FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW
(202) 434-9950
June 4, 2012
DECISION
Appearances: Robert E. Motsenbocker, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee, for the Petitioner
Robert
Huston Beatty, Jr., Esq., Dinsmore and Shohl,
Before: Judge Koutras
STATEMENT OF THE CASE
These
civil penalty proceedings pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802, et seq. (2000), hereinafter the “Mine Act,” concern two
Section 104(a) significant and substantial (S&S) citations served on the
respondent on December 8, and 9, 2009, alleging violations of mandatory health
standard 30 C.F.R. § 72.630(a). A hearing was held on September 7, 2011, in
The Alleged Violations
Docket No. VA 2010-288
Section 104(a) S&S Citation No. 8170287, December 9, 2009, 30 C.F.R. § 72.630(b), states as follows (Ex. P-l):
The No. 1 Fletcher Dual Head Roof Bolter (Serial No. 90114) used in the face area of the 002 MMU, the dust collection system was not maintained in permissible operating condition. The filters were allowing dust to get into the clean air that is returned out through the blower motor and in to the mine air. This dust contains silica and is a known cause of lung problems in mining. The dust would be spread across the left half of the working section, exposing bolter crew and miner and shuttle cars operating in the LOCC.
Docket No. VA 2010-289
Section 104(a) S&S Citation No. 8170285, December 8, 2009, 30 C.F.R. § 630(b), states as follows (Ex. P-3):
The dust collection system on the DBT Dual Head Roof Bolter (Serial No. 62-862R) used in the face area of the 001 MMU, was not maintained in permissible operating condition. The filter in the operators side dust box, had dust collecting behind the filter in the exhaust air for the system, thus this allows the dust to travel through the blower and in to the mine air, where personnel are exposed to the dust.
MSHA Inspector Johnny Asbury testified about his mining experience and training, and confirmed that he issued Citation No. 8170287 on December 9, 2009, and confirmed the notes that he made that day (Tr. 7-19; Exs. P-l, P-2). He explained that the cited roof bolter dust collection system was not maintained in permissible condition because he observed dust coming out through the machine mufflers when it was started and placed in operation. He opened the dust collector box that housed the dust filter and observed a “dent place on the side” of the filter that had been “bent in pretty hard” (Tr. 7-23).
Mr. Asbury stated that he observed that a rubber bushing used to seal the top of the filter with a metal wing nut was missing, allowing dust to escape (Tr. 24). He removed the filter, placed his finger in the area behind the filter, and pulled out approximately one-inch of dust out of the ridges where it by-passed the filter and accumulated. If the bolter was operating the dust that he found behind the filter would pass through the mufflers and into the air breathed by the miners (Tr. 25). He confirmed that Mine Superintendent, David Smith accompanied him and did not disagree with his observations. Mr. Asbury believed that someone “banged the filter pretty bad” while cleaning it and that it had been changed the day before (Tr. 26-27).
Mr. Asbury explained that the violation was a health violation and that an illness was reasonably likely to occur because silica dust is heavy and sticks to the lungs, and given the amount of dust blowing out of the muffler, the roof bolter and pinner would be breathing in the dust as it passed over them and would likely be permanently disabling because once it is breathed into the lungs it results in a disabling condition (Tr. 29). He agreed that while a one time exposure would not cause injury, the condition cumulatively would contribute to a lung disease. He based his S&S finding on the fact that it would be more likely than not that someone would be exposed to the dust (Tr. 32). Mr. Asbury stated that he based his moderate negligence finding on the fact that the foreman should have found the condition when he conducted his dust parameters inspection but may not have seen the accumulated dust behind the filter and the condition was abated in fifteen minutes by replacing the filter (Tr. 35-36).
On cross examination, Mr. Asbury confirmed that his inspection field notes are used “to jog his memory” and are an important part of what he includes in a citation. After reviewing his notes, he confirmed that they do not reflect that he pulled one-inch of dust from the area behind the filter. If there was one-eighth of an inch of dust, it would not create dust through the muffler and may not have been seen by the foreman (Tr. 44). He also confirmed that his notes do not reflect that he observed visible dust in the air coming out of the muffler and commented that “there’s a lot of times you just have to put key notes where you remember those.” However, in response to a bench question, he stated that the notation on the citation, that “silica was being dumped into the fresh air”, referred to the dust coming from the exhaust (Tr. 45-48).
Mr. Asbury stated that the dust systems are washed out routinely during the pre-shift examinations and he observed that the filter was dented enough to damage the paper inside the filter. He conceded that his notes do not reflect any filter damage and that it should have been recorded (Tr. 52). He identified a photocopy of a filter that represents the type he cited (Ex. R-2). He stated that the filter is incased with a wire mesh screen that protects the inside filtering system and it was this screen that was damaged and pushed in. He made no notation that the filter inside the cardboard was damaged and although he believed that the inside and outside filter screen mesh was smashed together, he made no note of this (Tr. 54-57). He conceded that his belief that the dust was escaping through the end of the filter with the metal wing nut and missing bushing is not included in his notes and that it should have been noted (Tr. 59-61).
Mr. Asbury confirmed that the cited condition was limited to the operator’s side of the roof bolter. He checked the permissibility of the bolter, and the drill head suction, dust hoses, and door seals to make sure that they were all in compliance (Tr. 65). He confirmed that he did not sample the dust to determine whether it was harmful (Tr. 75-75). Mr. Asbury stated that his S&S finding of permanently disabling, due to silica exposure and “history of dust violations” related to all dust violations, including Section 75.400 and 72.630, were factors in that determination (Tr. 79-80).
Mr. Asbury stated that the discrete hazard in support of his S&S finding was lung disease that would reasonably likely result in a reasonably serious injury. He agreed that one dust exposure would not automatically support an “S&S” finding. However, he considered the amount of time that the bolting machine was operated constituted long term exposure (Tr. 82-83). Mr. Asbury confirmed that he was not present at the beginning of the shift when roof bolting began and that work was taking place at the second row of roof bolts in the entry. He observed the work for two or three minutes before issuing the violation and did not know how long the roof bolter had been operated prior to his arrival (Tr. 84, 87, 90-91).
Mr. Asbury explained on redirect, that the roof bolting machine was not in permissible operating condition because visible dust was reaching the fresh air through the filter wing nut with a missing bushing. Mr. Smith shut the machine down, washed the area with a hose from the miner machine, installed a new wing, put it back in operation, and the violation was terminated (Tr. 88-89).
In response to bench questions, Mr. Asbury stated that the escaping dust would pass over the top of the bolter operators who are at the front of the machine and out of the rear exhaust (Tr. 93). He confirmed that he could not visibly distinguish silica dust from other dust. He determined it was not coal dust coming out of the exhaust because he could see it was white in color. He is not required to perform any dust tests, and was taught to rely on his observations that the dust “was going to cause some kind of exposure to support a violation” (Tr. 95). He confirmed that replacing the filter wing nut with a new one that provided a proper seal rendered the machine permissible (Tr. 97).
MSHA Inspector Johnny Asbury confirmed that he issued citation number 8170285, on December 8, 2009, after he observed dust coming through the DBT roof bolting machine exhaust. Superintendent, Todd Belcher was with him and they were trying to determine the source of the dust by opening one of the machine dust boxes (Ex. P-3, Tr. 100-101).
Referring to his notes, (Ex. G-4), Mr. Asbury stated that they found a hole in the wire mesh, on the side of a filter that was bent and not sealed, allowing dust to accumulate behind the filter. He stated that the filter had been replaced earlier and confirmed that management had a policy of changing filters each week (Tr. 103-107).
Mr. Asbury stated that the hole in the filter allowed dust to pass through it and posed a health hazard because the dust is returned to the fresh air through the bolter blower motor and out through the exhaust. He stated that Mr. Belcher corrected the condition by removing the filter from the box and replacing it after washing it and the condition was abated in twenty minutes. He stated that Mr. Belcher found that the accumulated dust behind the filter was caused by the hole in the filter and that they both put their fingers behind the filter area and “it was all full with dust” (Tr. 108).
Mr. Asbury stated that the cited standard, 30 C.F.R. § 72.630(b) requires the roof bolter dust collection system to be maintained in a permissible operating condition, and he determined that it was not (Tr. 109). He confirmed that he did not sample the dust and that the cited condition was likely to cause injury or illness to miners, namely pneumoconiosis, black lung, and exposure to silica dust (Tr. 110).
Mr. Asbury stated that the condition would result in lost work days or restricted duty, as opposed to permanent and disabling, because there was enough air ventilation that could “clear the dust out a little quicker” than the previous violation he issued. He believed that the section foreman who was responsible for performing the dust parameters should have observed the dust coming out of the exhaust as soon as the machine was in operation. Although he believed that the foreman had three to four hours after lunch to observe the condition, he determined that the violation was the result of moderate negligence because of the increased amount of ventilation air and the fact that the foreman may have been occupied with a broken belt situation (Tr. 112-113).
Mr. Asbury stated that when he issues dust violations he considers problems other than silica, such as emphysema and lung and heart conditions. He noted only silica in his notes because it causes silicosis and remains in the lungs while coal dust can be coughed up while white heavy dust will not and that his father died from exposure to silica. He estimated from the amount of dust he found that the condition existed for more than one cut or at least 45 minutes to an hour. He confirmed that he has never studied or received any medical training concerning the effects of silicosis on the lungs (Tr. 150-154).
On cross-examination, Mr. Asbury confirmed that he issued both of the citations on December 8 and 9, 2009, at two different mines. He was not the regular inspector assigned to these mines and he was functioning as a roof control specialist. He did not believe this was unusual and that he regularly scheduled his own inspections and that greater emphasis had been placed by MSHA on Virginia and Kentucky mines where there was exposure to black lung and silica cases (Tr. 116-117).
Mr. Asbury stated that he observed visual dust in the air behind the roof bolter located in the number four entry behind the continuous miner, which was in the number five entry. He believed the roof bolter was approximately forty-feet (two-cuts), inby the last open cross-cut in the entry where he observed it, but there was nothing in his notes to confirm this location, nor did his notes reflect which entry it was located in (Tr. 120-121).
Mr. Asbury stated that he uses “key words” in his notes at the time he observes a condition, but admits that he misses a lot of issues. He explained that as he reads his notes “it puts me back into the mine area and puts my mind back in the same day I was there”, and that his testimony concerning dust suspended in the air is based on what he remembered after reading through his notes rather then what he recorded when he issued the citation (Tr. 125-126).
Mr. Asbury stated that he was not required to take any dust samples to support the violation because he was citing the dust that was in the system that was not maintained in permissible operating condition and not what was in the dust. He was not required to sample the dust to substantiate his S&S finding because the presence of visible dust in the air is enough to establish that finding (Tr. 129).
Mr. Asbury confirmed that the violation was terminated after the dust collection box was cleaned out and washed and his notes do not reflect that the filter was changed (Tr. 132). He further confirmed that his notes do not reflect that the filter had a hole through the mesh and through to the cardboard. He believed the hole was one-half inch, but he did not measure it, and it appears that it was hit by “a rolled steel punch, about the size of a roof pole” at the top of the filter (Tr. 134).
Mr. Asbury suggested that Mr. Belcher also saw the hole while they were trying to determine the source of the dust. He stated that he did not record that Mr. Belcher also found the hole, and that he spoke to the bolters about the hole in the filter and they informed him that the filters are changed weekly. He confirmed that the respondent changed the filters weekly irrespective of their condition (Tr. 137).
Mr. Asbury confirmed the absence of any evidence that any airborne dust was actually being ingested by the bolter operators and he had no reason to believe that the air ventilating the roof bolt entry was out of compliance because he observed air movement that was pushing any dust through the line curtain as required by the ventilation air blowing system (Tr. 137). Mr. Asbury stated that the section foreman is responsible for performing the permissibility examination before production starts and there is no distinction when there is a “hot seat” change or between shifts. He based his moderate negligence finding on the fact that the foreman probably made the examination but may not have seen the condition and he took the foreman’s word that he made the examination (Tr. 141).
Mr. Asbury was not present when the shift started and had no evidence that the cited conditions existed at that time. He confirmed that he had no way of determining whether the dust he observed in the atmosphere was silica dust, rock dust, or coal dust (Tr. 144). His determination that the condition was reasonably likely to result in a reasonably serious injury was based “on a lot of other conditions” that he did not record. He also considered several prior dust citations, but did not produce them and conceded that he only reviewed a computer list of dust citations that may have related to violations other than Section 72.630(b), and did not review those cited conditions (Tr. 145-147).
David
Smith, Superintendent of Locust Thicket Mine, testified that he had 38
years of underground mining experience, and is a certified mine foreman,
electrician, and holds shop foreman, dust sampling, and advanced first aid
cards. He had three years of experience operating a Fletcher dual head roof
bolter. He was the superintendent of the Paw Paw Mine on December 12, 2009, and
traveled with Inspector Asbury during his inspection that day (Tr. 157-163).
Mr. Smith stated that the roof bolter was parked in the number three entry and the back of the bolter was sticking out of the intersection in the area of the last open crosscut where roof bolting was taking place and two complete rows of bolts had been installed. The bolting machine was in operation and Mr. Asbury told him he wanted to check it. As they approached the machine, Mr. Asbury said nothing about visible dust in the air, at the rear of the bolter, and Mr. Smith observed no visible dust (Tr. 163-166).
Mr. Smith stated that he shut the bolter down so that Mr. Asbury could inspect it, denied that he shut it down because it was emitting visible dust through the muffler, and Mr. Asbury did not tell him he was shutting it down for that reason. He stated that Mr. Asbury checked the vacuum on the drill pot head, looked at the dust hoses, and stated that he wanted to check the dust boxes. The bolter operators and Mr. Smith did not notice any visible dust in the air when it was started, and confirmed that Mr. Asbury did not find any problem with the drill heads, vacuum, or hoses (Tr. 167-169).
Mr. Smith stated that Mr. Asbury checked the operator side of the bolter and after the operator took his dust filters out, Mr. Asbury placed his finger behind the filter area and “got a little film on it” and told him there was dust behind the filters that needed to be washed out. Mr. Smith stated that he did not check the area with his finger and that Mr. Asbury was not wearing gloves and had “a light film of dust” on his finger and did not measure the dust or take any sample (Tr. 171).
Mr. Smith stated that the two stacked filters were removed for inspection. He examined the outer area of the first filter where the wire mesh circles the paper inside the filter and observed no damage, dents, or crushing of any kind. He then examined the second filter and found no damage, dings, dents, or smashing (Tr. 174). He stated that the dust behind the filters was washed out with a gallon jug of water that was kept on the bolter. The dust boxes were then closed, and when the drill was started, the water was flushed through the muffler, and the entire inspection took five minutes. The filter was put back and roof bolting continued. The same two cited filters were put back and were not replaced, and he observed nothing that was done to seal the filter.
Mr. Smith stated that all purchased Donaldson brand filters include a plastic wing nut that is taped to every filter, and that he did not see any metal wing nut described by Mr. Asbury. He stated that each filter is changed out as a regular procedure on the first day of the work week without limitation (Tr. 178). He observed no dust at the rear or over the bolter, or at the face area where bolting was taking place, and he received no complaints of any airborne dust emissions from the bolter operators (Tr. 188).
Mr. Smith did not recall whether Mr. Asbury asked him if he disagreed with the violation, he confirmed that he did disagree, and commented to Mr. Asbury after the first filter was removed that “I didn’t think that was a violation for that little old bit of film and dust being behind the filter” (Tr. 182).
Mr. Smith stated that production had started before the violation was issued and that Foreman, Joe Waynick would have conducted a permissibility examination of the dust collection system prior to activating the section. Mr. Smith verified that the examination took place when he checked the board at the power center and that Mr. Asbury made no inquiry about this. Mr. Smith stated that such an examination does not include the removal of the filters from the dust boxes and he was not aware of any MSHA regulation that required that this be done (Tr. 183 -185).
On cross-examination, Mr. Smith stated that if he observed roof bolters emitting dust as a result of a damaged filter, he would promptly take corrective action because the dust causes danger to health. He did not know whether a single exposure was dangerous, but if he observed it, he would shut the machine down because of the following contention: “I don’t want to breathe anymore then I have to because it hurts in the long run and gives you black lung” (Tr. 186-188).
Mr. Smith agreed that a roof bolter dust collection system is covered by mandatory Section 72.630(b). A filter with a hole in it is not considered to be in operational condition. If he were to find that dust was getting on the inside or clear air side of the filter, he would wash it out and replace it if it had a hole in it. He confirmed that a filter would be in properly operating condition if it was not blowing dust out of the muffler (Tr. 191-192).
Mr. Smith agreed that he had testified without the benefit of notes to the inspection which occurred two years ago, and that he filled out an accountability form for every violation, and did so in this case, and remembered what transpired without notes. He confirmed that he would only remove a filter if he believed there was a vacuum problem or he saw dust coming out of the filter, and he agreed that if he saw dust coming out of the muffler, the prudent thing for the inspector to do would be to look for the source of the dust (Tr. 193).
Mr. Smith clarified the examination by the foreman and stated it was a dust parameter examination and not a permissibility examination that does not include removing the filter. A dust parameter examination includes a proper vacuum on the pinner head, the dust collection hoses, and a machine check for any blowing dust out of the machine bottom. There is no MSHA regulation requiring the removal of the filters during a parameter check. He agreed that if a roof bolter is emitting dust, removing the filter to determine the source is acceptable (Tr. 195-196). Mr. Smith reiterated that he saw no dust coming out of the muffler and that he only observed “a film of dust” and saw no dust behind the filter area after it was removed (Tr. 202).
Willy Todd Belcher, Paw Paw Mine maintenance foreman, testified that he had 24 years of underground mining experience as a foreman, electrician, and maintenance worker. His experience included work with dust collection systems and DBT dual head roof bolters. He confirmed that he was the Locust Thicket mine superintendent when the citation was issued and traveled with Inspector Asbury during his inspection (Tr. 204-207).
Mr. Belcher stated that the roof bolter machine was backed into the intersection of the number five entry and no bolting was taking place. He and Mr. Asbury approached the machine from the operator’s side, and after checking the drill top vacuum the machine was started. Mr. Belcher observed no airborne dust and did not recall whether Mr. Asbury told him that he observed visible dust when the machine was started. The dust boxes were then removed and Mr. Asbury did not go to the back of the machine to check the mufflers until after checking the dust boxes (Tr. 213-214).
Mr.
Belcher stated that after the filters were removed he observed “a small film of
dust on the back side of the dust box where the filter sits.” The dust box tray
was not removed and there was no dust in the boxes. Mr. Belcher stated that
after the bolter operator removed the filter wing nut to pull out the filter,
he held it and that “it looked fine” (Tr. 216-217). Mr. Belcher denied that he
told Mr. Asbury that he would shut the machine down to correct the condition
because the section was down for an unrelated problem. He observed no hole in
the filter and denied that Mr. Asbury informed him that the filter needed to be
changed because of the hole and he could not recall that the filter was changed
(Tr. 219).
Mr. Belcher stated that Mr. Asbury took no dust measurements or samples and that “he more or less stuck his finger back in there, like my wife would do to wipe dust, and got some on his finger” (Tr. 219). Mr. Asbury then advised him that he would issue the citation as an S&S violation because of the dust behind the filter, and Mr. Belcher voiced his objection because there was no dust in the air, the bolter was not operating and was parked in the intersection with fresh air (Tr. 220). He stated that the dust boxes were cleaned out after each cut and that mine policy required the changing of the filters on the first shift of each week, and more often if necessary (Tr. 221).
Mr. Belcher stated that he received no dust complaints from the bolter operators, and disagreed with the violation “because it just had a small film behind it, and no dust was in the air or on the muffler”. He believed there was a change in MSHA’s dust enforcement and that “years ago unless it was dusting heavily you never seen a violation like this”. He explained that during his maintenance experience he has never observed an inspector remove a filter and reach behind the area with his hand to remove dust film (232-233).
On cross-examination, Mr. Belcher confirmed that he has traveled with many inspectors and usually does not take notes but does discuss the violation with the inspector. He has traveled with Mr. Asbury 20 or 30 times, and considered him to be honest and thorough, and had no reason to believe that he lied during his testimony about what he observed. He could not recall whether Mr. Asbury told him that there was a hole in the filter, but he indicated that he would have remembered it. He also believed that Mr. Asbury would have recorded the hole and the filter changes, but only “recorded exactly what we done, cleaned it down and washed it down” Tr. 226-229). He agreed that any prolonged exposure to dust would be a health problem (Tr. 231).
Eddie Taylor testified that he was a certified maintenance foreman and electrician and confirmed that he was familiar with citations 8170287 and 8170285 issued at the Paw Paw and Locust Thicket mines, and he was the maintenance superintendent at both mines when they were issued. He confirmed that he was familiar with the Fletcher and DBT roof bolters and he explained the differences in the two dust collection systems and explained the functions of the dust boxes, filters, and other components of the system, including the filter area of the dust box (Tr. 249-260; Exs. R-5 - R-7). He stated that the dust collection systems on both bolters are functionally the same (Tr. 249-261; Exs. R-5 - R-7).
Mr. Taylor confirmed that it is possible that a dust collection system could be operational but not permissible. He explained that permissibility encompasses the dust hoses, clamps, and associated parts from the drill pot to the blower, and if a clamp were missing the machine would not be permissible but would be operational (Tr. 261).
Mr. Taylor stated that the two contested citations were emailed to him and he reviewed them after they were issued but never discussed them with anyone at the two mines at that time. However, he subsequently visited the Paw Paw mine to speak to superintendent, David Smith and maintenance chief, Donald Giffey about Citation No. 8170287. Mr. Smith told him there was no dust blowing in the atmosphere and the only dust found was behind the filter. He also spoke with Todd Belcher at the Locust Thicket mine who informed him that there was no dust in the air and that Inspector Asbury showed him dust on his finger which had accumulated behind the filter area (Tr. 263-264).
Mr. Taylor stated that over the prior two years MSHA has changed the way it is enforcing and issuing Section 72.630(b) citations for the dust collection systems. He explained that in the past, if a clamp was missing or the dust hose was not exactly one that was approved, it was not an issue as long as the dust system was maintained in fairly reasonable condition. Further, the dust boxes were not inspected “that carefully”, and if it passed the vacuum test and the system “Visually looked okay” it was considered a good system at that time (Tr. 266-267).
Mr. Taylor did not believe that the presence of dust in the area behind the filters established that dust was being emitted into the atmosphere because dust can accumulate in that area and the system will not pick it up because it is lodged or stuck, and any dust film or residue would not be emitted into the air. He stated that there was no way to check the area beyond the filter dust box where it exited the rear of the bolter to determine the presence of any collected dust and he did not believe it was possible for the dust collection system to be 100 percent efficient because of operational filter sealing variables (Tr. 268-270).
Mr. Taylor stated that Mr. Smith and Mr. Belcher never informed him that Inspector Asbury mentioned any filter hole or damage or missing washer behind a wing nut (Tr. 276). He confirmed the standard operational procedures requiring weekly roof bolter filter changes at the beginning of the day and owl shifts, and six additional spare filters, and records are required to show the date of the filter changes. Dust boxes are required to be cleaned and dust is “tapped out” of the filters after each working place is bolted. He agreed that it was possible to strike a filter hard enough to damage the screening, but had never observed anyone doing this. He was not aware of any dust emission complaints from the roof bolter operators (Tr. 277-283).
On cross-examination, Mr. Taylor stated that if there was a half inch of very fine dust accumulation behind the machine filter area, and the machine was started, it could be emitted out through the blower, but if it was wet compacted dust, it may not move out if the half-inch dry dust moved out into the air through the exhaust manifold. It would be possible that what remained behind the filter would be a thin film of dust, and some of the dust would reach the atmosphere. If there were two-inches of dust, it would be more probable than possible, and if four inches of dust, with a remaining thin film, the rest would have been emitted (Tr. 289-290).
Discussion, findings, and conclusions
Both Citation Nos. 8170185 and 8170287, issued in Docket Nos. VA 2010-288 and VA 2010-289, allege violations of 30 C.F.R. § 72.630(b) and relate to virtually identical alleged conditions on two different models of roof bolters. The cited regulatory standard states as follows:
(b) Dust collectors. Dust collectors shall be maintained in permissible and operating condition. Dust collectors approved under Part 33-Dust Collectors for Use in Connection with Rock Drilling in Coal Mines of this title or under Bureau of Mines Schedule 25B are permissible dust collectors for the purpose of this section.
The petitioner’s post-hearing brief only addresses Citation No. 8170285, and not Citation No. 8170287. However, given the similarity of the alleged conditions, I have considered the petitioner’s arguments and have applied them to both citations.
The petitioner argues that the violations are supportable because the inspector discovered a hole in a filter which allowed dust to bypass and collect behind the filter and contaminate the clean air in the work area. That alleged condition relates to Citation No. 8170285 for the DBT bolter. The two citations, on their face, do not specify or describe the alleged defective filter conditions that were described by the inspector at the hearing.
The respondent argues that both of the cited bolters were in permissible condition as required by Section 72.630(b), and that the petitioner’s allegations that the bolter dust collection systems were defective or damaged were refuted by the testimony of its employees.
With
regard to the cited DBT bolter dust collection system, the respondent asserts
that the testimony of the inspector, that the filters were dented, was likely
the result of efforts to clean the filters by tapping dust out of them. This testimony is refuted by employee,
Belcher’s testimony that the filters were not damaged in any way, and employee,
The respondent points out that none of the alleged filter defects or damages testified to by the inspector are recorded in his inspection notes, including his testimony that when the filter was pulled out he saw damaged and pushed in metal screening.
With regard to the inspector’s testimony that a metal wing nut on the side of the Fletcher roof bolter filter was missing its bushing (rubber washer), respondent again points out that the inspector’s notes do not mention any missing bushing wing nuts, and that employee, Smith definitively testified that the filter had the requisite wing nut.
The respondent argues that the inspector could not prove his assumption that the missing bushing was allowing dust to enter the dust collection box without passing through the filter, and that the majority of the dust located behind the filter was coming from the area of the missing wing nut, and that his conclusion was based solely upon the amount of dust he allegedly visually observed in the area.
The respondent points out that the inspector made no mention of any of the aforementioned information in his notes, admitted that he should have done so, and conceded that even if the damage existed, it would not affect the structural integrity of the seal. Under all of these circumstances, the respondent concludes that the dust collection system was permissible.
The respondent maintains that the petitioner has not proved that the cited dust collection systems on the two cited roof bolters were not in “operating” condition based on the inspector’s testimony that the presence of dust in the mine atmosphere was indicative of the inoperable condition of the dust collection system. Conceding that there is some Commission authority supporting the petitioner’s assertion that the presence of dust on the clean side of a machine is indicative of the fact that a filter was being bypassed, respondent believes the facts in the instant case are distinguishable.
The respondent points out that the inspector said nothing about dust in the air when he approached the bolter, and that his notes do not reflect the presence of visible dust in the atmosphere. Respondent further relies on the testimony of Smith and Belcher that they observed no airborne visual dust in the DBT and Fletcher area, and that they considered both bolters to be in operational condition.
The respondent maintains that even assuming the truth of the presence of dust in the atmosphere, the inspector nonetheless conceded that due to the mine blowing ventilation, as well as the downwind location of the bolter, it was possible that the bolter was generating dust while installing roof bolts creating “a little blow back”. Respondent relies on the testimony of maintenance superintendent, Eddie Taylor, who has 33 years of mining experience. Mr. Taylor testified that it was possible for a dust collection system to be operational, and yet not permissible.
Respondent further relies on Mr. Taylor’s testimony that the purpose of the dust collection system is to collect the dust emitted when drilling the roof and depositing it into the dust collection box; and, the purpose of the filters is to catch the dust before it exits into the blower system. Mr. Taylor testified that a small film of dust behind the filters does not necessarily mean that dust was emitted into the atmosphere because it can accumulate in that area and not be picked up because it is a film residue or lodged or stuck. Respondent concludes that the testimony of Mr. Belcher, Mr. Taylor, and the inspector reflects that the dust collection systems are not 100% efficient.
The respondent takes serious issue with the numerous discrepancies between the inspector’s hearing testimony and what he recorded, and what was significantly omitted from his notes, particularly in light of his acknowledgment that his notes are a very important part of what he includes in his citations. As an example of significant omissions, the respondent cites the inspector’s testimony, that he pulled one inch of dust from behind the Fletcher bolter, but did not mention this in his notes. Respondent points to the admission by the inspector that one-inch of dust should have been recorded to support his testimony of visible dust in the area, particularly in light of his testimony that 1/8 inch dust would only be blowing through the drill muffler.
Finally, the respondent cites the testimony of Mr. Belcher and Mr. Smith that MSHA had not previously used the inspection method of running a finger in the area behind the filter to detect any dust, and that the instant inspections constituted a change in enforcement. Respondent cites Mr. Belcher’s testimony that he has never previously observed an inspector wipe his finger to check a film of dust and that “years ago unless it was dusting heavily you never see a violation like this”, and Mr. Taylor’s testimony that in the past, “dust boxes were just looked at and not inspected carefully”, and “if the system vacuum was operational and usually looked okay, it was a good system at that time.”
The respondent maintains that the dust inspection “finger method” used by the inspector is a MSHA enforcement change adopted without fair due process notice to the respondent. Respondent maintains that Section 72.360 is clear and unambiguous, and while the regulatory text has not changed, MSHA has changed its interpretation without issuing any policy guidelines, or informational letters or bulletins to provide the regulated community notice of the change. Respondent concludes that a reasonably prudent person would not expect an enforcement change, particularly since it is unreasonable to test the area behind a filter and use the results as an indicator of compliance with Section 72.630(b).
I conclude and find that the collector box filters are an important and integral part of the dust collector system. The purpose of a filter is to absorb and isolate any dust before it exits into the machine blower system. Notwithstanding the disputed testimony of the inspector attributing the source of the dust behind the filter areas to damaged filters, the fact remains that dust was found in those areas.
I further conclude and find that even though a small amount of dust that has bypassed a collector box filter and accumulates behind it may not immediately result in an emission into the mine atmosphere, it poses a potential for doing so, and adversely contributes to the operational effectiveness of the dust collector system. Accordingly, I conclude and find that the bolter dust collection systems were not maintained in operational condition as required by Section 72.630(b). The violations ARE AFFIRMED.
The respondent’s arguments that the inspector’s “finger method” for detecting the dust found behind the collection box filter area constituted an enforcement change without due process notice are not well taken. The fact that Mr. Belcher and Mr. Smith never previously observed that method being used is irrelevant. In this case, Inspector Asbury met with Mr. Belcher and Mr. Smith, were attempting to locate the source of the dust, and the boxes were opened and the filters were removed as part of that process. I take note of Mr. Smith’s testimony that he would remove a filter for inspection if he observed dust coming out of a bolter muffler, and agreed that it would be a prudent thing for an inspector to look in to the filter area to determine whether it was the source of the dust (Tr. 193).
I conclude and find that the inspection process used by the inspector in an attempt to locate the dust that he believed was being emitted from the bolter exhaust systems was reasonable in the circumstances and was not the result of any enforcement changes. I cannot conclude that increased enforcement scrutiny or focus on potential health hazards constitutes an unreasonable change in MSHA’s interpretation of Section 72.360, or its application to Section 72.360(b). Accordingly, the respondent’s arguments ARE REJECTED.
Significant and Substantial Issues
A significant and substantial (“S&S”) violation is described in Section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” A violation is properly designated S&S “if based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has 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.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,135 (7th Cir. 1995); Austin Power. Inc. v. Sec’y, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:
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.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(l), 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., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (Jury 1984).
This evaluation is made in terms of “continued normal mining operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
Inspector Asbury cited the Fletcher roof bolter after he removed a filter from the dust collection box and stuck his finger behind the filter area and pulled out what he believed to be approximately one-inch of dust. He confirmed that he did not measure the dust and that his notes do not reflect that he pulled out that amount of dust.
Mine superintendent, David Smith, who was with the inspector, confirmed that he observed the inspector reach in the area behind the filter, wipe it down, and “got a little bit of light film” of dust on his finger (Tr. 170-171). He stated that he informed the inspector that he did not believe there was a violation “for that little old bit of film and dust behind the filter” (Tr. 202). He further confirmed that the dust in the area behind the filter concerned the inspector because he believed it would get out in the atmosphere through the muffler (Tr. 196, 199-200).
Inspector Asbury cited the DBT bolter after the dust collection box was opened and the filter was removed so that he could inspect the area behind it. He placed his finger into that space behind the filter and found an accumulation of dust, but did not measure it. His notes reflect the presence of dust behind the filter. He confirmed that the bolter was operating when he initially arrived at the area and that he observed “quite a bit of dust” coming out of the rear exhaust system muffler (Tr. 114-115). His notes include a brief reference that “silica was being dumped into the fresh air” (Ex. P-2 at 11).
Maintenance foreman, Todd Belcher, who was with the inspector, confirmed the presence of dust behind the filter area after it was removed. Mr. Belcher described the dust as a small film behind it that he observed on the inspector’s finger (Tr. 219, 232). He also stated that the condition “might be a violation, but not S&S (Tr. 220).
Inspector Asbury’s determinations that the roof bolter dust collection system, which in this case is comprised of the dust collector boxes, including its component parts, and filters, were not maintained in permissible condition, or in a permissible operating condition, in violation of Section 72.630(b), is based on his asserted observations of dust being emitted from the rear of the bolter machine into the atmosphere clear air.
The respondent maintains that both bolters were in permissible condition pursuant to Section 72.630(b), and that the petitioner has not proved that the bolter dust collection systems were not in operating condition. The regulation requires dust collectors to be maintained in permissible and operating condition.
The respondent does not dispute the presence of dust found by the inspector upon his examination of the areas behind the collector box filters. Its dispute focuses on the absence of any credible testimony or evidence establishing the presence of dust being emitted into the atmosphere from the cited bolters.
I find merit in the respondent’s arguments regarding the inspector’s failure to document his observations of airborne dust and damaged filters, and the absence of any references to these alleged conditions in his notes. However, I accept as credible the inspector’s testimony regarding the presence of dust that he found behind the filter areas, and take note of the fact that respondent’s witnesses, Smith and Belcher, disputed the amount of dust, but not its existence.
With regard to the DBT bolter Citation No. 8170185, the petitioner argues that the inspector determined “quite a bit of dust” was blown out of the muffler “pretty quickly,” bypassing the filter right over the top of two men operating the roof bolter, who “were breathing every bit of it” (Tr. 114-115). The petitioner asserts that there was a reasonable likelihood the dust contained silica, which is a leading cause of lung conditions (Ex. G-4 at 9), at the time the inspector issued the citation, and he engaged in a discussion with the miners about black lung and the importance of good dust control (Ex.G-4 at 8-10).
The petitioner concludes that the Mathies test is met because a discrete safety hazard violated a mandatory health standard and made it reasonably likely that a reasonably serious injury would result. Petitioner further argues that because a single exposure of respirable silica dust can “contribute to” the illness of silicosis, it is considered significant and substantial; that is, the petitioner is not required to prove that the subject exposure alone will cause the illness, citing Genwal Resources Inc., 27 FMSHRC 580 (Aug. 2005) (ALJ Manning).
The respondent argues that the petitioner has failed to establish that the two citations were significant and substantial. With regard to the Fletcher bolter, Citation No. 8170287, the respondent asserts that although the inspector believed that the exposure to dust in the air, that he claimed he observed, will result in injury to the lungs over a long period of time, he conceded that one exposure cannot automatically support an S&S finding, and that he only observed the condition for two or three minutes, and had no knowledge with regard to the length of time that the exposure lasted.
With regard to the DBT bolter Citation No. 817085, the respondent argues that although the inspector based his S&S finding on his alleged observation of dust in the atmosphere, as well as the dust behind the filter, he took no dust sample. Further, although the inspector also based his S&S determination on previous dust citations, no evidence was provided regarding those citations. The respondent points out that Section 72.630(b) does not involve a violation of a respirable dust standard, and as such, there is no presumption of S&S, and that any determination in this regard must be made on the controlling four Mathies factors.
The respondent asserts that the petitioner has not established that the cited bolter conditions violated Section 72.630(b). With regard to the existence of any discrete safety hazard, which the inspector described as exposure to silica dust which could lead to lung disease, the respondent concludes that since there is no conclusive evidence of silica dust in the mine atmosphere, there is no clear evidence that a safety hazard existed.
Regarding the third Mathies prong, the respondent argues that there was no reasonable likelihood that the alleged hazard would result in an injury because there is no clear and undisputed evidence that dust was present in the mine atmosphere and that the S&S standard is based on what is reasonably likely to occur, not what “could” or “might” occur. The respondent further argues that there is no clear evidence regarding the content of the alleged dust and that the inspector was unable to distinguish silica dust from other dust, and did not take dust samples to determine its contents. The respondent recognizes that sampling is not required to establish a violation of Section 72.630(b), and maintains that the absence of sampling leaves open the question of the contents of the alleged dust.
The affirmance of the violations establishes the first Mathies, prong. With respect to the second prong requiring a discrete safety hazard, contributed to by the violation, the thrust of the petitioner’s case is that exposure to silica dust during the drilling process exposes miners to the illness of silicosis, a serious health condition. I agree that exposure to silica dust may present a discrete safety hazard and measure of danger to safety contributed to by the violation, pursuant to the second Mathies prong. The third Mathies prong requires proof establishing a reasonable likelihood that the hazard contributed to will result in an injury as stated in Cumberland Coal Resources LP, 33 FMSHRC 2357 (Oct. 2011).
The contested citations are based on a single dust filter that the inspector believed was the source of the dust he observed in a ridged area behind the filters. The inspector concluded that the dust contained silica, ranging in amounts of one-inch or less in one instance, and a “thin film” in the other. He believed the dust visible was airborne silica dust in the atmosphere that exposed the bolter operators to a reasonably likely risk of contracting serious lung diseases, including silicosis.
The citations were issued over 2 ½ years prior to the hearing, and I am troubled by the inspector’s failure to include any information, as part of his inspection notes, documenting the condition of the filters, or his visual observations regarding dust circulating in the air. Although I have affirmed the violations based on the existence of the dust observed by the inspector behind the filters, which is not disputed by the respondent, the failure of the inspector to include notations of his alleged visual observations of airborne silica dust over the bolting machines and the operators, which is critical evidence, raises credibility doubts and concerns that he acknowledged when he agreed that he should have included his claimed observations in his notes (Tr. 45).
The inspector testified that he based his S&S determination in support of Citation No. 8170187 (Fletcher bolter), on his belief that the amount of dust he found behind the filter area contained silica and the respondent’s history of all dust citations, including Section 72.630, as well as Section 75.400 (Tr. 79-80). His inspection notes reflect that he made that determination at 10:14 a.m., when he issued the citation, and the reason noted is “due to amount of dust and history on violations on dust” (Ex. P-2 at 9). The inspector believed that a discrete hazard associated with his S&S determination was lung disease, but agreed that a single silica dust exposure would not cause an injury or support an S&S finding. However, he believed that cumulative exposure that “happens over a long period of time” would contribute to an injury, and that “seeing it right there, the dust was in the air, and it was a violation of law” (Tr. 30-31).
The inspector confirmed that he could not distinguish silica dust from any other dust, but believed the dust he observed was white, while coal dust is black. He agreed that rock dust is also white, but did not believe it could get into the system while drilling was taking place (Tr. 84). He further stated that he was trained to conclude that his visual observation of dust ‘‘was going to cause some kind of exposure” to support a violation (Tr. 95, 97). However, he agreed that a single dust exposure would not cause injury, and that a single dust exposure will not support an S&S finding (Tr. 32, 82-83).
The inspector believed that his S&S finding based on his visible observation of dust in the air is supportable because his citation was based on the presence of dust in the collector system that rendered it less than permissible and operational. He explained that he cited the presence of dust in the system and not the content of the dust (Tr. 128). I find this to be contradictory and incredible since the focus of his S&S determination is based on the alleged silica content of the dust.
The inspector confirmed that his notes regarding dust exiting the roof bolter do not indicate that it was suspended or circulating in the atmosphere (Tr. 45-48). He explained that he placed his finger into the muffler and found “dust caked on the inside that had been washed out through the suction system”, and he concluded that the dust stuck to the muffler. He conceded that none of these conditions are recorded in his notes (Tr. 49-50). I find the inspector’s testimony regarding dust exiting the bolter muffler to be contradictory and not credible to support his alleged visual observation or airborne dust in the atmosphere circulating over the bolter operator’s position. I note his agreement that it was possible that when the bolter was started “it would have had a little moisture in it and it may have thrown it out right at the start” (Tr. 34).
I credit the testimony of respondent’s witness David Smith that he observed no visible dust in the air as he and the inspector approached the bolter that was parked and operating and that he shut it down so that the inspector could inspect it and that the inspector did not tell him that he had observed visible dust in the air, and found no problems with the bolter drill heads, vacuum, or hoses. I also credit Mr. Smith’s testimony that the filter was washed out and bolting resumed (Tr. 167-171).
Although the inspector believed that the passage of time from the start of the shift until he arrived at the bolter location was a long term dust exposure, he admitted that he was not present at the start of the shift, had no idea how long the bolter was operated, and that he only observed it for two or three minutes (Tr. 84, 87). In spite of this, he still believed the cited dust condition had existed from the beginning of the shift when the section foreman performed his dust parameters, and he based his conclusion in this regard on his statement that he could determine how long the condition existed “due to the amount of dust in the air” (Tr. 32-33).
I reject the inspector’s reliance on the respondent’s history of prior dust violations that he relied on in part for his S&S determination. No evidence, other than the prior history, reflected in Exhibit A to the petitioner’s penalty assessment petition and copies of the asserted prior citations were produced, and no further information was advanced or introduced by the petitioner regarding the circumstances of those prior violations.
The burden of proof lies with the petitioner to present credible evidence establishing the inspector’s assertions that he observed visible airborne silica dust in the atmosphere at the time he issued the citations. Undocumented assumptions and speculations as to what may have
occurred 2 ½ year ago, that I find lack credibility, are insufficient to establish the inspector’s S&S determinations with respect to the contested violation.
I find no credible evidence to support a conclusion that the small amount of dust of an inch or less observed by the inspector was in fact silica dust. Nor do I find any credible evidence that any dust that may have been expelled through the bolter muffler was airborne and circulating over the bolter and bolter operator’s position, or was likely to be expelled and circulated in the air if normal mining operations were to continue, particularly in view of the inspector’s agreement that the dust collection systems are routinely washed out during the pre-shift examinations, and his confirmation that the bolter permissibility requirements for the bolter drill head suction, dust hoses, and door seals were all functional and in compliance (Tr. 52, 65).
After careful consideration of all of the arguments and credible evidence in this case, I conclude and find that the third and fourth prongs required by the Mathies tests have not been established by a preponderance of the credible evidence. In the absence of any credible evidence establishing that the dust observed by the inspector was silica dust, the absence of any credible evidence to support the inspector’s asserted visual observation of silica dust in the air over the bolter or bolter operator’s position, which I find not credible, and the absence of any credible evidence that the bolter operator’s were exposed to any dust over a prolonged period of time, I cannot conclude that it was reasonably likely the dust observed by the inspector behind the filter of the Fletcher roof bolter would contribute to a serious lung disease or injury of a reasonably serious nature. Accordingly, the inspector’s S&S determination IS MODIFIED to a non-S&S violation.
The inspector’s S&S determination with respect to the DBT roof bolter (Citation No. 8170285), is based on the amount of dust he found behind the filter area, and the respondent’s prior history of dust violations. This is confirmed by his notation made at the time he recorded his observations that states “made S&S due to the amount of dust and previous issued citations”, with a reference to a discussion with the miners concerning black lung and dust controls (Tr. 144; Ex. P-4 at 8, 10).
The inspector’s notes confirm that the section was down when he checked the vacuum on both bolter heads and found that the dust box on the operator’s side “had dust behind the filter and clean air return”, and that he issued the citation “for not maintaining dust system in permissible operating condition” (Ex. 4 at 7-8). However, his notes do not include any information with respect to the “amount of dust” that he observed visible dust circulating in the atmosphere over the bolter or bolter operators.
The inspector conceded that he did not measure the dust, even though he could have readily done so. Although he was not required to measure the dust, since the “amount of dust” was part of his S&S determination made 2 l/2 years ago when he issued the citation, which he later described during the hearing as “a lot of dust”, with no further elaboration, his failure to document this condition, raises credibility doubts that do not rebut the respondent’s credible testimony that the amount of dust observed by the inspector was no more than a “thin film”.
I credit the testimony of Willy Belcher who testified that when he and the inspector approached the bolter, it was parked in an intersection in fresh air and was not bolting. He further testified credibly that after the inspector checked the bolter vacuum, the bolter was started and the box was removed, but the dust tray was not. Mr. Belcher stated he observed a small dust film in the back side of the dust box where the filter was located (Tr. 216-217). I take note of the inspector’s agreement that when the bolter starts to install a roof bolt, the drilling action creates dust that creates “a little bit of blow back” before the suction is activated, and that the resulting dust may not necessarily be blown back into the clean air system (Tr. 123).
I find Mr. Belcher’s testimony that he observed no visible air circulating in the atmosphere over the bolters to be credible. I also credit his testimony that the inspector stuck his finger behind the filter and that there was a thin film of dust on his finger and that he voiced his objection to his S&S determination because the bolter was parked and was not operating and there was no visible dust in the atmosphere (Tr. 219-220).
Although the inspector testified that the bolter operators were breathing in “every bit of the dust”, he conceded there was no evidence that the dust was being ingested by the operators (Tr. 137). In view of the fact that the section was down and the bolter was not in operation, I cannot conclude that his observations are credible. Further, I take note of his confirmation that any air pushed through the bolter exhaust under pressure would dissipate “real fast”, and that with the “right amount of ventilating air, the dust is gone and you do not see it” (Tr. 138).
The inspector further confirmed that he had no reason to believe that the ventilation, where the bolter was parked, was out of compliance. He confirmed that the required amount of air that was present is designed to move out any harmful dust, and that any dust that he may have observed was moving out through the line curtain, and that he had no way to determine whether the dust he claimed he observed in the atmosphere was silica dust, rock dust, or coal dust (Tr. 144).
With respect to the amount of dust that may have existed behind the filter in question, which the inspector conceded was not measured, but nonetheless described by him as “a lot of dust”, I take note of the cross-examination of foreman, Eddie Taylor who responded to several hypothetical questions suggesting that any remaining dust accumulations, other than a thin film residue, ranging from one-half to four inches, would indicate that some of the dust may at some time have been expelled through the bolter exhaust as visible airborne dust.
Mr. Taylor’s responses suggested several possibilities and probabilities, including whether or not it was “very fine”, “dry”, or “wet compacted” dust, that could have previously been emitted into the atmosphere before the inspector observed the conditions that prompted the issuance of the citation (Tr. 288-291). While it may be possible that a small amount of residue of dust behind the filter may be an indication that dust was emitted in the atmosphere at some time prior than the time the inspector issued the citation, it may also be possible that it was coursed out of the area by the effective air ventilation as described by the inspector.
I take particular notice of the inspector’s testimony that he was not required to sample or test the dust to establish that it was hazardous silica dust because he did rely on the content of the dust to support his S&S determination. (Tr. 128). I find this contradicts and undermines his testimony that he based his S&S finding on his belief that the dust he observed contained silica.
The petitioner’s arguments that it is reasonably likely that the dust observed by the inspector behind the filter in the bolter dust box contained silica is based on his assumption at the time he discovered it, and his discussions with the bolter operators concerning the hazards of black lung and the importance of controlling dust. The burden of proof is on the petitioner to establish credible evidence to establish the presence of any visible airborne hazardous dust in the atmosphere to support an S&S determination at the time the inspector observed those conditions and issued the citation, and not on speculative after-the-fact assumptions that may have been present prior to that time.
With regard to the duration of dust exposure, the inspector speculated that it was possibly 45 minutes, or one cut, based on his assumption that the foreman should have observed the dust when he conducted his permissibility inspection. He conceded that he had no knowledge when this was done and that he was not present (Tr. 153). I find no credible evidence to support any conclusion that the bolter operators were exposed to any hazardous dust conditions over any prolonged or extended period of time, and I reject any credible inference that there were.
I reject the inspector’s reliance on the respondent’s history of violations as part of his S&S determination. Aside from its relevance, no information was forthcoming with respect to the facts and circumstances related to these alleged violation other than a review of a computer generated list that may have included violations of dust standards other than Section 72.630(b). The inspector confirmed that these alleged violations are not listed in the mine file (Tr. 145-147).
With regard to my bench comments that the only “repeat violations” of Section 72.630(b), reflected by Exhibit A to the petitioner’s initial petition for assessment of civil penalties filed in this case reflect two alleged violations of Section 72.630(b), that are a matter of record before me, the parties confirmed that there are no stipulations regarding prior violations. Further, the petitioner’s post-hearing arguments do not address prior history, and it was not offered or admitted as part of the record.
Based on the foregoing findings and conclusions, including my credibility findings regarding the absence of any credible evidence to support the inspector’s asserted observations of visual hazardous silica dust circulating over the DBT roof bolters, and the absence of any credible evidence of dust exposure over a prolonged period of time, and particularly in view of the small residue of dust that I find was behind the filter, I conclude and find that the third and fourth prongs of the Mathies tests have not been established. I conclude and find that under these circumstances, it was not reasonably likely that the aforementioned conditions would contribute to a serious lung disease or injury of a reasonably serious nature. Accordingly, the inspector’s S&S determination IS MODIFIED to a non-S&S violation.
History of Prior Violations
The petitioner presented no additional information regarding the respondent’s history of violations other then Exhibit A attached to its petition for assessment of civil penalties which reflects no repeat violations of 30 C.F.R. § 72.630(b), in (Docket No. VA 2010-289), and 8 violations (Docket No. VA-2010-288). In the absence of any further evidence with respect to the respondent’s compliance record, I cannot conclude that additional increases in the penalty assessments for the violations are supportable.
Good Faith Compliance
I conclude and find that the violations were timely abated and corrected in good faith by the respondent
Gravity
I conclude and find that the violations that have been modified to non-S&S, as well as the settled violations, are non-serious.
Negligence
Citation
No. 8170287
The inspector based his moderate negligence finding on the amount of air he claimed he observed in the air. However, he stated that it was difficult to determine the negligence level because it was possible that when the foreman began his dust parameters check before any mining started, the bolter may have expelled some dust and the foreman may have not seen it or overlooked it (Tr. 33-34). He determined these mitigating circumstances supported his moderate, rather than high, negligence finding. I find the inspector’s moderate negligence to be reasonable and supportable, and it is AFFIRMED.
Citation
No. 8170285
The inspector based his moderate negligence finding on the possibility that the condition existed for 45 minutes, and on his assumption that the foreman should have observed it when he conducted his dust parameters. He confirmed that he considered the fact that the section was down and that there was a problem with the belt that may have called the foreman away and he did not see the condition, and the increased amount of air, as mitigating circumstances that prompted him to determine that the negligence was moderate and not high (Tr. 112-113, 141). Under the circumstances, I find the inspector’s moderate negligence to be reasonable and supportable, and it is AFFIRMED.
I have considered the respondent’s arguments that its standard operating procedures and practices with respect to its dust collection system, and the maintenance and changing of filters, are mitigating circumstances that support low rather than moderate levels of negligence with respect to both citations. Although these are commendable efforts to insure compliance, I would expect nothing less from any responsible mine operator, and can conclude that they are extraordinary mitigating factors.
Size of Business and Effect of Civil
Penalty Assessments on the Respondent’s Ability to Remain in Business
The parties stipulated that the Locust Thicket Mine had a year 2009 coal production of approximately 187,780 tons, and 185,016 tons in 2010. The Paw Paw Mine produced 176,834 tons in 2009, and 222,757 tons in 2010. I conclude and find that for the purposes of these proceedings, the respondent is a relatively small to medium mine operator. The parties further stipulated that the proposed penalties will not affect its ability to remain in business.
Proposed Settlement of Remaining
Violation
Docket
No. VA 2010-288
The parties filed a motion for approval of a proposed settlement of the following Section 104(a) S&S violation.
|
Citation No. |
30 C.F.R. Section |
Assessment |
Settlement |
|
8169268 |
75.1725(a) |
$1,412.00 |
$634.00 |
The contested issue, with respect to this violation, is the level of gravity determination by the inspector that a permanently disabling injury affecting one person was reasonably likely to occur as a result of an alleged scoop service brake defect.
The respondent asserts that a permanently disabling injury was not reasonably likely as a result of the cited condition, and requests a reduction of the severity of injury from permanently disabling to lost workdays or restricted duty and a reduction of the penalty.
The petitioner recognizes the existence of a legitimate factual and legal dispute in this matter and believes that a settlement compromise of the gravity of the violation is consistent with her enforcement responsibility under the Mine Act. Accordingly, the petitioner agrees to the requested gravity modification and reduction of penalty.
I have considered the representations and documentation submitted by the parties, and conclude that the proffered settlement is appropriate under the criteria in Section 110(I) of the Mine Act. Accordingly, I conclude and find that the proposed settlement is reasonable and in the public interest. The motion IS GRANTED, and the settlement IS APPROVED.
It is ORDERED that Citation No. 8169628 be modified to reduce the injury to be reasonably expected from Permanently Disabling to Lost Workdays/Restricted Duty, and that the respondent pay a penalty amount of $634 within thirty (30) days after the date of the decision (Docket No. VA 2010-288).
It is ORDERED that Citation No. 8170287 is modified to a non-S&S violation. The respondent is ORDERED to pay a civil penalty assessment of $750 for the violation within 30 days of the date of this decision (Docket No. VA 2010-288).
It is ORDERED that Citation No. 8170285, is modified to a non-S&S violation, and the respondent is ORDERED to pay a civil penalty assessment of $500 for the violation within 30 days of the date of this decision (Docket No. VA 2010-289).
The respondent is ORDERED to pay a total civil penalty assessment of $1,884, in satisfaction of all of the aforesaid violations issued in these matters. Payment shall be made within thirty (30) days of the date of this decision, and remitted by check made payable to U.S. Department of Labor/MSHA, P.O. Box 790390, St Louis, MO 63179-0390. Upon receipt of payment, these matters are DISMISSED.
/s/
George A. Koutras
George A. Koutras
Administrative Law Judge
Distribution:
Robert
R. Beatty, Jr., Dinsmore & Shohl, LLP,
Brian D. Mauk, Trial Attorney, U. S. Department of Labor, Office of Solicitor, 211 7th Avenue North, Suite 420, Nashville, Tennessee 37219