Secretary of Labor v. Consol Buchanan Mining Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

While miners were transporting a shuttle car through Buchanan Mine #1, the load struck a pressurized-water manifold and tore it from the mine's firefighting line. A damaged 1½-inch valve that had previously been torn apart was reused in the assembly, and the upstream 6-inch shutoff valve could not close fully because grime obstructed it and the available leverage bar was ineffective. The released manifold struck and killed one miner. Judge Priscilla M. Rae affirmed violations of 30 C.F.R. §§ 75.1725(a) and 75.1100-3, finding that both directly contributed to the accident and were significant and substantial, attributable to high negligence, and caused by unwarrantable failure. She assessed the statutory maximum then available—$70,000 for each violation, totaling $140,000.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(a) and 75.1100-3
• Outcome: Both section 104(d)(1) violations were affirmed as written, with total penalties of $140,000.
• Key point: Reusing a damaged water-line valve and failing to maintain a fully operable firefighting shutoff valve supported S&S, high-negligence, and unwarrantable-failure findings where both conditions directly contributed to a fatal accident.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

January 23, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CONSOL
BUCHANAN MINING

COMPANY,
LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. VA 2013-190

A.C.
No. 44-04856-311430

Mine:
Buchanan Mine #1

DECISION AND
ORDER

Appearances:               Ronald
Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, VA,
for the Petitioner

Billy
R. Shelton, Esq., Jones, Walter, Turner & Shelton PLLC, Lexington, KY, for the
Respondent

Before:                        Judge
Rae

I.       INTRODUCTION

A.    Statement of the
Case

This case comes before me upon a
petition for assessment of civil penalties filed by the Secretary of Labor under
section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Mine Act),
as amended, 30 U.S.C. § 815(d), and involves two section 104(d)(1) violations[1]
issued to CONSOL Buchanan Mining Company, LLC (“Consol” or “the Respondent”) by
the Department of Labor’s Mine Safety and Health Administration (MSHA).

A hearing was held in Abingdon, Virginia
on July 15-16, 2014, at which time the parties were afforded a full opportunity
to present evidence and testimony. The parties also submitted post-hearing
briefs, which I have considered in rendering this decision.

After consideration of the evidence and
observation of the witnesses and assessment of their credibility, I uphold the
two section 104(d)(1) violations as written and impose a total penalty of
$140,000 against Consol, for the reasons set forth below.

B.     Stipulations

The parties have stipulated to the
following facts:

1.      CONSOL Buchanan
Mining Company, LLC was an “operator” as defined in section 3(d) of the Mine
Act, 30 U.S.C. § 803(d), at the coal or other mine at which the citation and
order at issue in this proceeding were issued.

2.      Operations of
CONSOL Buchanan Mining Company, LLC at the coal or other mine at which the
citation and order at issue in this proceeding were issued are subject to the jurisdiction
of the Mine Act.

3.      This proceeding
is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission and its designated Administrative Law Judges pursuant to sections
105 and 113 of the Mine Act.

4.      The individual
or individuals whose signatures appear in Block 22 of the citation and order that
are at issue in this proceeding were each acting in their official capacity and
as an authorized representative of the Secretary of Labor when the citation and
order were issued.

5.      True copies of
each citation and order at issue in this proceeding were served on the Respondent
or its agent as required by the Mine Act.

6.      The total
proposed penalty for the citation and order in this proceeding will not affect the
Respondent’s ability to continue in business.

7.      The citation and
order contained in Exhibit A attached to the Secretary’s petition are authentic
copies of the citation and order that are at issue in this proceeding with all
appropriate modifications or abatements, if any.

8.      CONSOL Buchanan
Mining Company, LLC, is the current operator of the Buchanan Mine #1 as a
result of having acquired the assets and liabilities of Consolidation Coal Company,
which operated the Buchanan Mine #1 at the time the events at issue in this
case occurred. CONSOL Buchanan Mining Company, LLC has thus been substituted as
a party for Consolidation Coal Company in this proceeding, and CONSOL Buchanan
Mining Company, LLC will be liable for any violations at issue in this
proceeding found to have occurred while Consolidation Coal Company was the operator
of the Buchanan Mine #1. Consistent with this substitution, any reference to
Consolidation Coal Company in this proceeding shall be deemed to be a reference
to CONSOL Buchanan Mining Company, LLC, and vice versa.

C.     Statement of
Facts

The violations at issue in this case
arose from a fatal accident that occurred in the Buchanan Mine #1, a large
underground coal mine in Buchanan County, Virginia. On Friday, January 11,
2012, miners Joe E. Saunders and W. David Green were assigned to transport a
Freedom shuttle car through the mine during the evening production shift. Tr.
634; Exs. R-8 & S-22 at 3; Ex. R-9 at 2; Ex. S-1 at 3; Ex. S-12.[2]
They were accompanied by Greg Addington, a certified foreman with 35 years of
underground coal mining experience. See Tr. 603; Ex. R-11. The shuttle
car was to be moved along the haulage track on a rail-mounted lowboy hauler
between two diesel locomotives. Exs. R-8 & S-22 at 3; Ex. R-9 at 2; Ex. S-1
at 3. The shuttle car’s electrical panel board protruded 3 feet, 2 inches over
the left rail of the track. Ex. S-2 at 18; Tr. 60; Ex. R-9 at 6; see Photograph
S-7 (depicting overhang). Because it was a wide load, the shuttle car was
positioned on an airbag and outfitted with come-alongs so it could be lifted or
shifted from side to side in tight spots. Tr. 634-35.

Saunders, Green, and Addington were
traveling inby in the #5 entry around 7:40 PM when the protruding left side of
the shuttle car struck a water manifold (a pipe fitting with multiple outlets) at
crosscut #61, knocking it off of the 6-inch water line that runs between the
haulage track and conveyor belt in the #5 entry. Tr. 609, 636-37; Ex. S-12; Ex.
R-8 & S-22 at 2, 4; see Ex. S-1 at 21 (diagram of accident site); Photographs
S-8, R-37 to R-41, R-47 (investigators’ re-creation of moment of impact). The
6-inch water line is part of the mine’s fire suppression system and is required
to have fire valve assemblies where a fire hose can be hooked up every 300
feet. Tr. 417, 488; see Ex. R-10. The manifold that was struck by the
shuttle car was a fire valve assembly with four outlets: two capped fire hose
outlets; an outlet that connected to the 6-inch water line in the mine floor;
and another outlet that connected to a 2-inch pipe that supplied water to the
fire suppression system for a rock dust distribution machine in an adjacent
entry. See Ex. S-2 at 16; Ex. S-1 at 22; Tr. 51-58. The manifold was
connected to the 6-inch water line with a bronze two-piece 1½-inch ball valve
of the type demonstrated in physical exhibits J-1 and J-2 manufactured by
Milwaukee Valve Company. See Ex. S-2 at 16.

The 1½-inch valve broke into two pieces at
an internal threaded connection when the collision with the shuttle car
occurred. Tr. 56; see Ex. J-1. The body of the valve is 3 inches long
and houses the rotating ball that controls water flow through the valve, while
the tailpiece of the valve is slightly more than 1 inch long and resembles a
large six-sided nut. Ex. R-9 at 2; Exs. R-5, S-14; see Exs. J-1, J-2. During
manufacturing the tailpiece is screwed into the body of the valve with a set of
internal straight-cut threads and the threaded connection is then sealed with
an adherent called Loctite. Tr. 119, 172-74, 322-24, 379; see Exs. J-1,
J-2. After the collision, the tailpiece remained attached to the steel nipple
protruding from the 6-inch water line in the mine floor, but the body of the
valve had been sheared off. Tr. 641; Exs. R-8 & S-22 at 5; Ex. R-9 at 2. Thus,
the water line was breached and the water manifold was left hanging off of the
2-inch pipe leading to the rock dust distribution machine. Water shot out to
the roof, drenching the miners. Tr. 511-12, 525-26, 609, 620-21, 637; Ex. S-12.

Green, Saunders, and Addington moved the
shuttle car out of the way, then Green and Saunders proceeded to shut the water
off so they could assess the damage. Tr. 609-10, 637-39, 648-49. Green turned
the water off inby, Tony Atwell (a miner from a motor crew that was on the
haulage track directly behind Saunders, Green, and Addington) turned the water
off outby, and Saunders attempted to turn the water off at a 6-inch shutoff
valve on a crossover pipe at crosscut #62. Ex. S-2 at 7; Ex. R-9 at 2; Tr. 512,
609-10; Ex. S-12. The water that had been shooting out of the breached line
subsided to a relatively small but consistent flow that continued to discharge the
entire time the miners were trying to make repairs. Tr. 526-27, 621-23, 650-51.
The miners assumed this was residual water draining from the isolated section
of the water line. Tr. 623, 640, 652; Ex. R-8 & S-22 at 7.

While the men were shutting the water
off and beginning to make repairs, Addington walked to a nearby crosscut to dry
off and called shift foreman David Lynn Semones on his walkie-talkie to tell
him the move crew had struck the water line. Tr. 610-13; Ex. S-12. Semones
testified he told Addington he would send another crew to fix the water line
and instructed the move crew to cut the water off and continue moving the
shuttle car through the area. Tr. 576-77. Addington testified he did not hear
these instructions. Tr. 612-13, 654.

Meanwhile, Green and Saunders had begun
repairing the fire valve assembly without waiting for the water to bleed off. Tr.

652. They first detached the manifold from the 2-inch pipe leading to the rock
     dust distribution machine. Tr. 640. Next, they attempted to reattach the manifold
     to the steel nipple on the 6-inch water line by screwing it back onto the
     tailpiece of the 1½-inch valve and tightening it down with a pipe wrench. Tr.
     513-14, 527-28, 641, 651-54. After the manifold was back in place, Saunders
     attempted to reattach the 2-inch pipe. Tr. 514-15, 643. The coupling between
     the manifold and 2-inch pipe was a Victaulic coupling, a type of connection accomplished
     with a rubber gasket that folds over two abutting pipes. Tr. 151-52. As
     Saunders was trying to fold the rubber gasket over the abutting pipes, water
     was leaking out and impeding his efforts, so he turned the 1½-inch valve at the
     bottom of the manifold into the off position to block the flow of water. Tr. 59;
     Ex. S-2 at 9-10; Ex. R-8 & S-22 at 5-7; Ex. R-9 at 3. As a result, water
     pressure built up under the 1½-inch valve’s ball plug, causing the valve to
     violently break apart moments later in the same place as before. Tr. 59; Exs.
     R-8 & S-22 at 5-6; Ex. R-9 at 3. This time, however, the manifold was not
     attached to the 2-inch pipe. The manifold was blown off of the 6-inch water
     line and into the air, struck Saunders in the face and head, struck another
     miner in the shoulder, hit the mine roof 13½ feet above, then came to rest on
     the mine floor 23 feet 4 inches away from its starting point. Ex. S-2 at 10, 14;
     Ex. R-9 at 5, 8. Saunders died a week later due to the very serious injuries he
     had incurred.

MSHA Inspectors Mark Hlywa[3]
and Jason Hess[4]
conducted MSHA’s accident investigation. When Hlywa arrived at the scene a few
minutes after the accident had occurred, water was still discharging from the
point where the manifold had been blown off of the water line and a small
puddle had formed. Tr. 41-46. Hlywa visited the three shutoff valves where the
miners had attempted to turn the water off and discovered that the 6-inch shutoff
valve at crosscut #62 was not closed all the way. To close the valve all the
way, the handle needs to be turned 90 degrees until it is perpendicular to the water
line and contacts the handle stop embossed on the top of the valve. Tr. 346-47.
Hlywa discovered the 6-inch valve was visibly open in that the handle was not fully
perpendicular to the water line and audibly open in that water was hissing
where it was bypassing a small opening. Ex. S-2 at 7, 13; Tr. 63-65, 78, 147-48.
Hlywa asked the miners to try to turn the water all the way off, after which
the puddle at the accident site subsided, but a small amount of water continued
to discharge. Tr. 48, 51, 75-76, 134; Ex. S-2 at 20. Inspector Hess, who
arrived at the mine around 9:45 PM to take over the accident investigation,
testified that the water was not completely shut off until the 6-inch shutoff valve
at crosscut #62 was replaced with a new valve after he had left the mine that
night. Tr. 134-38, 149-50; see also Ex. S-3 at 8-9; Tr. 156; Photograph
S-11 (picture of replacement valve taken the next morning).

The evening of the accident, Hlywa,
Hess, and other investigators from the company and the state examined the manifold
and the two pieces of the broken 1½-inch valve. They found that the 1½-inch
valve’s internal threaded connection was damaged. The damage was not readily
apparent to the touch or to the naked eye. However, upon close examination and
measurement with a feeler gauge, the investigators found that the female
threads on the body of the valve were stretched such that only a few threads on
the tailpiece were engaging and holding when the two pieces were screwed
together. Tr. 67, 85-87, 107-08, 143-44, 297-99; Ex. S-2 at 21, 27; Ex. S-3 at 18-20;
Exs. R-8 & S-22 at 11-12; Ex. R-9 at 2.   

Inspector Hess later obtained the
manufacturers’ information on both the 1½-inch valve (Exs. S-14, R-5) and the
6-inch shutoff valve (Exs. S-15, R-6) and sent the valves to MSHA fire
protection engineer Michael Hockenberry[5]
for analysis. Tr. 165-76. Based on his correspondence with a Milwaukee Valve
representative (Ex. S-20) and his review of the manufacturer’s information,
Hockenberry concluded the 1½-inch valve was a throwaway item that should not be
reused after being taken apart. Ex. S-18; Tr. 319-29, 367-70. Hockenberry procured
a brand new fully assembled 1½-inch valve (Ex. J-2) and another partly
assembled exemplar valve (Ex. J-1) to compare to the accident valve. He found
that the male threads on the accident valve’s tailpiece were worn down or
stripped, showing a 25% loss of material as compared to the exemplar valve. Ex.
S-18; Tr. 310-18, 366-67. In addition, the valve’s safe allowable working
pressure was rated at just 600 pounds per square inch (psi), which fell below
the mine’s typical water pressures of 800 psi or greater. Tr. 334-39, 370-73; see
Exs. S-14, R-5; Ex. R-7; Ex. S-5; Tr. 158-59; 465.

When Hockenberry examined the 6-inch
shutoff valve, he was able to rotate the handle to within 3 millimeters of the
closed position by applying less than 50 foot-pounds of torque. However, accumulated
coal dust and grime in front of the handle stop prevented him from closing it
the rest of the way. Ex. S-18; Tr. 349-53. According to the manufacturer’s
information, it should have taken 225 foot-pounds of torque to close the 6-inch
valve. Exs. S-15, R-6; Tr. 355-57. The manufacturer supplies a 22.5-inch
leverage bar with each 6-inch valve that can be attached to the handle with a
cotter key to increase the torque exerted. Tr. 156-57, 196-99; Ex. S-5; see Photograph
S-11 (new valve with leverage bar). At the Buchanan Mine, however, these
leverage bars were customarily detached from the valves as soon the valves were
brought into the mine. Tr. 89, 197, 223, 421-22, 581-82.  

After the conclusion of the accident investigation,
Inspector Hess issued two enforcement actions against Consol. Citation No.
8190902 alleged that the Respondent’s act of reusing the 1½-inch valve after it
had been pulled apart by the collision with the shuttle car constituted a failure
to maintain equipment in safe operating condition, in contravention of 30
C.F.R. § 75.1725(a). Exs. S-16, R-1. Order No. 8190903 alleged that the
Respondent’s failure to maintain the 6-inch shutoff valve in usable and
operative condition violated the requirement that firefighting equipment must
be maintained in usable and operative condition under 30 C.F.R. § 75.1100-3. Exs.
S-17, R-2.  

The Respondent removed the cited valves
from service immediately after the accident, abating the violations. Exs. S-16,
S-17, R-1, R-2; Tr. 242-43. The Respondent later took more extensive steps,
some partly in response to other non-contributory violations, to make the mine
safer. These steps included replacing all the two-piece 1½-inch valves in the
mine with valves that had a soldered connection and were rated to handle 1000
psi; repositioning the fire valve assemblies to move them away from the haulage
track; partnering with MSHA to develop an action plan for equipment moves;
changing the policies for fixing damaged water line components; and hanging
heavy-duty steel leverage bars above each 6-inch shutoff valve in the mine. Tr.
212-16, 223-24, 242-43, 451-55; see Exs. R-8 & S-22 (containing
enforcement actions issued by state of Virginia, with evidence of corrective
actions taken).

II.               
LEGAL
PRINCIPLES

A.    Gravity/S&S

The
gravity of a violation is generally expressed as the degree of seriousness of the
violation. Hubb Corp., 22 FMSHRC 606, 609 (May 2000); Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). Gravity is measured in terms
of the likelihood of injury, the type of injury expected, the number of persons
affected, and whether the violation is significant and substantial (S&S). See
Energy West Mining Co., 18 FMSHRC 565, 571 (Apr. 1996) (“In considering the
gravity of a violation, the Commission has generally considered the likelihood
of an occurrence of the hazard against which a standard is directed and the
severity of the resulting injury.”).

An S&S violation is a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S “if, based upon 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).

In Mathies Coal Company, the
Commission set forth the following four-part test to determine whether a
violation is properly designated S&S:

In order to
establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard – that is, a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861
F.2d 99, 103 (5th Cir. 1988); Consolidation Coal Co. v. FMSHRC, 824 F.2d
1071, 1075 (D.C. Cir. 1987). The inspector’s judgment is also an important
element of an S&S determination. Wolf Run Mining Co., 36 FMSHRC
1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555, 563 n.6
(Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec.
1998); Mathies, 6 FMSHRC at 5. The S&S determination must be based
on the particular facts surrounding the violation at issue. Peabody Coal Co.,
17 FMSHRC 508, 511-12 (Apr. 1995); see, e.g., Wolf Run, 36 FMSHRC
at 1957-59 (remanding S&S finding for further consideration of relevant circumstances). 

It is the third element of the S&S
criteria that is the source of most controversies regarding S&S findings. This
element is established only if the Secretary proves “a reasonable likelihood
the hazard contributed to will result in an event in which there is an
injury.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). Evaluation
of the reasonable likelihood of injury should be made assuming “continued
normal mining operations,” U.S. Steel Mining Co.,
6
FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made “in
consideration of the length of time that the violative condition existed prior
to the citation and the time it would have existed if normal mining operations
had continued.” Black
Beauty Coal Co.,
34 FMSHRC 1733, 1740 (Aug. 2012); Rushton Mining Co., 11 FMSHRC 1432,
1435 (Aug. 1989).

The S&S nature of a violation and
the gravity of the violation are not synonymous. Gravity is an element that
must be assessed for every violation, while an S&S determination is made
only in the context of enhanced enforcement under section 104(d) of the Mine
Act. The gravity assessment and a finding of S&S are frequently based upon
the same or similar factual circumstances, Quinland Coals, Inc., 9 FMSHRC
1614, 1622 n.11 (Sept. 1987), but the focus of the inquiries differs. The
Commission has pointed out that the focus of the gravity inquiry “is not
necessarily on the reasonable likelihood of serious injury, which is the focus
of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation
Coal Co., 18 FMSHRC at 1550; see also Harlan Cumberland Coal Co., 12
FMSHRC 134, 140-41 (Jan. 1990) (ALJ) (explaining that notwithstanding
likelihood of injury, some violations are serious in the context of the
standard violated and the Mine Act’s deterrent purposes – for example,
violations of an important safety standard; violations demonstrating recidivism
or defiance on the operator’s part; or violations that can combine with other
conditions to set the stage for disaster).

B.     Negligence/Unwarrantable
Failure

Negligence
is conduct that falls below the standard of care established under the Mine
Act. Under the Mine Act, an operator is held to a high standard of care and is
required to be on the alert for conditions and practices that may cause
injuries and to take necessary precautions to prevent or correct them. 30
C.F.R. § 10.0(d). High negligence is defined as having occurred in connection
with a violation when “[t]he operator knew or should have known of the
violative condition or practice, and there were no mitigating circumstances.” Id.
§ 100.3 Table X. The Commission has stated that a finding of high
negligence “suggests an aggravated lack of care that is more than ordinary
negligence.” DQ Fire & Explosion Consultants, Inc., 36 FMSHRC _,
slip op. at 5-6, Nos. WEVA 2011-952-R & WEVA 2011-2480 (Dec. 19, 2014) (citing
Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).

More
serious consequences can be imposed under the Mine Act for violations that
result from the operator’s unwarrantable failure to comply with mandatory
health or safety standards. The unwarrantable failure terminology is taken from
section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious
conduct by an operator in connection with a violation. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001-04
(Dec. 1987). Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995).

Whether conduct
is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any
aggravating factors or mitigating circumstances exist. These factors often
include (1) the extent of the violative condition, (2) the length of time the
violative condition existed, (3) whether the violation posed a high degree of
danger, (4) whether the violation was obvious, (5) the operator’s knowledge of
the existence of the violation, (6) the operator’s efforts in abating the
violative condition, and (7) whether the operator had been placed on notice
that greater efforts were necessary for compliance. Wolf Run Mining Co.,
35 FMSHRC 3512, 3520 (Dec. 2013); see Lopke Quarries, Inc., 23 FMSHRC
705, 711 (July 2011); Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar.
2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d
on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co.,
19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.
1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988). Because supervisors are held
to a high standard of care, another important factor supporting an
unwarrantable failure determination is the involvement of a supervisor in the
violation. Lopke Quarries, 23 FMSHRC at 711; Capital Cement, 21
FMSHRC 883, 892-93 (Aug. 1999); REB Enters., Inc., 20 FMSHRC 203, 225
(Mar. 1998); see Spartan Mining Co., 30 FMSHRC 699, 715, 720 (Aug. 2008).

The factors listed above must be viewed
in the context of the factual circumstances of a particular violation, and it
is not necessary to find that all factors are relevant or deserving of equal
weight in order to determine that the violation is unwarrantable. Wolf Run,
35 FMSHRC at 3520-21; E. Associated Coal Corp., 32 FMSHRC 1189, 1193
(Oct. 2010); IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009). However, all
factors that are relevant should be considered. San Juan Coal Co., 29
FMSHRC 125, 129 (Mar. 2007).

C.     Violations and
the Notice Requirement

The
Commission generally applies the reasonably prudent person test to determine
whether a violation has occurred under the Mine Act. The reasonably prudent
person test is a means of determining whether the operator has sufficient
notice of the meaning of the cited regulation to be charged with violating it. See
LaFarge North America, 35 FMSHRC 3497, 3500 (Dec. 2013). MSHA may
charge an operator with a violation of a safety or health regulation only when
the operator has actual notice of MSHA’s interpretation of the regulation, or
when “a reasonably prudent person familiar with the factual circumstances
surrounding the allegedly hazardous condition, including any facts peculiar to
the mining industry, would recognize a hazard warranting corrective action within
the purview of the applicable regulation.” Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982); see LaFarge, 35 FMSHRC at 3501. Thus,
even if the operator does not have explicit notice of a specific prohibition or
requirement contained in a safety or health standard, the operator still can be
charged with a violation if a reasonably prudent person familiar with the
protective purposes of the cited safety or health standard would have
ascertained the specific prohibition or requirement contained therein and
realized that under the factual circumstances there was a violation. LaFarge,
35 FMSHRC at 3501; Ideal Cement Co., 12 FMSHRC 2409, 2415-16 (Nov.
1990).

III.            
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

A.    Citation No.
8190902

1.      The Violation

Citation
No. 8190902 alleges that Consol’s act of reusing the 1½-inch bronze connector
valve after the shuttle car struck and separated it constituted a failure to
maintain equipment in safe operating condition, in violation of the mandatory
safety standard at 30 C.F.R. § 75.1725(a). Exs. S-16, R-1. This regulation
mandates: “Mobile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall
be immediately removed from service.” 30 C.F.R. § 75.1725(a).

As noted by the Secretary in his
post-hearing brief, Consol does not genuinely dispute that a violation of 30
C.F.R. § 75.1725(a) occurred when the 1½-inch valve was returned to service
after being struck by the shuttle car. The valve was a component of the mine’s water
supply and fire suppression systems and constituted “stationary equipment,” bringing
it within the ambit of the cited regulation. When the shuttle car struck the
valve, the force of the impact broke the valve in two. The valve’s tailpiece
was still attached to the 6-inch water line but water was shooting out where
the body of the valve should have been connected. Tr. 641. The body of the
valve is normally connected to the tailpiece by a set of internal threads
sealed with Loctite, but this internal threaded connection had been forcibly
pulled apart by the collision. The witnesses uniformly testified they had not
previously recognized that this type of valve could come apart. See Tr. 92-93,
115, 277-78, 458-59, 533, 547, 585, 633. MSHA’s witnesses testified the
internal threads could not have escaped damage after being forcibly pulled
apart. Tr. 68-71, 178-80, 279-81, 331-33, 398-99. Consol’s witnesses seemed to
agree that the valve would have incurred damage under these circumstances and should
have been replaced rather than returned to service. See, e.g., Tr.
427, 462-68, 555-57, 644. Indeed, the valve proved to be in unsafe condition,
because it split in two again at the same threaded connection several minutes
after it was returned to service and placed under pressure. Subsequent analysis
of the valve revealed damage to the internal threaded connection, including stretching
of the female threaded portion and loss of material on the peaks of the male
threads. Tr. 67, 85-87, 107-08, 143-44, 297-99, 310-18, 366-67; Ex. S-2 at 21,
27; Ex. S-3 at 18-20; Exs. R-8 & S-22 at 11-12; Ex. R-9 at 2; Ex. S-18.

I find that the 1½-inch valve was in
unsafe condition as soon as it was pulled apart by the shuttle car and should
have been immediately removed from service. A reasonably prudent miner who knew
the valve had been struck and forcibly pulled apart by the shuttle car would
have recognized that the valve’s structural integrity was compromised under the
circumstances and would have immediately removed it from service. However, the
Respondent placed the valve back in service instead. Under these circumstances,
a violation of 30 C.F.R. § 75.1725(a) is established.  

2.      S&S
Designation and Gravity

In assessing the gravity of
this violation, Inspector Hess indicated that one fatal injury had occurred. Exs.
S-16, R-1. He also designated the violation S&S. Consol does not directly
dispute MSHA’s gravity findings or the S&S designation.

I find that this
violation meets the four elements of the Mathies test and therefore I uphold
the Secretary’s characterization of the violation as S&S. As discussed above,
the Secretary has established an underlying violation of a mandatory safety
standard, satisfying the first Mathies element. Consol’s use of the
1½-inch valve while it was in unsafe condition contributed to the risk or
hazard that the valve would fail again when placed under pressure during
continued normal mining operations, satisfying the second Mathies element.
The remaining Mathies elements are reasonable likelihood of injury and
reasonable likelihood that such injury will be reasonably serious in nature.

The hazard that
the valve would fail again was reasonably likely to result in injury based on
the particular facts surrounding the violation. The valve was connected to a
water line carrying pressurized water. The water pressure at the Buchanan Mine
was known to be unusually high. Tr. 276-77, 460, 488-89, 504-05. Inspector Hess
obtained water pressure measurements exceeding 800 psi, more than 200 psi
greater than the 1½-inch valve’s 600 psi rating. Tr. 158-59, 192-94; Ex. S-5; see
Exs. S-14, R-5; Ex. R-7. The valve could be closed to shut off the water
supply to the manifold at crosscut #61, in which case pressure would build up
behind the 1½-inch valve’s ball plug; failure of the valve would cause a sudden
outrush of the highly pressurized water. On the night the violation occurred, the
valve was closed in order to shut off the water supply to the manifold so Saunders
and Green could finish repairing it. Tr. 59; Ex. S-2 at 9-10; Exs. R-8 &
S-22 at 5-7; Ex. R-9 at 3. Saunders and Green were working directly above and in
front of the damaged 1½-inch valve while it was under pressure, and at least
seven other miners were standing nearby. See Tr. 525; Ex. S-13; Exs. R-8
& S-22 at 7. The manifold was partly disassembled such that the only pipe
fitting holding it in place was the damaged 1½-inch valve. Under these
circumstances, it was reasonably likely that the failure of the 1½-inch valve
would cause a piece or pieces of the manifold to be blown apart by escaping
pressurized water, injuring one of the nearby miners. In fact, this event
occurred. Considering all the foregoing facts, I find that the third Mathies
element is satisfied.

There was also a
reasonable likelihood that any injury caused by the violation would be of a
reasonably serious nature. The 1½-inch valve and the other components of the
manifold were heavy metal objects. See Exs. J-1, J-2. The water pressure
at the mine was high enough to propel these objects through the air with
sufficient force to cause serious injuries to anyone within striking distance,
as evidenced by the fact that the fire valve assembly fatally struck Saunders and
was propelled more than twenty feet across the #5 entry even after bouncing off
of another miner and the mine roof. Ex. S-2 at 10, 14; Ex. R-9 at 5, 8. I find
that the fourth Mathies element is satisfied, and I uphold the
Secretary’s S&S designation for this violation.  

The gravity
inquiry focuses on the seriousness of the violation and “the effect of the
hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550
(Sept. 1996). A judge can find that the gravity of a violation is very serious
based solely on the potential effect of the violation. See, e.g., PBS
Coals, Inc., 30 FMSHRC 1087, 1091-92 (Nov. 2008) (ALJ) (finding violations
that led to nine miners being trapped in a flooded section were “of the utmost
gravity” even though the miners were rescued). In this case, the actual
effect of the violation was a fatality. I find that this violation was
extremely serious in view of its contribution to a fatality. See Madison
Branch Mgmt., 17 FMSHRC 859, 873 (June 1995) (Doyle and Holen, Comm’rs,
dissenting on other grounds) (noting violation was very serious in view of
fatality); Spartan Mining Co., 29 FMSHRC 465, 481 (June 2007) (ALJ)
(“Obviously, the gravity of the violation is extreme as evidenced by the
fatality in this case.”), vac’d in part on other grounds, 30 FMSHRC 699
(Aug. 2008).

3.      Negligence and
Unwarrantable Failure

Hess
assessed this violation as resulting from the operator’s high negligence and
issued the citation under section 104(d)(1) of the Mine Act, stating that the
violation resulted from Consol’s unwarrantable failure to comply with a
mandatory standard. The narrative portion of the citation includes the
following explanation for his decision to charge unwarrantable failure:

The operator and
its agent displayed aggravated conduct constituting more than ordinary
negligence by allowing this damaged and separated ball type closure valve to be
reused. Mine management, including the foreman assigned to supervise the miners
making the repairs, were aware that the water valve assemblies were frequently
struck and damaged during movement of oversized equipment. This knowledge
should have prompted the operator and his agent to take extra care in the
repair or replacement of these water valve assemblies. This extra care would
include following the ball valve manufacture[r’]s recommendations which state
that this is a throw away item and should not be repaired or rethreaded if a
separation within the threaded portions occur[s]. Also management, despite the
numerous previous times fire valve assemblies were struck and damaged, failed
to improve the design and layout of the fire valve assemblies in this mine to
prevent them from being struck during equipment moves. This is an unwarrantable
failure to comply with a mandatory standard.

Exs.
S-16, R-1. Inspector Hess additionally noted that a foreman, Addington, had
been in plain sight and hearing distance of the
violation who could and should have stepped in to take control of the situation
and prevent the valve from being reused. Tr. 206-12, 248-55, 285-88. At the hearing,
Hess explained that his characterization of the 1½-inch valve as a “throwaway
item” was based on the manufacturer’s recommendations and the information fire
protection engineer Hockenberry had provided. Tr. 204-05, 273-75. Although mine
management did not see the manufacturer’s information prior to the accident,
Hess felt that the other circumstances supported a finding of aggravated
conduct. Tr. 268-69, 285-86. Hess’s position was that mine management as a
whole displayed a high degree of negligence because management was aware fire
valve assemblies had been hit during equipment moves in the past but failed to
take any action to mitigate the problem until after the fatality occurred. Tr.
212, 257, 294.

The Secretary requests that Hess’s
unwarrantable failure designation be upheld, citing the high degree of danger
posed by the violative condition; the obviousness of the condition; the
presence of a supervisor at the accident scene; the operator’s knowledge that
the water pressure in the mine was unusually high and that components of the water
supply system were regularly struck during equipment moves; and the operator’s
failure to take any concomitant precautions to ensure the safety of miners in
the face of this knowledge. Sec’y’s Br. at 11-24.

The
Respondent argues this citation should be modified to a section 104(a)
citation, contending that the violation did not result from aggravated conduct
and that the factors necessary for an unwarrantable failure finding are not
present. Counsel for the Respondent asserts that Addington did not observe the
1½-inch valve before it was screwed back together, did not watch Saunders and
Green put it back together, and was unaware of the danger posed by reattaching
the two pieces of the valve. Resp.’s Br. at 16. Counsel contends that the
testimony does not establish that damaging fire valve assemblies was a common
occurrence during equipment moves. Id. at 17. Counsel further contends
that MSHA did not place the Respondent on notice that greater efforts at
compliance were necessary prior to the accident, nor did the Respondent have a
copy of the 1½-inch valve manufacturer’s recommendations such as would have
provided notice that valve repairs should not be attempted. Id. Counsel argues
that the mine’s high water pressure was a “non-issue” that posed no hazard
despite exceeding the 1½-inch valve’s 600 psi rating because the valve had a
safety factor of 2.5; no other valve in the mine had ever failed; and everyone
(including MSHA) was aware of the high water pressure prior to the accident. Id.
at 18.

As
noted above, factors that should be considered in assessing an unwarrantable
failure determination include the length of time that the violation existed,
the extensiveness of the violation, whether the operator was placed on notice
that greater efforts were necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation was obvious or posed a
high degree of danger, the operator’s knowledge of the existence of the
violation, and the involvement of a supervisor.

(a)    Duration of Violative
Condition

The Commission has emphasized that the duration
of the violative condition is a necessary element of the unwarrantable failure
analysis. E. Associated Coal Corp., 32 FMSHRC 1189, 1198 (Oct. 2010); Coal
River Mining, LLC, 32 FMSHRC 82, 92 (Feb. 2010); IO Coal Co., Inc.,
31 FMSHRC 1346, 1352 (Dec. 2009); Windsor Coal Co., 21 FMSHRC 997,
1001-04 (Sept. 1999). Even imperfect evidence of duration should be taken into
account by the judge. Coal River, 32 FMSHRC at 93.

The violation at issue here is the
Respondent’s act of reusing the 1½-inch valve after it was struck by the
shuttle car. This violation began when the 1½-inch valve was placed into
service in unsafe condition. Eyewitness B.J. Davis testified that less than
five minute elapsed before the valve blew apart again, causing the water
manifold to fly off of the water line and fatally strike Saunders. Tr. 515-16. Similarly,
Addington estimated that five to ten minutes had elapsed. Ex. S-12. Thus, the
violation lasted only a few minutes, but long enough to cause a fatal accident.

(b)   Extensiveness of
Violation

The purpose of analyzing the extent of a
violation is to give consideration to the scope or magnitude of the violation. E.
Assoc’d Coal Corp., 32 FMSHRC at 1195. Sometimes extensiveness can be
assessed in terms of quantity or with regard to the physical dimensions of the
area affected. Dawes Rigging & Crane Rental, 36 FMSHRC _, slip op.
at 6, No. LAKE 2011-206-M (Dec. 10, 2014) (noting that extensiveness “has
traditionally been determined by examining the extent of the affected area as
it existed at the time the citation was issued”); see, e.g., Twentymile
Coal Co., 36 FMSHRC 1533, 1539 (June 2014) (noting “geographic extent” of
coal accumulations supports unwarrantable failure finding); IO Coal, 31
FMSHRC at 1352 (instructing ALJ to consider number and distribution of
unsupported kettle bottoms in assessing extent of violation); Jim Walter
Res., Inc., 19 FMSHRC 480, 485 (Mar. 1997) (noting judge’s finding of 200
defective rollers bears on extent of belt maintenance violations); id. at
486-88 (analyzing extent of accumulations in terms of their depth, length, and
width); Peabody Coal Co., 14 FMSHRC 1258, 1259, 1261 (Aug. 1992)
(describing physical dimensions of five “large” accumulations and finding them
extensive). Other factors that may be relevant to extensiveness include the
number of persons affected by the violation and the measures required to abate it.
See, e.g., Dawes Rigging, slip op. at 6 (finding violation was
not extensive because it endangered only one person); E. Assoc’d Coal Corp.,
32 FMSHRC at 1196 (instructing ALJ to consider extensiveness of abatement
measures needed to terminate the citation); Watkins Eng’rs &
Constructors, 24 FMSHRC 669, 681 (July 2002) (upholding extensiveness
finding based on extent of employees’ exposure to the hazard); Jim Walter
Res., 19 FMSHRC at 486 (finding that accumulation was extensive when it
took 11 man-hours to clean it up).

The Commission has stated that the
extensiveness inquiry “ultimately is a fact question concerning the material
increase in the degree of risk to miners posed by the violation,” and should
account for the broad scope of the circumstances surrounding the violation. E.
Assoc’d Coal Corp., 32 FMSHRC at 1196. For example, in one recent case, the
Commission relied on numerous factors to conclude that the coal accumulations
in question were extensive, including the depth and dryness of the
accumulations, the number of men and hours required to clean them up, the
number of entries affected, and a miner’s testimony that the spillage was more
extensive than normal. McCoy Elkhorn Coal Company, 36 FMSHRC 1987,
1993-94 (Aug. 2014).

In this case, the violation involved
just one valve. However, the unsafe condition of the valve endangered numerous people.
At least nine miners were located at the intersection of the #5 entry and the

61 crosscut in the vicinity of the valve while it was in unsafe condition. See

Tr. 525; Ex. S-13; Exs. R-8 & S-22 at 7. The valve’s failure allowed
the water manifold it was supposed to be anchoring to fly a total distance of
23 feet 4 inches out into the intersection, striking two miners and the mine
roof in the process. Ex. S-2 at 10, 14; Ex. R-9 at 5, 8. Thus, the violative
condition was extensive in that it endangered all of the miners in the
intersection.

The violative condition was also
extensive in that it involved an extensive degree of damage to the 1½-inch
valve. The valve had been struck by a massive piece of machinery and torn into
two pieces at a threaded, sealed connection where it was never ordinarily taken
apart.

To terminate the citation, the valve was
immediately removed from service. This was not an extensive abatement effort,
but the Respondent subsequently undertook more extensive efforts (some partly
in response to other enforcement actions not at issue here) to eliminate the
underlying conditions that led to the violation. State and MSHA investigators
had discovered the mine had a history of water line components being struck
during equipment moves because the 6-inch water line was positioned too close
to the haulage track. Tr. 184-89; Ex. S-1 at 13; Exs. R-8 & S-22 at 7. Of
the many witnesses with work experience at the Buchanan Mine, all but one
indicated they had previously participated in equipment moves where a fire
valve assembly was struck, or were aware of this occurring, or had disassembled
valves during equipment moves to avoid hitting them. Tr. 102, 432-33, 466-67,
530, 547-49, 570-72, 624, 632-33. However, the mine did not have instructions
or a policy in place specifically addressing what to do when water line
components were struck and damaged or instructing miners not to reuse damaged
components. See Tr. 441-45, 466-67. After the accident, the Respondent
rerouted the entire water line to move it farther away from the perils of the haulage
track and implemented new policies for safely repairing damaged water line components.
Exs. S-16, R-1. Thus, extensive efforts were required to abate the underlying
problems at the mine that had permitted the occurrence of the violation.

(c)    Operator’s
Notice that Greater Compliance Efforts Were Necessary

An operator’s history of prior similar
violations or other forms of specific warnings may be relevant to the
unwarrantable failure analysis. The prior violations and warnings are relevant
to the extent they engendered in the operator a heightened awareness of a safety
problem requiring corrective action, and to the extent they placed the operator
on notice that greater efforts were necessary for compliance with the standard
that was violated. See Dawes Rigging, slip op. at 7; San Juan Coal
Co., 29 FMSHRC 125, 131 (Mar. 2007) (citing Mid-Continent Res., Inc.,
16 FMSHRC 1226, 1232 (June 1994)); IO Coal, 31 FMSHRC at 1353; Consolidation
Coal Co., 23 FMSHRC 588, 595 (June 2001); Amax Coal Co., 19 FMSHRC
846, 851 (May 1997).

Recently, the Commission has clarified
that a significant difference exists between the forms of notice that inform an
operator of the Secretary’s interpretation of a safety standard (i.e., the
forms of notice that are considered in determining whether the operator may
properly be charged with a violation) and the forms of notice that inform an
operator that greater efforts at compliance are needed for purposes of an
unwarrantable failure analysis. Dawes Rigging, slip op. at 7 n.5.
Constructive notice suffices in the former context. By contrast, in determining
whether an operator is on notice that greater efforts at compliance are needed,
the judge must look to the operator’s history of violations, discussions with
inspectors, and other forms of specific warnings from MSHA to determine if the
operator has been placed on notice of a persistent unsafe condition or practice
at its mine. Id. (citing Consolidation Coal Co., 23 FMSHRC at
595; Lion Mining Co., 18 FMSHRC 695, 700 (May 1996); and Peabody Coal
Co., 14 FMSHRC 1258, 1262 (Aug. 1992)); but see Windsor Coal Co., 21
FMSHRC 997, 1004 (Sept. 1999) (directing ALJ to consider all relevant record
evidence not limited to specific warnings from MSHA, including shift book
reports, to determine whether operator was on notice of recurring safety
problem in need of correction); Jim Walter Res., Inc., 19 FMSHRC 480,
485 (Mar. 1997) (noting management’s prior receipt of complaints about
recurring problem bears on notice).

As discussed above, it was common
knowledge at the Buchanan Mine and mine management was aware that components of
the 6-inch water line alongside the haulage track were at risk of being struck
and damaged during equipment moves. See, e.g., Tr. 432-33 (safety
supervisor’s testimony showing he had previously discussed such incidents with
miners); 571 (shift foreman’s testimony stating fire valves would be struck
once every eight or ten moves and it was “always something you were aware of”).
In fact, the shuttle car that Green, Saunders, and Addington were transporting
on January 11, 2012 had struck a fire valve assembly earlier that very day as
it was being moved through the mine during the previous shift. Tr. 176-78, 255;
Exs. R-8 & S-22 at 3.

The Secretary argues that a 2008 injury
at the mine had placed mine management on notice that working on water
manifolds was hazardous. Sec’y’s Br. at 21. A manifold had been propelled into
a miner’s face by pressurized water in 2008, giving the miner a broken nose and
lacerations that required sutures. Ex. S-21. The Secretary contends that
because mine management was aware of this accident and was also aware that fire
valves were frequently struck during equipment moves, it was on notice of a
hazard that needed to be addressed. Sec’y’s Br. at 21. I agree that the
evidence shows mine management was aware of a recurring problem bearing on the
safety of equipment at its mine.  

However, MSHA was not aware of this
problem. MSHA did not issue any violations or warnings to the Respondent or
engage in any discussions with mine management that would have placed the
Respondent on notice that greater efforts were required to comply with 30
C.F.R. § 75.1725(a) in terms of ensuring water line components were being
maintained in safe operating condition. Mine management’s awareness of the
general problem with water line components being struck does not constitute specific
notice that the Respondent was required to take greater efforts in order to
comply with § 75.1725(a). Cf. E. Assoc’d Coal Corp., 32 FMSHRC at 1199
(rejecting Secretary’s argument that operator’s experience maintaining roof put
it on notice that greater efforts at compliance with roof safety standard were
necessary).

(d)   Obviousness of
Violation

The obvious nature of a violation can
constitute a factor supporting an unwarrantable failure finding. E.g., Wolf
Run Mining Co., 35 FMSHRC 3512, 3521 (Dec. 2013); Jim Walter Res., Inc.,
19 FMSHRC 1761, 1770 (Nov. 1997).

This violation was very obvious. The internal
threaded connection between the 1½-inch valve’s two pieces had multiple, very
fine threads. Tr. 96, 144-47, 395, 563. Any person familiar with valves or
threaded connections of any sort would know that the valve required multiple turns
and proper alignment to put back together. Here, the testimony was that the
threads were not carefully checked for damage and Saunders reattached the two
pieces of the valve forcibly with a wrench. Tr. 514, 527-28, 641, 652-54. This
should have been an indication that the connection was not properly reseated. MSHA’s
witnesses testified it would be “intuitive to believe” (Tr. 331) the valve’s
internal threaded connection sustained damage when it was forcibly pulled apart
by the shuttle car without being unthreaded. Tr. 68-71, 178-80, 279-81, 331-33,
398-99. I agree. Any person familiar with such a valve would readily understand
that if it is shorn apart by blunt force, the threads would be damaged. Whether
the damage was visible or not, it would be evident to any reasonable person
familiar with the mining industry that this valve was damaged beyond use.

Moreover, even if it had not been obvious
that the 1½-inch valve’s internal threaded connection was damaged, the valve
itself plainly was in no condition to be safely placed back in service after
being torn apart by the shuttle car. The valve manufacturer’s Installation,
Operation, and Maintenance Manual (Exs. S-14 and R-5), which is freely
available online, (Tr. 380), states: “Repair or replacement of two piece ball
valves internal parts is not recommended. Damage can occur to the body and
tailpiece during disassembly that would make the valve inoperable.” Consol’s
supplier testified that the manufacturer will not sell individual parts for
these valves and he has never heard of anyone disassembling or attempting to
repair them. Tr. 538-40. The valve was commonly regarded by miners as a single
unit and most witnesses said they were unaware before the accident that it
could come apart. See Tr. 92-93, 115, 277-78, 458-59, 533, 539, 547,
585, 633. However, after being struck by the shuttle car, it had broken into
two pieces. Tr. 641. The Loctite that ordinarily seals the seam between the
body and tailpiece, creating the impression that the valve is one piece, would
have been noticeably disrupted and the seal destroyed. The inner chrome ball
plug and the very guts of the valve would have been exposed. It would have been
very obvious that the valve was no longer in safe operating condition and
should not have been placed back in service.

(e)    Degree of Danger
Posed by Violation

The Commission has relied upon the high
degree of danger posed by a violation to support an unwarrantable failure
finding. Wolf Run Mining Co., 35 FMSHRC 3512, 3522 (Dec. 2013); Coal
River Mining, 32 FMSHRC at 94; IO Coal, 31 FMSHRC at 1355; see,
e.g., Midwest Material Co., 19 FMSHRC 30, 34-35 (Jan. 1997); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr.,
Inc., 14 FMSHRC 1125, 1129 (July 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988).

The violation at issue here was highly
dangerous. While this violation was occurring, water was discharging from the
breached location on the water line in a constant stream, even though the
miners had tried to turn the water off before making repairs to the breached manifold.
Tr. 526-27, 621-23, 643, 650-52. The miners had not tried to bleed off residual
water before performing the repairs and had not checked to make sure the
shutoff valves were closed all the way. Tr. 647, 652. In fact, the 6-inch
shutoff valve at crosscut #62 was not completely closed. This allowed water to flow
into the damaged 1½-inch valve while it was in unsafe condition. In light of
the unsafe condition of the valve, the proximity of the miners who were making
repairs to the manifold, the known high water pressure[6]
at the mine (see Tr. 276-77, 459-61, 488-89, 504-05), and the fact that
water continued to flow into the valve and the partly disassembled manifold, it
should have been obvious that the violative condition posed a very high degree
of danger, a danger that was unfortunately realized when the 1½-inch valve
failed a second time while the victim was working directly in front of it.

(f)    Operator’s
Knowledge of Existence of Violation

An operator’s actual or constructive
knowledge of the existence of a violation is relevant to the unwarrantable failure
analysis. Constructive knowledge may be established where the operator
reasonably should have known of the violative conduct. Coal River Mining,
LLC, 32 FMSHRC 82, 90-92 (Feb. 2010) (finding that knowledge may be
established where operator’s awareness of predicate circumstances meant it
reasonably should have known of violation); see also E. Assoc’d Coal Corp.,
32 FMSHRC at 1199; IO Coal, 31 FMSHRC at 1357; San Juan Coal Co.,
29 FMSHRC at 133-34; Drummond Co., Inc., 13 FMSHRC 1362, 1367-68 (Sept.
1991); Emery Mining Corp., 9 FMSHRC 1997, 2002-04 (Dec. 1987).

As discussed above, this violation was
very obvious. Addington, a foreman and agent of the operator, was present at
the scene of the violation. Addington should have recognized the obvious
violation that was occurring in front of him.

The Respondent contends Addington did
not observe any damage to the 1½-inch valve and was unaware it had separated in
two because Green and Saunders had already put the manifold back on the fire
tee when Addington returned to the scene of the accident after calling a
supervisor. Resp.’s Br. at 16. However, Addington reasonably should have known
of the violation in his capacity as the miners’ supervisor, even though he did
not participate in the attempt to put the manifold back together. He knew that
an oversized piece of equipment had just struck and breached this component of
the water line, necessitating repairs. As the person with supervisory
authority, he should have assessed the condition of the water line components
that had been struck by the shuttle car and supervised the efforts to repair
them. At the very least he should have inspected the valve and ensured the
water was cut off. If he had done so, he would have realized that Green and
Saunders were reusing a valve that had been torn apart by blunt force. Instead,
however, Addington apparently spent several minutes drying off in a nearby
crosscut before returning to stand some distance behind Green and Saunders as
they were working without providing any instructions or supervision. See Tr.
528-34, 610-16, 622, 642, 657. As the supervisor at the scene, Addington was
also the point of contact with shift foreman Semones. Addington should have
heeded Semones’ order to continue moving through the mine and let another crew
come to check and repair the valve. In short, Addington was in a position to
know of the violative condition and of the need to address it. Addington’s
knowledge is imputed to the Respondent.   

(g)   Operator’s
Efforts in Abating Violative Condition

An operator’s prior efforts to abate a
violative condition are relevant to the unwarrantable failure analysis, as is
the level of priority the operator places on abating conditions for which it
has received notice that greater compliance efforts are required. See IO
Coal, 31 FMSHRC at 1356.  However, abatement efforts undertaken after the
issuance of the citation are not relevant. Id. (“The focus on the
operator’s abatement efforts is on those made prior to the citation or order.”)
(citing New Warwick Mining Co., 18 FMSHRC 1568, 1574 (Sept. 1996)); Enlow
Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997); cf. Consolidation Coal Co.,
22 FMSHRC 328, 332 (Mar. 2000) (finding that intention to abate in future is
irrelevant).

Despite the obviousness and
dangerousness of this violation and the presence of a foreman, the Respondent did
not remove the 1½-inch valve from service or otherwise abate the violative
condition. There is no indication the Respondent would have abated the
violation if a fatal accident had not occurred. The mine had no standard method
for handling a situation when a component of the water line was struck during
an equipment move, see, e.g., Tr. 433, 441-45, 466-67, even
though members of mine management such as the mine’s safety director and
training coordinator were aware that this was a problem, see Tr. 432-33,

463. Thus, although shift foreman Semones had directed a different crew to come
     repair the water line instead of Addington’s move crew, Tr. 576-77, there is no
     indication the different crew would have replaced the defective valve either. Addington
     also testified that if he had heard Semones direct a different crew to repair
     the water manifold, he would have ignored the instruction and allowed Green and
     Saunders to finish their ill-fated repair attempts. Tr. 616-17.

Additionally, even before the events of
January 11, 2012, the Respondent had the knowledge and opportunity to take
action that could have prevented the 1½-inch valve from being struck by the
shuttle car or ensured that miners were better prepared to make repairs in the
event of a collision. As discussed above, mine management was aware that
components of the water line along the haulage track were sometimes struck and
damaged during equipment moves. Addington even testified that he looked for replacement
valves before they started the equipment move but none were on hand. Tr. 624,
627; see Ex. S-12. Yet it was not until after a fatality occurred that
the Respondent moved the water line away from the haulage track, developed an
action plan for equipment moves, and overhauled its training policies for
repairing water line components. Thus, despite mine management’s awareness that
damage resulted from equipment moves, management apparently was not
sufficiently prepared to respond to such an occurrence. I consider this a
failure to abate the violative condition as well. Although MSHA did not
specifically warn or instruct Consol to undertake these efforts beforehand, this
does not relieve Consol of responsibility for taking appropriate measures to address
known problems potentially bearing on safety in its mine.

Consol’s valve supplier testified that
it costs $42 to replace a 1½-inch valve. Tr. 538. Thus, the cost of replacing
this throwaway valve would have been low. The cost of implementing a policy of
replacing instead of reusing torn up parts would also have been low, while the
probability of injury and the seriousness of the injury that actually resulted
from the failure to implement such a policy or replace the valve were very
high. In this context, the Respondent’s failure to abate the violative
condition was egregious.

(h)   Involvement of a
Supervisor

Because supervisors are held to a higher
standard of care and entrusted with heightened safety responsibilities, the
Commission takes into account the extent of supervisors’ involvement in the
violation in determining whether the operator’s conduct was unwarrantable. See
Coal River Mining, 32 FMSHRC at 90-92 (remanding for ALJ to consider
supervisors’ involvement in assessing whether operator had knowledge of
violation); Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001); REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). Their violative conduct can
be imputed to the operator. Capital Cement, 21 FMSHRC 883, 892-93 (Aug.
1999).

The Secretary argues that foreman
Addington’s involvement in the violation is a significant aggravating factor in
this case. Sec’y’s Br. at 13-19. The Respondent has sought to minimize Addington’s
involvement in the accident.

At the time of the accident, Addington
had 35 years of underground coal mining experience and had typically served as
a section foreman in the past, but for the past six months to a year he had
regularly worked as an outby foreman as well. Tr. 603-06. He had never worked
an equipment move before. Tr. 607. Semones testified that he assigned Addington
to the equipment move because Addington was an “extra” foreman that night and
he wanted him to gain experience by observing Green and Saunders, who had
performed equipment moves before. Tr. 567-68, 597. Addington testified his
understanding was that he was to serve as “an extra person to help watch.” Tr.
607.

Despite these suggestions that Addington
was not acting as a supervisor, the evidence unequivocally shows he was a
foreman and was in charge of the move crew on the evening of the accident. Semones
acknowledged that he expected Addington to act as a foreman. Tr. 597-99. The
rank-and-file miners who testified at the hearing referred to Addington as the
“boss” and agreed he was in charge. Tr. 525, 534, 650, 654, 658, 661. Saunders
and Green may have had more experience than Addington at equipment moves, but
assigning experienced miners to a task does not relieve the operator of the
responsibility of providing adequate supervision. To the extent the Respondent
is arguing it should be relieved of liability because Addington did not have
the requisite experience and training to fulfill his duties as a foreman, I
reject this argument. If Addington’s ability to fulfill his duties was a
concern, the Respondent should have assigned a different foreman or ensured
that Addington received the appropriate training before he was put in charge of
a move crew. Otherwise, an operator could always limit its liability by
assigning foremen to tasks with which they are not familiar or for which they
are not fully trained. In addition, if Addington was unsure what to do when the
shuttle car struck the water line, this should have spurred him to stop his men
from doing anything until after he had called Semones and received instructions
on how to handle the situation properly.

Testimony was elicited suggesting Green
and Saunders were top notch employees who took it upon themselves to fix the
manifold without Addington’s instructions or involvement. E.g., Tr.
434, 514, 544-45, 578. This does not relieve Addington of his supervisory
duties. Similarly, apparently in an attempt to explain why a foreman might not
seem to be in charge during an emergency or when a problem arises, Semones
testified “our people are empowered at the mines.” Tr. 595-96. But this is not
an excuse for a foreman’s inaction in the face of an emergency or problem. An
operator should not permit an atmosphere where it is left to rank-and-file
miners to determine what to do in a hazardous or unusual situation.  

The Respondent argues in its closing
brief that Addington was unaware of the danger posed by this violation because
he did not know the 1½-inch valve had broken apart. Resp.’s Br. at 16. However,
as discussed above, this violation was very obvious and Addington should have been
aware of what was going on under his watch. He knew the shuttle car had struck
and sheared off a component of the water line and he observed water continuing
to discharge from the breached manifold even after the miners had tried to isolate
the line. He certainly should have investigated these extraordinary
circumstances. Instead, he simply stood by. The Respondent adduced testimony
that Green and Saunders did not detect any damage to the threads of the 1½-inch
valve and tightened it down with a wrench, Tr. 512-14, 527-28, 641, 651-54, but
the Secretary contends that this is irrelevant because Addington should have
been supervising them and should have known better than to re-thread the valve.
Sec’y’s Br. at 19. I agree. As a foreman entrusted with responsibility for the
safety of his men, he should have known that when a valve, particularly one
that is commonly regarded as a single unit, is torn in two by blunt force, the
threads must be damaged and a new valve should be installed. In fact, he
apparently did have some inkling that valves struck during equipment moves
should be replaced because he looked for replacement valves before he went
underground. Tr. 624, 627; Ex. S-12. But Addington’s inaction prevented him
from learning the 1½-inch valve had broken apart and instructing his men to
replace it.

In sum, I find that Addington’s conduct
demonstrated an inattention to safety that supports a finding of unwarrantable
failure in connection with this violation.

(i)     Analysis and
Weighing of Unwarrantable Failure Factors

I find that the obviousness of this
violation and the high degree of danger it posed are significant aggravating
factors in this case. See Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb.
2013) (stating that dangerousness, alone, can be enough to justify an
unwarrantable failure finding); Windsor Coal Co., 21 FMSHRC 997, 1006
(Sept. 1999) (noting that Commission has relied upon obviousness and
dangerousness to support an unwarrantable failure finding). In addition, the
involvement of a foreman is a significant aggravating factor. Addington was in
plain sight of the violation and should have known it was occurring. As the
Respondent’s agent, Addington was in a position to step forward and take action
to avert the accident that resulted from the violation. Yet he failed to do so,
despite the obviousness of the violation and the clear dangerousness of the situation.  

The Respondent argues that the fact that
MSHA did not provide notice that greater efforts at compliance were necessary
is a significant mitigating circumstance in this case. Resp.’s Br. at 17. However,
I find that lack of notice by MSHA is not a significant mitigating factor in
light of mine management’s general awareness of an ongoing problem with
striking and damaging water line components, and in light of the obviousness
and dangerousness of the violation, which should have signaled to mine
management that the situation that arose on January 11, 2012 required special
care. See Mach Mining, LLC, 35 FMSHRC 2937 (Sept. 2013) (finding lack of
notice by MSHA not a mitigating factor where even without such notice,
reasonably prudent person would have recognized frustration of purpose of cited
regulation in light of obviousness and extent of violative condition). Lack of
notice by MSHA need not be the deciding factor in an unwarrantable failure
determination. See San Juan Coal Co., 29 FMSHRC 125, 129 (Mar. 2007)
(remanding with reminder to consider all relevant factors when ALJ relied
almost exclusively on notice factor to conclude unwarrantable failure was not
present). I find that the notice factor is less relevant to this case than the
Respondent’s failure to take any action to abate the violation or avoid the
injury that resulted despite the obviousness, dangerousness, and involvement of
a supervisor.

Although this violation involved just
one valve, the violation was extensive in the sense that it placed nine miners
in danger and involved extensive damage to the valve. Although the violation
lasted for only a few minutes, a violation that exists for a relatively short
period of time can properly be deemed an unwarrantable failure when other
factors so warrant. Coal River Mining, LLC, 32 FMSHRC 82, 93 (Feb.
2010); see, e.g., Midwest Material Co., 19 FMSHRC 30, 34-36 (Jan.
1997) (upholding unwarrantable failure finding when violative condition lasted
only a few minutes but posed a high degree of danger, involved a foreman, and
may have continued but for occurrence of accident); LaFarge Constr.
Materials, 20 FMSHRC 1140, 1145-48 (Oct. 1998) (same). I find that the
aggravating factors discussed above – particularly obviousness, dangerousness,
and involvement of a supervisor – justify a finding of unwarrantable failure in
this case and I uphold the Secretary’s unwarrantable failure designation.

For all the reasons discussed above, I
find that the Respondent displayed an aggravated lack of care that constituted
more than ordinary negligence in connection with this violation. Accordingly, I
uphold the Secretary’s finding of high negligence. See DQ Fire &
Explosion Consultants, Inc., 36 FMSHRC _, slip op. at 5-6, Nos. WEVA
2011-952-R & WEVA 2011-2480 (Dec. 19, 2014) (stating that high negligence
“suggests an aggravated lack of care that is more than ordinary negligence”).

B.     Order No. 8190903

1.      The Violation

Order No. 8190903 alleges a violation of
30 C.F.R. § 75.1100-3, which mandates: “All firefighting equipment shall be
maintained in a usable and operative condition.” Specifically, the order
alleges that the 6-inch shutoff valve[7]
at the #62 crosscut was not maintained in usable and operative condition in
that (1) dirt and grime had built up on the outside of the valve and obstructed
the path of the handle, and (2) there was no leverage bar nearby that could be
used to turn the handle. Exs. S-17, R-2. The Secretary argues that the 6-inch
valve could not effectively shut off the water supply due to those two
contributing factors. Sec’y’s Br. at 25.

The
Respondent argues that Order No. 8190903 should be vacated because MSHA did not
provide reasonable notice that it considered lack of leverage bars to
constitute a violation of the cited safety regulation. The Respondent contends that
the sole reason Inspector Hess issued Order No. 8190903 was because of the mine’s
failure to keep the manufacturer-issued leverage bar attached to the 6-inch
valve, but the sole reason the valve did not close all the way was the accumulation
of material around the handle stop that allowed a 3-millimeter opening where
water could pass through. Resp.’s Br. at 13. The Respondent further contends
that MSHA was well aware that leverage bars have always been removed from shutoff
valves in the mine for safety reasons, but has never previously had a problem
with this practice. Id. at 11-13. Therefore, the Respondent argues it
did not have fair notice that MSHA interpreted the broad safety regulation at
30 C.F.R. § 75.1100-3 to prohibit the practice. Id. The Respondent
further asserts that a safeguard requires all mobile equipment at the mine to
be provided with a jack and jack bar that could be used to close the 6-inch
shutoff valves. Id. at 12.

The Respondent’s argument ignores the
fact that Order No. 8190903 does not charge a violation solely because the
Respondent failed to keep the manufacturer’s leverage bar on hand. Rather, the
order charges that the valve was inoperable in that it could not be closed all
the way due to both the missing leverage bar and the Respondent’s failure to
maintain the valve in clean condition.

The Respondent has essentially conceded
a violation of 30 C.F.R. § 75.1100-3 by conceding that the 6-inch valve could
not effectively perform its intended function of shutting off the water supply.
The valve could not be closed completely. Before the fatal accident, Saunders
attempted to close the valve in order to isolate a section of water line so the
manifold could be repaired, but water continued discharging. Tr. 526-27,
621-23, 652. After the fatal accident, investigators discovered that the cited
6-inch valve was partially open and was the source of the discharging water. Ex.
S-2 at 7, 13; Tr. 63-65, 78, 147-48. The flow lessened somewhat after Inspector
Hlywa asked the miners to try to shut the valve all the way off, but water
continued to ooze out and the flow was not completely blocked until the valve
was replaced. Tr. 48, 51, 75-76, 134-38, 149-50, 589; Ex. S-2 at 20. Michael
Hockenberry, MSHA’s fire protection engineer, later determined that the 6-inch
valve could not be closed all the way even when 50 foot-pounds of force were
applied with a torque wrench; the handle was arrested 3 millimeters from the
stop by the built up material in front of the stop. Tr. 349-53; Ex. S-18. Thus,
as conceded by the Respondent, the shutoff valve was inoperable in that it
could not be closed all the way.

The Respondent argues it did not have
fair notice of the Secretary’s interpretation of § 75.1100-3 in that it was not
on notice that MSHA considered removal of the manufacturer’s leverage bars to
be a violation. The Respondent’s customary practice at its mine was to detach
the bars from the valves because they stuck out and could be struck by passing
equipment. Tr. 89, 197, 421-22, 581-82. Also, the bars did not always provide
sufficient leverage to open and close the valves due to the high water pressure
at the mine. Tr. 195, 223, 428-29, 435-36. MSHA had not previously issued any
citations or other warnings to the mine regarding its practice of detaching the
leverage bars.   

Notwithstanding the Respondent’s lack of
explicit notice from MSHA with respect to the leverage bars, a reasonably
prudent miner would have recognized under the circumstances that a violation
was occurring when the 6-inch shutoff valve failed to perform its intended
function of shutting off the water. The miners assumed the water flowing out of
the breached pipe was residual water draining from the isolated section of the
water line, Tr. 623, 640, 652, but this was not a reasonably prudent
assumption. First of all, a reasonably prudent miner would have allowed the
residual water to bleed off before attempting repairs to the water manifold. Moreover,
a reasonably prudent miner would have recognized the water was a problem
because the flow was consistent and did not decrease in volume.

At the hearing, counsel for the
Respondent questioned whether MSHA had performed any calculations to determine
how long it would have taken for residual water to drain from the isolated
section. Tr. 229-38. But by the testimony of Consol’s own witness, water was
still coming out of the breach point approximately 90 minutes after the
accident. Tr. 589. No calculations are needed to establish this was more than
residual drainage. A foreman, Addington, was within plain sight of the manifold
while repairs were underway and admittedly noticed that water was discharging
at a consistent rate, but took no action to address this obvious problem. Tr.

623. A reasonably prudent supervisor would have checked the shutoff valves or
     at least instructed the miners to cease repair efforts until the water bled
     off, which would have led to the realization that the shutoff valve was not in
     operable condition. Under the circumstances, explicit notice of the Secretary’s
     interpretation of § 75.1100-3 was not necessary. See LaFarge North
     America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal Cement Co., 12
     FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4 FMSHRC
     2128, 2129 (Dec. 1982).

As for the Respondent’s argument that a
safeguard at the mine requires all mobile equipment to contain a jack and jack
bar, the Respondent has not provided a copy of the referenced safeguard. Inspector
Hess testified that if such a safeguard exists, it may be satisfied without
providing a jack and jack bar on some equipment. Tr. 295-96. More importantly,
there is no evidence a jack bar was available at the scene of the accident. See
Tr. 148, 421. I reject the Respondent’s suggestion that a safeguard
requiring jack bars somehow mitigates or refutes the fact of the violation. I
find that this violation occurred.   

2.      Gravity and
S&S Designation

Inspector Hess
characterized this as an S&S violation. In assessing gravity, he noted that
one fatal injury had occurred. Exs. S-17, R-2. The Respondent disputes the
S&S finding, arguing that the violation was not S&S because the lack of
a leverage bar played no role in the fatality. Resp.’s Br. at 15. In support of
this argument, the Respondent asserts that it took only 50 foot-pounds of
torque to close the 6-inch shutoff valve to the position where the handle would
have been stopped by the material buildup, and therefore a leverage bar would
not have prevented the accident from occurring because the sole reason the
valve would not close was the built-up material on it. Id.

First, I reject the Respondent’s
argument that the lack of a leverage bar played no role in this accident. Although
it took only 50 torque-pounds for Hockenberry to squeeze through the built-up
material in the path of the handle in order to close the valve as far as it
could go, the evidence shows the valve was not closed that far at the time the
accident occurred, whereas a leverage bar obviously would have helped move the
valve handle closer to that position. Several facts support this conclusion. Before
the accident, the water discharging from the valve was described not as a
trickle but as a constant flow that was large enough to disrupt the miners’
efforts to repair the manifold and to build up rapidly under the damaged
1½-inch valve, causing it to blow apart in just a few minutes. See Tr.
58-61; Ex. S-2 at 9-10; Exs. R-8 & S-22 at 5-6. Afterward, when the 6-inch
valve had been closed as far as possible (i.e., to 3 millimeters), the flow of
water was reduced and was described as an ooze. Tr. 76, 134, 589. The defective
6-inch shutoff valve must have been open substantially more than 3 millimeters
before the accident based on these differing amounts of bypassing water. A
leverage bar would have helped the miners close this substantial gap, reducing
the amount of pressurized water escaping and thereby reducing the hazard, even
though the valve still would not be completely closed. Yet the evidence does
not show that a leverage bar was available to push through the built up
material before the accident. Green did testify that Saunders used a bar to
attempt to close the valve at crosscut #62. Tr. 639-40, 646-47. However,
Inspector Hess testified that during the witness interviews he had conducted to
prepare MSHA’s accident report, Green had said Saunders closed the valve with
his hand as best he could then tapped the handle a few times with a hammer. Tr.

261. Hess had included this finding in the accident report prepared before the
     hearing. Ex. S-1 at 4. Having observed the witnesses’ demeanors, I find that
     Hess is a more credible witness than Green, whose inconsistent subsequent
     account is not corroborated by any other evidence that a bar was available near
     the shutoff valves the night of the accident. The Respondent’s failure to
     provide a leverage bar contributed to the miners’ inability to close the valve
     and therefore contributed to the fatality.

Turning to the
S&S inquiry, I uphold the Secretary’s S&S finding for this violation. The
Respondent violated a mandatory safety standard, satisfying the first Mathies
element. The violation was the Respondent’s failure to maintain the 6-inch
valve in usable and operative condition in that the valve was incapable of
being fully closed. This contributed to the hazard that water would bypass the
valve when it was supposed to be closed, satisfying the second Mathies element.

The hazard that
water would bypass the valve was reasonably likely to result in an event that
would cause an injury, considering the particular facts surrounding this
violation. The water pressure at the mine was unusually high. Tr. 276-77, 460,
488, 504-05; see Ex. S-5. The miners tried to close the 6-inch valve to
prevent the mine’s highly pressurized water from flowing into the area where
they were working on the damaged manifold at crosscut #61. Nine miners were in
the vicinity of the damaged manifold. Ex. S-13; Exs. R-8 & S-22 at 7; Tr.

525. The manifold was partly disassembled and not all of its components were
     anchored securely to the water line. Under these circumstances, it was
     reasonably likely that allowing pressurized water to bypass the 6-inch shutoff
     valve and flow toward the damaged manifold would cause a piece or pieces of the
     manifold to be blown apart by the pressurized water, injuring a nearby miner. Thus,
     the third Mathies element is satisfied.    

There was also
a reasonable likelihood that any injury caused by the violation would be of a
reasonably serious nature. The water pressure at the mine was high enough to
propel heavy pipe fittings through the air with sufficient force to cause
serious injuries to anyone within striking distance, as evidenced by the fact
that the manifold fatally struck Saunders and was propelled more than twenty
feet across the #5 entry even after bouncing off of another miner and the mine
roof. Ex. S-2 at 10, 14; Ex. R-9 at 5, 8. Therefore, I find that the fourth Mathies
element is satisfied. Because the four Mathies elements are met, I
uphold the Secretary’s S&S designation for this violation.  

Because the
6-inch shutoff valve was incapable of being fully closed, pressurized water bypassed
the valve and accumulated in an area that should have been dry and isolated
during repair work. After a few minutes, the built up water blew the top of the
1½-inch valve off of its tailpiece, resulting in a fatal injury. In view of this
violation’s direct contribution to a fatality, I find that its gravity was
extremely serious. 

3.      Negligence and
Unwarrantable Failure

Inspector Hess characterized this
violation as resulting from the operator’s high negligence and issued the order
under section 104(d)(1) of the Mine Act, stating in the narrative portion of
the order that the violation resulted from unwarrantable failure to comply with
a mandatory safety standard: 

The operator and
its agent displayed aggravated conduct constituting more than ordinary
negligence through two failures which resulted in the occurrence of this
accident. First the operator failed to ensure that the 6-inch ball valve in use
at this mine was provided with the necessary leverage handle to be used when
closing and opening the valve. These valves are provided with these leverage
handles when purchased from the manufacturer to provide the necessary leverage
when opening and closing the valve. It is the responsibility of the consumer to
maintain them for use. The second display of aggravated conduct was on the part
of the foreman assigned to supervise the miners making the repairs. The
negligance [sic] on the part of this foreman was his failure to provide
adequate supervision of the miners making the repairs. This foreman was aware
that it was a common practice for the fire valve assemblies in this mine to be
struck and damaged during the movement of oversized loads. This foreman was
also aware of the extremely high water pressures at this mine. These factors
should have prompted this foreman to take extra care and provide guidance and
instruction to the miners including to ensure that the water line was properly
isolated to prevent an inadvertent pressure build up. The foreman was in the
immediate area and in plain sight and sound during the repair and took no
actions to ensure that the repairs were being conducted properly and safely. This
is an unwarrantable failure to comply with a mandatory standard.

Exs.
S-17, R-2. At the hearing, Hess reiterated that the 6-inch shutoff valve was
not provided with any readily available tool to close it despite the fact that
the manufacturer provided a leverage bar for each valve, leaving it up to the
miners to figure out what they would use to close the valve and whether it
would be sufficient. Tr. 222-27. Although he conceded that MSHA had not cited
this condition in the past, he disagreed that MSHA had “allowed” Consol to
remove the leverage bars, noting that Consol was the one that had installed the
valves and MSHA had not been aware that the leverage bars were insufficient. Tr.
239-42. Hess also emphasized that a foreman had been present and had noticed
water discharging continuously even though only a relatively small section of
the water line had been isolated, so the foreman should have realized this was
not just residual water draining and checked the shutoff valves. Tr. 224, 227.

The Secretary contends Hess’s
unwarrantable failure designation should be upheld, particularly arguing that
the Respondent’s failure to provide any sort of leverage bar for the 6-inch
valve constituted aggravated conduct. The Secretary contends this condition was
extensive, existed for years, and posed a high degree of danger in light of the
high water pressure at the mine. Sec’y’s Br. at 28-29. The Secretary further asserts
that the Respondent knew of the violative condition and was on notice that
greater efforts at compliance were necessary, yet took no action to abate the
condition. Id. at 29-32.

The
Respondent argues that the violation did not result from aggravated conduct. The
Respondent asserts that Addington, the foreman who was present, played no role
in the attempts to shut off the 6-inch valve and there was nothing he could
have done to assist the miners closing the valve. Resp.’s Br. at 14. The Respondent
also notes that the miners who attempted to close the valve thought that it was
fully shut and would not have been able to hear water bypassing the valve
because the belts were running. Id. Finally, the Respondent argues that
MSHA’s failure to take prior enforcement action against the mine for not
maintaining the leverage bars on the valve is a major factor weighing against a
finding of aggravated conduct. Id.

After
considering the following factors, I uphold the unwarrantable failure
designation.

(a)    Duration of Violative
Condition

Although definitive evidence of duration
is not available, I find that the 6-inch shutoff valve was in violative
condition long enough for the condition to have been noted by shift examiners. Grime
and coal dust had accumulated on the valve such that the path of the handle was
obstructed. This would not have happened in one shift.

As for the Respondent’s failure to
provide a leverage bar, the leverage bar would have been detached from the
valve when it was brought into the mine. Tr. 89, 197, 421-22, 581-82. Shift
foreman Semones testified leverage bars were usually propped against a timber
or placed at a sign nearby. Tr. 581-82. Hess, on the other hand, almost never
saw leverage bars in the mine and was of the impression that once detached the
bars would usually disappear into the dust. Tr. 197, 223-24. I find that the
Respondent effectively discarded the leverage bars as soon as they were brought
into the mine.     

(b)   Extensiveness of
Violation

This violation was not extensive in that
a single valve was inoperable. However, this violation endangered nine miners. All
of the miners were at risk who were in the vicinity of the damaged water line
components that were blown apart when pressurized water bypassed the 6-inch valve.
See Ex. S-13; Exs. R-8 & S-22 at 7; Tr. 525.

Additionally, this violation stems from
extensive underlying violative conduct on the Respondent’s part. Specifically, even
though only one valve was at issue here, the Respondent failed to maintain
leverage bars for all of the 6-inch valves throughout the mine. Similarly, although
the violation could be terminated simply by removing the cited valve from
service, the Respondent later took the more extensive step of providing
leverage bars for all the 6-inch valves throughout the mine. Tr. 223-24. This extensive
abatement step, while laudable, shows that the underlying conduct leading to
the violative condition was extensive because it involved many valves.

(c)    Operator’s
Notice that Greater Compliance Efforts Were Necessary

There is no evidence MSHA issued any
prior citations or otherwise warned the Respondent that greater compliance
efforts were needed in order to maintain shutoff valves in safe condition in
the mine. Members of mine management knew that miners sometimes had trouble
closing the 6-inch valves, see, e.g., Tr. 428-29, 434-36, and
that the manufacturer’s leverage bars were customarily detached from the valves
due to clearance issues, Tr. 581-82. However, MSHA had not specifically
notified the Respondent that these problems took the valves out of compliance
with 30 C.F.R. § 75.1100-3.

(d)   Obviousness of
Violation

This violation was very obvious.

First, the two underlying conditions
that caused the violation (accumulation of grime and coal dust on the valve handle’s
track and failure to maintain a leverage bar nearby) could have been easily recognized
during an on-shift examination.  

It also should have been obvious that
the 6-inch valve was not functioning properly and therefore was not in safe,
operable condition on the night of the accident. After the miners had tried to
close the valve, they saw that water continued to flow at a consistent rate
into the section of the water line that was supposed to be isolated while the
manifold was repaired. Tr. 526-27, 621-23, 643, 650-52. The flow of water was
especially noticeable because it impeded Green’s and Saunders’ efforts to
reattach the manifold to the 2-inch pipe to the rock dust distribution machine,
to the point that they closed the 1½-inch valve at the bottom of the manifold
to stem the flow. Tr. 59; Ex. S-2 at 9-10; Ex. R-8 & S-22 at 5-7; Ex. R-9
at 3. A foreman, Addington, was standing in plain view of the repair work after
returning from his phone call with Semones and observed pressurized water
flowing continuously from the relatively small section of the water line that
was supposed to be isolated. Tr. 621-23. The water line had just been struck
with a large piece of equipment, an aberrant occurrence necessitating
examinations and supervision to abate. Addington should have been focused on
finding the damage and on the lookout for potential hazards in this situation. The
escaping water should have alerted the miners, particularly Addington, that
something was obviously very wrong.

Additionally, the 6-inch valve was found
to be visibly and audibly open when checked after the accident. Ex. S-2 at 7-8,
13; Tr. 63-65, 78, 147-48, 275-76. The Respondent argues that the hiss of the
bypassing water may not have been audible while the belt was running. Resp.’s
Br. at 14. However, had Addington acted as a foreman should have and
investigated the cause of the flowing water, it would have been obvious as soon
as he looked at the 6-inch shutoff valve that the handle was not perpendicular
to the water line.

(e)    Degree of Danger
Posed by Violation

The Respondent’s failure to maintain the
6-inch valve in operable condition posed a high degree of danger under the
circumstances. The water pressure at the mine was unusually high. Tr. 276-77,
460, 488, 504-05. The violation allowed highly pressurized water to flow into a
section of pipe that was intended to be dry and isolated while repair work was
performed. This section of pipe had just been struck by a large piece of
equipment with enough force to breach the line, meaning water pressure was
flowing into an area of piping that had just sustained severe damage. The two
miners making the repairs were working directly in front of the damaged area,
and at least seven other miners were gathered in the vicinity. See Ex.
R-13. The violative condition caused a fatality, further demonstrating the high
degree of danger it posed.

(f)    Operator’s
Knowledge of Existence of Violation

This violation was very obvious, as
discussed above. Numerous miners, including foreman Addington, saw the water
continuing to flow out of a section of the water line that was supposed to be
isolated. Tr. 621-23. Under these circumstances, the Respondent should have
known a shutoff valve was not functioning properly.

The Respondent also had reason to know that
leverage bars were not customarily maintained with the 6-inch valves in the
mine and that the 6-inch valves were generally coated in grime and coal dust. It
was apparently common knowledge in the mine that leverage bars were not maintained
with the valves, see Tr. 195-97, 223, and the many photographs submitted
to the record show that the 6-inch water line was essentially buried in dust. E.g.,
Photograph R-32; see also Tr. 523-24 (miner’s testimony that all the
valves were dirty because they had been in the mine a long time). As noted
above, these underlying conditions that caused the violation were obvious and could
have been easily discovered during a pre-shift exam. 

(g)   Operator’s
Efforts in Abating Violative Condition

Despite the obviousness of this
violation, especially the water continuing to flow after the water line was
supposed to be isolated; the high degree of danger the violation posed; and the
presence of a foreman, the Respondent did not abate this violation and remove
the 6-inch shutoff valve from service until after a fatality had occurred.

Additionally, as was the case with the
1½-inch valve, the Respondent had the knowledge and opportunity long before the
fatality occurred to undertake measures that could have prevented the violation
from occurring or from being as severe. Specifically, the Respondent could have
made sure that leverage bars were provided at every 6-inch valve so that miners
would be able to close them. As seen in the many photographs submitted to the
record, the 6-inch water line at the Buchanan Mine #1 was essentially buried. See
Tr. 46. One of Consol’s foremen referenced the corrosive effects of high
acidity and salt in the mine atmosphere, which caused components of the water
supply system to rust together, potentially making it more difficult to turn
the valve handles once they were in the mine. Tr. 575, 587. In addition, the
mine was known to have abnormally high water pressure. Tr. 276-77, 460, 488,
504-05. Mine management was aware that under these conditions, the leverage
bars supplied by the valve manufacturer did not always provide sufficient force
to open or close these valves. See Tr. 195, 428-29, 435-36, 592-93. The
mine’s safety supervisor, Darrell Johnson, had heard miners mention the
manufacturer’s leverage bars were not strong enough and were too short to
provide adequate leverage, especially after the valves were taken underground
and “the dampness and rust and things set in.” Tr. 428-29, 435-36. Nonetheless,
the Respondent did not make available any tools that could provide sufficient
leverage to operate the valves and did not even ensure that the manufacturer’s
leverage bars were always available. In short, the Respondent made no effort to
address a known, widespread problem, even though the solution could have been
as simple as training miners to use a specific available tool to operate the
valves. It was left to the miners to find a tool to use and judge its efficacy.

(h)   Involvement of a
Supervisor

A foreman, Addington, was present while
the 6-inch valve was allowing water to bypass and had every reason to recognize
an unsafe condition, yet failed to take action to abate the dangerous condition.
He did not provide any instructions to the miners, who shut off the water on
their own without his help or direction. He did not remind the miners to wait
until the residual water drained from the isolated section, nor did he
investigate to make sure the water was completely shut off. He saw water
flowing from the manifold, Tr. 621, 623-24, yet still he failed even to ask the
miners if they had checked the shutoff valves to confirm they were in the “off”
position. Green testified he did not remember doing so. Tr. 647. In short,
Addington’s behavior did not conform to the high standard of care expected of
supervisors.

The Respondent asserts that failure to
adequately supervise is not an aggravating factor in connection with this
violation because Addington had nothing to do with Green’s and Saunders’
attempts to turn off the 6-inch shutoff valves. Resp.’s Br. at 14. But the
Secretary contends that as a supervisor, Addington should have known to check
to be sure that the shutoff valves were completely closed in light of the
steady stream of discharging water, the amount of time it continued to flow,
the very small area of pipe that should have been isolated, and the fact that
the slight change in elevation would not have created what was described as a
“fountain” of water flowing from the pipe. Sec’y’s Br. at 28. I agree that
under these circumstances, Addington displayed a disregard for the safety of
his men in failing to investigate the situation. Further, his complete lack of
involvement in shutting off the valves does not mitigate his conduct because as
the person with supervisory authority, he should have in fact provided
supervision.

(i)     Weighing the Factors

This violation involved just one valve,
but was extensive in that it endangered nine miners and stemmed from extensive
underlying negligence in the Respondent’s failure to maintain leverage bars for
the 6-inch valves throughout the mine despite the knowledge that closing the
valves presented problems. The underlying conditions that contributed to the
violation, missing leverage bars and failure to maintain the 6-inch valve in
clean condition, had lasted for a lengthy indeterminate period before the
violation was abated. I find that these are aggravating factors. However, the
most important aggravating factors for this violation are the obviousness of
this violation, the high degree of danger it posed, the involvement of a
supervisor who should have known this obvious violation was occurring, and the
Respondent’s concomitant failure to take any abatement action before a fatality
occurred. I find that these factors support a finding of reckless disregard for
safety and higher than average negligence.

The Respondent argues that MSHA’s
failure to take prior enforcement action against the mine for missing leverage
bars is a “major factor” showing this violation did not result from aggravated
conduct. Resp.’s Br. at 14. However, I find that lack of notice by MSHA is not
a significant mitigating factor in light of mine management’s general awareness
of the conditions that caused the violation, and in light of the obviousness
and dangerousness of the violation, which should have alerted the Respondent
that heightened care was needed. See Mach Mining, LLC, 35 FMSHRC 2937
(Sept. 2013). As noted above, lack of notice by MSHA need not be the deciding
factor in an unwarrantable failure determination. San Juan Coal Co., 29
FMSHRC 125, 129 (Mar. 2007). The Commission has emphasized that while all
relevant factors must be considered, a judge may properly accord unequal weight
to the factors or determine that some factors are not relevant. Wolf Run
Mining Co., 35 FMSHRC 3512, 3520-21 (Dec. 2013); E. Associated Coal Corp.,
32 FMSHRC 1189 (Oct. 2010); IO Coal Co., 31 FMSHRC 1346, 1351 (Dec.
2009). In this case, the lack of notice by MSHA that greater compliance
efforts were needed is outweighed by the very significant aggravating factors
discussed above. For the reasons discussed above, I uphold the Secretary’s
unwarrantable failure finding.

For all the reasons discussed above, the
Respondent displayed an aggravated lack of care that constituted more than
ordinary negligence in connection with this violation. Accordingly, I also uphold
the Secretary’s finding of high negligence.

IV.            
CIVIL
PENALTIES

A.    Legal Principles

Section 110(i) of the Mine Act grants
the Commission the authority to assess all civil penalties under the Mine Act. 30
U.S.C. § 820(i). It further directs that the Commission, in determining penalty
amounts, shall consider (1) the operator’s history of previous violations, (2)
the appropriateness of the penalty to the size of the business of the operator
charged, (3) whether the operator was negligent, (4) the effect of the penalty
on the operator’s ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation. Id.;
Mize Granite Quarries, Inc., 34 FMSHC 1760, 1763-64 (Aug. 2012).

A penalty assessment is an exercise of
discretion bounded by proper consideration of the statutory penalty criteria
and the deterrent purposes underlying the statutory penalty scheme. Douglas
R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000); Sellersburg Stone
Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir.
1984); see also Black Beauty Coal Co., 34 FMSHRC 1856, 1864-69 (Aug.
2012) (explaining deterrence is “central tenet” of penalty scheme and
permitting ALJ to consider potential deterrent effect beyond the six penalty criteria);
Cantera Green, 22 FMSHRC 616, 620 (May 2000) (noting “broad discretion”
accorded to ALJs). The Commission and its ALJs are not bound by the penalties
proposed by the Secretary, nor are they governed by MSHA’s Part 100
regulations, although substantial deviations from the proposed penalties must
be explained using the section 110(i) criteria. See Cantera Green, 22
FMSHRC at 621; Sellersburg Stone, 5 FMSHRC at 293; 29 C.F.R. §
2700.30(b). However, in considering the six penalty criteria and assessing a
penalty, the ALJ must make findings of fact sufficient to give the operator
notice of the basis for the penalty and to provide a factual basis upon which
the Commission can perform its review function. Martin Co. Coal Corp.,
28 FMSHRC 247 (May 2006); Cantera Green, 22 FMSHRC at 620-21; Rushford
Trucking, 22 FMSHRC at 600-01; Sellersburg Stone, 5 FMSHRC at 292-93;
see also 29 C.F.R. § 2700.30(a).

B.     Penalty

For each of the two violations the
Secretary seeks a $70,000 civil penalty, which is the maximum penalty allowed
under section 110(a) of the Mine Act. The Secretary asserts the proposed
penalties are appropriate under the circumstance, noting in particular that
both of the violations directly contributed to a fatality, that both resulted
from the Respondent’s high negligence, and that the Respondent is an extremely
large mine operator. Sec’y’s Br. at 34. The Respondent, on the other hand,
contends that the civil penalty for the two violations should not exceed
$20,000. The Respondent offers no supporting arguments for this position beyond
the arguments already rejected above with respect to the gravity of the
violations and the negligence associated with the violations.

The Secretary concedes that the
Respondent has a low history of previous violations. Sec’y’s Br. at 32-33; see
Exs. S-23, S-24. Consol is a very large operator. The parties have
stipulated that the proposed penalties will not affect the Respondent’s ability
to continue in business. See Stipulation 6. I have taken into account
the appropriateness of the penalty to the size of the operator’s business as
well as the desired deterrent effect of civil penalties in comparison to the
size of the operator and its overall resources. See Black Beauty, 34
FMSHRC at 1864-69; Thunder Basin Coal Co., 19 FMSHRC 1495, 1505 (Sept.
1997). I have also taken into account the Respondent’s demonstrated good faith
in its attempts to achieve rapid compliance with the Mine Act after the fatal
accident.

As discussed in detail above, the
gravity of these violations is extremely serious and the operator demonstrated
high negligence in connection with both violations. I find that gravity and
negligence are the most important penalty criteria in this case and warrant the
imposition of a high penalty. See Musser Engineering, Inc., 32 FMSHRC
1257, 1289 (Oct. 2010) (permitting gravity and negligence to be weighed more
heavily than other penalty factors); Spartan Mining Co., 30 FMSHRC 699,
724-25 (Aug. 2008) (same); Lopke Quarries, Inc., 23 FMSHRC 705, 713
(July 2001) (same).

After consideration of all the evidence
and the six statutory penalty criteria, I assess a penalty of $70,000 for each
violation.

ORDER

It is hereby ORDERED that CONSOL
Buchanan Mining Company, LLC pay a total penalty of $140,000 within thirty (30)
days of the date of this order.[8]

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Ronald
E. Gurka, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247

Billy
R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek
Drive, Suite 310, Lexington, KY 40509

[1] Section
104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), establishes more severe
sanctions for any violation that is caused by “an unwarrantable failure of [an]
operator to comply with . . . mandatory health or safety standards.”

[2] In this
opinion, the abbreviation “Tr.” refers to the hearing transcript. The
Secretary’s exhibits are numbered S-1 through S-24, the Respondent’s exhibits
are numbered R-1 through R-48, and the joint exhibits are numbered J-1 and J-2.

[3] Hlywa has
worked as a coal mine inspector for MSHA since June 2008. He has a B.S. in mine
engineering. His prior mining experience includes working for Consol Energy for
several years as a general underground employee, industrial engineer, and
foreman and working for a mine equipment manufacturer for a year as a design
engineer. Tr. 39-40.

[4] Hess has worked
for MSHA as a general coal mine inspector since 2007 and as a ventilation
specialist since 2012. He is also trained as an accident inspector, and serves
in that capacity as needed. Before coming to MSHA, Hess worked in the coal
mining industry for eleven and a half years, including as a continuous miner
operator and as a production, maintenance, and lead foreman. He is also a
certified electrician. Tr. 122-28.

[5] Michael
Hockenberry has a Master’s degree in mechanical engineering and has worked for
MSHA as a Fire Protection Engineer since 2000. In this capacity, he provides
technical assistance relating to fire prevention and fire suppression systems
in mines. He also holds an assistant mine foreman certification in the state of
West Virginia. Tr. 303-07; Ex. S-19.

[6] Although I
agree with Inspector Hess’s suggestion that the valve could have failed at a
lower pressure (Tr. 277), I reject the Respondent’s argument that the high
water pressure at the mine was a “non-issue” (Resp.’s Br. at 18). The valve’s
600 psi pressure rating and safety factor of 2.5 became irrelevant once the
valve was damaged. Under the particular circumstances of this case, the mine’s
high water pressure contributed to the dangerousness of the situation.  

[7] The valve is a
necessary component of the mine’s water delivery system and is identified on
the mine’s fire protection map. Thus, it constitutes firefighting equipment
within the meaning of 30 C.F.R. § 75.1100-3. See Tr. 363-64; Ex. R-10.

[8] Payment should
be sent to: Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.