FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

August 2, 2012

DECISION GRANTING SECRETARY’S

MOTION FOR SUMMARY DECISION

AND

ORDER TO PAY

Before:     Judge Feldman

            In this matter, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“the Act”), the Secretary of Labor (“ the Secretary”) seeks to impose a total civil penalty of $9,429.00 on Dickenson-Russell Coal Co., LLC (“DRC”), consisting of $3,143.00 for each of three similar violations of section 75.1403-6(b)(3) of the Secretary’s mandatory safety standards. This mandatory standard requires each self propelled personnel carrier to:

Be equipped with properly installed and well-maintained sanding devices, except that personnel carriers (jitneys), which transport not more than 5 men, need not be equipped with such sanding device.

30 C.F.R. § 75.1403-6(b)(3). Each of the violations cited in Citation Nos. 6639886, 6639887 and 6639888 issued on April 15, 2008, are for wet and inoperable sanders on each of three, nine passenger, diesel mantrips. The violations were designated as significant and substantial (S&S) and attributed to a moderate degree of negligence.

            On April 26, 2012, the Secretary filed a Motion in Limine, relying on Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992), arguing that it is well settled that the exercise of caution is neither a mitigating factor, nor a defense, to an S&S designation. Sec’y mot. at 4-6. DRC responded to the Secretary’s Motion in Limine on May 10, 2012, stipulating that the undisputed facts support technical violations of Safeguard No. 73336598 referenced in Citation Nos. 6639886, 6639887 and 6639888. Resp. opp. at 2. Safeguard No. 73336598 repeats, in essence, the provisions of 30 C.F.R. § 75.1403-6(b)(3) that require nine passenger personnel carriers to have well maintained sanders. However, DRC challenged the S&S designation because:

(1) the mine was idle because it was inundated with water, and, the mantrips, that had been brought to the surface, would have been serviced and replaced with dry sand prior to the resumption of mining operations; and (2) there are several alternative methods of mantrip control and braking such as operation at slow speeds, normal service brakes, emergency brakes and operation in low gear.

Resp. opp. at 2, 9.

            Safeguards are issued by MSHA inspectors to provide guidelines to minimize hazards with respect to transportation of men and materials. 30 C.F.R. § 75.1403 (repeating section 314(b) of the Mine Act, 30 U.S.C. § 874(b)). 30 C.F.R. § 75.1403-1 sets forth general provisions regarding “criteria” by which authorized representatives are guided in requiring safeguards. Section 75.1403-1(a) provides:

Sections 75.1403-2 through 75.1403-11 set out the criteria by which an authorized representative of the Secretary will be guided in requiring other safeguards on a mine-by-mine basis under § 75.1403.

 30 C.F.R. § 75.1403-1. (Emphasis added).

            Although Citation Nos. 6639886, 6639887 and 6639888 referenced Safeguard No. 73336598, the citations also cited violations of 30 C.F.R. § 75.1403-6(b)(3). As the language in Safeguard No. 73336598 substantively repeats the provisions of 30 C.F.R. § 75.1403-6(b)(3) that apply to all underground coal mines rather than to particular conditions at DRC’s Cherokee Mine, Citation Nos. 6639886, 6639887 and 6639888 concern violations of a mandatory safety standard rather than violations of a safeguard. Consequently, DRC’s stipulation to violations of Safeguard No. 73336598 is, in effect, a stipulation to violations of the mandatory standard in 30 C.F.R. § 75.1403-6(b)(3).

            In view of DRC’s stipulation, there is no dispute as to any issue of material fact with regard to the fact of the cited violations. With respect to the S&S issue, there are no unresolved issues of material fact although DRC argues that mitigating factors preclude an S&S designation. While DRC’s reliance on mitigating factors presents a question of law, it does not concern unresolved questions of fact.

            Disposition by summary decision is appropriate in instances where (1) the entire record establishes that there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). As the essential facts in this matter are undisputed, and, the fact of the violations is not contested, the parties were informed during a telephone conference conducted following the receipt of DRC’s opposition, that I construed the Secretary’s Motion in Limine as a Motion for Summary Decision on the S&S issue. The parties were further advised that I considered DRC’s May 10, 2012, opposition as a cross motion for summary decision on the question of S&S. The Secretary replied to DRC’s opposition on May 21, 2012.

            I. Findings of Fact

            As noted, the essential facts are undisputed and set forth in the Secretary’s May 21, 2012, reply:

On the morning of April 15, 2008, MSHA Certified Mine Inspector (CMI) Keith Cline, accompanied by CMI trainee Ed Smith, arrived at the Cherokee Mine for a regular underground inspection. The inspectors were told that the primary escapeway was inundated with water, so they decided to inspect several pieces of mining machinery on the surface. Among the machines they inspected were three steel-wheeled track-mounted personnel carriers, known as mantrips. All three mantrips were located on the track rails in the motor barn. None of the mantrips was tagged out of service or dangered-off. All three were in the standard ready-for-use position and any of them could have been used by any miner at any time.

Sec’y reply at 1. (Citations omitted).

            II. S&S

            Resolution of the S&S issue has been thoroughly addressed by the Commission. As previously noted, as a general proposition, a violation is properly designated as significant and substantial (“S&S”) in nature if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or an illness of a reasonably serious nature. National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained:

            In order to establish that a violation of a mandatory safety standard is [S&S] 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 [by the violation] will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Id. at 3-4; see also Austin Power Inc., v. Sec’y of Labor, 861 F.2d 99, 103-04 (5^th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission explained its Mathies criteria as follows:

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 (Aug. 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984).

(Emphasis in original).

            The Commission subsequently reasserted its prior determinations that as part of any S&S finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of the hazard contributed to by the cited violative condition or practice. Peabody Coal Co., 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996). The likelihood of a particular violation resulting in serious injury must be viewed in the context of the continuance of normal mining operations in the presence of an unabated hazard. U.S. Steel Mining, 7 FMSHRC at 1130. Thus, consideration must be given to both the time frame that a violative condition existed prior to the issuance of a citation, and the time that it would have existed if normal mining operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986).

             Consistent with Mathies and its progeny, the focus is on the hazard posed by the cited braking violations. DRC seeks to diminish the likelihood of injury on several grounds. Namely, DRC relies on considerations such as the future timely maintenance of the sanders, the exercise of caution, and the redundant methods of braking available to mantrip operators.

                        a. Intended Maintenance Prior

                        To Resumption of Operation

            With respect to DRC’s assertion that the wet sand on the mantrips would have been replaced with dry sand prior to the resumption of normal mining operations, it is significant that the three cited mantrips were not tagged out of service. The purpose of the cited mandatory standard in 30 C.F.R. § 75.1403-6(b)(3) is to protect miners from hazards caused by the operation of defective equipment. In this regard, Judge Zielinski addressed the materiality, with respect to the issue of S&S, of a mine operator’s claim that cited stationary defective mobile equipment would have been repaired prior to its operation. Bilbrough Marble Division, 24 FMSHRC 285, 288 (Mar. 2002) (ALJ). Judge Zielinski stated:

In general, such standards [requiring the maintenance of equipment] must be complied with even though the equipment is not actually being used or is not intended to be used during a particular shift. Allen Lee Good, 23 FMSHRC 995 (Sept. 2001); Mountain Parkway Stone, Inc., 12 FMSHRC 960 (May 1990). In Mountain Parkway, the term “used” was interpreted broadly to include equipment that was “parked in the mine in turn-key condition and had not been removed from service.” Id. at 963. The Commission relied on Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April 1981), which held that “the fact that the equipment was located in a normal work area, was capable of being used, and had not been removed from service” meant that it had been “used” within the meaning of the standard there at issue [footnote omitted]. In Good, the Commission reiterated that “[a]s long as the cited equipment is not tagged out of operation and parked for repairs” a standard requiring that braking systems be maintained in functional condition was fully applicable. These cases make clear that the operator could properly be cited for any defective conditions unless the loader had been effectively taken out of service.

24 FMSHRC at 288.

            In Bilbrough, Judge Zielinski determined that a loader with a defective windshield had effectively been taken out of service, despite not being “tagged-out,” because the loader was parked in a “dead zone” that was known by employees to be an area where equipment needing service was stored. Unlike Bilbrough, in this case the mantrips were parked in the motor barn on track rails that led directly underground. The assumption that defective mobile equipment routinely parked in a working area of the mine will be serviced prior to operation of the equipment is contrary to Commission case law and does not defeat an S&S designation. Here, it is reasonably likely that continued operation of mantrips with compromised sanders on grades entering and exiting the mine will result in a loss of control, collision, or derailment resulting in serious injury.

                        b. Exercise of Caution

            Turning to the issue of exercising caution, DRC asserts that mantrip operators use the transmission to maintain the mantrips at safe, slow operational speeds. Resp. opp. at 4. In addition, mantrips in operation must maintain a separation distance of at least 300 feet. Id. However, as the Secretary suggests, the Commission has determined that cautious behavior cannot be relied upon to prevent the potential serious consequences of a hazardous condition. Eagle Nest, 14 FMSHRC at 1123. The Commission stated:

We reject the judge’s conclusion that the “exercise of caution” may mitigate the hazard. In effect, the judge seeks to add another element to the Mathies test, i.e., that the exercise of substantial additional caution can be presumed and then considered in determining whether there is a likelihood of injury. Consistent with Commission precedent, it is the likelihood of injury that must be evaluated in considering whether a violation is S&S. The hazard continues to exist regardless of whether caution is exercised. The judge therefore erred when he concluded the hazard could be mitigated by caution. We assume that the judge meant that the likelihood of injury could be mitigated by caution. While miners should, of course, work cautiously, that admonition does not lessen the responsibility of operators, under the Mine Act, to prevent unsafe conditions.

Id.

                        c. Redundant Safety Measures

            Finally, DRC alleges the sanding violations are not S&S because of redundant methods of braking that are available to mantrip operators. Specifically, DRC relies on the mantrips’ transmissions, brakes, and emergency brakes to slow the machines. Resp. opp. at 9. In addition, DRC states that there is a derail system aligned to direct traffic coming down the slope to the side of the portal. Id. at 4.

            DRC’s reliance on redundant safety measures to mitigate an S&S characterization is misplaced. The presence of redundant braking measures does not diminish the seriousness of a defect in the braking system. In fact, the presence of redundant safety measures is in recognition of the significant dangers associated with a mobile equipment brake failure. See Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7^th Cir. 1995) (holding that an operator’s assertion that redundant safety measures eliminate a serious risk to miners “defies common sense” because such measures are in place “precisely because of the significant dangers.”) See also AMAX Coal Company, 19 FMSHRC 846, 850 (May 1997) (holding that the presence of fire detection equipment and fire fighting equipment does not negate the serious safety risk posed by fires). Thus, alternative methods of braking and precautions taken with regard to derailments do not provide an adequate basis for precluding an S&S determination.

            In the final analysis, the S&S question must be resolved by considering the hazard posed by the continuing use of mantrips with defective sanders during the course of normal continued mining operations. Given the fact that these mantrips operate on significant grade, it is reasonably likely their continued operation without the benefit of functioning sanders will result in a loss of control accident causing serious injury to the mantrip occupants. Consequently, the sanding device violations cited in Citation Nos. 6639886, 6639887 and 6639888 are properly designated as S&S.

            III. Negligence

            The cited violations have been attributed to a moderate degree of negligence on the part of DRC. The Commission has consistently construed regulations requiring the maintenance of equipment as an “ongoing responsibility on the part of the operator” to ensure that such equipment always remains in “continuing functioning condition.” Nally & Hamilton Enterprises, 33 FMSHRC 1759, 1763 (Aug. 2011) citing Lopke Quarries, 23 FMSHRC at 707-08. The Mine Act is a strict liability statute. Thus an operator is liable for a violation of a mandatory safety standard regardless of the level of fault. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989).

            However, the duration of the violation is a relevant consideration with respect to the degree of negligence. Peabody Coal, 14 FMSHRC 1258, 1261 (Aug. 1992). In the instant case, it is undisputed that the underground mine had recently been inundated with water. Thus, the Secretary does not contend that the inoperable condition of the sanders existed for a significant period of time. In fact, it is apparent that the wet condition of the sanders had recently occurred. Under these circumstances, although the claimed intention to service the sanders after the efforts to remove the underground water were completed does not defeat the fact of the violation, it is a reasonable mitigating factor as a prerequisite to the resumption of operations. Consequently, Citation Nos. 6639886, 6639887 and 6639888 shall be modified to reflect that the underlying degree of negligence attributable to DRC was no more than low.

            IV. Civil Penalty

            The Commission outlined the parameters of its responsibility for assessing civil penalties in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator's ability to continue in business, [5] the gravity of the violations, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

22 FMSHRC at 600 citing 30 U.S.C. § 820(i).

            In keeping with this statutory requirement, the Commission has held that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an exercise of discretion, which is bounded by proper consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294,

Cantera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo assessment of civil penalties does not require “that equal weight must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

            It has neither been contended, nor shown, that there are any aggravating circumstances in this case. Nor is it contended that the proposed penalties in this matter are disproportionate to the size of DRC, or, that the penalties would interfere with DRC’s ability to continue in business. Although the cited violations are serious in gravity, in that they are properly characterized as S&S, the most significant element in reaching the appropriate civil penalty in this matter is the degree of negligence.

            It is significant that the non-operational sanders were caused by an acute exposure to wet underground mine conditions rather than a progressive maintenance failure. Thus, it is apparent that there are mitigating circumstances that support a reduction in the degree of negligence warranting a reduction in the proposed penalty.

            With respect to the appropriate civil penalty, I recognize that a pattern of inadequate maintenance of mobile equipment may give rise to an enhanced civil penalty. However, I question the propriety of multiplying a civil penalty by a factor of three simply because of the involvement of three mantrips that were all exposed to the identical wet conditions. In other words, the penalty in this case should not be high simply because multiple mantrips were cited for the same malfunction. Consequently, I will consider the cited violations collectively. Given the low negligence, the short duration of the cited violative conditions, and the undisputed fact that DRC was in the process of alleviating the disruption caused by the inundation, a total civil penalty of $750.00 shall be assessed for the cited violations.

 ORDER

            In view of the above, IT IS ORDERED that the significant and substantial designations in Citation Nos. 6639886, 6639887 and 6639888 ARE AFFIRMED.

            IT IS FURTHER ORDERED that Citation Nos. 6639886, 6639887 and 6639888 ARE MODIFIED to reflect the degree of negligence attributable for the cited violations as low.

            IT IS FURTHER ORDERED that Dickenson-Russell Coal Co., LLC pay a civil penalty of $750.00 within 40 days of the date of this Decision in satisfaction of Citation Nos. 6639886, 6639887 and 6639888. Upon receipt of timely payment, IT IS ORDERED that the captioned civil penalty case IS DISMISSED.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution:

Robert Allen Kelly, Esq., Office of the Solicitor, U.S. Department of Labor,

1100 Wilson Boulevard, 22^nd Floor West, Arlington, VA 22209-2247

Cameron S. Bell, Esq., PennStuart, P.O. Box 2288, Abingdon, VA 24212

/jel