FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER,
TELEPHONE: (412)
920-7240
FACSIMILE: (412)
928-8689
June 5, 2013
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DOMINION COAL CORPORATION, SECRETARY OF LABOR, |
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CONTEST PROCEEDINGS CIVIL PENALTY PROCEEDING
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DECISION
Appearances: Emily K. Hargrove, Esq., &
Daniel Povich, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, VA for the Secretary
Before: Judge Steele
STATEMENT OF THE CASE
This civil penalty proceeding is
conducted pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (the “Mine Act”
or “Act”). This matter concerns Order
Nos. 8185281 and 8173479 and Citation No. 8189545.
However, at hearing Dominion Coal Corporation (“Dominion” or
“Respondent”) asserted that it would no longer contest Citation No.
8189545. (Transcript at 7).[1] Order No. 8185281 was issued under Section
104(d)(1) for failure to comply with 30 C.F.R. §50.10(d). Order No. 8173479 was issued under Section
104(d)(2) for failure to comply with 30 U.S.C. §876(b). Both Orders were served on
STIPULATIONS
The parties have stipulated to
the following:
1.
Dominion
was an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C.
§803(d), at Mine #36.
2.
Respondent’s
Mine #36 is a “mine” as that term is defined in Section 3(h) of the Mine Act,
30 U.S.C. §803(h).
3.
Operations
at Respondent’s Mine #36, where the Orders at issue in this proceeding were
issued, are subject to the jurisdiction of the Mine Act.
4.
This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designed Administrative Law Judges pursuant to §§105
and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.
5.
The
total proposed penalty for the Orders in this proceeding will not affect
Respondent’s ability to continue in business.
6.
The
Orders at issue in this proceeding were issued by an authorized representative
of the Secretary.
ORDER NO. 8173479
1. Contents of the
Order
On June 27, 2011 at 10:20 a.m.,
Inspector Dennis Shortt (“Shortt”) issued to Respondent Order No. 8173479. Simmons found:
The
approved Emergency Response Plan for this mine was not being followed. A communications failure occurred on
6/24/2011 at approximately 6:00 pm.
Wireless communication capability was lost from T-1 belt drive up to an
including the T section. The plan states
that the operator will notify MSHA of a communication system failure that
extends longer than 12 consecutive hours.
The operators has not reported the failure
Government’s
Exhibit 1 (Hereinafter GX-1). Shortt
noted that the gravity of this violation was “No Likelihood,” “No Lost
Workdays,” and would affect ten persons.
On June 27, 2011 at 1:37 p.m.,
Shortt issued a modification of the order changing the “Condition or Practice”
section to include the following:
The
wording in this violation should also state:
Management engaged in aggravated conduct constituting more than ordinary
negligence in that the operator failed to comply with the Approved Emergency
Response Plan. This violation is an
unwarrantable failure to comply with a mandatory standard.
2. Legal Standards
Order
No. 8173479 was issued under Section 104(d)(2) of the Mine Act. That provision provides the following:
If a withdrawal order with
respect to any area in a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those that resulted in the
issuance of the withdrawal order under paragraph (1) until such time as an
inspection of such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations, the provisions
of paragraph (1) shall again be applicable to that mine.
30
U.S.C. § 814(d)(2).
The
Order deals with an alleged violation of Section 316(b) of the Mine Act (titled
“Communication facilities; locations
and emergency response plans”).
That section provides, in pertinent part, the following:
Accident preparedness and
response
(1)
In general - Each underground
coal mine operator shall carry out on a continuing basis a program to improve
accident preparedness and response at each mine.
(2)
Response and preparedness plan
(A)
In general - Not later than 60
days after June 15, 2006, each underground coal mine operator shall develop and
adopt a written accident response plan that complies with this subsection with
respect to each mine of the operator, and periodically update such plans to
reflect changes in operations in the mine, advances in technology, or other
relevant considerations. Each such operator shall make the accident response
plan available to the miners and the miners' representatives…
(E) Plan content-general
requirements - To be approved
under subparagraph (C), an accident response plan shall include the following:
(i)
Post-accident communications -
The plan shall provide for a redundant means of communication with the surface
for persons underground, such as secondary telephone or equivalent two-way
communication…
(F) Plan content-specific
requirements…
(ii)
Post accident communications -
Not later than 3 years after June 15, 2006, a plan shall, to be approved,
provide for post accident communication between underground and surface
personnel via a wireless two-way medium, and provide for an electronic tracking
system permitting surface personnel to determine the location of any persons
trapped underground or set forth within the plan the reasons such provisions
can not be adopted. Where such plan sets forth the reasons such provisions can
not be adopted, the plan shall also set forth the operator's alternative means
of compliance. Such alternative shall approximate, as closely as possible, the
degree of functional utility and safety protection provided by the wireless
two-way medium and tracking system referred to in this subpart.
3. Summary of
Testimony
a. Testimony of Dennis Allen
Shortt, Jr.:
Shortt
started in the coal industry in 1994.
(Tr. 15). He attended college and
worked in the industry through a Co-Op program.
(Tr. 15). After college he worked
in the mines as a maintenance foreman until 2003. (Tr. 15).
He was out of the industry until 2005 when he went to MSHA. (Tr. 15).
He has worked for MSHA for seven years.
(Tr. 14-15).
Shortt
is an electrical specialist for MSHA.
(Tr. 14). In that capacity, he
checks the main power distribution system throughout the mine, starting with
the substations. (Tr. 16). He also checks ground faults, cables, pumps,
gas, fire suppression systems, and seal marking systems. (Tr. 16).
In addition, he reviews emergency response plans (“ERP”). (Tr. 16).
For an electrical specialist, the ERP mostly consists of the tracking
and communication system. (Tr. 16). [2]
Shortt
went to #36 Mine with Gary Perkins, another electrical specialist, to terminate
citations issued by Perkins. (Tr.
17-18). That morning he reviewed the
mine file and those citations. (Tr.
18). When he arrived at the mine, he
found out that the carbon monoxide system was down. (Tr. 18).
He waited to see if they would fix the CO system so he could proceed
underground and terminate the citation there, but they did not. (Tr. 18-19).
While
he waited, Shortt learned that the communication system was down on the T
Section. (Tr. 19). He believed he
learned this when he overheard a conversation on the mine page pole (a
hard-line communication system). (Tr.
19). Two inspectors, Frankie Sullivan
and Wade Taylor, were going to the section and when they arrived at T-1 there
was no wireless or hard-line communication.
(Tr. 19, 48). The communications
were down from T-1 belt drive all the way up to and including T Section. (Tr. 20, 48).
Shortt
spoke with Dan Vance (“Vance”), the chief electrician. (Tr. 19-20).
Vance was aware and said the wireless system went down the previous
Friday. (Tr. 19-20). Vance said there was a high-voltage problem:
a miner struck a cable and caused an arc, spark, or surge in the system. (Tr. 20).
This caused the power supplies to go out on the wireless system and he
had ordered power supplies. (Tr.
20). Vance showed Shortt the purchase
order where he had ordered power supply replacements. (Tr. 20).
Vance
stated that he did not know that he was required to report the failure. (Tr. 20, 46, 49). He offered no other reasons for the failure
to report. (Tr. 21). He was not trying to hide anything. (Tr. 44-45).
However, Vance did report the condition before Shortt learned about it from
other sources. (Tr. 45). Shortt did not read anything negative into
that fact. (Tr. 45).
Vance
admitted to Shortt that he had attended a class taught by
The
ERP says that Respondent must notify MSHA of communication failures lasting
longer than 12 hours but it does not say when that notification must take
place. (Tr. 42-43). Vance fixed the high voltage problem, but not
the communication problem, on Friday because he was waiting for parts. (Tr. 43-44).
As far as Shortt knew, Respondent ran coal on the weekend. (Tr. 43).
Vance was not working on the system when Shortt arrived on Monday; he
was waiting for parts. (Tr. 44). Shortt did not think it would be reasonable
for Vance to wait until the failure was corrected before reporting. (Tr. 45). Shortt believed that if the
communication system goes down on Friday at 5:00 pm it must be reported even if
no one will be at the mine during the weekend.
(Tr. 41). He said this during
inspections. (Tr. 41). If there was confusion about the requirements,
then the question should have been asked; especially in light of Lane’s
class. (Tr. 41).
The
purpose of the reporting requirements was to help MSHA collect data on the
reliability of new systems. (Tr.
35). The wireless system was a new
requirement for the mining industry.
(Tr. 30-31). There were different
manufacturers of different types of wireless systems. (Tr. 31).
The mining environment and changing conditions in mining created some
unique challenges to wireless systems.
(Tr. 31-32). During this period,
operators were having some issues with these systems. (Tr. 32).
Shortt conceded that this situation was not like the reporting
requirement of an accident where MSHA needs to take control of the scene,
preserve evidence, and conduct an investigation. (Tr. 35).
Time would not be of the essence.
(Tr. 35-36).
Shortt
recalled that Respondent’s wireless system had been up since May 11, 2011, a
month before it was cited. (Tr.
31). Respondent and other operators had
a lot of questions about the new reporting requirements under the ERP. (Tr. 32).
An operator seeking clarification from MSHA is a good sign that it wants
to comply. (Tr. 32). Respondent trained its employees, including
Vance, on the ERP. (Tr. 32). Shortt felt Respondent did its part in
training and getting “ahead of the game” as far as reporting was concerned. (Tr. 33).
Only
the T-section was down and to the best of Shortt’s understanding, wireless
communications at Mine #36 R Section and U section were not down. (Tr. 36-37).
The ERP discusses the system as a singular unit. (Tr. 36).
Shortt’s
notes at Page 6 show that the wireless system was down because of a
ground-fault condition, not because of a defect in the wireless system. (Tr. 38).
A surge in the high voltage took out the power supplies for the
system. (Tr. 39). However, he maintained that the ERP did not
limit the reporting requirement to certain conditions. (Tr. 39).
He believed reporting was required regardless of cause. (Tr. 40).
Shortt
reviewed an MSHA Escalation Report dated June 24, 2011 (GX-3). (Tr. 23).
An Escalation Report is a record of communication with MSHA’s 1-800
number. (Tr. 23-24). The report stated,
“Details provided by customer. The
caller is reporting their tracking and communication system is down. The caller stated the system has been down
since 9:10 last night 6/23/2011 in section A of the mine.” (Tr. 24).
Shortt included this in his notes at page 11 because he called Lane to
see if any failure had been reported for #36.
(Tr. 23). He learned that #36 had
not reported a communication failure but #30 had. (Tr. 23, 32-33). There were two sections in #30. (Tr. 24).
Tim Thompson, the safety director for Dominion Coal reported this
condition. (Tr. 24-25).
Shortt
reviewed Order No. 8173479 (GX-1). (Tr.
17). He issued a 104(d)(2) order because
Vance was the chief electrician and had been negligent. (Tr. 26).
He went to Lane’s class and had knowledge of reporting
requirements. (Tr. 26). Shortt learned from the mine file that
Respondent was already on the (d) sequence.
(Tr. 26). Shortt did not go underground and actually observe the
violation. (Tr. 27). He wrote the citation based on information he
got from Vance. (Tr. 27).
With
modifications, Shortt wrote the Order as no likelihood, no lost workdays, non
S&S, and no miners affected. (Tr.
46). He initially marked the Order as
“unlikely” because it was just a reporting requirement. (Tr. 25).
He later changed it to “no likelihood” after speaking with his
supervisors. (Tr. 25). They decided that no people would be affected
and therefore there was no likelihood of injury. (Tr. 25-26).
That is also why he marked no lost workdays. (Tr. 26).
Shortt
marked “High” negligence because Vance knew the system was down from the
previous Friday and did not report it.
(Tr. 26). Also, the negligence
was designated as high, in part because the ERP was approved in December
2009. (Tr. 27-28). On cross examination,
Shortt conceded that the cut-off date for implementing the ERP was June 15,
2011. (Tr. 28, 31). Shortt’s deposition at page 51 also conceded
this point. (Tr. 29-30). He explained that the plan was approved in
2009 and no changes were made between 2009 and 2011. (Tr. 47).
Shortt does not believe there could be an honest mistake about reporting
after Lane’s class; which cleared up any gray areas. (Tr. 37).
Another mine, #30, received the class and properly reported an outage in
one section. (Tr. 37). Shortt did not believe there were any
mitigating circumstances. (Tr. 46-47).
The
violation was terminated when it was reported, but Shortt does not know when
the actual problem was corrected. (Tr.
51-52).
b. Testimony of Ricky Keith
Lawson:
Lawson
had worked in the coal industry for 33 years.
(Tr. 53). He had first-class
foreman’s paper, repairmen’s paper, advanced first aid, and a dust card. (Tr. 53).
He worked for Dominion for around 14 or 15 years. (Tr. 53).
At the time Order No. 8173479 was issued, Lawson was the superintendent
at #36. (Tr. 54, 63). A number of people, including Vance, reported
to Lawson. (Tr. 63). Lawson reviewed reports on a daily
basis. (Tr. 63-64).
Lawson
was familiar with Order No. 8173479 (GX-1).
(Tr. 54). Lawson was also
familiar with the ERP for Mine #36 (GX-2).
(Tr. 54-55). Lawson received
yearly training by Respondent on this ERP, as did Vance. (Tr. 55, 65).
He also received special voluntary training by Lane in May 2011. (Tr. 55-56, 68). Respondent’s superintendents, chief electricians,
and anyone dealing with wireless communications attended that training. (Tr. 58).
The tracking and communications requirements were about to go into
effect and the training covered issues related to that event. (Tr. 56, 65).
Those new requirements included a new wireless communication system and
reporting duties. (Tr. 56). He could not remember the particulars of that
training and was unsure if Lane discussed reporting. (Tr. 68).
The reason the training was set up was because people had
questions. (Tr. 69). The effective date for the ERP was June 15,
2011. (Tr. 56). Respondent had the wireless system in place
at #36 by May 2011. (Tr. 56-57).
There
were different manufacturers of wireless systems in the industry. (Tr. 57).
The mining environment and the changing conditions in a mine create
unique challenges to wireless communication.
(Tr. 57). Lawson described how Respondent
had problems with its system. (Tr. 57,
66). On cross examination he conceded
that was one of the reasons MSHA wanted to track outages. (Tr. 66). Respondent and other operators had
questions about the reporting requirements for communication system failures in
the summer of 2011. (Tr. 57-58). The questions dealt with both the
communication system and the reporting requirements. (Tr. 58).
The
power went down on T Section on Friday June 24, 2011. (Tr. 58-59, 61). This power outage caused problems with the
wireless communication, because without power the wireless system cannot work. (Tr. 59, 61).
Lawson learned about it on Friday via his home telephone. (Tr. 64-65, 69). There was no problem with the wireless; it
was a high voltage problem. (Tr.
61). Vance worked on the power
problem. (Tr. 59). He was responsible for reporting
outages. (Tr. 59-60). Lawson could not recall if they moved coal on
Saturday at the time they only produced every other weekend. (Tr. 70).
Lawson
reviewed the Post-Accident Tracking Section on the ERP (GX-2). (Tr. 60).
On cross examination he conceded that the ERP was approved in 2010 and
the reporting requirement was there in 2010.
(Tr. 65). He now knows that if
communications go down on a single section he must report the condition. (Tr. 60).
However, at the time of the outage this was a “gray area.” (Tr. 60).
Similarly, the ERP says that the operator must report communication
systems failures that extend longer than 12 consecutive hours but it does not
say when to report. (Tr. 62).
Lawson
discussed the Order with Vance. (Tr.
67). They did not discuss confusion over
reporting, only the power. (Tr. 67). Lawson
believed he spoke with Shortt on the day of the Order. (Tr. 66).
He was aware that Shortt had issued a (d)(2) Order. (Tr. 66).
He could not recall if he told Shortt that he believed he did not have to
report the condition because it was only on the T section or because it was a
power failure issue. (Tr. 66-67). He could not recall the reasons he gave to not
reporting. (Tr. 67). On cross examination Lawson conceded that the
communication requirements are in the ERP because in an emergency it is
important for the outside to communicate with miners. (Tr. 67).
If there was an emergency it would not matter if the power was down in
the entire mine. (Tr. 67-68). He agreed that it did not matter what caused an
outage in an emergency. (Tr. 68).
Lawson
did not know if Respondent’s other mines reported a wireless failure at this
time. (Tr. 61). Respondent was not trying to avoid reporting
requirements. (Tr. 61).
4. Contentions of
the Parties
The Secretary contends that Order
No. 8173479
was validly issued, that the violation had no likelihood of
resulting in a no lost-workday injury, that no people were affected, that
Respondent was highly negligent, that the violation was caused by an
unwarrantable failure, and that the proposed civil penalty is, if anything, too
low. The Secretary argues that the
citation is valid because power and communication went down and there was no
report. (Secretary’s Post-Hearing Brief at 12-13). The Secretary argues that, with respect to
gravity, the violation prevented proper implementation of vital accident
preparedness systems.
Respondent
contends that Citation No. 8173479 was not validly issued, that it did not exhibit
high negligence, that the violation was not the result of an unwarrantable
failure, and that the proposed penalty is inappropriate. Respondent argues that the citation was not
valid because this was a power failure not a communications system failure, and
because the standard did not state a time at which a report to MSHA had to be
made. (Respondent’s Post-Hearing Brief at 4-5). Respondent argues that it was not negligent or
guilty of an unwarrantable failure because of several mitigation factors,
including their efforts to comply and sincere belief that a report was not
necessary in this situation.
5. Findings and
Conclusions
a. Validity
Pursuant to 30 U.S.C. §876(b) Respondent maintained an ERP. According to page 5 of that Plan, “The
operator shall [notify] the MSHA Hotline of a communication system failure that
extends longer than 12 consecutive hours at 1-800-1553.” (GX-2).[4] It is uncontested that on June 24, 2011, at
approximately 6:00 pm Mine #36 experienced a power outage that resulted in a
failure of the communication system.
(Tr. 19-20, 58-59, 61). Further, it is uncontested that Respondent
did not report this failure to MSHA until MSHA’s inspection on the following
Monday, June 27. (Tr. 19, 43, 67).
Therefore,
the only issue that remains to determine whether this Order is Valid is if this
outage had to be reported. Respondent
argues in its brief that this failure was not reportable because there was no
system failure and because there was no time frame within which a system
failure must be reported. Respondent’s Post-Hearing Brief at 4-8.
With
respect to the claim that the cited condition was not a system failure,
Respondent notes that the communication system was down not as a result of a
“system failure” but instead because of a power outage.
I
do not find this to be a compelling argument.
Respondent speculation as to how MSHA analyzes reported data has no
basis in any evidence in the record. There
is no reason to believe that MSHA’s reporting requirements are different based
on the cause of the communication system failure. If one is to speculate on MSHA’s use of the
reporting data, it is entirely possible that MSHA could glean important
information about the reliability of a particular communication system based on
the way it performs in the event of a power failure. Perhaps MSHA could determine how a
communication system would behave in the event of a mine emergency that results
in a power outage. Surely such an event
is not beyond the realm of possibility.
In fact, in a catastrophic event like a fire or explosion it might be
likely. In short, MSHA is in the best
position to determine the information it needs to evaluate the effectiveness of
various communications systems.
Also,
I do not believe that requiring a report in the cited situation will decrease
safety by marking a compliant system as a “failure.” MSHA requires notification any time a
wireless communication system goes down and presumably uses the data it
receives in a manner consistent with the regulation’s objectives. Information on how systems fare when the
power goes out is certainly relevant to the regulations objective of
communicating with miners in the event of an emergency. Further, Respondent presented no evidence to
support its contention that MSHA regards all system failures as equal. It is possible that MSHA considers the
reasons for a failure in its evaluation so that an otherwise stellar system
would not be rejected solely because it fails during a power outage.
Respondent
also claims that the wording of subpart (a) and subpart (b) of the ERP indicate
that a “power outage” or the system “being down,” should not be considered a
system failure. Specifically, Respondent
argues that subpart (a) on page 5 of the ERP describes what should be done in
the event of a “communication loss,” which it argues is applicable to any loss
of communication in a broad sense. Respondent’s Post-Hearing Brief at 6, FN
4. It further argues that subpart (b),
the part at issue here, refers to a “system failure” not a communication loss,
showing that this section has a narrower meaning that only deals with
communication losses caused by internal communication system failures.
Once
again, Respondent’s argument is not compelling.
The entire focus of the section, entitled “Survivability Requirements,”
is the operation of the communication system.
There is no indication that some subparts of that section are talking
about broader or narrower issues. Respondent
does not explain why subpart (a) would be broader than the rest of the
section. Subpart (a) states, “In the event
that communication is lost, the operator shall begin repairs to the system immediately…” (Emphasis added). If this section were talking about a broader
conception of communication as a whole rather than just the internal system, it
would make little sense for the first step in repairing lost communication to
be to repair “the system.” If anything,
these two subparts show that the ERP treats “lost communications” and “system
failure” synonymously. A loss of
communication is system failure and there is no reason to believe ERP contemplates
different reporting or repairing requirements based on the cause of that
failure. As a result, the loss of
communication in the cited situation, even though it was caused by a power
outage, was a reportable system failure under the ERP.
Respondent’s
next argument is that it was not required to report the cited condition because
there was no time frame within which a system failure must be reported.
There
is perhaps some truth to that. However,
taken to its logical conclusion, Respondent’s position would mean that it would
never have to report a system failure.
If 52 hours is absolutely permissible, then why would 52 days or 52
years not be absolutely permissible? Of
course, such a result would be absurd. In
the absence of a set deadline, the only way to read a reporting requirement is
that a report be made within a reasonable time.
See Steele Branch Mining, 15
FMSHRC 597, 601-602 (Apr. 1993) (“Where a standard is silent as to the period
of time required for compliance, the Commission has imputed a reasonable time.”)
citing Penn Allegh Coal Co., 3 FMSHRC
2767, 2771 (Dec 1981); Monterey Coal Co.,
5 FMSHRC 1010, 1019 (June 1983); and Old
Ben Coal Co., 3 FMSHRC 608, 610–611 (March 1981); see also Cyprus Emerald Resources Corp., 20 FMSHRC 790, 798-799
(Aug. 1998).
I
do not need to define what a reasonable amount of time for delay would have
been in this case. Suffice it to say
that a delay of over two days after the system failure is not reasonable in
light of the goal of quickly providing MSHA with information to allow
evaluation of communication systems.[5] This is especially true in light of the fact
that Respondent did not report the failure to the proper hotline, but was
instead cited by Shortt. There is no
indication that Respondent would have ever reported the failure had Shortt not
issued the Order.
Finally,
with respect to all of Respondent’s arguments regarding the validity of this
order, it cites to no authority and simply appeals to my “common sense.” However, I do not believe that common sense
dictates the finding urged by Respondent.
As a result, I find that this Order was validly issued. [6]
b. Gravity
The
Secretary presented evidence that there was no likelihood of a lost workday
injury and that no miners were affected.
(Tr. 25-26, 46). This means this
violation is merely a paperwork violation. Respondent did not contest these
determinations in its Post-Hearing Brief.
Therefore, I find that the Secretary proved the gravity in the Order by
a preponderance of the evidence.[7]
c. Unwarrantable Failure and
Negligence
Order
No. 8173479 was marked as an unwarrantable failure and high negligence. The Commission has recognized the close
relationship between a finding of unwarrantable failure and a finding of high
negligence. San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007) (remanded because
a finding of high negligence without a corresponding finding of unwarrantable
failure was “seemingly at odds.”).
Emery Mining Corp., defines an
unwarrantable failure, as “aggravated conduct constituting more than ordinary
negligence.” Emery Mining Corp., 9
FMSHRC 1997, 2002 (Dec. 1987). The
Commission formulated a six factor test to determine aggravating conduct. IO Coal Co., Inc., 31 FMSHRC 1346,
1350-1351 (Dec. 2009).[8] Before discussing the high negligence
designation, I will consider each of those factors in turn:
1.
Extent of the violative condition
According to the evidence presented
at hearing, this condition affected the entirety of the T-Section. (Tr. 20).
This was one of only three active working sections of the mine and
therefore constituted a large area of the working area of the mine. Respondent presented no evidence that would
suggest this outage was less extensive.
2.
The Length of Time of the
Violation Existed
According to the evidence presented
at hearing, the communication system went down at approximately 6:00 p.m. on
June 24 and was still down, and unreported, on Monday morning when Shortt
arrived. This means that the extensive
communication failure existed for more than 50 hours before MSHA learned of the
condition.
Respondent presented no evidence
that would suggest the violation existed for a shorter time. However, it argued that the length of time in
this case is immaterial because the standard contained no deadline for
reporting the condition. Respondent’s Post-Hearing Brief at
12. However, as discussed earlier, the
absence of a set deadline cannot be used to ignore the reporting requirement
entirely. This was an unreasonably long
delay in reporting the cited condition.
Therefore, I cannot find the lack of a set deadline in the ERP to be a
mitigating factor with respect to the unwarrantable failure determination.
3.
Whether the violation is obvious
or poses a high degree of danger
As already discussed with respect to
gravity, this particular violation did not pose a high degree of danger. However, the complete failure of the
communication system in 1/3 of the active working sections of the mine was
readily apparent. In fact, Respondent
actually knew about the condition almost immediately, on Friday evening and did
not report it.
4.
Whether the operator had been
placed on notice that great efforts were necessary for compliance or on notice
that this was an issue.
This factor is the most heavily
contested in this case. The Secretary
argues that Respondent voluntarily agreed to participate in training with MSHA
and therefore should have known the reporting requirements. Secretary’s
Post-Hearing Brief at 17-18.
Furthermore, Respondent’s other conversations with MSHA indicate that
Respondent was on notice.
I do not believe that the factors
cited by the Respondent mitigate the fact that Respondent was on notice that it
was required to report the cited condition.
Vance, Respondent’s official responsible for reporting outages, knew or
should have known that this was a reportable condition. The fact that Respondent spoke with MSHA
about the ERP and requested training is admirable, but it does not mitigate
this particular violation. If anything,
it shows that MSHA was available to speak with Respondent about any “gray
areas” that existed in the enforcement of the ERP and was willing to work with
Respondent to ensure compliance. Respondent’s decision to assume that it was
not required to report the outage, in light of the fact that it has admitted
that it was confused about the requirements, was not reasonable. The prudent course of action would be to err
on the side of caution and report the condition to MSHA. Respondent’s conduct is best seen as a break
from its previous proactive attitude with resepct to the communication system.
Similarly, I do not believe it is
relevant that Shortt was not present for Respondent’s training. It is not important whether Respondent’s
employees were specifically told that they were required to report a
communication system failure under any circumstances. Instead, it is important that Respondent knew
that MSHA would be focusing on these new communication systems and that MSHA
was willing to answer questions to assist in compliance. There is no evidence to suggest that
Respondent was not aware of these facts.
Finally, the fact that the standard
was new is not a mitigating factor. The
Secretary presented evidence showing that the ERP had been in effect for a
considerable amount of time, even if it had not yet been mandatory. Perhaps even more importantly, the legal
requirement to follow the ERP did not contain a grace period. It would not have mattered if the power
outage had occurred on the day the law became effective, Respondent was
responsible for following the law.
Again, if there was any legitimate confusion, MSHA was available for
consultation.
5.
The operator’s efforts in abating
the violative condition
Respondent only reported the
wireless outage when directed to do so by Shortt. There is no evidence to suggest Respondent’s
agents would have reported the outage of their own accord.
6.
Operator’s knowledge of the
existence of the violation
Well-settled Commission precedent
recognizes that the negligence of an operator’s agent is imputed to the
operator for penalty assessments and unwarrantable failure determinations. See
Whayne Supply Co., 19 FMSHRC 447, 451
(Mar. 1997);
Respondent does not contest the
supervisory status of the Mine Superintendent (Lawson) and Chief Electrician
(Vance). Instead, it argues that they
did not have knowledge because that this sort of event was reportable. Respondent’s
Post-Hearing Brief at 12. As
previously stated, even if Respondent did not know of the requirements it
should have known or at least known to ask about the proper actions to
take. This is not a mitigating
circumstance.
Further,
high negligence exists where the operator knew or should have known of the violative
condition or practices and there are no mitigating circumstances. 30 C.F.R. § 100.3(d).[9] The Secretary presented extensive evidence
that Respondent’s conduct exhibited high negligence. Specifically, Vance knew the system was down
from the previous Friday and did not report it.
(Tr. 26). The ERP was approved on
December 2009 and MSHA had conducted classes to ensure that Respondent was
aware of its requirements. (Tr. 27-28,
37). Shortt did not believe there were
any mitigating circumstances. (Tr.
46-47).
Respondent
argues that there are several mitigating circumstances. The list of mitigating factors provided by
Respondent include many of the same arguments it used in defending against the
unwarrantable failure designation.
Specifically, it argued its failure to report was a reasonable mistake
(especially in light of the fact that the standard was new), that there was no
deadline for making a report, that the employees were not trained to know this
was a reportable event, and the fact that that Respondent was proactive in
installing the communication system. For
the same reasons described above, these are not mitigating circumstances.
Respondent
also provided several other possible mitigating factors. Respondent’s
Post-Hearing Brief at 12, FN 12.
Those possible mitigating factors are irrelevant. Specifically, Respondent argues its
negligence in failing to report the condition was mitigated by the fact that the
gravity was low, because it ordered pieces to fix the power outage, and because
the purpose of the reporting requirement was to test reliability rather than
deal with an immediate safety concern.
Considering the six factors of the Emery Mining Corp. test, the Secretary
has proven by a preponderance of the evidence that this violation was an
unwarrantable failure. Furthermore, none
of the factors discussed at the hearing or in Respondent’s brief mitigate
Respondent’s negligence or undermine the unwarrantable failure
designation.
d. Penalty
Under the assessment regulations
described in 30 CFR §100, the Secretary proposed a penalty of $4,000.00 for Order
No. 8173479. However, in his Post-Hearing Brief, the Secretary
requested the penalty be increased to $16,000.
In light of the operator’s history (16 violations of Section 316(b) at
this mine since 1/17/2012 (GX-2)), it’s size, it’s negligence, it’s ability to
stay in business, the gravity of the violation, and the abatement; I do not
believe an increase in the penalty is appropriate. Instead, I affirm the originally assessed
penalty of $4,000.00.
ORDER NO. 8185281
1. Contents of the
Order
On March 2, 2011 at 9:20 a.m.,
Inspector Cornelius M. Simmons issued to Respondent Order No. 8185281. Simmons found:
The
operator of this mine has failed to contact MSHA immediately upon discovery of
accident unplanned roof fall. A roof
fall occurred in the #2 entry of the CJ&L intake of this mine within fifty
feet of the surface. In the weekly
examiner takes and records an air reading in this portal. In the record of the
weekly examination the air reading stated “a movement of air”. The surface of
the #2 entry has been covered with dirty by using an end loader. The teeth marks from the loader bucket are
visible in the dirt. It is obvious that
the weekly examiner was aware of the unintentional roof fall and it was not
reported as required since the fall was above the anchorage horizon of the roof
bolts. The operator of this mine has
engaged in aggravated conduct because they knew this fall had occurred and did
not report it. This violation is an
unwarrantable failure to comply with a mandatory standard.
Government’s
Exhibit 1 (Hereinafter GX-1). Simmons
noted that the gravity of this violation was “No Likelihood,” “No Lost
Workdays,” and would affect one person.
2.
Legal Standards
Order
No. 8185281 was issued under Section 104(d)(1) of the Mine Act. That provision provides the following:
If, upon any inspection of a coal
or other mine, an authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety standard, and if he also
finds that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard, and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to the operator
under this chapter. If, during the same inspection or any subsequent inspection
of such mine within 90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any mandatory health
or safety standard and finds such violation to be also caused by an
unwarrantable failure of such operator to so comply, he shall forthwith issue
an order requiring the operator to cause all persons in the area affected by
such violation, except those persons referred to in subsection (c) of this
section to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such violation
has been abated.
30
U.S.C. § 814(d)(1).
The Order deals with an alleged
violation of 30 C.F.R. §50.10(d) (titled “Immediate notification.”). That section provides the following:
The operator shall immediately
contact MSHA at once without delay and within 15 minutes at the toll-free
number, 1–800–746–1553, once the operator knows or should know that an accident
has occurred involving:
(d) Any other Accident
30
C.F.R. §50.10(d).
3. Summary of
Testimony
a. Testimony of Cornelius Mack
Simmons:
Simmons
started in the coal industry in 1974.
(Tr. 72). He worked at Dominion
#36 from 2003 to 2007. (Tr. 72-73). He ran equipment and did repair work. (Tr. 73).
He did not have any examination duties and was not a foreman, although
he does have foreman papers. (Tr.
73). Simmons had been a coal mine
inspector for MSHA for about six years.
(Tr. 71-72). As an inspector,
Simmons duties include finding violations in coal mines. (Tr. 73).
At
the time of issuance, Simmons had inspected #36 for two or three inspection
periods. (Tr. 73-74). He was familiar
with the CJ&L intake entryway. (Tr.
74). He had inspected it twice before
the issuance of Order No. 8185281 on March 2.
(Tr. 74). The CJ&L air intake
was used to ventilate the mine, remove harmful gasses and/or render them
harmless, and to help carry dust away from working miners. (Tr. 74).
There were three entries into CJ&L.
(Tr. 74). Simmons sketched a map
of the CJ&L (GX-3). (Tr.
74-76). He labeled the entries 1, 2, and
3. (Tr. 76). The circles on the map are timbers. (Tr. 79).
There were timbers across all three entries. (Tr. 118).
The entries were approximately 20 feet wide and four feet tall. (Tr.
76). The distance from the entryway,
outby the timbers, to the surface was about 100 feet. (Tr. 76-77).
Under
30 C.F.R. §75.364(b)(1) Respondent is required to travel one of the entries in
its entirety weekly to record hazards (including bad top and harmful gases),
methane accumulations, and air tank leaks.
(Tr. 74, 77, 97, 118). “Traveling
in its entirety” means traveling from start to finish. (Tr. 78). There were no signs directing the examiner
which entry to travel. (Tr. 118). It was not necessary to actually travel out
of the portal. (Tr. 113-114). Respondent had to record their findings in a
weekly record. (Tr. 77).[10] It also had to take air readings in each of
the three entries. (Tr. 77-78, 97). Entry #1 contained an old fan housing that
would allow travel outside. (Tr. 97-98). On cross examination, he conceded that if an
examiner traveled the entirety of the #1 Entry weekly but not the #2 Entry,
then the examiner complied with 30 C.F.R. 75.364(b)(1) (Tr. 98, 114). Respondent was not cited for a violation of
that standard. (Tr. 98).
On
March 2, 2011 Simmons went to #36. (Tr.
80). He went into the mine office and
reviewed the weekly book. (Tr. 80, 83). The report for #2 entry did not contain a
normal air reading but instead said there was a movement of air. (Tr. 80).[11] The measurements showed that the amount of
air moving dropped from 30,000 to 50,000 feet per minute to 60 feet per
minute. (Tr. 81, 90-92). This signified an air blockage. (Tr. 81).
Below 50 feet per meter the blades on the anemometer will not turn. (Tr. 91).
On cross examination, Simmons conceded that Respondent was not required
to maintain any specific cubic feet of movement or any specific velocity in #2
entry and was not cited for failure to maintain air velocity. (Tr. 96).
Further, the CJ&L intake was supplemental ventilation for the
mine. (Tr. 96). By the time of the hearing the CJ&L was
sealed. (Tr. 96).
At
some point he traveled underground with T.J. Howington (“Howington), a weekly
mine examiner. (Tr. 83). Simmons and Howington traveled all three
entries in their entirety and had done so in the past. (Tr. 78-79).
He had not seen dangers in these areas before. (Tr. 79). Simmons asked why there was no air
reading and Howington told him there had been a roof fall a few weeks earlier,
after February 11, 2011. (Tr. 81,
83). Howington said it had occurred
right after there was a gas inundation on T Section. (Tr. 83).
Simmons asked Howington if anyone had reported the roof fall. (Tr. 82).
Howington did not answer so Simmons asked again. (Tr. 82).
Howington said he did not know what Lawson had done. (Tr. 82).
At
the #2 Entry, Simmons and Howington saw downed timbers, a sign of danger. (Tr. 84).
There were no danger signs on the timbers. (Tr. 85).
Timbers are used to support the roof.
(Tr. 87). Timber does not
necessarily mean the area is dangered off; in some cases people can travel
through timbers. (Tr.87). It was possible to travel through the timbers
here. (Tr. 87-88).
There
was a roof fall in the area. (Tr.
84). Some rocks fell and pulled the
heads off of the bolt. (Tr. 84). Inby there was so much rock that the bolts
were not visible. (Tr. 84, 85). The bolts were probably covered; likely more
than the length of the bolts that had fallen out. (Tr. 85).
The top of the fall was at least five feet tall. (Tr. 84-85, 95,100, 118). However, he would have exposed himself to
danger by looking, so it may have been higher.
(Tr. 84-85). In his deposition he
stated that the material was as high as the entry or higher. (Tr. 101, 108). On cross examination he conceded that the
entry was around four feet before it fell, though his notes say five feet. (Tr. 101, 108). However, he stated that when the fall
occurred, it pulled some material from the bolts, broke the heads off, and left
these bolts sticking down from the top.
(Tr. 102). Beyond that point,
more fell in, so there was at least five feet in the fall. (Tr. 102).
The fall was as wide as the entry, but thicker in the middle than at the
sides. (Tr. 85, 102). He could not walk through the entryway and
could not get beyond the fall. (Tr.
85).
Respondent
had reported unplanned roof falls at Dominion #36 to MSHA in the past. (Tr. 98-99).
Simmons does not know why Respondent would not report this roof fall,
but they still may have had an incentive he did not know about. (Tr. 99-100).
Simmons
and Respondent disagreed on whether the #2 entry was dangered-off. (Tr.
114). Examiners know not to travel in a
dangered-off area. (Tr. 115). If #2 Entry had been dangered-off and the
examiners knew it then the area would not be a place where miners were normally
required to work and travel. (Tr.
115-116). As a result, an unplanned roof
fall, even above the anchorage, would not be reportable. (Tr. 116).
Simmons
was familiar with the mud seam that ran from Entry #3 to Entry #1. (Tr. 89).
The CJ&L had mud seams depositing loose material on the mine floor
in all three entries through roof cracks.
(Tr. 90, 102-103). There were mounds
of dirt, about a foot high, where material had fallen. (Tr. 89, 102-103). It was possible to walk over that material
and Simmons had done so. (Tr. 90). There was mud between the portal and the dual
row of timbers in #2 entry that had dribbled down. (Tr. 103).
He could not see what was inside this pile of debris. (Tr. 103-104). A mud seam can deposit material on the mine
floor from up into the mountain above the entry. (Tr. 103, 111). The amount of deposits can vary depending on
climate conditions and rain. (Tr.
103). The roof fall had rocks in
it. (Tr. 90, 105). Simmons did not see any way to differentiate
between material that fell from the mud seam and how much came from a rock
fall. (Tr. 104). There was some material from the mud seam
with rock on top. (Tr. 104-105).
Simmons
reviewed Citation No. 8186555, which was issued on August 15, 2011 and stated that
mud accumulated in the CJ&L up to half the entry. (Tr. 106, 117). The inspector did not indicate seeing any
roof bolts pulling down near the mud seam in this citation. (Tr. 117).
The citation was beyond the timbers.
(Tr. 117). Mud depositing is not
an unplanned roof fall. (Tr. 108). Respondent was not cited for an unplanned
roof fall on August 15. (Tr. 108).
With
Respect to Order No. 8185281, if a mud seam deposited two and a half feet of
material, it would not be an unplanned roof fall absent other evidence the fall
was above the anchorage. (Tr.
108-109). The evidence that this fall
was above the anchorage was that there were four-foot bolts and a five-foot
entry. (Tr. 110). Simmons testified that if two and a half feet
came from a mud seam and two and a half feet came from a rock fall then it
would still be an unplanned roof fall.
(Tr. 110-111). However, he admitted
that the fact alone that there was a mud seam depositing material is not
evidence of a roof fall above the anchorage.
(Tr. 111-112).
Good
evidence of a roof fall above the anchorage would be more material falling out
and roof bolts. (Tr. 112). Simmons testified that he had seen unplanned
roof falls with roof bolts in the material.
(Tr. 112, 118). He did not see a
single roof bolt in the material here.
(Tr. 113). However, if the fall
is deep the roof bolts will not be seen.
(Tr. 118-119). The bolts break
off in the top and stayed there. (Tr.
119). This is because they had been
there so long and the heads of the bolts pulled off. (Tr. 119).
This just leaves the bolts sticking in the top hanging down. (Tr. 119).
The bolts had to be buried in the material. (Tr. 119).
In
the CJ&L Simmons could not take an air reading because, as he learned when
he went outside, Respondent had used an end loader to push dirt from outside. (Tr. 85-86).
Therefore he does not know if the fall would have blocked the air. (Tr. 85).
Howington said that when Stacy found the rock fall they had covered it
up. (Tr. 86). He did not know whether the
dirt was causing the air restriction or if it was the material in the #2
Entry. (Tr. 116). All portals had a “do-not-danger” sign on
the screen so no one would enter from the outside. (Tr. 114).
Simmons
issued Order No. 8185281 (GX-1) for failure to report an unplanned roof fall at
or above the anchorage zone. (Tr.
94). On cross examination, Simmons
admitted that the fact that the fall was above the anchorage zone was the only
support he gave for the Order. (Tr.
95). Further, he admitted that nothing
in the inspection notes, the Order, or the deposition testimony says that
travel or ventilation was impeded. (Tr.
95-96).
Simmons
marked Order No. 8185281 with no likelihood of an injury. (Tr. 88, 113). This was because the fall already occurred;
this was just a failure to report. (Tr.
88). That is the same reason it was marked
no lost workdays. (Tr. 88). The Order was not S&S because Simmons did
not expect people other than possibly weekly examiners to travel through the #2
entry. (Tr.113). It was a paper violation. (Tr. 113).
Simmons
marked Order No. 8185281 as reckless disregard.
(Tr. 88). However, he later
talked to Stacy and his supervisors and decided it should be high
negligence. (Tr. 88-89). Several foremen knew of the fall and did not
report it as he should have. (Tr.
89).
b. Testimony of Greg Ratliff:
Ratliff
worked for Respondent as a production manager and had worked in the mines for
27 years. (Tr. 121-122). A production manager helps with production,
cut cycles, and mining. (Tr.
121-122). He worked as a belt shoveler,
electrician, section foreman, maintenance foreman, chief electrician, mine
foreman, and superintendent. (Tr.
122). He began with Respondent in 1988
and worked at #36 as superintendent from roughly 2000-2008. (Tr. 122-124, 135). He then left that mine. (Tr. 135).
As
superintendent, he had been through the mine and knew its intake entries,
including the CJ&L. (Tr. 124). The CJ&L intake provides extra air for
the mine. (Tr. 124). Ratliff reviewed a map of the CJ&L intake
entries (RX-1). (Tr. 125). One of the entries, #3, has a fan house. (Tr. 125).
The map appeared accurate. (Tr.
125). On cross examination he conceded
it was only accurate as of 2009, he did not know if it was accurate for March
2, 2011. (Tr. 137).
Respondent
conducted a weekly examination of the CJ&L wherein an examiner checked the
roof conditions, the travel ways, and the air course. (Tr. 125).
Only one entry had to be examined in its entirety. (Tr. 125-126, 139). He did not believe that they ever had to
check for hazards in all three entries.
(Tr. 139). However, if an examiner
is traveling and sees a hazard, he is still required to report it in the weekly
book, regardless of the entry. (Tr.
140). Further, air readings were taken
at each entry. (Tr. 140). The only
people who travel in the CJ&L intake were certified examiners. (Tr. 141).
Entry
#3 had a path of travel where examiners could traverse the full length of the
entry. (Tr. 129). To travel the entry in its entirety, an
examiner would walk down the entry on the right rib to the fence portal and go
out the fan door. (Tr. 129).
Since
2009 it had not been possible to conduct the examination in Entry #2. (Tr. 126).
In that year a state inspector issued a violation because the roof bolt
plates deteriorated, so Respondent dangered it off. (Tr. 126).
The area was dangered off outby the dual row of timbers and inby the
portal, about 20 feet by 70 feet of space.
(Tr. 126, 138, 142). The area
remained unchanged from the time it was dangered off to March 2. (Tr. 143).
Ratliff does not recall two rows of timbers also across Entry #1 and
#3. (Tr. 138). To prevent people from entering the #2 Entry
from outside, Respondent put up a chain-link fence and conducted regular
security patrols. (Tr. 127). These
fences were placed on all three portals, though Ratliff did not recall if there
were dangers signs on all three. (Tr.
138).
Ratliff
knew that the area was dangered off because he personally placed the
timbers. (Tr. 127). He also placed a “danger-do-not-enter” sign
on one of the timbers. (Tr. 127). Respondent also wrote in chalk on the timbers
and painted the ribs. (Tr.
127-128). The date board in the #2 Entry
was near the center, on one of the timbers.
(Tr. 130). Respondent did not
authorize anyone to enter the dangered-off area. (Tr. 128).
The weekly examiners were aware that the #2 Entry was dangered off. (Tr.
128). Ratliff never traveled into the
dangered-off area after placing the timbers.
(Tr. 129).
There
is a difference between dangered off areas and dangered off spots. (Tr. 128).
To danger off an entire area, Ratliff would place a double row of
timbers and a “do not enter” sign. (Tr.
128). To danger off a small spot he
would just place some timbers or cribs that had “danger” written on them. (Tr. 128).
It is possible to travel around such spots. (Tr. 128).
There were danger spots in Entry #1 and #3. (Tr. 128).
Ratliff
knew Howington as a contract belt examiner.
(Tr. 129). Weekly examiners were
trained that the #2 Entry was dangered off.
(Tr. 130). David Addair
(“Addair”) was a weekly examiner of the CJ&L intake before Howington. (Tr. 130).
Addair showed Howington the area and told him it was dangered off. (Tr. 130). No examiners were authorized to
remove the danger sign in the #2 Entry.
(Tr. 131). He believed that the
Entry remained dangered off after he ceased to be superintendent. (Tr. 131).
He also believed that Howington knew that this area was dangered
off. (Tr. 131). However, on cross examination Ratliff
conceded that he did not work at the mine when Howington conducted the
examinations. (Tr. 137).
There
is a difference between material from a mud seam and a roof fall. (Tr. 131-132). Ratliff never saw an unplanned roof fall in
the dangered-off area of Entry #2. (Tr.
132). Simmons notes indicate that
Ratliff found a roof fall there in February 2011 are inaccurate. (Tr. 133).
However, he saw material from the mud seam there. (Tr. 132).
Depending on the weather, mud or draw rock can build up quickly. (Tr. 132-133). Ratliff did not believe that the seam would
weaken the roof, but it was an adverse condition. (Tr. 138-139).
When
mining a new portal, it is standard practice to use bolts at least a foot
longer than the normal bolts within 150 feet of the portal. (Tr. 133-134). The dangered off area in Entry #2 was within
150 feet of the portal. (Tr. 134). However, Ratliff was not able to confirm that
longer bolts were used there. (Tr. 134). He did not know what type of bolts were required
by the roof control plan. (Tr. 139).
Ratliff
was not in the CJ&L intake when Order No. 8185281 was issued. (Tr. 130).
He had no idea what the area looked like on the day of the Order or
between 2009 and March 2011. (Tr.
136-137). However, he was in the
CJ&L intake both before and after the issuance. (Tr. 130-131). On cross examination he discussed his
deposition testimony wherein he stated he was not in the area on the day of the
citation and could not recall the last time he was there before the Order. (Tr. 136-137). However, on re-direct examination he noted
that in his deposition that he had been in the area of Entry #2 within the last
year. (Tr. 141). He did not recall the exact time in his
deposition, though he guessed around June 2011.
(Tr. 141-142). This deposition
testimony refreshed Ratliff’s recollection; he was in the #2 entry of the
CJ&L intake in the summer of 2011.
(Tr. 142).
c. Testimony of Timothy Harold
“T.J.” Howington, Jr.:
Howington
did not speak to Respondent’s counsel or the Secretary before the hearing. (Tr. 158).
Howington had been in the coal industry for 12 years. (Tr. 145).
In March 2011, he worked for Abby contractor at #36. (Tr. 146).
He had done so for about two years starting in 2009 or 2010. (Tr. 146).
Before that, he had worked for a time at #36 as an outby boss. (Tr. 146).
As outby boss he examined belts, pre-shifted the mine, assigned work to
care for and clean drives, and checked for hazardous conditions and corrected
them. (Tr. 146-147). If he could not correct it, he would danger
it off. (Tr. 147). To do this he would build something or set
timbers and put up a sign. (Tr. 147). He
would also talk to the superintendent to correct a condition. (Tr. 147).
Hazardous conditions were recorded in a book. (Tr. 147).
There were many belt books at #36 including the main book and the books
for Sections U and T. (Tr. 147).
Howington
was familiar with the CJ&L. (Tr.
148). He was responsible for taking
three air readings and drift amounts for the each of the three entries there. (Tr. 148).
There were timbers in each entryway of the CJ&L. (Tr. 148).
At #2 Entry, where he took an air reading, there were eight timbers
set. (Tr. 148). The area was dangered off behind the
timbers. (Tr. 149). He was told never to
go beyond the timbers. (Tr. 162). On a weekly basis, the examiner would be in
the CJ&L and that person knew not to go beyond the dual row of timbers in
the #2 entry. (Tr. 160). Entry #2 was
not an active working area of the mine.
(Tr. 166).
He did not believe there were timbers in the #1 Entry. (Tr. 149).
There were two rows of timbers and an old fan in the #3 Entry. (Tr. 149).
The timbers were placed evenly across the 18-20 foot entries and spaced
four feet apart. (Tr. 149-150). He did not think there were dangers signs on
the timbers or the word “danger” written on the rib in Entry #2 or #3. (Tr. 151).
Howington knew Addair, another miner who took him through the CJ&L
and showed him how to do a weekly exam.
(Tr. 159). Addair showed him
where the area was dangered off with eight timbers. (Tr. 159).
Addair might have showed him a danger sign. (Tr. 159).
Addair told him that the entries were dangered off from access because
the bolts had rotted, creating unsupported top.
(Tr. 160).
Howington
was required to check for hazardous conditions in the CJ&L intake. (Tr. 150).
He looked to see if there were hazardous conditions in each entry. (Tr. 150).
He would look behind the timbers for hazardous conditions. (Tr. 150).
He went behind the timbers in the #3 entry where the fan housing was
located. (Tr. 150). However, there was a safe path in the #3
entry to allow weekly examination. (Tr.
160).
Howington
recalled traveling with Simmons in the CJ&L at least one time, in March
2011. (Tr. 151, 153). He went to do his weekly examination and
Simmons went with him. (Tr. 153). When they started Howington told Simmons
there had been a roof fall. (Tr. 153). Simmons asked if it had been reported and
Howington said he was sure Respondent did.
(Tr. 153). They went to the area
and looked at the fall. (Tr. 153).
Howington
learned about the roof fall from someone else but could not remember who. (Tr. 154-156). He learned about it when the mine had flooded
and they had to pump out the CJ&L.
(Tr. 155). He did not see it then
because the mine was idle and only bosses were present, but Stacy and Ratliff
had run water line in Entry #3. (Tr.
155-156). The fall happened sometime in
a two-week period between an examination (where he did not see the condition)
and the water situation. (Tr. 165). On the third week he saw the fall. (Tr. 165).
His best guess was that it occurred between January 2 and March 2. (Tr. 165-166).
There
was a mud seam in the CJ&L intake that deposited material on the bottom in
the #2 entry and the whole area. (Tr.
160-161). Depending on weather
conditions a lot of material could be deposited. (Tr. 161-162). If mud fell from the deposit it would not
have been a roof fall. (Tr. 163). However, Howington believed that the material
behind the timbers was where the roof had given way. (Tr. 161-163). All of the material was from the top. (Tr. 163).
That is why it was dangered off.
(Tr. 162). He could see the bolts
hanging down. (Tr. 164). The fact that the bolts were out was an
indication of how much had fallen. (Tr.
164). He could see the bolts with the
glue packed around it. (Tr. 164). He could not remember if there were bolts at
the bottom in addition to the bolts at the top.
(Tr. 164). The bolts at the top
were still anchored. (Tr. 164).
Howington
did not recall discussing the previous day’s air readings with Simmons. (Tr. 154). He had recorded a finding of “air
movement” in a weekly record book. (Tr.
156). This means that there is enough
air for the blades of the anemometer to move but not enough to get a good
reading. (Tr. 156).
During
the examination, Howington and Simmons walked to the portals in each entry but
he could not recall going beyond the timbers.
(Tr. 151). The portals were where
the entries opened to the surface. (Tr.
152). All three portals were fenced off
from outside. (Tr. 152). It is only possible to reach the outside
through a door in the fan housing. (Tr.
152). None of the portals had danger
signs. (Tr. 152). He recalled exiting out the #3 Entry. (Tr. 152).
He could not remember if he went to the fence in #2 Entry. (Tr. 142-153). They went outside. (Tr. 157).
There they saw dirt pushed up against the outer entry of #2. (T. 157).
He did not know why this was done or who did it. (Tr. 157).
d. Testimony of David Addair:
Addair
worked as a mine foreman for Respondent and had been in the mines for about 32
years. (Tr. 169). He had worked as an outside man, a scoop man,
miner operator, and foreman. (Tr.
169). He started with Respondent in
January 2006 and was a full time employee starting in 2008. (Tr. 169-170). He is a certified foreman, electrician, shop
foreman, dust sampler, and is certified in first aid. (Tr. 170).
He
worked at #36 from January 2006 to October 2010 as a belt examiner. (Tr. 170).
He also examined the CJ&L.
(Tr. 171). The CJ&L provides
extra intake of air. (Tr. 171). There were three entries to the CJ&L,
examined weekly. (Tr. 171). Only certified examiners entered the
CJ&L. (Tr. 173). To examine CJ&L, he would take air
readings, put on the date, initials, and check for hazardous conditions. (Tr. 171).
He did not travel all three entries, he just traveled one in its
entirety, usually #3. (Tr. 171-172,
177). Entry #3 had the door to get
outside in the fan housing. (Tr.
172). He took air readings in all three
entryways, including #2. (Tr. 176). He did this even though it was dangered off
but did not know why. (Tr. 177). However, he did not go beyond the double row
of timbers to take air readings. (Tr.
181-182).
He
had to check for hazardous conditions.
(Tr. 177). If he saw a hazardous
condition he would take care of it. (Tr.
178). While he only traveled up one
entry, he would look in the others. (Tr.
178). If he saw a hazardous condition he
would fix it or danger it off. (Tr.
178). However, he never found any
hazardous conditions in his weekly reports that he could not fix. (Tr. 179).
He would not know about a hazardous condition in an entry if he did not
travel it. (Tr. 182). All weekly reports were in the foreman’s
office. (Tr. 180). He filled them out and the superintendent
countersigned. (Tr. 180).
Addair
did not go down #2 Entry after they set the timbers. (Tr. 172). Entry #2 was dangered off with a
piece of belt with “danger” written on it.
(Tr. 172-173). It was hanging in
the center of the first row of timbers on the inby side. (Tr. 173).
Employees were not supposed to go beyond the dual row of timbers. (Tr. 173).
There were areas where danger was written in chalk in #1 and #3
Entries. (Tr. 173). However, there was a path on the right side
of #3 to walk. (Tr. 174). On cross examination, he conceded that there
were two rows of timbers and danger signs across all three entries. (Tr. 179).
He crossed the timbers in the #3 Entry.
(Tr. 179). Sometimes they would
travel #1 up to the portal. (Tr.
179). He crossed timbers that had
“danger” on them. (Tr. 179).
The
last three months he was a belt examiner, Howington took over examining the
CJ&L. (Tr. 170-171, 174). Addair walked Howington through the CJ&L
and told him how to do the exam. (Tr.
174-175). Addair told Howington the #2 Entry
with the dual rows of timbers were dangered off. (Tr. 175).
He was not sure that he told Howington not to go beyond the dual row of
timbers, but he knew what the timbers meant.
(Tr. 175). When he showed
Howington the area, the danger sign was there.
(Tr. 175). Addair left #36 in
October of 2010 and had not been doing examinations of the area for three
months prior to his departure. (Tr.
180). He did not know anything about the
conditions after Howington took over.
(Tr. 180-181).
There
was a mud seam in the CJ&L. (Tr.
175). The mud seam deposited material in
the dangered-off area. (Tr. 175). The amount depended on the weather. (Tr. 175-176).
When
driving a new portal entry, within 150 feet of the portal, it is proper
procedure to use bolts a foot longer than usual. (Tr. 176).
The dangered off area in #2 was within 150 feet of the portal. (Tr. 176).
4. Contentions of
the Parties
The Secretary contends that Order
No. 8185281 was validly issued, that there was no likelihood that the violation
would result in a no lost-workday injury, that one person was affected, that
Respondent was highly negligent, that the violation was caused by an
unwarrantable failure, and that the proposed civil penalty is, if anything, too
low. The Secretary argues that the
citation is valid because a roof fall above the anchorage in a working section
of the mine occurred and was not reported.
(Secretary’s Post-Hearing Brief
at 22-26). The Secretary argues that the
Respondent’s actions were highly negligent and the result of an unwarrantable
failure because the area and time of the violation were extensive, the danger
was obvious, there was notice to Respondent of the need to comply, knowledge of
the violation, and abatement only occurred after the Order was issued.
Respondent
contends that Citation No. 8185281 was not validly issued, that it did not exhibit
high negligence, that the violation was not the result of an unwarrantable
failure, and that the proposed penalty is inappropriate. Respondent argues that the citation was not
valid because the alleged violation did not occur in a working section and did
not occur above the anchorage. (Respondent’s Post-Hearing Brief at 17-25). Respondent argues that it was not negligent or
guilty of an unwarrantable failure because of several mitigation factors
including their lack of knowledge and sincere belief that a report was not
necessary in this situation.
5. Findings and
Conclusions
Order No. 8185281 was issued for an alleged violation
of 30 C.F.R. §50.10(d), requiring an operator to contact MSHA within 15 minutes
of several specific dangers or “Any other Accident.” The regulations further define an “Accident”
as, among other things, “An unplanned roof fall at or above the anchorage zone
in active workings where roof bolts are in use; or, an unplanned roof or rib
fall in active workings that impairs ventilations or impedes passage.” 30 C.F.R. §50.2(h)(8). Therefore, the threshold issue in determining
if this standard applies is whether the alleged roof fall occurred in active
workings. If the cited condition did not
occur in active workings then it is not necessary to determine whether the
alleged fall occurred above the anchorage zones, impaired ventilation, or
impeded passage because the alleged fall would not be reportable.
Both
the Mine Act and the Secretary's regulations define active
workings as “any place in a coal mine where miners are
normally required to work or travel” 30 U.S.C. § 878(g)(4) and 30
C.F.R. § 75.2. In this case, the
Secretary argues that the #2 Entry, where the cited condition was found, was an
active working section where miners were normally required to work and
travel. Specifically, Simmons testified
that Respondent was required to travel one of the entries in its entirety to
conduct inspections. (Tr. 74, 77, 97,
118). The Commission has held that areas
that are required to be inspected are active workings. See
e.g. Consolidation Coal Company, 22
FMSHRC 340, 348 (Mar. 2000) and Emerald
Mines, 7 FMSHRC 437, 440-41 (Mar. 1985).
Respondent
countered that the Plan only required Respondent to inspect one of the entries
in the CJ&L, that it always inspected the entry with the fan housing, and
that the #2 Entry was dangered-off such that no one was required to enter the
area. It is undisputed that Respondent
was only required to inspect one of the three entries; even Simmons testified
that this was the case. (Tr. 98, 114,
139, 171-172, 177). Respondent’s
witnesses testified that they always chose to inspect the entry with the fan
housing because it had an unobstructed path to inspect in its entirety. (Tr. 129, 171-172, 177). Howington also testified that while the
entries were dangered-off, there was a clear path in the fan house entry
allowing it to be inspected in its entirety.
(Tr. 160). Simmons was the only
witness who testified that anyone inspected Entry #2 in its entirety. Specifically, he claimed that he and
Howington had done so on more than one occasion. (Tr. 78-79).
Howington did not recall that event.
(Tr. 151).
Respondent
claims that it did not inspect the #2 Entry because that entry was
dangered-off. This is the crux of the
issue here. The Commission has held that
when an area has been dangered-off it is no longer an active working. Cyprus
Empire Corporation, 12 FMSHRC 911 (May 1990). Even Simmons conceded during
cross-examination, if the #2 Entry had been dangered-off and the examiners were
aware of that fact the area would not be an active working. (Tr. 115-116). Respondent presented evidence to show that
the area was dangered-off. (Tr. 126,
177). Further, Ratliff testified that
everyone was aware that the #2 Entry was dangered off. (Tr. 128).
Howington confirmed that the #2 Entry was dangered off and that this was
known by the examiners. (Tr. 149, 160). Ratliff, Howington, and Addair disagree about
how the #2 Entry was dangered off, but all agree that no one was supposed to
enter the area.
The
only witness who testified that the miners were regularly required to enter the
#2 Entry was the one witness, Simmons, who did not work there. (Tr. 85-88).
In addition to Simmons testimony, the Secretary provided three arguments
in his brief explaining why this area was not dangered-off. First, the Secretary argued that the timbers did
not indicate that the area was dangered off.
Specifically, he pointed to Simmons testimony that timbers were designed
to allow people to enter the area and that Simmons, Howington, & Addair did
so. Secretary’s
Post-Hearing Brief at 24. However, I
note that the Secretary’s argument that Simmons, Howington, and Addair traveled
beyond the timbers is not based on the record.
The
Secretary also argues that there is a conflict in the in the testimony about
what measures were taken to danger off Entry #2. Secretary’s Post-Hearing Brief
at 25. The Secretary therefore asserts
that the area was not actually dangered off.
Specifically, some witnesses testified that there were timbers across
all three entries.
Finally,
the Secretary argues that, as long as the CJ&L was open, Respondent was
required to maintain and examine the area.
The Secretary asserts that before the alleged fall the examiners could
have traveled any of the entries and nothing would stop them from continuing to
do so after the fall. As previously
stated, it is clear that the miners who worked at #36 were aware of the
conditions in the CJ&L and that they were not permitted to go beyond the
timbers in the #2 Entry. The Secretary
provides no evidence to support his claim that the determination that this area
was not active was made only for the purposes of the hearing or that miners
regularly entered the area behind the timbers in Entry #2.
I
do not find any of the Secretary’s arguments to be compelling. In light of the evidence, I find that the #2
Entry was dangered-off and therefore not an active working. As a result, 30 C.F.R. §50.10(d) does not
apply in this matter as there was no reportable accident as defined in 30
C.F.R. §50.2(h)(8). Therefore, I find
that the Secretary has not proven by a preponderance of the evidence that a
violation has occurred. This Order is DISMISSED and no civil penalty will be
levied.
ORDER
In
light of the affirmation of Order No. 8173479 and the dismissal of Order No.
8185281, Respondent, Dominion Coal Corporation, is hereby ORDERED TO PAY the Secretary of Labor the sum
of $4,000.00 within 30 days of the date of this decision.[14]
/s/
William S. Steele
William S. Steele
Administrative
Law Judge
Distribution:
(
Emily K.
Hargrove, Esq. & Daniel D. Povich, Esq.,
Wm.
[1] Hereinafter references to the transcript will be cited “Tr.” with the page number.
[2] The wireless communication system is designed to allow miners to communicate throughout the mine at specific areas while they are working. (Tr. 40). The communication system helps miners escape during an emergency. (Tr. 49).
[3] There was an obvious typo in the ERP and Shortt
believes it has since been corrected.
(Tr. 22).
[4] The evidence established at hearing that there was a
scrivener’s error in that plan and that the word “notify” should be included
after the word “shall”. (Tr. 22).
[5] However, it is significant that the number Respondent was to call, 1-800-746-1553, is the same number used for reporting accidents. That section states that “[t]he operator shall immediately contact MSHA at once without delay and within 15 minutes,” when an accident occurs. 30 CFR § 50.10. The fact that the number given in the ERP was for a fast-response hotline with expertise in serious, even deadly, accidents indicates that the report should have been made rapidly.
[6] At hearing, Respondent’s witness raised the issues
that communication system here was down in only one section and that it was
only required to report system-wide failures.
(Tr.66-67). As with the argument
that it was not required to report communication failures caused by power
outages, there is no reason to believe there is a distinction between
communication loses in one area or in the entire mine. As Lawson conceded, it would not matter in an
emergency if power was down in one area of the entire mine. (Tr. 67-68).
Furthermore, Respondent did not brief this issue. Therefore, I find it is not a mitigating
factor.
[7] The Secretary argues that there was some higher
degree of gravity in this violation, even arguing that it could be
S&S. Secretary’s Post-Hearing Brief
at 14-15. However, this contradicts the
opinion of the inspector; an opinion that is entitled to considerable
deference. MSHA inspectors
are entitled to a certain level of deference as to their findings and
opinions. See e.g. Harlan Cumberland
Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) and Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995). As a result, I
will not disturb the gravity cited in the Order.
[8] While an administrative law judge may determine, in
his discretion, that some factors are not relevant, or may determine that some
factors are much less important than other factors under the circumstances, all
of the factors must be taken into consideration and at least noted by the
judge. IO Coal, 31 FMSHRC at 1351
[9] Under Commission precedent and
promulgated standards, negligence “is conduct, either by commission or
omission, which falls below a standard of care established under the Mine Act
to protect miners against the risks of harm.”
30 C.F.R. § 100.3(d). “A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices.”
[10] Respondent records weekly examination results in the weekly books. (Tr. 82). The books cannot be altered and they must be kept for one year. (Tr. 82). The weekly reports contain air readings, locations traveled, hazards, and corrections. (Tr. 82).
[11] A “movement of air” is not enough to be measured by
an anemometer. (Tr. 81, 90). An anemometer is a tool used to measure air. (Tr. 90). It measures air velocity and is used to
determine the quantity of air passing through an area. (Tr. 90).
[12] Ratliff testified that he placed timber to block the
#2 Entry, wrote in chalk on the rib, and place a “do-no-enter” sign. (Tr. 127-128). Howington testified that there were timbers
across the entry. (Tr. 159).
Addair testified that there was a piece of belt with the word “danger”
written on it. (Tr. 172-173).
[13] I find that
Howington’s testimony on these points particularly probative because he no
longer works for the Respondent and was even subpoenaed by the Secretary to
testify.
[14] Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,