FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
303-844-5267/ FAX
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August 27, 2012
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SECRETARY OF LABOR, |
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CIVIL PENALTY PROCEEDINGS Docket No. WEST 2008-879 A.C. No. 05-03836-123538 Docket No. WEST 2009-081 A.C. No. 05-03836-163960 Docket No. WEST 2009-241A A.C. No. 05-03836-166946-03 Foidel Creek Mine |
DECISION
Appearances: Amanda K. Slater, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
R. Henry Moore, Esq.,
Jackson Kelly PLLC,
Before: Judge Manning
This case is before me on a petition
for assessment of civil penalty filed by the Secretary of Labor (“Secretary”),
acting through the Mine Safety and Health Administration (“MSHA”), against
Twentymile Coal Co. (“Twentymile” or
“Respondent”) pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq.
(the “Mine Act”). The parties
introduced testimony and documentary evidence at a hearing held in
This case involves Order No.
7622766, Citation No. 7291716 and Citation No. 7621434 issued at Twentymile’s
Foidel Creek Mine. Twentymile operates
the Foidel Creek Mine, a large underground coal mine in
I.
BASIC LEGAL PRINCIPLES
A. Significant
and Substantial
The Secretary alleges that the
violations discussed below were of a significant and substantial nature
(“S&S”). An S&S violation is a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.” 30
It
is the third element of the S&S criteria that is the most difficult to
apply. The element is established only
if the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC
1125, 1129 (Aug. 1985). An S&S
determination must be based on the particular facts surrounding the violation
and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500
(Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984)). “The Secretary need not
prove a reasonable likelihood that the violation itself will cause injury.” Musser
Engineering, Inc. 32 FMSHRC 1257,
1281 (Oct. 2010).
The S&S nature of a violation and
the gravity of a violation are not synonymous. The Commission has emphasized that, in
accordance with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1),
it is the contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S.
Steel Mining Co., 6 FMSHRC 1573, 1575 (July 1984). The Commission and court have observed
that an experienced MSHA inspector’s opinion that a violation is S&S is
entitled to substantial weight. Harland Cumberland Coal Co., 20 FMSHRC
at 1278-79; Buck Creek Coal Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995). The
focus of the gravity of a violation is not necessarily on the reasonable
likelihood of serious injury, which is the focus of the S&S inquiry, but
rather on “the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept. 1996). Thus, a violation can
be serious without being S&S.
B. Negligence
and Unwarrantable failure
The Secretary defines conduct that
constitutes negligence under the Mine Act as follows:
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. Under
the Mine Act, an operator is held to a high standard of care. 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. The failure to
exercise a high standard of care constitutes negligence.
30
C.F.R. § 100.3(d) (2011). The Commission
has defined an unwarrantable failure as aggravated conduct constituting more
than ordinary negligence. Emery
Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such
conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a
“serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see
also Buck Creek Coal, Inc., 52 F. 3d. at 136. Whether conduct is “aggravated” in the
context of an unwarrantable failure analysis is determined by looking at all
the facts and circumstances of each case to see if any aggravating factors
exist, such as the length of time that the violation has existed, the extent of
the violative condition, whether the operator has been placed on notice that
greater efforts are necessary for compliance, the operator’s efforts in abating
the violative condition, whether the violation is obvious or poses a high
degree of danger, and the operator’s knowledge of the existence of the
violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar.
2000). All of the relevant facts and
circumstances of each case must be examined to determine if an actor's conduct
is aggravated or whether mitigating circumstances exist.
II. DISCUSSION WITH FINDINGS OF FACT
CONCLUSIONS
OF LAW
A.
Order No. 7622766; WEST 2009-081
On August 6, 2008, MSHA Inspector Art
Gore issued Order No. 7622766 under section 104(d)(2) of the Mine Act for an
alleged violation of 30 C.F.R. § 75.380(d)(2).[1] The order alleges the following:
The primary
escapeway for the 22 right longwall section, to the 18 right escape shaft is
not clearly marked to show the route and direction of travel. The No. 1 entry of 22 right is designated as
the primary and there is one (blue, the designated color) reflective marker for
a distance of 4,800 feet.
(Ex. G-1). Inspector Gore determined that an injury
resulting in lost workdays or restricted duty was reasonably likely to occur,
that the violation was S&S, that twenty-three persons would be affected,
and that the violation was the result of high negligence on the part of the operator. The Secretary proposed a penalty of $17,301.00
for this alleged violation.
1. Summary of Testimony
Inspector
Art Gore has worked for MSHA for approximately 21 years. (Tr. 13).
Prior to his time with MSHA, Inspector Gore worked in the mining
industry from 1971 to 1991 at coalfields in West Virginia, Kentucky, and
Colorado. (Tr. 14).
On August 6, 2008, Inspector Gore
visited Twentymile’s Foidel Creek Mine as part of a quarterly E01
inspection. (Tr. 17-18). When Inspector Gore went into the Number 1
Entry of 22 Right he saw that the entry was not clearly marked to show the
direction and route of travel, a violation of section 75.380(d)(2). (Tr. 19).
Inspector Gore testified that most mines in the industry mark escapeways
with round reflectors attached to the roof with wire. (Tr. 20).
These reflectors are about two inches in diameter and are hung so that a
person in the entry can shine a light and see a row of reflectors in one
direction and white plastic or nothing in the other direction. Id. The distance between the reflectors varies,
but a person at one reflector should be able to see the next reflector. (Tr. 21).
Inspector Gore testified that he saw this type of reflector at Foidel
Creek Mine on his last visit in 2011. Id.
Inspector Gore testified that when he was in Number 1 Entry of 22 Right
on August 6, 2008 he saw only one reflector for 4,800 feet. (Tr. 23-24). Inspector Gore marked Resp. Ex. 2 with a
highlighter to indicate the area he was citing. (Tr. 22). Inspector Gore conceded that these reflectors
would be difficult to see in smoke, but it would be easier to see something
reflective through smoke than to see something non-reflective. (Tr. 42, 50).
Inspector Gore testified that the
lifeline is a continuous directional line that miners can use to find their way
through smoke to an escapeway. (Tr.
25). At the Foidel Creek mine they are
equipped with tactile devices that designate the direction of travel and
indicate the location of doorways and SCSRs.
Id. There are strips of reflective tape on the
cones and on the lifeline every 25 feet.
(Tr. 26). Inspector Gore
testified that this reflective tape is there to show the miners where the
lifeline is and does not indicate the direction of travel. Id.
Inspector Gore testified that there
were multiple problems with the lifeline in Number 1 Entry of 22 Right. He stated that the lifeline was down on the
mine floor along most of the cited area.
The floor was muddy and the reflective material on the lifeline was
either covered with mud or was missing.
(Tr. 27). The inspector issued
Order No. 7622768 on the same day because of the condition of the
lifeline. (Ex. G-3; Tr. 27-28). Inspector Gore testified that the only
directional indicator a miner would encounter in the event of an emergency in
that escapeway would be the cones, provided that the miner could find the
lifeline in the mud. (Tr. 30).
Inspector Gore marked his order as
reasonably likely to lead to an injury because at Crosscut 104 some rooms were
not adequately closed off and a miner in an emergency could accidently walk
into them and be exposed to bad roof or ribs.
(Tr. 32-33). He determined that
23 miners would be affected. (Tr.
33). At that particular time, mine
management was frequently in the area due to problems with methane behind
seals. (Tr. 34). Inspector Gore testified that the conditions
cited were obvious and extensive. (Tr.
34-35). Inspector Gore issued the order
as S&S. (Tr. 34).
Inspector Gore determined that the
violation was the result of Twentymile’s unwarrantable failure because he was
able to spot the condition within five minutes and mine managers were
frequently in the area and should have recognized the condition. (Tr. 35-36).
The reflectors were hung in the escapeway to abate the condition. (Tr. 36).
Dennis Bouwens testified on behalf
of Twentymile. (Tr. 51). He has worked for Twentymile for 24 years and
is currently the technical safety coordinator, a position he has held for a
little over a year. (Tr. 52). Prior to this position he was a general mine
foreman for 18 years. Id.
In both positions he has been responsible for evaluating safety plans
and potential hazards. (Tr. 52-53).
Bouwens discussed the order with
Inspector Gore when the inspector came out of the mine that day. (Tr. 55).
Immediately following this conversation, Bouwens went underground with
Dick Conkle, who was the safety manager of the mine at that time. (Tr. 55-56).
Bouwens testified that he inspected the Number One Entry primary
escapeway for the longwall and found that some of the lifeline was suspended
from the roof and some was attached to cans.
(Tr. 56). The lifeline did have reflective material on it, but in some
places it was covered, damaged or missing.
(Tr. 56-57). Bouwens also
testified that while some of the cones on the lifeline were covered with dust
or mud, the majority of the cones were visible.
(Tr. 57).
Bouwens testified that the escapeway
was marked by the directional cones on the lifeline in such a way that a miner
could escape. (Tr. 58). Bouwens and Conkle took photographs of the
lifeline. (Tr. 58). Res. Ex. 3 is a photo of the lifeline
attached to the roof and reflectors in the escapeway. (Tr. 59).
This photo was taken before any corrections were made in response to the
citation. (Tr. 65).
Bouwens testified that the cones on the
lifeline are designed to be a tactile device.
(Tr. 68). He also stated,
however, that a person trained on the use of cones would know which way to go
just by looking at the direction the cones were pointing. (Tr. 72).
The tape on the lifeline identifies the lifeline but does not indicate
direction. (Tr. 70).
Bouwens testified that in Number 1 Entry,
where the escapeway turns, there were three supports with “caution” tape across
them. (Tr. 60-61). A person walking down the escapeway would
know to turn at this point because the lifeline turned. (Tr. 61).
If a person were not holding on to the lifeline in a smoke-free
environment, the person would know to turn because those areas were barricaded
off and the lifeline was visible going to the left. (Tr. 61-62).
Management notified miners of any changes to the escapeway as soon as
the changes were made. (Tr. 62).
Bouwens testified that reflectors are usually
spaced about 250 feet apart. (Tr.
64). Blue reflectors are used for the
primary escapeway and red for the secondary escapeway. Bouwens said that the cited area had once
been a secondary escapeway and speculated that when the red reflectors were
removed, blue reflectors were not installed to replace them. (Tr. 64-65).
2. Brief Summary of the
Parties’ Arguments
a.
Secretary of Labor
The Secretary argues that the
Respondent violated section 75.380(d)(2) by failing to clearly mark the cited
escapeway. Although Respondent marked
the escapeway with a lifeline and attached cones, the state of the lifeline and
the lack of reflectors made these markings insufficient. Most of the lifeline was on the ground and in
the mud, and the reflective material on the cones was mostly damaged or
missing. Furthermore, the lack of
reflectors might convince a trained miner that the cited escapeway was not an
escapeway at all. In an emergency
situation, a miner would be unable to determine the location and direction of
the escapeway; the Secretary therefore argues that Respondent failed to clearly
mark the cited escapeway.
The Secretary further argues that this
case is distinguishable from my June 2010 Twentymile decision because the cited
lifeline in the present case was covered in mud and down on the mine floor. See
Twentymile Coal Co., 32 FMSHRC 628 (June 2010) (ALJ). My previous decision held that a lifeline may
satisfy the standard if it clearly marks the direction of travel to the
surface. Whether the lifeline clearly
marks the direction of travel to the surface was intended to be determined on a
case-by-case basis. In the present case,
due to the poor condition of the lifeline, the lifeline does not clearly mark
the direction of travel to the surface and therefore does not satisfy the
standard.
According to the Secretary, the lifeline
was designed to be a tactile device, not a visual aid, and cones used as a
visual device are not sufficient to satisfy the standard. Congress intended for the cones on the
lifeline to be used in addition to visual aids such as hanging reflectors and
not as a replacement for those reflectors.
Even ignoring this intent, the use of the cones as a visual aid is
confusing and difficult due to the orientation of the cones. The lifeline and cones were meant to
supplement visual aids, and even if they were not, this particular lifeline
would not satisfy the standard as a visual aid.
Therefore, the Secretary asserts that the lifeline and its attached
cones did not satisfy the safety standard.
Furthermore, the Secretary argues that
the violation was S&S. Respondent
violated section 75.380(d)(2), which contributed to the discrete safety hazard
of delaying miners during an evacuation, which could reasonably contribute to a
serious injury such as smoke inhalation in the event of an evacuation.
The violation of section 75.380(d)(2)
was the result of high negligence and an unwarrantable failure to comply with a
mandatory safety standard on the part of the Respondent based upon the entire
circumstances, argues the Secretary. The
violation was obvious and extensive, Respondent was on notice that greater
efforts were necessary for compliance with this standard, supervisors were
involved in this violation, and the lack of a clearly marked escapeway created
a highly dangerous situation. The
combination of these factors results in the Secretary’s determination that the
violative condition was the result of both high negligence and an unwarrantable
failure.
b.
Twentymile Coal Co.
Twentymile contends that no
violation of section 75.380(d)(2) existed because the escapeway was clearly
marked in compliance with 75.380(d)(2).
The lifeline was in the escapeway, had visible markers, and had cones to
indicate direction. The escapeway is
marked by the lifeline, which shows the route of travel. These elements combine to clearly mark the
escapeway and satisfy the standard.
Twentymile argues that compliance with section
75.380(d)(7) necessarily satisfies the general requirements of section 75.380(d)(2)
and this relationship was interpreted in my previous Twentymile decision. Respondent argues that general statutory or
regulatory provisions should be subordinate to specific related
provisions. Therefore, 75.380(d)(2), a
general provision, should be subordinate to section 75.380(d)(7), which is a
specific statutory provision. The result
of this subordination is that Twentymile did not violate section 75.380(d)(2).
Twentymile then explains that the
lifeline met the specific directional route requirements of section 75.380(d)(7). Respondent argues that the lifeline and the
cones were “clearly visible,” even with missing reflective material. If there were no smoke present, the lifeline
and cones would be plainly visible, and if there were smoke in the area then
neither the reflectors nor the lifeline and cones would be visible. Therefore, the presence or absence of reflective
material does not determine whether an escapeway marking is clearly visible or
not. Both the lifeline and the cones in
the present case were therefore “clearly visible.” The lifeline satisfies the
route requirement of the standard and the cones satisfy the directional
requirement of the standard. The
lifeline and cones are sufficient to satisfy the specific directional route
requirements of section 75.380(d)(7), just as the lifeline in Twentymile Coal Co. did; therefore there
was no violation of section 75.380(d)(2).
Twentymile further argues that if a
violation existed, it was not properly designated as S&S because the
inspector stated that harm “could occur,” which is not sufficient to support an
S&S finding.
Also, Twentymile argues that the
violative condition did not result from an unwarrantable failure, due to the
Secretary’s failure to meet her burden.
The Secretary bears the burden of proving an unwarrantable failure. Considering all of the circumstances, the
Secretary did not show aggravated conduct on behalf of Respondent and therefore
did not meet its burden. The
unwarrantable designation was not appropriate because the violation was not
readily identifiable by management, argues Twentymile. The lifeline clearly marked the escapeway
and, therefore, the absence of reflectors would not constitute an obvious
hazard to management. Furthermore, the
length of time that the violation existed was limited to the time that the
longwall was operating. An unwarrantable
failure designation is not supported by the Secretary’s evidence or the facts
and is therefore inappropriate.
3. Analysis of the
Issues
It is not disputed that there were no
reflective markers attached to the roof to indicate the direction of travel out
of the primary escapeway in the event of an emergency. The issue is whether the lifeline that was
present satisfied the requirements of the cited safety standard. In Twentymile
Coal Co., I determined that a lifeline can satisfy the requirements of
section 75.380(d)(2). 32 FMSHRC at 640. My decision on that issue is incorporated
herein by reference. 32 FMSHRC 638-42. Based
on that decision, I find that an analysis must be undertaken to determine
whether the particular lifeline in question in this case clearly marked the
primary escapeway to show the route and direction of travel. Based on the evidence presented at the
hearing, I find that the lifeline did not do so.
I credit the testimony of Inspector Gore
as to the conditions he found. There was
only one reflector for a distance of about 4,800 feet in the primary escapeway
for the 22 Right longwall section.
Inspector Gore also credibly testified that the lifeline in the cited
area was down, mostly in mud, on the mine floor. The cones and the reflective material on the
lifeline were either missing or covered in mud for much of this distance. (Tr. 23, 29-30). In some areas, the lifeline was hanging below
eye level about three to four feet off the mine floor, while in other areas the
lifeline was hanging properly. I find
that the Secretary established a violation because there were no clearly
visible reflectors, markings, or other objects that would direct miners out of
the mine along the cited escapeway in the event of an emergency.
I also find that the Secretary established
that the violation was S&S. The
discrete safety hazard associated with having a significant portion of an
escapeway insufficiently marked to show the direction of travel is the risk
that miners would not be able to escape quickly in an emergency, resulting in
an increased risk of injury due to a delay in evacuation. Cumberland
Resources, 33 FMSHRC 2357 at 2364 (Oct. 5,
2011). The escapeway in the cited
area was not straight or clearly marked, with the result that miners could
become lost or confused. The resulting
delays in escape are reasonably likely to contribute to a serious injury such
as smoke inhalation. It is also
reasonably likely that, in the absence of a clearly marked escapeway, miners
working in the section would follow each other so that all 23 miners on the
section would be delayed.
I also affirm Inspector Gore’s
negligence and unwarrantable failure determinations. The violation was extensive and obvious. Inspector Gore noticed the violation within
minutes of arriving in the entry and the lack of marking on the roof extended
for up to a mile. Inspector Gore
previously talked to mine management about problems he observed concerning
escapeways and improperly installed lifelines. Even assuming that Twentymile
concluded that a lifeline can clearly mark an escapeway to show the route and
direction of travel to the surface, it should have been clear to anyone that
the lifeline in question could not possibly perform this function. Examiners
walked this route on a weekly basis, yet it does not appear that the condition
was reported in the weekly exam book. A
serious safety hazard was created as a result of conditions cited by the
inspector. Although the violation was
not the result of Twentymile’s “reckless
disregard,” or “intentional misconduct,” Twentymile demonstrated a “serious
lack of reasonable care” which constituted aggravated conduct constituting more
than ordinary negligence. A penalty of
$18,000.00 is appropriate for this violation.
B.
Citation No. 7291716; WEST 2009-241A
On September 3, 2008, MSHA Inspector
Gore issued Citation No. 7291716 under section 104(a) of the Mine Act for an
alleged violation of 30 C.F.R. § 75.380(d)(7)(iv).[2] The citation alleges the following:
The continuous lifeline located in 17
Left #2 entry, crosscut 48+70 was not located in such a manner for miners to
use effectively to escape. A 1 inch
water hose ran underneath of the lifeline restricting it from being pulled
down.
(Ex.
G-4). Inspector Gore determined that an
injury resulting in lost workdays or restricted duty was reasonably likely to
occur, that the violation was S&S, that six persons would be affected, and
that the violation was the result of moderate negligence on the part of the
operator. The Secretary has proposed a
penalty of $2,106.00 for this alleged violation.
1. Summary of Testimony
Inspector Gore testified that he
inspected Foidel Creek Mine on September 3, 2008. (Tr. 75).
He was accompanied on his inspection by Diane Ponikvar, Compliance
Manager for Twentymile. (Tr. 75). Inspector Gore issued Citation No. 7291716
because he observed that a water line that supplies water to the seal pump was
attached to the roof under and perpendicular to the lifeline, rendering the
lifeline inaccessible. (Tr. 76). The roof in this area was ten feet high,
which is a typical roof height at Foidel Creek Mine. Id. The lifeline was attached to the roof with a
break-away, which is a plastic fastener designed to break when a miner pulls
the lifeline. (Tr. 77). The water line was attached with cable
fasteners. (Tr. 77). When a miner using the lifeline reaches the
water line, he will not be able to pull down the lifeline because the water
line will prevent him from doing so. Id.
According to Inspector Gore, a miner would have to let go of the
lifeline and would likely not be able to reach it on the other side of the
water line because it was ten feet above the mine floor. (Tr. 77-78).
Inspector Gore testified that a miner using the lifeline would be
carrying 50 pounds of gear and may be wearing a rescuer, making it difficult
for him to jump and grab the lifeline.
(Tr. 78). Inspector Gore
testified that to correct the violation, someone had to get a step ladder, cut
the lifeline, and then retie it under the water line. (Tr. 78, 83).
Inspector Gore did not mention a ladder in his notes from that day. (Tr. 88).
Inspector Gore issued the citation
as S&S because the condition would hinder or delay a miner’s exit from the
mine in an emergency. (Tr. 82). A miner could be injured trying to get the
lifeline down or the delay could cause the miner to be exposed to hazardous
conditions. Id. Miners can grab the lifeline at various locations where tags
hang down from the line so the miner can pull it down, but those tags were not
present in this area. (Tr. 84).
Inspector Gore conceded that the
cited escapeway was actually in the 23 Right section rather than in the 17 Left
as stated in the citation. As a
consequence, the affected area was a continuous miner section, not a longwall
mining section. (Tr. 85-87). Inspector Gore did not know why there would
be a seal pump on a continuous miner section and did not ask who installed the
water line. Id.
Dianna Ponikvar testified on behalf
of the mine. Ponikvar works at
Twentymile as compliance manager and supervises a compliance crew to check for
possible violative conditions. (Tr. 90).
Ponikvar has extensive mining experience and holds certifications as a
mine foreman and mine examiner, among others.
(Tr. 91).
Ponikvar testified that there is a difference
between a water line and a water hose and that she saw a water hose under the
lifeline when Inspector Gore issued his citation. (Tr. 92).
Ponikvar testified that the hose was sagging under the lifeline. (Tr. 93).
Ponikvar is 5 feet 5 inches tall and was able to reach the water hose
without a ladder or jumping. (Tr.
93-94). Ponikvar testified that she
abated the citation by disconnecting the water hose. (Tr. 93).
Ponikvar testified that all the lifelines are
hooked with a tag line that the miner pulls to dislodge the lifeline and make
it drop down. (Tr. 94). Furthermore, she asserted that, in an
emergency, a miner in this area would still have easy access to the lifeline by
reaching around the hose to grab it. (Tr. 94-95).
According to Ponikvar, a miner would not be delayed by having to reach
around the hose. (Tr. 94). Ponikvar also testified that the hose and
lifeline were both next to the rib and that the lifeline was high enough that
equipment moving through the area would not catch on it.
2. Brief Summary of the
Parties’ Arguments
a.
Secretary of Labor
The Secretary argues that the
Respondent violated section 75.380(d)(7)(iv) by impeding access to a lifeline
in a primary escapeway by installing a water line underneath the lifeline. At a minimum, the Secretary asserts that the
presence of the water line would require a miner to let go of the lifeline and
search for it on the other side of the water line, which would constitute a violation. At worst, however, the miner would have no
way to reach the lifeline after letting go of it because the lifeline was
secured to the ceiling. In either
scenario, the presence of the water line could impede the quick escape of a
miner during an evacuation and Respondent, therefore, violated section 75.380(d)(7)(iv).
Also, the Secretary argues that the
violation was S&S. Respondent
violated section 75.380(d)(7)(iv), which contributed to the discrete safety
hazard of miners not being able to escape during an emergency, which is
reasonably likely to contribute to a reasonably serious injury. Therefore, Citation No. 7291716 was S&S.
The violation was due to at least
moderate negligence, argues the Secretary.
The water line running underneath the lifeline was obvious. An employee of Respondent intentionally hung
the water line and he should have been trained to properly install the water
line above the lifeline. No mitigating
circumstances explaining the violative condition existed at the time of the
trial or the issuing of the citation.
Respondent was moderately negligent in allowing the water line to be
installed underneath the lifeline and not correcting it immediately.
b.
Twentymile Coal Co.
Twentymile contends that there was
no violation of section 75.380(d)(7) because the water hose under the lifeline
was at a height that it could readily be reached and a miner could grab the
lifeline on the other side of the hose.
The lifeline was continuous, crossed in only one section by the water
hose. Grabbing the lifeline on the other
side of the hose would not delay effective escape by a miner. Therefore, no violation of the cited standard
existed.
Twentymile further argues that if a
violation is found, the S&S designation was inappropriate. A lifeline violation is not automatically
designated as S&S; the Secretary must show that the actual hazard created
would be reasonably likely to result in a reasonably serious injury. The Secretary did not meet this burden. Therefore, if the violation is found, it
should not be S&S.
3. Analysis of the
Issues
I
find that Twentymile impeded access to the lifeline in the primary escapeway in
the 23
Right section. I credit the testimony of
Inspector Gore that a “one-inch water hose had been hung from the mine roof
preventing it from coming down.” (Tr.
79; Ex. G-5, p. 8). The water hose was
about six inches below the roof at the cited location and was attached to the
roof with cable fasteners. (Tr.
88). The lifeline was at least that high
where it crossed over the hose.
Furthermore, the placement of the lifeline above the water hose could
require miners to let go of the lifeline and then find it again on the other
side of the water hose. Given the
10-foot height of the mine roof, it may be difficult for miners to locate the
lifeline on the other side of the hose and then pull it down, especially if the
conditions are perilous and miners must exit the mine as quickly as possible.[3] I find that the presence of the water hose
below the lifeline could reasonably be expected to prevent miners from having
continuous access to the lifeline, as required by the safety standard. The operator is required to provide a “continuous” lifeline that is “located in such
a manner for miners to use effectively to escape.” 30 C.F.R. § 75.380(d)(7)(iv). The presence of the hose below the lifeline
violated this requirement. I relied on
the testimony of Inspector Gore as to the conditions he observed in reaching
this conclusion.
Whether the violation was S&S is
a closer question. As stated above, the Commission and court have observed that an
experienced MSHA inspector’s opinion that a violation is S&S is entitled to
substantial weight. Harland Cumberland Coal Co., 20 FMSHRC at 1278-79; Buck Creek Coal Inc., 52 F.3d at 135. I find that the evidence establishes that it
is reasonably likely that a miner trying to exit the mine using the cited
escapeway would have to let go of the lifeline to get around the water hose. In an emergency situation, miners may not be
able to quickly locate and pull down the lifeline on the other side of the
hose. Any delay in being able to escape
during an emergency is reasonably likely to lead to an injury of a reasonably
serious nature. The Secretary is
not required to establish that it is more probable than not that an injury will
result from a violation. U.S. Steel
Mining Co., 18 FMSHRC 862, 865 (June 1996).
I find that the Secretary established the S&S nature of the
violation.
The Secretary established that
Twentymile’s negligence was moderate. A
penalty of $2,200.00 is appropriate for this violation.
C.
Citation
No. 7621434; WEST 2008-879
On June 6, 2007, MSHA Inspector Phil
Gibson issued Citation No. 7621434 under section 104(a) of the Mine Act for an
alleged violation of 30 C.F.R. § 75.380(d)(7)(i).[4] The citation alleges the following:
The alternative escapeway in No. 1 entry
of 19 Right, tailgate entry for 20 Right active longwall section, was provided
with a directional lifeline that was installed near the right coal rib if a
miner were going outby but it was not maintained throughout the entire length
of this alternate escapeway. The
inspector observed that the lifeline was broken in two just outby No. 7+00 crosscut
and was lying on the mine floor for about 200 feet. This condition creates a potential delay of
rapidly escaping in the event of an emergency.
(Ex.
G-7). Inspector Gibson determined that
an injury resulting in lost workdays or restricted duty was reasonably likely
to occur, that the violation was S&S, that nine persons would be affected,
and that the violation was the result of moderate negligence on the part of the
operator. The Secretary has proposed a
penalty of $ 3,996.00 for this alleged violation.
1. Summary of Testimony
Inspector Phil Gibson testified on
behalf of the Secretary. Inspector
Gibson works for MSHA as a coal mine inspector, a job he has held for 35
years. (Tr. 105). Prior to becoming an MSHA inspector, Gibson
worked in the mine industry for six years as a general laborer, mechanic, and
fire boss. (Tr. 105-06). He holds a certification as a fire boss. (Tr. 106).
Inspector Gibson was unable to review his notes concerning the citation
at issue because his notes were lost in a fire in November 2007. (Tr. 107).
Prior to this hearing, Inspector Gibson visited the mine to ask
questions and refresh his recollection of the events. (Tr. 119).
On June 6, 2007, Inspector Gibson
wrote Citation 7621434 because a lifeline installed in an alternate escapeway
was not continuous. (Tr. 108). Inspector Gibson testified that in June of
2007, Twentymile was mining right to left on the map marked Gov. Ex. 14. (Tr. 109).
The parties stipulated that the longwall at this time was between the 47
Crosscut and the headgate and the 62 Crosscut and the headgate. (Tr. 104).
Inspector Gibson testified that the
escapeway on the map changed. (Tr.
110). An escapeway might change due to a
roof fall or standing water. Id.
At the time there were two potential exits, the first out of the 18
Right air shaft and the second out of the 6 Main North air shaft. (Tr. 110-11).
The 6 Main North air shaft was the closest exit to where Twentymile was
mining. (Tr. 111). 20 Right had three entries that lead to the
18 Right air shaft. Id. Entry 3 was a conveyor
belt entry, blocked with a conveyor belt; Entry 2 was blocked by a roof fall;
and Entry 1 had standing water in it, preventing a miner from traveling through
the entry. (Tr. 112). Inspector Gibson recalled having
conversations with Dennis Bouwens about water issues in Entry 1 and Entry
2. (Tr. 124).
Inspector Gibson testified that on
June 6, 2007, the alternate escapeway was in Number 1 Entry of 19 Right, on the
tailgate side. (Tr. 113). Inspector Gibson testified that if this were
not the escapeway at that time, he would not have issued the citation. (Tr. 114).
Further, Inspector Gibson testified that no one told him this was not
the escapeway. The entry was marked with
a lifeline with directional cones oriented in the correct direction. Inspector Gibson testified that the tailgate
is not the preferred entry for an escapeway because it has return air and is
subjected to the most roof stresses, but there is nothing that prevents the
tailgate being used as an escapeway.
(Tr. 120, 124).
Inspector Gibson testified that
Number 1 Entry of 19 Right would have been the escapeway when 19 Right was
first developed and was a continuous miner section. (Tr. 120-21).
It is generally Twentymile’s practice not to remove the lifeline after
an entry ceases to be an escapeway. (Tr.
121).
According to Inspector Gibson, the
lifeline was broken for a distance of roughly two hundred feet, and any miners
using the lifeline would be delayed in searching for the other end. (Tr. 116).
This delay could result in injuries if there were a fire in the area or
if a miner’s equipment became loose during the search. Id. Inspector Gibson determined that nine people
would have been affected because that was the number of people on the
section. (Tr. 117). He wrote the citation as S&S because, in
an emergency, a broken lifeline is a hazard.
Id. Inspector Gibson determined that the citation
was due to moderate negligence because the operator had been cited before and
there was an attempt to provide a lifeline but it was not maintained. Id. Inspector Gibson testified that the condition
was obvious. The citation was abated by
tying an additional length of lifeline to the existing lifeline. (Tr. 118).
Kevin Copeland testified on behalf
of Twentymile. Copeland works at
Twentymile as a draftsman. (Tr.
126). He has been a draftsman for 32
years and creates all of the mine maps. Id.
Copeland searched for, but could not find, the maps from June of
2007. (Tr. 126-27). He did find maps from prior to and after June
2007. (Tr. 127). MSHA requires maps to be on hand in case
there is an emergency. (Tr.
127-28). If there is a change to the
escapeways, it is marked on the map in the foreman’s room immediately. (Tr. 128).
On a map of the mine from April
2007, marked as Res. Ex. 1-A, Copeland
marked the alternate escapeway as being in Number 2 Entry. (Tr. 132).
On a map of the mine from July 2007, marked as Res. Ex. 1-B, Copeland
marked that the primary escapeway was in Number 2 Entry. (Tr. 133).
There are no markers on either map showing the tailgate being used as an
escapeway for any purpose in either April or July of 2007. (Tr. 134).
Copeland testified that, based upon the maps
from before and after June 2007, he believes that the alternate escapeway was
the No. 2 entry in June 2007 but has no personal recollection from June 6,
2007. (Tr. 135). Any temporary changes, such as a change for
two days caused by a roof fall, would not be reflected on these maps. (Tr. 136).
Bouwens testified on behalf of Twentymile that
in June of 2007 the tailgate entry in 19 Right was not an escapeway for the
longwall. (Tr. 139). That entry would have been an escapeway
during development. Id. If the entry were used
as an escapeway during development, the lifeline would have been installed
then. (Tr. 140). The lifeline would not have been removed
after the entry ceased to be used as an escapeway so that if they needed to use
that entry as an escapeway for the longwall the lifeline would already be
there. (Tr. 141).
Bouwens testified that he does not know of any
event in April, May, or June of 2007 that would have caused Twentymile to use
the 1 Entry of the tailgate as an escapeway.
(Tr. 140). Specifically, Bouwens
testified that he does not remember there being any roof falls or water
accumulations that would have required Twentymile to use Number 1 Entry of the
tailgate as an escapeway on June 6, 2007.
(Tr. 140). Bouwens conceded
there probably was water in Number 1 Entry of 20 Right at some point, but could
not say when. (Tr. 142). If all the entries on the headgate were not
travelable, miners exiting the mine would have to use the tailgate. (Tr. 143).
If all the headgate entries were blocked, Twentymile would designate a
new escapeway. (Tr. 144).
2. Summary of the
Parties’ Arguments
a.
Secretary of Labor
The Secretary argues first that the
entry cited (No. 1 Entry of 19 Right) by Inspector Gibson was an escapeway due
to the fact that Respondent provided no credible evidence to rebut Inspector
Gibson’s testimony and the presence of a lifeline. The maps provided by Respondent omit
information about escapeways for the month of June, and do not show any
temporary escapeways. In addition, none
of Respondent’s witnesses was sure that the cited entry was not an escapeway;
indeed they conceded that if all other entries were blocked, the cited entry
could be used as an escapeway.
Furthermore, according to the
Secretary’s argument, the presence of the lifeline in the entry made it an
escapeway. There can be more than the
two required escapeways. Respondent’s
witnesses admitted that under certain circumstances the cited entry may be used
as an escapeway. Because the cited entry
could have been used as an escapeway and it contained a lifeline, which is a
characteristic associated with escapeways, the Secretary contends that she
proved by a preponderance of the evidence that the No. 1 Entry of 19 Right was
an escapeway.
Due to the broken lifeline in No. 1
Entry of 19 Right, the Secretary argues that Respondent violated 30 C.F.R. §75.380(d)(7)(i).
Respondent offers no evidence to rebut the fact that the lifeline was broken
and therefore in violation of the mandatory safety standard.
The Secretary also asserts that Citation No. 7621434 was properly
designated as S&S. Respondent
violated section 75.380(d)(7)(i ), which contributed to the discrete safety
hazard of miners not being able to escape during an emergency, which is
reasonably likely to contribute to a reasonably serious injury. Therefore, Citation No. 7621434 was S&S. Finally, the Secretary argues that
Respondent’s violation of 30 C.F.R. §75.380(d)(7)(i) was due to moderate
negligence because the broken lifeline was obvious, was clearly a hazard, and
Respondent had been cited for problems with other lifelines in the past.
b.
Twentymile Coal Co.
Twentymile contends that no
violation of the standard existed because the cited area was not an escapeway
and therefore no lifeline was necessary.
The lifeline was present because the No. 1 entry had been used as an
escapeway during development mining. Although
no maps exist for that time, the mine’s witnesses testified that the escapeway
would not have been in the tailgate. There
was a lifeline in that entry because it is mine policy not to remove lifelines
from entries when they cease to be escapeways.
The witness testimony supports the argument that the No. 1 Entry of 19
Right was not an escapeway and, therefore, Twentymile did not fall under
section 75.380(d). Twentymile also
states that the designation of the citation as S&S as well as the
appropriateness of the penalty are at issue.
3. Analysis of the
Issues
I find that the citation must be
vacated. It is not at all clear that the
No. 1 entry was an escapeway in June 2007.
The Secretary bears the burden of proof.
The passage of time and the lack of complete documentation make it
difficult to determine whether there was a violation of the safety
standard. The testimony of Copeland
tends to show that the alternate escapeway was in the No. 2 entry at the time
of the inspection. Inspector Gibson
admitted that Twentymile does not necessarily remove the lifeline when an entry
no longer functions as an escapeway. I
also recognize that, in many instances, the presence of a lifeline in an entry
would make that entry a de facto
escapeway because miners trying to escape the area might well travel down the
entry when attempting to leave the mine because of the presence of the
lifeline. In such an instance, the
lifeline would need to be properly installed along its entire length. The evidence is too uncertain in this
instance to affirm the citation on that basis, however. I find that the evidence concerning this
citation is too vague and unreliable to affirm the violation. Consequently, Citation No. 7621434 is VACATED.
III. SETTLED CITATIONS
A
number of the citations and orders at issue in these cases previously settled. By order dated December 6, 2010, I approved a
settlement in the amount of $11,563.00 in WEST 2008-879 for six citations and
orders. By order dated September 24,
2010, I approved a settlement in the amount of $103,496.00 in WEST 2009-081 for
13 citations and orders. I ordered
Twentymile to pay these penalties within 40 days of my orders approving partial
settlement.
At the hearing, the parties agreed
to settle Citation No. 7291709 in WEST 2009-081 by deleting the S&S
designation and reducing the penalty to $2,000.00. The parties also agreed to settle Citation
No. 7622549 in WEST 2009-241A by deleting the S&S designation and reducing
the penalty to $2,000.00 and to settle Citation No. 7622546 in that same docket
for the original proposed penalty of $3,405.00.
IV. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets
forth the criteria to be considered in determining an appropriate civil penalty. I have
considered the Assessed Violation History Reports, which are not disputed by Twentymile. (Ex. G-8). At all pertinent times, Twentymile was
a large mine operator. The violations
were abated in good faith. The penalties
assessed in this decision will not have an adverse effect on Twentymile’s
ability to continue in business. The
gravity and negligence findings are set forth above.
V. ORDER
Based on the criteria in section
110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil
penalties:
Citation/Order No. 30 C.F.R. § Penalty
WEST 2008-879
7621434 75.380(d)(7)(i)
VACATED
WEST 2009-081
7622766 75.380(d)(2) $18,000.00
7291709 (settled) 75.380(d)(7)(iii) 2,000.00
WEST 2009-241A
7291716 75.380(d)(7)(iv) 2,200.00
7622546 (settled) 75.380(d)(7)(iv) 3,405.00
7622549 (settled) 75.380(d)(7)(i) 2,000.00
TOTAL
PENALTY $27,605.00
For the reasons set forth above, the citations are AFFIRMED or VACATED, as set forth in this decision. The Twentymile Coal Company is ORDERED TO PAY the Secretary of Labor the sum of $27,605.00 within 30 days of the date of this decision.[5]
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Amanda
K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, Colorado
80202
R.
Henry Moore, Esq., Jackson Kelly, PLLC, 401 Liberty Avenue, Pittsburgh,
Pennsylvania 15222
RWM
[1] Section 75.380(d)(2) provides that “[e]ach escapeway shall be clearly marked to show the route and direction of travel to the surface.”
[2] Section 75.380(d)(7)(iv) provides that “[e]ach escapeway shall be provided with a
continuous, durable directional lifeline or equivalent device that shall be
located in such a manner for miners to use effectively to escape.”
[3] If a miner saw the water line before reaching it, he may also be able to yank on the lifeline which could loosen it from the break-away tie on the other side of the water hose so that he could easily grab it. I cannot assume, however, that a miner could easily do this during an emergency.
[4] Section 75.380(d)(7)(i) provides, in part, that each escapeway shall be provided with a continuous directional lifeline “[i]nstalled and maintained throughout the entire length” of the escapeway.
[5] Payment
should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.