Secretary of Labor v. Pinnacle Mining Company, LLC

Plain-English summary

At Pinnacle's gassy underground coal mine, an MSHA inspector measured longwall-face air velocity at 435 feet per minute, below the 500 feet-per-minute minimum in the approved ventilation plan, while coal was actively being cut. Pinnacle admitted the violation and low negligence but disputed whether it was significant and substantial and whether ten miners were affected. Judge Thomas P. McCarthy found that inadequate airflow could allow methane and coal dust to accumulate around multiple electrical and frictional ignition sources. He held that continued normal mining made an explosion reasonably likely and that all ten miners near the face could suffer fatal or serious injuries. The judge affirmed the citation as written, assessed its proposed $5,503 penalty, approved settlement of 21 other citations, and ordered total payment of $24,573.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.370(a)(1)
• Outcome: The ventilation-plan citation was affirmed as S&S with ten miners affected and a $5,503 penalty; total litigated and settled penalties were $24,573.
• Key point: Ventilation below an approved plan's minimum can be S&S when methane, coal dust, oxygen, and credible ignition sources create a reasonably likely explosion hazard.

Full text (FMSHRC public release)

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

July 24, 2014

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

PINNACLE
MINING COMPANY, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No.    WEVA 2013-781

A.C.   
No.    46-01816-316352

Mine:
Pinnacle Mine

DECISION AND
ORDER

Appearances:               John
R. Slattery, Esq., U.S. Department of Labor, Philadelphia, PA for Petitioner

Jason
M. Nutzman, Esq., Dinsmore & Shohl LLP, Charleston, WV for Respondent

Before:                        Judge
McCarthy        

I.                  
    Statement
of the Case

This case is before me upon a Petition
for Assessment of a Civil Penalty under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d).    The Petition charges Respondent,
Pinnacle Mining, LLC (Pinnacle), with a significant and substantial (S&S)
violation of 30 C.F.R. § 75.370(a)(1).

A settlement was reached regarding 21 of
22 citations at issue in this docket.    Tr. 9; Jt. Ex. 1.    I have reviewed
the parties’ joint settlement motion and I approve the parties’ settlement
agreement set forth in Joint Exhibit 1 as consistent with the criteria set
forth in section 110(i) of the Act and in furtherance of the public interest.   

Citation No. 7195128 remains unsettled.   
Tr. 10.    Respondent concedes that it violated the standard and acted with low
negligence.    Tr. 19.    Respondent disputes the S&S designation and the
number of persons affected by the violation.    Tr. 20.

A hearing was held in Beckley, West
Virginia on December 10, 2013.    Witnesses were sequestered.    Tr. 15-18.    MSHA
inspector Joshua S. Bennett testified for the Secretary.    Pinnacle mine
foreman John David Cox, II, testified for Respondent.   

Based on the entire
record, including the parties’ post-hearing briefs and my observation of the demeanor
of the witnesses,[1]
I find that Citation No. 7195128 was properly designated as S&S and that
ten persons were reasonably likely to suffer fatalities or injuries of a reasonably
serious nature as a result of the hazard contributed by Pinnacle’s violation of
mandatory safety standard 30 C.F.R. § 75.370(a)(1).

II.               
Factual
Background

A.       
Stipulations of Fact and Law

At
hearing, the parties agreed to the following stipulations:

1.      Respondent is
the owner and operator of Pinnacle Mining Company, LLC and is subject to the
jurisdiction of the Mine Act.   

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

3.     
Pinnacle
Mining may be considered a large size mine operator for the purposes of 30
U.S.C. § 820(i).   

4.      The assessed penalties
will not affect the ability of Respondent to remain in business.

5.      Certified Mine Inspector
(CMI) Bennett from MSHA was acting as a representative of the Secretary of
Labor when he issued Citation No. 7195128.   

6.     
Citation
No.    7195128 was properly served by a duly authorized representative of the
Secretary of Labor upon the agent of Respondent at the date, time, and place
stated therein.   

7.     
MSHA’s
Proposed Assessment Data Sheet and Petitioner’s Exhibit 1 set forth: (a) the
number of assessed penalty violations charges to Respondent for the period
stated and (b) the number of inspection days per month for the period stated.   

8.     
On
December 28, 2012, Respondent violated 30 C.F.R.    75.370(a)(1) by failing to
follow the approved ventilation plan on the 071-0MMU longwall, which requires a
minimum air velocity of 500 feet-per-minute (“fpm”) to be maintained at the
trailside location.

9.      The Citations
may be admitted into evidence for the purpose of establishing their issuance
and not for the purpose of establishing the accuracy of any statements asserted
therein.   

Tr. 7-8

B.     Background

Pinnacle Mine is a
bituminous underground coal mine located in Pineville, West Virginia.    The
gassy mine and produced approximately five million cubic feet of methane daily
at the time that Citation No. 7195128 issued on December 28, 2012.    P. Ex. 6 at 2; P. Ex. 3.    Section 103(i) of the Mine
Act provides that any mine liberating over one million cubic feet of methane
daily must be spot checked for methane emissions at least once over each five-day
period.    Tr. 85.   

MSHA regulations provide
that gassy mines must be ventilated in order to flush methane and coal dust
from the mine according to a ventilation plan developed by the mine operator
and approved by a MSHA representative.    30 C.F.R. § 75.370(a)(1).[2]    At the time of the violation, Pinnacle’s
ventilation plan
required a minimum air velocity of 500 feet-per-minute along the 9G tailgate
working face.    R. Ex. 1, at 1; Tr. 44.

Pinnacle has a history of
ignitions over the past 25 years at the mine.    In its Belt Air Justification submitted
to MSHA in 2010, Pinnacle references 16 confirmed instances of ignitions and
one alleged ignition at the mine.    P. Ex. 6, at 6.[3]

C.    The Instant Inspection

On December 28, 2012 at
approximately 7:45 a.m., inspector Bennett[4]
arrived at Pinnacle Mine in order to conduct a methane spot inspection.    Tr.

34.    Bennett, accompanied by a management and miner representative, traveled
to the 9G longwall tailgate.    Tr. 36-37.    A longwall continuous miner plow
(longwall plow) was actively mining coal was cutting coal and generating a
large amount of coal dust.    Tr. 65.

After arriving at the 9G longwall
tailgate, Bennett walked to the working face and entered the shield line to
take a methane reading with his multi-gas detector.[5]    Tr. 38, 40, 44.    The detector
registered a methane concentration in the ambient air of between .9-1% and an
oxygen concentration of 20.8%.    Tr. 38.    Bennett’s multi-gas meter
registered between .9% and 1% methane during the entire time that Bennett traveled
along the longwall tailgate area.    Tr. 43.   

Bennett also took an air
velocity reading at the longwall with his Davis anemometer.    Tr. 43.    The
anemometer registered an air velocity of 435 feet-per-minute (fpm).    Tr. 44.   
After obtaining this air velocity reading, Bennett took another reading using a
wand anemometer.    Tr. 44.    The wand anemometer also registered an air
velocity of approximately 435 fpm.    Tr. 45.

Thereafter, Bennett informed
the tail boss that his anemometers had registered air velocities along the
longwall face that were below those required by Pinnacle’s ventilation plan.
Tr. 45.    The tail boss then contacted mine workers on the headgate side to make
adjustments to the ventilation system for the tailgate side. Tr. 45.   

About 30 minutes later,
Bennett took another air velocity reading at the working face. Tr. 46.    At
that time, Bennett’s anemometer registered an air velocity of 550 fpm and Bennett’s
multi-gas detector registered a methane content of .5%.    Tr. 46.   

Bennett then travelled
toward the 9G longwall tailgate entry and issued Citation No. 7195128 for a violation
of    § 75.370(a)(1).    Tr. 47.    The violation was designated S&S, reasonable
likely to result in fatal injuries affecting ten miners, and was attributed to
Respondent’s low negligence.        P. Ex. 1, at 18.    The proposed penalty
was $5,503.00.    P. Ex. 1 at 9.

Bennett designated the
citation as S&S because substandard air velocities from the failure to follow
the ventilation plan would result in an accumulation of methane that would
cause an ignition resulting in an explosion from methane liberated at the face
where float coal dust was present.    Tr. 75-77.     Bennett explained that methane
would accumulate quickly because Respondent was actively cutting coal, not
following the ventilation plan, and if normal mining operations continued, an
explosive amount of methane would likely have been liberated.    Id.

Bennett testified that the three
conditions necessary for an explosion were present:    fuel, oxygen, and an
ignition source.    Tr. 64.    There was fuel in the form of methane at the
longwall face and in the gob.    Tr. 65.    There was also float coal dust, coal
fines, and accumulations of grease near the working face.    Tr. 65, 104.    There
was oxygen in the ambient air at a concentration of 20.8%.[6]    Tr. 117.    Further, Bennett highlighted
several potential ignition sources: frictional heat sources, including the
conveyor chain running in a metal pan; the tail drive sprocket on the
continuous miner; sparks from the longwall plow scraping against rock streaks
in the coal seam; and electrical sources, such a high voltage cord feeding the longwall
plow, a starter box, telephones, and lighting across the face.    Tr. 65-67,
104-105.    Bennett further testified that Pinnacle had been cited for numerous
permissibility issues, both before and after Citation No. 7195128 was issued.   
Tr. 67.   

Respondent’s sole witness,
John
David Cox, II,[7] conceded
that substandard ventilation practices could contribute to methane
accumulations in the mine.    Tr. 146.    Cox testified that the longwall plow
was equipped with several safety devices, including water sprays to reduce dust
accumulations at the face.    Tr. 137.    In addition, he testified that the
longwall plow was designed to stop working the face once it encountered rock,
thus reducing the likelihood of sparking.    Tr. 137.    Further, the plow was
designed to stop operating once a methane concentration of 1% was detected.    Tr.

141.    Cox also testified that coal production would stop if substandard air
velocity was detected at any point along the working face, or if methane
sensors in a single location along the working face stopped working.    Tr.
130.

III.            
Legal Analysis - Significant and Substantial Analysis and
Disposition

Section 104(d) of the Mine
Act describes a S&S violation as “a violation of any mandatory health or
safety standard … [when] such violation is of such a nature as could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” 30 U.S.C. § 814(d)(1).

In Mathies Coal Co., 6
FMSHRC 1 (Jan. 1984), the Commission announced four criteria for an S&S
violation, “(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.”    Id. at 3-4.    The
Secretary must introduce substantial evidence to support a finding for each of
these four factors. 30
U.S.C. § 823(d)(2)(A)(ii)(I).    “Substantial evidence”
means “‘such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion.”’ Rochester & Pittsburgh Coal
Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (citing Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

As to the first Mathies factor,
section 3(l) of the Mine Act defines “mandatory health or safety standards” as
“the interim mandatory health or safety standards established by titles II and
III of this Act, and the standards promulgated pursuant to title I of this
Act.”    All standards are promulgated pursuant to title I of the Mine Act.    The
parties have stipulated to the violation of section 75.370(a)(1), a mandatory
safety standard.    Tr. 19.

As to the second Mathies factor,
the Secretary need only identify a discrete safety hazard associated with the putative
S&S violation.    Bledsoe
Coal Corp.,
34 FMSHRC 2569, 2573 (Oct. 2012) (ALJ) (explaining that the second Mathies factor
requires the Secretary to identify a discrete hazard contributed to by an
underlying violation).    The risk of a methane explosion
articulated by inspector Bennett is a discrete safety hazard.     See
Knox Creek Coal Corp., 36 FMSHRC         , slip op. at 6 (May 28, 2014); Consolidation
Coal Co., 35 FMSHRC 2326, 2337 (Aug. 2013) (upholding an ALJ’s finding
that the “danger of methane accumulation” was a safety discrete hazard); Jim
Walter Res., 28 FMSHRC 579 (Aug. 2006) (stating that methane buildup is a
discrete safety hazard).   

I credit both Bennett’s and
Cox’s testimony that substandard ventilation practices, including insufficient
air velocities, contribute to the risk of a methane explosion in a gassy mine.   
Tr. 75, 146.    Moreover, once Respondent’s tail boss had the ventilation
system adjusted and compliant air velocity levels were achieved at the working
face, the methane concentration was cut nearly in half in a matter of twenty
minutes.    Tr. 45-46.   

Respondent’s brief makes too much of
inspector Bennett’s testimony that “an operator is permitted to continue to
operate a coal mine when there is 1% of methane or less present.”    R. Br. 15.   
On this basis, Respondent argues that “if an operator is permitted to continue
to operate with 1% or less of methane [sic] MSHA does not believe a
hazard is created.”    R. Br. 15.    This conclusion, however, discounts the substandard
air velocities that were found by inspector Bennett.    Citation No. 7195128
was issued precisely because they were impermissible under MSHA
regulations.    Accordingly, the Secretary has shown by substantial
evidence that there was a discrete safety hazard contributed to by the section 75.370(a)(1)
violation.   

The third Mathies
factor requires that the Secretary show “a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.”    U.S.
Steel Mining Co., 7 FMSHRC
1125, 1129 (Aug. 1985).    An injury need not be more probable than not to be
“reasonably likely.”    Id. at 1130.    The reasonable likelihood
determination is made “in terms of continued normal mining operations.”    U.S.
Steel
Mining
Co., 6 FMSHRC
1573, 1574 (July 1984).    That is, whether the hazard (methane explosion) contributed
to by the violation (failure to follow the ventilation plan because of
insufficient air velocities) has a reasonable likelihood of resulting in an
injury if the mine were to continue in normal operation.     

When analyzing the
“reasonable likelihood” of an ignition or explosion, “the Commission examines whether
a ‘confluence of factors’ is present on the particular facts surrounding the
violation.”    Texas Gulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988).    These
factors include “the extent of accumulation, possible ignition sources,
the presence of methane, and the type of equipment in the area.”    Utah
Power & Light Co., 12 FMSHRC 964, 970-71 (May 1990).

I credit Bennett’s testimony
that in order for the discrete hazard of methane explosion to be reasonably
likely to result in an injury, the so-called “fire triangle” must be present:
oxygen, a fuel source, and an ignition source.    Tr. 64.    This testimony is
consistent with Commission and ALJ precedent establishing that the fire
triangle must be present in order for an explosion to be reasonably likely.    U.S.
Steel Mining Co., 27
FMSHRC 435 (May 2005); see also Highland Mining Co., 35 FMSHRC 221
(Jan. 2013) (ALJ).

At hearing, Bennett testified
that the ambient air at the working face consisted of 20.8% oxygen.    Tr. 83.   
Bennett’s testimony establishes that a methane explosion may occur when the
oxygen concentration reaches 20.8%.    Tr. 117.   

I also find a fuel source in
the form of methane that would have led to an explosion if Pinnacle’s mine had
continued to operate with substandard air velocity at its face.    Tr. 65.    While
Bennett’s gas meter registered a methane concentration in the ambient air of only
.9-1.0%, and methane is generally explosive only at concentrations of 5-15%,
the explosive point of methane is lowered when there are substantial quantities
of coal dust in the air.    Tr. 75.     Bennett credibly testified that there
were large amounts of coal dust present at the working face, where coal was
actively produced upon his arrival.    Tr. 75.    Furthermore, I credit
Bennett’s testimony that methane concentrations may have risen dramatically in
a short period of time so as to reach explosive levels.    Tr. 75.    I emphasize
that Bennett was an experienced MSHA inspector whose opinion that the violation
was S&S is entitled to substantial weight.    Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Co. v. FMSHRC, 52
F.3d 133,135 (7th Cir. 1995).

I also find that there were
several potential ignition sources present, including sparks generated from the
longwall plow’s contact with rock or geological irregularities.    Commission
precedent has recognized that the operation of a continuous miner at the
longwall face is a potential ignition source.    U.S. Steel Mining Co.,
7
FMSHRC at 1130.    Pinnacle argues that its longwall plow would stop operating
once it contacted rock or geological irregularities.    R. Br. at 16.    That
is immaterial as sparks maybe generated during the plow’s initial
contact with rock or geological irregularities.    Furthermore, there were
several electrical devices at the face during Bennett’s inspection.    Any one
of these devices may have generated a spark or arched, especially given Pinnacle’s
history of permissibility violations.    Tr. 67.   

While Pinnacle relies on several
safety measures[8]
designed to reduce the likelihood of explosions, Commission and Circuit Court
precedent in analogous situations discounts such measures when making S&S
determinations.    Buck Creek Coal Co., 52 F.3d at 136 (“The fact that
[a mine] has safety measures in place to deal with a fire does not mean that
fires do not pose a serious risk.”); Cumberland Coal Co., 33 FMSHRC
2357, 2369 (Oct. 2011) (explaining that the presence of safety measures is
immaterial in a Mathies S&S analysis).    I thus give little weight
to the secondary safety measures relied on by Respondent.

As to the fourth Mathies
factor, the injury identified in the third Mathies factor must be of a
reasonably serious nature.    The Commission has held that injuries resulting
from a methane explosion are of a reasonably serious nature.    Consolidation
Coal Co.,
35 FMSHRC 2326, 2339 (Aug. 2013) (upholding an ALJ’s finding that injuries
resulting from a ventilation violation were “reasonably serious”); see also Buck Creek Coal Co. Inc., 52 F.3d at 135 (finding that a fire burning in an
underground coal mine posed a risk of injuries of a reasonably serious nature).

I credit Bennett’s testimony
that there were ten miners in the immediate vicinity of the 9G tailgate working
face.    Tr. 74.    Thus, I find that if an explosion had
occurred, which was reasonably likely under the particular facts and
circumstances, it would have led to fatalities or injuries of a reasonably
serious nature to ten miners.     

I have evaluated the
Secretary’s proposed penalty in light of the principles announced in my recent Big
Ridge. decision.    Big Ridge Inc., 36 FMSHRC         slip
op. at 4-6 (July 19, 2014) (ALJ).    I find that the penalty proposed by the
Secretary is consistent with the statutory requirements of section 110(i) of
the Mine Act. 30
U.S.C. § 820(i).    Thus, I assess a $5,503 penalty
against Respondent.       

IV.            
Order

For the reasons set forth above, Citation No. 7195128
is AFFIRMED, as written.    Within 40 days of the date of this decision,
Respondent, Pinnacle Mining Company, LLC, is ORDERED TO PAY a total civil
penalty of $24,573.00 for the previously settled penalties[9] and for the S&S violation
litigated at hearing.[10]

/s/ Thomas P.
McCarthy

Thomas P. McCarthy

Administrative
Law Judge

Distribution:

John
R. Slattery, Esq., Office of the Solicitor, U.S. Dept. of Labor, 170
Independence Mall West, Suite 630 E, Philadelphia, PA 19106-3306

Jason
Nutzman, Esq., Dinsmore & Shohl, LLC., 900 Lee Street, Suite 600

Charleston,
WV 25301

/rmo    

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

[2] The standard provides:
“The
operator shall develop and follow a ventilation plan approved by the district
manager. The plan shall be designed to control methane and respirable dust and
shall be suitable to the conditions and mining system at the mine.    The
ventilation plan shall consist of two parts, the plan content as prescribed in § 75.371 and the
ventilation map with information as prescribed in § 75.372. Only
that portion of the map which contains information required under § 75.371 will
be subject to approval by the district manager.”    30
C.F.R. § 75.370(a)(1).

[3] The Belt Air
Justification was a revision to the original ventilation plan.     Tr. 33; see
also 30 C.F.R. § 75.370(a)(2).

[4] Bennett had been a ventilation specialist for MSHA for
about six months.    Tr. 26.    Before that, he had been a CMI for about three
and one-half years.    Tr. 26.    Bennett was familiar with Pinnacle Mine and
had conducted numerous inspections there for MSHA.    Tr. 30.    At MSHA,
Bennett received a year-long training course, which included a three to four
week module on ventilation.    Tr. 27-28.    Prior to employment with MSHA,
Bennett had worked in the mining industry for about six years.    Tr. 16-27.   

[5] Bennett credibly testified that he had calibrated his
Solaris multi-gas detector at the Pineville MSHA field office earlier that
morning.    Tr. 40.

[6] Bennett testified that methane explosions are possible at
oxygen levels above 10.0%.    Tr. 117.   

[7] Cox holds an
electrical engineering degree and a mechanical engineering degree from
Bluefield State College.    Tr. 127.    At the time of the hearing, Mr. Cox was
employed as a longwall foreman.    Tr. 127.    He is certified by West Virginia
as an assistant underground mine foreman. Tr. 127.

[8] Respondent alleges
a “redundant system” of methane monitors designed to immediately stop coal
production if monitors malfunctioned at any location at the working face.    R.
Br. 12.    Respondent also alleges that its longwall plow was designed to shut
off once methane concentrations of 2% were detected.    R. Br. 12.

[9] As stated
earlier, I approve the parties’ settlement agreement set forth in Joint Exhibit
1 and ORDER the modifications and reductions in penalty found therein.

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