Eastern Associated Coal Corporation

Plain-English summary

Eastern Associated Coal operated the Lightfoot No. 2 underground coal mine in West Virginia. The judge found that respirable-dust levels exceeded the applicable limit and that required follow-up samples were not submitted, but found that the operator's good-faith dust-control efforts and a misfiled sampling notice did not amount to unwarrantable failure or high negligence. The judge modified both the citation and the order to Section 104(a) citations and assessed penalties of $500 and $100. The two dockets involved the dust-level violation and the missed follow-up sampling.

Decision snapshot

• Cited standards: 30 C.F.R. § 70.101, 30 C.F.R. § 70.208(c)
• Outcome: Citation No. 7151881 and Order No. 7151884 were modified to Section 104(a) citations, with $500 and $100 civil penalties.
• Key point: Proven violations were not automatically unwarrantable failures when the operator showed good-faith compliance efforts and the missed samples resulted from an isolated filing error.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                          OFFICE OF ADMINISTRATIVE LAW JUDGES
                                   2 SKYLINE, Suite 1000
                                   5203 LEESBURG PIKE
                              FALLS CHURCH, VIRGINIA 22041


                                         June 26, 1998

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-9
Petitioner : A. C. No. 46-04955-03631
v. :
: Docket No. WEVA 98-18
EASTERN ASSOCIATED COAL : A. C. No. 46-04955-03632
CORPORATION, :
Respondent : Lightfoot No. 2 Mine

                                          DECISION

Appearances: Gretchen L. McMullen, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Arlington, Virginia, on behalf of the Petitioner;
Caroline A. Henrich, Esq., Eastern Associated Coal Corporation,
Charleston, West Virginia, on behalf of the Respondent.

Before: Judge Melick

     These consolidated civil penalty proceedings are before me pursuant to Section 105(d) of

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 801 et. seq., the "Act," to challenge
a citation and withdrawal order issued by the Secretary of Labor to Eastern Associated Coal
Corporation (Eastern). Eastern does not dispute the violations as alleged but disputes that those
violations were the result of its "unwarrantable failure" to comply. Also at issue therefore, is the
appropriate civil penalty to be assessed for the violations considering the criteria under Section
110(i) of the Act.

     Citation No. 715188, issued pursuant to Section 104(d)(1) of the Act, alleges a

"significant and substantial" violation of the standard at 30 C.F.R. ' 70.101 and charges as
follows:

              Based on the results of five valid dust samples collected by the operator,
      the average concentration of respirable dust in the working environment of the
      designated occupation in mechanized mining unit 019-0 was 1.7 mg/m3, which
      exceeded the applicable limit of 1.5 mg/m3. Management shall take corrective
      actions to lower the respirable dust and then sample each production shift until


      five valid samples are submitted and results of the analysis are processed and

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   recorded at the Pittsburgh Respirable Dust Processing Laboratory.1

   The cited standard, 30 C.F.R. ' 70.101, provides as follows:

          When the respirable dust in the mine atmosphere of the active workings
   contains more than 5 percent quartz, the operator shall continuously maintain the
   1
       Section 104(d)(1) of the Act provides as follows:

    "If, upon any inspection of a coal or other mine, an authorized representative of the

Secretary finds that there has been a violation of any mandatory health or safety standard, and if
he also finds that, while the conditions created by such violation do not cause imminent danger,
such violation is of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused
by an unwarrantable failure of such operator to comply with such mandatory
health or safety standards, he shall include such finding in any citation given to the operator under
this Act. If, during the same inspection or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an authorized representative of the Secretary finds another
violation of any mandatory health or safety standard and finds such violation to be also caused by
an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that such violation has been
abated."

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   average concentration of respirable dust in the mine atmosphere during each shift
   to which each miner in the active workings is exposed at or below a concentration
   of respirable dust, expressed in milligrams per cubic meter of air as measured with
   an approved sampling device and in terms of an equivalent concentration
   determined in accordance with ' 70.206 (Approved sampling devices; equivalent
   concentration), computed by dividing the percent of quartz into the number 10.

    It is undisputed in this case that the applicable reduced dust standard is 1.5 mg/m3.

Neither the violation nor the related "significant and substantial" findings are in dispute. At issue
is the question of whether the violation was the result of Eastern=s unwarrantable failure and high
negligence. Unwarrantable failure is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corporation, 9 FMSHRC 1997 (December 1987).
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference" or a "lack of reasonable care." Id. at 2003-04; Rochester and
Pittsburgh Coal Company, 13 FMSHRC 189, 193-194 (February 1991). Relevant issues
therefore, include such factors as the extent of a violative condition, the length of time that it
existed, whether an operator has been placed on notice that greater efforts are necessary for
compliance, and the operator=s efforts in abating the violative condition. Mullins and Sons Coal
Company, 16 FMSHRC 192, 195 (February 1994). Repeated similar violations may also be
relevant to this inquiry because they indicate an operator has notice that greater efforts are
necessary for compliance with the standard. Peabody Coal Co., 14 FMSHRC 1258 (August
1992).

    The Secretary relies in this regard primarily on the testimony of MSHA coal mine

inspector Don Braenovich. The subject citation was issued by Inspector Braenovich on June 15,
1997, after the results of the bi-monthly sampling cycle (May through June 1997) for the
mechanized mining unit 019 showed an average concentration of respirable dust of 1.7 mg/m3 - -
in excess of the reduced standard of 1.5 mg/m3. The record shows that seven citations had been
issued at the subject mine for respirable dust violations during the 6 2 month period dating back
to November 4, 1996. Three of those respirable dust violations occurred on the same 019
mechanized mining unit at issue herein.

     Braenovich also recalled discussing the dust problem with mine officials four or five times

in the year before the instant citation was issued. Don Ellis, supervisor of the corresponding
MSHA field office, also recalled two formal meetings and many informal conversations with mine
officials about their respirable dust problem. In addition, Mine Superintendent George Schuller
acknowledged at hearing that he was aware in May and June that they had a dust problem and
that they had to take extra precautions to comply with the dust regulations. Mine manager Bernie
Milam further acknowledged recognition as early as October 1996 of a dust problem.

    While this evidence, standing alone, would tend to support high negligence and

unwarrantability findings, I find that it is significantly mitigated by Respondent=s continuing good
faith and reasonable efforts to achieve compliance. See Secretary v. Westmoreland Coal Co., 7

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FMSHRC 1338, 1342 (September 1985). Indeed, there are significant similarities between
Respondent=s good faith and reasonable efforts to achieve compliance in this case and the efforts
by the operator in Secretary v. Peabody Coal Company, 18 FMSHRC 494 (April 1996), found by
this Commission to be a basis to negate unwarrantability findings.

    The efforts by Eastern management to correct its respirable dust problem at the subject

mine included the addition of pressure pumps to increase water pressure, the replacement of 4-
inch water pipes with 6-inch pipes to increase the water supply, the modification of the ventilation
system from an exhaust system to a blowing system, the utilization of a dual impact scrubber on at
least one of the continuous miners and the retraining of employees in dust control.

     More particularly, it is undisputed that between November 1996 and June 1997,

Respondent purchased three pressure pumps, two of which were installed prior to the issuance of
the instant citation. These pumps were installed to insure a continual uninterrupted flow of water
to the continuous miner to help keep dust from being suspended. It is also undisputed that prior
to the issuance of the instant citation the 4-inch water lines were replaced with 6-inch lines.
According to Eastern Safety Supervisor Donald Pauley, this was done to increase the water
supply to obtain the volume and pressure necessary for the type of water sprays they were using.
Pauley testified credibly that this change enabled them to reduce the amount of dust generated.

    While the MSHA inspectors testified that the increased water flow for the water sprays

provided by these pressure pumps and the new and larger water lines had no bearing on reducing
respirable dust, I give this testimony but little weight. The more credible testimony is provided by
Safety Supervisor Pauley, and from mine superintendent George Schuller. Schuller, a graduate
mining engineer, testified that there is no other reason to increase the water supply on the miner
than to improve dust suppression. Indeed, in the Peabody case, 18 FMSHRC at pages 498-499,
this Commission reversed the trial judge, in part, for failing to recognize the relationship between
an increased water supply and dust control.

    In any event, the critical issue herein is whether Eastern officials acted in the good faith

and reasonable belief that their actions in increasing water supplies to the continuous miners
would reduce dust levels - - not whether such actions did in fact reduce dust levels. Clearly, the
evidence supports the conclusion that they did act in a good faith reasonable belief that their
actions would reduce dust levels. Indeed, the Secretary has not shown that there would be any
reason to increase the water supply other than to attempt to reduce dust levels.

     It is further undisputed that Respondent, over a period of time before the instant citation,

had progressively implemented changes in mine ventilation, including removing stoppings and
building other stoppings with the objective of changing the ventilation system to a blowing fan
system. Even Inspector Braenovich recognized that these changes would have improved the air
flow and, implicitly, also improved dust control. Mine manager Benny Milam, also credibly
testified that the "biggest purpose" for this ventilation change was dust control at the continuous
mining units.

   The Secretary nevertheless argues that these efforts were irrelevant because the actual

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changeover to a blowing fan system did not take place until June 14, 1997, after the May/June
bi-monthly samples had been taken. The Secretary again misses the point however. Not only is it
undisputed that many changes were made in the ventilation prior to the bi-monthly sampling but
also, in determining mitigation, the issue is the good faith and reasonable efforts by the operator
to reduce dust levels. The proposed improvement in ventilation, even though not fully
implemented at the time the citation was issued, nevertheless, is therefore a mitigating factor.

     It is further undisputed that Eastern had revised its dust control plan for MMU 20 to

increase the air from 3,000 to 4,000 cfm. Even Inspector Braenovich conceded that this would
reduce dust levels. In addition, Eastern officials were working with a vendor to purchase and
install a dual intake scrubber in MMU 17 to assist in dust suppression. Finally, it is undisputed
that training had been conducted at the Lightfoot No. 2 mine between November, 1996 and June
15, 1997, to improve dust suppression. This training included the review of methane and dust
control plans with both hourly and salaried personnel.

    In assessing Respondent=s good faith and reasonableness in trying to control respirable

dust, I also consider the fact that after the citation issued January 8, 1997, showing non-
compliance with the dust standard by 3.9 mg/m3 , Respondent thereafter showed improvement
and, while nevertheless out of compliance on the dates shown by citations on March 27, May 6
and June 15, 1997, such non-compliance was by margins of only .1 mg/m3 , .5 mg./m3, and .2
mg/m3, respectively. Eastern therefore, could have had reason to believe that its remedial efforts
were generally showing improvement and that its continuing efforts, e.g., by fully converting to a
blowing fan ventilation system, would likely succeed in controlling the dust.

    Under all of the circumstances, I conclude that Eastern=s remedial efforts clearly

demonstrated a good faith, reasonable belief that it was taking the steps necessary to achieve
compliance with the dust standard at issue, sufficient to mitigate its negligence and to negate
findings of unwarrantable failure.

    Order No. 7151884, issued June 24, 1997, pursuant to Section 104(d)(1) of the Act

alleges a violation of the standard at 30 C.F.R. ' 70.208(c) and charges as follows:

           The operator failed to submit five additional respirable dust samples on the
   817-0 belt designated area within the required fifteen days. The operator was
   notified May 22, 1997, that five valid samples were required to be done. As of
   today, no samples have been submitted or received at the Pittsburgh Respirable
   Dust Processing Laboratory.

   The cited standard, 30 C.F.R. ' 70.208(c), provides as follows:

           Upon notification from MSHA that any respirable dust sample taken from a
   designated area to meet the requirements of Paragraphs (a) or (b) of this section
   exceeds the applicable standard in Section 70.100 (respirable dust standards) or
   Section 70.101 (respirable dust standard when quartz is present), the operator shall
   take five valid respirable dust samples from that designated area within 15 calendar

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   days. The operator shall begin such sampling on the first day in which there is a
   production shift following the day of the receipt of notification.

     There is no dispute that the requisite dust samples were not submitted as required and

there is no dispute that the violation existed as charged. The issue is whether the violation was
the result of Eastern=s high negligence and unwarrantable failure to comply. In this regard, safety
supervisor Donald Pauley testified that Eastern maintained notebooks containing all of the dust
mailers but that in this case, for unknown reasons, the mailer was filed in the wrong notebook.
This error was not discovered until the violation was charged. According to Pauley, mailers had
never before been misfiled. While Inspector Braenovich was apparently skeptical of this version
of events, Pauley=s testimony is not directly disputed.

    The Secretary nevertheless argues that Respondent was highly negligent because it had

been cited once previously, on January 7, 1997, for failing to submit additional samples. One
previous violation of this nature, particularly without knowledge of the underlying facts and their
similarity, vel non, with the instant case, is not sufficient to establish high negligence or
unwarrantable failure. The Secretary also argues that Inspector Braenovich had verbally warned
company personnel about submitting samples late in May 1997, and that Steve Richards, the
company official responsible for submitting the samples, had previously submitted samples at the
last minute. The Secretary has failed however, to establish a rational connection between prior
lawful and timely submissions of dust samples, even though submitted at the last minute, and the
facts of instant case that would warrant findings of unwarrantability.

   Under the circumstances, I find that the Secretary has failed to sustain her burden of

proving that the violation was the result of unwarrantable failure or high negligence. Order No.
7151884 must accordingly be modified to a citation issued pursuant to Section 104(a) of the Act.

    In assessing civil penalties in these cases, I have considered the high gravity of the

violation charged in Citation No. 7151881, the low gravity of the violation charged in Citation
No. 7151884, and that these violations were the result of moderate to low negligence. I have also
evaluated the operator=s prior history (Gov. Exh. 3, 4 and 12) and other record evidence in light
of the criteria under Section 110(i) of the Act.

                                         ORDER

    Citation No. 7151881 is hereby MODIFIED to a citation issued under Section 104(a) of

the Act and Eastern Associated Coal Corporation is directed to pay a civil penalty of $500.00, for
the violation charged therein within 30 days of the date of this decision. Order No. 7151884 is
hereby MODIFIED to a citation under Section 104(a) of the Act and Eastern Associated Coal
Corporation is directed to pay a civil penalty of $100.00, for the violation charged therein within
30 days of the date of this decision.

                                                          Gary Melick

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                                                Administrative Law Judge

Distribution:

Gretchen L. McMullen, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)

Caroline A. Henrich, Esq., Eastern Associated Coal Corp., P.O. Box 1233, Charleston, WV
25324 (Certified Mail)

\mca

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