DECISION
Appearances: C. Renita Hollins, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for Petitioner;Ken Fletcher, CLR, MSHA District 12, Beaver, West Virginia, for Petitioner; Mr. Huford Williams, Williams Bros. Coal Co., Inc., Mouthcard, Kentucky, pro se for Respondent.
Before: Judge L. Zane Gill
This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, against Williams Bros.
Coal Company at its Coal Hollow Mine, pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). This case
involves a single 104(a) C violation of the standard found at 30 CFR § 75.1506(a) with a total
proposed penalty of $1,657.00. The parties presented testimony and documentary evidence at
the hearing held in Pikeville, KY, on October 18, 2011. At the conclusion of the presentation of
evidence, the Court issued a bench decision
finding a violation of the standard with “low”
negligence and with gravity assessed as reasonably likely to result in a fatality that could affect
up to ten miners. The Court imposed a fine of $100.00 to be paid within 30 days of the issuance
of this written decision. This written decision adopts and adapts the bench decision in
compliance with Commission Rule 2700.69(a). The bench decision is incorporated into this
written decision to the extent it is consistent with it.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Williams Bros. Coal Company, (“the company”) operates an underground bituminous coal mine, the Coal Hollow Mine (the “mine”) near Meta, Kentucky. The mine is subject to regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to section 103(a) of the Act and spot inspections. 30 U.S.C. § 813(a). The parties stipulated that the company is the operator of the mine, that the mine’s operations affect interstate commerce, and that the mine is subject to the jurisdiction of the Mine Act. (Joint Response to Prehearing Order, ¶ 2).
In 2007, in the aftermath of the Sago mine disaster, the company was required to purchase
and install a safe haven refuge shelter by December 31, 2009. The company was required to
specify which type of refuge unit it would install and include that information in its emergency
response plan (“ERP”) for MSHA approval. (Tr. 36:19-38:19) It was also required, as a
minimum, to provide MSHA with a purchase order (“PO”) from a vendor showing a delivery
date prior to December 31, 2009. (Tr. 100:12-101:20; 118:1-5) On August 31, 2007, the
company obtained a purchase order (“PO”) from the A.L. Lee, Co. indicating a projected
delivery date of April 21, 2009. (Tr. 29:15-2; Exhibit R-1c) Before the delivery date arrived, the
company fell on hard times and shut down operations at the mine. The mine was closed from
April 2009 until September 2009; it reopened after Labor Day 2009. (Tr. 100:12-101:20)
The April 21, 2009 delivery date came and went while the mine was shut down. Shortly after the company resumed mining operations, it presented MSHA with an amended proposed ERP on September 9, 2009, which specified a second delivery date of November 5, 2009, but did not change the type of refuge unit. MSHA approved the amendment on October 30, 2009. (Tr. 60:2-13; Exhibit S-4) The refuge unit was not delivered by the November 5, 2009 deadline. (Tr. 122:3-125:4)
Inspector Keith Preece (“Preece”) traveled to the mine on November 16, 2009, to conduct a regular E01 inspection. (Tr. 23:17-25:4) He discovered that the mine lacked a safe haven shelter required by the mine’s Emergency Response Plan (“ERP”). He was aware from prior dealings and discussions with the company that they had committed to MSHA that a shelter would be delivered to the mine on the two dates mentioned above. Preece wrote the citation in question here because, despite committing twice to have a refuge unit in place, the company had not complied. (Tr. 28:23-29:21)
Shortly before the November 5, 2009 deadline, Huford Williams decided to substitute a Carbonoks refuge unit for the A.L. Lee unit specified in the ERP. (Tr. 101:24-102:17) He was convinced that the Carbonoks unit was safer. (Tr. 104:11-107:7) He executed a contract to purchase the Carbonoks unit on November 16, 2009. (Exhibit R-2b; Tr. 108:8-23) Given the last minute nature of his change of mind, Mr. Williams was not able to take delivery of the Carbonoks unit before Preece’s inspection, nor was he able to get the ERP amended to include the Carbonoks unit prior to its delivery. (Tr. 103:18-104:2) It was delivered on or about November 20, 2009. (Tr. 73:4-13) Training was required (Tr. 62:18-23), which was completed on about November 23, 2009. (Tr. 73:14-20) Mr. Williams submitted the paperwork to amend the ERP to include the Carbonoks unit on November 25, 2009. (Exhibit S-5) The MSHA office approved the amendment to the ERP to substitute the Carbonoks unit on December 3, 2009. (Exhibit S-5) Inspector Preece terminated the citation on December 9, 2009. (Tr. 73:14-74:4; Exhibit S-1)
DISCUSSION
The Citation
On November 16, 2009, MSHA Inspector Preece issued Citation No. 8236579 to the company for a violation of Section 75.1506(a) of the Secretary’s regulations. The citation alleges that:
The operator has not provided the refuge alternative and components the MSHA has accepted in the currently approved Emergency Response Plan (ERP). The ERP Plan approved on September 14, 2007, shows that an A.L. Lee shelter would be used at this mine. The distance from the portal to the face is approximately 2,400 feet. Delivery dates of 4-21-2009 and 11-05-2009 have passed and operator has not provided the refuge alternative.
The inspector found that a fatal injury was unlikely to occur, that ten persons could be affected, and that the violation was the result of high negligence on the part of the operator. The Secretary proposed a civil penalty in the amount of $1,657.00. (Exhibit S-1 and S-6)
The Violation
The company does not dispute that no safe haven shelter was in place on the date of the inspection, or that the two delivery dates had come and gone prior to the inspection. It argued that: (1) It changed its mind about which unit to use for valid reasons which it felt resulted in a better and safer unit ultimately being used; (2) It was unable to take delivery of the Carbonoks unit by the second delivery date due to factors beyond its control; and (3) It was unfair, under these circumstances, for Preece to issue a citation. The company argued that the delivery deadlines expected by MSHA were unnecessarily rigid, particularly considering the fact that the Carbonoks unit the company ultimately installed (within four days of the citation) (Tr. 53:3-15) cost considerably more than the A.L. Lee unit (Tr. 107:23-108:7) and, at least in its estimation, was a qualitatively better product. (Tr. 111:23-112:14)
It is clear that there was a violation of the standard. It avails the company nothing that it could not install the unit prior to the second delivery date because those delays are directly attributable to its general delay and its decisions to substitute safe haven units. MSHA did not care which of the three units the company considered was ultimately installed. (Tr. 55:16-21) The comparative strengths and weaknesses of the three units the company considered is not important to the legal analysis here. The change of mind did not occur until after the first promised delivery date had come and gone and within days of the second deadline. The company emphasized the substitution issue only at the last minute and in such a way that it appeared to MSHA (and the Court) to be a less-than-convincing excuse for missing the deadline. There is no evidence that MSHA exceeded its authority or acted arbitrarily in ultimately forcing the issue by citing the company for a violation of 30 CFR § 75.1506(a). I find that the company did not have a safe haven unit in place on the date of the inspection, nor did it have any legal excuse relieving it of its obligation to do so.
Negligence
Section 110(i) of the Mine Act requires that in assessing penalties the Commission must consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(I). Each mandatory standard thus carries with it an accompanying duty of care to avoid violations of the standard. An operator's failure to meet the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.
Negligence “is conduct, either by commission or omission, which falls below a standardof care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.” Id. Reckless negligence is when “[t]he operator displayed conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id.
Inspector Preece alleged high negligence. I disagree. Although the guidelines provided at 30 CFR § 100.3 are not binding on the Court, they do provide an analytical framework to assess the degree of negligence evident in these facts. High negligence is appropriate in circumstances where the operator knew or should have known of the violative condition, and there are no mitigating circumstances. I find that there were mitigating circumstances in this case that should have been factored into the negligence assessment. The company was convinced that the comparative quality of the Carbonoks unit justified the delay. It is appropriate to consider the company’s point of view as a mitigating factor. It is also relevant and appropriate to consider as evidence of mitigation the fact that mine operations were suspended for economic reasons shortly before the issuance of this citation. The combination of underlying economic distress and the additional cost of installing a refuge unit (Tr. 100:12-101:20) can be considered as evidence of the company’s good faith, which even when balanced against the procrastination underlying the missed deadlines, justifies a lower assessment of negligence. I conclude that the company exhibited low negligence.
Gravity (“Seriousness”)
The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (April 1987). The gravity analysis focuses on factors such as the likelihood of an injury, the severity of an injury, and the number of miners potentially injured. Gravity is “often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). The seriousness of a violation can be examined by looking at the importance of the standard which was violated and the operator's conduct with respect to that standard, in the context of the Mine Act's purpose of limiting violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be made assuming continued normal mining operations without abatement of the violation. Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).
The citation categorizes the gravity of an event arising from this violation as potentially “fatal” for up to ten miners, but that such an event would be unlikely to occur. The evidence supports this taxonomy, and the company did not argue against it, other than to claim that there should have been no citation written at all.
The company runs a single shift employing 11 miners. (Tr. 83:5-16) Preece testified that he based his gravity assessment in part on the fact that by regulation a refuge unit is only required where the distance from the mine portal to the working face is more than 2,000 feet, and that distance in this case was approximately 2,400 feet. (Tr. 42:4-21) He felt that the difference between the 2,000 foot minimum distance and the 2,400 foot actual distance was minimal and supported the “unlikely” designation. He also considered the fact that this mine liberates very little methane, which is presumably a major contributor to mine fires and explosions, which such a refuge unit is intended to address. (Tr. 43:4-22) I see no reason to second guess his thinking. I concur and conclude that this violation is properly classified as “unlikely” to cause a fatal injury to at least ten miners, as alleged.
Penalty
The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. 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).
The allegations in the Secretary’s petition regarding the 30 CFR § 100.3 penalty factors were not factually contested by the company at the hearing. (Exhibit S-6) I accept the Secretary’s allegations regarding the operator’s size and that the violation was abated in good faith. I have considered the history or past violations at this mine summarized in Exhibit S-6, including citation for the standard discussed above. I have discussed the negligence and gravity associated with this citation above. In addition, I am moved by the evidence of last minute diligence to abate this violation. After considering all of the penalty criteria, I assess a penalty of $100.00 for this citation.
ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§820(i), I assess a total penalty of $100.00. Williams Bros. Coal, Company is hereby ORDERED to pay the Secretary of Labor the sum of $100.00 within 30 days of the date of this decision.
/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution: (Certified and Electronic Mail)
C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue, North, Suite 420, Nashville, TN 37219
Huford Williams, President, Williams Brothers Coal Company, Inc., 258 Cantrell Road, Mouthcard, KY 41548