FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION
1331
Pennsylvania Avenue N.W. Suite 520 N
Washington,
DC 20004-1710
Telephone
No.: 202-434-9933
April 19, 2013
|
SECRETARY OF LABOR, v. ICG Knott County, LLC, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING Docket No. KENT 2011-1156 A.C. No. 15-19447-254050-01 Docket No. KENT 2011-1157 A.C. No. 15-19447-254050-02 Mine: Kathleen |
DECISION
Appearances: Elizabeth L. Friary, Esq., Office
of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the
Petitioner
John M.
Williams, Esq., Rajkovich, Williams, Kilpatrick, & True, Lexington,
Kentucky, for the Respondent
Before:
Judge Moran
Introduction
Five citations remain at issue in these dockets.[1]
From Docket No. KENT 2011-1156,
Respondent, ICG Knott County (“ICG”), disputes the validity of the order in
Citation No. 8233876, issued under Section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), for an inadequate on-shift examination on February 26, 2011.[2]
If upheld, issues remain as to whether that
violation was significant and substantial (“S&S”), of high negligence and
an unwarrantable failure. From Docket
No. KENT 2011-1157, ICG contests the validity of Citation No. 8233872, for alleged accumulations of combustible
materials along the Kathleen Mine’s No. 4 conveyor belt line and the S&S
designation too. For Citation Nos.
8233873, 8233875, and 8233877, Respondent concedes those violations, but
challenges the significant and substantial findings which were made for each of
them.
For the reasons which follow, the
Court finds that each of the violations was established along with all
respective associated special findings.
Further, although each matter cited stands on its own in these findings,
there is an additional consideration that the relatively close proximity of
these violations and their interrelated nature buttresses these
conclusions.
Findings of Fact
Events
preceding the discovery of the alleged violations which raised concerns for the
MSHA Inspector
On February 28, 2011,
MSHA Inspector Berl Hurt[3]
conducted an examination of the Kathleen Mine, an underground coal mine
operated by ICG Knott County in Knott County, Kentucky.[4] He had previously inspected the No. 1 and 2
belts, and intended to next inspect the No. 3 and 4 belts on this visit. Tr. 16,
21.[5]
Inspector Hurt arrived at the Kathleen Mine around 8
a.m., at which time he met with mine superintendent Randy Pack to examine books
before going underground. [6]
Shortly thereafter, mine foreman Steve
Hoskins escorted the Inspector underground around 8:30 a.m.
Tr. 39. Hoskins brought Inspector
Hurt to the No. 3 head drive, where he then met with Perry Holbrook,[7]
the mine’s day shift belt foreman, and began the inspection. Hoskins left the Inspector with Mr. Holbrook
at the No. 3 head drive, the starting point for the inspection of the No. 3
belt. Tr. 21.
Mr. Holbrook accompanied Inspector Hurt during his examination
of the belts.[8]
They crossed over the No. 3 belt and
began walking on the offside of the belt up toward the No. 4 head drive. Tr.
22, 24.[9] They then walked to the No. 4 head drive and continued
from that point to walk the narrow side of the No. 4 belt, along the coal ribs.
Tr. 24. At approximately 9:45 a.m., Hurt
and Holbrook arrived at the No. 4 head drive and prepared to walk up the belt
line. Tr. 40. At this point Holbrook asked Inspector
Hurt if he wanted to go outside. Tr. 24. The Inspector testified that Holbrook
mentioned “several times” that he would take Hurt “back outside once [he] got
to the [No. 4] drive.” Id. Hurt had traveled with Holbrook on previous
inspections, and believed Holbrook was acting differently on this day. Tr. 132. Holbrook’s statements sparked Hurt’s suspicions
and made him decide to inspect the No. 4 belt as well, “because there’s
something obvious [Holbrook]’s wanting not to check.” Tr. 24. As a normal workday for Inspector Hurt would
end around 3:30 p.m., interrupting it before 10 a.m. was odd, to say the least.[10] Tr. 40.
Citation No. 8233873
The belt alignment citation
As Inspector Hurt and Mr. Holbrook started along the
No. 4 belt, the Inspector observed the belt rubbing the bottom stands within
the first few breaks in the No. 4 belt. Tr. 24-25.[11]
Conveyor belts must be
properly aligned to prevent the moving belt from rubbing against the structure
or components.
The citation alleged a violation of this standard,
that it was caused by moderate negligence and was reasonably likely to cause
lost work days or restricted duty arising from such injuries as smoke inhalation.
Exh. S-2; Tr. 37. It was also marked
significant and substantial. Hurt marked
the hazard as moderate negligence because the rubbing “was on the off-side, so
[miners] could examine the belt from the wide side which they should be able to
see.” Tr. 37.
The Inspector explained that a belt needs to be properly
aligned to prevent rubbing against the belt’s structure or components;
otherwise, this rubbing creates a potential fire hazard, as the belt rubbing
the structure could heat up and create friction that would cause smoke or a
fire to catch on the belt itself or on nearby coal accumulations. Thus, if normal mining conditions continued,
friction from the belt rubbing would heat the belt and result in a fire. Tr.
33-34.
Significantly, Inspector Hurt saw this rubbing occur
at seven different locations at the No. 1, 2, and 3 breaks. Tr. 29,
47. He could tell the stand was rubbing
in seven locations because the rubbing was “easily seen” upon walking up to it,
as the belt was “rubbing up against and cutting some of the stands.” Tr. 30. The paint on the stand had rubbed off and the stands
were “grooved” at the points where the belt had rubbed the stand, which led the
Inspector to believe that the condition had existed for several shifts. Tr. 32,
39, 116. Neither Inspector Hurt nor Mr.
Holbrook touched the misaligned portion; Hurt based his assessment on the
obviousness of the misalignment and that heat would naturally be generated from
such a misalignment. Tr. 34. Hurt stated
that he could have touched it to check the heat, but did not because it would
have been dangerous to do that. Tr. 33.
Inspector Hurt showed this misalignment to Holbrook,
who then “took a hammer and…hit the thing…and straightened the belt right up.”
Tr. 164. Holbrook, for his part, elaborated
that the belt “wouldn’t rub all the time, but a crooked piece of belt would
come through and it would rub hard, you know, for a little bit and then it
would clear up. You know, it wasn’t no problem to fix it.” Tr. 165. In contrast to the Inspector’s testimony, Mr.
Holbrook did not see any places where the belt was cutting notches or grooves
into the belt stand. Id.
However, on cross-examination, he said that he did notice that paint had
rubbed off the belt from the misalignment. Tr. 181.
Citation No. 8233872
Accumulations
Citation
Inspector Hurt and Mr.
Holbrook continued walking along the off-side of the No. 4 belt when they found
accumulations of combustible material in the form of loose coal and dust in
that area. Tr. 42-43. The Inspector
measured the accumulations, which ranged in size from a thin layer to 14 inches
in height. Tr. 43. The bottom of the
belt and the bottom belt rollers were approximately eight to ten inches off of
the ground. Tr. 44. The accumulations
spanned for a distance of a break and a half, or approximately 100 feet, and were
built up on both sides of the belt. Tr. 43-44. There were approximately three breaks,
or 200 feet, a relatively close distance in the Court’s view, between the
accumulations cited here and the misaligned belt the Inspector found, per
Citation No. 8233873, just discussed supra.
Tr. 46-47.
Inspector Hurt then issued Citation No. 8233872 for a violation
of 30 C.F.R. § 75.400, which provides:
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.
This citation noted that the violation created a heat
source that, in the Inspector’s view, was S&S, caused by moderate negligence,
and was reasonably likely to cause lost work days or restricted duty. Exh. S-1.
Hurt expressed that the rubbing belt,
continuing in such a fashion, and so close to dry coal accumulations, could
cause a fire. Tr. 52. He believed this
hazard would have injured one person, namely, either the belt examiner or the
belt shoveler. Tr. 54. Although he
marked the condition as moderate negligence, based on the amount of time that
he believed had elapsed to create the size of the accumulations, upon
reflection, he believed that he “should
have marked it high [negligence]. I really think I should.” Tr. 54.
Inspector Hurt issued this citation because the
combustible material that had spilled off of the conveyor belt created a smoke
and fire hazard. Tr. 45.[12] He could tell by looking at the accumulations
along the No. 4 belt that they were black and dry. Tr. 47. He did not “feel” whether the coal was wet, but explained that
determining whether coal is wet or dry is similar to determining a wet rock
from a dry rock in that “it’s real shiny when it’s wet and then kind of dull
looking when it’s dry.” Tr. 48. The
dryness of the coal was therefore obvious to the Inspector, and he noted that
the accumulations extended for a break and a half (about 110 feet). Id.
He stated that although the belt rollers were not rubbing the
accumulations, he did notice that the coal accumulations were piled above the
rollers and that “someone had cleared out from underneath the roller to keep it
from turning in the accumulations.” Tr. 49. It was the Inspector’s view that the
accumulations were at such a level that, given the misaligned belt, another
spill could have had the rollers turning in the coal “within just a few
minutes.” Tr. 50.
One belt shoveler was already shoveling the
accumulations on the wide side of the No. 4 belt at the time Hurt and Holbrook
entered the area. Tr. 50. It should be
recalled that ICG Knott had tried to divert the Inspector from this area. Accordingly, Hurt believed that the miner was
there in an effort to clean up the accumulations before he reached the area. Id. The relatively close proximity of two
violations, the rubbing belt and the coal accumulations, created an even
greater concern of a fire hazard in the Inspector’s estimation. Tr. 51.[13]
Mr. Holbrook testified that he did not know about the
accumulations until he arrived at the No. 4 belt with the Inspector. He asserted that the accumulations causing the
violation were “fresh” and that the shoveler who was already down there was
working on a spill in another area of the No. 4 belt. Tr. 178. On cross-examination, Holbrook admitted that
he considered a break and a half of accumulations to be a big spill. Tr.
181. He did not touch the accumulations
to check if they were wet, but he admitted that that area with the deepest
spill was neither muddy nor wet. Id.
Hurt issued a Section 104(d)(1) order later during the
inspection,[14]
at which time Holbrook shut down the No. 4 belt and brought in five or six
other miners to shovel the accumulations and rock dust around the belt, all in
order to abate the citation. Tr. 56-57.
Citation No. 8233875
The
fire-fighting equipment citation
Following the issuance of the two citations along the
No. 4 belt, Inspector Hurt and Mr. Holbrook traveled down to the end of the
700-foot-long No. 4 belt to the point at which this belt adjoined the No. 5 belt
head drive. Hurt observed that there was no fire-fighting stand, nor any nozzle attached to the fire-fighting hose at
the No. 5 head drive. Tr. 58-59.[15] Hurt also saw a fire-fighting valve lying on
the ground, detached from the No. 4 tailpiece, and further noticed that fire
hose outlets were not placed at 300-foot intervals along the No. 4 belt. Tr.
59, 61.[16] Hurt therefore issued the third contested
citation, No. 8233875, for violating 30 C.F.R. §75.1100-(2)(b). That standard provides:
In all coal mines,
waterlines shall be installed parallel to the entire length of belt conveyors
and shall be equipped with fire hose outlets with valves at 300-foot intervals
along each conveyor and at tailpieces. At least 500 feet of fire hose with fittings
suitable for connection with each belt conveyor waterline system shall be
stored at strategic locations along the belt conveyor. Waterlines may be
installed in entries adjacent to the conveyor entry belt as long as the outlets
project into the belt conveyor entry.
This citation was marked significant and substantial,
caused by moderate negligence, and reasonably likely to cause lost work days or
restricted duty. Exh. S-3. Inspector Hurt
believed it would be too hard to fight a fire in those conditions without all the
fire-fighting equipment (hose, nozzle, outlets, and valves) readily available
at their proper locations. Tr. 77.
The detached fire valve[17]
lying on the ground next to the water line, indicated to Inspector Hurt that
someone had prior knowledge of this violation. This conclusion was equally
clear to the Court. The Inspector explained
that in order to remove a fire valve from a water line, the water line outby must
first be shut off. Tr. 62. Once the water line has been turned off, the
valve can be physically removed from the water line, and then the hose line can
be reconnected. Id.[18]
Mining has to halt when the water supply
stops, because water is constantly needed in each section for ventilation
purposes to keep dust down, as the continuous miner cuts coal. Tr. 63.
Although Inspector Hurt marked this violation as displaying
moderate negligence, as with Citation No. 8233872, upon reflection, he
testified that he “should have marked high [negligence for this violation too]…because
it was obvious that someone knew about it. They had to physically remove it and
left the other one [lying] beside it…When you remove a valve, several people in
the mine from the outside to the section know about it because you have to
physically…shut the water off.” Tr. 78-79.
Hurt believed that the valve was broken; therefore someone had removed
it, but rather than shutting down production further, they had failed to
replace it. Tr. 62. He recalled that
Holbrook said something to the effect that someone had forgotten to replace the
broken valve. Tr. 68. Hurt’s hunch that
the valve was broken was confirmed when Holbrook shut off the water and installed
the valve that had been lying nearby on the ground, which valve then started
leaking. Tr. 61, 71.[19] Holbrook then contacted Randy Pack on the
surface to bring a new fire valve down. Tr. 71. Two valves and a nozzle were then delivered and
installed to abate the citation. Id.
Respondent’s Perry Holbrook agreed that the fire valve
was not attached to the water line, and that a valve was lying nearby on the
ground. Tr. 172. When Hurt told Holbrook
that he was going to issue a citation for the broken valve, Holbrook told him,
“I can fix that. Right here lays one.” Tr. 172. However, as noted, when he tried
to install it, he found out that the valve was defective, and therefore he had
to order that another one be installed. Holbrook did not know when the fire
valve broke, who removed it, or when it was removed. Tr. 173. He testified that the first time he ever
noticed the broken valve was during the February 28 examination with Inspector
Hurt:
The day that we walked in on
[the valve], it was gone. It’s like another shift before me, something
happened, and they took it out…It was probably there before, but now, the day
[Hurt and I] got there—and keep this in mind. I hadn’t been there prior to this
that day, so I hadn’t been there since Saturday noon. Because, I mean, we
[were] usually out of there by 1:30, 2:00 on Saturdays. Tr. 179.
Mr. Holbrook did not challenge Inspector Hurt’s
issuance of this citation for the broken valve, missing nozzle, or improperly
placed valve during the inspection. Tr. 68.
Unlike the valve, which was, albeit defective, lying
on the ground, the nozzle, which was supposed to be attached to the fire hose
outlet at the No. 5 head drive, was missing.[20] Inspector Hurt testified that Mr. Holbrook told
him “something had happened to it and they had failed to replace it.” Tr. 64. Nozzles are normally stored along with their
fire-fighting hose, and without a nozzle, a fire hose is rendered useless. Tr.
64-65.[21] Holbrook had no memory of seeing a nozzle at its
required location during the inspection and he did not know how it went missing
or who took it from its proper location. Tr. 172.
In addition to the broken valve and missing nozzle,
Inspector Hurt also observed that the next nearest fire-fighting valve to the
No. 5 head drive was 420 feet away, located back along the No. 4 belt. Tr. 63.[22] At hearing, Hurt marked the location of this
fire valve as Point “C” on the map of the Kathleen Mine. Exh. JE1. Fire-fighting valves are required at 300-foot
intervals and at the belt’s tailpiece, but here there was neither a valve installed
at the tailpiece, nor was another valve present for 420 feet. Tr. 63. A fire hose was located near the No. 5 head drive,
but Hurt asserted that it could not have been used in this area because neither
an outlet nor a nozzle was available at that point. Tr. 72. Furthermore, while the automatic fire
suppression system was present at the No. 5 head drive, there was no such
system along the No. 4 belt. Tr. 72-73.
With no valve at the required 300-foot interval, but
rather some 420 feet away, Hurt stated that if a fire started at the No. 5 head
drive, a miner would not have the equipment available to immediately start fighting
it. Tr. 73. Instead, a miner would first
have to travel 700 feet down to the No. 4 head drive to retrieve the nearest
nozzle, then head back down the No. 4 belt to the hydrant located at the
420-foot mark to hook it up. Tr. 73-74. There was a fire hose located at the No. 5
head drive, but the only way to fight a fire under such conditions would be to
get the nozzle and hose from the No. 4 head drive and hook the equipment up at
the 420-foot mark. Tr. 75. Although, at
500-feet long, the hose could have reached the entire belt and watered it, the
key point was that to hook up the hose to fight a fire in that region would have
taken a longer period of time. Tr. 76. Obviously, time is critical if a fire
occurs in a mine.
Although the Inspector did not check whether there was
a fire stand located 300-feet inby the No. 5 belt from the No. 5 head drive, he
asserted that a fire stand at that location would not have lessened the fire
hazard. Tr. 78. Fire stands, he
explained, are specifically required at tail pulleys because “there’s so much
fire hazard involved with a head drive. You’ve got electrical, mechanical
bearings that could heat up and create fires, and that’s why they are
required.” Id.
Citation No. 8233877
The damaged rollers citation
Following the citations just discussed, Inspector Hurt
also issued Citation No. 8233877 for stuck rollers along the No. 4 belt (Ex.
S4).[23] 30
C.F.R. § 75.1731(a) provides:
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.
Inspector Hurt found eleven (11) stuck rollers situated
throughout the length of the No. 4 belt, which were located on its top portion,
on both the travel-way and narrow side. Tr. 81, 83-84. He issued this citation in conjunction with
the citations for the coal accumulations and seven misaligned belt areas, also
along the same No. 4 belt (Nos. 8233872 and 8233873), for creating a fire
hazard. Exh. S-4; Tr. 82. Unlike normal rollers, which are free
turning, the metal of a stuck roller will rub against the rubber of the belt,
which causes friction and creates a fire hazard. Tr. 83. Hurt explained he that did not touch the
rollers because he could visually see that they were not turning. Tr. 84.
Holbrook also saw the stuck rollers. Inspector Hurt
explained that Mr. Holbrook and “three or four other men” who were brought in
from the section “took a hammer to some of them and actually physically removed
the entire structure, the three rollers from that area” to abate the violation.
Tr. 84-85. Inspector Hurt stayed with
Holbrook and the other miners as they made these repairs, which was at the same
point that he issued the 104(d)(1) order. Tr. 85.
The Inspector considered the stuck rollers as significant
and substantial, caused by moderate negligence, and reasonably likely of
causing lost workdays or restricted duty. Exh. S-4. He determined that this condition was
reasonably likely to cause injury “because a confluence of factors was
involved…the accumulations, the belt rubbing, plus the stuck rollers and no
fire-fighting equipment in the area.” Tr. 89. The Court agrees with this cumulative
assessment. Here again, the Inspector believed that he should have marked the
violation as high negligence, rather than moderate, because a belt examiner
should have seen the stuck rollers and because they looked like they had been
stuck for several shifts. Tr. 90.
Inspector Hurt explained that rollers act like
scrapers and scrape accumulations off of the belt as the belt travels across
the rollers. That action can create
“accumulative [gob]” on both sides of the rollers, and in turn can cause the
rollers to freeze up. Tr. 80. Hurt elaborated
about the condition of the stuck rollers
along the No. 4 belt: “Some of them [were] worn shiny where the belt had rubbed
against them, and all of them had accumulations…that’s how obvious you could
see it.” Tr. 80. When a belt rubs metal
for an extended period of time, the paint will wear off of the rollers and they
appear shiny. Tr. 90-91.
Citation No. 8233876
The
inadequate on shift examination citation
After Inspector Hurt issued the citation for the
broken valve (No. 8233875), he issued a Section
104(d)(1) order, Citation No. 8233876, which resulted in the No. 3 and No. 4
conveyor belts being turned off. This,
in turn, caused a shutdown of Section 2 from producing coal. Tr. 105. Respondent disputes that this order was
validly issued. The order was based upon
30 C.F.R. § 75.362(b), which
provides:
During each shift that coal
is produced, a certified person shall examine for hazardous conditions along
each belt conveyor haulageway, where a belt conveyor is operated. This
examination may be conducted at the same time as the preshift examination of belt
conveyors and belt conveyor haulageways, if the shift examination is conducted
within three hours before the oncoming shift.
The cited provision requires that an on-shift examiner
inspect the entire belt line for hazards while coal is being produced.[24] Hurt’s examination took place on a Monday
morning; therefore, the most recent on-shift examination to precede his
inspection occurred on Saturday, February 26, 2011, since the mine did not
produce coal on Sundays. Inspector Hurt
explained that the purpose of an on-shift examination is to “know what’s
actually going on and correct it,” and also “to see if you have a trend. If you
keep reporting that it needs cleaning, needs dusting or stuck rollers, it shows
over a period of time that this what’s going on…[with the] # 4 belt or # 3 belt.”
Tr. 101.
Inspector Hurt found these conditions to be both
S&S and an unwarrantable failure. He also marked it as high negligence due
to the readily recognizable conditions, which included obviously visible
hazards, such as the pile of coal accumulations, the stuck rollers while the
belt was operating, and the fact that someone had to physically remove the fire
valve at the No. 5 head drive. Tr. 107. Hurt
found no mitigating factors and designated the order as arising under 104(d)(1) because the conditions had existed for
several shifts, some for longer than others, and because two on-shift examiners
had conducted on-shift examinations on Saturday. Id. Yet the obvious conditions evaded their
reports.
As just noted, none of the conditions Inspector Hurt
found were recorded in recent pre-shift or on-shift examination reports, but he
believed that the day-shift examiner and the second-shift examiner on February
26 should have noticed these conditions. Tr. 92, 108. According to the belt books from the day shift
on February 26, no hazards were observed. Tr. 98-99.[25] As
explained earlier, the examiners should have either corrected the hazards or
posted the area and recorded the hazards. Tr. 98.
Two on-shift examinations were conducted on Saturday,
February 26.[26]
Perry Holbrook examined the No. 4 belt during
the first shift, and testified that he did not see the coal spillage found that
following Monday, nor did he notice the eleven stuck rollers, the belt rubbing
against the structure, the broken valve at the No. 5 head drive, or the missing
fire nozzle. Tr. 174. He did concede,
however, that the fire valve located at the Point “C” 420-foot mark was in the
same place that Saturday as it was the following Monday. Tr. 175.
Lawrence Kendrick[27] performed
the second on-shift examination on February 26 and testified that “the only
thing I found on my on-shift when I examined [the No. 4 belt] was a couple of
rollers that weren’t turning. They had a
little mud in them and stuff and I corrected them.” Tr. 190-191. He corrected the stuck rollers during the
on-shift examination by hitting them with a block hammer. The mud would then fall
out and the rollers would start turning. Tr. 191. Mr. Kendrick testified that he did not see the
belt rubbing the structure or coal accumulations along the belt on February 26.
Tr. 191. He also did not see a nozzle
missing at the head drive. Tr. 193. Kendrick did not record his examination in the
books, adding that he did not consider stuck rollers, small accumulations, or a
belt rubbing a structure to be safety hazards. Tr. 191, 195.
Dennis Ratliff, section foreman in Section 2 of the
Kathleen Mine where the No. 3 and 4 belts were located, worked the shift that
started at 11 p.m. and ended around 8:20 am on Monday, February 28. Tr. 199,
201. As part of his duties, Ratliff
performed the pre-shift examination for the first shift while the belt was not
producing coal. Tr. 200. At around 5:30
a.m., he traveled the entire length
of the No. 4 belt. He testified that he did
not see coal accumulations along the No. 4 belt at this time. Tr. 201.
A number of miners were brought into the area to abate
each of the violations. Three or four
men were called in to help Holbrook remove the stuck rollers; five or six
additional men helped shovel away the coal accumulations; and another group of men
came and installed another fire valve between the No. 5 head drive and the 420-foot
marker on the No. 4 belt. Tr. 85-86. Superintendent Randy Pack came down to the
scene when Hurt’s issuance of the 104(d)(1) order caused production to stop. Steve Hoskins, who had escorted Mr. Hurt into
the mine, was also present with “guys from the section” who assisted with the
abatement. Tr. 86.
Legal Standards
The issues before the Court involve safety standards
required on and in the areas surrounding conveyor belts. To place these standards in context, the
legislative history of the Mine Act details Congress’ concern with the hazards
associated with such belts, noting that “many fires occur along belt conveyors
as a result of defective electric wiring, overheated bearings, and friction;
and therefore, and examination of belt conveyors is necessary.” S. Rep. No.
91-411, at 57 (1967), reprinted in
Senate Subcomm. On Labor, Comm. On Labor and Public Welfare, Part I Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, at 183 (1975).
Gravity (“Seriousness”)
The gravity
penalty criterion under Section 110(i) of the Mine Act, 30
U.S.C. § 820(i),
is often viewed in terms of the seriousness of the violation. Sellersburg
Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736
F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9
FMSHRC 673, 681 (April 1987). However,
the gravity of a violation and its S&S nature are not the same. 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
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured. The analysis should not equate gravity, which
is an element that must be assessed in every citation or order, with
“significant and substantial,” which is only relevant in the context of
enhanced enforcement under Section 104(d). See Quinland Coals Inc., 9
FMSHRC, 1614, 1622, n.1 (Sept. 1987).
Significant
and Substantial
A violation is properly designated significant and
substantial if, based on 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 Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies
Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained that:
In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard - that is, a measure of danger to safety -
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature. Id. at
3-4.
In U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125 (Aug. 1985), the Commission held:
We
have explained further that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.”… We have
emphasized that, in accordance with the language of section 104(d)(1), it is
the contribution of a violation to the cause and effect of a hazard
that must be significant and substantial. Id. at 1129 (internal
citations omitted) (emphasis in original).
The question of
whether a particular violation is significant and substantial must be based on
the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC
498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec.
1987). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). S&S enhanced enforcement is applicable
only to violations of mandatory standards. Cyprus Emerald Res. Corp. v.
FMSHRC. 195F.3d42 (D.C. Cir. 1999).
S&S
Determinations Involving Fire Hazards
When evaluating the reasonable likelihood of a fire,
ignition, or explosion, the determination hinges on whether a “confluence of
factors” was present based on the particular facts surrounding the violation. Enlow Fork Mining Co., 19 FMSHRC 5, 9
(Jan. 1997). Some factors relevant to
this determination include the extent of the accumulations, possible ignition
sources, the presence of methane, and the type of equipment in the area. Utah Power & Light, 12 FMSHRC 965,
970-71 (May 1990).
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, 970-971 (May 1990). The dampness
of nearby coal and coal dust deposits are not dispositive of a non-S&S
finding. Williams Brothers Coal Co., 22
FMSHRC 57, 63-65 (Jan. 2000). The
Commission has further held that a violative “accumulation” exists where the
quantity of combustible materials is such that, in the judgment of the
authorized representative of the Secretary, it likely could cause a fire or
explosion if an ignition source were present. Old Ben Coal Co., 2 FMSHRC
2806, 2808 (Oct. 1980) (“Old
Ben II”).
Negligence and Unwarrantable Failure
Negligence is defined as “conduct, either by
commission or omission, which falls below a standard of care established under
the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d)
(2011). Under the Mine Act, “A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety and health of miners and to take steps necessary to
correct or prevent previous hazardous conditions or practices.” Id. Moderate negligence exists when “the operator
knew or should have known of the violative condition or practice, but there are
mitigating circumstances,” while high negligence is when “the operator knew or
should have known of the violative condition or practice, but there are no mitigating factors” Id. (emphasis added).
The unwarrantable
failure terminology is taken from Section 104(d) of the Act, 30
U.S.C. § 814(d),
and refers to more serious conduct by an operator in connection with a
violation.
Consolidation Coal Co., 22
FMSHRC 340, 353 (March 2000). In Emery
Mining Corp., the
Commission determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987). It is “conduct
that is not justifiable and inexcusable [and] is the result of more than
inadvertence, thoughtlessness, or inattention” and is characterized
by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or a “serious lack of reasonable care.” Id. at 2001,
2003-04. The Commission has also defined unwarrantable failure as “intentional or
knowing failure to comply or reckless disregard for the health and safety of
miners.” Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189,
194 (Feb. 1991). See also Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).
The
Commission has recognized that whether conduct is “aggravated” in the context
of unwarrantable failure is determined by considering the facts and
circumstances of each case to determine if any aggravating or mitigating
circumstances exist. Aggravating factors
include the length of time that the violation has existed, the extent of the
violative condition, whether the operator has been placed on notice that
greater efforts were necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation was obvious or posed a
high degree of danger, and the operator's knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds,
195
F.3d 42 (D.C. Cir. 1999); Midwest Material, 19 FMSHRC at 34; Mullins
& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258,
1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of
each case must be examined to determine if an actor's conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.
The abatement
measures taken in order to terminate the Order are a relevant consideration
when determining whether the violation was extensive. Pine Ridge Coal Co., 33 FMSHRC 987 (April 2011); Peabody Coal Co., 14 FMSHRC 1258, 1263 (explaining
that extensiveness can be shown by conditions that require significant
abatement measures).
An operator’s supervisors
are held to a high standard of care, and a foreman’s failure to recognize the
violation and take reasonable precautionary measures is a factor supporting an
unwarrantable failure finding. Pine Ridge
Coal Co., 33 FMSHRC at 1023. The
Commission has affirmed ALJ unwarrantability determinations based on an ALJ’s
inference that the operator did not view the condition as hazardous. Maple Creek Mining, Inc., 27 FMSHRC 555
(Aug. 2005).
Credibility
of Inspector’s Testimony
The Commission and courts have observed that the opinion of
an experienced MSHA inspector that a violation is S&S is entitled to
substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79
(Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th
Cir. 1995).
DISCUSSION
Citation Nos. 8233872, 8233873, & 8233877
As noted above, Inspector Berl Hurt marked the
violations for Citation Nos. 8233872, 8233873, and 8233877 as S&S, caused
by moderate negligence, and reasonably likely to cause injury. The Court affirms those findings on all three
citations. Inspector Hurt’s notes related that these violations were issued in
conjunction with one another for creating a heat source. Exh. S-1, S-2, S-4. Given
the interrelatedness of these three violations in their physical proximity to
each other and their respective extensiveness, the Court will analyze these
violations jointly.
Citation No. 8233872.
Alleged violation of 30 C.F.R. 75.400 for coal and dust accumulations.
As noted, supra,
the standard in issue, 30 CFR § 75.400,
entitled “Accumulation of combustible materials,” provides: “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.”
Accumulation violations under 30 C.F.R. 75.400.
The Commission has spoken to this standard and
circumstances which support an S&S determination. In Mid-Continent
Resources, 16 FMSHRC 1218, (June 1994), the Commission reversed the judge’s
determination that accumulations along a conveyor belt were not S&S in
light of the fact that he found “potential ignition sources such as frictional
contact between the belt rollers and the accumulations, the belt rubbing
against the frame, electrical cables for the shark pump, the electrical devices
for the longwall and one area in the longwall that was not being
maintained.” Others factors were noted
by the Commission, including the judge’s failure to take into account continued
normal mining operations. It also
specifically rejected the proposition that spontaneous combustibility of coal
is required for an S&S finding. Id. at 1222. Acknowledging that this mine’s coal was low
in combustibility, the Commission then noted that “coal is, by its nature,
combustible.”
Thereafter, in May
1997, the Commission addressed the same issues in Amax Coal, 19 FMSHRC 846. As
with Mid-Continent Resources, at
issue were accumulations along a belt. Amax asserted that the judge essentially
made a 75.400 violation, per se
S&S. The Commission did not see it
that way, rejecting the claim that a “more probable than not” test must be
applied to support an S&S finding and finding that there was substantial evidence
to support the determination that “there was a reasonable likelihood of an
injury-producing event.” Noting that the judge determined that there
was a reasonable likelihood of an injury-producing event and that there was
substantial evidence to support that determination, the Commission stated that
a “15 foot section of the mother belt running on packed dry coal and in loose
coal was a potential source of an ignition.”
Even where such coal is wet, the Commission offered, “accumulations of
damp or wet coal can dry out and ignite.” Id.
at 849.
Citation No. 8233872—Coal and Dust Accumulations.
a.
Secretary’s
Contentions
In support of Inspector Hurt’s findings that this
violation was significant and substantial, caused by moderate negligence, and reasonably
likely to cause injury in the form of lost workdays or restricted duty, the
Secretary argues that the Kathleen Mine had three identifiable sources of
ignition in the area: (1) a misaligned belt, (2) stuck rollers, and (3) battery
powered buggies. Each created a heat source which could contribute to a fire
hazard. Sec. Br. 22.[28]
The Secretary points to testimony that the coal and
loose dust accumulations were extensive, as they extended over 100 feet on both
sides of the No. 4 belt and reached up to 14 inches in height. It notes that Perry Holbrook’s testimony
that the area with the deepest spill was fresh and dark was at odds with Inspector
Hurt’s assertions that the accumulations were dry and appeared to have been
there for an extended period of time. Given
the potential sources of ignition in that area of the mine, the Secretary
contends that there was a reasonable likelihood that the extensive
accumulations, combined with the ignition sources, could have resulted in a
fire, causing serious injuries. Additionally, the area beneath the rollers had
been previously shoveled, while the rest of the accumulations remained. This
was indicative that someone was aware of this accumulation, at a time prior to
Mr. Hurt’s examination.
b.
Respondent’s Contentions
Respondent disputes whether the standard was violated
for coal accumulations along the No. 4 belt. Even if this standard had been violated, Respondent
further contends that the Secretary has failed to meet his burden of proving
that this was an S&S violation. Mere
spillage of coal is not enough to warrant a violation; rather the Commission
has explained that “it is clear that those masses of combustible materials
which could cause or propagate a fire or explosion are what Congress intended
to proscribe.” Secretary v. Old Ben Coal
Co., 2 FMSHRC 2806, 2808 (Oct. 1980). Such spillage must show that “it likely could
cause or propagate a fire or explosion if an ignition source were present” Id. Section Foreman Dennis Ratliff’s
testimony asserts that the spillage was not present at 5:30 a.m. and it is
likely that the spillage was caused by misalignment of the belt. Also, a miner was already cleaning the belt
when Hurt arrived. Although the rollers
were admittedly stuck, they were not rubbing, thus the stuck rollers were not
an ignition source. Resp. Br. 13. There
was no heat produced according to Holbrook, and Inspector Hurt never felt for
the heat.
Respondent also
argues that the Secretary cannot prove the existence of any ignition source;
therefore, even if a violation is established, it cannot be S&S. The only two ignition sources, according to
the Respondent, were the rubbing belt and the stuck rollers. Resp. Br. 13. When
asked on cross-examination whether the belt rubbing a stand would cause an ignition
of the accumulations, Inspector Hurt responded that it was probably not likely
to cause an ignition. Tr. 114. Furthermore,
the stuck rollers were not an ignition source because Hurt could not place the
rollers in relation to the accumulations and he did not touch the rollers to
feel for a heat source. Resp. Br. 13.
Citation No. 8233873—misaligned belt rubbing against
structure
a.
Secretary’s
Contentions
The Secretary argues that the misaligned belt that
rubbed against the metal structure created a fire hazard that warranted
Inspector Hurt’s S&S and moderate negligence designations. Mr. Hurt located
seven different misaligned stands that served as frictional heat sources. The Secretary asserts that the
frictional heating caused by the belt rubbing the metal structure created a
reasonable likelihood of a risk of fire, which could result in serious injuries
to miners. Sec. Br. 19.
Inspector Hurt
testified that heat is generated when a belt rubs against a metal stand. Tr. 33. When evaluating the reasonable likelihood of a
fire, ignition, or explosion, the Commission looks to whether a “confluence of
factors” were present, based on the facts surrounding the violation. Enlow Fork Mining Co., 19 FMSHRC 5, 9
(Jan. 1997). According to the Inspector,
the confluence of factors here included the built-up coal accumulations, along
the
700-foot No. 4 belt, and which accumulations
were dry, and the heat generated from the rubbing, which could travel toward the accumulations, creating
an ignition source. Sec. Br. 19-20. Although the cited accumulations were three
breaks inby the misaligned belt, ignition was possible because the portion of
the belt that was rubbing the structure and generating heat was traveling
toward the accumulations. Id. Furthermore, regarding the moderate
negligence designation, the Secretary argues that the hazardous conditions were
obvious, existed more than one shift, and should have been observed by any
prudent examiner.
b.
Respondent’s
Contentions
Respondent does
not dispute that the standard was violated for the misaligned belt; rather, it
contests the S&S designation, asserting that there was not a reasonable
likelihood of serious injury. This
contention is based upon Inspector Hurt’s testimony that the condition was
“probably not” likely to cause a fire. Tr. 114. Furthermore, Hurt testified that he did not
touch the rollers to determine if they were hot. Tr. 84. Respondent also points out that
Mr. Hurt’s notes contained no reference to the stands being cut or forming
“grooves” where the belt was cutting the stand, and that this undermines his
credibility. Tr. 32, 116; Resp. Br. 15. Further, the Inspector did not ask anyone
whether the belt was rubbing the structure, nor had he ever seen a belt ignite under
such circumstances, and he did not know how long it would take the belt to
start smoking from the friction. Tr. 118-119.
Citation
No. 8233877—stuck rollers
a.
Secretary’s
Contentions
Inspector Hurt’s
report designated the eleven stuck rollers along the No. 4 belt as S&S,
caused by moderate negligence, and reasonably likely to result in injury. He testified that the poor condition of the
rollers was obvious, as some were shiny and had been worn flat due to friction.
During the inspection, three rollers were replaced, and the others were unstuck
by a hammer. Tr. 164. The Secretary
agrees that the gravity of the violation should remain S&S because there
was a reasonable likelihood that stuck rollers would contribute to a fire,
resulting in injury. The friction of the
belt passing over stuck rollers could generate enough heat to ignite the belt
or the accumulations beside the belt.
Noting that
there is a dispute in testimony between Inspector Hurt and Mr. Holbrook over
which areas of the mine floor, if any, were wet, the Secretary argues that
regardless of this inconsistency, and even if areas around the belt were wet,
the belt was elevated and the portion of the belt that would catch fire was not
in water. Tr. 212-14; Sec. Br. 27. The potential wetness of the coal therefore
would not prevent an ignition by the stuck rollers. It observes that ALJs have
affirmed S&S designations for stuck rollers even when the coal deposits
around the rollers were wet, citing
Williams Brothers Coal Co., 22 FMSHRC 63-65 (Jan. 2000) (ALJ finding that
30 stuck rollers on a conveyor belt constituted an S&S violation despite
damp coal and coal dust deposited around the rollers).
b.
Respondent’s
Contentions
Respondent concedes
this violation, but challenges whether the condition created a reasonable
likelihood of a serious accident occurring. Inspector Hurt’s testimony, it
maintains, essentially asks the Court to
presume S&S, but that finding cannot be presumed; rather, it must be proven.
Inspector Hurt established that stuck
rollers were located at various points along the No. 4 belt, but he could not
place any of these rollers in close proximity to the accumulations. Resp. Br.
15-16. If the rollers had been stuck for
many work shifts, as the Inspector alleges, they would have been hot. He did not check for heat, and offered no
testimony of similar circumstances that had caused a mine fire. Resp. Br. 16.
The Court’s Conclusions regarding Citation Nos.
8233872, 8233873, and 8233877
The Court concludes that these violations were S&S
and that the negligence in each was moderate. These three violations were issued in
conjunction with one another for creating a heat source, and the Court finds
they each contributed to a fire hazard along the No. 4 conveyor belt. The prolonged state of each condition, the
proximity of these ignition and heat sources to one another, and their
pervasiveness throughout the No. 4 belt are commonalities that inform this
Court’s S&S and negligence determinations.
The Court will therefore analyze the “confluence of factors” among these
violations that contributed to the fire hazard.
First, the Court
finds that Citation No. 8233872, issued for coal accumulations along the No. 4
belt, was established, and it also upholds the violation’s S&S designation. Inspector Hurt’s
recorded measurements and testimony establish that the coal accumulations along
the No. 4 belt were more than the “mere spillage” that ICG argues in its brief.
Not only did the Inspector measure the accumulations at 14 inches deep in
some areas, but the condition required at least five miners to shovel away all
the accumulations. Tr. 57-58. The highest
point of these accumulations exceeded the height of the bottom rollers on the
belt, which were about eight to ten inches off the ground. The accumulations therefore reached or exceeded the
height of the bottom belt and bottom rollers, which conditions were also cause
for significant concern in creating an ignition source. The Secretary therefore
established the first two prongs of the Mathies
test, as these accumulations violated the mandatory safety standard
codified in 30 C.F.R. § 75.400, and presented a discrete safety hazard, the
risk of a fire.
Although Inspector Hurt and Mr. Holbrook disputed the
consistency of the coal, the Court credits the Inspector’s testimony that the
coal was dry, particularly since the accumulations were of a considerable size,
which suggests that these deposits were not “fresh,” as Perry Holbrook
testified. Holbrook also conceded on
cross-examination that the area with the deepest spill was not muddy or wet.
Tr. 181.
To put the height of deepest spill area into perspective, Mr.
Holbrook testified that the mining height was about four feet in the area along
the No. 4 belt. Some of these accumulations therefore reached to more than a
quarter of the height of the area and also exceeded the height of the bottom
belt. The Court cannot credit the claim that this amount of buildup had
accumulated between the final on-shift examination on Saturday, February 26 and
Mr. Hurt’s examination that following Monday morning.
The Court takes note of and credits Inspector Hurt’s
testimony that someone appeared to have shoveled the accumulations from
underneath the belt to prevent the coal from contacting the belt. That a
clearance was created demonstrates awareness about the prolonged presence of
the accumulations. That the mine was unable to fully abate this condition prior
to the MSHA inspection also speaks to both the extent of the accumulations and
the mine’s awareness of it. The one miner, who was shoveling nearby at the time
the Inspector and Mr. Holbrook arrived for the examination, was unable to
single-handedly remedy the hazard created by these accumulations. Rather, at
least five men were needed, after Inspector Hurt issued the Section 104(d)(1)
order, to clean up the accumulations surrounding the No. 4 belt. Had one or two miners been able to clean
up these accumulations, Inspector Hurt’s S&S designation may have been an
overreach, but the need for five or six miners to complete the work typically assigned
to one miner illustrates the extensiveness of these accumulations. The
extensiveness of the accumulations and the fact that the mine employed a
stop-gap measure to deal with it, by shoveling only a clearance under the belt,
show that a confluence of factors existed.
The heat source
created by the coal accumulations was not located in some isolated area, far removed from an ignition source. ICG Knott
County argues that Inspector Hurt could not establish with certainty how close
the accumulations were to the misaligned areas of the No. 4 belt. Resp. Br.
15-16. The Court disagrees with this
assertion, for Inspector Hurt’s testimony detailed the proximity of these
conditions to each other. The Inspector
estimated that the No. 4 belt ran for about 700 feet, or approximately ten
breaks. Three breaks, (about 200 feet), separated the misalignments, along the
No. 1, 2, and 3 breaks, near the No. 4 head drive, from the start of the coal
dust accumulations along the No. 4 belt. Tr. 47. From this point, the coal accumulations
spanned a distance of a break and a half, or approximately 100
feet, and were built up on both sides of the belt. Tr. 43-44. Holbrook admitted on cross-examination that he
considered this break and a half of accumulations to be a big spill. Tr.
181. Furthermore, Inspector Hurt found
eleven different stuck rollers located at various points throughout the No. 4
belt which, at a length of 700 feet, he noted, was not very long. Tr. 82. The Court is not persuaded that the distance
between the highest accumulations and the misalignment is sufficient to remove
Inspector Hurt’s S&S findings. The
pervasiveness of these violations throughout a relatively short belt length, if anything, adds to the
confluence of factors that existed in this area.
As noted, Respondent has conceded the misaligned belt
and stuck roller violations (Citation Nos. 8233873 and 8233877). The Court
finds that Inspector Hurt’s S&S findings for these violations were established,
especially given their proximity to the heat source created by the coal
accumulations in Citation No. 8233872. Regarding
the misalignment of the No. 4 belt, the Court credits Inspector Hurt’s
testimony that the belt was shiny in the areas where the rubbing was occurring,
indicating that the rubbing and misalignment had existed for an extended period
of time. Although Inspector Hurt’s notes
did not mention the “grooved” nature of the belt due to the misalignment, nor
did he measure or test whether those conditions were producing heat, those
absences do not undercut the existence and seriousness of the misalignment, nor
the stuck rollers. As Mr. Holbrook admitted, regarding the state of the stuck
rollers:
I
had some stuck rollers. And what was
happening, the belt was getting out of line and spilling and the dirt and the
lumps and the garbage [were] falling down and clogging the rollers up so they
wouldn’t turn. But, now don’t get me
wrong, I did have two rollers that I had to—I had to turn the belt off and take
two of them out because they—these ones, I took a hammer and hit them and
knocked them loose. But there [were] a
couple that were stuck, just I don’t know if they just—I don’t know. I guess just old and locked up. Tr. 166.
Furthermore,
whether the belt was producing heat at the time of the examination is not the entirety
of this S&S inquiry. The Court is not focused exclusively upon whether the
belt or the rollers were producing heat at the precise moment of the examination,
but rather, whether the conditions could reasonably result in an
injury-producing event. The stuck rollers were encrusted in accumulated gob
that created friction between the metal rollers and belt, while the rubbing
belt was shiny from constant contact against the structure. The obviousness of
both violations to both Inspector Hurt and Mr. Holbrook during the examination
indicates a prolonged failure on the part of ICG to address these conditions.
Had Inspector Hurt not examined the No. 4 belt on February 28, it is unknown
how long these conditions would have continued. Further, Inspector Hurt
thought it would have taken several shifts, or about a week, for the belt to
rub a metal belt stand and actually cut the metal, as it did here. Tr. 117.
The Court finds
that both the rubbing belt and stuck rollers were potential ignition sources,
and the close proximity of these unattended friction sources to the significant
accumulations of coal, created a confluence of factors, resulting in a
reasonable likelihood of an injury-producing event. In summary, a number of conditions contributed to the confluence of
factors, which support the S&S designation for these citations: (1) the dry
and extensive coal accumulations that were located close to the belt, reaching
as high as the bottom rollers in some areas, and spanning at least 100 feet of
the No. 4 belt; (2) the misaligned belt, which was shiny from prolonged periods
of contact against the structure; (3) the portion of the belt that was rubbing
the structure, generating friction, while traveling towards the accumulations; (4)
eleven stuck rollers, which Mr. Holbrook admitted were old, were encrusted in accumulative
gob and located along the belt; and (5) the visible state of each condition
indicating that they had gone untreated for an extended period of time. Because
the citations must not be evaluated in a vacuum, when taken in conjunction with
each other, they warrant Inspector Hurt’s S&S designation, and they also
support his finding of moderate negligence, especially when considering the
number of conditions of which Respondent should have been aware. Further, the inadequacy of the fire-fighting
equipment along the No. 4 belt and at the No. 5 head drive (discussed below), added
to this confluence of factors that warrant the S&S designations in these
three citations.
Citation
No. 8233875—fire-fighting hazards – the missing nozzle, the broken valve, and
the requirement of fire hose outlets with valves at 300-foot intervals along
each conveyor and at tailpieces
Inspector Hurt
noted that the fire hose outlets had failed to be installed at 300-foot intervals
on the No. 4 belt. Instead, the distance to first fire valve from the No. 5
head drive, and down the No. 4 belt line,
was 420 feet. Additionally, a fire
nozzle was missing from the No. 5 head drive area, and a fire valve was removed
from the No. 4 tailpiece.[29] The Inspector marked the hazards in this
Citation as S&S and caused by moderate negligence.
a.
Secretary’s
Contentions
The Secretary asserts
that Inspector Hurt’s S&S designation was warranted due to ICG’s failure to
place fire valves at 300-foot intervals along the No. 4 belt conveyor, and
because the fire valve at the No. 4 tailpiece was removed and no nozzle was available
in the area around the No. 5 head drive.
Based on the conditions Inspector Hurt observed, the discrete safety
hazard was the miner’s inability to quickly fight a fire, which resulted in an
increased risk of injuries because of the delay in getting water to a fire. ICG Knott County’s failure to provide the
required firefighting equipment significantly increased the likelihood that a
miner would suffer lost workday or restricted duty-type injuries. Sec. Br. 24. Thus, given the location of the fire valves,
the inoperative fire valve at the No. 4 tailpiece would have impeded the mine’s
ability to fight a fire around the No. 5 head drive. Sec. Br. 25. A miner would have to travel 700 feet down
the No. 4 belt to retrieve the hose and nozzle at the No. 4 head drive and
bring it back up the belt to the fire valve that was 420 feet away from the No.
4 tailpiece before water would be available to fight a fire. Id. Alternatively, a miner would need to carry the
fire hose 420 feet from the No. 5 head drive to the nearest fire valve, and
retrieve a nozzle at the No. 4 head drive, another 280 feet away, before
traveling back up to fight the fire. Id.
Either way, the additional time
necessary to fight the fire therefore would increase the likelihood that an
injury would result. Id.
Upon reflection,
Inspector Hurt expressed that he should have marked the violation as “high
negligence,” because it was obvious that someone had physically removed the
broken valve at the No. 4 tailpiece and reattached the waterline without
replacing it. Sec. Br. 25-26.
A prudent examiner also should
have noticed that the nearest valve was more than 300 feet outby the No. 4
tailpiece. Sec. Br. 26.
b.
Respondent’s
Contentions
ICG Knott County agrees that the valves
on the No. 4 belt were not placed at 300-foot intervals, as required by the
standard, and that the valve at the No. 4 tailpiece was not in place, but it disputes
the S&S designation for this violation. Resp. Br. 16.[30] It notes that Inspector Hurt agreed on
cross-examination that the entire belt line still had coverage in the event of
a fire, because the 500-foot fire hose could be attached at point “C” and would
still reach the entire belt line.[31] Given that water could reach all points on the
belt, it contends that no serious accident was likely to occur. Resp. Br. 18;
Tr. 125-26.
The Court’s Conclusions regarding Citation No. 8233875
Neither the No. 5 head drive, nor the 420-foot mark
(Point “C”) along the No. 4 belt had the required and/or operable proper
equipment to fight a fire. The valve was
detached and the nozzle was missing around the No. 5 head drive, while the fire
stand, located at Point “C,” lacked both
a fire hose and a nozzle. Tr. 73-74.[32] The No. 4 head drive was therefore the closest
location where a miner could gather all the proper fire-fighting equipment in
an emergency, which was as much as 700 feet away. The standard requires both fire hose outlets
with valves at 300 foot intervals along each belt conveyor and such outlets, with valves, must also be at tailpieces.
As noted, the Court does not subscribe to Inspector
Hurt’s putative “admission,” which Respondent claims occurred during the cross-examination.
The record indicates and the Court
concludes that he did not fully grasp the question asked of him when he
responded on cross-examination that this violation was probably not S&S. While the Court instructed Mr. Hurt, “If you
don’t understand a question, don’t give an answer,” the rest of Mr. Hurt’s
testimony establishes that he strongly believed that the cited violation was
S&S and that, upon reflection, he expressed that it also should have been
marked as high negligence. Tr. 125. Given the conditions along the No. 4 belt, which
included dry coal accumulations, the rubbing belt, and the stuck rollers, Hurt
believed it would be too hard to fight a fire without hoses, nozzles, and
outlets in their proper locations. Tr. 77.
He also emphasized the particular necessity of required fire-fighting
equipment at tail pulleys, since head drives contain electrical bearings that
are susceptible to heating up and creating fires. Tr. 78.[33]
Respondent’s
argument that the 500-foot-long hose located at Point “C” would reach all fires
along the No. 4 belt, while true, overlooks
the time constraints created by these conditions. Fires spread quickly, especially in a mine
with extensive accumulations of dry coal, as were the conditions in the
Kathleen Mine on February 28, 2011. The Secretary’s
brief illustrates the possible scenarios for a miner if a fire were to ignite
at the No. 5 head drive, which included retrieving equipment from up to 700
feet away and then attaching the equipment at Point “C” along the No. 4 belt.
Even if a miner were eventually able to attach a 500-foot-long hose at Point
“C” that could reach a fire at the No. 5 head drive, the response time to such a
fire would necessarily lag, and this lapse in time could mean the difference
between successful abatement and a serious injury resulting, such as smoke
inhalation or burns. Thus, the time required
to gather and attach necessary firefighting equipment would increase the amount
of time before the hose could provide water at the No. 5 head drive. This, in turn, would increase the likelihood
of injury due to a fire in this area. The
S&S allocation is therefore at least partially attributable to the reduced
fire-fighting capability at the mine.
The Court also credits Inspector Hurt’s testimony regarding
Respondent’s awareness of the state of the fire-fighting equipment. As he
stated on direct examination regarding the detached fire valve: “[I]t was
obvious that someone knew about it. They
had to physically remove it and left the other one laying beside it. And, you know,
several people . . . in the mine from the outside to the section know about it
because you have to physically . . . shut the water off.” Tr. 78-79. No testimony contradicted the Inspector on
this. The Court finds this testimony
particularly persuasive, because the valve’s placement on the ground
necessarily indicated intentional conduct, which at the very least constitutes
moderate negligence.
The prior manual removal of the fire valve from the
No. 4 tailpiece, the missing nozzle at the No. 4 fire stand, Mr. Holbrook’s
acknowledgment that someone had forgotten to replace these items, and the
improper placement of fire outlets along the No. 4 belt, jointly establish that
there was a confluence of factors that warrants an S&S finding, as well as
the awareness factor that supports the moderate negligence designation. As determined above, the ignition
sources at both the belt misalignments and stuck rollers, coupled with the extensive
and dry accumulations along the belt, caused a confluence of factors that created
a reasonable likelihood of an injury-producing event, for which there would be
a reasonable likelihood of a reasonably serious injury. Therefore, the third
and fourth Mathies elements were met.[34]
Citation No. 8233876 – 104(d)(1) order for failure to
conduct an adequate on-shift examination
Inspector Hurt’s notes reflect that the last recorded
on-shift examination had taken place on February 26, 2011, yet no records of
the non-compliant conditions were logged at this time, and no corrections were
made that addressed these conditions during that examination. Hurt therefore marked the deficiencies from
this on-shift examination as S&S, high negligence, and unwarrantable
failure. Per the discussion which
follows and upon consideration of all the evidence, the Court affirms the
Inspector’s findings.
a.
Secretary’s
Contentions
The Secretary asserts
that the Inspector’s observations from the February 28 inspection regarding the
deficiencies of the preceding inspection on February 26 should be credited. It notes that, in cases such as Big Ridge Inc., 2012 WL 362190, 23 (Jan.
2012), a court may credit the inspector’s observations, including the
obviousness of the conditions, which contribute to the gravity analysis. For all the reasons stated in its preceding
arguments, these hazards, including the stuck rollers, misaligned belt,
accumulations, and inadequate firefighting equipment, presented a dangerous
risk of fire that warrants an S&S finding.
Regarding the high negligence designation, the
Secretary also urges that the Inspector’s observations and his finding that it
was an unwarrantable failure should also be sustained as the conditions existed
for an extended period of time and thus rose to a higher level than ordinary
negligence. The conditions were
extensive, as evidenced by the fact that the belts were turned off and five
miners were brought in from the section to shovel the accumulations, several
rollers had to be removed, two new fire valves were brought in from the
outside, and an adequate on-shift examination had to be conducted before the
Order was abated. Sec. Br. 32. In
addition to the extensiveness of the action required to abate the problem, the
obviousness of the conditions indicates that they existed for at least one
shift, and second shift belt foreman Lawrence Kendrick was indifferent to
several serious conditions that he did not believe to be hazards. Sec. Br 33-34.
Furthermore,
even assuming an absence of the operator’s actual knowledge, the Secretary
asserts that there is sufficient evidence that agents of ICG Knott County
reasonably should have known of the violative conditions on the No. 3 and 4
belts. An operator’s supervisors are held to a high standard of care, and a
foreman’s failure to recognize the violation and take reasonable precautionary
measures is a factor supporting an unwarrantable failure. Pine Ridge Coal Co., 33 FMSHRC at 1023. Mr. Kendrick was an agent
of the operator who demonstrated indifference to serious hazards, including
stuck rollers, “small accumulations,” and a misaligned belt—conditions which
were not lessened by his view that they were not hazards and therefore did not
merit being recorded in his examination report. Sec. Br. 35. Perry Holbrook also admitted that he was
aware that the fire valve was 420 feet from the No. 4 tailpiece and that this
condition had lasted for at least two days. Sec. Br. 36.
b.
Respondent’s
Contentions
Respondent first
argues that Inspector Hurt cited wrong standard in his order. The standard cited in the order, 30 C.F.R. § 75.362(b), only requires that an examination be
conducted, and as such an exam in fact occurred on February 26, it asserts that
this citation must be vacated. Resp.
Br. 19. Further, Respondent contends
that even if the government relies upon 30 C.F.R. § 75.363(b),
with its requirement for recording and/or correcting hazards during an on-shift
examination, no violation was established. Respondent contends that this provision only
requires the reporting of hazards, as distinct from the reporting of technical
violations.[35]
Since there was no risk of serious
injury to any miner, the conditions Inspector Hurt cited were not hazardous.
Resp. Br. 20. Respondent concedes only
that one valve was at a 420-foot interval along the belt line instead of
300-feet; however, this violation alone did not compromise the firefighting
ability on the No. 4 belt. Resp. Br. 21.
Respondent further argues that even if this citation
is not vacated, it must be modified to a Section 104(a) violation, because it
was not S&S, nor was it caused by an unwarrantable failure. Resp. Br. 20. In support of this, it asserts that the
Secretary did not prove how long the accumulations were present before February
28. The Secretary cannot prove how long
the valve was broken, or when the nozzle went missing, and Lawrence Kendrick
testified that there were no stuck rollers or misaligned belts on February 26.
Resp. Br. 21. Inspector Hurt’s view
therefore amounts to speculation, not proof, that the belt was misaligned and
that accumulations were present on February 26. Id.
Respondent also contends that the Secretary does not
satisfy the requirements for unwarrantable failure, because only one misplaced
valve existed prior to February 28 and the Secretary offered no proof that ICG
Knott County was on notice of the need for greater compliance. There is no proof of aggravated circumstances
that would justify a finding of unwarrantable failure. Resp. Br. 22.
The Court’s Conclusions regarding Citation No. 8233876
a. The issue of
whether the Standard cited was Incorrect.
The
Inspector cited 30 CFR § 75.362(b). That standard, entitled, “On-shift examination,” provides at
subsection (b) “During each shift that coal is produced, a certified person
shall examine for hazardous conditions and violations of the mandatory health
or safety standards referenced in paragraph (a)(3) of this section along each belt conveyor haulageway where a
belt conveyor is operated. This examination may be conducted at the same time
as the preshift examination of belt conveyors and belt conveyor haulageways, if
the examination
is conducted within 3 hours before the oncoming shift.”
By contrast, 30 C.F.R. § 75.363, entitled, “Hazardous conditions;
posting, correcting and recording,”
provides at subsection (a) that: “Any hazardous condition found by the
mine foreman or equivalent mine official, assistant mine foreman or equivalent
mine official, or other certified persons designated by the operator for the
purposes of conducting examinations under this subpart D, shall be posted with
a conspicuous danger sign where anyone entering the areas would pass. A
hazardous condition shall be corrected immediately or the area shall remain
posted until the hazardous condition is corrected. If the condition creates an
imminent danger, everyone except those persons referred to in section 104(c) of
the Act shall be withdrawn from the area affected to a safe area until the
hazardous condition is corrected. Only
persons designated by the operator to correct or evaluate the condition may
enter the posted area.” Subsection (b)
then adds: “A record shall be made of any hazardous condition found.
This record shall be kept in a book maintained
for this purpose on the surface at the mine. The record shall be made by the
completion of the shift on which the hazardous condition is found and shall
include the nature and location of the hazardous condition and the corrective
action taken. This record shall not be required for shifts when no hazardous
conditions are found or for hazardous conditions found during the preshift or
weekly examinations inasmuch as these examinations have separate recordkeeping
requirements.”[36]
Respondent asserts that Citation No. 8233876 should be
vacated because the provision cited in the order is incorrect. The standard
cited, 30 C.F.R. § 75.362(b), requires that an on-shift examination be
conducted, whereas the standard in 30 C.F.R. § 75.363(b) governs the recording
and/or correcting of hazards during an on-shift examination. Respondent argues that
since Mr. Holbrook and Mr. Kendrick both conducted on-shift examinations on
February 26, it did not violate the provision cited in the order. The Secretary
has not moved to amend this citation and did not address Respondent’s
contention in its post-hearing brief.
The Court rejects ICG’s contention on two,
independent, bases. First, it concludes
that a citation based on 30 C.F.R. § 75.362(b) inherently carries with it the
obligation to do more than to simply go through the motions. To assert that, where an on-shift exam has
been made, such an exam insulates the mine from being cited for a violation of
that provision, makes no sense when the exam misses obvious “hazardous conditions and violations of the mandatory health or safety
standards.” Thus, there has not been
compliance with the provision by merely asserting that an on-shift exam was
made when the evidence establishes that one (or in this case several) hazards
were overlooked. To rule otherwise would
run against common sense and the remedial intent behind the requirement.
Other judges have reached the same conclusion about this
standard. As noted by Judge Barbour in Twentymile Coal, 2012 WL 7761935, (Aug.
2012), section 75.362(b) “carries with it
the obligation that the examination be sufficient to detect hazardous
conditions. In other words, subsumed in
the standard is the obligation that the examination be adequate. Among
the ways of proving that an operator has not met this requirement is to show that a hazardous
condition existed in an area that was subject to an on-shift examination, that
the hazardous condition continued to exist after the examination and that the
hazardous condition was not recorded in the surface examination book.” Id. at *26 (emphasis added).
Apart from a focus on whether there was a recording in
the examination book of hazards, in Big
Ridge, Inc., Judge Manning upheld an Order invoking 75.362(b) on the basis
that the exam was clearly inadequate.
Finding the conditions were “obvious and should have been discovered by
the on-shift examiner,” the judge found that the workplace exam was therefore
not adequate. 34 FMSHRC 63, 2012 WL
362190, at ** 18. (Jan. 2012).
Accordingly, the Court concludes that 30 C.F.R. §
75.362(b) applies here.[37]
b. Discussion on
the Merits
For
the reasons discussed above, affirming Inspector Hurt’s S&S findings in
Citation Nos. 8233872, 8233873, 8233875, and 8233877, the Court also affirms
Citation No. 8233876 and its S&S designation. Respondent asserts that it violated no
standard because the conditions at issue were technical violations, not
hazards, and thus did not require reporting during the February 26 on-shift
examination. The Court disagrees and
finds that each violation at issue did in fact constitute a hazard. Although the
term “hazard” is not defined in the standard, the Commission has held that, in
the context of the S&S analysis, “hazard” denotes a measure of danger to
safety or health. National Gypsum, 3
FMSHRC at 827. The Secretary has
established that each violation discussed above contributed to a fire hazard.
The Court also credits Inspector Hurt’s opinion in
assessing the gravity associated with this violation. Inspector Hurt offered concrete
testimony of the observations that led him to each S&S determination at
issue before the Court. He produced detailed descriptions of the dry and
extensive coal accumulations along the No. 4 belt, the shininess from rubbing, where
the conveyor belt was misaligned, and the caked-on coal that surrounded the
stuck rollers. He also offered a detailed explanation of the time constraints
created by the deficient firefighting equipment, which increased the reasonable
likelihood that the hazard contributed could result in an injury. Inspector Hurt’s testimony further established
that each violation had not developed overnight, but had existed for at least
one shift prior to the February 28 examination. These violations created a confluence of
factors that warranted each S&S finding.
Hurt rightfully issued a Section 104(d)(1) order, given the fire hazards
in this area and the need to abate the violations. These violations each contributed to a fire
hazard that was reasonably likely to result in a serious injury, such as smoke
inhalation to miners in the section.
The Court also affirms
Inspector Hurt’s high negligence and unwarrantable failure designations in this
citation. The testimony of Inspector
Hurt, Mr. Holbrook, and Mr. Kendrick establish that Respondent either knew or
should have known of these hazards during the February 26 on-shift examinations
and there were no mitigating factors. The
extensiveness of these violations, their obviousness, and the degree of danger
they posed to miners are aggravating factors that ICG should have recognized and
contribute to the unwarrantable failure finding. The magnitude of the abatement measures taken
following Mr. Hurt’s issuance of the 104(d) order underscores this finding.
A number of aggravating
factors indicate the presence of these hazards and Respondent’s awareness of them
prior to Inspector Hurt’s examination: (1) a clearance had been shoveled to
separate the dry coal accumulations from the moving conveyor belt; (2) Perry
Holbrook’s behavior in asking Mr. Hurt multiple times at the beginning of the
examination whether he was ready to exit the mine;[38] (3)
the detached fire valve had been manually removed, which also required turning
off the water supply to the section and thus shutting down production in the
section; and (4) Mr. Holbrook’s own testimony that the stuck rollers appeared
old and worn out during Hurt’s inspection when the standard requires that they
be removed immediately. The extensive
abatement measures required in the Kathleen Mine on February 28 further
indicate that these violations had existed for an extended period of time. At least three men assisted Holbrook in removing the stuck rollers; five or six
additional men helped shovel away the coal accumulations; and another group of
men brought in two fire valves and installed them between the No. 5 head drive
and the 420-foot marker on the No. 4 belt. Tr. 85-86.
The Court finds both Perry Holbrook and Lawrence
Kendrick were agents of ICG Knott County who demonstrated carelessness, or
indifference, to the fire hazards along the No. 4 belt. Their conduct
significantly deviated from the standard of care expected of an operator’s
supervisors. As a belt examiner who inspected the No. 4 belt daily, Mr.
Holbrook should have noticed and attended to these hazards. Mr. Kendrick’s
testimony was similarly illustrative of the indifference with which these
violations were treated prior to Inspector Hurt’s examination. The Court
recognizes that underground coal mines are not pristine environments, and the machinery
used to extract coal is subject to continuous wear and tear. It therefore
realizes that some coal accumulations and slight rubbing along conveyor belts
are inevitable effects of the coal extraction process. Nonetheless, fire
hazards are another reality in this environment, which requires ongoing
diligence from a mine’s supervisors to reduce their likelihood. Fire hazards
like the stuck rollers should have been replaced immediately, but instead Mr.
Holbrook admitted they were old and worn out on the day of Hurt’s examination.
The detached fire valve at the No. 4 tailpiece also should have been replaced
immediately, given the known fire hazards that conveyor belt head drives pose. The
extensiveness of each violation, discussed at length in the sections above, contributed
to a risk of serious injury from a fire hazard that constituted an
unwarrantable failure on the part of the Kathleen Mine operators. The Court
therefore affirms Inspector Hurt’s finding of unwarrantable failure.
Civil Penalty Assessments
The foregoing
discussion of the citations addresses the fact of violations, where challenged,
the special findings, and the gravity and negligence associated with each
matter. Exhibit 7 is the mine’s
violation history. The violations were
abated in good faith. Imposition of the
proposed penalties will not affect ICG Knott’s ability to remain in business.
Citation No. 8233872 is upheld as a violation and it
was S&S, with the associated negligence being moderate. The Court adopts
the Secretary’s proposed penalty of $946.00.
Citation No. 8233873, an admitted violation, was
S&S and the associated negligence was moderate. The Court adopts the
Secretary’s proposed penalty of $499.00.
Citation No. 8233875, an admitted violation, was
S&S and the associated negligence was moderate. The Court adopts the
Secretary’s proposed penalty of $499.00.
Citation No. 8233877, an admitted violation, was
S&S and the associated negligence was moderate. The Court adopts the
Secretary’s proposed penalty of $499.00.
Citation No. 8233876, is upheld as a violation and it was S&S, an unwarrantable failure, and the associated negligence was high. The Court adopts the Secretary’s proposed penalty of $2,000.
For the reasons set
forth above, the Citations are affirmed and ICG KNOTT COUNTY, LLC, Respondent,
is ORDERED TO PAY the Secretary of
Labor the sum of $4,443.00 within 30 days of this decision.[39]
/s/ William B. Moran
William B. Moran
Administrative
Law Judge
Distribution:
Elizabeth L.
Friary, Esq., Office of the Solicitor, U.S. Department of Labor,
211 7th
Avenue North, Suite 420, Nashville, Tennessee 37219
John M.
Williams, Esq., Rajkovich, Williams, Kilpatrick, & True,
3151 Beaumont
Centre Circle, Suite 375, Lexington, Kentucky 40513
[1] Ten citations were issued in
total at the Kathleen Mine in Knott County, KY on February 28, 2011. Citation Nos. 8233869 (failure to record
results of previous pre-shift belt examination), 8233870 (accumulations of combustible
materials along No. 3 belt line at No. 1A belt drive), 8233871 (improperly
plastered brattice at the 1A headway of the No. 3 belt), 8233874 (insecure guardrail at
No. 4 tail pulley), and 8233878 (insecure guardrail at No. 3 tail pulley) were
not at issue during this June 1, 2012 hearing.
Exh. S-6 includes the Inspector’s notes on all violations.
[2] Hilda L. Solis resigned as
Secretary of Labor on January 22, 2013. Deputy Secretary Seth D. Harris is the
Acting Secretary of Labor.
[3] Berl Hurt currently works at
MSHA’s field office in Hindman, KY. Tr. 12.
Inspector Hurt has been involved in the mining industry since 1994 and had
five years of mining experience before he began working with MSHA in 2007. Tr. 13,
14. At MSHA, he first worked as a coal
mining inspector (CMI) before becoming a health inspector in 2011. Tr. 14.
[4] The Kathleen Mine closed in May
2012 due to economic hardship. Tr. 198-99.
[5] At hearing, the Secretary
presented a cross-sectional map of the Kathleen Mine (Joint Exh. 1 (JE1)) to
assist the witnesses in explaining the layout of the Kathleen Mine. The No. 3 head drive was located in a
southeast area of the mine, and the No. 3 belt extended from the No. 3 head
drive about 1800 feet northwest until it adjoined the No. 4 head drive. The No.
4 belt then extended slightly southwest, perpendicular to the No. 3 belt line,
for another 700 feet (about ten or eleven breaks). Tr. 36.
[6] Inspector Hurt issued Citation
No. 8233869 before entering the mine for the operator’s failure to record the
results of the pre-shift examinations that had been conducted on February 27,
2011. Tr. 19.
[7] Perry Holbrook has worked in the
mining industry since 1986. He received his foreman papers in 2006, and started
working at the Kathleen Mine in 2010, where he soon took the position as the
Mine’s belt examiner. Tr. 154-56.
[8] The mine was approximately four
feet high in this area. Tr. 161; Exh. JEI.
[9] The pair
walked up the No. 3 belt line and arrived at the 1A head drive, where the 1
section belt dumps into the
3 section belt. Here, Mr. Hurt noticed accumulations
that were black in color for approximately two breaks and issued a Section
75.400 violation (Citation No. 8233870) for accumulation of combustible
material. Tr. 23, S-6,
p. 9-10. As
they proceeded up the No. 3 belt toward the No. 4 head drive, Mr. Hurt saw a
brattice that was not plastered entirely of non-combustible material at the 1A
headway of the No. 3 belt and issued Citation No. 8233871. Tr. 23, S-6, p. 9,
11. Citation Nos. 8233870 and 8233871 are not disputed
in this case.
[10]
Although
the Inspector agreed on cross-examination that it is not unusual to have a ride
underground ready for the inspector to leave the mine at any time, and further
agreed that such an arrangement is common practice in a mine, Mr. Holbrook was
not asked by Respondent’s Counsel about offering Mr. Hurt these rides. Tr. 129. The Court considered Respondent’s arguments but, as
noted, does not subscribe to its take on the issue. See, R’s Post-Hearing Response Brief at 5-6.
[11] A break
is the same length as a crosscut, which is a 70 ft. x 70 ft. block of coal. Tr.
23. Mr. Hurt marked
Point
“A” on the map (Exh. JE1) where he saw the belt rubbing. Tr. 26. Hurt testified based on where he marked on
the map that the rubbing was occurring due to misalignment around “the first
three breaks inby the No. 4 head drive.” Tr. 27, 30.
[12] Hurt estimated the No. 4 belt at
about 700 feet, or approximately ten breaks. There were approximately three
breaks, or 210 feet, between the misalignment along the No. 1, 2, and 3 breaks
of the No. 4 head drive and the start of the coal dust accumulations along the
No. 4 belt. Tr. 47.
[13] Hurt explained that when he issues citations, he
writes down the violation in the moment when he sees them while underground in
the mine. Tr. 55. At the time he wrote
out the citations for the misalignment and accumulations, right after noticing
them and telling Holbrook that he was going to issue them, Holbrook did not
object or dispute the citation. Tr. 55-56.
[14] The Section 104(d)(1) order was
entered in Citation No. 8233876, discussed infra.
[15] At this
point the pair had traveled 700 feet up the No. 4 belt and had gone under the
No. 5 head drive.
[16] At no point in the record did
the witnesses expressly discuss the proximity of the No. 4 tailpiece to the No.
5 head drive. At times, however, the parties use these terms interchangeably to
indicate the area at the end of the No. 4 belt. On the map of the Kathleen
Mine, the Inspector designated Point “D” as the location of the detached fire
valve at the No. 4 tailpiece, while he marked Point “E” as the location of the
missing fire nozzle at the No. 5 head drive. (Exh. JE1). Points “D” and “E” are
adjacent to each other on this map.
[17] Fire valves, referred to as
“fire hose outlets” in 30 C.F.R. §75.1100(2)(b), are the same as fire hydrants. Tr. 61. In an underground mine, the water line runs
beside the conveyor belt, and such hydrants are supposed to be situated every
300 feet along the belt.
[18] There is enough slack in the
water line, especially at the head drive, to pull the ends together. Tr. 62,
69-70. Lock-in clamps, made for the
water line, are on each side of the line and couple together. Tr. 70.
[19] The belts
were running at the time Inspector Hurt issued the Citation No. 8233875 for the
valve and nozzle.
At that point in time, the belts were turned off, with
the Inspector issuing his 104(d)(1) order on the No. 3 and No. 4 belts. Tr. 72.
[20] In an arrangement similar to a
home garden hose and spray nozzle, the mine’s nozzle
screws on to the end of the water line and allows water to be sprayed in the
needed direction, in the event of a fire. Tr. 64.
[21] The Court asked whether a person could place his thumb
over a nozzle to get the outgoing water to spray in an intended direction, and
Hurt responded that this would be impossible because it was an “inch and a half
hose,” meaning a miner would have to put his entire hand over it (because the
circumference would be too wide for a thumb to cover the entire circumference).
Tr. 65.
[22] Hurt measured this 420 foot
distance himself by counting the breaks town to the next fire valve, which
totaled six breaks (six crosscuts), each of which have 70 foot centers. Tr. 66.
[23]
Citation No. 8233876, involving Inspector’ Hurt’s issuance of a Section
104(d)(1) order, follows Citation No. 8233875 chronologically. However, since
this 104(d)(1) order encompasses all other violations at issue in this case,
the Court will first address Citation No. 8233877.
[24] Inspector Hurt
explained some differences between on-shift and pre-shift examinations. An on-shift examination requires the belts to
be running while an examiner designated by the operator checks the condition of
the belt, whereas in a pre-shift examination the belt does not have to be
running and the examiner will check on methane and air quality, among other
things, but attention to the belts is less than that made during an on-shift
examination. Tr. 94. The reason is
plain; the belt will not usually be running during a pre-shift
examination. A hazard found during a
pre-shift examination requires an examiner to report the hazard, while an
on-shift examination requires the condition to be corrected, posted, or
reported. Tr. 96. These requirements are
outlined in 30 C.F.R. § 75.360 & 362.
[25] No recordings of accumulations,
bad rollers, removal of fire hose outlet or valve, distance of fire hose outlet
from No. 5 head drive, belt rubbing were included in the February 26 on-shift
examination immediately preceding Hurt’s inspection on February 28. Tr.
100-101.
[26] The mine did not produce coal
during its third shift, therefore the second shift on Saturday, February 26,
2011 would have been the most recent on-shift examination time while coal was
being produced prior to Hurt’s inspection on the morning of Monday, February
28, 2011. Tr. 94.
[27] Mr. Kendrick worked in coal
mining for 38 years at the time of the hearing. Tr. 187. He received his foreman papers in 1981 and
has worked as a foreman in an underground mine for 15 years. Id.
He worked at the Kathleen Mine for 3 years as a section foreman and then
belt examiner. Tr. 188.
[28] Buggies are rubber-tired, battery-powered,
four-wheeled vehicles that miners use travel in the mine. Tr. 202.
The Secretary argues that batteries on the buggies can fail at any time,
creating sparks which can ignite the accumulations. Perry Holbrook usually conducted his
inspections while traveling on a buggy and Dennis Ratliff was traveling on a
buggy when he passed by the No. 4 belt on the morning of February 28. Tr. 180,
202. Inspector Hurt, however, did not
list the buggies as a potential ignition source either during his examination
or at hearing. The Court does not
consider the buggy as a factor in its analysis.
The Court’s findings control the identification of ignition
sources. See, R’s post-hearing reply brief at 1-2.
[29] As noted earlier, the No. 4
tailpiece and the No. 5 head drive were adjacent to each other. Exh. JE1.
[30] The Respondent would have it
that Inspector Hurt conceded the violation was not S&S. The Court does not
agree with the Respondent’s construction of the Inspector’s testimony. The
transcript reads:
Q: Wouldn’t you agree with me, sir, that under those
circumstances this could not be designated as a significant and substantial
violation if you could fight a fire on the entire belt line?
A: Right.
Q: You agree that it should not have been designated
as S&S?
A: No, no I don’t. I didn’t
understand the question. Tr. 124.
By this testimony, the Court
finds that the Inspector did not recant his S&S determination.
[31] Inspector Hurt marked Point “C”
on the map of the Kathleen Mine (Exh. JE1) at the 420-foot mark outby the
No.
5 head drive on the No. 4 belt.
[32] Inspector Hurt explained that
the inch-and-a-half circumference of the fire hose foreclosed the ability to
spray water by covering the opening with a thumb. Thus a fire nozzle was required to properly
spray the water. Tr. 65.
[33] Inspector Hurt’s markings on the
Kathleen Mine map (Exh. JE1) indicate that the tail pulley located at the No. 4
tailpiece (also the location of the detached fire valve marked as Point “D”)
and the No. 5 head drive (also the location of the missing nozzle marked as
Point “E”) were adjacent to one another.
[34] Speaking to the first two Mathies elements, the violations were
either conceded or upheld by the Court, and the discrete safety hazards for
each citation have been identified.
[35] Respondent points to an
amendment to the regulation, effective August 6, 2012, which reflects the
difference between hazards and technical violations: “During each shift coal is
produced, a certified person shall examine for hazardous conditions and violations of the mandatory health or safety
standards…along each belt conveyor haulageway where a belt conveyor is
operated.” 30 C.F.R. § 75.362(b) (emphasis added). Resp. Br. 20. The Court does not consider the violations to
be “technical,” nor does it read the Amendment as Respondent interprets
it. Further, the Amendment was made
after the violations cited here.
[36]
The reader is advised that
the text of both section 75.362 and 75.363 have been amended. The language employed in the body of this
decision applied at the time the citations were issued.
[37] Alternatively, the Court concludes that liability
was also established under 30 C.F.R. §
75.363. The Respondent can hardly claim
any disadvantage or prejudice to invoking this standard. Indeed, ICG’s argument made at the hearing
was that this was the correct
standard for the Secretary to rely upon.
Thus, although the Secretary has not moved to amend the violation to
cite 75.363, the issue was tried by implied consent. See,
for e.g., Black Beauty Coal, 34 FMSHRC 436, 2012 WL 894516 (Feb. 2012) and Cyprus Empire Corp., 12 FMSHRC 911, 916
(May 1990). Because of that consent, the
failure to amend does not prohibit the determination of the applicability of
the provision. Instead, apparently
advocating that this provision applies, ICG’s argument is that the conditions
cited by the Inspector were not in fact hazardous. The Court has found otherwise.
[38] Respondent argues that it is
common practice to have a buggy ready to escort an MSHA examiner from a mine at
any point during an inspection. Tr. 128.
The implicit availability of this ride, however, and repeatedly
mentioning the availability of this ride during an examination, are two
distinct scenarios. Like Inspector Hurt, the Court finds that Mr. Holbrook’s
behavior in this regard was unusual and indicative of some prior knowledge
about the state of the Kathleen Mine at the time of this inspection.
[39] 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