Secretary of Labor v. Peabody Twentymile Mining, LLC

Plain-English summary

Peabody Twentymile used non-strength-enhancing polyurethane foam to seal the perimeter of a dry-stacked concrete-block ventilation stopping. Judge David P. Simonton held that traditionally accepted block-stopping construction under 30 C.F.R. § 75.333(e)(1) required a strength-enhancing perimeter sealant unless a different assembly was tested and shown adequate. Longstanding mine practice and prior inspections did not excuse the violation because the regulatory guidance and approved-sealant lists did not authorize this foam as the primary perimeter sealant for block stoppings. The Judge affirmed the citation as non-S&S with moderate negligence and assessed $162. He also approved settlement of five other citations for $2,858, including standard, gravity, negligence, and penalty modifications. Peabody was ordered to pay $3,020 total, and the associated contest was dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.333(e)(1)
• Outcome: The litigated spray-foam citation was affirmed for $162, five other citations were settled for $2,858 with modifications, and the $3,020 total was ordered paid.
• Key point: A mine's longstanding construction practice does not make a method traditionally accepted when the governing regulatory guidance requires a different material or comparative testing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Clean
Clean
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false
false

EN-US
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MicrosoftInternetExplorer4

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

November 30, 2015

SECRETARY OF LABOR

MINE SAFETY AND
HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

PEABODY TWENTYMILE MINING, LLC,

Respondent.

PEABODY TWENTYMILE MINING, LLC,

Contestant,

v.

SECRETARY OF LABOR

MINE SAFETY AND
HEALTH    

ADMINISTRATION,
(MSHA),

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST
2015-64

A.C. No. 05-03836-362873

Mine: Foidel Creek Mine

CONTEST
PROCEEDING

Docket No. WEST 2014-930-R

Citation No.
8481807; 08/06/2014

Foidel Creek Mine

Mine ID
05-03836

DECISION

Appearances:   Michele A. Horn, Office of the
Solicitor, U.S. Department of Labor

1244 Speer Blvd., Suite 216, Denver, CO 80204 

R. Henry Moore, Jackson Kelly

Three Gateway Center, Suite 1500,

401 Liberty Avenue, Pittsburgh, PA 15222

Before:                       
 Judge Simonton

I. INTRODUCTION

This case is
before me on a civil penalty petition filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration (MSHA), against Peabody Twentymile Mining, LLC (Respondent) Foidel
Creek Mine, pursuant to the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820. Prior to hearing, the parties
settled five of the six citations contained in this docket. The
remaining citation contested at hearing involved the alleged improper use of
polyurethane spray foam to seal the perimeter of a concrete block ventilation
stopping.

At hearing, MSHA
Inspector Yasser Akbarzadeh, Inspector James Preece, and Technical Advisor Barry Grosley
testified for the Secretary. Peabody Twentymile Supervisors Adam Patterson, Ronald Hockett, and Robert Derick testified for the Respondent. For the reasons that follow, Citation No. 8481807 is AFFIRMED as written and assessed with a civil
monetary penalty of $162.00.     

II. FINDINGS OF FACT

A.               
Background

The Foidel Creek Mine is an underground bituminous coal mine
that has been in continuous operation since 1983 and is commonly referred to as
the Twentymile Mine. Tr. 42,
137, 139. The mine employs both longwall
and conventional room and pillar mining methods. Tr.

32. The mine produces approximately 7 million tons of
    coal annually and contains over a thousand different ventilation stoppings
    built at different stages of the mine’s development. Sec’y
    Petition, Ex. A; Tr. 49, 98. The
    ventilation stoppings separate the intake and return to the belt intake air and
    prevent contamination of air in the escapeway and
    working face. Tr. 30.

Pursuant to the
mine’s MSHA approved ventilation plan, the mine uses both dry-stacked blocks
and metal panel (Kennedy) construction to build ventilation stoppings. Tr. 136. As concisely summarized
by Respondent’s counsel:

The building of a
block stopping involves the removal of any loose debris from the floor and the
rib lines across a 17 to 23 foot wide entry that is 8-1/ 2 feet high. Tr. 11 6-17. A level base is
built with three inch cinder blocks across the floor. Tr.

118. Rows of cinder blocks are then stacked and wedged
     against the ribs by driving a wedge between the last cinder block and the coal
     rib. Tr. 117, 125. This holds
     the blocks in place as the stopping is built. Tr. 125. The blocks are "dry" stacked, meaning that no
     mortar is placed between the blocks. Tr. 117. Once the blocks reach the roof line, wedges are driven
     between the roof and the top of the blocks. Tr. 117.

This secures the
blocks and provides strength to stopping. Tr. 99, 117. The face of the blocks is then coated with a strength
enhancing sealant material. Tr. 117.

This material is
applied using a trowel and is not the sealant that is (cited within Citation
No. 8481807). Tr. 118. Prior
to the citations at issue here, the perimeter of the stopping, as referenced in
the

MSHA-approved
ventilation plan, was sealed by injecting a ()[1] polyurethane grout around the perimeter. Tr. 118.

Resp. Br., 2-3 (citing Under
Ground Mine Manager Ronald Hockett’s testimony).

The ventilation
plan contains a section entitled “USE OF POLYURETHANE FOAM” that lists RHH Versi-Foam System 15, Micon FoamPak, Touch ‘n Seal Mine Foam, and Touch ‘n Seal Mine
Block Mortar as the only polyurethane foam used at the mine. Sec’y
Ex. 3, 1. The ventilation plan states that:

Application of foam
for ventilation device installation will be limited to sealing the perimeter
and joints of such devices. Foam may be used to repair
ventilation device doors and holes in stoppings up to 4 inches by 4 inches in
size. Foam may not be applied to the inside of
ventilation tubing or ducting. The application shall
not overlap more than 12 inches onto the roof and ribs.

Id.

Peabody applied
polyurethane foam as the primary sealant at the perimeter of both dry-stacked block
and metal ventilation stoppings on a routine basis at the Twentymile
Mine from the start of the mine’s operation in 1983 until the issuance of
Citation No 8481807 in August 2014. Tr. 87, 118, 140. MSHA performs complete inspections of the Twentymile Mine at least four times annually on a quarterly
basis. Tr. 14. Prior to the
issuance of Citation No. 8481807, MSHA had issued Citation No. 8468872 on
October 16, 2012 for excessive application of Versi-Foam
at a metal Kennedy stopping. Tr. 72-73. MSHA inspectors had not cited any block stoppings for
impermissible use of spray foam prior to the issuance of Citation No. 8481807. Tr. 111-13, 157.

B.                
Citation No. 8481807

MSHA Inspector Yasser Akbarzadeh issued Citation No.8481807 for an alleged
violation of 30 CFR §75.333(e)(1)(i) on August 6, 2014. Akbarzadeh alleged within the citation that:

The usage of "polyurethane spray
foam” for application as a sealant for Kennedy mine ventilation structures and
as a repair sealant for cracks in concrete block ventilation structures is not
built in a traditionally accepted method that has demonstrated to perform
adequately. It was observed that the foam sprays at
the sealant are not strengthened and are not reaching the ribs. The seal was located at 13 left, 3-4 Entry, one crosscut
outby the dump point. The MMU number was 008. Parameters of the stopping (Ribs, floor along the top) was
not made of strengthen enhance material. The ventilation
plan needs to be revised to address; 1) the guidelines for the use of
polyurethane foam system. 2) Temporary underground
storage for polyurethane spray foam containers.…

Standard 75.333(e)(1)(i)
was cited 2 times in two years at mine 0503836 (2 to the operator, 0 to a
contractor).

Sec’y Ex. 1,
1-2.

Akbarzadeh filed a modification for Citation No
8481807 later that day, stating that,

The cinder block stopping being used on the 13 Left working section MMU 008-0, located in the first crosscut
outby the loading point, No. 3 to 4 crosscut between the haulage road and the
belt.

The stopping was not built in a traditionally accepted
method that has demonstrated to perform adequately. The
following conditions were observed;

l.) The perimeter of the stopping was
not sealed with mortar.

2.) The perimeter of the stopping was
sealed with touch N seal foam measuring approximately 0 to 6 inches
along the ribs and roof.

3.) Underground storage of foam was not being with in
accordance with the manufacture recommendations.

4.) The foam packs were being stored in a mobile trailer
along with other extraneous materials on the working section.

5.) The valves on a set of foam canisters were left in an
on position. The mine operator is in the process of
revising their handling procedures and implementing this into their ventilation
plan. Termination time will be
extended to allow the operator time to train miners in the handling
procedures.

Id. at
3.

Akbarzadeh designated Citation No. 8481807 as a
moderate negligence violation that was unlikely to contribute to the occurrence
of an injury resulting in lost workdays or restricted duty. Id
at 1. Akbarzadeh determined
that the failure to properly seal the ventilation structure was not significant
and substantial. Id. The
Respondent abated the citation by removing the block stopping and installing a
metal panel stopping that was sealed with spray foam at the perimeter. Id. at 4. The Secretary
has proposed a regularly assessed penalty of $162.00 for Citation No. 8481807. Sec’y Petition, Ex. A.

1.   Testimony

a. The
Secretary

Inspector Akbarzadeh testified that he had received a
Ph.D. in mine engineering and rock mechanics and completed an internship with
the National Institute of Safety and Health (NIOSH) prior to joining MSHA. Tr. 17. However, Akbarzadeh confirmed on cross-examination that he had not
worked in the mining industry or visited underground mines on a regular basis
prior to joining MSHA. Tr. 24. Akbarzadeh testified that Citation No. 8481807 was the
fourth citation he had issued as an inspector and that the subject inspection
was his first underground inspection. Tr. 22.

Akbarzadeh stated that Assistant District Manager Jim
Preece accompanied him on the inspection to show him
if he was “missing something.” Tr. 19. Akbarzadeh stated that Preece pointed out the spray foam and explained how that
was a violation. Tr. 20. Akbarzadeh stated after review with Preece
and other MSHA officials, Akbarzadeh made
modifications to the text of Citation No. 8481807. Tr.
21-22.

MSHA Assistant District Manager Preece testified that
he had worked in the mining industry since 1975 and joined MSHA in 2000. Tr. 27-28. Preece
testified that in his experience concrete block stoppings were intended for
permanent use along permanent main entries while metal Kennedy stoppings were
designed for temporary use in retreat areas in longwall
sections. Tr. 32. Preece stated that he had always used strength enhancing
block bond mortar to seal the perimeter of block stoppings. Tr.
34-35. Preece testified that
metal Kennedy stoppings normally used metal flags to narrow the gap between the
panel edge and rib wall in addition to the spray foam. Tr.
36-37.

Preece stated that at the cited stopping, he noticed
that the block face had been properly sealed but the perimeter only had
polyurethane foam. Tr. 44. Preece did not recall if there were any gaps at the
perimeter of the stopping and did not recall if Inspector Akbarzadeh
had measured any gaps. Tr. 46. Preece stated on direct examination that the polyurethane
foam was not strength enhancing and was not fire rated and could burn out in
the event of a fire and allow smoke to spread into the escapeway. Tr. 50.

On cross-examination, Preece confirmed that Touch N
Seal Foam does in fact have an ASTM flame spread rating that meets MSHA
requirements. Tr. 53-54. However,
on re-direct, Preece explained that MSHA standards
required sealants at block stoppings to meet flammability, strength, and fire
requirements and that that the Touch N Seal Foam had only received a flame
spread rating. Tr. 62-63. Preece also testified that the seal at the perimeter should
have the same strength as the rest of the stopping. Tr. 65.

MSHA Inspector Grosley testified
regarding guidance he had previously provided to Peabody safety personnel
regarding the use of spray foam at block stoppings while issuing a separate citation.[2] Tr. 71. Grosley stated that on October 16, 2012 he issued a
citation at the Twentymile Mine for improper use of
spray foam at a metal Kennedy stopping. Tr. 72-73. Grosley stated that at that
stopping, the operator had attempted to fill voids up to 17 inches wide with
spray foam. Tr. 73. Grosley testified that this application did not comply with
manufacturer’s recommendations and resulted in a very weak seal that allowed
air to leak through to the other side of the stopping. Tr.
73-74.

Grosley further stated that after he issued this
citation, he had a conversation with Peabody Safety Manager Lance McLaughlin
regarding his concerns on the application of spray foam at the Twentymile Mine. Tr. 76. In addition to concerns regarding proper application at
metal stoppings, Grosley stated that he informed Mr.
McLaughlin that spray foam should only be applied at block stoppings as a
secondary sealant after first filling the perimeter with a strength enhancing mortar. Tr. 78.

During rebuttal testimony, Assistant District Manager Preece
acknowledged that MSHA had not issued citations for using spray foam to seal
the perimeter of dry-stacked blocked stoppings prior to Citation No. 8481807. Tr. 157. Preece
stated that the regional MSHA inspection unit relied on a number of
inexperienced inspectors that may not have had adequate training or may not
have been paying attention to the perimeter of the stoppings.
Id. On cross-examination, Preece conceded that the Twentymile
Mine had been regularly inspected by a number of experienced inspectors in the
years prior to the issuance of Citation No. 8481807. Tr.
158-59.

b. The
Respondent

Peabody MSHA Compliance Manager[3]
Adam Patterson testified for the Respondent that he accompanied Inspectors Akbarzadeh and Preece on the
August 5, 2014 inspection. Tr. 86. Patterson
stated that the cited block stopping had been constructed in the same manner as
all other block stoppings at the Twentymile Mine
prior to 2014. Tr. 86-87. Patterson
testified that he did not observe any deficiencies in the construction or the
six inch gaps described in the body of the citation. Tr. 87.

Patterson testified that he believed the language of the mine’s ventilation
plan permitted the operator to use polyurethane foam to seal the perimeter of
both metal and block stoppings. Tr. 91. Patterson stated that in his experience the polyurethane
foam was a better sealant because it did not dry and crack like the mortar mix
sealants did. Tr. 90. Patterson
testified that the mine considered testing a customized stopping per ASTM
standards but that the laboratory tests did not permit the blocks to be wedged
at the top of the assembly. Tr. 93. Patterson
stated that without the wedges, any test would not have been representative of
how the stopping functioned. Tr. 93.

When questioned on cross-examination, Patterson explained that he considered
the cited stopping “traditionally accepted” as it was built the same as
hundreds of other block stoppings at the Twentymile
Mine that had previously been observed by MSHA inspectors. Tr.
107-08. Patterson stated that Safety Manager
McLaughlin had not informed him of Inspector Grosley’s
instruction regarding the use of spray foam at block stoppings. Tr. 110.

Peabody Underground Mine Manager Ronald Hockett
testified regarding the construction of ventilation stoppings at the Twentymile Mine. Tr. 116-118. Hockett stated that using the
polyurethane spray foam formed a superior seal to mortar mix at the perimeter
of block stoppings as it was easier to spray into the narrow void space and the
spray foam expanded rather than cracked like the mortar mix. Tr.
118-119. Hockett testified
that the citation Inspector Grosley issued in 2012
was issued for deficient workmanship and was not similar to Citation No.
8481807. Tr. 120. Hockett also stated that he believed that using spray foam
to seal the perimeter of block stoppings was a traditionally accepted
construction method because the operator had built stoppings in that manner for
the entire twenty three years he had worked at the Twentymile
Mine and MSHA had never raised an objection to the use of spray foam itself at
any stopping. Tr. 123.

Former Peabody Safety Manager Robert Derick testified on the development of the
Twentymile underground ventilation plan. Tr. 132. Derick explained that in
his mining career, he had observed polyurethane foam applied to block stoppings
at many different mines. Tr. 136. Derick
stated that when he began work at the Twentymile Mine
in 1991, the operator was using polyurethane foam to seal both block stoppings
and metal Kennedy stoppings. Tr. 136, 138. Derick stated that upon his review, he had confirmed that
each version of the Twentymile ventilation plan
submitted to MSHA included the use of polyurethane spray foam to seal
ventilation stoppings. Tr. 138-39. Derick
explained that this included the original 1983 ventilation plan as well as
revisions submitted in 1991, 2000, and 2011. Id. On cross-examination, Derick confirmed that no version of
the ventilation plan specifically listed polyurethane foam as an approved
primary sealant at the perimeter of block stoppings. Tr.
143-44.

C.               
The Cited Standard

30 CFR § 75.333(e)(1) mandates:

Except as provided
in paragraphs (e)(2), (e)(3) and (e)(4) of this section all overcasts, undercasts, shaft partitions, permanent stoppings, and
regulators, installed after June 10, 1996, shall be constructed in a
traditionally accepted method and of materials that have been demonstrated to
perform adequately or in a method and of materials that have been tested and
shown to have a minimum strength equal to or greater than the traditionally
accepted in-mine controls.… In-mine tests shall be designed to demonstrate the comparative strength of
the proposed construction and a traditionally accepted in-mine control.

30 CFR § 75.333(e)(1)(emphasis added).

MSHA
promulgated the current version of 30 CFR 75.333(e)(1) along with a number of
other revisions to MSHA’s ventilation regulations in June 1996. In adopting the revised rules, MSHA published a detailed
synopsis of each revised rule within the preamble to the rule.
March 11, 1996 Federal Register 61 FR, 9783-84. For
30 CFR § 75.333(e)(1) MSHA states,

Since the
inception of the Mine Act, a number of traditionally accepted construction
methods have performed adequately and have served their intended function of
separating air courses. These traditionally accepted
construction methods are: 8-inch and 6-inch concrete blocks (both hollow-core
and solid) with mortared joints; 8-inch and 6-inch concrete blocks dry stacked
and coated on both sides with a strength-enhancing sealant suitable for
dry-stacked stoppings; 8-inch and 6-inch concrete blocks dry-stacked and
coated on the high pressure side with a strength enhancing sealant suitable for
dry-stacked stoppings; steel stoppings (minimum 20 gauge) with seams sealed
using manufacturer’s recommended tape and with the tape and perimeter of the
metal stopping coated with a suitable mine sealant; and lightweight
incombustible cementatious masonry blocks coated on
the joints and perimeter with a strength enhancing sealant for dry-stacked
stoppings. . . . For new construction methods or materials other than those
used for the traditionally accepted constructions identified above, the final
rule requires that the strength be equal to or greater than the traditionally
accepted in-mine controls. Tests may be performed
under ASTM E72-80 Section 12 . . . or the operator may conduct comparative
in-mine tests. In-mine tests must be
designed to demonstrate the comparative strength of the proposed
construction and a traditionally accepted in-mine control.

61 FR, 9783-84 (emphasis added for the method nominally
employed by the Respondent at the stopping cited within Citation No. 8481807).

The spray foam applied at the perimeter of the cited
stopping, Touch N Seal U-200/600FR, is currently approved by MSHA as a suitable
sealant for ventilation controls but MSHA has noted that Touch N Seal
U-200/600FR is “non-strength enhancing.” MSHA June 2014 List
of Suitable Sealants, 2 (Designating Clayton Touch ‘N Seal U2-200FR &
U2-600FR as suitable but non-strength enhancing sealants).[4]
Additionally, within MSHA’s 2013 List of Suitable Ventilation Controls Touch N Seal
U-200/ 600FR is only approved when used with steel stopping materials. MSHA 2013 List of Suitable Ventilation Controls, 2-3 (Listing
Touch ‘N Seal Mine Foam and Clayton Corp U2-200FR as approved sealants only for
Kwic-Wall steel panels and GMS modular steel overcast
ventilation controls).

III. CONCLUSIONS OF LAW

A.               
The Violation

The cited standard requires
underground coal operators to install ventilation stoppings in a “traditionally
accepted manner” with “materials that have been demonstrated to perform
adequately …” 30 CFR §75.333(e)(1). The standard does
not itself define what methods or materials are traditionally accepted but the
preamble to 30 CFR 75.333(e)(1) states that the following five traditionally
accepted methods have been demonstrated to perform adequately in separating air
courses,

1) 8 inch and 6 inch concrete
blocks with mortared joints;

2) 8 inch and 6
inch dry stacked concrete blocks with strength enhancing sealants on
both    sides;

3) 8 inch and 6
inch dry stacked concrete blocks with strength enhancing sealants on the high
pressure side;

4) Steel
stoppings with seams sealed with manufacturer’s recommended tape and
the    perimeter sealed with a suitable mine sealant;

5) Lightweight incombustible cementatious
masonry blocks coated on the joints and perimeter with a strength enhancing
sealant suitable for dry stacked stoppings.

61 FR, 9783.

The court finds that the preamble
list of “traditional construction methods” is exhaustive as MSHA states that
“These traditionally accepted construction methods are…” and required
engineering tests for all “new construction methods or materials other than
those used for the traditionally accepted constructions identified above.” FR, 9783-84. Accordingly, the
court finds that the prior or even longstanding use of a particular sealant or
construction method within a mine is irrelevant to whether a stopping is built according to “traditionally accepted construction
methods.”

The court acknowledges that the
preamble to a regulation is not binding when it is not contained within the
regulation itself. Austin Powder Co., 29 FMSHRC
909, 916 (Nov. 2007).

However, the Respondent has not offered any other MSHA
publication or Commission precedent to support the argument that this court
should consider an operator’s customary construction technique in determining
whether or not a stopping is built in a “traditionally accepted method.” The Respondent has not argued that the language of the
preamble contradicts the text of 30 CFR § 77.333(e)(1). As
such, this court holds that the preamble to 30 CFR § 77.333(e)(1) provides the
most relevant and complete set of guidance on the requirements for determining
whether a stopping is built in a “traditionally accepted method.” And the preamble specifically mandates that the perimeter
of cementatious masonry block stoppings must be
sealed with a “strength enhancing sealant suitable for dry stacked stoppings.” 61 FR, 9783.

The Respondent
argues in reference to the preamble that, “If (a
suitable sealant) works for Kennedy stoppings, it will work
for concrete block stoppings and the preamble does not support the Secretary's
position.” Resp. Br, 14. However,
the Respondent’s argument ignores the preamble’s additional mandate that
“lightweight incombustible cementatious masonry
blocks (must be) coated on the joints and perimeter with a strength
enhancing sealant suitable for dry-stacked stoppings.” 61
FR, 9783 (emphasis added).

In the court’s view,
concrete block stoppings are much more similar to lightweight cementatious block stoppings than the metal panel stoppings
relied upon by the Respondent in their argument. Furthermore,
the preamble states the requirement for a strength enhancing sealant at the perimeter
of cementatious masonry blocks by requiring a
“strength enhancing sealant suitable for dry-stacked stoppings.” Id. Accordingly, this court finds that 30 CFR 77. 333(e)(1) requires operators to seal the perimeter of
dry-stack block stoppings with a strength enhancing sealant in order to conform
with traditionally accepted construction methods.

Finally, upon this court’s review,
none of the block stoppings included on MSHA’s 2013 List of Suitable
Ventilation Controls use Touch N Seal U-200/600FR, or
any other polyurethane spray foam, as a perimeter sealant. MSHA
2013 List of Suitable Ventilation Controls, 1-4. Indeed,
although MSHA approved Touch N Seal U-200/600FR as a suitable sealant in 2001,
it has consistently designated Touch N Seal U-200/600FR as non-strength
enhancing and only approved its use as a perimeter sealant when used in metal
stopping assemblies. MSHA June 2014 List of Suitable
Sealants; MSHA 2013 List of Suitable Ventilation Controls; MSHA 2010 Suitable
Sealant List; MSHA 2001 Touch N’ Seal S-17-00 Sealant Approval.

The Respondent has argued that the
Secretary has not properly alleged a violation of 30 CFR 75.333(e)(1) as
Citation No. 8481807 contains allegations that relate to polyurethane spray
foam requirements set forth in the mine’s ventilation plan and not 30 CFR §
75.333(e)(1). Resp. Br., 9-10. The
Respondent’s argument is unavailing. Citation No.
8481807 clearly and unambiguously lists 30 CFR § 75.333(e)(1) as the standard
violated. Sec’y Ex. 1, 1. Additionally,
the text of both the original citation and subsequent modification reference
the improper use of spray foam at block stoppings, in addition to alleging
improper spray foam storage procedures. Sec’y Ex. 1. The court agrees that Citation No. 8481807, particularly
the original version, is less than a perfect model of clarity.
However, the text of Citation No. 8481807 describes the alleged
violative condition (improper application of spray foam) with sufficient
specificity to allow the Respondent to both abate the citation and prepare an
adequate defense. Erie Mining Co., 2 FMSHRC
2717, 3721 (Sept. 1980)(ALJ Lasher).

The Respondent also contends that
this court should rely on the mine’s ventilation plan to determine whether the
cited stopping was built in a traditionally accepted method. Resp.
Br., 9-10 (citing Big Ridge, Inc., 32 FMSHRC 1020, 1028 (Aug. 2010)(ALJ Melick); Cyprus-Empire Corp., 11 FMSHRC 1795, 1809
(Sept. 1989)(ALJ Morris). However, the ALJ decisions
cited by the Respondent do not elevate the language of mine specific plans over
the language of the agency’s regulations. They only
state that the Commission should employ the most specific relevant
Congressional statute or agency regulation to the alleged facts of the
violation. Big Ridge, 32 FMSHRC 1028 (applying
30 CFR § 77.1107(d) rather than 30 CFR § 75.1107(1)(c)
when the regulation treated battery powered equipment differently than cable
powered equipment);Cyprus-Empire Corp., 11 FMSHRC 1809 (holding that an alleged
violation of 30 CFR § 70.100 must be evaluated under the language of section
104(f) of the Act).

Accordingly, this court will not
defer to a provision of an operator’s “MSHA approved” ventilation plan if it
is, in fact, contrary to the language of the regulation. Furthermore,
the Twentymile ventilation plan does not specify that
the operator intended to use polyurethane spray foam at the perimeter of block
stoppings. Sec’y Ex. 3, 1; Tr. 143-44. Given all the above, determining the proper interpretation
or import of the Respondent’s ventilation plan is unnecessary to these
proceedings. Similarly, any inquiry into prior MSHA
inspectors’ acceptance of similar construction techniques at the Twentymile Mine is immaterial to the court’s ruling on the
violation. King Knob Coal Co., 3 FMSHRC 1417,
1421-22 (1981)(holding that “evidence of prior
inconsistent enforcement of a safety standard does not constitute a viable
defense to a violation…”).

In sum, this court finds that 30
CFR 77.333(e)(1) requires the use of strength enhancing sealant at the
perimeter of block stoppings in order to conform with traditionally accepted
construction methods. As the Respondent sealed the
perimeter of the subject stopping with non-strength enhancing Touch N Seal U-200/600FR and did not submit this assembly type
for laboratory testing, the court finds that the Respondent failed to comply
with 30 CFR § 77.333(e)(1). Tr. 86-87.

B.                
Gravity

MSHA Inspector Akbarzadeh
and Assistant District Manger Preece did not perform
any strength testing or attempt to isolate any air leaks at the cited stopping. Tr. 95. Inspector Preece did testify that the cited spray foam lacked ANSI
strength and fire ratings. Tr. 63. On
cross-examination, the Secretary questioned former Safety Manager Derick
regarding a NIOSH report on the effectiveness of polyurethane spray as a
ventilation sealant. Tr. 147-48. However,
as the Secretary failed to provide the report to the Respondent prior to the
pre-hearing conference as required by the court’s initial prehearing order, the
court excluded the report from evidence. Tr. 151-52.

Given the above, the court affirms
Inspector Akbarzadeh’s gravity findings for Citation
No. 8481807 as unlikely to contribute to the occurrence of an injury resulting
in lost workdays or restricted duty and non-significant and substantial.

C.               
Negligence

The
regulation preamble and subsequent MSHA approved sealant lists notified the
Respondent that the perimeter of block stoppings must be sealed with strength
enhancing sealants and that Touch N Seal
U-200/600FR was non strength enhancing. MSHA June 2014
List of Suitable Sealants; MSHA 2013 List of Suitable Ventilation Controls;
MSHA 2010 Suitable Sealant List; 61 FR, 9783. Additionally, MSHA
Inspector Grosley credibly testified that he informed
Peabody Safety Manager McLaughlin that polyurethane spray foam should
not be used as a primary sealant at blocks toppings in October of 2012. Tr. 78. Although none of the
Respondent’s witnesses had any prior knowledge of Mr. Grosley’s
October 2012 conversation with McLaughlin, they did not specifically rebut Mr. Grosley’s testimony regarding that verbal warning.[5] Tr. 94, 120-21.

However, the testimony of both
parties indicates that MSHA inspectors failed to issue citations for using
spray foam at the perimeter of block stoppings at hundreds of different block
stoppings despite a system of full-mine quarterly inspections.
Tr. 107-08, 157. Accordingly, the court finds
that the Respondent acted with moderate negligence in violating the cited
standard.

D.               
Penalty

It is well established that Commission administrative law
judges have the authority to assess civil penalties de novo for violations of
the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider six
statutory penalty criteria:

(1) the operator's history of previous violations, (2) the
appropriateness of such penalty to the size of the business of the operator
charged, (3) whether the operator was negligent, (4) the effect 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.

30 U.S.C. 820(I).

These criteria are generally incorporated by the Secretary
within a standardized penalty calculation that results in a pre-determined
penalty amount based on assigned penalty points. 30
CFR 100.3: Table 1- Table XIV. The Secretary has
proposed a regularly assessed penalty of $162.00 for Citation No. 8481807 based
upon the 30 CFR 100.3 penalty tables. Sec’y Petition, Ex. A.

The Respondent is a large operator with a relatively low
rate of total violations per inspection day and a minimal number of repeat
violations of 30 CFR 75.333(e)(1) in the 15 months prior to the citation at
issue. I have found that the Respondent acted with
moderate negligence. The Respondent has stipulated
that the proposed penalty will not affect its ability to continue in business. Resp. Pre-Hearing Report, 5. I
have found that the violation was unlikely to result in an injury and any
injury that occurred would result in lost workdays/or restricted duty. The parties have stipulated that the Respondent promptly
removed the block stopping and installed a permissible metal stopping with
polyurethane spray foam perimeter sealant. Sec’y Ex. 1, 4:
Tr.

After considering this evidence in light of the six statutory factors I uphold the Secretary's proposed penalty and assess
a penalty amount of $162.00.

IV. PARTIAL SETTLEMENT

The Secretary has filed a motion to
approve settlement of the five remaining violations contained in this docket. Pursuant to 29 C.F.R. § 2700.1(b) and Fed. R. Civ. P. 12(f), I strike paragraphs three and four from
the Secretary's Motion as immaterial and impertinent to the issues legitimately
before the Commission.[6] The paragraphs
incorrectly cite and interpret the case law and misrepresent the statute,
regulations, and Congressional intent regarding settlements under the Mine Act.

Instead, I have
considered the provided specific factual explanations for the agreed upon
settlement per sections 110(i) and 110(k) of the Act. I
acknowledge and accept the explanation for the agreed upon settlement contained
in the parties’ settlement motion and amendments. The
originally assessed amount was $3,457.00 and the proposed settlement is
for $2,858.00. The
parties have agreed to bear their own legal fees associated with this matter,
including costs which may be available under the Equal Access to Justice Act. The parties have moved to approve the proposed settlement
as follows:

Citation No.

Originally
Proposed Assessment

Settlement
Amount

Modification

WEST
2015-64

8479229

$1,203.00

$950.00

Modify Cited Standard
from “30 CFR §75.1103-1” to “30 CFR §75.1101-10”

Modify language in
Section 8 to read, “At the belt drive on the 4 main north belt
at cross cut 38 plus 49 the fire suppression system did not stop the belt
from running while water was flowing.”

Modify Chance of
Injury or Illness from “Reasonably Likely” to “Unlikely”

Remove “Significant
and Substantial” Designation

8481806

$634.00

$571.00

Reduce Monetary
Penalty

8479230

$585.00

$475.00

Reduce Negligence from
“Moderate” to “Low”

8479232

$873.00

$700.00

Modify Chance of
Injury or Illness from “Reasonably Likely” to “Unlikely”

Remove “Significant
and Substantial” Designation

8484028

$162.00

$162.00

Accept as written

Total

$3,457.00

$2,858.00

I have considered the
representations and documentations submitted and I conclude that the proposed
settlement is appropriate under the criteria set forth in section 110(i) of the
Act. The motion to approve settlement is GRANTED, the citations contained in this docket
are MODIFIED as set forth above.

V. ORDER

The Respondent,
Peabody Twentymile Mining, LLC is ORDERED
to pay the Secretary of Labor the sum of $3,020.00 within 30 days of
this order.[7] The
associated notice of contest proceeding WEST 2014-930 is DISMISSED.

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (U.S. First Class
Mail)

Michele A. Horn, Office of the Solicitor, U.S. Department of
Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80204 

R. Henry Moore, Jackson Kelly, Three Gateway Center, Suite
1500, 401 Liberty Avenue, Pittsburgh, PA 15222

[1]
The Respondent refers to the Polyurethane grout as MSHA approved. Resp. Br., 3. While the cited
Touch n Seal U2 200/600 is listed as a suitable stopping sealant by MSHA, it is
listed as non strength enhancing and is not included
in approved block stopping construction methods.

[2]
The Respondent objected to Mr. Grosley’s testimony as
not relevant. The Court overruled the Respondent’s
objections and for the reasons stated within found Mr. Grosely’s
testimony relevant to determining the negligence level of the alleged
violation.

[3]
Mr. Patterson stated that he had started work as a long term
planner for the continuous miner section of the Foidel
Creek Mine after the issuance of Citation No. 8481807.

[4]
The court took judicial notice of MSHA’s publicly available list of suitable
ventilation sealants and stopping construction assemblies after hearing but
prior to the submission of the parties post hearing briefs. The
court provided the parties copies of all referenced MSHA publications on August
18, 2015.

[5]
The Respondent did not offer Mr. McLaughlin as a witness and Safety Manager
Patterson testified that McLaughlin retired from Peabody Mining one week before
the date of the hearing. Tr. 102.

[6] The Secretary’s Motion for Decision and
Order Approving Settlement reads in pertinent part:

3.            
In reaching this settlement, the Secretary has evaluated the value of the
compromise, the likelihood of obtaining a still better settlement, the
prospects of coming out better, or worse, after a full trial, and the resources
that would need to be expended in the attempt. The
Secretary has determined that the public interest and the effective enforcement
and deterrent purposes of the Mine Act are best served
by settling the citation as indicated above.

4.            
Consistent with the position the Secretary has taken before the Commission in
The American Coal Company, LAKE 2011-13, the Secretary believes that the
pleadings in this case and the above summary give the Commission an adequate
basis for exercising its authority to review and approve the Secretary's
settlement under Section 110(k) of the Mine Act, 30 U.S.C. § 820(k).

[7]
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