FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2536
303-844-5267/FAX 303-844-5268
April 11, 2013
|
SECRETARY OF LABOR, |
: : : : : : : : : : : : : |
CIVIL PENALTY PROCEEDINGS Docket No. WEST 2009-1219 A.C. No. 05-04674-190681 Docket No. WEST 2009-1353 A.C. No. 05-04674-193569-02 Docket No. WEST 2011-0084 A.C. No. 05-04674-231645-01 Mine: Elk Creek Mine |
DECISION
Appearances: Emily B. Hays, Esq., and Natalie E. Lien, Esq., Office
of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for Petitioner;
Page H. Jackson, Esq., and Meredith A. Kapushion, Esq., Jackson
Kelly, PLLC, Denver, Colorado, for Respondent.
Before: Judge Manning
These cases are before me upon
petitions for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration (“MSHA”), against Oxbow
Mining LLC, (“Respondent” or “Oxbow”) pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act”
or “Mine Act”). The parties introduced
testimony and documentary evidence at a hearing held in Grand Junction,
Colorado and filed post-hearing briefs.
Oxbow
operates the Elk Creek Mine (“Elk Creek”) near Somerset, Colorado. A total of 13 section 104(a) citations were
adjudicated at the hearing. The
Secretary proposed a total penalty of $53,256.00 for these citations and orders.
I. BASIC
LEGAL PRINCIPLES
A. Significant
and Substantial
The
Secretary alleges that the violations discussed below were of a significant and
substantial (“S&S”) nature. 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) (2006). 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).
In order to establish the S&S nature of a violation, the
It
is the third element of the S&S criteria that is most difficult to apply.
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 upon the particular facts surrounding the violation
and must be made in the context of continued normal mining operations. Texasgulf,
Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a
reasonable likelihood that the violation itself will cause injury.” Cumberland
Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals,
Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).
The
S&S nature of a violation and the gravity of a violation are not
synonymous. The Commission has pointed out that the “focus of the seriousness
of the violation is not necessarily on the reasonable likelihood of serious injury,
which is the focus of the S&S inquiry, but rather on the effect of the
hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550
(Sept. 1996). The Commission has
emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C.
§ 814(d)(1), it is the contribution of a violation to the cause and effect
of a hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC at
1575. With respect to citations or orders alleging an accumulation of
combustible materials, the question is whether
there was a confluence of factors that made an injury-producing fire and/or
explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-71 (May 1990).
Factors that have been considered include the extent of the accumulation,
possible ignition sources, the presence of methane, and the type of equipment
in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC
at 500-03.
B. Negligence
The
Secretary defines conduct that constitutes negligence under the Mine Act as
follows:
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. Under the Mine Act, an operator is held to a high standard of care. 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 or practices. The failure to
exercise a high standard of care constitutes negligence.
30 C.F.R. §
100.3(d).
II.
DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A.
Citation Nos. 6688118 and 6688119; WEST
2009-1219
On May 14, 2009,
MSHA Inspector Jack William Eberling issued Citation No. 6688118 under section
104(a) of the Mine Act, alleging a violation of section 75.1731(b) of the
Secretary’s safety standards. The
citation states, in part:
The 48 inch wide belt was rubbing the structure in
two places on the operating 2nd North Conveyor. . . . The contact was so hard that the steel hanger
was becoming discolored from the apparent heat on the leading contact
edge. The hanger was stripping belt
fabric in strands that were on the trailing edge of the approximate 8 inch wide
hanger. . . .
The second contact was near the tailpiece between
the first two sets of trough rollers outby the rail pulley. . . . The friction was so intense that the belt
flattened the steel crossbar for a span of 22 inches long by 1 inch wide. . . .
(Ex. G-26).
Inspector Eberling determined that an injury was reasonably likely to
occur and that such an injury could reasonably be expected to result in lost
workdays or restricted duty. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that one person would be affected. Section 75.1731(b) of the Secretary’s
regulations requires that “conveyor belts must
be properly aligned to prevent the moving belt from rubbing against the
structure or components.” 30 C.F.R. § 75.1731(b). The Secretary proposed a penalty of $946.00
for this citation.
Also on May 14,
2009, Inspector Eberling issued Citation No. 6688119 under section 104(a) of
the Mine Act, alleging a violation of section 75.1731(a) of the Secretary’s
safety standards. The citation states,
in part, “belt was rubbing a locked up return roller so hard, it was stripping
rubber and exposing fabric an inch from the edge of the belt[.]” (Ex. G-28).
Inspector Eberling determined that an injury was reasonably likely to
occur and that such an injury could reasonably be expected to result in lost
workdays or restricted duty. Further, he
determined that the violation was S&S, the operator’s negligence was moderate,
and that one person would be affected.
Section 75.1731(a) of the Secretary’s regulations requires that “damaged 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 belt conveyor components, must be
repaired or replaced.” 30 C.F.R. § 75.1731(a). The Secretary proposed a penalty of $946.00
for this citation.
1.
Summary of Testimony
Inspector
Jack William Eberling issued Citation No. 6688118 on May 14, 2009, near the #1
entry, #1 crosscut, for a violation of section 75.1731(b). (Tr. 16-17, 45). The inspector issued the citation because a
misaligned belt was rubbing against the steel hanger in two places near the
head pulley due to a missing roller, causing the belt to strand and fray. (Tr. 18, 42; Ex. G-41). The contact at one of the friction points was
not constant. (Tr. 54). Elk Creek mine is a “gassy mine” that
liberates more than one million cubic feet of methane or other explosive gases
during a 24-hour period. (Tr. 16-17).
The fire
resistant rubber had worn off the return belt, leaving combustible fabric
strands hanging off the belt and accumulating below the hanger. (Tr. 19, 26).
The hanger itself became so hot that the steel began to discolor. Based upon his observations and experience,
Inspector Eberling was concerned that the steel and belt were hot enough to
cause a fire. (Tr. 22). The edges of the return belt were frayed and
mixed with coal dust, coal fines, and possibly lubricants, which are all
combustible. (Tr. 27). Due to the weight of the coal, the top belt
was rubbing against a steel cross member and had worn away half an inch of the
steel for a length of 22 inches. (Tr.
20, Ex. G-36). Inspector Eberling
concluded that the belt had been misaligned for two or three shifts due to the
amount of damage it sustained. (Tr. 28).
Inspector
Eberling also testified that he issued Citation No. 6688119 on May 14, 2009,
for a violation of section 75.1731(a) relating to and in the same vicinity as
the misalignment referenced in Citation No. 6688118. (Tr. 29).
The misalignment caused the bearing of the belt to seize, damaging both
the belt and the roller. (Tr. 30).
The damage to
the belt and roller created a fire hazard, testified Inspector Eberling. Contact between the belt and the roller
caused “hard friction,” which led to the rubber belt rubbing against the end of
the hard steel roller and stripping shavings off of the belt. (Tr. 31-32, Ex. G-36 at 3). The belt also pushed against the hanger,
grooving the steel and driving the edge of the belt down. (Tr. 30).
The shavings from the belt accumulated beneath the belt. (Tr. 32).
The belt was worn enough to reveal its combustible inner fabric. (Tr. 33).
The inspector worried that the entire belt could split, exposing more
combustible material. (Tr. 32).
Inspector
Eberling testified that Citation No. 6688119 was S&S. Combustible belt material, belt shavings,
coal fines, and coal on the belt were all exposed to the friction between the
belt and the hanger. (Tr. 35). This combination of fuel and a heat source
produced a reasonable likelihood of fire.
Id. The inspector also believed that the
misaligned belt could produce sparks.
(Tr. 36). A fire would likely
lead to a lost-time injury due to its production of toxic fumes. (Tr. 37).
There were no CO monitors in the area, but there was an atmospheric
monitoring system (“AMS”) for carbon monoxide detection. (Tr. 37-38, 88).
Inspector
Eberling designated that Citation No. 6688119 resulted from moderate negligence
on the part of Respondent. (Tr.
38). The inspector estimated that the
violative conditions existed prior to the belt move of the previous shift
because there “was a long-term accumulation of problems” that he testified
occurred over two to three shifts. (Tr.
37). Inspector Eberling easily saw the
damage to the belt and he distinctly smelled burning rubber. (Tr. 33).
Although the operator’s records indicate that the area was inspected, no
one recorded the hazards. (Tr. 38). The operator’s examiners should have found
these conditions. (Tr. 39).
Fred
English, a member of the safety division at Elk Creek Mine, testified that
after a belt is moved in the mine, belt specialists “train” the belt with coal
on it to ensure that it is not misaligned.
(Tr. 86). He testified that the
AMS has a 180 second delay and that the belt is wet throughout its entire
length due to water spray systems used to control dust. (Tr. 92-93).
A deluge system also provides fire suppression along the belt at head
pulleys, drive motors, belt banks, and fifty feet past the drive motors. (Tr. 93).
English testified that Inspector Eberling designated every citation
concerning friction on belts as S&S.
(Tr. 99-100). When asked if there
was a misalignment of the belt that caused the belt to push against the steel
hanger, English admitted that there “was some friction violation, yes.” (Tr. 104).
With regard to the second point of contact cited in Citation No.
6688118, English agreed with the inspector that the belt was flattening the
steel crossbar at a 22 inch-wide point.
(Tr. 106). English also agreed
with the inspector that the roller in the area cited in Citation No. 6688119
was locked-up and flattened at the point of contact with the belt. (Tr. 107).
He testified that the belt cited in Citation No. 6688119 had exposed
white fabric that was visible at the point of contact. Id. English also testified that there is no
difference between belt fines and coal fines.
(Tr. 109).
2.
Discussion and Analysis
The Secretary argues that both Citation Nos.
6688118 and 6688119 were S&S because the underlying conditions violated
safety standards and contributed to the hazard of a belt fire. Hot, dry friction points provided an ignition
source and the inner-fibers of the damaged belts mixed with coal fines and
fluids are a fuel source that is as combustible as coal fine
accumulations. The belt misalignment
existed for several shifts and a belt fire would cause smoke inhalation and
other injuries to miners. Although the
AMS may warn of fire, it will not prevent fire-related injuries.
Respondent argues that neither violation was
reasonably likely to lead to an injury and therefore neither is properly
designated as S&S. The belts are
over 1200 feet long and only intermittently contacted the friction points,
which would not produce enough heat to ignite a fire. The belt itself was unlikely to serve as a
fuel source. The belt was also equipped
with multiple water sprays, CO sensors, and the area around the belt was wet
and muddy. The Elk Creek Mine has never
had a belt fire and this area had multiple means of egress.
I find that that
both Citation Nos. 6688118 and 6688119 were properly designated as
S&S. Respondent violated both sections 75.1731(b) and 75.1731(a). Each violation contributed to the safety
hazard of a fire, which could easily cause a variety of serious injuries. I credit Inspector Eberling’s testimony that
waters sprays and an AMS did not remove the S&S nature of these citations.
The
question of whether a fire was reasonably likely to cause an injury is,
however, the critical one. When evaluating the reasonable likelihood of a fire,
ignition, or explosion, the Commission has examined whether a “confluence of
factors” was present based upon the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). Some of the factors
include the extent of accumulations, possible ignition sources, the presence of
methane, and the type of equipment in the area. Utah Power & Light Co.,
12 FMSHRC 965, 970-71 (May 1990); Enlow
Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).
The ignition source here is the friction caused by the contact at
several points between the belt and its metal frame. Although this contact was only intermittent,
I credit Inspector Eberling’s testimony that enough heat was created to be an
ignition source, especially when I consider that the contact was hard enough to
flatten a portion of the metal and strip away pieces of the belt. I also credit the inspector’s testimony that
the interior fines from the belt are combustible, testimony that Respondent’s
own witness confirmed when English said that belt strands were no different
than coal fines. Respondent’s argument
that fibers were not a cause of the Aracoma fire has no bearing here. The fact that belt fibers had no part in the
Aracoma fire does not exclude belt fibers from creating a fire hazard in other
situations. The belt fibers in the cited
area were mixed with coal fines and combustible lubricants, making them even
more likely to ignite. In addition, the
Commission has ruled that, when a mine liberates large amounts of methane, that
hazard should be taken into consideration in the S&S analysis, even if the
methane levels were not dangerous at the time of the citation. See Youghiogheny
& Ohio Coal Co., 9 FMSHRC 673, 678 (1987).
I find that Citation
Nos. 6688118 and 6688119 were properly designated as the result of Respondent’s
moderate negligence. A mine fire is
highly dangerous to miners. I credit the
inspector’s testimony that the condition existed for more than one shift. The inspector testified that the conditions
were obvious to his sense of sight and smell.
Mine management should have known of the conditions, making the moderate
negligence designations appropriate. A penalty
of $1,000.00 is appropriate for each violation.
B.
Citation
Nos. 6688120 and 6688121; WEST 2009-1219
On May 20, 2009,
Inspector Eberling issued Citation No. 6688120 under section 104(a) of the Mine
Act, alleging a violation of section 75.1731(b) of the Secretary’s safety
standards. The citation states, in part:
The 52 inch wide belt was making hard friction
contact on the first five steel hangers outby the tail piece on the operating
2nd South Conveyor in the 2nd South Longwall section. . . . The contact was so hard that the about one
half inch thick belt was turning down at the edge and pushing up a hump in the
belt
(Ex. G-30). Inspector Eberling determined that an injury
was reasonably likely to occur and that such an injury could reasonably be expected
to be fatal. Further, he determined that
the violation was S&S, the operator’s negligence was moderate, and that nine
persons would be affected. Section 75.1731(b)
of the Secretary’s regulations requires that “Conveyor belts must be properly aligned to prevent the moving belt from
rubbing against the structure or components.”
30 C.F.R. § 75.1731(b). The
Secretary proposed a penalty of $10,437.00 for this citation because the
inspector determined that the violation could reasonably be expected to lead to
fatal injuries.
On May 27, 2009,
Inspector Eberling issued Citation No. 6688121 under section 104(a) of the Mine
Act, alleging a violation of section 75.1731(a) of the Secretary’s safety
standards. The citation states, in part:
The 52 inch wide belt was making hard frictional
contact on a steel pulley support bracket opposite the walkway side of the 3rd
South Conveyor in the 1 entry about 30 feet inby 14 crosscut. . . . The contact point was so hard that the belt,
which was about .5 inch thick, was bent slightly over the vertically mounted
support bracket and the bracket was discovered to have about .25 inch of steel
worn away
(Ex. G-32). Inspector Eberling determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that nine persons would be affected. The Secretary also proposed a penalty of
$10,437.00 for this citation.
1.
Background Summary of Testimony
On
May 20, 2009, Inspector Eberling issued Citation No. 6688120 for a violation of
section 75.1731(a) located in the 2nd South Longwall section at the 3rd South
Conveyor. (Tr. 112-13). The return belt contacted five steel hangers,
so that the belt was “turned down” at the edge and “humped up” toward the
center. The hangers were stripping the
rubber coating off of the belt and exposing the fabric. (Tr. 117-18).
The contact caused discoloration and removed the paint of all five
hangers. Three of the hangers were
grooved from the contact. (Tr.
117). Based upon his experience,
Inspector Eberling believed that this friction was giving off heat, but he
could not touch the belt safely. (Tr.
117-18). Inspector Eberling testified
that the belt had been running for almost an hour at the time he issued the
citation and usually coal or coal dust would accumulate on the belt. (Tr. 115, 119). Inspector Eberling’s notes did not include
any observations pertaining to the sloughage.
(Tr. 119-20).
Inspector
Eberling testified that Citation No. 6688120 was S&S. The cited conditions were reasonably likely
to cause an injury to a miner because the combination of loose fines, loose
belt materials, and heat from the friction presented a fire hazard. (Tr. 122).
Inspector Eberling testified that he knew the belt materials were
combustible based upon personal experience.
(Tr. 134-35). The fire hazard was
increased by the production of frictional heat from each of the five contact
points. Id. Elk Creek is also on a
five-day spot inspection and the longwall liberates more methane than any other
area in the mine. (Tr. 123). The inspector designated this citation as
fatal because the cited area would be difficult to escape in the event of a
fire due to low visibility. (Tr.
125-26). The fire would be between the
miners and both of the escapeways, testified Inspector Eberling, forcing miners
to travel 3,000 feet in blinding conditions over uneven terrain to escape. Id. Inspector Eberling did not believe that the
presence of CO monitors affected the likelihood of injury to miners. (Tr. 130).
Inspector
Eberling testified that Citation No. 6688120 resulted from Respondent’s
moderate negligence. (Tr. 131). Inspector Eberling estimated that the
condition existed for about an hour.
(Tr. 123). He believed that
Respondent should have known of this hazard.
(Tr. 133). The inspector believed
that nine miners would be affected by this hazard because any smoke from a fire
would be carried into the face and through the tailgate, affecting every miner
at the face. (Tr. 124, 127).
On May 27, 2009,
Inspector Eberling issued Citation No. 6688121 for a violation of section
75.1731(a) that occurred in the same area of the mine as Citation No. 6688120. (Tr. 136, 143). One pulley from a two-pulley assembly had
fallen, causing the belt to track over and rub against the hanger that had
supported the pulley. (Tr. 137, Ex
G-41). The conditions were exacerbated
by the complete absence of the outby assembly.
(Tr. 140). The contact between
the belt and the hanger stripped a “great deal of vulcanized rubber” off of the
belt, exposing the internal fabric and leading to accumulations of belt
materials on the hanger. (Tr. 138). The contact also wore away 1/4 inch of steel
from the hanger. Id.
Inspector
Eberling testified that Citation No. 6688121 was S&S. The violative conditions exposed miners to
the hazard of fire. (Tr. 144-45). He believed that the conditions were
reasonably likely to injure a miner. (Tr. 145).
The inspector testified that he believed Citation No. 6688121 could lead
to the fatalities of all nine miners in the section for the same reasons discussed
with respect to Citation No. 6688120.
(Tr. 145-46).
Inspector
Eberling testified that Citation No. 6688121 resulted from Respondent’s
moderate negligence. (Tr. 147). He believed that the violative condition
existed for two to three shifts based upon the damage to the belt and support
as well as the amount of coal fines covering the pulley on the ground. (Tr. 139-40).
He also testified that the mine had been cited six times in the same
quarter for violations of section 75.1731(a).
(Tr. 147).
Blas Villalobos,
a longwall foreman at Elk Creek, testified that there was contact between the
belt and steel in the area cited in Citation No. 6688120 and that Inspector
Eberling’s observations concerning the hump and turned down edges of the belt
were correct. (Tr. 185). He also testified, however, that there was no
likelihood of an injury occurring as a result of the citation because the belt
was too wet and the area too well rock-dusted for a fire to start. (Tr. 178).
Even if a fire were to ignite, the area has a fire drop, 500 feet of
fire hose, a wash-down hose, and the water spray used to lessen coal dust,
which would allow miners to extinguish a fire “within a minute.” (Tr. 180).
If there were a large quantity of smoke, the miners would travel to the
“rescue chamber,” which is 1000 feet from their gathering place in the eight
bay. Id.
Allen
Christiansen was a shift foreman at Elk Creek in June 2009 when Citation Nos. 6688120
and 6688121 were issued. (Tr. 191). Christiansen testified that Inspector
Eberling’s drawing in Ex. G-41 accurately depicted the condition cited in
Citation No. 6688121. (Tr. 193). He did not, however, know whether the belt
was rubbing because he did not see the condition while the belt was still
moving. (Tr. 201). He testified that he did not agree with the
inspector that the condition was reasonably likely to cause an injury because
the wet belt and rock-dusted floor meant that there was “really no fire
hazard.” (Tr. 195; Ex R-29). Christiansen also disagreed with the fatal
designation because miners could escape from the headgate through the intake to
Two Entry if there was smoke on the belt line.
(Tr. 197). Each miner had his own
self-rescuer. Id. The tailgate operator
can always see the AMS, but it is a ten minute walk from the tailgate to the
headgate. (Tr. 201-02).
2.
Discussion and Analysis
The
Secretary argues that Respondent violated sections 75.1731(a) and 75.1731(b),
that those violations were S&S, and that they were the result of
Respondent’s moderate negligence. The
violations contributed to the hazard of a belt fire, which was reasonably
likely to lead to a serious injury. The five friction points in Citation No.
6688120 and the friction cited in Citation No. 6688121 created ignition sources
and the frayed, exposed interior of the belt combined with coal dust and fines
provided fuel for a fire.
Respondent
argues that the Secretary failed to meet his burden of proof to show that Citation
Nos. 6688120 and 6688121 were S&S.
The inspector did not confirm that the friction points produced
heat. The wetness of the area would make
the heat insufficient to cause combustion and would extinguish any fire if
combustion were to occur. If somehow a
fire did occur, the AMS would provide early warning and the fire would not
block the escape route of the miners.
The Secretary provided no evidence that a serious injury was reasonably
likely to occur as a result of the conditions underlying Citation Nos. 6688120
and 6688121.
I find that that
both Citation Nos. 6688120 and 6688121 were properly designated as
S&S. I find that Respondent violated
both sections 75.1731(b) and
75.1731(a). Each violation contributed to
the safety hazard of a fire, which is likely to cause a variety of serious
injuries.
The
analysis of whether a fire was reasonably likely to cause an injury as a result
of Citation Nos. 6688120 and 6688121 is similar to the analysis of the same
question regarding Citation Nos. 6688118 and 6688119 discussed above. I find that friction points from a belt
rubbing on steel provided heat and an ignition source in both situations and
exposed belt fibers mixed with some amount of coal fines provided the
fuel. I credit Inspector Eberling’s
testimony concerning these conditions.
Although the area cited in Citation Nos. 6688120 and 6688121 is equipped
with more firefighting and fire suppression equipment than the area cited in
Citation Nos. 6688118 and 6688119, Citation Nos. 6688120 and 6688121 are still
S&S. Of the “confluence of factors” considered by the commission in Texasgulf, the presence of methane is an
important consideration, which the Commission emphasized in Youghiogheny & Ohio Coal. 10 FMSHRC 501; 9 FMSHRC 678. Not only is the Elk Creek Mine regulated
under 103(i) of the act, but the area cited in Citation Nos. 6688120 and 6688121
is near the long wall section of the mine, which produces the highest amount of
methane in the entire mine. The
confluence of factors present in the area cited in Citation Nos. 6688120 and
6688121 makes the violations reasonably likely to cause an injury through a
fire. A fire would dry any water on the belt in the
accumulations. I find that a mine fire,
furthermore, is reasonably likely to cause an array of serious injuries, up to
and including fatalities.
I find that
Citation Nos. 6688120 and 6688121 were properly designated as the result of
Respondent’s moderate negligence. A mine
fire is highly dangerous to miners. I
credit the inspector’s testimony that the condition existed for more than one
shift. The inspector testified that the
conditions were obvious to his sense of sight and smell. Mine management should have known of the
conditions, making the moderate negligence designations appropriate. A penalty of $10,500.00 is appropriate for each
violation.
C.
Citation
No. 6688131; WEST 2009-1353
On June 16,
2009, Inspector Eberling issued Citation No. 6688131 under section 104(a) of
the Mine Act, alleging a violation of section 75.1731(b) of the Secretary’s
safety standards. The citation states,
in part:
Loaded and operating conveyor belt in the No. 1
Entry, 2nd South Longwall section was misaligned and rubbing against an about 2
and 1/2 – inch diameter horizontal steel pipe cross member under the belt. . .
.
(Ex. G-34).
Inspector Eberling determined that an injury was unlikely to occur but
that an injury could reasonably be expected to be fatal. Further, he determined the operator’s
negligence was moderate, and that eight persons would be affected. The Secretary proposed a penalty of $1,795.00
for this citation.
1. Summary
of Testimony
On
June 16, 2009, Inspector Eberling issued Citation No. 6688131 for a violation
of section 75.1731 because he observed a top belt loaded with coal rubbing
against a cross member. (Tr. 203). The inspector testified that this condition
was similar to the conditions he described in reference to Citation No.
6688118, including the fact that the friction between the bar and belt caused a
flat spot on the bar. Id.
Inspector Eberling issued this citation in the same location that he
issued Citation Nos. 6688120 and 6688121; the Second South longwall section,
just outby the tailpiece. (Tr. 203-04).
Although
this area of the belt lacks a fire suppression system, Inspector Eberling
designated Citation No. 6688131 as unlikely because the only combustible material
present was the coal on the belt, the belt was wet, and the friction was not
“hard.” (Tr. 204-05). The inspector believed that a fatality was reasonably
likely if a fire were to start. (Tr.
205). All eight miners in the section
would be affected. (Tr. 205-07).
Inspector
Eberling testified that he designated this citation as the result of moderate
negligence because the mine examiner should have known about this hazard. (Tr. 206, 214). The inspector believed that this condition
existed for two to three shifts. (Tr.
217). He testified that this violation
was difficult to detect and that he took into consideration the fact that there
was no fuel present and that the condition was adjacent to the water sprays of
the tailpiece. (Tr. 206-07). The belt, ground, and coal were all “pretty
wet” as long as the water continued to spray.
(Tr. 211). The inspector did not observe
any damage to the belt due to the friction.
2 Discussion
and Analysis
The Secretary
argues that the inspector considered the low likelihood of ignition when he
designated the violation as non-S&S and unlikely. This violation was the result of Respondent’s
moderate negligence.
Respondent
argues that Citation No. 6688131 was a technical violation of section 75.1731(b)
that posed no actual likelihood of injury.
As the inspector himself testified, the belt was quite wet and the only
fuel present was the coal on the belt.
The conditions allowed no likelihood of ignition and therefore no injury
as a result of a fire was possible.
Respondent argues that the citation should be modified to designate “No
Likelihood” of an injury occurring that would result in “No Lost Workdays.”
I find that the
condition cited in Citation No. 6688131 was a violation of section 75.1731(b). I credit Inspector Eberling’s testimony
concerning the conditions in the cited area.
Due to the wet conditions, the fact that the friction was light, and the
lack of fuel, I find that this violation was unlikely to contribute to an
injury. In the unlikely circumstance
that a mine fire did occur, however, serious injuries or fatalities were likely. I affirm the inspector’s negligence and
gravity determinations. A penalty of $1,800.00
is appropriate for the violation.
D. Citation No. 8469536; WEST 2011-84
On March 31, 2010,
Inspector Eberling issued Citation No. 8469536 under section 104(a) of the Mine
Act, alleging a violation of section 75.202(a) of the Secretary’s safety
standards. The citation describes the
alleged violation in great detail and then states, in part:
The chunks that burst from the rib into the mesh
broke the rib bolts loose from their anchors for a span of about 30 feet and
pushed the mesh over to the walkway. The
top half of the mesh filled with coal overhung about 3 feet beyond the lower
edge of the mesh. This left several
hundred pounds of chunk coal hanging above miners on the walkway.
(Ex. G-37). Inspector Eberling determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to cause lost workdays or restricted duty. Further, he determined that the violation was
S&S, the operator’s negligence was moderate, and that one person would be
affected. Section 75.202(a) of the
Secretary’s regulations requires that “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.”
30 C.F.R. § 75.202(a). The Secretary
proposed a penalty of $3,000.00 for this citation.
1. Summary of Testimony
On
March 31, 2010, Inspector Eberling issued Citation No. 8469563 at the corner of
a walkway in the 10 Crosscut, which was near “the center of activity for the
mine[.]” (Tr. 229). Mesh that wrapped around a rib was forced 4
to 5 feet away from the rib and was filled with loose coal and caprock. (Tr. 233; Ex G-43). Inspector Eberling testified that these
pieces of rock and coal were large enough to hurt a miner and that one piece was
6 feet long, 30 inches wide and 7 inches thick and hung 12 inches below the roof,
or 7 feet from the ground. (Tr. 234-35;
Ex G-43). The inspector testified that
the rock fell from the rib, landed on the rock pile, and rolled into the
walkway after being tapped a few times with a pipe. (Tr. 236; Ex G-45). A rock of similar size had already fallen on
its own, according to Inspector Eberling.
(Tr. 235). The inspector noticed
four roof bolts that had been pushed out of the wall. (Tr. 246).
After continuing
around the corner from the conditions pictured in Ex. G-43, Inspector Eberling
found accumulated coal and caprock from a rib blow-out pressed against the mesh
of the rib and hanging over the walkway.
(Tr. 241; Ex. G-44). The walkway
was 24 inches wide at this point. (Tr.
245). The mesh was bending and
stretching and the rib bolts responsible for holding the mesh in place were
missing except for one on each end, according to the inspector. (Tr. 241-42).
The inspector testified that another bump could cause the entire mesh,
suspended coal, and caprock to fall into the walkway. (Tr. 243).
Every miner in the section travels through the cited area. (Tr. 244).
Inspector
Eberling testified that the cited conditions were S&S. The inspector believed that the cited
conditions violated the safety standard and exposed miners to the hazard of
being injured by falling rock and coal.
(Tr. 250, 252). He believed that
it was reasonably likely that a miner would be injured by this hazard because
some of the chunks of coal were 15 to 20 pounds and would fall 7 feet with
enough force to break bones. (Tr.
254). Inspector Eberling believed that
there was a “100% probability” that the large, 6 foot long rock would fall
during the next bump. (Tr. 238). He also believed that both the large rock and
the other material in the rib mesh posed a hazard. Although the inspector testified that there
was danger tape around the hazard, the rock, when removed, landed outside of
the taped-off area. (Tr. 239).
Inspector
Eberling testified that the condition had existed since at least the previous
shift. (Tr. 255). The foreman from the previous shift should
have known about the hazards based upon his examination. (Tr. 256).
Inspector
Eberling noted that the cited area included a can, danger tape, and two
timbers. (Tr. 271, 277; Ex. G-43). The inspector saw footprints inside of the
danger tape. Although he was not sure if
the footprints occurred before or after the tape was installed, he testified
that miners will often go under the tape.
(Tr. 273). He did not believe
that the can or timbers would prevent the rocks and coal from falling if the
mesh failed. (Tr. 277).
Michael Ricke, a
safety engineer at Elk Creek, did not believe that the cited conditions
constituted a hazard. (Tr. 286). He testified that the roof support in this
area “was overkill, over supported.”
(Tr. 288). The Elk Creek Mine
uses bolts in excess of the minimum requirements in its belt entries. (Tr. 288; Ex. R-37). Ricke admitted that a potential injury could result in lost
workdays or restricted duty, but he believed that an injury was unlikely. (Tr. 291).
Brent Christian,
a shearer operator on the longwall at Elk Creek, testified that although he
easily removed the large rock that concerned Inspector Eberling, it did not
fall into the walkway. (Tr. 305). Rather, it fell behind the screen and landed
on the sloughage by the rib. Id.
Christian believed an injury was unlikely if this rock had fallen due to
its position on the “backside of the screen” preventing it from falling into an
area where it would endanger a miner.
(Tr. 307). The timbers supported
the mesh well. Id. Christian also asserted
that neither Ricke nor Inspector Eberling were present when he removed the
rock. (Tr. 310).
2. Discussion
and Analysis
The Secretary
argues that Respondent failed to adequately support the ribs and roof in the 2
North Longwall headgate section. The
cited area was an area where miners worked or traveled and was the intersection
of two busy walkways. Mesh that bulged
with coal and caprock covered a rib in an intersection. Bolts were pushed out and hanging loose or were
on the ground. One walkway had a large
rock hanging on top of the mesh as well as a large amount of coal and rock
filling the mesh. The other walkway was only
two feet wide at the floor and mesh filled with rock and coal encroached upon
it.
The Secretary
also argues that Citation No. 8469536 was S&S. The loaded mesh in both walkways was likely
to fall and the pieces of rock and coal were large enough to cause serious
injury. One large rock required only a
few taps to dislodge and it fell into the walkway; Inspector Eberling believed
that the rock would have fallen and was by itself reasonably likely to cause
serious injury to a miner. Both of the
walkways were heavily traveled and used for storage. The 2 North Longwall was the center of
activity for the mine at this time.
Although there was hazard tape in the area, miners could still be
injured.
The cited
conditions were the result of Respondent’s moderate negligence, according to
the Secretary. The inspector testified
that management should have known of the condition. Although Respondent made some effort to
support the roof, it did not adequately remove the hazard.
Respondent
argues that the cited conditions in Citation No. 8469536 did not violate
section 75.202(a) and that the inspector’s testimony was inconsistent and not credible. Respondent’s witnesses, Christian and Ricke,
have more experience evaluating roof and rib conditions in Elk Creek and
provided more reliable testimony than the inspector.
I find that
Respondent violated section 75.202(a) by failing to adequately protect miners
from falls or bursts of the ribs in the cited area. The requirements of the safety standard, as
applied to the ribs, can be broken down into three parts: (1) the cited area
must be an area where persons work or travel; (2) the area must be supported or
otherwise controlled, and (3) such support must be adequate to protect persons
from falls or bursts of rib. In
considering whether support is adequate, the Commission has held that “[t]he
adequacy of particular roof support or other control must be measured against
the test of whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purpose of the standard, would
have provided in order to meet the protection intended by the standard. Cannon
Coal Co., 9 FMSHRC 667, 668 (Apr. 1987).
Respondent did not dispute testimony that the cited area was an area
where persons work or travel. Although
the area was supported or controlled, the support in place was not adequate to
protect persons from falls or bursts of the rib. The description of the conditions in the
cited area given by the inspector and Respondent’s witnesses were essentially
the same, but the Respondent’s witnesses did not believe that the conditions
posed a hazard to miners. I credit
Inspector Eberling’s testimony that the ribs in the cited area were not
adequately supported to protect miners.
Although Inspector Eberling was concerned with the large rock that he
had pried out of the rib, he testified that the mesh loaded with coal and
caprock was also a hazard.
I find that Citation
No. 8469536 was S&S. The cited
conditions violated section 75.202(a) and contributed to the hazard of miners
being injured by falling rock and coal.
Due to the size of the rocks and coal in the mesh, injuries including
broken bones could lead to lost workdays or restricted duty. The conditions were also reasonably likely to
lead to an injury. The mesh was filled
with debris in several places and the walkway was only two feet wide in one
such area, preventing miners from avoiding the hazard. The area was well-traveled, as the longwall
was the center of activity for the mine.
Every miner in the section traveled through this area. The large rock that required little effort to
remove illustrated the hazard.
Regardless of where this large rock landed when it was removed, the
various other rocks suspended in the mesh make the hazard posed by these
conditions reasonably likely to cause a serious injury. The fact that the area was well-traveled is
especially significant. Furthermore, I
credit Inspector Eberling’s testimony that the cited conditions were reasonably
likely to cause a serious injury.
I find that
Respondent’s moderate negligence caused Citation No. 8469536. The cited conditions were obvious, existed
for more than one shift, and Respondent should have known about them. Respondent did, however, make an attempt to
danger-off the area and support the roof and ribs. For these reasons, I find that Respondent’s
negligence was moderate. A penalty of $4,000.00
is appropriate for this violation given the high gravity.
E. Citation No. 6687983; WEST 2009-1353
On June 9, 2009,
Inspector Mark C. Brewer[1]
issued Citation No. 6687983 under section 104(a) of the Mine Act, alleging a
violation of section 72.630(d), which was modified to be a violation of section
72.630(b) of the Secretary’s safety standards.
The citation states, in part:
The dust collection system mounted on the Fletcher
roof bolting machine unit # 30-13, is not being maintained. . . . In this condition the drill dust is being
picked up by the air flow through the exhaust system and emitted in the
atmosphere and air ventilation and is coursing back over the bolter operators
and helper.
(Ex. G-13). Inspector Brewer determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that three persons would be affected. Section 72.630(b) of the Secretary’s
regulations mandates, in part, that “Dust
collectors shall be maintained in permissible and operating condition.” 30 C.F.R. § 72.630(b). The Secretary proposed a penalty of $3,996.00
for this citation.
1.
Summary of Testimony
Inspector
Brewer issued Citation No. 6687983 on June 9, 2009, for a violation of
72.630(b) in the #3 entry of the 2 North section. (Brewer Dep. at 78). The inspector testified that Respondent was
not properly maintaining the dust control system of a Fletcher roof bolting
machine. (Brewer Dep. at 80). Visible dust was coming out of the muffler of
the system, which would not occur if the system were functioning properly. (Brewer Dep. at 81).
Inspector
Brewer testified that Citation No. 6687983 was S&S. The release of this dust, which could be
composed of substances including quartz, silica and fine coal, posed the hazard
of causing silicosis or pneumoconiosis in miners. (Brewer Dep. at 82). Three miners, including both bolters and the
bolter helper, were exposed to this hazard.
(Brewer Dep. at 83). Based upon
the position of the miners relative to the dust being released and the amount
of dust, the inspector believed that the hazard was reasonably likely to cause
injury. (Brewer Dep. at 90; Ex.
G-23). Inspector Brewer believed that
the most likely injury as a result of this hazard would be a fatality as a
result of pneumoconiosis or silicosis, but admitted that while pneumoconiosis
and silicosis can cause death, they are not certain to do so. (Brewer Dep. at 90, 117-18).
Inspector
Brewer believed that this condition resulted from Respondent’s moderate
negligence. (Brewer Dep. at 96). The inspector testified that the hazard
existed for anywhere from multiple hours to multiple shifts, but definitely
longer than is permitted; a large amount of dust accumulated despite the
filters being in working order. (Brewer
Dep. at 91, 105). Although the vent tube
removed some of the dust from the air, it was not able to completely stop the
miners from inhaling the dust. (Brewer
Dep. at 94, 112). The inspector
testified that the bolter operators and the section foreman should have known
about this condition. (Brewer Dep. at 96). The section foreman, however, would only be
in the section during the day and the inspector was not positive how long this
condition existed. (Brewer Dep. at 107). Inspector Brewer had never seen dust accumulate
in the “clean side” of a filter system before.
(Brewer Dep. at 99). The
inspector also testified that Elk Creek has a good compliance history with
regard to respirable dust. (Brewer Dep.
at 114, 117).
Travis
Lischke, a bolter operator at Elk Creek, was operating the bolter in the cited
area. Lischke agreed that the dust box
needed to be emptied, but stated that he did not notice the dust until the
inspector pointed it out and he believed that it was being removed by the vent
tube. (Tr. 330, 333). He testified that although the helper did
move, the three operators were not between the vent and the escaping dust. (Tr. 332; Ex. R-15A). Lischke also stated that there was a fan that
“sweeps the face” and moves dust and air into the vent tube. (Tr. 334).
Mike
Ricke, who is “certified by MSHA for dust[,]” accompanied the inspector during
the issuance of Citation No. 6687983.
(Tr. 338). Ricke agreed with
Inspector Brewer that there was dust escaping the muffler and that it was the
bolter operator’s responsibility to find and correct this condition. (Tr. 340).
The vent tube was situated between the bolter operators and the muffler
and, according to Ricke, it pulls in 25,000 to 27,000 cubic feet per
minute. (Tr. 341). He did not observe any dust blowing over the
operators, but he also testified that the dust dissipated into the air and
disappeared. (Tr. 342, 345, 347). The movement of the air is directed toward
the vent tube, which moves air to the exhaust fan. (Tr. 344).
Ricke also stated that a fan was set up to move air into the vent
tube. (Tr. 345). Terry Hayes testified that the area where the
inspector issued Citation No. 6687983 was below the required respirable dust
levels. (Tr. 454-55; Ex. R-25).
2. Discussion
and Analysis
The
Secretary argues that Respondent violated section 72.630(b) by failing to
maintain a dust collector in a permissible and operating condition. Inspector Brewer saw dust leaving the
muffler, moving over the bolter, beyond the vent, toward the roof bolter helper,
and then dissipating into the atmosphere.
The vent tube and the collection system were not working properly. The “clean side” of the filter was full of
dust and the inspector believed it must have been in this state for several
shifts. The material drilled out of the
roof includes harmful substances that can cause silicosis and pneumoconiosis.
The
Secretary argues that Citation No. 6687983 was S&S. Respondent violated section 72.630(b),
exposing miners to dust that could cause fatalities through silicosis and
pneumoconiosis. A serious injury was
reasonably likely to occur because even short periods of exposure to respirable
dust can contribute to an injury or illness and drilling can expose miners to
dangerous amounts of dust in a short period of time.
According
to the Secretary, Respondent’s negligence was moderate. The condition was obvious, the operator
should have known of the condition, and there were no mitigating factors.
Respondent
argues that there was no violation of section 72.630(d)[2]
because the air current was appropriately directed away from the three miners
in the cited area. Two miners testified
that dust was not passing over them and Brewer did not prove that it was. Consequently, a violation was not
established.
I
find that the condition cited in Citation No. 6687983 violated section
72.630(b). The escaping dust and the large amount of dust on the “clean
side” of the dust filter show that the dust box was not maintained in adequate
operating condition. When establishing a
violation of the safety standard, the airflow in the cited area is
immaterial, as is the position of the dust flow relative to the miners. Section 72.630(b) requires operators to
maintain dust collectors in “operating condition.” 30 C.F.R. § 72.630(b). If, as in this situation, Respondent did not
maintain the dust collector in operating condition, then Respondent violated
section 72.630(b).
The Commission, furthermore, has held that “we can envision
circumstances in which compliance can be determined solely on the basis of an
inspector's observations of a dust cloud, and the preamble [of the safety
standard] clearly contemplates such cases when it refers to dust controls that
are ‘obviously visually ineffective.’ ” Consolidation Coal Company, 23 FMSHRC 392, 397 (Apr. 2001) (internal citations
omitted). Inspector Brewer and both of
Respondent’s witnesses testified that they saw dust leaving the dust box and
dissipating into the air. A dust
collector releasing dust into the atmosphere constitutes a violation of section
72.630(b) on its face, as well as being “obviously
visually ineffective.”
I also find that Citation No. 6687983
was S&S. Respondent violated section
72.630(b), which contributed to the hazard of miners developing pneumoconiosis or
silicosis. The violation in Citation No.
6687983 was reasonably likely to contribute to pneumoconiosis or silicosis and
cause a serious injury. The inhalation of relatively low amounts of freshly
fractured silica particles from rock drilling may contribute to the development
of acute silicosis.[3] Although a single exposure to hazardous
respirable dust may not cause pneumoconiosis or silicosis, it is reasonably
likely to contribute to one of these diseases.
See Consolidation Coal Co., 8 FMSHRC 890, 894-99 (June 1986). I note that the inspector and Respondent’s
witnesses testified that they viewed dust dissipating into the atmosphere after
it escaped from the dust collector, which would allow the miners to inhale the
dust without the dust being visible around them. Lischke, furthermore, testified that the
bolter helper was “all over the place[,]” increasing the likelihood of his
exposure. (Tr. 317). None of the miners wore personal
respiratory protection. I credit Inspector Brewer’s testimony that the cited
violation exposed miners to inhaling hazardous respirable dust, as well as his
testimony that the inhalation of this dust was reasonably likely to contribute
to pneumoconiosis
or silicosis.
Considering the facts of this case, I find that it was reasonably likely
that the miners’ inhalation of respirable dust would contribute to pneumoconiosis
and silicosis, both of which are likely to cause death or other serious
injuries. As a result, I find that Citation No. 6687983 was S&S.
Citation No. 6687983
was the result of Respondent’s moderate negligence. Exposure to respirable dust is highly
dangerous to the health and safety of miners.
This condition, furthermore, was obvious; Inspector Brewer noticed the
dust escaping the dust collector immediately.
Respondent should have known of this condition, which justifies the
Secretary’s designation of moderate negligence for Citation No. 6687983. A penalty of $4,000.00 is appropriate for
this violation.
F. Citation No. 6687977; WEST 2009-1219
On June 2, 2009,
Inspector Brewer issued Citation No. 6687977 under section 104(a) of the Mine
Act, alleging a violation of section 75.380(d)(1) of the Secretary’s safety
standards. The citation states, in part:
The Alternate escapeway out of 2 North Mains is not
being maintained. The floor of the
escapeway from 3XC to the load point just outby of 4XC in the # 1 entry has
bottom irregularities with trip hazards that are covered with muck that is
wet[,] sloppy[,] and up to 8 inches deep.
(Ex. G-11). Inspector Brewer determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to result in lost workdays or restricted duty. Further, he determined that the violation was
S&S, the operator’s negligence was moderate, and that eight persons would
be affected. Section 75.380(d)(1) of the
Secretary’s regulations requires that each escapeway be “[m]aintained in a safe condition to always assure passage of anyone,
including disabled persons[.]” 30 C.F.R. §
75.380(d)(1). The Secretary proposed a
penalty of $2,678.00 for this citation.
1. Summary
of Testimony
Inspector
Brewer issued the citation on June 2, 2009, because the alternate escapeway for
the 2 North Mains section was not maintained in a safe condition in violation
of section 75.380(d)(1). (Brewer Dep. at
26). This escapeway was covered in a
deep “muck” that consisted of a mixture of coal dust, loose coal, rock, and
rock dust, which formed a sticky, mud-like substance that Inspector Brewer
testified nearly pulled his boots off. (Brewer
Dep. at 27). The floor underneath the
muck was irregular, presenting trip and fall hazards. (Brewer Dep. at 29). The muck was up to 8 inches deep and covered
an area 7 feet wide and 180 feet long. (Brewer
Dep. at 56). Inspector Brewer believed
that the deepest section of the muck would be an area traveled by miners in an
emergency. (Brewer Dep. at 69).
Inspector Brewer
testified that this citation was S&S.
(Brewer Dep. at 32). The hazard
caused by these conditions was slipping and tripping due to the muck on the
floor. Id. The Inspector testified
that an injury was reasonably likely to occur as a result of the cited
condition due to the depth and “stickiness of some of that mud,” as well as the
possibility of low visibility or hurried movements probable during an emergency
situation. (Brewer Dep. at 34). The muck extended the entire width of the
escapeway and the inspector believed that escaping miners could not avoid it. (Brewer Dep. at 34-35). The most likely injury to result from this
condition, according to the inspector, would be sprains or broken bones, which
would result in lost work days or restricted duty. (Brewer Dep. at 35).
Inspector Brewer
designated this citation as resulting from moderate negligence. (Brewer Dep. at 37). Both the section foreman who moved the belt
and the mine examiner should have known of this condition. Id. The area became the secondary escapeway after
a belt move that occurred several hours prior to the inspection; Inspector
Brewer believed that this mitigated Respondent’s negligence. (Brewer Dep. at 36). He also acknowledged that there were no fire
hazards present. Id. Every miner in the
working section was affected by this hazard because all eight men would have to
escape in the event of an emergency. (Brewer
Dep. at 33).
Peter Darland,
who is employed in Oxbow’s safety department, accompanied the inspector. (Tr. 349, 351). Darland testified that the secondary
escapeway had “sloppy mud” but was “not impassable.” (Tr. 355-56).
He testified that the muddy area was 200 feet long, and 3 or 4 inches
deep in most places. (Tr. 356). A section that was about 20 feet long,
however, was 8 inches deep. Id.
Darland had “very little” difficulty moving through the mud, and he
claimed the inspector told him his boot got stuck after standing for “two to
five minutes, maybe.” (Tr. 357). He asserted that the crew is accustomed to
working in mud and could hold on to the belt structure or lifeline for support
if necessary and therefore he did not believe that an injury was reasonably
likely as a result of this condition.
(Tr. 358, 363). Darland also
believed that lost workdays or restricted duty type injuries were unlikely
because “the mud pretty much cushions your fall” in this area. (Tr. 359). Darland affirmed that the company was mining
coal when Inspector Brewer issued the citation and that the belt move had been
completed that same shift. (Tr. 354,
361).
2. Discussion
and Analysis
The Secretary
argues that Respondent violated section 75.380(d)(1) by failing to maintain its
alternate escapeway in a safe condition.
Inspector Brewer testified that a mud-like substance covered the entire
width of the escapeway for a distance of about 180 feet, reaching 8 inches in
depth in some places. The floor was
irregular underneath the mud.
Citation No. 6687977
was S&S, according to the Secretary.
The Secretary states that the violation of section 75.380(d)(1)
contributed to the hazard of slipping, tripping or falling in the event of an
emergency, which could cause sprains or broken bones. The hazard was reasonably likely to cause an
injury due to the depth of the mud. In
the event of an emergency, miners would be in a hurry and could face reduced
visibility.
The Secretary
next argues that Respondent’s moderate negligence caused the cited conditions. The operator should have known of the
condition, but Inspector Brewer found moderate negligence because the condition
did not exist for an extended period of time.
Respondent
argues that the cited escapeway did not violate the safety standard because it
was readily passable; Citation No. 6687977 was also not S&S. It is unlikely that a miner would be injured
by the cited conditions, as the miners are accustomed to working in mud. Darland testified that injuries from muddy
conditions are rare. Respondent did not
violate section 75.380(d)(1) and if it did, Citation No. 6687977 is not
S&S.
I find that
Respondent violated section 75.380(d)(1) by failing to maintain the alternate
escapeway in the 2 North Mains section in a safe condition. I credit the testimony of both Inspector
Brewer and Darland that mud from 3 to 4 inches deep covered the entire width of
the escapeway for at least 180 feet and that mud that was 8 inches deep covered
a distance of 20 feet. With the uneven
floor and the thick cover of mud, miners could easily suffer sprains or broken
bones. During an emergency, the delay caused by the mud could lead to a variety
of injuries including smoke inhalation and injuries as a result of tripping and
falling.
I find that Citation No. 6687977 was S&S. The combination of the length of the muddy
area, the depth of the mud, and the uneven floor underneath the mud is enough
to make this condition reasonably likely to cause an injury as serious as a
sprained or broken ankle. I credit
Inspector Brewer’s testimony that the mud was a hazard that impeded movement
and almost removed his boot. If the mud
was deep and substantial enough to cushion the fall of a miner, as Darland
testified, then it is certainly deep enough to impede movement, conceal hazards
on the uneven floor, and create a tripping and falling hazard.
The Commission, furthermore, has held that for “the
failure to maintain an escapeway in safe condition . . . the applicable analysis under Mathies involves
consideration of an emergency.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2366 (Oct. 2011) (Internal
citations omitted). Respondent’s
violation of section
75.380(d)(1) contributed to the hazard of impeding the escape of miners in the
event of an emergency. This mud would be
difficult to traverse in the best of conditions and could be disastrous in an
emergency situation where miners may be carrying other miners, visibility may
be poor, and there could be disorientation and panic amongst the escaping
miners. I credit Inspector Brewer’s
testimony that this hazard was reasonably likely to cause serious injuries in
the form of sprains or broken bones due to tripping or falling. It could also contribute to injuries that
include smoke inhalation during a fire.
The condition cited in Citation No. 6687977 was reasonably likely to
lead to a serious injury during normal mining conditions or in the event of an
emergency; Citation No. 6687977 was S&S.
I find that the Moderate negligence designation for the
citation
is also appropriate. The condition was obvious and the Respondent
should have known of it. The cited
condition was extensive. The inspector
considered that the condition did not exist for a long period of time, which
mitigates Respondent’s negligence. A penalty of $3,000.00
is appropriate for this violation.
G. Citation No. 6688271; WEST 2009-1353
On June 9, 2009,
Inspector Bradley J. Serazio issued Citation No. 6688271 under section 104(a)
of the Mine Act, alleging a violation of section 75.400 of the Secretary’s
safety standards. The citation states,
in part:
Loose coal and dry coal fines were allowed to
accumulate in the pump and pump motor compartments and in the cutter head motor
compartment on the 27-10 continuous mining machine located in the No. 3
ent[r]y, inby the last open crosscut of the North West Mains Section. The accumulations measured approximately 12
inches deep and were packed around the motors.
(Ex. G-3). Serazio determined that an injury was highly
likely to occur and that such an injury could reasonably be expected to result
in lost workdays or restricted duty.
Further, he determined that the violation was S&S, the operator’s
negligence was moderate, and that two persons would be affected. Section 75.400 of the Secretary’s regulations
requires that “Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on diesel-
powered and electric equipment therein.”
30 C.F.R. § 75.400. The Secretary
proposed a penalty of $3,996.00 for this citation.
1. Summary
of Testimony
Inspector
Serazio[4] issued
Citation No. 6688271 on June 9, 2009, because the cover of the cutter head
motor of the electric-powered continuous miner was full of accumulations of
loose coal and coal fines in violation of section 75.400. (Serazio Dep. at 76, 84). The accumulations were combustible. (Serazio Dep. at 78). The cited piece of equipment was located in
the active workings of the North West Mains section at the time. (Serazio Dep. at 76, 83). The accumulations were 12 inches deep and
compacted around the motor. (Serazio
Dep. at 79). The motor box was roughly
18 inches by 18 inches by 12 inches deep, with 2 inches of clearance around it
in the compartment. (Serazio Dep. at 112). The compartment was filled to the top of the
motor with solid coal fines and loose coal.
Serazio had to dig into the accumulations with a screwdriver in order to
use a tape measure to measure the depth of the coal. (Serazio Dep. at 79-80). Although Serazio suggested that four motor
compartments had accumulations, he testified that only one compartment had
extensive, packed accumulations. (Serazio
Dep. at 113-14).
Serazio
designated Citation No. 6688271 as S&S.
The coal accumulated around the motor, which is a heat source. (Serazio Dep. at 78, 81, 84). Serazio testified that it was highly likely
that a miner would be injured due to the heat of the engine or a spark igniting
the accumulations, which is a scenario that has caused “many disasters[.]” (Serazio Dep. at 85). He was also worried that coal would enter the
engine cover and actually get into the engine itself. (Serazio Dep. at 87). This machine was used on both production
crews, increasing the opportunities for a fire to ignite. (Serazio Dep. at 98). A fire would lead to burns or smoke
inhalation, which Serazio testified are injuries that cause lost workdays or
restricted duty. (Serazio Dep. at 85).
Serazio
designated Citation No. 6688271 as the result of Respondent’s moderate
negligence. Based upon the amount of
hard-packed coal, Serazio believed that the hazard existed for more than one
shift and he believed that it existed for as long as four shifts. (Serazio Dep. at 86, 90). He stated that it was the responsibility of
the continuous miner operator to address these conditions and both the operator
and the foreman in the section should have known of these conditions. (Serazio Dep. at 86, 93). Two people, the miner operator and the
operator’s helper, were exposed to this hazard.
(Serazio Dep. at 84).
John Davis,
currently a miner operator and formerly a roof bolter at Elk Creek, testified
about the cleaning and systems of the continuous miners at Elk Creek. Davis testified that the engine compartment
could fill with coal of various sizes within the first five or ten minutes of
operation. (Tr. 367). He testified that water sprays surrounded the
engine area and were active whenever the miner operated. (Tr. 368).
There is fire suppression on Oxbow’s continuous miner machines. (Tr. 369).
Davis had no personal knowledge of the specific conditions underlying
the citation. (Tr. 365-66, 370).
Justin Evans, a
mine engineer at Elk Creek Mine, testified that he does not believe that a
cutter head motor produces enough heat to ignite coal. (Tr. 373).
Evans entered the Northwest Mains on June 12, 2009, and took a
temperature reading of a cutter head motor and collected a mixture of wet, dry,
and moist coal fine samples. (Tr. 373,
384). Using a “meat thermometer” he
found that the motor’s temperature was 106 degrees Fahrenheit, but several
minutes passed between when the motor was turned off and when Evans took his
readings. (Tr. 375, 386-87). Evans placed these coal fine samples into a
burn chamber, heated them, inserted a thermometer into the fines, and recorded
his findings. (Tr. 376-77). Evans testified that 400 degrees Fahrenheit
was the lowest temperature where the coal showed evidence of combustion,
leading Evans to believe that normal mining operations would not ignite the
coal in the cutter head motor. (Tr. 377;
Ex. R-14). Evans admitted that he is not
an expert in combustion and that he had no first-hand knowledge of the
conditions that Serazio cited on June 9.
(Tr. 379-80). In his experiment,
Evans did not tightly pack the coal fines together into the burn chamber. (Tr. 384).
2. Discussion
and Analysis
The Secretary
argues that Respondent committed an S&S violation of section 75.400 by
allowing coal and coal fines to accumulate in the continuous miner machine’s
head cutter motor. Coal packed around
the hot engine creates a fire or explosion hazard. The heat of the motor is highly likely to
start a fire and the continuous miner works at the face where methane is
liberated. Serious injuries including
burns and smoke inhalation are the most likely outcome of this violation. Regardless of any fire suppression systems in
place, this violation is S&S. Respondent
did not produce any witnesses with knowledge of the conditions; Evans conducted
an unreliable experiment and Davis testified in generalities.[5]
The Secretary
believes that Citation No. 6688271 resulted from Respondent’s moderate
negligence. The section boss should have
known of the condition, the condition existed for longer than one shift, and
the Inspector testified that he was told by the operator of the continuous
miner that the accumulations on Respondent’s machines were a known problem.
Respondent
argued that Citation No. 6688271 was not correctly designated as “highly
likely” or S&S. There is no factual
basis to believe that the heat of the engine could ignite the coal fines;
Evans’ experiment proves this. Citation
No. 6688271 should therefore be modified to be “unlikely.” Even if a fire could ignite, the fire
suppression systems on the continuous miner would make an injury unlikely. Citation No. 6688271 was not S&S and
should be modified according to the above arguments.
I find that
Respondent allowed coal and coal fines to accumulate in the cutter head motor
compartment of the cited continuous miner in violation of section 75.400. The combustible coal accumulations
contributed to a fire hazard. Fires
cause many serious injuries, including burns and smoke inhalation. Although the Secretary did not show that an
injury was highly likely to occur as a result of the fire hazard, I credit
Serazio’s testimony that the conditions were reasonably likely to lead to a
serious injury. I do not credit Evans’ testimony that the cited condition posed
no danger to miners.[6] The motor compartment on the cited piece of
equipment is an ignition source because it produces heat and was surrounded by
dry, packed coal and coal fines. Citation
No. 6688271 was reasonably likely to cause a serious injury and was an S&S
violation of section 75.400.
I find that Citation
No. 6688271 resulted from Respondent’s moderate negligence. The amount of accumulated coal, the tightly
packed nature of the accumulations, and Serazio’s testimony all suggest that
the cited condition existed for longer than one shift. The citation is properly designated as the
result of Respondent’s moderate negligence because Respondent should have known
of the condition. Citation No. 6688271
is MODIFIED from “highly likely” to
“reasonably likely.” A penalty of $4,000.00
is appropriate for this violation.
H. Citation No. 6688284
On June 17, 2009,
Inspector Serazio issued Citation No. 6688284 under section 104(a) of the Mine
Act, alleging a violation of section 75.400 of the Secretary’s safety
standards. The citation states, in part:
The Wagner can setter, #24-25, located in E 4 to 3
XC 7 NWM’s was found with so many oil leaks that it was tagged out of service
and will not be moved until the major leak in the boom cylinder is
repaired. The oil was measured to be 3
inches deep, by 8.5 inches long, and 6.5 inches wide.
(Ex. G-9). Serazio determined that an injury was reasonably
likely to occur and that such an injury could reasonably be expected to result
in lost workdays or restricted duty.
Further, he determined that the violation was S&S, the operator’s
negligence was high, and that one person would be affected. The Secretary proposed a penalty of $5,961.00
for this citation.
1. Summary
of Testimony
Serazio
testified that on June 17, 2009, he issued Citation No. 6688284 for a violation
of section 75.400 due to hydraulic oil accumulations and leaks relating to Wagner
can setter #24-25. (Serazio Dep. at 207-09). Serazio testified that he measured the puddle
of oil under the hydraulic tank with his tape measure, finding that it was 8.5
inches long, 6.5 inches wide, and 3 inches deep. (Serazio Dep. at 212). The hydraulic tank was covered with oil. (Serazio Dep. at 217). The tank looked “as if they filled it up”
with oil and “just poured it in and poured it all over the top of the
tank.” (Serazio Dep. at 207). The condition was located in an active area
of the mine. Id.
Inspector Serazio
testified that Citation No. 6688284 was S&S. (Serazio Dep. at 217-18). The oil produced fire, slipping, and contact hazards. (Serazio Dep. at 222-23). Hydraulic oil is flammable and sticks to coal
fines and dust. (Serazio Dep. at 209). Serazio believed that these hazards were
reasonably likely to cause an injury “because there is that possibility that
it’s going to – it could happen.” (Serazio
Dep. at 221). He also stated that
“there’s a potential for that to happen, so it’s reasonably likely it could
happen.” (Serazio Dep. at 257). Friction from the two pivot points or contact
with a hot surface such as the engine compartment could ignite the oil. (Serazio Dep. at 219, 244). Oil covered the center pivot point, which
according to Serazio could cause the point to move smoothly or cause
friction. (Serazio Dep. at 215). The motor compartment was about 2 feet from
the hydraulic tank, but was above the tank; Serazio testified that the
hydraulic oil would have to spray up and onto the engine compartment to make
contact with it. (Serazio Dep. at 243-44,
253). He also testified that hydraulic
oil that enters the body can cause serious injuries. (2 Serazio Dep. at 23). All these hazards could lead to injuries
causing lost workdays or restricted duty.
(Serazio Dep. at 224). Serazio
testified that he did not know the ignition point of hydraulic oil or how often
Respondent used the can setter. (Serazio
Dep. at 227, 245).
Serazio
testified that Citation No. 6688284 resulted from the operator’s high
negligence. (Serazio Dep. at 225). Serazio noticed the oil the night before and
put an “X” on the equipment to see if the oil would be cleaned up. According to the inspector, the oil was not
cleaned up, which convinced him that the condition existed for at least four
shifts. Id. He further testified
that the amount of dust that accumulated in the oil suggested that it had been
there for more than one day. (Serazio
Dep. at 209). From the initial time that
Serazio saw the can setter to when he wrote the citation, the can setter had
moved and he testified that the accumulations should have been addressed at
that time. (Serazio Dep. at 228). The condition was obvious. (Serazio Dep. at 226). Both the operator of the piece of equipment
and his supervisor should have known of the condition, according to
Serazio. (Serazio Dep. at 225).
At
the time that Serazio issued Citation No. 6688284, John Davis worked on the
crew that used the cited can setter.
(Tr. 389-90). He testified that
the can setter has fire suppression in the “transmission, motor, fuel tank, and
hydraulic.” (Tr. 393). Davis testified that the can setter would be
washed and all accumulations removed before every use and during shifts as
necessary. (Tr. 396). Davis asserted that he washed Wagner can
setter #24-25 on June 16, 2009. (Tr.
396; Ex. R-21).
James
Alfred Blue was the foreman of the crew that was responsible for using the
cited can setter when Serazio issued Citation No. 6688284. (Tr. 402).
Blue did not believe that the cited condition was reasonably likely to
cause an injury because he did not believe that a fire would start. (Tr. 406).
The can setter automatically shuts off when it gets too hot. Id. He did admit, however, that the can setter
creates steel on steel contact while in operation. (Tr. 413).
Blue believed that the can setter was washed during the swing shift on
June 16, 2009, but had no direct knowledge that it was. (Tr. 414; Ex. R-19,20).
2. Discussion
and Analysis
The
Secretary argues that Respondent violated section 75.400 by allowing
combustible materials to accumulate on a piece of equipment. The hydraulic oil accumulated under the
machine, on the machine, and close to the engine. The accumulations existed for more than a
day, as Serazio marked the accumulations the day before he issued the citation. The can setter was moved while the
accumulations were present.
The Secretary
also asserts that Citation No. 6688284 was S&S because the accumulations of
hydraulic oil were reasonably likely to cause a serious injury. The accumulations of hydraulic oil created
fuel for a fire and friction served as an ignition source, as the metal jaws of
the can setter regularly contacts the metal can and the metal mesh on the mine
roof. Hot surfaces, such as the engine,
can also ignite a fire and served as an ignition source of fires in other mines
between 1991 and 1999. A fire is likely
to cause serious injuries including smoke inhalation and burns. Hydraulic oil, absent a fire, poses a trip
and fall hazard.
Respondent
should have known about the cited accumulations, which were the result of
Respondent’s high negligence, according to the Secretary. The condition was obvious, severe, and
extensive. The condition existed for at
least four shifts. The shift supervisor
and fire boss for each shift should have known of this condition. Witnesses and exhibits for the Respondent were
either unknowledgeable or unreliable and should be given no weight.
Respondent
argues that Citation No. 6688284 was not S&S because there was no ignition
source to ignite the accumulations and the condition was not reasonably likely
to cause a serious injury. Serazio did
not specify how friction within the boom cylinder would ignite the hydraulic
fluid and he had no knowledge of when the cylinder was last lubricated. The diesel motor is protected by fire
suppression equipment. The condition did
not exist for a significant amount of time; Oxbow offered testimony and
maintenance records showing that the can setter is cleaned regularly prior to
use. Citation No. 6688284 should be
modified to “non-S&S,” “no lost workdays,” and “low negligence.”
I find that the
cited hydraulic oil accumulations represent a violation of section 75.400, but
Citation No. 6688284 was not S&S.
The Secretary established the violation, that the cited condition
contributed to a fire hazard, and that the resulting injury would be
serious. The Secretary, however, did not
meet his burden of showing that an injury was reasonably likely to occur as a
result of this hazard. “The Secretary
bears the burden of proving that a violation is S&S.” Peabody
Coal Co., 17 FMSHRC 26, 28 (Jan. 1995).
The Mathies test does not
require the Secretary to prove that a hazard is “more probable than not” to
satisfy the third standard. U.S. Steel Mining Co., 18 FMSHRC 862,
865 (June 1996). He must, however, show
that there is a reasonable likelihood and not merely a possibility that an
event “could” lead to an injury. Peabody Coal Co., 17 FMSHRC 29. The Secretary identified hypothetical
ignition sources, but failed to show that those sources were likely to ignite a
fire. Serazio testified that the
hydraulic oil would have to “spray” onto the motor compartment, but his
description suggested that the accumulations came from the tank overflowing or
being overfilled, not spraying. In
reference to the pivot points, Serazio stated that the presence of hydraulic
oil on the middle pivot point could create friction and therefore ignition, but
also testified that it could help the pivot point to move smoothly, which would
negate any chance of friction. The steel
on steel contact referred to by the Secretary would occur at the front of the
can setter, on the opposite end of the vehicle from the accumulations. Serazio testified that the citation was S&S
“because there is that possibility that it’s going to – it could happen.” And
that “there’s a potential for that to happen[.]”[7] A mere possibility or the fact that a hazard
“could” cause an injury does not equate to a reasonable likelihood. Although Serazio used the words “reasonably
likely,” his explanations of the term show that the hazard associated with the
cited condition was possible, but not reasonably likely to lead to an injury. [8]
I
also find that Citation No. 6688284 resulted from Respondent’s high
negligence. Based upon Serazio’s
testimony and measurements, it is clear that the condition was obvious and
extensive. I credit Serazio’s testimony
that the condition existed for four shifts and that the shift supervisor and
fire boss for each shift should have known of this condition. Respondent’s evidence pertaining to the
cleaning practices of the mine was generally credible but it failed to convince
me that the cited equipment was actually cleaned in this instance. I credit the inspector’s testimony on this
issue. Citation No. 6688284 is MODIFIED from “S&S” to
“non-S&S.” A penalty of $5,000.00 is
appropriate for this violation.
I. Citation No. 6688277; WEST 2009-1353
On June 10, 2009,
Inspector Serazio issued Citation No. 6688277 under section 104(a) of the Mine
Act, alleging a violation of section 77.1104 of the Secretary’s safety
standards. The citation states, in part:
Coal fines and coal dust were allowed to accumulate
in both battery boxes on the CAT D10 bulldozer located in the stockpile
area. This condition would be reasonably
likely to result in a fire during continued normal mining operations due to the
accumulations being on an ignition source.
(Ex. G-5). Serazio determined that an injury was reasonably
likely to occur and that such an injury could reasonably be expected to result
in lost workdays or restricted duty.
Further, he determined that the violation was S&S, the operator’s
negligence was moderate, and that one person would be affected. Section 77.1104 states “[c]ombustible materials, grease, lubricants, paints, or flammable liquids
shall not be allowed to accumulate where they can create a fire hazard.” 30
CFR § 77.1104. The Secretary proposed a penalty of $946.00
for this citation.
1. Summary
of Testimony
Inspector
Serazio testified that he issued Citation No. 6688277 on June 10, 2009, because
both battery boxes of the Cat D10 bulldozer were full of dry coal fines and coal
dust. (Serazio Dep. at 120, 125). Each battery box is 24 inches long, 24 inches
wide and 10 inches deep, with about 4 inches of space on each side between the
box and the battery itself; this space was filled with coal accumulations. (Serazio Dep. at 123-25). The accumulations were dry and tightly packed
into the box. (Serazio Dep. at 124-25). The bulldozer was located by the stockpile
area. (Serazio Dep. at 120).
The
inspector concluded that the condition was S&S. The heat of the battery and the possibility
that the battery might spark made it an ignition source that created a fire
hazard when combined with the coal accumulations. (Serazio Dep. at 125). It is reasonably likely that a miner
operating the bulldozer would have been injured. (Serazio Dep. at 130-31). Serazio designated this hazard as reasonably likely
to cause an injury resulting in lost work days or restricted duty due to the
possibility of a fire causing smoke inhalation, burns, or acid burns. (Serazio Dep. at 132-33). A battery was located on both the right and
left sides of the operator. (Serazio
Dep. at 130). Serazio testified that the
cab where the operator sits would provide some protection from a fire and
escape would be possible for the dozer operator unless both batteries caught
fire simultaneously. (Serazio Dep. at 143-44).
Serazio testified
that the citation resulted from the operator’s moderate negligence. (Serazio Dep. at 135). The miner operating the piece of equipment
and the surface boss both should have known of the condition. Id. The condition existed for longer than one shift. (Serazio Dep. at 127).
Terry
Hayes testified that he did not think that a serious injury was likely to occur
because the fire suppression system on the bulldozer would shut down the
equipment if it became too hot, a miner could easily escape, and the miner
operating the equipment was protected by glass and equipped with a
self-rescuer. (Tr. 445). He did admit that the accumulations posed a
fire hazard. Id.
2. Discussion
and Analysis
The Secretary
argues that Respondent violated section 77.1104. The battery boxes of the Cat D10 bulldozer
were full of coal fines and coal dust, which posed a fire hazard when combined
with the battery. Respondent’s witness,
Hayes, admitted that the coal posed a fire hazard.
The Secretary
also argues that Respondent’s violation of section 77.1104 was S&S. Each battery gives off heat and is an
ignition source. Respondent uses the
bulldozer every day and the accumulations in both boxes double the chance of
ignition. NIOSH studies show that there
is a reasonable likelihood that the cited condition could contribute to a fire
that would result in injuries including smoke inhalation and burns. (Sec’y Br. 59-60). The presence of fire suppression systems or
multiple egress options does not undermine an S&S determination.
According to the
Secretary, the cited condition resulted from Respondent’s high negligence,
although the citation designates Respondent’s negligence as moderate. A pre-shift examiner should have found and
corrected the condition. Respondent
offered no mitigating circumstances.
Respondent admitted that it was aware of problems with accumulations on
its bulldozers.
Respondent
argues that an injury was not reasonably likely and any injury that did occur
would not be serious. Fire suppression,
fuses that prevented overheating of the batteries, and a cab made of reinforced
glass and steel designed to protect the miner operating the equipment made an
injury unlikely.
I
find that the coal accumulations in the battery boxes of Cat D10 bulldozer
created an S&S violation of section 77.1104. The combustible coal accumulations
contributed to the hazard of a fire.
Fires cause many serious injuries, including burns and smoke
inhalation. Both Serazio and Hayes
agreed that the accumulations posed a fire hazard, but they disagreed as to
whether an injury was likely to occur. I
credit Inspector Serazio’s testimony that it was reasonably likely to lead to a
serious injury. Both batteries on the
cited piece of equipment are ignition sources because they produce heat and
both batteries were surrounded by dry, packed coal fines and coal dust. The presence of these accumulations prevented
air from circulating around the batteries, which increased the potential for
overheating. It is reasonably likely
that a fire-related injury would occur as the result of a single battery in
this condition; two batteries are, therefore, even more likely to cause an
injury.
I
find that Citation No. 6688277 resulted from the moderate negligence of
Respondent because its managers should have known of the cited condition. A penalty of $1,000.00 is appropriate for
this violation.
J. Citation No. 6688268; WEST 2009-1219
On June 8, 2009,
Serazio issued Citation No. 6688268 under section 104(a) of the Mine Act,
alleging a violation of section 77.1104 of the Secretary’s safety
standards. The citation states:
Combustible rags, Styrofoam cups, paper towels and
clothing articles were allowed to accumulate around the 150 PSI oil lubricated
air compressor located in the Lamp Repair room in the Lamp house building. This area also contained significant amounts
of coal fines and coal dust on and around the air compressor. Furthermore, two flammable oxygen cylinders
were being stored one foot away from the air compressor. This condition was so extensive that it would
be obvious to even the most casual observers.
(Ex. G-1). Serazio determined that an injury was reasonably
likely to occur and that such an injury could reasonably be expected to be
permanently disabling. Further, he
determined that the violation was S&S, the operator’s negligence was moderate,
and that one person would be affected. The
Secretary proposed a penalty of $1,412.00 for this citation.
1. Summary
of Testimony
Serazio
issued Citation No. 6688268 on June 8, 2009, because a stack of combustible
materials in the lamp repair room, including rags, styrofoam, paper towels, and
cloth was next to an air compressor. (Serazio
Dep. at 23). This pile of materials was
about 1.5 feet tall and 2.5 feet wide. (Serazio
Dep. at 27). A table in the room, the
material pile, and the compressor itself were all covered in a fine layer of
coal fines and coal dust. (Serazio Dep.
at 28, 30). Two unsecured bottles of
oxygen were also in the area. (Serazio
Dep. at 24).
Serazio
testified that Citation No. 6688268 was S&S. (Serazio Dep. at 34). The cited accumulations presented a fire
hazard because all three parts of the fire triangle were present: oxygen, heat from the air compressor, and fuel
from the accumulations. Id.
The air compressor could ignite the accumulations. (Serazio Dep. at 30-31). In the event of a fire, a miner using the air
compressor is reasonably likely to sustain injuries ranging from burns to smoke
inhalation because of his likely proximity to the fire. (Serazio Dep. at 38). Serazio believed that burns sustained as a
result of the cited conditions could be permanently disabling. (Serazio Dep. at 40). Serazio admitted that he did not know the
operating temperature of the air compressor, how often the compressor was used,
or the ignition temperatures of any of the accumulations. (Serazio Dep. at 61).
Serazio
designated this citation as the result of Respondent’s moderate negligence
because the operator of the air compressor should have known of the hazard. (Serazio Dep. at 44-45). Based upon the amount of materials stacked in
the corner and the accumulations of coal dust and fines, Serazio surmised that
the accumulations existed for more than one shift. (Serazio Dep. at 37). Serazio also testified that the accumulations
were obvious. (Serazio Dep. at 45).
Terry Hayes
testified that he did not believe that an injury was reasonably likely to occur
because, even if a fire ignited, a miner could simply walk out of the door that
was 5 feet from the desk. (Tr. 433,
435). Hayes testified that the lamp
repair room was equipped with a fire extinguisher and that there were fire
extinguishers in other parts of the building as well. (Tr. 435).
He noted that there was a hose directly outside of the room and another
hose within reach of the room. Id.
He also stated that the lamp repair room had cement floors and that the
desk in the room was made of steel. (Tr.
433). Hayes admitted that the air
compressor posed a fire hazard. (Tr.
438).
2. Discussion
and Analysis
The
Secretary argues that Respondent violated section 77.1104 by allowing
combustible materials to accumulate in its lamp repair room. Serazio observed rags, Styrofoam cups, paper
towels, and clothing articles in a pile that was covered with coal fines and
coal dust and was touching the air compressor in the lamp room. The pile was underneath the desk where the
lamp repairman worked. Coal fines and
coal dust covered the desk and the air compressor itself. The compressor, which is a heat source, was
also one foot away from two unsecured oxygen bottles. Respondent did not produce the lamp
repairman; therefore, the court should apply the missing witness rule.
The
Secretary argues that Respondent’s violation of section 77.1104 was
S&S. The cited accumulations
contribute to the discrete safety hazard of a fire that could obviously cause
serious injury to a miner. All three
points of the fire triangle existed in a small room and both Respondent and
NIOSH studies agree that air compressors can start fires. The oxygen containers could become
projectiles in the event of a fire. The
lamp repairman works directly next to the accumulations, could be trapped in
the room, or could be injured attempting to fight the fire. It is reasonably likely that this fire hazard
could have caused a serious injury.
The
Secretary contends that the violation was the result of Respondent’s moderate
negligence. The condition was obvious,
the lamp repairman should have known of the condition, and Respondent offered
no mitigating factors.
Respondent
argues that the Secretary failed to meet his burden of proof to show that
Citation No. 6688268 was S&S because a serious injury was not reasonably
likely to occur as a result of the hazard.
A fire was unlikely to occur.
Serazio testified that he did not know how long or how often the air
compressor operated and he did not known the ignition temperature of any of the
accumulations. No serious injury would
occur because any miner working in the room could simply walk out of the room
in the event of a fire. There was also
ample fire-fighting equipment available to extinguish the fire quickly.
I
find that Citation No. 6688268 was a violation of section 77.1104 and was
S&S. The cited accumulations
contributed to a fire hazard, which could cause serious injuries including
smoke inhalation and burns. Even though
a miner in the lamp repair room would have ample means of egress and
firefighting in the event of a fire, a fire is still reasonably likely to cause
serious injuries to miners fighting the fire.
I credit the testimony of both Serazio and Hayes that air compressors
can ignite fires. If an air compressor
presents a fire hazard, it is reasonably likely that an air compressor would
ignite a fire when it was adjacent to and contacting a variety of combustible
materials that were covered in coal fines and coal dust. The compressor itself was covered in coal
accumulations. Respondent’s argument
that even if a fire occurred it would not cause serious injury fails. The Mine Act requires fire suppression
systems to be in place because of the hazard posed by fires, but their presence
does not remove the fact that a fire is reasonably likely to cause serious
injury to miners. See Buck Creek Coal Co.,
52 f.3d at 136. The argument that a
readily available means of egress negates the S&S designation also
fails. In this situation, the fire would
ignite directly at the feet of the miner.
Even if the miner managed to escape the fire initially, Hayes testified
that he might return to fight the fire, endangering himself once again. The unsecured oxygen cylinders presented a
significant hazard if a fire were to start.
The accumulations cited in Citation No. 6688268 were reasonably likely
to contribute to a fire that would cause a serious injury.
Citation
No. 6688268 resulted from Respondent’s moderate negligence. Flammable rags and other combustible
materials that are covered in coal dust and piled on a heat source are an
obvious hazard, even to a person with no knowledge of mine safety. I also credit Serazio’s testimony that the
cited accumulations existed for more than one shift, because the pile of
accumulations measured 1.5 by 2 feet. An
obvious hazard that existed for a significant period of time and posed a fire
hazard is certainly enough to support the finding of moderate negligence for
Citation No. 6688268. A penalty of $1,400.00
is appropriate for this violation.
K. Citation No. 6688282
On June 16, 2009,
Inspector Serazio issued Citation No. 6688282 under section 104(a) of the Mine
Act, alleging a violation of section 75.400 of the Secretary’s safety
standards. The citation states, in part:
Coal fines, rock dust and dirt were allowed to
accumulate in the battery box of the Eimco 975 material hauler # 24-19. There were so much accumulations in the
battery box that it pushed the battery up against the fire suppression nozzle .
. . rendering the fire suppression useless.
(Ex. G-7). Inspector Serazio determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to result in lost workdays or restricted duty. Further, he determined that the violation was
S&S, the operator’s negligence was high, and that one person would be
affected. The Secretary proposed a
penalty of $5,961.00 for this citation.
1. Summary
of Testimony
Serazio
testified that he issued Citation No. 6688282 as a violation of section 75.400
because an Eimco 975 material hauler that was parked on the surface had
accumulations of rock, rock dust, and coal fines in its battery box. (Serazio Dep. at 163). Serazio did not test the mixture for
combustibility, but he stated that the top of the battery was covered solely by
coal fines and included no other material.
(Serazio Dep. at 198, 204). The
accumulations forced the battery out of the center of the battery box, pushing
the battery against the fire suppression system. (Serazio Dep. at 167). The battery represented a heat source that
could ignite a fire. (Serazio Dep. at 173).
Serazio
testified that the citation was S&S.
(Serazio Dep. at 171-72). The
combination of the battery and the coal fines created a fire hazard that could
also lead to injuries associated with an explosion from debris and acid. (Serazio Dep. at 165, 172). Serazio testified that the location of the
battery would prevent the fire suppression system from activating in the event
of a fire. (Serazio Dep. at 167). The proximity of the equipment operator to
the battery made it reasonably likely that the operator would sustain an injury
as a result of the hazard, according to Serazio. (Serazio Dep. at 172). A fire or explosion would result in lost
workday or restricted duty injuries. Id.
Serazio
believed that the violation was the result of Respondent’s high
negligence. (Serazio Dep. at 175-76). The hard-packed, dry nature of the
accumulations convinced Serazio that the condition existed for longer than one
shift and maybe even several days. (Serazio
Dep. at 174). Serazio testified that he
spoke with mine management about this type of condition in the opening
conference. (Serazio Dep. at 175). He also stated that this violation was the
result of high negligence while similar violations were the result of moderate
negligence because he found the same problem reoccurring over the course of his
inspection. (Serazio Dep. at 182). Management should have been looking for this
type of violation. (Serazio Dep. at 183).
Terry
Hayes testified that batteries in the material haulers at Elk Creek were
covered by rubber mats to prevent shorts.
(Tr. 446). He testified that he
did not believe that the accumulations would stop the 500 PSI water suppression
nozzle from activating, but he also had no personal knowledge of the condition
cited in Citation No. 6688282. (Tr.
449-50). He mentioned that other fire
protection systems on the equipment included a fuse protection system and a
manual fuel shutoff. Id.
Hayes testified that he did not believe the condition was reasonably likely
to cause an injury because of the presence of fire suppression systems and the
ease with which a miner could flee the equipment. (Tr. 450).
2. Discussion
and Analysis
The
Secretary argues that Respondent committed an S&S violation of section
75.400 by allowing combustible materials to accumulate in the battery boxes of
a material hauler. The battery boxes
were full of dry, solidly-packed accumulations that contained dirt, rock dust,
and coal fines. The accumulations forced
the battery, which is an ignition source, to displace the fire
suppression. Respondent presented no
direct evidence to contradict Serazio’s testimony.
The
Secretary believes that the accumulations contribute to a fire hazard, which is
reasonably likely to cause a serious injury. Once again, the battery served as
an ignition source and the coal fines served as fuel. A fire could cause the battery to explode,
releasing debris or acid and seriously injuring the miner operating the
equipment. As stated in regard to
previous citations, fire suppression does not negate an S&S determination.
According
to the Secretary, the cited accumulations resulted from Respondent’s high
negligence. Serazio addressed
accumulation violations as a problem area in the opening conference and cited
Respondent for several other accumulation violations in the weeks prior to the
issuance of Citation No. 6688282, placing Respondent on notice. Respondent produced no mitigating
circumstances. Respondent should have
known of these conditions, was on notice, and did not provide any mitigating
circumstances, which warranted a high negligence designation for Citation No. 6688282.
Respondent
argues that Citation No. 6688282 was not S&S because the equipment had fire
suppression and the Secretary failed to show that the accumulations were
combustible. Inspector Serazio’s
testimony and evaluation concerning the cited conditions should be disregarded
because he had insufficient knowledge concerning the material hauler to make
his testimony credible. The cited
machinery has automatic and manual fire protection as well as a rubber mat that
covers the battery. The position of the
battery against the nozzle would not stop the fire suppression in the battery
compartment from activating.
I find that Respondent violated
section 75.400; coal dust accumulated in the battery compartment of a diesel
powered hauler, which is an S&S violation of the standard. The cited coal accumulations contributed to a
fire hazard that was reasonably likely to cause serious injury to miners. As stated above with reference to other
citations, Respondent’s arguments pertaining to fire suppression does not
totally eliminate the hazard of a fire starting and, in this instance, does not
affect the S&S designation for this citation. Respondent did not present direct evidence or
testimony concerning the cited conditions; testimony regarding the general
practices of Elk Creek does not negate the facts underlying the citation. I credit Serazio’s testimony concerning both
the conditions and his evaluation of those conditions. Although the accumulations included dirt and
rock and Serazio did not test the accumulations for combustibility, he
testified that the there was a layer of coal on top of the battery that was not
mixed with rock or dirt. This layer of
coal fines rested directly on top of the battery, which is a heat source that
could ignite the coal. Citation No. 6688282
as violation of section 75.400 and was reasonably likely to cause a serious
injury.
I credit
Inspector Serazio’s testimony as to Oxbow’s negligence and I affirm his high
negligence determination. A penalty of $6,000.00
is appropriate for this violation.
III. APPROPRIATE CIVIL PENALTIES
Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. Prior to
the hearing, the parties settled Citation No. 6688269 in Docket No. WEST
2009-1219 in the amount shown below. I have considered the
Assessed Violation History Reports, which are not disputed by Oxbow. At
all pertinent times, Oxbow was
a large mine operator.
The violations were abated in good faith. The penalties assessed in this decision will
not have an adverse effect on Oxbow’s ability to continue in business. The gravity and negligence findings are set
forth above.
IV. ORDER
Based
on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess
the following civil penalties:
Citation/Order
No. 30
C.F.R. § Penalty
WEST 2009-1219
6688118 75.1731(b) $1,000.00
6688119 75.1731(a) 1,000.00
6688120 75.1731(b) 10,500.00
6688121 75.1731(b) 10,500.00
6687977 75.380(d)(1) 3,000.00
6688268 77.1104 1,400.00
6688269 75.380(d)(7)(iv) 633.00
WEST 2009-1353
6688271 75.400 4,000.00
6687983 72.630(b) 4,000.00
6688277 77.1104 1,000.00
6688131 75.1731(b) 1,800.00
6688282 75.400 6,000.00
6688284 75.400 5,000.00
WEST 2011-0084
8469536 75.202(a) 4,000.00
TOTAL
PENALTY $53,833.00
For
the reasons set forth above, the citations are AFFIRMED or MODIFIED, as
set forth in this decision. Oxbow Mining
LLC is ORDERED TO PAY the Secretary
of Labor the sum of $53,833.00 within 30 days of the date of this decision.[9]
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Emily B. Hays, Esq., and Natalie E.
Lien, Esq., Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO
80202-5708
Laura E. Beverage, Esq., and Meredith
A. Kapushion, Esq., Jackson Kelly, 1099 18th Street, Suite 2150, Denver, CO
80202
RWM/bjr
[1] Because Inspector Brewer was not going to be
available to testify at the hearing, by agreement of the parties and with the
consent of the judge, Inspector Brewer’s testimony was taken at a deposition.
[2] Despite not
opposing the motion that occurred during the deposition of Inspector Brewer to
modify the citation to a violation of 72.630(b), Respondent’s argument in its
post-hearing brief addressed a violation of section 72.630(d). (79-80; R. Br. at 62). As the parties presented testimony of the
inspector through this deposition and there was no objection, it became a part
of the record. I therefore accepted the
modification of Citation No. 6687983,
treating it as a section 72.630(b) violation.
[3] Preamble to 30 C.F.R. § 72.630, “Air quality
Standards for Abrasive Blasting and Drill Dust Control,” 59 Fed. Reg. 8318,
8319 (February 18, 1994).
[4] Inspector Serazio was unavailable to testify at the
hearing and his testimony was taken at a deposition by agreement of the parties
with the consent of the judge. He was no
longer employed by MSHA at the time of his deposition.
[5] The Secretary argued with respect to several
citations that I should apply the “missing witness rule” because Oxbow did not
call the operator of the piece of equipment involved to testify at the
hearing. I deny the Secretary’s requests
that I draw inferences based upon the fact that equipment operators did not
testify.
[6] The testimony
of Evans concerned an experiment that he performed several days after the
issuance of the citation. (Ex
R-14). Evans had no first-hand knowledge
of the cited conditions; there is no way for Evans to know if the conditions of
his experiment were the same as the conditions cited by Serazio. The experiment performed by Evans,
furthermore, was done in a haphazard and unsophisticated manner and I do not
credit the results.
[7] Regarding other
citations in this hearing, Serazio used stronger language to describe what made
particular citation “reasonably likely” to cause injury. (Serazio Dep. at 34, 38, 131).
[8] Serazio
provided no credible explanation or argument to show that hydraulic oil is
reasonably likely to cause an injury based upon contact or slipping.
[9]
Payment
should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.