**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

 

 
| SECRETARY OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

             Petitioner,

 

             v.

 

PEABODY MIDWEST MINING, LLC,

              Respondent.

 

 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

             Petitioner,

 

             v.

 

MICHAEL BUTLER, employed by PEABODY MIDWEST MINING, LLC,

              Respondent.                                                                                       |   |   | CIVIL PENALTY PROCEEDINGS

 

Docket No. LAKE 2019-0023

A.C. No. 12-02295-474164

 

Docket No. LAKE 2019-0122

A.C. No. 12-02295-478356

 

 

 

 

Docket No. LAKE 2019-0361

A.C. No. 12-02295-497867 A

 

 

 

 

 

 

 

Mine: Francisco Underground  Pit |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION ANDORDER**

 

Appearances:              BarbaraM. Villalobos, U.S. Department of Labor, Office of the Solicitor, 230 S.Dearborn St., 8th Floor, Chicago, IL 60604

            R.Henry Moore, Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburgh,PA 15222

 

Before:              Judge Simonton 

 

 

 

 

**                                                                               I.         ****INTRODUCTION**

 

These cases arebefore me upon petitions for assessment of civil penalties filed by theSecretary of Labor pursuant to sections 105(d) and 110(c) of the Federal MineSafety and Health Act of 1977, 30 U.S.C. §§ 815(d) and 820(c) (“the Act”).[1] In dispute are three section 104(d)(1) orders issued to Peabody MidwestMining, LLC (“Peabody”) and two companion section 110(c) penalty assessmentsissued to Michael Butler (“Butler”), alleging his personal liability as anagent of Peabody.

The partiespresented testimony and documentary evidence at a hearing held in Evansville,Indiana on March 3-4, 2020. The Secretary presented testimony from REI drilloperator Robert Ferrin, MSHA inspector Keith Duncan, MSHA special investigatorPhillip Stanley, and MSHA inspector Chris Persinger. Peabody presentedtestimony from hourly miner John Stevens, maintenance foremen Brad Cary,production supervisor James Ford, mine manager Michael Butler, general managerBrad Rigsby, maintenance manager Charles Lyons, and maintenance supervisorMichael Trueblood. The parties each filed post-hearing briefs.

** **

**                                                                       II.         ****FINDINGS OF FACT**

** **

Peabody operatesthe Francisco Underground Mine (“Francisco”), a coal mine located in GibsonCounty, Indiana. Jt. Stip. 2. In July 2018, Peabody employed a contractor, REIDrilling, to conduct horizontal longhole drilling in the “0” return entry forUnit 3. Jt. Stip. 19. The drilling was performed in order to identify old worksin close proximity that might be intersected when the continuous miner on Unit3 advanced. *Id*. This exploratory drilling is safer to do ahead of miningactivity so that a barrier may be established, and the operator can beconfident that abandoned workings are not too close to new ones. Tr. 398. Priorto July 2018, horizontal drilling had taken place three times before atFrancisco, and in each of those instances, drilling was conducted withoutencountering old works. Jt. Stips. 21, 22. On July 23, 2018, however, the drillintersected old works, causing methane gas to leak into the mine. Jt. Stip. 26;Tr. 36, 261. This incident led to the issuance of the violations at issue inthese matters. 

 

**A.   ****The DrillEncounters Old Mine Works**

 

At about 9:00p.m. on July 22, 2018, REI drill operator Robert Ferrin and his assignedhelper, Peabody employee John Stevens, arrived at the drill site in the 0 entrybetween crosscuts 65 and 66. Jt. Stip. 25; Tr. 248. As they worked, Ferrinoperated the drill and Stevens worked at Ferrin’s direction, loading the drill rods.Tr. 33, 249. After drilling for several hours, the drill hit a void atapproximately 1:49 a.m. on July 23, 2018. Jt. Stip. 26. The drill rods jumpedforward much faster than normal, and air began to exit the borehole atsignificant pressure. Tr. 34-35, 250; Jt. Stip. 26. The sound of the airescaping was very loud. Tr. 53, 290.

 

 

Stevensimmediately went to the phone to call the tracker, and asked the tracker tocontact mine manager Michael Butler and inform him that he was needed at thedrill site. Tr. 254. He provided no other information to the tracker. Tr. 254. Stevens’spotter—the methane detector on his person—showed elevated methane levels “justmoments” after the drill encountered the void, and the level went up to “overrange,” which indicates greater than 5% methane concentration. Tr. 253, 261. Hecould not recall whether his spotter went off before or after calling thetracker. Tr. 254. Butler received the call to go to the drill site atapproximately 1:50 a.m. Tr. 376.

Stevens returnedto the drill, and Ferrin, having realized that they had “punched into the oldworks,” told Stevens to engage the blowout preventer (“BOP”). Tr. 50, 252. TheBOP is a device that seals the hole and contains the methane behind the wall tostop it from entering the drill site. Tr. 50, 60. In Ferrin’s experience inother methane inundation incidents, the BOP has successfully contained theescaping gas. Tr. 63. In this instance, however, the pressure buildup was sogreat that the gas began to come out the rib itself, so Ferrin told Stevens tostop engaging the BOP. Tr. 61, 65, 252. Ferrin did this because he did not wantto blow out the drill casing, which would have caused him to lose all control overthe escaping gas. Tr. 61-63. 

Ferrin then directedStevens to begin pulling out drill rods so that they could install a plug. Tr.35, 51, 253. This was no small task, as the rods are approximately 10 feet eachin length, and the drill had drilled in about 900 feet. Tr. 50. The drill rodsneeded to be removed in order for the hole to be plugged, so that a “packer”could be pushed into the hole and form a plug. Tr. 51, 73. Stevens’ spottercontinued to alarm throughout the time that they were pulling rods. Tr. 262. Ferrin’sspotter went over range during the methane inundation as well. Tr. 43.

 

The methanedetector on the drill causes the drill to shut down when methane reaches aconcentration level of two percent. Tr. 43-44, 70, 364. During this incident,the methane level at the drill site fluctuated. Tr. 43-44, 70, 119-120, 264. Therefore,after each time the drill kicked power off due to elevated methane levels, themethane level diminished to a point where Ferrin was able to restart the drilland continue working. Tr. 44. Both Ferrin and Stevens agreed that the drillshut down and was restarted a total of two or three times during thisinundation before the drill was de-energized and the mine evacuated. Tr. 44,100, 349.

 

**B.   ****MineManager Michael Butler Arrives at the Drill Site**

 

Minutes afterStevens called the tracker, at approximately 1:53 or 1:55 a.m., Butler arrivedat the drill site. Tr. 101, 335-36, 376-77. He brought maintenance foreman BradCary with him, since at that point he thought there might be a problem with thedrill. Tr. 276, 335; Jt. Stip. 27. Cary stayed back, near the drill tenderapproximately 10 feet from the drill, and Butler continued walking down towardthe drill. Tr. 286. Butler met up with Stevens just inby the drill tender, andStevens informed him that they had drilled into old works and that Steven’sspotter was reading over range. Tr. 336-337, 368-69. Butler then walked up tothe drill to speak with Ferrin. Tr. 337. Butler leaned in to ask Ferrin a fewquestions, and as he leaned over the drill, Butler’s own spotter went off. Tr.338. He looked at it and saw that it was over range. Tr. 338. At hearing, Carycould not recall whether his spotter ever alarmed near the drill tender. Tr.277, 294. 

 

Ferrin toldButler that they had breached old works, and Butler asked him what theprocedure was because Butler knew “nothing about that drill.” Tr. 38, 339. Ferrintold him that they had to pull out the drill rods and plug the hole. Tr. 339. Butlerthought that sounded like a wise thing to do, and figured that if something was“off,” they would have already had an explosion by the time he arrived at thedrill site. Tr. 345-46. Ferrin had made the decision to pull rods prior to Butler'sarrival, but testified that the decision to continue pulling the rods andattempt to plug the hole was “kind of discussed between everybody,” includingButler, once Butler had arrived at the drill site. Tr. 44-45.

 

Butler then wentto the phone and called the tracker. Tr. 340. He told the tracker what wasgoing on and informed him that he needed to “make some phone calls and get somepeople out of bed.” Tr. 340. After calling the tracker, Butler told Cary toreturn to Unit 3, kill power on the Unit 3 equipment, and evacuate the minerson the unit. Tr. 290, 340, 347. Unit 3 was inby the drill site in closeproximity, and, according to Butler, evacuating the miners on the unit was a“no-brainer.” Tr. 340, 383.

 

Once back at Unit3, Cary found production supervisor James Ford, and told Ford that the drillhad hit a void and that they needed to evacuate. Tr. 278, 317. They ensuredthat the equipment was backed out and power was killed, and then conducted ahead count and sent the miners outside. Tr. 278, 317. Once everyone on the unithad evacuated, Ford went over to the drill site. Tr. 317. Cary stayed at Unit 3and killed power on the back of the power center, which shut down power to everythingon the unit. Tr. 279, 291-92. Butler had specifically told Cary not to killpower to the power center that provided power to the drill, so he only shut offpower to the unit. Tr. 292. He then also went back to the drill site. Tr. 279.

 

Ford initially approachedthe drill site by coming up crosscut 65, outby the drill, but his spotteralarmed and went over range. Tr. 326. He then retraced his steps and approachedthe site by traveling up crosscut 66, inby the drill. Tr. 326-27. When Ford arrivedat the drill site, Butler told him to go get some curtains to ventilate towardthe drill. Tr. 318. He went back to the unit to retrieve the curtains, and thenhung two curtains in order to provide more air flow to the drill site. Tr.318-21; Ex. R-A-2. He also opened a man door for additional ventilation. Tr. 321.

 

When Caryreturned to the drill site after shutting down the power to Unit 3, he wasaccompanied by mechanic Jesse Mitchell. Tr. 292. At this point, only Ferrin,Stevens, Butler, Cary, Ford and Mitchell remained underground. Tr. 293; Ex.S-10B. When Cary approached the drill site, he saw that Butler was on the phone.Tr. 282. 

 

 

**C.   ****GeneralManager Brad Rigsby Orders the Miners to Stop Work and Evacuate**

 

Above ground, bythis point, Francisco’s general manager Brad Rigsby had been contacted. Thetracker called Rigsby at his home and informed him that the drill hadintersected an old mine and that gas was coming out of the hole. Tr. 400. Rigsbydid not have any information about methane levels, but he had “enough”information to instruct the tracker that they needed to cease operations onUnit 3 right away and get ready to pull out. Tr. 400-01. Rigsby then left hishome and headed to the mine. Tr. 401. On his way in, Rigsby made calls to minepersonnel and to MSHA district manager Ron Burns. Tr. 401-02. Rigsby told Burnswhat the tracking office had told him, and Burns told Rigsby that they neededto evacuate. Tr. 402. Rigsby interpreted Burns’ instruction in their initialconversation as a directive to evacuate the “affected area,” which Rigsbybelieved was “the split going into Unit 3.” On a later call between Rigsby andBurns, Burns clarified that they were to evacuate the entire mine, not onlyUnit 3. Tr. 402.

 

When he arrivedat the mine, Rigsby called Butler, who was still at the drill site. Tr. 403-04,414. Butler did not relay any methane levels, but he did inform Rigsby thatthey were getting ready to insert the packer in the hole. Tr. 404-05, 415. Thedrill rods had all been removed, the plug had been inserted in the casing, andthey had just started to push it into the hole. Tr. 350. Prior to thisconversation with Butler, Rigsby was not aware that any work was occurring atthe drill site. Tr. 417-18. As soon as he learned of that activity, and stillwithout knowing any methane levels, Rigsby told Butler to stop, just let thehole “bleed,” and come out of the mine. Tr. 415.

 

After Butler gotoff the phone with Rigsby, he briefly spoke with Cary and told him to go killpower to the drill. Tr. 298-99, 347. Cary and Mitchell went together tode-energize the drill. Tr. 280-81. They went to the roadway and killed power atthe vacuum breaker and put a lock on it. Tr. 280. Then, they went back to thedrill and Butler informed them that they were going to evacuate. Tr. 282. When Fordfinished hanging the curtains, the others were evacuating. Tr. 321-22.

 

When the minersfinally evacuated, there was still air coming out of the hole. Tr. 363. The sixminers left in the mine evacuated at the same time. Tr. 293. On their way outof the mine, Cary killed power at another vacuum breaker and then, once out ofthe mine, he put a lock on the substation which “killed all power on the rim.” Tr.282. Ford and Butler were the last people to exit the mine. Tr. 324. Ford’snotes indicate that he evacuated at 3:00 a.m. Ex. R-H. Tracking recordsindicate that both Butler and Ford left the drill site at 3:11 a.m. and arrivedat the surface at 4:28 a.m. Ex. S-8; Tr. 106-107. 

** **

**D.   ****The Holeis Plugged on July 24, 2018**

 

The hole wasplugged the next day, on the evening of July 24, 2018. Jt. Stip. 28. Ferrinagain operated the drill. Tr. 54, 72. Also present were state mine inspectorSteve Riley and MSHA inspector Chris Persinger. Tr. 356, 379. Even then, airwas still loudly rushing out of the hole. Tr. 72, 379-80, 469. Butler testifiedthat he also went to the drill site that night, and he heard someone’s spotterbeeping. Tr. 355. However, Persinger took seven methane readings while he wasat the drill site, both inby and outby the drill, and all were less than onepercent. Tr. 465-68, 470. None of the readings were taken standing next to thedrill. Tr. 471. Persinger testified that he never heard anyone’s spotter alarm,and if he had, he would have “shut everything off.” Tr. 468, 474.

 

The plug wasplaced approximately 400 or 500 feet inside the hole. Tr. 64. More than 600feet of cementitious grout was applied, and the hole “was dead at that point.” Tr.411. The abatement was completed by the morning of July 25, 2018. Tr. 420.

 

**E.   ****ThePermissibility Exam**

 

The July 2018drilling project at Francisco began on July 11, almost two weeks before themethane inundation incident. Jt. Stip. 24. On that date, before the drill wasput into service, Peabody conducted a permissibility examination of the drill. Tr.129-130. The purpose of a permissibility exam is to examine the electricalcomponents of the equipment to ensure that the equipment is safe and does notpresent an ignition hazard. Tr. 435. Though the drill belongs to thecontractor, REI Drilling, Peabody is responsible for conducing permissibilityexams, and they are supposed to be conducted on a weekly basis. Tr. 134, 426,454. During the July 11 exam, Peabody discovered that the “sniffer head,” ormethane sensor, on the drill was in need of replacement. Tr. 129-30; Ex. S-7,p. 2. It was replaced and the drill went into service. Tr. 130.

 

No additionalpermissibility exams were reported for the drill equipment between July 11 andthe July 23 incident. Tr. 429; Ex. S-7. An exam was conducted on July 24following the breach into old works on July 23. Ex. S-7, p. 7. During thatexam, Francisco maintenance supervisor Michael Trueblood and foreman RobertEwers identified six issues with the drill. Tr. 446-52; Ex. S-7, p. 7. Theycorrected all the issues, and Trueblood testified at hearing that none of theissues they identified were of serious concern in terms of their potential forcausing an explosion. Tr. 455-56.

 

**F.    ****Violations**

 

MSHA inspectorKeith Duncan conducted an investigation of the July 23, 2018 incident. OnAugust 16, 2018, he issued Order Nos. 9106663, 9106664, and 9106665 to Peabody.Jt. Stips. 9, 10, 11. Following a special investigation, MSHA also proposedpenalties against Butler, requesting that the Commission hold him personallyliable under section 110(c) of the Mine Act for his role in the violationsalleged in Order Nos. 9106663 and 9106664. Jt. Stip. 18, Pet. for Assessment ofCiv. Penalty at 2 (Sept. 13, 2019).

 

 

**                                                                               III.         ****DISPOSITION**

** **

**A.   ****OrderNo. 9106663**

 

1.    The Violation

 

In anyenforcement action, the Secretary bears the burden of proving an allegedviolation by a preponderance of the evidence. *RAG Cumberland Resource Corp.,*22 FMSHRC 1066, 1070 (Sep. 2000). The Secretary may sometimes establish aviolation by inference, but only when the inference is inherently reasonableand there is a rational connection between the evidentiary facts and the conclusioninferred. *Mid-Continent Resources*, 6 FMSHRC 1132, 1138 (May 1984).

 

In Order No.9106663, the Secretary alleges that Peabody violated section 75.323(c)(2)(ii)of MSHA’s health and safety regulations, which mandates that 

 

[w]hen 1.5 percentor more methane is present in a return air split between the last working placeon a working section and where the split of air meets another split of air, orthe location where the split is used to ventilate seals or worked-out areas—

 

. . . .

 

[o]ther thanintrinsically safe AMS, equipment in the affected area shall be deenergized,electric power shall be disconnected at the power source, and other mechanizedequipment shall be shut off.

 

30 C.F.R. § 75.323(c)(2)(ii). In OrderNo. 9106663, Inspector Duncan reported that the drill at Francisco remainedenergized for 35 minutes in the midst of a methane inundation on July 23, 2018,that resulted in methane concentrations ranging from 1.5% to over 5% in thearea. Ex. S-2. Given the risk of combustion, Duncan found that the violationcreated a reasonable likelihood that a fatal injury would occur, and that thisrisk affected 10 miners.  *Id*. 

 

 It is clear thedrill remained energized despite methane levels exceeding 1.5 percent. Theoverwhelming weight of the evidence presented at hearing supports thisconclusion. The drill, which is designed to shut down when methaneconcentration reaches two percent, shut itself off two or three times,indicating that it had indeed been operating in violation of the standard whenmethane levels were between 1.5% and 2%. Tr. 70, 264. Ferrin also admitted thathis spotter detected methane levels that were over range (greater than 5percent) at some point during the inundation, and yet he continued to use thedrill to plug the hole. Tr. 43. Ferrin’s helper, Stevens, who was tasked with pullingrods at the drill site, also testified that his spotter alarmed and went over range.Tr. 262. He reset it several times and yet the readings went over range againwithin a minute throughout the time that the miners unloaded drill rods out ofthe bore hole. Tr. 262. 

 

Butler arrivedat the drill site around 1:55 a.m. and oversaw the drill’s continued operation.Tr. 107-08, 376. He immediately learned from Stevens that the drill hadencountered old mine works. Tr. 336. When speaking with Stevens, Butler learnedthat Stevens’ spotter had a reading of over range. Tr. 370-71. Butler then leanedover the drill to talk to Ferrin, and Butler’s own spotter went off, registeringyet another methane reading that exceeded the device’s detection range. Tr.370-71. The data presented by the Secretary shows that the methane readings onButler’s spotter were consistently over range. Ex. S-9A. Butler was thereforealmost immediately on notice that methane levels near the drill wereunacceptably high. As mine manager, Butler had the authority to shut down thedrill that night. Tr. 366. He failed to do so, even after seeing severalindications that methane concentrations in the mine were in excess of 1.5%. Insum, Peabody continued to work with energized electrical equipment when methanelevels exceeded 1.5%, and thus the fact of violation is proven. 

 

The inspector’sgravity findings were reasonable, given the risk presented by the methaneinundation. Inspector Duncan testified that a fatal injury could be expectedbecause methane levels at various times exceeded five percent and thereforepresented a major combustion risk. Tr. 122. This is supported by methanespotter logs and other information in the record. *See*Exs. S-9A, S-9B,and S-9C. Methane combustion could have easily caused a mine explosion, andhistory counsels that such explosions are often deadly. Tr. 123. According toDuncan’s experience, the presence of oxygen, high levels of methane, and anignition source (the energized drill) made the risk of combustion reasonablylikely. Tr. 122. Finally, Duncan testified that the explosion risk affected atleast 10 miners who were underground at the time, which is supported by therecord. Tr. 167-68, 315-16, 333, 353.

 

Accordingly, Ifind that the Secretary has satisfied his burden in proving the fact ofviolation and the gravity determination for Order No. 9106663. 

 

2.    Significant and Substantial 

 

The Secretaryalso alleges that this violation is significant and substantial. A violation issignificant and substantial (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 Division, National Gypsum Co.,* 3 FMSHRC 822, 825 (Apr.1981).

 

The testassociated with S&S violations has undergone a decades-long process ofrefinement. *See, e.g., id*.; *Mathies Coal Co.*, 6 FMSHRC 1, 3-4(Jan. 1984); *Newtown Energy, Inc.,* 38 FMSHRC 2033, 2037 (Aug. 2016). Underthe Commission’s most recent articulation of this test, in order to establishthat a violation of a mandatory safety standard is S&S, the Secretary ofLabor must prove: (1) the underlying violation of a mandatory safety standard;(2) the violation was reasonably likely to cause the occurrence of the discretesafety hazard against which the standard is directed; (3) the occurrence ofthat hazard would be reasonably likely to cause an injury; and (4) there wouldbe a reasonable likelihood that the injury in question would be of a reasonablyserious nature. *Peabody Midwest Mining, LLC*, 42 FMSHRC 379, 383 (June2020). 

 

The *Peabody Midwest*test—which imposes a greater burden on the Secretary than previous versions ofthe S&S standard—did not exist at the time that this case was heard. TheSecretary argued vigorously in his brief that a more lenient standard ought to beapplied. *See*Sec’y Br. at 17-21. Notwithstanding the Secretary’sargument, I must apply the *Peabody Midwest* test as the most current,controlling precedent regarding the S&S threshold. I have not asked forsupplemental briefing because I find that the Secretary has satisfied hisburden of proving S&S even under the stricter *Peabody Midwest*standard. 

 

The Secretaryhas clearly proven the underlying violation of 30 C.F.R. § 75.323(c)(2)(ii). Thissection of the MSHA regulation aims to avoid mine explosions caused by theignition of subsurface methane. When issuing this regulation, MSHA recognized:

 

Methane is the mostdangerous gas encountered by miners working underground. When the level ofmethane reaches 5.0 percent it is explosive. Section 75.323 generallyestablishes action levels below this lower explosive limit to permitappropriate actions to be taken by mine operators in order to prevent anexplosion.

 

Safety Standards for UndergroundCoal Mine Ventilation, 61 Fed. Reg. 9777 (Mar. 11, 1996) (to be codified at 30C.F.R. pt. 75). I find the first prong of the *Peabody Midwest*test hasbeen met by the Secretary. 

 

In order tosatisfy prong 2 of the test for S&S, the Secretary must prove that theviolation was reasonably likely to cause an explosion. The Secretary has metthis burden. He has offered uncontroverted proof that, at times, theconcentration of methane at the drill site exceeded five percent. Tr. 43, 255, 370-71;Exs. S-9A, S-9B, S-9C. This is the level of methane accumulation that theregulation sought to avoid. A methane concentration of five percent iscombustible and, in the presence of an ignition source like an energized drill,is reasonably likely to cause the sort of explosion that the ventilation ruleis directed against. Prongs 3 and 4 of the test are also satisfied, given theserious injury that is reasonably likely in the event of a mine explosion. Accordingly,the Secretary has successfully shown that the violation described in Order No. 9106663was significant and substantial. 

 

3.    Negligence and Unwarrantable Failure

 

Based on hisobservations, the inspector designated the violation as high negligence and asan unwarrantable failure to comply with the mandatory standard. An operator isnegligent when it violates its duty of care to avoid violations of mandatorysafety standards. *A.H. Smith Stone Co*., 5 FMSHRC 13, 15 (Jan. 1983). Todetermine whether the operator has met its duty of care, the Commissionconsiders “what actions a reasonably prudent person who is familiar with themining industry, the relevant facts, and the protective purpose of the regulationwould have taken under the same circumstances.” *Leeco, Inc.*, 38 FMSHRC1634, 1637 (July 2016). A judge is not required to apply or even consider thedefinitions of negligence found in 30 C.F.R. § 100.3. *Id*.; *MachMining LLC v. Sec'y of Labor*, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). 

 

The term“unwarrantable failure” arises in section 104(d) of the Mine Act, describingserious misconduct that triggers the issuance of a citation under that section.30 U.S.C. § 814(d). The Commission has defined unwarrantable failure as“aggravated conduct constituting more than ordinary negligence.” *EmeryMining Corporation*, 9 FMSHRC 1997, 2001 (Dec. 1987). The conduct thatqualifies as unwarrantable failure is often characterized as “recklessdisregard,” “intentional misconduct,” “indifference,” or a “serious lack ofreasonable care.” *Martin County Coal Corp*., 28 FMSHRC 247 (May 2006)(citing *Emery*, 9 FMSHRC at 2001). 

 

While thesedescriptors are helpful guideposts, the inquiry of whether conduct is “aggravated”is ultimately a holistic analysis of both aggravating and mitigatingcircumstances. Such circumstances include (1) the extent of the violativecondition, (2) the length of time it has existed, (3) whether the violationposed a high risk 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. *BrodyMining, LLC*, 37 FMSHRC 1687, 1691 (Aug. 2015).

 

a.     Extent of the Violative Condition

 

The first factorto consider is the extent of the violative condition. The extensiveness of aviolation is determined by examining “the extent of the affected area as itexisted at the time” and “the number of persons affected by the violation.” *DawesRigging & Crane Rental*, 36 FMSHRC 3075, 3079-80 (Dec. 2014). 

 

Here, theSecretary has proven that dangerous methane levels existed at the drill site,but there is very little indication of elevated methane levels in other partsof the mine. Inspector Duncan testified that he believed James Ford’s spotterwent over range upwind of the tender, but Special Investigator Stanleytestified as to his belief that Ford’s spotter exceeded its range when he wasonly slightly outby the drill. Tr. 113, 225. The remaining spotter data tendsto indicate that the unlawful methane conditions were concentrated around thedrill. The Secretary has therefore only proven by a preponderance of theevidence that a limited physical area (the area near the drill) was affected bythe methane accumulation. 

 

I also must takeinto account the number of persons affected by the violation. Initially, up to 60underground miners were exposed to the potential for a calamitous mineexplosion. Tr. 123. However, Michael Butler gave orders to evacuate most ofthose miners very quickly after the old works were breached. Tr. 340. After theevacuation of Unit 3, the number of miners affected by the violation wasdrastically lower. The Secretary never conclusively proved how many people remainedin the mine post-evacuation outside of Butler, Cary, Ford, Stevens, Ferrin andMitchell. 

 

I take theinitial risk to 60 miners very seriously. However, as soon as Butler becameaware of the methane inundation and initial over range methane levels, he didorder the evacuation of Unit 3 where most of the miners were located. The factremains though that no less than six miners were allowed to remain in the drillarea where the methane levels were known to be at or above combustible levelsfor a period of time while the drill remained energized. While the Secretaryproved only a limited physical extent of the methane accumulation, the violationwas still extensive insofar as it affected initially dozens of nearby minersand for a longer period of time no less than six miners in the drill area wheremethane concentrations were unacceptably high, at or above combustible levels. Alltold the extensiveness factor weighs in favor of a finding of unwarrantablefailure.

 

b.    Duration of the Violative Condition

 

The Commissionhas highlighted the duration of the violative condition as a “necessaryelement” of the unwarrantable failure analysis. *IO Coal Co*., 31 FMSHRC1346, 1352 (Dec. 2009). A duration of seconds or minutes often mitigates theseverity of the violation. *See, e.g., Dawes Rigging*, 36 FMSHRC at 3080. However,when a hazardous condition is “readily distinguishable from other types ofdanger due to [its] high degree of danger [and] its obvious nature,” the briefduration of the hazard will not militate against a finding of unwarrantablefailure. *Knight Hawk Coal, LLC*, 38 FMSHRC 2361 (Sep. 2016) (quoting *MidwestMaterial Co*., 19 FMSHRC 30, 36 (Jan. 1997)) (internal quotations omitted). 

** **

In the presentcase, the duration of the violative condition is contested. Butler arrived atthe drill site around 1:55 a.m. Tr. 101. He claimed that he was present at thedrill site for about half an hour before ordering the drill to be deenergized. Tr.377. The driller, Ferrin, testified that he did not recall how long the drillremained energized, but he told the special investigator in October 2018 that approximatelythirty minutes elapsed between the first time the drill “kicked” and Butler’sdirective to exit the mine. Tr. 47; Ex. S-13. Testimony and contemporaneousnotes from James Ford, however, indicate that Ford and Butler did not exit the drillsite until 3:00 a.m., which is about an hour after the inundation. Tr. 328; Ex.R-H. Similarly, tracking data for Michael Butler and John Stevens shows that theypassed through the second west main roadway around 3:10 a.m., suggesting that theyexited the drill site just minutes before. Ex. S-8; Tr. 105-06, 267-69. Withall of this in mind, I find that the drill remained energized for 30-60 minutesafter methane inundation. 

 

However, it isunclear whether the methane level was consistently over 1.5% for the entiretime that the drill remained energized. The methane levels did in fact fluctuate.*See, e.g*., Ex. S-9A. In addition, the nature of the methane spottersmakes it difficult to discern the actual methane level over time, because oncea spotter goes over range, it must be reset to resume its active methanemeasurements. Tr. 108, 262.

 

The duration ofthe violation remains a relevant consideration in this analysis even when therecord does not permit a conclusive finding regarding the duration of thehazardous condition. *Coal River Mining, LLC*, 32 FMSHRC 82, 93 (Feb.2010). The Secretary in the present case has proven that the drill wasenergized for 30-60 minutes after Butler became aware of the elevated methanelevels. What has not been proven is the duration of specific methane levels. However,Butler continued to allow the drill to be energized despite his knowledge thatmethane levels were not only above 1.5% but reached combustible levels numeroustimes during the 30-60 minute time frame. The duration factor thereforesupports a finding of unwarrantable failure. 

 

c.     Degree of Danger

 

The Commissionhas found that a high degree of danger presented by a violation constitutes anaggravating factor in support of a finding of unwarrantable failure. *IO Coal*,31 FMSHRC at 1355-56. In this case, the degree of danger was high. The drillremained energized even while methane levels nearby exceeded five percent, creatingthe conditions that could have led to combustion and a major accident. As InspectorDuncan said, “we’re very lucky that we did not have a mine explosion thatnight.” Tr. 126. The degree of danger unequivocally points toward a finding ofunwarrantable failure. 

 

d.    Obviousness of the Hazard

 

The obviousnessof a violation can be an aggravating factor in the unwarrantable failureanalysis. In some ways, methane—as an invisible and odorless gas—is anonobvious hazard. However, the risk of methane accumulation became obviouswhen it set off at least three methane spotters and tripped the emergencyshut-off feature on the drill no less than two or three times. Tr. 43, 370-71,378. The methane accumulation was an obvious hazard, and this militates towarda finding of unwarrantable failure. 

 

e.     Operator’s Knowledge of the Violation

 

The operator’sknowledge of the existence of the violative condition is also relevant.  Theknowledge of a corporate agent may fairly be imputed to the mine operator. *SeeVa. Crews Coal Co*., 15 FMSHRC 2103, 2106 (Oct. 1993) (citing *Rochester& Pittsburgh Coal Co*., 13 FMSHRC 189, 194-98 (Feb. 1991)). In thiscase, various members of Peabody management possessed different levels ofknowledge regarding the violative condition. The mine’s general manager, BradRigsby, testified that he did not know about the elevated methane levels untilafter he had already directed that the mine be evacuated. Tr. 404-05. MichaelButler, on the other hand, knew of multiple methane spotters going over range. Tr.370-71. He also knew that the drill’s emergency shut-off had been triggered. Tr.378. Nevertheless, Butler allowed the drill to remain energized and went so faras to direct that the power to the drill be maintained when other power was beingshut off in light of the hazard. I therefore find that Butler did haveknowledge of the violative condition and that, as mine manager, his knowledgemay be imputed to the operator.[2]*See Va.Crews Coal Co*., 15 FMSHRC at 2106. Accordingly, the operator’s knowledge isan aggravating factor that supports a finding of unwarrantable failure. 

 

f.     Abatement Efforts

 

Another relevantfactor is whether the operator took action to abate the violative conditionbefore the issuance of the citation or order. When an operator has been put onnotice of a problem, “the level of priority that the operator places onaddressing the problem is a factor properly considered in the unwarrantablefailure analysis.” *Jim Walter Resources, Inc.*, 19 FMSHRC 480, 487 (Mar.1997). 

 

I find that Respondent’sabatement efforts weigh heavily against a finding of unwarrantable failure. Peabodykept the drill energized for one reason: to stanch the stream of methane infiltratingthe mine. The evidence presented at hearing by both parties demonstrates thatRespondent acted in good faith to address the hazard that was created when thedrill hit the old works. There is no indication in the record that Respondentignored the dangerous condition; rather, its miners worked diligently in anattempt to fill the borehole and eliminate the hazard. 

 

Respondent tookadditional measures to abate the dangerous conditions when it organized aneffort to increase ventilation at the drill site. Michael Butler instructedJames Ford to hang curtains that would increase the flow of oxygenated airtowards the drill, and Ford obliged by hanging curtains at the No. 1 entries tocrosscuts 66 and 67. Tr. 233; 318-20. Ford also opened a man door at crosscut67 to increase the airflow to the drill. Tr. 321. Further, John Stevenstestified that he also installed curtains to help ventilate the area and reducethe methane concentration at the drill site. Tr. 255. These efforts wereintended to abate the hazardous methane levels and to keep miners safe in thewake of the inundation. Given this response by the operator and its miners, Ifind that the abatement efforts constitute a major mitigating factor that weighsin favor of Respondent and against a finding of unwarrantable failure. 

 

g.    Notice to the Operator that Greater Efforts Were Necessary

 

Finally, when anoperator has previously committed similar violations, those violations are relevantto an unwarrantable failure determination to the extent that they give theoperator notice that greater efforts are necessary for compliance with a safetystandard. *Brody Mining,*37 FMSHRC at 1691. The Secretary has notpresented any evidence of previous violations, and therefore this factor doesnot affect the unwarrantable failure analysis. 

 

h.    Conclusion

 

I find that the preponderanceof the evidence supports a finding of high negligence for Order No. 9106663. Byshowing that the operator knew or should have known that the methaneconcentration exceeded 1.5%, the Secretary has successfully proven that theoperator’s lack of care rises above the level of ordinary negligence. Peabodymight have acted in good faith to address the source of the methane, but noprudent operator would have believed that it was reasonable to continuepowering the drill in a persistently high-methane environment in light ofMSHA’s safety standards. 

 

            Similarly, aftercareful consideration of the aggravating and mitigating factors, I find thatthe violation clearly and persuasively constitutes an unwarrantable failure. Peabodyignored an extensive, obvious, and extremely dangerous hazard despite having knowledgeof the violation. The mine manager knew about methane accumulations thatexceeded five percent and that, therefore, put 60 underground miners at risk ofa mine explosion. He should have immediately deenergized the drill as requiredby law, and his failure to do so was unwarrantable. I recognize that Peabodyacted in good faith to address the source of the hazard—as its miners aretrained to do in other contexts—and that this selfless conduct may be seen aslaudable. However, “the first priority and concern of all in the coal or othermining industry must be the health and safety of its most precious resource[,] theminer,” 30 U.S.C. § 801(a), and keeping the drill energized in the high-methaneenvironment constituted an unacceptable risk to miner safety. Accordingly, Iaffirm the Secretary’s finding of unwarrantable failure for Order No. 9106663. 

 

**B.   ****OrderNo. 9106664**

 

1.     TheViolation

 

In Order No.9106664, the Secretary alleges that Peabody violated section 75.323(c)(2)(iii)of MSHA’s mine safety and health regulations. In pertinent part, section75.323(c) states: 

 

(1) When 1.0 percent or more methane is present in a returnair split between the last working place on a working section and where thatsplit of air meets another split of air, or the location at which the split isused to ventilate seals or worked-out areas changes or adjustments shall bemade at once to the ventilation system to reduce the concentration of methanein the return air to less than 1.0 percent.

(2) When 1.5 percent or more methane is present in a returnair split between the last working place on a working section and where thatsplit of air meets another split of air, or the location where the split isused to ventilate seals or worked-out areas 

.. . . 

 

(iii)*No other work shall be permitted in the affected area until the methaneconcentration in the return air is less than 1.0 percent*.

 

30 C.F.R. § 75.323(c) (emphasisadded). The inspector reported that mine management “knowingly and willfullyallowed work other than ventilation corrections to be performed forapproximately 15 minutes” even though methane detectors sensed concentrationsof greater than five percent methane. Ex. S-3. Inspector Duncan again foundthat the violation created a reasonable likelihood that a fatal injury wouldoccur, and that this risk affected 10 miners. 

 

I have made myfindings regarding the elevated methane levels above. *See*Section A, *supra*.Mine management was consistently aware of methane levels that exceeded fivepercent, well above the level that triggers mandatory work stoppage under thisregulation. Methane levels between 5% and 15% are explosive. Tr. 101. Nonetheless,mine management permitted miners to continue pulling rods and attempting toplug the borehole for approximately half an hour, if not longer. Tr. 377. 

 

Respondentargues that its response to the mine inundation did not violate section75.323(c)(2)(iii) because management did not permit the type of “other work”that is contemplated in the regulation. Peabody interprets the regulation toallow work to “change or adjust the ventilation system”—even if the methaneconcentration exceeds 1.5%—and to forbid any “other work” from continuing. Resp.Br. at 19. Based on this interpretation, Peabody argues that the efforts toplug the borehole constituted ventilation control and therefore were notforbidden by the regulation. 

 

But the minerswere not merely conducting ventilation control. By attempting to plug theborehole, the miners engaged in remedial actions that sought to address thesource of the methane. These actions, while perhaps admirable, constitute thesort of “other work” forbidden by section 75.323(c)(2)(iii). MSHA has madeclear that efforts to investigate and address the source of the methaneaccumulation must be secondary to the critical actions that are immediatelynecessary to protect miner safety in the face of a mine inundation: 

 

Other commentersthought that the standard, as proposed, would cause hasty, ill-advised changesto be made and would prohibit an investigation into the cause or source of themethane problem which could result in phased-in corrections. MSHA agrees thatoperators should seek long term solutions and should fully investigate thecause or source of methane accumulations. Investigation and long termcorrections are not prohibited by the rule. However, *the final rule doesrequire that certain actions be undertaken at once to correct the short term oracute safety hazards resulting from accumulations of methane*.

 

Safety Standards for UndergroundCoal Mine Ventilation, 61 Fed. Reg. 9778 (Mar. 11, 1996) (to be codified at 30C.F.R. pt. 75) (emphasis added). Miners should have been evacuated “at once”when management saw consistent methane readings over 1.5%. *Id*. Gettingminers to safety must be the priority, and then the operator can determine thebest way to address the methane source. 

 

With regard togravity, the Secretary has proven that there was a high risk of methanecombustion and miner fatality given the mix of high methane levels, oxygen, andignition source, and given the continued presence of miners underground due to Respondent’sinaction. I therefore find that the Secretary has satisfied his burden inproving the fact of violation and the gravity determination for Order No.9106664.

 

2.     Significantand Substantial 

 

The mineinspector designated this violation as S&S, and I find that thisdesignation is proper. First, the Secretary has proven the fact of violation. Second,the mine operator’s decision to permit work to continue in the mine wasreasonably likely to cause the safety hazard that the regulation was designedto address. Section 75.323(c)(2)(iii) aims to reduce the risk that miners willbe harmed or killed by a mine explosion. The presence of the miners undergroundand their continued work drilling and pulling rods amid a methane inundationmade it reasonably likely that those miners would face a mine explosion. Third,a mine explosion is reasonably likely to cause injury. Finally, injuriesfollowing a mine explosion are reasonably likely to be serious in nature, ifnot deadly. Therefore, the Secretary has borne his burden of proving that theviolation was significant and substantial. 

 

3.     Negligenceand Unwarrantable Failure

 

The factors atplay in the unwarrantable failure analysis for this order are very similar tothose discussed above for Order No. 9106663.[3]First, I find that the extent of the violative condition is an aggravating factordue to the risk presented initially to 60 miners and then at least six minersfor a longer period of time. Second, the duration of the violation is anaggravating factor given that the Secretary has proven that work continued for 30-60minutes after Butler became aware of the elevated methane levels. Third, thehazard is dangerous given the combustion risks of methane, and this factorpoints toward a finding of unwarrantable failure. Fourth, the hazard wasobvious in light of the methane sensors on the drill and on personal spotters,and the obviousness is an aggravating factor. Fifth, the operator had knowledgeof the violative condition since Michael Butler knew about the elevated methanelevels. This knowledge is an aggravating factor. Sixth, Respondent’s efforts toabate the hazard—including its efforts to plug the borehole and to ventilatethe area—weigh against a finding of unwarrantable failure. Finally, the Secretaryhas not shown any previous history of violation. 

 

I again findthat the violation constitutes high negligence and unwarrantable failure on thepart of the operator. A prudent operator would not have permitted miners tocontinue working while methane spotters blared and showed over-range readings. Furthermore,just as with Order No. 9106663, the factors at play in the unwarrantablefailure analysis tend to aggravate (rather than mitigate) the severity of theviolation. Peabody permitted non-ventilation work to continue in an explosivemethane environment, despite its knowledge of the high methane levels. Thecompany repeatedly ignored obvious signs of the dangerous condition. To protectits miners, Peabody should have responded swiftly and decisively to follow thelaw and put a stop to the work that persisted underground. Accordingly, theSecretary has satisfied his burden in showing that Peabody’s actions constitutean unwarrantable failure to comply with section 75.323(c)(2)(iii). 

 

**C.   ****110(c)Case Against Michael Butler**

 

The Secretaryalso seeks to hold mine manager Michael Butler liable for his conduct inconnection with the two violations discussed above. Section 110(c) of the MineAct provides that when a corporate operator violates a mandatory safetystandard or order under the Act, “any director, officer, or agent of suchcorporation who knowingly authorized, ordered, or carried out such violation .. . shall be subject to . . . civil penalties.” 30 U.S.C. § 820(c). TheCommission’s precedent elucidates a test for whether an agent of the mine canbe individually liable: liability attaches when the agent (1) knew or hadreason to know of the violative condition, (2) was in a position to remedy thecondition, and (3) failed to act to correct the condition. *See NorthshoreMining Co.,*43 FMSHRC __, slip op. at 8 (Jan 21, 2021); *Oak GroveResources, LLC*, 38 FMSHRC 1273, 1281 (June 2016); *Kenny Richardson*,3 FMSHRC 8, 16 (Jan. 1981). 

 

When MichaelButler arrived at the drill site, he faced a cacophony of alarming methanespotters and the loud rush of mine gases inundating the site. Butler testified thathe knew of at least two spotters that reached an over-range methane reading,signaling methane accumulation of at least five percent. Tr. 370-71. One ofthose spotters was on his own person. Tr. 370-71. Nevertheless, Butler activelyoversaw continued operation of the energized drill and the continued work of theminers as they attempted to plug the borehole. Butler therefore knew or hadreason to know of the violative condition. Butler also testified that he was ina position to shut down the drill and evacuate the miners “if [he] felt thatwas needed.” Tr. 366. Finally, the overwhelming weight of the evidence demonstratesthat, despite his knowledge of the methane levels and his authority to stopwork, Butler allowed the drill to remain energized and permitted six minersincluding himself to continue working for at least half an hour in elevatedmethane conditions. That constitutes a failure to correct or remedy the violativecondition. Therefore, I find that Butler is individually liable for theviolations in Orders Nos. 9106663 and 9106664. 

 

**D.   ****OrderNo. 9106665**

 

1.     TheViolation

 

Finally, theSecretary alleges that Peabody violated section 75.512–2 of MSHA’s mine safetyregulations, which states that “examinations and tests required by § 75.512shall be made at least weekly” and that “[p]ermissible equipment shall be examinedto see that it is in permissible condition.” 30 C.F.R. § 75.512–2. Mineoperators must examine “[a]ll electrical equipment” and must remove equipmentfrom service if the operator finds a “potentially dangerous condition.” 30C.F.R. § 75.512. Order No. 9106665 alleges:

 

The operator failedto perform a weekly permissibility examination on the horizontal drill (serial#81134/2008800) located in the 2nd West Main at crosscut 65-66 for the week of 7/15/2018thru 7/21/2018 according to permissibility records provided by the mineoperator. Five permissibility deficiencies were found on 7/24/2018 which werenot recorded on 7/11/2018. These permissibility deficiencies existed at thetime of the accident on 7/23/2018 and the reasonable likelihood exist[s] thatthey would cause a methane ignition.

 

Ex. S-4. The inspector found thatthe condition was reasonably likely to cause an injury that could be expectedto be fatal for 10 miners. *Id*. He marked the negligence as high anddetermined that the violation was S&S. *Id*. 

 

There is nodispute that Peabody failed to conduct a permissibility examination on thedrill between July 11 and July 24. Resp. Br. at 32. The Secretary introducedrecords and testimony showing that Respondent failed to carry out a permissibilityexam on the drill for the week of July 15-21. Ex. S-7; Tr. 129. Peabody’s maintenancemanager also testified to this effect. Tr. 430, 439. Accordingly, I find that noexam took place during the week in question, which constitutes a violation of section75.512–2.

 

The Secretary’s gravitydetermination is also supported by the record. The permissibility examination,designed to alert mine operators as to electrical issues with equipment, is animportant safeguard that helps to ensure that electrical components are not sparkrisks in a high-methane environment. The operator’s failure to conduct thisexam subjected miners to reasonable risk that an electrical malfunction wouldcause a fatal injury when they hit the old works and the mine was inundated bymethane-rich gases. No less than 60 individuals were affected by this risk. TheSecretary has satisfied his burden in showing the fact of violation and thegravity by a preponderance of the evidence. 

 

2.     Significantand Substantial 

 

The Secretaryhas also satisfied his burden in showing that the violation was S&S. First,he has proven the fact of violation as just discussed. Second, he has shownthat the violation was reasonably likely to cause the occurrence of thediscrete safety hazard that the standard is designed to address. Regularexaminations are “of fundamental importance in assuring a safe workingenvironment underground,” and the inspector attested that permissibility exams inparticular are meant to discover electrical issues that could spark a fire oreven an explosion. *Buck Creek Coal Company, Inc.*, 17 FMSHRC 8, 15 (Jan.1995); Tr. 132. Failing to conduct this exam before sending the equipmentunderground to drill near old mine works was therefore reasonably likely tocause the safety hazard that the regulation is directed against. Third, a fireor mine explosion would be reasonably likely to cause injury. Finally, aninjury that follows a mine fire is reasonably likely to be serious. TheSecretary has carried his burden in proving that the violation of section75.512–2 is S&S. 

 

3.     Negligenceand Unwarrantable Failure

 

The inspectorfound that Order No. 9106665 involved high negligence and an unwarrantablefailure on the part of the mine operator. 

 

a.      Extentof the Violative Condition

 

The Secretaryalleges that Peabody failed to examine the drill. The extent of the operator’soversight is therefore limited to a single piece of equipment. At the sametime, the operator’s failure to inspect the drill put no less than 60 miners atrisk when the mine was inundated by methane and the drill lacked properelectrical inspection. These are both relevant considerations underextensiveness analysis. However, the Commission warns against using this factoras a proxy for the danger or obviousness of the hazard, counseling instead tofocus on “the scope or magnitude of a violation.” *Eastern Associated CoalCorp.*, 32 FMSHRC 1189, 1195 (Oct. 2010). I find that the scope of Peabody’sviolation was limited to its examination of one piece of equipment amonghundreds, and accordingly this factor does not support a finding ofunwarrantable failure. 

 

b.    Duration of the Violative Condition

 

The Secretaryhas proven that no permissibility examination occurred on the drill betweenJuly 11 and July 24. The violation itself, however, is for failure to conductan exam during the week of July 15-21. Therefore, the violative condition aroseon July 22 and only existed for two days. Furthermore, Respondent accuratelynotes that it is possible for thirteen days to pass between properly conductedpermissibility exams under the regulation. The thirteen days that transpiredbetween examinations here is therefore not wholly unreasonable. Given thesefactors, I find that the short duration of the violative condition is amitigating factor that weighs in Respondent’s favor. 

 

c.     Degree of Danger

 

The discretehazard at issue in this case is a mine explosion and fire. The drill at issuewas used to perform exploratory mining near old works, actually breached the oldmine, and caused an inundation of methane gas. The lack of a properpermissibility examination therefore presented great danger to the minersunderground at that time, and this factor points toward a finding ofunwarrantable failure. 

 

d.    Obviousness of the Hazard

 

The hazard presentedby the absence of a permissibility examination was not immediately obvious. Peabodykept records indicating the dates that such examinations occurred, which shouldhave helped it notice the issue. However, Respondent also notes that a lapse ofthirteen days between exams is sometimes proper, so the issue was not readilyobvious. The Secretary has not presented any other evidence indicating that thehazard was particularly obvious. Accordingly, I find that the obviousness ofthe hazard is a mitigating factor in the unwarrantable failure analysis. 

 

e.     Operator’s Knowledge of the Violation

 

Respondentargues that its failure to perform the permissibility exam was due to amiscommunication among its miners. Resp. Br. at 32. Peabody’s maintenancemanager testified that David Justen, the supervisor of one of the crews taskedwith conducting permissibility exams, was told by one of his crew members thatthe drill had indeed been inspected. Tr. 429-32, 439-40. Justen then relayedthis information to mine management. Tr. 429. Clearly, someone along this chainof communication was mistaken because the exam was never done. However, theweight of the evidence supports Respondent’s claim that the error wasinadvertent and was based on a miscommunication among its employees. TheSecretary has therefore failed to show that Respondent had knowledge of the violation,and this factor mitigates against a finding of unwarrantable failure. 

 

f.     Abatement Efforts

 

An operator’sabatement efforts are a relevant consideration in the unwarrantable failureanalysis, but only where the operator has been placed on notice of theviolative condition. Respondent did act promptly to address the issue once theinspector issued an order, but post-citation efforts are not relevant to thedetermination of whether the operator engaged in aggravated conduct. *SeeEnlow Fork Mining Co.*, 19 FMSHRC 5, 17 (Jan. 1997). Peabody did not receivenotice of the violative condition until the inspector’s issuance of the order,and therefore this factor does not affect the unwarrantable failure inquiry. 

 

g.    Notice to the Operator that Greater Efforts Were Necessary

 

The Secretary’sExhibit 1 indicates that Respondent had been cited regarding its permissibilityexaminations over twenty times in the two years prior to this incident. Ex.S-1. Even though it appears that only one of those violations concerned theprecise regulation at issue here, Peabody should have been on notice thatgreater efforts were necessary to ensure that permissibility exams wereproperly conducted and recorded. This final factor is therefore aggravating andweighs in favor of an unwarrantable failure finding. 

 

h.     Conclusion

 

A preponderanceof the evidence supports a finding that Peabody was highly negligent. Clearly, Peabody’sminers relied on the weekly maintenance and examination of the equipment. MichaelButler testified at hearing that he felt comfortable operating the drill in thehigh-methane environment in part because he “knew that permissibility was good”on that piece of equipment. Tr. 386. However, the permissibility exam was notcurrent, and miners were left operating non-permissible equipment undergroundduring a methane inundation. Peabody also should have known from past citationsthat greater efforts were necessary to conduct and record permissibilityexaminations properly. Given these circumstances, a prudent operator withknowledge of the mining industry, the relevant facts, and the protectivepurpose of the regulation would have implemented more rigorous examination andrecording protocols to ensure that equipment is permissible before it isdeployed underground. *See Leeco*, 38 FMSHRC at 1637. The Secretary hasthus satisfied his burden in showing high negligence. 

 

However,Peabody’s failure to follow the regulation was not unwarrantable. There is noevidence that Peabody’s management knew about the lapsed examination. Rather,due to a miscommunication, management mistakenly believed that the exam *had*been conducted. The exam was only a few days out-of-date—not weeks or months—andonly one piece of equipment was affected. Altogether, the mitigating factorsoutweigh the aggravating factors here. The Secretary has therefore failed toprove that this violation constituted unwarrantable failure, and this 104(d)(1)order accordingly becomes a 104(a) citation. 

** **

**                                                                                     IV.         ****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 (Mar. 1983). The Act requires that inassessing civil monetary penalties, the Commission ALJ shall consider the 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).

 

**A.   ****Peabody’sPenalty**

** **

****For Order Nos.9106663 and 9106664, the Secretary proposed a penalty of $45,455.00 for eachviolation. Peabody is a large operator, and the proposed penalty would notimpair its ability to stay in business. *See* Jt. Stip. 6. MSHA citedPeabody for 494 violations in the fifteen-month period preceding this incident.Ex. S-1. No citations during that period, however, were issued for violatingsection 75.323(c). Ex. S-1. With regard to gravity, each of these twoviolations was proven to be S&S. Peabody was also highly negligent, but Imust note that Peabody worked to abate the hazard and swiftly evacuated Unit 3instead of allowing mining to continue underground following the inundation. Theoperator also showed good faith by cooperating with MSHA after notification ofthe violation. After careful consideration of the penalty criteria, I assess apenalty of $38,000 for each violation, resulting in a total of $76,000 forOrders No. 9106663 and 9106664.

 

            For Order No.9106665, which is now a 104(a) citation in light of my findings above, theSecretary proposed a regularly assessed penalty of $45,455.00. The gravity hereis again high. Peabody does have a history of previous violations that relateto permissibility examinations, but its history of violating this particularregulation is less extensive. Further, while Peabody was negligent in itsfailure to conduct the exam, its negligence did not rise to the level ofunwarrantable failure as in the other orders. Finally, once alerted to theviolation, Peabody immediately conducted the permissibility exam. In light ofPeabody’s quick response and the lack of an unwarrantable failure designation, Ifind that a penalty of $20,000 is appropriate for this violation.

** **

**B.   ****MichaelButler’s Penalty**

** **

The Secretaryhas proposed that Butler pay a penalty of $7,800.00 for knowingly authorizingor carrying out violations of 30 C.F.R. §§ 75.323(c)(2)(ii) and75.323(c)(2)(iii) as an agent of the mine. The parties have stipulated that theproposed penalties would not affect Butler’s personal financial obligations. Jt.Stip. 8. Butler did act knowingly, and the gravity of each violation was high. However,the Secretary has not introduced any evidence that Butler has been responsiblefor such violations in the past. Butler also acted in good faith to abate thehazard, and he cooperated with MSHA personnel to address the violation and thehazard once the personnel arrived at the scene. I find that Butler’s actionswarrant a penalty of $3,000 for each violation, resulting in a total penalty of$6,000. 

** **

** **

**                                                                                            V.         ****ORDER**

** **

It is hereby **ORDERED**that Orders Nos. 9106663 and 9106664 are **AFFIRMED**. Order No. 9106665is hereby **MODIFIED** from a section 104(d)(1) order to a section 104(a)citation and as otherwise set forth above. The section 110(c) liability ofMichael Butler is **AFFIRMED**. Peabody Midwest Mining, LLC is hereby **ORDERED**to pay the Secretary of Labor the total sum of $96,000.00 within 30 days ofthis decision.[4] MichaelButler is **ORDERED** to pay a civil penalty of $6,000.00 within 30 days ofthis decision. 

 

 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

 

Distribution: (Email[5]) 

 

Barbara M. Villalobos, U.S. Department of Labor. Office ofthe Solicitor, 230 S. Dearborn St., Room 844, Chicago IL 60604 (Villalobos.Barbara@DOL.gov)

 

R. Henry Moore, Fisher & Phillips, LLP, Six PPG Place,Suite 830, Pittsburgh, PA 15222 (hmoore@fisherphillips.com)

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[1] In this decision, the joint stipulations, transcript,the Secretary’s exhibits, and Respondent’s exhibits are abbreviated as “Jt.Stip.,” “Tr.,” “Ex. S-#,” and “Ex. R-#,” respectively. 

[2] See *infra*,Section C, for additional discussion about Michael Butler’s knowledge of theviolation. 

[3] To the extentthey are applicable, I incorporate my earlier findings into this analysis.

[4] Please paypenalties electronically at Pay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and Health Administration

P.O.Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.

[5] For theforeseeable future, Federal Mine Safety and Health Review Commission (FMSHRC)notices, decisions, and orders will be sent only through electronic mail. BecauseFMSHRC will not be monitoring incoming physical mail or faxes, parties areencouraged to submit all filings through the agency’s electronic filing system.If you are not able to file through our electronic filing system, please sendan email copy and we will file it for you.