FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER,
Telephone: (412) 920-7240
Facsimile: (412) 928-8689
March 29, 2013
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. SE 2010-703 A.C. No. 40-03333-215887-01 Mine: Tri State One |
DECISION
Appearances: LaTonya
Todd, Esq., Office of the Solicitor, Department of Labor,
C.
Bishop Johnson, Esq., Cawood & Johnson, PLLC,
Before: Judge Andrews
This
case is before the court upon petition for assessment of a civil penalty filed
by the Secretary of Labor (“the Secretary”) pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C § 801 et seq. (the “Act”)
charging Wilcoal Mining, Inc. (“Wilcoal” or “Respondent”) with a violation of
30 C.F.R. § 75.202(b) and seeking civil penalties in the Special Assessment
amount of $51,900.00. The citation is a
Section 104(d)(1) action. Section
104(d)(1) of the Act provides, in pertinent part:
If,
upon any inspection of a coal or other mine, an authorized representative of
the Secretary finds that there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the conditions created by
such violation do not cause imminent danger, such violation is of such nature
as could significantly and substantially contribute to the cause and effect of
a coal or other mine safety or health hazard, and if he finds such violation to
be caused by an unwarrantable failure of such operator to comply with
such mandatory health or safety standards, he shall include such finding in any
citation given to the operator under this Act…
30
U.S.C. § 814
The citation at issue is the
result of an admitted violation of the following safety standard:
Protection from falls of roof, face and
ribs.
(a)
The roof, face
and ribs of areas where persons work or travel shall be
supported
or otherwise controlled to protect persons from hazards related to falls of the
roof, face or ribs and coal or rock bursts.
(b)
No person shall work or travel under unsupported roof unless in accordance with
this subpart.
30 C.F.R. § 75.202.
A hearing was held on
September 28, 2012 in
PRELIMINARY MATTER
Motions to Amend
During
the course of the hearing, Respondent moved to amend the citation to dismiss
the designation as Significant and Substantial and, effectively in the
alternative, to amend the citation to dismiss the classification as Unwarrantable
Failure. Respondent cites to numerous
cases in support of its proposition that, upon resting her case in chief, the
Secretary had not produced sufficient evidence to allow for finding that either
of these designations. These motions are
denied. The questions of whether a
violation is Significant and Substantial, as well as the result of an
Unwarrantable Failure are matters for decision and will be discussed below.
JOINT STIPULATIONS
The parties agreed at the
hearing to the following stipulations:
THE CITATION
On
February 9, 2010 at 0845 hours MSHA Inspector James Lundy (“Inspector Lundy” or
“Lundy”) issued 104(d)(1) Citation No. 8335429 to Foreman Eli Wilson Jr. (“Foreman
Wilson” or “Wilson”) at Respondent’s Tri-State One (“Tri-State”) mine. Tri-State is an underground coal mine, which
was also being inspected pursuant to an application for a thirty foot extended
cut. Tr. 22.[1] The Condition or Practice was set forth as
follows:
A
centerline has been painted on the mine roof 48 inches beyond the last row of
permanent roof supports in the number 1 entry. The last row of roof bolts measures 8 feet
from the coal face. These measurements
are obtained using a standard steel rule. A set of tracks (footprints) indicate also that
a miner has gone beyond the last row of supports as these tracks are visible on
the mine floor directly under the paint marked centerline on the roof. Historically advancing beyond roof supports
has been a major cause of mine fatalities throughout the industry. A mine foreman has painted the centerline onto
the roof. This action shows more than
ordinary neglect and is an unwarrantable failure to comply with a mandatory
safety standard. Ex. S-1.[2]
The gravity indicated by Inspector Lundy in his citation
was Significant and Substantial (“S&S”) with injury highly likely and such
injury could reasonably be expected to be fatal. One person was affected, and the negligence
was high. The violation was determined
to be the result of an Unwarrantable Failure (“UWF”).
A safety meeting was held with miners and foremen at
which the hazards and legalities were discussed, and the citation was
terminated at 0850 hours.
SUMMARY
OF THE TESTIMONY
Testimony
was taken from three individuals: Inspector Lundy, an inspector with the Mine
Safety and Health Administration; Foreman Wilson, a day shift Mine Foreman with
Wilcoal Mining on the day of the violation, and Darrell Wagner, Sr.
(“Superintendent Wagner” or “Wagner”), a Superintendent at Wilcoal Mining, who
was not present at the time of the violation. Lonnie Mink (“Foreman Mink” or “Mink”), the
Tri-State foreman alleged to have committed the violation at issue here, was
unable to testify as he had passed away in the months prior to trial.
A. James Lundy
Inspector
Lundy is a health specialist and accident investigator with the Mine Safety and
Health Administration (“MSHA”). Tr. 18. Prior
to working for MSHA, Lundy worked in the mining industry for more than twenty-two
years. Tr. 20. During that time, he
worked for fifteen years in a safety-related position. Tr. 20-21.
On
February 9, 2010 Inspector Lundy arrived at the Tri-State Mine at 6:35 A.M. Tr.
22. He was at the mine to perform the
health-related portion of an E01 inspection, specifically a dust inspection and
a noise level survey.
Upon
reaching the area of the mine he was to inspect, Inspector Lundy quickly
noticed several instances of “short bolting,” described as areas of the mine
where the roof bolts did not reach to within four feet of the mine face, as prescribed
by the mine’s roof control plan. Tr. 26, Ex. S-2. Lundy testified he observed that in three
places – the No. 1, No. 4, and No. 5 entries – and that the roof bolting
reached only to within eight feet, eight feet, and seven and a half feet from
the face, respectively.
When
he made a closer inspection of the No. 1 entry, Inspector Lundy noticed that a
centerline had been painted down a portion of the unbolted, unsupported roof.
Tr. 31. The area at the No. 1 entry had
been “dangered off” by the operator; red flags hung from the ceiling and were
anchored on the roof bolts themselves. Tr. 44-45. Using a sturdy, steel tape measurer, Lundy
determined that the centerline had been painted a total of four feet past the
last set of roof bolts, and eight feet past the second to last set of roof
bolts. Tr. 31, 40, Ex. S-3. This later
fact was emphasized by Lundy when he testified that the mine’s roof control
plan required that a person not go past the second set of roof bolts from the
mine face, and that the roof control plan defines “unsupported roof” as any
roof between the second set of roof bolts outby and the working surface. Tr. 40;
Ex. S-4
During
his testimony, Inspector Lundy explained what a centerline is and how it is
treated in common mining practice, but he was unwilling to testify as to the
personal practices of the individual responsible for the violation at issue in
this case. Tr. 88-91, 69. A “centerline”
is a line painted the length of a coal seam, which is used by the continuous
miner operator to ensure that the machine does not move too far left or right,
which could damage the coal pillars intentionally being left to prevent roof
collapse. Tr. 88-91. The centerline is
based on a surveyed line, made on the surface by engineers, that is translated
into the underground mine workings.
In
the No. 1 entry, Inspector Lundy noticed a set of footprints beneath the
centerline, also extending under the unsupported roof. Tr. 31, Ex. S-3 There appeared to be a total of four or five
footprints, which Lundy interpreted to mean that whoever had painted the
centerline had been looking at the line, rather than at the area of bolted
roof, had passed beyond the appropriate stopping point, and had turned and left
the area prior to painting all the way to the working face. Tr. 44.
When
asked whether he was able to immediately determine who had painted the
centerline, Inspector Lundy testified that, by the end of the day, he had
spoken with both Foreman Wilson, who denied painting the centerline, and
Foreman Mink, who confessed to performing the painting. Tr. 41. Lundy elaborated that Mink told him he did not
actually go beyond the last set of bolts; rather, he claimed to have painted
the line by standing under supported roof, and then leaning out with his arm to
paint the rest of the line, as completed.
Inspector
Lundy has known Foreman Mink for thirty-five years or more, the two having
worked together around 1978 or 1979. Tr. 46. Mr. Mink was an experienced miner even at that
time.
When
Inspector Lundy issued his citation, he marked it as both S&S and UWF. At the time he issued the citation, Lundy was
aware there had been past violations of roof and rib support. Tr. 57-58. His reasoning for finding that the violation
was S&S was based on his observation that an individual had been exposed to
unsupported and unexamined roof, that if the violation had been allowed to
continue, it would increase the risk of danger or harm, and that the most
likely result of an accident under the violative conditions would be the death
of the miner. Tr. 48, 51-52. Lundy said
that he considered there to have been a high degree of negligence on the part
of the operator because Foreman Mink was an agent of the operator (via his role
as foreman), because Mink was responsible for setting all of the work
directives in that section of the mine, and because Mink was responsible for
“setting the tone” for operation in that section of the mine. Tr. 52-53. Lundy justified the Unwarrantable Failure
designation, citing what he considered a “serious lack of reasonable care” by Mink
in going under the unsupported section of roof. Tr. 55. Lundy also said he did not believe it was a
mistake, claiming that if it had been a mistake, he would expect to have seen
something written in the mine’s log, or a barrier placed in the mine to prevent
that type of accident occurring again, or some other action that would have
helped indicate that there was a safety issue. Tr. 56. Lundy did not have any insight into the actual
occurrence of the violation, beyond what he was able to intuit from the
available evidence, but during testimony he said “I feel like it was
intentional.”
When
asked whether he believed that every violation of 30 C.F.R. 75.202(b) was
S&S, Inspector Lundy replied that, in thirty years, he had never seen one that
was not so designated. Tr. 84. When
pressed, he added that he believed that all such violations should be considered
S&S.
B. Eli Wilson Jr.
Foreman
Upon
Inspector Lundy’s discovery of the violative conditions, Foreman Wilson joined
in the examination. Tr. 99-100.
Foreman
C. Darrell Wagner, Sr.
Superintendent
Wagner was employed as a superintendent at Tri-State on the day of the
violation, but he was not actually at work that day. Tr. 123-4. He has experience in the mining industry
beginning in 1977 and continued to the day of his testimony. Tr. 116. During his testimony, Wagner offered an
explanation of a foreman’s daily duties in the Tri-State mine: the operations
are described as a “cycle,” with the movement of cutting and bolting teams
moving in a continuous motion throughout the mine, with the former following
the latter. Tr. 136-37. In that context,
the mine foreman’s responsibility is not to tell the bolting team where and how
much to bolt, but to facilitate the safe flow of this “cycle.” Tr. 137.
Based
on his knowledge of the Tri-State Mine, Superintendent Wagner testified that
during the normal course of operation in the mine, the final rows of roof bolts
would have been installed as per the roof control plan prior to resuming
continuous miner operation in the No. 1 entry. Tr. 118. Wagner said that he had not noticed any
problems with the roof in the No. 1 entry, and neither was he aware of any
problems with roof collapses in the mine previously. Tr. 119, 118. Wagner testified that the area probably had
been “dangered off,” but he did not immediately inspect the area after talking
with Foreman Mink. He was also aware of
situations where air-flow in a mine can cause the ribbons hanging from the roof
to become loose and dislodge themselves. Tr. 130-31. Wagner expressed some confusion regarding the
cutting of the No. 1 entry, explaining that he was not sure whether it was “short
cut” or “short bolted.” Tr. 138. He explained
that when an area is “short cut,” it is only cut eight feet, rather than the
standard twenty, and shared his belief that this was done by foremen who are
worried about making it appear as though they have accomplished more during
their shift than has actually occurred. Tr. 138-39.
Superintendent
Wagner testified that Foreman Mink admitted to making the center line, but not
to going under unsupported roof, that Mink said he reached out to make the
mark. Tr. 122, 130. Because the mine
advances daily, and because he was not there on that day, Wagner did not
inspect to see whether or not footprints were apparent on the floor beneath the
centerline. Tr. 124. If there had been
what Wagner considered to be definitive proof that the violation was an intentional
act, beyond what was in Inspector Lundy’s citation, he would have discharged Mink
for working beneath very dangerous, unsupported roof. Tr. 125-26, 133. Wagner was clear in his testimony that he
believed Mink’s painting of the centerline was an accident because, he further
speculated, had the act been intentional, the line would have run all the way
to and down the face, rather than reaching an arbitrary point in the ceiling
and ending there. Tr. 134, 140.
During
his testimony, Superintendent Wagner contradicted the opinion of Foreman Wilson
with regard to the value of visual inspections; he testified that with
knowledge of the history of a mine’s roof, and a visual inspection for cracks,
one can reasonably determine whether an unsupported roof is likely to be safe
from roof falls. Tr. 126-127.
CONTENTIONS OF THE
PARTIES
Respondent
argues that the citation is valid and accurate only insofar as it relates to
the fact of the violation. Respondent
contends that the violation was not S&S, or, in the alternative, if the
violation were found to be S&S, that it was not the result of an UWF. Moreover, Respondent asserts that the size of
the penalty as issued is inappropriate, since it is the result of a Special
Assessment pursuant to 30 C.F.R. § 100.5, a program which it alleges creates a
violation of Respondent’s right to Due Process and is a violation of the Eighth
Amendment prohibition on Excessive Fines.
The Secretary
maintains that the citation as issued is valid and accurate, that the violation
was S&S, and was the result of an UWF to follow a mandatory safety standard.
It is argued that this violation was
intertwined with the citation issued for short bolting, and that the work
beyond the last row of bolts was deliberate and intentional and demonstrates at
the minimum a serious lack of reasonable care. Further, the Secretary contends that the size
of the civil penalty is appropriate, in light of the gravity of the violation. The Secretary also contends that there is no
violation of Due Process since there is notice by regulation of the potential
for penalties to be assessed, and the fine in this case cannot be found
excessive since it is less than the maximum established by law.
ANALYSIS AND
CONCLUSIONS
The
facts and even speculation provided through testimony at trial do reveal much
about the ordinary operation of a mine with respect to the centerline and its
function in longwall mine operations. Inspector
Lundy testified about the process of painting a centerline. Survey stations that resemble car keys are
driven into the mine roof along a surveyed line every 200 feet. Reflective sight rods hang from the survey
station “keys”. A Foreman looking outby
down the entry aligns the rods until one vanishes and he paints a mark on the
roof at that spot, indicating the center of the workplace. Tr. 42, 43, 89,
90. Superintendent Wagner also described
the process of painting a centerline as looking at the sight rods, painting
dots on the roof, connecting the dots, and repeating this sequence typically
going all the way to the face and then painting down the face. Tr. 119, 120, 132,
136, 137.
Although
Inspector Lundy testified that a centerline need not extend to the face, he
also admitted that it had been his practice and was common practice to paint to the face. Tr. 69, 83-84. It is easily understood why a visible line to
and down the face would be a particularly helpful guide to the continuous miner
operator to ensure proper positioning of the machine for the next cut into the
coal seam. This is because properly
positioning the cut affects the amount of pillar that must be left for roof
support in order to comply with the mine’s plan. I find the Lundy’s testimony that the
centerline “need not” extend to the face too vague and unsupported to be accorded
significant probative value. It is more
credible that the centerline should have and would have been painted to the
face, and perhaps from roof down the face to the floor.
The approved roof control plan for
Tri-State does show that roof bolts are to be installed every four feet down an
entry with the last row four feet from the face. Ex. S-4, pp. 8, 9. Further, all persons must position themselves
no closer than the second “full row” of installed roof bolts outby the face, or
eight feet from the face. Ex. S-4, p. 7.
At the time of the inspection, the row of bolts that should have been
four feet from the face was missing. That
the final row of bolts had not been placed after mining paused in entry number
one, or other areas, does not establish that Foreman Mink knew of this
violation of the mine’s roof control plan when painting the centerline. I reject the speculative opinion that the
instant citation and roof bolting violation were “intertwined”.
Respondent, in its Post Hearing
Brief, agrees that the footprints were left by Foreman Mink when he advanced
beyond the last row of bolts while painting the centerline. Respondent’s Post
Hearing Brief, P. 2. Both Inspector
Lundy and Foreman Wilson observed the short bolting, the painted centerline, the
footprints, and the danger flag at the last row of permanent supports. Tr. 31,
32, 44, 68, 100, 101. Lundy observed a
toe print pointing outby, with the heel toward the face, but also saw prints
with the toes going forward. Tr. 44, 66, 67.
Based on the descriptions of how a centerline is painted, it would be reasonable
to conclude a person would face in both directions while accomplishing this
task by painting marks or dots while walking backwards and painting the
connecting line walking forward. The
more important question is whether Mink saw the flag and discovered the missing
row of bolts before painting on the
unsupported roof.
Because
Foreman Mink was not available to provide testimony, nothing could be presented
with respect to first-hand or personal knowledge of the circumstances
surrounding his actions at the time he actually painted the centerline,
including any awareness of short bolting. All witness testimony is limited to the
discovery of the violation and hearsay about conversations with Mink. As near
as can be gleaned from the testimony presented at trial, prior to his death
Mink admitted to painting the centerline, but denied having walked beyond the
last row of bolts to do so. Inspector Lundy testified that Mink admitted
painting the center line but claimed he did not go beyond the last set of
bolts; rather, he leaned out to paint the rest of the line. Tr. 41. Similarly, Superintendent Wagner testified
that Mink told him that he painted the center line, though again stating that
he reached out to paint the line and did not walk under the unsupported roof.
Tr. 122, 130. Apparently, Mink also voiced
his opinion that it was not a “big deal”. Tr. 41.
The “reaching out” excuse attributed
to Foreman Mink is not supported on this record. Inspector Lundy pointed out that this would
not be consistent with footprints directly under the centerline, eight feet
past the second full row of bolts outby the face Tr. 40, 44. Also, he believed a roof height of seven feet
would not allow leaning out at arm’s length from the last bolts to make a four
foot line, and even in attempting this Mink would be looking inby towards the
face, the wrong direction for alignment since the sight rods are located outby
down the entry. Tr. 42-44. Further,
Foreman Wilson essentially corroborated Lundy’s testimony, also noting a
footprint, although not certain about the number present under the centerline.
Tr. 100, 101. In addition to the stipulation of the fact of the
violation, I specifically find that Foreman Mink, deceased at time of trial,
violated 30 C.F.R. 75.202(b) by walking under unsupported roof performing the
work of painting a centerline in the number one entry of the Tri-State One coal
mine.
The Secretary contends that the
violation was deliberate or intentional.
Respondent believes the act was accidental and not intentional. There were apparently no witnesses to the
centerline painting. Inspector Lundy
testified that the violation was intentional, opining that Foreman Mink
knowingly went beyond the danger flag and the bolts but did not report the
hazard or barricade the area. Tr. 56, 78.
But Lundy also testified Mink stopped painting “when he found out that
he had not exercised reasonable care in positioning himself.” Tr. 76. This testimony is found to be inconsistent,
on the one hand suggesting knowledge of the circumstances before advancing
to four feet from the face, and on the other hand suggesting discovery of his compromised
position after walking under unsupported roof. Therefore, the opinion that Mink formulated
intent to work under the unsupported roof is not credible. While it is true Mink had to go past the flag,
this does not mean that he saw it, as he was most likely concentrating on
marking a correct centerline. Similarly,
he was most likely unaware of the missing row of bolts, until he advanced to
that spot and discovered he was under unsupported roof.
When attempting to characterize the
act leading to the citation at issue, I find the testimony of Superintendent
Wagner to be more credible. Wagner noted
that Foreman Mink stopped painting after four feet, opining that Mink had seen
he was inby the last bolts and realized he had made a mistake. Tr. 133, 135,
137. Wagner believed it was an accident,
because if deliberate Mink would have painted to and down the face. Tr. 134,
140. Although Inspector Lundy testified
to his belief that the act was intentional, I note that if a centerline were
painted into an unprotected area by a Foreman unconcerned with personal safety,
it would make sense to do so only if painted all the way to the face as a proper
guide to the continuous miner operator. Wagner
also testified that this was a one time occurrence, not something that was
practiced at the mine. Tr. 134, 135. There
is nothing in the record establishing this type of violation as a regular or
recurring practice at Tri-State. Accordingly,
the better view is that Mink’s act, although a violation of the safety standard
cited, was nevertheless an inadvertent or careless mistake.
A. Whether the violation
was Significant and Substantial
The
S&S terminology is taken from section 104(d)(1) of the Act which
distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard.” A violation is
properly designated S&S “if, based upon the particular facts surrounding
that 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).
Respondent contends that Inspector Lundy’s classification of the violation of 30 C.F.R. 75.202(b) as S&S should not be upheld because the Secretary has failed to show that the violation meets the third requirement of the “Mathies test.” The Mathies test requires that, in order to uphold a designation of a violation as S&S, the Secretary must show (1) the underlying violation of a mandatory health or safety standard, (2) a discrete safety hazard - that is, a measure of danger to safety contributed to by the violation, (3) a reasonable likelihood that the hazard contributed to will result in an injury, and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). The violation is conceded and the second element is met because there was a measure of danger contributed to when the Foreman walked beyond the last row of bolts and painted a centerline on unsupported roof. Respondent does agree that an injury due to roof collapse would be of a reasonably serious nature, and the fourth element is also met. Tr. 13.
Respondent’s argument is that
the Secretary failed to show the reasonable likelihood of an injury based on
the hazard because there was no injury and no history of mine roof collapses in
this mine. This approach misses the intention of the third Mathies
element. “The test under the third element is whether there is a reasonable
likelihood that the hazard contributed to by the violation … will cause
injury.” Musser
Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). “The Secretary need
not prove a reasonable likelihood that the violation itself will cause injury.”
Respondent further maintains that the Secretary is
arguing in favor of a presumption that every instance of a violation of 30
C.F.R. § 75.202(b) is a Significant and Substantial violation. However, in her Reply Brief, the Secretary
states that she “has presented no such argument,” and “has made no such request
at trial, nor … raised this argument in her brief.” Secretary’s Reply Brief, p.1. Therefore, there is no need to discuss the
question of presumptive S&S.
B. Whether the violation was the result
of high negligence
Negligence “is conduct, either by commission or omission,
which falls below a standard of 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 be on the
alert for conditions and practices in the mine that affect the safety or health
of miners and to take steps necessary to correct or prevent hazardous
conditions of practices.”
The conduct that led to the instant citation was
committed by Foreman Mink, a supervisor, and while he did act alone the
negligence is imputable to the operator for the purpose of penalty assessments
and UWF determinations. Nacco Mining Co.,
3 FMSHRC 848 (Apr. 1981); Whayne Supply
Co., 19 FMSHRC 447, 451 (Mar. 1997);
C. Whether the violation
was the result of an Unwarrantable Failure
By
its definition, an UWF suggests more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). UWF is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or the “serious
lack of reasonable care.”
The Commission has also made clear that it is
necessary for a judge to consider all relevant factors, rather than
relying on one to the exclusion of others. Windsor Coal Co., 21 FMSHRC
997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 125, 129-36
(Mar. 2007) (remanding unwarrantable determination for further analysis and
findings when judge failed to analyze all factors). While an administrative law judge may
determine, in his discretion, that some factors are not relevant, or may
determine that some factors are much less important than other factors
under the circumstances, all of the factors must be taken into consideration
and at least noted by the judge. IO Coal Company, 31 FMSHRC 1346, 1351
(Dec. 2009).
When
addressing his reasons for designating the violation as UWF, Inspector Lundy
couched much of his answer in his belief that there was a non-negligible degree
of intentionality behind the act. However, in this case the only insight into intention
must be based on evaluation of the available evidence. Lundy and Superintendent Wagner offer
alternate interpretations of the footprints found in the mine. Lundy suggests that they are the result of an
intentional act to travel into an unprotected area of the mine, while
Superintendent Wagner suggests that there was some human error involved in the
activity. I have already found the act
was inadvertent or careless, but that such carelessness cannot be a mitigating
factor in assigning the degree of negligence.
In this context, I further find that the conduct was the result of a
serious lack of reasonable care. Of
course, whether the conduct was otherwise “aggravated” will hinge on weighing
the six factors identified by the Commission and set forth above.
When
Inspector Lundy testified that the violative condition existed for ten hours,
he must have been referring to the presence of the paint or lack of bolts, rather
than the amount of time Foreman Mink was under the unsupported roof. Tr. 87-88. The citation was for traveling or working
under unsupported roof, not for paint on the roof, and it is unlikely that Mink
was in the compromised position for more than a few seconds to perhaps a minute
when he realized a row of bolts was missing.
Hence, the length of time the violation existed was probably very brief.
The
violative condition was not extensive, but it should be noted that while much
has been said about Foreman Mink being four feet beyond the last row of bolts,
the mine’s plan specifies, with exceptions not relevant here, that miners may
not go beyond the next to last row or second row of bolts outby the face. Tr.
40, 41; Ex. S-4. Therefore the violation
was actually to the extent of eight feet beyond where Mink should have stopped
painting.
There
was no need for the operator to have had prior notice that greater efforts were
necessary to keep persons from working under unsupported roof. This is because the danger presented is so
well and universally recognized in mining.
A reasonably prudent person familiar with the mining industry and the
protective purposes of 30 C.F.R. §75.202(b) would recognize and follow the
specific prohibition in that safety standard. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990); and BHP Minerals International Inc., 18
FMSHRC 1342, 1345 (Aug. 1996). In
addition, traveling under unsupported roof into an unprotected portion of an
underground mine entry is something that every miner should know not to
do. It is something that all miners at
Tri-State are told not to do on their first day. Procedures exist for ensuring that these
areas are adequately marked, flagged, or “dangered off”.
In
this case the violation was abated quickly, five minutes after the citation was
issued and following a safety meeting with miners and foremen.
The
centerline paint extending four feet beyond the last row of roof bolts together
with visible footprints on the floor under that paint made the violation very
obvious. And, the presence of any person
under unsupported roof does pose a high degree of danger. Respondent makes much of the apparent lack of
history of roof falls at this mine in an attempt to show there was no danger to
Foreman Mink working under unbolted roof.
But this history, even if correct is not persuasive and indeed, not even
relevant. Supervisor Wagner testified
that roof “could fall in and kill you.” Tr. 123,126. And Foreman Wilson agreed, testifying that
roof falls can occur even under supported roof. Tr. 106. Further, both testified that working under
unsupported roof would call for immediate termination of employment of the
offending miner, illustrating just how serious this conduct is regarded. Tr.
99, 123, 125. This testimony not only
undermines the argument there was no danger, but also reveals recognition by
the operator that such conduct cannot be tolerated. Clearly, the violation posed a high degree of
danger.
There
was knowledge of the existence of the violation, since Foreman Mink’s conduct
is imputed to the operator. It was
reported that Mink believed painting beyond the last row of bolts was not a “big
deal.” Tr. 41.
The
important factors in this analysis are the high degree of danger, the knowledge
of the violation, and that no prior “fair notice” was required for this type of
violation. Even if brief, not extensive,
and abated in good faith, the UWF determination is supported. Lion Mining Company, 19 FMSHRC 1774 (Nov. 1997).
D. Penalty
The authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Act is well-established. Section 110(i) of the Act delegates to the
Commission and its judges the power to assess all civil penalties provided in
the Act. 30 U.S.C. § 820(i). The duty of
proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a), 820(a).
Consequently, when an operator notifies
the Secretary it intends to challenge a penalty, the Secretary petitions the
Commission to assess the penalty. 29 C.F.R. § 2700.28. In assessing civil monetary penalties, the
Commission [ALJ] shall consider the following 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 of 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
penalty here was specially assessed at $51,900.00. For the following reasons, I do not agree
that a special assessment is warranted in this case. First, while the Secretary did present some
history of roof support violations under 30 C.F.R. §75.202(a), there is no
history of violations of §75.202(b), persons traveling or working under
unsupported roof. The testimony to the
effect that such conduct is not a regular practice or recurring event at the
mine is, therefore, found credible. Further,
there is the mine’s clearly stated policy of zero tolerance for such conduct
with immediate termination as the consequence for not following the universally
recognized prohibition. In addition, I
have found Foreman Mink’s act was inadvertent or careless in nature, and there
is no compelling evidence of the formulation of intent to ignore the rule. To the contrary, his statements, reported by
others, appear defensive and calculated to avoid the consequence of
termination. Since I do not agree with
the special assessment, Respondent’s Constitutional arguments will not be addressed.
After
carefully considering all of the facts presented on this record, I have
affirmed the citation as issued.
However, I find the special assessment to be inappropriate. Upon weighing and balancing the penalty
discussion above with the six statutory penalty criteria, I assess a civil
penalty in the amount of $9,000.00.
ORDER
For the reasons set forth above,
the Citation No. 8335429 is AFFIRMED,
as indicated, with reduction of the penalty. Wilcoal Mining, Inc. is ORDERED TO PAY the Secretary of Labor the sum of $9,000.00 within
30 days of this decision.[4]
Kenneth
R. Andrews
Administrative
Law Judge
Distribution: (
LaTonya Todd, Esq., Department of Labor, Office of the
Solicitor, 211 7th Avenue North Suite 420, Nashville, TN 37219
C. Bishop Johnson, Esq., Cawood & Johnson, PLLC, 108
Kentucky Avenue, on the Courthouse Square – P.O. Drawer 128, Pineville, KY
40977-0128
[1] “Tr.” is a reference to the hearing transcript.
[2] “Ex. S” refers
to the Secretary’s exhibits entered at hearing.
Respondent did not offer any hearing exhibits.
[3] Citation No. 8335433 was issued on February 9, 2010,
for a violation of 30 C.F.R. § 75.220(a)(1), not 30 C.F.R. § 75.202(b). Ex.
S-5.
[4] Payment should be sent to: MINE SAFETY AND HEALTH
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390,