intended to allow personnel to pass through. The Secretary
concedes that the personnel door can be used to transport supplies, but only those
that can be carried by hand as a miner passes through the mandoor, not large
equipment that requires the door to remain propped open. P. Br. 18; Tr. 64,
110, 111-12, 117, 364-65. The Respondent counters that distinguishing hand-held
supplies from larger equipment is too confusing, and that a loader pushing a large
drainage pipe through a mandoor should be acceptable because the pipe is a type
of supply. R. Br. 12.

I
conclude that allowing the mandoor to be propped open for 90 minutes to transport
a large pipe with a loader would stretch the purpose of the standard beyond the
bounds of reasonableness. The context and wording of the regulation make the
Secretary’s interpretation of the mandoor’s intended purpose more reasonable and
self-evident. The term personnel door (or colloquially “mandoor”) itself makes
clear that it is to be used for personnel ingress and egress. The personnel
door is listed as a ventilation control, and is to be closed when not in use,
which suggests that it should not to be propped open to transport large
equipment. Cf., Wolf Run Mining Company, 32 FMSHRC 1669, 1682 (2010)
(holding that the Secretary’s interpretation is practically self-evident given
the context of the regulation.)

The
Respondent argues that they were not given fair notice of the standard before
receiving the citation. R. Br. 13.  The Respondent further argues that the
Secretary has provided no explanation why it is impermissible to transport the
drainage pipe through the mandoor with a loader.  The Respondent also contends
that because the pipe was too heavy to be cut into pieces and hand carried
through the mandoor without injury, the Secretary’s interpretation of the
regulation is contrary to the Mine Act and unreasonable. R. Br. 12.  

I
do not find the cited regulation to be vague or overly broad, or to provide
inadequate notice simply because it does not list every action proscribed,
address a specific time period, or mandate what supplies may be carried through
the mandoor by a miner travelling between air courses. See Walker Stone Co. 156
F.3d 1076, 1084 (10th Cir. 1998)(“regulations
cannot specifically address the infinite variety of situations which employees
may face and that by requiring regulations to be too specific, we open
loopholes, allowing conduct which the regulation is intended to address to
remain unregulated.”).

The
Commission does not require that the operator receive actual notice of the
Secretary's interpretation.  Rather, the Commission applies an objective, reasonably-prudent-person
test. Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan. 1998); BHP
Minerals Int'l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996)(when faced with a
challenge that a safety standard fails to provide adequate notice of prohibited
or required conduct, the Commission has applied an objective standard, i.e.,
the reasonably prudent person test); Ideal Cement Co., 12 FMSHRC 2409,
2416 (Nov. 1990) (the test “is not whether the operator had explicit prior
notice of a specific prohibition or requirement, but whether a reasonably
prudent person familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition or requirement of
the standard.”).

Additionally,
the Commission has held that an operator has fair notice so long as the
Secretary’s interpretation of the standard does not seem “so far from a
reasonable person's understanding of the regulations that they could not have
fairly informed [the operator] of the agency's perspective.” Island Creek
Coal Co., 20 FMSHRC 14, 25 (Jan. 1998). This is particularly true when no
evidence is presented that MSHA ever construed the standard in a manner inconsistent
with its position in the instant case.  Island Creek Coal Co., 20 FMSHRC
14, 25 (Jan. 1998). No evidence was presented in this case that MSHA ever
enforced the standard inconsistently.

Applying the Commission’s reasonably-prudent-person test, the
operator should have recognized that using a loader to transport a large drainage
pipe through a mandoor that was propped open for 90 minutes was prohibited by
the standard. I
find that a reasonably prudent operator would understand that the mandoor is to
be used for ventilation control, and that using large equipment to push a pipe
through while the manor was propped open would interfere with this use,
especially over an extended period.

Perhaps
more importantly, Meadows had actual notice that leaving a pipe through a
mandoor was prohibited. Meadows testified that he was aware at the time that he
was developing the pipe transport plan that the Shoal Creek Mine had received a
previous citation for a having a pipe prop open a mandoor in a fixed position
for an extended period. Tr. 364-65.

The
very purpose of requiring that the mandoor be closed when not in use and
maintained for its intended use is to protect miners from the possible effects
of accumulation of methane and other toxic or contaminated air at an active
working face through disruption of the ventilation control. The Secretary’s
interpretation of the cited standard is reasonable and promotes this objective,
which fosters miner safety and health.

B.        The
Violation was S&S

The Mine Act describes an S&S
violation as one “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C. § 814(d)(1). The Commission has held that a violation is
S&S “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.” Cement Div., Nat’l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).

To
establish an S&S violation under National Gypsum, the Secretary must
prove the four elements of the Commission’s subsequent Mathies test: (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 in
question will be of a reasonably serious nature. See Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, supra,
52 F.3d at 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving use of Mathies criteria). An evaluation of the
reasonable likelihood of injury is made assuming continued normal mining
operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130
(Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC
1573, 1574 (July 1984).  I will address each factor in turn.

1.      There
was a Violation of a Mandatory Safety Standard

For the reasons set
forth above, I have found a violation of a mandatory safety standard,
satisfying the first prong of the Mathies test. Drummond violated
75.333(h) by propping open a mandoor, which was used to regulated airflow, for
an extended period of time, while using a loader to push a large drainage pipe
through the mandoor.

2.      The
Violation Contributed to a Discrete Measure of Danger to Safety

The failure to maintain
the mandoor for the purpose for which it was built, by propping open the
mandoor for 90 minutes in order to transport a large pipe, contributed to a
discrete measure of danger to safety. The violation interrupted mine ventilation,
which would likely result in an accumulation of methane in the active working
face, near potential ignition sources, which would result in a fire.  The
hazard contributed to by the violation was a methane-related fire caused by
interrupted ventilation which would result in an increased amount of methane at
the active working face, where ignition sources were present. As such, I find
the second prong of Mathies is met.

3.      The
Violation Contributed to a Hazard That Was Reasonably Likely to Result in
Injury

The
third Mathies factor is typically the most disputed aspect of the S&S
analysis, and often the most difficult to apply. The Secretary proves that this
element is established if there is “a reasonable “likelihood the hazard
contributed to will result in an event in which there is an injury.” U. S.
Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985). When analyzing the
violation, the Commission has indicated that the “focus of the seriousness of
the violation is not necessarily on the reasonably likelihood of serious
injury, which is the focus of the S&S inquiry, but rather on the effect of
the hazard if it occurs.” Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct.
2010); Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).  

In examining the third
element for violations that involve hazards of ignition, fire, or explosion,
the Secretary must prove that such a hazard is reasonably likely to occur, in
addition to proving that the hazard is reasonably likely to result in an
injury. Ziegler Coal Co., 15 FMSHRC 949, 953 (June 1993). The Commission
held in Ziegler Coal that a finding that a fire or explosion hazard is
reasonably likely to occur is a necessary pre-condition to finding that an
injury is reasonably likely to occur. Id., citing U.S. Steel Mining,
6 FMSHRC 1834, 1836 (Aug. 1984). When evaluating the
reasonable likelihood of a fire, ignition, or explosion, the Commission has
examined whether the requisite “confluence of factors” is present based on the
particular facts surrounding the violation. Enlow Fork Mining Co., 5
FMSHRC 5, 9 (Jan. 1997), citing Texasgulf, Inc., 10 FMSHRC 498,
501 (April 1988). Stated more succinctly, is there a confluence of factors that
make a fire and concomitant injury reasonably likely? Utah Power & Light
Co., Mining Div., 12 FMSHRC 965, 970-71 (May 1990). The
Commission has held that the confluence of factors analysis requires
consideration of the particular circumstances in the mine, including the
possible ignition sources, the presence of methane, and the type of equipment
in the area. Excel Mining, LLC, 37 FMSHRC ___, slip op. at 7, No. KENT
2009-1368 (Mar. 9, 2015); Utah Power & Light Co., 12 FMSHRC at
970-71 (Oct. 1990); Texasgulf, 10 FMSHRC at 501-03 (Dec. 1998).

There
was a unique ventilation system in place, and according to MSHA ventilation
specialist Harrison, any interruption, such as a mandoor propped open for an
extended period, would affect the ventilation system. Tr. 192, 195.  When
the ventilation system is uninterrupted, the pull of air toward the back of the
section allows the mine to control the accumulation of methane and maintain
oxygen levels at the face. Tr. 187, 189, 190-93. The Shoal Creek mine needed an
air pull at the tailgate number three entry corner to bleed methane gas to the
back end of the section, away from the face, to avoid a methane ignition. Tr.
187, 189-90. This is especially important because the Shoal Creek Mine is a gassy
mine that was on a five-day spot inspection at the time of the violation. Tr.

46. The
    Commission has held that if a mine liberates high levels of methane there may
    be an even greater potential for methane ignition to occur and that this may be
    considered in a confluence-of-factors analysis. Excel Mining, LLC, 37
    FMSHRC __, slip op. at 7, KENT 2009-1368 (Mar. 9, 2015); Knox Creek Coal
    Corp., 36 FMSHRC 1128, 1134 (May 2014).

As MSHA supervisory
inspector Boylen testified, the greatest risk of
methane accumulation occurs on the longwall face and in the bleeder section. Tr.

68. There were numerous potential ignition sources present at the face.  At the
    time of the violation, the longwall was energized. Tr. 80, 82. Harrison
    testified that power on the longwall face created potential ignition sources
    that would ignite methane. Tr. 201. Harrison further testified that even if the
    longwall had been shut down, miners repairing or replacing parts, and welding with
    a torch, would create an ignition source. Tr. 252. As noted, Boylen reviewed production
    reports from the date the citation was written.  They showed that between 7:30
    a.m. and 11:00 a.m., during the time interval when the pipe had propped open
    the mandoor, miners were changing out a trapping shoe on the tailgate side. Tr.
69. This task required cutting and welding, which created sources of
    ignition. Tr. 104. Boylen testified that in his experience in the
    district, such maintenance of mine equipment has resulted in ignitions at the
    face on various occasions. Tr. 104.  

The
Respondent argues that because an air measurement was not taken on the date of
the violation, the Secretary has not met his burden of proving a reasonable
likelihood of a disruption in ventilation and a subsequent methane ignition under
the third prong of the Mathies test. R. Br. 14. Boylen credibly
explained that he did not take readings at the time the citation was issued
because the pipe was in the way, and Meadows was eventually pinned to the wall
by the pipe and injured during the transport operation.  Tr. 69-70. The Secretary
presented convincing testimonial evidence based on several calculation methods
used by ventilation specialist Harrison that air pressure was affected by the
violation. Tr. 197, 229-30, 294-95, 312.  Further, the records from the days in
between the rock fall and the issuance of the citation show a change in the
ventilation, supporting the testimony of Boylen and Harrison. Tr. 228. The Commission
has held that an inspector's judgment is an important element in an S&S
determination and may be relied upon as part of the S&S analysis.  Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278 (Dec. 1998); Mathies, 6
FMSHRC at 5 (Jan. 1984) (citing National Gypsum, 3 FMSHRC at 825-26
(Apr. 1981); see also Buck Creek Coal, 52 F.3d at 135-36 (7th Cir. 1995)(ALJ
did not abuse discretion in crediting opinion of experienced inspector).

The conditions at the
mine at the time the citation was written and the duration of the violation for
90 minutes made it reasonably likely that as ventilation was interrupted, methane
would migrate to the active face, where ignitions sources were present, and
result in a methane ignition, fire or explosion. Tr. 198-99.  Methane
liberation from this gassy mine and the unique ventilation system described
herein, made it reasonably likely that as the open mandoor disrupted
ventilation, methane or other toxic or contaminated air would accumulate at the
face. There were ignition source present at the face, including the energized longwall
and welding equipment that was in use to make repairs. Given the oxygen present
in the atmosphere, the requisite confluence of factors was present to make it reasonably
likely that a methane ignition, fire, or explosion would occur causing injury
to miners working there.  Tr. 82, 103, 252.

4.      There Was a
Reasonable Likelihood That the Injury in Question Will Be of a Reasonably
Serious Nature

With regard to the fourth
Mathies factor, the record establishes that a methane-related fire or
explosion contributed to by the violation was reasonably likely to result in serious
injury or illness to miners working at the face, who would suffer burns or inhalation
of toxic chemicals, primarily carbon dioxide. Tr. 82.

In sum, considering all
the relevant factors, I find the violation was properly designated as S&S.

C.    The
Citation’s Remaining Gravity Determinations were Appropriate

Boylen
reasonably determined that “10 persons” were affected by the violation given
the number of miners working inby the mandoor when the pipe was being
transported. Tr. 83, 351-52.  According to Boylen, at the time the citation was
written, ten miners were working at the mandoor, and four to eight miners were working
on the longwall. Tr. 83.  I also find that the designation of “lost workdays or
restricted duty” was appropriate for this violation. Boylen credibly testified
that if a methane-related fire, ignition or explosion occurred as a result of
the interruption in ventilation, miners would suffer burns or inhale smoke or toxic
chemicals, primarily carbon dioxide. Tr. 82.[5]

D.   
Respondent Acted with Moderate Rather Than High Negligence
by Using the Mandoor to Facilitate Transport of the Large Drainage Pipe

The
parties disagree as to whether the violation was properly attributed to
Respondent’s high negligence.  P. Br. 22; R. Br. 16. Although not binding on
the Commission, MSHA defines negligence by regulation in the civil penalty
context as “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.” Negligence is further defined as “the failure to exercise a
high standard of care.” 30 C.F.R. § 100.3. A high negligence designation is
appropriate when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” 30 C.F.R. §
100.3 Table X.  A moderate negligence designation is appropriate when “[t]he
operator knew or should have known of the violative condition or practice, but
there are mitigating circumstances.” Id.

I
emphasize that the Mine Act imposes a high standard of care on foremen and
supervisors, like superintendent Meadows. Midwest Material Co., 19
FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman … is held to a high standard
of care”)); see also Capitol Cement Corp., 21 FMSHRC 883,
892-93 (Aug. 1999) (“Managers and supervisors in high positions must set an
example for all supervisory and nonsupervisory miners working under their
direction, ” quoting Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987); S&H
Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened standard of care
required of section foreman and mine superintendent).

The
Respondent argues that its level of negligence should be reduced from high to
moderate because the Secretary did not present a history of violations of the cited
standard. R. Br. 17. I find that argument unpersuasive. As noted above,
Superintendent Meadows testified that he knew that the Shoal Creek Mine had
been cited under similar circumstances in the past. Such knowledge put him on
notice that a large pipe propping open a mandoor for an extended period of time
was a violation. Meadows conceded:

There's a lot of instances where we
have got citations at Shoal Creek, I'm almost embarrassed to say, but even the
same situation with the pipe going through a man door, but the difference being
someone had installed the pipe through a man door and left it there in a fixed
position. That is a violation.

Tr. 364. Meadows was
aware that the reason why propping open a personnel door was a violation was
because of the lasting disruptive effect on the ventilation system. See Tr.

365. For example, Meadows recalled that in one past citation at Shoal Creek
     Mine, a “pumper would run a flexible hose through a man door that wouldn't
     allow the man door to close completely.” Tr. 365.  

Meadows developed the
plan to use the loader equipment to drive the 300-foot piece of pipe through
the mandoor. Tr. 328. Meadows stated that the actual length of pipe that he
needed was “[p]robably 70 to 80 feet,” rather than the several-hundred-foot
portion that was pushed through the mandoor. Tr. 327. Meadows never measured
the pipe to determine the length necessary. Tr. 328. Had Meadows cut a much
smaller portion of pipe, this action would have at least limited the time that
the mandoor was propped open.

While developing and
executing the plan, Meadows failed to mitigate the risks presented by the open
mandoor. The longwall operation was not shut down or informed of the open
mandoor and potential for ventilation disruption.  Respondent took no air
readings while moving the pipe through the mandoor. Tr. 81-82, 104-05, 386.  Meadows
testified that he knew a portion of air would go through the mandoor if it was propped
open. Nevertheless, Meadows did not consult with any of Drummond’s ventilation
engineers, or with MSHA ventilation specialists present that day to examine the
roof fall. Tr. 329, 384-85.  MSHA witnesses presented several alternatives for
transporting the drainage pipe to the rock fall, such as using a Kennedy
stopping or equipment doors and an airlock curtain, which would minimize
ventilation disruption.  Tr. 24, 97, 99-101, 241. Thus, Meadows’s plan was not
the only option available. Furthermore, Meadows did not take steps to mitigate
any ventilation impact. As a result, MSHA inspectors had to direct miners to
place a can bag over part of the mandoor aperture.  When the can bag was
displaced during the pipe-transport operation, miner Andy Martin had to search
abruptly for a curtain. Tr. 358-59.  

Respondent argues that
because MSHA supervisor Boylen presented conflicting ways to transport the pipe
at his deposition and at the hearing, Respondent’s negligence should be
reduced.  Respondent further argues that Boylen did not offer Meadows an
alternative prior to issuing the citation on August 16. R. Br. 17. I note,
however, that Respondent has the primary responsibility to ensure mine safety
and health, and that had superintendent Meadows asked for input from MSHA or
conferred with his own ventilation specialists or engineers prior to
implementing his large pipe-transport plan, he would have likely developed a
better and safer solution to his conundrum.

Despite the foregoing,
I find some mitigating circumstances present and conclude that Meadow’s
negligence falls closer to moderate than high negligence.  Although Meadows did
not select the safest method for transporting the drainage pipe, he did attempt
to do so safely. Meadows checked the regulators when the mandoor was open to
ensure that positive air was flowing through them. Tr. 361. He communicated his
pipe-transport plan to supervisors and held a briefing with the transport crew.
Tr. 387-88. He considered other ideas, such as using a bleeder entry, but determined
that there were significant hazards with such options. Tr. 355-56, 406-08.

In addition, the damaged
drainage pipe near the roof fall needed to be repaired expeditiously because
the flooding would significantly affect ventilation. Tr. 374. Meadows
credibly testified that he and his team were operating with urgency. Tr. 323. As
noted, a roof fall had occurred on August 14 and damaged a drain pipe at the roof
fall area. Tr. 63-67. From August 14 to August 16, work was done to improve
roof support so that the damaged pipe could be repaired. Tr. 323-25. Meadows needed
to ensure that the non-functioning water pumps would be restored to functional
status to prevent water from filling the mine, which would create a host of
additional problems. The applicable weekly examination report stated that there
was “water over boots” at crosscut 38 and “water waist deep” at crosscut 47. Tr.
243.

Thus, while Meadows knew
or should have known of the violation and acted negligently in developing and
executing his plan to transport the drainage pipe through the propped-open mandoor,
some mitigating factors were present. Accordingly, I reduce the level of Respondent’s
negligence from high to moderate on these facts.

E.
Penalty Assessment

The Act requires that
the Commission consider the following statutory criteria when assessing a civil
penalty: 1) the operator’s history of previous violations; 2) the
appropriateness of the penalty to the size of the business; 3) the operator’s
negligence; 4) the operator’s ability to stay in business; 5) the gravity of
the violation; and 6) any good-faith compliance after notice of the violation. Douglas
R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000).  The Commission is not
required to give equal weight to each of the criteria, but must provide an
explanation for any substantial divergence from the proposed penalty based on
such criteria.   Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).  

As
I discussed in my final Big Ridge decision, in an effort to avoid the appearance
of arbitrariness, I look to the Secretary’s assessment formula as a reference
point when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 1677,
1681-82 (July 19, 2014) (ALJ).  This formula is not binding, but operates as a
lodestar, since factors involved in a violation, such as the level of
negligence, may fall on a continuum rather than fit neatly into one of five
gradations.  Unique aggravating or mitigating circumstances will be taken into
account and may call for higher or lower penalties that diverge from this
paradigm. 

The
parties stipulated that Respondent is a large operator and that the originally
proposed penalty of $8,893 would not affect Respondent’s ability to remain in
business. MSHA recognized Respondent’s good-faith compliance in abating the
citation.  I have reduced Respondent’s negligence from high to moderate.  The
violation was serious and properly designated as S&S.  Accordingly, I
assess a $2,678 civil penalty against the Respondent.

V.               
ORDER

For the reasons set forth above, Citation
No. 4481323 is MODIFIED to reduce the level of negligence from “high” to
“moderate.” Within 30 days of the date of this decision, Respondent, Drummond
Company, Inc. is ORDERED TO PAY a civil penalty of $2,678 for the S&S
violation found herein.  

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Noelle
H. True, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle,

Suite
375, Lexington, KY 40153

Damon
J. Boiles III, Drummond Company, Inc., P.O. Box 10246, Birmingham, AL 35202

Angele
Gregory, U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue
North,

Suite
420, Nashville, TN 37219

[1]
 In resolving conflicts in testimony, I have taken into consideration the
demeanor of the witnesses, their interests in this matter, the inherent
probability of their testimony in light of other events, corroboration or lack
of corroboration for testimony given, experience and credentials, and
consistency, or lack thereof, within the testimony of witnesses and between the
testimony of witnesses.

[2]
 Every 24 hours, 20 million gallons of water are pumped from the Shoal Creek
Mine. Tr. 325.

[3]
 Boylen worked as a coal mine inspector for MSHA from 2008 until 2012, when he
became a field officer supervisor for the Bessemer field office. Tr. 43. Boylen
earned a degree in Industrial Management at West Virginia University, and has
20 years of experience in the mining industry. Tr. 33.  Boylen served in various
capacities in the mining industry, including foreman, fire boss, long wall
coordinator, and mine superintendent. Tr. 33, 35, 37. Boylen had worked at
Drummond’s Shoal Creek Mine for four years and oversaw the completion of the
mine’s slope, portal, and ventilation shafts and the installation of two
longwalls. Tr. 40.  Boylen was discharged by Drummond, but credibly testified
that he does not harbor any resentment toward the company. Tr. 163-65.  

[4]
 Harrison evaluates ventilation plans and conducts mine ventilation
examinations for MSHA. Tr. 177. Harrison was assigned to review the ventilation
plan and conduct inspections of the Shoal Creek Mine. Tr. 178. Before joining
MSHA, Harrison was a mining engineer for 26 years. Tr. 171. For 23 years,
Harrison worked in the ventilation department at Consolidation Coal Company. Tr.

171. Harrison worked for Drummond at the Shoal Creek Mine for 14 months,
     assessing ventilation issues until he was laid off. Tr. 174. Harrison has
     published three papers on ventilation. Tr. 176-77.

[5]
It is noteworthy that although no evidence or testimony was offered on the
subject, the return air being sent to the longwall as a result of ventilation
interruption could have contained respirable dust and increased the level of
respirable dust at the face, where miners were working.  The Commission has
held that overexposure to respirable dust can result in chronic bronchitis and
pneumoconiosis in miners. Consolidation Coal Co., 8 FMSHRC 890, 898
(June 1986), aff’d, 824 F.2d 1071 (D.C. Cir. 1987). The Commission
further held with regard to the fourth Mathies factor that “there is a
reasonable likelihood that illness resulting from overexposure of respirable
dust will be of a reasonably serious nature. Consolidation Coal Co., 8
FMSHRC 890, 899 (June 1986), aff’d, 824 F.2d 1071 (D.C. Cir. 1987).