FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

May 23, 2013

WARRIOR COAL, LLC,
Contestant

 

v.

 

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Respondent

 

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), 
Petitioner

 

v.

 

WARRIOR COAL, LLC,
Respondent

 

 

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CONTEST PROCEEDING

 

Docket No. KENT 2009-662-R

A.C. No. 8492059; 01/06/2009

 

Mine ID: 15-14335

Mine: Warrior Preparation Plant

 

 



CIVIL PENALTY PROCEEDING

 

Docket No. KENT 2009-870

A.C. No. 15-14335-177226

 

 

Mine: Warrior Preparation Plant

 

 


SUMMARY DECISION

 

Before:            Judge Bulluck

 

            These cases are before me upon a Notice of Contest filed by Warrior Coal, LLC (“Warrior”), and a Petition for Assessment of Civil Penalty filed by the Secretary of Labor on behalf of her Mine Safety and Health Administration (“MSHA”) against Warrior, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815. Footnote The Secretary seeks a civil penalty in the amount of $3,405.00 for one alleged violation of her mandatory safety standard.

 

            The parties have filed Cross-Motions for Summary Decision and Reply Briefs. The following are issues for resolution in this case: (1) whether Warrior violated 30 C.F.R. § 77.205(d); (2) whether the violation was significant and substantial; and (3) whether Warrior was moderately negligent in violating the standard.

 

            Pursuant to Commission Rule 67(b), “[a] motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions and affidavits, shows: (1) that there is no genuine issue as to any material fact; and (2) that the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67.

 

            It is well settled that summary decision is an extraordinary measure and the Commission has analogized it to Rule 56 of the Federal Rules of Civil Procedure, which the Supreme Court has construed to authorize summary judgment only “upon proper showings of the lack of a genuine, triable issue of material fact.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (citations omitted). When considering a motion for summary decision, the Commission has noted that, “the Supreme Court has stated that ‘we look at the record on summary judgment in the light most favorable to . . . the party opposing the motion,’ and that ‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.’” Hanson Aggregates New York, 29 FMSHRC 9 (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

 

            Based on the uncontested facts represented by the parties, I find that there is no genuine issue as to any material fact. For the reasons set forth below, I conclude that the Secretary is entitled to summary decision as a matter of law, AFFIRM the citation, as modified, and assess a penalty against Respondent.

 

I. Stipulations

 

            The parties stipulated as follows:

 

            1. Warrior is subject to the Federal Mine Safety and Health Act of 1977.

 

            2. Warrior and its Preparation Plant have an effect upon interstate commerce within the meaning of the Act.

 

            3. Warrior and its Preparation Plant are subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and the Administrative Law Judge has the authority to issue a decision in this case.

 

            4. The civil penalty assessed in this case will not affect the ability of Warrior and its Preparation Plant to remain in business.

 

Ex. J-1. Footnote

 

II. Factual Background

 

            Warrior operates the Warrior Preparation Plant (“Plant”) in Hopkins County, Kentucky. Sec’y Br. at 2. On April 7, 2008, Jamie Woodruff, Plant safety director, notified MSHA inspector Ray Cartwright that Warrior miner Michael Rickard had died on April 4, 2008. Footnote Ex. 2 at 1. On April 9, MSHA began an accident investigation to determine whether Rickard’s death should be charged to the mining industry. On May 12, information from that investigation was forwarded to MSHA’s Fatality Review Committee (“Committee”). Ex. 2 at 1. On May 22, Kevin Stricklin, Administrator for Coal Mine Safety and Health, requested a chargeability determination from the Committee. Ex. 6 at 1. On November 24, the Committee determined that Rickard’s death should be charged to the mining industry “because his death was due to complications of a surgical procedure that was performed to remedy a work related injury.” Ex. 7 at 1-2. On January 6, 2009, MSHA Inspector William L. Barnwell issued a citation to Warrior for its failure to maintain the walkway outside of the warehouse adjacent to the loading dock free of snow and ice. Ex. E at 1.

 

III. MSHA’s Chargeability Decision and Accident Investigation Report

 

            As a preliminary matter, Warrior has requested that I review the Committee’s decision to charge Rickard’s death to the mining industry. However, Warrior has not provided, nor can I find, any authority which would enable the Commission to review the Committee’s charging decision. The decision of that Committee, like all charging decisions made by the Secretary, is solely within her enforcement authority granted by Congress, and is unreviewable. SOL v. Twentymile Coal Co., 456 F.3d 151, 158-161 (D.C. Cir. 2006).

 

            Warrior has also requested, under § 105(d) of the Act, which provides that the Commission may “direct other appropriate relief” when an operator contests the issuance of a citation or order, that I revise MSHA’s Accident Investigation Report. However, the authority to direct other appropriate relief, in addition to “affirming, modifying, or vacating” citations and orders under section 105(d), relates to the charging documents, themselves, and does not extend to MSHA’s investigations or the findings and conclusions of reports that are generated therefrom. Consequently, because MSHA’s investigation and its Accident Investigation Report are beyond the purview of my jurisdiction, I am without authority to revise the Report.

 

 

 

IV. Findings of Fact and Conclusions of Law

 

            Inspector Barnwell issued 104(a) Citation No. 8492059 alleging that a “fatality” “occurred” as a result of a violation of section 77.205(d), that was due to Warrior’s “moderate” negligence, and that the violation was “significant and substantial.” Footnote The “Condition or Practice” is described as follows:

 

The walkway outside the warehouse adjacent to the loading dock

was not maintained free of snow and ice. Black ice had formed and an employee slipped and fell breaking his right fibula and tibia on

3-9-2008. The employee later died on April 4, 2008, due to complications of the surgical procedure that was performed to remedy the injury.

 

Ex. E at 1.

 

1. Fact of Violation

 

            In order to establish a violation of one of her mandatory safety standards, the Secretary must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).

 

            On March 9, 2008, Plant superintendent Frank Roberts and equipment operators Greg Lykens, Chuck Mitchell and Michael Rickard met at the warehouse to discuss their forthcoming task of loading a unit train with coal. Ex. B at 3-4, C at 3, D at 2-3. As they heard the train approaching the Plant, the men left the warehouse and drove to the train load-out where they checked-in the train. Ex. B at 5, D at 3-4. After they finished, Lykens and Mitchell drove back towards the warehouse in order to get the bulldozers to load the train. Ex. B at 8, C at 5. As they turned into the warehouse parking lot, they saw Rickard lying on the ground beside the passenger side of his company truck. Ex. B at 8, C at 5. Rickard told Lykens that he had slipped on ice and either sprained or broken his ankle. Ex. B at 9. Lykens called Roberts on the CB radio and informed him that Rickard had fallen and was lying on the ground. Ex. B at 10, D at 5. When Roberts arrived on the scene, Rickard told him that he had slipped and fallen and that his ankle was hurting. Ex. D at 5. The men lifted Rickard into the passenger seat of his truck, and called 9-1-1. Ex. D at 7. Subsequently, an ambulance arrived and transported Rickard to Regional Medical Center (“RMC”) in Madisonville, Kentucky. Ex. A at 2.

 

            At 7:41 a.m., Rickard was admitted to RMC for a possible broken ankle. Ex. H at 1. Rickard underwent surgery to repair his ankle but, postoperatively, suffered severe respiratory failure. Ex. H at 3. On March 25, Rickard was discharged from RMC with a discharge diagnosis of a fractured right tibia/fibula with the complication of respiratory failure and idiopathic interstitial pulmonary fibrosis. Ex. H at 2. On April 3, Rickard was re-admitted to RMC in respiratory distress. Ex. H at 79. The next day, Rickard died as a result of respiratory failure, pulmonary fibrosis and other causes. Ex. H at 80. Neither the Discharge Summary nor the Certificate of Death lists Rickard’s broken ankle as a cause of death. Ex. H at 80, I.

 

            Inspector Barnwell pointed out in deposition testimony that Warrior did not have a written policy or procedure in place to address snow or ice removal, and only provides snow melt and calcium chloride for use at the discretion of its employees. Ex. A at 2. He opined that Warrior had not removed ice from the walkway prior to miners traveling, and that Rickard fell as a result. Ex. A at 3. Superintendent Roberts stated in his deposition that as the daylight increased, he could see that snow had accumulated by the warehouse building. Ex. D at 5-6. He opined that the snow had melted during the day, run down the walkway, and frozen into black ice at night. While Roberts claimed that he could not see the ice at night, he admitted that there was a light in operational condition over the area. Ex. D at 6.

 

            The testimony establishes that Warrior did not have effective procedures in place to maintain the walkway free of ice. Warrior could have sanded, salted, chemically removed or otherwise cleared the ice from the walkway on either the previous day or before the load-out crews began their work that morning, and has proffered no explanation for not having done so expeditiously. Therefore, I conclude that Warrior’s failure to clear ice from the walkway adjacent to the warehouse violated section 77.205(d). Footnote

 

            Given that the evidence also indicates that snow had been accumulating for several days, Warrior should have checked the condition of the walkways, especially since they were used at least every weekend by load-out crews to access their vehicles. Moreover, because the area was illuminated at night, the operator was not restricted to daylight hours in maintaining the walkway in safe condition. Therefore, I find that Warrior was moderately negligent in violating the standard.

 

2. Gravity

            

            According to the Secretary, since Rickard’s death was the ultimate injury that resulted from his fall, the citation was properly designated “fatal.” The Secretary supports her argument by proposing that the Commission determine the level of gravity for violations that result in injuries differently from those that do not. According to the Secretary, for a violation that does not result in an injury, the Commission should determine whether the violation was reasonably likely to result in an injury and then determine the reasonably likely type of injury that would occur. Sec’y Br. at 15, n. 5. Where an injury actually occurs, however, the Secretary argues that the Commission must only determine the nature of the resulting “ultimate injury,” regardless of the likelihood of that injury occurring. Sec’y Br. at 14-15. Therefore, applying this analysis, although Rickard’s death was unlikely as a result of his fall, he did, indeed, die, and thus the citation was properly marked “fatal,” and a substantial penalty reflective of the severity of that outcome should be imposed. In contrast, Warrior contends that a determination of gravity must be reflective only of injuries sustained when an accident occurs, in this case, a broken ankle. Resp’t Br. at 9.

 

            Although Warrior is not contesting the “significant and substantial” (“S&S”) designation of the violation, it is helpful to consider a Mathies analysis in arriving at an assessment of the appropriate level of injury for which Warrior is liable, because Mathies focuses on the reasonable likelihood of injury as a result of a hazard. In Mathies Coal Company, the Commission set forth four criteria that the Secretary must establish in order to prove that a violation is S&S under National Gypsum, 3 FMSHRC 822 (Apr. 1981): 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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d. 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). In U.S. Steel Mining Company, the Commission provided further guidance on the third element:

                                                                                                        

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.” (citation omitted). 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.

 

U.S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985) (emphasis added).

 

            Under Mathies and its progeny, the Commission does not address causative chains of events and their ultimate effects. The distinction advanced by the Secretary between violations involving no injury and those in which injury occurs is reasonable. As she points out, analysis of the reasonable likelihood of injury is entirely different from identifying an injury that has already occurred. Where the Secretary goes out on an unsupported limb, however, is on her “ultimate injury” theory. Indeed, the Secretary has cited no authority for what is, essentially, a tort analysis. Furthermore, her reliance on tort law is misplaced, since the Commission has recognized that the principles underlying tort law, directed toward compensation of individuals for losses, are inherently different from the concepts underlying governmental regulation such as the Act. Musser Eng’g, Inc., 32 FMSHRC 1257, 1277-78 (Oct. 2010) (citing Prosser and Keeton on Torts, § 1, at 5-6, § 43 at 280 (5th ed. 1984). On the other hand, Warrior’s “actual injury” approach is persuasive, since it provides an accurate account of an injury when an accident has occurred, rather than a reasonable projection of likely injuries when it has not.

 

            The question raised by the parties’ dispute over gravity boils down to whether the citation accurately reflects the injury that resulted from the hazard, or whether it holds the operator liable for any and all consequences that may have some causal connection to the hazard, no matter how tangential or remote. Resolution of the question considers simple identification of the injury resulting from Rickard’s slip and fall on ice, rather than a tort analysis as to causation and forseeability of his death. The evidence establishes that Rickard sustained a broken ankle when he slipped and fell, and the citation should be reflective of that fact. A legal conclusion as to causation of Rickard’s death is beyond the reach permissible under the Act. This finding recognizes that “fatal” may be an appropriate assessment where a hazard results in a death that is directly linked to the initial inquiry, e.g., where a pedestrian struck by a bulldozer dies a month later from crush injuries. However, this is simply not the case here.

 

            No reasonable interpretation of the Act’s safety goals imposes liability on operators for consequences of events beyond the realm of their control in providing and maintaining safe workplaces. It follows that the bite of the Act’s deterrent effect is compromised where it is applied unfairly or unrealistically. Therefore, the Secretary’s attempt to hold Warrior liable for consequences beyond his broken ankle must not prevail. Accordingly, I find that Rickard’s fall was a “permanently disabling” injury.

 

V. Penalty

 

            While the Secretary has proposed a civil penalty of $3,405.00, the judge must independently determine the appropriate assessment by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 20 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984).

 

            Applying the penalty criteria, I find that Warrior is a large operator, with an overall record that is not an aggravating factor in assessing an appropriate penalty. As stipulated, the proposed civil penalty will not affect Warrior’s ability to continue in business. Ex. J-1, Stip. 4. The remaining criteria involve consideration of the gravity of the violation and Warrior’s negligence in committing it. These factors have been discussed fully. Therefore, considering my findings as to the six penalty criteria, the penalty is set forth below.

 

            It has been established that, as a result of this S&S violation of section 77.205(d), a permanently disabling injury occurred, that Warrior was moderately negligent, and that the violation was timely abated. While the Secretary has proposed a penalty of $3,405.00, consistent with my findings of lower gravity, I find that a penalty of $2,500.00 is appropriate.

 

ORDER

             ACCORDINGLY, Respondent’s Motion For Summary Decision is DENIED, the Secretary’s Motion for Summary Decision is GRANTED, and it is ORDERED that the Secretary MODIFY Citation No. 8492059 to reduce the level of gravity to “permanently disabling,” and that Warrior Coal, LLC, PAY a civil penalty of $2,500.00 within 30 days of the date of this Decision. Footnote

 

 

 

 

                                                                                    /s/ Jacqueline R. Bulluck

                                                                                    Jacqueline R. Bulluck

                                                                                    Administrative Law Judge

 

 

 

 

 

Distribution:

 

Donna E. Sonner, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

 

Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

 

 

/ss