FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
1331 Pennsylvania Ave.
NW, Ste. 520N
WASHINGTON, D.C.
20004-1720
(202)
434-9950
January
28, 2013
|
SECRETARY OF LABOR, |
: : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. KENT 2009-1241 A.C. No. 15-02709-187706 Mine: Highland 9 Mine |
DECISION
Appearances: Elizabeth L. Friary, Esq., and Alisha I.
Wyatt, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, TN, on behalf of the
Petitioner;
Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, KY; on behalf of the Respondent.
Before: Judge
Rae
This
case comes before me upon a petition for civil penalties filed by the Secretary
of Labor pursuant to section 105 (d) of the Federal Mine Safety and Health Act
of 1977, 30 U. S. C.§75.801 et seq., the "Act," charging Highland
Mining Company, LLC, (Highland) with violations of the mandatory standards. Of the violations charged, the parties
settled 58 prior to hearing. A partial settlement was approved by me on October
16, 2012 leaving eight violations for hearing with proposed civil penalties of $19,880.
The general issue before me is whether Highland violated the cited standards
and, if so, what the appropriate civil penalty is to be assessed in accordance
with section 110 (i) of the Act.
A
hearing was held in Henderson, Kentucky at which time the parties presented
evidence. Subsequent to the hearing the
parties submitted post-trial memorandum which have also considered in making
this decision.[1]
I.
STATEMENT OF THE CASE
The parties entered into the
following stipulations: 1) Highland is subject to the Federal Mine Safety and Health
Act of 1977, and to the jurisdiction of the Federal Mine Safety and Health
Review Commission, and the presiding Administrative Law Judge has the authority
to hear this case and issue a decision; 2) Highland has affected interstate
commerce within the meaning of the Act; 3) Highland operates the Highland #9
Mine,, I.D. No. 15-02790; 4) Highland #9 Mine produced 3,870,295 tons of coal in
2008, worked 920,199 hours in 2008; 5) A reasonable penalty will not affect
Highland’s ability to remain in business; 6) Highland abated the violations it
was cited in a timely manner and in good faith; 7) The Secretary’s proposed
exhibits, as set forth in the Secretary’s Prehearing Statement have been
reviewed by Respondent’s representative.
Respondent stipulates to the authenticity and admissibility of the
Secretary’s exhibits at hearing; and 8) Each of the citations at issue in these
proceedings was properly served by a duly authorized representative of the
Secretary of Labor, Mine Safety and Health Administration, upon an agent of
Highland. JE-1.
II. FINDINGS OF
FACT AND CONCLUSIONS OF LAW
Summary
of Testimony Relating to Inspector
Barnwell’s citations of April 16, 2009
William Barnwell became an MSHA
inspector in 2005 and is currently Assistant District Manager in District 10
located in Madisonville, KY. In 2009, he
was a roof control specialist responsible for reviewing roof control plans and
investigating roof falls. He is a
graduate of the University of Kentucky with a civil engineering degree. He was employed as an engineer with Peabody
Coal for 23 years before joining MSHA. He is familiar with ventilation and roof
control plans and has worked as a face boss, shift foreman, assistant mine
foreman and assistant superintendent.
Tr. 15-19.
On
April 16, 2009, MSHA inspectors Art Gore and Jim Preece were conducting an
inspection of the #9 Mine. Preece and Gore traveled underground with Highland’s
safety director Randy Duncan at approximately 11am. They entered by way of the belt entry and
went as far as the number four unit where the inspectors requested a roof
bolting team located nearby to install a pin in the area. The bolters were not installing bolts in
their normal cycle at the time. The inspectors
directed the bolters to install a six foot grouted bolt in the belt entry. When the inspectors did not see a return of
resin, they told Duncan to shut down the unit.
Tr. 344-45. At approximately
5:30pm Barnwell was called in to the #9 Mine and met with Preece and Gore who sought
Barnwell’s expertise as they were unfamiliar with this mine. Tr. 22, 343-45.
Barnwell traveled underground to the number four unit at 7:20pm but
issued his first citation for failure to test for torque on fully grouted bolts
at approximately 5:50pm, as his notes indicate.
Tr. 53-54, Ex. S-26. Ex. S-3. He
explained that the time on the citation is when the alleged violation was
reported to him by Preece and Gore but that he did not inform the operator that
he had cited them until later. Tr.
54. He issued the second citation for
not following the approved roof control plan by not ensuring a return of resin
on the grouted roof bolts at 8pm. Ex. S-5.
Barnwell
explained that when installing grouted bolts, the hole that is drilled must be
very close to the length of the bolt being used. Resin that comes from the manufacturer in
premeasured tubes is inserted into the drilled hole, the bolt is then inserted
through the resin which sets and forms a bond between the strata of the roof
for support. After the resin has set the
bolt is tested by applying 150 foot pounds of torque to ensure it has set
properly. Tr. 22, 28-29. Barnwell
testified that he issued one citation because after the grouted bolt was
installed at the behest of Preece and Gore, they stuck a wire up in the hole
and could not find any resin. Tr.
28. He issued a second citation for not
conducting torque tests during normal bolting cycles. He explained the torque test
can be done using either a torque wrench or a pressure gauge that is installed
on the roof bolting machine. Tr.
30. When Barnwell spoke with two
unidentified bolter operators, they could not explain to him how they checked
the torque. When Barnwell inspected the
roof bolting machine, he found the pressure gauge was difficult to see and it
was upside down. Tr. 32. He drew the conclusion therefrom that the
roof bolters were not checking for torque during their normal bolting cycles
and that they were not properly task trained.
He issued this final citation at 9:30pm for failure to properly task
train the bolt operators on the #4 unit in testing for torque and return of
resin. Ex. G-6.
Barnwell
stated that he is extremely familiar with Highland from the many inspections he
has conducted there. He has observed
regular roof bolting cycles being done on each of his inspections. On each of these occasions he checked to
ensure that the bolting was being done in a lawful and correct manner to
include checking for return of resin and torque. He has never issued a citation to Highland
for failure to do either. Tr.
55-56. He also confirmed that no one on
the day of this inspection observed a normal cycle of roof bolting being
done. Tr. 60. Upon questioning by the Secretary regarding
the training violation, Barnwell stated, “Highland does a good job with their
training program as far as numbers of classes, and I don’t know that they have
any issues with their training plans or having people in classes for required
hours.” Tr. 51.
Randy
Duncan, the safety manager at Highland, testified that the mine has a task
training program in place. Tr. 333. The mine started a Safe Way of Life program
which turned into the Star program which requires all foremen to observe the
miners and turn in a weekly observation report.
Once a month, management makes the rounds to personally observe miners
performing their jobs. Tr. 334. Additionally, they provide 16 hours of
retraining each year which addresses roof control among other subjects. Tr. 340.
The foremen have a meeting every day at which different topics such as
roof bolting are brought up for the foremen to discuss with their unit. Tr. 340. All of the bolters on the #4 unit at
the time this citation was written had been task trained. All of them were experienced at the time they
were hired as Highland is a union mine which requires they hire from the panel
of experienced miners. Tr. 335. Duncan
questioned the bolters on the unit, McGregor and McGuire, one of whom Duncan
believes may have been the bolter Barnwell spoke with during his inspection on
the #4 unit. The miner stated that he
was nervous and didn’t say everything he should have in response to the
inspector’s questions. Duncan stated that McGuire has many years of experience
and McGregor has been bolting for five or six years. The number #4 unit is the
FTC unit which moves at a faster pace and uses the more experienced bolters on
it. Tr. 362-63.
Duncan’s
description of the level of training provided by Highland was echoed by other
witnesses. Travis Little has worked at Highland since 2008 after thirteen years
in other mines. He was a section foreman for several years before transitioning
into the safety department. Little
testified that as a section foreman he attended daily staff meetings at which
safety topics were discussed and the information was related to the miners in
the units. He maintained a notebook
containing notes from those meetings.
Tr. 279-80. Ex. R-2. The topic of properly torqueing bolts was one
of the topics raised and discussed with the roof bolters. Tr. 282.
He characterized the bolters as highly experienced. In fact, when he reported to Highland, he
learned one of his bolters had been doing his job longer than Little had been
alive. As the section foreman, Little
watched the bolters daily to ensure they were doing their jobs properly and
tested the bolts with a hammer to see that they were solid and tight. Tr. 289.
In
April 2009, Slade Kuykendall was the #4 unit section foreman on the third shift
at Highland. Tr. 259. He testified that during the five years he
was in that position, the roof bolters were highly experienced and had been
with him for years. Tr. 262. He described the safety observations required
by the company which would include watching each individual miner to ensure he
was performing his job properly. He
would watch the bolters install several rows of bolts on a daily basis. Tr. 263-64.
Kuykendall also described the pressure gauge used to test torque stating
that there is one installed on each bolting machine. It is located directly behind the operator’s
controls. When the controls are being used, the gauge is visible. Tr. 265.
Kuykendall has observed his bolters using the gauges to test the
bolts. Tr. 266. In addition to watching his bolters
perform their jobs, Kuykendall was certain the bolters were tasked trained
because he does the training and completes the documentation himself. Tr. 267.
1. Citation No. 8492568 in violation of 30 C.F.R.
§75.204(g)
This
citation was issued on April 16, 2009 by William Barnwell. The condition or practice cited reads:
The
mine operator is not testing the first non-tensioned grouted roof bolt
installed during each roof bolting cycle
during or immediately after the first row of bolts has been installed.
This
is evident on the #4 unit, 4th Subpanel North, MMU 064.
Ex. S-3.
The
violation was assessed as reasonably likely to cause an injury resulting in
lost workdays or restricted duty, significant and substantial (“S&S”),
affecting four persons and the result of low negligence. The proposed penalty
is $687.00.
The
mandatory standard requires that “[t]he first non-tensioned grouted roof bolt
installed during each roof bolting cycle shall be tested during or immediately
after the first row of bolts has been installed. If the bolt does not withstand
at least 150 foot-pounds of torque without rotating in the hole, corrective
action must be taken.” 30 C.F.R. §75.204
(g).
The
Secretary has failed to meet her burden of proof with regard to this
citation. The language of the citation
makes it clear that the standard has been violated when the first bolt in a normal
bolting cycle has not been tested. It
does not apply to test holes drilled at the behest of MSHA inspectors to search
for anomalies in the roof strata. Barnwell,
who has no experience with roof bolting, testified that he cited a “practice” he
was concerned may be occurring at Highland rather than a “condition” when
issuing this citation. He did not observe any of Highland’s bolters install a
cycle of bolts during this inspection to determine whether they were in fact
testing the torque in compliance with the standard. Tr. 60, 68.
Although he testified that the basis for this citation was the conversation
that he had with two roof bolters, he wrote this citation, as confirmed by his
notes, nearly two hours before he travelled underground where he met with the
bolters. Tr. S-53-54; S-26. He then testified that he based his citation
on the conversations he had with Preece and Gore neither of whom observed a
roof bolting cycle being installed either.
Tr. 360. Preece and Gore only
observed the test bolts they instructed the miners to install to look for a
return of resin to assure there were no roof anomalies. The bolts they told them to install were six
foot grouted bolts in an area where the roof control plan specified eight foot
non-grouted tension bolts were to be used.
Tr. 345-46. None of the
inspectors went to an area that had been previously bolted to find whether any
of the bolts turned in the hole when 150 foot-pounds of pressure was
applied. While Preece and Gore were
apparently unhappy with some roof control issue which caused them to shut down
the unit without explanation, neither of them testified at hearing. Based upon Barnwell’s summary of what was
discussed between him and the other two inspectors, there is nothing to suggest
either of them had observed any bolting cycles or tested any previously
installed bolts to serve as the basis for issuing this citation.
Barnwell’s
assertion that the roof bolters could not adequately explain how to perform a
torque test also fails to support the conclusion that Highland violated this
standard. The #4 unit had been shut down
without explanation by Preece and Gore earlier in the day. They had been drilling test holes and
installing bolts in various locations as directed by MSHA. It was some hours
later when Barnwell arrived and approached the bolter operators to speak with
them. At that time, Barnwell, who was
unfamiliar with roof bolting, looked around on the bolting machine until he
located the pressure gauge. He then asked the operators a question regarding
performing a torque test although Barnwell did not state exactly what his
question was. The operators gave some
answer that did not satisfy him but, again, Barnwell did not testify to or
record in his notes what their answers were.
Whatever it was, he was dissatisfied with the answer although he testified
with regard to this conversation that, “I made the observation he either didn’t
know how to or…his incentive wasn’t there. You know, I can’t really determine
that.” Tr. 49. And although this
conversation was allegedly important enough to base a citation upon, Barnwell
did not bother to identify the individuals or write their names down. He had no idea who they were nor would he
recognize them if he saw them again. Tr.
49.
In
contrast to this vague assertion that Highland was engaging in a “condition” of
unsafe bolting, Barnwell admitted that he had inspected this mine numerous
times in the past and had watched normal bolting cycles to ensure torque
testing was being performed as required without incident. He also offered that Highland engages in a
comprehensive training program of its miners.
This testimony was confirmed by Highland’s witnesses who described in
greater detail the experience level of the bolters they employ from the union
list and the constant training they promote.
Little and Kuykendall both testified that they train and observe their
roof bolters consistently and are of the opinion that every one of them on the
#4 unit is highly skilled. Duncan ascertained that one of the bolter operators,
when questioned by Barnwell, made a comment that he did not respond as he
should have. As Duncan surmised, it
could have been a nervous reaction.
Regardless
of why the bolters gave Barnwell a response that led him to believe they either
didn’t know their job or lacked the incentive to provide him with a more
erudite explanation of how they torque test, I find the evidence fails to
support a finding that this standard has been violated. There is simply no evidence of what was done
(or not done) when any of the roof bolts were installed during a normal roof
bolting cycle. It is a giant leap by the Secretary to suggest that two
unidentified bolters’ unrecorded and imprecise answers to an undocumented
question could rise to the level of a preponderance of credible evidence that
when bolts were installed at some unknown time in the past by unidentified
bolters they were done improperly. Citation No. 8492568 in violation of 30
C.F.R. §75.204(g) is hereby vacated.
2. Citation No. 8492571 in violation
of 30 C.F.R. §75.220(a(1)
This
citation is assessed as S&S, likely to result in lost workdays or
restricted duty affecting two persons and the result of low negligence. The proposed penalty is $687.00. The narrative portion states:
The
mine operator is not following its Approved Roof Control Plan dated, November
4, 2008 on the #4 unit, 4th
Subpanel North, MMU 064. Page 5 item 30
states when bolting with fully grouted
bolts, the first hole drilled for each cut being bolted will be measured to ensure correct depth and to check for
abnormal voids in order to provide for return of the resin being used.
A test on a bolt with no plate yielded no return of resin in the belt entry #5 entry. Extensive testing proved
that some type void (sic) was present in the belt entry. The belt entry is
supported with 8’ double lock tension bolts that are not fully grouted.
Ex. S-5.
The
standard requires that the operator follow its approved roof control plan
suitable to the prevailing geological conditions and the mining system to be
used at the mine. 30 C.F.R. §75.220(a)(1). The provision in Highland’s roof control plan
cited by Barnwell applies when grouting
with fully grouted bolts. (Emphasis added.)
Item 31 goes on to state that where roof conditions include slips or
faults, additional support consisting of one foot longer bolts, cable bolts
and/or metal straps shall be used. Item
21 states “additional precautions for all FCT panels shall include 8 foot long
Double Lock bolts installed as the primary bolt in the belt entry.” Ex. S-41 at
pg. 3- 4.
Highland
takes the position that only eight foot tension bolts, not six foot grouted
bolts are used in the belt entry. The test bolts installed at the direction of
the inspectors were six foot grouted bolts installed in the belt entry and
therefore cannot support a finding that this standard has been violated. It
also argues that, as in the previous citation, MSHA did not observe the
installation of six foot grouted bolts anywhere in the mine during normal
mining operations and it is now impossible for the Secretary to prove that
Highland did not follow this practice in accordance with its roof control plan.
Secretary’s
theory of this violation is that a geologic anomaly was present in the form a
void, or crack, in the mine roof in which the resin was being diverted
resulting in the lack of resin returning to the opening of the drill hole. She
asserts that the void was found in several entries, not just the belt
entry. The citation, however, charges
only a violation in the #5 (belt) entry.
Neither the inspector nor the Secretary sought to amend the citation
during the many months that have elapsed from its issuance in April 2009 until
now. I decline to do so as well. I
therefore hold the Secretary to her burden of proving that the operator violated
its roof control plan by not checking for return of resin on fully grouted six
foot bolts in the belt entry.
Randy
Duncan, Highland’s safety manager, testified that only eight foot non-grouted
double lock tension bolts are used in the #5 belt entry at the #9 mine. Tr. 359.
In fact, when Preece confronted Duncan with the fact that they were
getting no return of resin on the six foot test bolts installed in the belt
entry, Duncan responded by saying he was not surprised and informed him that
Highland does not use six foot grouted bolts in that entry. Tr. 345-46.
Duncan’s
testimony that eight foot bolts are used in the belt entry is consistent with
the requirements of Highland’s Approved Roof Control Plan Item 21 as mentioned
above. Barnwell also confirmed this on
cross-examination, and included a statement to this effect in his written
citation. He testified that he thought
Highland might use grouted bolts in addition to the eight foot bolts but he was
mistaken. Tr. 61-62.
Based
upon the evidence, because grouted bolts are not used in the belt entry, Highland
is quite right that the Secretary cannot prove this alleged violation as
written.
If I were to accept a very broad reading of
the citation to apply to any entries on the #4 unit, I would find the Secretary
has still failed to meet her burden of proof.
First, the evidence does not support a finding by a preponderance that
the lack of return of resin was found in any location other than the belt
entry. Secondly, the conditions found on
the day of the inspection do not support a finding by a preponderance of the
evidence that at the time the entries were mined and bolted, Highland failed to
measure the first drilled hole for correct depth and voids.
Barnwell
testified that he spoke with Preece and Gore upon his arrival at the mine.
Barnwell was told by Preece that when he stuck a wire up into a drilled hole,
resin did not return for the last ten or eleven inches. Tr. 40. Preece did not testify and his notes were not
submitted into evidence. No information was reflected in Barnwell’s notes as to
what area(s) were tested by Preece and Gore.
From Barnwell’s testimony, it appears Preece reported the return of
resin issue to be a problem across the entire unit. However, after conducting
his own investigation, Barnwell found Preece was wrong. The area affected by
the alleged void was far smaller. Tr. 47, 87.
Duncan
testified that he had accompanied Preece and Gore on their initial
inspection. By his account, he and the
inspectors walked up the belt entry on the #4 unit when they came upon a pin
man in the crosscut between the return and the belt entry. The inspectors asked him to install a pin in
the belt entry. The inspector then took
a piece of wire and probed the drill hole for resin and found none. Tr. 344-45.
The bolt he instructed the pinner to insert was a six foot fully grouted
one. A lengthy discussion between the
inspectors and Duncan ensued concerning the lack of return of resin. The
inspectors then ordered Duncan to shut down the unit without further
explanation and no other bolts were installed or test holes drilled by Gore and
Preece. Tr. 345-46.
I
find the only credible evidence regarding Preece and Gore’s inspection is that
they tested six foot bolts in the belt entry based upon Duncan’s testimony.
Barnwell
arrived on the property and reached the #4 unit at 7:30pm according to his
notes and his testimony. His notes,
written simultaneously with his inspection, reflect three bolts being installed
with no return of resin in an unnamed location and one bore hole driven and scoped.
They also reflect three bolts being installed in the #9 entry with good return
of resin with no anomalies in the roof.
Ex. S-26. When he and Winders
re-tested, they found no return of resin in the #5 belt entry on the #4 unit.
His final conclusion reflected in his notes was that a void “could be present”
reducing the amount of return. Ex. S-27
pg. 9.
Barnwell believed he found this
void, or crack, in the roof after two hours or three hours of drilling of bore
holes, spraying water, and waiting for cure and then scoping the bore
hole. Only then did he see “what [we]
thought was a crack.” At first Barnwell
testified that the crack was in the entry adjacent to the belt. He then said it
was in the belt entry and the adjacent belt entry. Tr. 87. When asked the question: “Adjacent which way?
The belt entry was what, No 4?” He responded “I guess so. I don’t know what – I
think in my notes I say No. 4 entry.” He
went on to say “I’m not sure if it was to the – on the intake side or not, but
that’s – you know, when Mr. Preece was down there looking at it, he was finding
it in some different places he thought on the entire unit, but that’s not what
we found.” Tr. 87. He further testified
that he determined that there was an area with a geologic anomaly, or a crack,
in an area of three crosscuts spanning 100 feet. The anomaly spanned three
entries that needed to be re-bolted. He then said it was isolated to a couple
of entries. Tr. 47.
It
appears from the contradictory, vague and rather noncommittal answers given by
Barnwell that his memory was dulled by time. He had to concede that the initial
information from Preece and Gore that he relied upon was found to be incorrect.
Regardless of the reasons why the evidence from Barnwell was vague, it is
insufficient to determine that the crack he believed to have been found was
located anywhere other than in the belt entry as stated in his written
citation. This conclusion is bolstered by the testimony given by Duncan.
According
to Duncan, he and Barnwell may have installed another bolt or two in the belt
entry before the bolt manufacturer’s representative, Reeves, brought in the
scope used to explore for roof anomalies.
Duncan described the location in which Barnwell drilled his test holes
as the belt entry one crosscut in front of the tailpiece and then they moved up
the belt entry putting in more test bolts until they obtained a return of
resin. Tr. 351. Duncan testified that
all of the bore holes and test bolts done by Barnwell in his presence were in
the belt entry. Tr. 355. Duncan believes Barnwell had them install
some spot bolts one crosscut off the belt entry only in response to his
(Duncan’s) question regarding what it would take to allow the unit to go back
into production and abate the citation. Tr. 358-59.
Barnwell’s
credibility with respect to the location in which the alleged void was found is
lacking. He did not include the entry
adjacent to the belt entry in his written citation which he issued after his
investigation was completed. At a time when the results of his investigation
were clear in his mind, he most logically would have done so. In the alternative, he would have corrected
or amended the citation which he reduced
to writing some hours later upon review of those notes he testified supported his
findings with respect to the adjacent entry. This lends credence to the fact
that the testing was done and the results recorded were all in the belt entry
as stated in the narrative portion of the citation. I find Duncan’s testimony to be more reliable on this point.
With
respect to the Secretary’s theory that the test results on the day of the
inspection prove by a preponderance of the evidence that Highland violated the
standard at some unidentified time in the past when some unidentified cut was
initially bolted is without merit.
Assuming
that a failure of the six foot bolts to yield a return of resin in the entry
adjacent to the belt entry was observed on April 14, 2009, and was due to a
crack in the roof, there is no evidence of record to support the conclusion
that the provisions of the roof control plan were violated when Highland
installed the bolts on the #4 unit. There
is no evidence of record to establish how long the crack had been in
existence. There was also no evidence
presented as to when the belt or any other entry on the #4 unit was cut and
bolted. I cannot assume that because
Barnwell called what he thought was a crack a “geologic anomaly” that it must
have existed since the coal seam was formed millions of years ago and therefore
must have been present when Highland bolted the unit. [2] I, therefore, cannot assume that the crack
was present when and where the first hole was drilled for each cut being bolted
or that it was not measured to ensure correct depth and to check for abnormal
voids in order to provide for return of the resin being used. Barnwell confirmed that neither he nor the
other two inspectors observed a cut being bolted. Barnwell testified that while testing a
previously installed roof bolt would be difficult to test for a return of resin
after the fact, he assumed it would be possible. He, however, did not attempt
to do that. Tr. 64.
This
citation must be vacated for all of the reasons set forth above.
3. Citation No. 8492572 in violation of 30
C.F.R. §48.7(a)
Barnwell’s
final citation alleges a failure to provide new task training to roof bolter
operators. Specifically, he alleged that bolter operators were not trained on
testing bolts for proper torque and return of resin on the first grouted roof
bolt. Ex. S-6. He designated the alleged violation as
S&S, expected to result in lost workdays or restricted duty, and low
negligence on the part of the operator. The proposed penalty is $687.00.
The
mandatory standard requires that miners assigned to a new task, such as roof
bolting operators, must be trained before assuming the new task. The training is not required for previously
trained miners who demonstrate safe operating procedures within 12 months of
assignment of the new task or for miners who have performed the new task and
demonstrated safe operating procedures for such tasks within 12 months of being
assigned the task.
As
set forth above, Barnwell issued this citation solely on the basis of his
dissatisfaction with the answer given by two unidentified bolter operators on
how they torque test the grouted bolts. However,
his testimony established that he harbored only a suspicion at best that the
reason for the unsatisfactory response was a lack of training. He stated “the
bolter operators either [were] not being properly task trained or whatever.”
And that his concern was “maybe” they weren’t instructed properly. Tr. 48. Either that “or, you know his incentive
wasn’t there” but he could not really determine that. There was just “a lot of
vagueness on their part.” Tr. 49-50. Barnwell
could not say who the bolter operators were that he spoke to, when they were
hired, how experienced they were, who had trained them or observed their
proficiency and he did not pull Highland’s training records. Tr. 81. He did testify that he knows Highland does a
good job with their training program and that they did not have any issues with
their training plans or putting in classes for the required hours. Tr. 51. He also confirmed that during the
numerous inspections he has conducted at the mine, he has observed bolting
operations to his satisfaction.
Highland’s
comprehensive training program was outlined by several of Highland’s witnesses
as stated above. Additionally, it was pointed out that Highland is a union mine
requiring them to hire miners who are already experienced and who often times
have been mining many, many years.
The
credible evidence of record supports a finding that Highland does properly
train their roof bolter operators. There is no evidence to find otherwise. The citation is vacated.
4.
Citation No 8494294 in violation of 30 C.F.R. §75.202(a)
Paul
Hargrove has been an MSHA inspector since February 2006 with 25 years of mining
experience. He was certified as a shot
firer, a hoisting engineer, foreman, EMT and an electrician. Tr. 90-92. On April 14, 2009, he was involved in a
regular inspection of Highland when he wrote this citation for a condition he
observed in the Main North travel way.
His citation states:
The
roof between crosscut # 14 and crosscut #21 on the main north travel way, the secondary escape way, is not being
supported or controlled to protect persons from fall of roof or rock. There are
thirteen roof bolts that the bolt head is pulling thru the bearing plate.
Mine examiners and company official travel thru this area several time (sic)
a shift, three shift (sic) a day.
Ex. S-15.
He
designated the violation and unlikely to result in lost workday or restricted
duty- type injuries affecting 10 persons and the result of moderate
negligence. The proposed penalty is $1203.00.
As
Hargrove explained, the plate on the end of the bolt provides the bottom
support for the beam formed by the steel bar set in resin. The holes in the bearing plates were drilled
too large by the manufacturer and the bolts were pulling through them. Highland
had attempted to resolve the situation by putting washers on the bolts but had
not done so on all of them. Some of the
plates fall off when the roof starts bearing down on them and in some
instances; the bolt pulls up into the roof strata. Either situation leaves the roof unsupported.
Tr. 95. Highland had informed MSHA of
the problem and had installed additional bolts in some areas and then switched
to washers. Tr. 96. The washers also
were failing to correct the problem and were pulling through the plate. Tr.
97. In the cited areas, the rock had
already fallen out around the bolts exposing four to six inches or more of bolt
or the roof sagged pulling the bolt up into the strata. Tr. 98.
In an area of approximately 4900 feet, Hargrove found 13 bolts in this
condition. Tr. 98-99. As a result of his
findings, he wrote this citation in violation of Section 75.202(a) which
requires that “the roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons from… falls of
the roof, face or ribs and coal or rock bursts.”
Negligence/Persons
Affected
Highland
does not contest the violation but contests the negligence level and the number
of persons affected. It argues that they substantially mitigated their
negligence by informing MSHA of the oversized drill holes, installed additional
bolts, washers and Ker-thobs in an attempt to control the situation and that
the condition in this particular area was unknown to management. Negligence
should have been marked as none. With
regard to the number of persons affected, it argues Hargrove found the roof to
be safe and the method used by the inspector to calculate the number affected
was incorrect.
The
Secretary conceded that indeed Highland did notify MSHA of the incorrectly
drilled holes and did install additional bolts, washers and Ker-thobs in an
attempt to overcome the problem. Tr. 96,
138. Hargrove also confirmed the absence of cracks or draw rock in the area and
felt the roof was safe. Tr. 100. He opined the negligence was moderate because
not all of the areas had been corrected. Highland could have re-bolted or
installed timbers in this area. Tr. 101.
There was no evidence that Highland had taken such precautionary
measures where these 13 bolts were found. Tr. 102. It was Hargrove’s belief that this area had
been mined between 2000 and 2003. Tr.
97. The entry served as the main travelway and is heavily trafficked each
day. Tr. 99, 130. The condition was easily seen therefore
management should have known the condition existed. Tr. 132. Hargrove did not inspect every bolt
in the area on this inspection but did so during subsequent inspections finding
them to be in the same condition as these 13. Tr. 133-34.
I
find that Highland did engage in remedial efforts with regard to these
incorrectly-sized plates constituting mitigating circumstances. However, I find that based upon the fact that
they were aware of the issue and had installed the defective bolts several
years before this inspection in an area frequently travelled and inspected,
they should have known of this violation and corrected it in a timely manner. I
find moderate negligence is appropriate.
Hargrove
determined ten persons would be affected by this violation because usually ten
miners travel through this area in a fourteen-man mine trip twice per day. Tr.
101. Hargrove testified that the
inferior plates were located in various areas of this 4900 foot travelway but
he did not diagram them. He confirmed, however, that they were spread out among
the rows of the 3920 bolts in the travelway. Tr. 133, 144. He also confirmed
that some of the mantrips are canopied as well but men travel across the entire
20’ entry as evidenced by tracks throughout.
Tr. 145.
Based
upon this evidence, and the fact that the roof was in good condition in this
area, I find that the number of persons affected by a fall of roof would likely
be less than ten persons. I therefore modify
this factor to four persons.
5. Citation No. 8494330 in violation of 30
C.F.R. §75.400.
Inspector
Winders became an authorized representative for MSHA in October 2007 after 23
years in the mining industry. He received his mine foreman’s certification for
Kentucky as well as a state inspector’s certification. Tr. 199-202.
During a regular inspection in April 27, 2009, he issued this
citation. The narrative section charges:
Loose
coal was allowed to accumulate on the travel road side of the outby end of the
tail-piece for the 2nd
North belt located in the #6 entry at spad 99+84 on the 061 MMU. The bottom roller attached to the outby end of
the tail was running in coal. The coal
spill measured 15’ long, 4’ wide,
and from 4” to 16” in depth.
Ex. S-9.
The
citation was marked as reasonably likely to result in a lost workday or
restricted duty-type injuries, S&S, affecting seven persons and the result
of moderate negligence. The Secretary proposes a penalty of $7578.00.
The
mandatory standard at issue requires that combustible materials such as coal
dust and float coal dust as well as loose coal be cleaned up and not allowed to
accumulate in active workings or on diesel-powered or electrical
equipment. 30 C.F.R. §75.400.
Winders
testified that the accumulation was caused by a low spill that had occurred
over the course of the shift. Tr. 206,
219. He observed the tail roller turning
in the loose coal and although the coal was still damp from the water spray
located at the feeder, he believed the condition posed a hazard of fire due to
the combination of the proximity of an open airlock door and the friction of
the roller turning in the coal. Tr. 124,
181, 207-09.
Highland
challenges the validity of this citation based upon the definition of the word
“accumulation.” It argues that a “spill” is a normal part of mining and not a
violation of this standard. It differs
from a violative accumulation based upon the amount of time it has
existed. Winders could not say how long
this condition had existed but acknowledged that it could not have been for
long. Tr. 218. If it had occurred as a result of a coal car hitting the belt,
it could have occurred just minutes before he cited the condition. Tr. 218-20.
The wetness of the coal could also provide some evidence that it was a
fresh spill. Tr. 178. Taking the
position that the condition most likely had just occurred, Highland concludes
that the material had not accumulated over the requisite period of time. It
cites Consolidation Coal Co., 22
FMSHRC 455, 464 (Mar. 2000) in support of the time factor being dispositive.
The
Secretary does not address this issue. However, the U.S. Court of Appeals in
its recent decision in Black Beauty Coal
Co. v. FMSHRC, USCA Case No. 11-1306, Dec. 28, 2012, has addressed the very
issue of when a spill becomes an accumulation.
The Court stated that “no bright line differentiates the two terms.” Id. at 8. Citing Utah
Power & Light Co.,12 FMSHRC 965, 968 (1990), aff’d, Utah Power & Light Co. v. Sec’y of Labor, 951 F.2d 292
(10th Cir. 1991), the Court determined that an accumulation exists “if
a reasonably prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized the hazardous
condition that the regulation seeks to prevent.” The regulation is designed to prevent
combustible materials from propagating an explosion or fire. In so finding, the
Court determined that material that had suddenly spilled by the tail roller was
an accumulation in violation of this mandatory standard as the standard is
directed at the prevention of accumulations rather than allowing a reasonable
period of time for cleanup. Id. at 9
citing Old Ben I, 1 FMSHRC 1954,
1957.
I
find Winders acted as a reasonably prudent person familiar with the mining
industry, in concluding that the rollers turning in the quantity of coal posed
a hazard of fire. Present were all of
the factors required for a fire – a fuel source, oxygen and friction. The violation has been proven by a
preponderance of the evidence.
S&S
An
S&S violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d). A violation is properly designated S&S,
“if, based upon the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well
recognized, in order to establish the S&S nature of a violation, the
Secretary must prove: (1) the underlying violation; (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 will be of
a reasonably serious nature. Mathies Coal
Co., 6 FMSHRC 3-4 (Jan. 1984); accord
Buck Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor,
861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies
criteria).
It
is the third element of the S&S criteria that is the source of most
controversies regarding S&S findings. The element is established only if
the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An
S&S determination must be based on the particular facts surrounding the
violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10
FMSHRC 1125 (Aug. 1985); U.S. Steel,
7 FMSHRC at 1130.
The
violation in this case has been established satisfying the first element of Mathies. In the event of a fire, it is
unquestionable that resultant injuries would be reasonably likely and those
injuries would be reasonably serious.
The issue then is whether the condition posed a reasonable likelihood of
a fire to satisfy the third element of Mathies.
Highland
contests the S&S designation because the coal was wet at the time the
citation was written. Because wet coal
does not burn, it argues, a fire could not have occurred.
The
accumulations measured up to 16” in the center but petered out to only 4” at
the edges. Tr. 214. Winders testified credibly that it would not
have taken long for the coal to dry. The
friction from the roller and the open airlock both contributed to the speed at
which it would become dry. Tr. 213-14. Under continued normal mining operations, as
the coal dried it would be reasonably likely to ignite from the friction of the
roller turning in it. Tr. 222.
The
Commission has addressed the issue of accumulations and conveyor belts a number
of times. In AmaxCoal Co., 19 FMSHRC
846 (May 1997), the Commission upheld an ALJ's finding that a belt running on
packed coal was a potential source of ignition for accumulations of loose, dry
coal and float coal dust along a belt line, and that the condition presented a
reasonable likelihood of an injury causing event. In addition, in Mid-Continent Resources, Inc., 16 FMSHRC
1218, 1222 (June 1994), the Commission held that accumulation violations may
properly be designated as S&S where frictional contact between belt rollers
and the accumulations, or between the belt and frame, results in a potential
ignition source for the accumulations. The Commission in Mid-Continent found that it was immaterial that there was no
identifiable hot spot in the accumulations because continued normal mining
operations must be taken into account when evaluating the circumstances. In the
present case, if the violative condition had been allowed to persist, it would
have reasonably led to smoke, fire and, potentially, an explosion. Further, an
additional potential ignition source was present in the form of the belt
rubbing the structure, which could generate a spark. Had the coal near the
damaged rollers and misaligned belt been wet, the Commission has recognized
that wet coal can dry out and ignite. See Black
Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985).
I
find that the accumulations were extensive.
Winders’ scenario of the friction from the rollers plus the increased
ventilation from the airlock drying the coal relatively quickly creating an
ignition source is reasonable and credible.
An ignition source was present; fuel was present as was oxygen providing
all the necessary elements for a fire or explosion. This violation was serious
and I affirm it as S&S.
Negligence
The
accumulations were extensive and obvious and would have been visible to anyone working
near the face which would include the three ram car operators, two roof bolters
and two miner operators as well as the belt examiner and the section foreman. Tr. 210, 212-13. The coal was still spilling when the citation
was written. Tr. 206. The belt examiner
had made the area at 8:10 am, just two hours prior to the inspection which took
place during the day shift. Tr.
212. Management had to have been aware
of its presence. In spite of number of
persons working in the area and the extensiveness of the accumulations, no one
was in the process of cleaning the material.
This standard mandates prompt cleanup. Utah Power & Light Co. v. Sec’y of Labor, 917 F.2d. 292, 295 n
11 (10th Cir. 1991). For this
reason, I find moderate negligence is appropriate.
6.
Citation No. 8494665 in violation of 30 C.F.R. §75.203(e)(2).
Inspector
Hargrove issued this citation at 6:10pm on April 23, 2009 as S&S, resulting
in lost workdays or restricted duty affecting one person and the result of high
negligence. The proposed penalty is $3405.00.
The “Condition or Practice” is:
The
approved Roof Control Plan dated, Nov. 13, 2008, entry width of 20 feet, is not being followed on the # 5 unit, mmu-066-0
#8 entry. The # 8 entry measured 22 feet
1 inch for a distance of 13
feet.
Ex. S-17.
The
mandatory standard requires, in relevant part, that “[a]dditional roof support
shall be installed where [t]he distance over which the excessive width exists
is more than 5 feet.” 30 C.F.R. §75.203(e)(2).
Hargrove
observed this wide cut in the #8 entry while conducting respirable dust testing
on MMU-066. Tr. 113. Highland’s roof
control plan limits entry widths to 20 feet. When measured, this entry exceeded
that width by 13 to 24 inches for a distance of 13 feet. Tr. 104;
Exs. S-41, S- 17 and S-34. There
were no additional supports in the entry and he observed draw rock and cracks
along the ribs. Tr. 107-09. Rather than
cite the condition as a violation of the roof control plan, he cited it under
this more forgiving standard which allows for wide entries of up to twelve feet
in width and five feet in length sans additional roof support. Tr. 107.
Highland
accepts the violation but contends it should not be S&S or high negligence.
S&S
Hargrove
identified this condition as a hazard because as he explained, the coal pillars
provide the best form of roof support. When their width is decreased by a wide
cut, the pillar is weakened and the roof support is compromised permanently.
Tr. 108-09. The presence of adverse roof conditions coupled with Highland’s
history of roof falls made it reasonably likely, in his opinion, that the wide
entry contributed to the hazard of a roof fall in this area and which would be
reasonably likely to occur. Tr.
109. The resultant injuries would be
broken bones and even fatal injuries. Id. The section foreman, mine examiner, miner
operator, roof bolter or anyone else working in the area could be affected by
this condition. Tr. 110.
Highland’s
first argument is that Section 75.203(e)(1) provides only when the width
specified by the roof control plan is exceeded by more than12 inches is
supplemental support required. The cited
subsection of the standard also allows for an excessive cut of up to five feet
in length before supplemental support is required. Using this “grace” area calculation, the
excessive cut then measured at most from one inch to twelve inches too wide for
five feet. Because the inspector could
not say how much of the 13 feet in length was 21’1” wide as opposed to 22’ wide,
it could be that almost the entire entry was only one inch too wide which would
not be S&S. Tr. 152. I find the logic behind this assertion to be
faulty. Even if the width exceeded the
“grace” area by only one inch in width for a distance of five feet, it does not
necessarily follow that it could not be S&S. The entire distance that was not properly supported
must still be considered in determining whether the condition posed a
significant safety hazard. Hargrove
stated the condition of the roof had deteriorated. The pillar was reduced in
strength by the excessive width of the cut in the entry. Taking into account these factors, the
violation posed a discrete safety hazard and a roof fall was reasonably likely.
Highland’s
second argument is that Hargrove confirmed the bolts present were spaced
properly for the width of the entry. Tr. 155-56. This is a mischaracterization of Hargrove’s
testimony, however. He was asked whether
the bolts were spaced the proper distance from the rib according to the roof
control plan. He answered in the
affirmative. However, he went on to clarify that the bolts were spaced properly
on the left side of the entry, not the right side where he cited this
violation. Tr. 156-57. Although he did not measure the distance, he
observed that there were no bolts in the area which he memorialized in a
drawing made in his notes. Tr. 157; Ex. S-34 pg. 18. I find that the he has sufficient experience
to be able to recognize when the distance between the rib and the bolt is wider
than that required. The difference would
be especially obvious when compared with the spacing of the other bolts in the
area which can be seen on his diagram.
Also supporting this is the fact that he was able to determine that the
bolts were the proper distance on the left side although he did not need to
measure it to make that determination. Highland had no argument with that. Highland’s argument is not persuasive.
Lastly,
Highland argues that Hargrove’s notes do not indicate adverse roof conditions
and he could not recollect why he marked it S&S. Again, this is a
misstatement of the evidence. Hargrove testified
that he put in his notes “same conditions cited last week” besides his
“reasonably likely” notation. Tr.
155. As he testified this was just to
let him know what the reason was. It served as a memory jogger. With regard to the adverse roof conditions
not being in his notes, he testified that as is his practice, if the roof
conditions were good, he would not have marked this citation as S&S. Only when he finds draw rock, cracks and the
like does he mark this type of violation as S&S. Tr. 157-58.
I find this explanation to be reasonable and credible.
Travis
Little testified that the area did not have adverse roof conditions. However,
his testimony was cursory and vague. He did not testify that there were no
cracks or draw rock present. Tr. 291-92. I find his unsupported opinion is
unconvincing.
I
find this violation to be serious and I affirm it as S&S based upon a
preponderance of the evidence.
Negligence
This
violation was the result of high negligence in Hargrove’s opinion based upon several
factors. He determined that the
condition had existed for at least two shifts and would have been seen during
one pre-shift and one on-shift examination, it was easily seen and he had
spoken to company officials five or six times during that quarter about
excessive cuts. Tr. 110.
Travis
Little testified that the cited area was near the face and was not obvious
because there was a curtain hanging there blocking the wide area. In his opinion, it would be difficult for the
section foreman to see this violation.
Tr. 292-93. The curtain is
attached to the end of the roof bolter and advances as the bolter moves
forward. Tr. 319.
Hargrove
agreed that there was a curtain, however, he stated “[i]f you walk across that
crosscut, like everybody does, when you look up in that entry, you are looking
past that line curtain. You can see it.”
Tr. 153. In fact, Hargrove found it
without much difficulty.
Not
only was the wide entry easily seen even taking into account the presence of
the line curtain, it is untenable to think that those persons in management responsible
for detecting and correcting hazards such as this could claim ignorance by
hiding behind a curtain. This is
especially so in the face of having been put on notice regarding excessive cuts;
a fact Highland did not dispute.
I
concur with Hargrove’s finding of high negligence.
7. Citation No. 8494670 in violation of 30
C.F.R. §75.370(a)(1).
This
violation was designated as S&S, reasonably likely to result in lost
workdays or restricted duty injuries to seven persons and the result of
moderate negligence. The proposed
penalty is $4329.00. The “Condition or
Practice” states:
The
approved ventilation plan, dated Oct. 24, 2008, page #3, item #3, is not being followed on the # 1 unit, mmu-061-0,
air lock is not adequately installed in the belt entry and supply road, air on the belt and neutral travel way is
traveling in by to the working section.
Ex. S-18.
Hargrove
testified that on April 27, 2009, he observed an airlock curtain in the belt
entry and supply road that had an opening at the top and sides. Tr. 114-15.
He spent approximately one hour in the cited area examining the feeder
and the tailpiece and then conducted a smoke test at the brattice line, at the
crosscut which showed air was traveling through the gaps towards the face
located approximately 150 to 200 feet away.
Tr, 115, 163-64. Not only is the curtain designed to prevent
belt air from reaching the face, but it is also to prevent coal dust and diesel
exhaust as well as smoke in the event of a fire from reaching the miners
working at the face. Tr. 115, 117. When installed properly, air and contaminants
are directed to a regulator outby the airlock away from the face. Tr. 116-17.
Hargrove found no other regulators inby the curtain to serve this
purpose despite Highland’s assertion that there was one between entries 2 and
3. Tr. 197-98; Exs R-1 and R-3.
The
cited regulation requires the operator to submit a ventilation plan for the
district manager’s approval which controls methane and respirable dust. 30
C.F.R. §75.370(a)(1).
Highland
concedes this violation but contests the S&S and negligence assessments.
S&S
The
third element of Mathies is at issue
here. Highland disagrees with the Secretary’s position that a fire or explosion
was likely to occur because there were no accumulations, ignition sources or
methane in the area.
In
order to establish a fire or explosion is reasonably likely to occur, a
confluence of factors must exist. Those
factors include accumulations, ignition sources, equipment and methane. Enlow
Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). The Secretary’s evidence with regard to this
element is that Highland used diesel equipment in the cited area. Inspector Winders had issued two citations
for accumulations in the same area just 20 minutes before this citation was
issued. One of those citations was for the belt tailpiece roller turning in the
loose coal. The other was for
accumulations of oil, grease, coal dust and fine coal on the ratio feeder which
dumps directly onto the tailpiece. Tr.
117, 211.
I
have found that the accumulations at the tailpiece cited in citation number
8494330 were S&S because they were extensive and posed a reasonable
likelihood of causing an ignition or fire due to the friction from the roller
turning in the coal. For the same
reason, I find this violation to be S&S. The accumulated coal was very
close to this cited area. Should it ignite, it is reasonably likely that smoke
would then be directed through this airlock towards the face exposing miners in
the area to inhalation and burn injuries. I find these injuries would be
reasonably likely to be serious. The
elements of Mathies have been
satisfied.
I also find seven people would be affected by
this violation. Hargrove testified that when he issued this citation he saw
seven miners inby the airlock. Tr. 166.
Although Highland places significance on the fact that there was a
backup curtain near the face protecting several of the miners, Hargrove
testified that the backup curtain is split so that equipment can move back and
forth from the face. This curtain would
not stop smoke from passing through to the face. Tr. 167.
Highland argues that their witness testified that the gap in the curtain
was small, and their ventilation system made it unlikely that any miners would
be affected. Tr. 298-302. Having found
this violation is S&S, meaning it is reasonably likely that a fire would occur
and that smoke inhalation and burns would be reasonably likely to be sustained;
this argument does nothing to persuade me that no miners would be affected. I
find the fact that this violation occurred in the working section of the mine
near the face and that Hargrove observed seven persons in the area when he
issued this citation establishes by a preponderance of the evidence that he
assessed this citation properly.
Negligence
I
find the negligence was properly assessed at moderate. Hargrove stated that the
condition had likely existed for several shifts judging by the accumulations
present and the dirty condition of the feeder and the curtain. Tr. 119-120.
Although Hargrove conceded that the curtain could have been pulled down by
passing equipment or a falling rock and may not have been in that condition at
the time the belt examiner made his morning run, the gaps were readily
apparent. This was located in an active area of the mine just two crosscuts
away from the face where examiners and foremen should have been on alert for
such occurrences. They should have been
aware of the condition and corrected it.
8. Citation No. 8494674 in violation of 30
C.F.R. §75.1731(a).
This
S&S citation was issued by Inspector Hargrove on April 28, 2009. In his
opinion, it was reasonably likely that this alleged violation would result in
lost workday and restricted duty type injuries affecting three miners and was
the result of moderate negligence. The
proposed penalty is $1304.00. The
alleged violation is stated as follows:
The
5A belt line one crosscut out by the 5B Head roller transfer point has 2
damaged bottom roller. (sic.) The
conveyor belt is rubbing the bottom roller metal frames and the frames are hot to the touch. The 5A belt was in operation prior to the
inspection.
Ex. S-20.
The
cited standard states “[d]amaged rollers, or other damaged belt conveyor
components, which pose a fire hazard must be immediately repaired or replaced. All other damaged rollers, or other damaged
conveyor components, must be repaired or replaced.” 30 C.F.R. §75.1731(a).
Highland
challenges the S&S, the number of persons affected and the moderate
negligence assessments but not the violation.
S&S
Travis
Little testified that the area in which the damaged roller was located was wet.
He stated that there was so much standing water that he and Hargrove had to
exit the golf cart and approach on foot.
He further stated that the area remains wet constantly even to this
day. As a result, there is no danger of
a fire even taking into consideration the friction from the damaged
rollers. Tr. 305-06. Highland also contends that there was a fire
suppression system, hoses and outlets in the immediate area reducing the
likelihood of fire.
Hargrove
testified that he believed this condition to be S&S because the outer
barrel of the roller had broken in half and was banging against the metal
shaft. In addition to this metal to metal contact, the belt was rubbing against
the frame due to a misalignment. When
the belt was shut down Hargrove found the frame hot to the touch. Tr. 121-23.
The rollers were located in the same area as accumulations found by
Hargrove. Tr. 123-24. The rollers were turning in the coal creating
a source of friction and a fuel source which the inspector reasonably believed
would cause a fire. As he stated, “You
had the heat source, you had the fuel, you had the oxygen. You had everything
you needed for a fire.” Tr. 124. In the event of fire, he believed that the
three miners he saw traveling in the area would sustain serious injuries. Tr. 125-26.
Hargrove stated that to his recollection the accumulated coal was dark
and dull signifying that it was dry. Tr.
127.
On
cross-examination Hargrove stated that he checked the belt examination book
from the morning and found nothing noted about the damaged rollers or the cited
accumulations. Tr. 177. However, the
belt examiner on that day shift had not yet come to the surface to inscribe his
findings in the belt book. He did not
check the belt book entries for the previous shift. Tr. 184-85. He confirmed
that there is a swag area at the tailpiece that had water in it but the damaged
rollers and the accumulations were about thirty feet from this swag area. Tr. 178. Hargrove stated that the water was
not deep; it was not over ones boots and was just enough to leave an impression
of the shoe when walking in it. Tr. 179.
The wet area measured about fifteen feet in length and eighteen in length. The total measurement of the coal near the
damaged rollers was fifty feet in length, twenty-four feet in width and eight
inches in depth. Tr. 123-24. Hargrove
insisted that the damaged rollers and the bottom stand of the belt frame were touching
the coal fines. The part of the frame that he found hot to the touch was making
contact with the coal. Tr. 181. Hargrove
also confirmed that he saw shovel marks further down the belt line evidencing
some cleanup efforts that had been abandoned about fifty feet short of the
cited area. It was clear to him that the shoveling had not been done on that
day shift due to the size of the affected area. Tr. 185.
I
find Inspector Hargrove’s testimony to be credible based upon his recollection
of the condition, the consistency between his recollections and his notes as
well as based upon the amount of detail in his testimony coupled with his
overall demeanor.
I reject
Highland’s contention that this violation is non-S&S due to an absence of a
fuel source because some of the accumulations were wet. First, Hargrove very clearly pointed out that
based upon his recollection of the condition and his recorded notes, the wet
area was located about thirty feet from the damaged rollers and misaligned belt
which were both touching coal where he felt a hot spot. I also reject this argument for the same
reasons set forth in the AmaxCoal Co.,
Mid-Continent Resources, Inc. and Black
Diamond Coal Mining Co. decisions as discussed above.
I
also reject Highland’s argument that the other protections required by the Mine
Act were properly in place at the time of the order, reduced the possibility of
an injury producing event, thereby rendering it non-S&S. The Courts and the
Commission have found to the contrary. In Buck
Creek Coal, 52 F.3d 133,136(7th Cir. 1995), the mine operator argued that
carbon monoxide detectors, a fire-retardant belt, a fire suppression system, a
fire brigade team, a rescue team, firefighting equipment and ventilation all undermined
the likelihood of a serious injury that would result from a coal accumulation violation.
The Seventh Circuit, in upholding the decision of the ALJ regarding the serious
nature of the accumulations, determined that the fact that there were other
safety measures to deal with a fire does not mean that fires are not a serious
safety hazard and, rather, the precautions are in place because of the
"significant dangers associated with coalmine fires." While extra precautions
may help to reduce some risks, they do not de
facto make accumulations violations non-S&S.
I conclude that the preponderance of
the evidence establishes that it was reasonably
Negligence
Hargrove
assessed this violation as the result of moderate negligence because he
testified that the broken barrel hitting the roller could be heard from two
cross-cuts away in this heavily traveled and inspected area. Tr. 126-27, Ex. G-20. Little testified that there was no noise to
be heard and therefore there is no reason for management to have known about
the condition. Tr. 302-04. Highland is
correct that Hargrove’s notes to do not reflect that the rollers were audible.
In fact, his notes reflect that it was unknown as to who was aware of this
condition or how long it had existed. However, he also found the operator
should have known of this condition. Ex. S-36 pg.7.
I agree with Hargrove’s opinion that
due to the location of this condition being in a heavily traveled and inspected
area, management should have known of this condition and corrected it. Moderate negligence is appropriate for this
violation.
III. PENALITES
Under Section 110(i) of the Act, the
Commission and its judges must consider the following factors in assessing a
civil penalty: the history of the violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the
violation, whether the violation was abated in good faith and whether the
penalties would affect the operator’s ability to continue in business. The parties have stipulated that the mine is
a large mine and that the proposed penalties would not affect the operator’s
ability to continue in business. There
is no dispute that the conditions were abated in good faith or that the mine
has a significant history of violations.
The findings with regard to the gravity and negligence involved in each
citation are set forth above. I find
that the following penalties are appropriate:
Citation
No. 8492568 Vacated
Citation
No. 8492571 Vacated
Citation
No. 8492572 Vacated
Citation
No. 8494294 $436.00
Citation
No. 8494330 $7578.00
Citation
No. 8494665 $3405.00
Citation
No. 8494670 $4329.00
Citation
No. 8494674 $1304.00
IV. ORDER
Citation numbers 8492568, 8492571
and 8492572 are VACATED; citation number 8494294 is modified to affecting four
persons with a reduction in penalty; citation numbers 8494330, 8494665, 8494670
and 8494674 are affirmed as written with the penalties proposed by the
Secretary. It is hereby ORDERED that
Respondent pay penalties on the citations adjudicated herein in the amount of $17,052
within 30 days of this order.[3]
/s/
Priscilla M. Rae
Priscilla
M. Rae
Administrative
Law Judge
Distribution:
(Certified Mail)
Elizabeth L. Friary, Esq., and Alisha I. Wyatt, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Ave. North, Ste. 420, Nashville, TN 37219
Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC, P.O. Box 910810, Lexington, KY
40591
[1] The Secretary’s
exhibits will be designated as “Ex. S-#.”
Due to the partial settlement, the exhibits are not in numerical order;
however, all exhibits offered at hearing are made part of this record. The Respondent’s exhibits will be designated
“Ex. R-#.”
[2] The following is
an excerpt from the Florida Department of Transportation website: “Benson and Yuhr (2002) has shown that
borehole densities are commonly inadequate to detect geologic anomalies. For
example, ten regularly spaced borings will be required to provide a detection
probability of 90% to detect the presence of a target 75-foot diameter within
an area of an acre. The target could be
a cavity or sinkhole, a burial site, or a contaminant plume. For smaller
targets, such as widely spaced joints, 100 to 1,000 borings per acre may be
required to achieve a 90% probability of detection. Such detection
probabilities make a subsurface investigation for localized isolated targets,
such as sinkholes, fractures, or buried channels by a limited number of borings
alone, like ‘looking for a needle in a haystack’ and almost assures failure.” www.dot.state.fl.us/statematerialsofficeofgeotechnical/conference/materials/bensonyuhr.kaufman.pdf. This excerpt is provided merely to point out
that one cannot assume that a geologic anomaly is one that has existed since
the formation of the surrounding geology due to natural causes alone. It can be
the result of sudden shifts in the earth as well as from manmade excavations or
constructs.
[3] Payment is to
be made to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO
63179-0390.